Dealing with intimidation

democracy at the workplace is highly compromised.
The Labour Act 28:01 mirrors the worker’s fundamental rights in both the Constitution of Zimbabwe and International Human Rights instruments.
This week, I will examine a case that deals with intimidation of employees and their representatives.

Edmore Hove was employed by Premier Knitting Company as a groundsman and was illegally dismissed from employment. Before his dismissal, Dr Fiona Campbell — a medical doctor — confirmed that Hove suffered from a medical condition and stated that he was asthmatic.
The doctor recommended, among other things, that “there is no restriction in his physical activity.”
It looks like the recommendation was to guide Premier Knitting Company when assigning duties to Hove. On January 22, 2010 Hove was ordered by his supervisor to pick up and arrange bricks of a fallen wall. Hove told the supervisor that he was not able — at that particular point in time, to perform the duty due to his ill health. In response to this, the supervisor slapped Hove with a letter of suspension the very same day. The suspension was for “refusal to obey a lawful order.”

According to the suspension form, a disciplinary hearing was supposed to have been conducted at 12 noon the same day.
However, the hearing was postponed to January 25, 2010 at the request of Hove. It is trite that whenever disciplinary proceedings are to be conducted, the employee must be given adequate time to prepare his or her defence. It is a requirement which the employer must observe. The employee does not have to request for such time as occurred in Hove’s case.

His supervisor — one Mashiri — compiled a report regarding circumstances surrounding Hove’s conduct on the day in question. The report read as follows: “On January 22, 2010 at around 10.17am I gave an instruction to Edmore Hove, the groundsman, to pick and pile bricks from the fallen part of the company’s precast wall.

“I was at the site of the fallen precast wall when I gave him the instruction. He responded saying he was not interested in the duty and did not want to do it.
“I told him that I had no any other job (sic) for him to do. He responded saying I better fire him and I told him to go home if he did not want to carry out the duty.
“He went to change his clothes removing the work suit. I later called him after he was at the main exit door with the chairman of the works committee to give him a suspension letter and a date to appear before a disciplinary board.”

During the disciplinary hearing, Hove said Mashiri had told him that “if he escaped this case, God was with him.” Hove had reported that his chest was not well from the day he came back to work after attending a funeral. A representative of the workers, Mr Nemashakwe, told the hearing that “workers were being frightened (intimidated), and being threatened to say anything.”
On the same day the hearing was conducted, Hove received written communication that he had been dismissed from employment. There is no indication that he was given a chance to address the hearing committee in mitigation before the penalty of dismissal was imposed. Section 12B (4) of the Act requires that any adjudicating authority to “ . . . in addition to considering the nature or the gravity of any misconduct on the part of the dismissed employee consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal . . .”

In other words, before the penalty of dismissal was pronounced, Premier Knitting Company ought to have given Hove a chance to submit his mitigation.
Thereafter, the company should have considered whether such mitigation features were sufficient to call for a penalty other than dismissal.
The failure by Premier Knitting Company to consider mitigation means that it violated peremptory provisions of the Act. Hove was aggrieved by the determination and appealed to the relevant National Employment Council. The NEC found that there was no evidence showing that Hove had failed to obey a lawful order and ordered his reinstatement. Premier Knitting Company was in turn aggrieved by that decision and brought the matter for review before the Labour Court.

It averred that the committee that determined Hove’s appeal was not properly constituted.
Premier Knitting Company further averred that Hove was properly convicted of the charge which he was facing. It prayed that the decision by the NEC be set aside and that the appeal matter be heard afresh before a different and properly constituted committee.
The Supreme Court has emphasised that it is not desirable for labour disputes to be resolved on the basis of technicalities (Dalny Mine vs Banda, 1999 (1) ZLR 220). In Pangeti vs Grain Marketing Board 2002 (1) ZLR 454 (H), it held that where a disciplinary committee is not set up in terms of the provisions of the relevant code, the failure to comply with the provisions of the code constitutes a procedural irregularity.

In Madhodha vs Tanganda Tea Company Limited 1991 (1) ZLR 372, the disciplinary committee before which the employee appeared was not set up in terms of the company’s code.
This was because two members of the workers’ committee who were supposed to be part of the disciplinary committee were excluded.
The Supreme Court held that their absence was a fatal irregularity, which vitiated those proceedings.

Composition of the Appeals Board in the present matter was properly constituted according to the general secretary of the relevant NEC. It is clear that Hove did not carry out the order in question given to him.
However, it is equally clear that Hove enlisted the assistance of a workers’ representative in order to explain his condition. The employer did not allow him or his representative to explain.

He simply indicated that if Hove was not prepared to carry out the duty, there was no other duty that could be assigned to him. Thereafter, disciplinary measures were effected against Hove. Reference was made to the doctor’s assessment and guidance.
The mere mention by the doctor that Hove suffered from a medical condition was meant to guide the employer. This was important in that the employer would allocate duties to Hove from an informed position. Further, should that condition arise during the course of performance of duties, the employer would not be surprised.

Under the circumstances, the explanation as tendered by the workers’ representative sounds more probable on behalf of Hove. This means that there was no refusal to obey a lawful order as envisaged in Matereke vs Bowring and Associates (Pvt) Ltd 1987 (1) 206 (S). The Appeals Committee — after its deliberations — found that Hove had not committed the offence, and ordered his reinstatement.
Labour Court president, Ms Euna Makamure, therefore found no merit on the grounds for review and in the circumstances the application by Premier Knitting Company failed.