Mollyn Banda v Minister of Primary and Secondary Education (N.O.) & Anor

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/224/25
HELD AT HARARE 29TH MAY 2025
CASE NO. LC/H/174/25
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IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE 29TH MAY 2025

AND

In the matter between

MOLLYN BANDA

JUDGMENT NO. LC/H/224/25

CASE NO. LC/H/174/25

APPELLANT

And

MINISTER OF PRIMARY AND SECONDARY

EDUCATION N.O.

PUBLIC SERVICE COMMISSION

1ST RESPONDENT

2ND RESPONDENT

BEFORE THE HONOURABLE MRS JUSTICE MAKAMURE, JUDGE.

FOR THE APPELLANT

FOR BOTH RESPONDENTS

: E.E. MATIKA

:F CHIMUNOKO

MAKAMURE J:

[1]This is an appeal against the appellant’s dismissal from employment following disciplinary proceedings.

An order was made dismissing the appeal with costs . The following are the reasons.

At the commencement of the hearing an application was made for upliftment of an automatic bar operating against the respondent for being out time by one day in filing heads of argument. The application was not opposed. I accordingly granted the application . The respondent also had a preliminary point it intended to raise on the failure by the appellant to file the appeal within the stipulated 21-day period. However, the preliminary issue was abandoned. The merits of the appeal were then heard.

[2]Most of the facts of this matter are common cause. They are as follows.

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The appellant is a school teacher by profession. She was employed as a Senior Teacher by the 1st respondent. She was stationed at Chikwerengwe High School in Gutu District of Masvingo Province. She was absent from duty allegedly without good cause for the periods 01 December 2020 to 18 December 2020 and from 02 May 2021 to 24 November 2023 respectively. On 27th October 2023 investigations were conducted into the allegations of absenteeism. The investigations established that she was at some point in time attended to by a medical doctor but there was no sick leave form to regularize her absence even for the period that she received the medical attention. It was also established that during the period of her absence she was in communication with the School Head and that the School Head advised the appellant to resume duty but the appellant did not take the advice. The investigations recommended that the appellant be allowed to resume duty and be put on her defense. The appellant was by letter dated 25 March 2024 charged with two counts of ‘Absence from duty without good cause, including any abuse of sick leave’ for the two periods. This was a violation of Paragrapgh1 of the First Schedule (Section2) of the Public Service Regulations, 2000, Statutory Instrument 1 of 2000 (the Regulations).

[3]A hearing was conducted at the school on 30th July 2024. Although there appears to be some missing information in the record of proceedings (particularly between pages 32/110 and 33/110 & 81/110 and 82/110) , it was possible with what is compiled, to hear the matter and make a decision.

[4]The appellant gave her side of the story first and thereafter witnesses on behalf of the respondents gave their testimonies. On record are also statements from the appellant’s witnesses who were not able to attend the hearing.

[5]The appellant was represented during the course of the hearing. She was asked to plead to the charges. Below is the response that was given on her behalf by the representative from her trade union(UR) and a portion of the exchange that took place between the parties thereafter :

‘UR. At the moment the member is not decided due to the preliminary point which we wanted to raise . We were not given the evidence of absence. In terms of Section 44(2) of the Public Service Regulations we are supposed to have sight of the material evidence of information used to come up with the charge. We checked with the investigation report and it is saying our member was absent for two different periods. We cannot find source (sic) of those allegations . I wanted to raise that such allegations should be raised from the primary source of evidence which can be verified. Our member would have been given an opportunity to recall and recount. Please Chairperson , can you assist us to access clock in clock out register . We were never given ED92 and the clock in clock out register. Can we have sight of it?

Q. If I may hear from the member, were you at the station between 01 and 18 December 2020?

A. The period 01 to 18 December 2020, is 4 years ago. It’s been a long time back. So I can’t remember.

UR. When I asked her, she said that she could not remember. The same applies to period 02 May 2021 to 24 November 2023. She cannot recall the days which she was absent.

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Q. How do you describe your relations with your head?

A. We were in good books. I coached her son in Computer Science and he came out with an A.

Q.Is the Head lying that you were absent?

UR. The member is neither saying she is lying nor she is not lying . I doubt the capacity of the Head who can remember things that happened four years ago. She is a human being with a memory that is fallible.

….’

(My underlining).

[6]The appellant then told the Disciplinary Committee/Committee that she was once admitted at a medical facility called Topomasi Clinic and also at Kwekwe Hospital. She confirmed that the Head contacted her asking her to come back to work and that she told the Head that she was sick. She further told the Disciplinary Committee that she was getting medical attention ;that such attention was not continuous and that during those periods she did not go to work. She told the Disciplinary Committee that for the periods in question she was unable to perform her duties and she did not complete any leave forms.

[7]The record at page59 shows a memorandum dated 26/10/23 by one Chigumbu (Senior Teacher, then Acting Head) to the investigating team stating that the appellant last reported for duty on 29/03/2020 . The memorandum further indicated that when schools opened on 28/09/2020 the appellant did not report for duty. Chigumbu inquired into the appellant’s whereabouts and then contacted her by phone. The appellant told Chigumbu that she was incapacitated and then the appellant wrote the school giving details of her incapacitation. Chigumbu stated that before getting to the 14th day of absenteeism she advised the appellant that on the 14th day of continuous absenteeism, procedures to stop her from getting her salary would be started. In response the appellant is said to have advised Chigumbu that she was still incapacitated and advised Chigumbu to commence the process as required. Chigumbu stated that she also advised the appellant that if she (the appellant) continued to be absent up to the 30th day , disciplinary proceedings would be instituted against her. On the 30th day Chigumbu recommended that the appellant be discharged from service. The appellant is said to have visited the school when access was required to the rooms she occupied at the school. That was on a Saturday and on that day, she is said to have taken some of her belongings. Then sometime in 2020 the appellant’s husband came and collected her belongings. On 26/10/23 she(the appellant) went to the school to attend investigations with members from the respondents’ offices. The appellant was suspended from duty on 26/2/24.

[8]The first witness on behalf of the respondents was one Rejoice Temayi (Temayi), the Head of the school . He joined the school on 06 March 2023. That was after the appellant was already absent from the school. Temayi is the one who preferred charges of misconduct against the appellant after reading and adopting recommendations from the committee which investigated the appellant’s absence from duty. He was also there for part of the period of the absence , that is from 06March 2023 to November 2023 and he had the clock in, clock out register for that period. Temayi was then asked to produce the clock in , clock out register which showed the proof of appellant’s absence for the periods 1st December 2020 to

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18December 2020 and 02 May 2021 to 24 November 2023 respectively. He showed the Disciplinary Committee the evidence. He further told the Disciplinary Committee that the appellant resumed her duties on 26th February 2024 following which she was suspended from duty(p64). He further told the Committee that from the time that he joined the school up to the time investigations were conducted into her absence, the appellant never assumed duty.

[9]Below are excerpts from the question and answer sessions which took place between the Disciplinary Committee and another witness on behalf of the respondents. The witness answering questions was Effort Chigumbu (Chigumbu) , Senior Teacher, who as noted earlier was Acting Head of the School when the appellant started absenting herself from duty.

At page 25 of the consolidated record the following is recorded:

‘ Q:If Madam Banda say(sic) , you obstructed her from resuming her duty, what do you say?

A:I won’t accept that.

Q:And if she say (sic) that she inquired from you why her salary was ceased and you refused to have ceased her salary , what do you say?

A: I don’t think she can say so because I was communicating with her during the period which she absented herself from work and I even told her that I was now ceasing her salary .She responded saying just follow the required procedures as the Head.

Q: So are you saying you were communicating with her before you ceased her salary?

A: Yes, we were communicating socially and work related issues.

Q:Why did you cease her salary when you were communicating ?

A:The cessation is not based on communicating but it was based on absenteeism from work to the tune of 14 consecutive days.

Q: Why did you discharge her?

A: Because of continuous period of absenteeism from work to the tune of more than 30 consecutive days and learners were suffering.

Q:So did you discharge the member because the learners were suffering?

A:I was Acting Head and mostly I relied on advice from District office.’

At page 26 of the record the following is recorded:

A:‘She last reported for duty on 01 December 2020 and only came to work in May 2024.What course of action did you expect me to do ?’

Q:Why did you misguide the DSI that you were not aware of the members whereabouts?

A: If a member is not at the station , then her whereabouts are not found. I cannot say she is at work while she is not at work.

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Q: Madam Madzvamuse in her report also stated that you advised her that Ms Mollyn Banda was not attending her duties and her whereabouts are not known . What do you say to that?

A: That is what I told her.’

[10]The next witness was Ronald Muganhu (Muganhu) who was the District Schools Inspector (DSI) at the material time. In his evidence, he confirmed the two respective periods during which the appellant absented herself from duty. The periods of absence according to Muganhu were noted on behalf the 2nd respondent. Muganhu informed the Committee that the appellant made three demands which she wanted to be fulfilled before she could come back to work .The demands were that that she wanted : (i) 100% salary increment in US dollars ;(ii) 100% safety from Covid 19 and (iii)100% ‘transport increase’. He also told the Committee that the appellant never reported that she was on sick leave.

[11]Evidence was also led from Plaxedes Madzvamuse , a human resources officer. She told

the Committee about the Acting Head’s report concerning the appellant’s continued absence from work during the periods mentioned in the charge sheet. She mentioned about the paperwork to facilitate the appellant’s discharge from service.

[12]The next witness was Benny Manguma , a Senior Teacher at the school. He confirmed that the appellant was not coming to work during the periods in question although she sometimes came to the station.

[13]At page 71 of the record there is a letter allegedly from the appellant dated 5 September 2021 to the Head which reads as follows:

‘RE: DECLARATION OF INCAPACITY.BANDA M. E.C. NUMBER :5614975D

As a teacher I acknowledge that Monday 30th August was the opening day for the

term and that I should be at work.

Despite my desire to attend , circumstances beyond my control are hindering me in the following ways.

1. Transport operators are demanding payment in forex which I do not earn.

2. To make matters worse my RTGS salary which could buy basic commodities for me and my family has also been ceased .Neither can I afford to present myself in the

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deportment stipulated by the demands of our noble profession .I am wallowing in abject poverty.

3. In the wake of this covid era I need 100% assurance of my safety .

Once these concerns are addressed I will surely present myself as and when I am needed

for I want to work and love my job.

My address and phone remains (sic) unchanged and you can contact me at any time

Yours sincerely

Incapacitated teacher

Banda M’

A similar letter dated 15March 2021 appears at page 81 of the record.

[14]On 9January 2023 the appellant wrote a letter complaining about cessation of her salary alleging that this was done without her knowledge.

[15] On 11January 2023 (page 73 of the record) the appellant’s trade union wrote the Permanent Secretary of the 1st respondent complaining among other things, about the cessation of her salary and placed blame on the school alleging that it was the school Head who was obstructing the appellant from performing her duties.

[16]In Court it was argued for and on behalf of the appellant that the appellant was at the school during the period covered by the first count. As regards the period covered by the second count the argument was that the appellant was obstructed from performing her duties by the Acting Head who allocated her accommodation to another person and also by stopping her from receiving her monthly salary. It was also argued that she was not feeling well and sought medical attention. These two situations incapacitated her from performing her duties. [17] Mr Matsika who appeared on behalf of the appellant submitted that it was under the circumstances the 1st respondent who caused the appellant not to attend to her duties, and as such the 1st respondent cannot blame the appellant for a situation which it caused. Further she had raised the issue with the higher offices including the office of the Permanent Secretary of the 1st Respondent but the respondents were slothful in dealing with the complaint and only attended to it eight months after it had been raised. It was also argued that the period of absence included weekends which the appellant would ordinarily not be at

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work . As such the inclusion of weekends made the period of absence longer. It was a further argument that the investigation team recommended that she be allowed to resume duty.

[18]On record is evidence that during some days during the month of December 2020 the appellant was at work. One of the students wrote a letter stating that during the month of December 2020 the appellant assisted him during examinations which were written during that month. He however did not specify the period that the appellant was present at the school. There is also a letter from one Annah Mudya who at the material time was a senior teacher at the same school with the appellant . She stated that the appellant was at the school for ‘a week and some days’ during the month of December 2020; that she then fell sick during the second week after which she went to seek medical help in Kwekwe.

[19]On record is also a letter from a Doctor Madziwa. It is dated 8th November 2023 It states

that the doctor started seeing the appellant from ‘2019 to 2022’; that ‘she was admitted several occasions for transfusions’. The letter does not inform the employer the periods of such admissions and whether or not the appellant would have needed to be been excused from duty and if so when.

[20] It was also argued on behalf of the appellant that the penalty was excessive and that the

disciplinary authority did not consider mitigatory and extenuating circumstances. Mr Matika submitted that the appeal had merit and should be allowed. Some of the authorities cited on behalf of the appellant include Manyenga v Petrozim (Private) Limited SC40/23; Reserve Bank of Zimbabwe v Granger and Anor SC34/; Zvokusekwa v Bikita Rural District Council; Barros v Chimponda 1999(1)ZLR 59(S); Mupombwa v The Minister,Ministry of Education .Sports Arts and Culture LC/H/09/14; Mushaya v Glens Corporation 199 (1)ZLR 162

[21]On the contrary, Mr Chimunoko who appeared on behalf of the respondents, in addition to abiding by the papers filed of record, argued that a person who falls sick should apply for leave as recommended by a doctor. The appellant’s absence under the circumstances could not be condoned. S38 of the Regulations provides for sick leave and the appellant ought to have taken advantage of the sick leave and regularized her absence. It was submitted that absence from duty for a period in excess of thirty days without leave invites discharge from service. The School Head it was argued ,had no duty to force the appellant to come to work. Further in view of the appellant’s continued absence the School Head saw it fit to get another teacher to replace the appellant. There was therefore need for the appellant to remove her

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belongings from the accommodation at the school in order for another person to be accommodated. It was submitted that the appellant was therefore not obstructed .

[22]On the recommendations by the investigating team for the appellant to resume duty, it was argued that the recommendations were for the appellant to be allowed to resume duty so that she could be put on her defence and not simply for her to commence and continue with her work. It was argued that the appellant raised a complaint on 11/1/23 after being away from duty for a period of more than one and half years. The appellant Mr Chimunoko argued, had abandoned employment and yet had the guts to go back and say she wanted to work. While confirming the duration which it took for the appellant’s complaint to be dealt with, Mr Chimunoko argued that the respondents have their way of dealing with issues and therefore the delay was reasonable. It was further submitted that there was mutual duty of good faith in matters of employment. Mr Chimunoko referred the Court to Mawere v ZIMRA SC 37/2013 ; Moyo v Forestry Commission 1996(1) 173 .It was submitted on behalf of the respondents that the appeal should be dismissed with costs as it was devoid of merit.

[23]In response Mr Matika insisted that the removal of the appellant from school accommodation was unprocedural opining that it is only the 2nd respondent , PSC which has authority to do so and not the School Head. Further, the removal of appellant’s property from school accommodation Mr Matika submitted, amounted to obstruction of the appellant by the school authorities rendering her incapable of performing her duties.

[24]What is clear is that the appellant was absent from work. It also appears not disputed that at some point during her absence she received medical attention. The sole question to be asked and answered is : after receiving medical attention, whether or not she was given a document showing that she was not able to attend to her duties due to illness. The Regulations provide as follows:

‘38. Sick leave

(1) Sick leave may be granted to a member who is prevented from attending his duties because he is ill or injured or undergoes medical treatment which was not occasioned by his failure to take reasonable precautions.

(2) During any one year period of service a member may be granted a maximum of

ninety days’ sick leave on full pay and ninety days’ sick leave on half pay.’

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And S44(2) of the same Regulations provides as follows:

‘44. Procedure before and immediately following allegation of misconduct

(1) Where a member is suspected of misconduct, the disciplinary authority shall

conduct or cause to be conducted such investigations as may be necessary.

(2) If, on completion of the investigations referred to in subsection (1), it is found that an allegation of misconduct should be preferred against the member, the disciplinary authority shall, within a reasonable time after the completion of the investigation— '(a) inform the member, in writing, of the nature of the allegation against him, and call upon him to submit a written reply to the allegation within fourteen days;

(b) where, possible, furnish to the member copies of any material documentary

evidence, if any, relating to the allegation of misconduct, or afford the member an opportunity of having sight of any such evidence.’

[25]In Girjac Services (Private ) Limited v Mudzingwa SC 41/99 the Supreme Court

stated that there must be a distinction between absenteeism due to illness or some other form of incapacity and willful abscondment. The Girjac Services case (above) states that

non-performance of duties for an unreasonable period by an employee justifies an employer in ending the contract of employment between the parties.

[26]In the present case the appellant absented herself from duty. She stated that this was due

to illness. The Head communicated with her and advised her that after absence for a period of fourteen days her ( the appellant’s) salary would be stopped. Instead of making an effort to come to work or send somebody with a letter from a medical doctor advising the Head of the need for her to be away from work , she told the Head to proceed and do what her Office required her to do. This led to stoppage of salary. When asked during the hearing to confirm or deny whether the Head lied in this regard , the appellant could neither confirm nor deny the evidence of the Head in this regard. There were letters indicating that the appellant was at the school for some days during the December 2020 which period forms the basis of the first count. However, the actual period she was there was not established. As for the longer period of absence, there was no indication that she ever performed her duties.

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[27] In addressing the Court Mr Matika submitted that the period of absence included weekends which ordinarily the appellant would not be required to be at work. The inclusion of weekends, the submission continued, made the period of absence longer. Mr Matika however did not provide the number of days which should be deducted from the duration of the absence to reflect the actual period of the appellant’s absence and make such period shorter . Further the appellant herself was not prepared to plead to the charges. It appears as though the appellant was not taking the disciplinary proceedings seriously. Surely where one’s job and source of livelihood was at risk , one would have been expected to be precise in her responses to the charges. This causes the Court to draw an adverse inference against the appellant. Further Mr Matika when asked in Court, whether the appellant submitted a medical certificate or report showing that she was afflicted by some illness and that there was need for her to be absent from duty , Mr Matsika conceded that there was an omission on the part of the appellant in that regard.

[28]The appellant asserted that she was absent due to ill health. There must be proof that the appellant was ill. In Nyahondo v Hokonya &Ors 1997 (2) ZLR 457 it was held that:

‘ The general principle is that he who makes an affirmative assertion, whether plaintiff or respondent, bears the onus of proving the facts so asserted .’

In the present case all that the appellant was required to do was to prove on a balance of

probabilities that she was absent due to ill health. That could only be done by producing evidence from the facilities or the medical personnel who offered her the medical attention indicating that she was not fit to perform her duties. There was no such proof.

[29]The Regulations provide for sick leave but the appellant did not take advantage of that provision. The appellant also asserted that she was obstructed from performing her duties by the Head who caused her belongings to be removed from the school accommodation. From what is on record the Head communicated with her but she( the appellant) was uncooperative.

[30]The absence of the appellant from work meant that the learners she was supposed to teach had no teacher, this necessitated a replacement. The replacement needed accommodation. Thus, the replacement only came due to the appellant’s absence. In the circumstances, the same accommodation that she was using or which housed her personal belongings, had to be allocated to another teacher. The appellant can therefore not allege that she was being obstructed. In fact, what this shows is that she was absent from the school but

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her belongings were at the school and such belongings were obstructing her replacement from accessing the accommodation and therefore it became necessary to remove them.

[31]During the course of the disciplinary hearing there was an effort on behalf of the appellant to distance herself from the letter which she allegedly wrote citing incapacitation and making demands which she said should be met before she could resume her duties at the school. However, the evidence of Muganhu which was corroborated by the other witnesses on behalf of the respondents tends to show that she made the demands . It can be concluded that she did not perform her duties probably because the demands she made to her employer were not met. She can therefore not assert that it was the respondents who obstructed her from attending to her duties.

It is not disputed that the appellant stopped receiving her salary following a recommendation

which was made on 9 September 2021. However, the appellant only raised a complaint about the stoppage of her salary in January 2023. This was long after the salary had been stopped. One wonders why this did not happen earlier if the appellant was indeed keen to go back to work.

[32]In Zimbabwe Electricity Supply Authority v Dera 1998(1) ZLR 500 (S), it was held

that in civil cases the standard of proof is on a balance of probabilities. In Miller v Minister of Pensions [1947] 2 ALL ER 372 it was held that where a tribunal can say “we think it more probable than not, the burden is discharged, but if the probabilities are equal it is not.”

[33] In the present case the appellant says she was sick, but she failed to prove, on a balance of probabilities, that this was so. There is indeed proof that at some point she sought and received medical attention. However, it is not always the position that when a person is not feeling well, they are not able to perform their duties. The Legislature in its wisdom made provisions to ensure that where an employee is not able to perform their duties due to illness, they be granted leave of absence from work.

The period of her absence especially in the second count was long. Even if the period

covered by weekends would have been excluded, I believe that the period of her absence would still have been long and prejudicial to the school particularly to the learners who she was teaching. It was stated that she was present at the school for some days during the course of December 2020. The appellant was not prepared to say when exactly she was present. Here again it appears as though she was not taking the proceedings seriously by the attitude which she adopted by failing to make an effort at least to indicate which days she was at the

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school. There are 31 days in the month of December. What this means is that without specifying which days she was present at the school it is not possible for the Court to make a finding contrary to what is alleged and what the Disciplinary Authority found.

[34] On the question of penalty, it was argued that mitigatory and extenuating circumstances

were not given due weight. Reference was made to Barros & Anor v Chimponda (above) where it was held that in order for a superior court to interfere with the discretion of a lower court, ‘It is not enough that the appellate court thinks that it would have taken a different course from the trial court. It must appear that some error had been made in exercising the discretion, such as acting on a wrong principle, allowing extraneous or irrelevant considerations to affect its decision, making mistakes of facts or not taking into account relevant considerations.’ Unfortunately, I was not able to get the case of Mawere v ZIMRA (above) which was referred to on behalf of the respondents.

[35] In the present case the lower tribunal made factual findings showing that the appellant

was absent from duty without good cause. Where factual findings have been made the appellate court will not interfere. In Nyahondo v Hokonya & Ors ( above) it was held that as a general rule , an appellate court will not interfere with factual findings of a lower court unless the findings are contrary to the evidence presented before that lower court. From the facts presented in the present case, there is proof that a misconduct was indeed committed. This is consistent with the evidence presented before the lower tribunal. In my view, the Committee did not mistake the facts as envisaged in Barros & Anor v Chimponda (above). Further, the misconduct went to the root of the contract of employment. Where a misconduct went to the root of the employment relationship, an employer was entitled to dismiss an employee. In any event the question of what the appropriate penalty is, is the province of the employer. See Circle Cement v Nyawasha SC60/03.

[36] In Innscor Africa (Pvt) Ltd v Letron Chimoto SC 6/12 the Supreme Court stated that: ‘A principle has now been firmly established to the effect an appellate court should not

interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court.’

[37]I am unable to say that the lower tribunal misdirected itself in imposing the penalty of

dismissal as it did. I therefore find no error on the part of the lower tribunal.

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[38] I am therefore persuaded to agree with submissions made on behalf of the respondents that there is no merit in the grounds of appeal. Consequently, I find that there is no merit in the appeal. It must be dismissed.

It was in view of the foregoing that the appeal was dismissed with costs.

MATIKA, GWISAI &PARTNERS, APPELLANT’S LEGAL PRACTITIONERS.

CIVIL DIVISION OF THE ATTORNEY GENERAL’S OFFICE, RESPONDENTS’ LEGAL PRACTITIONERS.