Lazarus Severiano v RioZim Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/208/24
HARARE, 29 FEBRUARY 2024 & 8 MAY 2024
CASE NO LC/H/695/23
In the matter between:-
APPELLANT
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 29 FEBRUARY 2024 & 8 MAY

2024

In the matter between:-

APPELLANT

LAZARUS SEVERIANO

RESPONDENT

RIOZIM LIMITED

Before the Honourable Kudya J

For the Appellant

K. Masasire (Legal Practitioner)

For the Respondent

W. Diarra (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the designated agent who found that appellant was guilty of habitual neglect of his duties and penalised him with dismissal.

Facts of the matter are that appellant was accused of habitual neglect of duty where it was said that he was in the habit of taking sick time off and upon expiration of the sick leave he would not come back to work thus prejudicing the operations of the respondent where the appellant’s duties involved team work with a colleague who would end up working alone in appellant’s absence to the detriment of the respondent’s business affairs.

Following disciplinary proceedings the appellant was found guilty and dismissed from work. He approached the DA who upheld the guilty verdict and the dismissal penalty. Unhappy with the DA’s decision he approached this court on appeal which appeal is the subject of this judgement. He raises the following appeal grounds:-

1) The DA erred and misdirected itself at law in upholding the decision of the disciplinary committee in dismissing the appellant without considering that; a) The charge of habitual and substantial neglect of duty was not the appropriate charge against the appellant instead absenteeism was the proper charge against the appellant.

b) There was no evidence in the entire matter justifying or supporting the charge of habitual and substantial neglect of duty.

2) The DA erred and misdirected itself at law by upholding that the dismissal on the basis that appellant was on a warning when he was not and no evidence of the said warning was produced to support the same.

3) The DA erred by upholding the dismissal of the appellant when it was clear that appellant has never committed any offence and appellant was on sick leave and his shift was off duty from work when his sick leave expired thereby rendering the dismissal unfair.

In the result appellant prayed that the appeal succeeds with costs on attorney and client scale and that the DA’s decision of 28 July 2023 be set aside and be substituted with an order granting the appeal against the disciplinary committee decision against appellant, setting aside the disciplinary committee decision of 25 July 2023, finding appellant not guilty of habitual and substantial, neglect of duty and that he be reinstated to his original position without loss of salary and benefits or that he be paid damages if reinstatement is no longer possible and damages to be agreed upon by the parties or set by the court on application by either party.

In response to the appeal the respondent maintained that: **Ground 1**

1) The charge of habitual and substantial neglect was the appropriate charge as evidenced by the records attached where appellant was only present for 9 days out of a 19 day shift. Evidence of time sheets and statements was provided to show that appellant was in habitual and substantial neglect of his duties. Appellant’s attendance record revealed that he had been sick for a total of 23 days yet there was no evidence that he had a chronic illness that required special accommodation. Appeal ground 1 is premised on a misapprehension of the law as appellant’s conduct went beyond absenteeism. Minutes of the disciplinary committee and the time sheets showed that appellant exhibited a trend of absenteeism for more than 4 days on a multiple of occasions within the investigated period. The bouts of absenteeism were not justified and affected respondent’s operations.


There was therefore enough evidence to justify a charge of habitual and substantial neglect of duty and the DA to uphold the decision of the disciplinary authority. The ground is therefore without merit and should be dismissed.

**Ground 2**

The ground is defective in that it is based on a wrong reading of the appeals authority ruling. A written warning is not an essential requirement to the finding of a verdict or dismissal on a charge of habitual and substantial neglect of duty. It is for this reason that the ruling refers to the appellant being given a warning by his supervisors for his neglect of his duties as aggravating circumstances and not as the reason for upholding the decision of the disciplinary authority. The court should therefore not entertain such a defective ground of appeal.

**Ground 3**

It is undisputed that appellant took sick leave which was granted. The issue pertains to appellant’s failure to return to duty upon the lapse of sick leave period. It is disputed and denied that the dismissal was unfair. Appellant’s conduct amounted to habitual and substantial neglect of duty. Appellant’s poor attendance trend resulted in blockages in the Bioxy lines thereby costing the company in real pecuniary terms.

The appellant had received a warning prior to dismissal. The offence warranted dismissal per the CBA.

In the result the respondent prayed that the appeal be dismissed with costs on a legal practitioner scale for lack of merit.

It is settled that the appellate court will not interfere lightly with the decisions of a trier of fact unless it is demonstrated that the decision is grossly unreasonable. See **Nyahondo v Hokonya and others 1997(2) ZLR 457(S) and Hama v NRZ 1996(1) ZLR 664(S).**

In the matter at hand 2 points in limine were raised. The court advised the parties that it would determine the points in limine at the same time when it would be determining the merits of the appeal.

**Point in limine 1**

On this point the respondent queried why appellant chose to challenge the charge which was preferred yet he had not raised the issue of the irregularity of the charge in the tribunals aquo. It to that extent prayed that the first ground which challenged the charge should be struck off as being bad at law.
 In response the appellant stated that it was granted that the employer retained the prerogative to prefer a charge against an employee but hastened to mention that querying the propriety of a charge was a point of law which could be raised at any stage of the proceedings. A point of law has been defined in numerous decisions chief among them. **Sable Chemical v Easterbrooke SC-18-10**. It is apparent that the query raised by the appellant vis the charge is indeed a point of law capable of being raised at any stage of the proceedings. To that extent the point in limine relating to it is without foundation and should fail.

**Point in limine 2**

Under this head the respondent argued that ground 3 was not clear and concise as it sought to argue about the sick leave issue which was not the centre of the charge of habitual neglect of duty. It is settled that appeal grounds should be clear and concise See **Kunonga v CPCA SC-25-17**. A reading of ground 3 shows that appellant is unhappy about being found guilty of habitual neglect of duty yet there was evidence on record that he was officially on sick leave followed by his team being off duty. It is the court’s view that even though the ground was inelegantly crafted the court could appreciate what the appellant was querying. To that extent the point in limine lacked merit and also had to be dismissed.

**Merits**

A reading of the 3 appeal grounds speak primarily to the fact that appellant is of the view that his guilt was not birthed by substantive fairness if regard is had to the fact that whenever he went off sick his leave was approved by management and that upon his return from sick leave his team would be off duty so he would follow suit and also go off duty. The critical issue to be determined by this court is whether it can be said that the DA and by extension the shop floor disciplinary arbitrators exercised their discretion in circumstances that can be concluded to be grossly unreasonable when they found appellant guilty and penalised him with dismissal.

As earlier stated at the onset of this judgement it is settled that appellate tribunals will not interfere lightly with the exercise of discretion by the trier of fact unless it can be demonstrated that the exercise of that discretion was grossly unreasonable. See **Hama v NRZ** (Supra). In the case at stake the facts of the matter are that appellant was in the habit of taking sick leave and at the expiration of his sick leave going off duty with his shift mates to the extent that such conduct interfered with the operations of the employer.


It also need be noted that parties filed with the court records of how appellant was going on sick leave followed by going off duty thereafter with shift mates. The court observed that the roster was not very legible but it did show that appellant indeed would be off duty on sick leave followed by off duty per his shift schedule and this was on more than one occasion over the period that was under review. The court is agreeable that there was nothing wrong about going off duty on sanctioned sick leave and team off duty but it is clear that there was everything wrong when that became a pattern. The effect of that pattern indeed would be to jeopardise the operations of the employer. The court is satisfied that on account of the repeated conduct which prejudiced the employer’s operations it was proper to charge appellant and find him guilty of habitual and substantial neglect of his duties. The court is therefore not persuaded that it has any reason to fault the conclusions arrived at by the lower tribunals. The appeal can therefore not succeed on account of the argument that a wrong charge was preferred.

As regards the issue of the warning the court is in agreement with the respondent that if the warning was a verbal one it obviously would not have a record and even if it were written it is not the basis upon which the appellant was found guilty. The ground vis the warning being without foundation should also fail.

As regards the last ground which speaks to sanctioned to sick leave and team time off the sentiments expressed on the issue in ground 1 apply to this ground with equal force. No purpose would be served by repeating the same. Suffice to say that the employer’s nod on sick leave and team time off did not detract from the fact that the repeated conduct prejudiced the employer thus satisfying the test that the repeated conduct was consistent with habitual and substantial neglect of duty. The appeal cannot succeed under this rung. In the ultimate it is clear that the appeal is entirely without merit and should fail.

IT IS ORDERED THAT

Appeal being without merit in its entirety it be and is hereby dismissed with each party being its own costs.

Masasire Law Chambers, Appellant’s Legal Practitioners

Coghlan, Welsh and Guest, Respondent’s Legal Practitioners
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