The appellant was the respondent's employer. The respondent
was, over and above being the appellant's Stores Clerk, the Harare Depot Chairman
and National Chairman of the appellant's Workers' Committee. Below him, in the Workers'
Committee, was the Chairman of Khami Depot Workers' Committee as well as the
Harare Workers' Committee which he chaired.
Issues from Depot workers' committees would be forwarded to
him by the two workers' committees.
The appellant had, due to financial challenges, been unable
to pay part of its employees' salaries for 2009 and 2010. It had also not paid
their 2013 salary increases and was introducing cost cutting measures which
affected employee's conditions of service. The workers, through their Depot
workers' committees, instructed the respondent to refer their grievances to
legal practitioners. The respondent obliged and engaged the services of
Wintertons Legal Practitioners which wrote to the appellant about the workers'
grievances threatening to institute legal action. The dispute between the
appellant and its employees was reported in a local newspaper.
There is no allegation or evidence as to who leaked it to
the press.
The appellant preferred the following misconduct charges
against the respondent:
“1. It is alleged that you did not follow established procedures in that you did not follow the
laid down grievances procedures to register your grievances but instead went
direct to institute legal proceedings against the company as is evidenced
by a letter from your lawyers Wintertons Legal Practitioners dated 30 July
2014.
2. Further to that, you did not follow standing
instructions which state that whenever you wish to meet with the workers you
write a letter to the Human Resources department seeking permission to hold the
meeting. You held a meeting with 813
employees as evidenced by the document with 813 names attached to your legal
representative's letter. You did not seek clearance from the HR Department
before holding the meeting and the company was not advised of the agenda of the
meeting.
3. You had no authority to represent all the employees
cited in the paragraph above outside the company and your conduct in so doing
was disruptive of the business instead of being productive. You did not furnish
management with the resolution to institute proceedings.”…,.
In his response to the charges, the respondent said:
“With regard to the holding of (sic) general meeting with
employees and reference of matter to our legal representative, I kindly refer you to the minutes of the
last two Works Council meetings and;
With regard to caption of my name and 813 others, I hope you sincerely appreciate that I am
the National Chairman of the workers' committee and that action is provided for
in terms of section H. 7(a) of S. I. 67 of 2012.
As of misrepresentation, I have not received any one
distancing themselves from the issues and request all workers' committee
members to the last two Works Council meetings to be availed as witnesses on
the hearing day.”…,.
A disciplinary hearing was subsequently held.
The panel of four members was divided with two finding that
the respondent be found guilty as charged and two finding that the respondent
should be acquitted. The case was referred to the appellant's Acting CEO who
found the respondent guilty and dismissed him from employment.
The respondent appealed to the Labour Court which held that
his appeal had merit and ordered his reinstatement without loss of salary and
benefits from the date of dismissal.
The court a quo
found that section 24 of the Labour Act does not require the respondent to
obtain a petition or signatures of the employees for him to represent them.
Section 24 of the Labour Act authorises members of a workers' committee to
represent its members. In view of the provisions of section 24, the court a quo
held that the respondent had authority to refer the dispute to legal
practitioners on behalf of the workers and that the respondent, now appellant,
did not dispute that workers were entitled to legal representation.
The Labour court also found that the penalty of dismissal
should not have been imposed because the Code provides for two written warnings
before dismissal can be imposed.
The appellant was aggrieved by the court a quo's decision.
It appealed to this court on the following grounds:
1. The court a quo erred in law in tempering (sic) with the
penalty imposed by the Disciplinary Committee without any legal basis to do so.
2. The court a quo erred in law in ordering that dismissal
was not appropriate in circumstances where the misconduct committed by the
respondent went to the root of the employment contract and the penalty of
dismissal was the appropriate penalty.
3. The court a quo erred in finding that the respondent was
dismissed for exercising his right as a trade union or worker's committee
member when it was clear on the evidence before it that the respondent did not
have the mandate to represent the cited employees; under the circumstances,
such finding is outrageous and in clear defiance of logic a sensible court
applying its mind to the law and the facts would not have made it.
4. Overally, the court a quo erred in law in ordering reinstatement or payment of damages in
lieu of reinstatement in the circumstances.
The appellant's grounds of appeal raise two issues for
determination by this court:
1. Whether or not the respondent committed an act of
misconduct; and, if he did
2. Whether dismissal was the appropriate sentence.
Whether the respondent
committed an act of misconduct
It is common cause that the appellant and its employees had
a protracted dispute over outstanding wages and other grievances. This was
discussed at National Council meetings held on 2, 11 and 15 July 2014 which the
respondent attended in his capacity as the National Chairman of the Workers' Committee. At the meeting of 2 July, members of the
workers' committee indicated that if the company remained adamant they were
going to force it to pay the 2013 salary increase. At the 11 July meeting,
members of the workers' committee complained about Management's
failure to give them permission to meet workers. Management then granted the Northern Division's
workers' committee enough time to go and meet the workers before they met again
on 15 July. At the 15 July meeting, members of the workers' committee
questioned the legality of sending workers on unpaid leave and threatened to
approach the courts. The respondent, as the National Chairman of the worker's
committee, subsequently referred the matter to Wintertons, Legal
Practitioners.
That is the basis of the charges preferred against
him.
There was, in my view, ample evidence that workers had
genuine grievances which the appellant was not dealing with, with the
seriousness they deserved.
The determinant issue in this case is whether or not the
respondent committed an act of misconduct.
Counsel for the appellant said he did. The respondent said
he did not. The court a quo agreed
with the respondent. It on pages 3 to 4 of its cyclostyled judgment said:
“In casu, when it was apparent that there was no solution
to the grievance by the Chief Executive, the matter was not referred to the
NECTOI but to external lawyers, Wintertons, for it to engage Respondent. By a
letter dated 30th July, the legal practitioner engaged Respondent
and indicated its intention to take legal action if the grievance is not
resolved.
Filed of record are minutes dated 18th July 2014
of a feedback meeting held on 11th July 2014 in which the employees
of both Khami and Kelvin Depots made the proposal to engage a private lawyer to
solve their grievances. In view of this, did appellant require a petition or
the signature of each and every employee to have the matter referred to
lawyers?
I do not think so.
In terms of section 24 of the Labour Act [Chapter 28:01] a Workers'
Committee, to which appellant was the Chairperson, has a right to represent
employees in any matter affecting their rights and interests.
In view of the above, in the exercise of his mandate as Chairperson,
it was not untoward for appellant to have the matter referred to some lawyers
for them to handle it on behalf of the employees. I did not hear respondent
argue that the Code prohibits this.”
The court a quo held that the respondent, as the National
Chairman of the Workers' Committee, had authority to represent workers as
provided by section 24(1)(a) of the Labour Act [Chapter 28:01] which states as
follows:
“(1) A workers' committee shall –
(a) Subject to this Act, represent the employees concerned
in any matter affecting their rights and interests; and
(b) Subject to subsection (3), be entitled to negotiate
with the employer concerned a collective bargaining agreement relating to the
terms and conditions of employment of the employees concerned; and
(c) Subject to Part XIII, be entitled to recommend
collective job action to the employees concerned; and
(d) Where a
works council is or is to be constituted at any workplace, elect some of its
members to represent employees on the works council.”
Section 24(1)(a) of the Labour Act [Chapter 28:01] mandates
the workers' committee to represent employees in any matter affecting their
rights and interests. That authority is given by the law and cannot be
disputed.
I therefore agree with the court a quo that the respondent did not need a petition or signatures of each
employee for him to represent them or to refer their grievances to legal
practitioners. What was necessary was a mere indication by the majority of
workers that the dispute be referred to legal practitioners. It is not in
dispute that the respondent had such indication.
The allegation that the respondent had a meeting with 813
employees without Management's authority ignores the fact that there exists the
Kelvin and Khami depots which report to him. There is no evidence that he
personally met the 813 employees. What is clear on the record is that he
received the views and wishes of the employees and used his mandate in terms of
section 24(1)(a) of the Labour Act [Chapter 28:01].
If depots held meetings without approval, that would not be
misconduct by the respondent.
At the meeting held on 11 July 2014, Management authorised
the Northern Division's workers' committee to go and meet workers before the
meeting which was scheduled for 15 July 2014. This proves that that meeting was
authorised. At the meeting of 15 July, the workers threatened to approach the
courts. This was a collective decision of the workers on the strength of which
the respondent engaged legal practitioners.
In view of the provisions of section 24(1)(a) of the Labour
Act [Chapter 28:01], the respondent did not need the signatures of employees to
refer the case to legal practitioners. At the hearing of this appeal, counsel
for the appellant agreed that the referral of a dispute to legal practitioners
is not an act of misconduct. He conceded that workers have a constitutional
right to be represented by a legal practitioner.
The concession was properly made. It is supported by the
alleged offence not being on the list and definitions of offences in Annexure 1
of the Code of Conduct S.I.67 of 2012 and by the provisions of section 69(4) of
the Constitution.
The acts of misconduct which can be committed under the
Code (S.I.67 of 2012) are listed and defined in Annexure 1 of the Code. The
Annexure does not include the offence of not following the laid down procedure
or of engaging the services of a legal practitioner.
The respondent was therefore charged with an act which does
not constitute an offence under the Code of Conduct.
Failure to follow the procedure under H.7(a) and (b) was
not made an offence under the Code. H.7, which falls under Miscellaneous
provisions provides as follows:
“In every case where the issue concerns a collective
grievance, the following procedures shall apply -
(a) The Union or Workers Committee shall raise the issue as
if they were the complainant's, and to be discussed at Works Council;
(b) If the decision of the Chief Executive does not resolve
the issue satisfactorily, the matter shall be referred to NECTOI.”
These provisions do not, on their own, create an act of
misconduct but merely spells out the procedure to be followed. H.7(a) reaffirms
the mandate of the workers' committee to represent workers as provided by section
24(1)(a) of the Labour Act [Chapter 28:01]. H.7(b) provides for the procedure
to be followed if the Chief Executive Officer fails to resolve the issue
satisfactorily.
If the legal practitioners had carried out their threat to
institute legal proceedings, and had not followed the procedure laid down in
H.7, the failure could have been responded to by an objection based on failure
to follow the laid down procedure and insistence that the correct procedure be
followed. It is common cause that no litigation was instituted. It was merely
threatened. The legal practitioners merely engaged the appellant.
Section 69(4) of the Constitution provides as follows:
“(4) Every person has a right, at their own expense, to
choose and be represented by a legal practitioner before any court, tribunal or
forum.”
The meaning of the word 'forum' is wide enough to include
representation by a legal practitioner in engaging one's employer over
non-payment of wages and other grievances. The Oxford Advanced Learners
Dictionary defines 'forum' as “a place where people can exchange opinions and
ideas on a particular issue; a meeting organised for this purpose.”
It thus can be representation at a meeting with the
employer.
The legal practitioner certainly could represent the
workers at tribunals and courts if the dispute was to progress that far.
The legal practitioner engaged the appellant on behalf of
the workers. The discussions over the grievance therefore remained between the
appellant and the workers - now represented by a legal practitioner. It cannot
therefore be said that the respondent failed to follow the established
grievance procedure. The dispute was still within the appellant's company
though the workers were now speaking to it through a legal practitioner. The
workers are entitled to engage the services of a legal practitioner. The
appellant should have engaged them through their legal practitioners.
The charge preferred against the respondent alleges that he
“instituted legal proceedings against the company as evidenced by a letter from
your lawyers.”
That is not correct.
The letter from Wintertons, in relevant part, reads as
follows:
“Pursuant to the above, we have been instructed to demand,
as we hereby do, that you effect all payments due and owing to our clients
within 7 days of your receipt of this letter failing which legal proceedings
shall be instituted without further notice to yourselves. We hope you will
comply with our clients' demand to avoid litigation in a matter that can be
resolved amicably.”
It is clear that legal proceedings were not instituted but
were threatened. It is also clear that the legal practitioners were addressing
the appellant about the workers' grievances. They were therefore negotiating
with the appellant on behalf of the workers in the hope of an amicable settlement
as clearly stated in their letter. The discussion was to remain inhouse unless
the appellant refused to comply with the workers' demand through their legal
practitioners. The case could have been taken to the next stage by either
party.
The court a quo commented on referrals to NECTOI an
abbreviation for the (National Employment Council for The Transport Operating
Industry) as follows:
“The Code provides that the matter be referred to NECTOI
for a decision. The Code does not state who should or should not refer the
matter to NECTOI.”
Either party is entitled to refer the dispute to the National
Employment Council for The Transport Operating Industry. The employees were
entitled to do so on their own or through their legal practitioner. That stage
was not reached so nothing turns on the referral.
The misconduct was premised on the respondent's engagement
of legal practitioners and sending a list with persons the appellant says could
not have authorised him to refer the case to legal practitioners as they were
late or had left employment.
Nothing turns on that too because the respondent got his
mandate to represent the workers from his being the National Chairman of the
appellant's workers' committees. Once his status is established, the law gives
him the mandate to represent the workers - it is therefore of no consequence
that former employees were included.
It seems to me that the respondent was merely presenting
the list of employees whose grievances the legal practitioners had to
represent. The letter from Wintertons includes grievances of non-payment of
salaries for 2009 and 2010. That issue affects employees who died or left the
appellant's employment after 2009 and 2010. If he erred by presenting a list
with persons who were no longer the appellant's employees it is an error of
including persons who were no longer interested parties if they had been paid
their dues - not one of not being given a mandate by the majority of the
employees.
The court a quo concluded with an apt observation regarding
the issue of whether or not the respondent was guilty of misconduct by saying:
“The
principle of Freedom of Association stipulates that:
'No person should be dismissed or prejudiced in his or her
employment by reason of trade union membership or legitimate trade union
activities…,..'
See paragraph 748 of Freedom of Association - Digest of
Decisions and Principles of the Freedom of Association Committee of the
Governing Body of the ILO 4th Edition.”
The court a quo took the view that the respondent was wrongfully
dismissed for referring the dispute to legal practitioners in his capacity as
the representative of the appellant's workers.
I agree with that finding.
The evidence on record does not prove that he leaked the
dispute to the press which seems to have irked the appellant. The appellant did
not charge him for leaking the dispute to the press. It charged him for not
following internal procedures which is not an offence under the applicable Code
of Conduct. The court a quo correctly found that he followed the correct
procedure but with the assistance of legal practitioners - at the instance of
the workers.
This finding resolves what could have been the second
issue. Once an employee is not guilty of misconduct he cannot be punished.
Therefore, the issue of the appropriate punishment does not arise.
The appeal is dismissed with costs.
