GWAUNZA
DCJ:
This
is an appeal against the whole judgment of the Labour Court, which
upheld the decision of the appeals board of the National Employment
Council Banking ("NEC") to the effect that the charge
preferred against the Respondent was inappropriate and that he had
been unfairly dismissed.
FACTUAL
BACKGROUND
The
Respondent was employed by the Appellant as an administrative clerk
and was also the chairperson of the workers committee. The management
of the Appellant and the workers' committee had been in a dispute
over salary increments of the employees for some time. In August 2010
the dispute was referred to a conciliator who in September 2010
issued a Certificate of No Settlement.
Thereafter,
between 8 and 15 September 2010, the Respondent sent out emails to
his colleagues disclosing, through actual salary figures, the
percentage adjustments that had been effected to the managerial
employees' salaries. He also stated that the workers' committee had
decided to embark on a collective job action to press their
interests. The emails were sent through the Appellant 's IT facility
to more than ten recipients at a time.
On
23 September 2010 the Respondent was charged with misconduct for
contravening section 11(1) of S.I. 273/2000 (“the Code"), it
being alleged that he had acted in a manner which was inconsistent
with the fulfilment of the express or implied conditions of his
contract.
The
basis of the charge was that the Respondent had generated offensive
emails to a group of staff members against the bank's standing policy
contained in its Information Security Management Policy Document (“IT
Policy Document”), particularly sections
4.4
and 4.4.1.
It
was also alleged that the contents of the emails were inflammatory
and contained confidential information. Further that the responses
that the emails generated from staff members who received them ended
up congesting the network, thus interrupting normal business
communication in the bank.
A
disciplinary hearing was held in October 2010.
The
Respondent was found guilty of the misconduct with which he was
charged and dismissed from his employment. He appealed to the
Grievance and Disciplinary Committee whose proceedings ended in a
deadlock. The matter was then referred to a second Grievance and
Disciplinary Committee which also ended in a stalemate.
Thereafter,
the matter was placed before the NEC Appeals Board, which held that
the conduct complained of did not constitute an offence in terms of
the charge that had been preferred against the Respondent.
Accordingly, it held that the charge preferred against the Respondent
was inappropriate. It stated further that although the Respondent
exceeded the limit of the number of emails allowed by the
Respondent's IT Policy Document, thereby breaching the Appellant 's
standing policy, the emails were neither inflammatory nor offensive,
and that no confidentiality had been breached.
It
also stressed that the Respondent's conduct was in pursuit of a right
to represent workers and that the emails were meant to call for
collective job action or at least put pressure on the Appellant to
accede to the workers' wage demands. Consequently, the NEC Appeals
Board ordered that the Respondent be reinstated to his former
employment without loss of salary or benefits.
Significantly,
it did not order an alternative of damages in
lieu
of reinstatement in terms of section 89(2)(c) of the Labour Act [Chapter 28:01].
Aggrieved
by the decision of the NEC Appeals Board, the Appellant appealed to
the Labour Court. It averred that the appeals board erred in failing
to find that a Category D offence had been committed, that the
penalty of dismissal was appropriate in the circumstances and that
alternatively, and in any event, it erred in failing to afford to the
Appellant any alternative to reinstatement.
Per
contra,
the Respondent submitted that the Appellant had failed to establish
the conduct that allegedly constituted the offence in question. He
also contended that the NEC Appeals Board was not mandated to give an
alternative for damages in
lieu
of reinstatement. Further, that it was not bound by section
89(2)(c) of the Act
because that provision only relates to the Labour Court in the
exercise of its functions and not internal structures such as the NEC
Appeals Board.
The
court a
quo
took the view that as the employees were considering going on strike
over the wage dispute, the Respondent acted within the bounds of his
official duties as the chairman of the workers committee to
communicate developments pertaining to the intended strike, to his
fellow employees. The court however stated that although the
Respondent may have gone 'overboard' by breaching the Appellant 's
Information Security Policy, the breach did not warrant a dismissal.
Consequently,
the Appellant 's appeal was dismissed.
The
Appellant was aggrieved by the decision of the court a
quo
and appealed to this Court on the following grounds viz: -
1.
Having come to the conclusion that the Respondent's conduct was in
breach of Appellant 's IT policy in that he had sent emails to more
than the maximum permissible number of recipients at a time, the
court a
quo
erred in concluding that such conduct did not amount to a dismissable
misconduct;
2.
The court a
quo
erred in failing to appreciate that the Respondent's conduct in
violating the standing regulation was a breach of his privileges as
the representative of the workers' committee and could therefore not
be excused;
3.
Having come to the faulty conclusion that Respondent was to be
reinstated, the court a
quo
erred in not providing for an alternative of damages as is required
under the statute.
I
will now consider the grounds of appeal in light of the evidence
before the court.
Whether
the court a
quo
erred in concluding that the misconduct of sending emails to more
than the maximum permissible number of recipients at a time, did not
amount to dismissable misconduct?
It
is pertinent in order to determine this issue, to consider the
charges preferred against the Respondent. He was charged with
contravening section 11(1) of S.1 273/2000 namely:
"Any
serious act, conduct or omission inconsistent with the fulfilment of
the express or implied conditions of his contract where such is not
provided for under Category 'A', 'B' or 'C'."
The
particulars of the charge were stated as follows:-
"Between
8 and 15 September 2010, you generated some offensive emails to a
group of staff members against the bank's standing policy on
Information Security Management Policy document section
4.4
and 4.4.1. Besides the contents of the email being inflammatory and
confidential, the responses you asked from staff members ended up
congesting the network affecting normal business communication in the
process."
The
first ground of appeal addresses the finding of the NEC Appeals
Board, expressed thus in its judgment:-
"The
Appellant obviously exceeded the limit of number of recipients
allowed by the bank IT policy. The limit was 10 people per email."
This
finding was upheld by the Labour Court which described the
Respondent's conduct in this respect as amounting to him having "gone
overboard by breaching (the) Respondent's standing policy."
Counsel
for the Appellant took the view that having found that the Respondent
exceeded the maximum number of 10 emails at a go, the NEC Appeals
Board and the court a quo erred in not finding him guilty.
Counsel
for the Respondent, on the other hand submitted that the particulars
of the charge did not speak to exceeding the permitted number of
emails to be sent at a time. Accordingly, he contends further, the
Respondent could not have been found guilty of a charge that had not
been preferred against him.
In
response, it was the Appellant 's submission that charges are crafted
by lay persons and not lawyers. To this end, he contended that the
Respondent ought not to be spared a conviction on the basis of what
was in effect a technicality, given that labour matters generally
ought not to be determined on the basis of technicalities.
I
am persuaded by the Respondent's submissions.
He
clearly was not charged with violating any standing policy forbidding
the dispatch of more than 10 emails at a time using the Appellant 's
server. As correctly contended for him, the Appellant 's IT Policy
Document specifically provides for this infraction in its clause
4.4.5.
A
closer look at the relevant portions of the clauses which the
Respondent was accused of breaching, that is 4.4 and 4.4.1 is
instructive.
Clause
4.4 proscribes the accessing or distribution of inappropriate or
offensive material which may harm the reputation of ZB Financial
Holdings Ltd "both internally and externally.”
Clause
4.4.1 underlines the fact that its communications systems are for
business purposes only, and states that any employee found abusing
such facilities would be subjected to disciplinary action in
accordance with the applicable code of conduct.
These
provisions, and the charges based on their alleged violation by the
Respondent, clearly do not speak to the specific issue of dispatching
more than 10 emails at a time.
While
it may conceivably be argued that sending more than 10 emails at a
time amounts to abuse of the Appellant 's electronic communication
system, the fact that the latter saw it fit to remove this particular
conduct from the ambit of abuse in general, in my view evinces the
intention to keep the two offenses separate and distinct.
Clearly
therefore the NEC Appeals Board determined this aspect of the dispute
on the basis of a matter not properly before it.
The
Respondent could not be found guilty of sending an email to more than
10 people at a time as that was not the charge that had been
preferred against him, nor did it form the particulars of the charge
the Respondent was called upon to answer.
This
finding stands notwithstanding that the Respondent may, and appears
to have, indeed acted contrary to the instruction as provided under
4.4.5 of the Information Security Policy.
That
however was not the charge that he was facing. It was therefore not
open to the NEC Appeals Board to substitute the charge put to the
Respondent with another charge. The board therefore misdirected
itself.
In
its turn the Labour Court, by upholding the same finding by the
Appeals Board, also fell into error.
The
law is clear that it is not open to the court or a tribunal to
substitute a charge laid against an employee with another one and
proceed to make a determination based thereon.
There
is authority that places this type of action outside the realm of
what may be termed a technicality on the basis of which a labour
matter should not be determined.
The
remarks of the learned judge in Zimasco
(Pvt) Ltd v Chizema
07-SC-038-2007 (2) ZLR 314 (S) are apposite.
In
that case, the court had occasion to deal with the question as to
whether the failure by the court to alter a charge amounted to
deciding the matter on a legal technicality.
It
held as follows at para 10 and at 317A-C;
"It
should be noted that it clearly was not the responsibility of the
Labour Court to 'amend the charge sheet' in this matter by
substituting the charge preferred against the Respondent with another
one. The
court is not there to formulate charges or cases for litigants.
In cases of this nature the court's brief is to determine, on the
basis of evidence placed before it, whether or not a case has been
proved against the Respondent." (my emphasis).
The
same point was stressed in Nyarumbu
v Sandvik Mining & Construction Zimbabwe (Pvt) Ltd 13-SC-031 at
para 14 and 2019
(2) ZLR 10 (S)
where the court stated as follows at 14F-H:-
"It
is axiomatic, in criminal as well as disciplinary proceedings that a
person cannot be found guilty of an offence that has not been
preferred against him, unless that offence is a competent verdict on
the offence originally charged.
The
reason for this is obvious, viz.
The
person accused must be made aware of the case against him in order to
enable him to effectively prepare his defence. In this context,
notwithstanding the provisions of section 89(2)(a)(ii) of the Labour
Act, the Labour Court cannot, mero motu, substitute its own charge or
make a finding of guilt on an entirely different offence. Any such
action would constitute a blatant miscarriage of justice."
(emphasis added)
The
above remarks are instructive in this matter, and by parity of
reasoning, apply equally to a case where one is acquitted of an
offence with which they were not charged.
The
decision of the court a
quo
that the Appellant could not be dismissed for misconduct that in fact
did not form the basis of the charge levelled against him is
therefore of no force or effect.
It
follows from the foregoing that the Appellant 's first ground of
appeal lacks merit on two fronts:
(i)
Firstly, it seeks to sanitise the improper substitution by the court
a
quo
of the charges that the Appellant brought against the Respondent with
a new charge.
(ii)
Secondly the ground of appeal purports to impugn a decision of the
court a
quo
that, as I have determined, was improper and of no force or effect.
The
first ground of appeal is accordingly dismissed.
Whether
the court a
quo
erred in failing to appreciate that the Respondent's conduct in
violating the standing regulations was a breach of his privileges as
the representative of the workers' committee and could therefore not
be excused
Counsel
for the Appellant correctly does not dispute that the Respondent, as
chairman of the Workers' Committee, had a right to champion the cause
of the workers by, among other means, communicating with them through
use of requisite media. Nothing therefore, turns on the Respondent's
citation of various statutory and constitutional provisions that
protect and emphasise the importance of workers' rights being
championed by and through their chosen representatives.
Counsel
for the Appellant contends however, that in exercising this
entitlement, the Respondent did not have the right to breach the law,
in this case the standing policy in question.
There
is merit in this contention.
The
right to champion workers' rights is in my view not exercised in a
vacuum, as it were, but should be exercised within the confines of
the law as dictated, in this case, by the relevant code of conduct.
This would ensure that the delicate balance between the competing
interests of the employer and those of the workers, through their
representatives, is maintained.
It
falls to reason therefore that the Respondent would not be able to
hide behind his position as the chairperson of the workers' committee
should the conduct alleged against him be proved.
In
upholding the NEC appeal's board ruling on this point, the court a
quo
took the view that the Respondent did not abuse the Appellant 's
facilities for personal gain but did so because he had a right,
indeed a duty, to communicate to fellow employees the developments on
the wage dispute.
Accordingly,
his actions, albeit violating standing instructions, did not merit
the harsh penalty of dismissal. The court found no fault with the
Respondent's use of the Appellant 's email facility, stating that he
had in the past used the same medium of communication.
Accordingly,
in the court a quo's
view, the Respondent's conduct as alleged, was proper.
The
view taken by the court a quo
does
not find support in the law, however.
In
Chidembo
v Bindura Nickel Corporation
2015
(2) ZLR 25 (S),
an employee who had disclosed confidential information sought to
argue that although the information had been unlawfully obtained, the
disclosure was lawful as he was the chairperson of the Workers'
Committee.
The
court in rejecting this submission reasoned as follows at 29G-30A:-
“The
disclosure of confidential information without the requisite
authority of the employer, remained an unlawful act in terms of the
Respondent's code. The fact that the Appellant committed the
misconduct while performing his role as the worker's committee
chairperson is of no moment. This is because his status as a workers'
committee chairperson did not turn what was unlawful, into a lawful
act. It became unlawful the moment he disclosed the information
without the authority of the Respondent. An employer is perfectly
within its right to put in place measures that will protect
confidential and sensitive information relating to its employees and
operations, against unlawful disclosure, Employee salary scales fall
into this category of information. Given that the code of conduct in
casu expressly provides that it is only the employer who can
authorise any disclosure by any employee, of such information, the
words of Chidyausiku CJ in the case of Zimbabwe Electricity Supply
Authority v Moses Mare 05-SC-043 SC43/05, are apposite:
'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.'" (emphasis
added)
These
remarks are in my view entirely apposite in
casu.
The
view taken by the court a
quo
that a workers' committee member is at liberty to violate the
employer's code of conduct as long as he does so in his exercise of
the right to champion the worker's rights, is clearly wrong and not
sustainable at law.
What
is to be determined next therefore is whether or not the Respondent
did violate the specified standing policies?
Further,
whether if he did so, such conduct constituted the dismissible
misconduct that he was charged with?
Earlier
on in this judgment I paraphrased the import of relevant portions of
the clauses which the Respondent was accused of breaching.
Clause
4.4 of the IT Policy Document proscribes the accessing or
distribution of inappropriate or offensive material which may harm
the reputation of ZB Financial Holdings Ltd both internally and
externally. Clause 4.4.1 stresses that the Appellant's communications
systems are for business purposes only, and that abusing them was a
punishable offense in accordance with the applicable code of conduct.
Examples of such abuse are indicated in the clause as including but
not limited to the transmission by email of information considered
"highly confidential” such as confidential personal data of
any member of staff; private business activities, and transmission of
any such material that may be deemed offensive or abusive.
My
reading of the letter setting out the acts or conduct that formed the
basis of the misconduct charge levelled against the Respondent, (set
out above), is that these were:
(i)
Firstly, the generation and dispatch by him to “a group of
employees”, of emails that contained confidential material, in
addition to being offensive and inflammatory. While the considerable
number of addressees of the emails is evident from the record, the
Appellant asserts and is not challenged on it, that the recipients
totalled 378.
(ii)
Secondly, the Appellant took issue with part of the content of such
emails, which successfully solicited responses that ended up
congesting the network and affected normal business communication
within the Bank.
It
is not disputed that the Respondent sent the emails in question. Nor
does the Respondent deny that he did not seek the authority of the
Appellant before doing so. He in fact conceded as much during the
disciplinary hearing.
The
Appellant charges that the emails among other content disclosed
confidential information relating to the salaries earned by fellow
employees.
The
Respondent however disputes that he sent information that could be
classified as confidential since the table that he sent, filed on
p170 of the record, did not specify the names of the senior staff
managers who benefitted from defined levels of salary increments
indicated in the table.
In
any case, the Respondent argues further in his heads of argument, the
recipients of the information had a "legitimate
interest in knowing the salary scales”
pertaining at the Appellant's business.
The
court a
quo
was persuaded by the Respondent's submissions and took the view
that no evidence was placed before the court to substantiate this
allegation. The Appellant on the other hand contends that a glance at
the table on p170 of the record would easily enable the recipients of
the email concerned, to identify the affected senior employees.
I
am persuaded by the Appellant's submissions in this respect.
It
would not be unreasonable to assume, as the Appellant contends, that
the recipients of the information contained in the table in question
would know who of the junior and senior managers fell into which
grade and would therefore be earning the respective salaries
specified therein.
The
Appellant submits in this respect, correctly in my view, that the
Respondent could have made the point that certain increases had been
effected and even relied on the percentages quoted, without divulging
the actual salaries of fellow employees.
Against
this background, I find, contrary to the view taken by the court a
quo
that the Appellant did place before the court evidence substantiating
the charge that the Respondent abused its IT systems and disclosed
confidential information relating to the salaries of certain
employees, in violation of clause 4.4.1 of its IT Policy Document.
The
Appellant alleged that the emails generated by the Respondent were
considered by it to be, in addition, inflammatory and offensive. The
court a
quo
opined that the particular emails or the exact phrases that were
alleged to be offensive or inflammatory were not specified in the
letter containing the charges. Further,
that no evidence was placed before the court to substantiate these
allegations.
The
court's observations in my view cannot be faulted, particularly if
regard is had to the Respondent's accurate assertion that this
particular matter has not been pursued by the Appellant in this
appeal.
I
will accordingly give no further consideration to this charge.
The
Appellant in its heads of argument has not expanded on aspects of the
charges relating to the alleged abuse by the Respondent of the
Appellant's IT policy for private business nor has anything further
been said about the alleged clogging of the Appellant's electronic communication system.
Paragraph
4.4.1 of the policy document creates the special misconduct of abuse
by an employee, of its company-facilitated communication media and
services. It further provides that any employee found abusing the
services in question shall be subject to disciplinary action in
accordance with the code of conduct. The misconduct is clearly
characterised as one of commission.
I
take the view that in the circumstances at hand, there is a
conceptual difference between doing an act that contravenes a laid
down policy of the employer, and failing to obey a standing
instruction or order, of the same employer.
I
find therefore that the act with which the Respondent was charged was
not provided for under Categories 'A' 'B' or 'C' of the Appellant's
code of conduct.
What
falls to be determined next is whether the conduct complained of was
properly characterised as "serious” and inconsistent with the
terms of the Respondent's contract of employment.
In
Wala
v Freda Rebecca Gold Mine
SC56/16,
the court had occasion to define the terms "serious
act of misconduct”.
It stated as follows at p5 of the cyclostyled judgment:-
"In
Tobacco Sales Floors Ltd v Chimwala 1987
(2) ZLR 210 (S),
McNALLY JA approved of the dictum by Lord James of Hereford in the
case of Clouston & Co Ltd v Corry [1906] AC 122 before going on
at 218H-219A to say:
'I
consider that the seriousness of the misconduct is to be measured by
whether it is inconsistent with the fulfilment of the express or
implied conditions of his contract. If it is, then it is serious
enough prima facie to warrant summary dismissal. Then it is up to the
employee to show that his misconduct, though technically inconsistent
with the fulfilment of the conditions of his contract, was so
trivial, so inadvertent, so aberrant or otherwise so excusable, that
the remedy of summary dismissal was not warranted.'
The
seriousness of a misconduct is measured by looking at its effect on
the employment relationship and the contract of employment. If the
misconduct the Appellant was found guilty of went to the root of the
contract of employment in that it had the effect of eroding the trust
the employer reposed in him as found by the arbitrator could it still
be said that the misconduct was trivial to warrant a penalty of
dismissal?
The
Appellant worked against company policy.
It
is a serious act of misconduct for an employee
to deliberately act against the employer's policies
to advance personal interests." (my emphasis)
It
is argued for the Appellant –
(i)
Firstly, that the conduct in question went to the root of the
Respondent's contract of employment, and not least because the
Respondent had breached a confidentiality arrangement that he had
entered into with the Appellant.
(ii)
Secondly, it is argued that compliance with the IT policy of the
Appellant that the Respondent breached was cast in peremptory terms.
Accordingly, the policy had to be obeyed without reservation. (See
Messenger of the Magistrates' Court, Durban v Pillay 1952
(3) SA 678 (A)).
I
find that there is merit in the Appellant's submissions.
The
Appellant proved that the Respondent worked against company policy by
abusing its company-facilitated communication media and services.
As
properly highlighted in the Chidembo
v Bindura Nickel Corporation
case (supra) an employer is perfectly within its right to put in
place measures that will protect confidential and sensitive
information relating to its employees and operations, against
unlawful disclosure. Employee salary scales are confidential
information and should not easily be disclosed.
The
Respondent therefore disclosed other employees' salaries through
abuse of the Appellant's communications media and services.
I
find accordingly that this particular misconduct was both serious and
inconsistent with the fulfilment of his contract of employment. The
same misconduct also properly fell within Category 'D' of the
Appellant's code of conduct.
I
will now consider the propriety of the penalty of dismissal that was
imposed on the Respondent.
The
Appellant argues in this respect that the decision to dismiss the
Respondent was properly reached on the basis that the Appellant as
his employer took a serious view of the misconduct in question.
Further, that the Appellant in taking such a serious view of the
misconduct was not shown to have acted unreasonably.
Accordingly,
there was no cause to interfere with the decision that flowed from
the view taken by the Appellant.
The
Appellant relies for this argument on the case of Circle
Cement (Pvt) Ltd y Nyawasha 03-SC-060 SC60/03
where the following is stated at para 14:-
"Once
the employer had taken a serious view of the act of misconduct
committed by the employee to the extent that it considered it to be a
repudiation of the contract which it accepted by dismissing her from
employment, the question of a penalty less severe than dismissal
being available for consideration would not arise unless it was
established that the employer acted unreasonably in having a serious
view of the offence committed by the employee." (my emphasis)
The
Appellant argues, lastly, that the penalty of dismissal was competent
since it was provided under and in terms of the code of conduct.
I
find merit in these submissions.
The
Respondent, as submitted for the Appellant, abused its communications
media and services in order to disclose not just the salary scales of
the junior and senior employees falling into the categories listed,
but also the actual salaries awarded for each grade. This was in
addition to an indication of the percentages by which the salaries of
employees in the grades listed were raised.
As
the Appellant correctly contends, the Respondent could have simply
shown these percentages and not the actual salaries of the affected
employees. There is therefore merit in the submission by the
Appellant that the Respondent breached his privileges as a workers
committee representative through conduct that violated the IT policy
of the Appellant.
Clearly,
his being a workers' committee representative did not convert an
unlawful act into a lawful one.
The
Respondent in any case has not shown that his misconduct, though
technically inconsistent with the fulfilment of the conditions of his
contract, was so trivial, so inadvertent, so aberrant or otherwise so
excusable, that the remedy of summary dismissal was not warranted.
(See Tobacco
Sales Floors Lid
case (supra).
No
basis has, accordingly been established for interfering with the
penalty of dismissal.
The
Appellant's second ground of appeal therefore has merit and is hereby
upheld.
This
finding renders the Appellant's last ground of appeal irrelevant to
the determination of this appeal.
DISPOSITION
In
light of the foregoing, I find that the appeal has merit and ought to
succeed.
In
the result, it is ordered as follows:-
1.
The appeal be and is hereby allowed with costs.
2.
The judgment of the court a quo is set aside and substituted with the
following:-
“(a)
The appeal is allowed with costs;
(b)
The Respondent shall stand dismissed from his employment with the
Appellant with effect from 26 October 2010, the date of his initial
dismissal."
PATEL
JA: I agree
BHUNU
JA: I agree
Messrs
Gill, Godlonton & Gerrans, Appellant 's legal practitioners
Mabundu
Law Chambers, Respondent's legal practitioners
