Antony Gomo v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/669/2016
HARARE, 12 SEPTEMBER 2016 &
CASE NO LC/H/APP/1294/2015
21 OCTOBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/669/2016

HARARE, 12 SEPTEMBER 2016 &		CASE NO LC/H/APP/1294/2015

21 OCTOBER 2016

In the matter between

ANTONY GOMO							APPLICANT

Versus

CITY OF HARARE							RESPONDENT

Before the Honourable Muchawa J

For the Applicant	Miss L Shambamuto (Legal Practitioner)

For the Respondent     C Kwaramba (Legal Practitioner)

MUCHAWA J:

This is an application for leave to appeal against my judgment to the Supreme Court.

In that judgment, I found that the applicant who had been absent from work from 14 January 2009 to 23 February 2009 had been absent without leave and reasonable excuse.

It is common cause that the applicant was indeed absent from work as alleged and that he had not applied for any leave of absence and no such leave had therefore been granted.

The issue which I determined was whether or not the applicant had a reasonable excuse for his absence. I found that the applicant had no reasonable excuse for being absent. This was for the following reasons:

That the applicant who alleged he was sick had not applied for and been granted sick leave as set out in the relevant Collective Bargaining Agreement, SI 390 of 1992.

That the applicant was not bed ridden at the relevant time and in fact travelled to South Africa on 12 January 2009, a day before the expiry of his sick leave yet he did not bother to apply for sick leave. During this period, the applicant attended to obtaining SAQA in order for his qualification to be assessed and recognized in South Africa.

The proposed grounds of appeal before the Supreme Court are as follows:

The court a quo grossly erred at law in failing to realize that the charge was one for absenting oneself from duty without leave or reasonable excuse, and therefore it was a competent and complete defence to the charge for the appellant to prove as he did that he had a reasonable excuse for not reporting for duty.

The court a quo grossly erred at law in failing to make a finding that the appellant was unfairly dismissed as the appellant had a reasonable excuse for his absence from work.

I was referred to the case of Pichanick N O v Paterson 1993 (2) ZLR 163 (H) as to the factors to be considered in considering whether or not to grant an application for leave to appeal. In casu it was argued that the question of prospects of success is the deciding factor.  	It was argued for the applicant that he has great prospects of success as he had a reasonable excuse for not attending duty. It was contended that there is a difference between a charge which merely penalizes absence from duty without leave and one which gives an alternative that such absence is with or without reasonable excuse.

The applicant relies on cases from the Supreme Court. One such case is that of Circle Cement (Pvt) Ltd v Chipo Nyawasha SC 60-03.

In that case a managerial employee had been offered a place to study at the University of Zimbabwe for 18 months and started attending the course for 19 days without having applied for and been granted leave. She was found guilty of being absent from work for five or more working days without the employer’s permission or without a reasonable excuse. The Supreme Court considered the applicant’s conditions of service and concluded that there was no provision therein for an employee to go for studies without leave and that she had acted deliberately in breaching her contractual obligation to be at her workplace at the time in issue.

I do not see how this case assists the applicant in proving that he has prospects of success on appeal. Rather it supports the approach taken by this court.

The other case relied on is that of Cotton Company of Zimbabwe v Muchirahondo SC 94-02. In this case the court was dealing with a charge of absence from work without leave for five days or more under the Cottco Code of Conduct. The departmental hearing embarked on establishing whether or not Muchirahondo had been absent without reasonable excuse. The Supreme Court found that the charge was one of absence without leave. It was not absence without leave or reasonable excuse. Because of the distinction in the charges in the Cotton Company of Zimbabwe and the matter in casu, this case too does not assist the applicant.

I am convinced by the respondent that the applicant is merely trying his luck. On the facts which are common cause, the court did not err.

As to the question of whether or not the applicant had a reasonable excuse, the court relied on the Supreme Court judgment of City of Harare v Zimucha 1995 (1) ZLR 285 which dealt with similar facts. The Supreme Court is unlikely to vacate its position. Rather that is the same position followed in the Circle Cement supra matter.

Accordingly it is my finding that there are no prospects of success on appeal. This application is dismissed with costs.

Matsikidze & Mucheche, applicant’s legal practitioners

Mbidzo Muchadehama & Makoni, respondent’s legal practitioners