DISTRIBUTABLE
(41)
Judgment
No. SC. 50/05
Civil
Appeal No. 271/01
WATTLE
COMPANY (PRIVATE) LIMITED v
WILBERT
VUMISANI AND ONE HUNDRED AND SIX
OTHERS
SUPREME
COURT OF ZIMBABWE
SANDURA
JA, ZIYAMBI JA & MALABA JA
HARARE,
FEBRUARY 22 & OCTOBER 17, 2005
R
M Fitches, for the appellant
L
Mazonde, for the respondents
MALABA
JA: This is an appeal from a judgment of the then Labour Relations
Tribunal (the Tribunal) dated 28 August
2001, setting
aside the dismissal of the respondents from employment and ordering
their reinstatement without loss of salary and
other benefits.
The
appellant is a private company carrying on the business of timber
processing and selling. The respondents were employed by
the
appellant at its Durban Road Depot in Mutare. On 21 July
1998 the workers committee wrote a letter to the appellants
divisional manager demanding the removal of the Durban Road
Depot manager, against whom the respondents had a number of
grievances.
The letter gave notice that workers intended to stage
what was called a peaceful protest on the day the depot
manager, who
was on leave, returned to work.
On
4 August 1998 the respondents went on strike, demanding the
removal of the depot manager. They returned to work on 5 August
1998, following intervention by officials from the Commercial Workers
Union, the Zimbabwe Furniture, Timber and Allied Workers Union
and
the Ministry of Labour (the Ministry). Officials from the
Ministry undertook to carry out investigations into the grievances
the respondents had against the depot manager who temporarily moved
to the appellants head office to facilitate the investigations.
A
senior labour relations officer conducted thorough investigations
into allegations of corruption, nepotism, victimisation and
insensitivity to workers interests levelled against the depot
manager by the respondents. He gave the parties the opportunity
to
submit representations orally or in writing. The determination made
by the senior labour relations officer on the facts established
by
the investigations was that the allegations against the depot manager
were without substance.
The
respondents refused to accept the determination. On 10 September
1998 they went on strike, vowing not to return to work
until the
depot manager, who had moved back into his office, was removed.
Officials from the Commercial Workers Union persuaded
them to
return to work and they did so on 14 September 1998. The
following day the respondents were served with letters of
suspension
from work without pay pending application to a labour relations
officer for an order terminating their contracts of employment
in
terms of s 3(1)(a) of the Labour Relations (General Conditions
of Employment) (Termination of Employment) Regulations, SI 371/85
(the Regulations).
The
application was indeed made on 16 September 1998, on the ground
that the respondents had engaged in an unlawful collective
job action
on 10 and 11 September 1998 and as such had committed an act
inconsistent with the fulfilment of the express or implied
conditions
of their contracts of employment. The application was addressed to
a principal labour relations officer, as opposed
to a labour
relations officer as was the requirement of s 3 of the
Regulations.
On
30 September 1998 a labour relations officer nonetheless
heard the application and determined that the respondents
had engaged
in an unlawful collective job action. In other words, he found that
the ground of suspension of the respondents had
been proved by the
appellant. The labour relations officer did not, however, make the
order terminating the respondents contracts
of employment as he
was required to do under s 3(2)(a) of the Regulations. He
ordered that the respondents be reinstated in
their jobs without loss
of salary and other benefits. The labour relations officer believed
that although the respondents had engaged
in an unlawful collective
job action the procedure under the Regulations in terms of which the
appellant sought to have their contracts
of employment terminated was
not appropriate in a case of en masse dismissal of workers
accused of having engaged in an unlawful collective job action.
The
appellant appealed to a senior labour relations officer, who also
found on 4 November 1998 that the respondents had engaged
in an
unlawful collective job action. He too did not serve on them the
order terminating their contracts of employment. His
reason was
that the application, which had been heard and determined by the
labour relations officer, was a nullity because it had
been addressed
to a principal labour relations officer. The senior labour
relations officer, however, made an order that
the respondents were
to remain on suspension without pay and other benefits until the
question of their dismissal from employment
was determined.
The
appellant applied to the High Court for a review of the decision of
the senior labour relations officer but withdrew the application
on
14 June 1999, before making another application to a labour
relations officer for an order terminating the respondents
contracts of employment on the same ground, that they had committed
an act inconsistent with the fulfilment of the express or implied
conditions of their contracts of employment by engaging in an
unlawful collective job action on 10 and 11 September 1998.
The
labour relations officer who heard the application also held that the
respondents had engaged in an unlawful collective job
action.
Having found that the grounds of suspension had been proved, the
labour relations officer made the order terminating the
respondents
contracts of employment. He, however, made an order that the
appellant should pay the respondents their salaries
and other
benefits for the period from 18 December 1998 to 14 June
1999, on the ground that the appellant had delayed the
finalisation
of the case by applying for review of the senior labour relations
officers decision to the High Court.
On
15 October 1999 the appellant appealed to the senior labour
relations officer against the compensatory order, whilst
the
respondents cross-appealed against the order of dismissal. They
contended that the letter of 21 July 1998 constituted
written
notice to the appellant of their intention to resort to collective
job action on 10 and 11 September 1998. They argued
that the
collective job action they engaged in was lawful as the written
notice they were required to give to their employer under
s 104(2)
of the Labour Relations Act [Chapter 28:01] (the Act)
had been given. The senior labour relations officer dismissed both
the appeal and the cross-appeal.
On
appeal and cross-appeal to it, the Tribunal held that the collective
job action engaged in by the respondents on 10 and 11 September
1998
was a continuation of the collective job action they had resorted to
on 4 and 5 August 1998. The learned chairman of the Tribunal
was of
the opinion that the second collective job action was made lawful by
the letter of 21 July 1998. He also accepted the
contention by
the respondents that the application made to the labour relations
officer on 14 June 1999 for an order terminating
their contracts
of employment had not been made forthwith after their
suspension on 15 September 1998, as was required
by s 3 of
the Regulations.
It
appears to me that the decision of the Tribunal was not only clearly
wrong as a matter of fact but was unnecessary. The decision
had
been made by the labour relations officer on 30 September 1998
that the respondents had committed an act inconsistent with
the
fulfilment of the express or implied conditions of their contracts of
employment, in that they had engaged in an unlawful collective
job
action on 10 and 11 September 1998. Once the labour relations
officer was satisfied that the ground of suspension of the
respondents
had been proved, he had no choice but to serve them with
the order terminating their contracts of employment with effect from
the
date of suspension.
There
was no appeal against the decision of the labour relations officer
that the respondents had engaged in an unlawful collective
job action
which was in itself conduct incompatible with the continuation of an
employer and employee relationship. As was stated
by GUBBAY CJ
in Chisipite School Trust (Pvt) Ltd v Clarke 1999 (2) ZLR 324
(S) at 327D, termination of the respondents contracts of
employment arose:
automatically upon proof
of any of the
specified acts of misconduct alleged against them.
Section 3(2)
of the Regulations provided that:
Upon application being made
in terms of subsection (1), the labour relations officer shall
investigate the matter and may,
according to the circumstances of the
case, -
(a) serve a determination or
order on the employee concerned terminating his contract of
employment if the grounds for his suspension
are proved to the
satisfaction of the labour relations officer; or
(b) serve
a determination or order on the employer concerned to remove the
suspension of the employee concerned and to reinstate such
employee
if the grounds for his suspension are not proved to the satisfaction
of the labour relations officer.
The
effect of s 3(2)(a) of the Regulations upon a finding by a
labour relations officer that a ground of suspension of an employee
had been proved to his satisfaction was considered by McNALLY JA
in Masiyiwa v
TM Supermarket
1990 (1) ZLR 166 (S) at 170H-171A. The learned JUDGE OF APPEAL
said:
Thus, in the case of s 3(2),
the labour relations officer has to determine whether the grounds of
suspension are proved or
not proved. If they are proved, he must
proceed in terms of subpara (a); if they are not proved, he must
proceed in terms
of subpara (b). To put it another way, he has
a choice, but that choice is governed, not by his discretion, but by
his finding.
If he finds the grounds proved, he must choose (a); if
not proved, (b).
See
also Zimbabwe Mining
and Smelting Co Ltd v Mafuku
S-246-92 at pp 4-5 of the cyclostyled judgment; Caltex
Oil Zimbabwe (Pvt) Ltd v Mutsvangwa
S-95-93 at p 4 of the cyclostyled judgment; and Chisipite
School Trust (Pvt) Ltd v Clarke supra
at 327 E-F.
The
respondents were automatically dismissed from employment with the
appellant from the date of their suspension once the labour
relations
officer found that the allegation that they had committed an act
inconsistent with the fulfilment of the express or implied
conditions
of their contracts of employment by engaging in an unlawful
collective job action had been proved by the appellant.
He had no
power to make the order of their reinstatement. A proper
application for an order terminating the respondents contracts
of
employment had been made to him forthwith after their suspension from
work without pay and other benefits. The achievement of
the object
of the Regulations was not in any way hindered by the application
having been addressed to a principal labour relations
officer
see Sterling Products
International v Zulu
1988 (2) ZLR 293 (S).
It
must follow from the fact that the respondents contracts of
employment automatically terminated upon the finding by the labour
relations officer on 30 September 1998 that the ground of their
suspension had been proved to his satisfaction that the other
orders
subsequently made by the senior labour relations officers and the
application of 14 June 1999 had no legal effect on
the question
of their dismissal. The only valid order required by the case was
the termination of the respondents contracts
of employment from
the date of their suspension.
In
the result, the following order is made
The appeal is allowed with
costs and an order terminating the respondents contracts of
employment with effect from the date of
suspension, that is to say,
15 September 1998, is granted.
SANDURA
JA: I agree.
ZIYAMBI
JA: I agree.
Henning,
Lock, Donagher & Winter,
appellant's legal practitioners
Mbidzo,
Muchadadehama & Makoni,
respondent's legal practitioners