REPORTABLE (101)

Judgment No. SC 66/02

Civil Appeal No. 326/00

SHADRECK MOYO AND THIRTEEN OTHERS

v CENTRAL AFRICAN BATTERIES (PRIVATE) LIMITED

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, CHEDA JA & GWAUNZA AJA

HARARE, JUNE 18, 2002

W Ncube, for the appellants

P Nherere, for the respondent

GWAUNZA AJA: After hearing argument in this matter, we dismissed the appeal and indicated that the reasons would follow. These are the reasons.

The background to the dispute is as follows –

The appellants, who were employees and members of a workers committee of the respondent, on 26 August 1997 addressed a letter to the Officer-in-Charge, Norton Police Station, whose text was as follows:

“Dear Sir

COLLECTIVE JOB ACTION (STRIKE)

We wish to advise you of our intention to go on strike fourteen days from today, 26^th of August 1997. This is being done in accordance with the Labour Relations Act 16 of 1985, section 120, subsections 1 and 2.

We have already sent notices of this strike to the Trade Union and (the) Ministry of Labour.

Yours faithfully,

WORKERS’ COMMITTEE.”

It is not in dispute that this notice was not sent directly to the respondent.

Upon receipt of this notice, the Ministry of Labour intervened in the dispute, resulting in a determination by a labour relations officer on or about 13 October 1997. Although no copy of this determination was produced before this Court, both parties accept that it was indeed made.

The intervention by the Ministry of Labour, according to the appellants’ heads of argument submitted to the Labour Relations Tribunal (p 11 of the record), had the effect of stopping the workers of the respondent, including the appellants, from proceeding with the collective job action within the fourteen days specified in their notice of 26 August 1997.

Acting on the strength of that same notice, the appellants engaged in another collective job action from 3 to 5 December 1997.

The respondent, being of the view that the strike was illegal since no notice of it had been served on the respondent as required by s 104(2) of the Labour Relations Act (“the Act”), applied to a labour relations officer for authority to terminate the appellants’ contracts of employment. The labour relations officer found in favour of the appellants, prompting the respondent to refer the matter to a senior labour relations officer. The latter found in favour of the employer, that is, the respondent, a circumstance that led to this appeal.

It is important, for a proper consideration of this appeal, to note that there were two separate and distinct stages in the events that gave rise to this dispute. The first stage involves the notice of 26 August 1997 which, albeit not addressed to, nor received directly by, the respondent, nevertheless came to the attention of the latter. This is implied in the notice and minutes of a management and workers’ committee meeting of the respondent, held on 29 August 1997 (p 52 of the record). The notice of 26 August 1997 led to the intervention of the Ministry of Labour, which effectively put a stop to the threatened collective job action. The second stage of the dispute relates to the collective job action of 3 to 5 December 1997, some three months later, which led to the dismissal of the appellants. This strike also set in motion the proceedings that culminated in the appeal now before this Court.

The chairman of the Labour Relations Tribunal, in the judgment now being appealed against, made no reference to the first stage of the dispute. He instead considered the matter on the premise that the collective job action of December 1997 had been held on the strength of a defective notice, i.e. the notice of 26 August 1997.

In the light of our determination of this matter, already given, nothing turns on this oversight, save for the fact that this Court reached the same decision through a different route.

To go back to the appeal now before the Court. The appellants’ main ground of appeal is given as follows in the notice of appeal:

“The court a quo erred in failing to note that the notices of a collective job action were sent to both the police at Norton and to the respondent, dated 26 August 1997 as per (the) appellants’ heads of argument and confirmed by the respondent in (its) minutes of 29 August 1997, all filed of record.”

When this ground and the other evidence submitted on behalf of the appellants are considered in the light of the background to the dispute, outlined above, it becomes evident that the appellants’ attitude is –

(i) that the intervention of the Ministry of Labour in the first stage of the dispute, albeit putting a stop to the threatened collective job action, had nevertheless not extinguished the notice of 26 August 1997; and

(ii) that in regard to the strike of 3-5 December 1997, that same notice had effectively been served on the respondent.

I will revert to the first issue later and consider, first, the second point. This is because this Court must, at the outset, determine whether or not this appeal is on a point of law, and therefore properly before it. (Muzuva v United Bottlers (Private) Limited 1994 (1) ZLR 216 (S) at 219-220; National Foods Limited v Magadza S-105-95.¹

If one were to assume that the appellants are correct in arguing that the two stages that I have distinguished in this dispute were part of the same chain of events from August to December 1997 (and therefore that the notice of August 1997 sufficed for the strike in December), the question that arises is whether or not such notice complied with s 104(2) of the Act.

Mr Nherere, for the respondent, argues that the appeal is invalid as being an appeal on a point of fact, and not law. He supports this argument by contending that a finding as to whether or not a letter (i.e. the notice) was sent to the respondent is a question of fact and not law. It is contended further for the respondent that the wording of s 104(2) of the Act makes it clear that the notice in question must be given to the other party, by addressing it to that party. Where this is not done, even if the other party “somehow” gets to know of the intended strike, the notice would be fatally defective.

In disputing this argument, the appellants argue from a different perspective. They do not place emphasis on a letter having been sent to the respondent, so much as notice having been given or having reached the respondent concerning the threatened collective job action. As long as the notice reached the respondent, the appellants argue that s 104(2) was complied with. The evidence relied on by the appellants as proving that such notice “somehow” reached the respondent is indirect, to wit –

(i) a copy of a notice of a Management and Workers Committee meeting called for 29 August 1997, whose sole agenda item was given as “to discuss and resolve (the) letter to management on collective job action” (p 52 of the record); and

(ii) a reference in the minutes of that meeting to an enquiry made by the respondent’s managing director as to why the workers’ committee “had given management notice to go on strike”.

It is thus evident that while the appellants are giving s 104(2) a wide and loose interpretation, the respondent is giving it a more strict interpretation. To the extent that the determination of this appeal depends on how this Court interprets the section in question, the appeal before this Court is on a point of law and is therefore appropriately before it. This is regardless of the correctness or otherwise of the appellants’ argument that all the events in the dispute were part of one transaction stretching from August to December 1997.

This then brings me back to point (i) noted above at p 5.

The appellants contend that even if they did not proceed with the strike after the initial intervention of the Ministry of Labour official, whose determination came out in October 1997, the notice of August 26 remained good for purposes of the strike of December 1997.

I have difficulty in understanding this argument. Firstly, a closer look at the wording of the notice itself reveals a contradiction to this argument. The notice, whatever its merits or demerits, clearly states the workers’ intention to go on strike “fourteen days from today, the 26^th of August 1997”. To my mind, this is a very specific notice, warning of a strike on a day that a simple calculation would have determined. It is not in dispute that that date came and went and the strike did not take place. It did not take place specifically because officials from the Ministry of Labour, who received a copy of the notice of 26 August 1997, had intervened.

Secondly, even if the notice had not all but spelt out the date of the intended strike, and even if the Ministry of Labour officials had not intervened, it would be absurd, as Mr Nherere contends, to hold that a notice given on 26 August 1997 was still operational more than three months later. Apart from not being what the appellants intended, a period of three months, given the wording of s 104(2) of the Act, cannot be considered a reasonable delay.

That being the case, I am satisfied that the notice of 26 August 1997, whatever its merits, was meant for the strike planned for fourteen days from 26 August 1997, which strike was averted following the intervention of the Ministry of Labour. There is nothing in the evidence to support the argument that the same notice was intended to be, nor could be, extended to the strike that took place from 3-5 December 1997.

There is therefore merit in Mr Nherere’s contention that the effect of the initial determination of the labour relations officer was to lay to rest the dispute between the parties at that point in time. Further, that whatever dispute gave rise to the December strike was a fresh dispute, requiring a fresh notice in terms of s 104(2) of the Act.

Indeed, had the appellants not been satisfied with that determination, they would, one would expect, have continued with the strike on the date suggested in the notice. That they decided not to continue with the strike by the given date is evidence that they accepted their grievance had been addressed.

There is no evidence on record to show the nature of the grievance that led to the strike of December 1997. However, even if the grievance had been the same – for instance, because the respondent had not complied with whatever determination was made in October 1997 – as long as the original notice period had expired, there would still have been need to issue a fresh notice of the intended strike in accordance with s 104(2) of the Act. It goes without saying that the same would have applied if the grievance had been new, or different. Whatever the case may have been, it is evident no such notice was ever given by the appellants to the respondent as required by the Act. Therefore the Labour Relations Tribunal’s finding that the strike was unlawful because no notice had been given to the respondent as required by s 104(2) of the Act cannot be faulted.

Because the appellants proceeded on the premise that the notice of August 1997 was applicable to the strike of December 3-5, 1997, and relied on their own interpretation of s 104(2) of the Act to argue that such notice was not only valid but properly given to the respondent, it is necessary that I address this issue.

Section 104 of the Act reads as follows:

“(1) Subject to subsection (4), no employees, workers’ committees and trade unions shall have the right to resort to collective job action for the redress of lawful grievances.

(2) Subject to subsection (4), no employees, workers’ committees or trade unions shall resort to collective job action unless fourteen days’ written notice of intent to resort to such action, specifying the grounds for the intended collective job action, has been given to the party against whom the collective job action is to be taken.” (my emphasis)

I find the wording of these provisions, particularly subs (2), to be clear and unambiguous. The notice must be written, and must be given to the party against whom the collective job action is to be taken, by the employees, workers’ committee or trade union concerned.

The requirement concerning the giving of notice to the other party clearly suggests that the notice in question must be addressed or directed to the relevant other party. No doubt this was intended to ensure that the relevant other party was left in no doubt as to the date, the grounds for and the participants in, the threatened collective job action. No other person, in my view, has greater interest in such information than the relevant other party. While in casu the notice relied on by the appellants, whatever its merits or demerits in relation to the regulated content, was indeed written, it was not directed to the respondent. Even though it is not in dispute that the respondent did get to hear of the threatened collective job action, it is evident this was through indirect and indeed undefined means not attributable to the appellants. This cannot be what the legislature intended.

In the light of this interpretation, I find no merit in the contention made for the appellants that because a notice they addressed to some people other than the respondent had “one way or another” been received by the latter, the spirit of s 104 was sufficiently complied with. The wording of subs (2) clearly requires more than compliance with the “spirit” of the section. The requirement is peremptory.

Thus, whichever way one considers the evidence before the Court, I am satisfied that the finding of the Labour Relations Tribunal, to the effect that no notice was given to the respondent as required by the Act and that therefore the collective job action was unlawful, is correct.

Hence our dismissal of the appeal with costs.

CHIDYAUSIKU CJ: I agree.

CHEDA JA: I agree.

Mabuye & Co, appellants' legal practitioners

Wintertons, respondent's legal practitioners