Simbarashe Madzinga v The Secretary for The Public Service Commission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/384/2014
HARARE, 29 MAY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/384/2014

HARARE, 29 MAY 2014 &				  CASE NO LC/H/779/2012

4TH JULY 2014

In the matter between:

SIMBARASHE MADZINGA					          APPELLANT

Versus

THE SECRETARY FOR THE PUBLIC SERVICE			RESPONDENT

COMMISSION

Before The Honourable F C Maxwell	:	Judge

For the Appellant		A Matanhike   (Trade Unionist)

For the Respondent	S Chihuri	  (Law Officer)

MAXWELL J:

This is an appeal against the dismissal of the appellant in terms of section 63 (e) of the Public Services Regulations, 2000, as amended. The appellant failed to resume duty after the expiry of his suspension on 29 June 2011 and was absent from duty for a continuous period in excess of thirty days. Section 63 (e) of the Public Service Regulations, 2000, allows the Commission or head of Ministry to discharge from the Public Service any member who:

“has been absent from duty for a continuous period in excess of thirty days without having been granted leave of absence.”

The appellant challenges the dismissal on the basis that he was not given a chance to be heard in accordance with the audi alteram partem rule. He submitted that the disciplinary procedures set out in sections 42 and 46 of the Public Service Regulations, 2000, were not followed.

The appellant’s position is similar to the case of Maxwell Mwanyisa v The Minister of Finance & Ors SC-6-02. In that case the appellant’s counsel submitted that the discharge was wrongful and irregular because he had not been given an opportunity to respond to the charges of misconduct. He submitted that the audi alteram partem principle was not observed. The Supreme Court agreed with the learned judge a quo that:

“… ordinarily, where an employee is charged with misconduct, he must be afforded an opportunity to respond to the charge against him. It is different, however, where the employee had deliberately absented himself from his work place for an unreasonably lengthy period. In Girjac Services (Pvt) Ltd v Mudzingwa SC-41-99 the court considered the case where an employee had failed to present himself at his workplace. … In that case it was held that by staying away from work for seventeen days the employee had repudiated his contract of employment.”

It follows therefore that the appellant in this case repudiated his contract of employment. The respondent was justified in acting in terms of section 63 ( e) of the Public Service Regulations. The appeal therefore cannot succeed.

Accordingly I find that the appeal has no merit. Consequently I order that it be and is hereby dismissed with costs.

Attorney General’’s Office Civil Division, respondent’s legal practitioners