Chishamiso Kisi v Nemchem International

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/367/16
HELD AT HARARE 19 MAY 2016
CASE NO
JUDGMENT NO LC/H/367/16
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/367/16

HELD AT HARARE 19 MAY 2016				CASE NO LC/H/937/15

& 10 JUNE 2016

In the matter between:

CHISHAMISO KISI					Appellant

And

NEMCHEM INTERNATIONAL				Respondent

Before The Honourable E Muchawa, Judge

For Appellant 			Mr Mufanebadza (Trade Unionist)

with Mr Fumai

For Respondent		Mr N Mahori (Legal Practitioner)

MUCHAWA, J:

This is an appeal against a determination of the Negotiating Committee of the National Employment Council for the Commercial Sectors.

The appellant was employed by the respondent was a cleaner and was seconded to the service contract between the respondent and Arundel Pick and Pay.  Appellant was granted sick leave for 14 days from 6 February 2015 and was expected back at work on 21 February 2015.

Instead of reporting at her work station at Arundel Pick and Pay, on 21 February 2015, the appellant attended at respondent’s head office and lodged a request for a transfer citing that her workstation was too far from her home and she was incurring huge transport costs.  Appellant was advised to report back at work pending the consideration of her request which would be considered in 3 days’ time when the responsible person was available.

The appellant did not report for duty as advised, on that date and for the next two days leading to the respondent’s client lodging a complaint and threatening to cancel the service contract.

Charges of sabotage were preferred against the appellant in terms of Part (iv), Group (IV) paragraph 9 offences of the National Employment Council for the Commercial Sectors of Zimbabwe Code of Conduct (the Code of Conduct).  Appellant was dismissed after a disciplinary hearing.  Appeals to the Local Joint Committee and the Negotiating Committee were both unsuccessful hence this appeal.

On appeal before me the single issue for determination is whether or not the appellant was properly found guilty of sabotage, in the circumstances, though four grounds of appeal are raised.

I deal with this issue below

Whether or not the appellant was properly found guilty of sabotage

The appellant’s case is that she merely absented herself from work and this does not amount to sabotage but should have been considered as absenteeism.  It is further argued that the appellant did not interrupt services necessary to the operations of the respondent’s business.

In the appellant’s opinion, withdrawal of services is when an employee starts work and then withdraws services thereafter and does not apply to an instance where an employee totally absents oneself and does not start the duties at all.  It was argued that this is why the legislature distinguished between absenteeism and an act of sabotage.

The respondent counter argued through its Mr Mahori that sabotage is a competent charge.  My attention was drawn to the responsibilities of the appellant in the service contract with respondent’s client.  The appellant was said to be the very instrument through which the contract of service was performed.  Emphasis was placed on the fact that the appellant’s sick leave had expired and she was given an order to report for work which she did not heed and her failure to advise any superior of her inability to report for work.

I agree with the approach taken by the respondent in resolving this issue.  Reliance is placed on the case of Taruvinga v CIMAS SC 19/2005 in how to deal with the offence of sabotage.  GWAUNZA JA in looking at this very same Code of Conduct in relation to an employee who had absented himself for about four hours, held that one need not look at the dictionary or ordinary meaning of sabotage but the definition in the Code.

The Code of Conduct defines sabotage as

“any wilful act by an employee to interfere with then normal operations of the employer’s business by damaging any plant, machinery, equipment, raw materials or products or by interrupting any supplies of power, fuel, materials or services necessary to the operations.”

By absenting herself from work not only for a few hours as in the Taruvinga case supra, but for 3 full days, when appellant was supposed to be at work, the appellant withdrew a service necessary to the smooth operations of respondent’s business.

In the case of Speciss College v Chiriseri & Ors SC 2/2013 it was discussed that sabotage in its ordinary meaning can mean the withdrawal of labour with the intention of forcing the employer to comply with the employee’s demand.  In casu the appellant had put in a request for a transfer and had initially refused to leave the office.  When she left she withdrew her labour for 3 days.

In the circumstances therefore, the appellant was properly found guilty of the offence of sabotage.

Accordingly the appeal is dismissed for lack of merit.

Machinga & Partners,  respondent’s legal practitioners