Christopher Muvhevhi v Nanavac Investments T/A Choppies Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/81/2020
HARARE, 4 DECEMBER 2019
CASE NO. LC/H/167/18
AND 13 MARCH 2020
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/81/2020

HARARE, 4 DECEMBER 2019 				CASE NO. LC/H/167/18

AND 13 MARCH 2020

In the matter between:

CHRISTOPHER MUVHEVHI						APPELLANT

versus

NANAVAC INVESTMENTS T/A

CHOPPIES ZIMBABWE							RESPONDENT

Before The Honourable Makamure J

For the Appellant			Mr T. Zvandasara (Trade Unionist)

For the Respondent			Mr Mpofu (Human Resources Management)

MAKAMURE J:

At the end of the hearing in this matter it became clear that the appellant had no case. An order dismissing the appeal was thereafter made. The following are the reasons.

The facts of this matter which are not disputed are as follows. The appellant was employed by the respondent as a Blockman. He was dismissed from employment for absence from duty for a period of 7 days without reasonable excuse. This was a violation of paragraph 1 of Group IV of the National Employment Council For The Commercial Sectors of Zimbabwe Code of Conduct - NECCS. His appeal to the Local Joint Committee failed and so did the appeal to the Negotiating Committee. He was aggrieved by that decision and has appealed to his court. His grounds of appeal are that:

“1.	Appellant had a valid excuse for absenteeism from work.

2.	The Negotiating Committee erred in interpreting section 18 (1) of Statutory

Instrument 45/93.

3.	The employer was aware of the fact that Appellant had inadequate bus fare to get

to work.

4.	No evidence were (sic) led in the initial hearing before the designated officer that

the appellant had refused to accept an advance salary.

5.	No evidence was proffered by the employer, proving that the appellant was

promoted.”

The appellant initially worked at one of the respondent’s branches in Chitungwiza. He was later transferred to the Warren Park branch of the respondent.  Once at the Warren Park branch, the appellant did not turn up for work demanding that he be paid transport allowance. Section 18 (1) of the applicable Collective Bargaining Agreement [CBA] (Statutory Instrument 45/93) provides that an employee is entitled to “Subsistence, Accommodation and Travel Allowance” in the following circumstances:

“1.	An employee, other than those referred to in subsection (3), who is required to work more than twenty-five Kilometres from his normal place of work, which necessitates his sleeping away from home, shall be paid, in advance, a subsistence allowance approved by the employer in consultation with the employee to provide for :-

(a)	all necessary proved travelling and subsistence expenses;

Or

…”

Part 1 of that same Statutory Instrument provides for minimum wages. Those wages were “inclusive of Housing and Transport Allowances”.

The appellant’s circumstances in performing his duties did not necessitate him to sleep away from home. The wages on the other hand, were inclusive of both housing and transport allowances. This means that he had no entitlement to claim either transport or housing allowance.

As noted earlier on, after his transfer to Warren Park the appellant failed to turn up for duty. His superior called him on 16 August 2017 wanting to know why he had failed to report for duty. He (the appellant) gave his reason as having no transport money. He was offered salary advance. He declined the offer and cited section 18 of the CBA as his reason for refusing the salary advance. In other words, he wanted the employer to pay him travel and subsistence allowance which were not only included in his salary, but which he was not statutorily entitled to. He then received his full salary for August. Even after getting his August salary the appellant continued to absent himself from duty. The appellant was absent from duty from 16 August 2017 to 29 August 2017. He was thereafter suspended and disciplinary proceedings were conducted against him. As already noted he was dismissed. His initial appeal was not successful. He then appealed to the Negotiation Committee. After considering the record and evidence before it, the Negotiating Committee found that the appellant could not rely on section 18 of S.I. 45/93. Further it was also noted that the respondent through its management offered to assist the appellant but he turned down the offer to assist him. In the circumstances the dismissal was upheld.

I now turn to consider the grounds of appeal. The first ground justifies his absenteeism. However, after considering the papers and the relevant statute, the court found that the appellant had no valid reason to be absent from duty. The record is clear on this issue. There is sufficient evidence to show that the appellant had no valid defense to the charges levelled against him. The Negotiating Committee correctly interpreted Section 18 (1) of S. I. 45/93. There is therefore no merit in the second ground. On the 3rd ground, when his employer became aware that he had no money to enable him to travel to work, the employer offered a practical solution. The appellant spurned the offer. The fifth ground of appeal appears to have no relevance to this appeal. What this means is that all the grounds of appeal have no merit. The court therefore finds that there was no misdirection by the Negotiating Committee.

An appeal court can only interfere with an earlier tribunal’s decision where there has been a misdirection in the exercise of that tribunal’s discretion. In Jayesh Shah v Kingdom Merchant Bank Limited SC 4/2017 the Supreme Court stated that:

“This court however, has power to interfere with the exercise of a court a quo’s discretion in appropriate circumstances, as aptly explained as follows in Hebstein and Van Winsen 5th ed,                p 1009;

‘This court on appeal will interfere where the exercise of the discretion has not been proper, or has been based upon a wrong principle, or upon a wrong view of the facts; where the court has purported to exercise its discretion without sufficient legal grounds for doing so…” See also Fraser Muyaka v Bak Logistics (Pvt) Ltd SC 39/2017.

In the present case, I cannot say that the Negotiating Committee failed to properly exercise its discretion. It is clear that the appellant absented himself from duty without reasonable cause. He even rejected management’s offer to assist. He cannot now turn around and say it was wrong for the respondent to discipline him as it did.

It is in view of the above that the order dismissing his appeal was made.