Dr Sailous Majoni v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/431/2013
HARARE, 18 JUNE 2013 &
CASE NO. LC/H/932/2012
13TH SEPTEMBER 2013
JUDGMENT NO LC/H/431/2013
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/431/2013

HARARE, 18 JUNE 2013 &			   CASE NO. LC/H/932/2012

13TH SEPTEMBER 2013

DR SAILOUS MAJONI					Appellant

Versus

CITY OF HARARE					Respondent

Before The Honourable L Hove		: Judge

For Appellant	:	L Seremayi (Workers Union)

For Respondent	:	Ms A Zvoutete (Principal Legal Officer)

HOVE L:

The appellant is alleged to have stopped reporting for duty sometime in 2008. The employer then stopped paying the appellant’s salary because he was not reporting for duty.

The employer further alleges that the appellant obtained alternative employment and was working full time at Dr Sailous Majoni Surgery in Harare.

The appellant is not very clear in his explanations as to his whereabouts in 2008 when it is alleged he stopped coming to work. He is not consistent in his explanations. Before the arbitrator, he admitted that he stopped coming to work in December 2008 as he had no means to report for work and to look after his family.

It was however submitted on his behalf that the salary was stopped for no reason in 2008. This is obviously not a truthful statement since the appellant knew that his salary had been stopped as he was not reporting for duty.

The employer initiated some disciplinary proceedings but abandoned them and never called the appellant for a hearing.

The appellant alleges that the employer never terminated his contract of employment and it must be ordered to either proceed to finalize the disciplinary proceedings and lawfully terminate his contract of employment or alternatively re-instate him with no loss of salary or benefits.

The employer’s contention is that there was no need to proceed with the disciplinary proceedings since the appellant had repudiated his contract of employment when he left his work in 2008 and started working for the surgery in town.

The law is very clear, an employee who has not been dismissed must continue to hold himself available for employment with his employer. In this case, the appellant not only stopped reporting for work but sought and obtained alternative employment.

He argues that every employee of the respondent has a surgery. This is not relevant to his own case for it matters not for an employee who is facing allegations to argue that other employees may be guilty of the same act of misconduct. It does not make him less guilty of the charge of abandoning his own post and finding alternative employment if others also did the same.

The appellant does not deny that he was employed in his surgery, that he stopped coming to work. His excuse that he had no salary to enable him to continue reporting for duty cannot assist him. If he had a grievance, he ought to have followed correct procedures as pointed out by the arbitrator instead of just absconding from his job. In any case the fact that he admits that he stopped coming to work and was engaged elsewhere shows that he conducted himself in such a manner as to indicate to any reasonable person that he had repudiated his contract of employment.

In the case of Maguchu v Lever Brothers SC 78/02 the court held that:

“The Law enunciated in this case is to the effect that if an employee finds alternative employment on a permanent basis he/she repudiates his contract of employment.”

Again, in the case of Lee Group of Companies v Ann Clare Elder SC 6/05 GWAUNZA JA found that:

“The respondent had repudiated her contract of employment on the day she packed her belongings and left her office and therefore rendered it unnecessary for the appellant to dismiss her as she had resigned.”

This appeal is therefore one devoid of merit and a clear wasting of the court’s time.

I accordingly dismiss it with costs on the ordinary scale.

L HOVE

Judge – Labour Court

Harare Municipal Workers Union, for the appellant

City of Harare Legal Division, for the respondent