B Nyahanana v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/351/2016
HARARE, 11 FEBRUARY 2016 &
27 MAY 2016
CASE NO LC/H/346/2015
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/351/2016

HARARE, 11 FEBRUARY 2016 &				         CASE NO LC/H/346/2015

27 MAY 2016

In the matter between

B NYAHANANA							    APPELLANT

Versus

CITY OF HARARE							   RESPONDENT

Before the Honourable R F Manyangadze J

For the Appellant       K Masiyenyama  (Trade Unionist)

For the Respondent   Ms A Zvoutete  (Principal Legal Officer)

MANYANGADZE J:

This is an appeal against an arbitral award handed down on 28 November 2014, which upheld the dismissal of the appellant from the respondent’s employment.

The facts of the matter, briefly outlined, are that the appellant was employed in the respondent’s Public Safety Department, where he held the position of Sub-Officer Grade 8.

Events leading to the appellant’s dismissal from employment can be traced back to a tragic traffic accident that occurred in January 2008. A vehicle in which the appellant was travelling with workmates, whilst on duty, was swept off a flooded bridge on Ruwa River, on 25 January 2008. The appellant and his co-workers were on their way back to station from a rescue mission. Four of the appellant’s workmates died as a result of the accident. The appellant escaped without any visible injuries.

The appellant was granted sick leave up to 30 March 2008. After the expiry of his sick leave, he remained at home, and was apparently receiving counselling from a church pastor. He returned to work in February 2009, after which he was charged with misconduct for being absent from work without leave.

The appellant was charged with contravening clause 1.1 of Part IV of the Collective Bargaining Agreement, Harare Municipal Undertaking Code of Conduct and Grievance Handling Procedure) Statutory Instrument 17 of 2007 (“the Code). The particulars of the charge were that:

“He did not report for duty without leave or reasonable cause from 21 June 2008 to 20 February 2009”.

The respondent’s disciplinary committee found him guilty as charged on 24 August 2012, and imposed a penalty of dismissal.

The matter went before the Designated Agent for the Municipal Undertaking for conciliation. Conciliation failed, leading to referral of the dispute to arbitration, which resulted in the arbitral award in contention.

The grounds of appeal are stated as follows:

“1.	The arbitrator erred at law by considering irrelevant material, and not considering relevant material.

2.	The Hon Arbitrator erred at law in holding that the appellant failed to comply with the respondent’s Code of Conduct Clause 1.1 of Part IV of the Collective Bargaining Agreement Harare Municipal Undertaking as read with s 14 (2) of the Labour Act [Chapter 28:01]. The appellant reported for duty after his sick leave and he was given a lawful instruction by his employer to stay away from work.

3.	The arbitral award is so unreasonable and irrational in its defiance of logic to constitute a ground of appeal.”

The respondent raised two preliminary points in respect of the grounds of appeal. These were that the grounds of appeal do not raise points of law, and that they were two wide and vague. The second preliminary point related to grounds 1 and 2, and the first point related to all the grounds.

At the hearing of the matter, the appellant abandoned the first ground of appeal. The first ground of appeal is accordingly struck off the record, it having been abandoned.

The appellant however, maintained that grounds 2 and 3 were properly before the court.

Ground 2 raises the issue of whether or not the appellant properly proceeded on sick leave. It involves answering the question as to what the law relating to sick leave is, and whether or not it was contravened in the circumstances of this case. In this regard, the issue cannot be regarded as purely a question of fact, as averred by the respondent. When the court is seized with the question of what the law is on a particular matter before it, it is seized with a question of law. See Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217.

In the instant case, there is clearly the legal issue of what constitutes sick leave, in terms of the regulations applicable to the respondent’s organisation. There is the concomitant factual issue of whether or not such leave was in fact authorised. The respondent, it appears, focused on the factual element, and contended that the ground of appeal should be struck off as it raises only a factual issue. It disregarded the legal element pointed out, which places the issue within the ambit of the requirements set out in the Muzuva case, supra.

The third ground of appeal, in my view, is linked to the second ground of appeal. It raises the question of whether the arbitrator’s finding that the appellant violated the respondent’s sick leave regulations was grossly unreasonable or irrational as alleged by the appellant.

In the circumstances, grounds of appeal 2 and 3 are properly before the court. The points in limine raised in respect thereof are accordingly dismissed.

On the merits, the pertinent question is whether or not the appellant properly proceeded on sick leave, for the several months that he was away from work.

The respondent, a large formal organisation, has some leave regulations, which include sick leave. The various forms of leave available in the respondent’s organisation have been described as annual leave, occasional leave, special leave, disablement leave, and sick leave.

The respondent contended that it was up to the appellant to apply for the appropriate leave category, and ensure that it is granted before absenting himself. In this regard, paragraphs 49 to 53 of the respondent’s heads of argument are instructive:

“49.	If the appellant needed time away from work due to the unfortunate incident he had gone through, the obligation was on him to apply for an appropriate leave and ensure that it is granted before absenting himself. However, the appellant did not bother to formalize his absence, he just stayed at home thereby contravening the Code of Conduct and Leave Regulations.

50.	Clause 7 (1) of the Leave Regulations provides thus, ‘subject to the provisions of this clause, the Head of Department concerned may grant to an employee the amount of annual leave which is due to him…”(my emphasis)

51.	Clause 11 of the Leave Regulations provides, ‘subject to the provisions of this clause, a Head of Department may grant to an employee accessional leave with pay … (my emphasis)

52.	Clause 13 (1) of the Leave Regulations provides that, ‘special leave on full pay, which may not be deducted from annual leave, shall be granted by the Head of Department concerned to an employee for the purpose of …’

53.	Clause 16 (10) of the Leave Regulations provides that, ‘subject to the provisions of this clause, disablement leave may be granted by Head of Department concerned to an employee in respect of any period during which he is disabled as a result of an accident or disease-”’.

The legal position on sick leave was clearly stated by the Supreme Court in the case of City of Harare v Zimucha 1995 (1) ZLR 285. The court stated, at p 291, that:

“However attractive that reasoning may sound, it does not stand up to analysis. ‘Valid reason’ means a reason which is lawful in terms of the contract. Sickness per se does not entitle an employee to stay away from work and continue to draw his salary. It entitles him to apply for sick leave (or annual leave). If that is granted, he is then entitled for a time to be paid while not working. But if he does not apply for sick leave, and obtain it, he is simply absent without leave. Or, in the words of s 16 of S I 47 of 1981, he is ‘absent without permission’”.

This position has been consistently followed by this court in the cases of Faith Wazara v City of Harare LC/H/65/15, Dr Sailos Magoni v City of Harare, LC/H/481/2013, City of Harare v Clemence Chigwada LC/H/220/14.

An interesting observation is that all the cases cited involve the City of Harare. This lends weight to the respondent’s submission that this problem is rampant in its organisation.

In the instant case, there is no documentation whatsoever of the appellant’s sick leave, subsequent to 30 March 2008. The fact that the appellant properly went on sick leave up to March 2008, clearly shows that he was aware of the Council’s sick leave regulations and requirements.

The fact that the appellant was allowed to go home and seek counselling at the end of March 2008, cannot justify his absence up to February 2009.

Evidence on record shows that in July 2008, after the appellant had been at home for three months, officials from the respondent came to his residence, and advised he was required back at work. The appellant’s Department had allowed him, albeit irregularly, to stay at home up to June 2008. They marked him sick, without any documentation on file. After that, efforts to get him back to work were unsuccessful. He was thereafter marked absent.

It appears the appellant’s Division bungled, by allowing him to be off sick for three months, without any form of documentation. The Disciplinary Committee noted this irregularity and commented as follows:

“The Committee noted that the Division erred in marking him sick without the submission of appropriate sick leave forms or medical certificates. The department’s witness indicated that they did that on compassionate grounds. Therefore the Committee’s view is that the person who marked him sick for the period 25 January 2008 to 20 June 2008 should be disciplined …

Furthermore, the Committee observed that Gudza acted ultra vires when he allowed Mr Nyahanana to go for counselling without authority from the head of department or Council.”

The respondent condoned the period from March to June 2008, during which the appellant was simply marked sick without any medical documentation. It charged him for the absenteeism from June 2008 to February 2009, a period of eight months. The appellant was reasonably expected to present himself at work. He did not. There is no evidence that he was incapacitated in any way. By his own admission, the counselling sessions were for a duration of one hour per day, up to June 2008. Thereafter, the sessions were held once a week. The appellant submitted no documentation whatsoever, as to the nature of the counselling he was undergoing or showing what he was suffering from, and how it prevented him from performing his duties. He certainly was not undergoing counselling from sunrise to sunset, daily for eight months.

It seems to me the appellant took unscrupulous advantage of the compassion and sympathy extended to him after the tragic accident of 25 January 2008, and stayed away from work for  an inordinately long period. There was no justification for his unusually lengthy absence from work. No medical documents were produced to confirm his inability to attend work. In the circumstances, the appellant’s Disciplinary Committee properly found him guilty of absenting himself from duty without leave or reasonable cause from 20 June 2008 to 20 February 2009.  It also acted within the parameters of the Code in imposing a penalty of dismissal.

Given the facts and circumstances looked at, the arbitrator cannot be faulted for holding that the appellant was properly discharged from employment.

The appeal lacks merit and must be dismissed. It is accordingly ordered that:

The appeal be and is hereby dismissed.

The arbitral award handed down in favour of the respondent on 28 November 2014 be and is hereby upheld.

The appellant shall bear the respondent’s costs.