DISTRIBUTABLE (88)

Judgment No SC 118/04

Civil Appeal No. 81/04

C.      KAMBUZUMA AND TWENTY-TWO OTHERS v

THE ATHOL EVANS HOSPITAL HOME COMPLEX

SUPREME COURT OF ZIMBABWE

SANDURA JA, MALABA JA & GWAUNZA JA

HARARE, NOVEMBER 11, 2004 & JANUARY 13, 2005

T Biti, for the appellants

R Y Phillips, for the respondent

SANDURA JA: This is an appeal against a judgment of the Labour Court which dismissed the appeal to that court by the appellants (“the workers”) against their dismissal by the respondent (“the Home”).

The factual background is as follows. At the relevant time the workers were employed by the Home, an institution which looked after patients and other persons needing care, and which fell under the general ambit of the Salvation Army. Four of them were nurse aides, three were maintenance workers, eleven were gardeners, two worked in the kitchen and three worked in the laundry.

On 26 and 27 November 2001, the workers embarked upon collective job action because of a salary dispute. The collective job action had been recommended by their trade union, and fourteen days’ notice of the intention to resort to such action had been given to the Home in terms of s 104(2) of the then Labour Relations Act [Chapter 28:01] (“the Act”).

Thereafter, on 3 December 2001 Mr Howard (“Howard”), the administrator of the Home, wrote to each of the workers as follows:

“On the 26^th and 27^th November you took part in collective job action which seriously disrupted the hospital and caused considerable distress.

Under the Salvation Army Code of Conduct you are suspended from duty immediately, without pay or benefits.

Attached is the Complaint Form, and you are invited to complete Section Two in your defence and return it to the Chairman of the Disciplinary Committee.

The Disciplinary Committee has called for a Hearing at 2.15 pm on Wednesday the 5^th December 2001 at the Salvation Army Headquarters, 45 Josiah Chinamano Avenue, Harare, when you are requested to attend.”

Subsequently, on 5 December 2001 only one worker arrived at the venue where the disciplinary committee (“the Committee”) was scheduled to conduct the hearing, but she refused to appear before the Committee. The hearing was then postponed to 12 December 2001, and the workers were informed in writing. They were warned that if they did not attend, the proceedings would go ahead in their absence.

However, on 12 December 2001 the workers appeared before the Committee and were represented by Mr E Guri (“Guri”), a trade union representative. At the commencement of the proceedings, Margaret Sutherland (“Sutherland”), the chairwoman of the Committee, stated that the act of misconduct complained of in terms of the Code of Conduct (“the Code”) was unlawful collective job action.

Sutherland then read out the statements made by the persons who had witnessed the unlawful collective job action, and who were present at the disciplinary hearing. Thereafter, Guri handed in the Complaint Forms which had been completed by the workers, and on which the workers had set out their replies to the charge.

Each worker had replied to the charge as follows:

“It was not an unlawful collective job action as notice was given to the employers by the union dated 29 October 2001. The collective job action was a national job action. The issue in dispute is of right and not of interest as prescribed by SI 307A of 2001.

It is my understanding that the matter has since been referred to the Registrar of Labour Relations for resolution.

There was no show cause order issued by the Minister, and no disposal order declaring the collective job action as unlawful.”

After the Complaint Forms had been handed in by Guri, Sutherland gave the workers the opportunity to say what they wanted to say about the charge. Guri spoke on behalf of all of them and raised a number of issues to which the Committee responded. The Committee then reserved its decision.

Thereafter, on 17 December 2001, the Committee found the workers guilty and recommended their dismissal. Accordingly, on 21 December 2001 Howard dismissed them with effect from 3 December 2001, the date on which they had been suspended.

The workers then appealed to the Labour Relations Tribunal (“the Tribunal”) (now the Labour Court), but the appeal was subsequently dismissed. Aggrieved by that decision, they appealed to this Court.

In their notice of appeal, the workers prayed that the decision of the Labour Court be set aside on the following grounds:

“1.1 The Court a quo erred in law in ignoring the fact that the respondent had conducted a mass disciplinary hearing.

1.2 A fortiori the Court a quo ignored that the Code of Conduct was not respected with regard to the need for each individual employee to be separately judged and separately brought before a disciplinary hearing.

2.1 Further the Court a quo grossly erred in holding that the Code of Conduct that was applied was registered or was the correct one.

2.2 Moreover the Court a quo grossly erred in holding that the collective job action embarked upon was unlawful.”

An attempt to amend the grounds of appeal by the addition of two new grounds was abandoned at the hearing of the appeal. I shall deal with the grounds of appeal set out above in turn, though not in the same order.

THE COLLECTIVE JOB ACTION

The Labour Court found that the collective job action embarked upon by the workers was unlawful because it contravened s 104(3)(a)(i) of the Act. In my view, that decision was correct.

Section 104(3)(a)(i) of the Act provided as follows:

“Subject to subsection (4), no collective job action may be threatened, recommended or engaged in by –

(a) any employees, workers committee or trade union –

(i) if the employees concerned are engaged in an essential service; … ”.

Subsection (4) of s 104 of the Act, which is mentioned above, is not relevant in the present case.

At the relevant time, the definition of “essential service”, which was set out in s 102 of the Act, included “any health, hospital or ambulance service”.

In my view, bearing in mind the fact that the Home was registered as a nursing home, and that it looked after people suffering from sickness, injury and the infirmities of old age, there can be no doubt that it provided a health service to the patients it looked after.

The workers were, therefore, engaged in the provision of an essential service, and should not have embarked upon the collective job action. The fact that some of them were not directly involved in looking after the patients is irrelevant. They were all employed by the Home which provided an essential service, and their services were required for the proper functioning of the Home.

THE ALLEGED MASS HEARING

The allegation that the Committee had conducted a mass hearing was not one of the grounds on which the workers relied when they appealed to the Tribunal against their dismissal. Consequently, when the appeal was later heard by the Labour Court, that court did not deal with it, and cannot be faulted for not doing so.

As McNALLY  JA stated in S.T. Chikanda v United Touring Company Ltd SC-7-99 (not reported), at pp 3-4 of the cyclostyled judgment:

“The function of the Tribunal was to deal with the appeal on the basis of the grounds of appeal raised by the appellant. …

If the argument was not raised before the Tribunal, the Tribunal cannot be faulted for not dealing with it. It cannot be a ground of appeal from the Tribunal that it did not deal with a matter it was not asked to deal with.”

In the circumstances, the allegation of a mass hearing was not a matter properly before us, and cannot be a basis for setting aside the Labour Court’s decision.

However, even if the allegation had been a matter properly before this Court, I do not think that the workers would have succeeded in their attempt to persuade us that the Labour Court’s decision should be set aside on that basis.

Whether a disciplinary hearing is a mass hearing which vitiates the disciplinary proceedings would depend upon the facts of each case. The number of employees involved in the hearing is not decisive of the matter.

In Cargo Carriers (Pvt) Ltd v Zambezi & Ors 1996 (1) ZLR 613 (S) the number of employees involved in the disciplinary hearing was three hundred and twenty-two, and the holding of a hearing involving so many employees was inconsistent with the provisions of the relevant Code of Conduct. In addition, the employees were not given an opportunity of making oral submissions at the hearing. This Court held that the holding of such a mass hearing was improper and that, as a result, the disciplinary proceedings were vitiated.

However, the facts in the present case are very different from those in the Cargo Carriers case supra. Firstly, the disciplinary hearing involved only twenty-three workers as opposed to three hundred and twenty-two. Secondly, at the hearing the twenty-three workers were given an opportunity to make oral submissions individually but they decided that Guri should make the submissions on their behalf. And finally, the Code of Conduct in the present case envisaged a disciplinary hearing involving more than one worker. It provided, inter alia, as follows:

“A disciplinary hearing will be attended by:

employee(s) facing disciplinary action; …”.

In the circumstances, the holding of a disciplinary hearing involving the twenty-three workers cannot be faulted.

THE CODE

In this regard, the Labour Court found that the Code had been registered and that it applied to the workers. These are findings of fact and, unless it can be said that they are so outrageous in their defiance of logic that no sensible person who had applied his mind to the relevant issues could have made such findings, this Court will not interfere with them.

In my view, bearing in mind that the Code is stamped “Labour Relations Registrar 20^th October 1992” on every page, and that in the application for the registration of the Code it was specifically stated that the Code would apply to the Athol Evans Hospital Home, Harare, I cannot say that the findings of fact made by the Labour Court are outrageous in the sense indicated above.

Finally, I wish to consider whether the Code provided for the dismissal of the workers. I do not think that it did. The relevant paragraph of the Code provided as follows:

“Summary suspension with application for dismissal: an employee may be suspended without pay, if there is good cause to believe that he/she is guilty of any of the following offences –

1. - 11. …

12. Unlawful job action (which refers to any action by one or more employees to withdraw their labour or ‘go slow’ … with the object of compelling management to take or refrain from taking any specific action …)”.

As often happens, the Code was loosely worded. However, it would appear that what was contemplated was most probably that where there was good cause to believe that a worker had committed a serious act of misconduct, such as unlawful collective job action, he would be suspended without pay pending the authorisation of his dismissal by a labour relations officer in terms of s 3(1) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, 1985, published in Statutory Instrument 371 of 1985 (“the Regulations”).

If that was the intention of the parties, it follows that the Home did not comply with the Code when it dismissed the workers. But even if the Home had complied with the Code and applied to a labour relations officer for the authority to dismiss them, the labour relations officer could not have entertained the application because in terms of s 101(5) of the Act a labour relations officer cannot intervene in any dispute or matter liable to proceedings under the Code. And embarking upon the unlawful collective job action was a matter liable to proceedings under the Code.

Quite clearly, when the Code was prepared the parties overlooked the provisions of subs (5) of s 101 of the Act. Had they been aware of the provisions of that subsection, they would have made provision for the termination of contracts of employment by the Home without seeking the authority of a labour relations officer.

The issue which now arises is what should be done at this stage. In considering that issue, it is necessary to bear in mind the adverse effects of the unlawful collective job action. They were set out by Howard and by the matron in their statements to the Committee.

In his statement, Howard said:

“In conclusion, the action of a number of staff, mainly gardeners, but assisted by others, resulted in severe disruption, considerable distress to both visitors and patients, as well as endangering the lives of those who are very sick. Many members of staff wanted to go to work but were threatened with severe consequences if they tried.”

In her statement, the matron had this to say:

“After I returned to the wards from the B scheme, both sisters had been forced outside, leaving no trained staff – SCN Katsande and Ngoro.

70 helpless patients and no staff – some lying in wet and dirty beds and not even able to turn over. 2 unconscious male patients needing tube feeding and oxygen to breathe – left alone.

Male staff going through all the wards taking all nursing staff away. Evacuation of the most serious helpless patients was therefore necessary and ambulances had to be called to take them to safety and care.

At the gate the male staff were preventing entry and exit. The EMRAS ambulance had a great struggle to get in and Dr Layard coming to collect his helpless wife had his car pushed and obstructed.

MARS ambulance ‘phoned to say they could not help us in a violent situation.”

It is clear, therefore, that as a result of the violent and unlawful actions of the workers the situation at the Home was serious and life-threatening. Since the workers had no defence to the charge, they were properly found guilty, and their subsequent dismissal was entirely justified.

In the circumstances, it seems to me that, bearing in mind that the Home did not have the power to dismiss the workers, that the dismissal of the workers was entirely justified, and that no useful purpose could be served by any delay in the finalisation of the dispute between the parties, this is an appropriate case in which this Court should exercise the power it has in terms of s 22(1)(b)(ix) of the Supreme Court Act [Chapter 7:13] and dismiss the appeal. That section reads as follows:

“Subject to any other enactment, on the hearing of a civil appeal the Supreme Court –

(a) …

(b) may, if it thinks it necessary or expedient in the interests of justice –

(i) – (viii) …;

(ix) take any other course which may lead to the just, speedy and inexpensive settlement of the case;”.

With regard to costs, I think that it would be appropriate not to make any order because in terms of the Code the Home did not have the power to dismiss the workers although the dismissal was completely justified.

The appeal is, therefore, dismissed with no order as to costs.

MALABA JA: I agree.

GWAUNZA JA: I agree.

Honey & Blanckenberg, appellants' legal practitioners

Gill, Godlonton & Gerrans, respondent's legal practitioners