DISTRIBUTABLE (81)

Judgment No. SC 94/02

Civil Appeal No. 262/99

THE COTTON COMPANY OF ZIMBABWE

v ROBERT DENNIE MUCHIRAHONDO

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, CHEDA JA & MALABA JA

HARARE, MAY 20 & NOVEMBER 11, 2002

C Selemani, for the appellant

The respondent in person

MALABA JA: This is an appeal from a judgment of the Labour Relations Tribunal (“the Tribunal”) allowing an appeal by the respondent (“Muchirahondo”) against the decision of the appellant (“Cottco”)’s general manager upholding the dismissal of Muchirahondo from employment. The decision to dismiss him was made by the main disciplinary and grievance committee after it found him guilty of the offence of “absence from work without leave” for five days or more under the Code of Conduct for Cottco.

The facts on which the appeal turns may be stated as follows. Mr Muchirahondo was employed by Cottco as a stores clerk. In 1994 he was given leave to be absent from work from 14 October to 4 November. He had applied for leave to be absent from work for sixty days and was not happy to have been granted leave of absence for fewer days. Mr Muchirahondo returned to work on 14 November 1994, that is to say, six working days after the expiry of his leave.

On 16 November 1994 Muchirahondo wrote a letter to his immediate superior, Mr Chisvo, which he copied to the finance manager, Mr Mawire, explaining why he did not return to work on 4 November 1994. The letter reads:

“This serves to explain the reason I had to extend my vacation leave by five days from those I had been granted. It is very difficult to convince the superiors when one tells them about the problems he encountered during the vacation leave. But the truth has to be accepted. It is true as per my verbal discussion with Mr Chisvo and Mr Mawire that I was supposed to communicate with Mr Chisvo if I had any intention to extend the leave and come to an agreement with him. … I happened to be ill when my leave had only some days to come to an end. The illness did not require doctor’s hands and I had to be healed by a member of the Vapostori from my church as per my parents’ assertion.

The illness arose from the people I suspect to be jealous of me. As you know traditionally that not all people like you if you come from a rural area with too many witches. I could not make an arrangement to extend the leave with Mr Chisvo because I did not know that I would feel ill. It was in Mutare where I felt ill and I had left my wife in Zvishavane. I could have written a letter to inform Mr Chisvo or use a ‘phone but the state I was in could not allow me to think along those lines since I was facing death. I could not eat or talk.”

On 24 November 1994 Muchirahondo was charged by the finance manager with the offence of “absence from work without leave” under Schedule 2 Category A paragraph 4.4 of the Code of Conduct, which provided that:

“An employee is absent without leave if he/she takes time off without leave or if he/she takes time off without being granted leave of absence or overstays the leave.”

The punishment for the offence of absence from work without leave for five days or more was dismissal. A first conviction for being absent from work without leave for three to four days attracted a written warning as a punishment. It is common cause that at the time Muchirahondo overstayed the leave of absence from 14 October to 4 November 1994 he was serving a written warning given to him on 13 July 1994 for having been absent from work without leave for four days from 31 May to 3 June 1994.

On the day Muchirahondo was charged with the offence of absence from work without leave for five days or more, he was also suspended from employment without pay. He was advised in the letter of suspension that a disciplinary hearing would be conducted by the departmental hearing committee on 30 November 1994 and advised to appear at the hearing together with “any witnesses” who were material in his case.

It was common cause at the departmental committee hearing that Muchirahondo had committed the offence of absence from work without leave for five days or more as defined under the relevant Code of Conduct. He admitted having been absent from work without leave for six working days. Although not mentioned in his letter of 16 November 1994, Muchirahondo told the departmental hearing committee that he had asked “a relative” to advise Mr Chisvo of his illness. He, however, admitted that the relative did not carry out his instructions. At the end of the day, the departmental hearing committee found that he was absent from work for five days or more without leave. That conclusion was, in my view, inescapable on the facts placed before the departmental hearing committee.

The departmental hearing committee then inquired into a matter which was not relevant to the resolution of the issues arising from the charge of absence from work without leave as defined in the Code of Conduct. They sought to decide whether Muchirahondo was ill during the relevant period of absence from work without leave. They apparently embarked upon the inquiry in order to decide whether illness was “a reasonable excuse” for being absent from work without leave. The offence charged against Muchirahondo, as defined under the relevant Code of Conduct, did not have as an essential element absence of “a reasonable excuse”. The offence was absence from work for five days or more without leave. It was not absence from work for five days or more "without leave” or “a reasonable excuse”.

Having embarked upon the factual inquiry, the departmental hearing committee came to what can only be described as a confused decision. It is recorded, at the hearing of evidence, that:

“After lengthy discussion, the committee concurred that Muchirahondo committed an offence of ‘ABSENCE WITHOUT LEAVE’, an offence found on Schedule 2A 4.4 of (the) Code of Conduct. However, the committee found that Muchirahondo is a converted believer in witchcraft and traditional healing and under these circumstances the committee found it difficult to dispute the alleged illness faced by the accused and the manner in which he went about seeking treatment. Whilst the committee found illness to be a reasonable excuse for absenteeism, the hearing committee played down the differences in material fact in this case in point by distinguishing between absence without reasonable excuse and an omission of failure to report a reasonable excuse. The committee found the accused liable for the latter (failure to report a reasonable excuse) … .”

It recommended as punishment to be imposed upon Muchirahondo - demotion, loss of benefits from 1 December 1994 to November 1995, loss of salary for the period he was under suspension and a final written warning. The departmental hearing committee noted the fact that Muchirahondo was serving a written warning for a similar offence.

It is clear that the departmental hearing committee had inquired into matters that were irrelevant to the proof of the offence charged against Muchirahondo. Even if illness would have been a reasonable excuse for his absence from work for five days or more, Muchirahondo would, on the evidence adduced at the hearing, have failed to prove the illness. He led no evidence at all on the nature of the illness he suffered from. There was no medical evidence produced by him, even from the traditional healer he claimed to have consulted to prove the illness he was suffering from. Without knowledge of the illness from which Muchirahondo would have suffered, the departmental hearing committee would not have had a basis for finding that the illness in question constituted a reasonable excuse for his absence from work. City of Harare v Zimucha S-32-95 at p 6. The question would not have been whether illness was in general a reasonable excuse for absenteeism because each case would stand on its own circumstances. Worse still for the departmental hearing committee, there was no offence of “failure to report a reasonable excuse”.

Not surprisingly, the decision of the departmental hearing committee was not upheld by the main disciplinary and grievance committee before whom the matter was placed on 15 December 1994. In the re-hearing of evidence by the disciplinary and grievance committee Muchirahondo repeated his story that he was ill during the period he ought to have been at work. He revealed that he did not seek a medical certificate of the illness because he believed that the days by which he overstayed the leave would be deducted from the leave days that had accrued to him. The disciplinary and grievance committee disbelieved Muchirahondo’s evidence that he was ill during the relevant period of absence from work without leave. It was recorded that:

“It was decided that the penalty given to Muchirahondo by the departmental committee was too lenient and that he deserved to be dismissed on the grounds that he was absent without leave and without reasonable excuse. The committee took into account the fact that Muchirahondo is serving a warning for a similar offence.” (the underlining is mine)

What is very clear from the facts of the case is that the departmental hearing committee and the main disciplinary and grievance committee found that Muchirahondo had committed an offence of absence from work without leave for five or more days as defined in the Code of Conduct and charged against him. Although the finding by the disciplinary and grievance committee that he had not shown “a reasonable excuse” for his absence from work would have been correct on the facts, it was irrelevant because the offence with which Muchirahondo was charged did not make the overstaying of leave lawful if it was accompanied by “a reasonable excuse”.

In R v Mackay 1964 R & N 51 (FS) at 57 E-F, 1964 (3) SA 176 (FS) at 183F CLAYDEN FCJ said:

“In this case, the appellant had two reasons for keeping publications known to him to be prohibited, two excuses for contravening the Act. One was that he wanted the publications for accounting purposes. That would perhaps be a ‘reasonable excuse’, if those had been the words used, but there was nothing lawful, in accordance with law, about it. The other was that he thought that the law required a publisher to keep a copy of all publications for seven years. There is no such law. Again I think that the excuse was reasonable, having regard to his view of the law, but the excuse cannot be shown to be in any way in accordance with law.”

The words “without reasonable excuse” were not used in the offence created under the Code of Conduct then used by Cottco. Even if Muchirahondo had been found to have been ill and illness was a reasonable excuse, that would not make his absence from work for five days or more lawful. The reasonableness of his illness during the period of absence from work would not have had anything lawful about it.

Mr Muchirahondo appealed to the general manager, who upheld the decision of the main disciplinary and grievance committee that he had committed the offence of absence from work for five days or more without leave. The general manager also considered the fact that Muchirahondo had a written warning for the offence of absence from work for ”the same offence” (the underlining is mine).

Mr Muchirahondo appealed to the Tribunal, which heard the appeal on 31 March 1999. In his judgment the chairman said Muchirahondo was given leave to be absent from work from 4 to 24 November 1994. That was not correct. The leave of absence was to run from 14 October to 4 November 1994. He found that in not returning to work at the end of his leave Muchirahondo committed an act of “absence without leave” as defined in the Code of Conduct. In other words, the learned chairman accepted that Cottco had discharged the onus on it of proving the guilt of the employee in respect of the offence charged.

The learned chairman went on to note the fact that each body which heard Muchirahondo’s case considered the fact that he was serving a written warning for absence from work without leave. He concluded that the bodies would not have found him guilty of the offence charged had they not taken into account the fact that he was serving a written warning. He said:

“In any case, an offence of ‘absence without leave’ attracts summary dismissal. Thus there was no need to purport to rely in part or in full on a final written warning which was of no use. In my opinion, for the respondent to have relied on a needless final written warning had the effect of negating the force of the real offence, i.e. absence without leave. In other words, the error was fatal.”

The Tribunal allowed the appeal by Muchirahondo and set aside the decision of the general manager. It ordered that Muchirahondo be reinstated “on the same terms and conditions as existed before his dismissal”, failing which Cottco was to pay him damages to be agreed upon or assessed by the Tribunal on application by either party.

The decision of the Tribunal is clearly wrong. The learned chairman failed to appreciate the fact that although the offence for the conviction of which Muchirahondo was given a written warning on 3 July 1994 was of the same genus as the offence he was charged with, in that they were both offences of absence from work without leave, they differed in essential elements and as to the punishments attracted. The essential element of the offence he was charged with was that he had to be absent from work without leave for five days or more. The essential element of the offence for which he received a written warning was that he had to be absent from work without leave for three to four days. Each of the three disciplinary bodies that heard Muchirahondo’s case was satisfied that the evidence had proved that he had committed the offence of having been absent from work for five days or more without leave. That was the basic fact established on the evidence which proved his guilt. Swaibo v National Railways of Zimbabwe S-54-95 at p 5.

There is no basis for accusing the bodies that heard Muchirahondo’s case of having relied upon the fact that he was serving a written warning for the offence of having been absent from work for three to four days without leave in finding him guilty of the offence he was charged with. Even if reference to the written warning became a factor in the assessment of guilt, it could not affect the fact that Muchirahondo admitted that he was absent from work for five or more days without leave. The fact that he was serving a written warning for previously having been absent from work without leave showed that he was aware of the requirement that he should seek leave from the employer for being absent from work. Any reasonable tribunal faced with such an admission of the elements of the offences charged would find the offender guilty as charged. The Tribunal’s decision was irrational.

The appeal is allowed with costs. The decision of the Tribunal is set aside and in its place is substituted the following –

“The appeal is dismissed with costs”.

CHIDYAUSIKU CJ: I agree.

CHEDA JA: I agree.

Gill, Godlonton & Gerrans, appellant's legal practitioners