Caven Jena v Innsor Bread Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/117/2013
HARARE, 3 APRIL 2013
CASE NO. LC/H/398A/2011
JUDGMENT NO.LC/H/117/2013
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO.LC/H/117/2013

HARARE, 3 APRIL 2013				CASE NO. LC/H/398A/2011

In the matter between

CAVEN JENA				-		Appellant

And

INNSCOR BREAD COMPANY		-		Respondent

Before The Honourable B.T. Chivizhe: President

For Appellant 	-	Mr C. Jena – In Person

For Respondent	-	Ms S. Njerere – Legal Practitioner

Honey and Blackenberg Legal Practitioners

CHIVIZHE, B.T.:

The Appellant was employed by the Respondent.  He was arraigned before a Disciplinary Committee on the 17th of May, 2011 to face two charges under the relevant Code of Conduct.  He was charged under Section 9.2.4.ii of the Code of Conduct for having absented himself from work without reasonable excuse from 1 to 2 April, 2011 and from 9 to 26 April, 2011.  On the second charge under Section 9.2.4.xvi the Appellant was alleged to have wilfully disobeyed a lawful order by a superior in that when asked to write a report on his absence he had refused to do so.

The Appellant was found guilty on both charges.  The dismissal penalty was consequently imposed with effect from 30th May, 2011.  The Appellant then noted an appeal to the Appeals Committee.  In a letter dated 16 June, 2011 the Appeals Committee handed down its determination upholding the decision of the Disciplinary Committee terminating Appellant’s employment contract with effect from the 30th May, 2011.  The Appellant then lodged the present appeal with this court.

The appeal has been noted on the following grounds of appeal;

“The Doctor’s off sick notes are bonafide see Annexure C.  They must be recognised the Appeals Committee did not take any investigations see my notice.”

The Respondent has taken a point in limine that the Appellant in noting an appeal to the Labour Court is appealing against the decision of the Disciplinary Committee and not the Appeals Committee as provided for under the relevant Code of Conduct.  It is Respondent’s submission that the appeal ought to be dismissed on that basis alone.  The Appellant explained that he intended to appeal against the Appeals Committee and not the Disciplinary Committee.  The Appellant being a self-actor the court condoned the oversight on Appellant’s part.

On the merits the Appellant submitted that having produced the two medical certificates by his private doctor the Disciplinary Committee should have found that he had tendered a reasonable excuse for his absence.  The Respondent’s position is that the Disciplinary and in turn Appeals Committee were both correct in reaching the  conclusion that Appellant wilfully absented himself as he never applied nor was granted sick-leave.

The Labour Act [Cap 28:01] in Section 14 imposes an obligation on the employer to grant sick leave to an employee who is all or injured.  It is however the duty of an employee to apply for sick leave before proceeding on leave.  Such leave is applied for on the basis of a medical certificate signed by a medical practitioner.  The employer will grant sick-leave upon satisfaction that indeed the employee is ill or injured.

In casu the facts clearly show that the Appellant did not seek for sick leave prior to proceeding on leave.  The Appellant only raised the issue of the two medical certificates issued by Doctor Zvichawo when he resumed duties and upon a request by his supervisor to write a report pertaining to his absence.

The two medical certificates were produced before the Disciplinary Committee.  That Committee on the basis of discrepancies in the name and Doctor’s signature doubted the reliability of the medical certificates.  The Committee sought an explanation from Doctor Zvichawo through the company Doctor.  The record shows that when approached by the Company Doctor the doctor was rude and unco-operative.  The company doctor filed a report with the Disciplinary Committee.  The Disciplinary Committee then in view of those discrepancies on the medical certificates and the Appellant’s own conflicting oral submissions came to a conclusion that the Applicant had wilfully absented himself from work.

An examination of the relevant medical certificates shows that the Appellant was granted leave by Doctor Zvichawo from 06/04/11 to 08/04/11 and then from 11/04/2011.  The first certificate shows patient name as ‘Caven Jena’ whilst the second certificate shows the name ‘Caveman Jena’.  The medical certificates do appear to have different signatures.  Apart from these discrepancies noted by the Disciplinary Committee more importantly in my view the medical certificates do not show the nature of the illness.  This is important as it is on this basis an employer can be satisfied that the employee will be unable to perform his duties.  The medical certificates as presented are therefore of little evidential value.  The Disciplinary Committee justifiably doubted their reliability.  When the other factors are also taken into account that the Appellant did not apply for sick leave before proceeding on leave he only produced the medical certificates after being asked for a report I believe the Disciplinary Committee and the Appeals Committee were correct in reaching the conclusion that the Appellant had wilfully absented himself from work.

There is also no doubt that the second charge was also established by Respondent.  When he was asked to write a report by his supervisor the Appellant replied that this was unnecessary in view of the medical certificates submitted by his private doctor.  Such refusal was clearly wilful disobedience to a lawful order given by the employer.  Both charges being very serious in nature, the dismissal penalty was clearly warranted in the circumstances.

The appeal is accordingly dismissed for lack of merit.