Enock Makuyana v Tobacco Processors Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/678/2016
HARARE, 23 MAY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/678/2016

HARARE, 23 MAY 2016				  	     CASE NO. LC/H/406/15

AND 4 NOVEMBER 2016

In the matter between:-

ENOCK MAKUYANA		 				Appellant

And

TOBACCO PROCESSORS ZIMBABWE				Respondent

(PVT) LTD

Before Honourable R.F. Manyangadze, J

For Appellant		Mr T.J. Mafongoya (Legal Practitioner)

For Respondent		Mr F. Mahere (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against the determination of the National Employment Council Tobacco Industry Grievance and Disciplinary Committee (GDC), which upheld the dismissal of the appellant from the respondent’s employment.

The facts of the matter, briefly outlined, are as follows.

The appellant was employed by the respondent, and held the position of Accounts Controller.  Apart from his substantive duties, he was also an official of the Zimbabwe Tobacco Industry Workers Union, where he held the post of Deputy Secretary General.  At the time of the alleged misconduct, he was the outgoing chairman of the Workers Committee at his workplace.

On 26 September 2014, there was a verification exercise of nominations for election of Workers Committee representatives, at respondent’s premises.  Present at the venue were Labour Officers from the Ministry of Public Service, Labour and Social Welfare, who had been invited to oversee the verification process. It is alleged that the appellant stormed into the venue and objected to the presence of the Labour Officers.  He threatened violence against the officers and one Mr R. Makaya, the respondent’s Industrial Relations Officer.  The appellant then picked up the ballot papers the labour officers were counting, and threw them into a dustbin.

Arising from this incident, the appellant was charged with misconduct, in terms of the Tobacco Industry Code of Conduct Statutory Instrument 322 of 1996. The charges were framed as follows:

“Indiscipline, Violence and Other Related Offences:

2 (c) Threatening or intimidating behavior;

Indiscipline, Violence and Other Related Offences:

2 (e) Inciting other employees to commit violent acts, either to management     or to cause damage to company property or assets; and

In the alternative,

In terms of Section 14 (b) of S.I. 322 of 1996:

Any act of conduct or omission in consistent with the express or implied conditions of one’s contract.”

On 17 November 2014, the respondent’s Disciplinary Committee found him guilty as charged, and imposed a penalty of dismissal.  The appellant appealed to the Works Council Appeal Committee.  In a determination handed down on 12 December 2014, the Works Council Appeal Committee dismissed the appeal in its entirety.  Appellant made a further appeal to the GDC.

On 10 April 2015, the GDC upheld the appellant’s conviction on the first charge.  It cleared him of the second and alternative charges.  This prompted the appeal to this court.  The appeal is therefore in relation to the first charge, which is

“Indiscipline, Violence and Other Related Offences: (2) (c) Threatening or intimidating behaviour”

The grounds of appeal are stated as follows:

“1.	The NEC GDC grossly erred and misdirected itself on the facts, which misdirection amounts to a question of law in making a finding that the incorrect record of proceedings did not prejudice the appellant, whereas the record of proceedings stated that the appellant admitted to wrongdoing when in fact he did not do so in the disciplinary hearing before the disciplinary authority.  Consequently, the findings of the Committee were on an irregular record of proceedings.

The NEC GDC grossly erred and seriously misdirected itself on the facts, which misdirection amounts to a question of law in making a finding that the appellant was guilty of threatening or intimidating behaviour, a finding which is not supported on the law, the facts and the deliberations (that the appellant merely acted using a robust approach as a Trade Union official and also as the outgoing Chairman of the Workers Committee) of the NEC GDC in the matter.

Without admitting the conviction, the NEC GDC grossly erred and seriously misdirected itself on the facts, which misdirection amounts to a question of law in confirming a dismissal penalty which induces a sense of shock in the circumstances.  This is especially so considering that the mitigating factors far outweighed the aggravating factors.

Furthermore the NEC GDC grossly erred and misdirected itself on the facts, which misdirection amounts to a question of law in confirming the dismissal of the appellant when the misconduct complained of had not been proved, consequently the same, did not go to the root of the contract of employment.”

The first ground of appeal is on the accuracy of the record of disciplinary proceedings.  The appellant contends that the record of the initial disciplinary hearing was inaccurately compiled.  The Works Council Appeal Committee and in turn the GDC relied on that record.  This, averred the appellant, should vitiate the determination of the GDC.  For this proposition, the appellant relied on the case of   S v Chidavaenzi, HH 113/08 among other cases.  Appellant made particular reference to the remarks by the court, that;

“The trial court clearly failed to keep a full and comprehensive record of the proceedings before it.  This amounts to a misdirection vitiating the entire proceedings.”

In countering the appellant’s averment, the respondent argued that the appellant was given an opportunity to make submissions, before the Works Council, on the alleged inaccuracies or irregularities in the record.  A look at the determination of the Works Council Appeal Committee shows that the Appeal Committee duly considered this matter, before going into the substantive grounds of appeal.  It noted that;

“Most of the areas of concern in the minutes raised by the appellant were attended to by the Chairman of the disciplinary hearing and, accordingly, the minutes were amended.”

More importantly, the Appeal Committee stated:

“Council also noted interestingly that appellant failed to prove how the omission of the contentious positions seriously affected the verdict of the Disciplinary Committee. In the circumstances, it is ruled that the minutes of the disciplinary hearing adequately and substantively recorded what transpired during the hearing …”

In essence, the respondent’s contention is that the concerns of the appellant over the record were taken on board, to the extent reasonably permissible.  The respondent further contends that in any case, there was no prejudice to appellant emanating from the record of proceedings.  The evidence on record supported the appellant’s conviction.  Consequently, whatever irregularities appellant alleged did not prejudice the appellant.  In this regard, the court was referred to the case of X v Health Professions Council  2001 (2) ZLR 286 (H) where SMITH J stated at page 292 D-E, that;

“… However, it does not automatically follow that if part of a record is missing then the conviction must be set aside.  In S v Collier 1976 (2) SA 378 (C) at 378H-379A Burger J said:

“I am in respectful agreement with the practice that where the whole record or a very material part thereof has been lost prior to review or the appeal being concluded, the proceedings and sentence should be set aside.  In such cases, the court of appeal or review is clearly unable to consider the case.  But it seems to me wrong that the same result should follow where only some answers of a witness on matters which are apparently not of vital importance are not recorded.  It would lead to an absurd result…”

A look at the appellant’s heads of argument shows that the main basis of his contention is that the record creates the impression that he admitted the offence.  This is reflected in para 2.4 of the appellant’s heads of argument;

“The challenged record states that the appellant admitted to wrong doing.  This clearly caused prejudice to the appellant in that the record in the mind of a reasonable (sic)  gives a wrong position that the appellant admitted to wrongdoing.”

The determination of the Disciplinary Committee shows that it relied on the evidence placed before it in convicting the appellant.  A perusal of that determination does not indicate that it relied on an admission made by the appellant.  The determination reads, inter alia;

“Evidence in support of this charge was led from Mr R Makaya, the Industrial Relations Officer, Mr P Piaso, Mr P Masvaure and Mr I Dzikamai, all from the security department.  All those witnesses were emphatic that the Accused behaved violently against the Labour Officers and Mr Makaya. They explained, in graphic detail, how the Accused shouted at the Labour Officers of the employees had shouted that the Labour Officers should be “chased away like dogs”. It is also clear from the video evidence that the Accused accused Mr R Makaya and Mr S Mugumisi, the Human Resources Manager, of bribing the Labour Officers.  I am satisfied that sufficient evidence was led from Complainant’s witnesses to prove Accused’s violent behaviour against the Labour Officers and Mr Makaya.  It is quite clear that Accused was angry with the Labour Officers because of his belief that they had been bribed by Mr Mugumisi and Mr Makaya.  That explains why he sought to incite other employees against the Labour Officers.  This threatening/violent conduct is also manifested by the fact that he went on to grab ballot slips from the Labour Officers and dumped them into the bin.  Such behaviour cannot be said to be anything other than intimidating or threatening.  Accused, other than making bald denials, did not call a single witness to corroborate his own version.”

Clearly these findings do not reflect, in any way, that they were based on admissions allegedly made by the appellant.  They are an assessment of the evidence adduced by the respondent, against the appellant.

In the circumstances, the appellant’s contention that he was prejudiced by an allegedly inaccurate record, which stated that he admitted the alleged offence cannot be upheld.  His conviction was based on a consideration of the totality of the evidence on record, not on selected portions showing that he conceded to wrong doing.

In the circumstances, the first ground of appeal cannot be upheld.

The second ground of appeal is on the substantive issue of whether or not the appellant was properly found guilty of engaging in threatening or intimidating behaviour.

A look at the record and the parties’ submissions, in my view, shows that the acts complained of are basically not in dispute.  These are that the appellant was in an angry mood when he entered the tea room, the venue of the verification exercise.  He was vehemently opposed, rightly or wrongly, to the involvement of the  labour officers in the exercise.  He grabbed the ballot papers the Ministry Officials were counting, and dumped them in a dust bin.  Such conduct can certainly not have been accompanied by courteous or conciliatory language.  It lends credence to the finding that his behaviour was of a threatening nature.

In this regard, the Works Council Appeal Committee stated;

“Council was satisfied that the Disciplinary Committee made a factual finding that the appellant exhibited threatening and intimidating behaviour on the 26th of September 2014 when he stormed into the office where the Labour Officers and Mr Makaya were in and menacingly confronted them, whilst shouting obscenities at them Council is satisfied that the Disciplinary Committee, after assessing the evidence before it, made a factual finding that Appellant’ s behaviour was threatening and intimidating.  The Works Council can only interfere with the finding of fact of the Disciplinary Committee if it is proven that the Disciplinary Committee grossly misdirected itself in its assessment of the facts resulting in a conclusion which it could not have arrived at had it assessed the facts before it properly. The intimidation/threatening behaviour is further manifested in appellant practically grabbing ballot papers from a Labour Officer invited by the company, and dumping them into the bin.”

Confronted with these basic facts, as constitutive of his behaviour on the day in question, the appellant attempted to advance the explanation that he was acting in his capacity as a trade union official.  He was acting in furtherance of the legitimate interests of his constituency.  His robustness, in this endeavour, was mistaken for intimidation.  That is the gist of the appellant’s defence.  It is reflected in paragraphs 3.4 of his heads of argument, wherein it is submitted;

“It clearly was proven on the record that the behaviour of the appellant was not threatening or intimidating at all.  The appellant only acted in a robust manner in response to an immediate threat to the existence of the workers committee and the trade union.”

The respondent argued, correctly in my view, that this defence cannot be sustained.  The appellant simply became a law unto himself and threw the verification process into chaos.  His conduct crossed the line.  He went beyond what may be acceptable as trade union activism.   The respondent captured this aspect well in paragraph 24 of its heads of argument;

“The appellant took the law into his own hands by throwing the nomination papers into the bin in the presence of the Labour officers and thereafter threatening one Makaya.  Clearly his behaviour cannot be justified because he should have followed the proper procedure if he was opposed to the nomination process other than act in the manner he did.  As correctly observed by the NEC GDC.

“However it was the manner in which the appellant took the law into his hands that was of major concern.  He could have used other remedies available such as approaching the Human Resources Manager or lodging a grievance in terms of the Industry Code of Conduct Statutory Instrument 322 of 1996”.

By his actions, the appellant caused pandemonium, chaos and despondency at the work place.”

The court was referred to the case of ZESA v Mare 2005 (2) ZLR 222 (S) where the court stated that a member of the Workers’ Committee was not entitled to take the law into his own hands and obstruct investigations being conducted by the employer.

The remarks of the Supreme Court in Elias Chidembo v Bindura Nickel Corporation Limited SC 35/15 are instructive.  GWAUNZA JA stated at pages 6-8 of the cyclostyled judgment;

“First and foremost, the appellant was an employee of the respondent, to whom at all times he bore the duty of trust and loyalty.  His conduct in relation to the respondent was regulated and governed by the requisite Code of Conduct, in this case S.I. 379/1990. As correctly averred by the respondent the appellant remained accountable to his employer irrespective of the position he assumed as the worker’s committee chairman.  Secondly, I am satisfied that an act of misconduct committed by a worker outside the workplace, and in his – also work related – capacity as a workers’ committee member, is unlawful as long as it impacts directly on the employer’s private interests and in addition, constitutes a violation of the employer’s Code of Conduct.  This Court has effectively ruled as much in cases were workers’ committee members, purporting to advance or protect workers’ rights, have engaged in unlawful job actions.4  The workers found that their status as workers’ committee members did not clothe them with a cloak of immunity against misconduct charges.  The central issue being the fact that if the conduct in question is outlawed under the Code of Conduct, it remains unlawful irrespective of the “hat” that the offending worker may be wearing at the time the misconduct is committed.

Likewise in casu. The disclosure of confidential information without the requisite authority of the employer remained an unlawful act in terms of the respondent’s code.  The fact that the appellant committed the misconduct while performing this role as the worker’s committee chairperson is of no moment.  This is because his status as a workers’ committee chairperson did not turn what was unlawful, into a lawful act.  It became unlawful the moment he disclosed the information without the authority of the respondent.  An employer is perfectly within its right to put in place measures that will protect confidential and sensitive information relating to its employees and operations, against unlawful disclosure.  Employee salary scales fall into this category of information.  Given that the code of conduct in casu expressly provides that it is only the employer who can authorise any disclosure by any employee, of such information, the words of Chidyausiku CJ in the case of Zimbabwe electricity Supply Authority v Moses Mare SC 43/05, are apposite:

“In my view, members of the Workers’ Committee are not a law unto themselves …In defending the rights of the workers, a member of the workers’ committee is enjoined to observe due process.”

In casu, the appellant’s conduct is no exception. It certainly falls into the unfortunate and unacceptable category of trade union officials whose conduct crosses the line.  It went beyond what may be viewed as legitimate advancement of workers’ interests into what was clearly a violation of the Code of Conduct.  Consequently, he was properly charged, and convicted of indiscipline related behaviour as cited in the charge. His defence has no merit and cannot be upheld.  The second ground of appeal fails in the circumstances.

The third ground of appeal is on penalty.  The appellant avers that the penalty of dismissal is too harsh and induces a sense of shock.  I am unable to uphold this averment.  The respondent, as employer viewed the appellant’s conduct seriously.  This is reflected in its submissions in aggravation, which were accepted by the Disciplinary Committee.  It was submitted, inter alia, that;

“The accused has served the Company for close to 15 years with close to 8 years as an active Workers Committee member.  He has also been an active Trade Union member for close to 8 years.  He has sat in various appeals on disciplinary matters both at company and NEC levels.  This means he has a rich exposure to such matters and is fully aware of what is expected of him in terms of conduct at the work place.  His behaviour on the 26th and 30th of September 2014 was unacceptable and could have resulted in violent protests by employees had it not been for the security personnel who managed the employees in both circumstances.”

There is a long line of cases wherein is emphasised the prerogative of the employer on the nature and extent of disciplinary measures to be taken against offending employees.  Notable among such cases is Innscor Africa (Pvt) Ltd vs Letron Chimoto S.C. 6/12, Mashonaland Turf Club v Mutangadura 2012 (1) ZLR 183 (S), and ZB Financial Holdings vs Maureen Manyarara SC 3/12.

The appellant exhibited utter contempt for the business that was being conducted, officially, at the work premises.  It matters not whether his views on the process that was going on were right or wrong. He displayed unacceptable levels of indiscipline, which had the potential to plunge the workplace into chaos.  His positions in the company, the trade union, and the Workers Committee, were such that he should have known better and adopted a more disciplined and responsible approach to the situation.

In the circumstances, the court finds no basis for interfering with the penalty imposed by the Disciplinary Committee, upheld by the Works Council Appeal Committee and the GDC.

In the result, it is ordered that;

The appeal be and is hereby dismissed in its entirety.

The determination of the GDC dated 10 April 2015 be and is hereby upheld.

The appellant shall bear the respondent’s costs.

Matsikidze and Mucheche, appellant’s legal practitioners

Gill, Godlonton & Gerrans, respondent’s legal practitioners