Judgment No. SC 09/09

Civil Appeal No 69/02

CARNAUD METAL BOX (PVT) LTD v BONIFACE MWONZORA AND TWENTY-THREE OTHERS

SUPREME COURT OF ZIMBABWE

CHEDA JA, ZIYAMBI JA & MALABA JA

HARARE, MARCH 3, 2008 & MAY 19, 2009

E Matinenga, for the appellant

R. Matsikidza, for the respondents

CHEDA JA: The appellant is a company which employs the respondents to do, among other functions, engineering, printing and packaging. The respondents were employed in the printing department of the appellant.

Sometime in 2004 the appellant awarded a salary increase to the engineering department. The respondents were aggrieved by the fact that they were not awarded an increment and took the matter up with their employer. They complained that they felt segregated as they were awarded only what had come from bargaining in the printing industry.

On 28 July 2004, having had no reply from their employer, they wrote a memorandum to the employer giving notice to go on unspecified job action.

On 2 August 2004 a meeting was held between the employer and members of the Workers Committee. The matter was discussed and Mr Randall representing the employer advised that what the respondents were doing was wrong and that an unconditional retraction was needed by the end of Wednesday 4 August before any further dialogue or discussion could take place.

On 19 August 2004 the respondents carried out their threat because on that same day the employer, through its manufacturing manager S Mudzudzi, issued a verbal order, followed by a written one, ordering the respondents to return to work immediately and end the collective job action which was unlawful. The respondents disobeyed that order. Later that day a letter of suspension was addressed to the respondents by W Ntini, the Human Resources Manager. He also charged the respondents with persistent refusal to obey lawful instructions in terms of s 2 para 2.2.2(d)(1) of the Printing, Packaging and Newspaper Industry (Code of Conduct) S.I 322/93.

The section provides as follows:

“2.2.2. Type of offences when suspension is mandatory.

An employee must be suspended from work immediately and removed from his place of work if he has committed or is involved in any of the following offences –

(a) - (i)…

(j) insurbodination (if the situation shows signs     of becoming out of control) and persistent     refusal to obey lawful instructions.”

The disciplinary hearing was held from 13 September 2004 to 15 September 2004. At the conclusion of the hearing the respondents were found guilty of engaging in an illegal job action and refusing to carry out a lawful instruction to go back to work.

On 16 September the employer dismissed the respondents from employment. The respondents appealed to the Manager (Mr Randall) without success. The respondents appealed to the labour court against their dismissal.

The labour court allowed the appeal and set aside the dismissal.

This is an appeal against the labour court’s decision.

The starting point here is the job action. Was it lawful or unlawful?

On 19 August the various shifts in the printing section engaged in a collective job action, after which they were suspended because they had not followed the proper procedure required for the job action.

Part XII of the Labour Act [Cap 28:01] provides as follows:

“RESOLUTION OF DISPUTES AND UNFAIR LABOUR PRACTICES

93 Powers of labour officers

(1) A labour officer to whom a dispute or unfair labour  practice has been referred, or to       whose attention it  has come, shall attempt to settle it through            conciliation or if agreed by the parties, by reference to arbitration.

(2) … .

(3) If the dispute or unfair labour practice is not settled within thirty days after the labour officer began to attempt to settle it under subsection (1), the labour officer shall issue a certificate of no settlement to the parties to the dispute or unfair labour practice.”

Section 104 of the Act provides as follows:

104 Right to resort to collective job action

(1) Subject to this Act, all employees, workers committees and trade unions shall have the right to resort to collective job action to resolve disputes of interest.

(2) Subject to subsection (4) no employees, workers committee, trade union, employer, employers organization or federation shall resort to collective job action unless

(a) …

(b) an attempt has been made to conciliate the dispute and a certificate of no settlement has been issued in terms of section ninety-three

(c) … .”

In this case both s 94 and s 104 were not followed. That is why the appellant advised the respondents that the collective job action was unlawful.

The respondents also argued that the matter came to the attention of the designated agent and his efforts to conciliate were shattered by the appellant’s human resources manager.

A designated agent is defined as a designated agent of an employment council in terms of s 63 of the Act.

Section 63 (3a) provides as follows –

“A designated agent of an employment council who meets such qualifications as may be prescribed shall, in his or her certification of appointment be authorized by the registrar to redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered and the provisions of part XII shall apply with the necessary changes to the designated agent as they apply to the Labour Officer.”

The respondents argued that a designated agent of an employment council does meet such a qualification. Section 63(3a) of the Act says such a designated agent meets the qualification if in his certificate of appointment he is authorized by the Registrar. They submitted that the powers of the Designated Agent are the same as those of a labour officer. This submission is not supported by the provisions of the Act. The respondents have not shown that the Designated Agent concerned was vested with such powers at the time of his appointment by the Registrar.

On this point the labour court held that an attempt to conciliate had been frustrated by the Human Resources Manager of the appellant who said the appellant was capable of resolving the dispute. This does not meet the requirements of the law.

Assuming that the Human Resources Manager said so, that does not prevent the respondents from following the proper procedure, especially when the stage was reached that the dispute was not resolved. The labour court also held that no specific allegations or factors were put to the respondents as to the unlawfulness of the strike. Even if that is correct, it does not make the strike lawful,

The respondents were advised that the collective job action was unlawful. They were ordered both orally and in writing, to return to work. They did not do so.

Boniface Mwonzora, the first respondent, was a member of the Workers Committee.

After he was advised about the unlawfulness of the collective job action, he did not report back to the other respondents.

The respondents therefore continued the collective job action in defiance of the lawful order “and persistent refusal to obey lawful instructions” as provided in sub(s)(j) of para 2.2.2. of s 2 of S.I.

The labour court in its judgment stated that the sole issue upon which the matter would be determined on the merits was whether the strike was lawful.

In view of the failure by the respondents to follow the proper procedure as described above, it is clear that the collective job action was unlawful. The respondents raised other issues which they said were irregularities in the proceedings on which the court should set aside the decision of the disciplinary committee.

Even assuming there were such irregularities proved, that does not make an unlawful job action lawful.

The Chairperson’s casting vote was necessary as part of the procedure since he was part of the proceedings. The fact that he was a representative of the employer does not change the position, and such argument could be raised also against the representative of the employees who was himself an employee and one of the respondents involved in the dispute. A finding on the illegality of the collective job action would still entitle the appellant to hold that the respondents were guilty of an act of misconduct.

On the issue of suspension, the respondents submitted that it was a nullity as it did not specify the period of suspension. The appellant stated in the suspension letter that it was pending disciplinary action, which according to the record was instituted within two days of the suspension. The respondents were suspended on 30 August 2004 and on 2 September 2004 they were charged with misconduct.

The respondents, in their submissions raised several issues which were not raised by the appellant. These issues do not help in resisting the appellant’s case that they were discharged on the basis of a finding that the collective job action was unlawful.

Accordingly, there is merit in the appeal and it is allowed with costs.

The order of the labour court is set aside and substituted by the following.

“The appeal is dismissed with costs.”

MALABA JA: I agree

ZIYAMBI JA: I agree

Gill, Godlonton & Gerrans, appellant’s legal practitioners

Donsa Nkomo, respondents’ legal practitioners