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IN THE LABOUR COURT, HARARE, JUNE 13**, 2005.
JUDGEMENT No. LC/H/121/2005.
CASE No.LC/H/16/2004.
In the matter between:
MUFARO STIG HOVE APPELLANT
Versus
ZIMBABWE ELECTRICITY SUPPLY AUTHORITY RESPONDENT
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Before The Honourable E Makamure, President
For the Appellant : Mr C Mudhara (Legal Practitioner)
For the Respondent: Mr Chakanyuka ( Legal Advisor)
MAKAMURE E :
The Appellant was dismissed from the Respondent's employ for contravening sections of the Respondent's Code of Conduct.
The charges are as follows:
7 (1) (g) (ii)
"Issuing without permission or authority, press statements or information concerning the affairs of the Authority, to the actual or potential prejudice of the Authority"
or
7 (1) (e) (viii)
"Conducting oneself or behaving in a manner which brings or is likely to bring the name of the Authority into disrepute or to tarnish the image of the Authority"
The charges arose following a letter which the Appellant wrote to The Financial Gazette on June 12, 2003 as follows:
APPEAL TO MANGWENGWENDE:
EDITOR: On behalf of the ZESA employees countrywide, may I humbly appeal to Simbarashe Mangwengwende, our father, to come to our rescue.
I am the Northern Area Workers' Committee Chairman and I know I speak for the whole Company from messenger to the most Senior Manager.
As the song goes: 'Every night I wake up crying,
Tears on my pillow,
Pain in my heart,
And you on my mind.'
Please assist urgently.
Mufaro Stig Hove ( radicalsoldier2003@yahoo.com )
The offences fall under Category 'D' of the Respondent's Code of Conduct and therefore dismissible.
The Appellant appealed internally without success.
He has lodged an appeal with this Court on the following grounds;
" The Appeals Committee did not consider the reasons for my Appeal to them ie;
# The Chairman Kasipo should have recused himself.
# The charge was mischievously brought by Management due to pressure from Mr Gata.
# Extenuating circumstances were not considered.."
It is common cause that the Appellant is the author of the article above.
The argument submitted in support of the grounds of appeal was to the effect that the article did not bring the name of the Authority into disrepute. It was argued that the article did not attack the Authority but appealed to Mangwengwende. The Appellant should therefore not be visited with dismissal as the penalty for his conduct.
The argument was advanced in view of the following:
# Firstly, the letter was authored during the course of a collective job action. The letter should therefore have been read in the context of a workforce which was disgruntled.
# Secondly, during the course of the said collective job action, some members of the ZESA workforce carried placards. The conduct of the Appellant was an act of solidarity with his colleagues.
# Thirdly, the Appellant was only expressing an opinion- which he is entitled to. He should therefore not be penalized for expressing his opinion.
# Fourthly, other ZESA employees who participated in the collective job action were subsequently pardoned. Such pardon ought to have been extended to the Appellant as well.
# Fifthly, in view of these reasons, the Appellant ought to have been charged with either a Category 'A' offence, namely
" Breach of secrecy or confidentiality which does not result in financial prejudice to the Authority or tarnish the image of the Authority"
or a Category 'C' offence
"for either insubordination or disorderly or objectionable behaviour."
It was also submitted on behalf of the Appellant that there was nothing wrong in the article to compel a person to arrive at the conclusion that the image of the Respondent was tarnished.
It was also submitted on behalf of the Appellant that the Appellant has an unblemished record of service of 14 years with the Respondent.
That being the case, a lighter sentence ought to have been imposed.
It was further submitted on behalf of the Appellant that the Chairman, Mr Kasipo, ought to have recused himself. This was because the Appellant did not see eye-to-eye with Kasipo. Despite the Appellant's protestations, Kasipo chaired the proceedings.
The Respondent's position, while noting the Appellant's disquiet with the Chairmanship of Kasipo , concluded that the Appellant got a fair Hearing even though Kasipo chaired the proceedings.
It was observed on behalf of the respondent as follows:
** "The Committee unanimously determined that there were no serious procedural irregularities to render the whole proceedings a nullity.
It was noted that Kasipo should have left the other members of the Committee to determine his fate.
He should not have voted.
Despite this anomaly, the Committee was satisfied that the Appellant was accorded a fair and unbiased Hearing and hence the findings of the Disciplinary Committee could not be faulted."
His fears were only speculative since Mr Kasipo had not confronted him.
Accordingly the submission could not be upheld."
There is a concession that allowing Kasipo to vote constituted an anomaly. Other members of the Committee ought to have decided on the propriety or otherwise of Kasipo's Chairmanship. The fact that Kasipo voted for himself to chair the proceedings can be interpreted as proof that Kasipo made sure that by participating in the voting process, he would chair the proceedings. His participation at that voting stage is a violation of the simple justice between man and man. Had Kasipo been excluded from the voting process, the result would have been seen to be independent of his influence. His participation can be interpreted as an indication of his influence.
This is what the Appellant objected to.
Respondent has not shown that Kasipo's participation was not prejudicial to the Appellant's case. (See Minerals Marketing Corporation v Mazvimavi 1995 (2) ZLR (S). It is trite that justice must not only be done but it must be seen to be done. In this case justice was not seen to have been done.
The Respondent's position on this issue is that there was no proof of bias by Kasipo against the Appellant.
I disagree.
As indicated earlier on the fact that Kasipo himself participated in the process to have him chair the proceedings is in itself proof that the voting process was not independent of his influence. The possibility of bias can therefore not be ruled out. Whether or not subsequent proceedings were without bias cannot be based on the beginning, which could be interpreted as being biased.
Going back to the article, the article in question was written during the course of a collective job action. In an earlier Application (**), this Court held that the Appellant has a right to express his opinion under the circumstances. The Respondent accepts the position that there is nothing wrong in expressing an opinion as long as no one's rights are violated in the process. The Respondent is of the view that the Appellant's conduct caused the actual or potential prejudice to respondent or that the article put its name into disrepute. Consequently, the respondent is of the view that its name was tarnished as a result of the article.
It is however not clear to this Court how exactly the article put the Respondent's name into disrepute.
It is clear that the article was published in a magazine whose readership is wide. The letter was appealing to one Mangwengwende.
The article does not articulate what wrong ZESA did.
What the article does is to ask the individual in question (Mangwengwende) to dialogue so that whatever the writer wants to be rescued from could be discussed.
Does this "plea" have the effect of putting the name of ZESA into disrepute?
I think not.
Had the Appellant made specific allegations against the Authority, that would have certainly caused the readers to ask questions about ZESA with the likehood of either tarnishing the good name of ZESA or putting ZESA's good name into disrepute.
The Appellant was simply expressing an opinion.
He wrote to the paper.
If writing to the press is a prohibited conduct; then such a prohibition is in my view a violation of the Appellant's Constitutional Rights.
Further, if the simple act of writing to the paper without making particular allegations is a punishable conduct; then such punishment appears far-fetched.
It is not disputed that the Appellant had before this incident worked for the Respondent for 14 years with a clean Record.
In considering the Appellant's case, the Respondent was of the view that the Appellant was not remorseful.
The record on the other hand shows that the Appellant apologized for his conduct.
In the Record of Proceedings, the Appeals Committee on page 12 of its record noted:
" He (the Appellant) wanted to apologize to the Company called ZESA………He regretted writing to the Press….."
Yet on page 11 of its Record, the Committee commented:
"The Appellant did not show any remorse during the Hearing although he admitted to wrong-
doing."
The fact that the Appellant regretted his conduct is proof of his remorse.
In view of the above, I find merit in the Grounds of Appeal.
Section 12B (4) of the LABOUR ACT CHAPTER 28: 01 empowers the LABOUR COURT when the fairness of the dismissal of an employee is in issue:
"To consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal….."
Under the present circumstances, charging the Appellant with a dismissable offence was harsh!
If the Appellant had erred at all, a lesser charge as defined in the Respondent's Code of Conduct would have sufficed.
HOWEVER, this Court is of the view that the Appellant's conduct is not blameworthy.
Thus even having him charged with a lesser offence is in my view not consistent with fairness.
In the circumstances, the Appeal succeeds.
It is accordingly ordered that the Appeal be and is hereby granted with costs.
The Respondent be and is hereby ordered to re-instate the Appellant with no loss of salary and benefits with effect from the date of dismissal.
In the event that re-instatement is no longer an option, the Respondent be and is hereby ordered to pay the Appellant damages in lieu of re-instatement.
Parties may agree to the quantum of damages or upon failure to agree either party may approach this Court for quantification.
(SIGNED……….E MAKAMURE)
Chitapi and Associates (Legal Practitioners for the Applicant).
Mr Chakanyuka ( Legal Advisor for the Respondent.)
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Please also read "The Herald" of Saturday, 21st Jan, 2006 (Court News).
It was on the 'net when I sent this mail of joy!
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21st January,2006.
Hi fellow citizens and friends,
Please find below the "message of joy" received from The Labour Court yesterday (20th Jan 2006)
I typed it myself so forgive me for any errors you may come across.
Where you see stars(**), it means there are notes I have written at the end of the Judgement.
Please send your Congratulatory SMS messages to
# 091815762…my wife for standing beside me for 27 difficult months.
# 011422965….Mr Munjoma (Union Sec General) for accepting me as their casualty.
# 011607301….To Eng Simbarashe Mangwengwende for giving me spiritual and moral support when I felt like ending my life.
# 011424284….Mr Mudhara, the lawyer of Chitapi and Associates, who calmly presented The Heads of Argument on my behalf.
# 091343485….To a friend who supported me financially but who does not want his name mentioned.
Thanks to you ALL for being available to hear me "thinking aloud."
The Judges (who are seriously over-worked and grossly underpaid) also deserve our thanks!
Rev M S Hove….THE HAPPY RADICAL SOLDIER!
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 Stig Hove wins case against ZESAhttp://www.thezimbabwean.co.uk/viewinfo.cfm?id=685 HARARE - Mufare Stig Hove has won his lengthy legal battle against Zesa, which fired him for writing a letter to a newspaper seeking the return of his former boss. The Labour Court last week ordered the parastatal to reinstate Hove without any loss of pay or benefits after it held that his dismissal was improper, since he had a right to express his views. Hove was fired after writing a letter published in the Financial Gazette, appealing to former Zesa chief executive, Simbarashe Mangwengwende, to come to the rescue of the workers. "If writing to the Press is a prohibited conduct, then such a prohibition is, in my view, a violation of the appellant's constitutional rights," said the judgement. The court said if it was no longer possible for Zesa Holdings to reinstate Mr Hove, then both should agree on a suitable amount to damages to be awarded. - Own correspondent @@@@@@@@@@@@@@@@@@@@@@@@@@@@@ kuthula matshazi : kuthulamatshazi@yahoo.co.uk Congratulations Rufaro on winning the case. It is interesting that you were victimised for free speech. I hope you are the person who knows the importance of free speech and the critical importance to safeguard it. Make sure you impart your experience in this forum and encourage diversity of voices. Who else other than you can champion freedom of speech? Congratulations and wish all the best in your future endeavours. Best, Kuthula @@@@@@@@@@@@@@@@@@@@@@@@@@@@@@ Zesa to re-engage employee
Saturday, January 21, 2006 http://www.herald.co.zw/inside.aspx?sectid=1788&cat=1 Court Reporter ZESA fired a worker for writing a letter to a newspaper seeking the return of his former boss, but yesterday the Labour Court told Zesa to reinstate him, saying his rights to express opinions had been violated. Yesterday, the court ordered Zesa to reinstate Mr Mufaro Stig Hove without any loss of pay or benefits after it held that Mr Hove's dismissal was improper, since he had a right to express his views. If Zesa's code of conduct prevented employees from criticising Zesa, then this would be a violation of constitutional rights. Mr Hove was fired after writing a letter published in the Financial Gazette, appealing to former Zesa chief executive, Mr Simbarashe Mangwengwende to come to the rescue of the workers. In the judgment, the court found that Mr Hove had the right to express his opinions. Zesa Holdings had dismissed him arguing that his letter had put its name into disrepute and had the likelihood of causing financial prejudice. The court, however, found that though it was common cause that Mr Hove had written the letter, Zesa Holdings had failed to prove to the court how exactly the letter had put the company's name into disrepute. "The appellant had a right to express his opinion under the circumstances. It is, however, not clear to this court how exactly the article put the respondent's name into disrepute. It was also the court's finding that if the Zesa code of conduct prohibited such expression of opinions, then it violated the employees' constitutional rights. "If writing to the Press is a prohibited conduct, then such a prohibition is in my view, a violation appellant's constitutional rights." The court said if it was no longer possible for Zesa Holdings to reinstate Mr Hove, then both should agree on a suitable amount to damages to be awarded. @@@@@@@@@@@@@@@@@@@@@@@@@@@@ I'm still CEO of ZESA http://www.thezimbabwean.co.uk/viewinfo.cfm?id=831 EDITOR - In your article "Stig Hove wins case against Zesa" published on 26th January2006 you refer to me as "former Zesa chief executive". Please note that I am still the lawful chief executive of Zesa. Although the day to day running of the organisation is currently under the Chairman of the Board (operating under the title "Executive Chairman") the lawfulness of that is a matter before the High Court waiting for a judgment by the Honourable Justice Hlatshwayo. The case was heard on 8th October 2003 and judgment has been reserved since then. Pending that judgment I remain an employee of Zesa with all my conditions of service as chief executive. Recent attempts By Zesa to deny me my salary and benefits have been ruled unlawful by the Labour Court and that judgment has been upheld by the High Court and the Supreme Court. Eng Simbarashe E. Mangwengwende, Chief Executive, Zesa, Harare |
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