Blessing Mufakwese v Old Mutual Life Assurance (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/24/2021
HARARE, 23 SEPTEMBER 2020
CASE NO. LC/H/212/19
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IN THE LABOUR COURT OF ZIMBABWE	           JUDGMENT NO. LC/H/24/2021

HARARE, 23 SEPTEMBER 2020 			           CASE NO. LC/H/212/19

AND 26 MARCH 2021

In the matter between:

BLESSING MUFAKWESE						APPELLANT

AND

OLD MUTUAL LIFE ASSURANCE(PVT) LTD			RESPONDENT

Before The Honourable HOVE J

For the Appellant			Ms Z. Magena (Trade Unionist)

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

HOVE J:

This is an appeal against the respondent’s appeals officers’ decision to find the appellant guilty and to dismiss him.

Background

The appellant was employed by the respondent as a driver. He was a member of the workers’ committee. He was charged with acts of misconduct it being alleged that he had contravened section 15.9.1. failure to fulfill the expressed or implied conditions of the contract of employment or any breach of the employment contract.

The facts giving rise to this charge were that on 9 July 2019 the appellant and three other workers representatives approached a senior Human Capital Consultant, Nzombe in his office and advised him that the employees were moving to the canteen demanding to be addressed by the human capital executive regarding the 45% salary increase which had been communicated to the workers.

The appellant and his colleagues are alleged to have misrepresented to the workers that they should gather in the canteen as management was going to address them. Employees then gathered in the canteen.

To the employer’s representatives the appellant and his colleagues are alleged to have misrepresented that the employees were demanding to be addressed and were moving to the canteen demanding that they be addressed.

Workers were gathered in the canteen for the better part of that day’s working hours.

A disciplinary hearing was conducted and the appellant was found guilty and dismissed. She unsuccessfully appealed against her conviction and the decision to dismiss her from employment.

She subsequently noted an appeal to this court.

In her grounds of appeal, the appellant raised a preliminary point that:

1.	The appeals officer erred when he failed to note that the appellant was not an employee of the respondent and could therefore not institute disciplinary proceedings against the appellant and discharge him. Old Mutual Life Assurance Company Zimbabwe (Private) Limited was the actual employer and not the respondent.

The other grounds of appeal were briefly that:

2.	The appeals officer erred in law in failing to find that a bona fide request for managers to address worker’s grievances by appellant and other members of the worker’s committee was blown out of proportion unnecessarily. It was the managers who had failed to advise the workers in time of the decision not to address them.

3.	The appeals officer erred in law and misdirected himself in finding as he did that the appellant and his colleagues lied to both the employer and employees about the address in the canteen.

4.	The employer was precluded from disciplining the appellant in the absence of an order from a competent authority stating that there was an unlawful collective job action.

4.1.	The appeals officer failed to give a proper meaning to the memo read by the Designated Agent in relation to whether the appellant could be disciplined in relation to his actions of the 9th of July 2019.

4.2.	The appeals officer erred in failing to note that the appellant was acting within her mandate as a workers’ committee member and that she was being victimized for being a workers’ representative.

5.	Appeals Officer misdirected himself in failing to note that there was no sufficient evidence led to prove the charges and he also failed, in the exercise of his discretion, to come up with a fair and just penalty.

The appeal was opposed and it was submitted that the appeal was just an academic exercise, the appellant had not appealed against other acts of misconduct which in themselves were sufficient to warrant conviction and dismissal.

Respondent’s preliminary point:

The preliminary point raised by the respondent is general and not specific. Respondent fails to specifically outline which other dismissible acts of misconduct the appellant failed to appeal against. It is not clear what the respondent is referring to in the opposing affidavits. However, the respondent in its heads of arguments specifies that it had referred to the fact that the appellant had failed to challenge that:

The appellant lied to the respondent’s employees that the appellant also lied to management in respect of the gathering at the canteen.

The grounds of appeal however specifically challenges in Ground No. 3 that the appeal’s officer erred in law and misdirected himself in finding as he did or must be taken to have done, that the appellant and members of the workers’ committee lied to the employer and employees about an address resulting in the workers gathering in the respondent’s canteen on the 9th of July 2019.

It is therefore not true that the appellant failed to challenge this critical factual finding.

The only aspect that was not specifically challenged was that the appellant had lied that a vote of no confidence had been passed against her by the employees. This specific finding was made by the appeals officer but not challenged in the grounds of appeal.

The submission by the employer’s representative before this court is that even if all the other grounds of appeal were to succeed, the conviction and dismissal would still stand on the basis of this alone, nothing further is submitted to show the court that the fact that she lied that a vote of no confidence had been passed against her would have resulted in a finding of guilty and the penalty of dismissal. It was encumbert upon the employer to show the court that this was so for it to succeed on its preliminary point. The employer thus failed to prove its preliminary point. The preliminary point raised is thus found to be without merit and should be dismissed.

Appellant’s preliminary point:

The preliminary point raised by the appellant is in fact challenging the jurisdiction of the respondent. The appellant, in this point, is not challenging the substantive correctness of the decision being appealed against but the jurisdiction of the disciplinary authority. This is thus not an issue for appeal but for review. On this point alone, it is found that the preliminary point is improperly raised in an appeal. The issue being of a procedural nature, should have been raised in a review application. The preliminary point is accordingly dismissed.

Hereunder, the court will consider the grounds of appeal raised:

Ground of Appeal No. 2: Whether or not members of the management blew out of proportion the bona fide request by the appellant and her colleagues.

It is not clear what finding by the appeals officer is being challenged in this ground of appeal no substantive finding is being challenged. The ground appears to be raising review issues. The ground is not a ground of appeal and it is also vague. The appellant does not clearly state what it is that she is challenging. The ground is thus without merit. Grounds of appeal must specifically state what it is that is being challenged.

Ground of appeal No. 3: Whether or not the appeals officer misdirected himself in finding that appellant and her colleagues lied to both the employer and the employees?

The hearing officer made a finding that the appellant had lied. A careful perusal of the record shows that the appeals officer did not make such a finding. He clearly states at page 11 of the record that that finding by the hearing officer was not challenged and so he upheld it. The ground of appeal is therefore not based on the true facts as outlined on the record. For that reason, the ground of appeal is incompetent. In any event there is sufficient evidence on record showing that the appellant and her colleagues lied about the meeting in the canteen.

The ground of appeal is found to be without merit.

Ground of Appeal No. 4: Whether or not an employer can discipline when no competent authority has declared that there was an unlawful collective job action

The position of law is that an employer can discipline its employees for alleged acts of misconduct. Engaging in an unlawful job action can give rise to charges of misconduct. It is the employer’s prerogative to charge or not to charge employees with acts of misconduct where there are reasonable grounds to believe that acts of misconduct have been committed. There is no requirement that some competent authority must first declare an alleged collective job action to be unlawful before the employer can bring charges of misconduct.

In the case of Tirivangana v The University of Zimbabwe SC 21/13 it was held that an employer is entitled in law to discipline any of its employees in terms of the Governing Regulations whenever it is alleged that an employee has committed an act of misconduct.

The appellant did not give any submission in support of its allegation that some competent authority must first declare a collective job action unlawful before the employer can charge for misconduct. The ground is therefore without merit.

The appellant in her heads of argument under Ad Paragraph 4, she does not address the issues she raised in her ground of appeal number 4 but argues that there were other appropriate charges that could have been raised under the circumstances. This was not raised in the grounds of appeal and the appeals officer could not himself preferred alternative charges on appeal. If there was no collective job action, this ought to have been raised in the grounds of appeal.

Ground of Appeal 4.1: Whether a proper meaning to the memo was not given

The memo advised the employees to go back to work or be charged for participating in an unlawful job action, it read in part as follows;

“We note that you have been gathered in the canteen from 0800 to 1600hours demanding to be addressed by management concerning the July salary increase.

Please note report back to duty immediately, failure of which the employer will have no choice but to charge you for participating in an illegal collective job action.”

The hearing officer stated that the letter absolves employees who returned to work from facing charges of participating in a collective job action. The hearing officer explains in his decision that the letter did not absolve the appellant from being charged for lying. The appellant lied and was thus found guilty of lying. The letter never promised not to charge for acts of misconduct committed by the appellant, that is, the deliberate lies to the workers and again to the members of management.

The appellant does not give the correct interpretation that ought to have been accorded to the memo. In fact, in its heads of arguments, the appellant never argued this point. They abandoned the ground. In any event the employer is entitled at law to charge whenever acts of misconduct are committed. See the case of Tirivangana (supra).

Ground of Appeal No. 4.2: was the appellant victimized for being a member of the worker’s committee

There is no merit in this argument. The allegation that the appellant lied has nothing to do with her role as a worker representative.

The appellant was found to have lied to the workers that management had asked them to gather in the canteen so that they could address them and again lied to management that the workers had gathered in the canteen demanding to be addressed. The appeals officer said the hearing officer had made this finding and it had not been challenged on appeal. It is clear that, that was found by the hearing officer to be a dismissible offence and the appellant had failed to challenge that finding before the appeals officer.

There is no victimization in the circumstances of this case. In fact, what the appellant was doing was not representing workers but lying to them. The allegation that they were being victimized for representing workers has no merit.

Ground of Appeal No. 5: was there sufficient evidence to warrant the finding of guilty by the hearing officer? And was the penalty punitive

The record is awash with evidence that the appellant had committed acts of misconduct. The appellant does not say why she is alleging that there was no evidence neither is any submission made to show that the penalty was excessive. Our law is very clear and I need not sight any authority for the trite position that he who alleges must prove.

The appellant therefore failed to substantiate the 5th ground of appeal which appears to have been abandoned. There is thus found no merit in it.

The court thus finds no merit in any of the appellant’s grounds of appeal and dismisses the appeal.

Each party will bear is own costs.

Dube, Manikai & Hwacha, Respondent’s Legal Practitioners