Peter Nyagura v Minister of Agriculture Mechanisation & Irrigation Development

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/683/2016
HARARE, 22 MARCH 2016 &
CASE NO LC/H/906/2015
4 NOVEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/683/2016

HARARE, 22 MARCH 2016 &				         CASE NO LC/H/906/2015

4 NOVEMBER 2016

In the matter between

PETER NYAGURA								APPELLANT

Versus

MINISTER OF AGRICULTURE MECHANISATION			RESPONDENT

& IRRIGATION DEVELOPMENT

Before the Honourable Kudya J

For the Appellant	M Mtlongwa  (Legal Practitioner)

For the Respondent	L T Muradzikwa  (Civil Division)

KUDYA J:

This is an appeal against the decision of the respondent’s Disciplinary Authority which dismissed the appellant from employment following allegations of misappropriating the respondent’ dipping fees.

The brief facts of the case are that the appellant who was in the respondent’s employment as a veterinary extension assistant based in Mudzi was on 13 January 2014 charged with misappropriating $19-00 in contravention of the Public Service Regulations 2000 as amended. He was brought before a disciplinary committee which recommended that he be discharged from the service on account of the infraction complained about. He was aggrieved by the dismissal decision and decided to lodge his appeal with the Labour Court. That appeal is the subject of this judgment.

The appeal grounds were set out as follows:

Disciplinary authority erred grossly by not considering the appellants mitigation as the appellant was not given a chance to mitigate.

The respondent erred grossly by treating the appellant differently from one Muzhongo who had also committed a similar infraction but got away with a warning penalty as opposed to dismissal. The respondent therefore offended the legal principle of treating like cases in the same manner.

The respondent erred and grossly misdirected self by treating the appellant’s period of suspension as leave without pay yet the appellant was never suspended and therefore entitled to his pay and benefits for that period.

In the result the appellant prayed that the appeal succeeds and that the respondent’s decision be set aside and that it be replaced by an order reinstating the appellant with full pay and benefits and that the matter be remitted to the respondent to consider the appellant’s mitigation or that if the guilty verdict is upheld that the dismissal penalty be set aside on account of the respondent’s failure to treat similar case in the same manner and that matter be remitted for a re-consideration of the penalty.

In response the respondent maintained that:

Mitigation was considered and the record speaks to that effect. The appellant was invited to mitigate at the end of the hearing and he sought forgiveness from the panel as well as offered to reimburse the money.

All cases of misappropriation were treated the same Muzhango was also discharged. The appellant’s case had ample evidence for the determination of that same case.

The appellant was indeed not suspended. The principle of pay without leave was never applied to the appellant and pay master could not effect such an order without an attendant suspension order. The appellant’s conduct was gross in that he deprived government of much needed revenue intentionally and that led to the decision to discharge him.  The respondent therefore prayed that the appeal be dismissed with costs for lack of merit.

Each of the appeal grounds is discussed below:

Ground 1

As indicated by the respondent and as borne out by page 4 of the record of the misconduct proceedings the appellant was invited to say anything if he had just before the committee came up with its recommendation. He indicated that he had made a mistake, pleaded for forgiveness, offered to reimburse the money if granted the chance to do so and promised to be faithful if he were given a second chance.

It is therefore apparent that the appellant got the chance to mitigate but as the disciplinary authority record demonstrates the gravity of the offence tilted the scales towards dismissal. Besides penalty is at the discretion of the employer See Circle Cement v Nyawasha SC 60-03). This ground therefore has no foundation and it should fail.

Ground 2

The law is clear that like cases should be treated similarly. As the record also demonstrates Muzhonga who committed a similar offence was also dismissed. The court is alive to the fact that protected debate was entered into over the period when Muzhongo was eventually discharged. The appellant maintained that for his first offence Muzhongo had been warned but after a later infraction he got dismissed. It is noteworthy that whilst the facts may be as presented by the appellant that would still not detract from the employer’s prerogative to penalise.  There is nothing outrageous in how such discretion was used hence this court has no cogent basis to upset the lower tribunal’s decision. This ground is equally without merit and should fail.

Ground 3

The respondent indicated clearly that a leave without pay order based on a suspension would indeed need the suspension order first. Such was absent in the appellant’s case hence even if talked about it would be an unenforceable statement. In the result this ground can not avail the appellant. The appeal should therefore also fail on account of this ground. In the ultimate all the grounds are without merit and the appeal should fail in its entirety.

IT IS ORDERED THAT

The appeal being without merit in its entirety it be and is hereby dismissed with costs.

Chambati, Mataka & Makonese, appellant’s legal practitioners

Civil Division of the Attorney General’s Office, respondent’s legal practitioners