Martin Chahwanda v Minister of Primary and Secondary Education & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/140/2025
HARARE, 27 MARCH, 2025 AND
3 APRIL 2025
CASE NO LC/H/114/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/140/2025

HARARE, 27 MARCH, 2025 AND

3 APRIL 2025	CASE NO LC/H/114/25

MARTIN CHAHWANDA	APPLICANT

MINISTER OF PRIMARY AND SECONDARY EDUCATION	1ST RESPONDENT

PUBLIC SERVICE COMMISSION	2ND RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant	- M. V. Kasvaurere, Attorney

For Respondent	- D. Machingauta, Officer

MUSARIRI, J:

Applicant applied to this Court for the review of the termination of his employment contract by Respondents. The application was made in terms of Section 89 (1) 1 d of the Labour

Act Chapter 28:01 as read with Rule 20 of the Labour Court Rules, 2017. Respondent opposed the application.

The grounds for review were duet but applicant abandoned the 2nd ground leaving the 1st ground which reads,

“1.	The Respondent violated the audi alteram partem principle by dismissing the Applicant without affording him an opportunity to be heard.”

The ground was expatiated in applicant’s founding affidavit thus,

“6 I was employed by the Respondents as a Teacher with EC No. 842249 at Mutoko Primary School under Mutoko District.

I was dismissed from employment without a hearing. I was just served with a notice of termination that explained that I was dismissed owing to absenteeism from work.

Consequently, I was never heard regarding my plea and explanation for my alleged absenteeism if any. I was, therefore, not afforded an opportunity to be heard and ought to have been at the very least afforded such an opportunity.”

Applicant prayed for his reinstatement without loss of salary and benefits. Respondents countered through the 1st Opposing Affidavit as follows,

“4. The applicant was employed as a senior teacher at Mutoko Primary School. He went on indefinite sick leave on 29 April 2008. See Annexure A. His sick leave continued beyond the 90 day period allowed under the Public Service Regulations, without the necessary medical certification required to extend his leave or validate his absence…

The Applicant’s absence and failure to attend the medical board did not go unnoticed. Both the Head of School and District authorities attempted on multiple occasions to contact the Applicant and facilitate his compliance with the regulations. They made several attempts to reach him for him to appear before the medical board. These efforts were unsuccessful because the Applicant was not within the jurisdiction and was, in all likelihood, out of the country………..

The Applicant’s wife wrote a resignation letter on his behalf on 28 July 2008, which was the last day of the expiry of the 90 day period for his sick leave. See Annexure D. It is noteworthy that this resignation letter was an attempt to circumvent the consequences of the Applicant’s absenteeism and the failure to comply with the necessary procedures….

After a period of nine years during which the member’s record remained dormant, the Ministry undertook exhaustive efforts to contact the member through all available channels, but these were unsuccessful. As a result a summary discharge was executed.”

Respondent then prayed for the dismissal of the application.

Analysis

The application and opposition thereto raise 2 (two) issues which shall be addressed ad seriatim.

A. Whether applicant was entitled to a hearing before termination of his employment contract by respondents

Applicant did not motivate his preliminary point in oral argument so the point is deemed as abandoned.

Applicant relied on the case of,

Taylor v Minister of Education, 1996 (2) ZLR 772 (5)

Per Gubbay CJ at 780A-C

“The maxim audi alteram partem expresses a flexible tenet of natural justice that has resounded through the ages…In traditional formulation it prescribes that when a statute empowers a public official or body to give a decision which prejudicially affects a person in his liberty or property or existing rights, he or she has a right be heard in the ordinary course before the decision is taken.”

Respondents relied on,

Metsola v Public Service Commission 1989 (3) ZLR

Per Gubbay JA at 154E

“The audi, maxim is not a rule of fixed content, but varies with the circumstances.”

However this Court considers that the applicable law is Section 63 of the Public Service Regulations S.I 01 of 2000 (as amended by S.I. 58A of 2001) which provides that

“The Commission or a head of Ministry may discharge from the Public Service with effect from the date of detention, restriction or conviction, as the case may be, a member who-

(e )	has been absent from duty for a continuous period in excess of thirty days without having been granted leave of absence.”

The crisp question is whether this provision empowered respondents to impose the summary discharge without hearing applicant. The Court takes the view that the provision indeed empowered respondents to act as they did.

Firstly it is important to note that the 1st act of misconduct in the First Schedule to the Regulations is defined as

“Absence from duty without good cause, including abuse of sick leave.”

The suggested penalty for the offence is set out in the Fifth Schedule as “1st offence

Fine of $150 per day of absence…”

That offence is subject to the ‘Disciplinary Procedure” under Part VIII of the Regulations. The procedure entails a hearing at which an employee is entitled to be heard under Section 45 (2).

However Section 63 appears in Part X of the Regulations. The part is headed ‘General.’ The section specifically references absence for a ‘continuous period of thirty days without having been granted leave of absence.’ Clearly absence for thirty days without leave has been taken out of the ambit of the disciplinary procedure provided by Part VIII of the Regulations. It was set apart for different treatment. That treatment is summary discharge at the discretion of the employer. This is because the Part does not provide for a hearing before the employer exercises its discretion. To hold that the employer’s discretion under S63 is subject to the employee’s right to be heard is to go against the intent of the law-giver.

B	Whether applicant was heard before termination of his employment contract by respondents;

In light of the Court’s take on the 1st issue, the 2nd issue becomes redundant

Conclusion

In light of the foregoing analysis, it is concluded that the sole ground for review lacks merit. Therefore the application ought to be dismissed as devoid of merit.

Wherefore it is ordered that:

The application for review be and is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI J-U-D-G-E