Johannes Philimon v (Employer not named in judgment)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/709/16
HARARE, 18 OCTOBER 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE  	     JUDGMENT NO. LC/H/709/16

HARARE, 18 OCTOBER 2016			        	     CASE NO. LC/H/650/14

AND 4 NOVEMBER 2016

In the matter between:-

JOHANNES PHILIMON				Appellant

The appeal was referred to me for determination on the record in terms of Section 89 (2)(a)(i) of the Labour Act [Cap 28 : 01].  The appeal was filed in 2014 but has been lying idle due to a failure on Appellant’s part to settle sheriff’s costs for services of Notice of Set-Down.  Through a directive issued on 3rd October, 2016 the Senior Judge directed the referral of all such matters for determination on the record.   I proceed to determine the matter.

The appeal was noted as against an arbitral award handed down by the Honourable Musoniwa on the 5th of June, 2014  the operative part of which reads as follows:

“Award

Mr Philimon Johane’s dismissal be and is hereby upheld as he absented himself from work by not doing the work expected of him all in the quest of a demand for a transfer letter.

The claims for the underpayments fall away as the employee did not have a promotion letter or a valid contract of employment entitling him to earn on (SIC) more salary than that he was ordinarily paid.”

The background facts to the matter according to the record of proceedings were that the Appellant was employed as Data Capture Clerk.  He was dismissed from employment with effect from 24th May, 2013 following a conviction on a charge of Absenteeism from work for five (5) or more days without reasonable excuse or authority.  Successive appeals to the internal appellant bodies were unsuccessful.  The Appellant referred two claims of unfair dismissal and alleged non-payment of entitlements and underpayment of wages to the conciliator.  When conciliation failed the dispute was referred to arbitration.  At arbitration the terms of reference were for the Arbitrator to determine whether based on the evidence Appellant had been fairly dismissed and to determine the appropriate remedy.

The Appellant before the Arbitrator was claiming that he had been promoted to the post of Assistant Reduction Officer.  He was also disputing that he had ever absented himself from work and that even if he had absented himself the Respondent on its part took 14 days to institute the disciplinary proceedings. The Appellant was also claiming underpayment on the post of Assistant Reduction Officer.

The Respondent in its submissions disputed that Appellant had been promoted to the post of Assistant Reduction Officer in the absence of evidence such as the promotion letter.  The Respondent confirmed that Appellant had indeed absented himself from work from the 16th February 2013 to 21st February 2013 a period which is dismissible under the relevant Code of Conduct.

The Arbitrator in his findings concluded that in the absence of any evidence of promotion the Appellant’s claim of promotion to the post of Assistant Reduction Officer earning USD $400.00 could not be sustained.  In regards the charge of absenteeism he found that Appellant did absent himself from duty by reason of failure to carry out duties on the basis that he was demanding from the Human Resources Manager a transfer letter.  The Arbitrator found that it was unreasonable for the Appellant to refuse to carry out his duties on those grounds.  Instead Appellant ought to have carried out his duties first and demand for the letter after so carrying out his duties.  On the basis of these conclusions the Arbitrator dismissed Appellant’s claims and handed down an award in the terms referred to supra.

The Appellant in his appeal seeks to have the award set aside on the basis of the following grounds:

I, respectfully submit that the Honourable Arbitrator erred when he concluded that Appellant was rightfully dismissed on allegation of absent from work for 5 consecutive days.

I further submit that the Honourable arbitrator failed to appreciate that the code of conduct on S.I. 165 of 1992 Part C No. 6f indicates that absent from work for more than 5 days without a reasonable excuse Appellant and Respondent had a few misunderstanding which needed to be resolved.

I also submit that the Honourable Arbitrator failed to appreciate that day the said days of absents.  I was fully paid my salaries.

It is further submitted that the Arbitrator failed to appreciate that the differences between the two parties are not irreparable see – Ronald Godide vs Zimplates’ case accordingly respondent is not accommodative. Appellant had a genuine excuse that was not put into consideration there is no evidence that their relation is irreparable (see case No. LC/H/247/2010 judgment No. LC/H/12/2011 in the matter between Ronald Godide and Zimplats where the learned judge President L. Hove said on Page 2, there is nothing to suggest that appellant had been counselled in the past and displayed an “I don’t care attitude” Nothing on record also shown that we cannot be trusted the fact in casu do not show that the appellant had sown he could not be rehabilitated” the where the Honourable Court said.

It is further submitted that the Honourable Arbitrator erred at law when he failed to realize that I had a contract with Respondent Originally I was employed as a Data Capture Clerk (grade g) and later upgraded to grade 13 (assistant reduction officer).

The Honourable Arbitrator failed at law to implement clause 12 of the Labour Relations Act Chapter 28:01.

“every person who is employed by or working for any other person receiving or entitled to receive any remuneration in respect of such employment or work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.”

The Respondent is opposed to the appeal on the following basis:

That the Arbitrator was correct in justifying dismissal of Appellant after he absented himself from work for 5 consecutive days without justification; secondly that the absenteeism was unlawful and as it was unjustified regardless of the dispute alleged by Appellant; thirdly the Arbitrator was correct in finding that absenteeism of Appellant was unlawful despite allegations that Appellant had been paid; finally that the Arbitrator was correct in upholding absenting himself from work.

The appeal placed before me is clearly devoid of merit.

Firstly the grounds of appeal articulated by the Appellant do not raise questions of law.  In terms of Section 98(10) of the Labour Act [Cap 28 : 01] an appeal on a question  of law shall lie to the  Labour Court from any decision of an Arbitrator appointed in terms of that section.  The term question of law has itself been defined, in several cases including Muzuva vs United Bottlers (Pvt) Ltd 1994(1) ZLR 217(5) at 220 D-F, National Foods Limited vs Stewart Magadza SC 10/95 and  Reserve Bank of Zimbabwe vs Granger & Another SC 34/2001.  The Appellant in his grounds has taken issue with factual findings made by the Arbitrator regarding whether or not he was absent from work for 5 consecutive days.  On the basis of authorities cited above factual findings can only constitute misdirection at law if a gross misdirection is apparent.  The appeal clearly falls foul of Section 98(10) of the Labour Act.  I shall however for completeness proceed to address the grounds of appeal seriatim.

In the first ground the Appellant attacks the findings made that he was properly dismissed on a charge of absenteeism. The Appellant before the Arbitrator did concede to the fact of his absenteeism. The Arbitrator found that it was an undisputed fact that Appellant absented himself for the period 16th to 21st February 2013.  The finding was properly made in the circumstances. Appellant has not laid any clear basis for altering the findings made.

In his second ground Appellant argues that the Arbitrator failed to consider that there was a dispute between the parties which justified Appellant’s absenteeism.  The Arbitrator in his award found that even if there was a dispute Appellant was still obliged to carry out his duties as an employee. If indeed the Appellant had any dispute with his employer that dispute would have been reserved utilising other procedures grievances handing procedures. The finding by the Arbitrator was very correct and cannot therefore be interfered with.

The fact that Appellant had been paid for the days in which he was absent is the subject of Appellant’s third ground.  That ground is also meritless.  The fact that he was paid is neither here nor there. The Arbitrator had to satisfy himself that the Appellant had indeed absented himself for 5 days or more in order for the charge to be established before him. On the basis of the facts and the evidence placed before him, he did find correctly that Appellant had absented himself for the said period.

In the fifth ground Appellant argues that the Arbitrator ought to have realised that there was a contractual relationship between the parties.  The ground is not clear as to what Appellant wants to say.  The Arbitrator however was correct in upholding the dismissal of Appellant for breaching his contractual relationship with the Respondent when he absented himself from work for 5 consecutive days without lawful cause or justification.

In the last ground the Appellant seems to suggest that evidence in the form of pay slips and a memorandum was placed before the Arbitrator to show that he was promoted to the position of Assistant Reduction Officer.  The Arbitrator dismissed the Appellant’s claim of promotion on the basis of lack of evidence.  The Appellant clearly is seeking to introduce new evidence in these proceedings. It is however trite position at law that an appeal is based on the record of proceedings in the hearing a quo.  No evidence having been tendered before the Arbitrator Appellant cannot seek to introduce new evidence. The ground is completely devoid of merit.

In the result the appeal should be dismissed in its entirety with no order as to costs.

It is so ordered.