Old Mutual Property Zimbabwe (Private) Limited v Privilege Mavuka

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/498/16
HELD AT HARARE 21 JUNE 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/498/16

HELD AT HARARE 21 JUNE 2016				             CASE NO LC/H/68/16

& 19 AUGUST 2016

In the matter between:

OLD MUTUAL PROPERTY ZIMBABWE (PVT) LTD		            Appellant

And

PRIVILEGE MAVUKA						          Respondent

Before The Honourable Murasi, J

For Appellant			I Chagonda (Legal Practitioner)

For Respondent		O Marwa (Legal Practitioner)

MURASI J:

Respondent was employed by the appellant as a property manager.  Following allegations of misconduct, respondent was brought before a Disciplinary Committee which found him guilty and recommended his dismissal.

The matter ended up in arbitration and the arbitrator found in favour of the respondent thus reversing the decision of the Disciplinary Committee.  Appellant is aggrieved by this decision and has appealed to this court.

Appellant’s grounds of appeal are formulated as follows:

The honourable arbitrator misdirected himself on material facts when he held that there was no confirmation of the information alleged to have been disclosed to third parties by the respondent with what had actually been discussed in the confidential meeting.  This finding was made notwithstanding overwhelming evidence to the contrary clearly suggesting that what had been alleged to have been disclosed to third parties was in conformity with what had been discussed.

This finding was grossly unreasonable in its defiance of logic that no arbitrator applying his mind would have come to such a conclusion.

The arbitrator erred in law by concluding that what the respondent had been alleged to have done did not amount to divulging of confidential information.

The arbitrator erred on points of fact by submitting that the appellant’s witnesses contradicted each other and that they were not reliable and that they were determined to nail the respondent.  Such finding was made notwithstanding that there was absolutely no basis for making such finding and in any event, there was clear evidence to the contrary.  The finding was therefore grossly unreasonable that no arbitrator applying his mind correctly would have come to the conclusion arrived at by the arbitrator.

The arbitrator erred in law by ordering the reinstatement of the respondent

Mr Chagonda for appellant stated that he largely abided by the documents filed of

record.  He further stated as a background that appellant had held a confidential meeting in which staff matters were discussed.  He further submitted that the complainant in the Disciplinary Committee hearing had stated that the results that had been discussed in that meeting were those that were disclosed to the witnesses.  It was further submitted that because it was confidential information, it was to be disclosed to the concerned employees through the line managers.  Mr Chagonda argued that for the arbitrator to find that this was not confidential information was a clear misdirection on his part.  He stated that the evidence given by the witnesses showed that the information had emanated from the respondent who had not been part and parcel of that meeting.  Mr Chagonda  further argued that the finding by the arbitrator was not what had come out in evidence as there was no apparent contradiction as alleged.  He further submitted that the arbitrator was wrong in stating that appellant should have adduced evidence which showed that the respondent had indeed received the information alleged.  He stated that thus was not what the arbitrator was supposed to determine and what he was supposed to make a finding was whether the respondent had indeed disseminated the confidential information as alleged.  Mr Chagonda further averred that the law was not concerned with how the information was acquired but the divulging of the information thus acquired.  He lastly submitted that the arbitrator should not have interfered with the appellant’s discretion in dismissing the respondent.

Mr Marwa for the respondent, commenced by stating that appellant’s heads of argument had been filed out of time as they were supposed to have been filed by 29 February 2016 but were in fact filed on 5 April 2016.  On the merits, Mr Marwa stated that appellant was raising factual issues and not issues of law.  He submitted that there was no evidence given as to whether the information discussed at the confidential meeting was the information disclosed by the respondent.  He submitted that what appellant had gathered as information given by respondent was through rumour and respondent could not have lawfully been convicted and dismissed on the basis of rumour.  It was argued further that it had not been demonstrated that respondent had access to the information.

It is pertinent to consider the arbitrator’s findings in order to deal with the issues raised in the grounds of appeal.  The arbitrator made the following findings:

“Speaking about something that transpired where one was not a participant cannot be ‘divulging’ it is gossiping or rumour mongering.  For one to talk about ‘divulging’ the information in question must be correct in the sense that indeed someone confided it.”

What does the evidence show?  During the Disciplinary Committee hearing witness PROGRESS KAMONERE states as follows:

“She stated that she heard the respondent discussing what he overheard from a meeting that took place in the boardroom earlier in the day while he was having a meeting with a client in the small boardroom.”

Witness Nyaradzo Gabongwe stated thus:

“The witness in leading evidence explained that on 10 April 2005, between 3 pm

and 4 pm in the property office, the respondent stated that he overhead a discussion in the OMP main boardroom.”

The first issue is that the respondent	was on duty on the said date.  He is alleged to have been in an adjoining boardroom when he “overheard” the discussions in question.  He “unofficially” received this information.  Respondent does not deny this aspect of “receiving” the information.  The arbitrator finds that this was rumour or gossip.  Does this amount to rumour or gossip?  Respondent held the responsible position of property manager.  The clause under which he was charged was that he was prohibited from disclosing “any of Old Mutual’s information.”  Respondent had apparently eavesdropped and he knew he was not the correct person to have received this information.  Did the information amount to rumour and gossip?  I think not.  Respondent clearly knew that he had stumbled on confidential information which pertained to the performance of some employees.  Respondent went further to mention the names of the affected employees.  Does this still remain in the realm of rumour and gossip?  Hardly.  The information supplied by the respondent caused some employees to approach the management concerned about their own performances.  The management confirmed that indeed this issue had been discussed but would be communicated to the respective employees by their line managers.  This shows the seriousness with which the information was treated by the appellant.  This is the evidence that was contained in the minutes of the Disciplinary Committee hearing.  Was the arbitrator therefore correct in making the finding that he did that this was rumour and gossip.  The arbitrator cleared erred in this respect.

On the evidence given by the witnesses, the arbitrator makes the following finding:

“In the circumstances the evidence of the witnesses despite being contradicting is not reliable.  The whole picture crystallises into the complainant’s determination to have the claimant nailed up.  No reasonable evidence was led to prove the charge.  There is an aura of malice and vindictiveness by the complainant which is palpable from reading the minutes of the hearing.”

Indeed a reading of the minutes would lead to a different finding from that of the arbitrator.  The court did not find any of the evidence from the witnesses to be contradictory.  The fact that one witness heard information which was given whilst she was present does not amount to a contradiction when the other witness gives evidence of information received in the absence of the first witness.  It actually shows that there was no planning by the witnesses to give similar evidence.   AGNES MURAPE testified as follows:

“Given that she was in and out of the office, the witness said NYARADZO GABONGWE and PROGRESS KAMONERE were present but was not sure if GRACE MADONDO was in as well.”

Clearly the witness could not be expected to give evidence which was exactly similar to the evidence of witnesses who had been present throughout. This does not lead to contradictory evidence.  Indeed there is no evidence to show that the “complainant” was involved in the dissemination of this information.  It was the respondent who, on his own volition gave this information to the witnesses.  The complainant’s evidence was that this information that was discussed in the closed-door meeting.  In any event, this “divulging” of information was not a fabrication.  It is my view that the arbitrator erred in making, that finding.  The evidence clearly established that respondent was guilty of divulging this information.  This was information he had “overhead” whilst sitting in another boardroom.  It was information that that belonged to the appellant.  It was information which was confidential.  Respondent had not been authorised to disclose it.  Respondent had come into contact with the information in an unorthodox way.  However, given the respondent’s position in the company, he must have known that this was indeed confidential information.

I am of the view that the arbitrator should not have overturned the decision of the Disciplinary Committee in the circumstances.  Such a situation was aptly described by Lord MacMillan in Watt (or Thomas) v Thomas [1947] 1 ALL ER 582 9HL) at 590 B – D:

“The appellate court had before it only printed record of evidence.  Were that the whole evidence it might be said that the appellate judges were entitled and qualified to reach their own conclusion upon the case, it is only part of the evidence.  What is lacking is evidence of the demeanour of the witnesses, their condour or their partisanship and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial.  This assistance the trial judge possesses in reaching his conclusion but it is not available to the appellate court…  this is not an abrogation of the powers of a court of appeal on questions of fact.  The judgment of the trial judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone completely wrong.”

The observations made in the above cited case apply with equal force to the instant case.  The arbitrator failed to appreciate the nature of the evidence given in the Disciplinary Committee hearing.  The arbitrator failed to appreciate that the evidence proved that the respondent had “accessed” the information whilst sitting in an adjacent boardroom.  He was on duty.  It was not his duty to divulge the information.  The information was held by appellant to be confidential.  It was not for respondent to classify the information received.  When respondent divulged this information, it was clearly in breach of his contractual obligation to the appellant.  There must exist mutual trust between employer and employee that certain information should remain confidential and should not be divulged.  Such trust placed by an employer on an employee forms the basis of the relationship between them.  A breach of this duty goes to the root of the employment contract and the relationship between employer and the employee.  I am of the view that the respondent breached that trust.  A substantial wrong or miscarriage of justice would be occasioned by allowing the decision of the arbitrator to stand.

In the result, the court finds that the appeal is with merit and ought to be allowed.

The court makes the following order:

The appeal, being with merit, is allowed.

The arbitral award of honourable Masimire be and is here set aside.

The decision of the Disciplinary Committee finding the respondent guilty culminating in his dismissal, be and is hereby upheld.

Each party to bear its own costs.

Atherstone & Cook, appellant’s legal practitioners

Rubaya & Chatambudza Legal Practitioners, respondent’s legal practitioners