City of Harare v Clemence Chigwada

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/220/14
HELD AT HARARE 25TH MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/220/14

HELD AT HARARE 25TH MARCH 2014			CASE NO LC/H/07/13

& 11TH  APRIL 2014

CITY OF HARARE					Appellant

CLEMENCE CHIGWADA				Respondent

Before The Honourable G Musariri, Judge

For Appellant		Ms A Zvoutete, Officer

For Respondent		Mr L Seremani, Unionist

MUSARIRI, G:

On 22nd November 2012 the Honourable G Nasho Wilson made an arbitration award.  In terms thereof he ordered Appellant to reinstate Respondent in its employ or pay him damages in lieu of reinstatement.  Appellant then appealed to this Court  against the award.  Respondent opposed the appeal.

The sole ground of appeal of appeal read as follows,

“The Arbitrator erred at law in holding that the Respondent was unlawfully dismissed yet the Respondent had not complied with the requirements of the Labour Act and the Collective Bargaining Agreement: Harare Municipal Undertaking (Leave Agreement) (Statutory Instrument 390 of 1992).”

Appellant employed Respondent as a Stockman at Pension Farm in Harare .It is common cause that Respondent absented himself from duty during the period 18th December 2008 and 28th July 2009.  The period amounts to over seven (7) months.  He was charged with misconduct for his absence.  He was found guilty and then dismissed from employment.  He appealed to the relevant employment council which referred the matter to arbitration.  The aforesaid arbitrator ruled in favour of Respondent.

The applicable Code of Conduct is incorporated in the Statutory Instrument 17/07 hereafter called the Code.  Part IV of the Code defines the offence in paragraph 1.1 thus,

“Absenteeism: in this context means absence from work without permission or without reasonable excuse.”

(The underlining for emphasis is mine)

Appellant denied giving Respondent permission to absent himself from work.  It therefore followed that Respondent had the evidentiary burden to prove a lawful excuse for his absence.  In this endeavour Respondent produced leave forms and a note from his doctor.  The leave form stated that Appellant would be absent for an indefinite period due to arthritis.  This  was signed by a Dr R.T. Munyoro and supported a note from the same doctor dated

9th September 2012.  On that basis Respondent averred that he had a reasonable excuse for his absence.

Appellant challenged the authenticity of the documents relied on by Respondent.  It stated that the documents were not submitted timeously as required by the leave regulations.  Neither were the leave forms recommended and approved by Appellant’s supervisor and Head Of Department respectively.  The leave form has spaces for the endorsement of the recommendation and approval.   The spaces were left blank.  Respondent’s explanation was that he could not travel so he sent his brother-in-law with the forms.  The brother was unavailable to say to who  or in which office he left the forms.  However at the hearing Respondent claimed that on the day of his first absence he travelled from work to Waterfalls by public transport.  This suggests that he was not bed-ridden.  He might not have been able to work but could have gone to his supervisor to notify him of his situation.  More importantly he should have followed up to ensure that his application for leave had been granted.  There is no evidence of any follow up.  In the circumstances I am persuaded by Appellant’s submission that the documents relied on were concocted in order to create a bogus defence.  This conclusion is consonant with the case of

Harare City v Zimucha 1995 (1) ZLR 285 (S) where at p 291A, McNally JA (as he then was), stated that,

“Sickness per se does not entitled an employee to stay away from work and continue to draw his salary.  It entitles him to apply for sick leave (or annual leave).  But if he does not apply for sick leave, and obtain it, he is simply absent without leave.”

(The underlining for emphasis is mine.)

Wherefore it is ordered that,

The appeal is hereby allowed; and

The arbitration award made by the Honourable G.N. Wilson dated

22nd November 2012 is set aside.

G. MUSARIRI

J U D G E