The Appeals Board considered the fact that the case had been appealed to the NEC out of time. The excuse given by the Bank was that the case had erroneously been sent to another Grievance and Disciplinary Committee. However, the Appeals Board did not feel that a mistake like that was a valid excuse for submitting a late appeal. The Bank has vast experience in dealing with disciplinary issues, and the procedure is very clear in the Code of Conduct. 

The background to this matter is as follows.

The respondent was employed by the appellant as its Chief Executive Officer. In terms of the contract of employment signed by the two parties, the respondent's conduct at the workplace was to be “regulated through the Staff Code of Conduct and the Labour Relations Act [Cap. 28:01] as well as other related Statutory Instruments.” It was further agreed that all disciplinary and appeals procedures were to “be handled in conformity with S.I.371 of 1985 and/or according to the Code of Conduct of the organisation.”

In December 2006, the respondent was suspended from employment without benefits in terms of section 4 of the Labour (National Employment Code of Conduct) Regulations, Statutory Instrument 15 of 2006 (“the National Employment Code of Conduct”) and also in terms of the Labour Relations (Employment Codes of Conduct) Regulations S.I.379 of 1990, and, further, in terms of the Chikomba Rural District Council Code of Conduct. In due course, the respondent appeared before a Disciplinary Committee facing eight (8) charges of misconduct as defined in section 4 of the Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006. He was found guilty of six of the eight charges and was dismissed from employment. Dissatisfied, the respondent lodged an application for review in the Labour Court. Essentially, he sought an order setting aside the decision of the Disciplinary Committee on the basis that the appellant should have conducted the disciplinary proceedings in terms of its Code of Conduct and not the National Employment Code of Conduct.

The Labour Court accepted this submission and consequently made the order that is the subject of this appeal.

The appellant, in its grounds of appeal, has attacked the decision of the Labour Court on several bases. These are:

1. That the court erred at law in concluding that the appellant's use of the procedure provided for in the National Employment Code of Conduct was fatal to the disciplinary proceedings conducted against the respondent.

2. That the court misdirected itself in failing to appreciate that the contract of employment signed by the appellant and the respondent allowed the appellant to use either its Code of Conduct or the National Employment Code of Conduct in conducting disciplinary proceedings against the respondent.

3. That the court erred in disregarding the provisions of the contract of employment signed by the parties in terms of which both parties expressly agreed that the appellant's Code of Conduct, the Labour Relations Act [Chapter 28:01] and other related statutory instruments, were to govern labour disputes between the parties.

4. That the court adopted an over-fastidious approach in interpreting the National Employment Code of Conduct and in the process resolved a labour dispute on the basis of a legal technicality despite the overwhelming evidence which pointed to the respondent's guilt.

The above grounds raise one issue only and that is whether, at law, the appellant, which had a registered Code of Conduct, was entitled to discipline the respondent using the National Employment Code of Conduct.

The starting point is section 12B of the Labour Act [Chapter 28:01]. That section provides, in relevant part, as follows:

“12. 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).”…,.

The Labour (National Employment Code of Conduct) Regulations, 2006 were made in terms of section 101(9) of the Labour Act [Chapter 28:01]. Those Regulations also provide, in section 5, as follows:

“5. Termination of contract of employment

No employer shall terminate a contract of employment with an employee unless -

(a) The termination is done in terms of an employment code which is registered in terms of section 101(1) of the Act; or

(b) In the absence of the registered code of conduct mentioned in (a), the termination in terms of the National Employment Code of Conduct provided for under these regulations; or

(c) …,.

(d) …,.” …,.

Section 101 of the Labour Act [Chapter 28:01] provides that a registered employment code shall be binding in respect of the industry, undertaking or workplace to which it relates.

It is the appellant's contention before this court, as it was in the court a quo, that the appellant was entitled to use either the Labour (National Employment Code of Conduct) Regulations, 2006 made under the Labour Act [Chapter 28:01], or its Code of Conduct, or both, as this was specifically agreed upon in the contract of employment signed by both parties.

There can be no doubt, regard being had to the provisions in the Labour Act [Chapter 28:01] and the Labour (National Employment Code of Conduct) Regulations, 2006, to which reference has been made, that the submission by the appellant that it was entitled to use either its employment code, or the Labour (National Employment Code of Conduct) Regulations, 2006, or both, is not tenable. Both the Labour Act [Chapter 28:01] and the Labour (National Employment Code of Conduct) Regulations, 2006 are clear that the National Employment Code of Conduct contained in the Labour (National Employment Code of Conduct) Regulations, 2006 can only be invoked where there is no registered Code of Conduct. Since it is common cause that the appellant does have a registered Code of Conduct, the termination of a contract of employment of any of its employees had to be in terms of its Code of Conduct and not the National Employment Code of Conduct. 

The appellant therefore erred in terminating the respondent's employment in terms of the National Employment Code of Conduct….,.

I am satisfied that the court a quo was correct in coming to the conclusion that the suspension and dismissal of the respondent by the appellant was null and void. The appeal must therefore fail.

The appeal is accordingly dismissed with costs.

This is an appeal from a judgment of the Labour Court upholding a decision of an arbitrator setting aside the dismissal of the appellant's employees who had been found guilty of an act or conduct inconsistent with the fulfilment of express or implied conditions of contracts of employment in that they had taken part in an unlawful collective job action.

The appellant's employees were members of the respondent. They engaged in an unlawful collective job action from 4 to 23 October 2006. It is common cause that at the time the employees engaged in the collective job action, on 4 October 2006, they had not given the fourteen days written notice of their intent to resort to such action on that day. They had not satisfied the other matters required under section 104(2) of the Labour Relations Act [Chapter 28:01] (“the Act”).

After the unlawful collective job action ended, the appellant commenced disciplinary proceedings against each employee who had taken part in the collective job action.

On 8 December 2006, the employees were individually charged with conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment in that he had taken part in the unlawful collective job action. The allegation was that the employees had contravened section 12B(2)(b)(1) of the Labour Relations Act [Chapter 28:01].

The disciplinary hearings were conducted in terms of section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003 (“the Regulations”).

The employees were found guilty of the misconduct charge and dismissed from employment.

The respondent took up the case of the dismissal of the employees with a Labour Officer on the ground that the dismissal constituted an unfair labour practice.

The contention was that the appellant should not have charged the employees individually with conduct they committed collectively as a group. The argument was that disciplinary proceedings ought to have been commenced against the employees as a group on the ground that they took part in an unlawful collective job action in terms of the provisions of Part XIII of the Labour Relations Act [Chapter 28:01].

The appellant accepted that the employees had taken part in an unlawful collective job action. It denied the accusation that, in instituting disciplinary proceedings against each employee on the charge that he had committed an act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of employment in that he had taken part in an unlawful collective job action, it committed an unfair labour practice.

The argument was that there was no provision in Part XIII of the Labour Relations Act [Chapter 28:01] to the effect that an employer who wishes to take disciplinary action against an employee for having taken part in an unlawful collective job action can only do so in disciplinary proceedings commenced against the employees who took part in such action as a group.

The Labour Officer failed to conciliate the dispute and referred the case for arbitration in terms of section 93(5) of the Labour Relations Act [Chapter 28:01].

The arbitrator heard the case and determined that the appellant ought to have proceeded in terms of sections 106 and 107 of the Labour Relations Act and charged the employees as a group with having taken part in an unlawful collective job action. The dismissal of the employees was adjudged an unfair labour practice. It was set aside and an order of reinstatement or payment of damages in lieu thereof made.

On appeal to the Labour Court, the decision of the arbitrator was upheld hence the appeal to this Court.

The question that falls for determination is whether there is a provision in Part XIII of the Labour Relations Act [Chapter 28:01] to the effect that an employer who wishes to take disciplinary action against an employee who took part in an unlawful collective job action must institute disciplinary proceedings against all the employees involved in such action and charge them with having taken part in an unlawful collective job action.

The contention that the appellant ought to have charged the employees, as a group, with having taken part in an unlawful collective job action and proceeded in terms of the provisions of Part XIII of the Labour Relations Act was based on the interpretation of section 8 of Category 4 of the appellant's employment Code (“the Code”).

A list of what is considered to be serious acts of misconduct is given under Category 4 of the Code. In section 8 the following is stated:

“8. Instigating and/or taking part in an unlawful job action – to be handled in terms of Labour Relations Act [Cap. 28:01].”

There is, of course, no specific reference to Part XIII of the Labour Relations Act in section 8 of Category 4 of the Code.

Even if the appellant had decided to charge the employees with having taken part in an unlawful collective job action there would have been nothing in the provisions of section 8 compelling it to conduct the disciplinary proceedings in terms of the provisions of Part XIII of the Labour Relations Act.

Part XIII of the Labour Relations Act is headed “Collective Job Action”. It contains sections 102 to 112, the provisions of which deal with matters relating to or arising from a collective job action.

The sections said to contain the provisions which the appellant was found to have unlawfully failed to observe are sections 104, 106 and 107.

Section 104(1) gives all employees, workers committees, and trade unions the right to resort to collective job action to resolve disputes of interest. The right is given subject to specific conditions of its exercise prescribed under subsection (2).

A collective job action resorted to without the mandatory requirements for a lawful exercise of the right prescribed under sub-section (2) of section 104 having been strictly satisfied is an unlawful collective job action.

Specific procedures and remedies for the protection of the rights for the parties affected by the unlawful collective job action are provided under sections 106 and 107.

Section 106 provides that when a workers' committee or trade union, for example, “threatens, recommends, encourages, incites, organizes or engages” in an unlawful collective job action, the Minister, acting on his own initiative or upon the application of any person affected or likely to be affected by the unlawful collective job action, may issue an order calling upon the workers' committee or trade union concerned (“the responsible person”) to appear before the Labour Court to show cause why a Disposal Order should not be made in relation to the unlawful collective job action.

The Show Cause Order must specify the date, time and place at which the responsible person must appear before the Labour Court. The order may direct that pending the issuance of the Disposal Order, the unlawful collective job action concerned be terminated, postponed, or suspended.

Section 107 provides that on the return day, the Labour Court must inquire into the matter, and may, after the inquiry, issue a Disposal Order directing that the unlawful collective job action be terminated, postponed, or suspended….,.

Section 107(3) provides that the Disposal Order may provide for the employer, in his discretion, to dismiss, summarily, specified employees or categories of employees engaged in the unlawful collective job action or provide for the dismissal of specified employees or categories of employees engaged in the unlawful collective job action.

The inquiry the Labour Court is required to carry out before issuing a Disposal Order, as well as the right it may give to the employer to dismiss employees found to be threatening or engaging in an unlawful collective job action, implies that the Show Cause Order may take the place of a charge of misconduct in disciplinary proceedings and the inquiry the hearing thereof.

The disciplinary action which the Labour Court may order or may authorize the employer to take against the employees is not the primary object of the provisions of sections 106 and 107 of the Labour Relations Act. The primary purpose of the provisions of sections 106 and 107 is to provide procedures and remedies for the disposal of an unlawful collective job action.

The right given to an employer, under section 107(3) of the Labour Relations Act, to dismiss specified employees or categories of employees who threaten or engage in an unlawful collective job action, is dependent upon the discretionary remedies. It is up to the Labour Court to decide whether to provide, under the Disposal Order, for the dismissal of specified employees or categories of employees. It is also up to the Labour Court to decide whether to give the employer, under the Disposal Order, the right to dismiss specified employees or categories of employees who threaten or engage in an unlawful collective job action.

The right to dismiss is dependent upon the exercise of discretion by the Labour Court.

Without the initiation of the procedure leading to the issuance of the Disposal Order, and the exercise of discretion by the Labour Court in his favour, an employer would have no right to dismiss employees who threaten or engage in an unlawful collective job action in terms of any of the provisions of Part XIII of the Labour Relations Act [Chapter 28:01].

The procedure and remedies under sections 106 and 107 of the Labour Relations Act, are, in my view, applicable to the disposal of an unlawful collective job action being threatened or engaged in at the time the Show Cause Order is made.

There is nothing in the language of the relevant provisions of the Labour Relations Act to show that the intention of the legislature is that the procedure and remedies prescribed thereunder be applied to an unlawful collective job action which has ended on its own without a Disposal Order having been issued in respect of it.

One can hardly think of such action which ceased on its own being made a subject of a Show Cause Order or Disposal Order directing that it be terminated, postponed, or suspended.

The unlawful collective job action engaged in by the appellant's employees ended on 23 October 2006 - without a Show Cause Order having been issued in terms of section 106 of the Labour Relations Act.

The disciplinary proceedings against the employees commenced on 8 December.

The provisions of sections 106 and 107 of the Labour Relations Act were clearly not applicable to the determination of the appellant's right to dismiss the employees concerned.

Where then did the appellant derive the right to dismiss the employees?

The appellant did not charge the employees with having taken part in the unlawful collective job action. It charged each employee with an act or conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment in that he had taken part in an unlawful collective job action.

The charge was in terms of section 12(B)(2)(b)(i) of the Labour Relations Act [Chapter 28:01] as read with section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003 which recognize the common law right of an employer to charge an employee with such conduct.

Section 12B of the Labour Relations Act provides that:

“(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) If, in the absence of an employment code, the employer fails to show that when dismissing the employee he had good cause to believe that the employee was guilty of –

(i) Any act, conduct, or omission inconsistent with the fulfilment of the express or implied conditions of his contract;

(ii)…,.”

Subsection (3) of section 12B of the Labour Relations Act [Chapter 28:01] makes provision for cases of constructive dismissal.

Section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003 provides that:

“(2) For the avoidance of doubt, it is declared that no employer shall summarily or otherwise terminate a contract of employment with an employee unless –

(a) The termination is in terms of an employment code which is registered in terms of section 101 of the Act; or

(b)…,.; or

(c)…,; or

(d) The employee is dismissed on any of the grounds specified in para (b) of section 12B of the Act.”

The employment Code did not have a section prohibiting, as an act of misconduct, an act or conduct inconsistent with the fulfilment of the express or implied conditions of the employee's contract of employment.

For an employer to have good cause to believe that an employee is guilty of the act or conduct specified in section 12B(2)(b)(i) of the Labour Relations Act [Chapter 28:01] he has to charge the employee with having committed that act or conduct, give him an opportunity to answer the charge, hold a disciplinary hearing, and make a finding of facts on which he believes the employee is guilty as charged.

The contention advanced by counsel for the respondent was not that participating in an unlawful collective job action was wrongly found to be an act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of each employee charged with that act of misconduct.

I agree with counsel for the appellant, that, taking part in an unlawful collective job action could not be a valid defence to the charge preferred against each of the employees.

The act of misconduct alleged against each employee in the charge was proved following a full hearing of evidence. At the time the employer dismissed each employee it had good cause to believe that he was guilty of an act or conduct inconsistent with the fulfilment of the express or implied conditions of his contract of employment.

The appellant had the right, under section 12(B)(2)(b)(i) of the Labour Relations Act [Chapter 28:01], as read with section 2 of the of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003, to dismiss the employees.

Counsel for the appellant relied on the case of Net-One Cellular (Pvt) Ltd v (1) Communications and Allied Services Workers Union of Zimbabwe (2) Fifty-Six Net-One, Employees S-89-05, SC89-05.

Net-One, like the appellant, is a successor company to the Posts and Telecommunications Corporation. It was using the same employment Code as the appellant at the time its employees embarked on an unlawful collective job action. The employees in the Net-One case were charged, individually, with having been absent from work for a period of five or more working days without leave or reasonable cause. The employment Code had section 2 of Category 4 which made it an offence for an employee to be absent from work for a period of five or more working days without reasonable cause. In charging the employees, Net-One cited section 12B(2)(b)(v) of the Labour Relations Act. A full disciplinary hearing was conducted, at the end of which each employee was found guilty as charged and dismissed from employment.

It was contended, on appeal, that, in charging the employees under section 12B(2)(b)(v) of the Labour Relations Act, and not section 2 of the Code, Net-One had committed an unfair labour practice.

At p8 of the cyclostyled judgment, CHIDYAUSIKU CJ said that participating in an illegal collective job action could not have been a defence to the charge faced by the employees. He went on to say the following:

“The appellant charged the employees, individually, with absence from work for five consecutive days without reasonable excuse or cause.

I pause to point out that the employees were not charged with taking part in or inciting an unlawful collective job action, a charge that falls squarely under clause 8 of the Code. The employees were charged with absence from work for more than five consecutive days an offence under clause 2 of the Code and section 12B of the Act.

Disciplinary hearings were conducted in respect of each individual employee.

At the conclusion of the disciplinary hearing each of the fifty-six employees was found guilty and dismissed. It was not in dispute that due process was followed in respect of each of the employees. In this regard, the appellant, however, purported to act in terms of section 12B of the Act as read with Statutory Instrument 130/2003.”

The learned Chief Justice held that in citing section 12B(2)(b)(v) of the Labour Relations Act instead of clause 2 of the Code in charging the employees, Net-One was not guilty of unfair labour practice as due process was nonetheless followed in the dismissal of the employees.

The unlawful collective job action in which the employees in Net-One Cellular (Pvt) Ltd v (1) Communications and Allied Services Workers Union of Zimbabwe (2) Fifty-Six Net-One, Employees S-89-05, SC89-05 had taken part had ended without a Show Cause Order having been made in terms of section 106 of the Labour Relations Act at the time disciplinary proceedings were commenced against individual employees.

The case supports the contention that the provisions of Part XIII of the Labour Relations Act [Chapter 28:01] do not, in the circumstances, preclude an employer wishing to take disciplinary action against employees who took part in an unlawful collective job action from charging them individually with acts of misconduct connected with or arising from the collective job action.

In this case, the offence of an act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of employment could be established in respect of each employee by proving that he took part in an unlawful collective job action.

There was no similar offence under the employment Code.

As the unlawful collective job action had ended at the time disciplinary proceedings were commenced, the appellant could not have acted in terms of any of the provisions of Part XIII of the Labour Relations Act.

The appellant derived the right to dismiss the employees from the disciplinary proceedings it conducted in terms of section 12B(2)(b)(i) of the Labour Relations Act [Chapter 28:01] as read with section 2 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.130 of 2003.

The appeal succeeds with costs.

The judgment of the court a quo is set aside and substituted with the following order -

“The appeal against the decision of the arbitrator succeeds with costs. The decision is set aside.”

What the applicant seeks from this court is the court grants him an order for reinstatement in his former position. To that end he has invoked the the audi alteram partem principle to the effect that he was not heard before the respondent made a decision dismissing him from his employment.

It is trite that the audi alteram partem rule is a ground for review.

The question that falls for determination is whether or not the applicant's denial of legal representation at a disciplinary hearing is an infringement of the principles of natural justice.

In order to expediently resolve labour disputes, the Legislature enacted the Labour Relations Act [Chapter 28:01], which, in turn, created the provision for various Codes of Conduct currently in operation in both Industry and Commerce. The objective of these Codes is to make the proceedings as simple, informal, and inexpensive, as possible at a preliminary stage. It is for that reason that a person facing disciplinary action has a choice of either being represented by either a Union official, a member of the Workers' Committee, or by a colleague.

In Chatira v Zimbabwe Electricity Supply Authority (ZESA) SC83-01, the court emphasized the need for procedural fairness in dealing with disciplinary hearings. EBRAHIM JA..., stated -

“..., the requirement of a fair hearing does not mean that employers must handle disciplinary proceedings to the rigorous standards of a court of law. The rules of natural justice require no more than that a domestic tribunal acts according to the common precepts of fairness.”

It was also stated in that case that in a hearing of misconduct, it is not necessary that viva voce evidence be led, but, however, the employee concerned must be shown any statements, or documentary evidence that is being produced before the Disciplinary Committee, but cannot insist that the person who made the statement be called for cross-examination. This, in my view, goes to demonstrate the extent of the informal nature, and simplicity, of the proceedings at that stage. In fact, COLMAN J in Heatherdale Farms v Deputy Minister of Agriculture 1980 (3) SA 486 went further and stated that the employee need not be given an oral hearing, or allowed representation by an attorney, or counsel, or an even an opportunity to cross-examine, and is not entitled to the discovery of documents. The same principle was adopted in the following cases – Minerals Marketing Corporation of Zimbabwe v Mazvimabvi 1995 (2) ZLR 353 (S); Zimbabwe Granite v Workers' Committee Chairman SC99-96; and Nhari v Public Service Commission 1999 (1) ZLR 513 (S) which were referred to by the respondent's counsel, for which the court is grateful.

From the authorities cited, I hold the view that the applicant's denial of legal representation at the proposed Disciplinary Committee hearing, as required by the second respondent's Code of Conduct, does not offend against the principles of natural justice.