Peter Shenjere v Health Service Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/713/2016
HARARE, 24 OCTOBER 2016 &
CASE NO LC/H/1134/2014
4 NOVEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/713/2016

HARARE, 24 OCTOBER 2016 &	                                           CASE NO LC/H/1134/2014

4 NOVEMBER 2016

In the matter between:-

PETER SHENJERE			 				  APPELLANT

Versus

HEALTH SERVICE BOARD				               RESPONDENT

Before The Honourable Manyangadze J

(IN CHAMBERS)

MANYANGADZE J:

This is an appeal against the determination of the respondent’s Disciplinary Authority, which found the appellant guilty of misconduct and dismissed him from employment.

The court proceeded in terms of section 82 (2)(a)(i) of the Labour Act [Chapter 28:01] (“the Act”), which provides:

“In the exercise of its functions, the Labour Court may—

In the case of an appeal—

Conduct a hearing into the matter or decide it on the record, or

…

The appellant was employed by the respondent as a General Hand. He was charged with misconduct, the charges being a violation of paragraphs 8 and 22 of the Health Service Regulations, 2006, which were framed as follows:

“Paragraph 8	Theft of, or failure to account for, or making improper or unauthorized use of public moneys…”

“Paragraph 22	Any act or omission which is inconsistent with or prejudicial to the discharge of official duties.”

The factual particulars of the misconduct were that the appellant, on several occasions, misrepresented himself as a medical doctor. The misrepresentation was done to Ms Sally Anne Dakes, a sister to a patient who was admitted in the hospital.

The appellant is alleged to have facilitated the discharge of the patient, Joseph Samuel, upon payment of an amount of US$100-00, instead of the required hospital fees of US$269-84. This was done in connivance with one Artwell Muzemberwa, who assisted in altering the status of the patient in the hospital’s computer system, from a cash paying to a non-paying psychiatric patient. The hospital stood to suffer prejudice in the sum of US$269-84, which was set to be written off as a result of the fraudulent alteration.

The Disciplinary Authority, on 10 June 2014, found the appellant guilty as charged, and imposed a penalty of dismissal.

The appellant’s appeal to the Health Service Board was dismissed on 6 November 2014.

Aggrieved by the Health Service Board’s determination, he lodged an appeal with this court.

The grounds of appeal are stated as follows:

“1.	The Health Services Board misdirected itself in its failure to give appropriate consideration to the fact that the Disciplinary Committee was improperly constituted in that the secretary taking the minutes was allowed to actively participate in the proceedings.

2.	The Health Services Board further misdirected itself as it did not take into account the fact that during the Disciplinary Committee’s hearing the appellant’s inalienable constitutional right of legal representation was denied. On the first day of the hearing, his legal representative was not allowed to speak.

3.	The Health Services Board grossly erred in not taking cognizance of the procedural irregularities that occurred during the Disciplinary Committee’s hearing in that:

No charge was laid before the appellant, but instead he was forced to tell his story first.

The appellant was denied an opportunity to cross-examine the chief witness.

There was no documentary evidence produced to link the appellant to the alleged offence.

4.	The Health Services Board further erred and misdirected itself in endorsing the Disciplinary Committee’s determination and penalty which found the appellant guilty of the misconduct although no proof of guilt was produced.”

In its Notice of Response, the respondent averred that grounds of appeal 1 to 3 raise procedural issues, which constitute grounds for review. They are therefore improperly before the court as grounds of appeal.

A look at the grounds of appeal, supra, indeed shows that they deal with procedural issues. These include composition of the disciplinary committee, legal representation, and the opportunity to cross-examine witnesses. These grounds basically allege that the hearing was not done in a procedurally correct manner, and not that the decision arrived at was incorrect. In this form, they clearly constitute grounds for review, and not grounds of appeal. The difference between an appeal and review was clearly explained by Herbstein and Van Winsen in their book, the Civil Practice of the High Courts and Supreme Court of Appeal ofSouth Africa, 5th ed., page 1271:

“The reason for bringing proceedings under review or on appeal is usually the same, viz to have the judgment set aside. Where the reason for wanting this is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal. Where, however, the real grievance is against the method of the trial, it is proper to bring the case on review.46 The first distinction depends, therefore, on whether it is the result only or rather the method of trial which is to be attacked. Naturally, the method of trial will be attacked on review only when the result of the trial is regarded as unsatisfactory as well. The giving of a judgment not justified by the evidence would be a matter of appeal and not of review, upon this test.47 The essential question in review proceedings is not the correctness of the decision under review, but its validity.48”

In the circumstances, grounds of appeal 1 to 3 are not properly before the court and must be struck off the roll.

Ground 4 avers that no proof of appellant’s guilt was produced. It is attacking the sufficiency of the evidence relied upon to convict the appellant.

The disciplinary committee relied on the evidence of Ms Sally Anne Dakes, to whom the appellant misrepresented himself as Dr Peter. The appellant therefore seeks to impugn the factual findings of the Disciplinary Committee. An appellate court, such as the Health Service Board was, and also this court is, is in no better position to assess the credibility of witnesses that appeared before the tribunal of first instance. This court finds nothing grossly unreasonable in the determination of the Disciplinary Authority, and the Health Service Board which upheld that determination.

In this regard, the respondent submitted in the last paragraph of its Notice of Response:

“The committee relied on oral evidence which was proper. The evidence of Sally Anne Dakes to the effect that the appellant had introduced himself as a Medical Doctor was corroborated by Kabunu Fredreck who at page 8 of the disciplinary hearing minutes confirmed the fact that, the appellant introduced himself to Sally Anne Dakes as a medical Doctor.”

In Christopher Samson v Windmill (Pvt) Ltd SC 7-15, GARWE JA stated, on pages    2 – 3 of the cyclostyled judgment:

“Before this Court, the appellant attacks the finding of the court a quo on the basis that the court grossly misdirected itself on the facts and consequently came to the wrong conclusion. It is clear from the appellants’ grounds of appeal that, essentially, he is attacking the findings of fact made by the court a quo and, prior to that, by the disciplinary committee.

The position is now settled that an appellate court has no power to interfere with the findings of fact made by a lower court unless it is persuaded that the findings complained of are so outrageous in their defiance of logic that no sensible person properly applying his mind to the question to be decided would arrive at such a conclusion. Barros & Anor v Chimponda 1999 (1) ZLR 58 SC, Hama v National Railways of Zimbabwe 1996 (1) ZLR 664, 670 D.

The reason for this approach is obvious. Faced with the same facts, reasonable people might reach different conclusions without any of them properly being labelled as unreasonable. Computicket v Marcus N O & Ors (1999) 20 ILJ 342 LC, 346.”

In the circumstances, there is very little, if any room at all, to manoeuvre when assessing the factual findings of the tribunal a quo.

In the circumstances, this court finds no merit in the appeal.

It is accordingly ordered that:

The appeal be and is hereby dismissed.

The respondent shall bear the appellant’s costs.