Disciplining the workers’ committee

act in their official capacity, and does that breech their individual contracts to warrant dismissal.
What is the legal position regarding holding of disciplinary proceedings for workers’ committee members who are charged for an action carried out in their official capacity, not as individuals?
Gramma Records used to employ three workers who were also members of the workers’ committee. The trio was arraigned before the company disciplinary authority facing allegations of misrepresentation of facts to employees during a works council meeting.
During a works council meeting held on July 15, 2009, management and the workers’ committee had agreed on the issue of transport and medical aid.
The issue of salaries was not resolved conclusively. Following the meeting the employees had served Gramma with a notice of intention to strike on July 23, 2009.
It was Gramma’s allegation that the three committee members had also written to the Ministry of Labour misrepresenting that there had been no agreement on salaries, transport allowance and medical aid, which was not the case.
On the basis of this conduct, Gramma felt that the three had breached the duty of good faith to their employer and made continuation of employment intolerable. The trio was found guilty on the charges and consequently dismissed. The matter was subsequently referred for conciliation. The parties — through a certificate of settlement reached on October 2, 2009 — agreed to the trio’s reinstatement on the basis that Gramma had used a wrong code.
They were then reinstated without loss of salary and benefits. After their reinstatement the three were again arraigned for disciplinary hearing on October 9, 2009.
The matter was postponed twice on October 9 and 19, 2009 due to the absence of the trio’s representatives. However, the matter was subsequently heard on October 29, 2009. The hearing was held in absentia although the three workers were on the premises. The trio refused to attend on the basis of absence of their representatives.
They were found guilty on the charge of contravening Section 4 (a) of the Labour (National Employment Code of Conduct) Regulations 2006, Statutory Instrument 15 of 2006.
A penalty of dismissal was imposed in respect of each of the three. Aggrieved by this decision, the trio approached a labour officer who — upon failure to settle — then referred the matter to an arbitrator.
In an award handed down on May 14, 2010, by the arbitrator, Gramma was ordered to reinstate the three without loss of salary and benefits with effect from the date of unlawful dismissal. In the event that the employment relationship was deemed impossible, the trio was to be paid damages in lieu of reinstatement as agreed by the parties. Gramma Records then appealed against the arbitral award at the Labour Court arguing the following grounds:
l The arbitrator erred in his finding by failing to appreciate the three workers wilfully refused to attend a disciplinary hearing.
l The arbitrator erred in his finding of facts that is contrary to the evidence actually presented before him.
l The arbitrator erred at law by delving into merits of the trio’s dismissal, yet no evidence to that effect was ever led.
l The arbitrator failed to appreciate that it was entitled at law to hold a disciplinary hearing over the conduct of the workers.
l The arbitrator erred in holding that the trio made representations in their capacity as workers’ committee members and, as such, insinuating that they were entitled to misrepresent to whoever they wished.
l The arbitrator had failed to appreciate that the three made misrepresentations and that was contrary to their contracts of employment.    
The first ground of appeal is clearly merited. Gramma submitted that the arbitrator erred in failing to appreciate that the three wilfully refused to attend the disciplinary hearing. The facts in the record point clearly to the trio deliberately raising issues to avoid the commencement of the second disciplinary proceedings which Gramma was clearly entitled to hold in view of the quashing of the first disciplinary proceedings.
It is common cause that walking away from disciplinary proceedings entitles an employer to proceed with the proceedings notwithstanding. The second and third grounds of appeal raise a similar issue. Gramma Records alleges that the arbitrator erred when he delved into the merits of the matter when no evidence had been placed before him.
The three workers disagreed. It is believable that the arbitrator was correct in his approach. It is common cause that the trio’s disciplinary hearings were conducted in absentia. The three were therefore unable to put forward any defence to the charge. The record reflects that the disciplinary committee went ahead and made a determination on the merits of the matter without any further evidence having been placed before it on the merits of the charge.
This really begs the question as to how the disciplinary committee was able to conclude the case on the merits without any further evidence led.
It is a considered view that the arbitrator was clearly entitled to delve into the merits of the charges in order to avoid an injustice being perpetrated against the three workers. The arbitrator found that the charges were improperly laid against the trio. There was no impropriety in the manner in which the arbitrator handled the matter.
Ground number 4 is clearly merited and was conceded to by the arbitrator in his award. Gramma was entitled to hold the second disciplinary proceedings against the three as the initial one had been quashed.
The last two grounds raise what is believably the main matter in the issue. The issue is whether the three were correctly found guilty on the charge as presented considering that the representations were made in their capacity as workers’ committee representatives.
The arbitrator found that it was unfair for the employer to have levelled charges against the trio when the letters which carried the representations were written in their capacity as workers’ committee representatives.
The charge levelled against the three was that of contravention of Section 4(a) of Statutory Instrument 15 of 2006. The question that arises is whether based on the facts of this matter the trio’s conduct amounted to misconduct. It is clear the workers’ conduct does not. It is common cause that Gramma Records engaged them in various capacities. They obviously had duties under their contracts of which any breaches would result in misconduct. Their conduct, however, in this case related to roles they were playing as workers’ representatives, positions that they were elected into by the other workers.
It cannot be said again that the duties executed in their role as workers’ representatives were related to their contractual duties for which they were engaged.
In the circumstances, Labour Court president Ms Bridget Chivizhe found that Gramma Records’ appeal had no merit and dismissed it with costs.