Onias Chidha v Civil Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/670/16
HELD AT HARARE ON 12TH JULY, 2016
CASE NO. LC/H/670/16
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/670/16

HELD AT HARARE ON 12TH JULY, 2016 	    CASE NO. LC/H/989/15

AND 21ST OCTOBER, 2016

In the matter between:-

ONIAS CHIDHA								    Appellant

And

CIVIL SERVICE COMMISSION					    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr T.G. Kuchenga (Legal Practitioner)

For Respondent	:	Ms. T.S. Musangwa (Civil Division of the

Attorney-General’s Office)

MHURI J.

Appellant was employed by Respondent as a Veterinary Extension Worker in the Ministry of Agriculture, Mechanisation and Irrigation Development.

During the process of executing his dipping of animals duties, he collected and receipted money from farmers.  On about two occasions he issued receipts without properly carbonating them and when this was discovered at the bank, he estimated and endorsed different figures on the carbon copies.

As a result, he was charged with an act of misconduct in terms of Section 44(2) as read with paragraph 13(d) of the First Schedule of the Civil Service Regulations, 2000 to wit:

“Falsifying or attempting falsify any document with fraudulent intent.”

in that he under-receipted (carbon fraud) dipping fees and converted the difference to his personal use as indicated below:-

Appellant was found guilty and was discharged from the service.  His request for review by the Commission was unsuccessful.

It is to this Court that Appellant then turned to, appealing against the decision of the Commission.

Section 45(3) of the Regulations states:-

“At the hearing, the member and the disciplinary committee may, if either so wishes, be advised and, in the case of the member represented by a legal practitioner.”

Unlike Section 14(2) of Statutory Instrument 65 of 1992 repealed by Statutory 1 of 2000 which section clearly prohibited any representation legally or otherwise, Section 45 supra allows a member to be legally represented.  This is in compliance with Section 69 of the Constitution which confers the right to a fair hearing.  Subsection (4) of Section 69 provides:-

“Every person has a right, at their own expense, to choose and be represented by a legal practitioner before any court, tribunal or forum.”

A reading of subsection (3) of Section 45 does not restrict representation to giving advice only.  Representation entails being actively involved in the proceedings by defending his client from the onset to finality.  It does not entail just being present during the proceedings giving advice from the bar.

It was therefore an error on the part of the Disciplinary Committee to prevent Appellant’s legal practitioner from actively participating in his client’s proceedings.  Respondent’s representative correctly conceded this point.

Despite not being actively involved in his client’s case, the record shows that substantial justice was done by the Disciplinary Committee.  Appellant was given the opportunity to present his case, he was cross-examined by members of the Committee and responded well to the questions.

His legal practitioner raised concern about whether Appellant was served with documentary evidence to prepare his defence, the positive response of which was not challenged by Appellant.  The legal practitioner also made a submission to the effect that the charge was too harsh, there was no intent to defraud the government.

Appellant has not shown how he was prejudiced by his legal practitioner’s not actively involved in the proceedings.

See:	TICHAWANA NYAHUMA vs BARCLAYS BANK SC 67/2005

Despite the irregularity mentioned earlier, I am not persuaded that, it is so fatal that it vitiates the proceedings.  The remarks by Chidyausiku CJ that a person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee, are very apt.

AIR ZIMBABWE (PRIVATE) LIMITED

vs

CHIKU MNESA and

MAVIS MWARWEYE SC 89/04 at page 6.

It is not in dispute that Appellant received money from farmers.  He receipted the said money.  The top copy of the receipts reflected the correct money he had received from the farmers.  It is the carbon copy which was endorsed with amounts less than those reflecting on the copy.  Appellant submitted that he guessed the amount he endorsed on the carbon copies.  One wonders why he did not guess amounts which were higher.

The fact that the receipting duties were not part of his duties, does not absolve Appellant in my view.  Neither would the lack of training.  It does not need training to write correct amounts on both the top and carbon copies.

I find that Appellant was correctly found guilty.  The balance of probabilities tilted against him.

It is trite that the imposition of a penalty is within the discretion of the employer.

See:	TREGERS PLASTICS (PRIVATE) LIMITED

vs

WOODRECK SIBANDA & ANOTHER SC 22/12

The act of misconduct perpetrated by Appellant involves an element of dishonesty.

Respondent was entitled, in my view to impose a dismissal penalty, if it was of the view that the act of misconduct was of such a serious nature that goes to the root of the contract of employment.

See:	NGONDO & 13 OTHERS

vs

PORTLAND HOLDINGS LIMITED SC 40/03

See also

CIRCLE CEMENT (PRIVATE) LIMITED

vs

CHIPO NYAWASHA SC 60/02.

“Once  an employer has taken the serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of the contract which it accepted by dismissing her from employment the question of a penalty less severe than dismissal being available for consideration does not arise.”

It is also an established principle that an Appellate Court should not lightly interfere with the employer’s exercise of discretion unless it has been demonstrated that it was injudiciously exercised.  The mitigatory factors repeated in Appellant’s heads of argument were considered by the Disciplinary Authority, I find that the Disciplinary Authority properly exercised its discretion and therefore does not call for interference.

The appeal must be dismissed, and I hereby order that it be dismissed in its entirety.

KARUWA AND ASSOCIATES – Appellant’s Legal Practitioners

CIVIL DIVISION OF THE ATTORNEY-GENERAL – Respondent’s Legal Practitioners