adminproperty.
This meant that the servant had no say whatsoever. With the advent of self-rule and human rights, both the employer and employee are in a learning process.
Montclair Hotel and Casino dismissed Tsitsi Mandikonza for allegedly uttering “obscene” statements against management. She denied: “On Wednesday March 10, 2010 I arrived at the reception and asked Casper whether the manager was still attending to a meeting for certain reasons.
“Casper said yes and I replied it was okay, maybe they were also discussing about the staff as they were taking too long.”
Two reports of the same incident were submitted for the determination of the disciplinary committee, one submitted by one PR Zimunya and another one by Casper.
Zimunya’s report read: “On Wednesday May 10, I was by the reception co-ordinating a management meeting when Tsitsi uttered the words, ‘management iri
kumboita meeting yei? Ndeyekufunga kuti varambe vachifrustrater staff sei.’ (What is the agenda behind the management meeting, it is about finding a way of how they can continue frustrating staffs).
“I was shocked by such superficial words uttered to all in the vicinity. I then went to Ephraim Muyengwa, the head of department, to tell him that I picked Tsitsi uttering the disturbing words. I suggested maybe he should talk to her and appease her frustration.”
Casper reported: “Tsitsi came to the reception and asked where the managers were having their meeting. Having told her, that’s when she commented saying, ‘meeting ipi yekutaura nezve staff ndozvavanogona.’ (What meeting, discussing about the staff is all what they know). She then walked away.”
It is from the above statements that the misconduct charges emanated. Montclair Hotel then suspended Mandikonza without pay and benefits for violating the Code of Conduct, that is “uttering or publication of obscene document.”
This was in violation of Schedule 5 of the relevant employment code and was a dismissable offence.
A disciplinary hearing was conducted on the basis of the two reports referred to earlier on. Mandikonza pointed out that the two reports, which were being relied on,
were different, which was true.
Zimunya’s report refers to the frustration of staff by management. Casper’s report on the other hand refers to the management discussing staff matters.
It was crucial under the circumstances of this case to have the authors of those reports called to verify Mandikonza’s concern. It is clear that the charge emanates from a combination of what both Zimunya and Casper reported.
Had Zimunya and Casper made exactly the same report there would not have been need to combine the two. It would have been sufficient to state that Casper’s report materially corroborated the report by Zimunya.
Generally, there is no need to call oral evidence if there is sufficient evidence, which admits on no doubt.
In Metsola versus Public Service Commission and Anor 1989 (3) ZLR 147 (S), the Supreme Court stated the following.
“ . . . the audi maxim is not a rule of fixed content, but varies with the circumstances. In its fullest extent, it may include the right to be appraised of the information and reasons underlying the impending decision, to disclose of material document, to a public hearing.
“At that hearing to appear with legal representation and to examine and cross-examine witnesses. The criterion is one of fundamental fairness and for that reason the principles of natural justice are always flexible.”
It was therefore entirely within Mandikonza’s right to point out the need for witnesses during the hearing, but her concern was brushed aside.
During the course of the hearing, Mandikonza was asked why she was looking for management and why she thought that they were discussing staff issues.
In response she stated that she wanted a gate pass clearance. She also stated that “as junior staff, we held a meeting a few days before the day of the incident and had forwarded our grievances to management through the workers committee. I thought those were the issues that were being discussed in this particular meeting.”
The explanation by Mandikonza sounds quite legitimate. However the disciplinary committee, particularly the management representatives, were of the view that an offence had been committed. A management representative, Mr Mupandani remarked that they did not discuss staff in their meetings, but that they discussed “staffing-related issues in an amicable way and not in a way to frustrate staff.” Another management representative, Mr Manyere had the following to say.
“We really appreciate and are well aware that people are currently frustrated by the current position of the organisation, but there is no way that management can sit down to discuss how to frustrate staff.
“That was total manipulation and deformation (sic) of character by the accused and that’s where the utterance is based on. Management cannot sit to discuss how to
frustrate the same employees that make the organisation that they lead.”
It is no secret that managers do attend meetings at their work places. It is not unusual for a junior employee to ask a colleague whether or not a particular meeting is still on and still go on to express surprise at the duration of such a meeting.
It then depends on who hears and how they understand what has been said. A statement issued by one person may be taken to be an honest inquiry, yet another person may take it to be an attack. If it has been viewed as an attack, then each time the statement is repeated, the wrath of the person who feels to be under attack increases. This is why in the present matter it was important to call the persons who made the reports to clarify their respective reports during the course of the hearing.
Management was of the view that the statement by Mandikonza was based on hatred of management.
Aggrieved by her dismissal, Mandikonza appealed to the Labour Court arguing that there was no fairness in the whole disciplinary system.
In view of the foregoing, Labour Court president Ms Euna Makamure found that there was merit in all the grounds of appeal and ruled that it succeeded.
Montclair Hotel and Casino was then ordered to reinstate Mandikonza without loss of salary and benefits from the date of dismissal. In the event that reinstatement was no longer possible, Montclair was ordered to award her appropriate damages as agreed between the parties in lieu of reinstatement.
Online Reporter