City of Harare v Simba Hlomayi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/636/16
HELD AT HARARE 15 JUNE 2016
CASE NO
JUDGMENT NO LC/H/636/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/636/16

HELD AT HARARE 15 JUNE 2016				CASE NO LC/H/204/15

& 21 OCTOBER 2016

In the matter between:

CITY OF HARARE 					 Appellant

And

SIMBA HLOMAYI					Respondent

Before The Honourable Manyangadze, J

For appellant		Ms A Zvoutete  (Principal Legal Officer)

For Respondent		T Shadreck (Trade Unionist)

MANYANGADZE J:

This is an appeal against an arbitral award handed down on 26 January 2015 in terms of which the appellant was ordered to reinstate the respondent or pay him damages in lieu of reinstatement.

The facts of the matter are largely common cause.  The respondent was employed by the appellant as a medic.  In 2009, he was granted official leave, from August to December.  He was required to resume duty on 6 December 2009.

The respondent travelled to Kenya on 4 December 2009.  He only presented himself on 19 January 2010, when misconduct charges had been preferred against him, for being absent from work without authority.

The misconduct charges were framed as follows;

“It has been brought to my attention that you have contravened Clause 1.1 of Part IV of the (Code of Conduct and Grievance Handling Procedure) Collective Bargaining Agreement:  Harare Municipal Undertaking (Statutory Instrument 17 of 2007) in that:

You have not been reporting for duty without leave or reasonable excuse from 6 December 2009 to this day.”

The appellant’s Disciplinary Committee found the respondent guilty as charged, and imposed a penalty of dismissal.  The respondent referred the matter to a labour officer, alleging unfair dismissal.  The matter ended up at arbitration, resulting in the contested arbitral award.

The grounds of appeal against the arbitral award are stated as follows;

“1.	The honourable arbitrator erred at law in holding that it was permissible at law for the respondent to absent himself at work for ten (10) days.  This is inconsistent with the appellant’s Collective Bargaining Agreement: Harare Municipal Undertaking (S.I. of 2007).

The honourable arbitrator erred at law in holding that an employee can proceed to be on sick leave without first applying and obtaining it.

The honourable arbitrator erred in reinstating the respondent when she had made a finding that the respondent was absent without leave.

The honourable arbitrator’s award is so unreasonable and outrageous in its defiance of logic, especially considering that the arbitrator delved into issues that were never raised or referred by the parties before her.”

At the hearing of the matter, the respondent raised a point in limine, to the effect that the dispute was prescribed.

The respondent argued that since the matter went to conciliation in 2013, when the cause of action arose in 2010, it was prescribed.

This is a point that should not detain the court at all.  The factual background to the matter, which is not disputed, is that the matter first went to conciliation in 2011, after which disciplinary proceedings were reinstituted.  The misconduct allegations were the same.  What led to fresh disciplinary proceedings was that the respondent’s suspension was found to be irregular.

Given this background, where conciliation was done within one year from date misconduct allegations were preferred, I do not see how prescription arises.  The disciplinary processes of 2011, concerning the same dispute, cannot be disregarded in the computation of the two year period specified in Section 94 (1) of the Act.  This was clearly a continuing dispute in terms of Section 92 (2) of the Act.

The point in limine has no merit and is accordingly dismissed.

On the merits, it is not disputed that respondent was not at work during the period indicated i.e. 6 December 2009 to 19 January 2010.  His official leave expired on 05 December 2009.  He had not been granted leave beyond 5 December 2009.

With all the pertinent basic facts not in dispute, the sole issue for determination is whether or not the appellant had reasonable excuse for his absence.

The explanation proffered by the respondent for his unsanctioned absence from work is that he was not feeling well, and had travelled to Kenya for medical treatment.  He averred that his absenteeism was not wilful, but was due to illness.  In this regard, he referred the court to the case of Girjac Services Pvt Ltd v Mudzingwa SC 41/99, where GUBBAY CJ stated;

“a distinction must be drawn between absenteeism due to illness or some other form of incapacity and wilful abscondment.  In the former situation the employer cannot ex eo cancel the contract.  Incapacity is not a breach of contract.  Nonetheless, the fact that the employee is incapacitated by a cause beyond his control.. does not deprive the employer of the right to terminate the contract where the absence was unreasonable.  The crucial question of what is reasonable in such cases depends on the surrounding circumstances.”

In response to this averment, appellant urged the court to take note of its sick leave regulations, which the respondent did not comply with.  This position is stated in paragraph 19 of the appellant heads of arguments:

“The conduct by the respondent was in contravention of respondent sick leave regulations Collective Bargaining Agreement: Harare Municipal Undertaking (Leave Agreement) S.I. 390 of 1992.

Section 20 (1) And (2) of the Collective Bargaining Agreement: Harare Municipal Undertaking (Leave Agreement) S.I. 390 of 1992 provide that:

“(1) An employee who is absent from duty because he is ill shall take steps to notify the head of department or cause his head of department to be notified of such illness and the probable duration thereof.

(2) … an employee who is absent from duty because he is ill should submit to his head of department-

a)	within 7 days from the first day of his absence a certificate of sickness in a form approved by the employer.

b)	thereafter at such intervals as his head of department may require interim certificate of sickness in a form approved by the employer.

No sick leave shall be granted by the head of department concerned unless

The certificate referred in paragraph (a) and the certificate referred to in

paragraph (b) if applicable has been submitted. (emphasis added is mine)

The appellant further urged the court to adopt the approach laid down by the Supreme Court in City of Harare v Zimucha 1995 (1) ZLR 285.  The appellant submitted in paragraph 22 to 23 of its heads of arguments;

“In the case of City of Harare v Zimucha 1995 (10 ZLR 285 (S) an employee had argued that he had a valid reason for being absent in that he was sick.  MCNALLY JA stated on p 290 and 291:

“However attractive that reasoning may sound, it does not stand to analysis, ‘valid reason’ means a reason which is lawful in terms of the contract.  Sickness per se doe 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 … he is absent without permission.”

Therefore in the present case, respondent ought to have applied for sick leave so that his absence from work is lawful.  Respondent failed to do that and in line with the Supreme Court reasoning in the above cited case, his absence was unlawful or without permission.  He did not comply with the formalities hence he had no reasonable cause to be away from work.”

The respondent has not explained why he did not obtain sick leave, or seek to extend his official leave before his departure for Kenya.  There is no evidence to show that he was in any manner disabled from doing so.  He was not bedridden.  Even if he was bedridden, his spouse or other next of kin could have gone to the employer to explain his situation.  Preparation for a trip abroad takes considerable time and effort.  There is a lot of running around to obtain air tickets and visas.  The respondent and his relatives managed to do all this running around, to make the trip a success.  It is curious that the efforts did not include seeking clearance from the employer.  It cannot be reasonably argued that the same running around could not be done in obtaining the necessary authority from the employer.  The person travelling abroad was employed, and certainly needed clearance from the authorities who employed him.  There is no reason why that was not done.

The respondent attempted to distinguish his case from that of Zimucha, supra.  His explanation, in paragraph 25 of his heads of arguments, is difficult to appreciate.  It is an incomprehensible exercise in semantics, wherein he states;

“It is with respect submitted that the present case can be safely distinguished with the Zimucha case.  The code which was in place in the Zimucha case provided for a ‘valid reason’ whereas in the present case the Code provides a ‘reasonable’ excuse.  It stands to reason that an excuse for being absent be reasonable without necessarily being valid.  Therefore the case of Zimucha if this honourable court is to follow it, it must be done with caution also having regard to the fact that the period of absenteeism in question is manifestly different from the one in the Zimucha case a circumstance which the court considered in dismissing the employee.

The distinction he seeks to draw between a “valid reason” and “reasonable excuse” is difficult to comprehend.

With respect, the arbitrator’s approach to the matter is also difficult to follow.  She appears to have placed undue, if not unnecessary, emphasis on the duration of the absenteeism.  Initially, it had been alleged that the respondent absented himself from work from 6 December 2009 to 4 June 2010.  According to the arbitrator, it was later conceded that the absence was in fact from 6 December 2009 to 19 January 2010.

Whether the absence was as initially averred, or subsequently conceded, it was absence from work without lawful authority all the same. The arbitrator remarked, at page 8 of her award;

“The committee simply believed that the claimant was absent for days which were twenty times more than 5 days.  Literally translated the Disciplinary Committee believed that the claimant was absent without reasonable excuse for a period of 100 days.  This tribunal agrees with the claimant that such an error is a fatal error and any decision based on a difference of ninety (90) days (three months) as compare to ten (10) days would not be reasonable.”

As already indicated, nothing prevented the respondent from seeking an extension of his leave, beyond 5 December 2009, prior to his departure for Kenya.  Such a journey was obviously not arranged overnight.  He must have known well before his date of departure, 4 December 2009, that he would be travelling abroad, and that this trip was being undertaken when his leave would have expired.  He did everything else to facilitate the trip, except obtain authority from his employer.

In the circumstances I am of the considered view that the appeal has merit and must be upheld.

It is accordingly ordered that;

The appeal be and is hereby allowed.

The arbitral award granted in favour of the respondent on 26 January 2015 be and is hereby set aside.

Each party bears its own costs.