DISTRIBUTABLE (18)

Judgment No. SC 23/03

Civil Appeal No. 161/02

DESIGN INCORPORATED (PRIVATE) LIMITED v

INNOCENT CHAPANGURA AND EIGHTY-EIGHT OTHERS

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, ZIYAMBI JA & MALABA JA

HARARE, JUNE 16 & OCTOBER 2, 2003

G C Chikumbirike, for the appellant

M Sinyoro, for the respondents

ZIYAMBI JA: This is an appeal from the Labour Relations Tribunal (now the Labour Court, but for the purposes of this judgment referred to as “the Tribunal”). The main issue to be determined is whether the appellant was, in terms of its Code of Conduct, entitled to dismiss the respondents without a hearing.

The facts giving rise to the appeal are as follows. The respondents, on 25 September 2000, engaged in a work stoppage for three hours. It is common cause that the work stoppage was not in accordance with the provisions of the Labour Relations Act [Chapter 28:01] (“the Act”), in that the requisite fourteen days’ notice in terms of s 104 (2) of the Act, had not been given to their employers. The respondents were so advised by the trade union representatives and returned to work. However, some of the respondents denied being on strike. They said they were summoned to the hall by the receptionist in the employ of the appellant. This issue was not resolved. The following day the respondents were issued with letters of dismissal. The letters were similar in content and read:

“This letter serves to notify you that you are dismissed from this company with effect from 26/09/2000. Reasons of your dismissal being that you took part in an unconstitutional mass strike on the 25/09/00 from 8.00 am to 11.00 am. The statutory instrument 3122 (sic) of 1993 indicates that this offence is of a serious nature warranting instant dismissal.

Section 3:8 clause states that ‘the following offences entail instant dismissal’:

(vi) Deliberate and unreasonable refusal to carry out instructions.

(viii) Incitement to strike in an unconstitutional manner.

(ix) Desertion of your work.

These offences have been committed by you. This has been confirmed by the representatives from the NEC Clothing Industry, Mr Gwande, and Trade Unions, Mr Kupara. These representatives also pointed out that it was illegal, warranting you a dismissal as indicated in our minutes of 25/09/00.

Several attempts were made by Top Management to stop you from striking but you failed to comply with these instructions.

Therefore (the) resolution passed by Management in consultation with the Chairman of the Board, Mr S Levy, is that all employees including yourself be dismissed from work instantly. However, you are free to apply for a position within the company and (the) deadline for all applications is 28/09/2000 at 4.30 pm.

Your terminal benefits will be given to you on the 29/09/2000.”

Following representations by the respondents to the National Employment Council (“the NEC”), the matter was referred to the labour relations officer who, while noting that the respondents had engaged in an illegal strike by reason of their failure to comply with the provisions of s 104 (2) of the Act, declined to deal with the merits of the matter as he felt precluded by s 101 (5) of the Act from so doing. The senior labour relations officer to whom the respondents appealed also declined jurisdiction on the same grounds.

Subsection (5) of s 101 of the Act provides:

“(5) Notwithstanding this Part, but subject to subsection (6), no labour relations officer or senior labour relations officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under a code, nor shall he intervene in any such proceedings.”

An appeal to the Tribunal against the determination of the senior labour relations officer was, in my view, correctly dismissed. However, the Tribunal was reluctant to dispose of the matter on technicalities, preferring to adopt the approach laid down by this Court in Dalny Mine v Banda 1999 (1) ZLR 220 at 221 E-G, and issued an order, by consent, giving leave to the respondents to place before it their appeal against their dismissal in terms of s 101(7) of the Act so that the real issues between the parties could be determined.

The learned member of the Tribunal, having heard evidence on the matter, found that the dismissals were not carried out in terms of the appellant’s code of conduct and were therefore a nullity. She ordered the appellant to reinstate the respondents and to proceed in terms of the “relevant labour laws” should the appellant decide to terminate the respondents’ contracts of employment.

Mr Chikumbirike, in his amended notice of appeal which was filed with leave of the Court, based the appeal on the following grounds, namely -

1. That the Tribunal misdirected itself in making a finding of law to the effect that the audi alteram partem rule was applicable in all situations which relate to the relationship between employer and employee;

2. That the Tribunal erred in making a finding that, despite there having been an agreement between the parties in relation to the dismissal of the respondents, the agreement was not enforceable as the respondents denied the agency of the Union representatives;

3. The learned member of the Tribunal erred by upholding the Chairman’s earlier ruling directing that an appeal be launched to the Tribunal from a hearing in terms of a Code of Conduct without exhausting all the domestic remedies enshrined in such code; and, finally,

4. The Tribunal erred in not specifying the amount to be awarded to the respondents as an alternative to reinstatement.

Before us, Mr Chikumbirike submitted that since the Code of Conduct (see infra), in s 3 thereof, provides for instant dismissal for the acts committed by the respondents, no trial was necessary since it was quite apparent that the respondents had engaged in an illegal strike and were therefore liable to the punishment prescribed by the said Code. I proceed to deal with this ground of appeal as it is the crux of the appeal and I am of the view that a determination of it will resolve the matter.

The Code of Conduct governing the parties is the Collective Bargaining Agreement: Printing, Packaging and Newspaper Industry, SI 322 of 1993 (“the Code”).

Section 2 of the Code provides for the procedures to be observed when “an offence is alleged to have been committed”. Section 2.1 provides as follows:

“2.1 Action by supervisors when an offence is alleged to have been committed or reported.

When an offence is alleged to have been committed, the Manager or Officer concerned will investigate and either dismiss the case, give an unrecorded warning (see section 3(2)) or lay a formal disciplinary complaint in writing (see section 2(3)) or arrange for a hearing to be held in terms of (section 2.5) hereunder.”

Section 2.5 sets out the procedure for investigating the case and collating evidence, including relevant documents and names of witnesses, with a view to ensuring a fair hearing of the case.

Section 3 is the penalty section. The penalties vary from unrecorded warnings to instant dismissal. The latter penalty is provided in s 3.8.1(d), which reads as follows:

“(d) the following offences entail instant dismissal, provided they have been proven-

(i) – (vii)..

(viii) incitement to strike in an unconstitutional manner …”.

In the context of the Code it would seem to me that the phrase “instant dismissal” means dismissal as opposed to some other penalty (like a warning for example). It could not in this context possibly mean dismissal without a hearing. Had this been the intention of the framers of the Code, they would have said so. The words “provided they have been proven” have the clear meaning that a hearing is envisaged. Further, s 2 of the Code makes it clear that instant dismissal is the harshest penalty and should only be imposed in the most extreme cases, namely those set out in subpara (d) supra.

Having regard to the procedure detailed in s 2 to be followed in the event of the commission of an “offence” and the clear proviso that instant dismissal can only be imposed if the offence is proven, it is evident that the framers of the Code did not intend that commission of any of the offences set out in subpara (d) would merit dismissal without a hearing. I am fully persuaded, therefore, that instant dismissal, as used in subpara (d) of the Code, does not mean dismissal without a hearing and that the appellant acted contrary to its Code of Conduct – in particular s 2 thereof - when it dismissed the respondents without a hearing.

Mr Chikumbirike submitted that the offence was proven, in that the respondents agreed that they were on an illegal strike. There was therefore no need to prove the fact of their participation in an illegal strike. The difficulty with this submission is that there were factual issues raised by the respondents (for example whether they assembled in the hall at the request of the appellant’s management or whether they were summoned there to strike by other workers) which required resolution before it could be proved that all the respondents had engaged in an illegal work stoppage.

In view of the finding that the appellant, in dismissing the respondents, acted contrary to its Code of Conduct, I do not consider it necessary for a determination of this appeal to decide whether or not the audi alteram partem rule has any application in the present case. The matter can be resolved on the basis that the dismissals are invalid for non-compliance with the appellant’s Code of Conduct. Compare Mugwebie v Seed Co Ltd and Anor 2000 (1) ZLR 93 (S).

Mr Chikumbirike submitted, in the alternative, that the respondents through their representatives, the trade union officials, agreed upon their dismissal by the appellant and that accordingly the respondents are estopped from denying the agreement or the agency of the union officials.

This alleged agreement is, of course, denied by the respondents. They say that the officials who attempted the mediation were not of their union but of the clothing industry union and this fact is common cause. Further, had there been an agreement for their dismissal, why, they ask, would the trade union officials plead with the appellant not to dismiss the respondents but to give them a warning?

In any event, the alleged agreement was not a written one and, in terms of s 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985, SI 371 of 1985, any such agreement would have to be in writing.

Section 2(1) of SI 271/85 provides as follows:

“2 (1) No employer shall, summarily or otherwise, terminate a contract of employment with an employee unless –

(a) he has obtained the prior written approval of the Minister to do so; or

(b) he and the employee mutually agree, in writing, to the termination of the contract; …”.

Thus the legislature has stated quite authoritatively that any agreement between an employer and employee to terminate the employee’s employment contract must be in writing. Had the agreement been reduced to writing and signed by the respondents or their chosen representatives, Mr Chikumbirike’s submission might have been on firm ground, but that is not the position which pertains here. Not only has the alleged agreement not been expressed in writing but the respondents deny giving a mandate to the union representatives to enter into such an agreement on their behalf. The portions of the record to which we were referred, in my view, establish neither the fact of the agreement nor the mandate of the union officials to represent the respondents. Accordingly no reliance can be placed on the alleged agreement.

The next issue relates to the Tribunal’s decision to hear the appeal by the respondents against their dismissal by the appellant before the respondents had exhausted their domestic remedies.

It should be noted in the first place that the order granting the respondents leave to appeal to the Tribunal was made by consent of the parties.

Further, whether or not a court or tribunal will hear a party who has not exhausted his domestic remedies is a matter for the discretion of that court or tribunal and it is trite that an appellate court will not interfere with the exercise of its discretion by the lower court or tribunal unless it can be shown that there was an improper exercise of its discretion by that court or tribunal such as to vitiate its decision in the matter appealed against. This ground of appeal must also fail, as there was no allegation of improper exercise by the Tribunal of its discretion to entertain the appeal.

I turn now to the final ground of appeal, which relates to the applicability of the proviso to s 96(1)(c) of the Act.

In terms of the proviso to s 96(1)(c) of the Act, a labour relations officer or senior labour relations officer in determination of a dispute or allegation of unfair labour practice is enjoined to assess the damages to be paid by an employer as an alternative to reinstatement. In terms of s 91 of the Act, this provision applies to the Tribunal only where it varies a determination or substitutes its own determination for the one appealed against. Subsections (1) and (2) of s 91 of the Act are set out hereunder:

(1) In determining an appeal in terms of this Part, the Tribunal may confirm, vary or set aside the determination appealed against, or substitute its own determination for the one appealed against, and may make any order as to costs.

(2) subsections (1) to (4) of section ninety-six –

(a) shall apply, mutatis mutandis, where the Tribunal varies a determination or substitutes its own determination for the one appealed against;

(b) may, at the direction of the Tribunal, mutatis mutandis, apply to any determination made by it otherwise than on appeal.”

The question to be answered here is whether it can be said that the Tribunal varied the determination or substituted its own determination for that appealed against. My view is that it did neither. What it did was to declare the proceedings null and void. In so doing it was declaring that no hearing or determination recognised by the law took place. Therefore the respondents were not dismissed and remain employees of the appellant and are entitled to all the rights and benefits attaching to their status until such time as they are dismissed by the appellant. Accordingly the proviso to subs (1)(c) of s 96 of the Act is not applicable in this case.

The appeal is therefore dismissed with costs.

CHIDYAUSIKU CJ: I agree.

MALABA JA: I agree.

Chikumbirike and Associates, appellant’s legal practitioners

Sinyoro, Muunganirwa and Company, respondents’ legal practitioners