Roy Gatsi v Dulux Zimbabwe (implied respondent)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/4/2020
HARARE
CASE NO. LC/H/4/2020
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IN THE LABOUR COURT OF ZIMBABWE        JUDGEMENT NO. LC/H/4/2020

HARARE,                    				               CASE NO. LC/H/521/14

AND 10 JANUARY 2020

In the matter between:-

ROY GATSI                                                                           Appellant

This is an appeal against the decision of the National Employment Council Appeals Committee which was handed down on the 6th of June, 2014 which Appellant submitted he received on the 13th of June, 2014. The National Employment Council Appeals Committee in its determination dismissed the appeal noted by the Appellant and upheld the penalty of dismissal.

The Appellant aggrieved by the determination noted the present appeal. By way of background information the Appellant was employed by the Respondent. Two charges were levelled against him by the Respondent. The first was that of “wilful disobedience to a lawful order given by a person in authority (Section 8, Schedule 4.2)”. The second was of ‘Any act, or conduct or omission inconsistent with the fulfilment of conditions of one’s contract”. The allegations were based on the facts that Appellant had as a Workers Committee representative and in breach of confidential company business matters written and signed a letter of complaint to Dulux South Africa which letter was then received by Dulux Zimbabwe on the 17th of February, 2014. The letter was also signed by all employees. It was the Respondent contention the letter contained unproven accusations, assertions and threats. The letter also tainted the company’s image. On the second charge it was Respondent contention the Appellant had on the 21st February, 2014 refused to accept and acknowledge receipt of a letter advising him of an on-going investigation and requesting him for his response.

The Appellant was arraigned before a Disciplinary hearing authority on the 13th of March, 2014. The Disciplinary Authority after hearing the matter and upon consideration of the evidence tendered came to the conclusion the Appellant was not guilty on the charge of wilful disobedience to a lawful order given by a person in authority (Section 8, Schedule 4.2). The Disciplinary Authority however found Appellant guilty of the second charge of “any act, or conduct or omission inconsistent with the fulfilment of condition of the express or implied conditions of one’s contract”.

The Appellant exercising his right to appeal under the relevant code of conduct then appealed to the Executive Chairman on the 24th March, 2014. The Executive Chairman through a letter dated 27th of March, 2014 dismissed the appeal and upheld the conviction as well as the sentence of dismissal from employment. The Appellant, still aggrieved, then noted his appeal to the National Employment Council for the Chemicals and Fertilizers Manufacturing Industry. In his appeal he raised eight grounds as follows

The appeals officer misdirected himself when he found it was proper for Respondent to be represented in the Disciplinary hearing contrary to the provisions of the code

That the appeals officer erred when he found nothing irregular in the presence of Mr Mwanza in the hearing where Mr Mwanza had played a role in the investigation and was thus witness.

That the appeals officer had found noting irregular in the disciplinary Committee handing down a determination without pretesory reasons for the determination.

That the appeal officer also erred when he found the Appellant guilty of a charge on which he had been exonerated by the disciplinary authority. This accuracy to Appellant exhibited bias on his part.

The Appeals officer erred in confirming his conviction on the second charge of ‘any act, or omission inconsistent with the express/implied conditions of employment’ when no evidence had been led to establish the charge.

The appeals officer also erred when he reached conclusion that there was confidential information in the letter when no such evidence was led.

Finally that the appeals officer erred in confirming the penalty of dismissal which penalty was excessive and unwarranted. It also amounted to selective discipline in that Respondent imposed dismissal penalty where most employees were not dismissal.

The National Employment Council Appeals Committee convened an appeal hearing on the 16th of May, 2014. It then issued its determination on each of the grounds of appeal as noted by the Appellant. The National Employment Council Appeals Committee ultimately dismissed Appellant’s appeal and upheld his conviction and the penalty of dismissal.

The Appellant still aggrieved then noted the present appeal. The appeal is noted on the following grounds of appeal:

“GROUNDS OF APPEAL

The NEC appeals authority grossly misdirected itself at law when it found that SI 31 of 2011 does not preclude representation of the respondent as the complainant in the hearing and that the presence of the respondent’s representative did not influence the outcome of the hearing when it is clear that the code does not provide such representation and that the decision of the disciplinary committee was based on the submissions of the respondent which came from the representative.

The NEC Appeals authority grossly misdirected itself when it found no fault with Mwanza’s presence in the hearing panel.

The NEC Appeals authority on its finding (5) erred when it failed to give a remedy to its correct finding that it was improper for the Appeals Officer to give his decision on a charge that was not subject of an Appeal, thus failed to appreciate that the Appellant was exonerated from wilful disobedience to lawful order.

The NEC Appeals authority grossly misdirected itself on its finding (6) when it failed to appreciate the most important fact that for an employee to be found guilty of any act or omission inconsistence with the fulfilment of his or her expressed or implied conditions of employment there has to be proof of such express or implied conditions of employment and the facts to the charge can not be determined in isolation. Thus it erred in not finding that the Appellant was not guilty.

The Appellant Authority seriously mislead itself on its finding (7) by failing to appreciate the Appellants did not divulge confidential information and that even if one is to assume that there was confidential information in the letter the appellant did not know that he had not to communicate as he did.

The Appellate Authority seriously misdirected itself when it failed to find that there was selective discipline of employee by the respondent and that dismissal was not appropriate under the circumstances.”

I shall address the grounds of appeal in turn. On the first ground of appeal the Appellant contends that the National Employment Council Appeals Council misdirected itself at law when it found that it was proper for Respondent to be represented in a disciplinary hearing where the Code of Conduct makes no provision for such representation. The National Employment Council Appeals Council concluded the Code of Conduct did not preclude the representation of the Respondent as the employer as the code was silent on the point. The Committee further found that the presence of the representative had in any event no influence on the outcome as the representative did not actually participate in the Disciplinary Committee. The court cannot fault the Committee for the conclusion reached. It is a trite position at law that it is not all irregularities that result in initiation of disciplinary proceedings. It must clearly be shown that the irregularities resulted in prejudice see Nyahuma vs Barclays Bank of Zimbabwe SC 67/05. In casu the Appellant was unable to establish before the hearings a quo the prejudice that he suffered as a result of the presence of the representative. The case is clearly distinguishable from the Merchant Bank vs Dube referred to by the Appellant where the Supreme Court found that the consultant had indeed played a significant role in the Disciplinary hearing. The first ground clearly stands to be dismissed.

The second ground is that the National Employment Council Appeals Committee misdirected itself when it found nothing irregular in Mwanza’s presence in the hearing panel. The National Employment Council Appeals Committee in its determination found that Mr Mwanza had not participated in investigations. Mr Mwanza however was present when notification of allegation/investigation was served on Appellant which was a requirement under the provision of the code under Appendix 6(1). This however did not make him a party to the investigations process. Again the court cannot fault the National Employment Council Appeals Committee for the finding reached. The Appellant was unable before this court to establish how he stood to be prejudiced by the role played Mr Mwanza’s in the disciplinary proceedings.

The third ground of appeal was abandoned by the Appellant. It is accordingly dismissed.

On the fourth ground of appeal the Appellant contends that the charge being founded on the express or implied provisions of the contract of employment the National Employment Council Appeals Committee clearly erred when it upheld Appellant conviction on the charge where no proof of the express/implied conditions of contract were placed before the Disciplinary authority. The National Employment Council Appeals Committee in its deliberation noted that the mere act of writing a letter in a derogatory language attacking management goes to the root of the employment contract. This court’s finding is that The fact that no contract of employment was produced did not reduce the severity of actions by Appellant. An employee has a duty of good faith to his employer. This includes a duty to respect and refrain from actions that may result in tarnishment of the employer’s image. That duty is clearly implied in any employment relationship. There was clearly no need for Respondent in casu to produce the contract of employment to prove this duty which is a common law duty. The ground of appeal must also fail.

The fifth ground of appeal is that the National Employment Council Appeals Committee failed to appreciate his ground of appeal number 7 placed before the Committee. In that ground of appeal Appellant was contending that the Appeals Officer erred in finding there was confidential information divulged in the letter. Further the Appellant was also not aware that he was committing misconduct by writing the letter as he did. Whilst it may be correct as raised by Appellant that the National Employment Council Appeals Committee misdirected itself on the point as it failed to appreciate his point. The ground however would not alter the overwhelming evidence that the Appellant did divulge confidential matter to Dulux South Africa. The Appellant does not dispute that he wrote and signed the letter. Once it is accepted that Dulux South Africa is not his employer then by disclosing the information to Dulux South Africa Appellant did divulge confidential information which ought to have been directed to his own employer Dulux Zimbabwe. The ground clearly cannot stand.

The last ground raised is that the National Employment Council Appeals Authority should have found that there was selective discipline of the employees by the Respondent. The National Employment Council Appeals Committee noted that there was no evidence placed before it to substantiate the allegation. The Appellant should have placed before it proof in terms of charge-sheets, minutes of disciplinary hearings for all the employees facing the same charges as Appellant. The Committee’s view was it would have then been in a better position to find that there was selective discipline. On the issue raised that the penalty of dismissal was excessive the committee’s view was the penalty was in accordance with the code of conduct and was warranted.

In regard the issue of selective dismissal the position has been settled at law that an employer has a discretion in disciplining its employees to impose a dismissal penalty on selected individuals and not others, once it is accepted that the misconduct goes against the root of the employment contract. See Lancashire Steel (Private) Limited vs Mandevana & Ors SC 29/95.

The Appellant’s further contention is the Dismissal penalty was not appropriate in the circumstances of this case. In a plethora of cases in 2012 the Supreme Court restated the principle that where an employee commits serious act of misconduct going to the root of his contract of employment the employer is entitled to dismiss. The court can only interfere in the event of gross misdirection or unreasonableness. See Mashonaland Turf Club vs Mutangadura SC 5/2012. The Appellant has not alleged either. The appeal clearly stands to be dismissed.

In the result it is ordered as follows;

The appeal be and is hereby dismissed with costs.