This is an application for direct access to the Constitutional Court made in terms of section 167(5) of the Constitution as read with Rule 21 of the Constitutional Court Rules 2016 (“the Rules”).
The applicants intend to approach the Constitutional Court in terms of section 85(1) of the Constitution, seeking an order, that, the fundamental right of every person to form and join trade unions and employer-employee organisations of their choice and to participate in the lawful activities of those organisations, enshrined in section 65(2) of the Constitution of Zimbabwe 2013, has been and is being infringed by employers in respect of employees who are duly elected or appointed workers representatives and trade union leaders to the extent, that, the employers in question are permitted, by law, to dismiss such employees for acts performed bona fide and exclusively as the employee's duties and responsibilities as a workers representative and trade union leader.
The court finds, that, it is not in the interests of justice that direct access be granted in this matter. The reasons for so finding appear hereunder.
FACTUAL BACKGROUND
This application is borne of the Supreme Court judgment in ZB Bank Ltd v Marimo SC21-20. The background to that decision is set out hereunder.
The second applicant was employed by the third respondent as an Administrative Clerk and was also the chairperson of the workers committee. The management of the third respondent and the workers committee were engaged in a dispute over employees salary increments. The dispute was referred to a conciliator who was unable to get the parties to reach a consensus and issued a Certificate of No Settlement. Thereafter, between 8 and 15 September 2010, the second applicant sent out emails to his colleagues disclosing, through actual salary figures, the percentage adjustments that had been effected to the managerial employees salaries. He also stated that the workers committee had decided to embark on a collective job action to press their interests.
Pursuant to that conduct, the third respondent charged the second applicant with misconduct for contravening section 11(1) of SI 273 of 2000 (“the Code”). The allegations against him were that he had acted in a manner that was inconsistent with the fulfilment of the express or implied conditions of his contract. The premise to the charge was that the second applicant had generated offensive emails to a group of staff members contrary to the third respondent's standing policy contained in its Information Security Management Policy Document ('IT Policy Document'). It was also alleged, that, the contents of the e-mails were inflammatory and contained confidential information. The second applicant was found guilty of the misconduct and dismissed from employment.
He noted an appeal to the NEC Appeals Board, which held that the conduct complained of did not constitute an offence.
The Appeals Board further found, that, the third respondent had not substantiated the allegations relating to the charge preferred against the second applicant. Accordingly, it held that the charge preferred against the second applicant was inappropriate.
It stated, further, that, although the second applicant exceeded the limit of the number of emails allowed by the third respondent's IT Policy Document, thereby breaching the appellant's standing policy, the emails were neither inflammatory nor offensive, and that confidentiality had not been breached.
It also stressed, that, the second applicant's conduct was in pursuit of a right to represent workers and that the emails were meant to result in a call for collective job action or, at least, put pressure on the appellant to accede to the workers wage demands. The NEC Appeals Board consequently ordered the reinstatement of the second applicant.
Aggrieved by that decision, the third respondent appealed to the Labour Court.
It averred, that, the Appeals Board erred in failing to find that the second applicant had been properly charged and dismissed from employment, and, further, that the Appeals Board had erred in failing to afford to the third respondent an alternative to the reinstatement of the second applicant.
The Labour Court found, that, as the employees were considering going on strike over the wage dispute, the second applicant acted within the bounds of his official duties, as the chairperson of the workers committee, to communicate developments pertaining to the intended strike to his fellow employees. The court, however, stated, that, although the second applicant may have gone 'overboard' by breaching the appellant's Information Security Policy, the breach did not warrant a dismissal. Consequently, the third respondent's appeal was dismissed.
The third respondent subsequently noted an appeal to the court a quo.
Although three issues stood for determination, the relevant issue germane to the disposal of the present application was couched as follows:
“Whether the court a quo erred in failing to appreciate that the respondent's conduct in violating the standing regulations was a breach of his privileges as the representative of the workers committee and could therefore not be excused.”
It had been the third respondent's argument, that, in exercising his entitlement to champion employees rights, the second applicant did not have the right to breach the law - in this case, the standing policy in question.
It was the court a quo's finding that there was merit in that contention.
The court further held, that, the right to champion workers rights is not exercised in a vacuum but should be exercised within the confines of the law as dictated, in this case, by the relevant Code of Conduct.
Adherence to the law within the Code of Conduct would ensure that the delicate balance between the competing interests of the employer and those of the workers, through their representatives, is maintained. It was further held, that, the second applicant would not be able to hide behind his position as the chairperson of the workers committee should the conduct alleged against him be proved. The court a quo further held, that, the second applicant had indeed violated the third respondent's IT Policy Document by disclosing confidential information. The appeal was consequently allowed.
Aggrieved by that finding, the applicants filed the present application on 1 April 2021.
At the hearing of the application, the first respondent was barred for failure to file any opposing papers in the matter.
Thereafter, the Court indicated to the parties, that, notwithstanding the preliminary points raised by the third respondent, it would hear all the parties and make a determination on the merits.
APPLICANTS SUBMISSIONS BEFORE THIS COURT
The applicants make the following argument.
Every person enjoys a fundamental right to form and join trade unions and employee or employers organizations of their choice and to participate in the lawful activities of those unions or organisations. They contend further, that, this right has been and is being infringed by employers in respect of those employees who, as duly elected or appointed workers representatives and trade union leaders, are charged with misconduct and dismissed from employment under a Code of Conduct for acts performed bona fide and exclusively as the employee's duties and responsibilities as a workers representative and trade union leader.
The contention is also put forward, that, in having a law that permits an employer to dismiss from employment an employee for acts performed under the aforementioned circumstances, the State is infringing the fundamental right protected by section 65(2) of the Constitution.
Lastly, the allegation is made, that, the current Labour Law, as interpreted by the court a quo, as was done in the judgment a quo and others, is inconsistent with section 65(2) of the Constitution.
The applicants argued, that, two questions arose for determination and these related to:
(i) Whether or not the applicants were raising a constitutional matter; and
(ii) Whether or not it was in the interests of justice to grant direct access.
Counsel for the applicants further submitted, that, there was no doubt that the applicants sought to raise a constitutional issue and that it was in the interests of justice to approach the Constitutional Court because it was not desirable that they approach the High Court in order to impugn the decision of the Supreme Court with regards to trade union immunity.
They further submitted, that, the matter involved a critique of a Supreme Court decision, and, as such, it was not desirable for it to go before the High Court for determination.
The applicants also submitted, that, they had a prima facie or arguable case as the Supreme Court did not apply its mind to the long standing position on trade unions enjoying their immunity in terms of section 101 of the Labour Act [Chapter 28:01] (“the Labour Act”).
They argued, that, within the workplace, employers were regulating the way union leaders conduct themselves and that this was improper conduct on the part of employers generally.
In this light, the applicants submitted, that, there were prospects of success in that the Supreme Court's decision went too far in protecting the employer at the expense of the employee which aspect should be dealt with by a full bench of this Court.
THIRD RESPONDENT'S SUBMISSIONS BEFORE THIS COURT
The application was opposed by the third respondent.
In limine, it averred, that, the intended application is a disguised appeal against a final judgment of the court a quo. It was also contended, that, not having been a party to the proceedings a quo, the first applicant has no right to question the correctness of that judgment.
The submission is also made, that, the applicants are not clear as to the law which they seek to challenge.
The third respondent further submitted, that, the application is out of time because it was made ten months after the judgment a quo was handed down and that the applicants ought to have made an application for condonation.
On the merits, it was argued, that, section 65(2) of the Constitution did not support the applicants contention and that, further to the above, an employee has a duty to comply with the terms of their employment contract and that an employees representative must carry out their duties in a lawful manner.
The third respondent further queried the rationale behind its joinder to the present proceedings.
The third respondent also argued, that, the applicants were not challenging the validity of section 101 of the Labour Act but were actually challenging the common law. It submitted, that, the Supreme Court did not, anywhere in its judgment, refer to the Labour Act, but, rather, dealt with a position of the law embodied in the Code of Conduct.
Thus, argued the third respondent, there was no constitutional matter for adjudication before the Constitutional Court, and, that, the Constitutional Court, in terms of its jurisdiction, is restricted to determine constitutional issues only.
The third respondent, further to the above, also argued, that, an employee cannot hide behind a trade union and be free of the employer's disciplinary tentacles for breaching a Code of Conduct. This would lead to a situation wherein every employee would then want to be ascribed to the union in an effort to evade disciplinary proceedings for acts of misconduct. In this light, the third respondent stated that it had acted within its powers.
Consequently, it was submitted, that, the matter did not give rise to a constitutional matter. It was a matter that the High Court could deal with taking into account its original jurisdiction.
For that reason, it was contended, that, it was not in the interests of justice to grant direct access. It moved that the application be dismissed with costs....,.
WHETHER IT IS IN THE INTERESTS OF JUSTICE THAT DIRECT ACCESS BE GRANTED
The Constitutional Court is a specialised court with limited jurisdiction. It only determines constitutional matters. As a result, direct access to the Court is an extraordinary procedure that is availed only in deserving cases that meet the requirements prescribed by the Constitution and the rules of the Constitutional Court.
Section 167(5) of the Constitution provides:
“(5) Rules of the Constitutional Court must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court —
(a) To bring a constitutional matter directly to the Constitutional Court;
(b) To appeal directly to the Constitutional Court from any other court;
(c) To appear as a friend of the court.”
In turn, Rule 21(3) of the Constitutional Court Rules prescribes what ought to be contained in an application for direct access. It reads as follows:
“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out —
(a) The grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and
(b) The nature of the relief sought and the grounds upon which such relief is based; and
(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence, or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”
Rule 21(8) of the Constitutional Court Rules goes on to provide:
“(8) In determining whether or not it is in the interest of justice for a matter to be brought directly to the Court, the Court or Judge may, in addition to any other relevant consideration, take the following into account —
(a) The prospects of success if direct access is granted;
(b) Whether the applicant has any other remedy available to him or her;
(c) Whether there are disputes of fact in the matter.”
The primary task, therefore, is to determine whether it is in the interests of justice for direct access to be granted.
The main argument by the applicants is that the law that permits an employer to discipline an employee for acts done bona fide in the exercise by that employee of his or her duties and obligations as a worker or union representative violates a fundamental right and is an infringement of section 65(2) of the Constitution.
This section provides as follows:
“(2) Except for members of the security services, every person has the right to form and join trade unions and employee or employers organisations of their choice, and to participate in the lawful activities of those unions and organisations.”…,.
The applicants argue, that, the above section protects, in unequivocal terms, the actions of an employee in pursuit of the rights of the employees where such employee commits acts of misconduct bona fide in the pursuit of the rights of those he represents in the workplace. Therefore, so goes the argument, any law contained in codes of conduct that permits an employer to discipline an employee who acts bona fide and contrary to his contract of employment is an infringement of the right contained in section 65(2) of the Constitution above.
The applicants have not identified, with any specificity, the law that they intend to challenge.
In one breath they aver that they allege an infringement of section 65(2) of the Constitution by the law emerging from the interpretation by the Supreme Court of section 101 of the Labour Act. They contend, that, at the stage of the application for access to the Constitutional Court, the merits of the intended application are irrelevant.
They contend, that, by merely alleging an infringement of a constitutional right, they have shown that they are raising a constitutional matter for jurisdictional purposes.
They are mistaken.
It is now settled in this jurisdiction, that, in view of the position of the Constitutional Court as a specialized court, an applicant must show that it is in the interests of justice that access to the court be granted. One of the factors that a court may take into account is whether or not the application has prospects of success.
The locus classicus is Lytton Investments (Pvt) Ltd v Standard Chartered Bank Limited and Another CC11-18, where the Constitutional Court stated:
“The Court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied:
(i) The first is that the applicant must state facts or grounds in the founding affidavit, the consideration of which would lead to the finding, that, it is in the interests of justice to have the constitutional matter placed before the Court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction.
(ii) The second factor is that the applicant must set out, in the founding affidavit, facts or grounds that show that the main application has prospects of success should direct access be granted.”
The court holds, that, the applicants have failed to show that the application has prospects of success. The reasons for so holding are the following:
The application does not raise a constitutional matter for determination by the Constitutional Court. The relief being sought in the draft order is set out to be the following:
“1. That, it be and is hereby declared that it is an infringement of the fundamental right protected by section 65(2) of the Constitution of Zimbabwe 2013 for an employment code of conduct registered in terms of section 101 of the Labour Act [Chapter 28:01] to permit an employer to dismiss from employment an employee for acts performed bona fide and exclusively as that employee's duties and responsibilities as a duly elected or appointed workers representative and trade union leader.
2. That, for the avoidance of doubt, and arising from the order in para 1, it is declared that the current labour law of Zimbabwe, contained in section 101 of the Labour Act [Chapter 28:01], and as interpreted by the Supreme Court of Zimbabwe in judgments such as ZB Bank Limited v Tirivanhu Marimo (Judgment No. SC21-20), namely, that, an employer may be permitted by a registered code of conduct to dismiss from employment an employee for acts performed bona fide and exclusively as that employee's duties and responsibilities as a duly elected or appointed workers representative and trade union leader, is inconsistent with the aforesaid section 65(2) of the Constitution and therefore invalid, null and void and of no force or effect.
ACCORDINGLY, IT IS ORDERED:
1. That, section 101 of the Labour Act [Chapter 28:01] must be interpreted in a way that makes it not contemplate (sic) a registered code of conduct that permits an employer to dismiss from employment an employee for acts performed bona fide and exclusively as that employee's duties and responsibilities as a duly elected or appointed workers representative and trade union leader....,.
2. There shall be no order as to costs.”
An analysis of the draft order does not lead to an order invalidating any law. The order sought seeks to create immunity for employees from disciplinary action within the workplace.
The Code of Conduct which, in this case, would be the offending law, has not been challenged.
It was conceded by the applicants counsel, that, the majority of codes of conduct are the product of negotiated collective bargaining agreements drawn up by the employers organisations and the employee organizations of the sector in respect of which the collective bargaining agreement relates to.
In my view, it is in the collective bargaining agreement that any immunity, if it is to be granted, must be provided for.
The contention by the applicants is that in a series of judgments, the last of which is ZB Bank Limited v Tirivanhu Marimo SC21-20, the Supreme Court has found that a union representative who commits an act of misconduct at his workplace, in an endeavour to further the interests of the membership of the union, is not immune from disciplinary proceedings. The applicants further contend, that, this position violates the right provided for in section 65(2) of the Constitution.
The right in the section is available to a person to participate in the lawful activities of a union.
My reading of the subsection does not suggest, by any stretch of the imagination, that employees are given carte blanche by the Constitution to breach their contracts of employment and provisions contained in codes of conduct and thus create havoc or anarchy within the workplace under the guise of furthering the interests of workers and the union.
The contention, that, the Supreme Court judgement cannot be subjected to scrutiny by the High Court is evidence of the argument by the third respondent that the intended application does not raise any constitutional issues and is, in point of fact, a disguised appeal.
In order to participate in the activities of a union, a person must be a member of such union.
The Constitution of the first applicant provides that “membership of the union shall be open to all employees in the financial services industry.”
It stands to reason, therefore, that one's route to union membership is firmly hinged on one's employment status. One must be an employee, but one must also be an employee in the relevant or appropriate employment sector. If one is not an employee one cannot be involved in union duties nor can one lawfully represent other employees in relation to labour rights.
Thus, the employer-employee relationship is the glue that connects an employee, on the one hand, and his capacity to act for a union within the industry, on the other.
The employer-employee relationship is sacrosanct and based on trust. The employee is therefore obliged to act in good faith and in a manner that is consistent with the interests of his or her employer.
The fact that an employee is a member of a trade union or is a workers representative does not sever the employment relationship. It does not qualify any of the obligations and duties that each owes the other under the contract of employment. The terms of the contract of employment define the ambit of the parties relationship. To place the employee's status as a union member or workers representative above that of the employment contract would be to subsume the contract of employment under such membership.
That cannot be a correct position of the law as it pertains to employment contracts.
Section 65(2) of the Constitution, upon which the applicants seek reliance for the alleged violation of the fundamental rights of employees in the workplace, does indeed protect the right of every person to form, join, and participate in the activities of a trade union or employer organisation.
The rider to the right is that such participation must be clothed with legality.
The applicants counsel was pressed on this issue and was constrained to concede that the activities protected under section 65(2) of the Constitution must be lawful.
It was pertinent to note, that, the applicants counsel admitted, that, the participation of the second applicant, or his colleagues, in an illegal strike would not be the lawful activities contemplated by the section for protection.
In my view, the concessions from counsel establish that the application does not enjoy prospects of success.
The employment relationship is a voluntary one and the employee is duty bound to honour it if he or she wishes to remain in the relationship.
Inherent in the contract of employment is the employer's right to discipline an employee for perceived acts of misconduct.
The applicants accept, that, codes of conduct that are registrable under section 101 of the Labour Act provide for disciplinary measures for misconduct in the workplace.
Thus, the Labour Act itself limits the right to engage in trade union activities unless such activities are lawful. The activities must be consistent with the law and the employer's interests.
The contention by the respondents, which contention finds favour with me, is that the applicants have not identified which law they seek to challenge.
They accept that disciplinary measures in the workplace are permitted in terms of section 101 of the Labour Act which not only provides for the registration of codes of conduct but sets out what a code of conduct may provide for.
They are not seeking to impugn this section.
What they suggest is that the proposition by the Supreme Court, to hold that an employee may be disciplined for those acts of misconduct done by an employee as a worker representative is in violation of section 65(2) of the Constitution.
The Constitution gives every person the right to participate in the “lawful activities” of a trade union. It does not give licence to members to breach the law. The right does not exist in a vacuum and the right must be balanced against the interests of the employer and taking into consideration the obligations that an employee owes his or her employer.
An argument raised by the third respondent, as a preliminary point, was to the effect, that, the intended application is a disguised appeal against the judgment of the Supreme Court, and that, for that reason, the application was not properly before the Court.
The argument by the applicants is that the Supreme Court is the highest court in relation to matters that do not raise a constitutional issue and no appeal lies against a decision of that court.
The additional argument made is that the order being sought is evidence of the nature of the application that they seek to bring.
It is correct, as contended by the third respondent, that, the Supreme Court is the highest court in this jurisdiction and that no appeal lies against its decisions unless the decision is on a constitutional matter.
However, it is settled that the law allows an attack against a judgment of the Supreme Court where certain requisites have been met on the premise of the attack.
In Denhere v Denhere CC09-19, the Constitutional Court set out the principle for an attack on a Supreme Court judgement in the following terms:
“In Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18, the Court noted at pp6-11 of the cyclostyled judgment that:
'Consideration of the relevant constitutional provisions supports the view, that, the validity of a decision of the Supreme Court, in proceedings involving non-constitutional matters, may be challenged on the ground that it has infringed a fundamental right or freedom enshrined in Chapter 4 of the Constitution. The basis of the right of a party to the proceedings to challenge the validity of a decision of the Supreme Court, in the circumstances, is the Constitution itself. The right given to a litigant under section 85(1) of the Constitution, to approach the Court for appropriate relief on the allegation stated, is correlative to the constitutional obligation imposed on the Supreme Court as a body exercising public authority....,.
The scope of the right to approach the Court for appropriate relief under section 85(1) of the Constitution is not limited by specific objects against which the allegations of infringement of a fundamental right or freedom can be made. A constitutional complaint provided for under section 85(1) of the Constitution can be lodged against any act of public authority. A decision of the Supreme Court, in a case involving a non-constitutional issue, would fall within the category of acts, the constitutional validity of which may be challenged on the grounds prescribed under section 85(1) of the Constitution.'”
That the applicants enjoy the right described above is not in doubt.
The test for challenging a judgment of the Supreme Court was established in the case of Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18 as follows:
“The facts must show, that, there is a real likelihood of the Court finding that the Supreme Court infringed the applicant's right to judicial protection. The Supreme Court must have failed to act in accordance with the requirements of the law governing the proceedings or prescribing the rights and obligations subject to determination. The failure to act lawfully would have to be shown to have disabled the court from making a decision on the non-constitutional issue.
The theory of constitutional review of a decision of the Supreme Court, in a case involving a non-constitutional matter, is based on the principle of loss of rights in such proceedings because of the court's failure to act in terms of the law, thereby producing an irrational decision. There must, therefore, be proof of the failure to comply with the law. The failure must be shown to have produced an arbitrary decision.
Arbitrariness and inconsistencies threaten the claim to judicial authority. The remedy under section 85(1) of the Constitution is not for the protection of fundamental rights and freedoms in the abstract. Concrete review requires that there be clear and sufficient evidence of the facts on the basis of which allegations of infringements of fundamental rights or freedoms are made.”
In the averments made by the applicants in this matter, there is no allegation that the Supreme Court failed to comply with the law.
Its compliance with the law is not only conceded - it is accepted.
It is in fact accused of complying with and upholding the provisions of codes of conduct in the workplace. There is thus no suggestion of arbitrariness on the part of the Supreme Court.
Further, there is no suggestion in the application itself that the decision of the Supreme Court is in any way inconsistent with the law thus justifying an attack on the decision on the basis that it has violated a fundamental right.
As stated by the Constitutional Court in Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18, the remedy under section 85 of the Constitution is not for the protection of fundamental rights in the abstract. An applicant must show the breach of the fundamental right.
As contended by the third respondent, correctly in my view, the applicants have brought to the Constitutional Court an application that is, to all intent and purposes, a disguised appeal against the judgment of the Supreme Court in ZB Bank Limited v Tirivanhu Marimo SC21-20.
A selective comparison may be drawn from South Africa where section 14(4) of the Labour Relations Act 66 of 1995 provides, that, a trade union representative has the right to perform various functions at the request of an employee in the workplace. Furthermore, item 4(2) of Schedule 8 of the Labour Relations Act 66 of 1995, as amended, also provides, that, discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.
In that context, the Labour Appeal Court said the following in BIFAWU & Another v Mutual & Federal Insurance Co Ltd (2006) 27 ILJ 600 (LAC)...,:
“That an employee, even when he or she is representing a fellow employee at a disciplinary enquiry or arbitration hearing, owes certain duties to an employer cannot be doubted. Among these is the duty to act honestly....,. After all, when an employee represents a fellow employee at a disciplinary enquiry or arbitration hearing, he or she does so precisely in that capacity, of being a fellow employee.
The fellowship does not transubstantiate the continuing employment relationship between the employer and the representing employee.
…,. The right and duty to represent a fellow employee to the best of one's ability is not an unbridled licence; it is constrained by the duty to do so honestly. Without honesty on the part of the representatives of the parties, the system would be unviable.”
It is the Court's view, that, a workers representative's actions, bona fide or mala fide, and whether carried out in furtherance of his or her duties as a trade unionist or employees representative, ought not to undermine the employer/employee relationship.
This is because the employment relationship is intrinsically both co-operative and antagonistic.
It is cooperative in as much as employers and employees are mutually dependent on one another to secure their goals. At the same time, it is antagonistic because of the different interests that the parties may hold....,.
The Court holds, that, the applicants have failed to demonstrate, that, it is in the interests of justice to grant leave for direct access. This is because the right to participate in the activities of a trade union, or act as a workers representative, cannot be exercised to undermine the employer/employee relationship.
DISPOSITION
In the result, the application be and is hereby dismissed with no order as to costs.
