Robert Mudyiradima v Health Service Board and 2 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/102/24
HARARE, 16 JANUARY 2024
CASE NO LC/H/213/23
11 MARCH 2024
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 16 JANUARY 2024

11 MARCH 2024

JUDGMENT NO LC/H/102/24 CASE NO LC/H/213/23

ROBERT MUDYIRADIMA	APPELLANT

HEALTH SERVICE BOARD AND 2 OTHERS	RESPONDENT

Before the Honourable G. Musariri Judge:

For Appellant	-	Mr B. Diza, Attorney

For Respondent	-	Ms T. Tembo, Officer

MUSARIRI, J:

Appellant appealed to this Court against the verdict of Respondent’s Disciplinary Authority dated 23 February 2023. The appeal was made in terms of section 24 of the Health Service Act Chapter 15:16. Respondent opposed the appeal. At the onset of oral argument Respondents applied for condonation of the late filing of their heads of argument. Appellant did not oppose.  The Court then condoned the belated filing.

The grounds of appeal were three-fold as follows,

“1. The Disciplinary Authority erred when he dismissed the preliminary point that the Legal Practitioner from the Attorney General’s Legal Practitioner could act as the complainant and lead evidence on behalf of the employer.

The Disciplinary Authority grossly mis-directed himself when he dismissed the Preliminary point by the Appellant that the charge was defective for reason of failing to make an election on whether or not the Appellant’s conduct was inconsistent with the fulfilment of the express or implied conditions of his contract of employment.

The Disciplinary Authority erred when he found as he did that the Appellant was guilty of signing and authorising issuance of a verification letter to an ineligible nurse when:

There was no standard operating procedure for the issuance of verification letters.

The nurse in question was not under bond as she had already been issued with her diploma in 2020 and was therefore at large to seek employment as she deemed fit.”

1st Ground

The Disciplinary Authority dealt with this point thus

“Ladies and gentlemen welcome back when we last adjourned there were two

issues at stake, that have been raised first one being that Mr Muradzikwa could not stand in for the complainant and after my research we noted that there is no reason why Mr Muradziwa could not stand in for the complainant because I find no prejudice on the respondent. There was also a suggestion that Mr Muradzikwa would lead hearsay evidence in this case and we are saying the Disciplinary Authority is available to see fair proceedings. The defence is free to object to hearsay evidence.”

It is common cause that Muradzikwa is an attorney employed by the Attorney-General (AG) of Zimbabwe. The AG is the legal advisor of all arms of the state and government of Zimbabwe. The employer in casu is an arm of the said state. Therefore the AG and his officers can represent the employer in disciplinary matters. Muradzikwa represented the employer as the complainants prosecuting the employer’s case. There is nothing wrong with his participation in the matter. The case relied on by Appellant i.e. Stalap v Willoughby HH 459/19 dealt with deponents to affidavits and is thus inapplicable herein.

2nd Ground

The Disciplinary Authority dealt with the point this way

“Thank you very much my finding is that we can proceed without any further ado to that issue. This is not the first charge of its kind framed in this manner I think we have heard or seen so many charges along the same lines and they have been the proceedings have been carried out without any problems and we should also remind ourselves that labour matters should not be resolved on technicalities I think we need to proceed with the gist of the matter.”

The charge appears in the letter dated 7 June 2022 addressed by the employer to appellant as follows:

“The Board has reason to believe that you committed an act of misconduct as defined by section 4 of the Code in that contrary to section 4(a) of the Code, your conduct was inconsistent with the fulfilment of the express or implied conditions of your conduct.”

This rendition of the charge follows the ipsissima verba of section 4(a) of the Labour (National Employment Code of Conduct) Regulations S.I. 15 of 2006. Therefore

The employer is not obliged to specify in the charge whether it involves express or implied conditions of the contract of employment. The employer went on to specify the allegations forming the basis of the charge.  That was sufficient.

3rd Ground

The misconduct charge set out the particulars thereof thus,

“On or about 26 January 2022 you signed and authorised issuance of a verification letter to an ineligible nurse one Ms Chatira, a then Registered General Nurse (RGN). Your conduct was inconsistent with the express or implied terms of your contract in that you signed the verification letter notwithstanding the fact that its signing is the prerogative of the Permanent Secretary and is not a delegated function. Furthermore you signed the letter without having checked the cadre’s eligibility for being issued with such a letter. As a result of your conduct, the Ministry was prejudiced as the verification letter had the effect of facilitating release of the nurse from service notwithstanding that she had not completed serving the required bonding period.”

A hearing was held before the Disciplinary Authority (DA) who returned a guilty verdict in these terms,

“3.24. Ms Chatira notwithstanding that she had graduated in 2019 and was a holder of a Diploma Certificate, did not seek a written waiver from the Health Service Board of the bonding requirement which was a condition precedent to being granted a verification letter.

3.25. Therefore, Ms Chatira was not eligible to be issued with a verification letter 3.26.The Permanent Secretary does not have discretion to authorise issuance of a verification letter to an ineligible nurse.

3.27. When he signed the letter authorising issuance of a verification letter to Ms Chatira, the defendant did not exercise care needed to satisfy himself as to her eligibility to be issued with such a letter.

Appellant challenged the verdict on 2 basis. Firstly that there was no standard operating procedure for verification letters. Secondly that Chatira had already been issued with her Diploma in 2020 and could seek employment anywhere. It is far fetched to suggest that an employee cannot be found guilty of misconduct in the absence of standard operating procedures. In any event credible evidence was led of practices on the ground. They had to be followed consistently. That Chatira had already been issued with her Diploma is immaterial.

The issue was one of bonding. The practices show that nurses were bonded to work for the government or non-governmental employer within Zimbabwe.

If a nurse wished to work outside the country she needed to complete her bonding period. Chatira had not completed the period. Thus she was not eligible for the verification she was given. The Disciplinary Authority’s decision was consistent with the evidence given. No irrationality was shown in the DA’s verdict.

An appeal court will not interfere with factual findings of lower tribunals unless irrationality is shown. See Hama v NRZ 1996 (1) ZLR 664(S) at p670c. In all the circumstances it is concluded that the appeal ought to be dismissed as devoid of merit.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

J-U-D-G-E