The
appellant, as its name suggests, is a college whose core business is delivering
education and training to students of varying ages. The respondents were
employed by the appellant as tutors.
It
is common cause that a withdrawal of labour was called for by the respondents'
union as a means of forcing the employers ...
The
appellant, as its name suggests, is a college whose core business is delivering
education and training to students of varying ages. The respondents were
employed by the appellant as tutors.
It
is common cause that a withdrawal of labour was called for by the respondents'
union as a means of forcing the employers to negotiate salaries. It is also
common cause that the strike was called off but the respondents nevertheless
withdrew their labour on 6 September 2006, which was the beginning of the new
school term. As a result, new students wishing to register for classes
were turned away, tuition fees were not collected and those who did attend
classes received no tuition.
Misconduct
proceedings were conducted in respect of most of the participants in the
collective job action, the allegation being that the collective job action was
unlawful. Thirteen of the participants were given final warnings while the
respondents, who had played a leading role in inciting other employees to
participate in the collective job action, as well as one employee who was
already on a final written warning, were charged with sabotage, and, having been found guilty, were dismissed
from employment.
The
respondents successfully appealed to the Local Joint Committee which set aside
their dismissals on the basis that sabotage was not
proved. The appellant appealed without success to the National Employment
Council and to the Labour Court. Before the latter court it was contended,
on behalf of the appellant that by unlawfully withdrawing their labour the
respondents had interrupted services necessary to the operations of the
employer's business.
The
court a quo
dismissed the appeal on the basis that although by the withdrawal
of their labour the respondents had made it “difficult and perhaps impossible
for the business of teaching to be conducted” their actions did not amount to sabotage within the meaning of the Code. It said:
“The
employee has been given the right to strike. This right must be exercised
in a given manner. When exercised, it necessarily entails the withdrawal
of one's labour. In a lot of cases this withdrawal results in the
operations of a business being interrupted completely. In other words, the
employee would have interrupted his supply of services, so to speak. But is
this the kind of interruption that was meant to be curbed? If it is then
it would mean giving with the right hand and taking away with the left
hand. It appears more appropriate that the interruption of services is of
third parties and not services of the employee himself…,.”
The
learned President then proceeded to give a treatise on the right to strike
which was, bearing in mind that the strike was unlawful as I shall demonstrate
later in this judgment, totally uncalled for.
The
appeal was premised on the following grounds, namely, that the court a quo erred:
(i)
In failing to find that the withdrawal of labour by the respondents amounted to
an unlawful collective job action;
(ii)
In finding, given the circumstances, that the respondents had a right to
withdraw their labour; and
(iii)
In finding that the respondents had not committed the disciplinary offence of
sabotage as defined in the applicable Code of Conduct.
I
will deal separately with each ground of appeal.
(i)
The failure to find that the withdrawal of labour by the respondents amounted
to an unlawful collective job action
Allen
Musevenzi, the third respondent, was the Chairman of the Workers' Committee of
the appellant. The letter notifying him of the intention to institute
disciplinary proceedings against him stated as follows:
“It
is alleged that you engaged in a collective job action by refusing to carry out
your normal duties on Wednesday 6 September 2006 between approximately 0800 and
1000. You engaged in this collective job action:
1.
Without submission of 14 days written notice to Speciss College of your intent
to resort to such action (as is required by section 104(2) of the Labour Act).
2.
After having been informed verbally that such action was illegal.
3.
After having been warned by the Managing Director's Notice following the
previous such action by certain staff on 29 March 2004 that any future such
action would result in Speciss imposing the most severe legal penalties against
those involved.
4.
Without having made any effort to establish whether the collective job action
was still being called by your principals.
Your
engagement in this illegal collective job action constitutes the offence of
Sabotage (Item 9 of the Group IV schedule of offences in the NEC for the
Commercial Sector Employment Code of Conduct) in that your actions interfered
with and interrupted services necessary to the operations of the Campus. Your
involvement in the illegal collective job action is aggravated by the fact that
you were observed to be instigating and leading the action at the
Campus. This offence can result in dismissal for a first offence.”
The
same charges were preferred against Maxwell Chiriseri, the first respondent,
and Emmanuel Chidodo, the second respondent. Emmanuel Chidodo was not a first
offender, having received a penalty of a final written warning the previous year
for being absent from his workstation without authority.
Section
104 of the Labour Act [Chapter 28:01] sets out, in subsections (1) and (2), the
right to strike and the parameters for the lawful exercise of that right. It
provides:
“104
Right to resort to collective job action
(1)
Subject to this Act, all employees, Workers' Committees and Trade Unions shall
have the right to resort to collective job action to resolve disputes of
interest.
(2)
Subject to subsection (4), no employees, workers' committee, trade union,
employer, employers' organisation or federation shall resort to collective job
action unless -
(a) Fourteen days' written notice of intent to resort to
such action, specifying the grounds for the intended action, has been given -
(i) To
the party against whom the action is to be taken; and
(ii)
To the appropriate employment council; and
(iii)
To the appropriate trade union or employers' organisation or federation in the
case of members of a trade union or employers organisation or federation
partaking in a collective job action where the trade union or employers
organisation or federation is not itself resorting to such action; and
(b) An attempt has been made to conciliate the dispute and a
certificate of no settlement has been issued in terms of section ninety-three.”
That
the respondents had the right to withdraw their labour is, therefore, beyond
question. That right must, however, be exercised within the parameters set out
in the Labour Act [Chapter 28:01]. It is not disputed that no notice was
given to the appellant of the impending strike or that no attempt had been made
to conciliate the dispute as required by section 104(2)(b) of the Labour Act [Chapter
28:01]. In the circumstances, the collective job action was unlawful by reason
of its non-compliance with section 104 of the Labour Act [Chapter 28:01].
The
Labour Court made no finding on the lawfulness or otherwise of the collective
job action in which the respondents had participated. It ought to have done so
and the failure so to do was a misdirection on its part.
The
consequences of a collective job action will depend on the lawfulness or
otherwise of it. While there may be no repercussions consequent upon a lawful
strike, the same cannot be said in respect of an unlawful strike. In terms
of section 109(6) of the Labour Act [Chapter 28:01], employees who participate
in an unlawful collective job action “shall be jointly and severally liable, at
the suit of any injured party, for any injury to or death of a person, loss of
or damage to property or other economic loss, including the perishing of goods
caused by employees' absence from work, caused by or arising out of or
occurring during such collective action.”
Further,
an employee who participates in an unlawful collective job action risks
dismissal from his employment and non-payment of wages or salary for the
period of such unlawful collective job action. In this connection, it is
to be noted that engaging in 'any unlawful collective job actions as defined by the Labour Relations
Act as amended from time to time' is a dismissible offence in
terms of the relevant code of conduct, which is the N.E.C.C.S. Employment Code
of Conduct, and that the conduct of the respondents, in engaging in an unlawful
collective job action, warranted dismissal on that ground.
(ii) The finding, given the circumstances,
that the respondents had a right to withdraw their labour.
In
view of the non-compliance with section 104 of the Labour Act [Chapter 28:01],
it is clear that the respondents did not lawfully exercise their right to
withdraw their labour. Put differently, in the purported exercise of their
right to strike they defied the very law which gave them that right. No
right can exist to act unlawfully.
This
ground is also decided in favour of the appellant.
