No. SC 60/03
Appeal No. 10/03
CEMENT (PRIVATE) LIMITED v CHIPO NYAWASHA
COURT OF ZIMBABWE
JA, MALABA JA & GWAUNZA JA
SEPTEMBER 29, 2003 & MARCH 2, 2004
for the appellant
for the respondent
JA: This is an appeal from a judgment of the Labour Court dated 3
October 2002, in which a decision of the grievance and
committee constituted under the employment Code of Conduct operated
by the appellant (Circle Cement) finding the
(Nyawasha) guilty of misconduct and having her dismissed from
employment was on appeal set aside and an order substituted
place to the effect that she be reinstated, without loss of salary
and benefits, or damages be paid to her in lieu of reinstatement.
facts of the case are these:
was employed by Circle Cement as a sister-in-charge of the
occupational health, safety and environment department. In July
2001 she applied to the University of Zimbabwe (the University)
for a place to study for a diploma in community health. She
offered the place and, on 24 August 2001, obtained authority from the
Head of Department to attend at the University on that
purposes of registration on the course. The course was to run for
eighteen months from 10 September 2001.
having obtained leave of absence from her workplace, Nyawasha
commenced attendance at the University from 10 September
and continued attending lectures in the course thereafter until she
was recalled to work on 4 October 2001, when it was
that she had not been granted leave of absence. She had been away
from work without leave for nineteen days.
8 October 2001 Nyawasha was charged with the offence of absence
from work for five or more working days without the employers
permission or without reasonable excuse in contravention of
section 5(e) of Part VI of the registered employment Code
Conduct. She appeared before the grievance and disciplinary
committee on 8 November 2001. In answer to the charge she
that she had not obtained leave of absence from her head of
department. She alleged that she was confused as to the person from
whom she had been expected to seek leave because when she sought
authority to attend at the University for registration purposes
had been referred to Mr Mutasa, the industrial resources
manager. It transpired at the hearing that although Mr Mutasa
had told her to go and register for the course, the authority had
been given by her head of department, the human resources manager.
was established during the disciplinary hearing that Nyawasha knew
before she attended the course that Circle Cement had no provision
for study leave. She knew that no employee could be away from work
for five days or more without the employers permission.
head of a section, had processed applications for leave submitted by
junior employees. It was established that she had
exhausted all her
annual leave days. It was not her defence to the charge when she
appeared before the disciplinary and grievance
committee that she had
a reasonable excuse for her absenteeism.
disciplinary and grievance committee found that Nyawasha knew that
she had to seek and obtain leave of absence from work before
attending the lectures at the University. They adjudged her conduct
of staying away from work for nineteen days as deliberate.
of the committee was that such misconduct was of so serious a nature
as to constitute a repudiation of her contractual
Their recommendation to the managing director to the effect that
Nyawasha be dismissed from employment was accepted.
dismissed by letter dated 15 November 2001.
28 November 2001 Nyawasha lodged an appeal with the Labour
Court, now contending that the course she had embarked on at
University would have benefited Circle Cement. She contended that,
because of the benefit her employer would have derived from
knowledge she would have acquired after attending the course, she had
a reasonable excuse for being absent from work for nineteen
member of the Labour Court who heard the appeal said:
there was need to apply for study leave cannot be disputed. An
employee cannot just take off without securing official leave.
employer did not immediately question her absence from work until
nineteen days later. When she was questioned she immediately
dropped from the course and resumed her duties.
conduct suggests that she was genuinely mistaken as to the need to
formally apply for leave. She openly went about her activities
the honest belief that nothing was amiss. When confronted after
nineteen days she quickly abandoned the course and resumed her
she had erred by going without leave cannot be disputed but I am of
the view that under the circumstances the penalty meted out
respondent ought to have opted for a less severe form of punishment.
The circumstances of this case do not warrant a dismissal.
employer improperly exercised its discretion. In Zikiti
v United Bottlers 1998
(1) ZLR 389 (H) at 396A the court stated that where dismissal is the
maximum permissible punishment, the employer has a discretion
impose a less harsh sentence.
The relief granted by the Labour
Court was that:
decision to terminate the contract of employment is set aside. The
appellant is to be reinstated into her former position with
from the date of dismissal. The employer is to consider a less
harsh penalty. Alternatively, if reinstatement is no longer
option the appellant is to be paid damages for the premature loss of
employment calculated from the date of dismissal.
The Labour Court accepted that
the employer had established the essential elements of the offence
charged against Nyawasha. It was
not her defence before the
disciplinary and grievance committee that she was genuinely mistaken
as to her obligation to apply for
and obtain the employers
permission before staying away from work for five days or more. Her
defence was that she had been confused
as to the person from whom to
seek the requisite permission. The disciplinary and grievance
committee found that her actions were
deliberate. The suggestion by
the Labour Court that Nyawasha conducted herself in the manner she
did because she was genuinely
mistaken as to her contractual
obligation to seek and obtain leave from her employer before staying
away from work for five days
or more has no factual basis.
was not part of her case before the disciplinary and grievance
committee. She was a managerial employee who knew that leave
be obtained from the employer before one went away from work for five
days or more. Her contractual obligation was to be
at work and
provide the services that she had bound herself to provide to her
employer at the time agreed upon by the parties.
Labour Court did not apply its mind to the facts on which the
disciplinary and grievance committee concluded that the respondents
conduct was of so serious a nature as to amount to a repudiation of
the contract of employment between the parties. These facts
that she knew that there was no provision in the conditions of
service for an employee to go on study leave and that she had
exhausted all the annual leave days she would have taken for the
purpose of attending the course at the University. In staying
from work for nineteen days without leave the employee was adjudged
to have acted deliberately in breaching her contractual
be at her workplace at the particular time.
employer had taken a serious view of the act of misconduct committed
by the employee to the extent that it considered it
to be a
repudiation of contract which it accepted by dismissing her from
employment the question of a penalty less severe than dismissal
available for consideration would not arise unless it was established
that the employer acted unreasonably in having a serious
view of the
offence committed by the employee. The principle enunciated in
was inapplicable to the decision of the disciplinary and grievance
committee to dismiss Nyawasha because it was not shown to the
Court that its finding that her act of misconduct was of so serious a
nature as to constitute a repudiation of her contractual
entitling Circle Cement to dismiss her from employment was one a
reasonable employer would not have made.
Not only did the Labour Court
make a finding of fact which was not supported by the evidence, it
also applied a wrong principle
of law in setting aside the decision
of the disciplinary and grievance committee to dismiss the respondent
said by the Labour Court in its judgment about the contention (not
advanced before the disciplinary and grievance committee)
respondent had a reasonable cause for being away from work for
nineteen days because she was doing a course from which she
have acquired knowledge, the use of which would have benefited her
employer. The contention had no basis. A cause had to
reasonable cause for the purpose of the defence to the offence with
which the respondent was charged by having reference to
There had to be established facts which showed the existence in her
mind a belief that she was doing the course to benefit
and that the belief caused her to stay away from work for the period
in question. Once that cause was established
as a fact, it would
become a question of law whether the facts found were such as to
constitute a reasonable cause for her conduct.
v Port of London Authority 1919
AC 3 at 20, 23 and 31.
In the absence of any proof of
a belief in her mind that she was doing the course for the benefit of
her employer, the contention
that Nyawasha had a reasonable cause for
having been away from work for nineteen days was bound to fail. I
am accordingly of the
opinion that the decision of the Labour Court
should be set aside.
The appeal succeeds with costs.
It is ordered that the decision of the Labour Court be and is
hereby set aside and in its place
substituted the following:
The appeal against the
decision of the disciplinary and grievance committee is dismissed
JA: I agree.
JA: I agree.
Mandaza & Tomana,
appellants legal practitioners
respondent's legal practitioners