Kudakwashe Fumhirwa v Health Service Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/102/2016
HARARE, 3 FEBRUARY 2016 &
CASE NO LC/H/APP/1255/2015
4 MARCH 2016
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/102/2016

HARARE, 3 FEBRUARY 2016 &			 CASE NO LC/H/APP/1255/2015

4 MARCH 2016

In the matter between

KUDAKWASHE FUMHIRWA					APPLICANT

And

HEALTH SERVICE BOARD					RESPONDENT

Before the Honourable E T Muchawa J

For the Applicant	Ms M Newman (Legal Practitioner)

For the Respondent     W Matsika

MUCHAWA J:

This is an application for condonation of late filing of an application for review.

The applicant was employed by the Ministry of Health as a pharmacy technician based at Mpilo Central Hospital. On 30 November 2012, he applied for manpower development leave in terms of section 40 (3) of the Health Service Regulations, Statutory Instrument 117 of 2006. He had been accepted at the University of Limpopo to study for a Pharmacy degree from 28 January 2013 to 27 January 2017.

In support of his application for the manpower development leave, the applicant pledged to be bonded for four years after completion of studies and undertook to work for Mpilo Central Hospital during vacation and semester breaks. He also got the relevant recommendation from the permanent Secretary of the Ministry.

The Health Service Board was unable to approve his leave timeously and the applicant applied for vacation leave and left to commence studies. On 30 May 2013, the Health Service Board declined to grant the requested leave.

On 25 June 2013, the applicant appealed against the decision of the Health Service Board but this was dismissed on 7 August 2013.

On 21 August 2013, the applicant was dismissed from work in terms of section 62 (e) for having been absent from duty for a continuous period in excess of thirty days without having been granted leave of absence.

On 4 September 2013, the applicant wrote a further letter appealing against the decision to discharge him from service. On 29 April 2014, the Health Service Board confirmed its decision to discharge him from service.

It was however not until 21 October 2015 that the applicant filed this current application for condonation of the late filing of an application for review. In the review application it is sought to contest the two decisions of the Health Service Board being; the declining of manpower development leave and the discharge from service.

The broad principles to be considered in determining whether to condone the late noting of an appeal or application for review are the extent of the delay, the reasonableness of the explanation proffered for the delay and the prospects of success in the main matter. See Jensen v Acavalos 1993 (1) ZLR 216 9SC).

I turn to consider these in casu.

Extent of the delay

The applicant has not addressed me on the extent of the delay to enable me to consider this easily and properly. I conclude that though the applicant is aware of the need to address this as evident from his heads of argument and the cited case of Bishi v Secretary for Education 1989 (2) ZLR 240 (HC), the inordinate delay is embarrassing for the applicant.

The decision declining the applicant’s leave application was given on 7 August 2013. The applicant is therefore some twenty six months late in bringing an application which should be brought within twenty one days in terms of Rule 16 of the Labour Court Rules, Statutory Instrument 59 of 2006.

On the other hand, the final letter of discharge is dated 29 April 2014. The delay in respect to this is some eighteen months.

In both instances, the delay is inordinate.

Explanation for the delay

The applicant explains the delay as occasioned by his absence from Zimbabwe due to his studies in South Africa. It is further explained that as a mere student, the applicant lacked the capacity to immediately mobilise resources required to engage a legal practitioner.

In addition, the applicant states that he was trying to concentrate on his studies without attracting unnecessary distractions.

The record shows that the applicant would come to Zimbabwe whilst on vacation and semester breaks. It is therefore not true that he was away for the whole period of one and a half to two years plus, which is the period of delay.

Like the respondent, I find the explanation given to be unreasonable as it shows wilful default. The applicant demonstrates that, he, with full knowledge of the risks attendant upon default, took a decision not to file pleadings as he prioritised concentration on his studies, to the detriment of safe guarding his employment. He had diligently pursued internal remedies despite being away and at school. (See Zimbabwe Banking Corporation v Masendeke 1995 (1) ZLR 400).

The mere lack of financial resources to hire a lawyer is not a reasonable explanation as most labour matters involve a party whose job has been terminated resulting in loss of a salary. In the end it boils down to a question of priorities. (See Madzivanzira & Ors v Dex Print Investments (Pvt) Ltd 2002 (2) ZLR 316 (H).

Accordingly I find that the applicant has not offered a reasonable explanation for the delay in noting the application for review and in seeking condonation. Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S).

Prospects of Success

The applicant contends that he has high prospects of success in the application for review as he was denied manpower development leave and discharged from service without any legal justification.

It is argued that in terms of section 40(3) as read with the Third Schedule of the Health Service Regulations, 2006, the applicant was eligible for the manpower development leave, was properly recommended for the leave and had offered to be bonded thereafter.

On the other hand, the respondent argued that the applicant violated the Health Service Regulations and standing instructions issued in circulars by proceeding to commence studies in South Africa before his leave had been approved.

I have perused the Third Schedule in paragraph 9. It provides as follows:

“Members may not be granted leave if they leave their stations prior to approval of their leave.”

Further, I was furnished with the Health Service Board Circular Number 3 of 2012 which prohibits members who are studying for a first degree from being granted manpower development leave on full time and on full pay.

In declining the leave, the applicant was advised that there were other three pharmacy technicians from Mpilo Central Hospital who had applied for the same programme.

I find clear legal justifications for the denial of the application for leave. It would also be undesirable for this court to take over the role of the employer who is best placed to know how and where to deploy its human resources by balancing its own interests with those of individual employees. My considered opinion is that the applicant would not succeed on this point.

As to the discharge from service, it is argued that proper procedures should be followed in dismissing an employee.

The respondent explained that after the non-approval of the manpower development leave, the applicant was given an option to resign by 30 June 2013. He however did not exercise this option. The respondent then proceeded in terms of section 62 (e) to discharge him as he had been absent from duty for a continuous period in excess of thirty days without having been granted leave of absence.

In the circumstances, the applicant has no chances of success in this regard.

Accordingly the application for condonation of late noting of an application for review be and is hereby dismissed for lack of merit.

Kachere Legal Practitioners, applicant’s legal practitioners