Theresa NhaiTai v Procurement Regulatory Authority of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO
LC/H/45/2022
HARARE, 13 OCTOBER 2021 &
CASE NO LC/H/104/21
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/45/2022

HARARE, 13 OCTOBER 2021 &		   CASE NO LC/H/104/21

25 FEBRUARY  2022

In the matter between: -

THERESA NHAITAI						APPELLANT

AND

PROCUREMENT REGULATORY					RESPONDENT

AUTHORITY OF ZIMBABWE

Before the Honourable Kudya J

For the Appellant			A. Chihombori (Legal Practitioner)

For the Respondent		Mr G. Sithole (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the respondent’s disciplinary authority which found appellant guilty of misconduct and dismissed her from employment. Appellant was alleged to have overstated her child’s school fees claim contrary to the school fees policy at her workplace.  Respondent is opposed to the grant of appellate relief.  It argues that appellant has not made out a good case for appeal so should be denied that relief.  It is settled law that appellate relief is only available in cases where it is demonstrated that the trier of fact failed to exercise its discretion in   a grossly unreasonable manner. See Hama v NRZ 1996 (1) ZLR 664 (S).

At the onset of the matter the parties had a point in limine vis the relief sought which point was eventually abandoned after parties agreed by consent that in the event of success of the appeal the correct wording be as per the consent phrases they agreed upon. That concluded the point in limine.

On the merits appellant raised five grounds which all speak to the fact that it is her view that her guilt was birthed by insufficient evidence.  Each of the grounds will be dealt with below.  Before each ground is dealt with it is important to reiterate that the standard of proof in cases of this nature is a balance of probability   See ZESA v Dera 1998 (1).

Ground 1

Presentation of correct invoice

Under this heading appellant argued that since she presented the invoice as given to her by the school she could not be styled to have defrauded or intended to defraud the employer.  Whilst it is granted that the invoice was presented as generated by the school the question still remains that she knew what had to be on and not on the invoice.

It is clear from the meeting which set out the benefit and which she attended that she should have known the scope of the fees benefit. By letting the extra be paid she fell foul of the benefit so the court cannot find fault with the disciplinary authority’s finding on this ground. The appeal can therefore not succeed on this ground.

Ground 2

Validation and approval on reimbursement

Appellant argues that fraud could not be inferred since despite her presentation of the invoice it had to be validated and approved.  Granted those processes needed to be done but that did not detract from her duty of care of indicating that the invoice contained more than she is entitled to.  That the validatior or approver of same fell into error and paid out does not excuse her. To this end this ground cannot support her appeal.

Ground 3

Respondent Inserting inflated figures.

On this ground appellant contends that the human resources put down the inflated figure so she could not be blamed.  As stated in ground 2 the fact that the human resources also erred does not excuse her.  She was clear of her child’s entitlement and once an inflated figure had been put she was duty bound to bring it to the Human Resources attention that she was being given more than was due to her. This ground equally cannot sustain her appeal.

Ground 4

Gatekeeping duty of Respondent.

Appellant argues that it was incumbent on the respondent to observe that an inflated figure had been claimed.  She says this was so because the duty to know the scope of the policy lay with respondent as its gatekeeper.  Whilst it is granted that the respondent had to safeguard its policies it also stood to reason that when appellant attended the meeting and got to know the scope of her fees claim she could not hide under the failure of the respondent to also exercise due care over its policies.  If there were any shortcomings in the systems these were not for appellant’s manipulation. In any case its no excuse that fault also lay with the other players this See Lanshire Steel vs Zvidzai SC/29/95.  In the result this ground cannot support the appeal.

Ground 5:-

Potential Accomplice

Appellant argues that the human resource person was an accomplice by paying out where she should have known and paid out within the correct parameters.  As indicated in ground 4 above fault of respondent does not excuse appellant’s conduct.  See Zvidzai supra.

In the ultimate it is clear that there is no basis for the appellate court to upset all the factual findings made by the disciplinary authority. The appellant should   therefore fail.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed.  Each party bears own costs.

Sibanda and Partners, Appellant’s Legal Practitioners

Kantor and Immerman, Respondent’s Legal Practitioners