TONNET Z MUSUKA v The Public Service Commission & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/748/16
HARARE 8 MARCH 2016
CASE NO.
JUDGMENT NO. LC/H/7/2016
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IN THE LABOUR COURT OF ZIMBABWE  	     JUDGMENT NO. LC/H/748/16

HARARE 8 MARCH 2016			                       CASE NO. LC/H/1054/15

AND  18 NOVEMBER 2016

In the matter between:-

TONNET Z MUSUKA						Appellant

The present matter is an appeal against the determination and penalty imposed by the 1st Respondent Disciplinary Authority which determination was dated 6 May 2015.

The material background facts to the matter are as follows:

The Appellant was employed by the 3rd Respondent as an Agricultural Extension Worker in the Agritex Department based in Marondera.  He was arraigned before the 1st Respondent Disciplinary Authority on the 30th of March 2015 to face charges of misconduct in terms of Section 44 (2) (a) of the Public Service Regulations, 2000 as now defined in paragraphs 2, 3,9,13 and 24 of the First Schedule (Section 2) of the same Regulations.

The allegations levelled were that the Appellant had improperly performed his duties when he connived with Ward 22 inputs Distribution Committee to fraudulently allocate himself two bags of Omnia Compound D fertiliser, one bag was issued in his name under Village 15 in which he did not reside and the other bag under Service Centre in his wife’ s name i.e. Nyakuba Eugenia.  The second allegation was that he failed to perform work properly assigned to him in allocating Masomera Service Centre Residents who were not supposed to benefit from inputs under the Government inputs Programme.

After considering facts and evidence the Disciplinary Committee recommended that Appellant be found guilty of accepting a bag of fertilizer as token of appreciation.  The Committee however found him not guilty of the second charge of allocating Masomera residents with fertilisers.  On the penalty the Disciplinary Committee recommended the maximum penalty of Discharge from service.

On the 6th of May 2015 the Appellant was found guilty on the charges.  A penalty of Discharge from service was consequently imposed on him.  Exercising his rights under the Regulations the Appellant sought a review of the Disciplinary Authority’s decision by the Public Service Commission (“The Commission”).

On the 20th of October, 2015 the Commission confirmed the decision of the Disciplinary Authority in respect of both conviction and penalty.

The Appellant was aggrieved and noted the present appeal.

His grounds in summary are as follows:

The Public Service Commission grossly misdirected itself by upholding the disciplinary authority’ s finding that the Appellant was guilty of conniving with the ward 22 distribution Committee to award himself and members of the same committee fertilizers when evidence on the record showed that there was no connivance whatsoever as all the decisions were solely made by the Councillor.

The disciplinary hearing Committee erred in finding the Appellant guilty of accepting a token of appreciation, a none existent offence for which he was also never charged with.

The Public Service Commission seriously erred by upholding the Disciplinary Authority’ s finding that the Appellant was guilty of allocating fertilisers to Masomera Residents who were not supposed to benefit from the exercise, an offence that the Appellant was acquitted by the Disciplinary hearing Committee.

In the alternative, the Respondents grossly erred in coming up with a determination that was inconsistent and contrary to the findings and conclusion of the disciplinary hearing committee,

The Public Service Commission erred in upholding the excessive penalty of dismissal, in total disregard of the abundant mitigatory circumstances.

I proceed to address the grounds seriatim.

In regard the first ground of appeal the Appellant submits that the Commission erred by upholding the Disciplinary Authority’s finding of guilty on the charge of conniving where there was no evidence of connivance presented before the Disciplinary Authority, The Appellant submission is it was the Councillor’s sole decision to award to each committee member a token of appreciation for working extra hard and outside working hours.  The Respondent submission in counter is that the Appellant was properly found guilty of failure to perform duties.  There is no basis for this court to interfer with the finding.

The charges levelled against the Appellant included ‘improper performance of duties’, ‘failure to perform work properly assigned by the employer’, theft of State property and finally ‘any act or omission which is inconsistent with or prejudicial to the discharge of official duties including abuse of authority’.  The record shows that the Disciplinary Committee recommended that he be found guilty on the basis of his conduct of accepting a token of appreciation.  His head of Department then found him guilty of improper performance of duties on the basis of allegations that he connived with Ward 22 input Disciplinary Committee to allocate to themselves two bags of Compound D Fertilizer.

The facts in the record disclose that the Appellant as indeed all the other members of Ward 22 Committee had each received a bag of fertilizer. The Appellant however claimed in the hearing that it was at the initiative of the Chairperson who was the Councillor.  The Appellant seems to be focusing on a minor issue as to whether or not there was connivance.  The important issue is whether the charge levelled against him of improper performance of duties was established.  In my view the charge was established.  It is common cause the Appellant was engaged as an Agricultural Extension Worker. He was also the secretary of the Ward 22 Committee. His duties in the input distribution programme included proper distributing and recording of the process.  His duties did not include him benefiting from the program.  The facts however disclosed that he along with the other Committee member had benefitted by awarding themselves a bag each of inputs.  It was also established that some farmers had not benefitted from the program on the basis of lack of identification. The Appellant and his mates had then benefitted from receiving the bags of inputs. The Appellant in the circumstances was properly found guilty on the charge of improper performance of his duties.  The first ground of appeal clearly cannot succeed.

On the second ground the Appellant alleges that the Disciplinary Authority erred in finding him guilty on a non-existing charge of accepting a token of appreciation.  The Appellant submission is misplaced.  The record shows that the Disciplinary Authority recommended that he be found guilty on allegations of accepting a token of appreciation.  The head of Department thereafter communicated that Appellant had been found guilty for ‘improper performance of duties’.  Although he did not specifically refer to the section that is a charge provided in the Regulations under paragraph 2 of First Schedule.  There was clearly no misdirection on the part of the Disciplinary Authority and by extension the Commission.

The next ground of appeal is merited.  The Appellant submits that the Commission erred by upholding a conviction on the charge related to allocation of fertilizers to Masomera residents who were not eligible to benefit.  The Disciplinary Committee had found Appellant not guilty on the charge. The Disciplinary Authority in their findings recommended a dismissal of the charge in relation to allocation to Masomera residents with fertilizers.  The head of Department however in his letter seemed to have reinstated the charge which was the charge under paragraph 3 of first Schedule i.e. Failure to perform any work properly assigned.  The Commission on its part had also erroneously upheld that conviction. That conviction clearly cannot be allowed to stand.  It has to be set aside.

The last ground raised relates to the issue of penalty.  The Appellant submits that the Commission erred in reimposing the maximum penalty of Discharge from service without having considered the mitigatory factors.  In oral submissions Appellant emphasised the mitigatory factors which included the fact that he is a sole breadwinner and he did not benefit from the token of appreciation as he returned it;  that he has long service of 23 years; that he is a first offender; that the offence was trivial as it involved only 1 bag of fertilizer valued at US$30.00.

It is a trite principle that penalty is within the employer’s discretion.  An appellate court cannot lightly interfere with the exercise of a discretion by an employer unless there has been a clear misdirection or gross unreasonableness.  The facts and evidence disclose that the Appellant committed a serious offence of improper performance of his duties by diverting inputs intended for beneficiaries for self-benefit.  The Disciplinary Authority on the basis of Section 50 (i) of the Regulations had a wide discretion including imposition of penalty of dismissal, demotion, transfer and demotion etc.  They felt however after weighing the circumstances that dismissal penalty was the appropriate.  The issue before this court is whether the discretion was exercised properly in the circumstances.

I believe the discretion was exercised properly.  Whilst the facts clearly disclose improper performance of duties there was also the element of flouting of procedures for self benefit.  Although the value of the one bag of fertilizer i.e $30 might be considered as trivial by the appellant and there was also no prejudice suffered at the end of the day as Appellant surrendered the bag the Supreme Court however in Innscor Africa (Pvt) Ltd vs Letwin Chimoto found that these considerations were immaterial where the offence goes to the root of the contract. It was at the core of Appellant duties to ensure distribution of the inputs to the intended beneficiaries and to record the process.  He however disregarded this in order to self-benefit.  The fact that he may have been given by the Councillor is neither here nor there. The offence committed involved a betrayal of trust and confidence reposed in him by the employer thereby going to the root of the employment contract.

The appeal clearly stands to be dismissed as I hereby do.