16 February 2017

Zimbabwe: Diamond Firm Wins Case Against Mole

IN a ruling that serves to remind workers of the importance of keeping confidential information from outsiders, the Supreme Court has confirmed the dismissal of a Marange Resources Limited employee who warned one of the company's suppliers that he should be careful in his dealings with the diamond miner as its financial position had become precarious.

Elson Gumbo, who was a shift foreman, was shown the exit after playing mole by communicating confidential company information with competition and other third parties to the possible detriment to the company.

Gumbo was dismissed in November 2012 after he was charged with violating the company's code of employment that prohibited employees from sharing confidential information with outsiders. Marange Resources, partly owned by the government, was one of the several firms that were mining diamonds in the Chiadzwa diamond fields of Marange most of which have since been compulsorily lumped together to form the State-owned Zimbabwe Consolidated Diamond Company.

The charges against Gumbo stemmed from two text messages on his phone. The first message was sent by Gumbo to a certain Gambiza. The message read: "Hello, are you still supplying Marange with cement, be cautious now our financial position is tricky. Did you manage to import those trucks? How is business and family?"

The second was a text message received Gumbo received from one Timba, one of his acquaintances, which read: "Am about to convince the finance min to invest in 3 plants to Marange. Do me a paper telling me the cost of landing them and timing of commissioning. Indicate approximate production output thereafter and estimated monthly revenues... "

For this communication, Gumbo was charged with violating clauses of his employment contract communicating to third parties, confidential information relating to his employer's affairs (Clause 11). Clause 9, of his contract proscribed him from engaging in the mining of diamonds in the Marange area without the consent of his employer.

After a disciplinary hearing, Gumbo was given the sack, and an internal appeal failed resulting in the matter going before an arbitrator who also upheld the dismissal leading him to appeal to the Labour Court, which also ruled that he deserved to be fired for his infractions.

In his appeal to the Labour Court, Gumbo claimed that his reference to Marange was not in reference to his employer, but Anjin, another diamond firm operating in Marange that he knew to be struggling.

Both the arbitrator, the Labour Court and the Supreme Court rejected this argument outright.

"The arbitrator in her factual findings with regards to appellant's (Gumbo's) text to Gambiza about 'Marange' found he could not be referring to Marange as a community," said Justice Vernanda Ziyambi who upheld the Labour Court's decision to reject Gumbo's permission to take his case to the superior court. The Labour Court had said: "Commenting on the arbitrator's interpretation of the sentence: 'our financial position is tricky', that: 'Our' to me shows that claimant was referring to none other than the respondent's company. This is highly buttressed by the fact that he was indeed part of respondent's company as an employee that is why he said 'our' showing a sense of belonging."

Ziyambi the concluded: "I am persuaded by the arbitrator's findings that appellant could not have known the personal financial status of the people who stayed in Marange to go to the extent of speaking in a representative manner."

The Supreme Court judge then ruled that the Labour Court was correct in denying Gumbo permission to appeal to the Supreme Court because his chances of success were nil.

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