Tichaona Majuru v ZB Financial Holdings Limited

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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/33/24
HELD AT HARARE 9TH JANUARY 2024
CASE NO LC/H/722/23 AND
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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/33/24 HELD AT HARARE 9TH JANUARY 2024	CASE NO LC/H/722/23 AND

…

In the matter between

TICHAONA MAJURU	APPELLANT

And

ZB FINANCIAL HOLDINGS LIMITED	RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE

FOR THE APPELLANT: MR S. CHAKO (LEGAL PRACTITIONER)

FOR THE RESPONDENT: MR T.K.MUDZIMBASEKWA (LEGAL PRACTITIONER)

MAKAMURE J:This is an appeal against the appellant’s dismissal from respondent’s employ. The following are the grounds of appeal and I quote:

‘1. The appeals authority erred at law in making a finding that the Appellant was guilty of failing to obey an order on the 8th November 2021 when allegations against the appellant on the first charge was that Appellant disobeyed an order issued on the 29th October 2021.

The appeals authority erred at law in failing to make a finding that the charge of willful disobedience to a lawful order was unsustainable to the extent the Appellant had actually complied with the order given on the 29th October 2021 requesting him to supply a note prepared either by the company doctor or a doctor of his own choice.

The appeals authority erred at law in failing to make a finding that the charge of absence from work without leave or just cause was unsustainable to the extent it was proved that the Appellant ‘s absence from work was with a justifiable cause.

The appeals authority erred on the facts and at law in upholding a dismissal penalty when the alleged acts of misconduct were not caused deliberately thereby warranting a lesser penalty than dismissal.’

The appellant was charged with two offences in terms of the National Code of Conduct

,Statutory Instrument 15 of 2006 (S.I.15/06). He was charged with (i) violation of S4(b) of

15/06 – Willful disobedience to a lawful order and (ii) violation of S4(e ) S.I. 15/06- Absence from work for a period of five (5) or more working days without reasonable cause in a year. The following are the circumstances leading to the charges and subsequent disciplinary proceedings against the appellant.

It appears not to be in dispute that the appellant was not in good health. He was not working from the workplace. It appears he was working from his home. On 29th October 2021 the respondent through the appellant’s immediate superior wrote the appellant an email asking him to visit a doctor along the following lines:

‘Dear Tichaona

I hereby instruct you to visit our Company Doctor-Musuka or your personal doctor and bring us a Doctor’s note on the status of your fitness for duty. May I have this note by Wednesday 3November 2021. Failure to do so by the said date will leave us with no choice but to initiate a contract termination based on contract repudiation.

You may contact my office for any clarity if need be . Reference to correspondence below may be helpful.’(Emphasis added)

The above letter seems to indicate that this was not the first time that parties had communicated. This is in view of there being reference to other correspondence which might have been useful to the appellant. The appellant chose as he was entitled to do, to see his personal doctor. The doctor thereafter wrote the following note.

‘Re Tichaona Majuru

I first saw the above mentioned in 2020 and I have been one of his GPs since then.

He suffers from multiple ailments associated with allergies and hyposensitivity and irritable Bowel Syndrome .’

Currently he has headache swollen legs and feet and abdominal pains. Thank you for considering him and allowing to work from home.’

The doctor did not comment on the appellant’s fitness to work from home. From what is on record the appellant had an option to take sick leave but he did not exercise that option.

The above note is dated 4th November 2021. It therefore reached the respondent after the deadline of 3rd November 2021. There was no explanation attached to the late submission even though it was only a day late. On 17th November 2021 the respondent wrote the appellant advising him of its intention to take disciplinary action against him. In that minute mention was made of a booking having been made for the appellant to see the Company Doctor for a further assessment of his health .Reference was then made to the choice which the appellant made that is to see his personal doctor and that the said personal doctor did not address the respondent’s concerns. In that same correspondence was reference to the appellant having been instructed to report for duty at the respondent’s Rotten Row Offices by the 3rd of November but that the appellant had failed to do so. The appellant was in that same correspondence charged with the two offences referred to above.

When the disciplinary proceedings were conducted, the appellant was given a chance to respond, he did not indicate whether he was denying the charges or accepting the. He started off by giving long narrations which referred to correspondence between him and the respondent. What comes out of his narrations  is summed in part of his response:

’ If you ask for my personal take on your fit for work question, I will tell you that yes, I am indeed fit for work, I have always been fit for work and I have always done my work to the best of my ability even under challenging circumstances…’

In other words, he took it upon himself to make the assessment which only a doctor could make. He was not well . A doctor ‘s note was required by the respondent for purposes of establishing whether or not the appellant was fit for work. The note from the appellant’s personal doctor did not comment on that. Had the Company Doctor been visited he may have come up with a different view. This is said in view of the fact that a booking had been

made for the appellant to see a specialist but the appellant did not keep the appointment. All this meant that while the appellant remained working from home as he chose to, the

respondent wanted the appellant to work from its offices. What this means is that the appellant did not justify his absence from work. It needed a medical person to give a professional opinion on whether or not the appellant was fit for work. The appellant spurned the respondent’s efforts to have this done professionally so that a way forward could be charted for both parties.

The appellant having taken the view that he was not well and had allergies which could be triggered if he visited the offices ,decided to work from home without the authority of the respondent. This was without official proof of what exactly triggered the allergic reactions he was suffering from. The appellant performed his personal chores cautiously but he did not want to extent his caution to the workplace. Had there been no arrangements made by the respondent to try and establish the nature of his illness it would have been unfair of the respondent to order appellant to report for work when it was unsafe for him to do so.

During the course of the disciplinary proceedings the appellant told the hearing that he failed to keep the appointment made on his behalf by the respondent due to medical problems and not that he refused to attend. He also said that he did not physically visit his doctor but that he sent images of his condition to the doctor and in turn the doctor wrote the note. It was pointed out that he sometime in October (?2021) the appellant had gone out to have his mobile phone fixed. He responded by saying that he had no option but to find means and go and get assistance to get his phone fixed. I am sure had the appellant been serious with his job he would have found means to get examined in order to have his medical condition assessed.

Despite him failing to attend the Company Doctor’s appointment he had this to say as, part of his closing submissions:

P52/58 ‘7. I have constantly and continually pleaded with my superiors to be allowed , to continue working remotely on medical grounds. As the working in environment adversely affects me (sic) .’ and at page 53/58 in justifying his absence from work he stated that :’1. My employer has instructed me to resume working from the office against medical recommendations from my doctor who recommended that I work from home due to the severity of my allergies and hypersensitivity…I have informed my superiors about it but they have since disregarded it and insisted that I resume working from the same environment which not only caused  but also exacerbate my allergic  reactions as exposure turns to cause

in debilitating and crippling discomfort in the short term…’

There is no doubt that the appellant was not well. He however should have complied with the instruction to get medically examined as requested by his employer instead of assessing himself and thereafter work from home on the basis of his own assessment. This resulted in the two charges which he was convicted of. When he appealed internally the appeals authority dismissed the appeal. On the charge of willful disobedience to a lawful order the appeals authority noted that the appellant disregarded the instruction to go and be examined by the Company Doctor so that the triggers to his allergic reactions could be established and this was at respondent’s expense. This was against evidence led against him that he at times performed errands away from his house so failure to go and see the Company Doctor could not be attributed to allergic reactions , it was a failure to obey a lawful order. With respect to the charge of absence from work for a period of five or more days without  leave or

reasonable excuse the appeals authority found that on the basis that the appellant had failed to report for duty by the deadline of 3rd November 2021without specifying the allergies that made him fail to work from the office there was no reasonable excuse for his absence. The appeals authority found that the appellant had not visited the office for two years. In the result the appeals authority upheld the findings of the lower tribunal.

When parties appeared before this Court Mr Chako who appeared on behalf of the appellant , in addition to abiding by the papers filed of record, highlighted the dates on which the appellant is said to have been give the instruction. He argued that the dates which appear in the charge sheet are at variance with what actually took place. He therefore submitted that under the circumstances the charge of willful disobedience to a lawful order is not sustainable under the circumstances. On the charge of absence from work without leave or reasonable excuse it was argued that the appellant was not well. For that reason, there was a reasonable excuse for his absence from work.

On the other hand, Mr Mudzimbasekwa who appeared on behalf of the respondent argued that the appellant’s doctor ‘s failure to comment on the appellant’s fitness for duty was critical. The status of the appellant’s fitness for duty is what the respondent required. The appellant’s own doctor’s note lacked in that regard. On the question of the doctor’s

appointment made on behalf of the appellant it was clear from the papers that the appellant was expected to see the company doctor on the 8th of November and not that charges were levelled against him on that date. On the charge of absence from duty Mr Mudzimbasekwa argued that it is not disputed that the appellant was not well. However, he failed to apply for sick leave. While the appellant was unwilling to take sick leave , he was also unwilling to

work from the office. Mr Mudzimbasekwa submitted that the appellant ‘wanted to have his cake and eat it ‘ so to speak. He could not have it both ways. It was submitted on behalf of

the respondent that under the circumstances appellant’s absence from work became unreasonable . As regards the issue of the dates when the appellant was charged and when he was expected tom see the Company Doctor, Mr Mudzimbasekwa submitted that there was no confusion at all and that the these were clear and no new charges were created. In reply Mr Chako insisted that there was confusion as to when the appellant was charged and therefore the appeals authority created new charges for the appellant which is not acceptable.

Counsel for the appellant referred to case authorities which included Hama v National Railways of Zimbabwe 1996(1) ZLR 664 (S); Shuro v Chiuraise & Another 20/19; ZB Bank v Maria Masunda SC 48/13; Gunduza vTM Supermarkets LC/H 08/05.

Counsel for the respondent referred the Court to authorities which included NEC Catering Industry v Kundeya & Ors SC 35-16;Girjac Services (Pvt ) Ltd v Mudzingwa	S 41/99.

The Court is grateful for the authorities cited.

In Servcor (Private ) Limited v Tarisai Muchenjeri SC 74/17 the Supreme Court in considering the question of willful disobedience of a lawful order quoted with approval the case of ZCTU v Makonese 2005 (1) 430 (S) and listed the following as the elements of a lawful order :

It is given by an employer

It is capable of being carried out by the employee

It is for the advancement of the employer’s business

It is closely related to the duties of that employee ;and

It is not a wrongful act.

In Matereke v CT Bowring & Associates ( Private) Limited 1987 (1) ZLR 206 (S) (Matereke) the Supreme Court held that in willful disobedience to a lawful order there must be firstly, a deliberate and serious refusal to obey the order given and secondly , the disobedience must not be trivial. I believe that the appellant refused to obey a lawful order and such refusal was deliberate as envisaged in the Matereke case.

In Girjac Services (Private ) Limited v Munyaradzi Mudzingwa SC 41/99 the Supreme Court held that :

‘A distinction must be drawn between absenteeism due to illness or some other form of incapacity, and willful abscondment. In the former situation the employer cannot ex eo cancel the contract. Incapacity is not a breach of contract... Non-performance by the employee of his duties entitles for an unreasonable time justifies the employer in refusing to perform his part of the contract and in considering his obligations at an end. The crucial question of what is reasonable in such cases depends on the

circumstances of the surrounding circumstances.’

In the circumstances of the present case the appellant absented himself from work where the employer was trying to ensure that the cause of the illness which he said was causing him to be away from workplace was established. The appellant had also failed to use the option of taking sick leave. I therefore agree with Mr Mudzimbasekwa that in the circumstances of the present case the appellant’s absence from work became unreasonable.

Having considered the papers and argument, the first ground of appeal seeks to confuse the dates. What is important is that the appellant on 29th October 2021was given an order which he did not obey .The record is clear and cures any doubt of when the order was given. It is also clear from the appellant’s own testimony that he was supposed to go for a specialist appointment on the 8th of November 2021 but he did not do so. On the second ground the appellant produced his personal doctor’s note which was dated 4th November 2021 when such note was required by the 3rd November 2021. What was critical was that the doctor’s note in question did not comply with the requirement set by the respondent. On third ground of appeal, while it is common cause that the appellant was unwell, he needed either to take sick leave or to bring a doctor’s note establishing his fitness to work. He did neither. His personal doctor ‘s note did not specifically answer the question of the appellant’s fitness to be at work. The applicant had therefore no justifiable cause to be absent from work. On the fourth ground of appeal, the question of what the appropriate penalty is, is the province of the employer. In Circle Cement (Pvt) Ltd v Chipo Nyawasha SC 60/03 the Supreme Court held that once an employer had taken a serious view of a misconduct committed by an employee to the extend that it considered it to be a repudiation of contract which it accepted by dismissing the employee from employment , the question of a penalty less severe than dismissal being available for consideration unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee would not arise. In the present case it has not been established that the employer acted unreasonably by

imposing the dismissal penalty as it did. This means that there is no reason for this Court to interfere with discretion of the employer.

In view of the foregoing I find that there is no merit in all the grounds of appeal. The appeal must be dismissed.

Accordingly , it is ordered  that the appeal be and is hereby dismissed with costs.

CHITURUMANI LAW CHAMBERS, APPELLANT’S LEGAL PRACTITIONERS. SAWYER & MKUSHI, RESPONDENT’S LEGAL PRACTITIONERS.