Reuben Mwakasa v Great Zimbabwe University

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/MS/15/13
MASVINGO, 11 JULY 2013
CASE NO.
JUDGMENT LC/MS/15/13
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT LC/MS/15/13

MASVINGO, 11 JULY 2013				CASE NO. LC/MS/10/10

In the matter between:

REUBEN MWAKASA				-		Appellant

And

GREAT ZIMBABWE UNIVERSITY		-		Respondent

Before the Honourable President, E.F. Ndewere

For Appellant:		-	Mr W. Makumire (Para- Legal Officer)

For Respondent:		-	Ms W. Chirongoma (Legal Practitioner)

NDEWERE E.F

The Appellant was employed by the Respondent on a fixed term contract from 28 July, 2009 to end of June, 2010.  The Appellant then absented himself from duty without leave from 21 September, 2009 to 16 October, 2009.  This was during examination time when he should have been part of the invigilating team and when he should have been present when students wrote his examination paper.

On 12 November, 2009, the Appellant appeared before the University’s Disciplinary Committee to answer charges of absenteeism.  He denied being absent during the three and a half week period cited above, he said he was absent just on one day, on 22 September, 2009, when he went to register at National University of Science and Technology (NUST), returning the same day.  He claimed ignorance of the University’s Regulations on leave formalities, invigilating and the need for one’s presence when one’s examination paper is being written.  He alleged he was never inducted in order to familiarize with the University’s practices.  He named witnesses, whom he said could confirm that he was present at Great Zimbabwe University at all times, except on 22 September, 2009.

The Disciplinary Committee disbelieved the Appellant.  They found him guilty of absenteeism and made recommendations to the Vice- Chancellor in terms of Section 26 of the Masvingo State University Act Chapter 25:24.  On 17 December, 2009 the University terminated the contract of employment with effect from 31 December, 2009.

The Appellant appealed against the termination and the case was referred to an Arbitrator by a Labour Officer when conciliation failed.  The Arbitrator upheld the dismissal.  The Appellant has now appealed to the Labour Court against the dismissal.  His grounds of appeal were as follows:

That the arbitrator grossly misdirected herself when she labored under the misapprehension as to what factors constituted a dismissible offence of absenteeism under the national employment code.

The arbitrator blew both hot and cold when she accepts that the absenteeism was backed by a reasonable cause while on the other hand she turns a blind eye to this essential element and continues to find the appellant guilty.

The arbitrator’s analysis of evidence and conclusion is self-defeating in so far as she agrees that the studies to which the appellant had gone to attend were crucial to him and the students but then goes on to make a finding that the appellant’s absence was without reasonable cause.

The arbitrator’s finding of guilty on the part of the appellant was largely influenced by extraneous matters.  She failed to focus on the facts and what was supposed to be proved in support of the offence.

Additionally and alternatively, even if the arbitrator had made a proper finding of guilty, this is a case where the weight of the offence diminishes in light of the reason that the absenteeism was for a reasonable cause.  Such a fact should have been treated as extenuating circumstances.

WHEREFORE, it is respectfully submitted that this appeal be allowed and that the court sets aside the award and substitute it with a more competent order.

In his heads of Arguments, the Appellant initially challenged the constitution of the Disciplinary Committee, alleging that it was not properly constituted.  He later abandoned his argument and rightly so, in view of the provisions of Section 26 (3) of the Masvingo State University Act, Chapter 25:24 on quorum.

During the appeal hearing, the summary of the Appellant’s argument was that he was absent for a “reasonable cause” because he needed to complete his Masters degree for the betterment of his work as a lecturer.  Consequently, he argued his contract should have been allowed to run its full course, up to June, 2010.

The Court observed that the Appellant was now admitting being absent, but alleging that his Head of Department, Mr J. Bemani, had authorized him to go to NUST and had told him to finish all his work and then request his colleagues to stand in for him and invigilate on his behalf in his absence.  Given this new submission, the Court, in terms of Rule 26 of the Labour Court Rules, allowed the Appellant to give evidence on this issue.  Thereafter, the Court allowed the Respondent to lead evidence from Mr Bemani in rebuttal.

There was more clarity to the Court after evidence was led.  Mr Bemani’s evidence was that indeed, he was the Appellant’s Head of Department and he never authorized Appellant’s absence.  He said he did not even know that the Appellant was absent until he got a phone call after it was found that the Appellant, who should have been invigilating an examination, was not in the examination room.  He rang the Appellant on his cell phone and that is when the Appellant advised him that he was at NUST.  He said alternative arrangements had to be done swiftly to ensure that the students’ examination was not aborted.  He said he was part of the Disciplinary committee and the minutes which the Court was furnished with were a true record of what transpired.  He confirmed that during the hearing the appellant denied ever being absent except on 22 September, 2009 when he went to register.

The Court found Mr Bemani to be a good and credible witness.  He gave his evidence convincingly and the Court found no reason for him to lie against the Appellant.  On the other hand, the Court found the appellant to be unreliable.  On 12 November, 2009 he told the Disciplinary Committee that he was never absent during the 3½ week period; he only went to register on 22 September, returning the same day.  In his submissions to the arbitrator and the Labour Court he admitted being absent, but said it was for a reasonable cause.  During the Labour Court appeal hearing, he changed and said he was authorized by his Head of Department, leaving the Court with no option but to lead evidence on that issue.  So clearly, the Appellant cannot be trusted.  The Court therefore accepts Mr Bemani’s evidence as the correct factual position; that the Appellant was absent for three and a half weeks without leave or reasonable cause.  The Appellant knew he was required at NUST.  He should have applied for leave.  The Clause ‘reasonable cause’ is meant to cover employees who are faced with sudden emergencies and are unable to apply for leave while at the same time the emergency they find themselves in make it impossible for them to report for duty.  Such employees are the ones who are covered by “reasonable cause”, not an employee who knows he is required elsewhere, knows the leave requirements, but chooses to absent himself without applying for leave.  Even when there is reasonable cause, the period specified is 5 days, yet in this instance the Appellant was absent for 3½ weeks.

The court notes that this was during examination time and that the University almost got into a crisis because of the appellant’s absence.

Consequently, the appeal is dismissed and the Arbitrator’s award is hereby confirmed.  Each party will pay its own costs.

ZIMBABWE CONGRESS OF TRADE UNION	-	APPELLANT’S REPRESENTANTIVE

CHIHAMBAKWE, MAKONESE AND NCUBE	-	RESPONDENT’S LEGAL PRACTITIONERS