Abraham Driver v Edgars Stores Limited

IN THE LABOUR COURT OF ZIMBABWE                JUDGMENT NO. LC/H/348/2013
HELD AT HARARE ON 20 JUNE, 2013                CASE NO. LC/ H/944/2012
In the matter between



ABRAHAM DRIVER                                         –        Appellant
And

EDGARS STORES      LIMITED                             –        Respondent



Before The Honourable E. Makamure, President
For Appellant      - In person
For Respondent     - Mr R. Moyo (Legal Practitioner)




MAKAMURE, E.

      The Appellant was dismissed from the Respondent’s employment for

absence from work for a period in excess of seven (7) days without either

advising the Line Manager or having satisfactory reason. This was a violation of

the applicable Code.



      It is not disputed that the Appellant was absent from work for the period

between 25 October 2008 and 7 November 2008 (thirteen 13) days).



      The Appellant’s internal appeal was dismissed. He appeals to this court

on the basis, that he obtained leave of absence from work from one Z.

Katsande; that there were falsified documents produced by the Respondent in

support of his dismissal and that he was forced to be heard by an improperly

constituted Appeals Committee.
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      The record of proceedings shows at the commencement of the internal

appeal hearing, issue was raised regarding the title of the person chairing that

Appeals Committee. The hearing was adjourned and parties sought direction

form the Registrar of the Labour Court (Registrar). The record shows that after

he had consulted the Registrar the Appellant, freely decided that the matter

should proceed with the committee constituted as it was. The Appellant took

that decision because he wanted the matter to reach finality. The Appellant

made a very pertinent observation regarding the title of the Chairperson. The

observation was that while the official title of the person chairing the committee

had changed and that such change, of title was not reflected in the applicable

Code, the Applicant was of the (correct) view that Chairperson’s duties remained

unchanged. The Appellant committed to writing what he wanted done and this

commitment was stamped by the Registrar of this court (page 44). There after

the appeal hearing proceeded. This means that the ground of appeal on the

composition of the Appeals Committee has no merit. It cannot be sustained.

The record of proceedings shows that the Appellant says he was granted leave

of absence verbally. In his verbal request he does not say how many days he

had requested for. Accepting that at the material time his wife was critically ill,

one would have expected him to state the period he required in order to deal

with that dire situation. That was not done. All there is, is the Appellant coming

back from “leave” intending to apply for “extension” of the leave. Appellant

averred that when he was granted the said leave he was in the company of one

Felix Kasimupfumbi and a Samson Gudoshava.




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      These two witnesses were never mentioned at the internal Appellate

stage. When he was asked for witnesses he called for during the course of the

proceeding he called Mrs Dera and Mrs Jack. He did not make reference to

anybody else being present at the time that he says the said authority was

granted.   He says that the appeal proceedings were concluded late and

therefore he could not have called the two witnesses. He brought the two new

witnesses to court. He says that this is because at the times of the hearings they

were far away. That does not appear to be consistent with the spirit which was

existent during the appeal process then. As indicated earlier on, the Appellate

body was prepared to adjourn at the commencement of the proceedings in

order to ensure that the Appellant’s wishes were met. I do not think that this

committee would have been averse to him calling other witnesses who were

then not present. I am sure the committee would have afforded him time to call

his witnesses. I therefore find that there is no merit in the ground that he was

granted leave by Z.Katsande.      The Appellant has averred that there were

falsified documents crafted against him by the Respondent. He has not proved

the existence of such falsified documents. Thus once again there is no merit in

this ground of appeal.




      It is curious that the Appellant was dismissed in 2008 but he only pursued

the finalization of his dismissal process in 2011, more than two years later. By

his own admission the Appellant obtained employment at a Mine in Zvishavane

for the period May to July 2010.      It is therefore interesting that he later

membered that he had been unlawfully dismissed from Respondent’s

employment. What this appears to be is that the Appellant had the impression

that it would not hurt if he tried his luck with the Labour Court. This therefore

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was simply a fishing expedition. This is unfortunate and unacceptable. This

court deals with serious bread and butter issues. Parties should not simply “try

their luck”. They should leave the court to be used by parties who have genuine

grievances or disputes. I therefore agree with Mr Moyo who appeared on behalf

of the Respondent that this is an abuse of Court process by a person who knows

that he committed a dismissible offence. I am also in respectful agreement with

what the Supreme Court stated in the case of Circle Cement (Private) Limited

vs. Nyawasha 2004 (1) ZLR 243 namely, that – by staying away from work (for

13 days without leave to do so, the Appellant deliberately breached his

contractual obligations. He either had to be at work or be away with leave to do

so.



      It is in view of the above that I find that there is no merit in the appeal.

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


Gill Godlton and Gerrans - Respondent’s Legal Practitioners




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