S.E. Tembenuka v Minister of Youth Development Indeginisation and Empowerment

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/662/14
MUTARE ON 16TH SEPTEMBER , 2014
CASE NO. LC/H/120/12
AND 10 TH
JUDGMENT NO. LC/H/662/14
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/662/14

MUTARE ON 16TH SEPTEMBER , 2014			     CASE NO. LC/H/120/12

AND 10TH OCTOBER, 2014

In the matter between

S.E. TEMBENUKA					–	APPELLANT

And

MINISTER OF YOUTH DEVELOPMENT

INDEGINISATION AND EMPOWERMENT	-	RESPONDENT

Before The Honourable L.M. Murasi, J

Appellant   	:	In Person

For Respondent :	Mr M. Chimombe (Legal Officer)

MURASI J,

At the conclusion of the oral submissions the Court dismissed the appeal stating that the reasons would follow. The following are the reasons.

Appellant was employed as a Clerk in the Ministry of Youth Development Indigenisation and Employment (hereafter The Ministry or Respondent). The Ministry carried out a rationalization of the posts that existed at the Provincial Office at Mutare. This resulted in Appellant being posted to the District Office at Mutasa. Appellant was duly informed of the decision and was instructed to report at Mutasa District Office. He did not. Appellant chose to challenge the decision transferring him to that office. Respondent finally decided to discharge Appellant in terms of Section 63(e) of the Public Service Regulations, 2000 Statutory Instrument 1 of 2000 (as amended) as Appellant had absented himself from office for a period in excess of thirty (30) days. An appeal to the Commission did not yield the desired results and Appellant has approached this Court.

Appellant in his submissions, stated that Respondent erred in that it did not carry out any investigation before making the decision to discharge him. Appellant further averred that the Regulations required that the Respondent should at least carry out investigations before making a decision. In any event, he argued, he was deligently reporting at the Provincial Office in Mutare.

Respondents’ Counsel stated that he abided by the Heads of Argument filed of record. It was submitted on behalf of Respondent that the transfer of members is provided in Section 13 of the Regulations. Further, it was stated that Section 63(e) of the same Regulations provide for the summary discharge of a member who absents himself/herself from work for a continuous period in excess of thirty (30) days without having been granted leave. It was argued that in the present matter Appellant had absented himself from work for a period in excess of 30 days warranting his dismissal from work.

It is trite that an appellate court will interfer with the decision of a lower tribunal if there is evidence of a misdirection. The Appellant by his own admission was absent from the Mutasa District Officer where he had been posted for a period in excess of 30 days. He infact did not even assume duty at that station. His explanation was that he had been wrongly graded by the Respondent. The record does not show any evidence that he had been erroneously regarded. In fact, the record shows that Respondent was in the process of rationalizing posts in the service by placing members with appropriate qualifications into their respective positions. Appellant’s qualifications matched the post at Mutasa District Office. Appellant was clearly wrong in adopting the attitude that he did. In fact he continued to draw a salary for close to a full year for no work done. He was posted to Mutasa District Office in November 2009 but only got discharged in November 2010. This was wilful disobedience. As stated by GUBBAY J.A. (as he then was) in MATEREKE v C.T. BOWRING ASSOCIATES (PVT) LTD 1987 (1) ZLR 206 (S).

“The requirement of ‘wilful’ disobedience is not defined in the Regulations. But, having regard to the purpose of this piece of legislation as well as to the common law grounds for summary dismissal for wilful disobedience or wilful misconduct, the words in my view connote a deliberate knowledge and deliberateness must be present. Disobedience must be intentional and not the result of mistake or inadvertence.”

I fully associate myself with the above sentiments. That Appellant’s actins to disobey orders were deliberate and intentional are without question. Appellant fully appreciated that he was acting wrongly.

In the result the Court finds the appeal to be devoid of merit and it is accordingly dismissed with no order as to costs.

CIVIL DIVISION OF THE ATTORNEY GENERAL’S OFFICE – Respondent’s legal practitioners