ZB BANK LIMITED v TIRIVANHU MARIMO SC 21/20

Introduction

The matter outlines principles that are crucial in instances where an employee acts in a manner inconsistent with his or her contract of employment.  It also reflects the delicate balance that workers committee members must maintain in fostering the rights of employees whilst being loyal to the code of conduct. It is thus the authority to the fact that a workers committee chairman will not be exonerated of unlawful conduct based on his capacity as an employee representative.

Facts

The respondent was a workers committee chairman. There was a dispute over salary increments which had resulted in a certificate of no settlement, the dispute having been brought to the attention of a labour officer. The respondent employee proceeded to sent out emails to his fellow employees disclosing percentage adjustments that had been made to their fellow managerial employees. He proceeded to encourage an industrial action as a result of which he was charged for having acted in a manner inconsistent with his employment contract.

The Law

Official Duty as a Workers Committee Chairman

The respondent employee contended that he sent out the emails to his colleagues in his official capacity as a workers committee chairman and this made his actions less of an offence. This viewpoint was upheld by the NEC Appeals Board and the Labour Court. These two forums accepted that the respondent employees breached the appellants’ policy, but the offence did not warrant dismissal.

The court however found merit in the appellant’s argument that the fact that the respondent was a chairman does not mean that he had the power to act outside the law. It thus noted:

“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.”

Chidembo v Bindura Nickel Corporation

The supreme court took note of the arguments that had been put forward in the Chidembo matter and pointed that, the fact that one is a workers committee chairman does not mean that they will be vindicated from unlawful conduct. The court in Chidembo had decisively noted that:

“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”

The seriousness of the offence

Having noted that the employee indeed committed the offence of disclosing confidential information, the court took note of the matter between Wala v Freda Rebbeca Gold Mine where the seriousness of an offence was defined. In that matter the court had the opportunity to mention that:

“The seriousness of 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.”

Propriety of the decision to dismiss

The court supported the view that dismissal is the appropriate penalty in the circumstances because the employer took a serious view of the offence committed by the respondent employee.

Conclusion

The bottom line is that a workers committee chairman or a representative cannot violate a company code and expect to get away with it. Once an employer takes a serious view of an offence committed an employee will not escape liability.

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