13 December 2012

Zimbabwe: Splitting of Charges

During disciplinary hearings, employers have often been accused of splitting charges being levelled against employees. Others have been accused of duplicating the charges. What constitutes splitting of charges and is it proper in settling labour disputes. An example is the case of Onias Chiringa who worked for Zesa Holdings when he was brought before a disciplinary committee facing two allegations. Firstly, he faced allegations of contravening Section 7 (1) (e) (ii) that is assaulting or threatening violence against any employee at the workplace.

Secondly, he was accused of Contravening Section 7 (I) (e) (viii) that is conducting oneself or behaving in a manner which brings or is likely to bring the name of the authority into disrepute or tarnish the image of the authority. This had been through assaulting a customer in the company premises, and receiving money from a customer meant for payment of an electricity bill, which amount he never paid nor returned to the customer.

The disciplinary authority found him guilty of assaulting a customer at the company premises, an offence he admitted and paid an admission of guilty fine for.

Chiringa was found not guilty of tarnishing the image of the company by receiving money from a customer for the payment of a bill and failing to account for that money. He was dismissed. He was dissatisfied with the outcome and appealed through Zesa's appeal structure but was not successful. He then appealed to the Labour Court. The issues that fell for determination were whether or not there was improper splitting of charges and whether or not the disciplinary authority misdirected itself in relation to the question of mitigation.

Also up for determination was whether or not the appeals committee had misdirected itself by finding that Chiringa had been properly found guilty of a Category D offence since assault could be a lesser offence in terms of the Code of Conduct. The argument by Chiringa in relation to the allegations of splitting charges was that he had been asked to plead to two charges and not three charges.

It was therefore wrong for the appeals committee to find him guilty of two charges when it had acquitted him of one of the two charges levelled against him. This argument was premised on the basis that the second charge was improperly split. The second charge had been particularised in two paragraphs, one relating to the assault and the other relating to taking of the customer's money.

These two were just particulars, which were explaining the single charge of bringing the name of the company into disrepute. He said that an acquittal on the facts stated in one paragraph should have led to an acquittal on the charge as a whole. In response to this argument, Zesa submitted that the charges were clear and simple and ought to have been understood as just two charges, but the second one had two counts.

These were that assaulting a customer had tarnished the image of Zesa, and that taking a customer's money and failing to account for it had tarnished the image of the company. So there were two counts to the second charge. Chiringa was acquitted of one count but found guilty of the other count. Zesa argued that these were disciplinary proceedings and the authority did not necessarily have to possess the same legal skills as a court of law in formulating charges. Zesa argued that the charge was not in any way misleading as to what he would be called upon to answer to. The employer argued that the standard set down in the case of Chairman PSC and another Versus Marumahoko 1992 (1) ZLR 304 (S) at page 305 was sufficiently met. Zesa further argued that splitting the two counts into two charges would have actually resulted in an improper split because it would have led to a duplication of convicting. This would be with the result that the offender would face the possibility of being punished twice for what really is a single offence.

It is agreeable that the second charge was sufficiently clear to properly inform Chiringa that he would be facing the charge of tarnishing Zesa's image by firstly assaulting the customer and secondly receiving money from a customer and failing to account for it. Chiringa himself was able to plead to the offence and raised no objections. He was able to properly defend himself in relation to the two particulars of the same charge and was not in any way prejudiced.

It is also agreeable that lay persons in most cases who may not possess the same legal skills as a trained prosecutor or another trained officer of the court formulate charges in disciplinary proceedings. In assaulting someone, Chiringa would have tarnished the image of the company. Secondly, in receiving money from a customer and failing to account, he would have also tarnished the image of the company. Chiringa indicated that he understood this charge in the manner that it was framed and pleaded not guilty to it and proceeded to conduct his defence without raising any objections. Surely he could not have been found not guilty of tarnishing the image of the company by assaulting a customer.

He accepted this and this breach tarnished the image of Zesa. It is satisfactory that there was no improper splitting of charges as alleged, and Chiringa suffered no prejudice. Chiringa argued the fact that he had assaulted under extreme provocation ought to have been taken as highly mitigatory, hence the offence of assault should have been categorised as petty disorderly or objectionable behaviour, which is a Category A offence.

This would not have warranted dismissal. Zesa argued in response that the first charge was not a trivial matter and should not be relegated to a small minor Category A offence, but was a serious Category D offence. In the result, Labour Court president Ms Lilian Hove was satisfied that Chiringa was properly found guilty of a serious Category D offence. She was satisfied that he had been properly found guilty of bringing the name of Zesa into disrepute when he assaulted the customer. Ms Hove accordingly dismissed Chinga's appeal for lack of merit.

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