McNALLY
JA:
This
is a labour dispute between the parties. A brief history of the
matter is as follows:
The
appellant (the Corporation) employed the respondent (Mr Moyana) on 20
October 1980 as a Marketing Executive. The contract was a simple one,
providing that his functions were to be assigned to him from time to
time. His starting salary was specified and it was provided that
"salary reviews are carried out in Nedlaw as and when an
executive shows himself to have performed well and produced results".
(Nedlaw
was the Corporation's holding company).
There
was also provision for one month's notice of termination of the
contract to be given by either side.
Mr
Moyana became a Training Officer in the Training Department in 1981
and a Principal Training Officer on 9 January 1982.
On
27 May 1986 the Group Personnel and Training Director wrote
complaining about certain alleged shortcomings in Mr Moyana's work,
and Mr Moyana replied rejecting the complaints. He claimed that the
problems arose out of shortage of staff, and pointed out that the
Training Manager had been transferred and not replaced. He claimed
that his request for a salary review had been ignored and asserted
that he was entitled to an acting allowance during the absence of the
Training Manager.
The
Corporation's Chairman then wrote withdrawing the letter of 27 May
1986 and adding "Your reply dated 2 June 1986" "
therefore falls away".
Mr
Moyana at once responded that he did not withdraw his claim to be
paid as a Training Manager from the time the actual Training Manager
had left. (He did not at any stage rely on an actual appointment as
Training Manager).
After
a certain amount of bickering which need not be set out the
Corporation suspended Mr Moyana without pay with effect from 16 July
1986 and referred the dispute to a Labour Relations Officer in terms
of the Labour Relations (General Conditions of Employment)
(Termination of Employment) Regulations 1985 (SI 371/85).
Thereafter
events developed as follows:
1.
On 1 October 1986 the Hearing Officer made a determination that Mr.
Moyana be reinstated and paid $12,000 in "Back payment in
salary".
2.
The Corporation appealed to the Regional Hearing Officer, but
meanwhile, on 6 October 1986, reinstated Mr Moyana as directed.
3.
On 22 December 1986 the Regional Hearing Officer upheld the Hearing
Officer's decision and increased the "back payment" from
$12,000 to $15,184.
4.
On 25 March 1987 the High Court, in Judgment No. HH-168-87, set aside
both these determinations on the grounds of procedural irregularity.
In doing so it commented: "It may well be that, in practical
terms, the applicant will be obliged to approach the labour relations
officer once again for authority to dismiss the second respondent,
but that is not the concern of this court".
5.
Ignoring this advise, and after further criticism by the
Corporation's senior officers of Mr Moyana's performance, the
chairman wrote to him on 28 May 1987 formally terminating his
contract of employment and giving him a month's pay in lieu of
notice.
6.
On 8 June 1987 Mr Moyana referred this dismissal and his claim for an
acting allowance of $33,750 to a Labour Relations Officer.
7.
The matter was referred to the Labour Relations Board in terms of
s109(2)(d) of the Act.
8.
The Board made determination on 8 April 1988. In summary it ordered:
(a)
Payment of an acting allowance for the twenty-four months preceding
the date of the order. Page 307 of 1989 (1) ZLR 304 (SC).
(b)
Payment of emoluments from the date of illegal termination to date.
(c)
Termination of the contract of employment forthwith (ie with effect
from 8 April 1988) on the ground of incompatibility.
9.
The Corporation appealed against this decision to the Labour
Relations Tribunal which, in an undated judgment apparently handed
down on 12 October, 1988, ordered as follows:
"1.
That the termination of Mr Moyana's contract of employment as per the
Corporation's letter of 28 May 1987 was of no force or effort.
2.
That Mr Moyana be and is hereby reinstated as the Corporation's
Principal Training Officer without loss of salary or other benefit
accompanying his post.
3.
That the Corporation pay Mr Moyana acting allowance for carrying out
the functions of a Training Manager for a period of 24 months
extending from 8 July 1987 and dating back to 7 July 1985 at the rate
for the job less his salary as Principal Training Officer.
4.
That there be no order as to costs."
Against
this order the Corporation appealed to the Supreme Court. It alleged
a number of procedural irregularities and sought a reversal of each
of the orders made by the Tribunal.
I
will deal with them in turn.
(A)
THE VALIDITY OF MR MOYANA'S DISMISSAL ON 28 MAY 1987
I
noted earlier that the Corporation seemed to ignore the advice of the
High Court that it should again seek authority to dismiss Mr Moyana.
The
letter of 28 May 1987 is very curiously worded. It begins by saying:
"This
letter is to inform you of the termination of your employment with
the Art Printers Group in terms of sections 3(a), 3(b), 3(g) and 3(h)
of Statutory Instrument 371 [of 1985]".
Yet
those subsections do not deal with termination of employment. They
deal with summary suspension without pay.
The
Corporation was well aware of this because earlier, on 16 July 1986,
it had acted under this section and had summarily suspended Mr
Moyana. It is difficult to understand how the Corporation thought it
could dismiss Mr Moyana under this section.
Before
us Mr de Bourbon did not seek either to defend or explain these
contradictions. He asserted that the letter of 28 May 1987 was a
dismissal on one month's notice and contended that dismissal on
notice was lawful in terms of the Labour Relations Act. Insofar as s2
of the Regulations contradicted the assertion it was, he claimed,
ultra vires the Act.
I
will assume that the letter of 28 May 1987 can be regarded as a
dismissal on notice because it reads in part:
"However,
the Company intends nevertheless to pay you not only your salary in
respect of May 1987 (which has already been paid) but also a month's
pay in lieu of notice, that is to the 30th June 1987."
Despite
this, I remain unpersuaded that the Regulations are ultra vires.
Basically
I agree with the reasoning of the President of the Tribunal, who
relied in turn upon a decision of the Judge President of the High
Court in Jarvis v Commercial Careers College (1980) (Pvt) Ltd
HH-312-88.
I
will therefore set out my reasons only briefly.
Mr
de Bourbon's central submission was that s12(1)(a) of the Labour
Relations Act No. 16 of 1985, enshrines the right of an employer to
terminate a contract on notice. That being so, the Minister has no
power by regulations to qualify or, a fortiori, to eliminate that
right.
I
will accept, for purposes of argument, that the conclusion is
correct. It is the premise, in my view, which is false.
Section
12(1)(a) reads as follows:
"Except
where a longer period of notice has been provided for in any contract
or in any relevant enactment, every contract of employment made
without reference to time, not being a contract to perform some
specific service, shall be deemed in the case where -
(a)
the contract is to pay wages at a monthly rate, to be a contract from
month to month, terminable by either party at any time upon giving
not less than one month's notice, terminating on the last day of a
month…."
This
section does not enshrine the right of an employer to terminate a
contract on notice. All it does is to introduce a statutory term into
employment contracts which are " made without reference to
time".
The
section in fact says nothing about the contract with which we are
concerned, because that contract did specify a month's notice. It was
not "made without reference to time". I am entirely
satisfied that the section is no more that a deeming section. It
speaks only of the content of a contract of employment; it says
nothing about the enforceability of the terms deemed to be part of
the contract.
It
is interesting, as confirmation of the above, that s13, 14 and 15 of
the Act, to which Mr de Bourbon referred by way of analogy, all
contain the words "shall be entitled". No such words appear
in s12.
There
is a further reason, if further reasons are necessary, why I am
unable to accept the submission that s12(1)(a) enshrines the right of
an employer to terminate a contract of employment on notice.
Insofar
as there is ambiguity in the provisions, although I do not believe
there is any, one must look for an interpretation which is consistent
with the context within which the words came into existence. In
looking at the context, one has in mind the words of Schreiner JA in
Jaga v Donges NO & Anor: Bhana v Donges NO & Anor 1950 (4) SA
653 (A) at 662H:
"'[T]he
context' as here used is not limited to the language of the rest of
the statute regarded as throwing light of a dictionary kind on the
part to be interpreted.
Often
of more importance is the matter of the statute, its apparent scope
and purpose, and, within limits, its backgrounds."
The
long title of the Labour Relations Act No. 16 of 1985 sets out its
purpose to be:
"To
declare and define the fundamental rights of employees; to define
unfair labour practices; to regulate conditions of employment and
other related matters….."
The
provisions of the Act itself confirm the clear impression that one of
its fundamental objects is to improve the lot of the employee. Thus -
(a)
There is no definition or declaration of the fundamental rights of
employers, whereas Part II sets out the fundamental rights of
employees;
(b)
Part III sets out unfair labour practices which may be committed by
employers, by trade unions and by worker' committees. There is no
specific references to unfair labour practices by individual
employees, though s20 allows the Minister to prescribe acts or
omissions which constitute unfair labour practice by employees. Apart
from failure to comply with the provisions of a collective bargaining
agreement (s87(3) of the Act) no such practice has been defined - see
the Third Schedule to SI 368/1985;
(c)
The general conditions of employment defined are all minimum
requirements and may be improved, in favour of the employee, by
contract or by regulations, industrial agreement or determination.
See generally Part IV of the Act;
(d)
Specifically s17 gives the Minister regulatory powers for the
"development, improvement, protection, regulation and control of
employment and conditions of employment".
These
regulations have overriding force - see section 17(2).
In
the wider context, too, one construes the Act according to its
historical setting and in terms of the "mischief" rule.
Lord
Simon of Glaisdale in his speech in Cheng v Governor of Pentonville
Prison [1973] 2 All ER 204 (HL) at 215a spoke of:
"…..
ascertaining, first, the general situation in which Parliament was
legislating and, secondly, the particular situation for which
Parliament was providing a remedy. These are really different aspects
of the same canon of construction; though the former is sometimes
called construction according to 'historical setting', the latter
'the mischief rule'. "
Thus,
when the decision in S v Jovner 1982 (2) ZLR 252 (SC) showed that the
Employment Act 1980, in its s8, and the Employment (Conditions of
Service) Regulation 1981, in s4, did not serve to prevent termination
on notice, the President clarified the State's intentions by means of
the Emergency Powers (Termination of Employment) Regulations 1982,
published in SI 714B/1982.
The
existence of the Statutory Instrument was obviously known to the
Legislature when the Labour Relations Act was enacted in 1985 and the
overwhelming probability must be that the Legislature did not intend
to go back to the status quo ante.
Indeed,
one has only to look at the difference between s17(2) of the 1985
Statute and s5(2)(a) of the 1980 Statute to appreciate that the
Legislature intended to confirm the reversal of Jovner supra,
achieved by s4 and 5 of the Emergency Powers Regulations, which were
only finally repealed by SI 77/1987.
I
have taken this further argument more or less directly from the heads
of
Page
311 of 1989 (1) ZLR 304 (SC) argument of Mr Gillespie in the Jarvis
matter, which was heard some days after the present appeal was
argued.
I
acknowledge the force of the submissions, and I adopt them, without
deviating from my primary view that the words of the enactment are
clear and do not require interpretation.
Once
it is accepted that s12 does not give or enshrine a right to give
notice, then one may turn again to s17 of the Act, which begins:
"
(1) Subject to the provisions of this Act, the Minister may make
regulations providing for the development, improvement, protection,
regulation and control of employment and conditions of employment. "
Clearly
the Minister's power under this subsection to "regulate"
dismissal on notice is not subject to the provisions of s12.
Section
12, as we have seen, concerns only the content of contracts of
employment, and s17(2) makes it clear that regulations override
content, when it says -
"Regulations
made by the Minister in terms of subsection (1) shall, unless such
regulations otherwise provide, prevail over the provisions of any
other statutory instrument or of any agreement or arrangement
whatsoever…..."
Finally,
the Minister's power is defined in s17(3)(r) which permits him to
make regulations -
"……
specifying or otherwise restricting the circumstances in which
contracts of employment may be terminated summarily or otherwise."
I
am therefore satisfied that s2 of SI 371/1985 is not ultra vires the
powers granted to the Minister in terms of s17 of the Act and is not
in conflict with the provisions of s12 of the Act.
The
first point must therefore be decided against the appellant.
(B)
REINSTATEMENT
It
is quite obvious that the Corporation does not want to take Mr Moyana
back.
For
this part, Mr Moyana has tended to blow hot and cold. On the one hand
he accepted his terminal benefits, including a refund of his pension
contributions, after he was "dismissed" in May 1987. At
times in his argument, which is not always easy to follow, he seemed
to accept that the termination of his employment was inevitable and
acceptable to him. Thus at p51 of the transcript of the submissions
before the Tribunal (although it is headed "Labour Regulations
Board" it is clearly the proceedings before the Tribunal) he is
recorded as saying:
"In
the final analysis also, the termination of the….. I think it was
very fair. Secondly, the fact that they are saying 'Why did you not
contest', whereas, in all honesty, in management, you would not want
to be seen to be forcing yourself on people when, it has become
obvious the sun has set. All I can ask through your office, My Lord,
is that they should desist from following me up. We should be allowed
to part amicably….."
A
little later he seems to go back on that statement and says
categorically:
"I
would like to be reinstated ".
Overall,
however, one gains the very strong impression that he sees
reinstatement as a bargaining counter. He wants to establish his
claim to have been wrongfully dismissed, and it is in that sense,
really, that he speaks of reinstatement. What he wants is to have the
dismissal set aside, to have his financial rights determined, and
then to part company with the Corporation.
It
is important to clarify this attitude on his part because the
Corporation is taking what might in different circumstances be
regarded as a somewhat technical point against him. They say that the
Board had a discretion to reinstate him; it decided not to do so; he
did not appeal against that decision; and therefore the Tribunal had
no jurisdiction to reverse the decision.
The
Board which made the decision not to reinstate was undoubtedly a
"determining authority" as defined in terms of s2. The
Board is given the power in s111(2)(c) to order reinstatement in a
job. Obviously it must have a discretion in that regard. In this case
it decided not to do so on the grounds of incompatibility. That can
hardly, in the circumstances, be described as a decision no
reasonable Board could make.
No
appeal was lodged in terms of s40 of the Labour Relations (General)
Regulations 1985, (SI 368/85) by Mr Moyana.
The
Tribunal, which is a creature of statute and whose powers therefore
must be founded within the four walls of the Act, has its powers
defined in s107 of the Act, which reads:
"In
determining an appeal in terms of this Part, the Tribunal may
confirm, vary or set aside the decision appealed against and make an
order accordingly, and may include in such order any order that to
costs as it thinks fit" (my emphasis).
The
decision of the Board not to reinstate Mr Moyana was not appealed
against. He himself did not appeal at all, and the Corporation
appealed only on other parts of the Board's determination.
It
is true that the Corporation appealed against the date with effect
from which reinstatement was refused (8 April 1988) and claimed it
should have been as from 28 May 1987, but that was not an appeal
against the decision not to reinstate.
The
Tribunal does not seem to have addressed itself to the legal
implications of this question.
The
judgment of the President does record that in terms of s7(1) of the
relevant Regulations (SI 369/1985) "an appeal from a decision of
the Board to the Tribunal shall be an appeal on the Record of the
Proceedings before the Board and shall not be in the nature of a
re-hearing….".
This
provision was, however, not considered in the context of whether the
issue of reinstatement was before the Tribunal.
The
Tribunal appears to have taken the view that if the dismissal was
unlawful Mr Moyana was ipso facto entitled to reinstatement. They
found his dismissal was unlawful and therefore they ordered his
reinstatement.
It
seems to me with respect that in this the Tribunal was wrong.
Reinstatement
is not the only or the inevitable remedy for wrongful dismissal. It
is a remedy. There is an alternative remedy which is a claim for
damages for wrongful dismissal.
The
matter is expressed as follows in "Labour Law; Cases and
Materials" by Benedictus & Bercusson:
"The
obvious remedy for unjustified ('unfair') involuntary termination is
re-employment, if the employee so wishes, and otherwise compensation.
The
first remedy is not available at common law.
The
essentially reciprocal nature of contractual obligations means that
it is impossible to force an unwilling party to remain bound to a
contract against his will. This in effect gives a veto to either side
to prevent the continuance of a contract of employment
notwithstanding the possible merits of the other party's case for
maintaining the contractual relationship.
Compensation
at common law is minimal, being confined to the precise contractual
loss suffered….. Statute, as will be seen, has only partially
overcome these limitations."
The
authors then go on, at p394, to quote another book which says:
"Although
reinstatement is clearly the primary remedy for unfair dismissal
provided by law, very few successful applicants are awarded it. The
usual remedy for successful applicants is compensation."
It
would seem that the English legislation has more detailed provisions
for compensation that ours, but the point that I am making is that
reinstatement is not the inevitable consequence of a finding of
wrongful dismissal.
The
Board decided against it, and the Tribunal had no jurisdiction to
interfere with the decision in the absence of an appeal against it.
Towards
the end of its judgment the Tribunal reverted to this point. It said:
"We
are unable to support the Board's finding that 'the two parties could
no longer work together' on account of incompatibility. Mr Moyana has
asked to be reinstated. We believe that had the position been that he
was no longer prepared to work for the Corporation, he would not have
prayed for this relief. In any event, incompatibility between an
employer and an employee, even where it has been established, is not
in our law a ground for the employer to terminate the contract of
employment unilaterally."
This
passage calls for comment in two respects:
(i)
First of all, the Board's finding was not an incompetent finding. It
was within the Board's powers to make such finding. That being so,
the Tribunal had no power to question the finding in the absence of
an appeal against it. Note that the Tribunal's review powers are very
limited - s24 of SI 369/1985.
(ii)
Secondly, incompatibility was not a ground upon which the employer
had sought to terminate the contract of employment. It was a ground
upon which the Board had decided not to order reinstatement.
I
conclude therefore that the question of reinstatement was not before
the Tribunal and it had no jurisdiction to make an order on the
subject.
(C)
ACTING ALLOWANCE
The
main argument put forward by the Corporation was that the claim for
an acting allowance was not a dispute under the Labour Regulations
Act. At best it is a civil claim which should be bought in a civil
court.
It
seems to me that there is a great deal of merit in this argument.
Unless
Mr Moyana can found his claim for an acting allowance squarely on
some basis cognisable by the Act, then it is not a matter for
determination under the Act.
His
contract of employment makes no provision for acting allowances. In
fact, it makes it clear that the salary structure in the group is
particularly flexible.
Compare
the explicit provisions of s19 of SI 325/1979, which deals with
acting allowances in the Public Service.
There
is thus no contractual basis upon which the claim may be founded.
The
statute itself makes no specific provision about acting allowances,
nor is there any other statutory provision in terms of which a "rate
for the job" is laid down which is applicable to the facts of
this case.
It
has not been suggested that the failure by the Corporation to pay an
acting allowance amounted to an "unfair labour practice" as
defined in the Act, nor have I been able to find in s8 of the Act or
in the Third Schedule to the Regulations (SI 368/1985) anything which
would indicate that failure to pay an acting allowance in these
circumstances is an unfair labour practice.
Accordingly
the provisions of s111(2)(b) of the Act, which begin with the words
"in the case of an unfair labour practice involving a failure or
delay to pay or grant anything due to an employee….", are not
applicable.
I
guard against saying that Mr Moyana has a claim under the civil law.
All that I would say is that if he has a claim based in some way upon
a quantum meruit, as Mr de Bourbon suggested, such a claim should be
bought before the civil court.
(D)
COSTS
The
Corporation did not press its appeal against the Tribunal's refusal
to order costs either way, and Mr de Bourbon indicated that, while he
did not abandon his prayer for the costs of appeal, he was content to
leave the matter to the Court. It seems to me that since each party
has been partially successful, there should be no order as to the
costs of appeal.
In
the result I would make the following order:
1.
The appeal against the decision of the Labour Relations Tribunal
handed down on 12 October 1988 is in part upheld and in part
dismissed. More particularly -
(a)
The appeal against the orders in para 1 and 4 of the Tribunal's
judgment is dismissed.
(b)
The appeal against the orders in para 2 and 3 of the Tribunal's
judgment is allowed, and the orders as to reinstatement and the
payment of an acting allowance are set aside.
2.
There will be no order as to the costs of appeal.
3.
For the avoidance of doubt it is recorded that the order of the
Labour Relations Board declining, with effect from 8 April 1988, to
reinstate Mr Moyana in his employment, stands. Accordingly he is
entitled to his full emoluments as Principal Training Officer up to
that date, from which date his employment is deemed to be terminated.
GUBBAY
JA: I agree
MANYARARA
JA: I agree
Kantor
& Immerman, appellant's legal practitioners
