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