The Court of Appeal has upheld a decision by then Permanent Secretary Peggy Serame to dismiss a Ministry of Trade and Consumer Affairs employee over the latter’s ‘unjustified’ sick leaves and late coming.
Serame, who has now been elevated to the role of Minister dismissed Moroadi Nkwe from her employment as Assistant Director in the Department of Trade and Consumer Affairs in November 2015.
Nkwe had been a government employee for 19 years (20th December 20, 1996 to November 25, 2015) and was employed as an Assistant Director at the time of dismissal.
According to court papers the dismissal followed the appellant (Nkwe)’s failure to submit to medical examination as a result of absenteeism from work, frequent sick leaves and late-coming.
Her absenteeism and frequent sick leaves had been premised on a pre-existing asthma condition but when ordered to undergo a medical examination to determine the state of her health Nkwe refused, reportedly claiming the asthma no longer existed.
As a result of her failure to attend a medical board examination at Princess Marina Hospital after being called by Doctors, charges of misconduct were levelled against her and she was ordered to show cause why she should not appear before a disciplinary panel to answer to a charge of misconduct.
She was given several opportunities to appear for a disciplinary hearing but did not attend any of them, the court heard. Following three notices to appear for the disciplinary hearing Permanent Secretary Serame dismissed Nkwe from employment on a charge of misconduct after a final disciplinary hearing was held in her absence.
The Chairman at the Disciplinary Hearing, one Boniface Tsheko, then recommended to the Appointing Authority (being the Permanent Secretary) that Nkwe be dismissed from Public Service.
Following her dismissal Nkwe then approached the Industrial Court over “unfair dismissal” through her lawyer Paul Muzimo of Muzimo and Associates but the dismissal was upheld by Justice Harold Ruhukya.
Not satisfied with the Industrial Court outcome Nkwe then approached the Court of Appeal seeking to set aside Ruhukya’s judgment.
The Court of Appeal however upheld the lower Court’s decision in favour of the government, represented by Attorney-General’s Thato Mujaji.
Delivering a unanimous ruling Justice Singh Walia said it must be said Nkwe owes her misfortunes to her own truculence, dishonesty and disobedience of lawful orders.
“The principal reason for her dismissal was her refusal to submit herself to a medical examination. She was given more than one opportunity to do so but disregarded all lawful instructions. The court-a-quo cannot be faulted for holding that once directed to undergo a medical examination, the Appellant was under an obligation to obey the instructions. She was not at liberty to second guess the Permanent Secretary and that she was wrong in ‘self-diagnosing’ her medical conditions.”
Walia said on her own papers and evidence in the lower court Nkwe was asthmatic since 1998, requiring regular medical attention. He said as a result it was inconceivable that such a chronic condition was suddenly cured when a medical examination was ordered. More so, he said, as there was no medical evidence whatsoever of such a phenomenon.
“The conclusion was correctly drawn, therefore, that she was in willful disobedience of the instruction to undergo a medical examination,” Justice Walia (whose three-member panel included Justices Zibani Makhwade and Abednego Tafa) said.
The panel found that Nkwe’s appeal was without merit and dismissed it. No order was made in respect of costs.
