Category: 2018 Case Law Review

” This line of argument is defective and unsustainable at law, because the Urban Councils Act is subservient to the Labour Act. In terms of s 2A of the Labour Act, the Legislator has decreed it to prevail over any other enactment inconsistent with it. What this means is that whatever the provisions of the Urban Councils Act might be, they cannot exclude the application of the Labour Act to any employee. It is only the Constitution and the President by statutory instrument that can override the application of the Act over any employee.”

Introduction

Prior to 2005, the termination of employment of senior council officials could not be done in terms of the Labour Act. The Urban Councils Act excluded the jurisdiction of the labour act in such matters. This important change in our law is illustrated in City of Gweru v Richard Masinire. In my view, the most crucial illustration, in this case, is the fact that the labour Act now prevails in all instances were any act is inconsistent with it.

Facts

The facts which led to the current dispute can be summarised as follows:

• The respondent was employed as the chamber secretary (Town Clerk) for the town council.
• He was a senior official of the council in terms of the Urban Councils Act.
• The council dismissed the employee in terms of the National Employment Code of Conduct, SI 15 of 2006.
• The employee was aggrieved by the decision as he felt that the Urban Councils Act should have been used to facilitate his dismissal from employment.
• The Labour Court upheld the argument and nullified the proceedings that had been carried out in terms of the National Code.
• It was this Labour Court judgement that the council was aggrieved with thus founding an appeal at the Supreme Court in terms of the relevant rules.

Reasoning

The court noted that the Urban Councils Act did not provide for a procedure that had to be followed in order to dismiss an employee such as a Town Clerk. It only provided for a procedure where the Town Clerk in the person initiating disciplinary action. It thus was absurd, in the court’s opinion, for the town clerk to initiate his own disciplinary proceedings.  This undesirable situation thus left a void which could only be filled by the national code.

The Supreme Court further noted that the Labour Act, in terms of its section 3, clearly indicated that it applied to all employee’s excerpt those that are specifically excluded from it. Those excluded include employees whose conditions are governed by the constitution, members of the public service, and members of the disciplined forces. The importance of this section is it did not exclude the Town Clerk from the ambit of the Labour Act. This thus meant that the town clerk could be dismissed in terms of the act and within the confines of the National Employment Code.

With regards to section 3 of the Labour Act, the court thus remarked as follows:

“The section is couched in clear and unambiguous peremptory terms, such that the problem of interpretation does not arise at all. All that the lawgiver is saying is that the Labour Act applies to all employees except those it expressly excludes from its domain. In other words, the Labour Act applies to all employees except those whom the legislator has expressly excluded from its application.”

In addition, the court found that section 12B of the Labour Act provided that an employee could be dismissed in terms of the national code where an establishment does not have its own code. The court concluded that since the Urban Councils Act could not be used in the current case, for reasons alluded to earlier in this article, the parties could not be left without a remedy. The National Code thus became appropriate. The court thus noted:

“Considering that it is undesirable for parties to a dispute to be left without an appropriate mechanism of resolving their labour disputes, like professor Madhuku and CH Mucheche, I consider that s 12B (2) (b) should be given a broad purposeful interpretation to include circumstances where an existing internal code of conduct or dispute resolution mechanism cannot for justifiable reasons apply to a particular case. It, therefore, appears to me that the legislator intended the model code of conduct to be a fall-back labour dispute resolution mechanism where it is impossible or inappropriate for a good reason to apply any other dispute resolution mode. To that extent, it is a universal disciplinary code of conduct fitting all circumstances according to the exigencies of each case within the confines of the Labour Act.”

Judgment

The judgement of the labour court was dismissed, and the appeal allowed to succeed.

Introduction

The case dealt with the question of whether a party to a labour dispute can be represented by a labour consultant during arbitration proceedings. This case is important in so far as it shows that a representation in Labour Court Proceedings is more restricted as compared to Arbitration proceedings.

Not related to this current matter is it important to note that the legislature has enacted Statutory Instrument 8 of 2018 which now explicitly excludes parties from being represented by labour consultants in the Labour Court.

Facts

The facts which led to the current dispute can be summarised as follows:

• A dispute between the employer and the employee was referred for arbitration after conciliation had failed.
• At arbitration, the employee was represented by a labour consultant.
• The employer argued that the employee could not make use of a labour consultant in such proceedings.
• The arbitrator and subsequently the Labour Court upheld the argument that the labour consultant could represent a party in arbitration proceedings.
• Aggrieved by the Labour Courts decision, the employer appealed to the Supreme Court.

Reasoning

The court’s finding was clear cut leaving no room for misunderstanding.

As a starting point, the court made an important observation that the Labour Act provisions which the appellant was relying on did not affect the position in the Arbitration Act.

The appellant argued that in terms of S92 of the Labour Act only a Legal Practitioner or an official of an employer’s or an employee organisation can represent a party to a labour dispute in the Labour Court. It attempted to reconcile this section with section 98(9) which provides that an arbitrator shall have the same powers as the Labour Court. The argument was meant to show that because an arbitrator has the same powers as the Labour Court it cannot be possible for an arbitrator to entertain parties represented by labour consultants. The arbitrator was thus bound to follow provisions of labour act and ignore what the arbitration act says, the argument continued.  The supreme court did not agree.

The accepted legal position that was supported by the Supreme Court is one in which a labour consultant can represent a party in arbitration proceedings. Article 24 of the Arbitration Act is clear on who can represent a party during such arbitration and in that regard, this can be any person of a party’s choice. The words “any person of their choice” were deemed to include labour consultants as opposed to excluding them. the court thus remarked that:

“The word ‘person’ in the provision cited above does not come with any qualification except that such a person should be of the relevant party’s choice. This circumstance makes the ambit of Article 24(4) wider than that prescribed in s 92 of the Act. The person chosen by a party can, therefore, be anyone, even a legal practitioner or an official or employee of a registered trade union or employer’s organization, as envisaged in s 92 of the Act.”

Judgment

The appeal was dismissed for lack of merit.

“It is to be noted from the above, that only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss (5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee.”

Keywords

LC: Labour Court

Introduction

Drum City (Private) Limited v Brenda Garudzo is a matter that makes a case for the need to join employees in confirmation proceedings under section 93 of the Labour Act as amended in 2015. It outlines the procedural and substantive challenges that can be faced if an employee is not joined to such confirmation proceedings. The case also makes an important finding that a LC does not have jurisdiction to entertain confirmation proceedings when an employee is a losing party when a draft ruling is produced by a labour officer.

Facts

The following facts culminated in the matter under consideration:

• An employee was dismissed for misconduct around April 2015.
• Aggrieved by the decision to dismiss her the employee filed a complaint in terms of section 93 of the Act. The labour officer decided the matter in favour of the employee leading to confirmation proceedings in terms of the 2015 amendments.
• The employee was not cited as a party to the proceedings at the LC.
• The LC confirmed the ruling even though the labour officer who made the ruling was not present.
• The employer then appealed to the Supreme Court and again the labour officer did not attend the proceedings. The employee was again not cited as a respondent.
• The supreme court noted that without joining the employee whose interests are subject of the dispute, the LC had made a fatal error in the conduct of the proceedings.

Reasons for the judgement

The court noted that there is a need to join an employee who is subject to confirmation proceedings each time the proceedings are before the LC. This will allow such an employee to respond to all the allegations that would be raised.

Joining the employee will prevent a situation where an employee suffers prejudice because the labour officer who is not an interested party a matter decides not to be part of the proceedings as noted in this case. The employee affected by the ruling can apply to be joined in the proceedings. The LC can also out of its own accord join an employee as a party to the proceedings.

The court noted that when a draft ruling has the effect of making an employee the losing party such a ruling cannot be brought before the LC for confirmation. It interpreted the words “…or any other person” in section 93(5a) of the Act as not referring to the employee who brought a matter before the labour officer. The LC thus does not enjoy jurisdiction to entertain such confirmation proceedings.

Determination

The court decisively remarked:

“When all is said and done and in view of the foregoing, it is my finding that there was a fatal non-joinder of the employee, Ms Khan, to the proceedings a quo. Such proceedings can therefore not be allowed to stand.”

The matter was remitted back to the LC for consideration of the merits of the matter.

Own comment

This case is a must-read. It provides an important insight into some of the implications that came with the 2015 amendments to the Labour Act. It is amongst a plethora of cases that indicate that some of the provisions in the 2015 amendments were not properly thought through. The fact that LC has no jurisdiction to entertain confirmation proceedings were a ruling is not in favour of the employee is an important and far-reaching finding. This matter should not be ignored.