Court name
Supreme Court of Zimbabwe
Case number
SC 62 of 2003

First Mutual Life Assurance v Muzivi (S62/03) (SC 62 of 2003) [2004] ZWSC 62 (14 March 2004);

Law report citations
Media neutral citation
[2004] ZWSC 62


FIRST MUTUAL LIFE ASSURANCE v
MUZIVI





Supreme
Court, Harare Judgment No. S-62-03





Chidyausiku
CJ, Cheda JA & Malaba JA





Civil
appeal





23
September 2003 & 15 March 2004






Employment – strike –
right to strike – strike in defence of an immediate threat to the
existence of a workers’ committee
– management effectively
dissolving managerial workers’ committee by regrading committee
members as non-managerial – a direct
attack on existence of
committee, entitling members to strike


Employment
– workers’ committee – managerial workers’ committee –
right of managerial employees to form committee – dispute
over
composition of committee – must be referred to Tribunal, not to a
labour relations officer






The respondent was employed by
the appellant at a grade regarded as a managerial employee. He and
others of the same grade decided
that they should form a managerial
workers’ committee to represent their interests. Other employees in
another grade, who were
regarded for practical purposes as managers,
also became members of the committee. The appellant disputed their
right to do so and
referred the dispute to a labour relations
officer. The officer referred the matter to the Labour Tribunal, but
also directed the
committee to suspend its operations until the
Tribunal had made a ruling. While the Tribunal’s ruling was
pending, the appellant
regraded the respondents and his colleagues to
non-managerial posts, which move had the practical effect of
dissolving the committee.
The respondent and his colleagues went on
strike. The appellant retaliated by dismissing him.



Held
that: in terms of s 104 of the Labour Act [
Chapter
28:01
], employees are
entitled to go on strike without observing any formalities if their
action is in defence of an immediate threat to
the existence of a
Workers Committee.


Held,
further that: as there was a dispute over whether members of the
committee were managerial employees, the matter should have been
referred to the Tribunal directly, not to a labour relations officer.
The labour relations officer had no jurisdiction to adjudicate
in the
dispute and her order suspending the committee was incompetent. It
could not therefore be argued that there was no committee
in
existence.


Held,
further that: by regrading the respondent and his colleagues and
making them ineligible to serve on a managerial workers’ committee,
the appellant was making an actual and direct attack on the existence
of the managerial workers committee. The members were thus
entitled
to go on strike.





Legislation
considered:



Labour Relations Act [Chapter
28:01
] ss 4(1)(d), 23
(2) & (3), 46(1)(b), s 92(2) and 104(4)(b)





I
Chagonda,
for the
appellant


The
respondent in person






CHIDYAUSIKU CJ: The facts of
this case are to a large extent common cause. In terms of the
letter of appointment, the appellant
appointed the respondent as a
Sales Trainer Grade 8. There is no dispute that the respondent was
regarded as an assistant manager.



A concession is made at p 15 of
the record that the respondent was a managerial employee.



On 14 August 1997 the respondent,
together with other employees of the appellant of the same grade,
grade 8, held a meeting to canvass
the possibility of forming a
Managerial Workers Committee in terms of s 23(1) of the Labour
Relations Act [Chapter 28:01] (“the
Act”). At a meeting held
the following day, 15 August 1997, which now included employees in
grade 9, the employees elected an
interim Executive Committee of the
Managerial Workers Committee. The respondent was elected its
Chairman. A meeting was subsequently
held between the interim
Managerial Workers Committee and senior management. At that meeting
senior management recognised the right
of managerial employees to
form a managerial workers committee in terms of the Act but had
certain reservations which senior management
subsequently set out in
a circular issued by management dated 29 September 1997. The
circular reads in part:-



“ Clearly
some of the members of staff at Grade 9-1 who are regarded for
practical purposes as Managers

do not fall within the definition of the Act and therefore do not
qualify for membership of such a committee.



Consequently, the society is of
the opinion that the creation of a Management (Managerial) Workers
Committee cannot proceed until
a determination on this issue by the
Ministry of Labour.


Those
persons who do not fall within the definition of Manager will
obviously have to be represented by the existing Workers Committee
since the Act only allows for one workers’ committee.” (My
emphasis)



In response to that circular the
respondent, as Chairman of the Interim Executive Committee, pointed
out that by custom and practice
the appellant recognised employees in
grades 9 to 1 as Managerial employees. That practice is
acknowledged in the above circular.
That being the case they were
entitled to form and belong to a Managerial Workers Committee in
terms of the Act.



Thus a dispute emerged between
the grade 8 and 9 employees and the appellant. On 25 March 1997 the
appellant referred the dispute
to a Labour Relations Officer in terms
of s 23 of the Act. A Labour Relations Officer, Mrs Makamure,
referred the dispute to the
Labour Tribunal in terms of s 46(1)(b) of
the Act. The Labour Relations Officer did not only refer the
dispute to the Labour Tribunal,
she also issued the following
directive:



“ The
elected Workers Committee should suspend its operations until the
dispute is resolved by the Tribunal and its legitimacy specified.”



Shortly after this ruling and
upon advice the respondent wrote to the appellant. The letter, in
part, reads as follows:



“ On
further consultation, we believe that the ruling on the status of MWC
(Managerial Workers Committee) is out of line as the MWC
is a
universitus
as law and an argument over the composition over its membership does
not have effect on its
locus
standi
,
please advise.”



The appellant responded to this
letter by addressing a letter to the Principal Labour Relations
Officer which read in part as follows:-



“ Mr
Muzivi is seeking through the back door to:



a) overrule the determination of
Mrs Makamure in respect of the status of managerial workers
committee;



b) to pre-empt
the decision of the Labour Relations Tribunal, his request of your
advice on the status of the managerial workers committee
is irregular
and improper in view of the fact that the matter is
subjudice



While this dispute was pending
determination by the Labour Tribunal the appellant embarked on a
regrading exercise which removed the
respondent from the managerial
grade. It would appear the same fate befell all the other members
of the Managerial Workers Committee.
They were regraded at new
levels that were not managerial. They were regraded as general
employees with technical expertise.
Conditions of service were also
changed to what the respondent and his colleagues considered were
unfavourable. In effect the
executive of the Managerial Workers
Committee was indirectly dissolved by regrading its members as
non-managerial employees.


Aggrieved
by these developments the appellant’s employees, including the
respondent, at a meeting held on 23 July 1998 resolved
to go on
strike. According to the respondent the employees at that meeting
resolved thus:-



“ Unanimously
resolved that if the Workers Committee could not negotiate with
management, then it was no use and as good as non-existent.
The
meeting unanimously and spontaneously resolved to go on a collective
job action in defence of the Workers Committee.”



As a result of the above decision
132 employees of the appellant, out of a workforce of 259 went on
strike from 23 to 29 July 1998.
The respondent participated in the
collective job action and admits the same. The respondent was
dismissed from employment for
participating in an illegal collective
job action. However, the Labour Tribunal concluded that the
collective job action was in
defence of, among other things, the
existence of the Managerial Workers Committee. The Labour Tribunal
further concluded that the
respondent’s and his fellow employees
conduct was lawful and permissible in terms of s 104(4)(b) of the Act
which provides that:-



“ 104(4)
Nothing in subsection (1),(2) or (3) shall be deemed to prevent
collective job action from being resorted to –



(a) …


(b) in
defence of an immediate threat to the existence of a workers
committee or a registered or certified trade union.”



It is clear from s 104 of the Act
that employees are entitled to go on strike without observing any
formalities if their action is
in defence of an immediate threat to
the existence of a Workers Committee.



It is against this decision that
the appellant now appeals upon the following grounds set out in the
Notice of Appeal:



“ 1. The
Honourable Chairman misdirected himself in holding that the
industrial action in which the Respondent participated in was
in
defence of an immediate threat to a Managerial Workers Committee.



1.1 That finding was made
notwithstanding the fact that at the time that the industrial action
took place, there was no Managerial
Workers Committee in existence
and as such there could not have been an immediate threat to
something that did not exist.


1.2. The
finding aforesaid was also made notwithstanding an admission by the
Respondent himself that the strike was in defence of
the Ordinary
Workers’ Committee which was in existence at the time that the
strike occurred.



2. Alternatively and in any
event, the Honourable Chairman of the Labour Relations Tribunal erred
in holding that there existed an
immediate threat to the existence of
any Workers Committee particularly when there was no evidence at all
pointing to the probable
demise of any Workers Committee.



3. The
aforesaid factual misdirections were made in circumstances where such
misdirection could not have been made if the court
a
quo

had reasonably applied its mind and as such, the misdirections amount
to a misdirection on a point of law.


4. The
court
a
quo

erred in law in holding that the industrial action in which the
Respondent participated in was lawful.”



There is no factual dispute as to
what the respondent did which prompted his dismissal. It is common
cause that he participated
in a collective job action and it is for
that reason that the appellant dismissed him. The issue that now
falls for determination
is, was the Labour Tribunal correct in
concluding that the industrial action in which the respondent
participated constitute conduct
protected by law in terms of s 104(4)
of the Act. If that conduct falls within the ambit of the above
section then his dismissal
was unlawful. If such conduct does not
fall within the ambit of the above section then his dismissal was
lawful. I have no doubt
that the issue raised here is a question of
law, and not fact. The issue of whether the admitted conduct of the
respondent constituted
a lawful defence from dismissal is a question
of what interpretation is to be ascribed to s 104(4), therefore a
question of law.



I have no
hesitation in dismissing the respondent’s contention
in
limine

that the appeal is on fact and not law and consequently not competent
in terms of s 92(2) of the Act. I also do not see any merit
in the
respondent’s other preliminary objection to the late filing of the
appellant’s heads of argument. The issue of condonation
for the
late filing of heads of argument was disposed of by SANDURA JA in a
Chamber application before the hearing of this matter.



As already stated in terms of s
104(4) of the Act an employee is entitled to resort to collective job
action without any formalities
in defence of the Workers Committee.


The
appellant has argued that the Managerial Workers Committee, chaired
by the respondent, was not properly constituted because some
of its
members were not managerial employees. The respondent, on the other
hand, argued that the Managerial Workers Committee was
properly
constituted as all its members were managerial employees.


The
appellant referred this dispute to the Labour Relations Officer for
resolution in terms of s 23 of the Act. Section 23 of the
Act
provides as follows:-



“ 23(1) Subject
to this Act and any regulations, employees employed by any one
employer may appoint or elect a workers committee to
represent their
interests:



(1a) Subject to subsection (1b),
the composition and procedure of a workers committee shall be as
determined by the employees at
the workplace concerned.



(1b) Notwithstanding
subsection (1a), if a trade union is registered to represent the
interests of not less than fifty
per
centum

of the employees at the workplace where a workers committee is to be
established, every member of the workers committee shall be
a member
of the trade union concerned:



Provided that no managerial
employee shall be appointed or elected to a workers committee, nor
shall a workers committee represent
the interests of managerial
employees, unless such workers committee is composed solely of
managerial employees appointed or elected
to represent their
interests.


(2) For
the purposes of appointing or electing a workers committee, employees
shall be entitled to –



(a) be assisted by a labour
relations officer or a representative of the appropriate trade union;
and


(b) reasonable
facilities to communicate with each other and meet together during
working hours at their place of work; and


(c) be
provided by their employer with the names and relevant particulars of
any employees employed by him;



so however, that the ordinary
conduct of the employer’s business is not unduly interfered with.


(3) In
the event of any dispute arising in relation to the exercise of any
right referred to in subsection (2), the labour relations
officer
concerned or any other officer acting in a similar capacity, shall,
after considering the representations of the parties
concerned make
such fair and reasonable determination as he deems fit, and such
determination shall be binding on the parties:


Provided
that if any person is aggrieved by the determination of the labour
relations officer or such other officer, he may appeal
to a senior
labour relations officer who, after taking into account the
representations of the parties concerned, shall determine
the matter
and his decision shall be final.”



In the event of a dispute between
the appellant and the respondent in relation to any right conferred
by subsection 23(2), namely,
the right to be assisted by a trade
union or a labour relations officer, the provision of reasonable
facilities to communicate with
each other or meet together during
working hours at their place of work, and the provision of names and
particulars of employees
by the employer, such a dispute can be
referred to a Labour Relations Officer in terms of subsection (3) of
s 23.



The dispute between the appellant
and respondent was not about the rights conferred in subsection (2)
of s 23 of the Act. The dispute
between the parties was whether
some of the employees on the Managerial Workers Committee were
managerial employees and the appellant
should have referred that
dispute to the Tribunal in terms of s 46(b) of the Act which provides
as follows:



“ 46 In
the event of any dispute as to –



(a) …



(b) whether any employees are
managerial employees;



the matter shall be referred to
the Tribunal for determination.”



Upon the dispute being referred
to the labour relations officer, Mrs Makamure, she in turn referred
the dispute to the Labour Tribunal
in terms of s 46(b) of the Act.
In this regard she was correct. However, she went beyond merely
referring the matter to the Labour
Tribunal and issued the following
order:



“ The
elected Workers Committee should suspend its operation until the
dispute is resolved by the Tribunal and its legitimacy specified.”



In my view this is where the
Labour Relations Officer went into error. The dispute referred to
her was not a dispute envisaged in
s 23(2) and in respect of which
she had jurisdiction. The dispute referred to her was a dispute
envisaged in s 46(b) of the Act
and in respect of which she had no
jurisdiction to adjudicate. She therefore had no power to suspend
the Managerial Workers Committee
as she did. Even if she had the
jurisdiction to suspend the Managerial Workers Committee, such a
suspension of the Managerial Workers
Committee would not render the
committee non-existent.


On
this basis the appellant’s submission that the Managerial Workers
Committee was I will now turn to the issue of whether the collective
job action was in defence of immediate threats to a Workers
Committee. When the appellant was advised of the formation of the
Management
Workers Committee it disputed the eligibility for
appointment of some of the members of the interim executive committee
on the basis
that the members were not managerial employees. The
appellant as previously stated, referred this dispute to the Labour
Relations
Officer. The Labour Relations Officer correctly referred
the matter to the Labour Tribunal but erroneously suspended the
activities
of the interim executive committee. Before the matter
was resolved by the Labour Tribunal the appellant embarked on a
restructuring
exercise whose net effect was to render members of the
interim executive of the Managerial Workers Committee, non-managerial
employees.
The direct consequence of the appellant’s conduct in
this regard was to abolish the Managerial Workers Committee by
rendering
all its members disqualified for appointment or election to
that workers committee. This conduct of the appellant is more than
a threat to the Managerial Workers Committee. It is an actual and
direct attack on the existence of the Managerial Workers Committee.

It is quite apparent from this conduct and the subsequent conduct of
the appellant that it wished to prevent the formation of the
Management Workers Committee. It is difficult to imagine a greater
and more imminent threat to the Managerial Workers Committee
than
this.



It is quite apparent from the
conduct of the appellant through its various officer’s actions that
they were determined to eliminate
the Managerial Workers Committee
and prevent its resuscitation.


As
the learned Chairman of the Labour Tribunal correctly observed, s
4(1)(d) of the Act confers on employees the following rights:-



(1) The right to be a member or
an officer of a Workers Committee;


(2) The
right to take part in the formation of a Workers Committee.



The above rights cannot be
alienated or suspended at the whim of an employer without due process
of the law. The respondent and
his fellow employees were within
their rights to form as they did the Managerial Workers Committee.
If there was a dispute as to
the managerial status of some of the
members of the interim executive that dispute could only be resolved
by the Labour Tribunal.
Until the matter had been resolved the
respondent was entitled, in terms of s 104(4)(b) of the Act to take
or take part in collective
job action in defence of an immediate
threat to the existence of that Managerial Workers Committee.


In
this regard the learned Chairman of the Labour Tribunal concluded:-



“ It
is clear that the respondent’s conduct which barred and hindered
the appellant and his colleagues from forming and belonging
to a
managerial workers committee constituted an immediate threat to the
existence of the interim managerial workers committee.



That being the case the appellant
and his colleagues responded by embarking on collective job action
from the 23rd to the 29th June.
The protest was among other things
in defence of the existence of the managerial workers committee.”



I find myself in agreement with
the above observation of the learned Chairman. I am satisfied that
there is no substance in the
appellant’s submission that at the
time of the collective job action the Managers Workers Committee was
not in existence by reason
of the purported suspension of such
committee by the Labour Relations Officer, who in fact had no
jurisdiction over the matter.


In
the result the appeal is dismissed with costs.






Cheda Jaand
Malaba JA concurred






Atherstone
& Cook
,
appellant's legal practitioners