Mirriam Ratisai v Old Mutual Life Assurance Pvt Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/210/2020
HARARE, 23 JULY, 2020
CASE NO. LC/H/210/19
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/210/2020

HARARE, 23 JULY, 2020			     CASE NO. LC/H/210/19

AND 25 SEPTEMBER, 2020

In the matter between:

MIRRIAM RATISAI							APPELLANT

Versus

OLD MUTUAL LIFE ASSURANCE PVT LTD 				RESPONDENT

Before The Honourable Kachambwa J;

For Appellant:				Z. Majena, Trade Unionist

For Respondent:				A. K. Maguchu, Legal Practitioners

KACHAMBWA J:

This is an appeal against the decision of the appeals officer which decision upheld the decision of the hearing officer. The appellant was charged and convicted in terms of section 15.9.1 of the Old Mutual Code of Conduct. It reads-

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

The charge further specified Clause 8(1) of the employment contract 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 way 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 or her duties and to exercise appropriate care and skill”.

The allegations of the charge were that-

“1.	Together with her colleagues in (the) workers’ committee she misrepresented to the other employees that they were wanted in the canteen by the employer for an address when in fact the employer did not want to address the employees at all.

2.	The appellant and her colleagues had misrepresented to one Costa Nzombe that the employees requested to be addressed and were gathering in the canteen waiting to be so addressed by management/ the employer when infact the employees had not requested to be addressed and had not gathered in the canteen to meet the request to be addressed. The appellant and her colleagues were infact said to have told either side that the other side had already taken stapes for that address.

3.	The appellant in common purpose with her colleagues had conducted a sit in in the office of Mr Nzombe and latter in that of the Chief Operations Officer demanding that management addresses the employees in the canteen. The sit in was escalated to the Human Capital Executive. As the colleagues staged the sit in, the appellant was said to be in the canteen mobilizing the employees to stay put until addressed by management.

4.	The collective job action resulted in IHarare news publishing a story that was detrimental & harmful to the employer Old Mutual. The information published was factually incorrect”.

The appellant was found guilty and a penalty of dismissal was imposed. The internal appeal failed hence the present appeal. The grounds of appeal are-

“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 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 she participated in an unlawful collective job action.

g.	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 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.

h.	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 infact 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”.

The respondent raised points in limine challenging that ground 2 was incompetent as an appeal hearing does not make findings of facts. That point was upheld. Ground No.4 was also challenged in that it was generalized. It fails to identify the charges that are the subject of the challenge and which material element of the charge lacked evidence. This point was partially upheld. The parties were referred to the case of Dr Nobert Kunonga v The Church of the Province of Central Africa SC 25/2017 wherein the issue of clear and concise grounds of appeal is thoroughly revisited by the Honourable Justice Garwe. The case refers to a number of previous cases on the same subject and re-emphasises that generalized grounds of appeal that simply say that there was not enough evidence are not acceptable.

The respondent also raised a point in limine to the effect that the first part of ground No.3 was incorrect as there was no need at law for a strike to be declared illegal before an employer can take action, against an employee. That point was also upheld. Ground No. 4 was also challenged in that it was generalized. “It fails to identify the charges that are the subject of the challenge and which material element of the charge lacked evidence”. This point was partially upheld. The appeal on penalty was left standing for consideration after hearing the parties.

The Court, mero motu, raised the question on whether ground No. 1 was appropriate. It asked as to what the ground sought to address. It asked as to whether that ground was not vague, not clear and concise as required in terms of Form LC2 of the Labour Court Rules. The appellant could not explain the ground without having to refer to evidence in the record. On its own the ground was meaningless. It did not point to any remedy. It did not say which portion of the verdict was sought to be addressed. Consequently the ground was struck off.

On ground of appeal No. 3 the appellant explained that infact it was three grounds in one. She conceded that the first portion of the ground, the part referring to declaration of a strike was infact bad at law. She insisted on the other two. The appeal proceeded on those two other grounds.

The Memo by Management

The appellant said that the memo by management waived the employer’s right to charge everyone of the illegal collective job action. This included the appellant who infact was in the canteen with the rest of the workers. On the other hand the respondent argued that that could not cover the appellant because of the lies about the address by management. Appellant had caused the job action by lying to both parties. The respondent was not aware of the lie when the memo was written. Therefore she could not be exonerated as such. When the facts of the collective job action became known the employer reserved the right to charge her. The South African case of BMW SA v Van der Valdt 1999 ZALAC 28 was referred as authority that appellant should not be allowed to escape as that would be to allow her to benefit on her deceit. It would reward deceit or fraud at the work place.

The appellant also argued that the employer should be held to the memo because of “caveat subscriptor”.

It appears to me that waiver could only be for those who were misled to think that they were required to gather for an address by management. To include the very people who had caused the mayhem would be unfair and unjust in view of the fact that the memo was written before the appellant’s role was known. Accordingly, there could not be a waiver of her. The ground of appeal fails.

THE APPELLANT WAS FULFILLING HER MANDATE AS A WORKERS’ REPRESENTATIVE CHARGING HER IS VICTIMISATION OF THE WORKERS COMMITTEE

The appellant argued that the Appeals officer erred by not accepting / realizing that the appellant was only doing her work as a member of the workers’ committee. As such a member she was entitled to speak on behalf of the workers.

The Respondent’s position was that the appellant had gone outside her rights by

lying and by conducting the sit in. That these are not covered by the right of the workers’ committee, that the committee had to play its role within the confines of the law and the contract of employment. Workers’ representatives remain employees and whatever they do it must be done within the rules. That the employee was being charged for breaching her contract of employment and the code of conduct.

Now, this issue of employees breaching the law while going about their roles as workers’ committee is not new. The courts have repeatedly pointed out that a workers’ committee member remains an employee of the company. To that extent he/she has to follow the rules. Therefore in the present case the appellant should appreciate that she was being charged of breaching her contract of employment by lying and by conducting a sit in. A sit in is an unlawful collective job action. If these were proved she would not hide behind the workers’ committee.

In the case of Zimbabwe Electricity Supply Authority v Moses Mare SC 43/2005. The late Chief Justice Chidyausiku says that a member of the workers’ committee must follow the law. The employee remains an employee and must follow due process in defending the rights of the workers. At page 4 of the cyclostyled judgment he says –

“…In my view members of the Workers Committee are not a law unto themselves…………..In defending the rights of the workers, a member of the Workers’ Committee is enjoined to observe due process”.

In the present case the appellant cannot hide behind her workers’ committee membership. Once it is accepted that there were the lies and that there was an illegal job action caused by her she cannot hide. The defence cannot stand. It is not available to her.

In the result the appeal on conviction must fail. It must be dismissed.

Coming to the penalty the appellant did not address on the penalty as a stand- alone point. It was said that because the conviction must be set aside so should the penalty. Such an address departed from the ground which otherwise said that the penalty was too punitive. No circumstances were argued to show that it was too punitive. Be that as it may it is an established position that a penalty is discretionary to the employer. It can only be set aside if the discretion has been abused. There is no argument for upsetting it. Mavhangira JA reaffirms the principle on sentences in the case Alpha Madzima v Marange Resources (Private) Limited SC 12/2018 at pages 9-10 of the cyclostyled judgment,

“It is settled in our law that an appellate court must be slow in interfering with the discretion by a lower court. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle. If it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant considerations, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always it has the material for so doing”.

In the present case no case was made for interfering with the penalty of the lower court. Accordingly, there will not be such interference. In the result the appeal on penalty also fails.

Therefore, the result of this case is that the appeal fails. It is accordingly ordered that;

1.	The appeal be and is hereby dismissed.

2.	The respondent bears the costs.

Dube, Manikai & Hwacha - 	Respondent’s Legal Practitioners