Sithabile Virginia Muzondo v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/308/2016
HARARE, 26 MAY 2016
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/308/2016

HARARE, 26 MAY 2015					       CASE NO. LC/H/36/14

AND 13 MAY 2016

In the matter between:-

SITHABILE VIRGINIA MUZONDO			Appellant

And

ZIMBABWE REVENUE AUTHORITY			Respondent

Before Honourable L. Kudya, Judge

For Appellant		C Manda (Unionist)

For Respondent		S.P. Musithu (Legal Officer)

KUDYA, J:

This is an appeal against the decision of the respondent appeals committee which upheld appellant’s dismissal   following allegations of carrying out an act which is inconsistent with the express or implied conditions of the contract of employment in contravention of section D25 of the respondent code of conduct.

Facts of the mater are that, appellant who was in the respondent’s employ as a cashier based at Beitbridge border post was said to have received US $2489 from a customer but such money did not find its way to the banking officer.

She was brought before a disciplinary committee which found her guilty and dismissed her from employment. She appealed without success to the internal appeals committee. Aggrieved by the failure of her internal appeal she has now appealed to the labour court and the appeal is the subject of this judgment.

Her grounds of appeal are as follows:

These were prefaced with the following points in limine:

Appellant was denied the right to be represented at the disciplinary hearing.

Respondent did not supply appellant with proper records of the minutes for   both the disciplinary and the appeals hearing despite several follow ups. Finally an unsigned copy was sent to the appellant.

Respondent instituted a disciplinary hearing whilst appellant was still being tried in the Magistrates’ court on criminal charges on the same facts. This fell foul of section 124 Labour Court Act which prohibits the holding of parallel proceedings in the same matter.

Appeal grounds

Appeals committee erred to conclude that appellant had used another person’s password and failed to bank the money yet the facts and evidence did not prove that she had been given the password used to access the system.

The fact that respondent’s system could not show the entry and exit times  in the cash office  means that it could not be said conclusively that appellant  was in the office because a t 8. 23 pm and at 9 pm she left the said office yet offence occurred at 8. 48pm.

Appeals committee erred by failing to notice that respondent had failed to prove if appellant was back in the office during the time of the alleged offence.

Appeals committee erred by ignoring the fact that respondent could not prove that it was the appellant’s computer which was used to print the receipt in question. Since respondent has an IT department it is inconceivable that it could fail to identify the computer which was used to print the receipt. That would assist in determining who did what and it would be easy to know whose windows password was used to access the ASCUDA system.

Appellant banked all money she received using her password.  She cannot account as to how Nzara’s password was used as same was his secret not to be shared with anyone.

Appeals committee erred by not accepting that it is easy to access a date stamp than a password .There is no way appellant could break Nzara’s password.

Appeals committee erred in failing to notice that Nzara was reinstated after his password was used in the commission of the offence yet appellant was dismissed after her date stamp was used in the misconduct act hence there was unfairness since both were accused of similar offence or misconduct act.

Appeals committee erred in that, it did not consider the fact that the witness’ version at the criminal court was different from that at the disciplinary hearing.

Appeals committee  erred by failing to note that appellant’s mitigation was not considered and that  such was against sec12 B of the Labour Act .Use of term mitigation was only to window dress and meant to mislead.

10. When appellant sought minutes she was told that there were disagreements between the workers committee and the respondent concerning anomalies on the minutes.

In the result, appellant prayed that the appeal be upheld and that she be reinstated to her original position with full pay and benefits.

In response to the points in limine and the main appeal grounds the respondent maintained that:

Appellant was never denied legal representation. The minutes do not speak to her seeking and being denied same .Charge letter dated 12 March 2013 was served on her on 13 March 2013 together with the postponement letter of 18 March 2013.

All the correspondence made it clear that she was entitled to representation of workers committee member or any representative of her choice. She chose not to exercise that right, did not bring one or request to be allowed one at commencement or during the hearing. It is mischievous of her to try to accuse the committee of denying her what she did not request.

b. Appellant was given all the minutes and she signed the disciplinary hearing minutes. Respondent had no reason to deny her copies of the minutes.

c. Respondent did not engage in multiple proceedings. The criminal proceedings were independent of the disciplinary proceedings. Section complained about related to all proceedings within the same domain like the labour court.

Appeal grounds

1. Appeals committee did not err grossly. Total facts showed that Nzara’s password was tampered with   somehow by the appellant. The witnesses in the transaction testified that it was the appellant who they gave the money to. Nzara was off duty and did not come to the office that day. Receipt in question was processed at a time when appellant was in the office.   Her date stamp was used to stamp the receipt. The totality of the facts could only lead to one reasonable conclusion that   appellant tampered with Nzara’s password to create a receipt using his profile

Grounds 2 and 3

Appellant admitted at the hearing that she was in the office from 2030 to 2100hours .If she got out at 20.33 it means she was back by 20.48 the time when the transaction was processed.  The grounds are without factual or legal foundation.

Ground 4

Question of whose computer was used does not matter because the witnesses who handed over the money were categoric that they handed it to the appellant. They had no axe to grind with appellant and appellant confirmed that her personal date stamp was used to stamp the clients’ receipt.  It is impossible that someone could have generated the receipt and stamped it with appellant’s date stamp under her nose.

Ground 5

Appellant did not bank the money she received from Thokozani Dube and Ian Victor.  She took it intending to convert it to her own use   and had to use someone’s password   to receipt it. Nzara was on vacation leave and not in Beitbridge yet the money was paid and receipted at Beitbridge and stamped with appellant’s stamp. The importers who paid the duty positively identified the appellant as the person who received the money. There was no case of mistaken identity and they had no reason to try and falsely nail her.

Ground 6

How appellant got Nzara’s password only she knows.  Fact remained that she was positively identified as the person who took the money meant for duty and her date stamp was used to stamp the receipt she gave to the importers.  Only she knows how she got hold of Nzara’s password.

Ground 7

Appellant was not dismissed only because her date stamp was used but also because the persons who paid the money positively identified her as the person to whom they paid the money. Use of the date stamp corroborated that evidence well. There was a strong nexus between the missing money and the appeal. She was thus duly convicted and dismissed.

Ground 8

The witnesses’ version of events at the criminal court was never brought to the attention of the disciplinary or appeals committees. At the time of the hearing at the disciplinary committee the criminal court was still to try the appellant.

Ground 9

Appellant’s mitigation was considered.  Outcome of the committee indicated that mitigation was considered.  The gravity of the offence committed however outweighed the mitigating factors.  Appellant was employed as a cashier entrusted with government funds. Her conduct went to the root of the employment contract.  She betrayed trust reposed in her by the employer and could thus not continue in the contract in those circumstances.

Ground 10

This is not an appeal ground and should be disregarded with the contempt it deserves. Appellant does not even say what her   cause for concern is in this ground.

In the result the respondent prayed for the dismissal of the appeal.

The law relating to such appeals is clear. See among other cases Nyahondo vs Hokonya and others 1997(2)ZLR 475(SC) . The question here is not substitution of the appellate court’s discretion but upsetting a decision premised on serious flaws in reasoning by the tribunal below it.

For completeness off record it is important to dispose of the points in limine first.

Point a

A reading of the record of proceedings and the letters inviting appellant to the disciplinary hearing do not seem to suggest as appellant states that she was denied legal representation .It is also noteworthy that while there could have been delays in getting the minutes appellant has not averred anything which is closer to demonstrating the fact that she was denied representation.

In any event it is apparent from the disciplinary committee minutes that there was indeed a worker representative on that panel. The court therefore fails to find the basis upon which the appellant can argue that her right to be heard was flouted because she did not have representation of choice at the hearings.

The court does not lose sight of the fact that appellant tries in her heads of argument to make the point that the minutes were doctored  and that could explain why it is not apparent that she was denied such representation. Apart from her mere say so there is nothing which comes closer to supporting her argument on that point.

Even the argument about the unsigned minutes seems to crumble when it is apparent that copies on file indeed bear the parties’ signatures. The court is therefore not persuaded that this point has merit. It should of necessity fail.

Point b

This point is intricately linked to point a. Sentiments in point a apply to this point with equal force. It should also consequently fail.

Point c

The law is clear that criminal proceedings are independent of civil proceedings in a matter. The reference to a breach of section 124 on the facts of this case is therefore misplaced and it can not avail the appellant. The point lacking in merit should also fail.

Turning now to the merits of the appeal it is worth noting the following:

Ground 1

As indicated by the respondent, the cumulative effect of the facts of the matter led to the inescapable conclusion that appellant committed the infraction complained about. It is important to observe that the appellant’s  guilt was not premised on the fact that her date stamp was used. It was apparent form the evidence of the witnesses who had given her the money that they had transacted with her. There was no valid argument raised by the appellant as to why the witnesses would want to falsely implicate her.

Even thought there was no record of the ins and outs of the personnel working in the office on that day, appellant of her own accord agreed that around the periods of the alleged infraction she was in the office and on duty. This is so despite the fact that she says at 20.33 she had occasion to leave the office for a while. It would be naive to conclude that within her brief absence someone tampered with her date stamp and the witnesses coincidentally mistook her for the person that they transacted with.

There is no basis upon which an appellate court can find fault with the reasoning of both the disciplinary and the appeals committees in so far as their concluding that indeed the appellant committed the infraction complained about. This ground lacking in merit should fail.

Ground 2

The test applicable in labour cases vis standard of proof is that laid down in the celebrated case of Zesa vs Dera 1998(1) ZLR 500 This is the standard of proof within a balance of probability as opposed to proof beyond a reasonable doubt.

As  stated earlier, whilst it was possible that appellant exited the office for a while at 20.33 she was however within the precincts of the infraction taking into account the fact that the infraction was said to have been committed within a period which tallied with the period when she was at work . It was therefore not imperative that the matter be concluded only on the basis of that time factor.

As stated in ground one, there was other evidence which placed her on the scene of the infraction and which evidence could not be explained away. In that regard, whist the evidence in this scenario may not have been beyond a reasonable doubt it however passed the balance of probability test. The appeal court therefore has no basis to interfere with the discretion of the tribunals below it on how they exercised same in this regard. The ground being without merit should also fail.

Ground 3.

This ground is intricately linked to ground 2 so what was stated in ground 2 applies to this ground too. It should also fail.

Ground 4

The respondent rightly observed that the appellant’s guilt was not concluded only by the date stamp or by whose computer was used. There was independent evidence which could not be done away with to render appellant’s guilt questionable. Granted, the IT department could have done the tracking suggested to find out which computer was used. That however would still not have been conclusive in the matter as there was categoric evidence of who the importers dealt with. As in the previous grounds the appeal court has no basis to interfere with the conclusions arrived at by the lower tribunals on this point. The appeal ground should therefore fail.

Ground 5

Appellant argues that the appeals committee should have found that she banked all the money which she received using her password and that she cannot account as to how Nzara’s password was used as it had a secret passcode only known to  holder.

It is difficult to buy appellant’s line of reasoning if one looks at the evidence which was given by the importers who positively identified her as the person who they transacted with. As earlier stated no reasons were advanced as to why the importers would want to falsely implicate her. To that extent the appeal court has no basis to upset the findings of the appeals committee in this regard. This ground also lacking in merit should fail.

Ground 6

It is important to note that the matter was not concluded on the basis that there was tampering with Nzara’s password only. Evidence from the importers that they transacted with the appellant and the fact that her date stamp was used in the process cumulatively gave rise to the conclusion that the appellant was indeed guilty of the infraction complained about. Once more there is no cogent basis upon which the appellate court can find that the appeals committee seriously misdirected itself in that regard to warrant setting aside  of  the verdict and the penalty . This ground again lacking in merit should fail.

Ground 7

It is settled law that like cases have to be treated in the same manner. This principle does not however seem to apply to the facts of the case at hand. Whilst parallels can be drawn between use of appellant’s date stamp and the use of Nzara’s password such facts do not go further to note that the password and stamp aside there was other evidence pointing to the appellant’s guilt. This therefore distinguishes the 2 scenarios and consequently the matters could not be treated in the same manner. The argument on this ground is without merit and the ground should therefore fail.

Ground 8

The law is clear that criminal proceedings are independent from civil proceedings in a particular case even though the issue may be the same. It was there for unnecessary for the disciplinary committee to consider what had happened or what evidence had been led at the criminal court. There was therefore no case of multiplicity of proceedings as suggested by the appellant the argument in this ground is misplaced hence the ground should fail.

Ground 9

The appellant rightly observed that it is imperative that mitigation be considered before meting out a penalty in a particular case See section12 B of the Labour Court Act. This however does to take away the employer discretion to mete out a stiffer penalty where the infraction goes to the root of the contract. See Circle cement vs Nyawasha SC-60-03

Issue which was at stake in the instant case was tampering with revenue collected. The conduct complained of seriously undermined the confidence which the public has in revenue collecting bodies. Such conduct cannot by any stretch of imagination be styled minor to warrant a penalty less severe than dismissal. If in the appellant’s opinion the reference to consideration of her mitigation was a window dressing exercise such a view is unfortunate .In the ultimate the mitigation argument is without foundation and the appeal ground should fail.

Ground 10

The respondent rightly observed that the phrasing of this appeal ground does not at all set out what it is that appellant is unhappy about. Even if it were correctly worded and meant to show that appellant got the minutes late and that same were not signed the ground would still fail.

It would fail because as earlier explained on the points in limine the appellant failed to demonstrate the alleged anomalies in the minutes. Besides, the file copy of same bore all the parties’ signatures. This watered down appellant’s argument. This ground is without foundation and it should also fail.

In the final analysis, it is apparent that the whole appeal is not merited and it should fail in its entirety.

IT IS ORDERD THAT:

Appeal being without merit in its entirety it be and is hereby dismissed.

Each party to bear own costs.