Gore T Matimba v Ministry of Education, Sport, Arts & Culture

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/269/2014
HARARE, 4 MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/269/2014

HARARE, 4 MARCH 2014 &				 CASE NO LC/H/897/2012

9 MAY 2014

In the matter between:

GORE T MATIMBA							APPELLANT

Versus

MINISTRY OF EDUCATION, SPORT, ARTS 			RESPONDENT

& CULTURE

Before the Honourable E Muchawa	:	Judge

For the Appellant		E E Matika    (Legal Practitioner)

For the Respondent	Ms C Garise-Nheta (Legal Practitioner)

MUCHAWA J:

The appellant was employed by the respondent as a teacher and stationed at Hanwa Primary School in Mashonaland East Province. He was charged on allegations of contravening paragraphs 1, 2 and 24 of the first schedule (section 2) of the Public Service Regulations (S I 1 of 2000). The grounds upon which the allegations were based were that he absented himself from duty without good cause or permission from 9 January 2010 to 1 March 2010, a total of forty eight days.

Following a disciplinary hearing, the appellant was found guilty and discharged from service. That is what the appellant is appealing against. His grounds of appeal are stated as:

The Disciplinary Authority erred at law and misdirected himself in finding that the appellant had committed the alleged misconduct.

The Disciplinary Authority erred and misdirected himself at law in holding that the appellant had committed the alleged misconduct and ignoring the evidence of the appellant and the prevailing circumstances that were there including the national industrial action which took place during the period in question.

The Disciplinary Authority erred at law in relying on inferences and assumptions and insubstantial evidence to come up with his determination and penalty.

The Disciplinary Authority erred and misdirected himself at law in failing to take into account that the appellant was processing his manpower development leave during the period in question.

The Disciplinary Authority also made a glaring error and misdirected himself in including some elements into the determination which were not even part of the initial charges against the appellant i.e. that of making an appeal to the Public Service Commission.

The Disciplinary Authority also made a glaring error at law in stating that the Head of office was not aware that the appellant was processing his manpower development leave forms whereas in all the processing of manpower development leave, they are signed by the head of Office.

The Disciplinary Authority erred at law in ordering the harshest penalty of dismissal considering the gravity of the offence and the circumstances under which it is alleged to have been committed.

The Disciplinary Authority further erred at law in ignoring the delay in the handling and finalisation of the matter which had brought untold suffering to the appellant who went for over two years without any salary but still going to work.

The Disciplinary Authority fatally erred at law in failing to take into account the mitigating factors submitted to it by the appellant in passing of the penalty.

The submissions before me show that there are essentially two issues for my determination in spite of the lengthy grounds of appeal. The first is the propriety of the guilty verdict and the second is the propriety of the penalty meted out. I proceed to deal with these.

Propriety of the Guilty Verdict

The appellant is essentially arguing that the Disciplinary Authority erred at law and misdirected itself in finding that he had committed the alleged misconduct.

I was referred to paragraph 1 of the first schedule (section 2) of S I 1 of 2000 which states:

“ Absence from duty without good cause including any abuse of sick leave.”  (appellant’ s added emphasis)

The appellant claims that his absence from duty was with a good cause. It was even known to the Head Office and he was processing his manpower development leave.

The brief facts relating to the matter are that the appellant was admitted to the University of Zimbabwe on 30 November 2009 to undertake a Bachelor of Education degree in Primary Education. The programme was to run from 25 January 2010 to December 2011 with registration commencing on 18 January 2010. Following the admission, the appellant applied for manpower development leave in terms of section 40 of S I 1 of 2000. The leave application was declined by the Ministry of Education on allegations that the appellant had a pending misconduct case dating back to January 2007. The appellant proceeded to lodge an appeal against the denial of leave through his legal practitioners. There has been no decision on the appeal save for a letter from the Public Service Commission to the Secretary for Education, Sport, Arts and Culture requesting for clarity on the declining of the leave.

In the light of the circumstances outlined above, the appellant argues that his absence from duty was with good cause. It is argued that the course he was to pursue was relevant to his duties and to the respondent. Processing of such leave is argued to be in no way unreasonable or a bad cause.

I was encouraged to note that during the period in question a nationwide strike of the civil service employees ensued resulting in a delay of processes. The appellant claims not to have participated in the collective job action, but that the relevant offices he visited were not attending to him promptly.

Reference was made to the case of Mhowa v Beverley Building Society 1998 (1) ZLR 546 (5), amongst others where the Supreme Court held that the charge of absenting oneself without a reasonable excuse was not proved. The relevant section reads:

“But the lack of a lawful excuse did not necessarily mean, as the tribunal appears to have supposed, that the appellant had no reasonable excuse to absent himself. The two concepts are different. Reasonable excuse may be something less than lawful excuse.”

Further reference was made to the case of Circle Cement (Pvt) Ltd v Chipo Nyawasha SC-60-03. The relevant part reads:

“A cause had to be a reasonable cause for the purpose of the defence to the offence with which the respondent was charged by having reference to herself. There had to be established facts which showed the existence in her mind a belief that she was doing the course to benefit her employer and that the belief caused her to stay away from work for the period in question. Once that cause was established as a fact, it would become a question of law whether the facts found were such as to constitute a reasonable cause for her conduct.”

It is on the basis of the above cases amongst others that I was urged to hold that the appellant had a good cause for absenting himself from work.

The respondent advanced the argument that since the appellant’s leave was not approved and he did not report for duty, this was wilful disobedience on his part reflecting insubordination. Further it was argued that he breached his duty to act in good faith making the continuation of the employment relationship intolerable. It was also argued that it would be unreasonable to believe that it took the appellant a whole forty eight days to process his study leave in the light of the absence of any approval for such leave. I was urged to consider that the appellant had in fact left his class unattended for the forty eight days he was absent and failed to advance his employer’s interests.

The respondent’s reference to the Labour (National Employment Code of Conduct) Regulations of 2006 does not help its case as these regulations are not applicable to people in the Public Service.

I agree with the appellant that the respondent cannot now rely on the duty to act in good faith and duty to obey lawful instructions as these were not part of the initial charges.

I have had to look closely to the cases referred to by the appellant to see if the facts established in casu show that the appellant had a belief in his mind that the course would benefit his employer and caused him to stay away from work for the period in question and whether such facts constitute a reasonable excuse for his conduct.

The Circle Cement (Pvt) Ltd v Chipo Nyawasha case supra has already been distinguished by the appellant himself. I find that even though the appellant believed the course would benefit his employer, he was away pursuing the leave application and not attending the course. To have stayed away for up to forty eight days in pursuit of an application for which he had already engaged lawyers is not reasonable in my opinion. I therefore find that the appellant did not have both a lawful excuse or a reasonable excuse for this absence in the circumstances.

Propriety of the penalty

The appellant submitted that the penalty imposed was inappropriate and induces a sense of shock. I was referred amongst other cases to that of Coh Coh Enterprises (Pvt) Ltd v Mativenga & Anor 2001 (1) ZLR 151 (S) for the assertion that even where dismissal is the prescribed penalty in a Code, it does not mean that dismissal should necessarily follow. It was argued that the rehabilitative potential of the appellant should be considered so as to mete out a lesser penalty.

On the other hand the respondent made the point that the appellant had acted in a manner inconsistent with his express conditions of service and had failed to advance the interests of the employer. It was an undisputed fact submitted that the appellant had a previous case of absence from work and he had been found guilty, fined and reprimanded. With such facts before me it is clear that the appellant is not repentant and had failed to be rehabilitated in this respect.

In the circumstances I find that the penalty meted out is appropriate.

Consequently the appeal being without merit is dismissed with costs.

Munyaradzi Gwisai & Partners, appellant’s legal practitioners

Civil Division of the A G’s Office, respondent legal practitioners