MAVANGIRA JA: This is an
appeal against the whole judgment of the Labour Court dismissing the
appellant's appeal against the decision of the appeals committee
and confirming her conviction on misconduct charges and the
subsequent penalty of dismissal from employment.
The appellant was employed by the
respondent, a health care insurance provider, as a claims assessor.
Sometime in February 2016, the appellant, after visiting a dentist
with her husband, returned to work and fast-tracked both their claims
for a refund contrary to standing procedures established by the
respondent. The appellant's husband's claim was however
intercepted before it was fully processed. The appellant used a
computer allocated to a fellow member of staff to process the claims
and in her case she did so fully aware that a refund was not yet due
as her treatment was still in progress. She retained the hard copies
of the claim in her drawer.
She was charged with breaching
sections 24(c) and 25(h) of the First Mutual Holdings Limited Group
Code of Conduct. The charges were framed as:
“1. Section 24 'Offences
relating to disobedience or indiscipline' (c) None compliance (sic)
with established procedures or standing instructions.
2. Section 25 'Offences
relating to dishonesty, theft, fraud and other related offences'
(h) Any other dishonesty towards company, fellow members of staff or
members of the public.”
At the disciplinary hearing,
evidence was led on behalf of the respondent to the effect that the
appellant processed and authorised a high cost procedure without a
quotation or an invoice from the laboratory which was supposed to
undertake the work. The appellant confirmed to the disciplinary
committee that she knew that she was wrong in confirming the claims
in the absence of invoices.
The appellant was found guilty on
both charges and penalties of a final written warning on the first
count and dismissal on the second were imposed on her. The net result
was thus a dismissal.
An appeal by the appellant to the
appeals committee was unsuccessful. The committee was of the view
that, taking into account the position occupied by the appellant, the
role and the tasks that she performed required an honest person who
honours, respects and abides by the processes laid down by the
business in order to avoid financial leakages. The appeals committee
further found that the appellant's actions compromised the
relationship of trust that was supposed to prevail between her, the
company and other employees.
The appellant then appealed to
the Labour Court. Her appeal was dismissed. The Labour Court was
satisfied that, on the evidence that was placed before the
disciplinary and appeals committees, the appellant was properly found
guilty. On the penalty imposed, the Labour Court endorsed the
confirmation of the same by the appeals committee. It found that the
dishonesty exhibited by the appellant was evidently pre-planned. It
is against that decision that the appellant then filed this appeal to
this Court on the following grounds:
1. The court a quo erred and
grossly misdirected itself on questions of law by making the
following findings of fact which are outrageous in their defiance of
logic that no reasonable court properly applying its mind to the
issues could have arrived at the conclusion reached:-
1.1. By confirming a finding of
guilty in the circumstances where it is clear that the appellant did
not commit the offences she was convicted of. The respondent failed
to prove its case on a balance of probabilities. With respect to
count two the respondent had the obligation to prove beyond
reasonable doubt that the appellant committed the alleged offence,
this is particularly so, considering that the allegations being
raised are criminal in nature. The appellant was found guilty of the
offences without any evidence substantiating the same.
1.2. By making a finding to the
effect that the appellant admitted to having violated the procedures
in the circumstances where it is clear from the record that no such
admission was ever made but rather the appellant maintained her plea
of not guilty which was not successfully rebutted by the respondent.
2. The court a quo erred at law
by ordering dismissal which is excessive considering the appellant's
circumstances including but not limited to previous disciplinary
record, length of service and personal circumstances. It is trite
that disciplinary hearings must be largely educational or corrective
and dismissal must be resorted to as a measure of last resort.
3. The court a quo erred at law
by failing to consider that the appeals authority proceeded to issue
a verdict basing only on written grounds of appeal where it was very
clear that the grounds of appeal were arguable and there was need for
an oral hearing to clarify the issues. The appellant's
constitutional right to be heard was therefore infringed upon.
At the hearing of the appeal
before this Court, counsel for the appellant abandoned grounds of
appeal 1.2 and 3 thereby restricting argument to grounds of appeal
1.1 and 2.
The two grounds of appeal raise
three issues for determination.
(a) The first is whether the
appellant was properly found guilty on the first count.
(b) The second is whether a
charge of a criminal nature before a disciplinary tribunal in an
employment set up must be proved on a balance of probabilities or
beyond reasonable doubt.
(c) The third is whether
dismissal was the appropriate penalty in the circumstances.
During submissions before the
court, counsel for the appellant conceded that the appellant had been
properly convicted on the first count. The first issue for
determination thus ended there.
The first of the two remaining
issues for determination relates to the second count that the
appellant was charged and found guilty on.
The submission by counsel for the
appellant was that the respondent had to prove the appellant's
guilt on that count beyond reasonable doubt and not merely on a
balance of probabilities.
The position at law as settled in
this jurisdiction is that the standard of proof in disciplinary
proceedings is a balance of probabilities, even if the act of
misconduct is of a criminal nature.
In ZESA v Dera 1998 (1) ZLR 500
(S), the respondent was an employee of the appellant. He was charged
with dishonesty, in contravention of the appellant's code of
conduct. The committee found him guilty as charged and imposed a
penalty of dismissal. An appeals committee dismissed the respondent's
appeal. The then Labour Relations Tribunal overturned the appeals
committee's decision on appeal on the grounds that the appellant
had to prove the respondent's guilt beyond reasonable doubt, not
merely on a balance of probabilities.
In allowing the appeal against
the Labour Relations Tribunal's decision, this Court rejected the
position taken by the Labour Relations Tribunal that in disciplinary
proceedings, the accused's guilt must be proven beyond reasonable
doubt. At 503E-504D, this Court remarked thus;
“It is a startling, and in my
view, an entirely novel proposition, that in a civil case the
standard of proof should be anything other than proof on a balance of
probabilities. The reason, I have always understood, why in a
criminal case proof beyond reasonable doubt is required, is that the
loss of a criminal case can result in death by hanging,
incarceration, or at the least, the branding of a person as a
criminal or convict. A criminal trial is an attack by the State,
representing the whole of society, upon the integrity of an
individual. Thus a person convicted of a crime is marked as one whose
conduct stands condemned by society.
A civil case, on the other hand,
is merely a dispute between individuals. The loss of such a case,
however ruinous in terms of money or property, loss of employment or
loss of face, is not a judgment by society as a whole, but simply a
resolution of the dispute between the parties. Moreover, the parties
in a civil dispute are equally interested parties, in the sense that
each one seeks relief. A claims money from B, B claims an order that
he owes nothing; A wishes to dismiss B, B wishes to remain employed.
In a criminal matter the State does not stand to gain or lose by the
outcome of the trial. So, if B is acquitted of theft, the State does
not suffer. But if A is forced to continue to employ B whom it has
accused of theft, A does indeed suffer if B, who is in fact a thief,
is found not guilty of theft. So in a criminal case one is primarily
concerned with doing justice to the accused. In a civil case one is
concerned to do justice to each party. Each party has a right to
justice, and so the test for that justice has to balance their
competing claims. Hence the “balance of probability” test. ZESA,
in the present case, has a right not to be forced to employ a thief;
Dera has a right not to be dismissed unjustly. The law must balance
those rights.”
This understanding is reinforced
by authority. Hoffmann & Zeffertt SA Law of Evidence 4 ed at p
528 say categorically:
“There are no exceptions to the
rule that all issues in a civil action are decided upon a
preponderance of probabilities.”
Joubert The Law of South Africa
vol. 9 para 573 p 340 says equally unequivocally:
“In civil proceedings, proof is
furnished upon a preponderance of probability and this is the case
even when allegations of criminal or immoral conduct are to be
proved.”
These statements are fully
supported by the cases cited by the learned authors, and more
recently by dicta in such cases as B v P 1991 (4) SA 113 (T) at
115F-G (a Full Bench decision), and Industrial Steel & Pipe Ltd v
Sengeredo S-128-97.
This Court in the unreported
judgment of Nyarumbu v Sandvik Mining & Construction Zimbabwe
(Pvt) Ltd SC 31/13 at page 3 of the cyclostyled judgment also stated
as follows:
“As a general rule, the
standard of proof required in disciplinary matters is that on a
balance of probabilities. This is obviously not as stringent as the
standard required in criminal cases.”
The position is also the same in
South Africa as explained by J Grogan Workplace Law (11th ed, Juta &
Co (Pty) Ltd, Grahamnstown, 2014) where at page 285 he states thus;
“As in criminal proceedings,
the decision of the presiding officer should be made in two distinct
stages. First, the guilt of the accused employee should be determined
on the evidence, without reference to the employer`s disciplinary
record. As far as proof of guilt is concerned, the presiding officer
must ensure that the employee indeed infringed the applicable rule.
The standard of proof in this regard is proof on a balance of
probabilities. When assessing whether the initiator has achieved that
standard, all material evidence must be considered. While it is
recognised that presiding officers are usually lay persons, they must
still apply the law when assessing guilt. The degree of accuracy
expected of presiding officers will depend partly on the disciplinary
code and partly on the manner in which the charges are phrased. A
charge of theft, for example, requires a presiding officer to ensure,
at the very least and albeit on a balance of probabilities, that the
employee appropriated the property with the intention of denying the
owner possession.”
In Clarence v National
Commissioner of the South African Police Services [2012] 2 BLLR 99
(LAC), the appellant was an inspector in the South African Police
Service. As a result of an incident on 12 November 2004 the appellant
was charged with contravening Regulation 18(3) of the South African
Police Service Discipline Regulations of 1996. It was alleged that he
performed an act or failed to perform an act which constituted an
offence, namely, murder, when he shot and killed a colleague on the
day in question. He was found guilty by the employer and dismissed
from work. Aggrieved by that decision, the appellant in that matter
alleged an unfair dismissal. The arbitrator found that the dismissal
of the appellant was substantively unfair and ordered the respondent
to reinstate him retrospectively. The arbitrator's decision was set
aside on review in the Labour Court and this resulted in an appeal
before the South African Labour Appeal Court.
The court held as follows with
regards to the standard of proof;
“The employer bears the onus of
proving, at the arbitration, that the member of the SAPS has in fact
committed an offence although, of course, the arbitrator does not
convict the member of the offence. The employer must prove that the
member has committed the act on a balance of probabilities and not on
the criminal law onus of proof beyond reasonable doubt. If the member
raises a defence, as the appellant did here, and pleads that his
action was in private defence so that he acted lawfully does SAPS
bear the onus of proving that this defence would have failed had it
been raised at a criminal trial? It does because in a criminal trial
the State would have borne the onus and, in the context of
misconduct, SAPS must show, on a balance of probabilities, that the
act, allegedly committed by the member, was unlawful.”
There has been at some stage some
confusion on the issue of the applicable standard of proof in
disciplinary proceedings owing to the decision in Mugabe & Anor v
Law Society of Zimbabwe 1994 (2) ZLR 356 (S).
In that case, the appellants, who
were legal practitioners, and their two juniors were jointly and
severally charged and found guilty of unprofessional, dishonourable
or unworthy conduct by the Law Society Disciplinary Tribunal in that
they had misappropriated clients trust funds and/or had failed to
keep proper books of account as required by the Legal Practitioners
Act and the relevant Regulations and By-laws. In determining the
standard of proof in that case the court at 363C-365B held as
follows;
“This raises squarely the issue
of the burden of proof in matters coming before the Disciplinary
Tribunal of the Law Society. It seems to me, from a perusal of the
authorities, that the burden of proof varies with the gravity of the
offence charged. Where the offence has strong criminal connotations
the burden, as submitted by counsel for the appellants, is on the
Society to prove its case beyond reasonable doubt. On the other hand,
where the offence bears no criminal implication, the burden is the
ordinary civil one of a balance of probabilities.”
The law is succinctly stated by
the learned author of The Law of South Africa vol 14 p 371 para 360
as follows:
'In an application to strike an
attorney from the roll for misappropriation of a client's money,
proof of guilt beyond reasonable doubt is required from the Law
Society.'
The two cases cited by the
learned author for this proposition are Inc Law Soc of the Tvl v C
1954 (4) SA 410 (T) at 412G–413C, and Pitluk v Law Soc of Rhodesia
1975 (2) SA 21 (RA) at 29A–D. The learned author advances as a
requirement for this higher standard of proof, the reason that:
'Proceedings of this nature
against an attorney are proceedings of a highly penal character. They
are very analogous to criminal proceedings.'
In support of this statement the
learned author refers us to Inc Law Soc v Van Os 1906 TS 733 at 739.
He, however, cautions that:
'Disciplinary proceedings are
in the nature of civil proceedings. Hassim (also known as Essack) v
Inc Law Soc of Natal 1977 (2) SA 757 (A), notwithstanding that a
higher standard of proof is demanded of the Society where it prefers
charges that impute criminal conduct and the fact of an attorney's
conviction of a criminal offence is regarded as prima facie proof
that he had in fact committed the offence. In the instant case, there
is no such conviction of the appellants and nothing less than proof
beyond a reasonable doubt is required from the Society.'
The learned author concludes
para 360 (supra) with the following:
'If the allegation goes no
further than alleging some breach of professional etiquette, then
proof of that allegation need only be on a balance of probabilities:
Pitluk v Law Soc of Rhodesia supra.'
Counsel for the Society drew our
attention to a conflict between the approach of the courts in South
Africa and that of the courts in Zimbabwe regarding the onus of proof
at disciplinary proceedings. Baker J in Law Society, Cape v Koch 1985
(4) SA 379 (C), relying on the decisions in Olivier v Cape Bar
Council 1972 (3) SA 485 (A) and Rheeder v Ingelyfde Wetsgenootskap
van die Oranje-Vrystaat 1972 (3) SA 502 (A) held that, in all civil
cases or cases civil in character, such as disciplinary proceedings
of tribunals before which the appellants appeared, proof on a balance
of probabilities was the applicable measure of proof.
In Pitluk v Law Soc of Rhodesia
supra, even though Olivier's case supra was brought to the
attention of the court, Beadle CJ at p 29B–D reflected that:
'I think, however, that in
order to remove any difficulty in deciding whether an allegation
involves professional misconduct simpliciter or where an allegation
involves an element of deceit or moral turpitude of a high order some
indication should be given as to where to draw the line.'
The learned Chief Justice then
advised:
'The line, I consider, can
appropriately be drawn between those allegations which might make the
accused liable to criminal prosecution and those which might not. For
example, if the allegation against the attorney was that he had
embezzled trust funds, that allegation should be proved beyond a
reasonable doubt, but if the allegation went no further than alleging
some breach of professional etiquette, then proof of that allegation
need only be proved on a balance of probabilities.'
This view, expressed by the
learned Chief Justice, represents the law of Zimbabwe in respect of
the issue of onus in proceedings such as that under consideration,
whatever the law in South Africa on this subject may be.
Misappropriation of trust funds attracts the striking off the
Register the name of a legal practitioner: Chizikani v Law Soc of
Zimbabwe 1994 (1) ZLR 382 (S). It would be grossly unfair to condemn
a man and punish him for an offence of a criminal nature on the
balance of probabilities rather than evidence which established the
commission of the offence beyond a reasonable doubt.”
Mention must be made of the
decision of this Court in Astra Industries Ltd v Peter Chamburuka
SC27/12 where OMERJEE AJA, relying on the decision in Mugabe &
Anor v Law Society of Zimbabwe (supra) at page 3 of the cyclostyled
judgment stated, obiter, as follows:
“The respondent was charged and
convicted of theft among other offences. The essential elements of
theft remain the same whether in a disciplinary hearing or in a
criminal trial. The position now appears settled in this jurisdiction
that where a person is charged in a disciplinary hearing with an
offence of a criminal nature, such an allegation should be proved
beyond a reasonable doubt and that it would be unfair to condemn a
man and punish him for an offence of a criminal nature on a balance
of probabilities rather than evidence which established the
commission of the offence beyond a reasonable doubt. In this
connection see Mugabe & Anor v Law Society of Zimbabwe 1994 (2)
ZLR 356 (S) 364G – 365B.
For the purposes of the present
appeal, it is not necessary to determine whether or not this
principle should apply to ordinary disciplinary proceedings in labour
matters.” (emphasis added)
The burden of proof as set out in
the Mugabe v Law Society of Zimbabwe case (supra) was however
qualified by McNALLY JA in ZESA v Dera referred to supra where at
504E-G he stated as follows;
“I am satisfied that the
concession as to the law in this regard before the Tribunal was
entirely wrong. Reliance was placed upon cases involving the
disciplining of lawyers before disciplinary tribunals such as Mugabe
& Mutezo v Law Society of Zimbabwe supra at 365B-C; and Pitluk v
Law Society of Rhodesia 1974 (2) RLR 245 (A). The fact that, in such
proceedings, a higher standard of proof is required, does not lead to
the conclusion that a higher standard of proof is required in all
disciplinary proceedings.
There is a fundamental
distinction.
When the Law Society is
disciplining one of its members, it is acting as a guardian of the
public interest. It is not itself a directly interested party in the
sense that an employer is. It is acting more like the State in a
criminal trial, than like an employer in a civil dispute with its
employee. Its interests do not need to be protected in the same way
as those of an employer. There is no need to balance competing
interests, as there is in a dispute between employee and employer.”
(emphasis added)
On the qualification of the
Mugabe & Anor case as expounded in the ZESA v Dera case, I am
respectfully unable to agree with this Court's remarks in the Astra
Industries case.
What can be concluded from the
authorities above therefore, to the exclusion of the judgment in the
Astra Industries case, is that in disciplinary proceedings before a
disciplinary tribunal, the burden of proof is on a balance of
probabilities and not beyond reasonable doubt. Various codes of
conduct have provisions which prohibit acts of misconduct that are
criminal in nature like theft. There is no requirement, neither is it
a part of our law, that those acts of misconduct must be proved
beyond reasonable doubt.
Where, however, a person is
charged and arraigned before a body like the Law Society disciplinary
tribunal for acts of misconduct of a criminal nature, the accused
person's guilt must be proven beyond reasonable doubt because the
Law Society acts as a guardian for society against unscrupulous
lawyers.
In that regard, therefore, the
correct position of the law is that in all disciplinary proceedings
the burden of proof is on a balance of probabilities. The only
exception is in disciplinary proceedings before a body like the Law
Society disciplinary tribunal where a legal practitioner faces
charges of a criminal nature. In those proceedings, the guilt of the
legal practitioner must be proved beyond reasonable doubt.
I find further fortification in
this regard in the recent judgment by GWAUNZA, DCJ, in the case of
Charles Marevesa v Telone (Private) Limited SC32/19 where at pp 8 –
9 she stated:
“From the above analysis of
relevant dicta, I am satisfied that the position spelt out in ZESA v
Dera (supra) remains the correct position of the law. The burden of
proof in labour proceedings is proof on a balance of probabilities.
This is so regardless of whether or not the charge in point has
criminal connotations. The Labour Court does not sit as a criminal
court, and proceedings before it are civil in nature. The applicant,
I find, misinterpreted the remarks in Astra Industries v Chamburuka
judgment (supra).”
The court therefore finds that
the argument made on behalf of the appellant on this aspect is
without merit and is accordingly dismissed.
I will now turn to the last issue
for determination which arises from the second ground of appeal. It
is whether the appellant's challenge of the penalty imposed upon
her by the respondent has any merit.
In motivating the second ground
of appeal, the appellant's counsel's submission was that the
penalty imposed on her was excessive. The stance of the respondent on
the other hand, was that the appellant was in a position of trust
which she breached by committing the act of misconduct, which act
went to the root of the contract of employment thereby warranting
dismissal.
In Toyota Zimbabwe v Posi 2008
(1) ZLR 173 (S) at 179F the court applied the common law principle
that an employer has a right to dismiss an employee following
conviction for misconduct of a material nature and going to the root
of the employer and employee relationship.
In Celsys Ltd v Ndeleziwa 2015
(2) ZLR 62 (S) 65F the court also held that;
“The law is settled that in
circumstances where an employer takes a serious view of an employee's
misconduct, it has a clear discretion as to what penalty to impose
after finding such employee guilty of the misconduct in question.”
The same position was held by
GOWORA JA in the unreported judgment of Zimbabwe Platinum Mines (Pvt)
Ltd v Godide SC 2/16 where at page 5 of the cyclostyled judgment the
court held as follows;
“I agree with the submissions
by Mr Mpofu that the right to dismiss is available at common law and
that such right is entrenched. The employer at its election may
decide to impose a lesser penalty than dismissal. Such is the
exercise of discretion.”
Having established that an
employer has the discretion to impose a penalty after finding the
employee guilty, the next inquiry is, on what basis can an appeal
court set aside the penalty imposed by the employer?
The court in the Malimanjani v
CABS 2007 (2) ZLR 77 (S), at 80B-C stated as follows;
“The issue of what punishment
to impose after an employee is found guilty of an act of misconduct
is clearly one of discretion… It is trite that an appeal court does
not interfere with the exercise of a discretion by a lower tribunal
unless it is shown that the discretion was improperly exercised. As
contended for the respondent, the penalty imposed must show a serious
misdirection to justify interference by the appeal court.” (my
emphasis)
In the case of Zimbabwe Platinum
Mines (Pvt) Ltd v Godide (supra) at page 8, the Court held:
“For this Court to interfere
with the penalty imposed by the employer in the exercise of its
discretion there needs to be proof that the exercise of the
discretion was impeachable based on the principle laid out in Barros
v Chimphonda.”
Thus:
“It must appear that some error
has been made in exercising the discretion. If the primary court acts
upon a wrong principle, if it allows extraneous or irrelevant matters
to guide or affect it, if it mistakes the facts, if it does not take
into account some relevant consideration, then its determination
should be reviewed and the appellate court may exercise its own
discretion in substitution ...”
Again, in the Celsys Ltd v
Ndeleziwa case referred to above, at 65F-G the court held:
“The question that then arises,
on the basis of the law and authorities on this matter, is whether
the appellant (the employer) judiciously exercised its discretion in
deciding on, and imposing, the penalty of dismissal. It is only upon
a negative answer to this question, that an appeal court would be
justified in interfering with such decision.”
From the authorities above, it is
clear therefore that where an aggrieved employee seeks to have the
penalty imposed upon him by the employer set aside on appeal, his
ground of appeal must be set out in a way that clearly shows an
attack on the exercise of discretion by the employer. In performing
that task, a legal practitioner would be wise to take heed and be
guided by the considerations so clearly set out in Barros v
Chimphonda (supra).
In his second ground of appeal
the appellant did not attack the exercise of discretion by the
respondent. As held in Songono v Minister of Law & Order 1996 (4)
SA 384 (ECD) at 385F, the purpose of grounds of appeal is to inform
the respondent of the case that he has to meet and to notify the
court of the points to be raised. The appellant did not allege that
the respondent failed to properly exercise its discretion when it
imposed the penalty on her. It is a requirement of law that the
exercise of discretion be clearly attacked. The appellant failed to
do so. On that basis therefore, the second ground of appeal fails.
For the above reasons, the appeal
is without merit and it is ordered as follows;
“The appeal be and is hereby
dismissed with costs.”
GARWE JA: I agree
GUVAVA JA: I agree
Zimudzi & Associates, appellant's legal practitioners
Chadyiwa & Associates, respondent's legal practitioners
