Claris Madzinga v OK Zimbabwe Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/627/2013
HELD IN HARARE, NOVEMBER 12, 2013
CASE NO. LC/H/455/2013
And 31 JANUARY, 2014
JUDGMENT NO. LC/H/627/2013
---------




IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/627/2013

HELD IN HARARE, NOVEMBER 12, 2013		CASE NO. LC/H/455/2013

And 31st JANUARY, 2014

In the Matter Between

CLARIS MADZINGA						APPELLANT

And

OK ZIMBABWE LIMITED					RESPONDENT

Before The Honourable E. Makamure : Judge

For The Appellant 	:	Mr T. Marimo (Trade Unionist)

For The Respondent	:	Mrs R.T.L. Matsika (Legal Practitioner)

MAKAMURE, J.

This is an appeal against a decision by the Chief Designated Agent for the National Employment Council for Commercial Sectors (NECCS) confirming the dismissal of the appellant from the respondent’s employ.  It is common cause that the appellant fell ill while she was under the respondent’s employ.  She consulted her doctor who recommended that “she needs work that does not require sitting all the time …”.The employer then ordered her to work as a till operator saying that the (her) doctor did not preclude her from working on a till operator.  The appellant refused to sign acknowledgment of receipt of the letter from employer assigning her he said duties which dated 20 January 2012 (page 68).  The appellant was not prepared to consult the respondent company’s doctor.  Her doctor therefore asked respondent’s in house doctor to write him (appellant’s doctor) so that the appellant’s matter/illness could be discussed by the two doctors.  Respondent’s doctor did not write the appellant’s doctor.

What is of concern however, is that the appellant was observed sitting for long periods at other stations other than till points.  This seemed to indicate that she was in fact able to perform work as a till operator.  Besides I believe that in that position of till operator she could reasonably find periods which she could rise to her feet.  She refused to perform the till operator duties on the strength of her doctor’s recommendation although her own conduct seriously betrayed her.  She was recorded on the respondent’s CCTV during certain periods and this only shows that she could perform the duties in question.  What is interesting is that during the course of disciplinary proceedings at the workplace the respondent wanted to play the clips as proof that the appellant would sit next to till operators and chat with them and even disrupt them while they were doing their work.  The appellant through her representative denied the disciplinary committee an opportunity to view the clips in question, suggesting that the committee should concentrate on the question of “resisting to follow instructions.”(p43a – 43b)  I view such refusal as ill-advised because one can easily draw an adverse inference that if the appellant was not prepared to have the clips viewed she had something to hide.

The Negotiating Committee found that the appellant refused to obey a lawful order without valid excuse, a lawful order given by a person in authority whilst she was sitting on a live Final Written Warning for a similar offence.  The appellant has challenged the validity of the existence of a valid Final Written Warning.  The reason was that such warning never existed because prior to the proceedings leading to the disciplinary hearing no disciplinary proceedings had been held against the appellant.  Further the appellant asserts that the charge she was convicted of did not attract the penalty of dismissal upon first breach.  The record shows that the internal proceedings may have not been entirely flawless.  This is said because on 29 May 2012 the Area Operations Manager did not find sufficient evidence against the appellant and referred the matter back for a re-hearing.  On 01 June 2012 she was charged with refusing to follow instructions.  On 16 June 2012, a hearing was held and she was found guilty and she was dismissed on the basis of committing the same offence during the existence of a Final Written Warning for a similar offence.

I have considered the record and the submissions.  I have also considered the Designated Agent’s determination.  I am grateful for the appellant’s representative and the respondent’s Legal Practitioner for argument and authorities cited therein.  What I find interesting is the argument that respondent ought to have granted the appellant sick leave in terms of Section 14(1) and 14(2) of the Labour Act Chapter 28:01 (The Act).  Section 14 of The Act obliges the employee to request for sick leave.  The Act does not direct an employer to force an employee to apply for sick leave.  The appellant is very aware of her rights.  It was because of that awareness that she refused to see the company doctor.  She should have exercised her rights and applied for sick leave in terms of The Act.

The conduct by the appellant in refusing to perform till operating duties in my view is wilful disobedience to a lawful order given by a person in authority as envisaged in Matereke v C.T. Bowring and Associates (Pvt) Ltd 1987 (1) ZLR 206(SC).

On the question of dismissal, the Supreme Court has emphasised that it is the employer’s discretion to dismiss an employee (See Circle Cement Pvt Ltd v Nyawasha SC 60/03).

While the appellant may have reservations about the Final Written Warning, the records show its existence.  Further even if the Final Written Warning were to be invalidated, the appellant’s refusal to have certain information undergo the scrutiny of the disciplinary committee against her favour.  In the result the grounds of appeal have no merit.

Accordingly, it is ordered that the appeal be and is hereby dismissed with costs.

ZIBAWU, Representatives for the Appellant.

Wintertons Legal Practitioners for the Respondent.