This is an appeal against a decision of the Labour Court
which dismissed an appeal against the appellant's dismissal from employment.
BACKGROUND
The appellant was employed by the respondent as the Senior
Payroll Clerk in the Audit Division of the Salary Services Bureau. Sometime in
2002, the appellant applied for a loan from a moneylender, Dollartech Finance,
hereafter referred to as Dollartech. He furnished Dollartech Finance with his
pay slip in support of the application. His application was successful and he
was granted the loan. Dollartech faced difficulties in having the monthly
repayment deducted from the appellant's salary as his net salary was
insufficient for the purpose.
The matter was brought to the attention of the respondent
by Dollartech Finance. The appellant was charged with misconduct in terms of
paragraph 13(d) of the First Schedule (Section 2) of the Public Service Regulations,
2000 - dishonesty including falsifying or attempting to falsify any document
with fraudulent intent or uttering forged document. The allegation was that he
used a fake September 2002 pay-slip to borrow money from Dollartech Finance and
the amount could not be deducted because his net salary was insufficient.
The appellant was called upon to submit a written reply to
the allegations. He complied. He wrote a letter on 21 February 2003.
A disciplinary hearing was held on 2 July 2004. The
disciplinary committee found the appellant guilty of the misconduct charged and
recommended his discharge from employment. The pertinent portion of the record
of the disciplinary committee's proceedings reads:
“The Committee noted that:-
(1) Mr Garwe, in his letter of response to the allegations
had shown that he felt ashamed of all what happened, he apologized, in the same
letter, to the whole Department and Government as a whole for the image that
could have been tarnished by his actions. He made an assurance that he would
not do it again.(sic)
(2)…,.
(3)…,.
(4)…,.
(5) Mr Garwe's response before the Committee was
inconsistent to his letter of response to allegations leveled against him.
(sic)….,.
The committee found Mr Garwe guilty of an act of misconduct
of dishonesty including falsifying or attempting to falsify any document with
fraudulent intent or uttering forged document. This is in terms of section
13(d) of the First Schedule (Section 2) of the Public Service Regulations 2000.
(sic)
Committee's Recommendations
The Committee recommended that Mr Garwe be discharged from
the Public Service Commission Secretariat.”
After the disciplinary committee hearing, the appellant
allegedly fell ill from August 2004 until sometime in early 2005. During
this period of illness, and specifically on 29 October 2004, the appellant
submitted a letter from his doctor to his employer, requesting early retirement
on medical grounds.
On 11 May 2005, the appellant received a letter of even
date by the Salary Services Bureau informing him of the decision of the
employer, following the disciplinary hearing of 2004, to dismiss him from the Public
Service. The final paragraph of the letter advised the appellant as follows:
“Section 51(1)(b) of the Public Service Regulations 2000
provides that if you are not happy with this determination and penalty, you are
free to either appeal against this determination and penalty or both to the
Labour Relations Tribunal or request the Commission, in writing, through the
Secretary, to review the determination or penalty or both within 21 days of
this minute.”
The appellant requested a review of the proceedings.
The appellant's request for review does not form part of
the record. His grounds for review are captured in the Public Service
Commission's record of proceedings of April 2006 as follows:
“Mr Garwe submitted the following as his grounds for
review:-
(a) That there was an inordinate delay in the manner in
which the case was handled. He was charged in February 2003, a disciplinary
committee was appointed more than a year later and the determination was made
in May 2005. This prejudiced him as memories fade and witnesses changed
residence;
(b) That the disciplinary committee was chaired by Mr
Chitambara who had earlier on received the complaint from Dollartech Finance.
He investigated the matter and actually promised the complainant that
disciplinary action was going to be taken. He was therefore biased;
(c) That members who constituted the disciplinary committee
were appointed by the Secretary to the Commission even though the Commission
was not the disciplinary authority;
(d) That the disciplinary committee found him guilty
without the production of the alleged fake pay-slip. The pay-slip was not
produced as documentary evidence when he was charged and neither was it
produced at the disciplinary hearing;
(e) That Salary Service Bureau concerned itself with
dishonesty that was not directed at the employer and had not arisen during the
course of duty. Further, failure to repay a loan was only misconduct if the
loan was owed to the State, a statutory fund or a local authority;
(f) That the department should not have concerned itself
with what members do with their pay-slips;
(g) That the misconduct charge was not properly framed to
enable him to respond from an informed position. It was not defined how fake
the pay slip was and there were no witnesses at the hearing to explain why the
pay-slip was thought to be fake;
(h) That a pay-slip just shows how earnings for that month
were intended to be disbursed. The disbursement plan could be varied before the
pay-slip was issued. The pay-slip therefore did not, as a matter of fact, show
what the member's net income for the month or the following months will be. The
fake pay-slip did not prejudice the money-lender.”
The record of proceedings also highlights the following:
“Mr Garwe prayed that he be reinstated into the service
without loss of benefits. He also urged the department to concentrate on its
core business of paying salaries rather than assist debtors of civil servants
(sic) to recover monies they are owed.
In a letter dated 20 May 2005, Mr Garwe submitted that his
discharge from the service was in complete violation of the recommendations of
a Medical Board that had recommended his retirement on medical grounds.”
The Public Service Commission convened to consider the
matter, and, on 12 April 2006, the Acting Secretary wrote to him confirming the
determination of his guilt and the imposition of the penalty of discharge. The
letter reads in part:
“REQUEST FOR
REVIEW: MR PAUL GARWE: E.C. NO.1253558 M: FORMER SENIOR PAYROLL CLERK: SALARY
SERVICE BUREAU: PUBLIC SERVICE COMMISSION
The above matter refers.
Be advised that the Commission, acting in terms of section
51(3) of S.I.1 of 2000 as amended, confirmed the determination of guilt and the
penalty of discharge which was imposed on you.
In arriving at the above decision, the Commission took into
account the following:-
(a) That in your response to the misconduct charge, you
admitted having submitted a fake pay slip to Dollartech Finance. You submitted
that the pay slip had been done by tricksters. The foregoing was considered an
unequivocal admission that you deliberately used an incorrect record of your
earnings in order to obtain a loan from Dollartech Finance;
(b) That there was no shred of evidence to support the
claim that Dollartech Finance had a hand in the misconduct charges that were
preferred against you;
(c) That the fake pay slip on record showed that you had a
net salary of $48,026=54. However, the correct record of your net salary for
September 2002 was $51=53;
(d) That after you had been charged with misconduct on 12
February 2003, you subsequently paid the money that you owed the money lender
on 20 February 2003. It was therefore not in dispute that you received a loan
from Dollartech Finance. In light of the above, the fact that you were not
availed a copy of the fake pay slip which you had submitted to Dollartech
Finance and which pay-slip you did not request from the disciplinary authority
was considered immaterial and not an irregularity;
(e) That you did not explain why you did not request Mr.
Chitambara to recuse himself from the hearing if you were aware that he had
investigated your case and could have been partial in the hearing. Furthermore,
you did not prove that he was biased as the Chairman of the hearing. Your
argument that the Chair of the disciplinary hearing was biased could therefore
not be sustained;
(f) That the Commission neither declared itself the
disciplinary authority in your case nor did it appoint members of the
disciplinary committee which heard your case; and
(g) That you could not be retired on medical grounds before
the conclusion of your misconduct case.
There was nothing wrong with the Paymaster, Salary Service
Bureau determining your misconduct case before considering the recommendations
of the Medical Board.”
Aggrieved by the decision of the Public Service Commission,
the appellant appealed to the Labour Court seeking, in his notice of appeal,
the relief that the respondent “be compelled to determine whether the appellant
is still fit to remain in service and if appropriate retire him on medical
grounds.
In his heads of argument before the Labour Court, he sought
more extensive relief. He prayed for his appeal to be allowed with costs and
for the determination appealed against to be set aside and substituted with a
finding that he is not guilty of misconduct; an order that he be paid the full
amount of his salary, bonuses and benefits that he ought to have been paid
during the period of suspension and discharge; that he be reinstated without
loss of salary and benefits or grade and that steps be taken in terms of section
18(5) to retire him from service on grounds of ill health.
The appellant's grounds of appeal in the Labour Court were
basically that –
(i) The disciplinary committee was improperly
constituted;
(ii) That the Chairperson of the disciplinary committee was
biased as he had been involved in the investigation of the matter;
(iii) That his disciplinary hearing was not conducted by a
disciplinary authority for the reason that as he was engaged in the middle
grade, only the head of Ministry could appoint a disciplinary committee to
consider the allegations against him;
(iv) That the respondent had failed to prove its case
against him; and
(v) That the issue of the fake pay-slip had nothing to do
with his employer or his employment.
It was the appellant's contention that the essential
elements of the misconduct with which he was charged were not proved as it was
not established that he had been dishonest in the course of his employment or
that there had been any prejudice caused as he repaid the loan in full. He
further contended that the Public Service Regulations do not concern themselves
with misrepresentations that take place outside employment.
Another ground raised by the appellant was that an improper
motive had caused or resulted in the charges being preferred against him and
contended that this was borne out by the fact that the misconduct process was
selectively applied amongst employees who had conducted themselves in a similar
fashion.
In his submissions to the Labour Court, the appellant
alleged, among other things, that there are about ten other employees who had
done exactly what he had done but were still in employment. He is recorded as
stating:
“I just want to add that other people are still employed
but were also investigated but had done
exactly what I did. There are about 10 or so. I actually investigated and I
have copies.”…,.
He also alleged that the respondent terminated his
employment in order to avoid retiring him on medical grounds.
The Labour Court found that his appeal lacked merit and
dismissed it.
THIS APPEAL
Aggrieved by the dismissal of his appeal by the Labour
Court, the appellant appealed to this court. His lengthy grounds of appeal
raise the following issues to be determined by this court:
1. Whether or not the procedural irregularities raised by
the appellant are so fatal as to warrant the disciplinary proceedings being
rendered a nullity.
2. Whether or not there was sufficient evidence to prove
appellant's guilt and to justify his dismissal.
PROCEDURAL
IRREGULARITIES
Authority to
discipline a member of the Commission
The functions of the Public Service Commission are provided
for in section 8(1) of the Public Service Act [Chapter 16:04]. The section
reads:
“Subject to this Act and any other enactment, the functions
of the Commission shall be -
(a) To appoint
persons to the Public Service, whether as permanent members or on contract
or otherwise, to assign and promote them
to offices, posts and grades in the Public Service and to fix their
conditions of service. …,.
(b) To inquire into and deal with complaints made by
members of the Public Service;
….
(e) Subject to Part V, to
exercise disciplinary powers in relation to members of the Public Service…,.”
…,.
The appellant's post of Senior Payroll Clerk is graded by
the respondent as middle grade…,. In his oral submissions before this court,
the appellant said that he had merely assumed that as he was a Senior Payroll
Clerk and it translated to him being in the senior grade. His assumption was
erroneous. In any event, and curiously so, the submission is contradictory of
his previous stance in the Labour Court that he was a middle grade employee.
With reference to disciplinary authorities for the
different employment levels or grades in the Public Service, section 42 of the
Regulations provides as follows:
“(1) The disciplinary
authority for the purposes of appointing a disciplinary committee in terms
of section 43, determining any allegations of misconduct by a member in terms
of section 46 and imposing a penalty in terms of section 50 shall be –
(a) In the case of a member in a senior grade, the
Commission;
(b) In the case of a
member in a middle grade, the head of Ministry;
(c) In the case of a member in a junior grade, the head of
department;
Provided that the Commission may determine that it shall be
the disciplinary authority in any particular case.
(2) The disciplinary authority for the purposes of sections
44, 47 and 48 shall be –
(a) In the case of a member in a senior grade, the
Commission;
(b) In the case of a
member in a middle grade, the head of Ministry or the head of office in charge
of the member;
(c) In the case of a member in a junior grade, the head of
department or the head of office in charge of the member.”
The respondent gave a clear explanation of how this
provision was adhered to.
The Commission is, for administration purposes, a Ministry
in its own right. The authority for this is found in the definition section
(section 2) of the Public Service Regulations which states:
“'Head of Ministry', in relation to a member of the Public
Service, means the Secretary of the Ministry in which he is employed or the
occupier of any other office or post which the Commission, with the concurrence
of the appropriate Minister, directs shall constitute his head of Ministry…,.'”
In casu, the
Secretary of the Commission holds this post, and, in exercising the role of
disciplinarian of middle grade employees, the Secretary appointed a
disciplinary committee.
The appellant was charged on 12 February 2003. The
committee was appointed on 2 June 2004. It sat on 2 July 2004 and the
determination was assented to by all the members in August 2004.
The appellant never challenged the disciplinary authority
at the hearing. He subjected himself to it. If he had challenged the
disciplinary committee at the hearing, its members would have been the best
placed to deal with whatever submissions or evidence would have been presented
to them on the issue.
The appellant's contention or alleged irregularity under
this heading lacks any basis and is thus of no consequence.
Alleged
improper constitution of the Disciplinary Committee
Regarding the allegation of improper constitution of the
disciplinary committee, section 43 provides:
“(1) A disciplinary authority shall appoint a disciplinary
committee to hear allegations of misconduct against members and make
appropriate recommendations to the disciplinary authority.
(2) A disciplinary committee appointed by –
(a) The Commission shall consist of –
(i) A Chairman who shall be any head of Ministry appointed
by the Commission; and
(ii) Two other
members appointed by the Commission who are in a senior grade from any Ministry other than the one in
which the allegation of misconduct arose.
(b) A head of Ministry shall consist of –
(i) A Chairman who
shall be the principal establishment officer of the Ministry or a member of
equivalent rank; and
(ii) Two other members appointed by the head of Ministry
who shall be confirmed members;
(c) A head of
department shall consist of –
(i) A Chairman who
shall be the deputy head of department or a member nominated by the deputy head
of department to act on his behalf who is approved by the head of department;
and
(ii) Two other members
appointed by the head of department who shall be confirmed members.”
In casu, the disciplinary hearing was chaired by the Deputy
Head of the department.
In terms of the Regulations, no irregularity was occasioned
thereby. The appellant's view that the other two members of the Disciplinary Committee
were not qualified by reason of their not being members of his department is
clearly erroneous. The Regulations merely provide that the other two members of
the committee should be confirmed members. A confirmed member is defined in section
2 of the Regulations thus:
“Confirmed member means a member who is confirmed in the
appointment after a period of probation, or was established officer in
accordance with section 5 of the Public Service (General) Regulations, 1992,
before the date of commencement of these Regulations.”
The section does not preclude members from other departments
from being appointed in the disciplinary committee.
The appellant's contention or alleged irregularity on this
aspect is also baseless and lacks merit.
Alleged bias
of the Chairman of the disciplinary hearing
The appellant alleged that the Chairman of the disciplinary
committee was biased because he was the same individual who investigated the
matter when it was brought to the attention of the Commission.
There is no record of the appellant requesting the recusal
of the Chairman as he would have been expected to do in such circumstances. See
See Mupandasekwa v Green Motor Services (Pvt) Ltd SC30-15…,
where the following was stated:
“…,. The likelihood of bias can only, logically, be
raised before or perhaps during the proceedings in question. In such cases, an
affected party would normally be expected to request that the person suspected
of such bias recuse him or herself from participation in the proceedings in
question. There is no record that in casu such a request was made by the
appellant in respect of the Chairperson of the disciplinary proceedings.
Consequently, proceedings continued to finality. The appellant could only,
after that, have relied on demonstrated bias to request that the proceedings be
set aside.
The court a quo found that he had failed to do so.”
There is no reason on record why he did not raise his
concerns at that stage. To the contrary, he is on record thanking the Committee
for facilitating the hearing and imploring them to allow him to resume his
duties.
The hearing continued to finality.
The onus rests upon the person alleging bias to establish
the allegation.
The appellant made an unsubstantiated allegation against
the Chairperson of the committee and only did so after the conclusion of the
hearing leading to his conviction and dismissal. He has failed to show that he
suffered prejudice because of the alleged irregularities. In Musarira v Anglo
American Corporation SC53-05, the following was highlighted:
“I would point out here that as long as a charge of misconduct
is preferred by an employer against an employee there is always a certain
element of institutional bias, as the employer is the offended party. However,
this happens to be the situation in all misconduct cases. What is important is
that the misconduct matters are dealt with in a manner that is fair and
impartial and that the rules of natural justice are followed. The rules of
natural justice in such a case are that the party concerned –
(a) Must be given adequate notice;
(b) Must be heard or be able to present his/her side of the
story; and
(c) Should be allowed to call witnesses if he/she so
wishes.”
Equally pertinent is the following statement that was made
in Watyoka v ZUPCO SC87-05:
“The appellant also raised a complaint about the composition
of the disciplinary committee, but it was not shown that there was any bias or
prejudice at all. The composition of the committee is a technicality that
cannot be allowed to nullify the proceedings which, according to the record,
reflect that he had a fair hearing.”
The same position at law was also highlighted in Nyahuma v
Barclays Bank of Zimbabwe SC67-05 in the following statement:
“...., it is not all procedural irregularities which
vitiate proceedings. In order to succeed in having the proceedings set aside on
the basis of a procedural irregularity it must be shown that the party
concerned was prejudiced by the irregularity.”
The dicta in all the above cases can be applied with equal
force in casu.
The appellant has not shown that the Chairperson was
biased; neither has he shown that he suffered prejudice because of his
involvement in the case. He has thus failed to substantiate the procedural
irregularities that he raised.
There have, thus, not been shown to be any procedural
irregularities that warrant that the disciplinary proceedings be rendered a
nullity.
Whether or
not there was sufficient evidence to prove appellant's guilt and to justify his
dismissal
The following paragraphs from the affidavit of the Chairman
of the Public Service Commission attached to the respondent's notice of
opposition in the court a quo captures important aspects of the relevant
evidence. They read:
“9.1 The findings of the Disciplinary Committee were based
on facts and his response to the charge. He did not dispute, during the hearing,
that he authored the letter. In his written response, he unequivocally admitted
to the charge and apologized for tarnishing the image of the Public Service. He
submitted that the fake pay-slip had been done by “tricksters” who had also
conned him. He also admitted that he was in financial problems. It is quite
apparent that appellant submitted the fake pay-slip to obtain a loan hence the
apology. He does not mention why the so-called 'tricksters' would have
submitted a fake pay-slip on his behalf to further his own interests. The
committee relied on this evidence in their findings. The findings were proper
and grounded on facts. His offer to repay the loan using another arrangement
other than the stop order facility provides corroborative evidence.
9.2 Appellant's contention that it was not established that
he was dishonest in the course of employment is immaterial because the fake
document was produced at his workplace. He was a Payroll Clerk responsible for
the production of pay-slips. He was expected to discharge his duties honestly.
The Salary Service Bureau lost credibility due to his dishonest conduct and
this tarnished the image of the Public Service. The evidence clearly
established that he was dishonest in the course of his duties which constitutes
an act of misconduct in terms of the Public Service Regulations.”…,.
A large part of the appellant's contention is that the
alleged misconduct was of no consequence to his employer, and his employer had
no reason or justification to involve itself in his dealings with the moneylender.
The appellant is, unfortunately, ill-advised in holding
this view.
The appellant was charged under section 13(d) of the First
Schedule of the Public Service Regulations which renders the following an act
of misconduct:
“…, falsifying or attempting to falsify any document with
fraudulent intent or uttering a forged document…,.”
The appellant failed to explain the origins of the fake
pay-slip and the employer reasonably and understandably deduced it was the
appellant who had it made. The pay-slip purports to have originated from the
employer. When presented, the pay-slip gave the impression that it was
conveying facts as held to be true by the employer. In essence, the appellant
was including his employer in his fraudulent activity, for it was on the
strength of the “employer's assurance”, being the fake pay-slip, that the loan
was issued.
The appellant, therefore, cannot successfully contend that
his activities outside of employment had nothing to do with his employer in
this regard.
As to the evidence that ought to have been considered by
the disciplinary committee, the appellant was given the opportunity to present
his argument and substantiate it, before both the Committee and the court a
quo. At those junctures, he could have called a representative of Dollartech Finance
to present the information he believed vital. It was not the respondents' duty
to argue his case for him.
This renders the appellant's second, third and fourth
grounds of appeal meritless.
These grounds attack the judgment of the court a quo on the
bases that the behavior complained of, even going by the employer's version,
did not constitute misconduct; that the person who determined the matter erred
by finding that the pay advice, which was not produced in evidence, was
falsified; that the disciplinary committee ought to have heard the evidence of
the moneylender and that the disciplinary committee did not appreciate that it
was not part of the Department's function to assist money lenders in recovering
their money.
The conviction was thus warranted.
The appellant claimed that his penalty was too severe, to
the extent of lacking reasonableness.
It is settled that the courts do not act to usurp the
discretion of the employer in deciding whether or not to terminate the
employees' contract. This discretion can only be interfered with where it is
shown that the employer improperly exercised its discretion. A plethora of
cases have been decided in this court in this regard.
See, among others, Celsys Ltd v Ndeleziwa SC49-15; NEC
Catering Industry v Kundeya & Ors SC35-16; ZB Financial Holdings v
Manyarare SC07-12.
More specifically, in the case of County Fair Foods (Pvt)
Ltd v CLMA & Ors (199) 201 lJ
1701 (LAC), the court stated as follows:
“It lies, in the first place, within the province of the
employer to set the standard of conduct to be observed by its employees and
to determine the situation with which, non-compliance will be visited;
interference therewith is only…, in the case of unreasonableness and
unfairness.”
The appellant has failed, in his grounds of appeal, to
present valid justification for the granting of the relief that he seeks.
The appellant persisted in the view that whatever he
engaged in after his work hours should not be a concern to his employer,
whether it be morally reprehensible or not. He went to the extent of
highlighting other acts of dishonesty that an employee could engage in in his
free time and which acts, the employer, in his view, should not concern itself
with.
The appellant fails to realise that an employee's conduct
can impact negatively on the impression that the general public develops of his
employer. The appellant therefore portrays a lack of honesty in his dealings
and the respondent, in its heads of argument to the court a quo, rightly posits
the rhetorical question; “why should they be made to continue to employ such a
person?”
In casu, the respondent expressed its concerns in an
affidavit deposed to by its Chairman wherein he stated:
“A pay-slip is an official record of how the earnings and
deductions for a particular month have been applied. It remains a permanent
record in the payroll system. A member is expected to produce an official and
authentic document of his earnings. Faking a pay-slip impacts negatively on the
respondent as it results in loss of public confidence in the Public Service
payroll system.”
It is not unreasonable for an employer to expect an
employee to conduct himself with honesty at all times. The employer stated that
the appellant was the Senior Payroll Clerk and in that capacity would be
responsible for creating pay-slips. The company expected him to carry out his
duties honestly, and was of the view that as a result of the appellant's
actions it lost credibility and its image was tarnished.
It cannot, in the circumstances, be said that the employer
exercised its discretion unreasonably. There is therefore no merit in the
appellant's fifth ground of appeal which attacks the penalty imposed on the
appellant as being grossly excessive on the basis that the misconduct
complained of, if anything, is of an academic nature as it did not take place
in the course of employment and the employer was not injured or prejudiced in
any way.
Accordingly, the appeal is dismissed with costs.
