Wisdom Mutape v Health Services Board (Chitungwiza Central Hospital)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/261/2013
HELD IN HARARE, MAY 6, 2013
CASE NO. LC/H/245/2011
In the Matter Between
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/261/2013

HELD IN HARARE, MAY 6, 2013			CASE NO. LC/H/245/2011

In the Matter Between

WISDOM MUTAPE				       	APPELLANT

And

HEALTH SERVICES BOARD		       	RESPONDENT

(CHITUNGWIZA CENTRAL HOSPITAL)

Before The Honourable E. Makamure         : President

FOR THE APPELLANT     		: Mr A. Chagonda (Legal Practitioner)

FOR THE RESPONDENT  	: Mr C. Gutu (Legal Advisor)

MAKAMURE E.,

This is an appeal against the respondent’s decision in which it dismissed the appellant from its employ.  The appellant was dismissed for:

“Theft or failure to take reasonable care or making improper or unauthorised use of state property or the property of any statutory body, statutory fund or local authority including motor vehicles or the failure to take adequate steps to ensure that reasonable care is taken of any such property or failure to report at the earliest opportunity any loss thereof  or damage thereto.”

The appellant asked for a review of the decision to dismiss him in terms of the respondent’s internal remedies.  Such review was dismissed.  Appellant was aggrieved by that decision and appeals to this Court on the following grounds:

Appellant was charged of theft (or) failure to take reasonable care or making improper or unauthorised use of state property, or the property of a Statutory Board, or fund and found guilty, yet the facts of the matter do not support the charge.

No evidence was led or provided supporting the charge.

Alternatively

In the event that the Board’s finding was correct at law, Appellant avers that the penalty imposed is harsh and induces a sense of shock and the Board failed to take into account the following mitigatory factors:-

Appellant is a first offender, aged 26 years.

He was suspended for 3 months without pay and subsequently recalled to work.  He still has not been paid for the 3 months.

The amount involved is very small.

In the main grounds of appeal 1 and 2, the appellant is aggrieved by the sufficiency of evidence.  Once the question of evidence is adequately dealt with, the main grounds of appeal will have been considered.

The respondent provides health services.  The appellant was employed by the respondent as a general hand.  His duties included cleaning but did not include receiving money from patients.  The allegations against the appellant are that he received money from patients who were waiting to be attended to at the hospital.  Appellant was subsequently arrested.  He denied the allegations and continues to deny them.  However, while he was under police custody he signed a warned and cautioned statement in which he admitted to committing the offence.  During the course of the disciplinary proceedings he denied committing the offence.  He also raised the issue that the security personnel who caused his arrest tore his initial report.  At page 42 of the record the following is recorded:

Q:	Mr Mushonga, why did you destroy Mr Wisdom Mutape’s report in the first instance?

A:	He had written something which was converse to what we had unearthed during the investigations ... and also what he had agreed as a true record of what he had done to all the patients”

At page 43 of the record, the same is confirmed by a Mr Matare who is the respondent’s head of security.  Upon further questioning the following is recorded:

Q:	Mr Wisdom Mutape do you agree that you have committed a crime against hospital.

A:	Yes I do agree.

Q:	What is your crime?

A:	I took the money which was not mine in fact it was supposed to be encashed  into the hospital coffers.

It is clear, that there were some irregularities during the course of the investigations.  However, what comes out in the end is that the appellant, by his own admission unlawfully took money which belonged to the respondent.   There appears to have been an intention to permanently deprive the respondent of such money.  That amounts to theft.  He did this to ill people who were seeking medical attention.  This conduct is reprehensible by any standards.  Thus while the procedure of getting the evidence from the appellant and even the disciplinary proceedings were not without fault, I am satisfied that on a balance of probabilities there was sufficient evidence against the appellant.  The appellant can therefore not escape liability.  [See Air Zimbabwe (Private) Limited v (1) Chiku Mnensa (2) Mavis Marweye SC 89/04].

Having stated the above, I find that there is no merit in the main grounds of appeal.  The alternative grounds deal with the question of sentence.  The Supreme Court has held that once an employer has penalised an employee with dismissal, the appeal court should not interfere unless if there is a misdirection.  [See Innscor Africa (Pvt) Ltd v Letron Chimoto SC 6/2012].  I am of the view that there was no misdirection on the part of the employer.

In view of the foregoing, I find that there is no merit in the appeal.

Accordingly, it is ordered that the appeal be and is hereby dismissed with costs.

Sawyer and Mkushi Legal Practitioners, Representatives for the Appellant.

Health Services Board Legal Advisor, Representatives for the Respondent.