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