Rangarirai Mudzingambiri v Kotwa Hospital & Health Services Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/303/2020
HARARE, 27 MAY 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE     JUDGMENT NO. LC/H/303/2020

HARARE, 27 MAY 2020				       CASE NO. LC/H/963/15

AND 18 DECEMBER 2020				    XREF LC/H/216/19/REV

In the matter between:-

RANGARIRAI MUDZINGAMBIRI			Appellant

And

KOTWA HOSPITAL					1st Respondent

And

HEALTH SERVICES BOARD				2nd Respondent

Before Honourable B.T. Chivizhe, Judge

Appellant			In person

For Respondents		Ms B. Madiro (Civil Division)

CHIVIZHE, J:

This matter was placed before me as an appeal conjoined with an application for review. The determination by the Health Services Board was handed down on 22 October 2015. For convenience the Appellant/Applicant shall be referred to throughout as Appellant.

The material background facts to the matter are as follows;

The Appellant was employed by the 2nd Respondent as an Accounting Assistant. He was based at Kotwa Hospital.  He was placed on suspension on the 4th of November 2013 to the 4th of February 2014 following allegations of misconduct more particularly, that he had failed to take reasonable care or account for state funds which were in his custody. The amount of $3,379.00 was said to have gone missing on 30th of October 2013 from a safe whose keys were in Appellant’s custody.  The 2nd Respondent levelled a charge of breach of paragraph 8 of the First Schedule of the Health Service Regulations, 2008 i.e. “failure to take reasonable care or to account for the monies of any statutory body or statutory fund”.

The Disciplinary Committee set up to hear the matter convened a hearing on the 21st of January 2015. The Appellant appeared in person and denied the charge. He presented evidence before the Disciplinary Committee. Evidence was also led from three witnesses Mr Michael Katsande, an Accounting Assistant and Mr Felix Ngwarah, an Accountant, and Mr Mukowachima. After considering the evidence as led and upon consideration of the submissions by the parties the Disciplinary Committee handed down their findings. They found that the amount of $3379.00 had gone missing while in the Appellant’s custody. They also found that the Appellant had previously missed amounts ranging from $90, $450 - $550 on three other occasions. They noted that Appellant had reported the shortfalls to the Accountant and had on those occasions reimbursed the amounts. In respect of the $3,379.00 the Disciplinary Committee noted that there was no evidence of a breakdown or tampering with the safe. The Appellant was the person with the custody of the safe key. An audit report conducted from 11th November to 15 November 2013 and a preliminary investigation conducted on 28th November, 2013 by the Provincial Officer established the amount was missing whilst in Appellant’s custody. Although he shared his office the other officers only had keys to the office.  The Disciplinary Committee also noted that there was no clear segregation of Appellant’s duties as he was responsible for the custody of the safe as well as banking, withdrawals plus disbursements. The Disciplinary Committee also noted that the case had been referred to the police but had been subsequently dropped against Appellant on the basis of lack of evidence. The Committee also established that the duplicate safe key was kept at Nyamapanda Police Station.  Having arrived at those findings the Disciplinary Committee returned a verdict of guilty on the charge.

The Appellant was advised through a letter dated 19th of February, 2015 of the determination of the Disciplinary Committee. He was also advised of the penalty imposed of a discharge from the service with effect from 6th of March, 2015.

Aggrieved by the determination, the Appellant noted an appeal to the 2nd Respondent against the determination and penalty imposed.  Following a meeting held on 24th of September, 2015 to consider the Appellants grounds of Appeal the 2nd Respondent wrote to Appellant on 16 October 2015 advising of its findings. The 2nd Respondent had upheld the determination and penalty imposed by the Disciplinary Authority. The Appellant was advised, in the event that he was dissatisfied, to note an appeal with the Labour Court within 14 days of receipt of the letter.

The Appellant consequently approached this court with his appeal as well as an application for review.  It is proper to address initially the application for review.

Application For Review

The application for review was noted on the basis of the following grounds;

The Board a quo erred procedurally in endorsing a determination by the Disciplinary Committee which was grossly and procedurally at in that the Appellant was discharged without being given a chance to cross – examine the witnesses and to plead to the charge and given the chance to be heard.

The Board a quo erred procedurally in dismissing Appellant without giving him an opportunity to submit mitigation as required under the law.

The Appellant’s prayer in relief is that:

(a) 	The decision to dismiss him from employment be and is hereby set aside;

(b) 	The Respondent be and is hereby ordered to reinstate him to his original position without loss of salary and benefits;

(c)	That if Respondent feels that he has a case to answer the matter be and is hereby remit back to the Disciplinary Committee for a hearing de novo within 14 days  of the court order.

The application is opposed by the 1st and 2nd Respondent. Through the Notice of Response filed the two Respondents submitted that both grounds as filed by the Appellant were meritless.  There had been no procedural irregularities as alleged.  The Appellant had been afforded an opportunity to tender his plea, he had denied the charges. He however did not request to cross-examine the witnesses. The Respondents also submitted that the Appellant’s rights to be heard were observed he had been subjected to questions from the Disciplinary Committee to which he had responded. He had also, after being found guilty of the charge, been allowed to note an appeal to the Health Service Board. Appeals to the Board were however determined on the record.  The Appellant therefore could not have been allowed to appear in person before the Board when the Board met to determine his appeal.

With regards the second ground the Respondents submitted that the Appellant during the hearing admitted that the money had gone missing whilst in his custody. The Respondents’ submission was on the basis of the admission by the Appellant there would have been no need to receive mitigation factors when it was clear the Appellant was guilty of the misconduct. The Respondents’ last submission was that the grounds for review being clearly baseless the application ought to be dismissed for lack of merit.

The Appellant submitted through his Heads of argument and oral submissions that his right to be heard was abrogated by the Disciplinary Committee. Firstly, that he was not given a chance to plead to the charge. Secondly, that he was not asked to file his defence. Thirdly, that there was no complainant or case presenter in the case. Fourthly, the Chairman was both the Judge and prosecutor in the case, thus the nemo judex rule was not applied. Fifthly, that he was denied an opportunity to cross-examine the witnesses. Lastly, the Appellant submitted that the Disciplinary Committee unprocedurally dismissed him without having granted him a chance to make submissions in mitigation.

The Respondents through their papers and in oral submissions have not addressed individually the six points as raised by the Appellant. The Respondents have taken a general stance that there were no procedural irregularities in the disciplinary proceeding or if there were they were insufficient to vitiate the proceedings.

A perusal of the record of proceedings clearly shows however that the proceedings were smeared with gross procedural irregularities. In respect to the first issue of the plea the record shows on page two that the Appellant did tender his plea to the charge. The record indicates that he denied the misconduct charge in his response. From that point however the process became muddled with gross procedural irregularities.  The record does not disclose whether the Appellant was asked to file his defence. There was also no complainant or case presenter called by the Disciplinary Committee. Instead the Chairman of the Committee and the members proceeded to request the Appellant to proceed to outline the circumstances surrounding the missing money. The Appellant then proceeded to narrate the events. Thereafter the Chairman and the Committee members proceeded to cross-examine him and then returned a verdict of guilty on the charge. There was clearly in the circumstances a breach of the nemo judex principle. The principle provides that no man can be a judge in his own cause. (See Doreen Sagandira vs Makoni Rural District Council SC 70/2014)

The record of proceedings also clearly indicates that after receiving evidence from the Appellant the Disciplinary Committee received evidence from three witnesses who were Appellant’s colleagues. The Committee cross-examined all three witnesses. The Respondent submitted that the Appellant did not personally request to cross-examine the witnesses. It is very clear from the record that the Appellant was a self-actor. He could not therefore be expected to know of his rights to cross-examine witnesses. The obligation, in the court’s view, lay on the Committee Chairperson to advise the Appellant of his right to cross examine witnesses. Although disciplinary proceedings are expected to be conducted in a flexible manner there is still need for procedural fairness to be followed.

The court is not satisfied therefore that there was such procedural fairness in this case. The Appellant had the right to cross-examine all witnesses who gave evidence before the Disciplinary Committee. The Disciplinary Committee again abrogated his right to be heard when they proceeded to impose the discharge penalty without giving him an opportunity to submit mitigation factors. This is clear from the record of proceedings. The Respondents have submitted however that this was not necessary in view of the Appellant’s admission to the charge and the overwhelming evidence presented against him.

It is however a trite position at law that upon conviction the employee must be called in to submit mitigation before the penalty is imposed (See Ajasi Wala vs Freda Rebecca Mine SC 56/2016). It is therefore clear based on the gross procedural irregularities the proceedings and dismissal penalty imposed cannot be allowed to stand.

THE APPEAL

Having addressed the application for review the court shall turn to address the appeal. The appeal was noted on the following grounds:

The Board quo erred and misdirected itself on a point of in law in endorsing the determination and penalty of the Disciplinary Authority of discharging the Appellant when there was no evidence to support the offence in question.

The Board a quo erred ad misdirected itself in endorsing determination arrived at unprocedurally.

The Board a quo  erred and misdirected itself on a point of law failing to consider that the decision to discharge the Appellant was irrational and illogic in the circumstances.

The Respondent is opposed to the appeal.  In their Notice of Response to the Appeal the Respondents submit in respect of the 1st ground of appeal that the Board did not err in dismissing the appeal before them.  The decision taken was after finding that there was overwhelming evidence against the Appellant.  The Appellant had allegedly admitted to having committed similar offences previously but had not taken reasonable corrective measures to address the issue of the security of hospital funds.  The Respondents’ submission is that any procedural irregularities in the proceedings would not absolve the Appellant of the charge levelled and proved before the Disciplinary Committee.  It would also amount to a travesty of justice were Appellant to be reinstated in such circumstances.  The Respondents have also submitted that the Board (2nd Respondent) properly arrived at a determination upholding the Disciplinary Authority findings and penalty in view of the overwhelming evidence in the record of proceedings.

It would appear to me upon a perusal of the grounds of appeal raised that the appeal turns on one issue as to whether or not the procedural irregularities in  the disciplinary hearing were so serious as to  warrant the setting  aside of the  determination by the Disciplinary Committee.  Although the Appellant has in his first ground of appeal sought to impugn the decision on the merits it would serve no purpose for this court to consider  them  in the event that the court  finds  that the  procedural irregularities  were so serious as to warrant the setting aside of the determination by the Disciplinary Committee.  It is very clear that indeed there were procedural irregularities in the disciplinary proceedings as alluded to above.  The Respondent through its response also concedes to that position.  It is however a trite position at law that for procedural irregularities to vitiate disciplinary proceedings it must be shown that the irregularities resulted in prejudice.  See Nyahuma vs Barclays Bank of Zimbabwe Supreme Court 67 105 where the court held as follows:

“....... it is not all procedural irregularities which vitiate proceedings.  In order to  succeed in having proceedings set aside on the basis  of procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.’’

It is apparent from a reading of the record of proceedings that Appellant is right to be heard was violated.  The procedural irregularities were also in my view so gross such that they vitiated the whole disciplinary process.

Whilst it is clear the Appellant was asked to plead he however was not granted an opportunity to present his defence.  There was no Complainant or Case Presenter as required at law. The Chairman played double roles as both Chairman and complainant which is clearly inappropriate.  The same can be said of the committee members as they also took the role of complainant by subjecting the Appellant to cross- examination.  To further compound the Appellant was not granted an opportunity to hear the testimony of witnesses and to cross-examine the witnesses.  The Disciplinary Committee also erred and misdirected itself when it failed to grant Appellant an opportunity to present mitigation upon his conviction.  Whilst it is indeed the position that disciplinary proceedings at the workplace are to be conducted in a flexible manner such flexibility however must not operate to deprive the rights of an employee to a fair and procedurally just hearing.  See Unifreight Limited vs Lighton Madembo Supreme Court 6/18.  The facts in his matter clearly show that the Appellant was prejudiced by the procedural irregularities.  They were sufficient to vitiate the disciplinary proceedings.  The Appellant, in relief, on the appeal matter, invited this court to set aside the decision of the Disciplinary Committee and that he be reinstated to his original position without any loss of salary and benefits.  In view of my findings above the proper course to follow is to have the matter remitted to the Disciplinary Committee for a hearing de novo and in a procedurally correct manner.  See Dalny Mine vs Banda 1999 (1) ZLR 220.  Having remitted the matter the Appellant’s position should automatically revert to the status quo ante.

In the result the court grants the following order:

The application for review succeeds.

The appeal is upheld with costs.

The Disciplinary proceedings before the Disciplinary Committee and in turn the Health Service Board be and are hereby set aside.

The matter is remitted to the Disciplinary Committee for a hearing     de novo and in a procedurally correct manner within 60 (sixty) days of the date of this order.

The Appellant shall be reinstated to his original position with effect from the date of discharge and without any loss of salary and benefits.

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