City of Harare v LC/H/343/12

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/3/2020
HARARE, 4TH FEBRUARY 2015
CASE     NO.
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IN THE LABOUR COURT OF ZIMBABWE       JUDGEMENT NO. LC/H/3/2020

HARARE, 4TH FEBRUARY 2015                     	     CASE NO. LC/H/343/12

AND 10 JANUARY 2020

In the matter between:-

CITY OF HARARE                                                             Appellant

For convenience the Appellant in the appeal is also referred to as the Appellant under the cross appeal. The matter was placed before me as an appeal conjoined with a cross-appeal. Both appeals were noted against an arbitral award handed down by the Honourable Mukwehwa the operative part of which reads as follows;

“After analysing the submissions by the parties the termination of employment contract on the grounds of absence for a period of more than five (5) working days is hereby confirmed. This Tribunal finds no reason to vary the penalty of dismissal imposed by the Respondent being the appropriate penalty for the offense.

Claimant’s appeal against termination is hereby dismissed for want of merit.

The claimant is to be paid her salary accrued leave and benefits for the period January 2010 to December 2010 plus 5% interest as compensation for the delay by Respondent in instituting disciplinary proceedings. The record of proceedings shows that the matter was heard on 19th January 2011.

The rate of pay applicable for claimant’s grade as at January 2010 and any subsequent salary adjustments for the period up to December 2010 will apply.

I so award.”

The material background facts to the matter are as follows;

The Respondent was initially employed by the Zimbabwe National Water Authority (ZINWA). Following a Government directive all water management functions were transferred from ZINWA to local authorities with effect from 1st of February 2009. The Respondent was consequently transferred to work at Appellant undertaking. The Respondent however did not report for work form the 1st of February, 2009. She only reported for duty on the 21st of January 2010. Having tendered as reason for her absence ill-health she was turned away and was asked to bring medical certificates. When Disciplinary proceedings had not commenced by the 6th of June 2010 the Respondent was allowed to resume duties with effect from the 11th of June, 2010. She was later disciplined and was found guilty on the charge of absenteeism. A penalty of dismissal was consequently imposed. She then noted an appeal and the matter was eventually referred to an Arbitrator.

Before the Arbitrator Respondent explanation for her absenteeism was that she was mentally ill and she had during the period received treatment from a traditional doctor. The Arbitrator found that the Respondent had failed to prove that she had complied with Section 14 (2) and (3) of the Labour Act [Cap 28:01]. He consequently dismissed the Respondent claim of unfair treatment.

Both parties were aggrieved by the arbitral award. The Appellant noted an appeal against bullet points 3 and 4 of the arbitral award on the basis that;

The Arbitrator erred at law in ordering the Respondent be paid salary and benefits for the period January 2010 to December 2010 when in fact the Respondent was paid for the period 12th June, 2010 to 21st January, 2011.

The Arbitrator’s order, ordering the Appellant to pay Respondent for the period January 2010 to December 2010 means that Respondent will be double paid for the period 12th June, 2010 to 31st December 2010 thus remedy the Arbitrator’s award unreasonable, irrational and outrageous in its defiance of logic to constitute a ground of appeal.

At the commencement of the hearing before this court the Appellant raised a preliminary point that the Respondent having conceded that she was paid for the period 12th June 2010 to 21st of January 2011 the appeal ought to be allowed on that basis and the arbitral award ought to be altered and substituted as submitted in Appellant papers. The Respondent conceded to the point. The Court consequently handed down an order allowing the appeal in respect of bullets 3 and 4 of the arbitral award and substituted the award in the terms as sought by the Appellant.

On the cross-appeal the appeal was noted on the following grounds;

“Grounds of Appeal

The learned Arbitrator erred at law in holding that the Disciplinary Committee had authority since it was improperly constituted.

The Committee violated principles of natural justice in allowing the Workers Committee representatives to adjudicate the matter since they earlier on represented the Appellant over the same issue before a Labour Officer but were later dropped.

The arbitrator failed in rejecting Appellants explanation that she was mentally ill as not constituting reasonable explanation for her absence.

The learnt Arbitrator erred in failing to hold WAWUZ members proceedings involving City of Harare Workers.’’

I shall proceed to address the grounds of appeal.

WHETHER THE ARBITRATOR ERRED IN HOLDING THAT THE DISCIPLINARY COMMITTEE HAD AUTHORITY.

The Respondent first argument under the cross-appeal is that the Arbitrator erred at law in finding that the Disciplinary Committee had authority to preside over the disciplinary hearing. Her submission before the Arbitrator had been that the Disciplinary Committee was improperly constituted in that members of the Workers Committee who had represented her before the Labour Officer in a conciliation meeting were chosen by management to be members of the disciplinary committee. It was her further argument that it was the role of Trade Union to appoint representatives to the Disciplinary Committee and not management. The Appellant response before the Arbitrator was that section 12.4 of the Collective Bargaining Agreement Statutory Instrument 171 of 2010 clearly provided that two employee representatives appointed by a trade union that commands 50 per centum of membership were required to appoint two employee representatives on a Disciplinary Committee. In this case however there being no Trade union commedy 50 per centum it had been agreed between the employer/ee Representatives that Workers Committee representatives drawn from proper Works Council structure would sit in Disciplinary Committee regardless of their union affiliation.

The Arbitrator in his award found that the Disciplinary Committee was properly constituted in that both parties agreed to amend the Code to suit the situation on the ground where no trade union commanded 50% of the membership. He made the following observation,

“ANALYSIS OF EVIDENCE AND FINDINGS

Composition of the Code

The disciplinary committee was properly constituted in that both parties agreed to amend the code to suit the situation on the ground where no union commanded 50% of the membership.

The fact that the same two workers committee members who had represented the Applicant in a conciliation hearing before the Labour Officer were appointed as workers’ representative in a disciplinary hearing shows that there is nothing wrong with the representation appointed to do justice to the case. The two workers’ representatives did not adjudicate on the same matter twice as alleged by the Applicant and as such functus officio does not apply here.

The two workers’ representatives had a fair advantage over the other disciplinary committee members in that they had background information which other members did not have. If there is any one to complain about such an arrangement it is the Respondent and not the Applicant.

The Respondent argument before this court is that the Arbitrator erred and misdirected himself in arriving at that conclusion. The Appellant ought to have complied with peremptory provisions of the Code. The employee representatives should have recused themselves. The Appellant counter-position is that the Arbitrator was correct in arriving at his conclusion that the Disciplinary Committee was properly constituted pursuant to the provision of section 12.4 of the Collective Bargaining Agreement i.e. Harare Municipal Undertaking (Employment Code of Conduct) Statutory Instrument 171 of 2010.

In my determination on this ground it is my finding that the Arbitrator did not err and misdirect himself. It is not in dispute that the Code of Conduct in this case provided that the two employee representatives on the disciplinary committee had to be appointed by the trade union which commanded 50 per centum of membership. It was also not in dispute that no such union existed at the time. In such instances where there is a gap the employer is allowed to be innovative and adapt the procedures existing in a Code in such a way as to provide a sensible fair and just procedure. This was what happened in Duly Holdings vs Chanaiwa where the Supreme Court found that the procedure taken accorded justice to the employee. The issue in this case was whether the procedure adopted where the two representatives were chosen resulted in fair and just proceedings. It is also trite that not all irregularities result in vitiation of disciplinary proceedings. It must clearly be shown that the irregularities resulted in prejudice. See Nyahuma vs Barclays Bank of Zimbabwe SC 67/05; Unifreight Limited vs Leighton Madembo SC 6/18. The Respondent in these proceedings did not clearly indicate how she was prejudiced if indeed she was prejudiced through the presence of the two workers committee representatives, in the disciplinary proceedings. The ground of appeal clearly must fail on that score.

The second ground of appeal is that the Disciplinary Committee violated principles of Natural Justice in allowing the same two Workers Committee Representatives to adjudicate in the matter since they had earlier on represented the Appellant over the same issue before the Labour Officer. The Respondent through heads of argument elaborated that the two representatives Choto and Hodheri having represented her before the Labour Officer ought to have recused themselves before the Disciplinary Committee.

The Appellant’s response to this ground is that no principles of natural justice were breached in this case. The two were not representing any union but were chosen as employee representative as no trade union in the undertaking at the time commanded 50 per centum as required by the Employment Code of Conduct Statutory Instrument 171/10.

The Arbitrator in his award referred to supra found nothing wrong with the two representatives sitting to adjudicate in the disciplinary hearing. He dismissed the contention made by the Respondent that they had sat twice to adjudicate in the same matter. He thus dismissed the functus officio argument as not applicable in the circumstances.

The Respondent alluded in this ground of appeal to breach of principles of natural breach through the presence of the two workers representatives in the Disciplinary Committee. Other than inferring in heads of argument that justice was not done there was no attempt by Respondent to elaborate on which principles of natural justice were breached in this case on this basis the grounds of appeal clearly stands to fall.

The third ground of appeal is that the Arbitrator failed in rejecting Appellant’s explanation that she was mentally ill and that this constituted reasonable explanation for her absence. The Appellant in counter submitted that the Arbitrator made a correct finding that the Respondent had failed to follow the provisions of section 14 (2) and (3) of the Labour Act [cap 28:01].

The Arbitrator in his award made the following findings;

The Claimant has failed to prove before this tribunal that the above requirements were met. Instead, evidence suggests that the Claimant granted herself leave outside the provisions of the Labour Act. There is nowhere it is written that there is no need to request for further leave upon the expiry of the first ninety days’ sick leave on full pay.

The letter from a South African traditional healer is not a medical certificate envisaged in Section 14 of the Labour Act. The sickness certificate must be signed by a registered medical practitioner for the sick leave to be granted. In this case, this requirement was not met.

Claimant has failed to substantiate her claim of mental illness in that there is no evidence on record to suggest that she was detained in a medical institution undergoing treatment for mental sickness.

This court is sitting as an Appellate Court. It can only interfere with findings on the law where there has been an error or gross misdirection at law (case authority). The issue therefore is whether the Arbitrator committed an error or misdirected himself at law in his finding on the merits. My finding is that the Arbitrator correctly found that the Respondent had not complied with provisions of section 14(2) and (3) of the Labour Act [cap 28:01]. It is clear from a perusal of the record that although Respondent was charged with absenteeism for five (5) or more days without leave or reasonable cause a charge provided under Part VI, Category Four, Clause 11.5 (r) of the relevant Code of Conduct this provision had to be read in conjunction with section 14 of the Labour Act [Cap 28:01].

Section 14(2) provides that “During any one year period of service of an employee an employer shall at the request of the employee supported by a certificate signed by a registered medical practitioner grant up to ninety days sick leave on full pay.”

Section 14 (3) also provides that “if in any one year period of service of an employee, the employee has used up to a maximum period of sick leave on full pay, an employer shall at the request by the employee supported by a certificate signed by a registered medical practitioner grant further period up to ninety days sick leave on half pay where in the opinion of the  registered medical practitioner signing the certificate, it is probable that the employee will be able to resume duty after such further period of sickness.”

The provisions in section 14(2) are very clear that for one to be granted ninety days sick leave on full pay an employee has to submit along with his request for leave a certificate signed by a registered medical practitioner. An employee on the basis of section 14(3) can only be granted a further 90 days of sick leave on half pay if a medical practitioner is of the view that the employee will be able to resume normal days at the expiry of the 90 days. If the employee’s prospects of recovery are slim however then section 14(4) will kick in and the employee will be released on medical grounds. The Arbitrator in this case made two critical findings. Firstly that the Respondent had not complied with section 14 (2) and (3), that she had failed to request for further leave upon expiry of the first ninety days sick leave on full pay. The second finding was that she had not complied in submitting medical certificate as requested under section 14(2) and (3).

The Respondent submission before this court is the Arbitrator erred in his findings on the merits. Section 11.5 of the Code provided that it was a gross misconduct for one to proceed on a ‘unauthorized absence from work for five or more consecutive days without reasonable cause or leave’. The Respondent submission is that the Arbitrator erred in finding that the leave was unauthorized because of the absence of leave forms. There was evidence in the record however that she had been marked as ‘sick’ by her supervisor for four months. She could only have been marked sick upon production of sick leave forms. Therefore her absence was with leave as she was authorised by her supervisor.

The Respondent further submits that the learned Arbitrator erred in not considering the second requirement as to whether in any event the absence was reasonably justified. The Respondent relied on the decision in Mhowa vs Beverly Building Society 1998 (1) ZLR 546 where the judge had elaborated on the two requirements to be met under the charge i.e. (i) whether there was leave granted (ii) whether in the absence of leave, there was reasonable excuse for the absence. The Respondent submission was in this case there was reasonable excuse as she was mentally ill for the period concerned.

The charge that was levelled against Respondent is that of contravening clause 11.5 (r) of the relevant Collective Bargaining Agreement; Harare Municipal Undertaking (Employment Code of Conduct) Statutory Instrument 171 of 2010. The allegation was that she had been absent from work for five (5) or more consecutive days without leave or reasonable cause as from 1 February 2009 to 11 June 2010.

The Respondent in her defence outline before the Disciplinary Committee indicated that she had been granted sick leave in 2007 by her supervisor then after consulting a Dr. B.V Dafena. She had thus been on sick leave from October 2007 to February 2008. She had left in December 2007 to South Africa for further treatment. She returned on 17 December 2009 after being certified fit to resume duty by a National Traditional Healers Union in South Africa. She thus disputed that she had absented herself from work or without reasonable cause.

There are two requirements that clearly have to be met by the employer in laying the charge. Firstly an employer must prove absence without leave. Secondly the employer must prove absence without reasonable cause.

It is clear on the basis of the facts that for the period from 1st February 2009 (when she was transferred to Appellant employment) to the 11th of June 2010 when she finally surfaced there was no certificate of sickness produced by the Respondent in compliance with section 14 (2) of the Labour Act. The argument preferred that as she had been marked sick by her Supervisor for four months in 2007 she thus had been authorised to go on sick leave was properly dismissed by the Disciplinary Committee. It is inconceivable if at all such authority had been granted in 2007 that the authority could have extended to cover the period up to June 2010 a period which clearly fell outside the provisions of the Code or the Act. Considering that she had been transferred to a new employer she was obligated to have sought authorisation or presented a medical certificate to Appellant. Having failed to apply for sick leave she was clearly absent from work. See Harare City vs Zimucha 1995 (1) ZLR 285 (5) (S) where at p291 A, McNally JA (as he then was) stated as follows;

“Sickness per se does not entitle an employee for staying away from work and continue to draw salary. It entitles him to apply for sick leave (or annual leave) but if he does not apply for sick leave and obtain it, he is simply absent without leave.”

The next issue is whether there was reasonable cause for her absence. She submitted that there was reasonable cause as she was mentally ill. She tendered proof in the form of Medical Certificate from the Traditional Healer.

The issue is whether the medical certificate emanating from the Traditional healer can be constituted as a Medical Certificate as envisaged by section 14 of the Labour Act. The Arbitrator found that the certificate was not a ‘Medical Certificate’ as envisaged by the Labour Act [Cap 28:01]. The court agrees entirely with the Arbitrator’s finding on this point. It is clear that the Medical Certificate referred to in section 14 of the Act refers to a certificate issued by a registered medical practitioner. Traditional healers even though they may be registered under some other statutory provisions such as Traditional Healers Act are not medical practitioners. The court is however aware that in neighbouring South Africa the approach is different in that a certificate from a traditional healer has been equated to a medical certificate. See Kievits Kroon Country Estate (Pty) Ltd v Mmoledi and Others (875/12) [2013] ZASCA 189; 2014 (1) SA 585 (SCA); [2014] 3 BLLR 207 (SCA); [2014] 1 All SA 636 (SCA); (2014) 35 ILJ 209 (SCA) (29 November 2013). This decision however is not binding in our courts. The position is clear that a certificate from traditional practitioner does not conform to a certificate signed by a registered medical practitioner as envisaged under section 14 of the Labour Act. The Arbitrator was therefore clearly correct when he came to the conclusion that the Respondent breached both section 14 (2) and (3) of the Labour Act. The Respondent was therefore lawfully dismissed from work.

Assuming the court is wrong in taking this approach the facts in any event clearly show that she was away from employment for a period of sixteen (16) months an unreasonable period by any standard. In Girjac Services (Pvt) Ltd vs Mudzingwa 1999 (1) ZLR 243 SC at p246 the Supreme Court stated as follows;

“… Nonetheless, the fact that the employee is incapacitated by a cause beyond his control- by an act of God, if you like- does not deprive the employer of the right to terminate the contract where the absence was unreasonable. Non-performance by the employee of his duties for an unreasonable time justifies the employer in refusing to perform his part of the contract and considering his obligation at the end.”

It is clear on the basis of the absence of authorization and the unreasonable period of absence the Appellant’s decision to terminate Respondent’s employment was justified.

The cross-appeal clearly cannot succeed therefore.

It is accordingly ordered as follows;

The appeal succeeds with costs.

Paragraphs 3 and 4 of the arbitral award handed down on 7th February 2012 be and are hereby set side.

The cross-appeal is dismissed for lack of merit.

Paragraphs 1 and 2 of the arbitral award be and are hereby upheld.

The Respondent shall remain dismissed from employment

Matsikidze & Mucheche, respondent’s legal practitioners