Circle Cement (Private) Limited v Chipo Nyawasha

Chipo Nyawasha 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 to study for a diploma in community health and was offered a place. On 24 August 2001, she obtained authority from the Head of Department to attend the University for registration purposes. The course was to run for eighteen months from 10 September 2001. Without obtaining leave of absence, Nyawasha commenced attending lectures from 10 September 2001 and continued until she was recalled to work on 4 October 2001, having been away for nineteen days without leave. She was charged with absence from work for five or more working days without the employer's permission or without reasonable excuse in contravention of section 5(e) of Part VI of the registered employment Code of Conduct. She appeared before the grievance and disciplinary committee on 8 November 2001, admitted she had not obtained leave, and claimed confusion about from whom to seek permission. The committee found her conduct deliberate and recommended dismissal, which was implemented on 15 November 2001. She appealed to the Labour Court, which set aside the dismissal and ordered reinstatement or damages.

• Whether the Labour Court correctly set aside the decision of the disciplinary and grievance committee to dismiss the employee
• Whether the employee had a reasonable excuse for being absent from work for nineteen days without leave
• Whether the employer acted unreasonably in dismissing the employee for the misconduct
• Whether the penalty of dismissal was unjustifiably harsh in the circumstances
• Whether the principle in Zikiti v United Bottlers regarding discretion to impose less harsh sentences applied to this case

The appeal succeeded with costs. The decision of the Labour Court was set aside and substituted with an order dismissing the appeal against the decision of the disciplinary and grievance committee with costs.

The binding legal principles established are: (1) Where an employer has reasonably taken the view that an employee's misconduct is of so serious a nature as to constitute a repudiation of the employment contract and has accepted that repudiation by dismissing the employee, the question of a less severe penalty does not arise unless it is established that the employer acted unreasonably in taking a serious view of the offence. (2) A court on review or appeal should not make findings of fact that are not supported by the evidence and were not part of the employee's case before the disciplinary tribunal. (3) For a 'reasonable cause' to constitute a defence to misconduct, there must be established facts showing the existence in the employee's mind of a belief that caused the conduct in question, and it is then a question of law whether those facts constitute a reasonable cause. (4) The principle that where dismissal is the maximum permissible punishment an employer has discretion to impose a less harsh sentence only applies where it has not been established that the misconduct constitutes a repudiation of contract, or where the employer's view that it does constitute repudiation is shown to be unreasonable.

The Court observed that Nyawasha's contractual obligation was to be at work and provide the services she had bound herself to provide to her employer at the time agreed upon by the parties. The Court noted that a managerial employee who processes leave applications for junior employees would be expected to know and understand the requirements for obtaining leave. The Court also commented on the proper test for 'reasonable cause', referencing the English authority King v Port of London Authority 1919 AC 3, which requires a subjective belief that caused the conduct followed by an objective assessment of whether that cause was reasonable.

This case is significant in Zimbabwean labour law as it clarifies the scope of judicial review of employer disciplinary decisions and the standard of reasonableness to be applied. It establishes that once an employer has reasonably concluded that misconduct amounts to repudiation of the employment contract, courts should not interfere by substituting their own view of an appropriate penalty unless the employer's decision was unreasonable. The case also clarifies the proper application of the principle regarding discretion to impose less harsh penalties, and establishes important principles regarding what constitutes a 'reasonable excuse' or 'reasonable cause' for misconduct in employment law. It reinforces that findings made by disciplinary committees based on evidence should not be overturned on appeal based on factual findings that were not part of the employee's case before the disciplinary body.