Arnold Gurure v Servcor

IN THE LABOUR COURT OF ZIMBABWE                 JUDGMENT NO. LC/H/223/2013
HELD AT HARARE ON 28 FEBRUARY, 2013             CASE NO. LC/REV/ H/54A/2011
In the matter between



ARNOLD GURURE                          –                Applicant
And

SERVCOR                                –                Respondent




Before The Honourable L. Kudya, President
For Applicant       - N. Mashizha(Legal Practitioner)
For Respondent      - W. Magaya(Legal Practitioner)




KUDYA, L.

      This is an application for review of the decision by the Respondent leading

to the Appellant’s dismissal.



      Facts of the case are that Applicant was brought before a Disciplinary

Committee at his workplace facing allegations of contravening the Respondent’s

Code of Conduct. When he was supposed to appear before the committee he

stated that he was unwell to be present at the proceedings.



      On the 5th occasion the Respondent formed the opinion that the Applicant

was deliberately avoiding the hearing.      To that end it sent a letter to him

instructing him to present before a medical doctor whom they had identified so


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that the doctor could confirm whether or not the Applicant was genuinely sick to

the extent that he could not present himself for the misconduct hearing to be

conducted and concluded.



          Another letter was sent to him advising him that if he did not act as

suggested by the Respondent the hearing would proceed in his absence. The

letters     in   question   were   addressed    to   the   Respondent’s    address

notwithstanding the fact that Applicant had as part of his conditions of

suspension instruction not to get to or near his former workplace.



            The documents in question were allegedly received by someone who

answered to the name of Norma. True to its indication the Respondent went

ahead with the hearing without the Applicant and found him guilty of the

misconduct complained of. Consequently it dismissed him from employment.

Apart from taking issue with the merits of the case as demonstrated by the

appeal record attached to this review record, Applicant also took issue with the

process leading to his dismissal hence this application for review.



          The basic ground for review is that the Respondent failed to afford him a

chance to be heard by deliberating his case in his absence yet he was genuinely

precluded by ill health to attend. Further to that he is of view that it was against

his human rights that the Respondent force him to subject self to a doctor of

their choice to determine his state of health as that would have compromised

the doctor client privilege and right to confidentiality which flows from such a

relationship.




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   His second argument is that the letters which allegedly invited him to see the

doctor and that the hearing would proceed in his absence never got to him He

contended that such breaches were serious to warrant a setting aside of the

decision to dismiss him and to entitle him to his reinstatement or at least

damages in place of reinstatement if such an option was no longer tenable.



      Respondent on the other hand, argued that Applicant had been afforded

a fair hearing and that the decision which was reached to dismiss him should

thereafter be upheld. Its argument is that it had done all that it possibly could

by granting the Applicant chances to attend the hearing and on all four he

would tender medical and traditional medical documentary evidence to show

that he was unfit to stand the hearing. This created in the Respondents mind

the view that Applicant was not genuinely sick but was just trying to frustrate

the hearing.



      Respondent argued that there was nothing irregular on inviting him to

present before the doctor who it had identified as all that was required from the

doctor was not necessarily to divulge the Applicants ailment but for him to give

it his professional opinion as to whether indeed Applicant was fit or not fit to

stand the hearing.



          It also maintained that the pressure to conclude the hearing was

emanating from the limits set for such hearings. Even though the address on

the letters to the Applicant was its address the letters did get to the Applicant

because the same Norma who had signed for the 1 st letter also signed for the




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2nd one its lawyer’s employee had confirmed that he had served the letters on

Norma to give to the Applicant.



     Respondent maintained that the Applicant was properly found guilty and

dismissed on the basis of the evidence which was led at the hearing in his

absence. In its view there was no fault with how it came up with the verdict and

dismissal penalty. It therefore prayed that the review be dismissed with costs.

However in the event of the court upholding the review, it moved the court to

remit the matter so that the anomalies complained of could be regularized.



      The law on the right to be heard deserves no elaborate mention as it is

settled. See cases of:

Zimbabwe Teachers Association and another vs Minister of Education 1990

(2) ZLR 48 at 61 G –H

Jerry Musarira vs Anglo American Corporation SC/ 53/ 05.

     Further to that, the law on dealing with procedural irregularity in labour

matters is also settled. See case of Tichawana Nyahuma vs Barclays Bank Pvt

Ltd SC 67/05. What is only pertinent to decide in this case is whether from a

factual perspective the Applicant was not afforded his right to be heard and if so

what is the remedy?



    The facts of the instant case speak of a scenario where the court has to

decide the matter based on the Applicant’s word against that of the Respondent

and vice versa. It is important to mention at the outset that issues of

confidentiality between doctors and patients are clearly settled issues and do

not warrant this court’s restatement of the position.


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     It is also not an issue that the only way one can satisfy self about the

authenticity or otherwise of a sick leave form is only if one has seen the patient

in question and made an assessment of his or her state of health.            What

however seems to be a breach of one’s rights is when one is forced to subject to

such examination. That in the court’s view clearly goes contrary to ones right to

privacy etc. and cannot be sanctioned.



  In any event on the basis of the facts in this case this was a doctor who had

some links with the Respondent hence the fear of bias stated by the Applicant

cannot be ruled out as far fetched. The court is therefore satisfied that the basis

upon which the Respondent closed the Appellant’s door to be heard was not

proper in the circumstances.



   The situation is distinguishable from what presented in the Old Mutual case

which was quoted which even though stands as persuasive authority. It does

not ring well with the facts of the instant case. In the instant case, apart from

doubting the authenticity of the medical reports because they had been

tendered on four occasions and from different practitioners there was nothing

more than that which demonstrated that the Applicant was feigning illness.



    In the Old Mutual case, it was evident that the medical document flew in the

face of the conduct which had been displayed by the employee and his counsel

earlier on during the hearing. Such conduct showed that the employee intended

to have the proceedings aborted. In the instant case no such evidence was




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proffered.   The court is therefore satisfied that the Applicant’s right was

compromised in that respect.



    In relation to the letter, again from a factual basis it is difficult to envisage

how the Respondent expected Applicant to access his mail at its place where it

had barred him. It could be true that Norma received the process but the issue

is did it get to the Applicant? The court is satisfied that the Respondent erred in

proceeding with the hearing on the basis of Norma’s signature.



  The irregularities in question are not of a minor nature since they went to the

root of the case. This is more so where earlier on the Applicant had been

subjected to the criminal law processes on the same allegations. Criminal cases

being cases which require a higher standard of proof, the presence of such an

element in the instant case should have prompted the Respondent to note that

this was a case which really required the presence of the Applicant together

with all legal resources available to him to defend himself. The facts in the case

do not demonstrate at all that Applicant deliberately lost his right to be heard by

his own conduct in which case he then would not have been head to cry foul.



    As to what should happen to the case as stated earlier on in the case of Air

Zimbabwe Pvt Ltd vs Chiku Mnensa and Mavis Mwarweye SC 89/04 the

employee should not escape consequences of his conduct on the basis that

some irregularity occurred on the process leading to his dismissal. That should

be put right. Counsels for both parties wrestled on that point with Applicant

saying that this court should hear the matter instead of remitting it to the

tribunal which dealt with it before. Respondent on the other hand argued that


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the matter should be remitted to the tribunal which dealt with it before to

correct the procedural irregularities complained of.



  The court is however mindful of the fact that the facts of this case are also a

subject of appeal in this court. This court would therefore be moving in circles if

it were to hear the matter in a procedurally correct manner yet there are other

appeal issues still pending. It is therefore the court’s considered view that the

justice of the case dictates that matter be remitted back to the employer to deal

with it in a procedurally correct manner. If there are still issues on the merits

which warrant appeal then those can be disposed of in the appeal.



IT IS THEREFORE ORDERED AS FOLLOWS:



   1) That the review application being with merit be and is hereby upheld

   2) The matter is remitted back to the disciplinary committee to hear it afresh

      in a procedurally correct fashion within 6 months from the date of receipt

      of this order by the Respondent.

   3) In the event that the above directive is not complied with within the

      stated time limits the Applicant will be deemed to be reinstated with full

      pay and benefits or alternatively to be paid damages in place of that

      reinstatement from date of suspension,

   4) Quantum of damages is to be agreed upon by the parties failing which

      either party can approach the court for quantification of the same.



L. KUDYA     ---------------------

President- Labour Court


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Takundwa and Company – Applicant’s Legal Practitioners

Coghlan, Welsh and Guest- Respondent’s Legal Practitioners




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