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 Human Capital Executive (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 Human Capital Executive'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 Old Mutual Code of Conduct and Grievance Procedure, and investigations into his conduct were instituted.
On 1 August 2019, the appellant was charged with contravening section 15.9.1 of the Old Mutual Code of Conduct and Grievance Procedure 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 Human Capital Executive (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 Human Capital Executive (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 Human Capital Consultant (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 Human Capital Consultant (HCC).
The appellant also argued, that, he had acted within his mandate, as a Workers Committee member, when he approached the Human Capital Executive (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 Human Capital Executive (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 Human Capital Executive'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 Human Capital Executive (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 Human Capital Executive'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.”...,.
Whether or not the court a quo erred by upholding the appellant's dismissal from employment
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…, 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)…, where MALABA JA…, 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....,.
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.
