REPORTABLE (27)
Judgment
No. SC 26/06
Civil
Appeal No. 337/05
TEL-ONE
(PRIVATE) LIMITED v
COMMUNICATIONS AND ALLIED SERVICES WORKERS
UNION
SUPREME COURT OF
ZIMBABWE
CHIDYAUSIKU CJ, CHEDA
JA & ZIYAMBI JA
HARARE, JUNE 19 &
SEPTEMBER 12, 2006
S V Hwacha, for
the appellant
T Biti, for the
respondent
CHIDYAUSIKU CJ: This is an appeal against a judgment of the High
Court (MAKARAU J (as she then was)). The facts of
the matter
are, to a very large extent, common cause. They are as follows
On 6 October 2004 some employees of the appellant embarked on
a collective job action. The collective job action was in
the form
of the employees absenting themselves from work. On 19 October
2004 the Minister of Public Service, Labour and
Social Welfare (the
Minister) issued a show cause order against the employees on
strike. On 9 November 2004 the show
cause order was set aside
on technical grounds by the Labour Court. As a result of the Labour
Courts ruling, no disposal proceedings
were held under the
provisions of Part XIII of the Labour Relations Act [Cap. 28:01]
(hereinafter referred to as the Act).
Meanwhile, on 15 October 2004 the appellant suspended the
employees who were on strike without pay and other benefits and
proceeded to charge them under its Code of Conduct (the Code)
with absence from work, disobedience to a lawful order, and
disregarding standing procedures. In December 2004 the appellant
conducted disciplinary hearings for each employee charged,
culminating in the dismissal of the employees. The dismissal
proceedings were held under, and in terms of, the Code.
The respondent, the Communications and Allied Services Workers
Union (the Union), then filed an application in the High
Court
for a review of the disciplinary proceedings in its own name, and as
the only applicant in the review. The court a quo
determined on the facts that the Union had locus standi to
file the review in its own name, that the High Court had jurisdiction
to review the disciplinary proceedings despite the employees
failure to exhaust domestic remedies before approaching the High
Court, and that it was irregular for the appellant to conduct
disciplinary proceedings in terms of the Code in respect of
misconduct arising from the collective job action.
The appellant was dissatisfied with that judgment and appealed to
this Court. The notice of appeal reveals essentially three
grounds
of appeal, firstly, that the respondent, who was not a party to the
disciplinary proceedings, had no locus standi to bring this
matter in its own name; secondly, that the High Court erred in
assuming jurisdiction in this matter when the employees
had not
exhausted the domestic remedies available to them; and, thirdly, that
the court a quo erred in holding that the appellant was
legally bound to follow procedures laid down in Part XIII of the
Act and was barred
from using its disciplinary Code in disciplining
the employees.
Thus, this Court needs to determine whether the court a quo
was correct in holding as it did that - (1) the respondent had locus
standi in this matter; (2) the High Court had jurisdiction to
determine this matter; and (3) the appellant was barred from using
its Code
to discipline its employees in the circumstances of this
case.
Before dealing with the above three issues, I wish to make the
following observations on the issue of the lawfulness or otherwise
of
the collective job action in this case. The parties are in
disagreement on the issue.
Mr Hwacha, for the appellant, contends that the
collective job action was unlawful because members of the respondent
who are employees of
the appellant are prohibited from engaging in
collective job action by Statutory Instrument 137 of 2003 (the
Statutory Instrument),
as read with s 102 of the Act. The
Statutory Instrument declares the appellant an essential service.
It provides in the
relevant section, s 2(f)(i), as follows:
2. The following services are hereby declared to be essential
services in terms of section 102 of the Act
(a) (e)
(f) transport and communication services provided by
(i) telecommunication technicians, drivers and mechanics in the
industry;
.
It is common cause that collective job action in essential services
is prohibited in terms of the Act.
Mr Biti, for the respondent, on the other hand,
contends that it is not every employee of an essential service, such
as the appellant,
who is prohibited from engaging in collective job
action. He argues that it is only those employees employed in
certain categories
in an essential service that are prohibited from
engaging in collective job action.
There is no doubt that some of the appellants employees who
participated in the collective job action were prohibited from
doing
so by s 2(f)(i) of the Statutory Instrument, as read with s 102
of the Act. There may be some doubt in respect
of others.
Consequently, those of the appellants employees who participated
in the strike action and who are prohibited from
collective job
action by the Statutory Instrument did so unlawfully. It is not
possible to determine on the record which of the
appellants
employees went on strike unlawfully.
The learned judge in the court a quo assumed that the
collective job action was lawful and determined the matter on that
basis. It is not entirely clear on what basis
the court a quo
assumed that the collective job action was lawful. It would appear
that the learned Judges assumption was based on the Labour
Courts
ruling that set aside the show cause order issued by the Minister.
The Ministers show cause order purported to terminate
the
collective job action. It would appear that the learned Judges
attention was not drawn to s 2 of the Statutory Instrument,
as
read with s 102 of the Act, which prohibits employees of the
appellant from collective job action. I am sure if her attention
had been drawn to the above provisions she might have refrained from
assuming that the strike action was lawful.
Be that as it may, I agree with Mr Hwachas
submission that the issues that fall for determination in this appeal
can be determined without the need to determine the issue
of whether
the collective job action was lawful or not.
I will now turn to deal with the three issues.
(1) DOES THE RESPONDENT HAVE LOCUS
STANDI?
The disciplinary proceedings which resulted in the dismissals of
the appellants employees were brought against each employee
personally and each employee was notified of the proceedings
personally. The outcome of the proceedings was notified to each
employee personally. In some instances each employee appealed
against the ruling of the disciplinary body in terms of the Code.
Mr Hwachas contention in this regard is succinctly
captured in para 6 of his heads of argument, wherein he makes
the following submission:
Despite it having been clear who the parties to the initial
hearings were, the court a quo considered and determined that
it was legally competent that an omnibus review of those earlier
proceedings was brought by a body
which was clearly not a party in
the first place. It is the appellants submission that the
court a quo erred in this regard. (my emphasis)
Put differently, Mr Hwachas contention is that a party
that was not privy to the original proceedings cannot apply for the
review of such proceedings. I recognise
the cogency of this
submission. The proposition that only parties to the proceedings
can challenge on review or appeal the outcome
of such proceedings
admits of little doubt.
The court a quo, however, reached the conclusion that,
although the respondent was not a party to the disciplinary
proceedings, it had locus standi to challenge on review the
outcome of the disciplinary proceedings. In coming to this
conclusion, the court a quo relied on the provisions of
the Act, in particular s 29(4)(d). In this regard the learned
Judge reasoned and concluded thus
at p 3 of the cyclostyled
judgment:
10. Dealing with the first issue, I note that s 29(2) of the
Act clothes trade unions with corporate status and specifically
provides that trade unions shall be capable of doing all such acts
that are authorised by its constitution. The section proceeds
in
subs (4)(d) to grant a trade union the right to make
representations before any determining authority or the Labour Court.
11. In my view, the fact that the Act entitles (vests?) a registered
trade union with the right to make representations before
any
determining authority or the Labour Court does not limit it to that
role only, as suggested by Mr Hwacha. It appears to me
that if its constitution authorises it to sue and be sued on behalf
of its membership, a trade union can bring
or defend representative
actions on behalf of its members. In my further view, s 29(4)(d)
is expressly providing for a trade
union to have a voice in labour
disputes that are before determining authorities and the Labour
Court, which voice may have been
denied at common law and on the
narrow construction of the general rule governing rules of procedure
as to who may address a determining
authority or court in formal
hearings.
12. It is my further view that in addition to having a voice before a
determining authority and the Labour Court, a trade union
may be a
party before this court as long as its constitution allows it to sue
in the subject matter and as long as it can establish
a standing
before this court.
In concluding thus, the learned Judge also placed reliance on
Zimbabwe Teachers Association v Minister of Education 1990
(2) ZLR 48 (HC) and Law Society of Zimbabwe and Ors v Minister of
Finance 1999 (2) ZLR 231 (SC).
Sections 29(2) and 29(4)(d) of the Act provide as follows in
relevant part:
29 Registration and certification of trade unions and
employers organisations and privileges thereof
(1)
(2) Every trade union, employers organisation or federation
shall, upon registration, become a body corporate and shall in
its
corporate name be capable of suing and being sued, of purchasing or
otherwise acquiring, holding or alienating property, movable
or
immovable, and of doing any other act or thing which its constitution
requires or permits it to do, or which a body corporate
may, by law,
do.
(3)
(4) Subject to this Act, a registered or certified trade union or
federation of such unions shall be entitled
(a) - (c)
(d) to make representations to a determining authority or the Labour
Court; and
.
It is quite clear that s 29 of the Act, which the learned
Judge relied on, confers on the respondent the locus standi to
sue and to be sued in its own name in matters such as in casu.
Section 29 of the Act, however, does not make a trade union
such as the respondent a party to proceedings which the trade
union
has not commenced or in respect of which the trade union has not been
cited or joined as a party. Section 29 of the
Act merely
confers on a trade union the right to sue or to be sued or to be
joined as a party to proceedings. In my view, s 29
of the Act
does not make the respondent, by virtue of its being a trade union, a
party to the present proceedings.
However, there are facts peculiar to this case that militate
against refusing the respondent locus standi. The record
reveals that the respondent gave notice to the appellant that the
appellants employees who were members of the
respondent intended
to embark on collective job action. Following this, the appellant
applied to the Minister for a show cause
order. The Minister issued
the show cause order, which prohibited the collective job action.
The respondent successfully appealed
to the Labour Court against the
Ministers show cause order. The parties in those proceedings
were the respondent as the appellant,
and the present appellant and
the Minister were the respondents. Following the Labour Courts
determination setting aside the
show cause order, the appellant
instituted disciplinary proceedings against its employees.
Correspondence between the parties
clearly shows that the
disciplinary proceedings were part and parcel of the ongoing dispute
between the appellant on the one hand
and the employees and their
representative union, the respondent, on the other hand. In my
view, to insist in the light of these
facts that the respondent was
not a party to the disciplinary proceedings, which were part of the
ongoing dispute between the appellant
and the respondent, is pedantic
and too technical. Apart from this, the employees are members of
the respondent and they authorised
the respondent to institute the
proceedings in terms of a document on p 74 of the record, which
reads in part:
We, the undersigned, hereby authorise the Union to institute High
Court proceedings on our behalf, against Tel-One (Pvt) Ltd,
for
unfairly dismissing us following a collective job action.
At the time of the collective job action, which we believe was
engaged upon in compliance with the Labour Act, (we) were fully
paid
up members of the Union.
Thereunder the signatures of the various employees of the appellant
who were members of the respondent are attached.
Thus, while I agree with Mr Hwacha that a party that
was not privy to the original proceedings cannot appeal against or
take on review a decision of a court a quo, the facts of this
case are somewhat peculiar. They clearly show that the present case
was an ongoing process of litigation between
the respondent and the
appellant, in which at one stage the respondent was not joined as a
party. In these circumstances, it
would be a travesty of justice to
deny the respondent locus standi.
I accordingly come to the conclusion, though for reasons different
from those of the court a quo, that the court a quo
was correct in concluding that the respondent had locus standi
to bring the application.
This ground of appeal therefore fails.
(2) DID THE HIGH COURT HAVE JURISDICTION TO ENTERTAIN
THE REVIEW PROCEEDINGS?
Mr Hwacha, in his heads of argument, accepts that the
High Court enjoys a discretion to hear a matter where other domestic
remedies have
not yet been exhausted. It therefore follows that the
High Court had a discretion to hear this matter and it decided to
hear
it. That being the case, the issues that then fall for
determination are whether there was a misdirection in the exercise of
the discretion and whether the court a quo was grossly
unreasonable in exercising the discretion in favour of hearing the
matter.
No misdirection has been alleged.
I see nothing in the heads of argument of counsel for the appellant
that suggests that the exercise of the discretion was grossly
unreasonable. At best, Mr Hwacha advances reasons why
it would have been better for the court a quo to have
declined to exercise its discretion. So, even if this Court were to
agree with him, this would not assist his case, as
this does not
amount to gross unreasonableness in the exercise of a discretion.
Accordingly, this ground of appeal fails as well.
(3) DOES PART XIII OF THE ACT BAR AN EMPLOYER FROM
TAKING DISCIPLINARY ACTION IN TERMS OF ITS CODE AGAINST EMPLOYEES WHO
PARTICIPATE
IN COLLECTIVE JOB ACTION?
The appellants contention in the court a quo, and
indeed in this Court, was that there was no law which barred the
appellant from relying on its Code of Conduct in taking disciplinary
action against those of its employees that had taken part in the
unlawful collective job action. The appellant argued that ss
106-107 of the Act do not impose a mandatory procedure to be followed
whenever there is collective job action.
In essence, the appellants stance is that, although Part XIII
of the Act provides for the resolution of a collective
job action, it
does not bar an employer from resorting to a Code of Conduct to
discipline employees who will have participated
in such collective
job action.
Mr Biti, on the other hand, submitted that collective
job action or strike action is sui generis. Strike action,
he argued, is a collective game of power between an employer and an
employee and that an employee who participates
in this game of power
cannot be disciplined for narrow breaches of his contract of
employment arising from engagement in that game
of power. Put
simply, whenever there is collective job action the issue is no
longer one of the narrow breach of the contract
of employment, and
the Code of Conduct is ousted and has no application. For this
proposition he relied on SACTWU and Ors v Novel Spinners (Pty) Ltd
1999 (11) BLLR 1157 and Combrinck in Black Allied Workers Union
and Ors v Prestige Hotels CC t/a Blue Waters Hotel (1993) (14)
ILJ 963 at 972 (a)-(c), where the following was stated:
The right to strike is important and necessary to a system of
collective bargaining. It underpins the system it obliges
the
parties to engage thoughtfully and seriously with each other. It
helps to focus their minds on the issues at stake and to
weigh up
carefully the costs of failure to reach agreement.
If an employer facing a strike could merely dismiss the strikers from
employment by terminating their employment contracts then
the strike
would have little or no purpose. It would merely jeopardise the
rights of employment of the strikers. The strike
would cease to be
functional to collective bargaining and instead it would be an
opportunity for the employer to take punitive
action against the
employees concerned.
I agree with the above in as far as it relates to a lawful
collective job action. I do not understand the above remarks to
apply to an unlawful collective job action. I have no doubt that an
employee cannot be dismissed from employment for participating
in a
lawful collective job action, even if such participation contravenes
a Code of Conduct, such as absence from work in excess
of five days
contrary to the provisions of the Code of Conduct.
Mr Biti further submitted that it is precisely because
of the sui generis nature of the strike action that any
misconduct arising therefrom is not punished by way of Part IV
of the Act but rather by
way of Part XIII of the Act. He
submitted that the only qualification is that where participating in
an unlawful collective
job action has been specifically proscribed in
a Code of Conduct, then the Code of Conduct may be used. For this
submission,
he relied on Zimbabwe Iron and Steel Co Ltd v Dube and
Ors 1997 (2) ZLR 172 (SC). In particular, he relied on what
GUBBAY CJ had to say at pp 176B-177A of the judgment:
The real point to decide, so it seems to me, is whether it was the
legislative intention that employees who have taken part
in unlawful
collective job action are only dismissable under the direction of a
disposal order such conduct not being subject
to a code of
conduct. Put differently, that ss 104 to 108 in Part XIII of
the Act are specifically designed to deal with
all forms of
collective job action.
This was the main and most weighty argument that Mr Nherere
advanced on behalf of the respondents. Acknowledging that the
bringing of disciplinary proceedings under a code of conduct would
be
permissible where the charges resulted from the taking of collective
job action, as for instance theft or wilful destruction
of the
employers property, counsel submitted that such conduct was not
dependent on the unlawfulness or otherwise of collective
job action.
It is true, as was emphasised, that Part XII of the Act is
concerned with the determination of disputes and unfair labour
practices; Part XIII with collective job action. But these
Parts are not mutually exclusive. Section 107(5)(a) details
the powers conferred upon an appropriate authority in the making of a
disposal order in the case of unlawful job action. Although
the
power to dismiss specified employees or categories of employees
engaged in the unlawful collective job action is provided for
in
para (iv), its exercise is discretionary. The appropriate
authority need not have recourse to it. Instead, the appropriate
authority may decide merely to suspend the employers liability to
pay part of wages due to specified employees in respect of
part of
the duration of the unlawful collective job action (see para (i));
or suspend, with pay, specified employees for a
defined period (see
para (ii)); or take no disciplinary measures against the
employees. In casu the disposal order of 26 March 1995
only directed that the unlawful job action be terminated. It was
not directed to the
liability of the respondents involved in the
unlawful strike for disciplinary proceedings.
Accordingly, it is my view that a disposal order made pursuant to
s 107(5)(a) of the Act, in which the dismissal of specified
employees had not been ordered by the appropriate authority, does not
bar the employer, under a code of conduct which categorised
illegal
industrial action as a dismissal offence, from subsequently
charging that offence and applying the prescribed penalty
to those
employees found guilty. Plainly, there is no provision, either
express or implied, in Part XIII of the Act to the
effect that a
disposal order grants immunity from the unlawful collective job
action referred to in it.
Mr Biti also contended that the learned Judge in the
court a quo was correct in her reasoning and in
concluding that:
28. Section 102 of the Labour Act provides that, subject to
the provisions of the Act, all employees, workers committees
and
trade unions shall have the right to resort to collective job action
to resolve disputes of interest. The Act proceeds under
s 107
to provide for the issuance of disposal orders disposing of illegal
collective action. In s 108(3) the Act affords
protection to
employees engaged in lawful collective job action. Such employees
are not liable for breach of contract and their
employment shall not
be terminated on the ground that they engaged in a lawful collective
job action.
29. In my view, it is these clear provisions of the law that provide
the short answer to Mr Hwachas submission and bar
the
respondent from resorting to its Code of Conduct to discipline
employees that engaged in the collective job action.
30. For the respondent to proceed to charge the employees who engaged
in collective job action under its Code was grossly irregular
and
flies in the face of the express letter of the law. It is not
permissible. It seeks in vain to make the Code superior to
the
provisions of the Act under which the Code is registered. A Code is
not part of the corpus juris of this country. It is
essentially part of the terms of the contract of employment between
employer and employee. It cannot
override the law of the country.
I agree with the learned Judge to the extent that her remarks
relate to lawful collective job action. I have some doubt that
her
remarks, as Mr Biti seems to imply, include unlawful
collective job action.
While Mr Bitis submission that once the employees
are engaged in collective job action the Code of Conduct is ousted
and the action becomes a
power game between an employer and the
employees has some merit as a labour relations management principle,
this has not been incorporated
in the Act.
There is nothing in the language of the Act, either express or
implied, that codifies the proposition advanced by Mr Biti.
If anything, certain sections of Part XIII of the Act suggest
the contrary. Thus, sections 108 and 109 of the Act provide
for
immunity for participating in a lawful collective job action and
criminalises participation in an unlawful collective job action.
The issue here is one of interpretation. In particular, what
meaning is to be ascribed to Part XIII of the Act. Part XIII
of the Act consists of sections 102 to 112. Section 102 is a
definition section, which defines what constitutes a disposal order,
a lawful collective job action, a lock-out and a show cause order.
Section 103 provides for appeals against a declaration
of an
occupation or service as an essential service by the Minister.
Sections 104 and 105 create the right to resort to collective
job
action and sets out the procedures to be followed on embarking on a
lawful collective job action or lock-out. Sections 106
and 107
provide the modalities for the management of collective job actions
through the use of show cause orders and disposal orders.
I see
nothing in the language of these two sections which prohibits or
proscribes the use of a Code of Conduct by employers to
discipline
employees who will have participated in an unlawful collective job
action or absented themselves from work by reason
of participating in
an unlawful collective job action. As I have said, ss 108 and 109
deal with the immunity of participants
in a lawful collective job
action and criminalise participation in an unlawful collective job
action. Section 110 provides
for appeals against a show cause
order, while s 111 provides for the cessation of collective job
action. Section 112
deals with offences and mitigating
factors. None of the above sections bar an employer from
disciplining employees engaged in
an unlawful collective job action
in terms of a Code of Conduct.
The issue of the proper construction or interpretation of Part XIII
of the Act in relation to Codes of Conduct is not new.
This Court
has had occasion to consider and determine this issue in a number of
cases
(a) Cargo Carriers (Pvt) Ltd v Zambezi and Ors 1996
(1) ZLR 613 (S)
In the Cargo Carriers case supra the employer sought to
dismiss some three hundred and forty employees through the use of its
Code of Conduct. Notice of disciplinary
proceedings to the three
hundred and forty employees was pinned on the entrance to the
employers premises. Very little time
was given to the workers in
this notice. The employer thereafter instituted disciplinary
hearings en masse. The employer found the employees guilty
en masse and punished them en masse. The Code of
Conduct provided that disciplinary action against an employee be
conducted on an individual basis. The disciplinary
proceedings were
set aside as irregular on the basis that the events of the collective
job action simply dwarfed the Code of Conduct
and that in a situation
like that it was appropriate to deal with such industrial action in
terms of ss 105-107 of the Act.
The Cargo Carriers case
supra is authority for the proposition that where the
collective job action is massive it would be inappropriate to deal
with it in terms
of a Code of Conduct. Part XIII of the Act,
as opposed to a Code of Conduct, provides the correct procedure to
follow in
such circumstances.
The Cargo Carriers case supra is no authority for the
proposition that it would be irregular to discipline employees in
terms of a Code of Conduct in every case
where there has been a
collective job action. It certainly is authority for the
proposition that where the particular facts of
the case dwarf the
Code of Conduct it would be inappropriate to use a Code of Conduct.
(b) Zimbabwe Iron and Steel Co v Dube and Ors 1997
(2) SA 172 (ZS)
In the Zimbabwe Iron and Steel Co case supra the
employees participated in an industrial action which was unlawful.
The Code of Conduct specifically provided that engaging
in an
unlawful collective job action constituted misconduct. The employer
instituted disciplinary proceedings in terms of the
Code of Conduct
and dismissed the employees. The Court held that disciplinary
proceedings in terms of the Code of Conduct for
participating in the
unlawful collective job action were competent and confirmed the
dismissal of the employees.
I do not accept Mr Bitis contention that it is only
in those instances where participating in an unlawful collective job
action is expressly prohibited
in terms of the Code of Conduct that
disciplinary action can be taken against the employees in terms of
the Code of Conduct.
I see nothing in the Act that limits the
employer to taking disciplinary action against employees to
situations where there is
specific prescription of unlawful
collective job action in the Code of Conduct.
(c) Net*One Cellular (Pvt) Ltd v Communications and Allied
Services Workers Union SC-89-05
In the Net*One case supra I made the following
observation at p 19 of the cyclostyled judgment:
By parity of reasoning, there is nothing in Part XIII of the
Act which bars the appellant (the employer) from taking disciplinary
action against employees for absenting themselves from work for a
period in excess of five consecutive days in terms of
the
Code,
which is precisely what the appellant did in this case
.
There is nothing that I have heard in the instant case which would
cause me to reconsider what I said in the Tel*One case supra.
I hold the view that Part XIII of the Act does not bar an
employer from conducting disciplinary proceedings against employees
for absenting themselves from work for a period in excess of five
days if such is prohibited in terms of a Code of Conduct. It
is up
to the employee to raise as his defence that he was absent from work
for the period in question by reason of participating
in a lawful
industrial action. Participation in a lawful industrial action is a
sufficient defence to such a charge see s 108
of the Act.
However, participation in an unlawful collective job action does not
provide a defence to such a charge.
The respondent and those employees who were dismissed in the
present case did not raise the defence of participation in a lawful
collective job action. Accordingly, there is no basis for holding
that their dismissals were unlawful. It was lawful for the
employer
to charge the employees with absence from work in contravention of
the Code of Conduct. It was open to the employees
to plead
participation in a lawful collective job action. They did not.
Because the employees are employed in an essential
service, I doubt
if the employees could have successfully raised that defence.
On that basis the appeal succeeds and the order of the High Court
is altered to read:
The application for review is dismissed with costs.
The appellant has been substantially successful and is entitled to
its costs. Accordingly, the respondent is ordered to pay the
appellants costs.
CHEDA JA: I agree.
ZIYAMBI JA: I agree.
Dube, Manikai & Hwacha, appellant's legal practitioners
Honey & Blanckenberg, respondent's legal practitioners