City of Harare v Jerry Karichi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/452/16
HELD AT HARARE 15 JUNE 2016
CASE NO
JUDGMENT NO LC/H/452/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/452/16

HELD AT HARARE 15 JUNE 2016				CASE NO LC/H/1144/15

& 22 JULY 2016

In the matter between:

CITY OF HARARE				Appellant

And

JERRY KARICHI				Respondent

Before The Honourable Murasi, J

For Appellant			Ms A Zvoutete (Legal Officer)

For Respondent		Ms T J Magaya (legal Practitioner)

MURASI J:

This is an appeal against the decision of an arbitrator.  The facts in this matter are largely common cause.  Respondent was employed by appellant in the Highways and Works Department.  Following his absence from duty, respondent was charged with absenteeism from work.  He was brought before a Disciplinary Committee which convicted him and recommended his dismissal.  The matter ended up in arbitration and the arbitrator found in favour of the respondent.  Appellant has appealed to this court.

It is appellant’s case that the arbitrator erred in making the finding that appellant was not entitled to find the respondent guilty and subsequently dismissing him from employment.  Appellant argued that respondent had not provided any evidence to show that he had been ill for the period extending from 5 September 2013 to 10 September 2013.  It was stated that the decision of the Disciplinary Committee to find the respondent guilty was correct.

Respondent’s counsel stated that she abided by the documents filed of record.  It was submitted that the decision of the arbitrator could not be faulted as the respondent had been ill during the period in question and that the medical cards produced showed that respondent had indeed been ill.  It was further submitted that respondent’s wife had assisted him to seek medical attention after her arrival on 10 September 2013 and that when he reported for duty on 14 September 2013 he was informed that he would be able to submit the medical reports during his misconduct hearing.  It was argued that the appellant had not given the respondent the opportunity to present the evidence that he was ill.

At the commencement of the proceedings Ms Zvoutete informed the court that she was seeking to amend a wrongly cited Statutory Instrument.  This amendment was to substitute “Statutory Instrument 390 of 1992” with “Statutory Instrument 135 of 2012.”  Ms Magaya did not oppose the amendment as it was indeed the same legislation which had been updated.  Ms Zvoutete further informed the court that she was withdrawing ground of appeal (a) and (c) (i).  The withdrawal of those grounds of appeal were viewed by the court as being commendable in light of the substance they purported to raise.  The grounds of appeal had alleged that the arbitrator had “grossly misconducted himself in the proceedings.”  It was clear that the appellant would have had a mammoth task in demonstrating that this indeed had happened.

It is pertinent to consider the findings of the arbitrator in order to determine whether there was a misdirection.  It should be clear that the respondent was found guilty of absenteeism from 5 September 2013.  The arbitrator’s findings are as follows:

“The medical cards presented by claimant confirm that he was receiving treatment for chest pains, ratchets of the back and cough and was given time off to enable him to rest.  The leave days granted to claimant by the doctor is in line with section 14 (1) of the Labour Act [Chapter 28:01] which states that “sick leave shall be granted in terms of this section to an employee who is prevented from attending his duties due to illness or injured or undergoes medical treatment which was not occasioned by his failure to take reasonable precautions.

It is a fact that the medical doctor is the only person empowered by the Labour Act to grand? sick leave to an employee after conducting medical examination.  It is not disputed that claimant did visit a medical facility on September 2013 and granted 3 days to rest.  It is noted that section 14 of the Labour Act further state(s) that special leave on full pay not exceeding twelve days in a calendar year shall be granted by an employer to an employee who fall sick.”

I have extensively quoted the paragraphs in which the arbitrator bases the reasons for the award.  It is clear that issues of fact and law arise from the two paragraphs.  I will deal with the factual issues first,

Respondent was alleged to have been absent from duty with effect from 5 September 2013.  The medical cards produced by the respondent show that he attended at the medical facility on 11 September 2013.  This shows that the dates from 5 September 2013 are not accounted for.  This issue was brought to the attention of the respondent during the hearing before the Disciplinary Committee hearing.  The following dialogue ensued:

“DEPARTMENT:	How do you want the employer to take the period 5 – 13 September 2013, the days you were absent?

ACCUSED:	I do not know how they may take it and for the other days (those three days which I was not feeling well) should be taken as sick days and from 5 to 10 do not know.” (Own emphasis)

The respondent does not state in the hearing that they should be taken as days

when he was off duty, due to illness .  He does not say so in the hearing.  He does not say he was ill.  The arbitrator does not make a finding on this factual issue.  It was evident that the days in question were unaccounted for.  Was the arbitrator correct in making the factual finding that was made?  In my view, it was not the correct decision to make having regard to the facts that had been placed before the tribunal.

I now come to the interpretation that the arbitrator arrived at in making the decision.  Firstly, Ms Magaya stated that the arbitrator, when referring to section 14 (1) of the Act, quoted from section 14 B of the Act.  The two sections provide for two different scenarios.  Section 14 B refers to special leave.  The twelve dates that the arbitrator refers to in the award are derived from section 14 B (a) which provides:

“Special leave on full pay not exceeding twelve days in a calendar year shall be granted by an employer to an employee-

Who is required to be absent from duty on the instructions of a medical practitioner because of contact with an infectious disease.”

How the arbitrator “smuggled” this provision with the award is beyond comprehension.  The facts do not show that “a medical practitioner” gave any instructions for respondent to absent himself from duty.  A reading of the record does not show that respondent was in contact with “an infectious disease.”  Clearly the twelve days referred to in the arbitral award did not apply to the respondent.  The respondent was being asked to account for his whereabouts for the period from 5 September to 10 September 2013.  The period from 11 September 2013 to 13 September 2013 was catered for by the production of medical cards.  The arbitrator misapplied the provisions of a different section to the facts.  The section the arbitrator was concerned with was section 14 (1) of the Act and not section 14 B.  It was therefore a wrong application of the law to the facts.  A clear misdirection.

The Supreme Court in Levy v Modus Publications 1998 (1) ZLR 229 (S) had this to say:

“Generally speaking, an appellate court will not interfer with the decision of a trial court based purely on a finding  of fact, unless it is satisfied that the finding had been based on an erroneous evaluation of the facts, taken as a whole or it is satisfied that the judge has given no weight or no sufficient weight to those considerations which ought to have weighed with him or that he has been influenced by other considerations which ought not to have weighed with him or weighed so much with him.”

In the instant case, the facts clearly showed that the respondent had not been able to explain his absence from work for the period from 5 September 2013 to 10 September 2013.  Respondent had failed to do so to the appellant before the misconduct hearing.  Respondent had failed to explain this away during the hearing as shown elsewhere in this judgment.  The unexplained finding by the arbitrator that this should be taken as “sick leave” is startling to say the least.  I am left in no doubt that arbitrator fell into error and a miscarriage of justice would be occasioned by allowing the decision to stand.  The appeal ought to be allowed.

The court makes the following order:

The appeal is allowed.

The arbitral award of Honourable Gabilo be and is hereby set aside.

The decision of the appellant’s Disciplinary Committee finding the respondent guilty culminating in his dismissal is upheld.

Each party to meet its own costs.

Magaya-Mandizvidza, respondent’s legal practitioners