GWAUNZA
JA: This
is an appeal against the decision of the Labour Court which upheld
the dismissal of the appellant from his employment with the
respondent.
The
factual circumstances of this matter are common cause.
The
appellant was in the employ of Bindura
Nickel Corporation Limited and
served as a workers' committee
chairman. He was dismissed from employment for disclosing
confidential information during conciliation proceedings. He
challenged his dismissal on the basis that it was an unfair dismissal
and noted an appeal to the Labour Court. The Labour Court dismissed
the appeal on the main ground that the appellant did
violate
the respondent's Code of
conduct in that he did not follow the laid down procedures on the
obtaining and disclosure of confidential information.
The
appellant was aggrieved by the decision of the Labour Court and has
approached this Court on the grounds summarised
below;
1.
The court a
quo misdirected
itself and erred at law entirely in not finding that the disciplinary
procedures set down in the code of conduct of the respondent were not
followed thereby rendering the dismissal both substantively and
procedurally,
wrong.
2.
The court a
quo further
erred in rejecting the appellant's defence that the disclosure of
the company information was not in breach of section 3(4) of Schedule
1 of the Employment Code of Conduct for respondent as read with Part
C 10.2.
3.
The court a
quo erred
and misdirected itself at law in finding that the appellant was not
unfairly
dismissed.
Procedural
Irregularities
The
Labour Court did not address the issue of procedural irregularities
in its judgment even though it had been raised as a ground of appeal.
Be that as it may, the
appellant
avers that the hearing authority that summarily dismissed him was not
properly constituted, a circumstance that he argues rendered the
disciplinary proceedings a nullity. The appellant, however, does not
elaborate on this averment either in his grounds of appeal or in his
heads of argument.
As
correctly contended for the respondent, it is not enough to merely
allege, as the appellant does in his heads of argument
that:
“In
terms of the Code of Conduct for the respondent's entity, the
hearing authority must
be either, a Line Supervisor, Section Head or Head of Department.
This was not the composition
of the Hearing Authority that dismissed the
appellant.”
The
appellant should have explained in what way he perceived the Code of
Conduct to have been violated, at what stage of the proceedings this
might have happened and who in his opinion should have properly
constituted the disciplinary authority.
The
respondent, in any case, disputes that the disciplinary authority was
not properly constituted.
In
making the averment cited below, the respondent helpfully gives some
insight into what the
appellant's specific grievance might have
been.
“Appellant
was employed as a Human Resources Administration Officer. The Head of
Department for Human Resources Department was Mr
Moyo,
who appointed Mr
P. Muremba to
hear the matter
as hearing officer duly authorised thereby…. The delegation
of the function to conduct the hearing to P.
Muremba as
the Hearing Officer
was permissible in terms of the
code.”
Assuming
this was the appellant's concern, it
is evident from the record that he has tendered no evidence that may
in any way be interpreted as disproving the respondent's
averment
on this issue. Nor has he alluded to any prejudice having been
suffered by him as a result of the alleged improper constitution of
the disciplinary
authority.
The
respondent, I find, correctly contends that it is not every
procedural irregularity that may render render the proceedings in
question a nullity, especially in labour matters.1
The
respondent further cited the case of Air
Zimbabwe (Pvt) Ltd v Chiku Mnensa & Mavis Maweyi SC89/04,
where this Court stated that a person guilty of misconduct should not
escape the consequences of his misdeeds simply because of improperly
conducted disciplinary proceedings. He should escape because he is
innocent.
I
find in the result that the appellant has failed to place before the
court sufficient evidence for a proper determination of whether or
not there was a fatal irregularity in the conduct of the disciplinary
proceedings. The onus to prove his case on this point lay on the
appellant, and it is abundantly clear that he has failed to discharge
it.
Accordingly
the appellant's ground of appeal relating to the composition of the
Disciplinary Authority is
dismissed.
Whether
the
appellant's
conduct
violated
the
respondent's
Code
of
Conduct
The
appellant was charged with unauthorised disclosure of company secrets
as outlined
in section 3.4 Schedule 1(12) as read with Part C 10.2 of the
respondent's code of conduct. The
relevant part of the Code reads as
follows:
“Information
with respect to any confidential product, plan or business
transaction of the
group, or
personal information regarding employees, including their salaries,
or any business information must not be disclosed by any
employee unless
and until proper
authorisation for such disclosure has been obtained.” (my
emphasis)
It
is not in dispute that in the course of conciliation proceeding
attended by both employer (respondent in
casu)
and employee representatives, a request was made to the appellant
who was present as the workers' committee chairman, for a list, if
he had it, of employees
affected by alleged salary anomalies. The appellant duly submitted
the list,
except
that it showed
employees salaries, in addition to their names.
The
respondent alleged as follows
in respect of how the appellant secured this confidential
information.2
“It
is common cause that salaries information was downloaded by one S.
Mamina and
sent by e-mail to one W.
Muyenza
who
in turn e-mailed it to the appellant. Equipped with this information,
the appellant did not simply e-mail it to the next colleague. Instead
he changed the label of the file and instructed it to be printed”
(sic).
The
resultant print-out is what the appellant disclosed before the
conciliation proceedings, leading to the charges in
question.
The
appellant does not deny disclosing the information in question. Nor
does he deny that he did so without any authority.
His
defence was that the information in question “was
disclosed during a lawful conciliation hearing and in the appellant's
capacity as a worker representative, not as an employee… this was
done as a bona
fide step
to prove
the worker's case. It
was
not an act done in the normal
course and scope of the contract
of employment of the
appellant.”3
The
appellant further contends that since the disclosure of the list in
question was “clearly” done in the pursuit of employees'
interest, it was lawful. He relies for this contention on the
following excerpt taken from Munyaradzi
Gwisai's “Labour and Employment Law in Zimbabwe” at
page
115:
“In
circumstances involving trade unions or workers committee, the duty
of confidentiality
on employees not to divulge confidential information has to be read
with
the workers' fundamental right to democracy at the workplace under
section 7 and to conduct
workers
committee or trade union business in terms of sections 4 and 8 of the
Labour
Act. Divulsion of information in one capacity as a worker
representative and within the pursuit of lawful objects of such
organisations or giving information to such organisation in the
pursuit of lawfully pursuing an employees interest, is not in breach
of such
duty.”
The
distinction between confidential information required by an
individual worker
and that required by a worker's representative is in my view a
useful and indeed critical
one.
However,
I entertain some doubt concerning the above excerpt's
correctness when
it suggests that such divulsion of information would nevertheless be
lawful, even if it is done in blatant violation of an express
provision of the Code of Conduct.
In
fact,
it would appear that a worker representative has a greater
opportunity of lawfully accessing confidential information than an
ordinary employee by, for example, formally discovering such
information at negotiating fora
or
requesting adjudicating bodies to order the production of such
information. This to be compared, for instance, with section 5 of the
Income
Tax Act [Cap
23:06] which allows tax department employees who have sworn an oath
of secrecy regarding
tax
matters,
to
break
such
oath
where
they
are
ordered
by
a
competent
court
to
disclose the required information.
Where
confidential information is unreasonably withheld, a worker
representative may invoke unfair labour practice provisions in the
Labour
Act.
Ultimately,
employees are better advised to negotiate for easier access to
information provisions in employment codes of conduct than to
blatantly violate the law as is implicit in the excerpt cited
above.
The
respondent in its heads of argument in my view correctly counters
this excerpt by stating
thus:
“The
disclosure of the information in violation of section 3.4 of Schedule
1 of the
Code as read with section 10.2 of Part C of the Code is permissible
subject to the appellant seeking authority from the employer to do
so…….
If
such authority was sought but nonetheless unreasonably withheld,
appellant might have been justified to access the information as he
did and proceed to disclose it anyway within the spirit of the labour
law jurisprudence emoted by the learned
author.”
The
appellant's position
seems to be that even though the information was obtained by him
unlawfully from the workplace - through
use of the employer's resources and
in his capacity as a worker - the disclosure that followed was
lawful. He justifies this on the basis that
by then he had shed his “worker” mantle and figuratively
replaced it with that of “chairman
of the workers committee”.
In
other words, it was perfectly in order for him to use his status as a
worker in order to access confidential information that he fully knew
he would
disclose as a worker's committee
chairman.
I
find this reasoning to be flawed in two main respects:
(i)
First and foremost, the appellant was an employee of the respondent,
to whom at all times he bore the duty of trust and loyalty. His
conduct in relation to the respondent was regulated and governed by
the requisite Code of Conduct, in this case S.I.
379/1990.
As
correctly averred by the
respondent,
the appellant remained accountable to his employer irrespective of
the position he assumed as the
worker's committee chairman.
(ii)
Secondly,
I am satisfied that an act of misconduct committed by a worker
outside the workplace, and in his –
also
work related –
capacity
as a workers'
committee member,
is unlawful as long as it impacts
directly on the employer's private
interests and in addition, constitutes a violation of the employer's
Code of Conduct.
This
Court
has
effectively
ruled
as
much
in
cases
where
workers
committee
members, purporting to advance or protect workers' rights, have
engaged in unlawful job actions.4
The
workers
found that their status as workers committee members did not clothe
them with a cloak of immunity against misconduct charges.
The
central issue being the fact that if the conduct in question is
outlawed under the Code of Conduct, it remains unlawful irrespective
of the “hat”
that the
offending worker may be wearing at the time the misconduct is
committed.
Likewise
in
casu.
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
this 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 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.”
The
appellant not only failed to follow the “due process” that would
have allowed
him to lawfully disclose the information in question, he openly
expressed disdain for such process by
stating
as
follows;5
“I
did
not
do
wrong…
I
did
not
need
to
get
any
authorisation
from
anywhere.”
His
case might have been different had he sought, and been denied, the
requisite authorisation.
The
respondent, I find, is correct in its contention that these
assertions were a direct infringement of the provisions of section
10.2 of Part C of the Code, and also misplaced in view of the
sentiments in the ZESA
case,
cited
above.
In
view of all that has been said above, I find that the respondent (and
the Labour Court in upholding the decision) properly charged,
convicted and dismissed the appellant.
One
issue, in my
view,
calls for comment.
The
provision of the code under which the appellant was charged,
expressly penalises the act of disclosing
prohibited
information,
without the respondent's authority. The provision is silent on the
question of access,
or the manner of it, to the information concerned.
The
respondent contends that the requirement for authorisation from the
employer, applies equally to accessing and disclosure of
the
prohibited
information.
In
casu
the
tone
of
the
respondent's
arguments
demonstrates
that
the respondent took issue both with the unauthorised manner
of
accessing
the
information, and its subsequent disclosure.
In
view
of the express provisions of section 10.3
of
Part C
of
the
Code,
the
propriety
of
this
conflation
of
issues
may
be
open
to
question.
One
could
conceive of a situation where a worker lawfully acquires confidential
work-related
information meant for his consumption and then discloses it to
outsiders without
the
authority of the employer.
Such
a person would, it seems, fall foul of section 10.3, in the same way
that
he
would
have
done
had
he
disclosed
information
unlawfully
acquired.
Be
that
as
it
may,
it
appears
to
me
that
even
had
the
appellant
properly
acquired
the
information
in
question,
he
would still be in the very same position that he is in now. The
exception being that
he
might
have, possibly, been able to argue in mitigation that he had lawfully
acquired the
information.
In
all respects, therefore, I find that the appeal lacks merit and ought
to be dismissed. Costs shall follow the
outcome.
It
is in the result ordered as
follows:
1.
The appeal be and is hereby
dismissed.
2.
The appellant shall pay the costs of
suit.
HLATSHWAYO
JA: I
agree
MAVANGIRA
AJA: I
agree
Venturas
and Samukange, appellant's legal practitioners
Mwonzora
and Associates, respondent's legal
practitioners
1.
See Dalny Mine v Banda 1999 (1) ZLR 220 at
221
2.
See
respondent's heads of argument in the Labour
Court
3.
Paragraphs 2 and 7 of the appellant's heads of
argument
4.
See
in this respect, Shadreck Moyo & 13 Others v Central African
Batteries (Pvt) Ltd v Boniface Mwonzora, 23 Ors SC
09/09
5.
Honography
notes in the Labour Court at page…
