Esther Shanguro v Ministry of Education, Sport, Arts & Culture

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/489/14
HELD AT HARARE 21ST JULY 2014
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/489/14

HELD AT HARARE 21ST JULY 2014			CASE NO LC/H/780/12

& 1ST AUGUST 2014

In the matter between:-

ESTHER SHANGURO					Appellant

And

MINISTRY OF EDUCATION, SPORT, ARTS		Respondent

& CULTURE

Before The Honourable L.M. Murasi, Judge

For Appellant		Mr A Matanhire (Trade Unionist)

For Respondent	Mr C Karinga (Attorney General’s Office - Civil

Division)

MURASI, J:

Appellant was employed as a teacher at Gwariwa Primary School.  It is

alleged that she teamed up with her husband in committing acts of

insubordination towards the Headmaster of the school.  The two would absent

themselves  from work without authorisation.  Appellant was subsequently

suspended from duty from 29 March 2011 to 29 June 2011.  She thereafter

did not report for duty leading to her dismissal.  She is displeased with the

dismissal and has appealed to this Court.

Appellant, through her representative, submitted that she had not

been properly charged.  It was further stated that the respondent had

breached the rules of natural  justice by not affording her the right to be

heard.  It was further argued that this also was in breach of respondent’s Code

Conduct which are the Public Service Regulations, 2000, Statutory Instrument

1 of 2000 (as amended).

Respondent raised a point in limine in that appellant had not properly

cited the respondent.  This was said to be in breach of section 3 of the State

Liabilities Act [Chapter 8:14) and that the appeal should be dismissed on that

score.  On the merits, respondent abided by the documents filed of record.

Section 3 of the State Liabilities Act [Chapter 8:14] provides:

“In any action or other proceedings which are instituted by virtue of section two,

the plaintiff, applicant or the petitioner, as the case may be, may make the

Minister to whom the headship of the Ministry or department concerned has

been assigned nominal defendant or respondent.

Provided that, where the headship of the Ministry or department concerned has

been assigned to a Vice – President, he may be made nominal defendant or

respondent.”

Appellant in casu, has cited the Secretary for the Public Service

Commission as the respondent.  Appellant was a self-actor when she

commenced the action and only got the services of the union when coming to

Court.  Is the citation of the Secretary fatal to the proceedings?  The section

quoted above, does not make the citation of the Minister peremptory.  It

states that the litigant “may” make the Minister nominal defendant or

respondent.  The Court associates itself with the observations of WESSELS JA in

Sutter v Scheepers  1932 AD 165 at p 173 – 4 where it was stated:

“(2)  It a provision is couched in positive language and there is no sanction added

In case the requisites are not carried out, then the presumption is in favour of an

intention to make the provision only directory.

(3)  If, when we consider the scope and objects of a provisions, we find that its

terms would, if strictly carried out, lead to injustice and even fraud, and if there

no explicit statement that the act is to be void if the conditions are not   complied with, or if no sanction is added, then the presumption is rather in favour of the provision being directory.”

The section does not provide that a failure to cite the Minister will

render the proceedings null and void.  Appellant cited the Secretary.  This would be understandable as she received her letter of dismissal from that office.  If would be unfair to dismiss the appeal on that score as appellant substantially attempted to cite the correct persons.  The point in limine is therefore dismissed on that score.

The merits of the case as presented by the appellant tend to depict her as a person who was unfairly treated by the Ministry.  However, the record and the facts clearly show a different scenario.  The record shows that appellant was suspended from duty from 29 March 2011 to 29 June 2011.  She was supposed to report for duty on 30 June 2011.  She did not.  Efforts made by the Headmaster to call her to attend to her duties fell on deaf ears.  Appellant clearly ignored the Headmaster’s calls for her to report for duty.  She could not be found when the Ministry intended to serve on her the charges relating to her absenteeism.  Further, the investigation team which went to her school found her absent from her work station during working hours.  Appellant was unable to explain her absence to that committee.  The same investigation committee carried out random interviews of pupils in appellant’s class.  The pupils confirmed that they had not been taught the previous term because of appellant’s absence from duty.  Appellant was discharged in terms of section 63 (e) of Statutory Instrument 1 of 2000.

Was the appellant unfairly dismissed?  She did not obey lawful instructions to report for duty.  This was wilful disobedience.  Wilful disobedience has generally been described to be an act which is wilful and deliberate and not occasioned by ignorance, inadvertence or accident and that  not only is knowledge present but volition is brought into activity.  Where an employee shows such wilful disobedience, it should be taken to mean that the employee is repudiating the contract.  This must be taken to mean that the employee is silently stating that he/she is no longer willing to be bound by the employment contract.  In the circumstances, that conduct gives the employer the right to dismiss the employee from employment.  In casu, appellant clearly showed that she wanted to be a nuisance at the workplace.  She did not report for duty after suspension.  She did not want to be served with the disciplinary charges emanating from her absenteeism.  She cannot therefore allege that she was denied the right to be heard when she wilfully declined to be served for the hearing.  She is assumed to have waived her right to be heard.

SANDURA JA (as he then was) had this to say in James Kandome v Shades of Black Cosmetic (Pvt) Ltd SC 115/2004:

“It must be borne in mind that by entering into a contract of employment the employee subjects himself to the employer’s control and should behave accordingly.  Any behaviour on the part of the employee which is wholly inconsistent with that relationship is untenable and would undoubtedly constitute a repudiation of the contract of employment.”

This Court associates itself with the above sentiments.   Appellant’s

behaviour was deplorable to say the least.  She left the pupils without a teacher as she sided with her husband in their unexplained joint insubordination of the Headmaster.  She has not shown any remorse for what she did.  It is my considered view that respondent was justified in dismissing her.

In the result, the Court finds the appeal to be devoid of merit and it is accordingly dismissed with no order as to costs.

Civil Division of the Attorney General’s Office, respondent’s legal practitioners