WORKERS COMMITTEES IN ZIMBABWE: A GENERAL GUIDE

1. Introduction

Every person has a right in terms of the Constitution of Zimbabwe to freely associate and assemble with others.[1] In this article, we will explore the right to freedom of association in the workplace with a focus on workers’ committees. We outline what we consider to be the most important and crucial provisions in the Labor Act, including the essential functions of every worker’s committee. We will also assess in part, the right to appear in courts as curtailed by the Supreme Court. At the end of the discussion, it is expected that one would be well versed with an important overview of the important provisions governing workers’ committees in Zimbabwe.

2.    The definition of a workers committee

In terms of the Labour Act, a workers committee means a committee appointed or elected in terms of Part VI of the Act. In terms of the relevant provisions, employees under a single employer are expected to form a workers committee to represent their interests.[2] Managerial employees are also allowed to form their own worker’s committee provided that it represents their interests only. The formation of workers committees is also entrenched in terms of section 4 of the Labour Act which precludes employers from coming up with terms of employment that compel employees to relinquish their trade union or workers committee membership or which prevent employees from taking part in the formation of such bodies. This protection entitles every employee, if he or so desires, to be part of a trade union or workers committee. The provisions, therefore, entrench the constitutional provisions already mentioned at the start of this discussion.

3.    Formation of workers committees

Employees in an establishment determine the structure as well as the procedure that the worker’s committee should adopt.[3] If more than 50% of the employees are represented by a specific trade union all members of the worker’s committee must be members of that trade union.[4] In the course of appointing a workers committee, the employees have to be assisted by a labour officer or a representative of an appropriate trade union. It is submitted that an appropriate trade union in terms of section 23 represents 50%, or above, of the employees. If an establishment has several trade unions all of which do not have 50% representation the best course of action is to make use of a labour officer because no union can claim major representation in such an instance.

In the course of appointing workers committee members, the employer must ensure that he or she provides the employees with facilities for such appointments.[5] This will also include providing a place for the employees to meet during working hours. This is only acceptable provided that the employer’s business is not disturbed.[6] The employer should also provide a list of names for all employees at an establishment.

A party aggrieved by the process or appointment of workers committee members has a recourse. The dispute should be referred to a labour officer who assisted in the appointment process or if the labour officer is not present such a dispute must be referred to another labour officer.[7] The determination of such a labour officer shall be final unless the parties agree to have the matter go through voluntary arbitration.

Though not provided for in the Act,during the formation phase of a workers committee, some institutions have found it good practise to allow members of the worker’s committee to go through training before they take up their appointments. Such training covers such areas as the general provisions of the Labour Act as they affect employee representation, the right of the committee to represent employees as well as the consequences that follow such representation.

4.    Functions of a workers committee

In terms of section 7(1) of the Labour Act, the formation and conduct of a workers committee is part of the employees right to democracy in the workplace. Its hindrance is explicitly precluded. In this section, we outline the major functions of a workers committee both within and without the entity, they fall under. These functions should be read together with some Supreme Court pronouncements which curtailed the functions of a workers committee especially with regards to the right to sue and be sued.

4.1.       Representing employees in an undertaking

The primary function of a workers committee is to represent employees in an establishment.[8] The representation concerns anything that is of interest to the employees’ rights and interests. It is because of this power to represent employees that workers committee members can act on behalf of employees in collective bargaining agreements as well as in disciplinary hearings. So critical is this function that that section 24(2) of the Labour Act prescribes:

 “where a workers committee has been appointed or elected to represent employees, no person other than such workers committee and the appropriate trade union, if any, may— (a) act or purport to act for the employees in negotiating any collective bargaining agreement; or (b) direct or recommend collective job action to the employees”.

Despite this function being broad as it is, in its role in representing employees, the worker’s committee is limited. It cannot sue or be sued.[9] Expressed differently, it is not a body corporate with the capacity to sue or be sued in its representative capacity.[10] The Supreme Court has highlighted that without this capacity, it becomes complicated if in litigation issues to do with costs were to arise because there will be no one to recovers the costs from since the Workers Committee is not a body corporate.[11]

In CT Bolts (Pvt) Ltd v Workers Committee[12] the court ruled that if the legislature intended to make a workers committee a legal persona it would have said so. It went further to ascertain that if a body has a constitution, it becomes a “Universitas”.[13] Under the common law, a Universitas is considered a body corporate capable of suing and being sued. On the face of it, one may argue that if a workers committee has a constitution it also retains the capacity to sue or be sued provided this capacity is retained in the constitution.[14]

Mindful of the common law position regarding “Universitas” the court in Gweru Water Workers Committee v City of Gweru[15] entertained the worker’s committee and awarded an order for leave to appeal and condonation for late noting of the appeal based on the fact the committee had a constitution. The constitution specifically provided for the right to sue and be sued. One might argue therefore that a workers committee with a constitution with similar provisions to the one found in the City of Gweru, can sue or be sued and will have locus standi to represent employees in a court of law. On the contrary, however, it should be noted that CT Bolts (Pvt) Ltd v Workers Committee[16] rejected that a workers committee can give itself more powers than those provided in the Labour Act. We submit that the position in CT Bolts is the correct position regarding the legal capacity of a workers committee to represent employees in court. A body cannot have more powers than those it can exercise in terms of its founding provisions. A workers committee cannot sue or be sued.

4.2.       Negotiating a Collective Bargaining Agreement (CBA)

Another important function carried out by a workers committee is the capacity to negotiate with an employer, a CBA governing the terms and conditions of employment of the employees.[17] Section 24(3) limits the rights of a workers committee to collectively bargain with an employer. In that section, it is prescribed that where a trade union is existent within an establishment such must authorise in writing and give permission to the worker’s committee to negotiate with the employer. We submit that the words “only to the extent that such negotiation is authorized in writing by the trade union” found in section 24 (3) (a) are peremptory and if a workers committee does negotiate a CBA without the authority of a trade union within its establishment such CBA can be rendered void.

The other limitation to negotiating a CBA provided under the said section 24(3) is that where a CBA is present, negotiations are only permitted within the confines of the CBA. Further, it is prescribed that a workers committee can also negotiate a CBA in circumstances where the Minister of labour endorses “in writing that an issue was omitted from or included in the principal collective bargaining agreement when it should not have been so omitted or included; and further that the parties to the principal collective bargaining agreement have failed or are not in a position to reach an agreement on such an issue.”

Whilst the worker’s committee is endowed with the powers to negotiate a CBA these powers are, because of what has been discussed above, limited.

Another key point to consider regarding the committee’s powers and capacity to negotiate a CBA with the employer is the limitations inherent in the process of negotiating. In defining “negotiating”, the court in T M Supermarket v TM National Workers’ Committee[18] held that negotiation does not necessarily mean than one party has to accede to the demands of the other party. It went further to point out that refusal to award that which is asked by another party is a sign that negotiations took place.[19]

4.3.       Collective Job Action

In terms of 24 (c) of the Act, a workers committee is entitled to recommend collective job action to the employees falling under its constituency. The Labour Act further entrenches this function as a right.[20] Under section 104, all employees, workers committees and trade unions have the right to resort to collective job action to resolve disputes of interest.[21] Reference to a dispute of interest in this section is of paramount importance. A dispute of interest does not involve a dispute that involves the rights of employees.[22] A dispute of interest entails the creation of new rights.

It is also important to note that the right to recommend a collective job action is not unfettered. Section 104 discussed above prescribes conditions under which a lawful collective job action can be recommended and executed. Among several safeguards, a workers committee should recommend a collective job action after giving the required 14 days’ notice and the dispute has been conciliated upon.[23]

Failure by a workers committee to adhere to the basic requirements for recommending a collective job action may make it liable for damages emanating from an unlawful strike. The Act also provides for circumstances where a workers committee can recommend or engage in a collective job action without having to go through the cumbersome procedure mentioned above.[24] Such circumstances include were a health and safety issue is present which causes an imminent danger to the employees or in instances where the committee seeks to defend “an immediate threat to the existence of a workers committee or a registered trade union”.[25]

4.4.       Role in the Works Council

Section 24 (d) of the Act provides that some members of a workers committee may be voted into a works council in establishments where a works council is present. To also entrench this right, the Act further prescribes it as a requirement that a works council is mandatory in all establishments where a works committee is present.[26]

A works council shall have an equal number of employer representatives and employee representatives. The major roles of the works council include the fostering of participation between management and employees, to encourage good relations between the employer and the employee as well as the promotion of general and common issues of “interest, including the health, safety and welfare of both the establishment and its workers”.

The presence of a works council in the workplace is not ceremonial. The Act designates certain acts that cannot be undertaken by the employer without consulting with the worker’s committee. The wording of the Act indicates that actions taken by an employer without the involvement of a workers committee. (arbitrary actions by an employer) maybe invalid and in this respect, Section 24A (5) of the Act reads:

“Without prejudice to the provisions of any collective bargaining agreement that may be applicable to the establishment concerned, a works council shall be entitled to be consulted by the employer about proposals relating to any of the following matters— (Own Emphasis)

The words, “shall be entitled to be consulted” imposes an obligation on the employer to consult with the works council. An employer is expected to allow members of a workers committee to make representations, and to put across alternative proposals on an issue, and to generally attempt to reach a consensus with the members of the worker’s committee before making a decision.

An outline of the issues that the works council must be consulted on are as follows[27]:

  • the restructuring of the workplace caused by the introduction of new technology and work methods;
  • product development plans, job grading and training and education schemes affecting employees;
  • partial or total plant closures and mergers and transfers of ownership;
  • the implementation of an employment code of conduct;
  • the criteria for merit increase or payment of discretionary bonuses;
  • the retrenchment of employees, whether voluntary or compulsory.

5.    Unfair Labour Practises Committed by a Workers Committee

Act 7 of 2005 introduced an important concept in our labour laws.[28] This is the designation of certain acts as unfair labour practises that can be committed by the worker’s committee. It is important for anyone involved in workers committee issues to be well versed with the concept of unfair labour practise as it applies to employees and their representation. Once an act has been designated as an unfair labour practise it has to go through the dispute resolution mechanism provided for under Section 93 of the Act.[29]

The list of unfair labour practises that can be committed by a workers committee include preventing an employee from exercising rights in terms of the Labour Act, failure to represent an employee’s interests in connection with issues arising from the Act as well as failure to comply with a CBA among other issues.

6.    Conclusion

The worker’s committee is a body of employee representatives endowed with the power to champion workers’ rights in the workplace. This is a critical role. It has been explained that the function of a workers committee does not extend to representing employees in courts. In exercising its role as representatives of employees the worker’s committee has the power to recommend collective job action and to engage in collective bargaining with the employer. All these functions are important in fostering industrial relations and the right to democracy in the workplace.


[1]           Section 58 (1) of the Constitution of Zimbabwe provide that “every person has the right to freedom of assembly and association, and the right not to assemble or associate with others”.

[2]           Section 23 of the Labour Act (Chapter 28:01).

[3]           Section 23 (1a) of the Labour Act (Chapter 28:01).

[4]           Section 23 (1b) of the Labour Act (Chapter 28:01).

[5]           Section 23 (2b) of the Labour Act (Chapter 28:01).

[6]           Section 23 (2c) of the Labour Act (Chapter 28:01).

[7]           Section 23 (2f) of the Labour Act (Chapter 28:01).

[8]           Section 24 (1) of the Labour Act (Chapter 28:01).

[9]           Cold Storage Company National Workers Committee v Cold Storage Company Limited HB 8/2002.

[10]          Cold Storage Company National Workers Committee v Cold Storage Company Limited HB 8/2002.

[11]          Cold Storage Company National Workers Committee v Cold Storage Company Limited HB 8/2002.

[12]          CT Bolts (Pvt) Ltd v Workers Committee SC 91/11.

[13]          CT Bolts (Pvt) Ltd v Workers Committee SC 91/11.

[14]          CT Bolts (Pvt) Ltd v Workers Committee SC 91/11.

[15]          SC59/13.

[16]          CT Bolts (Pvt) Ltd v Workers Committee SC 91/11.

[17]         Section 24 (1)(b) of the Labour Act (Chapter 28:01).

[18]          T M Supermarket v TM National Workers’ Committee SC 19/04.

[19]          T M Supermarket v TM National Workers’ Committee SC 19/04.

[20]          Section 104 of the Labour Act (Chapter 28:01).

[21]          Section 104 of the Labour Act (Chapter 28:01).

[22]          Section 2 of the Labour Act (Chapter 28:01).

[23]          Section 104 of the Labour Act (Chapter 28:01).

[24]          Section 104(4) of the Labour Act (Chapter 28:01).

[25]          Section 104(4)(b) of the Labour Act (Chapter 28:01).

[26]          Section 25A (1) of the Labour Act (Chapter 28:01).

[27]          Section 25A (5) (a) of the Labour Act (Chapter 28:01).

[28]          Section 25A (5) (a) of the Labour Act (Chapter 28:01).

[29]          Section 93 of the Act designates for the conciliation and arbitration of all disputes of interests.

5,405 Views

INTERPRETING A CODE OF CONDUCT

Labour disputes can turn on the interpretation of a code of conduct. Interpretation entails the process of construing the text of a code to come up with the true meaning of an instrument. Our courts have designated various principles that we can utilise in the process of interpreting a code of conduct. We submit that to a greater extent; these principles have similarities with the rules of statutory interpretation.

Ordinary grammatical words in the code

Words in a code of conduct provide the primary guidance and a starting point in the process of ascertaining the correct/true meaning of a code and its provisions.

The words should be given their ordinary grammatical meaning unless if this can result in some anomaly.[1] This is the same principle that courts have used to interpret legislation in several circumstances.[2]  This principle was appropriately explained in Venter v Rex[3] wherein the court noted that :

“it appears to me that the principle we should adopt may be expressed somewhat in this way: that when to give plain words of a statute their ordinary meaning would lead to absurdity so glaring that it could never have been contemplated by the legislature, or where it could lead to a result contrary to the intention of the legislature, as shown by the context or by such other consideration as this court is justified in taking into account, the court may depart from the ordinary effect of the words to the extent necessary to remove the absurdity and to give effect to the true intention of the legislature.” (own emphasis)

The sample principle, it is submitted, is available in the interpretation of a code of conduct. In Circle Tracking v Mahachi the courts buttressed this rule and mentioned that:

“The term corruption in the context of the Code must be given its ordinary grammatical meaning and not be construed within the criminal context.” (own emphasis)

In coming up with the ordinary grammatical meaning of words in a code the dictionary meaning of the words may be unavoidable as will be explained below. Once the grammatical meaning of the text has been taken into consideration other elements of the process may come in. These, depending with the circumstances, include the context of the words as well as the intention of the drafters of the code.

Dictionary meaning of words

Construing words in a code of conduct may at times boil down to the dictionary meaning of a word. This is not a new approach as courts have utilised dictionaries to come up with the correct meaning of words in a legislation. In Loryan (Pvt) Ltd v Solarsh Tea & Coffee (Pvt) Ltd[4] it was pointed out that:

            “Dictionary definitions of a particular word are very often of     fundamental importance in the judicial interpretation of that word in a          statute or in a contract or in a will.”

A good example of where a dictionary was used to construe meaning in a code is encapsulated in the matter between Circle Tracking v Mahachi.[5] An employee was accused of carrying unauthorised passengers in a company vehicle. The employer charged him for corruption and subsequently dismissed him. The employee disputed that the act of carrying unauthorised passengers cannot be construed as corruption. The court then turned to the dictionary and mentioned:

            “The issue is whether the conviction on an allegation of corruption is proper. The word corruption is defined in the Concise Oxford Dictionary    as:

“decomposition; moral deterioration; use of corrupt practices (bribery, etc); perversion (of language, text, etc.) from its original state; deformation”.

Dictionary meaning of words thus represents a cannon that can be used to interpret a code. This is not the end, however. The context within which the words are found may also crucial in certain situations. This will be discussed next.

Context of the words in a code

It is also submitted that for the true meaning of words in a code of conduct to be construed, the context within which they are used should also be taken into consideration. Context represents such aspects as ambit and purpose of the code of conduct, among others. The importance of context is that brings out the true intention of the drafters of the code.

Illustrating the importance of context in words found in a statute is the Circle Tracking[6]  case discussed above. The court in this matter argued that:

            “The term corruption in the context of the Code must be given its      ordinary grammatical meaning and not be construed within the criminal       context. Indeed, some decisions of this Court have stressed that a Code of Conduct should be interpreted in such a way as to give effect to the   intention and spirit of the Code of Conduct.”

As mentioned, the context of the code of conduct helps in establishing the intention of the drafters of a code.

The intention of the drafters of the Code

It is submitted that all the cannons discussed so far are meant to bring out the intention of the drafters of the code of conduct. By reverting to the ordinary grammatical meaning of words in a code of conduct, one will be avoiding the mistake of interpreting these words strictly from a legal perspective.

It is accepted most codes are usually drafted by persons who are not as skilled in drafting legal documents as lawyers.[7] In a courtroom, such codes will not avoid being in the hands of lawyers. Mindful of the irony, courts have accepted that code of conduct should not be interpreted in such a manner as to give all words in it their legal meanings.[8]

Avoiding Technicalities

The process of interpreting a code of conduct should be balanced to avoid technicalities. The whole process should be guided by the general rule of resolving labour disputes which are premised on the need to avoid resolving labour disputes based on technicalities.[9]

The court in Passmore Malimanjani v Central Africa Building Society (CABS) took a robust approach and concluded that:

“Details of conduct that would constitute such offences must be viewed in the light of being examples. They could not possibly have been meant to be exhaustive. Viewing them as exhaustive would result in the ridiculous situation where someone who commits an offence that in the ordinary sense would constitute the conduct in question, e.g. dishonesty, would walk free simply because the specific offence was not listed as an offence. That could not have been the intention of the drafters of the Code, who, in general, are not schooled in the law.”

Indeed, the intention of the drafters of a code should always be taken into consideration and this would require that a code be interpreted careful manner lest we fall in the undesired trap of resolving labour disputes based on technicalities.

Conclusion

From the foregoing discussion, it can be summarised that the process of interpreting a code of conduct is equivalent to the process of interpreting a statute. One needs to be careful that codes of conduct are usually drafted by laypersons who are not lawyers. The intention of such drafters has to be construed to give content to the true meaning of a code. The process of construing a code involves taking into consideration the ordinary grammatical meaning of the words against the context as well as giving effect to the intention of the drafters.

Further Reading


[1]           Circle Tracking v Mahachi (SC 4/07).

[2]           Don Nyamande and Kingstone Donga v Zuva Petroleum (Private) Limited (SC 43/15).

[3]           Venter v Rex (1907 1907 TS 910).

[4]           Loryan (Pvt) Ltd v Solarsh Tea & Coffee (Pvt) Ltd 1984 (3) SA 834 (W).

[5]           Circle Tracking v Mahachi (SC 4/07).

[6]           Circle Tracking v Mahachi (SC 4/07).

[7]           See Passmore Malimanjani v Central Africa Building Society (Cabs) (SC 47/07).

[8]           See Circle Tracking v Mahachi (SC 4/07).

[9]           See Dzvairo v Kango Products (SC 35/2017).

920 Views

TERMINATION AFTER THE END OF A PROBATIONARY PERIOD

QUERY:

“An employer wants to terminate an employee’s contract for failure to perform to expectations 2 weeks after end of probation. The employer had not yet confirmed the employee, so the question is are there any technicalities if they proceed to terminate for failure of probation.”

RESPONSE:

Introduction

There obviously will be a technicality. The employee may rely on St. Giles Medical Rehabilitation Centre v Patsanza (SC 59/18) and argue that terminating his contract two weeks after the end of probation is tantamount to extending his probationary period something which is not supported by the authorities.

St. Giles Medical Rehabilitation Centre v Patsanza

In Patsanza the courts argued that the employer had fallen in the error of extending the period of probation and in dismissing the respondent on two weeks’ notice. The court also commented as follows:

“It seems to me that the appellant, having failed to dismiss the respondent during the period of probation, the question that arises is the status of the respondent after the three months probationary period. Applying s 12(5) of the Labour Act, it is apparent that the respondent was no longer on probation as the contract stipulated a three-month period of probation. Clearly, therefore, in these circumstances the court a quo was correct in finding that the respondent had become a permanent employee.”

Conclusion

In my view, the best procedure is for the employer to constitute a hearing and arraign the employee before an impartial official. Only when the employee is guilty of the offence can he be dismissed. This way, the employer avoids having to deal with the technicalities that may arise from cases like Patsanza.

1,702 Views

THE NEED TO EXHAUST DOMESTIC REMEDIES PROVIDED IN A CODE

QUERY:

“We dismissed a manager for stealing. Money was sent to his EcoCash number, but he could not produce receipts to acquit him. The manager did not appeal internally against the decision but has approached the Ministry of Labour already. How would I deal with this situation? Can the matter be heard at the ministry before the said Manager exhausts all internal processes?”

RESPONSE:

Introduction

The quickest response to this question is embedded in section 101(5) of the Labour Act (Chapter 28.01) which precludes such a manager from proceeding to refer a matter to a labour officer before appealing internally. This section reads:

“Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings”.

The section is clear, a labour officer doesn’t have jurisdiction to entertain a dispute that is still under ambit the code of conduct. The manager, in this instance, should appeal internally first and ensure that all channels are exhausted.

Jambwa v GMB

Individuals fall in the trap of prematurely referring disputes that are still within the ambit of domestic remedies. Jambwa v GMB (HC 11113/11) is one case in which an employee decided to appeal to the High Court against a decision of a General Manager for GMB whereas the code of conduct clearly stated that such appeal should be referred to the Labour Court. In its decisive remarks the court had this to say:

“In casu an appeal to the Labour Court from a decision of the General Manager is a domestic remedy available to the applicant. It is able to afford him redress. Therefore, the applicant has not exhausted domestic remedies as he should have proceeded in the Labour Court by way of appeal. The application cannot succeed on that basis.”

Moyo v Gwindingwi N O & Anor

The same problem was also witnessed in Moyo v Gwindingwi N O & Anor HB 168/11 in which the courts also thought:

“In my view, domestic remedies in this particular case are those remedies and the procedure set out in the code of conduct as being available to an aggrieved party to pursue. An appeal to the Labour Court from a decision of the Director of Corporate Services is provided for in the code of conduct. It is a domestic remedy available to the applicant and she has to exhaust it.

These cases clearly point to the need for an aggrieved party to fully comply with the provisions of a code of conduct before embarking on any external interventions. If a wrong forum is approached that forum will have no option than to dismiss such an appeal or application.

As mentioned above, in the present case, the employee should not have approached a Labour Officer under the Ministry of Labour.

Conclusion

It is advisable in this instance for the employer to attend the first conciliation hearing and highlight to the labour officer that he or she lacks jurisdiction as this matter is supposed to go through an internal appeal process before it is referred to him.  In most cases, any reasonable labour officer will not tolerate such a dispute.

962 Views

A common mistake when terminating fixed-term contracts

I recently came across an extract of a letter which was meant to terminate an employee’s contract.  This letter was of interest to me because, in my view, it contains common labour law mistakes that professionals make in the process of terminating contracts of a fixed-term nature.

For purposes of convenience, the letter is attached below:

I have deliberately inserted paragraph numbers to this letter to simplify the process referencing as I will be referring to these paragraphs throughout this article.

It is important to point out that this letter was meant to terminate a fixed-term employment contract that was due to expire on the 31st of December 2020.

AD PAR 1

Paragraph 1 indicates the intention of the employer to terminate the fixed-term contract on notice (see paragraph 4 as well). The fixed-term contract was effectively terminated on the 15th of January 2020 as can been seen from this paragraph.

Looking at this Paragraph in isolation, one can conclude that the intention was to terminate the contract in terms of section 12C of the Act as amended. In my view, if the employer had just stated that it was terminating the contract on notice there wouldn’t have been anything amiss about this termination.

Paragraph 2 of the letter raises important legal questions about whether the employer wanted to terminate the employees’ contract on notice (s12C of the Act) or dismiss the employee (s12B of the Act). The two processes are different, and each has its own legal connotations. I will explain.

Don Nyamande (2) Kingstone Donga v Zuva Petroleum (Private) Limited [i] shows that there are fundamental differences between termination on notice and termination as a result of a “dismissal”. The two methods have different procedures, for instance, a dismissal envisages the use of a code of conduct. A code of conduct is only utilised when an employee has committed some form of an offence[ii]. Termination on notice can be applied in no-fault situations. This distinction is critical in casu and should be kept at the back of one’s mind in the process of analysing paragraph 2 and 3.

AD PAR 2 & 3

Paragraph 2 and 3 of the letter tend to paint a totally different picture of what is apparent in paragraph 1. The two paragraphs indicate that the termination emanated from an allegation that this employee stole diesel from the company.

Paragraph 3 further indicates that the employee did not show any remorse after the alleged offence. It also threatened to hand over the employee to the police in view of the alleged offence.

It is my respective view that the two paragraphs were not proper at law and should not have been part of this letter considering that the employer wanted to terminate on notice. If the employee committed the offence why then was, he not arraigned before a disciplinary hearing? Was he granted an opportunity to be heard before an impartial tribunal before the termination was effected? The letter does not indicate that this was the case and if this is anything to go by then termination of the employee’s contract was irregular.

It is my sincere understanding that if an employee is alleged to have committed an offence, terminating on notice is not the correct procedure. The basic rules of natural justice require that an employee be given an opportunity to be heard if an offence is alleged to have been committed.  Such an opportunity can only be granted within the confines of a code of conduct. Summarily terminating the contract will be irregular in these instances.

The correct procedure would have been to charge the employee, go through the hearing process and allow him to state his side of the story. Only when, on a balance of probabilities, it is confirmed that he stole the diesel could his contract be severed. This process can be done even when the employee is on a fixed-term contract. The whole process only becomes fair when an impartial tribunal hears the matter and issue an appropriate penalty.

CONCLUSION

In conclusion, I am bothered by the fact that the employee in question was alleged to have committed an offence, but no disciplinary action was undertaken. The employer chose to pay the employee notice and the minimum retrenchment package without allowing the employee to respond to the allegations. I submit that termination by notice can only be utilised in no-fault situations where no party is to blame for the breakdown of the employer-employee relations.

In the circumstances and having considered the authorities, I am tempted to conclude that the termination of the said employee’s contract was null and void for want of compliance with the employer’s code of conduct.


[i] Don Nyamande (2) Kingstone Donga v Zuva Petroleum (Private) Limited (SC 43/15).

[ii] See section 101(3) of the Labour ACT (Chapter 28.01).

1,608 Views

PRESCRIPTION OF LABOUR DISPUTES: CASE LAW

The purpose of this article is to demonstrate the far-reaching consequences that are apparent went a matter has prescribed. A court will not have an opportunity to go into the merits of the matter. In most cases, the prescription is raised as a preliminary point (in limine) to the extent that an inquiry into the merits will not be warranted.

Introduction

This section deals with a review of cases that dealt with prescription of labour disputes. To fully understand this section one needs to go through the law on prescription as outlined in my previous article. In all the cases discussed herein, the claimants lost their matters simply because they delayed in lodging their claims and as a result, the claims had prescribed. The cases indicate the extent to which prescription can have far-reaching consequences to the detriment of those who lodge their claims out of time.

Chengetai Mapundu v ZIMRA[i]

In August 2007 the respondent stopped paying the claimants salary. 4 years later, the claimant brought the matter to the attention of a labour officer. The court remarked that the matter had prescribed. It noted that the claimant could not be saved by exceptions in section 94 of the Labour Act as the dispute could not be deemed to be continuing at the time it was reffered to the labour officer. It then decisively remarked as:

“I associate myself with the submissions made by Respondent’s Officer on this point. He relied on the case of City of Gweru v Munyari SC 15/05 where the Honourable Justice Ziyambi J.A. at p.5 stated that,

“The Labour Court got it wrong. It had no jurisdiction to entertain the matter which had long prescribed.”

In other words, once a matter prescribes, that is the end of the matter. It

cannot be revived in a judicial forum. On that basis, the appeal must fail.”

This case is important in as far as it shows that once a case had prescribed it cannot be revived in a judicial forum.

Jeffrey Dube N.O v Casmyn Mining t/a Turk Mine[ii]

Pursuant to special measures to avoid retrenchment in terms of section 12 of the Labour Act, the employer and employees agreed on a 25% reduction in the employee’s salaries in 2013. In 2014 the employees challenged the agreement at the High Court. They also brought the matter before the Labour Court. At the Labour Court (LC), the matter was dismissed because it was pending before the High Court (HC). Following the dismissal of the matter by the LC, the respondents proceeded to withdraw the HC matter. In September 2016 the same matter was referred to the NEC, de novo.

The LC accepted that the matter had indeed prescribed. The argument that the matter was continuing because the employees were still suffering from the effects of the reduction did not exonerate them. The court thus ruled:

“Equally so, an employee who decides not to act until the unfair labour practise has prescribed cannot possibly argue that because they are still being affected, that unfair labour practise should be deemed as “continuing”. Such an interpretation would result in rendering s94(1) redundant and superfluous”.

In essence, the fact that an individual is still suffering from the effects of the alleged unfair labour practise does not mean that the dispute should be deemed to be continuing. This is an important interpretation that the court came up with. The fact that the employees wasted time in forum shopping did not interrupt the prescription.

 Forbes Chitsenga v Total Mining Company and Others [iii]

The claimants in this instance alleged that they worked in acting positions from the year  2012  and were not paid their acting allowances. In 2017 they claimed alleged unfair retrenchment and included the issue of non-payment of acting allowances as part of the claim. At the NEC, the employees lost the retrenchment claim but won the claim involving the non-payment of their acting allowances.

At the LC, it was realised that the only flaw in the claim for acting allowance was that the claim was coming to the attention of the court after 2 years had elapsed. The dispute could not also be deemed to have been continuing owing to the fact that the employees had signed new contracts. In terms of these contracts, their acting capacities fell away as they were appointed into substantive positions. The matter was dismissed to the detriment of the claimants.

Conclusion

The purpose of this article is to demonstrate the far-reaching consequences that are apparent went a matter has prescribed. A court will not have an opportunity to go into the merits of the matter. In most cases, the prescription is raised as a preliminary point (in limine) to the extent that an inquiry into the merits will not be warranted. Chengetai Mapundu v ZIMRA clearly illustrates that that once a matter prescribes, that the end of it. Forbes Chitsenga v Total Mining Company and Others as well as Jeffrey Dube N.O v Casmyn Mining t/a Turk Mine can best be understood when one reads the Prescription Act especially provisions that relate to the delay and interruption of prescription. In these cases, the claimants time was wasted when they were forum shopping which exercise did not interrupt prescription. In all cases, the important lesson is that labour matters should be handled as a matter of agility.

References


[i]               LC/H/41/13

[ii]               LC/MT/60/18

[iii]              LC/B/15/19

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