Introduction
The Constitution of Zimbabwe enshrines the right to strike under section 65(3).[1] It provides that every employee has a right to engage in collective job action. It is also quick to mention that this right may be curtailed or restricted by legislation such as the Labour Act. Such a restriction is important to maintain essential services.[2]
As a point of departure, it is these restrictions that are provided in the constitution that will be discussed in this section. This will provide readers with an appreciation of what makes up a lawful strike in Zimbabwe. The consequences of an unlawful strike will also be assessed, including case law on the subject.
Dispute of right versus dispute of interests
Whether a dispute can lead to a lawful collective job action is a function of whether the dispute is one of right or of interest. This is a fundamental fact when one is assessing the lawfulness of a strike. The Labour Act does not permit employees to engage in a strike when the dispute is one of right. A dispute of right involves “legal rights and obligations, including any dispute occasioned by an actual or alleged unfair labour practice, a breach or alleged breach of this Act”.
Section 104(1) of the Labour Act empowers all employees, workers committees and trade unions to utilise collective job action when the dispute is one of interest. A dispute of interest is one that entails the creation of a new right. As an example, a dispute of interest is paternity leave which is not a right in Zimbabwe. If employees, want to enjoy paternity leave, they must engage their employers through collective bargaining and only when such collective bargaining has failed can they engage in collective job action after following the correct procedure.
This first restriction on the right to strike was necessary because the Labour Act has clear guidelines on what employees should do when faced with a dispute of right. The act designated certain acts by employers as unfair labour practices and provides for a dispute resolution mechanism under Part XII of the Labour Act. It provides for conciliation and adjudication of such disputes.[3]
Procedural requirements of a strike
For any strike to be lawful in Zimbabwe, employees need to adhere to a set of cumbersome processes. Section 104 (2) prescribes the following procedural requirements:
- Fourteen days’ written notice of the intention to strike should be given to the employer, employment council and a trade union or employers’ organisation or federation provided the trade union or employers’ organisation, or federation is not itself resorting to the strike.[4]
- The second requirement is that the matter (dispute of interest) should have gone through conciliation and this conciliation must have failed.
- When conciliation fails a certificate of no settlement is issued. It is only after this that the employees can engage in collective job action.[5]
- A strike is not permitted where there is a registered trade union representing the employees concerned and that trade union has not approved or allowed the collective job action.[6]
- Besides the above, employees must navigate a set of other requirements prescribed by the Act. The employees should not be engaged in essential services. These services are outlined in the Statutory instrument 137 of 2003. They include the provision of medical services, fire services department, veterinary services etc.[7]
- Striking is also not permitted if the dispute is subject to arbitration.[8]
Case law on collective job action
On this part, we select a set of case law that illustrates the basics of collective job action and the consequences of unlawful collective job action.
Hwange Colliery Company Limited v Benson Ndlovu and Andrew Ndlovu[9]
Here, the SC acknowledged that a few employees can be singled out for disciplinary action in the event of a collective job action involving several other employees. The SC supported the position found in Mashonaland Turf Club v Mutangadura which held:
“The law is clear that in a situation such as this the employer is entitled to dismiss the employee. The fact that the respondent was singled out for disciplinary action becomes irrelevant once it is accepted that his misconduct went to the root of his employment contract.”
ZESA Holdings (PVT) LTD v Energy Sector Workers’ Union[10]
In this case, the court noted that a mere demonstration that was to be undertaken by employees who are involved in essential services qualifies as a collective job action and it is unlawful. It noted:
“The unlawfulness of the intended collective job action arises from two situations. Firstly, the employees of the applicant are engaged in an essential service and are prohibited by law from engaging in or recommending collective job action. See s 104 (3) of the Labour Act; and s 2 (g) of the Labour Declaration of Essential Services Notice, 2003.”
Speciss College v Maxwell Chiriseri, Emmanuel Chidodo and Allen Musevenzi [11]
This case points to the fact that non-compliance with processes and procedures provided under section 104 of the LA automatically results in a collective job action becoming unlawful. As mentioned, among other requirements, employees contemplating a collective job action must ensure that the dispute is one of interest, that the required notice is given and that a labour officer has issued a certificate of no settlement after an attempt to conciliate the dispute. This case buttressed this principle:
“It is not disputed that no notice was given to the appellant of the impending strike or that no attempt had been made to conciliate the dispute as required by subs 2(b) of s 104. In the circumstances, the collective job action was unlawful by reason of its non-compliance with s104.”
Consequences of an unlawful job action
Having outlined the requirements for a lawful job action it goes without mentioning that an unlawful job action comes with serious consequences for both the participants and the union that would have allowed such. Among other consequences, an unlawful job action can cause the dismissal of the employees concerned, can lead to the issuance of an interdict[12] as we all payment of damages.[13]
Regarding the consequences of collective job action Speciss College case mentioned above, ruled:
“…an employee who participates in an unlawful collective job action risks dismissal from his employment and non-payment of wages or salary for the period of such unlawful collective job action.”
Conclusion
From the foregoing discussion, it can be summarised that the right to engage in collective job action is rooted in the Zimbabwean Constitution. This synopsis showed the procedural requirements set out in terms of section 104 of the LA. It also showed what our courts have pronounced in connection with the unlawfulness of collective job action. At the end of the discussion, the consequences of an unlawful job action have also been outlined. These include non-payment of wages during the period of the strike and payment of damages for any loss caused but for the unlawful strike.
Prescribed Reading
- Speciss College v Maxwell Chiriseri, Emmanueal Chidodo and Allen Musevenzi (SC 2/2013).
- Hwange Colliery Company Limited v Benson Ndlovu and Andrew Ndlovu (SC46/20).
- ZESA Holdings (PVT) LTD v Energy Sector Workers’ Union (HH 28/18).
REFERENCES
[1] Section 65(3) of Constitution of Zimbabwe Amendment (No. 20) Act, 2013 reads “Except for members of the security services, every employee has the right to participate in collective job action, including the right to strike, sit in, withdraw them labour and to take other similar concerted action, but a law may restrict the exercise of this right in order to maintain essential services”.
[2] See ZESA Holdings (PVT) LTD v Energy Sector Workers’ Union (HH 28/18).
[3] Isoquant Investments Private Limited T/A Zimoco v Memory Darikwa (CCZ 6/20).
[4] Section104(2)(a) of the Labour Act.
[5] Section 104(2)(b) of the Labour Act.
Section 104(2)(b) of the Labour Act.
[7] Section 104(3)(a)(i) of the Labour Act.
[8] Section 104(3)(b)(ii) of the Labour Act.
[9] Hwange Colliery Company Limited v Benson Ndlovu and Andrew Ndlovu (SC46/20).
[10] Zesa Holdings (PVT) LTD v Energy Sector Workers’ Union (HH 28/18).
[11] Speciss College v Maxwell Chiriseri, Emmanueal Chidodo and Allen Musevenzi (SC 2/2013).
[12] Zesa Holdings (PVT) LTD v Energy Sector Workers’ Union (HH 28/18).
[13] Speciss College v Maxwell Chiriseri, Emmanueal Chidodo and Allen Musevenzi (SC 2/2013).