SPAR Harare (Pvt) LTD V Terrence Jonasi & 3 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/224/2014
HARARE, 21 FEBRUARY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE   	 JUDGMENT NO. LC/H/224/2014

HARARE, 21 FEBRUARY 2014	    		  	     CASE NO. LC/H/934/12

& 11 APRIL 2014

In the matter between:-

SPAR HARARE (PVT) LTD					Appellant

And

TERRENCE JONASI & 3 	OTHERS				Respondents

Before Honourable E Muchawa, Judge

For Appellant		-	Mr. R. Nembo (Legal Practitioner)

For Respondents		-	Mr. T. Mufanebadza(Trade Unionist)

MUCHAWA J:

This is an appeal against the judgment of the Negotiating Committee of the National Employment Council for the Commercial Sectors (N.E.C.C.S) which ordered reinstatement of the respondents without loss of salary and benefits with effect from the date of dismissal.

The respondents were charged for breaching the ninth paragraph of the Group IV offences of the N.E.C.C.S Employment Code of Conduct and Grievance Procedures.  The charge was sabotage defined as “any willful act by an employee to interfere with the normal operations of the employer’s business by damaging any plant, machinery, equipment, raw materials or products or by interrupting any supplies of power, fuel, materials or services necessary to the operations”.

The particulars for the charge were that the respondents had allegedly left work assigned to them unfinished during their shift period on 12th to 13th December 2011.  Such actions are said to have prejudiced the appellant the sum of US$14 000. The respondents were employed as pickers at appellant’s assembly and were a vital part of the distribution system.  The withdrawal of services is said to have negatively affected the distribution system as retailers would not get their products on time.

It is common cause that the respondents started work at 1730 hours on 12 December 2011 and were supposed to work till 0230 hours on 13 December 2011.  They however worked beyond the mandated 9 hours as follows:-

Terrence Jonas and Richard Tsokodai worked from 1730 to 0400 hours therefore worked for 10½ hours.

Bruce Chakatsva and Austine Zembe worked from 1730 to 0500 hours therefore worked for 11½ hours.

It was found by the Negotiating Committee that the system of having employees work overtime as in this case was inhuman and illegal in terms of SI 45 of 1993.  Further it was found that causing employees to work on a task-work basis, where an employee is required to work until the task is completed is also illegal.

The grounds of appeal before me are summarized as:

The negotiating committee erred in confirming the Mashonaland Local Joint Committee decision in holding that the Respondents’ actions did not constitute sabotage as defined in the Code of Conduct having regard to the following:-

The Respondents after working normal time actually commenced working overtime.

Their acceptance of working overtime was implied and there was no contravention of the provisions of SI 45/93 regarding working hours.

By agreeing to work overtime the Respondents effectively waived the required 24 hour notice to work overtime.

The Respondents actually commenced working overtime but withdrew their labour before completing the order.

Appellant was not assigning Respondents to work on a task-work basis because their wages were not dependant on a task.

The negotiating committee erred in holding that the Respondents’ conduct was lawful and did not interfere with the employer’s business especially when regard is had to the following:-

By withdrawing their labour after having commenced overtime, and considering the time of the said withdrawal, the Respondents effectively prevented the Appellant from seeking alternative labour. This was and is sabotage at its maximum.

Appellant suffered loss as a result of the Respondents’ conduct.

Respondents oppose the appeal and aver that the negotiating committee was correct in its decision.

In submissions before me it was clear that the issues for my determination are the following:

Whether or not the work assigned was task work.

Whether the agreement to work overtime was valid and legal.

Whether the respondents’ conduct was lawful in the circumstances.

Determination of the above issues would help me in making a finding as to whether the Negotiating Committee erred in its decision.  I proceed to deal with each issue in turn.

Task Work

Appellant’s first contention is that the Negotiating Committee erred in making a determination on whether or not the tasks assigned were task work as such issue was not put to it on appeal.

I was not referred to any authority to use in determining this matter.  I have however made reference to matter of Proton Bakery (Pvt) Ltd v Mike Takaendesa SC 126/04 which dealt with a situation where the court had made a finding on a matter not raised or argued before it.  Therein it was held that the court had erred Consideration was paid to the facts that the respondent had never raised this issue throughout the proceedings.  Secondly that appellant was not given any opportunity to explain itself on the issue.  Thirdly the labour relations officers had not paid any attention to this issue and lastly the court a quo had not sought any viva voce evidence on the issue in question during the hearing.  Finally the Court had then based its determination solely on that technical issue.

The situation is different in casu as the issue of task work was raised during the disciplinary hearing.  In particular the designated officer made a finding that “your description of the aforesaid targets as task work as defined by the CBA is a misnomer and accordingly your argument that the employer unlawfully assigned you task work is dismissed as false and unfounded.”

Both sides made presentations on the issue and the evidence was before the negotiating committee and it was not the only issue on which the determination was based.

I therefore find that the negotiating committee did not err in making a finding on this issue.

Task work is defined in the Collective Bargaining Agreement: Commercial Sectors SI 45 of 1993 Section 3 thereof as;

“a stated task which is set by an employer for an employee and which has to be completed as a condition of earning a wage.”

It was argued by appellant that the work in question was overtime work and not task work.  This, it was argued, is because the respondents’ wages were not dependent upon completion of task.  Respondents argued that the fact that they failed to complete the task led to the disciplinary action in question goes to show that their earning of a wage was dependent on completion of the task.

This issue and that of whether the agreement to work overtime was valid and legal weave into each other.  I will proceed to consider that issue before making a finding on this one.

Overtime

The Collective Bargaining Agreement: Commercial Sectors SI 45/93 defines overtime in Section 3 as any time worked outside ordinary working hours.

Section 7 (i) thereof lays out how an employer gets an employee to work overtime.  It provides;

“An employer may request, but shall not require, an employee to work overtime, and shall, whenever possible, give twenty-four hours notice to such employee of such request:

Provided that an employee needed to render emergency work or stock-taking shall not decline such request without a reasonable excuse.”

It was appellant’s argument that the respondents had voluntarily agreed to work overtime as seen by their continued work beyond their knock off time, their failure to give advance notice of their unwillingness to work overtime and failure to give advance notice of their departure from work.

Respondents agreed that they had indeed worked outside their ordinary working hours but allege that appellant has not demonstrated what time it had set as the knocking off time.  The emergency is said to have been occasioned by the failure of two of the shift workers to turn up for work.  Respondents argue that they notified their supervisor when they were tired and wanted to knock off.  What I deduce from the respondents is that the appellant requested them to work unreasonable additional hours which they refused and were penalized through the dismissals.  This was found to be both illegal and inhuman by the Negotiating Committee.

I turn to consider the legality of the overtime.  The employer did request the respondents to work overtime without giving any notice of the same.  The employees (respondents) agreed to work overtime as evidenced by the fact that they worked 1½  and 2½ hours of such overtime.

I do not agree that once the respondents agreed to work overtime, they should have worked at the mercy of appellant.  The wording of section 7(i) above makes it clear that the employer can request but not require an employee to work overtime.  The regulation of working time is one of the oldest concerns of labour legislation.  The very first ILO Convention, adopted in 1919, the Hours of Work (Industry) Convention, 1919 (No 1) limited hours of work and provided for adequate rest for workers.  The intention is to ensure high productivity whilst safeguarding workers’ physical and mental health.  This is why the relevant section 7 (i) puts  safeguards of the request including notice.  In order to accede any request, one has to consider its reasonableness through the terms hence the need for notice.  The law implies that an employee may refuse the request.

Some of the relevant factors to consider in a case such as this in order to promote fair labour standards and advance social justice include:

the risk to the employee’s health and safety from working additional hours.

the needs of the workplace.

whether notice was given.

the usual patterns of work in the industry.

the nature of the employee’s role.

the necessity of the overtime.

the available alternatives.

the amount of overtime.

the hours already worked.

whether the employer should have foreseen the need.

In casu the respondents had already worked the prescribed 9 hours, had had no prior notice of the need to work overtime.  The role of the respondents was not specialized and getting replacements was easy as shown by the reallocation of dispatch personnel to these tasks.  Though the overtime was necessary and was done, regard should have been paid to the hours respondents had already worked.  I also believe that the appellant should have foreseen the need for additional hours in the circumstances and should have made alternative arrangements especially as respondents left at daybreak.

I believe too that because the appellant is the one requesting overtime, appellant should have communicated the number of additional hours requested and their reasonableness rather than the tasks still to be done.  In this I find that appellant was prescribing tasks work as failure to perform the task to completion resulted in dismissal which takes away the right to a wage.

I agree with the Negotiating Committee that this was an unusual pattern of working in the industry which is both inhuman and illegal.  This is so because the circumstances show that the appellant was “requiring and not requesting” the respondents to work overtime instead of “requesting and not requiring” them to do so.

The request to work overtime was therefore not in compliance with SI 45/93.

Sabotage

Appellant argues that respondents’ conduct amounted to sabotage as they withdrew their labour before completing the order after having commenced to work overtime.  Respondents argue that their conduct does not fit into the definition of sabotage.

The N.E.C.C.S. Code of Conduct Paragraph 9 Group IV defines sabotage as “any wilful act by an employee to interfere with the normal operations of the employer’s business by damaging any plant, machinery, equipment, raw material or products or by interrupting any supplies of power, fuel, material or services necessary to the operations.”

Appellant argues that as respondents were part of a chain link between the assembly team dispatch team and delivery team, they interrupted the entire vital chain of services by abandoning their duties.  A prejudice of US$14 000 is alleged.

Respondents argue that the definition of sabotage is not intended to cover situations where an employee withdraws his own services, instead it has to be third party services.  They rely on the case of Speciss College v Maxwell Chiriseri and 3 others LC/H/226/2007.  This case was however overturned by the Supreme Court in the case of Speciss College v Maxwell Chiriseri and 2 others SC 2/2013.

Appellants referred me to the Supreme Court case which held that the withdrawal of labour where employees intended to force an employer to comply with their demands is the ordinary meaning of sabotage.  Further it was held that since the employees had withdrawn their labour in the context of an unlawful strike, they had committed sabotage.

In casu appellants had already worked the set 9 hours and gone into overtime.  There was no strike happening, whether lawful or not.  Employees were simply requesting to knock off after working.  They communicated with the supervisor.  It was way daybreak, they could be easily replaced (as they then were).  Nothing could be further from sabotage.  I do find therefore that the negotiating committee correctly found that there was no sabotage committed by respondents whose conduct was lawful in the circumstances.

In the circumstances I find that there is not merit in the appeal.

I order as follows:

“The appeal being devoid of merit in its entirety is dismissed with costs.”

Sawyer & Mkushi, Appellant’s legal practitioners