This
is an appeal against the judgment of the Labour Court which upheld
the respondent's appeal against dismissal from employment in terms
of the Labour (National Employment Code of Conduct) Regulations,
S.I.15 of 2006.
The
court a
quo
upheld
the respondent's appeal on the basis that the termination of
employment of senior urban council employees is exclusively governed
by the Urban Councils Act [Chapter
29:15](“the
Act”). Having come to that conclusion, it proceeded to nullify all
prior proceedings leading to the respondent's dismissal from
employment. It held that:
“…,
by virtue of the fact that the Urban Councils Act was ignored and the
National Code used instead, all the proceedings became a nullity and
I hereby allow the appeal with costs.”
Aggrieved
by the above findings and conclusion of law the appellant appealed to
this court for relief. The grounds of appeal are as follows:
1.
The court a
quo
erred
in finding that the termination of contracts of employment of senior
urban council employees is governed, exclusively, by provisions of
the Urban Council Act [Chapter
29:15]
to the exclusion of the Labour Act [Chapter
28:15]
and the regulations made thereunder.
2.
The court a
quo
erred
in holding that it had the jurisdiction to hear and determine the
matter before it.
Before
delving into resolving the contentious issues between the parties, it
is necessary to lay down the factual basis of the case which is, by
and large, not in dispute.
It
is common cause that the respondent was employed as a Chamber
Secretary by the appellant City Council. In that capacity he was a
senior official of the respondent, appointed as such in terms of
section 133 of the Urban Councils Act [Chapter
29:15].
The appellant dismissed the respondent from its employment following
disciplinary proceedings in terms of the Labour (National Employment
Code of Conduct) Regulations, S.I. 15 of 2006 (hereinafter referred
to as “the model code”).
The
dismissal was approved by the Local Government Board in terms of
section 140(2) of the Urban Councils Act [Chapter
29:15].
Dissatisfied
by the dismissal, the respondent appealed to the court a
quo.
The appellant objected to the court's jurisdiction without success:
hence this appeal.
The
cardinal issue which emerges for determination is whether the Urban
Councils Act has exclusive jurisdiction over the dismissal of senior
urban council employees. In other words, the question to be answered
is whether the respondent, in his capacity as a senior City of Gweru
employee, was susceptible to disciplinary action under the Labour Act
as read with its Regulations.
Section
140 of
the Urban Councils Act [Chapter
29:15]
provides for the discharge of senior employees of urban councils. It
states as follows:
“140
Subject to subsection (2) and to the conditions of service of the
senior official concerned, a council may, at any time, discharge a
senior official –
(a)
Upon notice of not less than three months; or
(b)
Summarily, on the ground of misconduct, dishonesty, negligence or any
other ground that would, in law, justify discharge without notice.
(1)
A council shall not discharge a senior official unless the discharge
has been approved by the Local Board;
Provided
that the discharge of a medical officer of health shall, in addition,
be subject to the approval of the Minister responsible for health in
terms of s11 of the Public Health Act [Chapter
15:09].”
Subsections
(3), (4) and (5) provide for an elaborate disciplinary procedure for
the dismissal of senior employees, other than the Town Clerk, on
grounds of misconduct. They provide as follows:
“(3)
If it appears to a town clerk that any other senior official of the
council has been guilty of such conduct that it is desirable that
that official should not be permitted to carry on his work, he -
(a)
May suspend the official from office and require him, forthwith, to
leave his place of work; and
(b)
Shall forthwith notify the mayor or chairman of the council, as the
case may be, in writing, of such suspension.
(4)
Upon receipt of a notification of suspension in terms of subsection
(3) the mayor or chairperson shall cause the suspension to be
reported, at the first opportunity, to the council.
[Subsection
substituted by section 27 of Act 1 of 2008.]
(5)
Where a council has received a report of a suspension in terms of
subsection (4), the council shall without delay -
(a)
Conduct an inquiry or cause an inquiry to be conducted into the
circumstances of the suspension; and
(b)
After considering the results of the inquiry, decide whether or not -
(i)
To lift the suspension; or
(ii)
To do any one or more of the following -
A.
Reprimand the senior official concerned;
B.
Reduce the salary or
any allowance payable to the senior official;
C.
Transfer the senior official to another post or grade, the salary of
which is less than that received by him or her at the date of the
imposition of the penalty;
D.
Impose a fine not exceeding level five or three months' salary,
which fine may be recovered by deductions from the salary of the
senior official;
E.
Subject to subsection (2), discharge the senior official.”
It
must be noted that while section 140 of
the Urban Councils Act [Chapter
29:15]
confers jurisdiction on the Town Clerk to initiate disciplinary
proceedings against other senior Council employees, it makes no
provision for the initiation of any disciplinary action against the
Town Clerk. The Mayor only comes in after the Town Clerk has
instituted the disciplinary proceedings.
While
the Urban Councils Act provides for the dismissal of a Town Clerk, it
makes no provision for the procedure to be followed to effect such
dismissal. Thus, no disciplinary action could have been initiated
against the respondent in terms of the Urban Councils Act because the
Act does not confer jurisdiction on any other employee, or authority,
to institute disciplinary proceedings against the Town Clerk.
It
would have been absurd, if not ridiculous, to expect the Town Clerk
to have instituted disciplinary proceedings against himself,
particularly in circumstances where he was denying the charges.
It
is this lacuna
in the Urban Councils Act that must have prompted the appellant to
turn to the Labour (National Employment Code of Conduct) Regulations,
S.I.15 of 2006 (National Model Code) for redress. The learned author,
C H MUCHECHE, in his book, A
Practical Guide to Labour Law, Conciliation, Mediation &
Arbitration in Zimbabwe
(2nd
ed African Dominion Publications, Harare,) opines that resort to the
Labour (National Employment Code of Conduct) Regulations, S.I.15 of
2006 (National Model Code) is permissible if there is no applicable
domestic Code of Conduct. Quoting PROFESSOR MADHUKU, the learned
author states as follows:
“According
to Professor Lovemore
Madhuku,
both section 12B(2) of the Labour Act and section 5(b) of S.I.15 of
2006 compel the use of S.I. 15 of 2006 in the absence of a registered
Code of Conduct. The expression, 'in the absence of' must be
interpreted purposefully. The mere existence of a registered Code of
Conduct is not sufficient to oust resort to S.I.15 of 2006. There
must be a registered Code of Conduct applicable to the case in
question. Where there is a registered Code of Conduct which is
inapplicable to the circumstances of the case, there is, 'the
absence of an employment code' for purposes of section 12B of the
Labour Act and section 5(b) of SI 15 of 2006…,. One cannot apply a
metal straight jacket and conclude that in every situation where an
employment Code of Conduct exists, it automatically follows that such
a Code of Conduct should solely be used to the exclusion of the
National Code of Conduct.”
This
is the sort of case which the learned author had in mind when he made
the above remarks.
The
domestic Code of Conduct being inapplicable to the case at hand, ways
had to be found of resolving the labour dispute confronting the
parties.
This
then brings me to the question of whether the Labour Act is
applicable as a disciplinary vehicle over a Town Clerk in his
capacity as a senior
official
of an urban council.
Section
3 of the Labour Act confers jurisdiction on the Act over all
employees except those it expressly excludes. It reads:
“Application
of Act
(1)
This Act shall
apply to all
employers and employees except those whose conditions of employment
are otherwise provided for in the Constitution….,.
(2)
For the avoidance of any doubt, the conditions of employment of
members of the Public Service shall be governed by the Public Service
Act [Chapter
16:04].
(3)
This Act shall not apply to or in respect of -
(a)
Members of a disciplined force of the State; or
(b)
Members of any disciplined force of a foreign State who are in
Zimbabwe under any agreement concluded between the Government and the
Government of that foreign State; or
(c)
Such other employees of the State as the President may designate by
statutory instrument.”
Upon
a proper reading of the above section, it is self-evident that the
Labour Act applies to all employees except those in categories that
are expressly excluded therein. These are:
1.
Those whose conditions of employment are otherwise provided for in
the Constitution.
2.
Members of the Public Service as read with section 26.
3.
Members of a disciplinary force of the State.
4.
Any other employee designated by the President in a statutory
instrument.
The
respondent, not falling under any one of the above excluded
categories, it follows that the Labour Act applies to him. The
employer was therefore perfectly within its rights to resort to the
Labour
(National Employment Code of Conduct) Regulations, S.I.15 of 2006
(National Model Code).
For
that reason, the court a
quo
misdirected itself and fell into error when it nullified the prior
proceedings on the basis that the Labour Act was not applicable to
senior urban council employees.
Section
12B of the Labour Act provides for laid down procedures for the
dismissal of any employee falling within its jurisdiction as follows:
“12B
Dismissal
(1)
Every employee has the right not to be unfairly dismissed.
(2)
An employee is unfairly dismissed –
(a)
If, subject to subsection (3), the employer fails to show that he
dismissed the employee in terms of an employment code; or
(b)
In
the absence of an employment code, the employer shall comply with the
model code made in terms of section 101(9).
[Paragraph
substituted by section 7 of Act 7 of 2005]
(1)
An employee is deemed to have been unfairly dismissed –
(a)
If the employee terminated the contract of employment with or without
notice because the employer deliberately made continued employment
intolerable for the employee;
(b)
If, on termination of an employment contract of fixed duration, the
employee –
(i)
Had legitimate expectation of being re-engaged; and
(ii)
Another person was engaged instead of the employee.
(2)
In any court proceedings before a labour officer, designated agent or
the Labour Court where the fairness of the dismissal of an employee
is in issue, the adjudicating authority shall, in addition to
considering the nature or gravity of any misconduct on the part of
the dismissed employee, consider whether any mitigation of the
misconduct avails to an extent that would have justified action other
than dismissal, including the length of the employee's service, the
employees previous disciplinary record, the nature of the employment
and any special personal circumstances of the employee.
[Section
substituted by section 10 of Act 17 of 2002].”
The
Labour (National Employment Code of Conduct) Regulations S.I.15 of
2006 is the model code envisaged in section 12B(2)(b) of
the Labour Act.
Ordinarily, it is meant to provide a platform for settling labour
disputes where there is no internal or domestic disciplinary Code
of Conduct
at the workplace.
Considering
that it is undesirable for parties to a dispute to be left without an
appropriate mechanism of resolving their labour disputes, like
PROFESSOR MADHUKU and C H MUCHECHE, I consider that section 12B(2)(b)
of the Labour Act should be given a broad, purposeful interpretation
to include circumstances where an existing internal Code of Conduct
or dispute resolution mechanism cannot, for justifiable reasons apply
to a particular case. It therefore appears to me that the legislator
intended the model Code of Conduct to be a fall-back labour dispute
resolution mechanism where it is impossible or inappropriate, for
good reason, to apply any other dispute resolution mode. To that
extent it is a universal disciplinary Code of Conduct fitting all
circumstances according to the exigencies of each case within the
confines of the Labour Act.
The
cardinal question which then arises for determination is whether the
Urban Councils Act excludes the jurisdiction of the Labour Act in the
dismissal of senior council employees such as the respondent in this
case.
Historically,
prior to 2005, this court had consistently held that senior employees
of urban councils were not susceptible to dismissal in terms of the
Labour Act. See the leading case of City
of Mutare v Matamisa
1998 (1) ZLR 512.
Following
the decision in City
of Mutare v Matamisa
1998 (1) ZLR 512 and a host of others based on the law prior to 2005
the lawmaker, in its wisdom, amended the law in two fundamental
respects under the Labour Amendment Act, 2005 as follows:
1.
It made the Labour Act superior to all other enactments inconsistent
with it. In other words, it takes precedence and overrides any other
subordinate statutes in conflict with it.
2.
The Act now applies to all employees save those it expressly excludes
from its ambit.
Sections
2A and 3 of the Labour Act, as amended, now read:
“2A.
Purpose
of Act
(1)
This
Act shall prevail over any other enactment inconsistent with it.
3.
Application of Act
(1)
This
Act shall apply to all employers and employees except those whose
conditions of employment are otherwise provided for in the
Constitution.
(2)
For the avoidance of any doubt, the conditions of employment of
members of the Public Service shall be governed by the Public Service
Act [Chapter
16:04].
(1)
This
Act shall not apply to or in respect of
-
(a)
Members
of a disciplined force of the State;
or
(b)
Members
of any disciplined force of a foreign State who are in Zimbabwe under
any agreement concluded between the Government and the Government of
that foreign State;
or
(c)
Such
other employees of the State as the President may designate by
statutory instrument.”…,.
The
section is couched in clear and unambiguous peremptory terms, such
that the problem of interpretation does not arise at all. All that
the lawgiver is saying is that the Labour Act applies to all
employees except those it expressly excludes from its domain. In
other words, the Labour Act applies to all employees except those
whom the legislator has expressly excluded from its application.
It
must, however, be noted that the Public Service Act [Chapter
16:04]
is
different from the Urban Councils Act in that it expressly confers
appellate jurisdiction on the Labour Court, under section 26, in
respect of matters initially determined in terms of the Public
Service Act [Chapter
16:04].
Now,
for the respondent to escape the omnibus application of the Labour
Act, he must show that he is one of those employees expressly
excluded under section 3 of the Labour Act.
It
is plain that the respondent, in the court a quo, dismally failed to
prove, on a balance of probabilities, that he is one of those
employees expressly excluded from the application of the Labour Act.
His argument was that the Labour Act does not apply to him because
his contract of employment is exclusively governed by the Urban
Councils Act.
That
line of argument is defective and unsustainable at law because the
Urban Councils Act is subservient to the Labour Act. In terms of
section 2A of the Labour Act, the Legislator has decreed it to
prevail over any other enactment inconsistent with it.
What
this means is that whatever the provisions of the Urban Councils Act
might be, they cannot exclude the application of the Labour Act to
any employee. It is only the Constitution and the President, by
statutory instrument, that can override the application of the Act
over any employee.
While
the cases decided before the advent of the Labour Amendment Act, 2005
were correct at that time in holding that the Labour Act was
inapplicable to senior urban council employees, those judgments have
since been overtaken by events. For that reason, since the
promulgation of the 2005 Amendment they have ceased to be valid and
binding going forward.
That
being the case, the court a
quo
fell into error and misdirected itself when it upheld the
respondent's appeal on the basis that the proceedings in terms of
the Labour Act were a nullity. The proceedings in terms of the Labour
Act were valid notwithstanding the provisions of the Urban Councils
Act because the respondent did not have a registered Code of Conduct
and the disciplinary procedures laid down in the Urban Councils Act
were inapplicable to the appellant in his capacity as Town Clerk.
For
the foregoing reasons, the appeal can only succeed. The judgment of
the court a
quo
will have to be set aside thereby clothing it with the necessary
jurisdiction to determine the appeal in terms of the Labour Act. The
merits and demerits of the appeal are exclusively within the
jurisdiction of the Labour Court.
There
being no reason to depart from the general rule that costs follow the
result, the general rule shall prevail.
It
is accordingly ordered that:
1.
The appeal be and is hereby allowed with costs.
2.
The Labour Court judgment, number LC/MT/92/12, be and is hereby set
aside.
3.
The matter is remitted to the Labour Court for it to proceed to hear
and determine the appeal under case number LC/MT/120/2011 on the
merits.
