Authenticating Electronic Records Based Evidence in Zimbabwean Labour Disputes

Today computers provide us with powerful tools for information handling, retrieval and distribution. Computers have contributed to the efficiency and effectiveness of organizations through the use of new communication channels such as social networks, emails, blogging and chartrooms for example. However, the internet had brought new set of challenges at the workplace such as the advent of cyber-crimes or misconducts which were unknown prior to the 1960s when the internet was introduced. In this paper the author will discuss some of the challenges in the admissibility of electronic/digital evidence in relation to labour related disputes in Zimbabwe.

According to Prince Edward Island Canada-Department of Environment, Labour and Justice an electronic record is defined as data that is recorded or stored on any medium in or by a computer system or other similar device that can be read or perceived by a person or a computer system or similar device. It is information captured through electronic means, and which may or may not have a paper record to back it up. It is also called a machine readable record.

The internet is a good asset to an organization if rightly used by employees; however it can turn to a liability particularly when it comes to employee misconducts. Some employee internet related misconducts may include copyright infringement, stalking, pornography, harassment, defamation, misuse of the company name over the internet for personal gain etcetera.

It has been always a challenge to employers or organizations to authenticate the internet based evidence to support the alleged findings that the electronic record used as evidence against an employee is what the organization claims it to be. Electronic records based evidence is open to challenge in courts because electronic data is easily edited modified and therefore electronic evidence can therefore be unreliable and fraudulently altered or misrepresented.

The other challenge which may be faced by Zimbabwean organizations in disciplining employees over internet related misconducts is that the majority of organizations do not have what is called the internet policies. An internet policy provides employees with rules and guidelines about the appropriate use of company equipment, network and internet access. This policy is a must for almost every organization. The organization internet policy must be incorporated into the organization’s code of conduct. Without the internet policy it may prove difficult to lay charges on an employee over internet related misconducts.

The other challenge is that the Zimbabwean labour laws are silent when it comes to internet related workplace misconducts; this includes the labour act and the Statutory Instrument 15 of 2006.  Mrs Revai Sweto-Mukuruba in her paper “Sadc Harmonised Legal Cyber Security Framework for Southern Africa” bemoaned the fact that the Criminal Law (codification Act) was not addressing holistically computer related crimes in Zimbabwe necessitating the tabling of a new Cyber Crime Bill before parliament during the current parliament session.

Though Mrs Revai Sweto-Mukumba says there isn’t any significant cyber- crime cases brought before the Higher Courts in Zimbabwe the author noted a case between Attorney General vs Bennet which was heard in the Supreme Court as of paramount importance in this discourse. The Supreme Court reaffirmed the high court ruling which said: “As previously stated in my earlier ruling, the court’s admission of the e-mails was conditional upon the sate being able to prove that the questioned e-mails are genuine and authentic. The state’s failure to prove the authenticity of the e-mails automatically renders the emails inadmissible.” Due to the fact that the Attorney General failed to prove the authenticity of the e-mails he had presented as evidence before the court Bennet was acquitted.

In other countries the courts have set up rules on the admissibility of electronic records.  Ala Pendleton (2013) reiterated that it is usually difficult to prove the real author of an email message or social network posting. He says since there is no security over these internet communications there will be always issues as to whether a third party may have sent a message via another user’s account. Standing alone, the fact that an email communication is sent on a social network and bears a person’s name is insufficient to authenticate the communication as having been authored or sent by that person.

How then can the employer authenticate electronic based evidence to prove that the alleged misconduct was indeed committed by an employee?  Ala Pendleton (2013) says there are three methods of authenticating electronic evidence. The first one is to ask the alleged author if he created the facebook profile or created the email account. It became easier if the employee voluntarily owns up the account and the message.

We move on to option two if the employee disowns the account and the posting. The second option involves searching the computer of the person who allegedly created the profile and posting and examine the computer’s internet history and hard drive to determine if the computer was used to create the profile and the posting in question. Option two poses a challenge where the internet was accessed on a personal mobile phone or computer, there is no way the company can have access to the employee’s personal gadgets unless the company gets a court order first.

The third option is to obtain information directly from the social network website that links the establishment of the profile to the person alleged to have created it and also links the posting sought to be introduced to the person who initiated it. Apart from being impossible option three is very expensive because it requires organizations to send emissaries to overseas where most social networks websites are hosted.

It is therefore the author’s advice to all employees to play wisely over the internet to avoid misconducts which may arise over the use of internet while it is also the author’s advice to employers to gather enough evidence to support their electronic records evidence before rushing to lay misconduct charges against your employees over internet related misconducts.

Etiwel Mutero is a labour consultant. He holds a B.Sc. Honours Degree in Records and Archives Management and a National Certificate in Records Management and Information Science. You can contact him on +263773614293, email etiwelm02@gmail.com or on   www.facebook.com/emutero 

    

Employee Grievance Handling Procedures in Zimbabwe

               

Although it is desirable that the workplace become a haven of peace and tranquility it so happens that issues and complaints arise. Shelly Frost of Demand Media noted that issues and complaints arise even in organizations with strong management and competent workforce. In this article the author will focus on the internal workplace employee grievance handling procedures.

“A real or imagined cause for complaint, especially unfair treatment” is a web definition of a grievance. The National Employment council for the Welfare and Educational Institutions of Zimbabwe (2005:8) defines a grievance as a complaint or dissatisfaction by an employee or employees about a particular condition or about general conditions of employment including any particular behavior on the part of management or fellow employees.

Kay Miranda of Demand Media list issues which may trigger a grievance as follows; things you are being asked to do as part of your job, the terms and conditions of your employment contract, for example your pay, the way you are treated at work, discrimination at work, promotion issues, unfair transfers, demotions, underpayments, you might think that your colleagues are bullying you because of your race, age disability or gender.

It is therefore, necessary for every employee to know the correct channels to follow in case of any complaint or grievances arising in order get a redress to any problems faced at work. Grievance handling procedures are normally detailed in a document called the Code of Conduct sometimes termed the code of ethics which sets the standard to legal, moral and superior work environment. Carter McNamara as quoted by Kay Miranda says, “Ethics is learning the difference between right and wrong, and then doing the right thing”. That is the aim of a written down code of conduct, to stipulate the right and wrong behaviors at a workplace and try by all means to encourage both the employer and the employee to choose right practices and behaviors.

The Labour Act Chapter 28:01 Section 101 disqualifies most of the Codes of Conducts used by some of the Zimbabwean organizations. A code of conduct is a negotiated document between the employer and employees represented by the Workers Union. There is no room for any employer to impose any code of conduct on workers without any consultation with the Workers Union in the Works Council. The negotiated and agreed code of conduct must then be registered with the Ministry of Labor through the Ministry’s Registrar in terms of Section 101 (1).It is the prerogative of the Registrar to register the Code of Conduct or refer the code to the Works Council for corrections or improvement.

The Labor Act goes on to say where there is a National Employment registered Code of Conduct all organizations falling within the industry covered by that particular National Employment Council are bound to use that NEC’s Code of Conduct save for organization which may need to apply for exceptions by applying direct to the NEC covering its industry to register its own code of conduct.

There is a number of unregistered codes of conduct out there, such codes have no legal basis and that employees must verify if Codes of Conduct used at their workplace are registered by the Ministry of Labour or not. If a Code of Conduct is not registered, it cannot be used in either grievance handling or disciplinary issues.

Usually most Codes of Conduct encourages that grievances be settled informally where an aggrieved employee just talks with his/her immediate supervisor and then the supervisor solves the dispute. However, this is not always the case because sometimes the immediate supervisor will be the cause of grievance or dispute. In such cases an employee can write a formal complaint as a MEMO or he/she fills grievance forms specifically designed for that. The grievance forms are usually kept by the Human Resources Department. The employee then forwards the letter or form to the immediate supervisor.

The NEC Code of Conduct for the Welfare and Educational Institutions in Zimbabwe (2005:9) states that “A grievance must be redressed as expeditiously as possible. In redressing the grievance the employee must be afforded an opportunity to state his grievance and all principles of natural justice must be observed.”[Emphasis mine]

Usually the Code of Conduct must state the number of days the immediate supervisor or any internal appeal authority must respond to the grievance. If the employee is dissatisfied with the response or he/she receives no response at all with the stipulated time of response he/she can appeal to the next internal authority as laid down in the code of conduct.

Workers are encouraged to exhaust local remedies as they pursue  their grievance to be addressed before attempting to seek for redress with Labor Officers or the NEC designated agents. Failure to exhaust local remedies may turn a sat back especially when cases are appealed in court where judges may rule in favor of the employer by referring cases back to internal grievance handling committees all because the employee did not exhaust local remedies.

At one point the employer must sat a Grievance Handling Committee to investigate and hear the employee’s concern and make a ruling for or against the employee depending on the facts gathered by the committee. If the employee is still not satisfied by the ruling of the internal Grievances Handling Committee, having been satisfied that local remedies have been exhausted as detailed in the Code of Conduct, the employee may escalate the grievance or dispute to the Labour Officers of the Ministry of Labour or the National Employment Council Designated Agents for redress. The author will write another article on conciliation and arbitration.

Employers are encouraged to solve employees’ grievances internally with empathy and avoid unnecessary grand standing. Allowing sometimes petty grievance to escalate outside to Labour Officers, NEC Designated agents and courts may impact negatively on the company’s image and may result in unnecessary costs such as legal fees and attachment of property by the Sherriff or the messenger ofcourt.

   Etiwel Mutero holds a B.Sc. Honors Degree in Records and Archives Management. You can contact him on +263773614293 or email him on etiwelm02@gmail.com or on facebook.com/emutero

Etiwel Mutero: Is Ndanga Persecuting Christian Churches in Zimbab...

Etiwel Mutero: Is Ndanga Persecuting Christian Churches in Zimbab...: On Friday the 30 th of May 2014 the media was awash with the news that Ndanga, some journalists and the riot police were given a thorough...

Is Ndanga Persecuting Christian Churches in Zimbabwe?

On Friday the 30^th of May 2014 the media was awash with the news that Ndanga, some journalists and the riot police were given a thorough beating by members of Johane Masowe led by Madzibaba Ishmael in Budiriro Harare. We were told that Arch Bishop Ndanga had gone there to announce to the Church members their church have been banned for abusing children and women’s rights. While we strongly condemn the use of violence to solve conflicts, it is the powers of the Arch-Bishop and the legality of banning Christian churches in Zimbabwe which progressive minded Zimbabweans questions.

The Arch-Bishop claim that as the president of the Apostolic Christian Council of Zimbabwe and as the Chairperson of the Administrative Court which was instituted specifically to look into issues of religion had powers to ban wayward Christian Churches. He is quoted saying so during a certain radio interview recently. The Bulawayo24.com staff reporter in an article titled ‘The Day When Everyone Wearing Shoes Became an Enemy’ reported that all hell break loose in Budiriro soon after reading the following words ;“With the powers rested in me as the Executive President of the Apostolic Christian Council of Zimbabwe today on May 30 2014,I have stopped the church…’

It is not the first time that Ndanga had sought or banned a church in Zimbabwe. Ndanga banned the End Time Message which was being led by Gumbura. Gumbura is now serving his 40 year jail term for raping several women in his church. While the author does not subscribe or condone certain practices of certain apostolic churches, Zimbabweans questions where Ndanga gets the powers to ban such churches. First Ndanga claim to get such powers by virtue of him being the President of ACCZ, however Zimbabweans questions if the ACCZ Constitution gives its President the powers to ban other churches in view of the fact that the Zimbabwean constitution guarantees the freedom of association and assembly. Again Zimbabweans questions if the Bishop is empowered by the same ACCZ to dictate the doctrinal faith of other Christian churches which are not affiliated to his organization. Zimbabweans now questions if the bishop is not on a crusade similar to that of Saul of Tarsus.

We are told that Ndanga is the Presiding Judge of an Administrative Court specifically appointed to preside over religious matters. Progressive thinking Zimbabweans questions the credibility of the bishop to preside over such a court since he is both a player and a referee in the game.  Ndanga is a Bishop of his own church, how can he be appointed to preside over a religious Administrative Court? Isn’t it possible that the Bishop may move around banning rival churches [for we know that churches like political parties sometimes scramble for membership and fame].

Progressive thinking Zimbabweans questions also the standard or the law which is being used by the bishop to ban certain churches in Zimbabwe. Is he using Biblical laws or civic laws, if he is using the Biblical rules or religious rules will that not tantamount to dictate other Christian Churches’ faith. Section 60 of the Zimbabwean Constitution guarantees the right to freedom of thought, opinion, religion or belief, and freedom to practice and propagate and give expression to their thought, opinion or belief, whether in public or in private and whether alone or together with others. The Bishop cannot tell what other churches must or not to believe. The freedom of religion is a fundamental human right covered by article 18 of the Universal Declaration of Human Rights.

If the Bishop is not using Biblical rules then he may be using the criminal laws of Zimbabwe and the constitution of Zimbabwe to ban the so-called wayward churches. We Zimbabwean questions if the bishop, a man of the cloth is empowered to enforce criminal laws of the country for we know for sure that the Police Commissioner and the ZRP are the rightful arms of the state entrusted with enforcing the laws of the country. Is the Bishop now a member of the ZRP? If indeed the apostolic churches are abusing women and children let the ZRP investigate case-by-case and arrest the culprits, why ban churches then? There is no need to label other Christian churches as satanic and the Budiriro incident could have been avoided. Ndanga must tell Zimbabweans if he is still a man of the cloth or he is now a government worker and a law enforcing agent to be specific.

Bill Flax a US religious liberty activist once wrote “our fathers never sought to evict the church from society. They recognized that several states did not share uniform values. We lived and worship differently” He went on to mention the French Revolution which you all know was all to do with ‘De-Christianization’ of the French Republic. The French were all behind the crusade in the first days but it latter degenerated into bloodshed and oppression. The same applies to this seemingly new crusade against apostolic churches which is being led by the bishop, if the crusade is not checked early it will soon degenerate to religious persecution, discrimination, war and blood bath. The Budiriro incident must be our object lesson and make, whosoever gave the bishop the powers to ban churches in Zimbabwe, to make a rethink. Religious issues are very sensitive and must be handled with caution.

We must never mix politics and religion. Thomas Jefferson [1808] is quoted as saying “Because religious belief, or non-belief, is such an important part of every person’s life, freedom of religion affects every individual. Religious institutions [like the ACCZ,my own insertion]that use government power in support of themselves and force their views on persons of other faiths, or no faith, undermine all our civil rights. Moreover state support of an established religion tends to make the clergy unresponsive to their own people, and leads to corruption within religion itself’ Is this not true to our Zimbabwean context? We are told the apostolic churches which are being banned by the Bishop these days are violating children and women’s rights but Zimbabweans questions the sincerity of the Bishop in protecting the rights of children and women. For how long have the Johanne Marange Apostolic Church been marring under age children to older people. It is known that Johanne Marange Apostolic Church member do not want their children to be immunized but the Bishop is not banning Johanne Marange Apostolic Church in Zimbabwe which is the largest apostolic church in Zimbabwe if not in Southern Africa but rushes to ban small churches like that of Gumbura and that of Madzibaba Ishmael.

It is author’s call to powers that be that this madness must be stopped and that there must be a total separation between church and state. Men of the cloth must not double both as Pastors and state agents. On criminal issues perpetrated in churches, the police must do its work. Pastors and Bishops must desist from acts which may be viewed as persecution of fellow Christians.

Etiwel Mutero is a religious liberty activist.You can contact him on etiwelm02@gmail.com or on mobile phone +263773614293.

Seventh-day Adventist SG Speech at Barberfields Stadium Zimbabwe

Seventh-day Adventist SG visits Zimbabwe