Musekiwa Chabvuta & 6 Ors v St Anne’s Hospital

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/682/2013
HARARE, 8 JULY, 11 JULY 2013 &
17 JANUARY 2014
CASE NO LC/H/12/2013
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/682/2013

HARARE, 8 JULY, 11 JULY 2013 &	 	CASE NO LC/H/12/2013

17 JANUARY 2014

In the matter between:-

MUSEKIWA CHABVUTA					1ST APPELLANT

And

ALEXIO MUCHENA						2ND APPELLANT

And

DAVID RUGOYI						3RD APPELLANT

And

GEORGE CHITSATSE					4TH APPELLANT

And

ASHEWELL MAPHOSA					5TH APPELLANT

And

FELIX NYANGOMBE					6TH APPELLANT

And

CLEVER CHIGWEDERE					7TH APPELLANT

Versus

ST ANNE’S HOSPITAL					RESPONDENT

Before The Honourable L Kudya	:	Judge

For the Appellants			T Marume	(Legal Practitioner)

For the Respondent			S Mupindu (Legal Practitioner)

KUDYA J:

This is an appeal against the decision of the Respondent Hospital’s Appeals Body which ruled that, the Appellants were guilty of contravening the Hospital’s Code of Conduct, by referring to various bodies communication about transport problems at the hospital and the acting which they intended to take in reaction to that. The act was alleged to discredit the hospital hence, the charges in question.

Facts of the case are that, the Appellants who were members of the Workers Committee wrote a letter, directed to among other recipients, police, Ministry of Labour, Health Council, ZESCU Union and Matsikidze Law Firm. The letter, which appears on the face of the record, made reference to the fact that, the employees were having difficulty commuting to work following the unilateral withdrawal of a bus service which they previously enjoyed from the Respondent.

The letter further indicated that, engagement with the hospital authorities had not yielded meaningful result hence, by the letter which they were subsequently charged on, they were advising that from the 16th of every month to month end, the workers would walk to work following a specified route and that from the 1st to the 15th they would find other means to get to work. The letter, also underscored the fact that, the walks in question would not include singing, sloganeering or intimidation.

Incensed by this correspondence, which the hospital felt was calculated to discredit it; charges were preferred against the Workers Committee members who had signed the letter in question. They were found guilty and warned on one count and not guilty on the other count on the same facts.

The matter finally found its way to the Appeals Committee. The Appeals Committee concluded that, the Workers Committee actions were deplorable and in its view, since the offence fell in the category calling for dismissal, it went in to overturn the not guilty verdict on the one count and returned guilty verdicts on both counts. It then dismissed the Workers Committee members.

Aggrieved by the Appeals Committee decision, the Workers Committee then appealed to this Court. It is that appeal which is the subject matter of this judgment.

The grounds of appeal are as follows:

Appeals authority erred to return a guilty verdict on the Appellants on a charge where the Appellants had been acquitted by the Disciplinary Committee.

Appeals authority erred when it did not find that, the provisions which the Appellants were accused of flouting went against the Labour Act in that they penalised employees for seeking lawful redress to protect their rights at the workplace.

Appeals authority erred grossly in failing to find that the decision made by the Disciplinary Committee, which gave the Appellants a written warning, differed materially from the General Manager’s decision who communicated the penalty of dismissal in the case.

Appeals body erred to find that, the Appellants communicated with external sources yet there was no evidence of receipt of this communication by the alleged external sources.

Appeals body erred grossly to conclude that, the Appellants’ action amounted to a collective job action and if they did so, the Appellants did however have a right to organise and threaten such action.

Appeals body erred grossly when it failed to conclude that, the external sources had a right to receive the information/communication in question as they had a right to communicate their grievance to anyone of their choice who could resolve their dispute.

Appeals body erred grossly by failing to find that, the Appellants acted in their official capacity as Workers Committee representing interests of members who showed their solidarity by signing letters to that effect. In that respect there was nothing irregular on their part to air their employees’ concerns.

The decision of the Disciplinary Committee was unsubstantiated as confirmed by the Appeals body. To that end, the decision defied logic and was shocking. In the result the Appellants prayed that all of them be found not guilty of misconduct and that they be reinstated without loss of salary and benefits from the date of dismissal to the date of the order in this matter. If reinstatement is not tenable the Appellants prayed that they be paid damages in place of reinstatement to be agreed upon by the parties failing which, either party can approach the Court for quantification.

In response to the appeal, the Respondent maintained that:

The Appellants filed an appeal against the “whole” decision of the Disciplinary Committee hence it was proper for the appeals body to change the not guilty verdict to the guilty one as well as impose the dismissal penalty.

Offence was a Group D offence taking into account the communication and its distribution. It was consistent with the charge of wilfully committing any act which would interfere with the operations of the employer including strikes and collective job actions.

The charge which the Appellants were charged with does not violate the Labour Act. If they were protecting their rights they ought to have done so lawfully.

The appeals body could vary or confirm, the Disciplinary Committee decision since the Appellants appealed against the “whole” Disciplinary Committee decision, the Appellants concluded that the facts were consistent with the serious charge which attracted a dismissal penalty.

The Respondent complied with the law and there was no misdirection, it involved section 6 of the Act, as same should not be abused. Any abusers would face the wrath of the law.

Appeal body dealt with the appeal as per appeal procedure in the Code. Since appeal was against the whole decision, the appeals body noted that the Disciplinary Committee did not give a conclusive decision on the outcome of the proceedings in terms of section B of the Code of Conduct.

Chairperson of the Disciplinary Committee recommended that, the Appellants be given a final warning. Appeals body noted that, Disciplinary Authority arrived at dismissal, taking into account, the irregularities in the recommendations of the Disciplinary Committee and its failure to reach a conclusive decision on the penalty. To that extent there was no misdirection in the finding of the appeals body in confirming the decision of the General Manager, who gave the final determination of the dismissal. Chairperson of the Committee was only to recommend and the final say lay with management. Offence faced by the Appellants was serious that, dismissal was an appropriate penalty not a final warning as recommended.

Offence carried maximum penalty of dismissal and deviation could only be there, if there were good reasons for a lower penalty. Offence which Appellants were convicted of called for dismissal, hence it was the appropriate penalty in the circumstances. No reasons were given for giving a lesser penalty, hence the preference for the dismissal penalty which was finally meted out.

Employee representatives, who appeared at Disciplinary Committee, were the ones who signed solidarity messages on the authority of the letter in question hence; given   their presence on the committee they lacked objectivity in dealing with the matter as they were possible accused persons on the same charges.

Proof of test required on the breach of the Code was a balance of probability test.

The communication was meant for external sources and argument that it may not have gotten to them is just an excuse by the Appellants. To that extent on a balance of probability the Appellants did communicate with external sources and that sufficed for the charges which they were found guilty of having committed.

Employees and workers committee alike should all be guided by the Code of Conduct hence they also should be disciplined in terms of the same.

The Appellants threat of embarking on industrial action was not only a contravention of the Code of Conduct but also a contravening of the Labour Act section 109 (2) which penalises threats, advice or encouraging incumbent  to conduct collective action which is not in terms of the Act.

The offence on 13 above would thus be both a criminal and civil wrong at the same time.

The Respondent did not misdirect self by prosecuting the Workers Committee members as they are not immune to prosecution in such a case. If they needed to embark on a proper collective job action they should have done it following the proper channels taking into account that they were in an essential service and had not followed due process to engage in same.

As in 15 above, the Respondent is an essential service which is exempt of disruption of service by collective job action as outlined by the Act.

Solidarity letters do not exonerate the Appellants from their guilty conduct.

There was no unfair dismissal of the Appellants as they were dismissed in terms of the Code of Conduct and if they had grievances they had to follow the grievance channels laid down in the Code.

External stakeholders had no right to receive their news of the grievance without the Appellants exhausting the grievance procedure. In particular the Health Council had no jurisdiction over Labour matters especially those relating to Collective Bargaining Agreements.

There was no misdirection in finding the Appellants guilty in the circumstances and external sources only had right to receive views of the grievance if management had failed to solve the problem.

Being a Workers Committee member does not render one immune to disciplinary action if he breaches the Code of Conduct.

In the result the Respondent prayed that the Court uphold the decision of the Appeals Committee with costs and that the Appellants’ appeal be dismissed as in its view it was baseless and had no legal basis.

It is worth noting that the only two major issues to be addressed by this Court are:

Whether the appeals body acted within its powers; and

If it did whether its decision is sound in law and in fact based on all the facts of the matter.

To answer these questions the grounds of appeal will be addressed each in turn.

Ground One

The appellate powers of the Respondent’s body are clearly set out in section C of the Code of Conduct, copy which is filed of record. The section indicates that, an aggrieved employee can appeal to the Appeals Committee made up of two management representatives and from senior management one director, two workers representatives from non-managerial employees or two managerial representatives for the management if the employee is management grade, Human resources to facilitate secretarial service and the chairperson of the Appeals Committee shall be a Director provided that, people who sat on the Disciplinary Committee cannot sit again on the Appeals Committee.

The provision is silent as to how the Appeal Committee should exercise its powers that is whether it can substitute its decision for that of the lower tribunal.

In view of the silence in the Code on the procedure, the Court is of the view that, the normal principles which guide appeals should therefore apply. The case of Nyahondo v Hokonya 1997(2)ZLR 475(SC) sets out clearly that, the Appellate Court’s duty is not to substitute its discretion for that of the lower tribunal but where there is gross misdirection in the exercise of such discretion, the appellate body is at liberty to come in and take corrective action.

In the instant case, the appeals body record indicates clearly that, it was moved into action to upset the findings of the Disciplinary Committee because such was inconsistent with what the Appellants had done. It is clear that the Appellants had commutated to external sources by letter in record on grievance which the employees had over the bus and it is also clear that, such conduct is categorised as an act of serious misconduct calling for dismissal. No good reasons had been given by the Disciplinary Committee why it was not necessary to dismiss the Appellants given the gravity of the infractions.

The law is settled that dismissal is not obligatory. See Kwangwari v C.B.Z 2003(1)ZLR 55 but, where the employer takes a serious view of the misconduct it shall not be held to be irregular, if it dismisses the employee. In the premises, the Court finds no fault with the reasoning advanced by the Appeals Committee and why it was of the view that dismissal was called for in the instant case.

Ground Two

The infraction complained of is provided for in the Respondent’s Code of Conduct. It is apparent that, the mischief which was intended to be addressed by that provision, was to make sure that, if employees have grievances, they follow due process to have such redressed than to simply go on a disparaging show of their employer by communicating the grievance with third parties, rather than resolving the same as per the particular Industry or Company Code of Conduct. The Court therefore, fails to see what it is that, can be argued to be stifling employees’ grievances by the insertion of such a provision in the Code of Conduct. To that extent, the Court is satisfied that, there is no inconsistency within the breached provision and the Labour Act as suggested by the Appellants. In that light, this ground cannot stand.

Ground Three

On the written warning-dismissal issue, the appeals body’s decision explains to the satisfaction of the Court how and why disciplinary authority ended up returning a verdict of guilty and a dismissal penalty as opposed to the Disciplinary Committee’s recommendation of a written warning. As already pointed out the serious view of the misconduct which the employer took of the offence justified the dismissal penalty and this Court is not persuaded that, there was any fault as regards that reasoning. This ground lacking in merit should also fail.

Ground Four

As regards receipt of the communication in question, the Court is persuaded by the Respondent’s argument that, the whole idea behind the copying of the document to all the styled recipients was consistent with the Appellant’s intention to let the recipients get the contents of the document and see them. It is therefore, fool hardy to accept that the letter could be written and then not find its way to the intended recipients; otherwise there would have been no point in the first place to come up with the correspondence. It is the Court’s view that the presumption that, the letter got to the recipients, as it was intended to, is what resonates with the reality of the instant case’s facts. In the result, the Appellants cannot hide behind the excuse on receipt to say they were not guilty of the infraction. This ground also lacking in merit, should also fail.

Ground Five

Falling short of saying that, the employees were going on a strike, clearly the wording of the letter indicated that, the intention of the employees was to collectively demonstrate about the grievance which they had with the employer. The Court is therefore persuaded that, the Appeal Committee rightly concluded that the actions of the Appellants amounted to inciting the employees to engage in a collective job action without following due process. This ground also lacking in merit, should also fail.

Ground Six

Whilst it is conceded that, freedom of expression allows anyone to communicate with another, as they feel that should be done within the correct bounds, otherwise the exercise of the same would end up infringing on the rights of others. The Appellants indicate that, the recipients of the letter had a right to know about the grievance. True, there was nothing wrong about communicating with these parties in a bid to address the issues if all the proceeding outlined in the Code had been e exhausted. It is however, interesting to note that, instead of pursuing the laid down grievance procedure in the Code to its logical conclusion, the Appellants decided to circulate the correspondence in question. The impression created by such conduct is that, the move was meant to cast the employer in bad light, which is the mischief which was intended to be curbed by the provision creating the infraction in question. The Court therefore, does not find any fault with the conclusion arrived at on this point by the Appeals Committee. This ground should also accordingly fail.

Ground Seven

The Appellants argue that, by acting in their official capacity as Workers Committee members, they should not have been held liable. The law is clear that, such a status does not give one the privilege of flouting the Code of Conduct. In respect of one’s status, if one fall foul of the Code, one would meet the full wrath of the law. This is the reason why the Code puts into place, the legal channels of addressing such problems. The point is expressed clearly in the case of ZESA v Mare 2005 (2) ZLR 222(SC) that, representative bodies shall not breach the law and hide under the banner of their office. In the result, there was no gross misdirection by the Appeals Committee to conclude that the Committee breached the Code and had to be penalised for that, their status notwithstanding.

Ground Eight

A reading of the Appeals Committee’s reasoning in its judgment demonstrates clearly, why it found that, the decision to find the appellants guilty and dismiss them was well founded, judging from the cumulative effect of the facts in the matter. The Court does not find any fault with that reasoning as the facts in the matter show that, the Appellants fell foul of the Code and had to be penalised in a manner which the employer was of the view that, it was befitting in the circumstance. This ground also lacking in merit should also fail.

In a nutshell it is clear that, all the grounds raised are without merit and they should all fail.

IT IS ORDERED THAT:

The appeal being devoid of merit in all respects, it be and is hereby dismissed with costs.

The Appeals Committee’s decision is accordingly confirmed.

L KUDYA

JUDGE – LABOUR COURT

Matsikidze & Mucheche, Appellants’ Legal Practitioners

Mupindu Legal Practitioners, Respondent’s Legal Practitioners