National Railways of Zimbabwe v Tafadzwa Bunu

### Preamble
Judgment No. SC 178/20
1
Civil Appeal No. SC 290/19
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REPORTABLE		(163)

NATIONAL     RAILWAYS     OF     ZIMBABWE

v

TAFADZWA     BUNU

SUPREME COURT OF ZIMBABWE

GOWORA JA, GUVAVA JA & BERE JA

BULAWAYO: NOVEMBER 20, 2019 & DECEMBER 7, 2020

T. Goro, for the appellant

L. Nkomo, for the respondent

GOWORA JA:  The respondent was formerly employed by the appellant as a diesel electrician at the appellant’s Lochnivar Power Depot in Harare. On 31 March 2016, the respondent, joined 1357 of his fellow employees in a collective job action which had commenced on 29 March 2016.

On 27 April 2016, the appellant made an application to the Labour Court for a disposal order under s 107 of the Labour Act [Chapter 28:01].  The respondent was cited as one of the respondents. In the meantime, on 9 June 2016, the appellant charged the respondent with the misconduct of absence from duty for more than seven consecutive days from 5 April 2016 to the date when the charges of misconduct were laid against him. On 14 June 2016, the Labour Court issued a disposal order.

The record reflects that the respondent was served with the order on 16 June 2016. He reported for duty on 17 June 2016. On 22 June 2016, he was suspended from duty. He appealed against the suspension on 31 August 2016. The outcome of that appeal is not on record and in any case it is not pertinent in the resolution of this appeal.

A disciplinary hearing was conducted and the respondent was dismissed from employment. He applied for a review with the Labour Court which set aside the proceedings and ordered a hearing de novo. A hearing conducted on 21 June 2017 found him guilty resulting in his dismissal from employment with effect from 22 June 2016, the date of his initial suspension. An internal appeal was unsuccessful. On 20 April 2018, he appealed to the Labour Court and was successful. The Labour Court set aside the dismissal and ordered that he be reinstated without loss of “salary and damages” and that, in the event that reinstatement was no longer an option, he be paid damages with the parties being ordered to agree on the quantum thereof.

THE APPEAL

The appellant is aggrieved and has appealed to this Court with leave. The grounds of appeal are couched as follows:

“1.	The court a quo erred and misdirected itself in holding that the appellant had no right to institute disciplinary action against the respondent more particularly because there was a disposal order when at law the appellant was at liberty to discipline the respondent.

Alternatively

The court a quo erred and misdirected itself in concluding that the appellant had a legal right to punish the respondent only after 48 hours after the Labour Court issued the disposal order.

The court a quo erred and misdirected itself in holding that the matter was now res iudicata because the respondent had already been punished for absenteeism when in fact the disposal order only related to the respondent participating in an unlawful job action and not absenteeism whilst ton the other hand the disciplinary action related to absenteeism.”

Mr Goro, who appeared for the appellant, submitted that the issue for determination was whether the disposal order barred the appellant from charging the respondent with absenteeism during the period that he was participating in the illegal collective job action. He further contended that the appellant had deliberately provided for the creation of two separate acts of misconduct, viz; unlawful collective job action, and absenteeism and that the two were mutually exclusive. He contended that the disposal order did not order the dismissal of the respondent and he was not dismissed as a result of the disposal order. The charge of absenteeism had been prepared on 9 June 2016 and the disposal order was only issued on 14 June 2016. Consequently, when both parties appeared before the Labour Court in relation to the disposal order they were aware of the pending disciplinary charges relating to absenteeism and the Labour Court did not, at that stage deal with absenteeism.

He concluded by submitting that it was open to an employer to exercise his discretion to dismiss an employee who has absented himself through participation in an unlawful collective job action. The court a quo erred therefore in finding that the employer only had a legal right to charge an employee following a disposal order if the employee failed to report for duty within 48 hours as provided in the disposal order.

Mr Nkomo, on behalf of the respondent, contended that the disposal order dealt with absenteeism and that the dismissal of the respondent on charges of absenteeism under the circumstances would amount to double jeopardy.

Both parties are in agreement that the issue for determination is one; viz, whether an employer is precluded from subjecting an employee who participates in an unlawful job action after a disposal order has been issued pursuant to the unlawful collective job action.

THE LAW

There is a plethora of authority within this jurisdiction on the employer’s right to exercise his discretion in punishing an employee for absenteeism during an ongoing unlawful collective job action. The position is settled that an employer is not precluded from instituting disciplinary proceedings against an employee who participates in an unlawful collective job action notwithstanding the issuance of a disposal order.

In Zimposts (Pvt) Ltd v Communications & Allied Workers Union 2009 (1) ZLR 334(S), at p342B-C, MALABA JA, (as he then was) stated:

“The unlawful collective job action in which the employees in the Netone case (supra) had taken part, had ended without a show cause order having been made in terms of s 106 of the Act at the time disciplinary proceedings were commenced against the individual employees. The case supports the contention that the provisions of Part XIII of the Act do not, in the circumstances, preclude an employer, wishing to take disciplinary action against employees, who took part in an unlawful collective job action, from charging them individually with acts of misconduct connected with or arising from the collective job action.”

In Net-One Cellular (Pvt) Ltd v Communications & Allied Services Workers Union of Zimbabwe & Ors SC 89/05, CHIDYAUSIKU CJ had this to say:

“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.”

DID THE COURT A QUO CORRECTLY APPLY THE LAW

The court a quo, however, appeared to have departed from this principle in its determination of the appeal before it. It stated:

“The issue for determination is whether in the light of the disposal order the employer could proceed to charge in terms of the code.  The answer appears to be no because of the decision in the Zimpost case, the Zimbabwe Iron Steel Co Ltd v Dube and Anele Dube & 167 Ors.  The rationale being that the appropriate authority in terms of the Act, in casu the Labour Court has already held an inquiry into the collective job action and issued a disposal order.  The employer has already been given the green light not to pay salaries for the period that the workers were not performing their duties.  In my view that is enough punishment for the employees.  To punish them further through disciplinary action would be placing them in double jeopardy and that defence complies with that of res judicata should avail them.

The employer would only have a legal right to punish them had they not reported for duty within 48 hours after the Labour Court issued the disposal order.  It dealt with the issue of absenteeism by ordering that they should not be paid for that time.  To resuscitate it in terms of the code would be tantamount to subjecting them to the same finalised case between the same parties on the same facts and same issues.  The principle of res judicata or that of double jeopardy are well known and established principles of our law.  On the principle of double jeopardy, it is grounded on the ancient maxim “nemo, debet bis vexari prouna estaden causa” meaning that a man shall not be brought into danger for one and the same offence more than once or that he shall offence more than one or that he shall not be punished or put in jeopardy for the same offence.  It is a procedural defence that prevents an accused person from being tried again in the same (or similar) charges and on the same facts following a valid acquittal or conviction.

The appellant as already alluded to above has, through the disposal order, been punished for absenteeism.  He has not been paid for the time that he was absent.  He has been ordered to start afresh as it were.  To this further discipline and punish him for absenteeism would be placing him in double jeopardy which is not permissible at law.”

I am unable to agree with the conclusion by the court a quo in this regard. The disposal order issued by the Labour Court did not determine the question of the alleged absenteeism by the appellant from his place of employment. The disposal order reads:

IT IS ORDERED THAT:

The collective job action by the respondents be and is hereby declared illegal and should be terminated forthwith.

The applicant be and is hereby authorized not to pay any of the respondents their salaries and allowances for the period of 29 March 2016 to the date of termination of the collective job action.

The applicant be and is hereby authorized to summarily dismiss any of the respondents who do not return to work within 48 hours of the service of the disposal order.

The disposal order shall be served on the respondents’ legal practitioners of record, i.e. Mr M Gwisai and such service be and is hereby declared to be service on the respondents.

Each party shall bear its own costs.

As contended on behalf of the appellant, the disposal order did not, as a tribunal, consider the allegations of misconduct against the respondents and his colleagues. What was before the Labour Court was an application by the employer to stop an illegal collective job action. It was not a disciplinary procedure contemplated in the Act for the fair dismissal of an employee following a conviction from a charge of misconduct. The respondent was not charged with absenteeism before the Labour Court, the appellant’s complaint being that the employees were engaging in unlawful conduct from which a disposal order was warranted.

At the time that the disposal order was sought, the respondent and his colleagues had been away from the workplace for a period in excess of almost 30 days. In its wisdom, the Labour Court, as the disposal order would show, authorized the appellant to withhold payment of salaries and benefits for the period that the employees were away from the workplace as a result of participation in the illegal collective job action. This order, which is not a punishment, is founded on law. In his book Workplace Law, the learned author J Grogan states:

“Employers may withhold strikers’ wages during a strike, whether protected or unprotected. But payments in kind like accommodation, food, and ‘other basic amenities of life’ must still be provided at the request of employees for the duration of a protected strike, subject to the employers’ right to recover the monetary equivalent from them thereafter by civil action in the Labour Court. The right to withhold pay includes benefits such as contributions to medical aid and housing allowances that form part of remuneration.”

This principle is part of the law within Zimbabwe and finds expression in the Labour Act which provides as follows in relevant part:

12A Remuneration and deductions from remuneration`

(1)

(5) All remuneration shall be accompanied by a written statement showing—

(a) the name of the employer and employee; and

(b) the amount of remuneration and the period in respect of which it is paid; and

(c) the component of the remuneration representing any bonus or allowance; and

(d) any deductions; and

(e) the net amount received by the employee.

(6)   No deduction or set-off of any description shall be made from any remuneration except—

(a) where an employee is absent from work on days other than industrial holidays or days of leave to which he is entitled, the proportionate amount of his remuneration only for the period of such absence;

(b)

(c);

(d);

(e)

(f)

(7) The aggregate amount of permissible deductions that may be made from the remuneration of any employee in any pay interval shall not exceed twenty-five per centum of the employee’s gross remuneration for that interval:

Provided that upon termination of an employee’s service, an employer may deduct from the total remuneration due to the employee an amount equal to any balance which may be due to the employer in terms of paragraph (a), (c), (e) or (f).( the emphasis is mine)

As a consequence, from a consideration of the principle discussed above, to the effect that an employer is entitled to deduct from an employee’s earnings, the proportionate amount which represents the time that he is absent from work without leave, the finding by the court a quo that the respondent could not be charged for absenteeism following the withholding of his wages consequent to the disposal order was a misdirection. In any event, this Court has pronounced on the discretion which is reposed in an employer to charge an employee with absenteeism during an illegal collective job action notwithstanding the issuance of a disposal order. In Tel*One (Pvt) Ltd v Communications & Allied Services Workers’ Union 2006(2) ZLR 136(S), at pp 145A-14C, CHIDYAUSIKU CJ, stated:

“I agree with the above in as far as it relates to a lawful collective job action. I do not understand the above remarks to apply to an unlawful collective job action.   I have no doubt that an employee cannot be dismissed from employment for participating in a lawful collective job action, even if such participation contravenes a Code of Conduct, such as absence from work in excess of five days contrary to the provisions of the Code of Conduct.

Mr Biti further submitted that it is precisely because of the sui generis nature of the strike action that any misconduct arising therefrom is not punished by way of Part IV of the Act but rather by way of Part XIII of the Act. He submitted that the only qualification is that were participating in an unlawful collective job action has been specifically proscribed in a Code of Conduct, then the Code of Conduct may be used. For this submission, he relied on Zimbabwe Iron and Steel Co Ltd v Dube and Ors 1997 (2) ZLR 172 (SC). In particular, he relied on what GUBBAY CJ had to say at pp 176B-177A of the judgment:

“The real point to decide, so it seems to me, is whether it was the legislative intention that employees who have taken part in unlawful collective job action are only dismissable under the direction of a disposal order – such conduct not being subject to a code of conduct. Put differently, that ss 104 to 108 in Part XIII of the Act are specifically designed to deal with all forms of collective job action.

This was the main and most weighty argument that Mr Nherere advanced on behalf of the respondents. Acknowledging that the bringing of disciplinary proceedings under a code of conduct would be permissible where the charges resulted from the taking of collective job action, as for instance theft or wilful destruction of the employer’s property, counsel submitted that such conduct was not dependent on the unlawfulness or otherwise of collective job action.

It is true, as was emphasised, that Part XII of the Act is concerned with the determination of disputes and unfair labour practices; Part XIII with collective job action.   But these Parts are not mutually exclusive.   Section 107(5)(a) details the powers conferred upon an appropriate authority in the making of a disposal order in the case of unlawful job action. Although the power to dismiss specified employees or categories of employees engaged in the unlawful collective job action is provided for in para (iv), its exercise is discretionary. The appropriate authority need not have recourse to it.   Instead, the appropriate authority may decide merely to suspend the employer’s liability to pay part of wages due to specified employees in respect of part of the duration of the unlawful collective job action (see para (i)); or suspend, with pay, specified employees for a defined period (see para (ii)); or take no disciplinary measures against the employees. In casu the disposal order of 26 March, 1995 only directed that the unlawful job action be terminated.   It was not directed to the liability of the respondents involved in the unlawful strike for disciplinary proceedings.

Accordingly, it is my view that a disposal order made pursuant to s 107(5)(a) of the Act, in which the dismissal of specified employees had not been ordered by the appropriate authority, does not bar the employer, under a code of conduct which categorised ‘illegal industrial action’ as a dismissal offence, from subsequently charging that offence and applying the prescribed penalty to those employees found guilty.   Plainly, there is no provision, either express or implied, 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.”

And later at p147C-F:

“Sections 106 and 107 provide the modalities for the management of collective job actions through the use of show cause orders and disposal orders.   I see nothing in the language of these two sections which prohibits or proscribes the use of a Code of Conduct by employers to discipline employees who will have participated in an unlawful collective job action or absented themselves from work by reason of participating in an unlawful collective job action. As I have said, ss 108 and 109 deal with the immunity of participants in a lawful collective job action and criminalise participation in an unlawful collective job action. Section 110 provides for appeals against a show cause order, while s 111 provides for the cessation of collective job action. Section 112 deals with offences and mitigating factors. None of the above sections bar an employer from disciplining employees engaged in an unlawful collective job action in terms of a Code of Conduct.”

It seems to me that the learned judge in the court a quo was aware of the principle enunciated in the authorities that I have made reference to above. The court recognised the right of an employer to charge an employee who absents himself from the workplace without leave. The appellant was fully entitled to charge the respondent with an act of misconduct for absenteeism due to his participation in an unlawful collective job action. The immunity from such charges, which he could have raised as a defence to the charge would be that the job action was legal. He could not resort to this defence because the job action had been declared illegal by the Labour Court. The learned judge actually found that the Act permitted the employer to charge an employee with misconduct for absenteeism following participation in an illegal collective job action. However, it is evident that the learned judge misconstrued the withholding of the respondent’s wages by the employer for the requisite period as a punishment following upon an act of misconduct. In so finding the court erred. The appellant was not charged with misconduct of absenteeism when the matter went to the Labour Court during the pendency of the strike. The respondent approached the Labour Court for relief against the unlawful job action. It did not prefer charges against any of the employees for consideration during the hearing which resulted in the disposal order.

The withholding of wages following a strike is a right protected by the Act. It cannot in the circumstances of this case be termed a punishment for absenteeism. The question of double jeopardy does not arise.

DISPOSITION

The court a quo erred and misdirected itself. It confirmed the position of the law that an employer has the discretion to charge an employee with misconduct for participating in an unlawful collective job action. In casu, the disposal order only authorised the employer to dismiss an employee who failed to resume duty after the expiry of 48 hours from time of service of the order. It did not deal with the absenteeism from duty during the period leading up to the issuance of the disposal order. The court a quo was grossly misdirected in the assessment of the facts and such misdirection warrants interference by this Court. The appeal has merit and must succeed.

In the premises an order in the following terms will issue:

IT IS ORDERED THAT:

The appeal be and is hereby allowed with costs.

The judgment of the court a quo being judgment number LC/MT/167/18 and dated 9 November 2018 be and is hereby set aside and in its place is substituted the following:

“The appeal be and is hereby dismissed with costs”.

GUVAVA JA:			I agree

BERE JA:				(Unavailable)

Mbidzo, Muchadehama legal practitioners, for the appellant.

Dube-Tachiona & Tsvangirai legal practitioners, for the respondent