Vortigen Investments (Pvt) Ltd v Ticharwa Moto

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/167/16
HELD AT HARARE 23 FEBRUARY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/167/16

HELD AT HARARE 23 FEBRUARY 2016			CASE NO LC/H/959/15

& 18 MARCH 2016

In the matter between:

VORTIGEN INVESTMENTS (PVT) LTD				Appellant

And

TICHARWA MOTO						Respondent

Before The Honourable L M Murasi, Judge

For Appellant			Mr T A Chiurayi (Legal Practitioner)

For Respondent		Mr A B Wenyimo (Legal Practitioner)

MURASI, J:

Respondent was employed by the appellant.  Sometime in November 2013 respondent got injured at work which necessitated that he receives medical attention.  It is common cause that respondent was granted sick leave days by the appellant.  It is the manner in which the appellant dealt with the sick leave days that has brought this matter to this court’s attention.    Appellant proceeded to terminate respondent’s contract of employment in July 2014 which led respondent to refer the matter to the union.  The matter ended up in arbitration and the arbitrator found in favour of the respondent.  Appellant is of the view that the arbitrator’s finding was wrong and has appealed to this court.

Appellant’s grounds of appeal are as follows:

The arbitrator grossly misdirected himself in finding as a matter of fact, which misdirection amounts to an error of law, that there was no evidence of communication from a registered medical practitioner upon which respondent was granted sick leave.

The arbitrator grossly misdirected himself on the facts, which amounted to misdirection on a point of law by finding that the respondent’s absence from work was not in pursuance of sick leave granted to him.

The arbitrator erred and misdirected himself on a point of law in finding that there was no substantive fairness in the termination of the respondent’s employment despite appellant having accordingly exercised its discretion in terms of section 14 (4) (b) of the Act.

At the commencement of the proceedings the point was raised that respondent’s

Counsel had not filed heads of argument in the matter.  Mr Wenyimo for the respondent stated that Mr Chikowero who was handling the matter had not been able to do so because of other commitments.  It was further stated that Mr Chikowero  was on study leave and that prevented him from filing the said heads of argument.  The court inquired as to when he had gone on the study leave and the response was that it was from December up until end of January.  The record shows that respondent was served with appellant’s heads of argument on 2 December 2015 and did nothing until the date of the hearing.  In declining to uplift the bar operating against the respondent, the court made the observation that there was an increasing number of legal practitioners who were not complying with the Labour Court Rules.  The court further remarked that some of the explanations tendered bordered on insulting the intelligence of the court.  The court also stated that no reasonable explanation had been tendered.  The court therefore declined to uplift the bar operating against respondent.

Mr Chiurayi, on the merits, stated that he largely abided by the documents filed of record.  He submitted that the record showed that respondent was not in a position to be at work.  These were therefore the applications for sick leave from the respondent and they led to an aggregate of 180 days.  He stated that the second ground of appeal was covered by page 42 of the record.  It should be pointed out that page 42 refers to an application for sick leave from 3 December 2013 to 16 December 2013.  With reference to substantive fairness, Mr Chiurayi stated that the appellant had written to the respondent and this was addressed at page 40 of the record.  It was argued that it was on the strength of a letter from Dr Vera that the appellant proceeded to terminate respondent’s employment.  Mr Chiurayi further submitted that to demonstrate that procedure was followed, respondent was put on half pay with effect from April 2014.  It was further stated that the letter used to place respondent on half-pay was the same that was used to terminate employment.

It is pertinent that the decision of the arbitrator be considered in order to determine the grounds of appeal filed by the applicant.  The arbitrator makes the following finding on page 16 of the record:

The above quoted provision is clear and admits of no ambiguity.  The evidence before me does not demonstrate that the respondent (appellant in casu) granted the claimant leave upon request from the claimant in terms of section 14 (2) or (3) of the Act.”

The sub-sections quoted above by the arbitrator clearly state that the granting of the sick leave should be done at the request of the employee.  Is there evidence on record that the respondent “requested” for sick leave?  The court has been referred to page 42 of the record by appellant’s  counsel.  The document shows that this was a “Leave Application Form” and it shows that it was “Sick leave” being granted for the period 3 December 2013 to 16 December 2013.  The Head of Department purportedly “approved” this on 17 December 2013.  The application clearly states that the application in respect of sick leave should have proof attached.  The court notes that no proof in respect of the application on page 42 of the record was ever attached.

I now turn to the other documentary evidence submitted in support of the “sick leave” applications.  A Dr Nyambo was the initial doctor who was attending to the respondent.  He examined him on 18 December 2013 and merely writes “off duties” x 3/7.  On 29 January 2014 the said Dr Nyambo wrote a memorandum stating that the respondent had come for treatment and he was still unfit for work.  Dr Nyambo wrote another memorandum on 9 February 2014 stating that the respondent was being referred to a Dr Vera and recommended that respondent be off-duty.  What is clear about these documents is that the doctor recommended that the respondent be off-duty but there is no evidence that a request was made to the appellant to grant sick leave.  I have already stated that the “request”” that is on record is that on page 42 of the record for the period from 3 December 2013 to 16 December 2013.  Dr Vera took over from Dr Nyambo and wrote three memoranda from 3 March 2014 to 31 March 2014 excusing the respondent from duty.  On 31 March 2014 Dr Vera wrote a note and indicated as follows:

“He is unable to do heavy manual work and has been advised to avoid heavy lifting.”

This letter, from Dr Vera, prompts the following reaction from the appellant”

“.. Kindly elaborate whether his condition shall improve for him to return to work for his normal duties.

Also state whether he has now been recommended for light duties only and for how long.

Meanwhile the company does not have any suitable light duties for him and would consider retiring him on medical grounds.”

Dr Vera  gives the all important response in his letter dated 14 April 2014 which the

court will revert to in the course of this judgment.

I will now go back to the provisions of the statute as quoted by the arbitrator.  Sub-section (2) of section 14 provides that an employer “shall” upon being requested by an employee grant sick leave.  The condition precedent for the granting of sick leave is the request made by the employee which should be accompanied by a certificate from a registered medical practitioner.  This is clearly a peremptory provision.  Precedent has shown that failure to comply with a peremptory provision leads to a nullity.  The provision enjoins the employer to grant sick leave on request by the employee.  It is my view such request would take the farm of an application as exemplified by the one on page 42 of the record.  That no such “applications” were tendered by applicant during the hearing before the arbitrator is evident.  The question to be asked is whether the arbitrator misdirected himself on this point.  The arbitrator clearly pointed out to the provisions of the statute and found that no evidence was adduced to show due compliance.  I did not hear appellant’s counsel argue that the “requests” by the respondent were duly provided by the appellant and the arbitrator did not take them into consideration.  Appellant’s counsel did not direct the court to such evidence.  Indeed the evidence is not on record.  It is therefore my view that the arbitrator cannot be faulted for finding that no evidence was adduced that the respondent requested for the sick leave.  Appellant’s counsel seems to argue from the point that there was communication from the respondent’s medical practitioner.  That is not what the law has expressly provided for.  The law requires that the employee requests for then sick leave and the certificate from the medical practitioner should be attached thereto.  Appellant’s ground of appeal therefore misses the legal point arising from the statutory provision.  The above analysis of the statute and evidence on record also deals with the second ground of appeal.

In the third ground of appeal, appellant takes issue with the fact that the arbitrator found that appellant’s conduct in terminating respondent’s employment was tainted with substantive unfairness.  In this regard the court will refer to the evidence on record.  The court has previously made reference to the letter from Dr Vera  which is dated 14 April 2014.  As stated earlier in this judgment this letter was a response to appellant’s letter dated 2 April 2014.  The letter in its operative part reads:

“He is unable to work even doing light duties.  We have requested for an MRI scan of his spine.  He has a 50% disability.”

Appellant’s counsel submitted that this was the letter appellant used to grant sick leave at half salary for the next 90 days.  It is evident that the letter was not accompanied by the employee’s “request”.  However, the most worrying factor of appellant’s submissions is that this is the same letter which was used when making a decision to terminate respondent’s employment.  No communication was made with respondent.  The doctor concerned was not contacted in order to give an update of respondent’s condition.  Dr Vera’s letter dated 14 April 2014 clearly referred to the issue that they had requested an MRI scan of respondent’s spine.  Without recourse to either party appellant proceeded to write a letter dated 17 July 2014 which was served on respondent on 21 July 2014.  This letter was to the effect that the respondent’s employment had been terminated with effect from 20 July 2014.  The reason for such termination was couched as follows:

“Your Doctor’s medical report has indicated that your absence has been occasioned by ill health that prevented you from attending to your normal duties up to date.

As observed earlier in this judgment, the “Doctor’s medical report” referred to is the one dated 14 April 2014.  It should also be noted that the report referred to was not accompanied by an application for sick leave.

The first issue that should be considered is whether the report sought to be relied upon by appellant was an accurate one.  That letter from Dr Vera clearly stated that they had requested for an MRI scan.  The results of the MRI scan were not known to appellant when the decision to terminate respondent’s employment was made.

The second issue that arises is whether there was substantive fairness in the termination of respondent’s employment.  The arbitrator stated thus:

“Furthermore, the decision to terminate the employment was a clear violation of the audi alteram partem rule which is accepted in our jurisdiction as being of utmost importance in matters such as the instant matter.

Such a failure to afford a party the right to be heard renders any decision made null and void ab unito.

The arbitrator goes on the refer to the case of Zimasco (Pvt) Ltd v Marikano SC 6/14 which was before GARWE JA.	It was held in that case that an employer was enjoined to inform the employee of the decision which was to be taken so as to provide the employee an opportunity to make representations before the decision was made.  The arbitrator relied on this decision which in my view addresses applicant’s third ground of appeal adequately.  Appellant did not communicate with respondent prior to making the decision to terminate his employment.  The decision of the arbitrator in this regard is unassailable.

In the result, the court makes the following order:

The appeal being without merit, is dismissed.

The arbitral award of Honourable Sengwe be and is hereby upheld.

Each party shall bear its own costs.

Coglan, Welsh & Guest, appellant’s legal practitioners

Gutu & Chikowero, respondent’s legal practitioners