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Davies Ndumiso Sibanda
MEMBERS of the workers committee can be dismissed for obtaining information illegally or using illegally obtained information.
In the matter Chitembo vs Bindura Nickel Corporation Limited SC 35/15, the Supreme Court laid the law for workers’ leaders as far as using information that has not been obtained using legitimate means is concerned.
Chitembo was the Workers Committee chairman and was dismissed from employment for disclosing confidential information that had been obtained using illegal means according to the employer.
The code of conduct made it an offence to obtain information without following laid down procedure.
Chitembo did not deny disclosing information in question and did not deny he did so without authority but argued that he disclosed the information at a legitimate conciliation while wearing the cap of a workers’ representative.
He argued that, “It was not an act done in the normal course and scope of a contract of employment”.
He further argued that since the disclosure was done in the employees’ interest, it was lawful.
The Judge said that, “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 workers’ committee chairman.
I find this reasoning to be flawed in two main respects.
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 workers’ committee chairman.
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 workers’ 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 CJin the case of Zimbabwe electricity Supply Authority v Moses Mare SC 43/05, 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 Judge was very harsh with Chitembo over unlawfully accessing information and I have extracted a large portion of the Judgment to show how dangerous it is for workers’ leaders to use information that has not been legally acquired even if it is for the interest of the workers.
In conclusion, this judgement in my view is ground breaking as it addresses a number of arguments that have been raised by workers’ leaders when defending illegal accessing of information.
I also believe even ordinary workers who take and use information without authority could easily find themselves dismissed. It is therefore safe for workers leaders to formally request for information as a court to order the employer to avail the information rather than “steal” the information.
Davies Ndumiso Sibanda can be contacted on: email: [email protected] Or cell No: 0772 375 235
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