This
is an appeal against the whole decision of the Labour Court
confirming the dismissal of the appellant from the respondent's
employ.
Factual
Background
The
appellant was employed by the respondent as a Blood Procurement
Manager from October 2001 to April 2012 when he was dismissed.
Sometime in 2011, anonymous emails containing divisive and damning
allegations against certain staff members as well as his superior,
the Chief Executive Officer of the respondent, were circulated and
sent to various employees of the respondent. The respondent conducted
some investigations and concluded that the appellant was the author
of the anonymous e-mails.
Consequently,
in October 2011, the appellant was charged in terms of the “National
Blood Service Zimbabwe Code of Conduct” (sic), (“the Code”),
with the following acts of misconduct:
1.
Section 3(c)(vi): Writing and publishing anonymous letters which
damaged the reputation of his superior or colleague.
2.
Section 4(a)(ii): Deliberately giving untrue and misleading
information about his superior concerning his professional behavior
by alleging that he distributed diseased blood.
3.
Section 4(a)(vii): Accusing his superior of nepotism in the anonymous
letters he published.
A
written invitation to the appellant to respond to the allegations met
no response. On 16 November 2011 he was suspended from duty with no
salary.
A
disciplinary hearing was then conducted on 13 April 2012. Despite
having been properly served with the notice of hearing, the appellant
did not attend the hearing.
After
making its deliberations on the evidence and papers that were before
it, the disciplinary committee found the appellant guilty of all 3
charges. The appellant was invited to make submissions in mitigation
before the imposition of a penalty. The invitation met no response.
Eventually, on 26 April 2012, the appellant was advised of the
penalty imposed on him. On the first charge a final written warning
was found to be the appropriate penalty. On the second charge the
penalty was dismissal. On the third charge the penalty was also
dismissal.
On
the 30th
of April 2012, the appellant lodged an internal appeal to the Finance
and Administration Manager in terms of the Code. The Manager
dismissed the appeal, in a reasoned ruling, for lack of merit.
Aggrieved
thereby, and in terms of the same Code, the appellant appealed to the
Board Chairman. The appellant then also requested the Board Chairman
to recuse himself from the matter. The basis of the application for
recusal was that the Board Chairman had previously been involved in
the matter leading up to the appellant being charged and subsequently
dismissed. The Board Chairman recused himself from the matter and
indicated that “(T)he appeal would be referred to the Labour Court
in accordance with the provisions of the Code of Conduct.” However,
this did not happen.
In
February 2013, the appellant eventually referred the matter to a
Labour Officer in terms of the Labour Act. The parties did not settle
at conciliation, and, subsequently, the matter was referred to
arbitration.
On
30 July 2013, the Arbitrator ordered the respondent to constitute an
Appeals Committee to hear and determine the appellant's appeal
against the decision of the Finance and Administration Manager which
had confirmed the appellant's dismissal from employment as decided
by the disciplinary committee.
The
Appeals Committee was set up, and, on 5 August 2013, it heard the
appellant's appeal and came to the conclusion that the appellant's
appeal lacked merit and it therefore dismissed it. It was against
that decision of the Appeals Committee that the appellant noted an
appeal to the court a
quo.
The
appellant raised seven grounds of appeal in the court a
quo.
Four of the grounds related to the composition and appointment of the
disciplinary committee. Although there was no Appeals Officer
involved at any stage in the matter, curiously, one of the
appellant's grounds of appeal was couched in the following terms:
“The
Appeals Committee erred at law and misdirected itself in upholding
the decision of the Appeals Officer and Disciplinary Committee
despite clear evidence of bias in both the Appeals Officer and the
Disciplinary Committee.” (sic)
From
a reading of the papers, it can safely be assumed that the reference
to an “Appeals Officer” ought in fact to be a reference to the
Appeals Committee. This is so because it is the Appeals Committee
which heard the appellant's appeal against the decision of the
Finance and Administration Manager to whom he had appealed against
the decision of the disciplinary committee.
The
appellant also challenged the determination made by the Appeals
Committee which upheld the decision of the disciplinary committee to
the effect that he was not entitled to legal representation in terms
of the Code of Conduct.
In
the rest of his grounds of appeal, the appellant challenged the
finding that the information which was contained in the emails was
untrue, erroneous or misleading and that it had the effect of
damaging his superior's or anyone's reputation.
He
also sought to challenge the interpretation given by the disciplinary
committee to section 4(a)(vii) of the Code of Conduct which
interpretation was confirmed by the Appeals Committee thereby leading
to the upholding of his conviction.
In
terms of the Code, the following is a dismissible misconduct:
“Any
other act of prejudice towards the organisation, fellow members of
staff, or members of the public, such as racism, tribalism, nepotism,
sexism and regionalism.”
The
appellant's contention in this regard is that on a proper
interpretation of the provision he ought not to have been charged.
Rather, it is the person that he accused of practicing nepotism that
ought to have been charged with the misconduct….,.
The
court a
quo
found that the appellant had admitted to publishing the anonymous
emails, and, in so doing, meant to damage the name of a superior or
colleague. The court further held that the interpretation that had
been attributed to section 4(a)(vii) was correct as it was clear that
the listed items in the provision were not exhaustive. The court thus
concluded that the appellant's appeal lacked merit and dismissed
it.
PROCEEDINGS
BEFORE THIS COURT
The
appellant was aggrieved by these findings and conclusion of the court
a
quo,
hence the present appeal.
The
appellant's grounds of appeal are crafted as follows:
1.
The court a
quo
seriously misdirected itself on the facts when it concluded that “the
challenged grounds for review relate to the composition of the
Appeals
Committee.”
This amounts to a misdirection in law in that it led the court to
follow a wrong path and reach a decision which is bad at law. (sic)
2.
The court a
quo
misdirected itself at law when it focused on the improper appointment
of the disciplinary committee, per se, rather than determining the
substantive correctness of the decision of the Appeals Committee
whose decision was being appealed against.
3.
The court a
quo
misdirected itself in dismissing grounds of appeal one, two and three
as grounds for review despite the clear and unambiguous language to
the effect that it was the decision of the Appeals Committee which
was being challenged.
4.
The court a
quo
grossly misdirected itself when it ruled that “it
is not in issue that the appellant was the author of the emails. This
was admitted...,.”
Nothing in the submissions placed before her supported this
conclusion. This error of fact is so fundamental that it amounts to a
misdirection at law. (sic)
5.
The court a
quo
grossly erred and misdirected itself when it concluded that the
appellant ought to have established the truthfulness of what he
allegedly published. This would be tantamount to turning the
established principle that “he
who alleges must prove”
on its head. It is a misdirection at law. (sic)
6.
The court a
quo
grossly erred and misdirected itself in its interpretation of section
4(a)(vii) of the Code of Conduct and failing to appreciate that the
charge would only stick if the alleged offender is the one committing
the act of prejudice.
The
appellant's prayer is for his appeal to be allowed and for his
reinstatement without loss of salary and benefits with an alternative
of payment of damages.
In
dealing with the appeal before it, the court a
quo
struck out some of the appellant's grounds of appeal on the basis
that they were grounds for review and not grounds of appeal. The
grounds challenged the composition and appointment of the committee
and they also alleged bias.
It
is the striking out of those grounds which the appellant is now
challenging in his grounds of appeal numbers 1, 2 and 3.
It
is common cause that the appellant did not attend the disciplinary
hearing. For that reason, his decision to challenge the composition
and appointment of the committee at the appeal stage was no longer
available to him. Such objections could only have been raised at the
disciplinary hearing which he opted not to attend.
The
principle was explained in clear terms in the case of Moyo
v Rural Electrification Agency
SC04-14:
“In
our view, the appellant, by deliberately absenting himself without
leave from the hearing, waived his right to challenge the conduct of
the disciplinary proceedings. He had the option, which he did not
exercise, of seeking a postponement since he knew that he would not
be available on the date of the hearing. In these circumstances, we
do not feel that the failure by the respondent to strictly comply
with the Regulations operated to vitiate the disciplinary
proceedings.”
The
effect therefore is that the issues raised by grounds 1, 2 and 3 fell
away the moment the appellant absented himself from the disciplinary
proceedings. At the hearing of this appeal, the appellant conceded
this point and abandoned the said grounds 1, 2 and 3. The concession
was properly made.
ISSUES
RAISED FOR DETERMINATION
The
remaining grounds of appeal raise two issues, that is;
(i)
Whether or not the court a
quo
made findings supported by the evidence on record; and
(ii)
Whether or not the court a
quo
wrongly interpreted section 4(a)(vii) of the respondent's Code of
Conduct.
I
deal with each of these in turn.
1.
Whether or not the court a
quo
made findings supported by evidence on record
The
court a
quo
found that it was not in issue that the appellant authored the
e-mails because he had admitted doing so.
The
appellant contends that nowhere in the record did he admit to having
published the anonymous emails. He contends that all that is on
record are allegations by the respondent that the anonymous e-mails
were authored by him. Furthermore, that he had denied the allegations
throughout. It was also argued that nothing proving the allegations
was placed before the court a
quo
except for a bare averment by the respondent in its papers that, on
22 November 2011, the appellant deposed to an affidavit, which
affidavit was never placed before the court, admitting to authoring
the emails.
However,
a perusal of the record will show why the finding of the court a
quo
is
supported by the evidence.
At
page 150 of the record is a document marked as “Appendix 22” and
headed “Charges proffered against Mr. Emmanuel Masvikeni as per the
Code of Conduct of the National Blood Service Zimbabwe”. It lists
as evidence of the misconduct in terms of section 3(c)(vi) emails
dated 3 and 7 December 2010 which were sent at 11:52 and 15:27,
respectively, to undisclosed recipients. It also lists e-mails dated
31 July 2011 sent at 22:46 to undisclosed recipients and it also
states that: “(I)n his affidavit dated 22 November 2011, Mr
Masvikeni admits to sending the anonymous emails.” The affidavit is
not part of the record before this Court thereby limiting the extent
to which the reference to it could assist in the determination of
this matter.
More
importantly though, on 5 August 2013, the following questions were
asked by the Board Chairman (TC) and answers thereto were given by
the appellant's legal practitioner (MN) at the Appeals Committee
hearing:
“TC:
Can I continue to ask? We were talking about the anonymous emails and
letters. You said you were to agree with you on the issues. (sic) He
is agreeing that he circulated the emails?
MN:
Yes.
TC:
Ok, and with all its contents. It was not tampered.
MN:
We don't know the information that was contained. Those emails were
never availed to us.”…,.
Further,
the following exchanges also took place between the appellant's
legal practitioner, MN and Board members, JN and NM:
“TC:
I want to work with the numbers there. Can I have the email he sent
talking about the release of blood. The circulation of the anonymous
mail which talks of the release of blood. (sic)
NM:
NBSZ Bulawayo branch sold an estimated 200 units of blood…,.
NM:
Well, I can tell you that from the other matter that I have for him
he has clearly distanced himself from that particular email.
JN:
Mr Chairman, I am really confused. At one time you saying he did say
that there was…, now you are saying he is distancing himself from
this email.
MN:
He never mentioned quantities in his correspondence so whoever put
the quantities is something different. (sic)
JN:
You are querying the quantity and not the contents?”
Subsequently,
the following exchange ensued:
“TC:
Any other questions? I was putting down my questions. I just want to
find out so that when we make a decision we have enough complete
information. Does he agree he is the author of emails? (sic)
MN:
There are some contents that we are disputing honestly.
NM:
Did he circulate some emails?
MN:
He did circulate some emails but there are others that he did not
circulate he is alleged. You know what Mr Chairman the difficulty we
have is if we give the blanket an unqualified response (sic) you may
interpret it otherwise we need to qualify our response. Specifically
he never mentioned the quantities…,.
NM:
Does he have the emails he circulated? So that we can at least have
the basis of saying these are the ones I circulated and these I did
not.
MN:
Unfortunately we do not have the emails. The other computer crashed.
Some of the emails were wanted by these guys when they instituted
some mysterious criminal prosecution so his two laptops are actually
captured as exhibits as we speak right now. There is a possibility
that maybe or maybe not they may be on the hard drive of those
captured computers. …,.
MN:…,.
What we are saying is that there are some infractions into his emails
some people were employed to hack into his emails so he had to clean
up his email accounts and discontinue some of them.
TC:
Who were employed?
MN:
By people whose names we are going to reserve.”
Without
quoting the whole text of the ensuing exchanges, suffice to quote the
following answer given by the appellant's legal representative to a
question from a Board member:
“…,
all these acts of misconduct he was being victimised because he
raised a red flag and the audit report confirmed the issues.” (sic)
In
light of this exchange, on a balance of probabilities, the appellant
admitted, through his legal practitioner, that he is the one who
published the emails in issue. He seems to prevaricate and avoid
giving simple or straight forward answers. He also purports to take
issue with some of the content of the emails and seeks to create an
impression that his email accounts were hacked and the hackers added
some content relating to quantities, into emails that he authored,
which content was not authored by him thereby producing the
objectionable overall content. At the same time the appellant also
seems to justify his authoring of the emails on the basis that the
content thereof or the issues raised therein are after all true.
In
these circumstances, the finding of the court
a
quo
that the appellant admitted to authoring the emails is a reasonable
finding in the circumstances. This is particularly so when
consideration is given to the fact that the applicable standard of
proof is “a balance of probabilities.”
The
court a
quo
thus
made findings that are supported by the evidence on record.
2.
Whether or not the court a
quo
wrongly interpreted section 4(a)(vii) of the respondent's Code of
Conduct
Section
4(a)(vii) of the National Blood Service Zimbabwe Code of Conduct
reads as follows;
“4
DISHONESTY, THEFT, FRAUD AND RELATED OFFENCES
(a)
Dishonesty
(vii)
Any other act of prejudice towards the organisation, fellow members
of staff, or members of the public, such as racism, tribalism,
nepotism, sexism, regionalism.”
It
also states that the penalty for a first offence is dismissal.
The
court a
quo
held at page 3 of its judgment:
“It
is not in issue whether or not the appellant was the author of the
emails. This was admitted. What is in issue is whether or not the
appellant, in publishing the emails, meant or intended to damage the
reputation of his superior or colleague, whether or not the
information was untrue, erroneous or misleading, and, finally, what
the correct meaning of section 4(a)(vii) was and whether or not the
Appeals
Committee
misdirected itself by failing to appreciate the true meaning of the
section.”
The
court a
quo
continued, at page 5 of its judgement, as follows:
“The
section refers to any other act or conduct such as nepotism, sexism,
etc. The examples given such as nepotism and sexism cannot be taken
to have been exhaustive. A literal reading of the section only shows
that the items listed were only examples and not meant to be
exhaustive. The Appeals
Committee
did not err.”
And
further:
“On
the merits of this case..., the Appeals
Committee
did not err in finding that the appellant had published information
that he failed to show was correct and truthful. He must have meant
to damage the name of either a superior or a colleague. He was
therefore guilty on the merits of the case.”
The
appellant's contention is that this interpretation of the provision
by the court a
quo
was wrong in that the court failed to appreciate that if the literal
rule of interpretation was applied, the charge would only be valid if
the appellant was the one accused of prejudicial conduct. In casu,
the appellant contends that he was rather being charged with the
misconduct of accusing his superior of practising nepotism. He
contends that that was a result of an improper interpretation of the
section. His conduct, in his view, is above board and did not justify
the laying of the charge against him as he was not the one practising
nepotism.
The
respondent however argues that the manner in which section 4(a)(vii)
is crafted cannot be deemed to be exhaustive because prejudicial acts
are not limited to those that are specifically mentioned. Any other
acts which can be shown to be prejudicial also fall under the
provision.
A
close reading of the provision shows that it incorporates the
misconduct that the appellant was charged with. The use of the words
'any other act of prejudice' and the words 'such as', is an
indication that the prejudicial acts which any person may be charged
with under the provision are not limited to the ones that are
specifically mentioned. Once this is accepted, the conduct of the
appellant, in publishing untrue and misleading material meant to
damage the name of the Chief Executive Officer, qualifies as “any
other act” which is prejudicial to a fellow member of staff. The
section proscribes any
other act
of prejudice. The appellant's conduct does fall into this category.
It
is for the above reasons that I find that the interpretation given to
the provision by the court a
quo
was correct.
Accordingly,
I hold that this appeal lacks merit and must be dismissed….,.
Accordingly,
it is ordered that:
The
appeal be and is hereby dismissed with costs.
