Shame Magaya v Public Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/666/14
MUTARE ON 24TH SEPTEMBER , 2014
CASE NO. LC/H719/13
AND 10 OCTOBER, 2014
JUDGMENT NO. LC/H/666/14
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/666/14

MUTARE ON 24TH SEPTEMBER , 2014			     CASE NO. LC/H719/13

AND 10th OCTOBER, 2014

In the matter between

SHAME MAGAYA						–	APPELLANT

And

PUBLIC SERVICE COMMISSION			-	RESPONDENT

Before The Honourable L.M. Murasi, J

For Appellant    :	Mr C. Ndlovu (Legal Practitioner)

For Respondent :	Ms T. Musangwa (Law Officer)

MURASI J,

Appellant was employed as a teacher at St. Killian’s School. He is alleged to have committed acts of misconduct which resulted in him being brought before a Disciplinary Committee. The Disciplinary Committee found him guilty on certain of the charges and recommended his dismissal. Appellant is dissatisfied with this decision and has appealed to this Court. Appellant’s grounds of appeal are couched in the following manner:

The Committee erred and misdirected itself on both law and fact when it recommended the Appellant’s dismissal.

The proceedings were fatally irregular and even a clear perversion of justice.

The Appellant was not given adequate time to prepare for the trial or hearing.

The Appellant was refused the opportunity to bring his witnesses to the hearing. Most of his witnesses were pupils and the school refused them leave to attend the hearing.

At the hearing the Appellant’s union representative was openly harassed and threatened. Consequently the representative failed to be of meaningful assistance to the Appellant.

The record of proceedings is not a correct and proper reflection of the trial process. It is highly inadequate and is full of glaring omission.

The panel erred by failing to view or watch the video concerned. The failure to watch is too fatal to lead to a conclusion that the determination was pre-planned.

The panel erred by failing to analyse the testimony of the pupils that they only paid for the photocopies. The Appellant did not make any money out of the process. If anything has motive was to genuinely assist the pupils in the hard and tying times.

The panel erred by refusing to call or subpoena the former school head to elaborate for the Appellant to be given authority to do photocopies for the students.

The conclusion that the Appellant was guilty was therefore not supported by any cogent reasoning or analysis of the evidence.

Appellant’s Counsel stated that he abided by the Heads of Argument which he believed were quite extensive and elaborate. It was submitted that the Disciplinary Committee failed to analyse, evaluate evidence adduced during the hearing and make a value determination. It was also stated that Appellant was not offered the opportunity to mitigate and therefore the proceedings were irregular. It was further submitted that Appellant was not allowed time to prepare for the hearing and was given three (3) days’ notice of the hearing. It was further argued that Appellant was denied the chance to adequately present his case. It was Appellant’s case that the Disciplinary Committee failed to record the Appellant’s defence. It was also stated that the evidence and testimony by the Respondent was not sufficiently cogent and convincing to weight the scales of probability in Respondent’s favour.

Respondent’s Counsel submitted that the grounds of appeal raised by Appellant are procedural issues which should have been brought on review and therefore they were fatally defective. It was further submitted that Appellant’s conduct merited dismissal as this went to the root of the employment contract. It was stated that Appellant did not raise the issues that he seeks the Court to determine at the hearing before the Disciplinary Committee.

The Court notes that most of the grounds of appeal should have been brought to Court on review. The Court brought this to the attention of the Appellant’s Counsel who made a concession that this was indeed the proper course Appellant should have taken. Legal practitioners should always know that they owe their clients a duty to exercise reasonable professional competence and diligence in the pursuit of their client’s instructions.

I now turn to first ground of appeal. It is averred that the Disciplinary Committee erred and misdirected itself when it recommended Appellant’s dismissal. A reading of the facts will help put the matter in its proper perspective. Appellant does not deny that he showed the video in question to the pupils. It was during class. The video is said to have shown semi-nude women and its subject matter was Satanism. Appellant went on to reproduce copies of this video which he sold to the pupils. He had no authority from the school to do this. Appellant was in a position of responsibility as regards the moral, educational and social welfare of the students concerned. He disregarded the position. From the documents filed of record, Appellant does not seem to be contrite at all. I share the view expressed in CIRCLE CEMENT (PVT) LTD v CHIPO NYAWASHA SC 60/2003 where it was stated thus:

“Once the employer has taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment, the question of a penalty less severe than dismissal being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.”

The Court is of the view that Appellant has not demonstrated that Respondent was not entitled to dismiss Appellant in the circumstances. Appellant breached the trust that was placed on him when he showed the pupils the video in question. It was not an unreasonable decision taken to dismiss the Appellant. This ground must fail.

In the second ground of appeal, Appellant avers that the proceedings were fatally irregular and a clear perversion of justice. I do not wish to waste time on this “ground of appeal” as it is not a ground of appeal. It does not show in what manner the proceedings should be deemed to be irregular and a perversion of justice.

In the third ground of appeal it is alleged Appellant was not given adequate time to prepare for the trial or hearing. A reading of the record shows the exchange that goes on between Appellant and the Chairperson of the Disciplinary Committee. Appellant does not raise this issue with that Committee. It was therefore not an issue before the Committee and the Court take this to be an afterthought on the part of the Appellant and accordingly that ground must fail.

The fourth ground of appeal alleges that Appellant was refused the opportunity to bring his witnesses. Once again this is not supported by the record. There is nowhere in the record where Appellant makes an indication that he wishes to call pupils to testify. In fact some pupils were called to testify and he had no questions to put to them. This ground must obviously fail.

The fifth ground of appeal alleges that Appellant’s representative was harassed at the hearing. The record once more does not show that this was in fact the case.

The sixth ground of appeal is a mere assertion that the record is not a proper reflection of the trial process. Appellant has not shown or demonstrated in what areas the record is deficient and of what material. It is simply a bold declaration which has not been substantiated.

The seventh ground of appeal alleges that the Disciplinary Committee erred in failing to watch the video in question. Firstly, the existence and contents of the video in question were not in dispute. There was nothing to be proved by having the Disciplinary Committee view the video during the proceedings. Secondly, the record does not show that Appellant made such request during the hearing. This ground must fail.

The eighth ground of appeal does not show what analysis the Disciplinary Committee was supposed to make to the evidence given by the pupils. The evidence was clear and uncontroverted.

The ninth ground of appeal falls into the category of previous determinations where Appellant raises a point which is not supported by the record.

In the tenth ground of appeal Appellant makes a robust assertion, which I believe is meant to be a conclusion of all the matters he has raised and these have been addressed elsewhere in this judgment.

There is a matter which was raised in argument by the Appellant. This pertains to the issue of mitigation. The record does not show that the Disciplinary Committee asked the Appellant to make submissions in mitigation. I have also read Respondent’s Counsel’s submissions and noted that this issue has been skirted for reasons not explained. It is trite that before a penalty is given, the recipient should be afforded the opportunity to place before the trier of fact evidence which may work in his favour when the penalty is passed. The Disciplinary Authority arrived at the penalty without having heard the Appellant in mitigation. This was an irregularity.

In conclusion the appeal partially succeeds in that the Respondent did not hear Appellant in mitigation. For the avoidance of doubt, the verdict of guilty still stands.

In the result, the Court makes the following order:

The appeal partially succeeds.

The decision by the Disciplinary Committee to find Appellant guilty is upheld.

The penalty of dismissal meted out on Appellant is hereby set aside.

The Disciplinary Authority is to afford Appellant to address it in mitigation before a penalty is imposed.

The opportunity by Appellant to address the Disciplinary Authority should be granted within thirty (30) days from the date of this order.

That there be no order as to costs.

Gonese & Ndlovu – Appellant’s legal practitioners

Civil Division of the Attorney General’s Office – Respondent’s legal practitioners