Mary Musindo v Zimbabwe Platinum Mines (Private) Limited

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/…./23
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IN THE LABOUR COURT OF ZIMBABWE  			JUDGMENT NO.LC/H/…./23

HELD AT HARARE27 MARCH 2023 AND			CASE NOLC/H/47/23

…APRIL 2023

In the Matter between

MARY MUSINDO					APPELLANT

And

ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED	RESPONDENT

BEFORE HONOURABLE MAKAMURE J

For the Appellant	: Mr W.Kamusasa (Legal Practitioner)

For the Respondent	: Mr A.K.Maguchu(Legal Practitioner)

MAKAMURE J.

The appellant was employed by the respondent company as a miner surveyor. She was charged with acts of misconduct. Disciplinary proceedings were  conducted against her . She found guilty. She was penalized with dismissal. Her appeal internally failed.

Aggrieved by that outcome, she noted the present appeal. The following are the grounds of appeal and I quote:

‘1.The Appeals Hearing Committee erred at law and fell into error by upholding the finding of the Disciplinary Committee  that the Appellant was guilty of the charges levelled against her of being absent from work without official leave when it was admitted in evidence that she was denied entry into the workplace by the Respondent without a vaccination certificate or a PCR test when she had presented herself for work.

2. The Appeals Hearing committee further grossly erred in fact by upholding the finding by the Disciplinary Committee that the Appellant was guilty of the offence charged when she had proffered a reasonable excuse for not being at work.

3.The Appeals committee further erred by upholding the finding of the Disciplinary committee that the Appellant was guilty when it was clear that she had been misled by her supervisor that vaccination was voluntary and had opted not to get vaccinated and proffered her reasons for refusing the vaccine but yet denied entry into the workplace.

4.The Appeals Hearing Committee erred at law and fell into error in failing to appreciate that the charges levelled against the appellant were trumped up and malicious and were intended to victimize and discriminate her because she had refused to get vaccinated; a choice she is allowed to make in terms of the Constitution of Zimbabwe.

5. The Appeals Committee erred and misdirected itself in confirming the appellant’ conviction in circumstances where the mental element of the offence in question was not satisfied.

6.The Appeals committee erred at law by upholding the Disciplinary committee’s stiff penalty of dismissal without proper considerations to the submissions made in mitigation that warranted a less drastic penalty.

7. The appeal proceedings were grossly irregular and were not in accordance with the principles of natural justice and fairness in that;

a) The Appeal panel ganged up against the Appellant and subjected her to unnecessary aggressive cross-examination.

b) The Hearing official abdicated his role of being an impartial adjudicator and took up the double role of being both an adjudicator and an employer’s representative/complainant. ‘

The facts of the case are largely common cause. .They are as follows.

The appellant was employed as a mine surveyor by the respondent. She had two babies within a short space time. The babies were born through operation-Caeserian section. She was able to take maternity leave with respect to the first of the two babies. Due to the closeness of the period of the births, she could not take maternity leave when she had the second of the two babies. She therefore went on unpaid maternity leave. After the expiry of the unpaid maternity leave, she took sick leave from 12th August 2021 to 15th September 2021 because she was still unwell. On 16th September 2021 she reported for work. When she so reported for work she was  required to produce proof of vaccination against  COVID-19 or  a PCR test. The appellant at the material time was not vaccinated neither did she have a PCR certificate. As a result of her failure to comply with the entry requirements, she was denied entry into the workplace.

The explanation for her failure to be compliant was that she had not been paid her August salary  and this was compounded by having been on unpaid maternity leave. She could therefore not afford to pay for the PCR test and further she could not be vaccinated because she was a nursing mother.

After having been denied entry into the workplace she went home. Thereafter she did not report for duty from that day , 16th September 2021 till 23rd September 2021.The respondent took the position that this conduct amounted to a breach of provisions of the employment code. It was as a result of this absence from duty that she was charged with absenteeism. Disciplinary proceedings were conducted against her. She was found guilty and was penalized with dismissal.

Preliminary Issue

At the commencement of the proceedings before this Court, a preliminary issue was raised on behalf of the  respondent. The issues is that the 7th ground of appeal is not one for appeal but review. It was argued that the appellant ought to have filed a review application in terms of R19(3)  of the Rules of this Court S.I.150 of 2017 ( the Rules). It was submitted that the appellant failed to comply with the Rules .For that reason it was submitted on behalf of the respondent that the ground must be struck out or dismissed on the merits. The Court was referred to authority. The following are some of the cases relied upon by Mr  Maguchu:Gazi v National Railways of Zimbabwe SC60/15;Chikanda v UTC SC7/99 ;ZFC v Geza 1998 (1)ZLR 137 (S),

In response it was submitted on behalf of the appellant that where a litigant  is alleging that  the dismissal was both substantively and procedurally  unfair  it was proper to traverse both substantive and procedural issues on appeal. In support of this submission the following  are some of the cases that were relied on by the appellant t:Musandekwa v Green Motor Services (Private ) Limited SC30/15; Dalny Mine v Banda 1999 (1) ZLR 220 (S).

Analysis

The Labour Act Chapter 28:01 ( the Act) provides for both appeal and review before this Court.S92EE of the Act provides for review while s98 provides for appeal. The Rules of this Court SI 150/2017 sets out two separate and distinct procedures for each of the processes. Even different forms are prescribed. What this means is that the Legislature anticipated that parties would be aggrieved and such grief may result in either review or an appeal being noted .In its wisdom the Legislature, not only provided for this in the Act but proceeded to promulgate rules for each of those processes. It is therefore incumbent upon litigants to ensure that the appropriate rules are always used. Admittedly, there are some issues which can be procedural and at the same time be appealable. Even under such circumstances the appropriate rules must be complied with. The observance of rules is paramount to the efficient determination of issues. In Simon Gazi v national Railways of Zimbabwe SC 60/15 the Supreme Court stated that:

‘	Firstly, labour matters are civil in nature and while the same standards of procedural stringency as are required in ordinary civil matters may not always apply, I do not believe those standards are necessarily ousted merely on the basis that the matter at hand is a labour dispute…

…

It is in my view necessary in this respect to remind parties in labour disputes that it is important to show respect for laid down formalities in the adjudication of disputes that concern them.  Showing disdain for such formalities and later expecting the court to turn a blind eye to such conduct, in my view smacks of double standards and a lack of seriousness on the part of the litigant concerned.’

I respectfully associate with above remarks . I hold the view that ground 7 is a ground for review and cannot be considered on the present appeal. The 7th ground of appeal is accordingly struck out.

MERITS

The sum total of all the grounds of appeal is whether or not the appellant  had a reasonable excuse for absence from duty after she had been denied entry for the reason of her  non-compliance with the company’s requirements for COVID-19.The facts are clear.

Mr Kamusasa tried strenuously to urge the Court to consider the appellant’s financial situation and that she could not afford to pay for the PCR test. Mr Kamusasa submitted that there were no mala fides on the part of the appellant when she did not turn up for work and that the appellant had no previous disciplinary record.

In response Mr Maguchu confirmed what is not disputed and then pointed out that after the appellant had gone home because she was non compliant with the company ‘s COVID -19 requirements, she had an obligation to communicate with the employer about her absence or whereabouts.  Mr Maguchu argued that the employer had a doctor who could have attended to the appellant for free. Further considering that she had no money she could have borrowed some funds from the employer to enable her to meet the set requirements.When she was asked about this possibility during the course of the hearing she said  she ‘never thought of it’.  Under the circumstances Mr Maguchu submitted that she had no reasonable excuse to be absent from duty.The case of Mwanyisa v Minister of Finance SC 6/02 to bolster the submission that absence from work without communicating with the employer was a misconduct. Mr Maguchu submitted that there was no misdirection on the part  of the lower tribunal. On the question of penalty Mr Maguchu submitted that the misconduct went to the root of the contract of employment. Some of the other  cases relied on, on behalf of the respondent include Stringer v Minister of Health and Child Care & Anor HH259/20;Eskom Holdings Soc Ltd v CCMA ZALCJHB 11/18; Chioza v Siziba SC4/15; City of Harare v Zimucha 1995(1) ZLR 285 (S).

In reply Mr Kamusasa argued that if one looks at the totality of the appellants’s conduct, there was no willfulness to be absent from work. Mr Kamusasa emphasized the failure by the Appeals Committee to consider the mitigatory features which would have resulted in a penalty less than dismissal.

Analysis

As noted earlier the facts are common cause .The appellant  was away for five days without communicating with her employer about the reason or reasons for her absence.  All the submissions which were made on  behalf of the appellant are mitigatory in nature .No defence has been proffered . Had she for instance advised her employer that she had no money to pay for the necessary PCR test or tests, the situation would have ended up differently. Further there were medical facilities which she could have sought advice from through the tollfree number. This would have gone to show her attempts to communicate her employer about the situation that she was in.  In Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 (S) the Supreme Court held that failure to communicate with the employer during an employee’s absence may result in the repudiation of the contract of employment. In Ajasi Wala v Freda Rebecca Mine SC56/16 the Supreme Court stated that where a misconduct went to the root of the employment contract it had the effect of eroding the employment relationship between the parties. In City of Harare v Zimucha 1995(1) ZLR 285 (S)an employee was sick, he did not apply for sick leave, he did not attend a medical board when asked to do so. That employee was found to have been absent without leave.

In the present case, while the appellant may have been of ill health due to childbirth and could therefore not have the vaccination for COVID -19 , she needed to communicate this to her employer. Equally if she could not afford to pay for a PCR test, she should have notified her employer. Being of ill health and being unable to pay for medical expenses is unpalatable. However ,this has to be communicated to the employer in order for the employer to know the reason or reasons for the employee’s absence from work.

In conclusion therefore no reasonable excuse for absence from work has been proffered on behalf of the appellant. She was therefore absent from work without excuse. In the result there is no merit in all the grounds of appeal. There is therefore no merit in the appeal. There was no misdirection or error on the part of the lower tribunal. There is no reason to interfere with it. The appeal fails.

Consequently ,it is ordered that:

The appeal be and is hereby dismissed.

Kamusasa & Musendo, Applicant’s Legal Practitioners.

Maguchu & Muchada,  Respondent’s Legal Practitioners.