Court name
Supreme Court of Zimbabwe
Case number
SC 9 of 2009
Civil Appeal 69 of 2002

Carnaud Metal Box (Pty) Ltd v Mwonzora and Others (69/02) (SC 9 of 2009, Civil Appeal 69 of 2002) [2009] ZWSC 9 (18 May 2009);

Law report citations
Media neutral citation
[2009] ZWSC 9


Judgment
No. SC 09/09


Civil
Appeal No 69/02








CARNAUD
METAL BOX (PVT) LTD v BONIFACE MWONZORA
AND TWENTY-THREE OTHERS








SUPREME COURT OF
ZIMBABWE


CHEDA JA, ZIYAMBI JA &
MALABA JA


HARARE, MARCH 3, 2008 &
MAY 19, 2009








E Matinenga, for
the appellant





R. Matsikidza,
for the respondents









CHEDA JA: The appellant is a company which employs the respondents
to do, among other functions, engineering, printing and packaging.

The respondents were employed in the printing department of the
appellant.







Sometime in 2004 the appellant awarded a salary increase to the
engineering department. The respondents were aggrieved by the
fact
that they were not awarded an increment and took the matter up with
their employer. They complained that they felt segregated
as they
were awarded only what had come from bargaining in the printing
industry.







On 28 July 2004, having had no reply from their employer, they
wrote a memorandum to the employer giving notice to go on
unspecified
job action.







On 2 August 2004 a meeting was held between the employer and
members of the Workers Committee. The matter was discussed and
Mr
Randall representing the employer advised that what the respondents
were doing was wrong and that an unconditional retraction
was needed
by the end of Wednesday 4 August before any further dialogue or
discussion could take place.







On 19 August 2004 the respondents carried out their threat because
on that same day the employer, through its manufacturing manager
S
Mudzudzi, issued a verbal order, followed by a written one, ordering
the respondents to return to work immediately and end the
collective
job action which was unlawful. The respondents disobeyed that order.
Later that day a letter of suspension was addressed
to the
respondents by W Ntini, the Human Resources Manager. He also charged
the respondents with persistent refusal to obey lawful
instructions
in terms of s 2 para 2.2.2(d)(1) of the Printing, Packaging and
Newspaper Industry (Code of Conduct) S.I 322/93.







The section provides as follows:







“2.2.2. Type of offences when suspension is mandatory.







An employee must be suspended from work immediately and removed from
his place of work if he has committed or is involved in any
of the
following offences –







(a) - (i)…



(j) insurbodination (if the situation shows signs     of
becoming out of control) and persistent     refusal

to obey lawful instructions.”











The disciplinary hearing was held from 13 September 2004 to 15
September 2004. At the conclusion of the hearing the respondents

were found guilty of engaging in an illegal job action and refusing
to carry out a lawful instruction to go back to work.







On 16 September the employer dismissed the respondents from
employment. The respondents appealed to the Manager (Mr Randall)

without success. The respondents appealed to the labour court
against their dismissal.







The labour court allowed the appeal and set aside the dismissal.







This is an appeal against the labour court’s decision.







The starting point here is the job action. Was it lawful or
unlawful?







On 19 August the various shifts in the printing section engaged in
a collective job action, after which they were suspended because
they
had not followed the proper procedure required for the job action.







Part XII of the Labour Act [Cap 28:01] provides as follows:



“RESOLUTION OF DISPUTES AND UNFAIR LABOUR PRACTICES



93 Powers of labour officers


(1) A
labour officer to whom a dispute or unfair labour  practice has
been referred, or to       whose

attention it  has come, shall attempt to settle it through
           conciliation

or if agreed by the parties, by reference to arbitration.






(2) … .



(3) If the dispute or unfair labour practice is not settled within
thirty days after the labour officer began to attempt
to
settle it under subsection (1), the labour officer shall
issue a certificate of no settlement to the
parties to
the dispute or unfair labour practice.”







Section 104 of the Act provides as follows:



104 Right to resort to collective job action



(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 organization or federation
shall
resort to collective job action unless







(a) …



(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







(c) … .”







In this case both s 94 and s 104 were not followed. That is why
the appellant advised the respondents that the collective job
action
was unlawful.







The respondents also argued that the matter came to the attention
of the designated agent and his efforts to conciliate were
shattered
by the appellant’s human resources manager.







A designated agent is defined as a designated agent of an
employment council in terms of s 63 of the Act.







Section 63 (3a) provides as follows –



“A designated agent of an employment council who meets such
qualifications as may be prescribed shall, in his or her
certification
of appointment be authorized by the registrar to
redress or attempt to redress any dispute which is referred to the
designated
agent or has come to his or her attention where such
dispute occurs in the undertaking or industry and within the area for
which
the employment council is registered and the provisions of part
XII shall apply with the necessary changes to the designated agent
as
they apply to the Labour Officer.”







The respondents argued that a designated agent of an employment
council does meet such a qualification. Section 63(3a) of the
Act
says such a designated agent meets the qualification if in his
certificate of appointment he is authorized by the Registrar.
They
submitted that the powers of the Designated Agent are the same as
those of a labour officer. This submission is not supported
by the
provisions of the Act. The respondents have not shown that the
Designated Agent concerned was vested with such powers at
the time of
his appointment by the Registrar.







On this point the labour court held that an attempt to conciliate
had been frustrated by the Human Resources Manager of the appellant

who said the appellant was capable of resolving the dispute. This
does not meet the requirements of the law.







Assuming that the Human Resources Manager said so, that does not
prevent the respondents from following the proper procedure,

especially when the stage was reached that the dispute was not
resolved. The labour court also held that no specific allegations
or
factors were put to the respondents as to the unlawfulness of the
strike. Even if that is correct, it does not make the strike
lawful,







The respondents were advised that the collective job action was
unlawful. They were ordered both orally and in writing, to return
to
work. They did not do so.







Boniface Mwonzora, the first respondent, was a member of the
Workers Committee.







After he was advised about the unlawfulness of the collective job
action, he did not report back to the other respondents.







The respondents therefore continued the collective job action in
defiance of the lawful order “and persistent refusal to obey
lawful
instructions” as provided in sub(s)(j) of para 2.2.2. of s 2 of
S.I.







The labour court in its judgment stated that the sole issue upon
which the matter would be determined on the merits was whether
the
strike was lawful.







In view of the failure by the respondents to follow the proper
procedure as described above, it is clear that the collective
job
action was unlawful. The respondents raised other issues which they
said were irregularities in the proceedings on which the
court should
set aside the decision of the disciplinary committee.







Even assuming there were such irregularities proved, that does not
make an unlawful job action lawful.







The Chairperson’s casting vote was necessary as part of the
procedure since he was part of the proceedings. The fact that
he was
a representative of the employer does not change the position, and
such argument could be raised also against the representative
of the
employees who was himself an employee and one of the respondents
involved in the dispute. A finding on the illegality of
the
collective job action would still entitle the appellant to hold that
the respondents were guilty of an act of misconduct.







On the issue of suspension, the respondents submitted that it was a
nullity as it did not specify the period of suspension.
The
appellant stated in the suspension letter that it was pending
disciplinary action, which according to the record was instituted

within two days of the suspension. The respondents were suspended on
30 August 2004 and on 2 September 2004 they were charged
with
misconduct.







The respondents, in their submissions raised several issues which
were not raised by the appellant. These issues do not help
in
resisting the appellant’s case that they were discharged on the
basis of a finding that the collective job action was unlawful.







Accordingly, there is merit in the appeal and it is allowed with
costs.







The order of the labour court is set aside and substituted by the
following.







“The appeal is dismissed with costs.”



















MALABA JA: I agree



















ZIYAMBI JA: I agree















Gill, Godlonton & Gerrans, appellant’s legal
practitioners



Donsa Nkomo, respondents’ legal practitioners