Kambuzuma 1 High School Development Committee v Stanford Kufa & Augustine Chimedza (DA)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 06 JULY, 2023
JUDGMENT NO. LC/H/295/23
CASE NO. LC/H/1146/22
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 06 JULY, 2023

AND 03 OCTOBER, 2023

In the matter between:-

JUDGMENT NO. LC/H/295/23 CASE NO. LC/H/1146/22

Kambuzuma 1 High School Development Committee	Appellant

Versus

Stanford Kufa	1st Respondent

Augustine Chimedza (DA)	2nd Respondent

Before The Honourable L. Hove, Judge:

For Appellant	: Mr S. Mangoma For 1st Respondent	: Mr. A. Dota

For 2nd Respondent : No appearance

HOVE J:

This is an appeal against the 2nd respondent’s decision dated 21 November

2022.

Brief facts

The facts of this matter are disputed. The respondent filed a complaint of unlawful termination of his contract of employment and this was allegedly done without the applicant following any procedures.

The appellant’s version of what transpired is very different. It alleges that the

employee went absent without official leave in June 2020. The appellant

denies ever terminating the respondent’s contract of employment.

The dispute before the 2nd respondent

The claim before the 2nd respondent was that of;

Unlawful termination

Non payment of salaries, and

Underpayment of salaries

The 2nd respondent’s analysis and findings

The designated agent dismissed the claim for underpayment of salaries reasoning that the claim for underpayment of salaries had prescribed. He however upheld the claim for unlawful termination and payment of wages during the period the respondent was not reporting for duty.

The second respondent reasoned that if it was true that the respondent wasn’t reporting for duty then the appellant ought to have instituted disciplinary proceedings against him for being absent without leave.

The second respondent found on that basis that the respondent’s contract of employment had been unlawfully terminated, and the respondent was entitled to reinstatement and payment of the salaries for the period he was not reporting for duty.

Analysis

It is my considered view that the 2nd respondent’s reasons for granting the first two claims are bad at law. There is no obligation imposed by law on an employer to try and locate an absent employee or to institute disciplinary proceedings against an employee who is absent without official leave.

The employer’s duties are to provide work and to pay the employee in terms of the contract of employment. The employee has the duty to avail himself. see in this regard the case of Lee Group of companies v Ann Clare Elder SC 6/05. It

was therefore not the employer’s duty and obligation to try and locate the 1st respondent. The employer is not even obligated to institute misconduct proceedings against an employee who is absent without official leave.

In casu, the employer viewed the continued absence of the employee as a repudiation of his contract of employment. The 2nd respondent dealt with the issue of repudiation of the contract of employment which had been raised by the appellant thus,

“to state that the employee repudiated his contract and thus the employment relation between the two had been terminated, falls short to what the law requires”

The 2nd respondent’s reasoning is not clear. It is not made clear why he rejected the defense of repudiation of the contract of employment, it is not made clear also what is required by the law.

An employee who abandons their work is in my opinion a clear indication that they are no longer intending to be bound by the terms of the contract of employment and that is repudiation. Further, the employee was employed by a different employer during the time he absented himself (Tynwald Primary). The inference that he no longer wished to be employed by the appellant and repudiated his contract before seeking for alternative employment is inescapable.

The 1st respondent produced an affidavit indicating that he had been sent on leave. The deponent to the affidavit was not the appellant and neither was he a representative of the appellant. He was a civil servant with no capacity to send the 1st respondent on leave. Further, if that was the true position, the 1st respondent would not have failed to produce the same affidavit during the proceedings before the 2nd respondent. That he sought to produce the affidavit on appeal shows that it was just an afterthought.

The law is also clear that when an employee fails to provide services, for no acceptable reason, he is not entitled to any payments. After the 30th of June 2020 when he stopped reporting for duty, he was no longer entitled to wages.

For the above reasons this court accepts that the 1st respondent repudiated his contract of employment. Further, that the appellant accepted the repudiation. The appellant can, in terms of law, accept repudiation as it did in casu. This is therefore the end of the dispute between the parties. The 1st respondent repudiated his contract and the employer accepted such repudiation. No payments are due to the 1st respondent from the period he withheld his services after 30 June 2020. The 2nd respondent’s decision can not stand in so far as it held that the employee be reinstated with no loss of salary or benefits or be paid damages in lieu thereof. The decision in that regard must be set aside.

In the result, the following order is made;

Order:

The decision to reinstate the 1st respondent without loss of salary and benefits or, in the event that reinstatement is no longer tenable, that the 1st respondent be paid damages in lieu be and is hereby set aside.

The 1st respondent is held to have repudiated his contract of employment.

The appellant shall pay the 1st respondent’s terminal benefits as at 30

June 2020.

There shall be no order as to costs.