Justice Marume VS Baines Avenue Clinic

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/166/2021
HARARE, 23 SEPTEMBER, 2021
CASE NO. LC/H/59/21
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/166/2021

HARARE, 23 SEPTEMBER, 2021		     CASE NO. LC/H/59/21

AND 08 OCTOBER, 2021

In the matter between:

JUSTICE MARUME							Appellant

Versus

BAINES AVENUE CLINIC						 Respondent

Before The Honourable Kachambwa J;

For Appellant:				T. Nyamayaro ( Legal Practitioner)

For Respondent:				T. Chagonda (Legal Practitioner)

KACHAMBWA J:

The Appeal

This is an appeal against the decision of the employer made in terms of the Labour (National Code of Conduct) Regulations 2006, Statutory Instrument 15 of 2006. The appellant was charged of contravening section 4(a) of the code which reads;

“Any act of conduct or omission inconsistent with the fulfillment of the express or implied conditions of his or her contract”.

Specifically he was charged of;

“a	organizing, inciting and /or attending an unlawful, illegal or improperly convened gathering of members of staff on the 8th of September 2020 in violation of workplace and contractual procedures for calling meetings.

b.	And that as a managerial employee who is not a member of the Works Council, he had no business in attending such a meeting”.

The basis of the charge

The basis of the charge was that the employees under the national employment council grade had convened a meeting without following the company procedures for holding such a meeting. The appellant was alleged to have approached physically and by telephone some employees and called them to attend the meeting. He threatened some of the employees that if they did not attend they will be labeled as sellouts. He is a managerial employee and he attended and even addressed the meeting on his personal issues. The appellant was initially charged not as a manager to which he successfully objected hence the charge as a manager after withdrawing the initial charge and suspension from work.

The grounds of Appeal

The appellant raised five (5) grounds of appeal as follows-

1.	The tribunal aquo grossly misdirected itself in failing to find that the employer could not proceed to charge the appellant on the same charge he had been unlawfully suspended on or before reinstating him and paying his full salary and benefits.

2.	The tribunal aquo grossly misdirected itself in its findings, the misdirections are unreasonable that no person applying his mind to the facts would have arrived at such findings;

2.1	That appellant organized and incited people to attend an unlawful meeting on the basis of three witnesses’ personal encounters with appellant which were both contradictory and inconsistent. The finding is contrary to the totality of the evidence on record.

2.2	That appellant was always regarded as a managerial staff. This is contrary to affirmation by the tribunal that appellant was only treated as management staff moments prior to the proceeding before him.

3.	A fortiori the tribunal a quo erred in failing to find that the employer did not prove its case on a balance of probabilities.

The response

The respondent opposed the appeal in full.

On the first ground of appeal the respondent’s position was that whether the appellant

was paid or not paid his arrear salary and benefits that did not preclude the employer

from instituting disciplinary action against the appellant. The appellant had his initial

suspension and charges lifted with full salary and benefits. New charges had been

raised (though on the same facts) and that was procedurally correct.

On the second ground of appeal the respondent’s argument was that there was

no gross misdirection at all as adequate evidence was called. Further the initial charge

having been withdrawn the appellant was properly charged of the new charge. It was

also said that the appellant could not on one hand claim that he could not be charged

as a NEC graded employee as he was a managerial employee and at the same time

refuse to be recognized and therefore charged as a manager. He had to stick to one

grade. He was blowing both hot and cold, a practice that is not permitted at law.

On ground number three, firstly it was said to be vague and embarrassing and for

that reason that it should be dismissed. In any case, the charge was said to have been

proved on a balance of probabilities.

On ground number four, the respondent pointed out that the appellant had not

stated his defence to the charge hence the result that he was touching on multiple

issues without specifity. Futher, the respondent pointed out that the right of freedom of

assembly is subject to workplace procedures. The appellant was said to know these

workplace procedures.

On the fifth ground the penalty of dismissal was said to fit the misconduct. There

was no misdirection.

Heads of Argument

The parties filed heads of argument. The appellant did not address the third and fourth grounds of appeal although the third ground is actually the same as the second ground as the appellant explained when challenged by the respondent.

The appellant described the first ground as the “dirty hands” principle, arguing

that by not paying him his salary and benefits for the initial suspension without salary and benefits the respondent had dirty hands and could not proceed to charge him before washing the dirty hands. He cited a number of cases. On the other hand the respondent’s position was that the appellant could chase up any outstanding payments using other avenues but may not avoid to be disciplined. The respondent had the right to take disciplinary action. Unfortunately no cases were cited by the respondent.

The appellant said that the respondent had a duty to act in a specific manner and was precluded from starting further proceedings before so acting. As for the fact that the Labour Act provided a solution he said that the Act could not be superior to common law from which the dirty hands principle originate.

The appellant appeared to address the second and third grounds as one by simply addressing the adequacy or otherwise of the evidence. He claimed that the evidence was inadequate citing that the main witnesses – Matope, Chinwa and Mujuru  - had contradicted themselves each in terms of their written statements or viva voce. Matope was said to have further contradicted herself with the evidence he gave in the case of Kaseke. He saw their evidence as not being credible.

On his being treated as a managerial employee the appellant continued to argue that the employer did not consider him as a managerial employee otherwise he would not have been charged in terms of the national employment council provisions  first. Thus, to him, the employer could not charge him either way.

The respondent was adamant that the charges were proved. It was pointed out that the three key witnesses were all advised by the appellant of the meeting. The evidence was in contrast to the appellant’ case where the appellant had not put across a clear line of defence. (It is indeed noted that the appellant was legally represented but did not give a defence – written or not. This speaks volumes to his defence.) He played gorilla tactics. That should not have been allowed.

On the issue of being a managerial employee this was said to be a none issue to the charge. He would not avoid disciplinary action on that score. While the appellant did not motivate the 4th ground of appeal the respondent nevertheless pointed out that the right to assemble was subject to workplace procedures. It does not exist in a vacuum.

On the penalty, while the appellant insisted that the penalty was excessive in the circumstances the respondent said it was in order. Both parties cited the case of Tobacco Sales Floors Ltd v Chimwara 1987 (2) ZLR 210 (S). They differed in their assessment of the seriousness of the misconduct.

The appellant introduced the parity principle to say that he must be treated the same way or less as Matope who had not been dismissed from employment despite Matope’s case being more serious otherwise. We note that this parity principle is not raised in the grounds of appeal. The respondent did not address this principle.

Address In Court

In Court the respondent successfully applied for the striking off of grounds of appeal three and four. However ground number three was covered in the second ground.

The appellant insisted that there was not enough evidence to convict. He seemed to bring a new argument that there was no illegality in the meeting because the person from the human resources section had impliedly authorized the meeting by attending and addressing the employees. He continued with the argument that the employer did not consider him as a manager until this incident and only did so in order to charge him.

The respondent attacked the fact that the appellant did not state his defence categorically. He reiterated that the evidence was consistent. It pointed out that an appeal does not lightly interfer with findings of fact. The challenge has to be substantiated for the court to interfer. The penalty was said to fit the misconduct.

On the penalty and parity principle the respondent said that the two cases were different as Matope had pleaded guilty unlike the appellant.

The appellant finally decided to address the issue of the lack of a clearly stated defence. He said that the need did not arise as the respondent had not proved the allegations. This only came in address after the respondent had addressed. This complaint was not new as it arises even from the hearing officer’s finding. The respondent had talked about it on a number of times.

The issues for determination

There are three issues for determination here. The first issue is whether the respondent is precluded from disciplining the appellant because of the dirty hands principle. The second one is whether there was adequate evidence to convict. The third one is whether the penalty is proper in the circumstances.

Dirty hands

The principle of dirty hands indeed seeks to protect a party from the other party that deliberately refuses to perform a direct obligation that is required to fulfill in terms of the law. Upon reinstatement the respondent had a duty to pay the appellant his arrear salary and benefits. Failure to do so the appellant had a right to sue for the salary and benefits. The Labour Act has made provision for payment of any such benefits and salary in section 13. Failure to pay constitutes an unfair labour practice and is also a criminal offence in terms of the same section 13. But in this case there is no order to pay. There is no issue of contempt of any court.

Dirty hands from an order of the court was not proved in this case. The parties seemed content in making a technical argument for its sake. Further, the employer is not precluded from  instituting disciplinary procedures because of the outstanding salary and benefits. These may be sued for and are also a subject of a criminal case if not paid in time at dismissal or termination of employment. The appellant seems determined to get away on a technicality. The courts have emphasized repeatedly that it is not the favoured root to decide labour matters on technicalities.  A person must escape punishment because he/she is not guilty. For this reason this court is further disinclined to allow the dirty hands principle let anyone get away on a technicality of this nature which is technicality curable if at all it is there. See the case of Air Zimbabwe v Chiku Mrensa & Mavis Mworweye SC89/04 where at page 6 of the cyclostyled judgment the court said that;

“A person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee. He should escape such consequences because he is innocent”.

The appellant relied on the case of CFI Retail (Pvt) Ltd v Manyika SC 8/16. However he took only a small portion of that case. That case is about a situation where there is a court order. Further it goes on to say that the right to be heard by a court in proceedings that have been properly instituted should not be lightly denied to a party. Per Malaba DCJ (as he then was);

“The principle of dirty hands governs a situation where a party is under a direct obligation imposed by law to act in a specific manner which obligation the party deliberately refuses to perform. It is a time honoured principle based on the need for litigants who approach a court of law seeking relief to do so with the required degree of truthfulness, and honesty. It does not apply in cases where the appellant fails to act in terms of a determination or decision appealed against under section 92E of the Act  because he or she would not be under an obligation to first comply with the determination or decision appealed against in order to be heard.

The right to be heard by a court in proceedings that have been properly instituted is a fundamental right that should not be lightly denied to a party. In this case the appellant was not guilty of contempt of court as suggested by the labour court because it was exercising the right to appeal to the court given by law. The court was obliged to hear the appellant in the appeal properly before it”.

This case cannot be applied to bar an employer from exercising his/her right to institute disciplinary proceedings where the parties are haggling over whether there are unpaid salary and benefits. The case is talking of a court order, a positive obligation imposed by the court. Refusal to comply with such an obligation and yet approaching the court for relief will not paint a positive picture for the court. This is a far cry from the present matter where it is an obligation to pay salary and benefits and which obligation is already adequately covered by the Act.

ADEQUEACY OF EVIDENCE

The starting point on adequacy of evidence is to appreciate that this is an appeal on the facts. Secondly, on the same facts two courts can come to two different conclusions  without either of them being wrong. It is not a scientific decision where two by two is invariably equals to four. Thirdly an appellate court is restrained from lightly interfering with a decision of the lower court on findings of fact. This point has been repeated several times. Thus in MBCA Bank Limited v Tawanda Mwenga SC 120/20 at page 7 and 8 of the cyclostyled judgment, the court says;

“The position is settled that an appellate court is precluded from interfering with findings of fact by a trial court except in very exceptional or limited circumstances. It is also settled that in order to interfere with such findings of fact, the appellate court must be satisfied that the trial court, in making its findings on the facts, was irrational or that its findings were so outrageous in their defiance of logic or accepted moral standard that no sensible person who had applied his mind to the question to be decided could have arrived at the same conclusion.

In disciplinary proceedings	findings of fact are the preserve of the disciplinary authority. That this is the law has been stated by this court in a plethora of authorities.”

In the present case this court does not see any misdirection on the party

of the court aquo. There is adequate evidence on record to prove the charges. The contradictions that the appellant has raised are adequately explained. The

issue of illegality of the gathering is common cause. That the appellant attended the meeting is common cause. Even if the appellant were, by any stretch of imagination, to prove that there are others who organized the meeting he was still instrumental in commandeering some people to attend that meeting. That he is a managerial employee is first proved by himself when he used that fact to refuse to be charged under the NEC. He cannot have his cake and at the same time eat it. He chose to be a managerial employee and he is one. He should not have attended the meeting.

There is enough evidence to convict. This court cannot interfere with conviction.

The penalty

The penalty is a matter of discretion for the employer. It can only be interfered with if the discretion has not been applied judiciously.

The appellant argued that his misconduct “was so trivial, so inadvertent, so aberrant or otherwise so excusable. In the circumstances dismissal was not warranted”. A final warning was advocated for. If the appellant thinks that calling for an illegal work stoppage is child’s play then he needs re-education. Moreso work stoppage in a clinic!. Worse so when one is a manager. The employer took a serious view of the act and quite rightly so. An illegal work stoppage is a very serious act of misconduct. A penalty of dismissal for one who organizes it and attends when he is not supposed to attend it is an appropriate penalty. The respondent did not misdirect on the penalty.

Outcome of the appeal

Form the above discussion the appeal must fail. It is accordingly ordered that;

1.	The appeal be and is hereby dismissed.

2.	The appellant pays the costs.

Gill, Godlonton & Gerrans	-	Appellant’s Legal Practitioners