Court name
Supreme Court of Zimbabwe
Case number
SC 23 of 2003
Civil Appeal 161 of 2002

Design Incorporated (Pvt) Ltd. v Chapangura and Others (61/02) (SC 23 of 2003, Civil Appeal 161 of 2002) [2003] ZWSC 23 (01 October 2003);

Law report citations
Media neutral citation
[2003] ZWSC 23














DISTRIBUTABLE
(18)



Judgment No. SC 23/03


Civil
Appeal No. 161/02









DESIGN INCORPORATED
(PRIVATE) LIMITED v






INNOCENT
CHAPANGURA AND EIGHTY-EIGHT OTHERS








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, ZIYAMBI JA & MALABA JA


HARARE,
JUNE 16 & OCTOBER 2, 2003








G
C Chikumbirike
, for
the appellant





M
Sinyoro
, for the
respondents








ZIYAMBI
JA: This is an appeal from the Labour Relations Tribunal (now the
Labour Court, but for the purposes of this judgment referred
to as
“the Tribunal”). The main issue to be determined is whether the
appellant was, in terms of its Code of Conduct, entitled
to dismiss
the respondents without a hearing.







The
facts giving rise to the appeal are as follows. The respondents, on
25 September 2000, engaged in a work stoppage for three
hours.
It is common cause that the work stoppage was not in accordance with
the provisions of the Labour Relations Act [
Chapter 28:01]
(“the Act”), in that the requisite fourteen days’ notice in
terms of s 104 (2) of the Act, had not been given to their
employers. The respondents were so advised by the trade union
representatives and returned to work. However, some of the
respondents
denied being on strike. They said they were summoned to
the hall by the receptionist in the employ of the appellant. This
issue
was not resolved. The following day the respondents were
issued with letters of dismissal. The letters were similar in
content
and read:







“This
letter serves to notify you that you are dismissed from this company
with effect from 26/09/2000. Reasons of your dismissal
being that
you took part in an unconstitutional mass strike on the 25/09/00 from
8.00 am to 11.00 am. The statutory instrument
3122 (
sic)
of 1993 indicates that this offence is of a serious nature warranting
instant dismissal.






Section 3:8
clause states that ‘the following offences entail instant
dismissal’:






(vi) Deliberate and unreasonable
refusal to carry out instructions.





(viii) Incitement
to strike in an unconstitutional manner.





(ix) Desertion
of your work.







These offences have been
committed by you. This has been confirmed by the representatives
from the NEC Clothing Industry, Mr Gwande,
and Trade Unions,
Mr Kupara. These representatives also pointed out that it was
illegal, warranting you a dismissal as indicated
in our minutes of
25/09/00.





Several
attempts were made by Top Management to stop you from striking but
you failed to comply with these instructions.





Therefore
(the) resolution passed by Management in consultation with the
Chairman of the Board, Mr S Levy, is that all employees
including yourself be dismissed from work instantly. However, you
are free to apply for a position within the company and (the)
deadline for all applications is 28/09/2000 at 4.30 pm.





Your
terminal benefits will be given to you on the 29/09/2000.”







Following representations by the
respondents to the National Employment Council (“the NEC”), the
matter was referred to the labour
relations officer who, while noting
that the respondents had engaged in an illegal strike by reason of
their failure to comply with
the provisions of s 104 (2) of the
Act, declined to deal with the merits of the matter as he felt
precluded by s 101 (5)
of the Act from so doing. The senior
labour relations officer to whom the respondents appealed also
declined jurisdiction on the
same grounds.







Subsection (5) of s 101
of the Act provides:







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







An appeal to the Tribunal against
the determination of the senior labour relations officer was, in my
view, correctly dismissed.
However, the Tribunal was reluctant to
dispose of the matter on technicalities, preferring to adopt the
approach laid down by this
Court in
Dalny
Mine v Banda
1999 (1)
ZLR 220 at 221 E-G, and issued an order, by consent, giving
leave to the respondents to place before it their appeal
against
their dismissal in terms of s 101(7) of the Act so that the real
issues between the parties could be determined.







The learned member of the
Tribunal, having heard evidence on the matter, found that the
dismissals were not carried out in terms of
the appellant’s code of
conduct and were therefore a nullity. She ordered the appellant to
reinstate the respondents and to proceed
in terms of the “relevant
labour laws” should the appellant decide to terminate the
respondents’ contracts of employment.







Mr Chikumbirike,
in his amended notice of appeal which was filed with leave of the
Court, based the appeal on the following grounds, namely -







1. That the Tribunal misdirected
itself in making a finding of law to the effect that the
audi
alteram partem
rule
was applicable in all situations which relate to the relationship
between employer and employee;







2. That the Tribunal erred in
making a finding that, despite there having been an agreement between
the parties in relation to the
dismissal of the respondents, the
agreement was not enforceable as the respondents denied the agency of
the Union representatives;







3. The learned member of the
Tribunal erred by upholding the Chairman’s earlier ruling directing
that an appeal be launched to the
Tribunal from a hearing in terms of
a Code of Conduct without exhausting all the domestic remedies
enshrined in such code; and, finally,







4. The Tribunal erred in not
specifying the amount to be awarded to the respondents as an
alternative to reinstatement.







Before us, Mr Chikumbirike
submitted that since the Code of Conduct (see
infra),
in s 3 thereof, provides for instant dismissal for the acts
committed by the respondents, no trial was necessary since it
was
quite apparent that the respondents had engaged in an illegal strike
and were therefore liable to the punishment prescribed by
the said
Code. I proceed to deal with this ground of appeal as it is the
crux of the appeal and I am of the view that a determination
of it
will resolve the matter.







The Code of Conduct governing the
parties is the Collective Bargaining Agreement: Printing, Packaging
and Newspaper Industry, SI 322
of 1993 (“the Code”).







Section 2 of the Code provides
for the procedures to be observed when “an offence is alleged to
have been committed”. Section
2.1 provides as follows:







“2.1 Action
by supervisors when an offence is alleged to have been committed or
reported.







When an offence is alleged to
have been committed, the Manager or Officer concerned will
investigate and either dismiss the case,
give an unrecorded warning
(see section 3(2)) or lay a formal disciplinary complaint in writing
(see section 2(3)) or arrange for
a hearing to be held in terms of
(section 2.5) hereunder.”







Section 2.5 sets out the
procedure for investigating the case and collating evidence,
including relevant documents and names of witnesses,
with a view to
ensuring a fair hearing of the case.







Section 3 is the penalty
section. The penalties vary from unrecorded warnings to instant
dismissal. The latter penalty is
provided in s 3.8.1(d), which
reads as follows:







“(d) the following offences
entail instant dismissal, provided they have been proven-






(i)
– (vii)..






(viii) incitement to strike in an
unconstitutional manner …”.







In the context of the Code it
would seem to me that the phrase “instant dismissal” means
dismissal as opposed to some other penalty
(like a warning for
example). It could not in this context possibly mean dismissal
without a hearing. Had this been the intention
of the framers of
the Code, they would have said so. The words “provided they have
been proven” have the clear meaning that
a hearing is envisaged.
Further, s 2 of the Code makes it clear that instant dismissal is the
harshest penalty and should only
be imposed in the most extreme
cases, namely those set out in subpara (d)
supra.




Having
regard to the procedure detailed in s 2 to be followed in the
event of the commission of an “offence” and the clear
proviso
that instant dismissal can only be imposed if the offence is proven,
it is evident that the framers of the Code did not intend
that
commission of any of the offences set out in subpara (d) would
merit dismissal without a hearing. I am fully persuaded,
therefore,
that instant dismissal, as used in subpara (d) of the Code, does
not mean dismissal without a hearing and that the
appellant acted
contrary to its Code of Conduct – in particular s 2 thereof -
when it dismissed the respondents without a
hearing.







Mr Chikumbirike
submitted that the offence was proven, in that the respondents agreed
that they were on an illegal strike. There was therefore
no need to
prove the fact of their participation in an illegal strike. The
difficulty with this submission is that there were factual
issues
raised by the respondents (for example whether they assembled in the
hall at the request of the appellant’s management or
whether they
were summoned there to strike by other workers) which required
resolution before it could be proved that all the respondents
had
engaged in an illegal work stoppage.







In view of the finding that the
appellant, in dismissing the respondents, acted contrary to its Code
of Conduct, I do not consider
it necessary for a determination of
this appeal to decide whether or not the
audi
alteram partem
rule
has any application in the present case. The matter can be resolved
on the basis that the dismissals are invalid for non-compliance
with
the appellant’s Code of Conduct. Compare
Mugwebie
v Seed Co Ltd and Anor

2000 (1) ZLR 93 (S).






Mr Chikumbirike
submitted, in the alternative, that the respondents through their
representatives, the trade union officials, agreed upon their
dismissal
by the appellant and that accordingly the respondents are
estopped from denying the agreement or the agency of the union
officials.







This alleged agreement is, of
course, denied by the respondents. They say that the officials who
attempted the mediation were not
of their union but of the clothing
industry union and this fact is common cause. Further, had there
been an agreement for their
dismissal, why, they ask, would the trade
union officials plead with the appellant not to dismiss the
respondents but to give them
a warning?







In any event, the alleged
agreement was not a written one and, in terms of s 2 of the
Labour Relations (General Conditions of
Employment) (Termination of
Employment) Regulations 1985, SI 371 of 1985, any such agreement
would have to be in writing.







Section 2(1) of SI 271/85
provides as follows:







“2 (1) No employer shall,
summarily or otherwise, terminate a contract of employment with an
employee unless –






(a) he has obtained the prior
written approval of the Minister to do so; or





(b) he
and the employee mutually agree, in writing, to the termination of
the contract; …”.











Thus the legislature has stated
quite authoritatively that any agreement between an employer and
employee to terminate the employee’s
employment contract must be in
writing. Had the agreement been reduced to writing and signed by
the respondents or their chosen
representatives, Mr 
Chikumbirike’s
submission might have been on firm ground, but that is not the
position which pertains here. Not only has the alleged agreement
not been expressed in writing but the respondents deny giving a
mandate to the union representatives to enter into such an agreement
on their behalf. The portions of the record to which we were
referred, in my view, establish neither the fact of the agreement
nor
the mandate of the union officials to represent the respondents.
Accordingly no reliance can be placed on the alleged agreement.







The next issue relates to the
Tribunal’s decision to hear the appeal by the respondents against
their dismissal by the appellant
before the respondents had exhausted
their domestic remedies.







It should be noted in the first
place that the order granting the respondents leave to appeal to the
Tribunal was made by consent
of the parties.







Further, whether or not a court
or tribunal will hear a party who has not exhausted his domestic
remedies is a matter for the discretion
of that court or tribunal and
it is trite that an appellate court will not interfere with the
exercise of its discretion by the lower
court or tribunal unless it
can be shown that there was an improper exercise of its discretion by
that court or tribunal such as
to vitiate its decision in the matter
appealed against. This ground of appeal must also fail, as there
was no allegation of improper
exercise by the Tribunal of its
discretion to entertain the appeal.







I turn now to the final ground of
appeal, which relates to the applicability of the proviso to
s 96(1)(c) of the Act.







In terms of the proviso to
s 96(1)(c) of the Act, a labour relations officer or senior
labour relations officer in determination
of a dispute or allegation
of unfair labour practice is enjoined to assess the damages to be
paid by an employer as an alternative
to reinstatement. In terms of
s 91 of the Act, this provision applies to the Tribunal only
where it varies a determination
or substitutes its own determination
for the one appealed against. Subsections (1) and (2) of s 91 of
the Act are set out hereunder:







(1) In determining an appeal in
terms of this Part, the Tribunal may confirm, vary or set aside the
determination appealed against,
or substitute its own determination
for the one appealed against, and may make any order as to costs.







(2) subsections (1) to (4) of
section
ninety-six
–







(a) shall apply, mutatis
mutandis
, where the
Tribunal varies a determination or substitutes its own determination
for the one appealed against;







(b) may, at the direction of the
Tribunal,
mutatis
mutandis
, apply to any
determination made by it otherwise than on appeal.”







The question to be answered here
is whether it can be said that the Tribunal varied the determination
or substituted its own determination
for that appealed against. My
view is that it did neither. What it did was to declare the
proceedings null and void. In so
doing it was declaring that no
hearing or determination recognised by the law took place.
Therefore the respondents were not dismissed
and remain employees of
the appellant and are entitled to all the rights and benefits
attaching to their status until such time as
they are dismissed by
the appellant. Accordingly the proviso to subs (1)(c) of s 96
of the Act is not applicable in this
case.







The appeal is therefore dismissed
with costs.


















CHIDYAUSIKU
CJ: I agree.

















MALABA
JA: I agree.



















Chikumbirike and Associates,
appellant’s legal practitioners


Sinyoro,
Muunganirwa and Company
,
respondents’ legal practitioners