Angeline Chitambo v ZESA Holdings (Pvt) Ltd & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/331/2013
HELD IN HARARE, JULY 10, 2013
CASE NO. LC/H/979/2012
In the Matter Between
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/331/2013

HELD IN HARARE, JULY 10, 2013		CASE NO. LC/H/979/2012

In the Matter Between

ANGELINE CHITAMBO			     		APPELLANT

And

ZESA HOLDINGS (PVT) LTD				1ST RESPONDENT

Z.E.T.D.C.							2ND RESPONDENT

Before The Honourable L. Matanda-Moyo         : President

For The Appellant     		: Mr R. Matsikidze (Legal Practitioner)

Mr M. Gwisai (Legal Practitioner)

Mr C. Mucheche (Legal Practitioner)

For The Respondent  		: Mr I. Chisango (Legal Officer)

MATANDA-MOYO L.,

The background to this matter is as follows:

The Respondents were being represented by Messrs Dube, Manikai and Hwacha.  On 7 May 2013 Appellant filed her heads of argument and such heads were served upon Respondents’ legal practitioners.  Respondents had 14 days within which to file its heads of arguments.  For various reasons Respondents’ legal practitioners failed to file such heads of argument.  On 4 June 2013 Respondents were served with a notice of set down to appear in this court on the 13th of June 2013.  On 12 June 2013 Respondents’ lawyers filed a notice of renunciation of agency.  Respondents’ lawyers also wrote a letter to the registrar of this court explaining why they had to renounce agency.  Respondent’s lawyer availed himself on the date of hearing and explained why he had to renounce agency.  The respondents were aware that the matter had been set down for hearing.  Counsels for the Appellant submitted that the respondents were barred and could not be heard.  I agreed.  The respondents were barred.  Respondents could not even be allowed to make an application for postponement as they had no right of audience.  It is my decision to proceed to deal with the matter on the merits.

Appellant submitted that she was the President of the Zimbabwe Energy Workers Union.  She was misconducted and dismissed from work for being a President of a trade union.  Applicant submitted that such actions by the respondents are in clear violation of section 65 of the new Constitution of Zimbabwe which provides:

“65(2) Except for members of the security services, every person has the right to form and join trade unions and employee or employers’ organisations of their choice and to participate in the lawful activities of those unions and organisations.”

and Section 21 of the old Constitution of Zimbabwe.

Let me proceed to determine whether indeed the Appellant was being victimised for the sole reasons of being a President of a trade union.  In 2012 an arbitral award was issued regarding salary dispute between Respondents and ZESA technical employees and Zimbabwe energy Workers.  Such CBA was later gazetted S.I. 50/12 refers.  Respondents did not implement the CBA as gazetted citing incapacity to pay.  Discussion between the Union and Respondents were done wherein Respondent proposed that the Union abandon the Arbitral award on the 2012 CBA and that a fresh arbitration be done to determine Respondent’s capacity to pay.  The Union later refused the offer and demanded that Respondent pay the salary schedules as agreed in S.I. 50/2012.

The Appellant proceeded to address members of her trade union.  Arising from the utterances made by the Appellant, she was suspended from employment on 11 July 2012.  She was suspended on the following charges:

Contravening Section 7(g)(ii) and (iii) of the National Employment Council for the Zimbabwe Energy Industry Code of Conduct, that is to say;

Count 1:	breach of secrecy or confidentiality, that is to say, disclosing classified or confidential information relating to the affairs of a company or organisation.

Count 2:	Issuing without permission or authority, press statements or information concerning the affairs of a company or organisation in that appellant without permission or authority, issued press statements concerning the affairs of ZESA to the potential prejudice of ZESA as stated above.”

Contravening Section 7(e)(iv) of the National Employment Council for the Zimbabwe Energy Industry code of Conduct, that is to say;

disorderly or objectionable behaviour that is to say:

“conducting oneself or behaving in a manner at the workplace which bring the name of a company or organisation into disrepute or to tarnishing the image of the company or organisation.

Count 1:	That appellant conducted herself in a manner which brought the name of the company into disrepute and tarnished the image of the company.

Count 2:	that appellant misinformed the public by stating that ZESA managers were mismanaging the company.

Count 3:	That appellant threatened to switch off the national power which would have resulted in negative economic repercussion.

The appellant was found guilty on all counts by respondent’s Disciplinary Committee and dismissed from employment.  On appeal she was acquitted of all counts and convicted on count 1 of charge 1.  However, the dismissal verdict was upheld.  Appellant then filed an appeal against respondent’s decision on the following grounds:

That the Appeals Committee erred in law in making a finding that the 2nd Respondent’s disciplinary committee was entitled at law to proceed with the disciplinary hearing as it did on the 24th of September 2012 in the absence of the Appellant.

That the Appeals Committee erred in law in finding that the 1st Respondent’s Disciplinary Committee was entitled at law to proceed with the disciplinary hearing when at law there was no basis for 1st Respondent to refuse to grant the postponement requested by Appellant’s Legal Practitioner especially considering the grounds for postponement that:

The notification was too short only providing three hours to the hearing.

The appellant’s legal practitioner was engaged in arbitration proceedings on the same day and

The appellant herself was in South Africa as there was no prior communication that the hearing would be on the 24th September.  Such proof was tendered to the Appeals Committee.

The Appeals Committee erred in failing to find that the Disciplinary Committee was biased in that;

They failed to grant the postponement.

They proceeded to hear the matter after two members from the workers’ side resigned from the Committee due to the partisan approach of the Disciplinary Committee.

The Appeals Committee erred in hearing the merits of the matter at appeals stage without affording the appellant the opportunity to bring witnesses.  Appellant was not heard on the merits.

The Appeals Committee misdirected itself factually – a misdirection that amounts to a point of law in confirming the decision of the disciplinary Committee when it was clear that such disciplinary Committee erred in not considering the defence outline, and documentary evidence that had been tendered which exonerated the Appellant.

The Appeals Committee erred at law in not remitting the matter back to a different disciplinary committee once it had found that the proceedings were irregular as it could not hear the merits fairly whilst at the same time barring the Appellant to tender and lead evidence before it.

That the Appeals Committee erred in confirming the guilty verdict on charge 1 count 2 when the meeting in question was on bona fide trade union business where appellant had a right to report employment matters.  The appeals committee erred in confirming the conviction without evidence that appellant indeed made such statement, more so when there was evidence that ZEWE employees uttered the statements to the journalists.

The Appeals Committee erred in confirming the dismissal verdict in light of section 12B(4) of the Labour Act.  The setting aside of the other convictions warranted interference with the penalty of dismissal.

The Appeals Committee erred in confirming the guilty verdict on charge 1 count 2 after acquitting appellant on charge 1 count 1.  The facts on charge 1 count 1 gave rise to charge 1 count 2 – thus an acquittal on charge 1 count 1 should have entailed an acquittal on charge 1 count 2.

Appellant prayed that she be acquitted and that the penalty of dismissal be set aside, and that she be reinstated with full benefits and pay with effect from date of dismissal.

Appellant submitted that she was on a bona fide business of the trade union and as such could not be charged for any misconduct arising there from.  In ZESA v Mare 2005 (2) ZLR 222(S) the Supreme Court whilst acknowledging the duty of a member of a workers’ committee to defend workers rights, emphasised the need for such workers committee to observe due process.  It is trite therefore that appellant in carrying out her duties as a President of a trade union had to observe due process.  A President of a trade union has no rights to act outside law in pursuing trade union matters.  The question then is whether Appellant failed to observe due process.  In this case there is no such evidence.

Page 69 -60 of the record deals with the evidence that was brought before the hearing on charge 1 count 2.  From a reading of the charge respondent’s complaint seems to be that appellant was not authorised to attend the press conference.  Appellant was not cleared.  On the other vein it seems respondent’s complaint is that appellant had to be cleared to discuss matters involving the respondent.  Such clearance was not sought nor given.  Appellant on the other hand argued that she needed no clearance from respondent in conducting matter of the union.  I agree.  Without proof that such business was carried out during working hours, Appellant could not be convicted of failing to get clearance to attend.  Having been cleared of charge 1 count 1 it also follows that Appellant could not be found guilty on count 2.

Appellant was acquitted of all the specific charges like threatening to switch off the whole country and disclosing classified or confidential information relating to the affairs of respondent.  Even if for argument sake appellant is indeed guilty of addressing a press conference without authority such offence cannot attract the dismissal penalty.  Dismissal penalty would be too harsh in the circumstances.  I am satisfied that the penalty of dismissal is too harsh.  Appellant counsel argued that this is a matter where the courts should express their displeasure in employers abusing their rights on trade union members by simply ordering reinstatement.  I do not agree.  It is now accepted that an order for reinstatement must be accompanied with an alternative order for payment of damages in lieu of reinstatement: see Hama v Nantional Railways of Zimbabwe 1996(1) ZLR 664(S) and Olivine Industries (Pvt) Ltd v Gwekwerere 2005(2) ZLR 421 (S).  Evidence should be made before the court on whether the employment relationship between the parties has irretrievably broken down due to mutual loss of confidence and trust between the parties.  The respondent was only barred with regard the main appeal.  It would be improper for me to determine the issue of the relationship between the parties without hearing both parties on the matter.

Accordingly the appeal succeeds and the decision of the Appeals Committee is set aside and substituted with the following:

“The appellant is found not guilty and is reinstated to her previous position without loss of salary or benefit.  In the event that reinstatement is no longer possible, Respondents are ordered to pay damages in lieu of reinstatement.”

Respondents are ordered to pay costs of suit, jointly and severally one paying the other to be absolved.

Matsikidze, Gwisai and Mucheche Legal Practitioners, Representing the Appellant.

ZESA Legal Officer, Representing the Respondents