Mbada Diamonds (Pvt) LTD V Phibion Mutizha

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/193/14
HELD AT HARARE 18TH MARCH 2014
CASE NOS
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/193/14

HELD AT HARARE 18TH MARCH 2014			CASE NOS LC/MC/32/13 &

&11TH APRIL 2014						LC/H/736/13

In the matter between:-

MBADA DIAMONDS (PVT) LTD				Appellant

And

PHIBION MUTIZHA					Respondent

Before The Honourable F.C. Maxwell, Judge

The Honourable L Kudya, Judge

For Appellant 		Mr Marara (Legal Practitioner)

For Respondent		Mr Madondo (Trade Unionist)

MAXWELL, J:

Appellant applied for consolidation of two matters.  The application was granted.  This judgment is therefore covering the two appeals.

On 8 May 2013 appellant noted an appeal in this Court under reference LC/MC/32/13 with the following grounds of appeal;

The Honourable Arbitrator grossly erred and misdirected himself at law in holding that the respondent was unfairly dismissed when it is clear that the respondent repudiated his contract of employment.

The Honourable Arbitrator grossly erred and misdirected himself at law by placing emphasis on the provisions related to sick leave when it was clear that there was no prior application for sick leave that had been made by the respondent and as such the provisions of section 14 of the Labour Act [Chapter 28:01] could not be involved to cover the case.

The Honourable Arbitrator grossly erred and misdirected himself on the law and on the facts by ordering reinstatement without loss of salary and benefits of the respondent for a period he never rendered service and had not communicated prior as to his whereabouts.

The Honourable Arbitrator grossly erred and misdirected himself on the facts and the law by holding that the appellant was supposed to conduct a disciplinary hearing for an employee whose whereabouts were unknown.

The Honourable Arbitrator grossly erred and misdirected himself on the facts and the law by ignoring the clear and unequivocal factual and legal positions that:

There was no application for sick leave that had been made by the respondent and consequently there was no leave as per the provisions of section 14 of the Labour Act.

The respondent did not communicate with anyone during the tenure of his sickness and Mr Kadyamusuma the alleged recipient of the message of sickness distanced himself from these allegations and his evidence was not challenged.

The conduct of leaving employment without communication amounted to desertion which is a repudiation of the contract of employment entitling the other party to accept the repudiation and this is what the appellant did in casu and the contract of employment was terminated.

There was no legal basis for shifting the onus to the appellant to prove termination of the contract when it was clear that repudiation of the contract by the respondent had the effect of terminating the contract of employment.

Appellant prayed for the setting aside of the award.

Respondent denied deserting work and gave the following history;

At the end of 2010 he went for sick leave after succumbing to prolapsed disc syndrome.

He recovered in March 2011, worked for a few days and fell sick again.

He was referred to appellant’s clinic at Chiadzwa and was ferried in appellant’s motor vehicle from the plant to the clinic

The outpatient record at appellant’s clinic shows that he sought medical attention there.

The clinic advised him to seek medical attention from a doctor.

He was attended by Dr Chaitezvi who referred him to Dr Kasongo, a government doctor.

He was certified fit to resume work on 17.12.12

He was surprised to be advised that his contract of employment had been terminated long back.

The dispute was subsequently referred to arbitration. On 30 April 2013

the arbitrator made the following award;

“1.	Claimant was unfairly dismissed.

2.	I hereby order that claimant be reinstated with full pay and benefits with effect from April 2011

3.	If reinstatement is no longer an option, I hereby order that claimant be paid back pay from April 2011 to 30 April 2013, the date of the award.  Further to that, claimant should be paid damages in lieu of reinstatement to be agreed to by parties within 14 days of receipt of this award.  If parties fail to agree to such quantum, they can approach me for quantification of damages.”

On 16 September 2013 the arbitrator quantified the damages to a gross amount of $59 693.70 which quantification was appealed against on 20 September 2013 under reference LC/H/736/13.  The grounds of that appeal are;

The Honourable Arbitrator grossly erred and misdirected himself on the law and the facts by proceeding to determine the question of damages on the papers without summoning the parties for an oral hearing in order to lead evidence on the quantum of damages.

The Honourable Arbitrator grossly erred and misdirected himself at law by ignoring the question on whether or not the respondent had mitigated his damages, despite the fact that this issue had been presented to him during the submissions.

The Honourable Arbitrator grossly erred and misdirected himself at law by holding that it would take the employee six months to secure alternative employment without hearing evidence on this aspect.

The Honourable Arbitrator grossly erred and misdirected himself at law by ignoring the fundamental principle of the law that if an employee does not render work he is not entitled to be paid. And especially the present case where the employee had deserted work and returns one year later claiming employment.

The Honourable Arbitrator grossly erred and misdirected himself at law by ordering payment of notice pay without establishing a legal basis for such an order, and even especially when the principle for quantification of damages has been established by the Labour Court and the Supreme Court.

The Honourable Arbitrator grossly erred and misdirected himself at law by awarding cash in lieu of leave, where there was no evidence for such, and especially when this was being challenged by the appellant in its papers.

The Honourable Arbitrator grossly erred and misdirected himself at law by ordering the payment of gratuity for 44 months when it was clear that the appellant clearly had a pension scheme with effect from 1 August 2013 and the respondent would obtain benefit from the same.

The Honourable Arbitrator grossly erred and  misdirected himself at law and on the facts by ordering payment of damages without establishing the legal basis upon which he is claiming the payment of gratuity after operationalization of the respondent’s pension fund.

Appellant prayed for the setting aside of the award in its entirety.

In response, respondent disputed that there was no oral hearing.  He

stated  that the oral hearing was held on 10 July 2013.  The respondent submitted that grounds of appeal 2 and 6 did not raise questions of law and were therefore not valid. He further submitted that the award of 6 months pay as damages was not unreasonable as evidence had been led and heard.  In his view there was nothing wrong in the award of back pay as the arbitrator had ruled that the dismissal was unfair and had ordered reinstatement without loss of salaries and benefits.  Respondent further submitted that the challenge to the award of three months notice pay was invalid as the Labour Act provides for same in section 12 (4) (a).  Lastly respondent submitted that the arbitrator did not err in awarding gratuity because the pension scheme started in August 2013 when applicant had already been dismissed.  Respondent prayed for the dismissal of the appeal.

I will proceed to first consider the appeal against the award that ordered respondent’s reinstatement or payment of damages in lieu of reinstatement.  The question that begs an answer is whether or not respondent was on sick leave.  Sick leave is provided for in section 14 of the Labour Act [Chapter 28:01] (The Act).  Appellant submitted before the arbitrator that though section 14 of the Act provided for sick leave, respondent had failed to provide a medical certificate certifying his alleged illness.  The arbitrator nevertheless held that there was no proof that appellant had followed due process in terms of section 14 of the Act in terminating respondent’s contract of employment.  The arbitrator further held that if appellant was of the view that respondent had deserted work disciplinary proceedings for absenteeism should have been instituted.  The arbitrator disagreed that the termination was properly done in terms of section 12 B of the Act.

In his analysis of evidence and submissions quoted the provisions of section 14 of the Act in so far as they state that there should be sick leave of

90 days on full pay and

180 days on full and half pay and that termination may follow

thereafter.  What the arbitrator failed to do was to pay close regard to the wording of section 14 of the Act.  Firstly the Act says sick leave

“shall be granted in terms of this section…”  In my view the use of the word “granted” presupposes a request for such leave.  Subsections 2 and 3 remove any doubt that this is so by use of the words “… at the request of the employee supported by a certificate signed by a registered medical practitioner…”.  Subsection 3 goes on to clarify that after 90 days on full pay, a further 90 days will be granted on half pay where “in the opinion of the registered medical practitioner… employee will be able to resume duty after such further period of sick leave.”

A letter from Dr I Kasongo of Mutare Provincial Hospital dated

17 December 2012 appears on page 38 of the record.  The letter cannot be classified as a “certificate” that is required in terms of section 14 of the Act.  In any event the wording of the section shows that the certificate and request precede one going on sick leave.  It is not retrospective as in my view the doctor’s certificate helps in the assessment of whether or not the length of leave requested is warranted. There is also an outpatient record and review card on page 41 of the record in respondent’s name.  Again this falls short of the requirements of section 14 of the Act.  In my view the arbitrator grossly misdirected himself by finding that appellant should have complied with the provisions of section 14 of the Act when no application or request for sick leave had been made by the respondent.

Respondent cannot be said to have been so incapacitated as not to be able to notify the appellant of his condition.  As stated above, an outpatient card was produced which is evidence that he was not hospitalised.  He visited the clinic and hospital but did not bother to go to the appellant to regularise the sick leave.  That he fell sick at work and was ferried to the clinic by a company vehicle is neither here nor there.  The statute requires an application or request to be made and be supported by a medical certificate.  The Supreme Court has held that even where one is incapacitated and cannot personally visit his work place, he should send a message to his work place.  See Maxwell Mwanyisa v The Minister of Finance and Others SC 6/02.

In my view respondent should have arranged for someone to submit the application or request for sick leave if he was so incapacitated as not to be able to do it himself.  As was held in the Mwanyisa case cited above, the respondent repudiated his contract of employment by staying away from work for such a long time.  As a result appellant was entitled to terminate his contract of employment in terms of section 12 B of the Act.  The arbitrator’s award was based on a wrong premise and cannot be supported.  The appeal against the award of 30 April 2013 therefore succeeds.

Now turning to the appeal under reference LC/H/736/13 I find it not necessary to deal with it.  The appeal was against the quantification of damages pursuant to the award which I have dealt with above and found that it cannot stand.  As a result this appeal also succeeds.

Wherefore I order as follows

The arbitrator’s award dated 30 April 2013 be and is hereby set aside                and is substituted with the following order

“Claimant’s claim be and is hereby dismissed for lack of merit.”

Respondent’s dismissal be and is hereby confirmed.

The arbitrator’s award dated 16 September 2013 be and is hereby set aside.

Appellant has no obligation to pay respondent.

There is no order as to costs.

…………………………………………….

F.C. MAXWELL

JUDGE

………………………………………….        I agree

L KUDYA

JUDGE