2020 Case Law Review - Page 2 of 2

ISOQUANT INVESTMENTS PRIVATE LIMITED T/A ZIMOCO v MEMORY DARIKWA (CCZ 6/20)

“The analysis shows that there is a difference in the legal treatment of a party who has already obtained a final decision on a claim and one who has obtained “a draft ruling” in terms of s 93(5)(c) of the Act. The two parties are not similarly situated. The difference in the remedy available to them is justified by the nature and effect of the procedure adopted for the resolution of the dispute of right or unfair labour practice involving a dispute of right.”

Category: Conciliation process, powers of designated agents for the NECs.

Introduction

Act 5 of 2015 brought about important changes in our labour laws. These changes have to some extent resulted in confusion and misinterpretations. In this case, the CCZ took the opportunity to clarify the procedures that can be undertaken by a designated agent seized with an unfair labour practice matter. This case is also important in illustrating the importance of a draft ruling as well as the process a Labour officer or a designated agent should follow in order to come up with the draft ruling. It is important to note that the main question before the court was in connection with the referral of a constitutional matter from a lower court. The most important lesson from this judgement is that a lower court can only refer to the CCZ a matter that is within its jurisdiction.

Facts

Between 21 July 2015 and 14 August, 2015 ZIMOCO terminated on notice contracts for17 of its employees. The employees demanded minimum retrenchment packages as provided under section 12C of Act 5 of 2015. The matter was brought before a designated agent for the NEC: Motoring Industry. Conciliation was done and the designated agent proceeded to produce a determination. In the determination, she concluded that ZIMOCO had to pay the minimum retrenchment package as per the requirements of section 12C mentioned above.

The designated agent brought the matter before the LC to have her draft ruling confirmed as per the requirements of the LA as amended in 2015. The applicant company challenged the constitutionality of the confirmation proceedings on the basis that the whole process violated its constitutional right to equal protection of the law and administrative justice among others. For these reasons ZIMOCO requested that the matter be brought before the CCZ for a determination of the constitutional questions.

The Courts Reasoning

Referral of constitutional issues

The CCZ noted that the only question that was before it was whether the matter had been correctly presented to it for adjudication.

The court pointed out that for a subordinate court to refer to it a constitutional question the matter so referred must be in connection with proceedings that are validly before that subordinate court. In other words, the matter must be validly before the Labour Court for it to then be able to refer a constitutional question the CCZ. This further means that the matter must be before the subordinate court through “a method prescribed by the law”.^[1]

The labour court as a creature of statute

The CCZ highlighted that the LC is a creature of statute. This meant that it can only do that which it is permitted to do by the enabling legislation, the Labour Act. Being a creature of the statute the labour court was bound to exercise jurisdiction over a matter falling within its competence, provided the correct procedure had been followed.^[2] Part of this procedure is compulsory conciliation of a dispute brought before the labour officer.

In the judgment, the CCZ in illustrating the importance of complying with the prescribed procedure stated that:

“This means that a matter that is not a product of compliance with the procedural and substantive requirements of these provisions would not fall within the class of matters over which the Labour Court would have jurisdiction in terms of s 93(5a) of the Act. It would not be a matter which would be the subject of the procedure for bringing such matters to the court a quo, as prescribed under s 93(5a) of the Act. Bringing such a matter to the court a quo, under the guise of invoking the procedure prescribed in the subsection, would not validly institute proceedings in that court in terms of s 93(5a) of the Act. The court a quo would not have a valid matter over which to exercise jurisdiction.”^{^[3]}

Conciliation of disputes

The CCZ made a finding that the conciliation of disputes is the compulsory method of resolving all disputes and unfair labour practises referred to a labour officer.^[4] It explained the importance of conciliation as a method of resolving labour disputes by agreement. It also explained the functions of a conciliator as per the labour act. One should go through pages 11-19 of the judgment to fully appreciate what should happen in the conciliation process.

Importance of a certificate of no settlement

When conciliation fails or at the expiry of the requisite time for the conciliation a labour officer is compelled to issue a certificate of no settlement. The court remarked that a certificate of settlement should be issued after parties, with the assistance of the labour, have gone through a genuine process of conciliation.^[5] The court noted that conciliation does not require that parties submit a statement of claims and responses when it remarked as follows:

“It would not be compliance with the requirements of a compulsory process of conciliation, provided for under s 93(1) of the Act as a pre-condition for the issuance of a certificate of no settlement, to call upon the parties to submit statements of claims and responses followed by submission of heads of argument before a certificate of no settlement is issued.”

Once a certificate of no settlement has been issued, the court remarked, the next stages in dispute resolution would kick in. In the case of a dispute of right, the labour officer will proceed to produce a draft ruling which has to be confirmed by the court. In the case of a dispute of interest, the matter will be referred for arbitration.

Draft ruling

Once conciliation fails, the parties are no longer responsible for the settlement of the dispute as the labour officer is now duty-bound to come up with a draft ruling on the merits of the matter as per the requirements of the LA. This applies to all disputes of right.

The CCZ pointed out that a draft ruling is not enforceable. It cannot be appealed or reviewed against. It is made pending the final court outcome.^[6] It also confirmed the position found in Drum City v Brenda Garudzo SC57/18 which case is an authority to the fact that an employee must be joined in confirmation proceedings before the LC.

Drum City v Brenda Garudzo SC57/18

THE CCZ noted that this case had been used as authority to the proposition that a draft ruling made against an employee should not be confirmed by the LC. It ruled that this was not the case and it remarked:

“One cannot interpret the Drum City (Pvt) Ltd case supra as authority for the proposition that it would only be cases where a “draft ruling” has been made against the employer that confirmation proceedings would ensue. The remarks were made as an obiter dictum. The ratio decidendi of that case is that an employee must be joined in confirmation proceedings”

The importance of these remarks is that draft rulings either made for or against an employee will have to be confirmed by the LC as a matter of compliance with the procedure prescribed by the LA.

Confirmation of the Draft Ruling

The court process of confirming a labour officers draft ruling was described by the CCZ as follows:

“Confirmation of a draft ruling is a legal process. The judicial officer in the Labour Court is tasked with applying the principles of the law to the facts. He or she is not merely rubberstamping the “draft ruling” of the labour officer. The judicial officer is required to thoroughly investigate the matter. A judicial officer is bound by the law of confirmation. He or she must research the procedure and the applicable law”

The role of a designated agent

The CCZ noted that Designated Agents of NECs are empowered to redress/remedy an unfair situation in their areas of jurisdiction. This is in terms of section 63(3a) read together with (63b). Once the designated agent has redressed the dispute in terms of these sections, then section 93 of the LA does not apply. The matter can only be brought before the LC by way of an appeal or a review.

It also noted that a designated agent can redress a dispute or to attempt to redress the dispute.^[7] Section 93 will therefore only apply if the dispute has not been redressed. In this instance, the designated agent would have attempted to resolve the dispute through conciliation. Critically the court mentioned:

“Section 93 of the Act does not create an avenue for the validation of a final decision that is made by a designated agent in terms of s 63(3a) of the Act. It only creates an avenue where a designated agent adopted the process of attempting to settle the dispute through conciliation in accordance with the provisions of s 93 of the Act.”

In the present case, the court argued that the designated agent had made a final decision which was final. Section 93 of the act could not apply. A certificate of the settlement could not be issued. In the absence of the certificate of the settlement, she couldn’t be deemed to have been attempting to settle the dispute. No dispute could be resolved by way of conciliation. It was on this basis that the court concluded that the proceedings before the LC were a nullity as section 93 could not be used as the basis for approaching Labour Court.^[8]

Conclusion

As a result of the above reasoning, the court concluded that the matter was not properly before the labour court. The LC could not, therefore, refer these constitutional questions to the CCZ. In the result, the application was dismissed with the consent of the parties.

*END*

[1] Isoquant Investments Private Limited T/A ZIMOCO v Memory Darikwa (CCZ 6/20) p8

[2] Ibid at p9

[3] Ibid at p28

[4] Ibid at 10

[5] Ibid at 11-19

[6] Ibid at p22

[7] Ibid at p30

[8] Ibid at p31

2,909 Views

HWANGE COLLIERY COMPANY LIMITED V BENSON NDLOVU AND ANDREW NDLOVU (SC46/20)

“What all the authorities point to is that the discretion of the employer must be respected. It is not just a question of the appellate court, in the comfort of its chambers or courtroom, deciding to substitute its own discretion merely because it holds a different view from that of the lower court.”

Categories: Strike Action, Discretion to dismiss

Introduction

What happens when an employee admits to committing an offence during a disciplinary hearing? What are the legal implications of such an admission? Hwange Colliery Company Limited v Benson Ndlovu and Andrew Ndlovu answers these questions, among others.

Facts

Between the 14^thand the 18^th of October 2013, there was an illegal strike at perpetrated against the appellant company. 3200 men and women were involved in this action. The two respondents were charged for engaging in the illegal action and were dismissed by the respondent company. It is important to note that the employees pleaded guilty to the charges laid against them. Internal appeals also failed as they were held to have admitted to the charges. They appealed to the labour court which upheld their appeals setting aside the penalty of dismissal. The LC ruling founded the current SC challenge.

The Courts Reasoning

Singling out the respondents

The labour court had a problem with the fact that the respondents were singled out, out of a group of employees that was involved in an illegal strike. It was also of the view that not enough evidence had been provided to convict the respondent employees. The SC did not agree. It contended that there was a rich line of precedent from it which point to the fact that it is “not uncommon for the alleged ringleaders in any unlawful gathering or action to be singled out for punishment.” It concluded that it accepted that selective prosecution is acceptable in as far as illegal strikes are concerned.

Discretion to dismiss the respondent

The SC argued that a court must be slow in interfering with the employer’s discretion to dismiss an employee where the employee’s conduct goes to the root of the employment relationship. In buttressing its position, the court remarked as follows:

Indeed, a court will not willingly interfere with an employer’s discretion to dismiss an employee.

Admitted charges

The LC was of the view that the appellate company was supposed to lead evidence to explain what the respondents did to warrant dismissal. The SC did not find this as necessary since the employees had admitted that they were guilty to the charges raised by the company. The net effect of an admitted act is that there is no need to adduce any evidence.

The SC came to this conclusion after correctly noting the case between DD Transport (Pvt) Ltd v Abbot were the court argued that:

“But this admission in the plea is of the greatest importance, for it is what Wigmore (paragraphs 2588-2590) calls a ‘judicial admission’ (of the confession judicialis of Voet (42.2.6) which is conclusive, rendering it unnecessary for the other party to adduce evidence to prove the admitted fact, and incompetent for the party making it to adduce evidence to contradict it —“.

In effect, there is no need for an employer to adduce any evidence when an employee admits to committing the offence in question.

The appeal was upheld, and the dismissal of the employees was consequently upheld.

Own Comment

The bottom line in terms of the principles confirmed, in this case, is that the employer retains the right to dismiss an employer where the act complained of goes to the route of the employment relationship. Courts will be slow to interfere with the exercise of such discretion. This case also confirms what is common knowledge in Zimbabwean labour law. A few employees may be singled out for disciplinary action concerning an illegal collective job action. This judgement was well reasoned and serves as a good reminder of the basic principles of the law on collective job action.

1,827 Views

ALBERT JAVANGWE v VORTIGEN IVESTMENTS PRIVATE LIMITED T/A CPL (SC 49/20)

“There was, therefore, no need for the re-registration of the respondent’s code. The respondent correctly used its code in disciplining the appellant. The appellant was therefore charged and dismissed in terms of the correct code of conduct.”

Category: Re-registration of a code of conduct

Introduction

In this summary, I point out one important principle that was highlighted by the SC in this case. The long and short of it is that there is no need for a company to reregister its code of conduct were an NEC code is repealed and a new one is promulgated provided the new NEC Code ratifies the already registered company codes.

Facts

The appellate employee was dismissed for unsatisfactory performance. The code of conduct used was the respondents. On appeal, the dismissal was also confirmed. He applied for review at the LC which review was dismissed. The basis of the review was that the code of conduct that had been used was not ratified by the NEC in terms of s101 of the LA. The background was that in February 2009 the NEC had registered the employer’s code. The registration was necessitated by the fact that the NEC had come up with its code. In 2012 the NEC came up with a new code. The appellant employees’ argument was that the employer had to make sure that code was ratified once again.

The Courts Reasoning

Was the code approved?

The SC made an important finding that the new code published by the NEC provided that there was no need for old codes to be reregistered. It took into consideration the old statutory interpretation dogma which posits that the ordinary grammatical meaning of words in a statute should be used unless if that would lead to absurdity. In this regard the SC remarked:

“The legislature in enacting s 4.1 of S.I. 175/12 which expressly provides that it was not to be used for employees who already had registered company codes must be presumed to have applied its mind to the possible effects of requiring re-registration of company codes which were already in existence. The grammatical construction of s 4.1 of S.I. 175/12 clearly proves that the legislature intended to establish a blanket approval of all pre-existing codes to avoid an absurd scenario of re-registration of pre-existing codes it had previously approved. Section 4.1 cannot, therefore, be said to be inconsistent with the Act.”

The resubmission of the employer’s code under the circumstances was deemed to be inconsistent with the intention of the crafters of the code of conduct.

The SC had no option but to dismiss the appeal.

Own Comment

This decision of the SC is spot on. There was no need to register the code where the legislature was clear on what parties were expected to do.

1,344 Views

TAFADZWA M SAKAROMBE AND WONDER SIMUKA v MONTANA CARSWELL MEATS PRIVATE LIMITED (SC 44/20)

“In my view, the principle emerging from all the authorities referred to above can be summarized by the statement to the effect that a labour officer does not have any jurisdiction under s 93 to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered code of conduct. It is clear that the labour officer presided over a matter over which she did not have any jurisdiction.”

Categories: Appeals against completed hearings under a code of conduct, Powers of labour officers.

Introduction

Tafadzwa M Sakarombe and Wonder Simuka v Montana Carswell Meats Private Limited is a matter that has similarities with Misheck Mabeza v Sandvik Mining and Construction (Private) Limited[1] which was decided in 2019. Both matters scrutinise that role of labour officers and come to the same conclusion that a labour officer does not have the jurisdiction to resolve a dispute that is emanating from a completed disciplinary process. The current matter goes a step further to order that the Minister of Labour be appraised of the inconsistencies in the national code with a view to rectify the anomaly.

Facts

The second appellant was the respondent’s employee who was dismissed on allegations of theft and fraud. Internal appeals failed as the dismissal was upheld. He approached a labour officer with an allegation that he was unfairly dismissed. The labour officer conciliated the dispute. Conciliation failed leading to a certificate of no settlement. A ruling was made in favour of the employee. Aggrieved by this ruling an appeal was lodged by the respondent company at the LC. The LC on hearing the appeal confirmed the dismissal of the employee. It was this judgement that was brought to before the SC by the aggrieved employees.

The Courts Reasoning

The SC as a starting point was worried about the procedure adopted by the parties to this dispute, the labour officer included. It went on to assess authorities that have decided on the ambit of the jurisdiction of a labour officer under section 93 of the LA where a matter is referred to him in terms of the national code.

Two important cases were taken into consideration by the supreme court. These cases illustrated the importance of section 101(5) and (6) of the Labour Act as far as prescribing the parameters within which a labour officer can exercise his or her jurisdiction.

Mwenye v LONRHO Zimbabwe 1999(2)429 (S)

In this case, the supreme court took into consideration the remarks of the court including where it said:

“…Section 101 (5) of the Act is, in effect, an exception to s 93. It is a provision designed for the benefit of the parties. As long as the dispute or matter is:

(a) the subject of proceedings under a code; or

(b) liable to be the subject of proceedings under a code; no labour relations officer may intervene. His power to determine or otherwise dispose of the matter under s 101 (6) is placed in abeyance for a period of thirty days. This is to afford the parties, should one of them so wish, the opportunity to utilize the internal mechanisms specified in the code. Consequently, if either party were to refer the matter to a labour relations officer before the expiry of the third day period, the other could raise s 101 (5) as a defence.”

Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170

The remarks, in this case, were also taken into consideration. For purposes of this summary the significant remarks can be outlined as follows:

“Subsection (6) of s 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined. The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.”

The importance of the abovementioned authorities is that they displayed that a labour officer cannot have jurisdiction to hear a matter that has been completed in terms of the code of conduct.

A labour Officer as a creature of statute

The SC also highlighted that a labour officer is a creature of statute. This means that the office of a labour officer is created by the LA. Since it has been created by the Act the labour officer cannot exercise more powers than those provided for in the same act.

Powers of labour officers

In addition, the SC also noted that under section 93 a labour officer is entitled to conciliate a dispute and to give a ruling when such conciliation has failed. The powers under this section do not include the power to hear appeals emanating from disciplinary issues. In the current case, the labour officer had entertained an appeal and had reversed the decision of an appeals official which meant that his actions were outside the confines of the enabling Act.

Section 101(5) and (6) of the LA

As in Misheck Mabeza v Sandvik Mining and Construction (Private) Limited the Supreme Court noted that Section 101(5) and (6) precluded a labour officer from entraining a dispute that is a subject of a code of conduct unless if the matter is not determined within 30 days in which case the employee or the employer may refer such a dispute to a labour officer. Such a labour officer will then have to deal with the matter in terms of section 93 of the Labour Act. The SC as a result decisively remarked that,

“In this context the implications of what the labour officer did are obvious. First, she assumed jurisdiction to entertain a matter which the law did not sanction. An appeal against proceedings under the code can only lie to a court or a tribunal which is empowered by law to act as an appeal court or tribunal. In casu, the labour officer assumed unto herself the jurisdiction that is imbued by law in an appellate court or tribunal. A labour officer is not an appeal structure for purposes of s 93 of the Act, nor can that power be read into the section no matter where the referral of a dispute or matter emanates from.

As a result of the above, the supreme court’s finding was that the proceedings undertaken by the labour officer were a nullity. It noted that the matter was supposed to have been brought to the labour court as an appeal.

Own Comment

The judgement is clear cut. As mentioned earlier on it confirms the court’s findings inMisheck Mabeza v Sandvik Mining and Construction (Private) Limited. It noted that the confusion between the Labour act and section 8(6) should be rectified. This, it is submitted, can be done by way of an amendment. Such an amendment can be effected on section 93 to broaden the powers of labour officers and designated agents. The amendment should provide that labour officers have the power to hear appeals emanating from disciplinary hearings.

[1] Misheck Mabeza v Sandvik Mining and Construction (Private) Limited (SC91/19)

1,768 Views

EMMA KUNDISHORA v ZIMBABWE RED CROSS SOCIETY (SC 48/20)

“The Honorary Treasurer acknowledged that he had no authority to do so and took “full responsibility” of the mistake. Once the statement was duly retracted, its validity and enforceability necessarily fell away. The communication made by the Honorary Treasurer could not bind the respondent neither could it be enforced against it.”

Categories: Turquand Rule

Introduction

The dispute turned on whether an undertaking to offer certain benefits on separation would bind a company if such an undertaking was made by someone who did not have the requisite authority. Organisations are juristic persons. They function through officials appointed to run such organisations. Not all officials in an organisation have the authority to make decisions on behalf of the organisation.

From a company law perspective, people dealing with organisations are protected against prejudice in case someone without the requisite authority decides or purports to make a decision which binds the company. As mentioned, this is a company law principle but also affects labour law to the extent discussed in this case. Its origin can be traced back to an old case between Royal British Bank v Turquand (1856) hence the rule has become known as the Turquand rule.

Facts

The applicant was the respondent’s Secretary-General for years. The national governing council for the respondent expressed concern over her performance. It gave her the option of resigning or face a suspension pending investigations into her conduct. She opted to resign on the 3^rd of June 2012. In acknowledging her resignation, the Acting President of the organisation set out what the applicant was entitled to as benefits on separation. This included a Toyota Prado. On the 6^th of June 2012, the Honorary Treasurer wrote to the appellant that the respondent will bear the costs of transferring the vehicle.

On 2 March 2013, the treasurer was reprimanded by the council for issuing communication without its mandate. The Honorary Treasurer wrote to the appellant retracting the statement regarding the pronouncement that the respondent will bear the costs of transferring the vehicle into the hands of the appellant.

Aggrieved, the appellant lodged a complaint with a labour officer demanding a sum of USD 17500 being the costs for the transfer of the vehicle. Conciliation failed and an arbitrator ruled that the respondent had to honour the commitment made by its treasurer. The respondent was not happy with the finding and appealed to the LC. The LC ruled that the turquand rule did not apply and that the employee was not entitled to the claim. The appellant employee was not satisfied thus lodging the current SC appeal.

The Courts Reasoning

Among other findings, the court noted that the fact that someone holds an important position in an organisation does not mean that such a person has the authority to make decisions on behalf of the organisation.

It also further noted that when the treasurer, in this case, retracted the statement binding the respondent company the appellant could not rely on the same statement as its enforceability fell away. This was compounded by the fact that the appellant knew how the organisation functioned including that the treasurer had no authority to produce such a binding statement.

The SC relied on the matter between Victoria Falls Steam Train Co (Pvt) Ltd v Wankie Colliery Co Ltd, HH-03-04. In this case, the court had explained the turquand rule and how it would apply. This court had come to the following conclusion:

“The rule in Royal British Bank v Turquand (1856) 6 E & B 327, 119 ER 886, which prevents a corporation from relying on non-compliance with its internal procedures to avoid contractual liabilities towards a third party, applies only where the third party was a genuine outsider acting in good faith, and where the transaction was carried out in good faith and was a legitimate one within the powers of the corporation though lacking completeness in terms of the corporation’s internal arrangements. The rule does not apply in cases where there has been a forgery, nor should it apply in the analogous case where the transaction has been carried out in deliberate violation of the internal procedures of the corporation.”

The SC argued that the appellant could not be protected in terms of this rule. The communication was made in breach of internal processes. The treasurer did not have the mandate to act in the way he did. The binding nature of the communication immediately fell away as a result thereof.

As a result of the above, the labour courts decision was confirmed by the SC.

Own Comment

The basic principles outlined in this case are of great importance. The company could not be bound by a communication made by someone who did not have the authority to make such communication on its behalf. It followed that the appellant couldn’t be protected by the rule that she sought to invoke and rely on. We submit that the important lesson from this case it that ex-employees who are aware of the processes in organisations they separate with cannot be protected by the Turquand rule.

1,596 Views

FAWU v SAB and Solidarity (South African Case No: J 435/20)

“The irony that belies this matter is that the applicant complains about the efficacy and reliability of the zoom application (a video conferencing application) as a proposed medium to complete the already commenced facilitated section 189A consultation process, yet the urgent application was moved through the same application.”

Introduction

In this short article, I highlight the important aspects of a matter between FOOD AND ALLIED WORKERS UNION (FAWU) (Applicant) and SOUTH AFRICAN BREWERIES (PTY) LTD (SAB) (First Respondent) SOLIDARITY (Second Respondent). The dispute turned on whether using the zoom application to contact a retrenchment consultation is a fair procedure in terms of the South African Labour Legislation. I will concentrate on this aspect of the dispute because the other parts of the dispute may not apply in the Zimbabwean context.

Facts

In January 2020 the employer started the process of restructuring the workplace. Such required that a retrenchment exercise be implemented. Before the retrenchment, it is necessary to make consultations with the affected parties. These consultations were hindered by the state of disaster that was pronounced by the President of SA in response to the COVID-19 virus. Proposals that the consultation process continues through the ZOOM application were put across, but parties could not agree leading to an impasse. The impasse founded the current application.

The legal question

The question before for court, among others, was “whether conducting

section 189 consultation process through zoom application is acceptable or not and if unacceptable, is a continuation of a section 189 consultation using the application amounting to a procedural unfairness.”[1]

Simply put, the court had to decide if the Labour laws of SA prohibit the use of ZOOM as a medium of consultation for retrenchment purposes. The same question can be posed in the Zimbabwean context. The answer that the court gave may also apply in the Zimbabwean scenario, we submit.

The court’s reasoning

The court’s attitude towards the purported unfairness of the ZOOM application is appropriately captured at the start of this article. It accepted that a new normal was ushered in by the pandemic and noted that the Labour Relations Act does not restrict persons on the form which retrenchment consultations can be undertaken.

The court also reasoned that the usage of the ZOOM application was meant to uphold the health and safety of people because of the pandemic. In buttressing the use of the ZOOM application, the court noted that:

“With the new normal – lockdown period during Covid-19 pandemic – zoom is the appropriate form in which meetings can take place. What is involved in this period is the health and safety issue. Thus, the usage of the zoom application is not panoply. It is a necessary tool to ensure that restrictions like social distancing as a measure to avoid the spread of the virus are observed. Much as the applicant has its convenient preferences, those preferences are self-serving and are ignorant of the bigger issue of health and safety.”[2]

Challenges that can be faced in the process of utilising technology were accepted by the court, but it argued that this should not be used to relegate technology to the extent of making it useless.

In the result the court did not support the argument that the use of the ZOOM application for consultations can lead to procedural unfairness.

Own Comment

Back home it is observed that we are not spared by the new normal. Various mechanisms have been put in place by authorities to curb the spread of the COVID-19 virus. Face to face interaction as we used to know them traditionally are no longer applicable. Retrenchment exercises are also affected

The use of technology in labour relations can not be escaped. Since our labour laws do not provide a restriction on how technology can be utilised in retrenchment issues and matters incidental thereto, we submit that ZOOM application or any other video conferencing application can be utilised for such purposes. Further, it is submitted that the use of such technology cannot be deemed procedurally unfair.

[1] FAWU v SAB and Solidarity (South African Case No: J 435/20) at page 2.

[2] FAWU v SAB and Solidarity (South African Case No: J 435/20) at page 11.

867 Views

GODFREY TAPEDZA v ZERA AND NEC FOR THE ENERGY INDUSTRY SC 30/20

Introduction

Have you ever wondered if your company falls within a certain industry? Have you ever found yourself in a situation were two National Employment Councils claim that your corporate falls within their ambits? Well, you are not alone.

Godfrey Tapedza v ZERA and NEC for the Energy Industry is a Supreme Court case that involved a dispute over whether the Zimbabwe Energy Regulatory Authority (ZERA) falls within the energy industry. The law outlined by the Supreme Court, in this case, is crucial for anyone facing a predicament like the one mentioned in my opening statement. In this article, these elementary principles will be discussed.

Facts

A Collective Bargaining Agreement (CBA) was reached by players in the energy industry. ZERA at one point indicated that it had complied with the CBA. The regulatory authority then decided at a later stage, that it was not a player in the energy industry and thus not bound by the CBA.

The Labour Court ruled that it was not a member of the energy industry and thus not bound by the CBA.

The dispute was brought before the Supreme Court and it boiled down to whether ZERA fell within the energy industry.

The Law

Definition of the energy industry

The first important finding that the court made was that the definition of the energy industry did not include “regulation” of the energy industry. The definition included persons involved in the “generation, procurement, distribution, production and transmission of energy to consumers thereof”.

Using the various cannons of interpretation of legislation, the court concluded that ZERA did not fall within the ambit of the energy industry. It was not bound by the Collective Bargaining Agreement.

The rules of legislative interpretation utilised by the Supreme Court will be assessed next.

The golden rule of statutory interpretation

The court argued that the ordinary grammatical meaning of words in a statute should be followed unless doing so would lead to some form of inconsistency with the intention of the legislature.

It then concluded that the words in the statute were clear and unambiguous and required no purposive interpretation. Persons listed in the legislation were the ones covered by it. Such persons, the court argued, did not include those involved in the “regulation” of the industry.

Expressio uninius rule

This is a rule of interpretation according to which the inclusion of one class of things automatically excludes all other members of the class.

Using this rule, the court realised that fact that the definition of the energy industry included a certain class of activities. It followed that another class of activities had been excluded. This rule thus pointed to the fact that the “regulation” of the energy industry was excluded by the legislature.

The intention of the legislature

Related to the rules indicated above, the court pointed that if the legislature had intended that ZERA be a player in the energy sector it would have expressly provided for that.

Disposition

The court, inevitably, concluded that ZERA is not a player in the energy sector and dismissed the appeal with costs.

Conclusion

This judgement was well reasoned. The definition of the energy sector was clear and unambiguous and required no purposive interpretation.

As mentioned earlier on, the principles outlined in this dispute can easily be applied by any other employer wondering which industry his or her operation falls under.

917 Views

ZB BANK LIMITED v TIRIVANHU MARIMO SC 21/20

Introduction

The matter outlines principles that are crucial in instances where an employee acts in a manner inconsistent with his or her contract of employment. It also reflects the delicate balance that workers committee members must maintain in fostering the rights of employees whilst being loyal to the code of conduct. It is thus the authority to the fact that a workers committee chairman will not be exonerated of unlawful conduct based on his capacity as an employee representative.

Facts

The respondent was a workers committee chairman. There was a dispute over salary increments which had resulted in a certificate of no settlement, the dispute having been brought to the attention of a labour officer. The respondent employee proceeded to sent out emails to his fellow employees disclosing percentage adjustments that had been made to their fellow managerial employees. He proceeded to encourage an industrial action as a result of which he was charged for having acted in a manner inconsistent with his employment contract.

The Law

Official Duty as a Workers Committee Chairman

The respondent employee contended that he sent out the emails to his colleagues in his official capacity as a workers committee chairman and this made his actions less of an offence. This viewpoint was upheld by the NEC Appeals Board and the Labour Court. These two forums accepted that the respondent employees breached the appellants’ policy, but the offence did not warrant dismissal.

The court however found merit in the appellant’s argument that the fact that the respondent was a chairman does not mean that he had the power to act outside the law. It thus noted:

“The right to champion workers’ rights is in my view not exercised in a vacuum, as it were, but should be exercised within the confines of the law as dictated, in this case, by the relevant code of conduct. This would ensure that the delicate balance between the competing interests of the employer and those of the workers, through their representatives, is maintained. It falls to reason therefore that the respondent would not be able to hide behind his position as the chairperson of the workers’ committee should the conduct alleged against him be proved.”

Chidembo v Bindura Nickel Corporation

The supreme court took note of the arguments that had been put forward in the Chidembo matter and pointed that, the fact that one is a workers committee chairman does not mean that they will be vindicated from unlawful conduct. The court in Chidembo had decisively noted that:

“The disclosure of confidential information without the requisite authority of the employer remained an unlawful act in terms of the respondent’s code. The fact that the appellant committed the misconduct while performing his role as the worker’s committee chairperson is of no moment. This is because his status as a workers’ committee chairperson did not turn what was unlawful, into a lawful act”

The seriousness of the offence

Having noted that the employee indeed committed the offence of disclosing confidential information, the court took note of the matter between Wala v Freda Rebbeca Gold Mine where the seriousness of an offence was defined. In that matter the court had the opportunity to mention that:

“The seriousness of misconduct is measured by looking at its effect on the employment relationship and the contract of employment. If the misconduct the appellant was found guilty of went to the root of the contract of employment in that it had the effect of eroding the trust the employer reposed in him as found by the arbitrator could it still be said that the misconduct was trivial to warrant a penalty of dismissal? The appellant worked against company policy. It is a serious act of misconduct for an employee to deliberately act against the employer’s policies to advance personal interests.”

Propriety of the decision to dismiss

The court supported the view that dismissal is the appropriate penalty in the circumstances because the employer took a serious view of the offence committed by the respondent employee.

Conclusion

The bottom line is that a workers committee chairman or a representative cannot violate a company code and expect to get away with it. Once an employer takes a serious view of an offence committed an employee will not escape liability.

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LOWVELD RHINO TRUST V DHLOMO-BHALA (SC 34-20)

Introduction

Lowveld Rhino Trust v Dhlomo-Bhala is a matter that deals with the question whether the noting of an appeal at the Labour Court has the effect of suspending the registration and execution of an arbitral award being appealed against.

A common mistake made by practitioners is were they note an appeal at the Labour Court and hope that an arbitral award will not be executed.

Lowveld Rhino Trust v Dhlomo-Bhala clearly outlines the law that applies to this subject and should be used as authority to the principle that the noting of an appeal against an arbitral award will not suspend the operation of the same.

The facts

The dispute arose when the appellant sent a mutual termination agreement to the employee (the respondent). Aggrieved by the letter the respondent argued that the termination was not mutual resulting in the matter going through conciliation and arbitration. The arbitrator came up with an award noting that the employee was unfairly dismissed. It was this award that was successfully registered with the High Court which then resulted in this current appeal.

Reasons for the judgement

Appeals to the Labour Court

The Supreme Court noted that section 92E (2) of the Labour Act governs all appeals and this section indicate that:

“An appeal in terms of subsection (1) shall not have the effect of suspending the determination or decision appealed against”.

This critical and decisive finding was supported by the common law as will be noted below.

The Labour Court as a Creature of statute

The Supreme Court noted that the Labour Court was a creature of statute.
By creature of a statute, it is meant that an institution such as a court was created by statute.
The Courts finding was therefore that, the Labour Court can only do that which it is permitted to do in terms of this founding statute and remains bound by section 92E(2) mentioned above.

Vengesai and Ors v Zimbabwe Glass Industries Ltd 1 998 (2) ZLR 593

The court relied on the reasoning found in the Vengesai matter where the court had this to say:

“The grant or withholding of a stay of execution is at common law a matter of discretion reserved to a court in which such a discretion is imposed. It follows that in absence of any statute specifically conferring such a discretion on an inferior tribunal or authority, or otherwise regulating the question of enforcement of judgments pending an appeal from that authority, no such discretion can exist. Such a court or authority can exercise only the conferred by statute. It cannot order the suspension of its own judgment pending an appeal. It has no discretion to enforce its own judgment notwithstanding an appeal. The only basis upon which its judgment or order can be supposed to be stayed is where its enabling statute provides for the situation.”

Vengesai and Ors v Zimbabwe Glass Industries Ltd simply supported the argument that the Labour Act does not provide for the suspension of an arbitral award when its appeal against.

Safeguarding interests after an appeal against an award

The court highlighted that for one to avoid the execution of an award after noting an appeal against it, section 92E (3) of the Labour Act will have to be utilised. The section provides:

“Pending the determination of an appeal the Labour Court may make such interim determination in the matter as the justice of the case requires.”

The court emphasised that such an application does not give the Labour Court authority to suspend the registration of an award rather, it has the power to suspend the execution of the award after registration.

Chamber application as the correct procedure

The court also acknowledged that a chamber application is a correct procedure for the registration of an arbitral award.

Conclusion

The big lesson in Lowveld Rhino Trust v Dhlomo-Bhala (SC 34-20) is that an appeal against an arbitral award does not suspend the registration and execution of the same. Section 92E (3) of the Labour Act should be invoked by anyone contemplating protecting their interests after the appealing against an arbitral award.

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