Emmanuel Masvikeni v National Blood Service Zimbabwe

The appellant was employed by the respondent as a Blood Procurement Manager from October 2001 to April 2012. In 2011, anonymous emails containing divisive and damaging allegations against staff members and the Chief Executive Officer were circulated within the organization. Following investigations, the respondent concluded that the appellant authored these emails. In October 2011, the appellant was charged with three counts of misconduct under the National Blood Service Zimbabwe Code of Conduct: (1) writing and publishing anonymous letters damaging the reputation of superiors or colleagues; (2) deliberately giving untrue and misleading information about his superior; and (3) accusing his superior of nepotism. The appellant did not respond to the invitation to answer the allegations and was suspended without salary on 16 November 2011. A disciplinary hearing was held on 13 April 2012, which the appellant did not attend despite proper service. The disciplinary committee found him guilty on all charges and dismissed him on 26 April 2012. The appellant lodged internal appeals which were dismissed, and eventually referred the matter to the Labour Court. An Appeals Committee was constituted and dismissed his appeal on 5 August 2013. The appellant then appealed to the Labour Court, which confirmed the dismissal.

• Whether the Labour Court erred in striking out grounds of appeal relating to the composition and appointment of the disciplinary committee
• Whether the Labour Court made findings supported by the evidence on record, particularly regarding the appellant's admission to authoring the emails
• Whether the Labour Court correctly interpreted section 4(a)(vii) of the respondent's Code of Conduct relating to 'any other act of prejudice'
• Whether an employee who deliberately absents himself from disciplinary proceedings can later challenge procedural irregularities
• Whether the standard of proof on a balance of probabilities was correctly applied

The appeal was dismissed with costs.

The binding legal principles established are: (1) An employee who deliberately absents himself from disciplinary proceedings without seeking a postponement waives his right to challenge the conduct of those proceedings, including objections to composition and appointment of the disciplinary committee. (2) Where a code of conduct provision uses language such as 'any other act of prejudice' followed by illustrative examples introduced by 'such as', the provision is not exhaustive and extends to other acts of similar prejudicial nature not specifically enumerated. (3) Conduct consisting of publishing anonymous emails containing untrue and misleading information meant to damage a superior's reputation constitutes 'any other act of prejudice' toward fellow staff members for purposes of workplace disciplinary codes. (4) The standard of proof applicable in employment disciplinary matters is the balance of probabilities.

The Court noted with some curiosity that one of the appellant's grounds of appeal referred to an 'Appeals Officer' when no such officer was involved at any stage, and the reference ought to have been to the 'Appeals Committee'. The Court also observed the appellant's prevarication and attempts to avoid giving straightforward answers during the Appeals Committee hearing, at times disputing content of emails (particularly regarding quantities), claiming his email accounts were hacked, while simultaneously seeking to justify authoring emails on the basis that the issues raised were true. The Court further noted that an affidavit dated 22 November 2011 allegedly containing the appellant's admission was referenced in the disciplinary charges but was not part of the record before the Supreme Court, thereby limiting the extent to which it could assist in determination of the matter.

This case is significant in Zimbabwean labour law for establishing important principles regarding: (1) the waiver of procedural objections when an employee deliberately absents himself from disciplinary proceedings without seeking postponement; (2) the interpretation of non-exhaustive disciplinary codes that use illustrative language such as 'any other act' and 'such as'; (3) the application of the balance of probabilities standard in determining admissions in employment disciplinary matters; and (4) the limits on raising procedural challenges at appeal stage when the employee failed to participate in the original proceedings. The judgment reinforces that employees cannot elect to absent themselves from disciplinary hearings and then later challenge procedural aspects of those hearings.