Corporate 24 Medical Center v Shumirai Maengahama

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/88/2023
HARARE 15 MARCH, 2023
CASE NO LC/H/8/23
27 MARCH 2023
CORPORATE 24 MEDICAL CENTER
APPELLANT
SHUMIRAI MAENGAHAMA
RESPONDENT
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==============================IN THE LABOUR COURT OF ZIMBABWE

HARARE 15 MARCH, 2023
27 MARCH 2023

JUDGMENT NO LC/H/88/2023

CASE NO LC/H/8/23

CORPORATE 24 MEDICAL CENTER

APPELLANT

SHUMIRAI MAENGAHAMA

RESPONDENT

Before the Honourable G. Musariri Judge:

For Appellant Mr T.J. Mafongoya, Attorney

For Respondent Ms S. Maenaghama, Attorney

MUSARIRI, J:

On the 16th December 2022 at Harare Designated Agent G. Mudzengi issued a determination. He ordered appellant (employer) to reinstate respondent (employee) or pay her damages for loss of employment. The employer then appealed the determination to this Court in terms of section 92D of the Labour Act Chapter 28:01.

The grounds of appeal were seven-fold thus,

“1. The Designated Agent grossly erred at law by determining quantification of damages without hearing oral evidence from the parties on the quantification process.

2. By proceeding to entertain quantification of damages and arriving at figures without considering mitigation of damages which is applicable to fixed term contracts, the Designated Agent erred.


3. The Designated Agent grossly erred at law by transform conciliation proceedings (attempt to resolve) into a determination process (redress a matter) midstream proceeding.

4. The Designated Agent misdirected at law by delivering a determination against a non-person as cited.

5. The Designated Agent misdirected at law by making a finding that respondent had been unlawfully dismissed in light of the fact the appellant had a right to place respondent on paid leave at law.

6. The Designated Agent erred in failing to find that the respondent had repudiated her employment by failing to report for duty after receiving an express instruction to do so and by filing a complaint with the National Council for the Medical and Allied Industry.

7. The Designated Agent misdirected at law by interpreting investigation in section 10 of S.I. 93 of 2019, as applicable in paid leave scenarios.”

The first 3 grounds of appeal raise issues to do with the Designated Agent’s (DA) conduct of the proceedings. They are matters which may be taken up on review as clearly noted in the case of Charumbira v Taxes Commissioner 1998 (1) ZLR 584 (S) per Mc NALLY JA at p 585 D;

“Judicial Review as GUBBAY CJ said ……… is concerned not with the correctness of the decision, but with the decision-making process.”

The 4th ground of appeal states that the employer was mis-cited. Before the DA the employer dealt with the point tersely thus;

“1. Respondent as herein cited reserves it right to challenge how it has been cited by Claimant.”

It turns out that its proper trading is spelt out in the employment contract (filed of record) as “Corporate 24 Hospital Group.” I consider the mis-citation as a simple error which can be corrected based on the dicta in the case of Mapondera v Freda Rebecca SC 81/22 per BHUNU JA (paragraph 24);

“Where an existing entity is inadvertently misdescribed in judicial proceedings it is permissible to apply for correction of the anomaly in good faith provided that there is irreparable prejudice to the other party.”


The employer was able to provide a full response to the employee’s claim despite the error. No prejudice to it was alleged or shown.

The remaining 3 grounds of appeal raise basically one issue which can be summarised thus

Whether the employee unlawfully dismissed the employee or whether the employee repudiated the contract of employment.

The employer suspected that the employee had committed an act of misconduct. On the 1st September 2022 the employer set the away. The cause for the sending off is disputed. The employer stated he sent the employee on paid leave pending investigation of the alleged misconduct. The employee stated that she was verbally dismissed for misconduct without a hearing. The DA was faced with a “he said” and “she said” scenario. Here is how the DA reasoned

“The burden of proof in this case lies with the respondent not vice-versa to prove by at least some documentary evidence that indeed she conducted the investigation process and that the claimant repudiated her contract of employment by refusing to resume work. It should be stated that even where repudiation is inferred, the respondent was supposed to institute disciplinary proceedings against the claimant. Simply put, in cases where an employee repudiates his/her contract of employment, the termination must comply with statutory formalities. It is duty of the employer to institute disciplinary proceedings not the alleged (sic) employee. Therefore, the argument by the respondent that the claimant was sent on paid leave finds no favour from the Hearing Authority and I concur with the claimant’s line of argument that her contract of employment was prematurely terminated on the 1st September 2022 without adhering to the procedure laid down in the Industry Code.”

The DA quoted from section 9 of the Industry Code thus,

“Where the employer has reasonable cause to believe that an employee has committed misconduct in terms of this Industry Code, the immediate superior shall take immediate action to investigate the matter.

10.2.4. Obtaining written statement from the alleged employee…..

10.2.5 The alleged employee shall be required to submit his/her response within three working days of the request being made.

10.3. If on the case of the written statement the employee has no charge to answer, the matter will end there.

10.4. If however the immediate superior is satisfied that that there is prima facie case, the immediate superior or a person appointed may then formally suspend and raise the charge against the employee.”


The employee evidently did not follow the dictates of the industry code. He was required to forthwith call for a written statement from the employee. He did not do so. In this Court it was stated that the employer then found that there was no misconduct and they called back the employee to work but she refused. The employee stated that she was only called back to collect her overdue August 2022 wage. The DA believed the employee’s version of events. This Court is satisfied that the employee’s version is true on a balance of probabilities.

The employer did not explain why he was ending the employee on “paid leave”. In any event when she was sent off she had not been paid for the previous month. More tellingly here is no written record of the alleged “paid leave”. The alibi looks like an after-thought contrived to defeat the employee’s claim of unfair dismissal.

The DA proceeded to quantify damages for loss of employment. That is where he got it wrong. He was required to take evidence, written or oral, on the issue of damages. He did not do so. On that basis his assessment of damages cannot stand. This is aptly set out in the case relied on by appellant’s attorney.

Ruturi v Heritage 1994 (2) ZLR 372 (S).

“For this reason, the award must be set aside, for to quantify damages, indeed to make any finding, on no evidence, is to err in law”.

Wherefore it is ordered that,

1. The appeal be and is hereby partially allowed;

2. The determination by the Designated Agent dated 16th December 2022 is set aside;

3. Appellant shall reinstate Respondent without loss of salary and benefits; or

4. If reinstatement is untenable Appellant shall pay Respondent damages in lieu of reinstatement in a sum either agreed by the parties or assessed by this court.

G MUSARIRI

J-U-D-G-E
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