Court name
Supreme Court of Zimbabwe
Case number
SC 76 of 2005
Civil Appeal 9 of 2004

Marondera Rural District Council v Morris and Others (09/04) (SC 76 of 2005, Civil Appeal 9 of 2004) [2006] ZWSC 76 (15 January 2006);

Law report citations
Media neutral citation
[2006] ZWSC 76













REPORTABLE
ZLR (64)


Judgment
No. SC. 76/05


Civil
Appeal No. 09/04








MARONDERA
RURAL DISTRICT COUNCIL v





DOUGLAS
MORRIS AND TWENTY-SIX OTHERS








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, SANDURA JA & MALABA JA


HARARE,
OCTOBER 18, 2005 & JANUARY 16, 2006








T
Batasara
, for the appellant





L
Uriri
, for the respondents





SANDURA
JA: This appeal arose out of a labour dispute which was decided by
the Labour Court in favour of the respondents.





The
relevant facts are as follows. The respondents (“the employees”)
were employed by the appellant (“the Council”).
On 6 March
2000 the employees, acting in terms of s 104(2) of the then
Labour Relations Act [
Chapter 28:01]
(“the Act”), gave to the Council fourteen days’ written notice
of their intention to resort to collective job action if their
grievances were not addressed.





The
notice specified four grievances, as follows –






“* Employees want 100% year
2000 salary increment … .







* Employees who were underpaid
January to March 1994 need their back pay … .







* The four days’ pay that was
withheld after exaggeration that employees went on industrial action
must be refunded … .







* House Rents – employees are
not satisfied with criteria used in dictating (
sic)
$30.00 per room from all employees …”.






In
an attempt to address the above grievances, the Council held meetings
with the employees’ representatives on 10 and 16 March
2000, and
with all the employees on 18 March 2000. The minutes of the
meeting held on 10 March 2000 are not part of the
record in this
appeal, but the minutes of the other two meetings are. However, the
accuracy of the minutes of the meeting held
on 18 March 2000 was
in dispute.






According to the Council’s
minutes, which for some unknown reason were not signed by the person
who chaired the meeting on 18 March
2000, the parties reached an
agreement in terms of which the employees undertook not to go ahead
with the proposed collective job
action on 20 March 2000. The
relevant part of the minutes reads:






“After a lengthy debate the
workers agreed to the Council’s request that the already awarded
30% salary increase by Council form
part of a further salary increase
to be discussed in June 2000 and be paid out in July backdated to
January 2000. It was agreed
that in view of the above agreement the
intended strike on 20/03/00 be terminated.”





However,
according to the minutes prepared by the employees no agreement was
reached by the parties at the meeting held on 18 March
2000.
The relevant part of the minutes reads as follows:






“The Council Vice Chairman told
the house that after the review of (the) budget in June 2000, if
Council managed to have a surplus
of ten dollars that ten dollars
shall be shared equally among Council employees.





The
Council Chairman refused to promise employees the percentage which
they are expecting the Council to award employees after the
review of
the budget in June 2000.





The
employees raised their hands to ask, hence the Council Chairman
declared the meeting closed without any agreement signed between
Council and its employees.





The
meeting ended unceremoniously closed at 1.30 pm.”





In
passing, it is pertinent to note that the only issue that was
discussed at the three meetings was the salary increment demanded
by
the employees. That was obviously the most important of all the
issues.





Subsequently,
on 20 March 2000 the employees turned up for work. However,
after working for a few hours, and having been
addressed by a
Mr Nyadenga (“Nyadenga”), an official of the Zimbabwe Rural
District Councils Workers’ Union (“the Union”),
the employees
commenced their collective job action. They locked up all the gates
to the Council’s offices and turned away many
ratepayers who wanted
to settle their accounts with the Council.





Thereafter,
the Council wrote to all the employees informing them that their
grievances were still being considered, and appealing
to them to
resume their duties by 7 April 2000. Only seven employees
turned up for work as a result of that plea, but the
rest stayed
away.





Consequently,
on 10 April 2000 the Council wrote to the striking workers as
follows:






“Dear Sir,






RE: SUSPENSION FROM DUTY
PENDING DISMISSAL







In terms of Statutory Instrument
No. 371 of 1985, section 3(a), please be advised that
Council has suspended you from duty
pending dismissal with immediate
effect. The grounds upon which the suspension are based (
sic)
are as follows –







(a) On the 18th
of March 2000 Council held a meeting with all the workers so as to
discuss on the year 2000 wage and salary increments. At this
meeting all the workers agreed with Council that the 30% wage and
salary increment awarded by Council in January 2000 be regarded
as
the negotiated wage for (the) year 2000 on condition Council was
going to consider further wage and salary increases which will
be
backdated to January 2000. As a result of this agreement you had
also agreed and promised Council that you were no longer going
to go
on a collective job action on the 20
th
of March 2000 as intended. However, on Monday the 20
th
of March 2000, instead of reporting for duty, you chose to go on
strike and thereby disrupted Council operations. Council invited
you to have this matter discussed further through the Labour Office
but you refused. Further to that Council wrote to you appealing
that you report for duty by 7 April at 0800 hours and again
you did not turn up. As a result Council is now left with
no option
but to suspend you from duty pending dismissal.






(b) During
the period of suspension you shall not be entitled to any
remuneration and/or allowance.”





On
the same day, i.e. 10 April 2000, the Council wrote to the
Principal Labour Officer, Mashonaland East, seeking the authority
to
dismiss all the employees on strike. The letter, in relevant part,
reads as follows:






“Council
would like to apply for authority to terminate contracts of
employment of all employees participating in the ongoing collective
job action in terms of Statutory Instrument No. 371 of 1985,
Labour Relations (General Conditions of Employment) (Termination
of
Employment) Regulations of 1985 section 3 subsections (a), (b)
and (f) (
sic).







Council would like to dismiss the
following employees (see attached list) since we believed that they
are guilty of acts and or conducts
(
sic)
inconsistent with the fulfilment of the express or implied conditions
of their contracts as follows –







(i) … the employees and Council
had agreed to terminate the strike … . On Monday 20
th March
2000 all employees briefly reported for duty and acting under the
influence of their Union representative, Mr Nyadenga,
decided to
go ahead with their intention to go on strike. The employees’
conduct clearly shows that at a meeting held on the
18
th
of March they failed to negotiate in good faith and as such we feel
they are guilty of an offence under s 3(a).







(ii) … By refusing to holding
(
sic)
further negotiations in the absence of their Unionist the workers
showed no respect of their employer whom they have entered into
contracts of employment with and not the Union. Hence, we believe
they are also guilty of an offence by breaching section 3(a)
in
that they acted in a manner inconsistent with the fulfilment of the
express or implied conditions of their contracts of employment.






(iii) …
the workers … locked all entrance gates to the Council Offices in
order to prevent management from attending to clients
coming to
Council … . They also turned away numerous ratepayers who had
intended to settle their accounts with Council. This
resulted in
Council losing substantial sums of revenue … . As a result of
this action we also believe these employees are guilty
of an offence
under section 3(a).






(iv) Council wrote to all
striking workers appealing to them to report for duty by the 7
th
of April 2000 … .







A total of seven employees
responded to the plea by Council and the rest of the employees
decided to continue with the strike …
. We believe these workers
(who continued with the strike) are also guilty of an offence under
section 3(b) since they wilfully
disobeyed to follow to a lawful
order (
sic)
given to them by Council.







(v) By failing to report for duty
for a period of more than five days without a reasonable excuse we
believe the workers are also
guilty of an offence under section 3(f)
… .”





Subsequently,
the Council’s application for the authority to dismiss the
employees was heard by a labour relations officer on
15 June,
13 July and 10 August 2000. And on 29 September 2000
the application was granted. In granting the
application, the
labour relations officer said:






“It was not disputed in (at)
the hearing by (the) respondents that an agreement had been reached
on 18 March 2000 to call off
the intended strike of 20 March
2000. It was also not disputed by (the) respondents that they
briefly reported for duty on
20 March 2000 and then downed
tools. It seems to (me) that the parties had reached an agreement
which was going to lead to
the final settlement of the dispute after
further review in June 2000. That agreement was binding on the
parties and failure to
honour the agreement amounted to conduct or
omission inconsistent with the express or implied conditions of the
respondents’ contract(s)
… .





It
does not make sense for (the) respondents to say that they downed
tools on 20 March 2000 because their grievances had not
yet been
resolved when they had entered into an agreement with Council on
18 March 2000 and agreed to call off the intended
strike … .”





Following
the determination by the labour relations officer, the matter was
referred to a senior labour relations officer who dismissed
the
appeal. The employees then appealed to the Labour Relations
Tribunal (now the Labour Court) and were successful.





The
Labour Court held that the employees had embarked upon a lawful
collective job action as they had given the requisite notice
to the
Council in terms of s 104(2) of the Act. It also held that the
Council should not have proceeded in terms of the Labour
Relations
(General Conditions of Service) (Termination of Employment)
Regulations, 1985, published in Statutory Instrument 371 of
1985
(“the Regulations”) (now repealed), but should have applied for
an order in terms of s 106(1) of the Act, calling upon
the
employees to show cause why a disposal order should not be made in
terms of s 107 of the Act.





Aggrieved
by that decision, the Council appealed to this Court.





In
my view, there are four main issues to be determined by this Court.
The first is whether, at the meeting held on 18 March
2000, the
parties reached an agreement in terms of which the employees agreed
to call off the collective job action planned for 20 March
2000.





The
second is whether the collective job action was lawful.





The
third is whether the grounds on which the dismissal of the employees
was sought were different from the grounds on which the
employees had
been suspended.





And
the fourth is whether, instead of dealing with the employees in terms
of the Regulations, the Council should have applied to
the Minister
of Public Service, Labour and Social Welfare for an order in terms of
s 106(1) of the Act, calling upon the employees
to show cause
why a disposal order should not be made in relation to the collective
job action.





I
shall deal with the four issues in turn.





DID
THE EMPLOYEES AGREE TO CALL OFF THE COLLECTIVE JOB ACTION?





As
already stated, the Council’s minutes of the meeting held on
18 March 2000 clearly indicate that the employees agreed
to call
off the collective job action which had been planned for 20 March
2000.





On
the other hand, the minutes prepared by the employees indicate that
no such agreement was reached, and that the meeting in question
ended
unceremoniously.





However,
it is clear from what the labour relations officer said in her
determination that when the parties appeared before her
the employees
did not dispute the fact that on the day in question they had agreed
to call off the collective job action. The relevant
part of the
determination reads as follows:






“It was not disputed in (at)
the hearing by (the) respondents that an agreement had been reached
on 18 March 2000 to call off
the intended strike of 20 March
2000. It was also not disputed by (the) respondents that they
briefly reported for duty on
20 March 2000 and then downed
tools.”





In
the circumstances, the question posed above is answered in the
affirmative.





WAS
THE COLLECTIVE JOB ACTION LAWFUL?





I
have no doubt in my mind that it was not. I say so because
s 104(3)(a)(ii) of the Act, which was in force at the relevant
time, but which was repealed by the Labour Relations Amendment Act
No. 17 of 2002, which came into operation on 7 March
2003,
provided as follows:






“Subject to subsection (4),
no collective job action may be threatened, recommended or engaged in
by –






(a) any employees, workers
committee or trade union –






(i) …





(ii) unless
redress in respect of the dispute concerned has been sought in terms
of Part XII; or …”.








Subsection (4)
of s 104 of the Act is irrelevant to the collective job action
in which the employees participated.





At
the relevant time, Part XII of the Act consisted of sections 93
to 101, and dealt with the determination of disputes and
unfair
labour practices by labour relations officers, senior labour
relations officers and the Labour Relations Tribunal.





In
the present case, it is clear that before resorting to the collective
job action on 20 March 2000 the employees did not
seek redress
in respect of the dispute concerned in terms of Part XII of the
Act. That being the case, the inescapable conclusion
is that the
collective job action was clearly unlawful.





While
it is correct that the Council did not rely upon the provisions of
s 104(3)(a)(ii) of the Act in the court
a quo,
it was entitled to raise the point for the first time on appeal.
The general rule is that a point of law may be raised for the
first
time on appeal provided that it is covered by the pleadings and its
consideration would not be unfair to the other party.





As
INNES J (as he then was) said in
Cole
v Union Government

1910 AD 263 at 272:






“The duty of an appellate
tribunal is to ascertain whether the Court below came to a correct
conclusion on the case submitted to it.
And the mere fact that a
point of law brought to its notice was not taken at an earlier stage
is not in itself a sufficient reason
for refusing to give effect to
it. If the point is covered by the pleadings, and if its
consideration on appeal involves no unfairness
to the party against
whom it is directed, the Court is bound to deal with it. And no
such unfairness can exist if the facts upon
which the legal point
depends are common cause, or if they are clear beyond doubt upon the
record, and there is no ground for thinking
that further or other
evidence would have been produced had the point been raised at the
outset.”





In
the present case, as already stated, it is clear beyond doubt that
before resorting to collective job action the employees did
not seek
redress in respect of the dispute between them and the Council in
terms of Part XII of the Act. In addition, there
is no basis
for thinking that further evidence would have been produced by the
employees had the point of law been raised in the
court below.





WERE
THE GROUNDS ON WHICH THE DISMISSAL OF THE EMPLOYEES WAS SOUGHT
DIFFERENT FROM THE GROUNDS ON WHICH THE EMPLOYEES HAD BEEN SUSPENDED?





This
issue is important because in
Standard
Chartered Bank Zimbabwe v Matsika

1996 (1) ZLR 123 (S), this Court held that where an application for
an order terminating a contract of employment is made forthwith
after
the suspension of the employee, the ground on which the application
is based should not be different from the ground on which
the
employee was suspended.





In
the present case, the letter of suspension and the application for
authority to dismiss the employees, setting out the grounds
relied
upon, have already been set out in this judgment.





Although
both documents were not as elegantly worded as they might have been
if they had been prepared by a legal practitioner,
a perusal of both
documents indicates that the essence of the main ground relied upon
in the letter of suspension and in the application
for the authority
to dismiss the employees was the allegation that the employees were
guilty, in terms of section 3(a) of the
Regulations, of an act,
conduct or omission inconsistent with the fulfilment of the express
or implied conditions of their contracts
of employment, in that,
having given an undertaking to the Council that they would call off
the proposed collective job action, they
subsequently reneged on that
agreement for no good reason.





In
my view, the fact that the application for the authority to dismiss
the employees relied upon additional grounds, such as wilful
disobedience to a lawful order and absence from work for five or more
working days without reasonable excuse, which were not in the
letter
of suspension, makes no difference.





In
any event, the main ground on which the labour relations officer
authorised the dismissal of the employees was the fact that
they had
reneged on their undertaking to the Council that they would call off
the collective job action. The labour relations officer
concluded
that such conduct was inconsistent with the fulfilment of the express
or implied conditions of the employees’ contracts
of employment.
I entirely agree with that conclusion.





In
the circumstances, although the application for the authority to
dismiss the employees included grounds not set out in the letter
of
suspension, the main ground relied upon in the letter of suspension
was the same as the main ground relied upon in the application.





WAS
THE COUNCIL OBLIGED TO APPLY FOR A SHOW CAUSE ORDER IN TERMS OF
S 106(1) OF THE ACT?





I
have no doubt in my mind that the answer to this question is in the
negative. A similar question was considered by this Court
in
Cargo
Carriers (Pvt) Ltd v Zambezi & Ors

1996 (1) ZLR 613 (S), and the Court concluded that the employer in
that case could have applied for a show cause order in terms of
s 106(1) of the Act or, alternatively, it could have proceeded
in terms of the Regulations and applied to a labour relations
officer
for the authority to dismiss the workers. At 619 D-G GUBBAY CJ
said the following:






“In considering the
applicability of the Code of Conduct to the mass collective job
action resorted to by 322 employees …, it is
clear to me that the
provisions of the Labour Relations Act, headed ‘Collective Job
Action’, were designed to deal with precisely
the situation that
confronted the appellant. It should have waited for the issue of a
show cause order. If the Minister had refused
to grant it, the
appellant, as a person aggrieved, could have appealed to the Labour
Relations Tribunal pursuant to s 110(1)(a)
of the Act. Had the
Minister issued it, the appropriate authority on the return day would
have been empowered to dismiss as many
of the 322 employees as found
warranted.





Alternatively,
it was open to the appellant … to have suspended the 322 employees
without pay on the ground specified in either
subs (a) or (b) of s 3
of the Labour Relations (General Conditions of Employment)
(Termination of Employment) Regulations 1985
(SI 371 of 1985),
and applied to a labour relations officer for an order or
determination terminating the contract of employment
of each of
them.”





In
the circumstances, the Labour Court seriously misdirected itself when
it determined that the Council should have applied for
an order in
terms of s 106(1) of the Act, calling upon the employees to show
cause why a disposal order should not be made in
relation to the
collective job action, instead of proceeding in terms of the
Regulations.





In
addition, the Labour Court erred when it concluded that the
collective job action was lawful. As already indicated, the
collective
job action was undoubtedly unlawful. In my view,
participating in an unlawful collective job action constitutes
conduct inconsistent
with the express or implied conditions of the
contract of employment.





In
the circumstances, the following order is made –






1. The appeal is allowed with
costs.







2. The order of the court a quo
is set aside, and the following is substituted –







“The appeal is dismissed with
costs”.















CHIDYAUSIKU
CJ: I agree.














MALABA
JA: I agree.















Madanhi & Associates,
appellant's legal practitioners


Honey
& Blanckenberg
,
respondents' legal practitioners