Bernard Kujinga v Old Mutual Life Assurance (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/59/2021
HARARE, 24 MARCH 2021
4 JUNE 2021
CASE NO LC/H/213/19
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IN THE LABOUR COURT OF ZIMBABWE	   	JUDGMENT NO LC/H/59/2021

HARARE, 24 MARCH 2021&				 CASE NO LC/H/213/19

4 JUNE 2021

In the matter between:-

BERNARD KUJINGA					APPLICANT

And

OLD MUTUAL LIFE ASSURANCE (PVT) LTD	RESPONDENT

Before the Honourable Manyangadze  J

For the Applicant			Ms Z. Majena (Head Legal/Trade Unionist)

For the Respondent			Mr A.K. Maguchu (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against the determination of the Appeals Officer appointed in terms of the Old Mutual Code of Conduct, which determination upheld the conviction of the appellant on misconduct charges levelled against him, and the consequent penalty of dismissal.

The respondent is a company duly incorporated under the laws of Zimbabwe, and operates in the insurance and financial services sector.

It must be pointed out, from the outset, that the facts of this matter are substantially similar to those in the case of Batsirai Mambayo v Old Mutual Shared Services (Pvt)(Ltd LC/H/211/19. The two matters were brought before this court for hearing on the same day. Counsel for the parties adopted and incorporated the submissions they made in the Batsirai Mambayo case into the instant case. The grounds of appeal and the heads of argument are the same. The two matters were argued by the same counsel. It will therefore be noted that, save for slight differences, the reasons for judgment will be the same. There is really no basis for distinction when the court was faced with the same facts, the same grounds of appeal and the same written and oral submissions. The employees might as well have been tried jointly in the same hearing, right from the initial disciplinary proceedings. Trying them separately amounted to a duplication of effort, as the same witnesses had to be called to testify on basically the same facts.

The appellant was employed by the respondent as an Accounts Administrator. He was based at Old Mutual Gardens, Emerald Hill, Harare. The appellant was also a Workers Representative on the Old Mutual Workers’ Committee.

At the centre of the events that led to the appellant facing charges of misconduct was a Works Council meeting which was held on 8 July 2019, which members of the Workers’ Committee attended.  At this meeting, management advised that it had resolved to increase employees’ salaries by 45 %. The Group Chief Executive subsequently, around 4 p.m. on the same day, sent an email communicating this salary increase to all workers. News of the salary increase was not well received by the employees, as it fell below expectations.

The following day, 9 July 2019, around 1000 hours, four of the appellant’s colleagues in the Workers’ Committee went to see the Human Capital Consultant, Mr Costa Nzombe. It is alleged they advised Mr Nzombe that workers were demanding to see the Human Capital Executive concerning the recently communicated 45 % salary increase.

It is alleged that the appellant, who had been briefed about his colleagues’ mission, acted in concert with them in mobilising workers to gather in the staff canteen for an address by management.

Later that morning, the appellant teamed up with two of his colleagues, Ms Batsirai Mambayo and Mr Don Chibvamuperu, and went to see Mr Nzombe. They demanded that the Human Capital Executive come and address the workers gathered at the staff canteen. The issue was escalated to the Group Chief Operating Officer, Mr Mashinya, who convened an urgent meeting. The meeting included the Human Capital Executive, Mrs Mundangepfupfu, among other executives. The appellant and his colleagues were advised to engage the employees gathered at the canteen, so that they get back to their work stations. They were asked to be patient with management as it was seized with the remuneration issue.

It is alleged the appellant and his two colleagues refused to leave the Human Capital Executive’s office, demanding that she proceeds to the canteen to address the workers.

The workers eventually dispersed, after the Designated Agent, Mr Nathaniel Tichiwangana, went to read a memorandum drafted by management. The memorandum instructed the workers to return to work or risk disciplinary action. The stalemate in the Human Capital Executive’s office lasted for about two hours. The workers had been gathered at the canteen for most of the day.

Following the events of that day, the appellant was charged with misconduct under the Old Mutual Code of Conduct and Grievance Procedure (the Code of Conduct). The specific charge was contravening section 15.9.1;

“Failure to fulfil the expressed or implied conditions of the contract of employment or any breach of the contract of employment”

This charge was predicated on clause 8 of the appellant’s contract of employment, which reads:

“The employee will perform his/her duties in the best interests of Old Mutual and will refrain from any action which may in any manner harm the good name and reputation of Old Mutual or which may place Old Mutual in an invidious or compromising situation. As such, the employee is expected to display total honesty and integrity in the performance of his/her duties and to exercise appropriate care and skill.”

In a determination handed down on 4 September 2019, the Hearing Officer found the appellant guilty as charged, and imposed a penalty of dismissal.

An internal appeal to the Appeals Officer was unsuccessful. The Appeals Officer, in a determination issued on 2 October 2019, upheld the Hearing Officer’s determination. This prompted the appeal to this court.

The grounds of appeal are stated as follows:

“1. The Appeals Officer erred in law in failing to find that a bona fide request for management to address workers grievances by Appellant and members of the workers committee was unnecessarily blown out of proportion because of the action of the Head of Human Capital and other managers who did not advise workers in time of their management decision not to address workers on the 9th of July 2019.

2. The Appeals Officer erred in law and misdirected himself in finding, as he did or must be taken to have done that the Appellant and the members of the workers committee lied to employer and employees about an address resulting in the workers gathering in the Respondent’s canteen on the 9th of July 2019.

3. The Appeals Officer erred when he failed to note that without an order from a competent authority stating that there was an unlawful collective job action, the Respondent was precluded from disciplining Appellant on allegations that he participated in an unlawful collective job action.

e.(sic) The Appeals Officer misdirected himself when he failed to give a proper meaning to the Memo that was read by the Designated Agent to all workers on behalf of management and workers committee meeting that was chaired by the Group Operating Officer on the 9th of July 2019 in so far as whether Appellant could face disciplinary hearing on the same collective job action allegations.

f.(sic) The Appeals Officer erred in failing to note that the Appellant acted within the scope of his mandate as a worker representative and targeting him for dismissal amounted to victimisation of the workers committee.

4.  The Appeals Officer misdirected himself when he failed to note that no sufficient evidence    was led to prove the charges, which were in fact too punitive and the hearing officer had failed to objectively and properly apply his discretion in coming up with a fair and just penalty regard being had to the totality of the circumstances and the Appellant’s conduct.”

Ground of appeal 1

It is difficult to comprehend the import of this ground of appeal. It is not clearly framed. The averment that the request by the appellant and his colleagues “was unnecessarily blown out of proportion” does not clearly bring out what it is the appellant is appealing against. Appellant seems to be simply stating what allegedly happened, which is that management was requested to address workers. This request was then “blown out of proportion”.  It is not clear what finding of law, or even fact, is being appealed against.

Mr Maguchu, for the respondent, highlighted the vague nature of this ground of appeal during oral submissions. He remarked;

“Are you saying the act of charging the employees is the one blown out of proportion? We do not know whether the appellant is saying, “I am guilty but the act is inconsequential.” Neither does he tell us he is referring to the penalty.”

Grounds of appeal must be clear and concise. This principle has been laid down and emphasized in numerous cases. See Dr Nobert Kunonga v The Church of the Province of Central Africa SC 25/17, where GARWE JA, from pages 12 to 16, goes through the various authorities where this principle was applied.

In the instant case, the ground of appeal lacks clarity and specificity. It is inelegantly and vaguely constructed. It is not for the court to come up with a meaning from a vaguely or ambiguously drafted ground of appeal.

The appellant had no helpful response on this aspect. Ms Majena, on behalf of the appellant, mainly implored the court to look at the substance of the appeal, and not focus on technicalities. She told the court:

“The court should give the appellant an opportunity to argue the substantive part of the grounds of appeal, more so as the substance itself has merit.”

In my view, the issue of the clarity of a ground of appeal goes to its substance. It is not a mere technicality. It is the basis on which the appellant seeks to have the decision appealed against set aside. The court must clearly appreciate the basis on which it is being invited to set aside the decision in question. It cannot do so when the ground of appeal is vague.  That is why the authorities referred to in the Dr Nobert Kunonga case, supra, emphasized the need for clear and concise grounds of appeal. Ground of appeal 1 fails the clarity test. It is accordingly struck off the notice of appeal.

Ground of appeal 2

This ground of appeal is impugning the finding that the appellant and his colleagues lied to the employer and the employees, which lie resulted in workers gathering at the staff canteen.

The respondent averred that this ground of appeal is improper, in that it is alleging that the Appeals Officer made a finding of fact that the appellant lied. The respondent argued that it is not the appellate tribunal, but the tribunal of first instance, that makes findings of fact. The appellate tribunal confirms or rejects the findings of fact made by the lower tribunal. On this basis, the respondent moves that this ground of appeal, too, be struck off.

This is where, in my view, the point raised by the appellant becomes relevant. The point was that the court must look at the substance of the ground of appeal, and not have it vitiated on the basis of technicalities. The appellant pointed out that an employee guilty of misconduct should not escape liability on the basis of procedural technicalities. In this regard, Ms Majena referred the court to the often cited case of Air Zimbabwe (Pvt) Ltd v Chiku Mnensa & Ano SC 89/04. She contended that the principle applies with equal force to the case of an innocent employee, who should not fall prey to procedural technicalities.

In the context of ground of appeal 2, it seems to me the appellant is imploring the court not to strike off the ground on the point raised by the respondent.  The substance of the ground is that the Appeals Officer misdirected himself by upholding the finding made by the Hearing Officer, that the appellant lied to management and employees. As will be shown below, the Appeals Officer indeed upheld the findings of fact made by the Hearing Officer. He did not himself make such findings.

What needs to be determined is the pertinent question as to whether or not the Appeals Officer correctly upheld the finding that the appellant and his colleagues lied to management and the workers. It is in fact this substantive issue, of whether or not the appellant, acting in concert with his colleagues, lied or misrepresented to management and the workers, on which this whole case turns. To the workers, the misrepresentation was that management wanted to address them. To management, it was that the workers were demanding to be addressed by management. The summary of the factual background made at the beginning of this judgment outlines the sequence of events on the day in question.

The factual background, which is largely uncontested, shows that the appellant was an integral component of the machinery members of the Workers’ Committee set in motion that day. He was part and parcel of the planning and execution of the scheme to gather workers at the canteen, and have management come and address them. In this regard, Mr Maguchu pointed out;

“Members of the Workers Committee came up with a scheme where they wanted to force management to address workers. So they lied to workers that management wanted to address them. At the same time, they went to management, saying that employees wanted management to address them.’’

The fundamental principle that an appellate court cannot lightly interfere with the factual findings of a lower court has been underscored in many case authorities. See Hama v NRZ 1996 (1) 664, ZINWA v Mwoyounotsva SC 58/15, S v Isolano 1985 (1) ZLR 62.

The Appeals Officer found that the evidence before the Hearing Officer established that the appellant and his colleagues misrepresented to management that:

“(a) the employees demanded to be addressed by Human Resources

(b) the employees had passed a vote of no confidence in the Workers Committee

(c)  the employees had already started gathering in the canteen for the address.”

The Appeals Officer found, in particular, that these misrepresentations are based on the testimony of Costa Nzombe, which testimony the Hearing Officer found credible.

This court, in turn, has found no basis on which to upset what the Appeal Officer upheld.

In the circumstances, ground of appeal 2 cannot succeed.

Ground of appeal 3

It seems to me grounds of appeal 3 and 3(e)(sic) are concerned with the question of a collective job action. The Appeals Officer held that an employer is not precluded from charging employees with misconduct by the absence of a court declaration that the collective job action was unlawful. There is reference to a memorandum written by management, warning the employees of disciplinary action if they did not return to work.

The Appeals Officer noted, correctly in my view, that the issue was not on the lawfulness or otherwise of the alleged collective job action. It was about the misrepresentations made by the appellant and his colleagues, which misrepresentation led to the gathering at the canteen. This issue has been considered in the analysis done under ground of appeal 2, wherein it has been shown that it is these misrepresentations that constituted the basis for the misconduct in question.

Nothing therefore turns on grounds of appeal 3 and 3(e)(sic).

Ground of appeal 3(f)(sic)

In this ground of appeal, the appellant avers that he was acting within the scope of his mandate as a workers representative. He further avers that he was targeted for dismissal and that amounted to victimisation of members of the Workers Committee.

In countering this averment, the respondent contends, in paragraphs 32 – 33 of its heads of argument, that workers’ representatives remain employees and are not exempt from adhering to the standards and procedures to which other employees are bound. They are also subject to disciplinary action if they engage in acts of misconduct.

Indeed, it is the correct position at law that members of a Workers Committee, whilst they have the right to advance the interests of their constituency, remain subject to the Code of Conduct that governs the rest of the employees. They are not immune to disciplinary action, provided of course there is a lawful basis for such action.

In Don Chibvamuperu v Old Mutual Insurance Company ( Pvt) Ltd LC/H/188/20, a case involving another employee of the respondent, arising out of the same facts, KACHAMBWA J remarked, at pages 7 – 8 of the cyclostyled judgment:

“Ground of appeal 3.2 is a common ground that is raised by workers’ committee members. It is a weather beaten road. The appellant claimed that he could not be charged because he was doing his duty as a member of the workers’ committee. Charging her (sic) would be victimisation…

It is now established that workers committee members must carry out their duties within the laws of the employment contract. They do not cease to be employees. Therefore, they are liable to be charged of misconduct if they don’t toe the line. In the present case the appellant was charged for breaching the terms of employment. He did not have to lie. He should have conducted his business within the four corners of the employment contract. Therefore the defence is not available to him.

In Zimbabwe Electricity Supply Authority v Moses Mare SC 43/05 the late Chidyausiku CJ says that at page 4,

“I accept that a member of the Workers Committee has a duty to defend workers’ rights.   In defending the rights of the workers a member of the Workers’ Committee is enjoined to observe due process.”

In casu, the facts already looked at are such that the appellant cannot be exempt from disciplinary action. They do not support his contention of victimisation. Thus, I find no merit in ground of appeal 3(f)(sic)

Ground of appeal 4

This ground of appeal mixes issues of evidence and penalty. On evidence, the appellant makes the broad, bald, and generalised averment that there was no evidence to prove the charges of misconduct. The question of the sufficiency of the evidence adduced has been dealt with underground of appeal 2. There is no need to repeat the analysis made thereunder.

On the aspect of penalty, the Appeals Officer makes the following pertinent remark, on page 6 of his determination:

“With the Hearing Officer having exercised his discretion, Appellant has a tall order in having the penalty interfered with on appeal. Where an employee is found guilty following a hearing it is the employer’s prerogative to determine the penalty.”

Indeed, an appeal court has very little, if any, room to manoeuvre when dealing with the discretion of a lower tribunal on the assessment of an appropriate penalty. Where the employer takes a serious view of an act of misconduct and considers dismissal an appropriate penalty, the court cannot interfere, unless it can be shown that there was gross misdirection in the assessment of the penalty. See Innscor Africa (Pvt) Ltd v Letron Chimoto SC 6/12, Toyota Zimbabwe v Posi SC 55/07, Standard Chartered Bank v Chapuka SC 125/ o4.

In the instant case, the appellant’s conduct reflects a high level of dishonesty and disrespect for authority. It went to the root of the contract of employment, making the continuation of the relationship untenable. The facts outlined above clearly show this. The court is unable to tamper with the penalty imposed.

In the circumstances, the appeal cannot succeed, in respect of both the verdict and the penalty.

In the result, it is ordered that:

The appeal be and is hereby dismissed.

The appellant bears the respondent’s costs.

Dube Manikai & Hwacha,   Respondent’s Legal Practitioners