Chitungwiza Municipality v Ben Dadeya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/806/2014
HARARE, 23 JUNE 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/806/2014

HARARE, 23 JUNE 2014		     	                 	     CASE NO. LC/H/720/13

AND 05 DECEMBER 2014

In the matter between:-

CHITUNGWIZA MUNICIPALITY 			Appellant

And

BEN DADEYA						Respondent

Before Honourable L Hove, Judge

For Appellant	-	Mr. T. Mafongoya (Legal Practitioner)

Respondent	-	In person

HOVE, J:

This is an appeal by the Appellant (the employer) against an arbitral award.

The background to this matter is that the Respondent stopped coming to work in October 2008.  He alleges that he was ill.  He only recovered in February 2009 and that is when he reported for duty.

He was asked by the employer to prove that he had been ill.  When the employer was not satisfied with his explanations they dismissed him for absenteeism.

He reported the matter to the Ministry of Labour and Social Services and the matter went before an arbitrator.

The arbitrator found that the respondent had been unfairly dismissed and ordered his reinstatement.  The employer was aggrieved and brought the dispute to this court.

Respondent’s argument was that he was unfairly dismissed.  He failed to report for duty because he was ill from October 2008 up until February 2009.  He submitted that he was unable to advise his employer as he was mentally ill and presumably unable to advise his employer that he was unwell.  He submitted that he got his first treatment from a traditional healer a Mrs. White after which he travelled to Mozambique for further treatments.

The employer’s position is that the respondent admitted that he was absent from duty for more than five (5) working days.  He also admits that he failed to advise his employer that he was ill and unable to report for duty.  The employer was thus entitled to dismiss him for absenteeism.

The court is of the view that the arbitrator grossly misdirected himself when he decided to dispose of the matter on the basis of procedural irregularities when it is now the accepted position of law that it is undesirable to decide labour disputes on the basis of legal technicalities.  This position was stated in the case of Dalyn Mine v Musa Banda SC 39/99.

The courts further affirmed this position in the case of Chika Mensa v Air Zimbabwe SC 89/04 where the court stated that a person facing allegations of misconduct should only be excused on the basis that he is innocent of the allegations against him, and not on the basis of legal technicalities.

The court is therefore entitled to interfere with the award on the basis that there was gross unreasonableness on the part of the arbitrator.

The merits of the case also show gross unreasonableness. The employee did absent himself without advising his employer from October 2008 to February 2009.

When he returned to work the employer charged him with misconduct on the basis that he had been absent.  He explained that he had been ill and unable to advise his employer.  He produced a letter from a traditional healer, one Mrs. White.  This letter contradicts the employee’s evidence.  In his evidence he says he was first attended to by Mrs. While, a traditional healer before going to Mozambique for further treatment.  Mrs. White’s letter however states that she was treating him from October 2008 to February 2009.  This contradiction makes the respondent’s story unreliable.

The law also provides that where one is ill and unable to attend work, they must apply for sick leave supported by a certificate signed by a registered medical practitioner.  This requirement was not met, no certificate signed by a registered medical doctor was availed to the employer.  Traditional healers are not recognized in terms of law and therefore their letters are not proper and neither do they meet the requirements placed on a sick employee by the governing statutory provisions that is section 14 of the Labour Act [Chapter 28:01].

The respondent failed to comply with the statutory provisions that require the production of a certificate from a Registered Medical Practitioner not even this court has discretion to condone non compliance with statutory provisions.  See in this regard the case of Church of the Province of Central Africa v Doctor Norbert Kunonga & Reverend Munyani SC 7/08.

The employer was therefore well within its rights in finding the respondent guilty and exercising its discretion to dismiss the Respondent from employment.  The appeal must accordingly be upheld.

I therefore make the following order:

The appeal is upheld.

The employer’s decision to dismiss the appellant is upheld.

MATSIKIDZE & MUCHECHE, Appellant’s legal practitioners