REPORTABLE ZLR(16)
Judgment
No. SC-023-09
Civil
Appeal No. 360/06
ZIMPOST
(PRIVATE) LIMITED v COMMUNICATIONS AND ALLIED
WORKERS UNION
SUPREME
COURT OF ZIMBABWE
CHEDA JA,
ZIYAMBI JA & MALABA JA
HARARE,
FEBRUARY 11, 2008 & MAY 19, 2009
E T Matinenga, for the appellant
T Biti, for the respondent
MALABA JA: This is an appeal from a judgment of the Labour
Court upholding a decision of an arbitrator setting aside the
dismissal of the appellants employees who had been found guilty of
an act or conduct inconsistent with the fulfilment of express
or
implied conditions of contracts of employment in that they had taken
part in an unlawful collective job action.
The appellants employees were members of the respondent. They
engaged in an unlawful collective job action from 4 to 23 October
2006. It is common cause that at the time the employees engaged in
the collective job action on 4 October 2006 they had not given
the
fourteen days written notice of their intent to resort to such action
on that day. They had not satisfied the other matters
required under
s 104(2) of the Labour Relations Act [Cap. 28:01]
(the Act).
After the unlawful collective job action ended, the appellant
commenced disciplinary proceedings against each employee who had
taken part in the collective job action. On 8 December 2006 the
employees were individually charged with conduct inconsistent
with
the fulfilment of the express or implied conditions of his contract
of employment in that he had taken part in the unlawful
collective
job action.
The allegation was that the employees had contravened s 12B(2)(b)(1)
of the Act. The disciplinary hearings were conducted in terms
of s 2
of the Labour Relations (General Conditions of Employment)
(Termination of Employment) Regulations SI 130 of 2003 (the
Regulations). The employees were found guilty of the misconduct
charge and dismissed from employment.
The respondent took up the case of the dismissal of the employees
with a Labour Officer on the ground that the dismissal constituted
an
unfair labour practice. The contention was that the appellant should
not have charged the employees individually with conduct
they
committed collectively as a group. The argument was that
disciplinary proceedings ought to have been commenced against the
employees as a group on the ground that they took part in an unlawful
collective job action in terms of the provisions of Part
XIII of the
Act.
The appellant accepted that the employees had taken part in an
unlawful collective job action. It denied the accusation that
in
instituting disciplinary proceedings against each employee on the
charge that he had committed an act or conduct inconsistent
with the
fulfilment of the express or implied conditions of the contract of
employment in that he had taken part in an unlawful
collective job
action it committed an unfair labour practice. The argument was that
there was no provision in Part XIII of the
Act to the effect that an
employer who wishes to take disciplinary action against an employee
for having taken part in an unlawful
collective job action can only
do so in disciplinary proceedings commenced against the employees who
took part in such action as
a group. The Labour Officer failed to
conciliate the dispute and referred the case for arbitration in terms
of s 93(5) of the
Act.
The arbitrator heard the case and determined that the appellant
ought to have proceeded in terms of ss 106 and 107 of the Act
and
charged the employees as a group with having taken part in an
unlawful collective job action. The dismissal of the employees
was
adjudged an unfair labour practice. It was set aside and an order of
reinstatement or payment of damages in lieu thereof made.
On appeal
to the Labour Court the decision of the arbitrator was upheld hence
the appeal to this Court.
The question that falls for determination is whether there is a
provision in Part XIII of the Act to the effect that an employer
who
wishes to take disciplinary action against an employee who took part
in an unlawful collective job action must institute disciplinary
proceedings against all the employees involved in such action and
charge them with having taken part in an unlawful collective
job
action. The contention that the appellant ought to have charged the
employees as a group with having taken part in an unlawful
collective
job action and proceeded in terms of the provisions of Part XIII of
the Act was based on the interpretation of s 8 of
category 4 of
the appellants employment code (the code).
A list of what is considered to be serious acts of misconduct is
given under category 4 of the code. In s 8 the following
is
stated:
8. Instigating and/or taking part in an unlawful job action
to be handled in terms of Labour Relations Act [Cap. 28:01].
There is, of course, no specific reference to Part XIII of the Act in
s 8 of category 4 of the code. Even if the appellant had
decided to
charge the employees with having taken part in an unlawful collective
job action there would have been nothing in the
provisions of s 8
compelling it to conduct the disciplinary proceedings in terms of the
provisions of Part XIII of the Act.
Part XIII is headed Collective Job Action. It contains ss
102 to 112, the provisions of which deal with matters relating
to or
arising from a collective job action. The sections said to contain
the provisions which the appellant was found to have
unlawfully
failed to observe are ss 104, 106 and 107.
Section 104(1) gives all employees, workers committees and trade
unions the right to resort to collective job action to resolve
disputes of interest. The right is given subject to specific
conditions of its exercise prescribed under subs (2). A collective
job action resorted to without the mandatory requirements for a
lawful exercise of the right prescribed under subs (2) of s 104
having been strictly satisfied is an unlawful collective job action.
Specific procedures and remedies for the protection of the rights
for the parties affected by the unlawful collective job action
are
provided under ss 106 and 107. Section 106 provides that when a
workers committee or trade union, for example, threatens,
recommends, encourages, incites, organizes or engages in an
unlawful collective job action, the Minister, acting on his own
initiative or upon the application of any person affected or likely
to be affected by the unlawful collective job action, may issue
an
order calling upon the workers committee or trade union concerned
(the responsible person) to appear before the Labour
Court to
show cause why a disposal order should not be made in relation to the
unlawful collective job action. The show cause
order must specify
the date, time and place at which the responsible person must appear
before the Labour Court. The order may
direct that pending the
issuance of the disposal order, the unlawful collective job action
concerned be terminated, postponed or
suspended.
Section 107 provides that on the return day the Labour Court must
inquire into the matter and may after the inquiry issue a disposal
order directing that the unlawful collective job action be
terminated, postponed or suspended. (the underlining is mine
for emphasis). Section 107(3) provides that the disposal order
may provide for the employer, in
his discretion, to dismiss summarily
specified employees or categories of employees engaged in the
unlawful collective job action
or provide for the dismissal of
specified employees or categories of employees engaged in the
unlawful collective job action.
The inquiry the Labour Court is required to carry out before
issuing a disposal order as well as the right it may give to the
employer to dismiss employees found to be threatening or engaging in
an unlawful collective job action, implies that the show cause
order
may take the place of a charge of misconduct in disciplinary
proceedings and the inquiry the hearing thereof. The disciplinary
action which the Labour Court may order or may authorize the employer
to take against the employees is not the primary object of
the
provisions of ss 106 and 107 of the Act.
The primary purpose of the provisions of ss 106 and 107 is to
provide procedures and remedies for the disposal of an unlawful
collective job action. The right given to an employer under s 107(3)
of the Act to dismiss specified employees or categories of
employees
who threaten or engage in an unlawful collective job action is
dependent upon the discretionary remedies. It is up to
the Labour
Court to decide whether to provide under the disposal order for the
dismissal of specified employees or categories of
employees. It is
also up to the Labour Court to decide whether to give the employer
under the disposal order the right to dismiss
specified employees or
categories of employees who threaten or engage in an unlawful
collective job action. The right to dismiss
is dependent upon the
exercise of discretion by the Labour Court. Without the initiation
of the procedure leading to the issuance
of the disposal order and
the exercise of discretion by the Labour Court in his favour, an
employer would have no right to dismiss
employees who threaten or
engage in an unlawful collective job action in terms of any of the
provisions of Part XIII of the Act.
The procedure and remedies under ss 106 and 107 of the Act are, in
my view, applicable to the disposal of an unlawful collective
job
action being threatened or engaged in at the time the show cause
order is made. There is nothing in the language of the relevant
provisions of the Act to show that the intention of the legislature
is that the procedure and remedies prescribed there under be
applied
to an unlawful collective job action which has ended on its own
without a disposal order having been issued in respect
of it. One
can hardly think of such action which ceased on its own being made a
subject of a show cause order or disposal order
directing that it be
terminated, postponed or suspended.
The unlawful collective job action engaged in by the appellants
employees ended on 23 October 2006 without a show cause order
having
been issued in terms of s 106 of the Act. The disciplinary
proceedings against the employees commenced on 8 December.
The
provisions of ss 106 and 107 of the Act were clearly not
applicable to the determination of the appellants right to
dismiss
the employees concerned.
Where then did the appellant derive the right to dismiss the
employees? The appellant did not charge the employees with having
taken part in the unlawful collective job action. It charged each
employee with an act or conduct inconsistent with the fulfilment
of
the express or implied conditions of his contract of employment in
that he had taken part in an unlawful collective job action.
The
charge was in terms of s 12(B)(2)(b)(i) of the Act as read with s 2
of the Regulations which recognize the common law right
of an
employer to charge an employee with such conduct.
Section 12B of the Act provides that:
(1) Every employee has the right not to be unfairly dismissed.
An employee is unfairly dismissed
if, subject to subsection (3), the employer fails to show that he
dismissed the employee in terms of an employment code; or
if in the absence of an employment code the employer fails to show
that when dismissing the employee he had good cause to believe
that
the employee was guilty of
any act, conduct or omission inconsistent with the fulfilment of
the express or implied conditions of his contract -
.
Subsection (3) of s 12B makes provision for cases of constructive
dismissal.
Section 2 of the Regulations provides that:
(2) For the avoidance of doubt it is declared that no employer
shall summarily or otherwise terminate a contract of employment
with
an employee unless
the termination is in terms of an employment code which is
registered in terms of s 101 of the Act; or
; or
; or
the employee is dismissed on any of the grounds specified in para
(b) of s 12B of the Act.
The employment code did not have a section prohibiting as an act of
misconduct an act or conduct inconsistent with the fulfilment
of the
express or implied conditions of the employees contract of
employment. For an employer to have good cause to believe
that an
employee is guilty of the act or conduct specified in s 12B(2)(b)(i)
of the Act he has to charge the employee with having
committed that
act or conduct, give him an opportunity to answer the charge, hold a
disciplinary hearing and make a finding of
facts on which he believes
the employee is guilty as charged.
The contention advanced by Mr Biti on behalf of the respondent
was not that participating in an unlawful collective job action was
wrongly found to be an act or conduct
inconsistent with the
fulfilment of the express or implied conditions of the contract of
each employee charged with that act of
misconduct. I agree with Mr
Matinenga that taking part in an unlawful collective job
action could not be a valid defence to the charge preferred against
each of the
employees.
The act of misconduct alleged against each employee in the charge was
proved following a full hearing of evidence. At the time
the
employer dismissed each employee it had good cause to believe that he
was guilty of an act or conduct inconsistent with the
fulfilment of
the express or implied conditions of his contract of employment. The
appellant had the right under s 12(B)(2)(b)(i)
of the Act as
read with s 2 of the Regulations to dismiss the employees.
Mr Matinenga relied on the case of Net-One Cellular (Pvt)
Ltd v (1) Communications and Allied Services Workers Union of
Zimbabwe (2) Fifty-Six Net-One, Employees S-89-05.
Net-One, like the appellant, is a successor company to the Posts and
Telecommunications Corporation. It was using the
same employment
code as the appellant at the time its employees embarked on an
unlawful collective job action.
The employees in the Net-One case were charged individually with
having been absent from work for a period of five or more working
days without leave or reasonable cause. The employment code had s 2
of category 4 which made it an offence for an employee to
be absent
from work for a period of five or more working days without
reasonable cause. In charging the employees Net-One cited
s
12B(2)(b)(v) of the Act. A full disciplinary hearing was conducted,
at the end of which each employee was found guilty as charged
and
dismissed from employment.
It was contended on appeal that in charging the employees under s
12B(2)(b)(v) of the Act and not s 2 of the Code, Net-One had
committed an unfair labour practice. At p 8 of the cyclostyled
judgment CHIDYAUSIKU CJ said that participating in an illegal
collective job action could not have been a defence to the charge
faced by the employees. He went on to say the following:
The appellant charged the employees individually with absence from
work for five consecutive days without reasonable excuse
or cause. I
pause to point out that the employees were not charged with taking
part in or inciting an unlawful collective job
action, a charge that
falls squarely under clause 8 of the Code. The employees were
charged with absence from work for more than
five consecutive days an
offence under clause 2 of the code and s 12B of the Act.
Disciplinary hearings were conducted in respect of each individual
employee. At the conclusion of the disciplinary hearing each
of the
fifty-six employees was found guilty and dismissed. It was not in
dispute that due process was followed in respect of each
of the
employees. In this regard the appellant, however, purported to act
in terms of s 12B of the Act as read with Statutory
Instrument
130/2003.
The learned Chief Justice held that in citing s 12B(2)(b)(v) of
the Act instead of clause 2 of the code in charging the employees,
Net-One was not guilty of unfair labour practice as due process was
nonetheless followed in the dismissal of the employees.
The unlawful collective job action in which the employees in the
Net-One case supra had taken part had ended without a show
cause order having been made in terms of s 106 of the Act at the time
disciplinary
proceedings were commenced against individual employees.
The case supports the contention that the provisions of Part XIII of
the Act do not in the circumstances preclude an employer wishing to
take disciplinary action against employees who took part in
an
unlawful collective job action from charging them individually with
acts of misconduct connected with or arising from the collective
job
action.
In this case the offence of an act or conduct inconsistent with the
fulfilment of the express or implied conditions of the contract
of
employment could be established in respect of each employee by
proving that he took part in an unlawful collective job action.
There was no similar offence under the employment code. As the
unlawful collective job action had ended at the time disciplinary
proceedings were commenced, the appellant could not have acted in
terms of any of the provisions of Part XIII of the Act.
The
appellant derived the right to dismiss the employees from the
disciplinary proceedings it conducted in terms of s 12B(2)(b)(i)
of
the Act as read with s 2 of the Regulations.
The appeal succeeds with costs. The judgment of the court a quo
is set aside and substituted with the following order -
The appeal against the decision of the arbitrator succeeds with
costs. The decision is set aside.
CHEDA JA: I agree
ZIYAMBI JA: I agree
Dube, Manikai & Hwacha, appellants legal practitioners
Honey & Blanckenberg, respondents legal practitioners
