CHIDEMBO v BINDURA NICKEL CORP LTD

SUPREME COURT, HARARE

[Labour Appeal SC 35-15]

May 20, 2014 and July 2, 2015

GWAUNZA AND HLATSHWAYO JJA AND MAVANGIRA AJA

Employment – Employee’s duty of confidentiality – Workers’ committee – Whether employee’s membership of workers’ committee makes an otherwise unlawful disclosure of confidential information lawful – Status as workers’ representative not clothing employee with immunity against misconduct charges.

The appellant employee was the chairman of the workers’ committee. During conciliation proceedings in which he was a representative of the workers, he disclosed the employer’s confidential information. The employer preferred misconduct charges against him. He was charged with “unauthorized disclosure of company secrets” under the relevant code of conduct. He did not deny disclosing the information in question without any authority. His defence was that the disclosure was lawful because it had been done in his capacity as a workers’ representative and in the course of lawful conciliation proceedings. This defence was rejected and he was found guilty and dismissed. The Labour Court dismissed his appeal. On appeal in the Supreme Court.

Held, dismissing his appeal, that an employee’s duty of trust and loyalty was owed to the employer at all times irrespective of the position the employee may occupy as a worker representative.

Held, further, that the disclosure of confidential information without the requisite authority of the employer was an unlawful act in terms of the code of conduct. The employee’s status as a workers’ committee chairman could not turn what was unlawful into a lawful act.

Cases cited:

Air Zimbabwe (Pvt) Ltd v Mnensa & Anor SC 89-04 (unreported), referred to

Carnud Metal Box (Pvt) Ltd v Mwonzora & Ors SC 09-09 (unreported), applied

Dalny Mine v Banda 1999 (1) ZLR 220 (S), referred to

Moyo & Ors v Hoffman HH 64-12 (unreported), applied

Zimbabwe Electricity Supply Authority v Mare SC 43-05 (unreported), applied

Legislation considered:

Income Tax Act [Chapter 23:06], s 5

Labour Act [Chapter 28:01]

Labour Relations (Employment Codes of Conduct) Regulations, 1990 (SI 379 of 1990), Part C, ss 10.2, 10.3

Book cited:

Gwisai M Labour and Employment Law in Zimbabwe: relations of work under neo-colonial capitalism (Zimbabwe Labour Centre and Institute of Commercial Law, University of Zimbabwe, 2006) p 115

TK Hove, for the appellant

TA Toto, for the respondent

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 s 3(4) of Sch 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.

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