Aloyce R. Stevano v Zimbabwe Electricity Supply Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/302/14
HARARE ON 19 MAY 2014,
CASE NO. LC/REV/H/7/14
AND 23rd MAY, 2014
JUDGMENT NO LC/H/302/14
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IN THE LABOUR COURT OF ZIMBABWE		      JUDGMENT NO LC/H/302/14

HARARE ON 19 MAY 2014,  				CASE NO. LC/REV/H/7/14

AND 23rd MAY, 2014

In the matter between

ALOYCE R. STEVANO						APPLICANT

AND

ZIMBABWE ELECTRICITY SUPPLY AUTHORITY		RESPONDENT

Before The Honourable B.T. Chivizhe, Judge

For The Applicant:	Ms R.R. Mutindindi, Legal Practitioner

For The Respondent:	Mr M. Baera - Legal Practitioner

CHIVIZHE, J.

The application is for a review in terms of Section 89 (1)(d) of the Labour Act [Chapter 28:01].

The factual background to the matter is as follows:

The applicant was employed by the respondent as a Sales and Marketing Manager.  The applicant fell ill and had to proceed on statutory sick leave.  After the expiry of the statutory leave days, a qualified medical practitioner having recommended retirement on medical grounds, the applicant appeared before the ZESA Medical Board.  He appeared on two separate occasions before the Board.  What happened at the Medical Board is subject to different interpretations by both parties.  The applicant alleges that on the two separate occasions the respondent failed to conduct the assessment even though he had made himself available for such assessment.  According to applicant it is respondent who failed to conduct the assessment and not the applicant.  According to the respondent however, the applicant after attending the Medical Board was advised to produce a Specialist Surgeon’s report on his condition in order for the Board to properly assess his condition and then make a recommendation.  After failing to produce the specialist report and with his continued absenteeism from work the respondent felt the applicant was malingering from work and instituted disciplinary proceedings.

The applicant was notified of the disciplinary hearing to be convened on the 30th of December, 2011.  The applicant initially agreed to the date.  He alleges that on the 29th of December 2011 he sent an email to the Human Resources seeking a postponement of the hearing to at least after the 3rd of January 2012.  According to his communication this was the date his legal practitioners would be available to represent him in the disciplinary hearing.  On the date of hearing when he failed to turn up the Disciplinary Committee however proceeded to hear the matter in absentia.  The applicant was found guilty on the charge of absenteeism for a period of five or more days without leave or reasonable cause.  He was subsequently dismissed with effect from 30th December, 2011.

The grounds on which a review is being sought are set out in the applicant’s founding affidavit as follows;

“4.1.	The respondent grossly erred and seriously misdirected itself in instituting misconduct proceedings against Applicant on the basis of the exhaustion of statutory sick leave days when in actual fact it should have proceeded in terms of Section 14(4) of the Labour Act [Chapter 28:01]. In any case, the charge preferred against Applicant, that is, “any conduct or omission inconsistent with the fulfilment of the express of implied conditions of his or her contract” is not only improper and irregular but thoroughly inappropriate and appalling in the circumstances. This type of misconduct in circumstances of this nature is completely alien in our jurisdiction.

4.2.	The respondent grossly erred and seriously misdirect itself in charging the Applicant with absenteeism when it was clear that he was still undergoing treatment and had not appeared before the medical board to be assessed for his suitability for medical retirement. Exceeding the maximum sick leave is not an act of misconduct at all in terms of SI 15 of 2006.

4.2.1.	my absence from work was premised on good cause i.e. I was on sick leave

4.3.	A fortiori, the respondent grossly erred and seriously misdirected itself thus exhibiting actual propensity to dismiss me by conducting the impugned disciplinary hearing in my absence and that of my legal practitioner of choice notwithstanding that I sought for postponement of the matter to allowed for my counsel to attend the disciplinary hearing.

4.4.	The Respondent seriously misdirected itself by failing to accede to my bona fide request for postponement of the hearing. I did not deliberately abscond the hearing but I had a valid legal reason owing to the absence of my legal counsel.

The applicant seeks an order setting aside his dismissal and reinstating him on full salary and benefits from the date of his unlawful dismissal.

The application is opposed by the respondent.  The respondent submitted that it was entitled to institute disciplinary proceedings after the applicant had been to the Medical Board twice and upon being advised to bring a specialist surgeon’s report for purposes of helping the Board assess whether his condition warranted retirement on medical grounds; the applicant had failed to place the report before the Board; he had after the expiry of 180 days still absented himself from work and had not communicated with respondent; the respondent believed it was entitled to proceed with the hearing after duly notifying the applicant of the hearing and the applicant since failed to turn up for the hearing; the respondent denied ever receiving the e-mail requesting for a postponement addressed to Human Resources Manager; in any event the e-mail had been authored by applicant and not his legal counsel the respondent also believe that the applicant should have presented himself before the committee and sought postponement.

The main issue for determination in my view is whether the decision by the respondent’s Disciplinary Committee to proceed with the hearing in applicant’s absence amounted to a gross irregularity that necessitated the setting aside of the proceedings.  I believe the answer is in the affirmative.  The Disciplinary Committee was not entitled to proceed with the hearing for the following reasons.  Firstly, it was very clear from the letter penned by the applicant on the 19th of December, 2011 that although the applicant was tentatively in agreement with the hearing date of 30th of December 2011 this date was however applicant’s proposed date before him discussing with his legal counsel who is based in Harare.  The applicant was according to same letter going to travel to Harare for the purpose of meeting with legal counsel.  The respondent therefore was in my view aware that the proposed date of hearing was subject to the applicant’s lawyer’s availability and could possibly be changed.

Secondly, when the request for postponement did come on the 29th of December 2011 the request was in my view not unreasonable.  The request was simply that his legal counsel would not be available on the next day the 30th of December, 2011.  The request was for the hearing date to be set at any day after the 3rd of January 2012 which was basically a few days away.  That in my view was not an unreasonable request, considering the period concerned which was at the end of year when most offices are closed.  The matter had also not been set down before so that respondent could not claim the applicant was unlawfully absconding from the hearing and playing for time. This was the first time the matter was being set down.

Finally the period of delay was very short it only amounted to two days. The respondent could not therefore claim undue delay in disciplinary process.

The respondent in its papers has denied that the Human Resources ever received the email.  In proceedings before the court however counsel in any apparent contradiction suggested that the email was indeed received but was received on the 30th of December 2011 the actual day of the hearing.  I have no doubt in my mind that from the facts as presented the respondent did receive the email.  Having received the email where the applicant clearly explained the reason for seeking a postponement the respondent in my view unreasonably denied the applicant an opportunity to be heard before the Disciplinary hearing by proceeding with the hearing in his absence.  Having clearly indicated the unavailability of his legal counsel it was unnecessary for applicant to make a physical appearance for clearly he had indicated his willingness to be represented by a legal practitioner of his choice.  He could have felt that presence of his legal practitioner was important considering the nature of the charges. The respondent could not insist that he appear alone where he clearly felt he needed to have his legal counsel to defend him.  The respondent therefore also clearly denied him his right to legal representation when it decided to proceed in the face of his letter requesting postponement.

Accordingly, it is my finding that the proceedings before the Disciplinary Committee must be set aside.  The respondent, may, in its discretion institute fresh disciplinary proceedings but must ensure the applicant is accorded his full rights to be legally represented by a legal practitioner of his choice and all the attendant rights must be accorded to him.

It is therefore ordered as follows;

The decision by the respondent’s Disciplinary Committee is hereby set aside.

The applicant shall be reinstated to his original position without any loss of salary/benefits.

The respondent shall pay costs of suit.

Matsikidze & Mucheche Legal Practitioners, for the Applicant.

Baera and Company Legal Practitioners, for the Respondent.