UCHENA
JA:
This
is an appeal against the whole judgment of the Labour Court,
dismissing the appellant's application for review.
After
hearing submissions from counsel for the parties we dismissed the
appeal with costs, indicating that reasons for our decision would
follow. These are they.
The
detailed facts of the case can be summarized as follows;
In
April 2017 the appellant who was employed by the respondent as a
journeyman printer was charged with misconduct for unsatisfactory
performance of his duties. He was charged in terms of the
respondent's employment code of conduct hereinafter referred to as
the (CPL Code). After disciplinary proceedings, the appellant was
found guilty and dismissed from employment.
Aggrieved
by that decision, he appealed to the Appeal's Officer, who
dismissed his appeal.
After
the unsuccessful internal appeal the appellant applied to the court a
quo for the review of that decision praying for the reversal of his
conviction and dismissal from employment. He alleged that the
proceedings a quo were tainted by irregularity as the CPL Code which
was used had not been referred to the NEC for ratification in terms
of section 101(1)(b) of the Labour Act [Chapter 28:01]. He further
alleged that the CPL Code was inconsistent with S.I. 175/12, the NEC
Code.
It
is not in dispute that in February 2009, the National Employment
Council (NEC) for the Printing Packaging and Newspaper Industry had
approved and registered the respondent's Code of Conduct, the 'CPL'
Code, in terms of which the appellant was charged. The registration
was in terms of section 101(1)(b) of the Labour Act. This
registration was necessitated by the coming into force of the NEC's
own Code for the Industry in terms of S.I.148/09 as in terms of
section 101(1)(b) of the Labour Act, when the National Employment
Council registers its own Code, such Code supersedes all Codes under
the industry made at works council levels, unless such Codes are
submitted to it for approval and registration.
In
2012, the NEC published a new industrial Code under S.I. 175/12 which
repealed and replaced S.I. 148/09.
It
is this new Code the appellant alleged was binding and should have
been used during the disciplinary proceedings against him.
In
the court a quo, the appellant further argued that the respondent had
to register its employment Code again following the repeal of
S.I.148/09 and its replacement by S.I.175/12. He also submitted that
the CPL Code was inconsistent with the NEC Code of Conduct and ought
not to have been used.
The
respondent opposed the application arguing that the company's Code
had been duly registered with the employment council in terms of S.I.
148/09 and was after the coming into effect of S.I. 175/12 approved
by section 4.1 of that Statutory Instrument.
The
court a quo dismissed the application for review. It held that it was
not necessary for the respondent to resubmit its Code to the NEC
which had through section 4.1 of S.I. 175/12 ratified all Codes which
came into existence before it and held that the employer had used the
correct code of conduct in disciplining and dismissing the appellant
from employment. Accordingly, the court a quo dismissed the
appellant's application for review.
Aggrieved
by that decision, the appellant appealed to this Court on the
following grounds:
“1.
The court a quo erred and misdirected itself in not finding that in
the absence of ratification, the workplace code of conduct could not
supersede the NEC Code of conduct.
2.
The court a quo erred and misdirected itself in failing to appreciate
that Appellant had been dismissed in terms of the wrong Code of
Conduct and his dismissal was consequently a nullity.”
The
appeal raised one issue for determination: Whether or not the court a
quo erred in finding that the appellant was dismissed using an
approved Code of Conduct.
Mr
Bumhira, for the appellant, submitted that the nub of the matter was
the interpretation of section 101(1)(b) of the Labour Act. He
submitted that the NEC Code of Conduct for the Industry surpersedes
all other Codes unless they are approved. He further argued that the
in-built approval in section 4.1 of S.I. 175/12 is not what was
contemplated by section 101(1)(b) of the Labour Act. He contended
that the CPL Code had to be resubmitted for approval. Mr Bumhira
further argued that it followed that the Code used by the respondent
was not approved and everything that flowed from it was a nullity.
Mr
Chiwara for the respondent, submitted that the CPL Code was approved.
He contended that S.I.175/12 incorporated an inbuilt approval which
provided that all pre-existing Codes were approved and were not
affected by its promulgation. Mr Chiwara further submitted that the
inbuilt approval of all pre-existing Codes was to avoid a duplicate
process and could not be held to be inconsistent with the Act. He
submitted that the inbuilt approval in S.I. 175/12 was sufficient in
the circumstances and that the appellant's dismissal was in terms
of an approved Code of Conduct.
The
determination of this appeal depends on the interpretation of section
101(1)(b) of the Labour Act and S.I. 175/12.
Section
101(1)(b) of the Labour Act provides as follows:
“Where
an employment code is registered by a works council in respect of any
industry, undertaking or workplace represented by an employment
council and the employment council subsequently registers its own
employment code, the employment code registered by the employment
council shall supersede that of the works council unless the works
council refers it to the employment council for approval.”
The
effect of section 101(1)(b) of the Labour Act is that where the NEC
registers a Code for the industry, its Code will supersede any Works
Council code unless the Works Council Code would have been submitted
to the NEC for approval.
In
this case the respondent's employment code was superseded by the
Employment Council's code under S.I. 148/09. After that
supersession the respondent submitted its code to the NEC for
approval, which approval was granted. Section 101(1)(b) was therefore
complied with at that stage.
Later
S.I. 148/09 was repealed and substituted by S.I. 175/12.
Cognisant
of the previous approval and registrations of the respondent's and
other codes, the Employment Council through section 4.1 of S.I.175/12
exempted the respondent and others in similar circumstances from
having to resubmit their codes for approval and re-registration.
Section 4.1 of S.I. 175/12 provides as follows:
“The
code shall not apply to employees with registered company codes of
conduct already in use at the time of registration of the industry
code of conduct."
In
terms of our law, the overriding consideration in interpreting
statutes is the intention of the legislature. The resultant
interpretation must not lead to an absurdity. In Grey v Pearson 1857
10 ALL ER 1216 at 1234 it was held that in construing all written
instruments, the grammatical and ordinary sense of the words is to be
adhered to, unless that would lead to some absurdity.
The
legislature in enacting section 4.1 of S.I. 175/12 which expressly
provides that it was not to be used for employees who already had
registered company codes must be presumed to have applied its mind to
the possible effects of requiring re-registration of company codes
which were already in existence.
The
grammatical construction of section 4.1 of S.I. 175/12 clearly proves
that the legislature intended to establish a blanket approval of all
pre existing codes to avoid an absurd scenario of re-registration of
pre-existing codes it had previously approved. Section 4.1 cannot
therefore be said to be inconsistent with the Act.
Mr
Bumhira's submission, that there should be a re-submission of Codes
for approval, is an absurd and cumbersome process which was not
intended by the legislature.
It
is apparent that what section 101(1)(b) of the Act requires is that
the National Employment Council should consider and approve
Employment Codes before they can be used.
In
this case the NEC had in its office the respondent's approved Code
before the repeal of its S.I. 148/09 and the enactment of S.I. 175/12
in its place. It was therefore entitled to review it and provide in
its section 4.1 of S.I. 175/12 that it approved its continued use by
the respondent. It had already been submitted to it and had been
approved in terms of section 101(1)(b) of the Labour Act. It was
therefore lawful for the NEC to consider the pre-existing copy and
approve it through the inbuilt provision. There was therefore no need
for the re-registration of the respondent's Code.
The
respondent correctly used its Code in disciplining the appellant.
The
appellant was therefore charged and dismissed in terms of the correct
Code of Conduct. Accordingly, the decision of the court a quo cannot
be faulted. The appeal has no merit. It was for these reasons that
the appeal was dismissed with costs.
MAKARAU
JA: I agree
HLATSHWAYO
JA: I agree
J.
Mambara & Partners, Appellant's Legal Practitioners
Coghlan,
Welsh & Guest, Respondent's Legal Practitioners
