The of Auxillia Samurio vs City of Harare

This case is tried under the Labour court with reference to the labour act as follows:

A matter or case is appealed to the Labour court for the verification of the errors which may
have been done by law or by the previous arbitrators who have ruled the matter. Thus the
appellant and the respondent would both not be satisfied with the previous judgements made
or either one of the parties may be satisfied by the rule of the arbitrator or designated agent.
In this case the appellant was the one who was not satisfied by the decision of the arbitrator
and then appealed the matter to the high court. Condonation refers to by rating the offender
as if the offense had not occurred. It is used where a party has failed to comply with the time
periods set by legislation or in the labour rules.

Back ground facts

The Appellant was employed by the Respondent as Senior Clerical Officer (Grade 11) based
Glen View Revenue at the time of alleged misconduct.

According to Respondent, Appellant absented herself from work without authorisation from
4th May 2008 until 21st June 2010. She presumably went to South Africa during the period
.The Appellant then resurfaced on the 15th of June 2010.She wrote a letter to the Respondent
requesting to be re-engaged. On 17th June 2010 the Respondent responded to the Appellant
advising her to resume duty on Monday 21 June 2010.The Appellant then reported to work
.On 20th of January the 2011 the Appellant was charged of absenting herself from work
without authorisation and breach of part v1, category four ,clause 11.5 of the relevant
Collective bargaining agreement that is , Harare Municipal Undertaking (Employment code
of conduct) Statutory instrument 171 of 2010.She pleaded guilty to the charge and was
dismissed . The disciplinary committee found her guilty of the charge and imposed a
dismissal penalty. The Appellant was grieved and referred the matter to a designated agent
and upon failure to conciliate, the matter was then referred to compulsory arbitration but
again the Appellant was not satisfied with the arbitral award which was given by the
arbitrator in favour of the Respondent. The matter was then brought before the labour court
as an application for condonation of late appeal. As the Appellant brought the matter after
six months of delay.

Factors to consider to grant condonation for late noting of an appeal

Having considered the back ground facts of the matter and weighed the factors namely; the
extent of delay ,importance of the case , conveniences of the courts and prospects of success
if leave to appeal out of time is to be granted and although there is no a reasonable
explanation which was said by the appellant .The Appellant is to be granted the leave to
appeal because the Appellant has positive facts which can stand to bring the success of the
case, thus she has three submission that is,firstly being wrongly charged by an employment
code of conduct of enacted in 2010. Secondly, the re-engagement of the Appellant by the
Respondent showed that the Respondent had waived his rights for disciplining the Appellant
and also the rule of prescription also holds. Therefore, according to section 92E subsection
(1) an appeal in terms of this Act may address the merits of the determination or the decision
appealed against, which were outlined in this case.

The Appellant is prejudiced on the other hand (loss of job) that is , considering this the case
is important since this loss of the job may lead to depression and stress and might lead
someone into poverty with her family. The delay was only six months which was long for
rejection of appeal, the Appellant was supposed to appeal with 14 days after the final decision
by arbitrator (arbitral award) , but however it is not indicated in the background facts whether
the Appellant had a substantial reason for the delay. Therefore, condonation for late noting of
appeal is granted.

The Appellant raised a complaint of unfair dismissal which was done by the Respondent
having charged her by not reporting to work without authorization from 4 May 2008 to 21
June 2010.The issue for determination is whether the appellant was unfairly dismissed or not.

Submissions and analysis

The first submission was that the appellant was wrongly charged under the Harare Municipal
Undertaking S.I 171. as misconduct took place in 2008 .In this case the Respondent was not
supposed to charge the Appellant of absenteeism using the employment code of conduct
statutory instrument 171 of 2010, instead the Respondent could have used a previously
enacted code of conduct of the company and if this was not available at this time, the
National employment code of conduct of section 101 of the labour Act of 2006 shall have
been used to discipline the appellant. Using this code of conduct the appellant was supposed
to be given an opportunity to be heard, if she could raise any mitigating factors which were to
be considered. In addition to that, the Respondent was supposed to write a notice of dismissal
to the Appellant within the first 14 days the Appellant spent not reporting to work and in such
a situation when an employee absents herself from work more than 3 days without a
substantial reason the dismissal is automatic.

Secondly, the respondent by re-engaging the appellant had condoned the misconduct. Thus
by re-engaging the appellant the respondent had waived his rights for disciplining the
employee and also the fact that the Respondent resurrected the misconduct after a year more
when the appellant started her work. Therefore, it is implied that by such ignorance the
respondent had assumed that the matter had expired and no charge had to be made to the
appellant. If the respondent was so conscious about the misconduct of the appellant, the
respondent could have first noticed the appellant of her offence when she wrote a letter
requesting for re-engagement. In re-engaging the appellant the respondent again did not
specify that whether the appellant was continuing with the previous contract or it was a new
contract, thus the respondent failed to act as a reasonable employer.

Finally, the respondent should not have charged the Appellant as the matter had prescribed.
According to section 94 of the labour Act 21:08 subject to subsection (2) no labour officer
shall entertain any dispute or unfair labour practice unless: (a)it is referred to him ,or (b) has
otherwise come to his attention , within two years from the date when the dispute or unfair
labour practise arose. Therefore, the matter had prescribed that is, from 4 May 2008 to 4 May
2010 thus a period of 2 years which the matter was supposed to be heard. Instead on the 17th
of June 2010 when the Appellant was re-engaged the 2 year period had elapsed and worse off
the respondent charged the Appellant of absenteeism on the 20th of July 2011 which makes an
additional of another one year. Thus, considering the issue of time the matter had prescribed
and the Respondent (employer) had no jurisdiction to discipline the Appellant (employee).

In addition, the Appellant also by absconding from work for more than 2 years without
authorisation, she had breached the collective bargaining agreement (employment code of
conduct) and at this time she deserved dismissal. In other words, the Appellant already knew
that she committed an offence and by requesting for re-engagement, it is implied by law that
this was a new contract of employment, therefore the appellant was unfairly dismissed in
terms of the new contract because considering a new contract of employment she did not
breach any employment code of conduct.

A similar case is of Lee Group CF Companies vs Ann Claren elder. SC 6/05 , the court
ruled that it was the appellant’s contention that the respondent’s abrupt vacation of the office,
the subsequent three days absence from her work and the doctor’s notes suspiciously
obtained by her, cumulatively lead to the conclusion that, beyond any doubt , she had
resigned and therefore repudiated her contract of employment. The court was persuaded by
this contention and proceeded to point out that an employee who leaves her work place
abruptly and goes on to stay away for three days without explanation ,not only act
irresponsible , but also runs the risk of being regarded as having repudiated her contract of
employment. Therefore, one cannot dismiss any employee who has tendered resignation.

With reference to this case the Appellant Samuriwo had already repudiated her contract of
employment by absenting herself from work for more than two years and I’m sure that she
was aware of that, therefore this re-engagement of her was a new contract of employment and
considering this she was unfairly dismissed because during this course of new employment
she didn’t violate any collective bargaining agreement. Thus, the Respondent and the
disciplinary committee lacked knowledge of the labour law and applied irrelevant procedures
to the case.

Judgement

With all the facts being considered and their gravity the respondent is guilty of unfair
dismissal. According to section 12B subsection 2(a) and (b) the employer dismissed the
employee with a code of conduct enacted after the misconduct had already occurred that is,
the National employment code of conduct of section (101) of the labour Act of 2006 was
supposed to be used. Then according to this employment code of conduct the mitigation
factors availing to the extent that would have justified action other than dismissal such as
written warnings ,reduced pay for a specified period could have been used. Therefore, the
respondent must reinstate the appellant to let her repossess her job or pay the appellant for
financial loss.
REFERENCES

CHAPTER 28:01, Labour Act of Zimbabwe

Republic of South Africa in the Labour court of South Africa, Port Elizabeth

Labour court rules of statutory instrument 59 of 2006