Davis Ndumiso Sibanda, Labour Matters

IN a number of recent cases, members of the workers committee have been dismissed for various acts inconsistent with express and implied conditions of their contracts due to their ignorance of the law.

When workers are appointed to lead the workers committee or trade union at the workplace, there is a need for training by both the union and the employer. In most cases human resources staff contract outsiders to do the training to minimise allegations of bias and to get an individual who is not contaminated by internal labour politics.

The matter Kandoma vs Shades of Black Cosmetics Judgement number SC115 of 2004 set the warning to workers’ leaders to act in terms of the law. The brief case outline is as follows, Kandoma the workers committee chairman was found reading a book on betting and horse racing and admonished for misconduct.

He got upset and organised a strike against the employer. When the workers were being disciplined, they alleged Kandoma had organised the strike. When asked about the strike Kandoma became abusive and dared the employer to dismiss hm. The employer eventually dismissed him. He approached the Supreme Court arguing he should not have been dismissed.

The court said: “It must be borne in mind that by entering into a contract of employment the employee subjects himself to the employer’s control and should behave accordingly. Any behaviour on the part of the employee, which is wholly inconsistent with that relationship would render the continuance of that relationship untenable and would, undoubtedly, constitute a repudiation of the contract of employment by the employee”.

This case shows that being a member of the workers committee is not a licence to commit misconduct. This position was amplified by the Supreme Court in Chitembo vs Bindura Nickel Corporation judgment number SC35 of 2015 where Chitembo was accused of using stolen information from the employer.

He argued that as a chairperson he shouldn’t be disciplined. The court said:
“The status of being a workers committee member does not clothe him with a cloak of immunity against misconduct charges.” It went on to say as long as the conduct is unlawful it does not matter which hat the worker is putting on.

Last year in the matter Delta Beverages vs Shumba SC167/2020, the same problem arose when a member of the workplace trade union needlessly lost his job while arguing he was representing workers.

In this case the Supreme Court cited Chitembo vs Bindura where it said … “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 case puts even acts done outside work within the reach of the Code of Conduct as long as the conduct impacts negatively on the business of the employer.

Chitembo also addresses the fact that workers leaders should not use stolen information or steal information as that will lead to their dismissal. Delta Beverages further addresses the need for workers to tell the truth at all times when talking about the employer’s businesses. It also makes it illegal for the workers leaders to fail to follow informal procedures in dealing with workers’ issues.

In conclusion, before workers’ leaders assume office, they must be trained on their roles and basic legislation to avoid dismissing otherwise good men and women who will have acted out of ignorance.