MUSAKWA
JA: This
is an appeal against the whole judgment of the Labour Court (the
court a
quo)
handed down on 4 June 2021 wherein the court upheld the appellant's
dismissal from employment by the respondent on the basis that he had
engaged in misconduct which was contrary to the express and implied
terms of his contract of employment.
FACTUAL
BACKGROUND
The
appellant is a former employee of the respondent, which is a company
duly incorporated under the laws of Zimbabwe and operates in the
insurance and financial services sector. He was employed by the
respondent as an accounts administrator based at Old Mutual Gardens,
Emerald Hill, Harare.
He
was also a workers representative in the Old Mutual Workers Committee
(the Workers Committee).
On
24 July 2019, the appellant was suspended from work on the basis that
his employer had good cause to believe that he had committed acts of
misconduct in terms of the Old Mutual Code of Conduct and Grievance
Procedure (the Code).
The
events leading to the charges of misconduct are as follows.
A
Works Council meeting was held on 8 July 2019, and it was attended by
members of the Workers Committee. At the meeting, management advised
that it had resolved to increase the employees salaries by 45
percent; which salary increase was communicated via email to all
workers by the Group Chief Executive (the GCE) on the same day.
Disgruntled
by the resolution on the salary increment, four of the respondent's
employees from the Workers Committee went to see the Human Capital
Consultant (the HCC) on the morning of 9 July 2019 and stated that
the workers were demanding to see the Human Capital Executive (the
HCE) in relation to the salary increment.
The
appellant was alleged to have made common cause with these four
employees, in that they misrepresented to and mobilized the rest of
the employees to gather in the staff canteen under the guise that the
HCE wanted to address them on the issue of salaries.
The
issue of the sit-in reached the Group Chief Operating Officer (the
GCOO), who convened an urgent meeting with the management and the
members of the Workers Committee.
The
appellant and his colleagues were directed to disperse the employees
gathered at the canteen whilst management dealt with the issue of the
salary increment.
The
appellant and his colleagues are said to have refused to leave the
HCE's office and instead, demanded that she addresses the employees
gathered in the canteen.
The
employees only dispersed after the designated agent from the National
Employment Council read to them a memorandum drafted by management,
which instructed them to return to work or risk disciplinary action.
The
employees had however, spent the greater part of the day congregated
in the canteen.
In
light of these events, the appellant was suspended from work in terms
of section 12.2 of the Code and investigations into his conduct were
instituted.
On
1 August 2019, the appellant was charged with contravening section
15.9.1 of the Code for “failure
to fulfil the express or implied conditions of the contract of
employment or any breach of the employment contract”.
This
charge was grounded on clause 8 of the appellant's contract of
employment which provides that the employee should perform his/her
duties in the best interests of the respondent and refrain from any
action which could in any manner, harm the good name and reputation
of the respondent.
A
disciplinary hearing was conducted.
Evidence
was led against the appellant to the effect that he had
misrepresented to the HCE that employees were demanding to be
addressed by him in the staff canteen. He was also alleged to have
misrepresented to the employees that the HCE wanted to address them
in the canteen. In addition, the appellant was alleged to have
instigated an illegal collective job action by encouraging the
employees to stay in the canteen on the premise that the HCE was
coming to address them. The respondent claimed that the appellant's
actions had tarnished its image.
Per
contra,
the appellant denied that he misrepresented facts to the HCC as the
elements of misrepresentation were not established.
He
argued that the CCTV video evidence produced by the respondent did
not confirm that he had mobilised employees to assemble in the
canteen but rather, that the employees had already started moving out
and that he was not part of the delegation that went to the HCC.
The
appellant also argued that he had acted within his mandate as a
Workers Committee member when he approached the HCE and subsequently
communicated to the employees their employer's response to the
issue of salary increment.
The
appellant contended that the respondent was victimizing him for
executing his duties as a Workers Committee member.
In
addition to the above, the appellant denied instigating an unlawful
collective job action. Instead, he claimed to have acted upon the
employer's request for a meeting with the respondent's executives
which he duly attended.
The
appellant claimed that his conduct was not inconsistent with the
terms of his contract of employment. In addition, the appellant
argued that as he had heeded the call to return to work or face
disciplinary action, the charges against him should have been
withdrawn.
The
Hearing Officer found that the appellant had misrepresented facts and
directed the employees to gather in the canteen for an address by the
HCE. He further held that the CCTV video evidence established that
the employees started going to the canteen after the workers
representatives had met with the HCE. It was further held that the
appellant and his colleagues had staged a sit-in in the HCE's
personal assistant's office after the HCE's refusal to address
the employees in the canteen and as a result, they had stayed away
from their work stations and had withdrawn labour.
This
was held to be contrary to the appellant's express or implied terms
of his employment contract.
The
Hearing Officer also found that after being told that the HCE would
not address the employees, the appellant failed, neglected and/or
refused to give such feedback to the employees, which failure abetted
the continued illegal withdrawal of labour by the employees.
In
addition, the Hearing Officer held that the appellant had assisted in
the instigation of collective job action, which was illegal as there
was no compliance with section 104(2)(a) and (b) of the Labour Act
[Chapter
28:01].
Nevertheless,
the Hearing Officer held that the appellant was being charged with
'failure to fulfil the express or implied conditions of the
employment contract or any breach of the employment contract' which
arose from his gross lack of honesty and integrity by misrepresenting
facts to management and other employees, thereby putting the
respondent's name into disrepute.
In
conclusion, the Hearing Officer held that the appellant's conduct
was unacceptable to the employer as it went to the root of his
employment contract, thus ruining the relationship with the employer.
The
Hearing Officer found him guilty as charged and terminated his
employment with the respondent with effect from 26 July 2019.
The
appellant lodged an internal appeal against the Hearing Officer's
decision, raising 12 grounds of appeal.
In
the determination handed down on 2 October 2019, the Appeals Officer
made a preliminary finding that the appeal was dismissible from the
onset on the basis that the appellant failed to challenge some
critical findings made by the Hearing Officer.
On
the merits, the Appeals Officer found that some of the appellant's
grounds of appeal were repetitive. He also found that there was no
specific ground of appeal challenging what had transpired in the
HCE's office.
In
summary, the Appeals Officer found that the Workers Committee members
lied to both the employer and employees about a proposed meeting in
the canteen.
The
Appeals Officer upheld the verdict of the Hearing Officer and also
found that the issue of sentence was at the discretion of the
employer. Consequently, the appeal was dismissed.
The
appellant noted an appeal to the Labour Court (the court a
quo).
He
submitted that the respondent had failed to address the employees who
gathered in the canteen, which inevitably led to loss of production.
Thus, the appellant contended that the respondent was the author of
its own misfortunes.
The
appellant further argued that it had not been established that he had
misrepresented facts to both the employer and the employees. He
contended that the elements of misrepresentation had not been proven.
In
addition, the appellant contended that the allegation that he was
acting in concert with his fellow colleagues was unfounded and not
supported by any evidence on record.
The
appellant also argued that the memorandum read out by the designated
agent was a waiver of the respondent's right to discipline him.
He
thus argued that the respondent was estopped from proceeding with the
disciplinary hearing against him.
The
appellant also argued that he had complied with the dictates of the
memorandum and thus, contended that the appeals officer had grossly
misdirected himself when he failed to note that the disciplinary
committee was improperly constituted.
He
further argued that he was being victimized for exercising his rights
as a Workers Committee member.
In
conclusion, the appellant argued that the penalty of dismissal was
punitive as he was not guilty of the offence he was charged with.
Regarding
the first ground of appeal, the court a
quo
held that it lacked clarity. As a result, that ground was struck
out.
In
relation to the second ground which challenged the factual findings
which had been upheld by the appeals officer, the court a
quo
found that the appellant played an integral part in planning and
executing the scheme of gathering employees at the canteen and have
management address them there.
The
court a
quo
thus held that there was no basis for overturning the appeals
officer's decision to uphold the hearing officer's findings.
In
relation to the third ground of appeal, the court a
quo
held that the appeals officer had correctly found that the appellant
had been dismissed from employment not because of collective job
action but on the basis of the misrepresentations he had made which
led to the gathering.
The
court a
quo
also held that being a Workers Committee member did not insulate the
appellant from disciplinary action, hence, his claims that he had
been dismissed from employment as victimisation for being a Workers
Committee member were held to be meritless.
In
addition, the court a
quo
held that the appellant's conduct demonstrated a high level of
dishonesty and disrespect for authority, went to the root of the
employment contract and made the continuation of the working
relationship untenable.
As
a result, the court a
quo
held that it could not interfere with the penalty of dismissal
imposed by the respondent. Consequently, the appeal was dismissed.
It
is this decision which the appellant now seeks to set aside on the
following grounds of appeal:
“GROUNDS
OF APPEAL
The
appellant's grounds of appeal are as follows:
1.
The court a
quo
made a gross misdirection in holding, despite compelling evidence to
the contrary, that appellant was excluded from the waiver granted by
the employer concerning the alleged unlawful ensemble whereas
appellant was covered as the waiver covered all employees.
2.
The court a
quo
erred in law in upholding the dismissal of appellant for alleged
dishonest conduct inconsistent with his contract of employment,
whereas in the circumstances, appellant was lawfully and bona
fide
executing his role as a workers representative.
3.
The court a
quo
erred in upholding the penalty of dismissal, whereas in the
circumstances the exercise of discretion in favor of dismissal by the
lower tribunal was unfair and irrational regard being had to:
(i)
That applicant was exercising a workers representative role in
circumstances
of an industrial emergency.
(ii)
Appellant's favorable mitigation submissions and record of
service.”
Before
this Court, the following submissions were made.
APPELLANT'S
SUBMISSIONS
At
the hearing of the present appeal, Mr Gwisai,
counsel for the appellant, submitted that he would not persist with
the first ground of appeal, under which it was contended that the
respondent had waived its right to discipline the appellant through a
notice read out to the employees by the designated agent.
This
was in light of this Court's decision in the similar case of
Chabvamuperu
v Old Mutual Life Assurance (Pvt) Ltd
SC12/23,
that there was no waiver from disciplinary action given by the
respondent.
In
relation to the second ground of appeal, counsel for the appellant
submitted that whilst in the Chabvamuperu
case
supra,
the Workers Committee members had been found guilty of mobilizing the
employees and making misrepresentations to both the respondent and
the employees, the appellant in
casu
was not involved in the initial meeting which resulted in the
employees gathering in the canteen.
Counsel
submitted that the appellant only got involved in the two-hour sit-in
and attended the subsequent meeting with the Group Chief Operating
Officer in pursuance of his duties as a Workers Committee
representative.
Mr
Gwisai
argued that the appellant had relative immunity from disciplinary
action in terms of section 65(2) of the Constitution of Zimbabwe, as
he was bona
fide
executing his duties as a Workers Committee representative.
He
argued that the appellant had only acted basing on what his fellow
members of the Workers Committee had told him.
In
addition, counsel submitted that the mitigatory circumstances of the
appellant ought to have been taken into account during sentencing in
line with section 12B(4) of the Labour Act [Chapter
28:01].
Mr
Gwisai
contended that in the circumstances of the case, the penalty of
dismissal was harsh.
RESPONDENT'S
SUBMISSIONS
Per
contra,
Mr Maguchu,
for the respondent argued that the appellant had not appealed against
the finding that he was guilty of dishonesty arising from
misrepresentations and misleading the other employees and management,
and that he merely claimed that he was exercising his role as a
Workers Committee member.
Counsel
further submitted that the appellant had ample opportunity to
disengage from further lying to management and the employees when
management repeatedly informed him and his colleagues that they had
not called for an address and that the gathering by the employees was
unlawful.
Additionally,
Mr Maguchu
contended that section 65(2) of the Constitution of Zimbabwe did not
clothe Workers Committee members with absolute immunity from
disciplinary action as they are expected to execute their duties in a
lawful manner.
APPLICATION
OF THE LAW TO THE FACTS
Whether
or not the appellant had absolute immunity from disciplinary action
in terms of section 65(2) of the Constitution of Zimbabwe, 2013
Mr
Gwisai
argued that since the appellant was a workers representative, he had
relative immunity from disciplinary action in terms of section 65(2)
of the Constitution of Zimbabwe, 2013 (“the Constitution”). The
provision states as follows:
“Except
for members of security services, every person has the right to form
and join trade unions and employee or employers organisations of
their choice and to participate in lawful activities of those unions
and organisations.”
The
import of the above provision is that although every person is
permitted to be a member of a trade union, as such, one is obliged to
only participate in activities that are lawful. In the event that a
person participates in unlawful activities, disciplinary action can
be taken against such a person.
The
fact that a person is a workers representative does not mean that he
or she is immune from disciplinary action. If a workers
representative is involved in an unlawful activity, then he or she is
subject to disciplinary action.
Commenting
on the import of section 65(2) of the Constitution in the case of
Zimbabwe
Banks & Workers Union & Anor v Marimo & Ors
CCZ
8/21
GOWORA JCC stated the following at p14:
“My
reading of the subsection does not suggest, by any stretch of the
imagination, that employees are given carte
blanche
by the Constitution to breach their contracts of employment and
provisions contained in codes of conduct and thus create havoc or
anarchy within the workplace under the guise of furthering the
interests of workers and the union.
The
employer-employee relationship is sacrosanct and based on trust.
The
employee is therefore obliged to act in good faith and in a manner
that is consistent with the interests of his or her employer. The
fact that an employee is a member of a trade union or is a workers
representative does not sever the employment relationship. It does
not qualify any of the obligations and duties that each owes the
other under the contract of employment. The terms of the contract of
employment define the ambit of the parties relationship. To place the
employee's status as a union member or workers representative above
that of the employment contract would be to subsume the contract of
employment under such membership.
That
cannot be a correct position of the law as it pertains to employment
contracts…
Section
65(2) upon which the applicants seek reliance for the alleged
violation of the fundamental rights of employees in the workplace
does indeed protect the right of every person to form, join and
participate in the activities of trade unions or employer
organisations. The rider to the right is that such participation must
be clothed with legality.
The
applicants counsel was pressed on this issue and was constrained to
concede that the activities protected under section 65(2) must be
lawful. It was pertinent to note that applicants counsel admitted
that the participation of the second applicant or his colleagues in
an illegal strike would not be the lawful activities contemplated by
the section for protection.”
Based
on the above authority, the appellant's actions were tainted with
illegality. As such, he was not immune from disciplinary action as he
acted outside the confines of the law.
It
is settled that workers representatives are not immune to
disciplinary action in circumstances where they have engaged in acts
of misconduct.
As
was stated by CHIDYAUSIKU CJ in the case of Zimbabwe
Electricity Supply Authority v Mare
SC43/05
at p4:
“In
my view members of the Workers Committee are not a law unto
themselves…I accept that a member of the Workers Committee has a
duty to defend workers rights. In defending the rights of the
workers, a member of the Workers Committee is enjoined to observe due
process.”
The
court is therefore inclined to agree with Mr
Maguchu's
submission
that section 65(2) of the Constitution does not clothe the workers
representative with absolute immunity.
Whether
or not the court a
quo
erred by upholding the appellant's dismissal from employment
The
above issue emanates from the second and third grounds of appeal.
It
is the appellant's contention that the court a
quo
failed to find that the conviction and dismissal of the appellant was
tantamount to victimization for exercising his role as a Workers
Committee member.
In
addition, the appellant is of the view that the court a
quo
did not weigh the evidence before it to determine whether it
established that the appellant had made misrepresentations to the
respondent and the other employees.
In
respect of the third ground of appeal, Mr Gwisai
submitted that the court a
quo
erred in upholding the penalty of dismissal as the court had
authority to interfere with the penalty in terms of section 12B(4) of
the Labour Act. He further argued that the penalty was harsh and
unfair in the circumstances.
The
court's considered view is that the issues raised in the second and
third grounds of appeal can be resolved by determining whether or not
the court a
quo
correctly found that the appellant was guilty of the acts of
misconduct he was charged with.
It
is trite that the degree of proof in labour issues is on a balance of
probabilities.
In
the case of British
American Tobacco Zimbabwe v Chibaya
SC30/19 the court
cited the case of Miller
v Minister of Pensions
[1947] 2 AII ER 372, 374, wherein the following was said regarding
proof on a balance of probabilities:
“It
must carry a reasonable degree of probability but not so high as is
required in a criminal case. If the evidence is such that the
tribunal can say 'we think it more probable than not' the burden
is discharged, but if the probabilities are equal it is not.”
In
casu,
the evidence on record established that the appellant was not
involved in the initial Workers Committee meeting in which the
members resolved to misrepresent to the respondent that the employees
wanted to be addressed by management on the issue of the salary
increments, and to the employees, that management wanted to address
them.
This
was the appellant's testimony during the disciplinary hearing,
which testimony was supported by the evidence of Mr Nzombe, Basil
Machocho, and Don Chabvamuperu.
That
notwithstanding, the appellant was part of the delegation that staged
a sit-in in the HCE's office and refused to leave until management
had addressed the employees gathered in the canteen.
Although
the appellant might not have been part of the misrepresentations in
the beginning of the scheme, he did participate in continuing to
misrepresent to management that the employees were demanding to be
addressed when that was, to his knowledge, an unfounded lie.
In
the case of Anthony
Makintosh
v The Chairman, Environmental Management Committee of City of Harare
& Anor
SC12/14
at p4, this Court held that:
“An
appeal court will only interfere with a decision which involves the
exercise of discretion by a lower court in very limited
circumstances. These were set out by this Court in Barros
& Anor v Chimphonda
1999 (1) ZLR 58 (S) at p62-63, where the court said:
'The
attack upon the determination of the learned judge that there were no
special circumstances for preferring the second purchaser above the
first – one which clearly involved the exercise of a judicial
discretion – may only be interfered with on limited grounds. See
Farmers Co-operative Society (Reg.) v Berry 1912 AD 343 at 350.
These
grounds are firmly entrenched.
It
is not enough that the appellate court considers that if it had been
in the position of the primary court, it would have taken a different
course. It must appear that some error has been made in exercising
the discretion. If the primary court acts upon a wrong principle, if
it allows extraneous or irrelevant matters to guide or affect it, if
it mistakes the facts, if it does not take into account relevant some
consideration, then its determination should be reviewed and the
appellate court may exercise its own discretion in substitution,
provided always has the materials for so doing. In short, this court
is not imbued with the same broad discretion as was enjoyed by the
trial court'”.
An
analysis of the facts leads to the conclusion that
there was no misdirection by the court a
quo
in upholding the decision of the Appeals Officer. Accordingly,
the court a
quo
cannot be faulted for upholding the finding that the appellant
misrepresented facts to the respondent and to the respondent's
workforce.
In
addition, in respect of the appellant's allegations of
victimization for executing his duties as a Workers Committee
representative, it is our view that the appellant was not victimized
as he was procedurally punished for committing acts of misconduct.
As
already sated above, whilst it is trite that members of the Workers
Committee ought not to be victimized for acting in their
representative capacities, it is also settled that they are not
immune from disciplinary action in circumstances where they have
engaged in acts of misconduct.
Thus,
members of the Workers Committee must carry out their duties within
the confines of the law.
The
appellant and his colleagues ought to have utilized the proper
channels of communication put in place by the respondent in seeking
to have management address the issue of the salary increment.
Resorting to misrepresentations was not necessary under the
circumstances and constituted acts of misconduct. The appellant and
his colleagues acted unlawfully by peddling false information to the
employees and management, which resulted in the respondent losing a
day's worth of production.
In
addition, the imposition of a sentence is in the discretion of the
disciplinary tribunal.
This
was aptly captured in the case of Delta
Beverages (Pvt) Ltd v Shumba
SC167/20
at p8, wherein it was held that:
“The
question of an appropriate penalty to pass is within the discretion
of the employer where an employee commits a dismissible act of
misconduct. For an appellate court to interfere with the penalty
imposed by the employer in the exercise of its discretion, there
needs to be proof that the exercise of the discretion was
impeachable.”
As
a result of the appellant being convicted of misconduct that involved
dishonesty and which specifically goes to the root of the contract of
employment, the respondent was at liberty to sever ties with the
appellant and hand down a sentence of dismissal from employment.
This
is in accordance with what the court stated in the case of Standard
Chartered Bank Zimbabwe Limited v Musanhu
2005 (1) ZLR 43 (S),
at 47A where MALABA JA (as he then was) quoted with approval the case
of Pearce
v Foster
1886 QB 536
at 53G where it was held that:
“...if
the servant's conduct is so grossly immoral that all reasonable men
would say that he cannot be trusted, the master may dismiss him.”
It
is therefore, our view that the sentence imposed on the appellant was
appropriate and the court a
quo
did not err by finding that it was limited in its interference with
the imposed sentence.
This
is so as there was no justification for the court a
quo
to interfere with the sentence.
In
addition, it is important to note that the appellant sought to
criticize the Appeals Officer's judgment and yet the notice of
appeal is silent on that issue.
DISPOSITION
The
appellant abandoned the first ground of appeal. We are satisfied that
there is no misdirection in the court a
quo's
decision. The remaining grounds of appeal have no merit.
As
is the general norm, costs will follow the event.
In
the result, it is ordered that the appeal be and is hereby dismissed
with costs.
MAVANGIRA
JA:
I agree
CHIWESHE
JA:
I agree
Matika,
Gwisai & Partners,
appellant's
legal practitioners
Maguchu
& Muchada Business Attorneys,
respondent's
legal practitioners
