Godfrey Muroyi v Ministry of Higher & Tertiary Education

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/65/2014
HARARE, 30 JANUARY 2014
CASE NO. LC/
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/65/2014

HARARE, 30 JANUARY 2014		           	                   CASE NO. LC/ H/21/11

AND 14 FEBRUARY 2014

In the matter between:-

GODFREY MUROYI						Appellant

And

MINISTRY OF HIGHER & TERTIARY				Respondent

EDUCATION

Before The Honorable F.C. Maxwell, Judge

For Appellant		Mr. T. Katsuro (Legal Practitioner)

For Respondent		Mr. C. Karinga (Law Officer)

MAXWELL J:

This is an appeal against a misconduct determination and penalty by the Acting Permanent Secretary of the Respondent on 13 December 2010.  The grounds of appeal are;

The Acting Permanent Secretary (APS) erred in finding the Appellant guilty of misconduct when it is clear from the College Lecturers Association minutes that the meeting was convened during the lunch hour.

The APS further erred by finding the Appellant guilty of not seeking authority from the relevant authority, when in fact the said permission was sought and granted.

The APS also erred in finding the Appellant guilt of discussing anti management business and inciting other members to go on industrial action, when a perusal of the meeting (sic) indicates that the Appellant did not  act in the manner alleged.

The penalty handed down by the APS is so severe as to induce a sense of shock that no reasonable authority fully applying its mind to the matter could have imposed it in that;

His colleague, the vice-chairperson who attended the same meeting and faced the same allegations was found guilty and ordered to pay a fine of US$100.00 over a period of (4) four months.

Appellant prayed that the decision by the APS be set aside and that he be reinstated with full salary and benefits.

In response, Respondent stated that as a civil servant Appellant’s conditions of service were governed by the Public Service Regulations SI 1/2000 and the Public Service Act [Chapter 16:04]. Respondent further alleged that Appellant had not notified the head of office, the principal, of the intended meeting.  Respondent also stated that the Appellant was not charged for conducting trade union business but for conducting a meeting without authority.  Respondent justified the penalty meted on Appellant on the basis that he had been reprimanded on more than two occasions unlike the vice-chairperson who was a first offender.

The background of the matter is given in Appellant’s heads of argument.  Appellant was a duly attested lecturer at Gweru Polytechnic College.  He was the President of the college’s branch of College Lecturers Association of Zimbabwe (COLAZ), a duly registered Trade Union in terms of the Labour Act.  In that capacity he organized and convened a members’ meeting at the college on 4 March 2010.  The meeting started at 1300 hours and ended at 1400 hours.  It was attended by 40 members of the trade union working at the college.  Appellant was subsequently charged with contravening the Public Service Regulations’ paragraph 23 of the 1st schedule as read with section 44 (2).  On 21st June 2010 a hearing was conducted which resulted in his dismissal on 13 December 2010.  The Disciplinary Committee held that Appellant had convened the meeting without authority from the head of office during working hours and incited other members to go on strike.  As submitted by the Appellant there are three issues that need to be dealt with

Whether or not Appellant needed the approval of his principal to engage in trade union business.

It was not in dispute that at the relevant time Appellant was the vice Present of COLAZ.  Appellant submitted that in that capacity he did not need to request any authority from the principal to engage in trade Union business.  Respondent on the other hand submitted that Appellant was at a Government Institution that had rules and regulations governing it.  Holding any meeting or gathering without the approval or knowledge of the head of the institution amounts to contravening those rules and regulations that govern the institution.  That position is supported by the case cited by Appellant, Farayi Madiro and Another v Ministry (sic) of Higher and Tertiary Education LC/MT/37/13.  The seventh line of the ruling in the said matter indicates

“… and addressed the lecturers with the permission of the principals”. (underlining for emphasis)

Again on page 6 of the ruling it is stated;

“Both Appellants went through their employers before participation in their trade union work, Mr. Madiro first sought audience with the principals of the Hillside Teachers College and United College, where the Deputy Principal even sat at the meeting.  It has not been said she is a member of COLAZ“(underlining for emphasis)

Further the ruling goes on to say;

“As regards the 2nd Appellant when he received information from COLAZ, before he took it to his colleagues who were members, he first took it to the Human Resources Manager, so that the employer would know what was happening.  Nothing was done in secret.”  (underlining for emphasis)

Clearly there is need to notify the authorities of the institution that a trade union meeting was to be held.  This is even acknowledged in Appellant’s grounds of appeal.  The second ground of appeal states that permission had been sought and granted.  This seems to be a follow up of what Appellant stated at the disciplinary hearing.  Page 11 of the record has the following exchange.

“Q	 Were you authorized by the Principal to hold that meeting?

A	 Yes

Q	 Why do you say so?

A  	On a date I no longer remember, I went to the Principal with Mr. Jaravani to

inform him about the meeting.  He told us he was going to Harare and informed us to bring the minutes of that meeting to him.  He even asked us to bring issues to be taken to the Director in Harare”.

The Principal denied giving the authority.  Mr. Jaravani said he went to the Principal with the Appellant after the relevant meeting on a different issue.  (page 12-13 of record)

In my view the departure from the averment that he had been authorized in the oral argument is a realization that the statement could not be substantiated.  Appellant also submitted that the meeting was held during lunch hour between 1300 hours and 1400 hours, and therefore the question of disruption of college activities falls away.  Appellant is ignoring the provisions of paragraph 23 (c) of the first schedule to the Public Service Regulations, Statutory Instrument 1/200.  Paragraph 23 (c) of S.I. 1/2000 is the basis upon which he was charged and convicted, and it lists as an act of misconduct

“(c) calling meetings of members at the work place or during working hours ….”

in furtherance of collective job action.  The minutes of the meeting of 4 March 2010 that gave rise to this matter are informative.  The chairperson (I assume the Appellant in this case) gave members an update on industrial action in which he stated that it had been resolved at an Apex Council meeting

“that the sit in was and would remain in force until Friday 05 March 2010”.

That the next course of action after Friday 05 March 2010 would be communicated by the Council.

The minutes further reveal that “members of the Council who addressed the meeting implored union members to support the cause in their numbers as this was the only time civil servants had to talk to their employer about their plight.” The last bullet under item 1 of the minutes states;

“Members are not happy being stalked to lecture rooms by the principal while they are on the job action.” (underlining for emphasis)

Clearly the meeting in question was in furtherance of the Collective job action and falls squarely within paragraph 23 of the first schedule to S.I. 1/2000.  Appellant should have notified the authorities and sought clearance for holding such a meeting.  It matters not that the meeting was held during lunch hour.  It was still a meeting of members at the workplace for the furtherance of the collective job action.

Whether or not when Appellant addressed lecturers at his former College he incited them to embark on a sit in and engage in other activities detrimental to college business.

I believe this issue has been adequately addressed above.  Appellant gave an update on the job action.  The meeting was in furtherance of the collective job action as members were given information that would advance the job action.  In my view the inciting is not necessarily at the commencement of the job action.  One can incite someone to continue an act that has already commenced as happened in this case.  The members were informed of a decision by the Apex Council that the sit in would continue until 5 March 2010 and the next course of action would be advised.  It was detrimental to the College for the lecturers to engage in sit ins.  The minutes reveal that the lecturers had a number of grievances and the holding of the meeting without the knowledge or authority of the Principal was not conducive to a healthy working environment.  Appellant’s conduct in this regard was improper.  I find that the decision of the disciplinary authority on this aspect cannot be faulted.

Whether or not Appellant was given opportunity to mitigate when sentence was passed.

Appellant submitted that the disciplinary committee only considered aggravating circumstances without taking into account circumstances that would have warranted a lesser sentence.  The mitigating issues were outlined as

the fact that the meeting has held during lunch time.

that Appellant had no legal obligation to seek clearance or authority from the principal to do union business.

that members voluntarily attended the meeting and had a legitimate expectation to be addressed by the Appellant.  There was no incitement on the lecturers from anybody.

That the business discussed was not in any way anti-management.

He prayed for the decision to dismiss him to be set aside and that he be reinstated with full benefits.  Respondent submitted that the mitigating factors do not exonerate Appellant as previously he had been reprimanded and fined for a number of misconducts.  Respondent further submitted that Appellant has a bad working relationship with his employer and he continues to act in a manner that worsens the working relationship.  Indeed the record of proceedings confirms that no mitigatory factors were considered when penalty was decided upon.  This was an error on the part of the disciplinary committee.

The question is whether this irregularity vitiates the proceedings.  My view is that it does not even though it should not be ignored.  As stated in Dalny Mine v Banda 1999 (1) ZLR 220 the irregularity should be put right.  This can be put right by either remitting the matter to the disciplinary committee to take and consider mitigatory factors or for this Court to hear the mitigatory factors and consider them in the light of the penalty meted.  I have decided to adopt the latter option.

Appellant has submitted the mitigatory factors before this Court.  They are issues raised in argument and stated in paragraph 8 of his heads of argument.  These issues have been dealt with above.  Appellant was silent on the issue of previous convictions.  Page 14 of the record shows that he was convicted on two occasions, on 21 February 2003 and on 26 May 2000.  In the first case he was warned.  In the second case he paid a fine, was warned and reprimanded.  The committee felt that Appellant had not taken heed of the warning and reprimand previously given, hence the dismissal “for the good of the system, Ministry and College”.  I find that even though the mitigatory factors were not considered, they are outweighed by the aggravating factors.  Moreover, I have dismissed most of them as not exonerating Appellant. I find no basis for interfering with the decision of the Respondent on that aspect.

For the above reasons the appeal is without merit and therefore fails. Accordingly it is ordered that

The appeal be and is hereby dismissed for lack of merit.

Appellant shall pay costs of suit.

Munyaradzi Gwisai & Partners, Appellant’s legal practitioners