Angeline Nyaruwata-Bvure v Mega Pak (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/385/2014
HARARE, 04 JUNE 2014
CASE NO. LC/H/385/2014
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/385/2014

HARARE, 04 JUNE 2014		           	     CASE NO. LC/CON/H/74/13

AND 04 JULY 2014

In the matter between:-

ANGELINE NYARUWATA-BVURE				Appellant

And

MEGA PAK (PVT) LTD						Respondent

Before The Honorable F.C. Maxwell, Judge

For Appellant		Mr. P. Chiutsi (Legal Practitioner)

For Respondent		Mr. S. Sadomba (Legal Practitioner)

MAXWELL J:

This is an appeal against the decision of Respondent’s Managing Director handed down on 15 March 2013.  The grounds of appeal are;

The Managing Director erred in finding that the Appellant shared one Laureen Maungana’s personal documents with third parties because

the information forming the basis of the charge levelled against the Appellant cannot be considered confidential information.  Both documents complained of are ordinary documents which are circulating freely on the internet which contain no personal information relating to Lauren.

The Appellant did not use documents or information to gain any advantage over anyone.  The charge as set out in Section 4.5.7 state that “using information obtained in the course of duties to gain advantage over others”.

The finding by the Committee is inconsistent with the charge preferred against the Appellant, the finding was that the Appellant “….. breached confidentiality by forwarding emails to a third party ….” This is without foundation in terms of the Code of Conduct.

The Appellant was not charged with such an offence and hence the Managing Director erred in finding the Appellant guilty of that offence which she was not charged of.

Further the confidential information as envisaged in the Code of Conduct relates to company information which damages the Company’ s interests and not individual of personal interests.  To that end the Managing Director erred in his interpretation of the Code.

In any event in terms of the Information Systems Appropriate Use Policy (here and after referred to as the policy) employees are not permitted to use internet and email for personal business See Section 5.3(xii) of the Policy at page 5.

Further the Managing Director erred in his interpretation of the policy in that in terms of Section 5.4 (i) of the policy, “All messages, sent, or retrieved over the internet are the property of the company and “may be regarded as public information.”

He again erred in his interpretation of Section 5.4 (ii) of the policy which is very relevant to this matter in that it states that “All communications, including text and images, can be disclosed to other third parties without the prior consent of the sender or the receiver.”

Accordingly to the extent to which the finding is seriously inconsistent with the I.T. Policy and the evidence present, it must be set aside.

ABUSIVE LANGUAGE

The Managing Director erred further and in addition to finding that the Appellant used words of contempt or abuse against Lauren.  That charge is baseless for the reasons stated hereunder,

It is common cause that the complainant and Appellant are friends.

It is common cause that the complainant was not affected by the words used by the Appellant, hence her statement that she did not want the matter to be pursued or referred to disciplinary hearing.

On page 3 of the Minutes, the Committee clearly notes that the Complainant was more concerned that Appellant was crying and that the matter appeared not to have been resolved and not about the alleged words of abuse.

The Managing Director also erred in finding that Appellant ridiculed the Complainant’s religion.  This finding is without foundation.

In ordinary parlance the words complained of simply mean that “I thought we were friends or fellow Christians” no abusive connotation can be inferred herein, which is why the complainant did not take any offence.

Having regard to the foregoing it is humbly submitted that both findings must be set aside and findings of NOT GUILTY be substituted.

The Respondent filed a notice of response on 7 May 2014.  It stated that;

The findings of fact by the Disciplinary Committee and the Managing Director cannot be impugned.  It is a fact that Appellant accessed her colleague, Lauren’s personal documents and shared them with a third party and then deleted the evidence.

The findings of fact of the Disciplinary Committee and the Managing Director are not appealable.

The Managing Director did not make any considerations in his interpretation of the Information Systems Appropriate Use Policy.

The finding of the Managing Director and the Disciplinary Committee in respect of the charge of “Abusive Language” cannot be impugned.

The background of the case is that on 12 February 2013 Appellant was requested to relieve the Managing Director’s Secretary, Lauren Maungana in the morning.  When Lauren came back in the afternoon she discovered that the Appellant had accessed her profile and forwarded personal emails and part of her CV to one Naume Nyaira.  Naume Nyaira had sent a response which indicated that she had received the said information.  Appellant had deleted the emails in question from the “sent” folder.  Lauren reported to the Human Resources Manager who held a counseling session with the two in an endeavour to resolve the matter amicably.  A few minutes after the counseling meeting Appellant phoned Lauren and accused her of having spoiled her day.  She uttered a statement to the effect that “I thought you were a Christian” and cut off the phone before Lauren could respond.

Appellant was subsequently charged with

Breach of confidentiality in terms of section 4.5.7 of the Respondent’s Code of Conduct and Grievance Procedure;

Using abusive language in terms of section 4.2.2a of the same Code and inefficiency in terms of section 4.5.4c of the same code.

She was found guilty of the first and second charges but was acquitted of the third charge.  She appealed to the Managing Director who dismissed her appeal leading her to approaching this honourable Court.

The first issue is whether or not the information in question is confidential.  Section 4.5.7 states that

“Breach of Confidentiality

Disclosing confidential information obtained in the course of one’s duty which damages the company’s interests.

Using information obtained in the course of one’s duties to gain advantage over others.”

Two aspects define confidential information in this section of the Code of Conduct.  Firstly the information must be such as is capable of damaging the company’s interest.  Can the information in question be classified as such?  The answer is obviously in the negative.  I am persuaded by Appellant’s argument that the section was aimed at sanctioning disclosure of trade secrets and information that may prejudice Respondent’ s business with its competitors, or dealings with employees or third parties.  I am further persuaded by the submission that the confidentiality referred to in the code relates to interests or operations of Respondent, not its employees.  In this case it is an employee’s interests that are at stake.

Respondent’s Information Systems Appropriate Use Policy prohibits use of the internet and email for personal business.  Appellant was found guilty of breaching this policy even though there was no specific charge of breaching the I.T. Policy.  On page 13 of the record the Managing Director states;

“It is quite evident that you breached the I.T. Policy by conducting personal business using company resources during working hours …… Furthermore you breached the company’s I.T. Policy by sending an extract from Lauren’s CV to a third party without the consent of either Lauren or the company.”

I find it not relevant to consider this issue as Appellant was not facing any charge of contravening the Respondent’s I.T. Policy.  It would have been relevant if the Appellant had in the process divulged trade secrets or information that may prejudice Respondent’s business with its competitors, or dealings with employees or third parties.

Secondly the information must be used to gain advantage over others.  In this case it was not demonstrated what advantage Appellant gained over others.  Appellant’s conduct was distasteful and abhorrent but lies outside the ambit of section 4.5.7 of the Respondent’s Code of Conduct.

Appellant was also convicted of violating section 4.2.2 of the Code.  The section reads

“Abuse or Related Offences

Abusive language: the uttering of any words or any publication of any writing expressing or showing hatred, ridicule or contempt for any person or group of persons.

The offence is aggravated when it is based on race, colour, religion, sex, political opinion, creed, tribe or place of origin.”

I am persuaded by Respondent’s argument that the finding that Appellant’s utterances were inappropriate in the circumstances is a finding of fact which should not be interfered with unless it is held to be so unreasonable as to defy logic.  In the present case such a conclusion cannot be reached as Lauren raised the issue with the Human Resources Manager after receiving a phone call from Appellant.  Appellant has placed reliance on the case of Shamuyarira v Zimbabwe Newspapers (1980) Ltd and Another 1994 (1) ZLR 445.  The said case is on defamation.  In my view the test for defamation is not the same as for abusive language.  Appellant has further contended that the words complained of simply mean that

“I thought we were friends or fellow Christians” (para 3.6.7 Appellant’s Heads of argument).  I do not agree.  The statement “I thought you were a Christian” can be taken to mean that your behavior makes me doubt your Christianity.  If that meaning is considered it would be abusive to a person who is a Christian.  The Disciplinary Committee and the Managing Director’s findings on this aspect cannot be faulted.

The penalty imposed on the Appellant has to be considered.  On page 22 of the record the Disciplinary Committee chairperson advises that

According to the Code of Conduct, an employee who commits an offence of breach of confidentiality (Section 4.5.7 ii) and it is a first breach, is issued with a dismissal.

According to the Code of Conduct an employee who commits an offence of raising abusive language (section 4.2.2a) and it is a first breach is issued with a severe written warning.

In the above analysis the first count cannot stand and therefore the penalty of dismissal is not appropriate in the circumstances.  Appellant should be issued with a severe written warning as stated by the chairperson of the Disciplinary Committee as it is the appropriate penalty for the second charge whose finding of guilty I upheld.

Accordingly I order as follows;

The appeal against the finding of guilty on the first charge of breaching confidentiality, being with merit, be and is hereby upheld.

The appeal against the finding of guilty on the second charge of using abusive language, being without merit be and is hereby dismissed.

Respondent be and is hereby ordered to reinstate Appellant.  If reinstatement is no longer possible the parties are to agree on damages in lieu of reinstatement. If the parties fail to agree, either party can approach this court for quantification of the damages.

The matter is remitted to the managing Director to issue the appropriate penalty of a severe written warning.

There shall be no order as to costs.

P. CHIUTSI LEGAL PRACTITIONERS, Appellant’s legal practitioners

GILL, GODLONTON & GERRANS, Respondent’s legal practitioners