Court name
Supreme Court of Zimbabwe
Case number
SC 89 of 2005
Civil Appeal 31 of 2005

Net One Cellular (Pvt) Ltd. v Communications and Alllied Workers Union of Zimbabwe and Others (31/05) (SC 89 of 2005, Civil Appeal 31 of 2005) [2006] ZWSC 89 (08 March 2006);

Law report citations
Media neutral citation
[2006] ZWSC 89


REPORTABLE (77)














Judgment
No. SC 89/05


Civil Appeal No. 31/05








NET*ONE CELLULAR
(PRIVATE) LIMITED v





(1) COMMUNICATIONS
AND ALLIED SERVICES WORKERS UNION OF
ZIMBABWE


(2) FIFTY-SIX
NET*ONE EMPLOYEES








SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU CJ, CHEDA
JA & ZIYAMBI JA


HARARE, SEPTEMBER 26,
2005 & MARCH 9, 2006








E T Matinenga,
for the appellant





T Biti, for the
respondents






CHIDYAUSIKU CJ: This is an appeal from the Labour Court in terms
of s 92D of the Labour Relations Act [Chapter 28:01],
hereinafter referred to as “the Act”. The judgment being
appealed against is in respect of an appeal from a determination
of
an arbitrator to the Labour Court in terms of s 98(10) of the
Act.





The facts of this
case, which are common cause, are as follows –





On 20 May 2004
employees of the appellant, including the second respondents
(hereinafter referred to as “the employees”)
gave notice of an
intention to go on strike due to some labour disputes. The
employees and the appellant engaged in discussions,
which failed to
resolve the matter. On 15 June 2004 the employees went on
strike. Thereafter the appellant commenced disciplinary
proceedings
in respect of each of the employees. As a result of the
disciplinary hearings, fifty-six employees were dismissed from
employment.






The first respondent then filed a complaint of unfair dismissal of
the employees with a labour officer. The labour officer met
the
parties but failed to settle the matter through conciliation. The
labour officer then referred the matter to compulsory arbitration
in
terms of s 93(5) of the Act. The arbitrator ruled in favour of
the employees and ordered that the appellant reinstate the
fifty-six
employees. The appellant then appealed to the Labour Court.






The Labour Court
upheld the arbitrator’s determination. In particular the Labour
Court held that the arbitrator was correct
in holding that the
appellant had an applicable Code of Conduct (“the Code”) and that
the dispute between the appellant and the
employees should have been
resolved in terms of Part XIII of the Act, as provided for in
the Code. The appellant dismissed
the employees in terms of s 12B
of the Act, as read with Statutory Instrument 130 of 2003.





The appellant now
appeals against the decision of the Labour Court upon a number of
grounds set out in the notice of appeal, but
which may conveniently
be summarised as follows –






(a) The Labour Court erred in failing to determine whether the
collective job action was lawful or not;







(b) The Labour Court erred in upholding the arbitrator’s
determination that the appellant had an applicable Code of Conduct;







(c) The Labour Court erred in upholding the arbitrator’s
determination that the dispute between the appellant and the
employees
should only have been determined in terms of Part XIII
of the Act and not in terms of s 12B of the Act; and





(d) Both the Labour
Court and the arbitrator’s awards were invalid by reason of a
failure to provide for damages as an alternative
to reinstatement.






Mr Biti,
for the respondents, has also raised a preliminary point of
jurisdiction. He contends that this Court has no jurisdiction to
hear
this appeal.





On the basis of the
above contentions of the appellant and Mr Biti’s
submission, I consider the following to be the issues that fall for
determination –






(1) Does this Court have jurisdiction to hear this matter?;







(2) Were the fifty-six employees properly cited?;







(3) Was the collective job action by the employees lawful?;







(4) Did the appellant follow the correct procedure in dismissing the
employees?; and







(5) Were the arbitrator and the Labour Court required as a matter of
law to award damages as an alternative to reinstatement?.






I will now consider the above issues in turn.





(1) DOES THIS COURT
HAVE JURISDICTION TO HEAR THIS APPEAL?






The main thrust of Mr Biti’s submission in this
regard was that the real judgment that is sought to be impeached in
this appeal is not that of the Labour Court
but rather the award made
by the arbitrator. He submitted that the arbitration award is a
true arbitration award in the technical
sense of the word, covered
and protected by the Arbitration Act, No. 6 of 1996. He
further submitted that, in terms of Article 34
of the
Arbitration Act, an arbitration award can only be set aside by a
court if the court finds that –






(a) the subject-matter of the dispute is not capable of settlement by
arbitration under the law of Zimbabwe; or







(b) the award is in conflict with the public policy of Zimbabwe.






He relied for this proposition on Article 34 of the
Arbitration Act, which provides in the relevant part as follows:






“Article 34 Application for setting aside as exclusive
recourse against arbitral award





(1) Recourse to a
court against an arbitral award may be made only by an application
for setting aside in accordance with paragraphs
(2) and (3) of this
Article;





(2) An arbitration
award may be set aside by the High Court only if –






(a) …





(b) the High Court
finds that –






(i) the subject-matter of the dispute is not capable of settlement by
arbitration under the law of Zimbabwe; or





(ii) the award is in
conflict with the public policy of Zimbabwe; or






(3) …”.







A proper reading of Article 34 of the Arbitration Act, in my
view, reveals that it prescribes the power of the High Court
in
relation to the setting aside of arbitration awards. A litigant who
wishes to set aside an arbitral award by way of an application
to the
High Court has to satisfy the stringent requirements of Article 34 of
the Arbitration Act.





In my view,
Article 34 has no application to an appeal against an arbitral
award to the Labour Court in terms of s 98(10)
of the Act.
Section 98(10) provides:






“98 (10) An appeal on a question of law shall lie to the Labour
Court from any decision of an arbitrator appointed in terms of
this section.” (the emphasis is mine)






In terms of s 98(10)
of the Act, all that an appellant who wishes to impeach an arbitral
award by way of appeal to the Labour
Court has to do to confer
jurisdiction on the Labour Court is to establish that the litigant is
appealing on a point of law.





Once a matter has
been heard by the Labour Court, an appeal lies to this Court in terms
of s 92D of the Act. The origin of
the judgment being appealed
against is irrelevant. Section 92D provides as follows:






“92D Appeals against decisions of Labour Court





An appeal on a
question of law shall lie to the Supreme Court from any
decision of the Labour Court.” (the emphasis is mine)






The language of both
s 98(10) and 92D of the Act could not be clearer. It confers
on the Labour Court and on this Court jurisdiction
to hear an appeal
impeaching an arbitral award on a question of law. The only
limitations imposed by ss 92D and 98(10) are that
the appeals must be
on questions of law.





It has not been
argued that the appeal from the arbitrator’s determination to the
Labour Court and the appeal to this Court were
not on questions of
law. The restrictions found in Article 34 of the Arbitration
Act only apply to the High Court.





I am therefore
satisfied that there is no merit in Mr Biti’s
submission that this Court has no jurisdiction to hear this appeal.






(2) WERE THE FIFTY-SIX DISMISSED EMPLOYEES PROPERLY CITED?






There is no room for doubt that the fifty-six dismissed employees
have a substantial interest in this matter. Any decision of
the
arbitrator, the Labour Court and this Court will have a substantial
impact on the interests of the fifty-six employees. Because
the
employees have a substantial interest in the outcome of this matter
they have every right to be parties to this case. Indeed,
if the
employees had not been cited, it would have been proper for the
arbitrator or the Labour Court to have ordered, mero motu, the
joinder of the fifty-six dismissed employees.





I accordingly see no
merit in the contention by the appellant that the fifty-six dismissed
employees should not be party to these
proceedings.






(3) WAS THE COLLECTIVE JOB ACTION BY THE FIFTY-SIX DISMISSED
EMPLOYEES LAWFUL?







The issue of the legality of the collective job action was, as the
appellant correctly submitted, sidestepped by the Labour Court.
The
Labour Court should not have sidestepped the issue. In my view, if
it had not done so, it most probably would have come to
a different
conclusion.





In my view, the issue
of the legality of the collective job action is relevant to the issue
of the legality or otherwise of the
dismissal of the employees.





The appellant
dismissed the employees for absence from work for five or more
consecutive days without reasonable excuse or cause.
The absence
from work by reason of participation in lawful industrial action
would have given an adequate defence to the charge
preferred against
the employees. Participation in an illegal collective job action
does not provide a defence to the charge faced
by the employees.





It is common cause
that the employees notified the appellant in writing of their
intention to go on strike within fourteen days
by letter dated 20 May
2004. The reasons for the intended strike are set out in the
letter, which reads:






“RE: FOURTEEN (14) DAYS NOTICE TO EMBARK ON JOB ACTION BY NET
ONE WORKERS





The above mentioned
subject refers.





The fourteen (14) days
notice is issued by (the) Communications and Allied Services Workers
Union of Zimbabwe (CASWUZ) in terms of
the Labour Act [Chapter 28:01]
of 2002, section 104 subsection (1) and subsection (4)(b)
which read:






Subsection (1): Subject to this Act all employees, workers
committees and trade unions shall have the right to resort to
collective
job action to resolve disputes.





Subsection (4)(b):
Nothing in subsection (1), (2) or (3) shall be deemed to prevent
collective job action from being resorted
to in defence of am
immediate threat to the existence of a workers committee or a
registered trade union.






Reasons for taking
job action in Net-One






- Net One Management’s refusal to engage and negotiate with
employee representatives for the second quarter of 2004 as agreed to.







- Refusing to respond to employees’ request for works council
meetings.






  • Unwarranted
    victimization of worker representatives.”







The letter was
addressed to the General Manager of the appellant and written by the
deputy general secretary of the first respondent,
obviously acting
for and on behalf of the employees.





Following this
letter, negotiations between the appellant and the respondents
commenced and continued for some time. The date
of the commencement
of the collective job action, i.e. 3 June 2004, elapsed while
the parties were still engaged in negotiations.
Nothing happened on
that day.





On 15 June 2004
the employees went on strike. The reasons for the strike are set
out in a letter dated 17 August 2004.
The letter is addressed
to Minister Mutimhiri and sets out the reasons for the
collective job action. It reads as follows:






“SUBJECT: REQUEST FOR ASSISTANCE










We as Net One employees
do hereby seek your assistance in our case, as stated below:






1) We are 56 professional employees out of about 100 who are
apparently dismissed from employment for what our Management is
referring
to as a political stance, siding (with) the MDC.





2) On 15th
of June 2004 we embarked on a job action collectively for the
following reasons –






(i) Reneging of Management on salary negotiations;





(ii) Corrupt activities
of Management;





(iii) Imposition of
Conditions of Service without involving employees;





(iv) Victimisation of
employees which led to the resignation en-masse of the Workers’
Committee.






3) After the
resignation of the Committee we approached our Workers’ Union –
(the) Communications and Allied Services Workers’
Union – for
advice.






The Union informed us that they had also tried to engage our
Management in talks but in vain. The only option left was to try to
bring the Management to the negotiating table through the Ministry of
Labour’s intervention (conciliatory hearings).





Whilst the Ministry of
Labour was trying to solve the issues, our Management kept on
postponing the conciliatory hearings whilst at
the same time
politicizing the issue, saying we were MDC sympathisers. We were so
troubled by this, since we strongly believe that
this is a purely
labour issue and does not need all this politicking.







4) The Management went on to suspend and dismiss us without pay and
benefits before the issue was resolved.





5) It is our desire to
have Net One run professionally and efficiently rather than the
present situation where Econet and Telecel
have distinct advantages
over us.







We feel Net One can contribute immensely to the revival of the
economy of (if?) the Management is professional.







6) We will therefore appreciate mostly if you can mediate and help
our case have a deserved hearing.”






It is significant
that the reasons for the collective job action set out in the above
letter are different from those set out in
the notice of intention to
embark on collective job action. This is in clear violation of
s 104 of the Act. It is also quite
clear that the employees
did not comply with the requirements of s 104 of the Act in a
number of respects, before embarking
on the collective job action.
Section 104 of the Act sets out the procedures to be complied
with by employees intending to
embark on collective job action. It
provides thus:






“104 (1) Subject to this Act, all employees, workers committees
and trade unions shall have the right to resort to collective
job
action to resolve disputes of interest.





(2) Subject to
subsection (4), no employees, workers committee, trade union,
employer, employers organisation or federation
shall resort to
collective job action unless –






(a) fourteen days’ written notice of intent to resort to such
action, specifying the grounds for the intended action, has been
given –






(i) to the party against whom the action is to be taken; and





(ii) to the appropriate
employment council; and





(iii) to the
appropriate trade union or employers organisation or federation in
the case of members of a trade union or employers
organisation or
federation partaking in a collective job action where the trade union
or employers organisation or federation is
not itself resorting to
such action; and






(b) an attempt has been made to conciliate the dispute and a
certificate of no settlement has been issued in terms of section
ninety-three.”






The Act provides that
fourteen days’ written notice of an intended industrial action be
given to the employer.





The employees did not
give the requisite written notice of their intention to go on strike
on 15 June 2004. The notice given
on 20 May 2004 had
expired and could not be carried forward indefinitely. See Moyo
and Ors v CA Batteries
SC 66/02.





The reasons for the
collective job action given in the letter to Minister Mutimhiri
for embarking on the collective job action
on 15 June 2004 are
different from the reasons given in the notice of 20 June 2004.
This is a clear contravention of
s 104(2)(a). Clearly, the
reasons given to Minister Mutimhiri should have been
communicated to the appellant before the
commencement of the
collective job action, as is required by the Act.





There was no
certificate of no settlement before the industrial action was
commenced, as is required by s 104(2)(b).





I am satisfied,
therefore, that the employees did not comply with the requirements of
s 104 of the Act before embarking on
the collective job action.
The failure to comply with s 104 of the Act rendered the
collective job action unlawful. The
employees’ collective job
action was, therefore, patently unlawful for want of compliance with
s 104 of the Act.





On this basis, the
arbitrator clearly misdirected herself when she held that the
collective job action was lawful. Her judgment
in part reads:






“The employees were
absent for five or more consecutive days, however, with a reasonable
cause. The withdrawal of service by the
employees (was) intended to
persuade the employer to accede to some demands. This concerted
action which is protected in terms
of section 104(1) and the
notice should be considered as reasonable. The legality of the
action is determined in terms of
section 106 and section 107
where the Labour Court is empowered to order as they did but in terms
of section 107(3)(a).
Section 12B does not address
collective job actions. The initiative should come from the
Minister or through an application
made by the affected person. The
arbitrator does not have the jurisdiction to declare or accept the
verdict in the absence of due
process.





The dismissal was
unfair since (the) employer was notified of the collective job
action, hence the absence had a reasonable cause.”






The Labour Court did
not endorse this misdirection of the arbitrator. It merely
commented that the reasoning of the arbitrator
in this regard was
suspect. The reasoning of the arbitrator is not only suspect, it is
confused and her conclusion is clearly wrong.





However, the Labour
Court came to the same conclusion as the arbitrator but for different
reasons. The Labour Court, as I have
said, sidestepped the issue of
the legality of the collective job action by the employees. The
court a quo set aside the dismissal of the employees by
the appellant via a different reasoning process. I shall revert to
this aspect of the
matter hereunder.






(4) DID THE APPELLANT FOLLOW THE CORRECT PROCEDURE IN DEALING WITH
THE DISMISSAL OF THE EMPLOYEES?






Having concluded that the collective job action by the employees
was unlawful, the next issue that falls for determination is whether
in dismissing the employees the appellant followed the correct
procedure.





The arbitrator’s
conclusion was predicated on her finding that the collective job
action was lawful. In other words, the employees
had a reasonable
excuse or cause to absent themselves from work for a period in excess
of five consecutive days. She concluded
that the employees absented
themselves from work in pursuance of a lawful collective job action.





The Labour Court, as
I have already indicated above, did not follow the reasoning of the
arbitrator in arriving at the same conclusion.
The Labour Court
sidestepped the issue of the legality or otherwise of the collective
job action. It confirmed the arbitrator’s
determination on the
basis that the appellant had not followed the correct procedure when
it dismissed the employees.





The appellant charged
the employees individually with absence from work for five
consecutive days without reasonable excuse or cause.
I pause to
point out that the employees were not charged with taking part in or
inciting an unlawful collective job action, a charge
that falls
squarely under clause 8 of the Code The employees were charged
with absence from work for more than five consecutive
days, an
offence under clause 2 of the Code and s 12B of the Act.
Disciplinary hearings were conducted in respect of
each individual
employee. At the conclusion of the disciplinary hearing each of the
fifty-six employees was found guilty and dismissed.






It was not in dispute that due process was followed in respect of
each of the employees. In this regard, the appellant, however,
purported to act in terms of s 12B of the Act, as read with
Statutory Instrument 130/2002.






It was contended for
the employees, both in the court a quo and before this
Court, that the appellant followed the wrong procedure in dismissing
the employees. In particular, it was argued
that the appellant
should have followed the procedure set out in the Posts and
Telecommunications Sector Employment Code of Conduct
(“the Code”),
which, it was argued, was applicable to this case. It was further
argued for the employees that in terms of the
Code this case should
have been dealt with in terms of Part XIII of the Act and not in
terms of s 12B of the Act. In
other words, it was argued that
the appellant should have applied for a show cause order in terms of
Part XIII of the Act, as
opposed to charging the employees
individually for contravening s 12B of the Act as it did.





On the other hand,
the appellant argued, both in the court a quo and before
this Court, that the Code did not apply to this case. The appellant
argued that there was no Code of Conduct applicable
in this case.
In the absence of an applicable Code of Conduct, the appellant
contended that s 12B of the Act, as read with
Statutory
Instrument 130/2002, was applicable. It is common cause that s 12B
of the Act provides for a situation where no
Employment Code of
Conduct exists and renders absence from work for five days a
dismissible offence.





The Labour Court
accepted the respondents’ submission that there was a Code of
Conduct applicable and that in terms of that Code
of Conduct the
dispute between the parties should have been dealt with in terms of
Part XIII of the Act. The court a quo reasoned and
concluded as follows:






“Second issue





It is common cause that
prior to the Postal and Telecommunications Act [Chapter 12:05]
(hereafter called the PTC Act), the appellant operated as a statutory
body popularly called the PTC. The PTC Act was promulgated
as No. 4
of 2000 broke up the PTC into several entities including the
appellant. In the process the appellant took over some
of the
employees of the PTC. Section 111(4) of the PTC Act reads as
follows:






‘Until such time as conditions of service are drawn up by the
appropriate successor company and the Authority, as the case may
be –






(a) the terms and conditions applicable to the employees of the
Corporation shall continue to apply to every person transferred to
the appropriate successor company as if every such person were
still in the service of the Corporation
.’ (the emphasis is
mine)






The ‘Corporation’
referred to is the PTC. The PTC had a Code of Conduct applicable to
its employees. Therefore that Code,
as provided in the said section
of the PTC Act, continued to apply to the PTC’s members transferred
to the appellant. The appellant
argued that it was a new entity
which was yet to register its own Code. Such a submission flies in
the face of the clear provision
of the PTC Act. I therefore agree
with (the) respondent and find that the Code applied to the members.






Third issue






Part II,
Category 4 of the Code prescribes the penalty of dismissal for
the offences set out therein. However, clause 8
therein reads
as follows:






“Instigating and/or taking part in an unlawful job action – to
be handled in terms of the Labour Relations Act [
Chapter 28:01].






Collective job actions,
whether lawful or unlawful, are covered by Part XIII of the Act.





In other words,
clause 8 of the Code itself incorporates the provisions of
Part XIII of the Act. The Part requires an
employer who wishes
to terminate a strike to apply to the appropriate authority for a
show cause order calling upon the strikers
to show cause why the
strike should not be stopped. If the authority grants the
application, a return day is set when the parties
appear in this
court to argue about the legality and disposition of the strike
including disciplinary action, if warranted, against
the strikers.
(The) appellant did not make use of these provisions. It sought to
hold its own hearings at which the members were
dismissed. This
action violated the clear provisions of Part XIII of the Act as
incorporated in the Code. Accordingly, though
the arbitrator’s
reasoning was suspect, the result of the award was correct in that it
invalidated the unfair dismissals. The
appeal to this court is
therefore unsustainable. Accordingly, the appeal is hereby
dismissed. Each party shall pay its own costs.”






The Labour Court was
probably correct in concluding that the Code applied to this case by
operation of law, namely s 111(4)
of the Posts and
Telecommunications Act.





The appellant in this
regard had argued that a Code of Conduct does not constitute
conditions of service and that it is merely a
legal framework for
regulating the conduct of employees at their work or employment.
The ordinary meaning of “conditions of service”
relates to
salary, pension, leave conditions, etcetera. A Code of Conduct, as
the appellant submitted, relates to the legal framework
that governs
the conduct of employees.






This submission is cogent. However, s 111(4) specifically
provides that the terms and conditions of service of the employees
should remain as if every such employee were still in the service of
the Corporation. When the employees were in the service of
the
Corporation, the Posts and Telecommunications Corporation, they
worked under a Code of Conduct. In the absence of a new Code
of
Conduct, and for the purposes of the existence or otherwise of a Code
of Conduct, the employees are to be treated as if they were
still in
the service of the Corporation and therefore bound by the Code of
Conduct of the Corporation. I, therefore, agree with
the conclusion
that the Code of Conduct is applicable.






However, that is not
the end of the matter. As I have already stated, the employees were
charged with and convicted of absenting
themselves from employment
for a period in excess of five consecutive days without excuse.
Absence from work is a dismissible offence,
not only in terms of
s 12B of the Act, but also in terms of the Code.





Part II
Category 4 of the Code prescribes the penalty for offences set
out therein. In particular, clause 2 provides
that absence
from work for five days is a dismissible offence.






“2. Absence from work for five or more consecutive days without
permission or reasonable excuse” is a dismissible offence.














Clause 8, cited
above, provides that instigating and/or taking part in an unlawful
job action should be handled in terms of
the Labour Relations Act.
In my view, clause 8 of the Code does not bar the appellant from
charging employees with the offence
of absence from work without
cause in terms of clause 2 of the Code. The employees in
casu
were not charged with instigating or taking part in an
unlawful collective job action, which would have required the matter
to be
dealt with in terms of clause 8 of the Code and Part XIII
of the Act.






This Court has held that proceeding in terms of Part XIII of the
Act does not bar an employer from taking disciplinary action
against
an employee in terms of the Code. In the case of Zimbabwe Iron &
Steel Co Ltd v Dube and Ors
1997 (2) ZLR 172 (S), this Court
held:






“… a disposal order in terms of s 107(5)(a) of the Labour
Relations Act in which the dismissal of striking employees had
not
been ordered by the appropriate authority, does not bar the employer
from subsequently taking disciplinary action against such
employees
under a registered code of conduct which makes it a dismissible
offence to take illegal industrial action. There is no
provision in
Part XIII of the Act to the effect that a disposal order grants
immunity from the unlawful collective job action
referred to in it.”






By parity of
reasoning, there is nothing in Part XIII of the Act which bars
the appellant from taking disciplinary action against
employees for
absenting themselves from work for a period in excess of five
consecutive days in terms of clause 2 of the Code,
which is
precisely what the appellant did in this case, or in terms of s 12B
where no Code of Conduct exists.





Clause 8 of the
Code, even when correctly invoked, does not grant immunity to the
employees from being disciplined for absence
from duty for a period
in excess of five consecutive days in contravention of clause 2
of the Code or s 12B of the Act.





The appellant
purported to act in terms of s 12B of the Act - s 12B
(2)(b)(v) -, which is identical in the relevant part
-with category 4
clause 2 of the Code. Section 12B(2)(b)v) reads:



“(2) An employee is unfairly dismissed –



(a) …



(b) if, in the absence of an employment code, the employer fails to
show that, when dismissing the employee, he had good cause to
believe
that the employee was guilty of – …






(v) absence from work for a period of five or more working days
without leave for no reasonable cause”.









Thus, in essence, the impugned conduct of the appellant is that it
wrongly cited s 12B of the Act instead of clause 2 of
the
Code. Does such conduct, namely wrongly citing the contravention of
s 12B of the Act instead of clause 2 of the Code
of Conduct
that constitutes a contravention of both provisions, constitute an
unfair labour practice?





Unfair labour
practice by an employer is defined in s 8 of the Act.
Section 8 of the Act reads:






“8 Unfair labour practices by employer





An employer or, for
the purposes of paragraphs (g) and (h), an employer or any other
person, commits an unfair labour practice if,
by act or omission, he
–






(a) prevents, hinders or obstructs any employee in the exercise of
any right conferred upon him in terms of Part II; or





(b) contravenes any
provision of Part II or of section eighteen; or





(c) refuses to
negotiate in good faith with a workers’ committee or a trade union
which has been duly formed and which is authorised
in terms of this
Act to represent any of his employees in relation to such
negotiation; or





(d) refuses to
co-operate in good faith with an employment council or employment
board on which the interests of any of his employees
are represented;
or





(e) fails to comply
with or to implement –






(i) a collective bargaining agreement; or





(ii) a decision or
finding of an employment council or employment board on which any of
his employees are represented; or





(iii) a decision or
finding made under Part XII; or





(iv) any determination
or direction which is binding upon him in terms of this Act; or






(f) bargains
collectively or otherwise deals with another trade union, where a
registered trade union representing his employees exists;
or





(g) demands from any
employee or prospective employee any sexual favour as a condition of
–






(i) the recruitment for employment; or





(ii) the creation,
classification or abolition of jobs or posts; or





(iii) the improvement
of the remuneration or other conditions of employment of the
employee; or





(iv) the choice of
persons for jobs or posts, training, advancement, apprenticeships,
transfer, promotion or retrenchment; or





(v) the provision or
facilities related to or connected with employment; or






(h) engages in
unwelcome sexually-determined behaviour towards any employee, whether
verbal or otherwise, such as making physical
contact or advances,
sexually coloured remarks, or displaying pornographic materials in
the workplace.”






I see nothing in the
above definition of unfair labour practice that renders the failure
to cite the correct provision of the law
in the peculiar
circumstances of this case an unfair labour practice.





The employees failed
to report for duty for a period in excess of five consecutive working
days. Such conduct constitutes a dismissible
offence in terms of
clause 2 of the Code and in terms of s 12B of the Act.
The appellant erroneously cited the Act instead
of the Code. This
is a matter of form and not substance. There is no suggestion that
there was no due process.





I am satisfied that
the appellant did not commit an unfair labour practice when it
dismissed the fifty-six employees. Citation
of the wrong section of
the Act on the facts of this case is not an unfair labour practice.






(5) WERE THE ARBITRATOR AND THE LABOUR COURT REQUIRED AS A MATTER
OF LAW TO AWARD DAMAGES AS AN ALTERNATIVE TO AN ORDER FOR
REINSTATEMENT?







Section 89(2)(c)(iii) of the Act provides that in the exercise
of its functions the Labour Court may order reinstatement or
employment in a job. In particular, the proviso to the above
section provides:






“Provided that any such determination shall specify an amount of
damages to be awarded to the employee concerned as an alternative
to
his reinstatement or employment”.






It is quite clear
from the above section that the Labour Court is enjoined to make an
award of damages as an alternative to reinstatement.





Section 98(9) of
the Act provides:






“(9) An arbitrator appointed by the Labour Court shall, in hearing
and determining any dispute, determine it as if the arbitrator
was
the Labour Court.”







Thus, s 98(9) of the Act places the arbitrator in the same
position as the Labour Court, which is enjoined in s 89 of the
Act to award damages as an alternative to an order for reinstatement.
There is no doubt, therefore, that an arbitrator appointed
in terms
of s 98(9) of the Act is required as a matter of law, namely
s 89 of the Act, to award damages as an alternative
to
reinstatement.






The arbitrator in
this case was not appointed in terms of s 98(9) of the Act as he
was not appointed by the Labour Court.
The appointment was in terms
of s 93(5) of the Act, which provides as follows:






“93 (5) After a labour officer has issued a certificate of no
settlement, the labour officer, upon consulting any labour officer
who is senior to him and to whom he is responsible in the area in
which he attempted to settle the dispute –






(a) shall refer the dispute to compulsory arbitration if the dispute
is a dispute of interest and the parties are engaged in an essential
service; or





(b) may, with the
agreement of the parties, refer the dispute to compulsory
arbitration; or





(c) may refer the
dispute to compulsory arbitration if the dispute is a dispute of
right;







and the provisions of section ninety-eight shall apply to such
reference to compulsory arbitration
.” (the emphasis is mine)







Thus, clearly an arbitrator appointed in terms of s 93 of the
Act is required to comply with s 98, and subs (9)
thereof
places an arbitrator in the same position as the Labour Court, which
in turn is bound by the provisions of s 89 of the
Act that makes
the award of damages compulsory.





Apart from the fairly
clear language of the Act, it could not have been the intention of
the legislature to make s 89 of the
Act applicable to an
arbitrator appointed in terms of s 98(9) of the Act but not
applicable to an arbitrator appointed in terms
of s 93(5) of the
Act.




In
the result, I am satisfied that the arbitrator in this case was
required as a matter of law to award damages as an alternative
to
reinstatement. She did not do so and her failure to do so renders
her determination legally deficient; but, as I have already
said, her
determination was seriously flawed by the erroneous conclusion that
the collective job action was lawful.






CONCLUSION






In the result, I would allow the appeal and set aside the
arbitrator’s award. For the avoidance of doubt, it is declared
that
the dismissal of the fifty-six employees was lawful.






The appellant has been substantially successful and is therefore
entitled to costs. The costs of this appeal are awarded against
the
respondents jointly and severally, the payment by one absolving the
other.















CHEDA JA: I
agree.














ZIYAMBI JA: I
agree.














Gula-Ndebele &
Partners
, appellant's legal practitioners


Honey &
Blanckenberg
, respondents' legal practitioners