|Mind who you speak to|
|Thursday, 21 June 2012 12:00|
Many workers have been charged for allegedly divulging confidential company information to the media without authority from employers. This includes workers employed by the Government, as they are not allowed to give interviews to the media, with departmental heads only allowed to do so.
However, some workers have given interviews in their capacity as workers’ union members, but have still faced disciplinary proceedings. Maranatha Ferrochrome employees Stephen Kwava and Charles Chihenyanga were dismissed when they gave an interview to the Zimbabwe Broadcasting Corporation.
What was not known was the exact content of the interview and no evidence was led on this.
The interview to the media was given by the two in their capacity as officials of the workers’ committee.
The allegations were that they gave a statement to the media without authorisation, divulged confidential information without permission, as well as gave false statements.
These acts were said to be in contravention of Section 15 of their contract of employment on confidentiality.
The Section reads: “Confidentiality — you will be required to keep all information relating to our operations confidential and may only divulge sensitive information with permission from the Plant Manager. No statements may be made to the media or Government agencies without prior clearance.”
According to Chihenyanga, it was clear that what was termed confidential information was the managing director’s brief which was also given to the Ministry of Labour. This brief was said to have been quoted verbatim by the Press. Chihenyanga did not deny giving the information to the Press.
Rather, he argued that he did not regard it as confidential as it had been given to all employees and to the Ministry of Labour. The issue of false statements was said to do with statements on the financial position of the company.
Kwava was found guilty of all three “counts,” while Chihenyanga was found guilty of the first two counts. He was given the benefit of the doubt.
But, how could one be found guilty and the other and not guilty of the same facts? However, the penalty was dismissal for both. An appeal to the Appeals Officer failed and the matter was referred to a conciliation officer and then to an Arbitrator.
The Arbitrator found that the two workers should not have been dismissed from work “since they simply stated a factual fact what was affecting them — that is non-payment of wages.” He also made a finding that “some provisions of the employment contracts had no legal force at law.” The Arbitrator did not say what provisions these were. This was, however, said in view of the fact that the contract was signed when the employer was still under the Export Processing Zone.
Aggrieved by the arbitral award, Maranatha then appealed to the Labour Court.
It argued that the Arbitrator erred in finding that the two workers’ conduct did not amount to conduct inconsistent with the terms of the contracts of employment.
Having found, as he must have done, that the workers were interviewed by ZBC and that this contravened their contract of employment, the Arbitrator’s decision was outrageous in its defiance of logic, Maranatha further argued. It submitted that the Arbitrator misdirected himself in finding that the contract of employment between the parties was outdated. In further ordering that the two be reinstated without giving Maranatha the option to pay damages in lieu of reinstatement, it was submitted, the Arbitrator acted ultra vires the provisions of the Labour Act.
The last ground of appeal is not contestable. The error can be cured by returning the matter to the Arbitrator or by the Labour Court giving alternative penalty. The third ground of appeal was also irresistible, as the Arbitrator did not indicate as to which provisions were outdated and why. For that reason, the finding is defective and dismissable although the workers have tried to argue in their favour. It has to be noted that the two workers did not find it necessary to match their heads of arguments with their grounds for opposing the appeal. From the relevant contract it is necessary to decide whether the two workers should have been charged in their capacity as employees or whether they should be seen in the other capacity of workers’ committee officials.
If they were workers’ committee officials, it then becomes necessary to decide whether they should be held to the contract of employment. If they should be held to it, can it nevertheless be said that they breached it? If they were to be charged as employees, did they nevertheless breach the contract?
Was there any proof of sensitive information? Was false information given to the Press? Should the two workers be charged in their capacity as employees or as workers’ committee officials? The employer is dealing with its employees and has the right to charge them as such. It is up to them to plead accordingly as they did.
The question that arises is whether what they did was done as members of the workers’ committee or as ordinary workers. From the evidence available, they were interviewed in their capacity as official workers’ committee members.
They were speaking for the workers about the work situation. That appears to be a legitimate function.If the two acted as workers committee members, can they nevertheless be held answerable to the contract that they signed? Could they contract out the activities of the workers committee? It appears as though this is not possible for two reasons.
Firstly, the contract is at a personal level in which case the employee would need authority from members of the workers committee to contract out for the organisation.
Secondly, to agree to be controlled in publicity seems to be against both the Labour Act and the International Labour Standards.
Section 7, paragraph (b) of sub-Section (1) of the Labour Act reads the following.
“No person shall threaten any employee with any reprisal for any lawful action taken by him in advancing or protecting his rights or interests.”
If the interview in question was done in furtherance of the employees’ interests or rights, then there cannot be any reprisals.
The bottom line of the issue for which the interview was given was that salaries were not paid in time.
The interview could in the circumstances have been used as a bargaining tool. Indeed, it did jolt the employer to action.
Therefore, it is arguable whether the employee should be gagged even if he is not a member of the workers committee, let alone a member thereof.
This provision should be read with paragraph (d) of Section 4 of the same Act, which reads the following.
“Notwithstanding anything contained in any other enactment, every employee shall, as between himself and his employer, have the following rights.
“Where he is a member of a workers committee, the right to engage in the lawful activities of such workers committee for the advancement or protection of his rights.”
To require a member of the workers committee to get clearance first from the employer before he gives a brief to the media on matters that fall under the activities of the committee would be hindering the member in his lawful activities.
This would be an unfair labour practice. In its fifth edition of the “Digest of decisions and principles of the Freedom of Association Committee of Governing Body of the ILO,” it says the following in paragraph 156.
“The right to express opinions without previous authorisation through the press is one of the essential elements of the rights of occupational organisations.”
It follows therefore that the workers committee member should not be required to clear his communication with any manager or employer.
Fear may arise that the employee can become an unruly horse hiding behind the cloak of the workers committee.
However, such fear should be allayed by the understanding that what the employee is protected in doing is that which is in line with furthering his rights or interests as a worker.
In the present case, the two had a right to speak to the press as members of the workers committee.
What they said appears to affect their employment, failure to pay salaries.
For them to be held liable, the employer had to show that they went beyond what was acceptable in the furtherance of their rights.
In the result, Labour Court president Mr Custom Kachambwa dismissed the appeal by Maranatha Ferrochrome with costs.