Radius Madaza v L Vheremu N.O. & Swiss Motors (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO LC/H/82/24
ZIMBABWE HARARE 19 FEBRUARY
2024
CASE NO LC/H/758/23
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IN THE LABOUR COURT OF ZIMBABWE HARARE 19 FEBRUARY 2024

JUDGMENT NO LC/H/82/24 CASE NO LC/H/758/23

RADIUS MADAZA	APPLICANT

L VHEREMU N.O.	1st RESPONDENT

SWISS MOTORS (PVT_ LTD	2nd RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant	-	Mr K. Chirenje, Unionist For 1st Respondent	-	No Appearance, Absentia For 2nd Respondent	-	Mr D. Mutungi Consultant

MUSARIRI, J:

On the 31st August 2023 at Harare, 1st respondent in her capacity as a Designated Agent (DA), issued a determination. She dismissed applicant’s (employee) claim of unlawful termination of employment by 2nd respondent (employer). Appellant then applied for the review of the determination by this Court in terms of section 89(1)(d) & 92 EE of the Labour Act Chapter 28:01 (the Act).  Respondent opposed the application.

The application set out 6(six) grounds for review. These grounds raise the main issue whether the DA made irrational findings and conclusion concerning the lawfulness of the termination of the employee’s employment.

The critical part of Designated Agent’s findings and analysis is set out in the determination thus,

“1. What stopped him from informing the employer in January 2023 that he was unable to attend to his duties. Employer confirmed that he did not receive any communication from Claimant on why he was not reporting for duty. Chances are that he was employed elsewhere and wanted to establish himself there before tendering his resignation. He however found the new pace unbearable and therefore tried to come back to the respondent after 6 months.

The employer argued that the Claimant repudiated his own contract of employment. The code of conduct says if an employee does not report for duty for 5 consecutive working days without any excuse, he is deemed to have dismissed himself from employment.

From the leave record submitted by the employer, Claimant took 25 days as Leave and 396 days have been encashed….”

Though she did not expressly say so, it is apparent from the findings and ruling that the Designated Agent dismissed the claim of un lawful termination. On record there is a letter dated 20th January 2023 written by the employer and addressed to the employee. The letter reads

“This letter serves to inform you that your contract of employment has been cancelled henceforth with immediate effect due to, your failure to report for duty from Tuesday 3rd January 2023 to Tuesday 10th January 2023 and lack of communication as to your absence. It has now been more than 5 consecutive days since you were supposed to report for duty and in terms of the law, such period of absenteeism without lawful or reasonable excuse is unacceptable and amounts to repudiation and unilateral cancellation of the contract of employment.

Kindly be advised that the cancellation has been accepted but with penalties…”

The starting point is section 12b (2) of the Act which provides that “An employee is unfairly dismissed –

If, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code;”

(Subsection 3 refers to constructive dismissal and legitimate expectation of renewal both of which are irrelevant in this matter.)

The relevant Code of Conduct is embodied in Schedule B of the Collective Bargaining Agreement: Motor Industry S.I., 35/11. Paragraph 5 of the Code requires that;

“(a) When the commission of an offence, which warrants a written warning or suspension has been brought to the attention of management, an inquiry shall be conducted in the following manner-

At a hearing; in terms of this Code, an employee shall have a right to:

At least three working days’ notice of the proceedings against him and the charge he is facing;

Appear in person before the employer or the employer’s representative or disciplinary authority as the case may be and be represented by either a fellow employee, workers committee member, trade union official/officer or legal practitioner….”

It is clear from the cited provisions of both Act and Code that in cases of misconduct the employer is required to conduct a hearing where the employee has a right to appear and defend himself. In her determination the D.A. neither mentioned nor discussed these mandatory provisions which govern cases of misconduct such as the absenteeism in casu. Ignoring applicable statutory provisions in making the determination amounts to gross misdirection.

The reference to repudiation by the employee was wrong in the face of clear provisions directing what should be done by the employer in the circumstances.

It is concluded that the determination cannot stand and must be set aside. The employee was unfairly terminated by the employer’s letter dated 10th January 2023.

Wherefore it is ordered that;

The application for review be and is hereby granted; and

The determination dated 31st October 2023 issued by Designated Agent L.

Vheremu is set aside and substituted as follows

The Respondent shall reinstate the Claimant without loss of salary and benefits or

The Respondent shall pay the Claimant damages in lieu of reinstatement in a sum either agreed by the parties or assessed by the Designated Agent.”

G MUSARIRI J-U-D-G-E