Don Chibvamuperu v Old Mutual Insurance Company (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/188/2020
HARARE, 4 JULY, 2020
CASE NO. LC/H/215/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/188/2020

HARARE, 4 JULY, 2020			               CASE NO. LC/H/215/19

AND 28 AUGUST, 2020

In the matter between:

DON CHIBVAMUPERU							APPELLANT

Versus

OLD MUTUAL INSURANCE COMPANY (PVT) LTD			RESPONDENT

Before The Honourable Kachambwa J;

For Appellant:				Mr T. Marino, Trade Unionist

For Respondent:				A. K. Maguchu, Legal Practitioners

KACHAMBWA J:

This is an appeal against the decision of an appeals officer. It is in terms of the workplace code of conduct. The appellant was charged of “Failure to fulfill the expressed or implied conditions of the contract of employment or any breach of the employment contract” (section 15.9.1 of the Old Mutual Employment Code of Conduct) Clause 8 of specific contract of employment read:

“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”.

This is the specific clause that the appellant was convicted of breaching. He was a member of the workers committee.

The allegations of the charge were that:

1.	the appellant misrepresented to the employees that the employer

wanted to address them and so they should gather in the canteen.

They did gather for that purpose.

2.	The appellant went to the employer and misrepresented to the employer that the employees were demanding to be addressed by the employer and had gathered for that purpose yet this was not the case. They did not so demand.

3.	The appellant said that employees had passed a vote of no confidence in the workers’ committee yet they had not done so.

4.	The appellant had staged a sit in the Human Capital Executive office for approximately two (2) hours demanding that the Human Capital Executive addresses the workers who were gathered in the canteen.

5.	By gathering in the canteen instead of being at their work stations the employees had staged a collective job action caused by the appellant and his colleagues.

6.	The actions of the appellant led to bad publicity by IHarare news which publicity was detrimental to and harmed the reputation of Old Mutual.

The letter inviting the appellant to the hearing contained the charges. It concluded as follows;

“By misrepresenting facts on the issues, mobilising and leading employees on the illegal collective job action, you failed, neglected and or refused to fulfill the expressed or implied conditions of your contract of employment as set out in clause 8 thereof.”

The suspension letter had informed the appellant that the charges would be contained in the letter of invitation to the hearing. The letter is a three page letter which includes the narration of events. Consequently I have extracted what I see as the quintessence of the charge. These are the issues that the appellant had to answer. He was found guilty as charged. A penalty of dismissal was imposed. The hearing officer elaborately went through the evidence of each constituent part of the allegations and assessed it.

The appellant appealed against both conviction and penalty. He raised a whopping twenty two (22) grounds of appeal. For undisclosed reasons he did not attend the appeal hearing. His representatives walked out of the hearing. The appeal officer nevertheless made a ruling based on the papers filed by the parties. The appeal officer made pertinent observations that certain findings on the charge were not appealed. As a result he held that whatever outcome on the other aspects these unchallenged points were enough to keep the appellant convicted and discharged. Nevertheless the hearing officer went through the events led at the initial hearing stage and held that there was adequate evidence to warrant the conviction and dismissal. So the appeal was dismissed.

Both the hearing officer and the appeal officer were very lucid in their decisions. I make this remark because the appellant should be clear on why he was found guilty and if he was in disagreement still, there should be no doubt on what he had to challenge.

The grounds of this appeal in this court read:

“1.	The Appeals Officer erred in law in failing to find that a bona fide request for management to address workers (sic) grievances by Appellant and members of the workers committee was unnecessarily blown out of proportion because of the action of 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 (the) employer and (the) employees about an address resulting in the workers gathering in 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 she participated in an unlawful collective job action.

3.1	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 (sic) that was chaired by the Group Chief 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.

3.2	The Appeals Officer erred in failing to note that the Appellant acted within the scope of her mandate as a worker representative and targeting her for dismissal amounted to victimization 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”.

In its response the employer pointed out that the same findings which were not challenged before the appeals officer remained unchallenged. To that extent the appeal was said to be academic as the appellant would remain convicted and discharged.

Grounds of appeal number 2 and 4 were said to be incompetent. For ground number 2 it was said that the appeals officer does not make findings of fact as alleged. He did not either. Further the ground of appeal was not raised before the appeals officer so for either of these two reasons the ground of appeal was incompetent.

Ground of appeal number 4 was said to be incompetent because it was too generalized.

The remaining grounds were opposed. They were said to be without merit.

The points in limine were upheld. The court went on to point out that ground of appeal No.1 was badly constructed to the extent that it was meaningless. It was not attacking any finding. It was open ended on any remedy. However since it had been

left standing appellant was given the benefit of doubt and left to show how it was to benefit him.

Ground of appeal No. 3 was also said to be unclear seeing how it was paraphrased. Appellant pointed out that it was in fact three grounds in one. He conceded that ground number 3 was improper. He stood on grounds 3.1 and 3.2. Consequently the appeal proceeded on grounds 1, 3.1  and 3.2.

The address on ground of appeal No.1 both in the heads of argument and in court is just a rumble in the jungle. It does not deal with the concrete issues for which the appellant was convicted. It sought to blame the management for causing the work stoppage by its failure to address the employees and by failure to make it known early that they were not going to address the employees. This line of thinking is neither here nor there on the allegations and findings of fact. This is why the ground should actually have been dismissed in limine as being vague. It was not succinct and precise and appellant did not cure it at all in his address. It must be dismissed and is so dismissed.

Ground of appeal 3.1 (3(a)) was to the effect that the appellant was one of the persons referred to by the employer’s memo of the 9th July 2019. In the memo the employer had waived the right to charge the employees for the collective job action. The appellant did not deal with the issue that his colleagues could be forgiven because the employer understood that they had gathered there due to being lied to by the appellant himself. If there was waiver could that waiver apply to the appellant even if the employer discovers that the appellant was actually to blame for the work stoppage? That is the crux of it. He did not address this point, neither in the heads of argument nor in the address in court.

On the other hand the counsel for the employer agreed that the waiver could not apply to the appellant because he was the one who had misled the other employees. He had used them as pawns in his stratagem. It was argued that the waiver could be withdrawn after finding out about the correct part played by the appellant. A South African case of BMW SA v Van der Valt [1999] ZALAC 28 was referred to.

In that case the court held that Van could be charged afresh of the facts and could not plead res judicata after being charged of a lesser offence due to incorrect information.

The principle applies to the appellant in that the true facts are that he was the cause of the work stoppage while the other employees were not aware of the misinformation. Infact for them there was no intention to conduct a collective job action at all.

On this ground 3.1 it is the court’s view that the waiver referred to cannot be applied to the appellant. He is in a different class.

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 would be victimisation. This claim was opposed.

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”.

The same applies to the appellant.

The court would like to further comment on two issues in this case-

the clarity of the grounds of appeal and the draft order/prayer. The prayer says that  “Appellant prays for:

1.	That the appeal succeeds with costs

2.	The ruling of the Hearing Officer dated 4 September 2019 be and is hereby reversed, Appellant’s dismissal as per that determination be and is hereby set aside”.

This prayer could simply have ordered reinstatement and make things abundantly clear. Secondly it did not include damages in lieu of reinstatement. This

error flows from the absence of a clear statement of reinstatement. The prayer is not clear. This prayer is a good candidate for striking off the whole case. That should have been raised as a point in limine.

On the subject of clarity of grounds of appeal the Superior Courts have been of great assistance. We are indebted to the Honourable Garwe JA for a thorough examination of this subject in the case of Dr Nobert Kunonga v The Church of the Province of Central Africa SC 25/2017. In that case the the Learned Judge explores various cases that have pronounced on this subject. It is abundantly clear that grounds of appeal that simply say that there was not enough evidence to convict are not adequate grounds. It is very unfortunate that many a litigant in these courts continue to compile grounds of appeal along those lines. It must be time up for such grounds.

A further point is that there seemed to be a failure to appreciate the essence of the charge and the required response and hence the grounds of appeal and arguments that did not succinctly deal with the relevant issues. If there was understanding then the charge was probably indefensible.

It has been said that appeals are not about the appeal court painstakingly looking for mistakes in the court aquo’s judgment with a view to overturn the decision. Further it has also been said that two courts may come up with different decisions on the same facts without either court being wrong. An appeal court must be slow in upsetting a finding of a court of first instance on the findings of fact. There must be serious

misdirection on the conclusion to the facts for an appeal court to interfer with the decision of the court of first hearing.

The question of when to interfer with a lower court’s decision has been in the courts for a long time. Gowora JA recently recapped on the subject in Delta Beverages v Sarah Kaluwe SC 6/2019 where the learned Judge says at page 11 of the cyclostyled judgment-

“A court of appeal is in general not at large to interfere with the decision (on issues) of a lower court or tribunal on issues of fact unless it finds that the lower court was guilty of a misdirection which amounts to irrationality”.

The learned Judge also referred to what is probably one of the leading cases in this jurisdiction Hama v National Railways of Zimbabwe 1996 (1) ZLR 664.

In Hama’s case supra. Korsah JA (as he then was) elaborates on irrationality at 670D thereof as follows-

“..an appeal Court will not interfer with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at such a conclusion.  Bitcon v Rosenberg 1936 AD 380 at 395-7; Secretary of State for Education and Science v Metropolitan Borough of Tameside [1976] 3 ALLER 665 (CA) at 671 E-H; CCSU v Minister for the Civil Service supra at 951 A-B; PF Zapu v Minister of Justice (2) 1985 (1) ZLR 305(5) at 326 E-G”.

It is a high standard indeed. But proof of a charge of misconduct is on a balance of probability. “Proof” for an appeal on findings of facts is high.

After making all these observations I turn to the case before me. It is clear that the decision of the hearing committee was proper. The charge was proved on a balance of probabilities. There is no need to interfer with the finding of guilty. The penalty is also in order.

In the result it is ordered that;

The appeal be and is hereby dismissed with costs.

Dube, Manikai & Hwacha	- Respondent’s Legal Practitioners