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 doctors
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 Muchirahondos 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
Muchirahondos 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 Muchirahondos 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 Muchirahondos 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 Tribunals 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