Peterhouse School v Anyway Pindukai

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/146/16
HELD AT HARARE 16 FEBRUARY 2016
CASE NO
JUDGMENT NO LC/H/146/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/146/16

HELD AT HARARE 16 FEBRUARY 2016			CASE NO LC/H/443/15

& 18 MARCH 2016

In the matter between:

PETERHOUSE SCHOOL				Appellant

And

ANYWAY PINDUKAI					Respondent

Before The Honourable F C Maxwell, Judge

For Appellant			Mr G Makings (Legal Practitioner)

For Respondent		Ms S Chihombe (Trade Unionist)

MAXWELL, J:

At the hearing of this matter I upheld the appeal and indicated that reasons would follow.  These are they.

This is an appeal against the determination of Appeals Committee of the National Employment Council for the Welfare and Educational Institutions in Zimbabwe (NECWEI).  Respondent was employed by the appellant as a grounds man.  He was charged with wilful disobedience to a lawful order given by a person in authority and deliberately giving untrue, erroneous or misleading information or testimony whether verbally or in writing. He was found guilty and was dismissed from employment.  Aggrieved with the dismissal, he appealed to the NEC Appeals Committee where the decision of the disciplinary committee was set aside.  Appellant was ordered to reinstate the respondent with salary and benefits from the date of dismissal or pay damages in lieu of reinstatement if reinstatement was no longer tenable.

Appellant noted an appeal in this court on the grounds that the Appeals Committee should not have substituted their decision in place of the Disciplinary Committee’s decision.  Appellant stated that the committee argued that respondent merely breached reporting procedures yet respondent was on instruction to carry out work on the long jump pits which he did not do.  Appellant further stated that even if respondent had fallen ill, he had a duty to let his supervisor know so that alternative arrangement could be made.

With regards to the second charge, appellant argues that the committee erred in making a finding that the supervisor has no right to be both the complainant and to give evidence in support of the claim.  Appellant also stated that the committee erred in rejecting the evidence of the witnesses on the basis that they had a 5 minutes variance in time.

In response respondent stated that the instruction was partially complied with but could not be finished due to ill health.  Respondent further stated that the supervisor was not in the vicinity and there was no deliberate disobedience to the instruction.  In his view the issue of not reporting to the supervisor cannot be treated as wilful disobedience to a lawful order but rather as a breach of reporting procedure which could have been treated in some other way besides disciplinary hearing.  Respondent submitted that the decision of the disciplinary committee was unjustified and harsh therefore the NEC Appeals Committee did not err in overturning it.

Concerning the first charge, the Appeals Committee found that the appellant failed to complete the task on the grounds of illness as evidenced by the medical certificate which was not challenged.  The committee further stated that the failure by appellant to report to the supervisor about his illness and intention to visit the clinic was a breach of a reporting procedure.

The fact that an employee is ill does not excuse him from notifying his supervisors or being granted leave.  It does not matter that the superiors are aware that he is not feeling well.  Formal procedures must be followed.  In Maxwell Mwanyisa v The Minister of Finance & Others SC 6/02, appellant had serious mental illness and a fractured leg.  He was not excused from fulfilling the requirements of applying for sick leave.  The Supreme Court agreed with the court a quo  that

“It is difficult to accept that the injuries he sustained caused him so much pain and suffering that he was unable to visit his workplace and advise his employer of his mental and physical ailments.  Even if one accepted that he could not personally visit his workplace, it is impossible to believe that he could not send a message to his workplace.”

Therefore in leaving his assignment without being granted leave, appellant was wilfully disobedient.  The NEC Appeals Committee’s decision can therefore not be supported.

On the second charge, the Appeals Committee erred in finding that the supervisor cannot make allegations and be a witness on the same time.  It is trite that a complainant must buttress his complaint in any forum and witnesses come to support the complainant’s case.  The Appeals Committee’s finding is without legal basis.  The committee also criticised the witnesses for the variance in the time when appellant left his work site for the clinic.  In my view the discrepancy is immaterial where proof is required on a balance of probabilities.

The Appeals Committee ordered the reinstatement of the appellant alternatively payment of damages in lieu of reinstatement on the basis that the charges levelled against the appellant have no basis.  Clearly the committee was wrong in that it is common cause that appellant left his work site without notifying his supervisor and without being excused.  It is trite that once on employer takes a serious view of the act of misconduct committed by the employee and dismisses him, there is no basis for an appeal court to interfere with the penalty of dismissal unless it is shown that there was gross misdirection.  There was no basis for the Appeals Committee to interfere in this case.

For the reason stated above I upheld the appeal.  Wherefore I make the following order.

The decision of the Appeals Committee be and is hereby set aside.

The dismissal of the Appellant be and is hereby confirmed.

G Makings, appellant’s legal practitioners