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DISTRIBUTABLE (71)

Judgment No. SC 90/04

Civil Appeal No. 287/03

PUNGWE BREWERIES (PRIVATE) LIMITED v

(1) SOLOMON MAMBONDIANI AND FORTY-TWO OTHERS

(2) FLOSSIE MACHAKATA AND SIXTEEN OTHERS

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, SANDURA  JA & GWAUNZA JA

HARARE, SEPTEMBER 27 & OCTOBER 12, 2004

R M Fitches, for the appellant

A M Gijima, for the respondents

SANDURA  JA: This is an appeal against a judgment of the Labour Court which ordered the appellant company (“the company”) to reinstate forty of the respondents as employees of the company without loss of salary and benefits, or pay them damages in lieu of reinstatement.

The background facts are as follows. At the relevant time the respondents were employees of the company. On 24 November 1999 they held a meeting at Mushando Beerhall (“the beerhall”), where they discussed their grievances against the company. After that meeting, they wrote to the company indicating that unless their grievances were resolved within two weeks they would resort to a collective job action.

When the two weeks expired and the grievances had not been resolved, the respondents wrote to the company indicating that they had extended the deadline by which their grievances were to be addressed to 28 December 1999.

When their grievances were not resolved before the new deadline, the respondents gathered at the beerhall at about 8 am on 28 December 1999. Shortly thereafter, the company ordered the respondents to disperse and report for duty by 10.30 am on that day, but the order was ignored. The company then issued an ultimatum, which was that those employees who did not report for duty by 12 noon on that day would be dismissed. That, too, was ignored.

Thereafter, on 29 December 1999, the company wrote to the respondents individually, informing them that as they had taken part in an unlawful collective job action they had been suspended from duty with immediate effect, in terms of s 3(1) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, 1985, published in Statutory Instrument 371 of 1985 (“the Regulations”), pending the authorisation of their dismissal by the Ministry of Labour.

In addition, the company, acting in terms of s 3(1) of the Regulations, applied to a labour relations officer forthwith for a determination authorising the dismissal of the respondents.

Subsequently, on 14 November 2000 and 20 February 2001, the labour relations officer heard the company’s application in respect of Flossie Machakata and sixteen others. In his determination, which was handed down on 29 June 2001, the labour relations officer authorised the dismissal of the seventeen employees.

After that determination, the same labour relations officer heard the company’s application in respect of Solomon Mambondiani and forty-two others, from 20 to 22 August 2001. In his determination, which was handed down on 29 August 2001, the labour relations officer divided the employees into three groups.

The first group consisted of those employees who were officially off duty on 28 December 1999 and attended the meeting at the beerhall at 8 am that day. The labour relations officer ordered that this group of employees be reinstated without loss of salary and benefits.

The second group consisted of those employees who were due to commence their duties at 10 am on 28 December 1999, but did not do so because they were attending the meeting at the beerhall. In addition, they ignored the ultimatum issued by the company that unless they reported for duty by 12 noon they would be dismissed. The labour relations officer authorised the dismissal of this group.

Finally, the third group consisted of those employees who were supposed to knock off duty at 10 am. They attended the meeting at the beerhall at 8 am when they were supposed to be on duty, but were not supposed to be on duty after 10 am. The labour relations officer ordered that this group be reinstated without loss of salary and benefits.

However, after reference to the senior labour relations officer, both matters, that is to say the matter between the company and Flossie Machakata and sixteen others, and the one between the company and Solomon Mambondiani and forty-two others, were heard together by the senior labour relations officer on 5 February 2002. In his determination, which was handed down on 30 April 2002, the senior labour relations officer authorised the dismissal of all the employees who had attended the meeting at the beerhall on 28 December 1999, on the ground that they had participated in an unlawful collective job action.

Aggrieved by that determination, the employees appealed to the Labour Court. That court subsequently ordered that the employees who had been off duty on 28 December 1999 with the company’s authority, and those employees who were supposed to knock off duty at 10 am on that day were to be reinstated without loss of salary and benefits, or were to be paid damages in lieu of reinstatement. However, the appeal by those employees who were supposed to report for duty at 10 am was dismissed.

Dissatisfied with the order that some of the employees were to be reinstated or paid damages in lieu of reinstatement, the company appealed to this Court.

The main issue in this appeal is whether by issuing the ultimatum, calling upon the respondents to report for duty by 12 noon or be dismissed, the company waived its right to dismiss the employees who had participated in the unlawful collective job action. The Labour Court answered this question in the affirmative. In my view, that answer was correct.

Whether the company waived its right to dismiss the respondents is a question of fact, and the onus rests on the respondents to establish that fact on a balance of probabilities. As INNES CJ stated in Laws v Rutherfurd 1924 AD 261 at 263:

“The onus is strictly on the appellant. He must show that the respondent, with full knowledge of her right, decided to abandon it, whether expressly or by conduct plainly inconsistent with an intention to enforce it. Waiver is a question of fact, depending on the circumstances.”

In the present case, the company became aware on the morning of 28 December 1999 that the respondents had commenced an unlawful collective job action and had ignored the order to report for duty. The company must have been aware that in terms of s 3(1) of the Regulations it had the right to dismiss the respondents, upon being authorised to do so by the Ministry of Labour. Indeed, the letters of suspension sent by the company to the respondents on 29 December 1999 constitute ample proof of that knowledge.

Instead of suspending the respondents from duty and forthwith applying to a labour relations officer for an order or determination authorising the respondents’ dismissal, the company issued the ultimatum that those employees who did not report for duty by 12 noon would be dismissed. What the company was in fact saying was that those employees who reported for duty by 12 noon would not be dismissed.

In my view, the company with the full knowledge of its right to dismiss the respondents in terms of s 3(1) of the Regulations decided to abandon that right, as clearly indicated by its conduct which was plainly inconsistent with an intention to enforce that right.

As the company abandoned the right to dismiss the respondents for participating in the unlawful collective job action, the only employees who could have been lawfully dismissed were those who were supposed to go on duty at 10 am and who ignored the ultimatum to report for duty by 12 noon. However, those employees who were officially off duty on 28 December 1999 were not supposed to be on duty on that day, and those employees who were supposed to knock off duty at 10 am were not supposed to be on duty after 10 am on that day. There was, therefore, no basis on which these two groups could have been required to report for duty by 12 noon on the day in question. The Labour Court’s decision was, therefore, correct.

In the circumstances, the appeal is devoid of merit and is, therefore, dismissed with costs.

CHIDYAUSIKU  CJ: I agree.

GWAUNZA  JA: I agree.

Henning, Lock, Donagher & Winter, appellant's legal practitioners

Manase & Manase, respondents' legal practitioners

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