Nyangawo & 13 Others v Cut Rag Processors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/714/2013
HARARE, 19 NOVEMBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/714/2013

HARARE, 19 NOVEMBER 2013	    		              CASE NO. LC/H/145/09

AND 20 DECEMBER 2013				    CASE NO. LC/H/198/09

In the matter between:-

NYANGAWO & 13 OTHERS					Appellant

And

CUT RAG PROCESSORS						Respondent

Before The Honourable P. Muzofa, Judge

For Appellant 		-	A. Mugandiwa (Legal Practitioner)

For Respondent		-	M. Mandevere   (Legal Practitioner)

MUZOFA J:

This is a consolidated matter between Cut Rag Processors and its employees.  Luckson Zvenyika, together with Nyangawo and 13 Others were employed in different capacities by Cut Rag Processors “Cut Rag”.  It was alleged that the employees engaged in an unlawful work stoppage.  Zvenyika was the Chairman of the Workers Committee he was charged and upon conviction a penalty of dismissal was meted out.  Zvenyika noted an appeal to the Grievance and Disciplinary Committee whose decision was that Zvenyika be reinstated from the date of dismissal without loss of salary and benefits.  The employer Cut Rag dissatisfied by the order noted an appeal with this court under case number LC/H/198/09.  After Cut Rag had finalized disciplinary proceedings against Zvenyika it then instituted disciplinary proceedings against Nyangawo and 13 Others.  The employees consented to have their cases consolidated and heard at the same time Nyangawo and 13 Others were convicted and dismissed.  They noted an appeal before the Grievance and Disciplinary Committee and their appeal was dismissed.  Dissatisfied by the outcome the Appellants noted an appeal to this Court under case number LC/H/145/09.

An application for consolidation of the two cases was made.  The application was made and granted on the basis that both cases relate to the same events that took place on the 5th to the 7th of January 2009, similar evidence was used and the employer is the same Cut Rag Processors.

I will address the case for Nyangawo and 13 Others first .

The Appellants’ grounds of appeal can be summarized as follows:

That the labour Officer did not issue a certificate.

That the Respondent committed an unfair labour practice by dismissing Appellants and yet issuing final written warnings for other employees who committed the same act of misconduct.

That there was no evidence to show that Appellants had incited the other workers to engage in the collective job action.

At the time of noting the appeal the Appellants were not represented.  However they later had legal representation.  No application for amendment was made to the grounds of appeal.  I say this because the grounds of appeal donot address the real issues of the case, whether they engaged in an unlawful collective job action or not.  Counsel for the Appellant filed Heads of Argument in relation to the Zvenyika case and indicated to this Court those would also apply in the Nyangawo case.  It was not argued by Counsel for the Appellants that they did not engage in the collective job action.  Instead Counsel sought to raise a point that the conduct by Appellants did not amount to a collective job action.  This he argued was because they actually reported for duty and during the three days that is the 5th, 6th and 7th of January 2009 it was only for a few hours that they gathered to have their grievances addressed.  This was not part of the grounds of appeal and Mr Mandewere for the Appellants undertook to file supplementary Heads of Argument on what constitute collective job action by the 22nd of November 2013.  The court did not receive such and therefore the judgment is based on what was before the court without the promised Heads of Argument.

Section 2 of the Labour Act [Chapter 28:01] defines what a collection job action constitutes in that

“It means an industrial action calculated to persuade or cause a party to an employment relationship to accede to demand related to employment, and includes a strike, boycott, lock-out, sit in or sit out, or other such concerted action”

A reading of the minutes of the proceedings show that at no point did the appellants deny having stopped working inorder for their grievances to be addressed.  Evidence led from Mr Tandire and Ms Gallagher was telling and it was not challenged.  The evidence was to the effect that on Monday the 5th of January 2009 during tea time the workers were addressed by the Workers’ Committee about Transport and Housing Allowances.  One worker indicated they will not return to work until their grievances were addressed.  The workers however resolved to return to work.  It is not clear at what time they returned.  That afternoon workers gathered after lunch and were addressed by Ms Gallagher, who asked them to return to work and they did.  While she took their issues to management.

On the 6th the Tuesday workers reported for duty but refused to work from 10.00am and gathered in the canteen no one was at their work station.  It seems the workers were now issuing threats to barricade exit gates and one Tandire had to summon the police.  On the 7th the Wednesday again after tea break the workers did not return to their work stations.  This time the workers threatened to sleep-in at the company.  They dispersed after the police addressed them.

Evidence was led to show that production during the said three days was very low being 26 cases on the Monday, 99 cases on the Tuesday and 77 cases of cigarettes on the Wednesday.  In an ordinary working day under normal circumstances they could produce up to 410 cases.  The Appellants argued that the machines were not working.  However there was no proof of such or any report to this effect.  Clearly the workers at intervals did not conduct their duties to pile pressure on the Respondent to address their issues.  The Appellants had grievances that they wanted management to address.  The Respondent had in place a grievance procedure through the Workers Council, the Appellants were advised accordingly but decided to engage in the collective job action.  I believe the workers’ conduct during the three days fall within the ambit of the definition of collective job action as defined in the Labour  Act [Chapter 28:01].

I will turn to address the grounds of appeal.

That no certificate was issued by the Labour Officer.

In its Heads of Argument and even before this Court Counsel for the Appellants did not seek to further argue this point.  It appears the Appellants contention was that it was improper for the Respondent to conduct any disciplinary proceedings before its application for the show cause  order was determined by this court.  As indicated it seems this ground of appeal was abandoned.  The ground of appeal falls on that point.

Whether selective punishment amounts to an unfair Labour Practice.

It is common cause that all the workers that embarked on the unsanctioned collective job action were given written warnings except for the Appellants.  The Appellants went through a disciplinary hearing and were dismissed.  It was therefore argued on behalf of the Appellants that such selective application of the law amount to an unfair labour practice.  It was further argued that the selective application of the law was aimed at the workers’ representatives and was not aimed at the conduct.  The court was referred to the case of Chokwenda and 12 Others LC/H/145/09 for this proposition.  For the Respondent it was submitted that selective dismissal is perfectly proper in this jurisdiction and relied on the case of Lancashire Steel (Pvt) Limited v Elijah Mandevana and 3 Others SC 29/95,  where on page 6 it was stated,

“Arguments may be addressed and ad-misericordiam as to how unfair it is that the four respondents out of a number of forty workers who participated in the unlawful collective job action should have been selected for punishment, but such arguments cannot absolve them of their breach of their statutory duty not to participate in such action.  It is not common for the alleged ringleaders in any unlawful gathering or action to be singled out for punishment.  If they are guilty it is not in law relevant that others may also have been guilty”

It was also submitted for the Respondents that the Appellants were not dismissed because they organized the unlawful job action but that they took part in the unlawful job action.  In essence this concession takes away the moral blameworthiness that the Appellants would have in the event that they were charged and dismissed for organizing an unlawful job action.  So the Appellants were treated as the other workers who were reinstated.  The real issue is whether our law permits selective punishment.  In a later judgment the Supreme Court also dealt with this issue in the case of Jiah and Others v Public Service Commission and Another 1999 (1) ZLR 17 SC.  In that case the Court  cited the case of National Union of Metalworkers of South Africa and Others v Henred Fruehauf Traders (Pvt) Ltd 1995 (4) SA 456 A at 463D – 1 where it was said

“It is manifesting too that a go-slow (the Appellants where in this case involved in a go slow action) is a most insidious form of industrial action.  It causes continuing financial loss to the employer while the employees continue to draw their wages.  It is difficult to bring home to specific employees… Equity requires that the courts should have regard to the so – called ‘parity principle’. This has been described as a basic tenet of the fairness which requires that like cases should be treated alike (see Brassey The Dismissal of Strikers (1990) 11 ILJ 213 at 220-30) … The parity principle has been applied in numerous judgments in the industrial Court and the LAC in which it constitutes an unfair Labour Practice”

The court in the Jiah case went on to observe

“It is similarly clear that in the present case the Appellants were not the only ones to have gone on strike.  Why they alone were singled out for the treatment they got after they and the rest of the strikers had written similar letters for reinstatement was never clarified.  They simply became the ‘whipping boys’ (or girls). This was in breach of the equity principle and should therefore also be classified as an unfair labour practice under our Labour laws”.

However in the case of Mashonaland Turf Club v George Mutangadura SC 5/12 a more recent case it is clear that the position of our law is that the employer is entitled to dismiss the employee where it is of the view that the misconduct went to the root of the employment contract.  The issue of whether an employee was singled out becomes irrelevant, therefore the parity principle does not arise.

This court was inclined to approach this case in terms of the parity principle.  However it is bound by the latter case of Mashonaland Turf Club (supra).  I believe the real issue is the misconduct, if it is punishable by dismissal it does not matter whether others who committed a similar misconduct were dismissed or not.

In casu the Appellants did not challenge the fact that they were involved in the unlawful collective job action.  The hearing authority made a finding that the misconduct went to the root of the employment relationship.  This view which is the employer’s view then justifies the dismissal as stated in the Mashonaland Turf Club case (supra). This court can only interfere with a decision of the employer in terms of Section 12 B (4) of the Labour Act, where it is shown that the there was a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee.  In this case that has not been shown.  Therefore the ground of appeal cannot succeed.

That there was no evidence against the Appellants that they had incited the other workers.

As indicated before and even in the ruling by the disciplinary committee, the Appellants were found liable for taking part in the unlawful job action which they did not dispute.  Therefore the argument that they did not incite other workers becomes irrelevant.  This ground of appeal also fails.

In view of the foregoing the appeal cannot succeed.  This Court has not found any misdirection in the employer’s discretion.

I will now address the cross appeal noted by Cut Rag Processors against the Disciplinary and Grievance Committee of the National Employment Council for the Tobacco Industry.  The grounds of appeal can be summed as follows:

That there was ample evidence that the Respondent Zvenyika had committed the offence alleged.

That Respondent as the Workers Committee Chairman was actively involved in the collective job action and not merely a go between the employer and the workers.

That the Committee misdirected itself in making an order for reinstatement without an alternative order or the payment of damages.

Counsel for the Respondent in their Heads of Argument conceded that the Committee erred by failing to make an alternative order for the payment of damages.  The concession was properly made since this is an established principle.  On that basis the Court will not address the third ground of appeal.

I will address the second and third grounds of appeal since they relate to the sufficiency of evidence.  The Committee made a finding that Zvenyika reported for duty and this was confirmed by his Supervisor.  A reading of the documents filed of record show that all employees actually reported for duty.  It was at intervals that they left their duty station to gather and were addressed.  There was evidence that Mr Zvenyika was in attendance at all times the management addressed the workers this was after lunch on the 5th when they engaged with one Ms Gallagher.  The workers had refused to go back to work until they had been addressed by management.  On the Tuesday according to Ms Gallagher a meeting was held with the Works Council and a series of other meetings followed.  It is not clear whether Mr Zvenyika was part of these meetings.  What is really telling about Mr Zvenyika’s involvement is what he admitted under cross examination captured as follows:

“Mr Chinhara asked Mr Zvenyika to confirm that there was a feedback meeting around 11 a.m. on Tuesday, where workers had requested the company to shut down, and after management had asked to be excused from the meeting for 15 minutes, Mr Lubbe came back with a response that the company would not shut down …. All workers should be back at their work station by 2.00 pm which he confirmed. …Mr Zvenyika confirmed having relayed the message to the workers and that the workers had not returned to work.  Mr Chinhara asked Mr Zvenyika if he had personally returned to his work station of which he confirmed he had not”

To my mind this is a clear admission by Mr Zvenyika of his involvement beyond his duty of a go between.  Zvenyika did not dissociate himself with the conduct by other employees.  He actually associated himself with their conduct.

I find it difficult to agree with the committee’s finding that by addressing the workers to return to work on the Wednesday after 4 p.m. he dissociated himself.  I say so because the events of the Monday, Tuesday and Wednesday show that he was part of it.  On the Wednesday he had to address the other workers after being directed to do so by the police that had been called.  If indeed Zvenyika had dissociated himself with the workers’ conduct upon advise by management that their conduct was illegal he should have addressed the workers so that they return to their work stations.  In any event the record of proceedings show that Mr Zvenyika’s representative did not dispute his involvement but questioned the aspect that he incited the other workers. As stated before it was submitted that the charge was inciting or taking part of which the ‘taking part’ was proved.  I believe there was ample evidence that Mr Zvenyika was part of the unlawful collective job action.  As indicated before since the employer was of the view that Mr Zvenyika’s conduct went to the root of the employer – employee relationship the employer was entitled to dismiss him see Passmore Malimanjani v Central African Building Society SC 47/07.  The appeal therefore succeeds in its entirety.

Accordingly  the following order is made.

The appeal by Nyangawo and 13 Others LC/H/198/09 be and is hereby dismissed.

The cross appeal by Cut Rag Processors and Luckson Zvenyika LC/H/1456/09 be and is hereby upheld.

There is no order as to costs.