Collective Job Action or Labour Strike, Disputes of Interest and Right or Negotiable and Non-Negotiable Disputes

SC09-09 : CARNAUD METAL BOX (PVT) LTD vs BONIFACE MWONZORA AND TWENTY-THREE OTHERS
Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

Section 93 of the Labour Act [Chapter 28:01] provides as follows: Section 93(1): A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or if agreed by the parties, by reference to arbitration. Section 93(3): If ...

Section 93 of the Labour Act [Chapter 28:01] provides as follows:

Section 93(1): A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or if agreed by the parties, by reference to arbitration.

Section 93(3): If the dispute or unfair labour practice is not settled within thirty days after the labour officer began to attempt to settle it under Section 93(1), the labour officer shall issue a certificate of no settlement to the parties to the dispute or unfair labour practice.

Section 104 of the Labour Act [Chapter 28:01] provides as follows:

Section 104(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 interests.

Section 104(2): Subject to subsection (4) no employees, workers' committees, trade union, employer, employers' organization or federation shall resort to collective job action unless:

(a) 14 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.

Section 104(3): Subject to subsection (4), no collective job action may be recommended or engaged in by-

(a) any employees, workers committee, trade union, employer, employers organisation or federation-

(i) if the persons concerned are engaged in an essential service; or

(ii) if the issue in dispute is a dispute of right; or

(iii) if the parties to the dispute have agreed to refer the dispute to arbitration;

Collective job action is not allowed if the parties to the dispute have agreed to refer the dispute to arbitration; or if the issue in dispute is a dispute of right; or if a secret ballot in support of the strike has not been conducted, or if the CBA procedures have not been complied with.

(b) any employees, workers committee or employer, if there is in existence a registered trade union or employers organisation which represents the interests of the employees or employers concerned and that trade union or employers organisation has not approved or authorised the collective job action; or

(c) any trade union, employers organisation or federation unless the trade union, employers organisation or federation is registered; or

(d) any workers committee, if there is in existence a union agreement which provides for or governs the matter in dispute, and such agreement has not been complied with or remedies specified therein have not been exhausted as to the issue in dispute; or

This is the only type of dispute that seems strikeable under the new Act given s 104(3)(b), which effectively prohibits a strike\striking where the issue in dispute is a dispute of right.

A dispute of interest is one over which an employee has no legal claim, for example, a demand for 100% salary increase during collective bargaining.

This is, however, a complicated area as disputes of interest can easily migrate over borders and become disputes of right. Employers should seek advice whenever confronted by such problems.

(e) any workers committee, trade union or employers organisation, except with the agreement of the majority of the employees or employers, as the case may be, voting by secret ballot.

[substituted by Act 17 of 2002 with effect from 7th March, 2003.]

Section 104(4): (4) Nothing in subsection (1), (2) or (3) shall be deemed to prevent collective job action from being resorted to-

(a) in order to avoid any occupational hazard which is reasonably feared to pose an immediate threat to the health or safety of the persons concerned:

Provided that-

(i) the occupational hazard has not been deliberately caused by the persons resorting to the collective job action;

(ii) the collective job action resorted to shall remain proportional in scope and locality to the occupational hazard in question;

(iii) the collective job action shall diminish in proportion as such occupational hazard diminishes;

(b) in defence of an immediate threat to the existence of a workers committee or a registered trade union.

A designated agent is defined as a designated agent of an employment council in terms of section 63 of the Labour Act [Chapter 28:01].

Section 63(3a) provides as follows:

A designated agent of an employment council who meets such qualifications as may be prescribed shall in his or her certification of appointment be authorised by the registrar to redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered and the provisions of Part XXII of the Labour Act [Chapter 28:01] shall apply with the necessary changes to the designated agent as they apply to the Labour Officer.

SC03-12 : Z B FINANCIAL HOLDINGS vs MAUREEN MANYARARA
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA AJA

This is an appeal against that part of the judgment of the Labour Court by which it set aside the decision of the initial hearing by the appellant to dismiss the respondent from employment following a finding of misconduct in that she participated in an unlawful collective job action on 4 May 2004.

The court a quo substituted for a dismissal a penalty of a final written warning and ordered reinstatement, alternatively, payment of damages.

The Labour Court did so after consideration of three factors which it took to be mitigatory. These were that; the participation was for two hours, the duration of the collective job action was short; and there was no evidence of previous convictions. The contention by the appellant is that the court a quo misdirected itself in the exercise of its discretion.

The Court agrees that there was a serious misdirection on the part of the court a quo.

The fact of the respondent's participation for a period of two hours is not a mitigating factor because that was the duration of the unlawful collective job action. The offence she was charged with was of participating in an unlawful job action regardless of its duration. Even assuming that the respondent was a first offender the court a quo had to take into account the fact that the employer considered the misconduct as one that was so serious as to go to the root of the contract of employment.

The court clearly did not apply its mind to the fact that it was dealing with a case of an exercise of discretion by an employer and that it could not interfere with the decision to dismiss without a finding of misdirection on the party of the employer. The reliance on the fact of the respondent being a first offender to set aside the dismissal, in the absence of a finding of misdirection on the part of the employer, was improper.

The unanimous view of the court is that the appeal succeeds.

Accordingly, it is ordered as follows:

1. The appeal is allowed with costs.

2. The judgment of the court a quo, setting aside the dismissal of the respondent and ordering her reinstatement, is hereby set aside and substituted with the following order:

"That the dismissal of the respondent be and is hereby confirmed with costs."

HH94-11 : BEMBA FARM (PVT) LTD vs ZIMBABWE HORTICULTURE AGROINDUSTRIES AND GENERAL AGRICULTURE WORKERS UNION and OTHERS
Ruled By: BHUNU J

The applicant operates a farming enterprise trading under the style of Buckingham Farm, North Road, Marondera. The first and second respondents are trade unions in the agricultural industry whereas the third to fourth respondents are their respective office bearers. The fifth to ninth respondents are its employees and former members of the Workers' Committee.The parties are ...

SC02-13 : SPECISS COLLEGE vs MAXWELL CHIRISERI and EMMANUEAL CHIDODO and ALLEN MUSEVENZI
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

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.

HH139-15 : MANLINE FREIGHT (PTY) LTD vs PETER KANENGONI and OTHERS
Ruled By: MAFUSIRE J

Section 106 of the Zimbabwean Labour Act [Chapter 28:01] (“the Act”) empowers the Minister, either on his own initiative, or on application by any person affected by a collective job action such as a strike, boycott, lock-out, sit-in or sit-out, to issue an order calling upon the organisers to show cause why he may not issue a disposal order. A disposal ...

SC23-09 : ZIMPOST (PRIVATE) LIMITED vs COMMUNICATIONS AND ALLIED WORKERS' UNION
Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

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.”

Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

The plaintiff's pleadings are a mess.

They do not comply with the strict requirements of the High Court rules. The face of the summons does not identify the 13 Others. The declaration does not do so either. In addition, it does not comply with the rules of court. It contains extraneous information and is argumentative in nature. A letter of suspension, three death certificates, a burial order and the Supreme Court judgment, SC66-02, concerning the plaintiff and the second defendant are attached to the declaration. It is in the format of a founding affidavit rather than a declaration.

When the defendants requested for further particulars, the plaintiff responded by applying for default judgment. The default judgment was refused and the plaintiff was directed to file the further particulars.

On receipt of the further particulars, on 11 January 2010, the defendants excepted on 13 January 2010. The plaintiff responded by excepting to the exception. It is unclear from the papers what became of the exception.

The defendants, however, proceeded to file a plea on 14 April 2010.

On 6 May 2010, the plaintiff filed a 23 paged document entitled “plaintiff's opposing affidavit to defendant's plea” and three further attachments. The plaintiff withdrew the notice of opposition in question on 24 May 2010 and proceeded to change what had been the opposing affidavit into a 23 paged replication.

Notwithstanding the state of the plaintiff's pleadings, the matter was referred to trial on 5 November 2010 on the defendants' pre-trial issues. The issues were:

1. Who are the plaintiffs in this matter.

2. Have they been lawfully dismissed.

3. If not, have they suffered any damages, and if so, in what amount and on what cause.

The pleadings are in such shambles because the plaintiff was not represented by a legal practitioner. Rather, he relied on his trade union styled Zimbabwe Federation of Trade Unions.

In order to determine the real issue between the parties, I condoned the state of the plaintiff's pleadings and proceeded with the trial.

At the commencement of trial, the only plaintiff in attendance was Shadreck Moyo. The other unnamed thirteen were in default. The trial proceeded on the basis that only one plaintiff was before the court.

This affected the claim in the summons.

On 16 November 2009, the plaintiff, Shadreck Moyo and 13 others, claimed damages and compensation and outstanding wages and salaries in the sum of US$3,5 million; a further sum of US$3,5 million for outstanding wages and salaries and compensation for loss of earnings for a period of 12 years, interest on these sums at the rate of 30 per centum per annum and costs of suit.

At the trial, the only plaintiff before me reduced the amounts claimed to US$275,375=08 for outstanding salaries and benefits and US$500,000 for general damages.

He set out the history of the matter, and, by consent, referred to exhibit 1, the 25-paged bundle of documents that the defendants intended to produce as an exhibit.

He was an employee of the second defendant.

On 3 and 4 December 1997, together with other employees, he participated in an illegal collective job action. On 5 January 1998, and in terms of section 3(1)(a) of the Labour Relations (General Condition of Employment) (Termination of Employment) Regulations S.I.371 of 1985, he was suspended from employment without pay or benefits pending an application to the Ministry of Labour for his dismissal.

On 6 January 1998, the second defendant, through its Chairman, the first defendant, applied to the Labour Relations Officer for an order terminating the employment of 15 employees amongst whom was the plaintiff.

A hearing was held, and, on 20 July 1998, the Labour Relations Officer ordered the reinstatement of all the 15 employees without loss of pay and benefits. The second defendant appealed to the Senior Labour Relations Officer. On 11 January 1999, the Senior Labour Relations Officer made the following determination:

“From the foregoing facts, the determination of the Labour Relations Officer is set aside in its entirety.

Appellant is granted permission to dismiss the 15 employees with effect from the date of suspension.

Appellant must pay the 15 employees all their terminal benefits within 14 days of receipt of this determination.”

The 15 employees appealed to the Labour Relations Tribunal.

On 25 September 2000, the Labour Relations Tribunal upheld the appeal of one of the 15 but dismissed the appeal of the other 14 - who included the plaintiff.

The 14 appealed to the Supreme Court, which dismissed their appeal in in its entirety on 18 June 2002 in the case of Shadreck Moyo and Thirteen Others v Central African Batteries (Pvt) Ltd SC66-02.

Shadreck Moyo averred that he only received a copy of the judgment on 3 September 2009 and not on any earlier date because his legal practitioner at the time, Mr Mabuye, of Mabuye and Associates, met an untimely death.

He alleged that, as he had not been dismissed from employment, he was entitled to damages in respect of lost earnings of US$275,375=08.

He produced exhibit 2 and 3 to justify his computation.

He averred that, by 30 October 2010, an employee in Grade 5 was in receipt of a salary of US$240=03. He used this salary to calculate what was due to him over the 155 months that he has been on suspension. He used the same salary to calculate his pay leave over the 12 years that he has been on suspension. He also used the same salary to calculate the thirteenth cheque bonus over 12 years. He stated that he was entitled to receive daily allowances at work for sadza, milk, tea and toiletries. He conservatively placed the cost at US$1 a day and multiplied this by the number of days he was supposed to be at work over the 12 year period.

On the general damages, he thumb sucked the figure of US$500,000 but based it on the prejudice that has visited the education of his children. He did not state the number of the children and how they were prejudiced.

Counsel for the defendant applied for absolution from the instance on two broad grounds:

(i) The first was that the plaintiff failed to disclose a cause of action; and

(ii) The second was that even if he did disclose it, he failed to prove the damages he is entitled to receive.

The first ground calls for an interpretation of the order of the Senior Labour Officer.

The plaintiff averred that the second defendant was obliged to write to him informing him that he stood dismissed from the date of suspension, and, thereafter, pay him his terminal benefits within two weeks of the receipt of the order. He contended that the failure to write the letter of dismissal meant that he remained an employee.

Counsel for the defendant contended that he was dismissed by the Senior Labour Officer from the date of suspension.

Section 2(1) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.371 of 1985 read:

“No employer shall summarily or otherwise terminate a contract of employment with an employee unless -

(a) He has obtained the prior written approval of the Minister to do so; or

(b)…,. not relevant.

(c)…,. not relevant.

(d) The contract of employment is terminated in terms of section 3.”

Section 3 of the Labour Relations (General Condition of Employment) (Termination of Employment) Regulations S.I.371 of 1985 reads:

“3(1) Where an employer has good cause to believe that an employee is guilty of -

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

(c) (b) – (i) not relevant

The employer may suspend such employee without pay and other benefits and shall forthwith apply to a labour relations officer for an order or determination terminating the contract of employment.”

Section 2(1) and 3(1)(a) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.371 of 1985 replaced the common law right of an employer to summarily dismiss an employee.

Instead, the authority to dismiss an employee was given to the Minister or his delegate.

The second defendant complied with the requirements of this section, as demonstrated by the letter of 6 January 1998. In that letter, the second defendant applied for an order terminating the plaintiff's employment. The Senior Labour Officer granted an order terminating the plaintiff's employment with effect from the date of his suspension. The date of suspension was 5 January 1998.

It was not necessary for the second defendant to formally write to the plaintiff that it was terminating his employment from the date of suspension.

The contention by the plaintiff, that he remains an employee until he formally receives a letter terminating his employment, does not make sense.

This is because if the second defendant was to write such a letter, it would simply state that he was dismissed from the date of suspension. He would not be entitled to claim earnings from the date of suspension cum dismissal to the date the letter is written.

SC46-15 : NATIONAL RAILWAYS OF ZIMBABWE vs ZIMBABWE RAILWAYS ARTISANS UNION AND OTHERS
Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

This appeal, from the judgment of the Labour Court, raises the issue whether an Arbitrator can, in a compulsory arbitration, dictate the terms of a Collective Bargaining Agreement between the parties.Collective Bargaining Agreements are governed by Part X of the Labour Act [Chapter 28:01] (“the Act”). They are to be ...

Collective Bargaining Agreements are governed by Part X of the Labour Act [Chapter 28:01] (“the Act”). They are to be negotiated by the parties mentioned therein as the following provisions demonstrate:

“PART X

COLLECTIVE BARGAINING AGREEMENTS NEGOTIATED BY TRADE UNIONS AND EMPLOYERS ORGANIZATIONS

74 Scope of Collective Bargaining Agreements

(1) This Part shall apply to collective bargaining agreements negotiated by registered trade unions, employers, and employers' organizations or federations thereof:

Provided that nothing in this Part contained shall prevent an unregistered trade union or employers' organization from negotiating a collective bargaining agreement.

(2) Subject to this Act and the competence and authority of the parties, trade unions and employers or employers organizations may negotiate collective bargaining agreements as to any conditions of employment which are of mutual interest to the parties thereto.

(1) Without derogation from the generality of subsection (2), a collective bargaining agreement may make provision for —

(a) Rates of remuneration and minimum wages for different grades and types of occupations;

(b) Benefits for employees;

(c) Deductions which an employer may make from employees' wages, including deductions for membership fees and union dues, and deductions which an employer may be required or permitted by law or by order of any competent court to make;

(d) Methods of calculating, or factors for adjusting rates of pay, and the dates, times and modes of payment;

(e) All issues pertaining to overtime, piece-work, periods of vacation and vacation pay and constraints thereon;

(f) The demarcation of the appropriate categories and classes of employment and their respective functions;

(g) The conditions of employment for apprentices;

(h) The number of hours of work and the times of work with respect to all or some of the employees;

(i) The requirements of occupational safety;

(j) The maintenance of, and access by the parties to, records of employment and pay;

(k) Procedures for dealing with disputes within an undertaking or industry;

(l) Housing and transport facilities, or, in their absence, an allowance for the same;

(m) Measures to combat workplace violence and handling its aftermath…,.”…,.

The list of subjects set out in subsection (3) are suggestions as to matters that may be included by the parties in a Collective Bargaining Agreement. Thus, the parties may elect to include all or any of the suggested topics in their agreement.

The point being made is that the statute does not confer a right on any of the parties, without agreement of the others, to have included in their Collective Bargaining Agreement, any of the subjects on the list.

This is understandable since a Collective Bargaining Agreement is a contract between the parties to it and only they can set the terms by which they will be bound. It follows that any benefits to be included in the Collective Bargaining Agreement must be agreed by the parties. They cannot be imposed by the Arbitrator, or indeed any court, in the same way that a court cannot write a contract for the parties.

What occurred in this case was totally improper. The Labour Officer, the Arbitrator, and the Labour Court all missed the point.

THE BACKGROUND

The proceedings on record commenced on the 27th June 2007, when the General Secretary of ZARWU (it is not clear whether these are the initials of the 4th respondent (Zimbabwe Amalgamated Railwaymen Union) or 1st respondent (Zimbabwe Railways Artisans Union)) wrote to the Designated Agent of the Railway Employment Council in the following terms:

“Dear Sir

RE: DISPUTE HOUSING ALLOWANCE AND EDUCATIONAL ASSISTANCE

On the full council meeting on 21 June 2007 there was disagreement between Labour and Management on the above issue.

Labour, through ZARWU, are referring the matter to your office for Concilliation (Labour Act Section 63).

We wait to hear from your office.”

Thereafter, all the parties were notified of a hearing to be held on 12 July 2007 and later postponed to 19 July 2007.

On 19 July 2007, the parties appeared before a conciliator. The latter required each of the parties to state his position on the matter and enquired as to whether any of the parties had varied its position on the dispute. The parties had not. He therefore issued a Certificate of No Settlement, and, by agreement with the parties, referred the matter to an arbitrator for compulsory arbitration. The terms of reference were agreed to be whether the respondents were entitled to:

(a) Housing allowance, and, if so, the quantum thereof (the claim was stated at $7,500,000 per month);

(b) Education allowance calculated at Government school rates, whether boarding or day school for up to a maximum of three children or registered dependents;

(c) The effective date of such award.

The Arbitrator appointed to deal with the matter was Mr Chinjeruke.

The point was taken before the Arbitrator, in limine, that the matter was not properly before him since no conciliation had taken place. That point was dismissed on the basis that the parties could, in terms of section 93(1) of the Labour Act [Chapter 28:01], agree, and did in fact agree, to refer the matter to arbitration.

As to the merits, it was contended, before the Arbitrator, that the appellant had not refused to negotiate on the allowances but proposed, rather, that the negotiations be centered on basic pay. Accordingly, the appellant's refusal to accede to a request to negotiate on the allowances did not indicate bad faith on its part. However, in the event that the arbitrator came to the conclusion that the appellant had refused to negotiate, the most he could do was to order the parties to negotiate. He could not impose 'un-agreed' terms and conditions on the parties.

In that submission, the appellant was correct. It was, however, ignored by the Arbitrator.

It was further contended on behalf of the appellant that the dispute, having arisen from the respondents' assertion that they are entitled to the allowances in terms of section 74(3) of the Labour Act, was a dispute of interest as opposed to one of right since that section provides for discretionary collective bargaining negotiations.

The Arbitrator appeared to accept this reasoning. He said:

“…, the dispute, in its current form, is a 'dispute of interest'. Because of 'may'…, in section 74(3), the matters are negotiable.”

He then went on to find:

“However, allowances such as Housing and School Fees, have to exist in one form or the other”, and, awarded, without giving reasons for so doing, school fees and housing allowances totaling 55 per cent of the basic salary of the employees.

The appellant was aggrieved by the award and appealed to the Labour Court.

Before the Labour Court, one of the main grounds of appeal was that the allowances sought and obtained by the respondents were not a right or entitlement but were to be negotiated. In the appellant's words, the Arbitrator had elevated a 'negotiable to an imperative', and, thereby, committed an error of law. A further ground of appeal was that the Arbitrator's award was premised on 'serious misdirections of fact which amount to mis-directions in law'. In particular, it was alleged that the Arbitrator erred in his finding that allowances such, as Housing and School fees 'have to exist in one form or the other'.

The Labour Court dismissed the appeal. Its concern was:

“This award was handed down on the 9th November 2007. Three years down the line the respondents' grievances have not been resolved. On page 6-9 of the record it has been shown that referring the matter back for conciliation will not assist as each party maintained its original position. This will further delay the finalization of this case.”

ISSUES ON APPEAL

The grounds of appeal are far from clear and concise. However, the main issue which clearly arises for determination, and which is dispositive of the appeal, is whether the Arbitrator could properly impose, upon the parties, the terms of a Collective Bargaining Agreement and whether the court a quo was correct in upholding the decision of the Arbitrator to do so.

As already stated above, the matters listed in section 74(3) of the Labour Act [Chapter 28:01] are matters which the parties may, at their discretion, decide to include in their Collective Bargaining Agreement. The appellant's position, at all times, was that it preferred to negotiate on basic salaries and not allowances. In my view, both the Labour Court and the Arbitrator ought to have found that the allowances, not having been negotiated by the parties, and, therefore, not forming part of their Collective Bargaining Agreement, were not a right or entitlement available for appropriation by the respondents. This is a matter for the parties to bargain and reach agreement on. It is not a matter where a court can intervene.

A court can only intervene to enforce any agreement the parties will have concluded.

The Arbitrator could not, therefore, impose terms and conditions in the Collective Bargaining Agreement. His finding, that housing and school fees allowances 'have to exist in one form or the other', was misguided, devoid of any legal basis and irresponsible.

So, too, was the subsequent award of the said allowances in percentages (the percentages amounted to 55 per cent of the employees' salaries) lacking evidential foundation, and, as submitted by the appellant, “plucked out of the air”.

Clearly, the Arbitrator acted outside his powers when he purported to set the terms of the Collective Bargaining Agreement between the parties and the Labour Court erred in law when it upheld the arbitrator's award.

An additional issue arising from the grounds of appeal is whether the Labour Court erred in failing to find that the referral to arbitration by the Labour Officer, before attempting to conciliate the matter, was a nullity.

It was submitted, in support of this ground of appeal, that the matter ought to have been conciliated by the Labour Officer before the referral to arbitration, and that the failure to conciliate rendered the referral to arbitration a nullity.

It seems to me that in terms of the provisions of section 93(1) of the Labour Act [Chapter 28:01], the Labour Officer could properly refer the matter to arbitration by agreement with the parties, and, it is clear that this is how the matter was referred to the Arbitrator. The terms of reference were agreed by the parties. However, in view of the fact that there was no legal right which was being sought to be enforced, the dispute being one of interest only, the Arbitrator's role in those circumstances would merely be a conciliatory one.

Thus, both the Labour Officer and the Arbitrator misconstrued their respective roles in the matter.

I may comment here that while the Labour Act provides no bar to a referral to arbitration by agreement, the Labour Officer ought to have assisted the parties in coming to some agreement. Since the dispute was one of interest, his role in conciliating the matter and assisting the parties to reach agreement, was invaluable. He ought to have attempted to settle the dispute by conciliation.

Section 93(1) of the Labour Act [Chapter 28:01] provides:

“(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.”…,.

The referral to the Arbitrator merely shifted the responsibility to conciliate the matter.

The appellant's position was 'I will pay you the best salary that I can pay in the circumstances but I would rather not commit to pay allowances'.

There is nothing wrong with that approach.

Each undertaking is beset with its own peculiar circumstances. The fact that one employer considers it appropriate to pay allowances puts no obligation on another employer to do the same. Apart from dismissing the claim as being devoid of merit, the arbitrator had no meaningful role to play in this matter save to urge the parties to negotiate further on the issues in dispute. He could not, as he purported to do, create a contract for the parties.

It follows from the above that the Labour Court committed an error of law when it dismissed the appeal against the Arbitrator's award.

It is, therefore, ordered as follows:

1. The appeal is allowed with costs.

2. The order of the Labour Court is set aside and substituted with the following:

'The appeal is allowed with costs.

The Arbitrator's decision is set aside.

HH74-16 : TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS
Ruled By: MAKONI J

The applicants approached this court seeking a provisional order in the following terms:“TERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms:1. The 1st respondent, its members, and all other persons acting through it and on ...

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?

He further contended that whilst the court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act.

On his part, counsel for the applicants submitted the Labour Act does not confer on the Labour Court the power to grant interdicts.

The applicants, sometime in November 2015, approached the second respondent for a show cause order. It has not been determined. Rather, the second respondent came up with a parallel process which led to the stoppage of the collective job action. The fact that the show cause order application has not been determined, for two months, is an indication that the second respondent cannot offer effective alternative remedies.

He further contended that if the court were convinced that the collective job action was terminated instead of being suspended, then the court ought to find in favour of the applicants. The interdictory relief that the applicants seek amounts to a disposal order.

He confirmed that the applicants have filed an application in the Labour Court. They therefore require that the status quo ante be maintained until the main dispute has been disposed of.

He made reference of section 4(1) of the Administrative Justice Act [Chapter 10:28] which provides for relief to persons aggrieved by the actions of an administrative authority.

He contended that section 110 of the Labour Act does not apply to the current situation as no show cause order has been made or rejected. This has rendered this particular domestic remedy ineffective. The applicants can only approach the High Court.

To buttress his argument, he made reference to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 where MATHONSI J found that section 171(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on Labour Court matters which had been ousted by section 89(6) of the Labour Act.

Jurisdiction

Section 89(6) of the Labour Act provides as:

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine an application, appeal, or matter referred to in subsection (1).”

It was settled position in our law that the High Court, or any other court, has no jurisdiction to hear and determine labour disputes which are subject to resolution in terms of the Labour Act: see Tuso v City of Harare 2004 (1) ZLR; and Border Timbers (Pvt) Ltd v Export Processing Zones Labour Board and Others SC46-09.

This was the position until Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 wherein MATHONSI J expressed the view that section 171(1) of the Constitution re-instated the jurisdiction of the High Court over labour matters.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, TSANGA J had occasion to relate to the question whether the Constitution had reinstated the jurisdiction of the High Court in labour matters. She was also referred to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15.

At p4 of the cyclostyled judgment she had this to say:

“As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force that in reality places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court 'jurisdiction over labour matters as conferred by an Act of Parliament'.

The applicable Act of Parliament in labour matters is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

It can be said, that, at least in labour matters, there is express legislative exclusion by an Act of Parliament of the High Court's original jurisdiction that is envisaged by section 171.

In the face of what is tantamount to legislative exclusion of the High Court's original jurisdiction in labour matters, there would have to be a powerful 'need' for upsetting the implied exclusion of the High Court's original jurisdiction in labour matters. It is not the intention of the legislature, in granting the High Court original jurisdiction, to create unwarranted conflict with legislation in force.”

I agree entirely with the sentiments expressed by TSANGA J.

Provisions of the Constitution cannot be read in isolation.

If section 171(1) is read with section 172, it becomes clear that “all matters” in section 171(1) excludes matters over which a specialized court, such as the Labour Court, is established.

The absurdity that will arise is that while the Labour Court is set up with elaborate mechanisms to deal with labour disputes, litigants will by-pass it and approach the High Court.

This would render the establishment of specialised courts nugatory. This would not have been the intention of the drafters of the law.

The next issue for determination is whether the dispute before me is a labour dispute subject to resolution by the Labour Court.

The parties are agreed that the dispute between them, viz the threat to go on a collective job action, a labour dispute, can be dealt with in terms of the Labour Act by the Labour Court.

Section 104(1) of the Labour Act gives the first respondent the right to resort to collective job action to resolve disputes of interest. This is provided that they meet the requirements set out in section 104(2).

Section 106 of the Labour Act provides:

“106 Show cause orders

(1) Whenever a workers committee, trade union, employers organisation or federation of registered trade unions or employers organisations (hereafter in this section called a 'responsible person') threatens, recommends, encourages, incites, organises, engages in any collective action referred to in subsection (1) of section one hundred and nine (hereinafter in this section and section one hundred and seven called an 'unlawful collective 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 action, may issue an order calling upon the responsible person to show cause why a disposal order should not be made in relation thereto: Provided that the Minister may call both parties to appear before him or her for submissions before he or she issues a show cause order if he or she deems it necessary that they appear.

(2) A show cause order -

(a) Shall specify -

(i) The date, time and place at which the responsible person must appear before the Labour Court to show cause why a disposal order should not be made; and

(ii) The order or action desired or proposed;

(b) May direct that pending the issuance of a disposal order, the unlawful collective action concerned be terminated, postponed, or suspended.”

In terms of section 107 of the Labour Act, the show cause order is returnable to the Labour Court which then issues a disposal order after an inquiry.

The point of departure is where the applicants are arguing that they made the application in terms of section 106 of the Labour Act and the second respondent has not determined the matter.

They contend that the second respondent has failed to offer an alternative effective remedy.

They further contend that the respondent has no jurisdiction to issue an interdict of the nature being sought.

That is why they approached this court in terms of section 4 of the Administrative Justice Act.

That the first respondent is threatening to embark on a collective job action is essentially a labour dispute. The Labour Act has elaborate provisions to deal with such disputes.

The next issue would be whether the applicants have exhausted the domestic remedies provided for in the Labour Act for them to then approach this court for relief.

I agree with counsel for the applicants that they cannot proceed in terms of section 110 of the Labour Act as the second respondent has not made a determination. Section 4 of the Administrative Justice Act provides:

“4. Relief against administrative authorities

(1) Subject to this Act and any other law, any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.

(2) Upon an application being made in terms of subsection (1), the High Court may, as may be appropriate -

(a) Confirm or set aside the decision concerned;

(b) Refer the matter back to the administrative authority concerned for consideration or reconsideration;

(c) Direct the administrative authority to take administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(d) Direct the administrative authority to supply reasons for its administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(e) Give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with section three.

(3) Directions given in terms of subsection (2) may include directions as to the manner or procedure which the administrative authority should adopt in arriving at its decision and directions to ensure compliance by the administrative authority with the relevant law or empowering provision.

(4) The High Court may, at any time, vary or revoke any order or direction given in terms of subsection (2).”

It provides relief which can be granted by this court to a person who is aggrieved by the failure of an administrative authority, such as the second respondent in casu (the Minister of Public Service, Labour and Social Welfare), to comply with the provisions of section 3 of the Administrative Justice Act.

Section 3 of the Administrative Justice Act [Chapter 10:28] provides:

“3. Duty of administrative authority

(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests, or legitimate expectations of any person shall -

(a) Act lawfully, reasonably, and in a fair manner; and

(b) Act within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to take action by the person concerned; and

(c) Where it has taken action, supply written reasons therefor within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.”

The applicants, in casu, are not seeking any of the relief as provided for in section 4(2) of the Administrative Justice Act.

This is the course of action that they should have adopted when they realised that the second respondent was refusing or neglecting to determine their show cause. They could have sought for relief as provided for in terms of section 4(2), (c) and (e) of the Administrative Justice Act. The matter could have then proceeded in terms of section 106 of the Labour Act.

In terms of section 106(2)(b) of the Labour Act, the second respondent has power to issue interim measures such as the termination, postponement, and suspension of the collective job action.

The applicants chose to go along with the parallel process adopted by the second respondent and abandon the show cause order application.

Whilst the High Court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act and can provide the same remedies that the applicants seek in this court.

In any event, asking this court to interdict a collective job action would amount to ursurp the powers given to the second respondent in terms of section 104 of the Labour Act.

In paragraph 2 of the provisional order, the applicants seek, in effect, a declarator in respect of the unlawfulness of the strike. That relief is not competent on a certificate of urgency, as it is final in nature.

Accordingly, I will uphold the point in limine.

In the result, I will make the following order;

(1) The fourth respondent.

(2) The application is dismissed.

(3) The applicants to pay the costs of the first respondent and the fourth respondent.

HH183-17 : ZB RETRENCHEES vs ZIMBABWE BROADCASTING HOLDINGS
Ruled By: MAKONI J

Dispute of right is defined in section (2) of the Labour Act [Chapter 28:01] as follows:“means any dispute involving legal rights and obligations occasioned by an actual or alleged unfair labour practice.”What constitutes an unfair labour practice is defined in section 8 of the Labour Act.“An employer…, commits an unfair ...

Back Main menu

Law Portal
Zimbabwe

Collective Job Action or Labour Strike, Disputes of Interest and Right or Negotiable and Non-Negotiable Disputes

SC09-09 : CARNAUD METAL BOX (PVT) LTD vs BONIFACE MWONZORA AND TWENTY-THREE OTHERS
Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

SC03-12 : Z B FINANCIAL HOLDINGS vs MAUREEN MANYARARA
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA AJA

HH94-11 : BEMBA FARM (PVT) LTD vs ZIMBABWE HORTICULTURE AGROINDUSTRIES AND GENERAL AGRICULTURE WORKERS UNION and OTHERS
Ruled By: BHUNU J

SC02-13 : SPECISS COLLEGE vs MAXWELL CHIRISERI and EMMANUEAL CHIDODO and ALLEN MUSEVENZI
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

HH139-15 : MANLINE FREIGHT (PTY) LTD vs PETER KANENGONI and OTHERS
Ruled By: MAFUSIRE J

SC23-09 : ZIMPOST (PRIVATE) LIMITED vs COMMUNICATIONS AND ALLIED WORKERS' UNION
Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

SC46-15 : NATIONAL RAILWAYS OF ZIMBABWE vs ZIMBABWE RAILWAYS ARTISANS UNION AND OTHERS
Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

HH74-16 : TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS
Ruled By: MAKONI J

HH183-17 : ZB RETRENCHEES vs ZIMBABWE BROADCASTING HOLDINGS
Ruled By: MAKONI J

Categories

Law Portal Zimbabwe

Collective Job Action or Labour Strike, Disputes of Interest and Right or Negotiable and Non-Negotiable Disputes

SC09-09 : CARNAUD METAL BOX (PVT) LTD vs BONIFACE MWONZORA AND TWENTY-THREE OTHERS Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

SC03-12 : Z B FINANCIAL HOLDINGS vs MAUREEN MANYARARA Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA AJA

HH94-11 : BEMBA FARM (PVT) LTD vs ZIMBABWE HORTICULTURE AGROINDUSTRIES AND GENERAL AGRICULTURE WORKERS UNION and OTHERS Ruled By: BHUNU J

SC02-13 : SPECISS COLLEGE vs MAXWELL CHIRISERI and EMMANUEAL CHIDODO and ALLEN MUSEVENZI Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

HH139-15 : MANLINE FREIGHT (PTY) LTD vs PETER KANENGONI and OTHERS Ruled By: MAFUSIRE J

SC23-09 : ZIMPOST (PRIVATE) LIMITED vs COMMUNICATIONS AND ALLIED WORKERS' UNION Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

Appealed HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD Ruled By: KUDYA J

SC46-15 : NATIONAL RAILWAYS OF ZIMBABWE vs ZIMBABWE RAILWAYS ARTISANS UNION AND OTHERS Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

HH74-16 : TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS Ruled By: MAKONI J

HH183-17 : ZB RETRENCHEES vs ZIMBABWE BROADCASTING HOLDINGS Ruled By: MAKONI J

Categories

Your Donation.

Law Portal
Zimbabwe

SC09-09 : CARNAUD METAL BOX (PVT) LTD vs BONIFACE MWONZORA AND TWENTY-THREE OTHERS
Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

SC03-12 : Z B FINANCIAL HOLDINGS vs MAUREEN MANYARARA
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA AJA

HH94-11 : BEMBA FARM (PVT) LTD vs ZIMBABWE HORTICULTURE AGROINDUSTRIES AND GENERAL AGRICULTURE WORKERS UNION and OTHERS
Ruled By: BHUNU J

SC02-13 : SPECISS COLLEGE vs MAXWELL CHIRISERI and EMMANUEAL CHIDODO and ALLEN MUSEVENZI
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

HH139-15 : MANLINE FREIGHT (PTY) LTD vs PETER KANENGONI and OTHERS
Ruled By: MAFUSIRE J

SC23-09 : ZIMPOST (PRIVATE) LIMITED vs COMMUNICATIONS AND ALLIED WORKERS' UNION
Ruled By: CHEDA JA, ZIYAMBI JA and MALABA JA

Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

SC46-15 : NATIONAL RAILWAYS OF ZIMBABWE vs ZIMBABWE RAILWAYS ARTISANS UNION AND OTHERS
Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

HH74-16 : TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS
Ruled By: MAKONI J

HH183-17 : ZB RETRENCHEES vs ZIMBABWE BROADCASTING HOLDINGS
Ruled By: MAKONI J