Jinon Corporation (Private) Limited & Almid (Private) Limited v E. Mandizvidza & 92 Others & S. Dhliwayo & 119 Others & Minister of Public Service, Labour and Social Welfare N.O.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/01/2022
HARARE, 15 NOVEMBER 2021
CASES NO. LC/H/658/21
---------


IN THE LABOUR COURT OF ZIMBABWE     JUDGMENT NO. LC/H/01/2022

HARARE, 15 NOVEMBER 2021                     CASES NO.  LC/H/658/21

AND 05 JANUARY 2022 						LC/H/659/21

In the matter between: -

JINON CORPORATION (PRIVATE) LIMITED	           Applicant

And

E. MANDIZVIDZA & 92 OTHERS 			        1st   Respondent

And

MINISTER OF PUBLIC SERVICE, LABOUR

AND SOCIAL WELFARE N.O                                           2nd Respondent

ALMID (Private Limited) 				         Applicant

And

S. DHLIWAYO & 119 OTHERS				       1ST Respondent

And

MINISTER OF PUBLIC SERVICE LABOUR AND           2ND Respondent

SOCIAL WELFARE N.O.

Before Honourable B.T. Chivizhe, Judge

For Applicants		- Gundu, Dube & Pamucheche Legal Practitioners

For 1st Respondent	 Ferro Alloy and Mining Workers Union of ZIMBABWE

(FAMWUZ)

For 2nd Respondent -	 No Appearance.

CHIVIZHE, J

The above two matters raise the same issues. The matters were placed before me as applications for disposal orders in terms of Section 107 of the Labour Act [Chapter 28:01]. The matters were both opposed. They were initially set down for hearing on Wednesday 15th November 2021, but due to COVID 19 restrictions the hearing was deferred. The parties were requested to file written submissions. The Applicants and 1st Respondents in both matters duly complied.  No papers were filed on behalf of the 2nd Respondent. This judgment is largely based on the written submissions.

APPLICANTS CASE

The Applicants through their founding Affidavits aver that they are duly incorporated companies operating in the Mining Industry. The 1st Respondents are their employees. The employees through their trade union, Ferro Alloy Mining Workers Union of Zimbabwe (hereafter referred to as FAMWUZ) on the 5th of November 2021 wrote a letter requesting for a meeting to negotiate working conditions.   On the 10th of November they penned another letter indicating an intention to proceed with a collective job action in seven days if their grievances were not addressed. The grievances related to recognition of FAMWUZ as their representative in negotiations related to issues of increases in allowances, grading, health and safety.

On the 18th of November, 2021 the 1st Respondent embarked on collective job action at their respective workstations. The Applicants advised the 1st Respondents through a general notice circulated at the company premises of the illegality of their collective job action.  The 1st Respondents however did not respond to the request to return to their workstations. On the 19th November an attempt was made by the Provincial Labour Officer to conciliate the dispute. The parties failed to agree resulting in a Certificate of No Settlement being issued on 22nd November 2021.  The   Applicants thereafter referred applications to the 2nd Respondent for Show Cause Orders to be issued in each case as provided in terms of Section 106 of the Labour Act [Chapter 28:01].  On the 26th November 2021, the 2nd Respondent issued the two Show Cause Orders directing the parties to appear before this Court for disposal orders in terms of Section 107 of the Act.

The Applicants submit that they were negatively affected by the collective job actions as they incurred huge expenses and a lot of man hours were lost.  The Applicants also submit that this court should in the exercise of its powers as granted under Section 107 (3) (a) (vi) proceed to deregister FAMWUZ in view of the conduct of its officials in inciting the 1st Respondents and being generally disruptive.  The Applicants submit that this is not the first time FAMWUZ officials disruptive conduct has come under the spotlight as they were actually expelled from ZCTU for this conduct.  A copy of the relevant Notice has been attached to Applicants papers as Annexure B.

The Applicants prayers in both matters are identical.  They pray for the court to grant orders to;

declare the collective job actions commenced by 1st Respondents as illegal for want of compliance with Section 104 of the Labour Act [Chapter 28:01]

(2)  suspend the Applicants obligation to pay salaries or benefits for the specified employees for the days they were engaged in the unlawful collective job action.

(3) to deregister FAMWUZ by virtue of the actions of its officials in inciting the 1st Respondents to engage in the unlawful collective job action.

(4)   An order that each party bears its own costs.

1ST RESPONDENTS CASE

The applications are both opposed by the 1st Respondents.  Through the Founding Affidavits of I. Mandizvidza, who is the 1st Respondent in LC/H/659/21 and S. Dhliwayo, who is the 1st Respondent under LC/H/568/20 the 1st Respondents submit that they indeed engaged in collective job actions which commenced on 18th of November 2021 and ended on the 24th of November 2021 in each case.  They dispute that the furnaces were switched off as a result of their action.  They submit that Applicants in each case had switched off the furnaces and only one furnace was operational. No explanation was tendered by the Applicants for this.  The 1st Respondents submit that FAMWUZ is their lawful representative.  They did instruct FAMWUZ to author the letter notifying of their intention to go on a collective job action if the Applicants did not come to negotiate with them the health and safety issues affecting them.  The 1st Respondents submit that Applicants have been stifling any attempt by the employees to have Workers Committees at their respective workstations.

The 1st Respondents submit that they did not engage in an unlawful collective job action instead they downed their tools to avoid working in an unsafe environment.  Reference was made to cases of various employees who had sustained injuries; some had even lost lives as a result of furnace blasts.  The 1st Respondents have attached as Annexures to their papers lists of employees injured, pictures of the poor toilet facilities, pictures of the employees injured and the nature of the injuries sustained.  The 1st Respondents submit that they proceeded with the collective job action in light of danger to their lives and limbs.  They submit that in such situations the Labour Act [Chapter 28:01] waives the giving of 14 days notification before proceeding on a collective job action.

The 1st Respondents dispute that they refused to negotiate with the Applicants. They submit instead that both Applicants altered their position after parties had reached settlement of the disputes.  The 1st Respondents also dispute the man- hours that the Applicants claim to have been lost alleging instead that it was the Applicants who had closed the furnaces indefinitely thereby stopping production.  The 1st Respondents also dispute that FAMWUZ officials incited them to go on a strike or that they displayed disruptive behaviour.  The 1st Respondents are therefore opposed to the deregistration of FAMWUZ as prayed by the Applicants.  The 1st Respondents prayer is for this court to in its order,

(a) declare the collective job action to be lawful on the basis of Applicants’ failure to comply with the safety regulations at the workplace.

(b) the suspension of salaries or wages for employees engaged in the collective job action be waived in view of the lawfulness of the collective job action.

(c) dismiss the prayer for deregistration of FAMWUZ.

(d)  direct that there be no order as to costs.

APPLICANTS SUPPLEMENTARY SUBMISSIONS

The Applicants filed Supplementary Affidavits to their applications.

The Applicants were essentially responding to the issues as raised by 1st Respondents in    opposing documents. It was Applicants submission in counter, that,

in respect of the issue of operational furnaces and man hours lost,

(a) two furnaces of the applicant were operational at the time the collective job action commenced, that is Jinon Fi and recovery plant accounting for the 4403 man hours lost

(b)  Jinan and Almid combined have four (4) operational furnaces

(c)  Only Jinon FZ was closed and this was confirmed through Annexure “A6” to the    Founding Affidavit.

In respect of the role of FAMWUZ the role of a registered trade union is as provided in Section104 (3)(B) of the Labour Act, which is to authorise or approve a collective job action. A trade union has an obligation to advise employees on issues to do with employment and the proper procedures to conduct a lawful collective job action. Deregistration of FAMWUZ is justified in this case as the union recommended or incited an illegal strike and also actively participated in the process.   FAMWUZ did not seek to bring to an end the unlawful collective job action even when it was advised of its non-compliance with the provisions of the Labour Act. This resulted in significant financial prejudice to the Applicants.

On the aspect of the working environment, the Applicants deny that the working environment is unsafe and unhygienic. They are challenging the veracity of Annexures A1-A6 and B1-B4 to 1st Respondents notices of response. They contend instead that the ablution facilities provided are sanitary and do not pose any danger to 1st Respondents wellbeing. Annexure AA1-AA3, being photographs of the ablution facilities are attached to Applicant’s papers.  The Applicants further contend that the employees who work closest to furnaces and are at risk of massive harm are provided with the requisite protective clothing.    Annexures BB1-BB7 being photographs of some of the 1st Respondents wearing protective clothing whilst performing duties at the furnace are also attached.

(4) 	They dispute the 1st Respondents contention that where an accident occurs at the workplace the employee who has been injured is dismissed without pay and benefits. The correct position is in such cases an investigation is immediately commenced and the injured employee receives urgent medical attention. Annexure CC, being a copy of a serious accident investigation report for an employee which took place on 25th March 2021 and the measures taken thereof is attached to the papers.

(5) 	A WCIF 14 Form is also completed and submitted to NSSA for further assessment.  Where the employee’s continued employment is no longer possible the employee is paid out wages and benefits owed to him as well as compensation for loss of employment including gratuity pay for those employees engaged for more than three years.

(6) 	NSSA carries out regular inspections at the workplace. The Applicants on the 13th October 2021 actually paid for supply of a mobile clinic to be installed at the respective workplaces.   This in a bid to improve the health and safety measures at the workplace.  Annexure DD being a copy of the payment voucher is attached.

(7) 	The Applicants have also attached as Annexure EE communication from NSSA dated 22 November 2021 raising an invoice for the cost required to be paid to NSSA to address any issues arising from an inspection during the occupational hygiene evaluation. The Applicants submit that through the evidence tendered they have demonstrated their willingness to address the health and safety issues that may arise at the workplace.  The Applicants deny that they have in any way created an occupational hazard which may pose as a threat to the health and safety of 1st Respondents. As such the 1st Respondent were required to have followed the procedures as laid in Section 104 of the Act before embarking on collective job action.

(8)	The Applicants have also responded to the issue of the establishment of Workers Committees at the work place.  The Applicants dispute that every workers committee member advocating for workers’ rights has been dismissed from employment.  The Applicants instead have made an effort to ensure the employees have a proper and functioning Workers Committee.   Annexure FF being a letter dated 14th September 2020 from Applicants Legal Practitioners to the Provincial Labour Officer requesting for assistance in setting up a Workers Committee for 1st Respondent is attached. The Applicants further submit that elections were held and a Workers Committee was appointed on the 22nd September 2020. Annexure GG being a copy of the letter of appointment is also attached to the Applicant’s papers. The Applicants therefore deny the allegations that they are bent on supressing the employees’ rights at the workplace.

The Applicants also dispute the averment’s made by the 1st Respondent against the Provincial Labour officers, the NEC, NSSA and ZRP that these officials have been complicit in the Applicants violation of the employees rights. The Applicants submit that these averments are not only malicious but are defamatory and designed to destroy the Applicants reputation.

The Applicants final contention is that in the absence of any occupational hazard posing any immediate threat to the health and safety of 1st Respondent, the 1st Respondent had no right to proceed to engage in a collective job action.  They were in any event required to comply within Section 104 of the Labour Act (Chapter 28:01) but they failed to do so.  On this basis the Applicants prayer is for the Court to issue a Disposal order in terms of the draft.

THE LEGAL PRINCIPLES APPLICABLE TO THE MATTER.

The right to strike is protected by Section 104 of the Labour Act (Chapter 28:01). Section 104 in the relevant provisions reads 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. [Subsection as substituted by section 37 of Act 17 of 2002.]

(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

3. ……..

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

(a) in order to avoid any occupational hazard which is reasonably feared to pose an immediate threat to the health or safety of the persons concerned: Provided that—

(i) the occupational hazard has not been deliberately caused by the persons resorting to the collective job action; (ii) the collective job action resorted to shall remain proportional in scope and locality to the occupational hazard in question;

(iii) the collective job action shall diminish in proportion as such occupational hazard diminishes; (b) in defence of an immediate threat to the existence of a workers committee or a registered trade union.

It is apparent from the provisions of Section 104 that the right to strike only applies to disputes of interest and not dispute of rights.  The distinction between these two is as outlined in Section 2 of the Labour Act and as further discussed in the matter of Zimbabwe Graphical Workers Union vs Federation of Master Printers Zimbabwe SC 25/07.

The terms ‘dispute of interests’ and ‘dispute of right’ are defined in s2 of the Labour Act as follows:

“dispute of interests means any dispute other than a dispute of right.

dispute of right means any dispute involving legal rights and obligations, including any dispute occasioned by an actual or alleged unfair labour practice, a breach or alleged breach on any of the terms of a collective bargaining agreement or contract of employment.”

There are two circumstances where the Act places no restriction whatsoever on the right to strike. These circumstances are outlined in Section 104 subsection 4 to be;

Where workers wish to avoid an occupational hazard (section 104 (4)(a).

Where the strike is in defence of an immediate threat to the existence of a Workers Committee or a registered trade union (section 104 (4)(b).

Aside of these two circumstances the Labour Act (Chapter 28:01) places heavy restrictions on the right to strike. The first restriction pertains to essential services. Section 102 defines what are essential services. The Minister is given powers under the Act to declare other services as “essential services”. The second restriction is that employees cannot resort to a strike before referring disputes to a Labour Relations Officer (Section 104 (2a) (ii)).  The third restriction is that the employees have to give fourteen days written notification of such action to the employer, the appropriate employment council, and to the appropriate trade union or employers’ organisation or federation. The fourth restriction is that there must have been an attempt to conciliate the matter and a Certificate of No Settlement was issued.

Section 107 of the Labour Act (Chapter 28:01) empowers the Labour Court to issue a disposal order for the termination of an unlawful collective job action.

Section 107 (i),(2) and (3a) to that extent read as follows:

107 Disposal orders

(1) On the return day of a show cause order the Labour Court shall, at the time and place specified in the order, inquire into the matter and shall afford the parties concerned an opportunity of making representations in the matter.

(2) After conducting an inquiry in terms of subsection (1), the Labour Court may issue a disposal order directing that—

(a) the unlawful collective action be terminated, postponed or suspended; or

(b) the issue giving rise to the unlawful collective action concerned be referred to another authority to be dealt with in terms of Part XII and that, pending the determination of the issue in terms of that Part, the unlawful collective action concerned be terminated, postponed or suspended.

(3) Without derogation from the generality of the powers conferred upon the Labour Court in terms of subsection (2) to make a disposal order, such order may provide for— (a(i) discharge or suspension of an employer’s liability to pay all or part of the wages or benefits due to specified employees or categories of employees engaged in the unlawful collective action, in respect of the duration of such collective action or part thereof;

(ii) the employer, to take disciplinary action in terms of the code or law, or lay off or suspend with or without pay, specified employees or categories of employees engaged in the unlawful collective action;

(iii) the lay off or suspension, with or with- out pay, of specified employees or categories of employees not engaged in the unlawful collective action for such period as may be specified where such lay off or suspension is necessitated by the collective action;

(iv) the dismissal of specified employees or categories of employees engaged in the unlawful collective action;

(v) the prohibition of the collection of union dues by any trade union concerned for such period as may be specified;

(vi) the suspension or rescission of the registration of the trade union involved in the collective job action;) in the case of an unlawful collective action other than a lock-out—

(vii) the taking of disciplinary action by the employer in the case of employees on collective job action, in terms of the code or any other sanction as the circumstances permit, in respect of defiance of a show cause order;

It is clear from a reading of these provisions that the Labour Court is given wide powers, after conducting an enquiry, to issue a disposal order directing the parties to do any of the things as outlined in the Act.

THE LAW AS APPLIED TO THE FACTS.

The 1st Respondents through their papers have not challenged that they proceeded on collective job actions from the 18st of November 2021 to the 24th of November 2021 in the afternoon. They however challenge the Applicants contention that the actions were unlawful. They have justified their action on the basis that they were facing an occupational hazard being a threat to their health and safety at the workplace.  This is evident from 1st Respondents Affidavit at paragraph 5 where it is stated as follows:

“1 and 118 others engaged in a collective job action which commenced on the 1st of November 2021 in the morning and ended on the 24th of November 2021 in the afternoon”.

In Paragraph 10 the 1st Respondents further state as follows:

“1st Respondent did not embark on an unlawful collective job action but downed tools to avoid working in an unsafe environment. It is an employee’s right to engage in any work activity if the work environment is unsafe to the extent of threatening life and limb…”

The 1st Respondents have gone further to elaborate why they believe the working environment was no longer safe. They referred to the issue of ablution facilities, the issue of the danger posed by furnaces operating at very high temperatures which have resulted in injuries and even death in some instances after employees are burnt following explosions. The 1st Respondents have also alluded to the issue of absence of adequate PPEs for the employees. The 1st Respondents have attached photographs to their papers to show the ablution facilities, some of the employees who were injured and the nature of the injuries sustained.

It is important to outline from the outset what this matter is not about. The court is not being called to express any views on the working conditions at the Applicant’s working place nor is it being called to decide whether or not the health and safety standards at the Applicants work place meet the prescribed minimum standards. These issues generally fall in the area of collective bargaining. Collective bargaining is regulated by the Constitution and the Labour Act (chapter 28:01) in Part X.

The issue that is before this court is whether or not this court can grant the relief as sought in this case of a Disposal Order as laid down in Section 107.At the pith of the argument between the parties is the issue as to whether the collective job action which is conceded to by the 1st Respondents was lawful or unlawful.   In order to determine this issue the court has to necessarily determine whether the requirements in Section 104 of the Labour Act [Chapter 28:01] were met.

WHETHER THERE WAS AN OCCUPATIONAL HAZARD

The 1st Respondents through their submissions have sought to place their action in the arena of the exceptional circumstances under Section 104 where there are no restrictions to employees engaging in a strike. Although they have not specifically pleaded so they have justified their action on the basis of Section 104 (4)(a).  This much is apparent from their submissions. They have submitted that they engaged in a collective job action to avoid an occupational hazard.

The position taken by the 1st Respondent however is not supported by the record.  It is clear from the evidence placed in the record that the reasons for the employees going on strike are different from the reason that the 1st Respondents now seek to advance.  The record indicates that on the 10th of November 2021, the 1st Respondents through their representative from FAMWUZ, a Mr Mautsi whose designation is given as General Secretary, authored a letter to the Applicants the title of which reads “workers rights    representation by union of their choice and negotiating of their working conditions”. In the body of the letter Mr Mautsi reiterated the 1st Respondents right to be represented by a representative of their choice. He pointed out that on the basis of the Applicants continued conduct of denying the 1st Respondent their right to be represented by their chosen representatives and for the employees to negotiate burning issues the employees were threatening to strike within seven days from the date of the letter. On the 18th of November 2019 which is exactly seven days after the letter the 1st Respondents went on strike.   The strike was clearly not about an immediate threat to their lives and limb as suggested in 1st Respondents Founding Affidavit.  As evident from the letter the strike was about recognition of their chosen Trade Union and its ability to negotiate the burning issues as between the parties.

The 1st Respondents have also sought to rely on the photographs attached to their papers. The photographs however besides being referred to as photographs of employees injured do not disclose, who those employees are , where, how  and when they were injured, in relation to the period when the employees embarked on the collective job action.  In short the photographs do not on their own assist the 1st Respondent to prove an immediate threat to their health and safety.

The court has also placed reliance on the report by the Provincial Labour Officer.  As the person who was on the ground at the commencement of the collective job actions, the Court has to defer to her characterisation of the collective job actions. In her report on page 23 of the record she outlined the background to the collective job actions as follows;

”The dispute arose over issues of right and interests.  On one hand employees were claiming transport allowance, housing allowances, heat allowance, shift allowance and general allowance.  On transport allowance they claimed US$30 per month, housing allowance they pegged it on UD$80 per month, on heat allowance they needed thirty percent of their basic salary while general allowance and shift allowance they claimed ten percent of basic salary for each.  On the other hand they wanted the employer to improve health and safety conditions and job grading system to conform to the Collective Bargaining Agreement.  It was their contention that they were not going back to their work stations until the employer came to the negotiating table to negotiate and agree on all these issues”.

On the basis of the report the Provincial Labour Officer clearly placed the background of the action to issues that were outstanding from the 2012 negotiations. She indicates that the employees were raising the same issues from 2012 plus additional new issues.  The Provincial Labour Officer in her report never referred to an immediate threat to health and safety of the employees. She however did point to the employees conduct as stifling the negotiation process and then thereafter proceeding to an illegal collective job action. It must follow on the basis of the evidence as presented that the 1st Respondents opposition to the application is ill founded. There has been no evidence tendered to prove or justify a collective job action to avoid an occupational hazard.

In the event that I am wrong in arriving at this conclusion the court is still required to proceed to determine the lawfulness of the action on the basis of the other provisions of Section 104.

WHETHER THERE WAS DISPUTE OF INTEREST

The facts disclose that, the 1st Respondents embarked on a strike on the basis of rights.  The Provincial Labour Officer in her report described the disputes as involving both ‘disputes of interest’ and ‘disputes of right’. On one hand the employees were claiming US$80 per month on transport thirty percent of their basic salary for heat allowance, ten percent of salary separately for general allowance and shift allowance.  They were claiming higher allowances – which is a dispute of interests.

The employees were also seeking an improvement in the health and safety conditions as well as adaptation of the job grading system to conform to the collective bargaining agreement.  To the extent that the employees were agitating for the employer to improve health and safety conditions and for the adaptation of job grading system that was already provided for in the collective bargaining agreement the other dispute was clearly of right.  On the basis of Section 104 however the employees could not proceed to engage in a collective job action to enforce vested rights.

WHETHER OR NOT 14 DAY PERIOD WAS MET

It is clear from a reading of the record that no 14 days written notification was given by the 1st Respondent of intention to resort to a collective job action as required by Section 104 (2)(a) of the Labour Act (Chapter 28:01). The letter written by the 1st Respondent representative on the 10th of November 2021 actually referred to seven days notification. There was clearly no compliance with the Act.

WHETHER THERE WAS CONCILIATION

The facts in the record indicate that there was an attempt at conciliation on the 19th November 2021.The Provincial Labour officer indicated in her report that the effort yielded no positive results as the employees kept accusing the employer of negotiating in bad faith. The record indicates that The Provincial Labour officer thereafter issued a Certificate of No settlement. There was compliance with Section 104 (2)(b) of the Labour Act (Chapter 28:01) in this instance.

On this basis it is clear that there being no occupational hazard which was posing an immediate threat to their health and safety the 1st Respondents were obligated to comply with the requirements of section 104 of the Labour Act before embarking on a collective job action. The 1st Respondents however failed to comply by failing to give the requisite 14 days notice of their intension to embark on a collective job action.  They also embarked on collective job action based on disputes of right.  The collective job action was consequently an unlawful action.

DISPOSAL ORDER

The Applicants have in relief asked the court to grant an order in terms of their draft. In paragraph 3 of the draft the Applicants request the court to grant an order rescinding the registration of FAMWUZ.  The Labour Court is a creature of statute its powers are therefore as defined within the four corners of statute.  The Labour Act [Chapter 28:01] provides for registration of trade unions by the Registrar of labour. The Registrar is given powers by virtue of Sections 36 to refuse an application for registration; Section 40 to vary, suspend or rescind the registration of a trade union employer’s organisation.  Section 40 sub section (5) gives the right to any aggrieved party to appeal against the Registrar’s decision regarding registration to the Labour Court. It is therefore apparent that the Labour Court only has powers of appeal where the Registrar’s decision is being challenged. The Court thus has no power to grant the relief as sought by the Applicants in paragraph 3. To the extent that the relief sought is clearly incompetent paragraph 3 clearly stands to be struck out as I hereby do.

Disposal Order

The applications succeed.

The collective job actions commenced by 1st Respondents in each case on the 18th of November 2021 be and are hereby declared unlawful for want of compliance with the provisions of Section 104 of the Labour Act (Chapter 28:01)

The Applicants obligations in each case to pay the specified employees engaged in the lawful collective job actions in respect of the days engaged in the action be and are hereby suspended.

Each party in each application shall bear its own costs.