New hearing in CMED case

detect a fraud committed by subordinates.
Ostern Nyamande was employed as a financial accountant and his duties were to oversee revenue collection, supervise the head office accountant in making payments, record keeping and bank and cash reconciliation.
He also compiled weekly, monthly and yearly financial reports.
Sometime in 2009, the Ministry of Transport, Communications and Infrastractural Development carried out an audit which revealed Nyamande’s subordinates had defrauded CMED of US$44 700.
It was CMED’s view that it was lack of supervision by Nyamande that resulted in his subordinates disregarding financial standard procedures resulting in the loss.
Nyamande was suspended on October 26, 2009 and appeared before a board of hearing committee facing a charge of contravening the company’s code of conduct.
He was found guilty of incompetence and consequently dismissed from employment.
Nyamande lodged an appeal with the managing director, who dismissed it on the basis that it was noted out of time.
Aggrieved by this decision, Nyamande then lodged his appeal with the Labour Court.
He argued that the disciplinary committee erred in convicting him when there was no evidence while the appeals committee erred in holding that the appeal was noted out of time.
Labour Court president Ms Beatrice Chivizhe noted it was clear from the record that the members of the board of hearing committee only signed in authentication of the minutes on November 18, 2009.
Ms Chivizhe said: “The minutes could not have therefore been made available to the appellant anytime before that date.
“I am for that reason disinclined to agree with the appellant’s contention that he was advised verbally of the decision on November 12, 2009.”
Ms Chivizhe said that even if he had been advised of the decision, he could not have been able to lodge his appeal earlier than November 18, 2009, as the minutes of the proceedings were not yet signed.
CMED thus committed a procedural irregularity when it, in violation of its own code, failed to advise Nyamande of the outcome of the board of hearing committee.
“It is my considered view that the procedural irregularity was sufficient to vitiate the appeal proceedings.
“From the record, it is clear that the appeals authority declined to hear the appellant’s appeal on the basis that it had been noted out of time,” said Ms Chivizhe.
She then set aside the decision handed down by the appeals authority on December 14, 2009 and remitted the matter back for determination within 30 days of the order.
Ms Chivizhe said the appellant’s status should in the meantime revert to that of dismissed by the board of the hearing committee and awaiting the appeal hearing.