BUSINESS EQUIPMENT CORPORATION v MTETWA 2007 (2) ZLR 43 (S)

Flynote

Employment — dismissal — grounds for — absence from work without reasonable excuse — appeal against order for reinstatement pending — effect of noting such appeal — order for reinstatement stayed notwithstanding the appeal was devoid of merit — reasonable excuse for employee to be absent

Headnote

The respondent was dismissed from the appellant's employ for misconduct. He appealed against his dismissal to the negotiating committee, which ordered the appellant to reinstate him without loss of pay or benefits. No alternative order for damages in lieu of reinstatement was made. An appeal by the appellant to the Labour Court failed. When the respondent subsequently presented himself for duty, he was told that the appellant was going to file an appeal to the Supreme Court. He thereafter stayed away from work but proceeded himself to file an appeal to the Supreme Court against the order of reinstatement, without the alternative of damages, seeking an order for payment of damages as an alternative to reinstatement. Pending the hearing of the appeal, the respondent did not report for work.

Some seven months later, the appellant, although aware of the respondent's appeal, directed him to report for work, and when he did not do so, instituted disciplinary proceedings against him. These culminated in the respondent being dismissed for the second time. His domestic appeals failed but the Labour Court held that he had a reasonable excuse for not presenting himself for work while his appeal to the Supreme Court was pending. The appellant at some stage (the evidence did not establish precisely when) abandoned its first appeal. The respondent's appeal, on the other hand, was found to be devoid of merit. It was dismissed on the grounds that there was no evidence of the breakdown of the relationship between the parties and thus no evidence upon which the Labour Court could consider making the earlier orders of the negotiating committee and the Labour Court, for the appellant to reinstate the respondent without the option of damages.

Held, that the respondent's appeal had been properly before the Supreme Court. There was nothing to justify the departure from the law concerning the effect of an appeal on the judgment appealed against. During the seven months period before he was told to come back to work, the respondent was not informed of the appellant's change of heart regarding its proposed appeal to the Supreme Court. His own appeal aside, the respondent could not, therefore, have reasonably been expected to know that he would be welcomed back to work and so had reasonable cause to stay away from work.