ZB BANK Limited V Tirivanhu Marimo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/63/13
HELD AT HARARE 16TH FEBRUARY 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/H/63/13

HELD AT HARARE 16TH FEBRUARY 2013		CASE NO LC/H/143/11

ZB BANK LIMITED						Appellant

TIRIVANHU MARIMO					Respondent

Before The Honourable G Musariri, President

For Appellant		Mr K Ncube, Attorney

For Respondent		Mr P Mutasa, Unionist

MUSARIRI, G:

On 18th February 2011 the NEC Banking made a determination.  In terms thereof Appellant was ordered to reinstate Respondent’s employment without loss of salary and benefits.  Appellant then appealed to this Court against the determination.  Its grounds of appeal complained that,

“The NEC Appeals Board erred in one or more of the following respects:

in failing to find that a Category D offence had been committed;

in failing to find that, in the circumstances, the penalty of dismissal was appropriate; and

alternatively, and in any  event, in failing to afford to the Appellant any alternative to reinstatement.”

The facts of the matter are succinctly summarised in Appellant’s Heads of Argument thus,

“Introduction

1.

On 14 September 2010, the Respondent  who was employed  by Appellant as an Administration Clerk in the Group Administration Department, sent various e-mails to employees of the Appellant highlighting the adjustments that had been effected to senior management salaries.  The e-mails also highlighted the grievances of the employees. The Appellant charged the Respondent of misconduct it being alleged that the Respondent had breached the Code of Conduct for the banking undertaking by acting in a manner which was inconsistent with the performance of his duties, more particularly by generating the offensive-mails to Group Staff against the bank’s standing policy on information Security Policy Section 44 and 41 and broadcast information.  Pursuant to charges being levelled against the Respondent, the Respondent was found guilty by the Hearing Officer on 26 October 2010.”

However this summary omits material points concerning the background to the matter.  Firstly, it should be noted that Respondent was the Chairman of the Workers Committee.  Secondly at the material there was a dispute over salaries between Appellant and the Workers Committee.  The raging dispute was referred to a Conciliator who failed to settle matter.  A Certificate Of No Settlement date-stamped 7th September 2010 is filed of record.

Apparently the employees were considering going on strike.  Evidently Respondent, in his capacity as Chairman of the Workers Committee, was obliged to communicate the various developments to fellow employees.  He used Respondent’s e-mail facility.  He had previously used this channel as a mode of communication with his constituency.  Respondent was aware of this.

On these facts the NEC Banking opined that,

“It is obvious the bank management would not have wanted the collective job action to have succeeded.  Their reaction to everything appellant did or did not do was to the effect of ensuring that the collective job action did not happen.

The appellant obviously exceeded the limit of the number of e-mail recipients allowed by the bank IT policy. The limit was ten people per e-mail.  Be that as it may the language used by the appellant was not inflammatory or inappropriate because it was language meant to achieve a specific objective – getting people to go on a collective job action, or at least put pressure on the employer to accede to the workers wage demands.  It is the standard language in the trade union movement to which the appellant belongs.  No one was offended by the language used by the appellant.”

I am persuaded to agree with the NEC’s reasoning.  Respondent did not abuse Appellant’s facilities for personal gain.  He acted in his official capacity as Chairman of the Workers Committee.  He had a right, indeed a duty, to communicate to fellow employees the developments over the wage dispute.  He may have gone overboard by breaching Respondent’s standing policy.

However on these facts, I am not persuaded that such breach warranted categorisation as a dismissible offence nor called for the drastic penalty of a dismissal.  I am fortified in my view by the provisions of the Labour Act Chapter 28:01 (hereafter called the Act) whose section 7 reads as follows,

“(1)	No person shall-

hinder, obstruct or prevent any employee from forming or

conducting any workers committee for the purpose of airing       any    grievance, negotiating any matter or advancing or  protecting the rights or interests of employees;

threaten any employee with any reprisal for any lawful action

taken by him in advancing or protecting his rights or interests.”

In the alternative, I rely on the opinion of the Freedom of Association Committee of the International Labour Organisation (ILO) published in the digest of their decisions titled, “Freedom of Association”

Fifth (revised) edition as opinion no 811,

“With regards to the reasons for dismissal, the activities of trade union officials should be considered in the context of particular situations which may be especially strained and difficult in case of labour disputes and strike action.”

Thus, all in all, I agree with the NEC Banking that dismissal was unwarranted in the circumstances of this case.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT