ZIYAMBI JA:
This is an appeal against a judgment of the Labour Court setting aside the
dismissal of the respondents and reinstating them to their former positions in
the employ of the appellant.
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 appellants
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 it 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 (“Chidodo”).
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 [Cap. 28:01]
(“the Act”) sets out in subs (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 Act. 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 subs 2(b) of
s 104. In the circumstances the collective job action was unlawful
by reason of its non-compliance with s104. 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 s 109 (6) of the Act,
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 (hereinafter
referred to as “the Code”) 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 s 104 of the Act, 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.
(iii) The finding that
the respondents had not committed the disciplinary offence of sabotage as
defined in the applicable Code of Conduct.
The offence of sabotage is defined in the Code as
follows.
“SABOTAGE
Any wilful act by an employee to interfere with the
normal operations of the employer's business by damaging any plant, machinery,
equipment, raw materials or products or by interrupting any supplies of power,
fuel, materials or services necessary to the operations”.
Sabotage has been defined as:
“'noun'1. The act of doing deliberate damage to
equipment, transport, machines, etc to prevent an enemy from using them, or to
protest about something…
Verb1: to damage or destroy something deliberately
to prevent an enemy from using it or to protest about something…
Verb2: to prevent something from being
successful or being achieved, especially deliberately'. See Oxford Advanced
Learner's Dictionary 8 Ed.”
It is defined in Wikipedia as:
“a deliberate action aimed at weakening another entity
through subversion, obstruction, disruption, or destruction. In a
workplacesetting, sabotage is the conscious withdrawal of efficiency
generally directed at causing some change in workplace conditions…”.(My
emphasis)
In Black'sLaw
Dictionary 8 Ed, it is defined as:
“1. … the destruction, damage, or knowingly defective
production of materials, premises, or utilities used for national defense or
for war…
2. The wilful and malicious destruction of an employer's
property orinterference with an employer's normal operations especially
during a labour dispute.”(My emphasis)
In its ordinary meaning, therefore, sabotage can mean
the withdrawal of labour with the intention of forcing the employer to comply
with the employees' demands. While such withdrawal of labour when
exercised in the context of a lawful strike is permitted by law, it is
contended by the appellant that the unlawful withdrawal of services by the
respondents in this matter constituted sabotage as defined in the Code.
The court a quo was of the view that while
the actions of the respondents constituted an interruption of supply of
services to the employer such interruption was not meant to be proscribed by
the Code but rather it was the interruption of the services, not of the
employee, but of third parties to the employer, which was intended to be
proscribed.
I am unable to agree with this
view. For to do so would mean that an employee who, during the course of an
unlawful collective job action deliberately refrains from sending a signal of
the arrival of a train to the next station knowing that his failure to send the
signal might cause a derailment of the train and such a derailment does
eventuate, could, in answer to a charge of sabotage, take refuge in the fact
that the withdrawal of his labour does not constitute sabotage.
In my view, the unlawful
withdrawal of their services by the respondents did constitute sabotage.
They interfered with the normal operations of the appellant to the extent that
those services were not available to the appellant, to its loss, during the
period of the strike. Their conduct amounted to an interruption of
services necessary to the operations of the appellant who was dependent on
those services for its functioning. They were, therefore, properly found guilty
of the misconduct of sabotage and dismissed by the appellant.
In the result, the appeal succeeds with costs.
The judgment of the court a
quo is set aside and substituted with the following:
“The appeal is allowed.
The determination of the Disciplinary Committee to dismiss
the respondents is hereby upheld.”
GARWE
JA:
I agree
OMERJEE AJA:
I agree
Gill, Godlonton & Gerrans, appellant's legal
practitioners
Maganga & Company,
respondents' legal practitioners
