DISTRIBUTABLE
(49)
Judgment
No S.C. 58\2002
Civil
Appeal No 232\2000
UNIBANK
v LILY JIJITA
SUPREME
COURT OF ZIMBABWE
SANDURA
JA, CHEDA JA & GWAUNZA AJA
HARARE
MAY 30 & AUGUST 8, 2002
J.B.
Colegrave,
for the appellant
P.
Nherere,
for the respondent
GWAUNZA
AJA: This is an appeal against a decision of the Labour Relations
Tribunal, which ruled that the appellant either reinstates
the
respondent to her job or pays her damages which the parties could
agree upon, or refer to the Tribunal for quantification.
The
pertinent facts of the matter are as follows: The respondent was
employed by the appellant as Secretary to its Managing Director.
Some time in 1997 she was physically assaulted by the wife of the
Managing Director, (Mrs M), and threatened with further
assaults. Mrs M suspected that the respondent was having an
illicit affair with her husband. Following this incident, the
respondent felt that the appellant was not giving her grievance the
sensitive attention that it deserved. She then first met with,
and
then wrote a letter to, the Chairman of the appellant emphasizing her
unhappiness at continuing to work in an environment that
was causing
her great stress (Annexure B). She followed this letter with
another one (Annexure A) in which she advised
the Chairman that
she had found it necessary not to report for work as from Monday, the
2nd
of February 1998 until my case is concluded. On the same day
she wrote this letter she received a response from the Chairman
of
the appellant, Mr S C Tawengwa. In the letter Mr Tawengwa offered
the respondent a new post within the bank, of Public Relations
Officer. The position came with an increased salary and meant that
the respondent would be transferred to another department within
the
appellant. The respondent, in writing, accepted the offer and ended
her letter by seeking clarification on certain issues,
in these
words:-
I
will report back for work with the signed copy of your letter as soon
as I get the clarification on the above.
The
respondent received no response to this letter and did not report for
work. The appellant then sought to dismiss the respondent
for
absenting herself from work from the 2nd
to the 13th
of February 1998. A disciplinary hearing that was subsequently
held, passed a determination authorising the dismissal of the
respondent.
The appellant appealed to the Grievance and
Disciplinary committee, which failed to reach a consensus on the
matter. The matter
was then referred to the Appeals Board of the
Employment Council for the Banking Undertaking, which unanimously
agreed that the respondent
had a reasonable excuse for staying away
from work for the period in question. The Board then overturned the
respondents decision
to dismiss the respondent prompting the
appellant to appeal to the Labour Relations Tribunal.
The
Chairman of the Tribunal dismissed the appeal and noted:-
I
take the view that being subjected to assaults and threats of
continued violence at work by the wife of ones Managing Director
constitutes a reasonable excuse for an employee to absent herself
from duty. I do not see how simply changing the respondents
designation at job was going to protect the respondent from the
Managing Directors wife. Her designation or job title was not
the cause of the violence. In the circumstances she was perfectly
entitled to seek clarification regarding her safety before reporting
for duty.
The Chairman
of the Tribunal then made the order referred to at the beginning of
this judgment.
In appealing
against this ruling the appellant contends that no reasonable excuse
had been proffered by the appellant for failing
to present herself at
work, particularly since:
she had
indicated she was happy to accept the offer of a promotion and
transfer to a new department and
the issue
on which she sought clarification, i.e. the provision of a company
car, was manifestly a subsidiary matter to her
promotion and
should in no way have affected a decision to report back for work as
soon as possible.
It
is evident that the appellants interpretation of the respondents
letter of the 2nd
of February 1998 is that the clarification sought by the respondent
related only to the issue of the company car.
The
respondent, on the other hand, argues that the clarification sought
related to both the issue of the company car, and that of
her
security, given the assaults perpetrated on and threatened against,
her by Mrs M. Mr Nherere,
for the respondent, contends that since the respondents reason for
absenting herself from work in the first place had not been
directly
addressed, it was perfectly reasonable for her to seek clarification
on the matter. Further, that it was quite reasonable
for the
respondent to seek clarification on the issue of the company car
before taking up the new post of Public Relations Officer.
It
is trite and both parties in
casu accept, that the
question of whether or not a reasonable excuse exists on the
facts of a given case is one of law.
In the present case the court thus has to determine, firstly, what
excuse the respondent gave for not coming to work and, secondly,
whether that excuse was reasonable.
There is a
dispute between the parties on what the respondents excuse was.
The appellants understanding of the respondents
excuse is that
she had sought and not received clarification on whether or not she
would be given a company car. The respondent,
on the other hand,
situates the excuse within the wider context of the whole dispute.
I am inclined
to agree with the respondent. It is evident from the letters
exchanged between her and the Chairman of the appellant,
Mr Tawengwa,
and between her and the authorities within the appellant, that the
respondents primary concern was her security and
safety. She
expresses frustration and disappointment over the fact that the
authorities, seven months after the event, had
not given her
grievance
the sensitive and effective attention that it deserved. Indeed that
concern is reiterated in her letter of the 2nd
of February 1998. The letter is clearly in two parts, the first
dealing with the issue of her security, and the second dealing
with
the Public Relations Officer post. In the first part of the
letter, which is addressed to the Chairman Mr Tawengwa,
she wrote:-
Thank
you for your letter dated 30th
January 1998.
The point I
have been trying to make so far is that of my safety. Since in your
letter Unibank is divorcing itself from the incident
between Mrs
Mushambadzi and myself, I do not have anywhere else to turn to. I do
not know Mrs Mushambadzi personally, except through
Unibank. I was
not expecting Mrs Mushambadzi to be governed by the Unibank Code of
Conduct, but surely Unibank lawyers can represent
me because I am a
Unibank employee.
If the above
can be done, i.e. having access to Unibanks lawyers) I would like
to have a statement recorded with them that my life
has been
threatened and the person I suspect is Mrs Mushambadzi. This would
then mean that if I continue to be harassed, my lawyers
would know
where to begin.
The letter
then goes on to deal with the offer of the Public Relations Officer
post and her acceptance thereof. She then enquires
whether the new
job would come with a company car.
She ended
the letter with the words already cited, in which she sought
clarification on the above.
This letter,
as already indicated, was not responded to. The respondent was thus
left in the dark as to whether or not her request
for certain
safeguards concerning her safety had been considered, much less
whether it was to be granted. The appellants attitude
was
clearly that the respondents concerns regarding her safety had
been effectively addressed through her transfer to another
department. That, in my view, has the effect of trivialising the
respondents grievance and the danger to her person. Her transfer
to another department did not mean Mrs M, if she was so
inclined, would have been deterred from carrying on with the threats
against the respondents life, or even further assaults on her.
In other words, the transfer did not address the real problem,
that
is, the respondents fear for her safety. That this was her
primary concern is left in no doubt.
To suggest,
given this background, that in her letter of the 2nd
of February 1998, the respondent was concerned only with
clarification concerning the company car, is, in my view, to miss the
point
of the whole dispute. The suggestion amounts to a continued
manifestation of the insensitivity with which the appellant dealt
with
a matter that appropriately should have been of serious concern
to it. It surely could not have been good for staff morale and
the
image of the appellant as a concerned employer, for a member of staff
to be assaulted at work and then offered neither support
nor sympathy
from the employer.
The same
suggestion also implies that the respondent was no longer concerned
with the issue of her safety particularly the safeguards
she had
requested. I am not persuaded that is correct. The respondent had
not only relentlessly pursued the issue of her safety
for several
months, she had also again raised it in the same letter in which the
issue of the company car was raised.
I
am, in the final analysis, satisfied that the clarification sought by
the respondent related to both the matter of her safety and
that of
the company car.
Having
determined the nature and scope of the appellants excuse the next
issue to consider is whether this was a reasonable excuse
for
absenting herself from work. The Employment Council for the Banking
Undertaking was satisfied it was. The minutes of the
Councils
meetings (page 29 of the record) record that:-
Every
member of the Appeals Board felt that Ms Jijita did indeed have a
reasonable excuse to be absent from work during the stated
period.
They felt that she had been under considerable stress from an
incident that was not of her making.
It cannot be
disputed that the appellant had taken a casual approach to the
respondents grievance. They had done nothing to
ensure that
their employee was protected. While it was true that Mrs M
did not fall under their authority, it could not be
said that her
husband was in the same position. There is nothing in the evidence
before the court to show any decisive action was
taken to ensure,
through Mr Mushambadzi, that the unfortunate incident would not be
repeated, nor that he would prevail on his wife
not to continue with
the threats against the respondent. The incident happened to their
employee and within their premises. Yet
they chose to distance
themselves from both the incident and its consequences upon the
respondent and her work. She reported in
one of her letters that
while waiting for the matter to be dealt with she could no longer
give her work the attention it deserved
since she could not
concentrate.
Faced
with this lack of sympathy from the appellant, and with the knowledge
that no protection would be forthcoming from it in relation
to the
threatened violence from Mrs M, I do not see how it can be said
no reasonable excuse existed for the respondents
failure to report
for work.
The Chairman
of the Labour Tribunal was, in these circumstances, satisfied that
the respondent had a reasonable excuse for absenting
herself from
work. Since I find his determination to be eminently sound there is
no reason to upset it.
Accordingly,
the appeal is dismissed with costs.
SANDURA JA:
I agree
CHEDA JA: I
agree
Stumbles &
Rowe, appellant's
legal practitioners
Gill
Godlonton & Gerrans,
respondent's legal practitioners