Communications and Allied Services Workers Union of Zimbabwe v Tel-One (Private) Limited

The applicant is a trade union representing workers in the communications industry. The respondent is a communications service provider whose employees are members of the applicant union. On 6 October 2005, employees went on strike after giving notice. The respondent obtained a show cause order from the Minister declaring the strike illegal, but on 9 November 2004, the Labour Court upheld the union's appeal against this order, effectively declaring the strike lawful. Prior to the Labour Court's determination, the respondent had suspended 1,254 employees without pay and dismissed a number of them after charging them with misconduct under its code of conduct. The union then brought this application to set aside the dismissals as grossly unprocedural.

• Whether the trade union has locus standi to bring a representative action on behalf of its members
• Whether the applicant should be required to exhaust domestic remedies before approaching the High Court
• Whether the respondent was legally entitled to resort to its code of conduct to discipline employees who participated in lawful collective job action

The court set aside all disciplinary proceedings by the respondent against employees who engaged in the collective job action of 6 October 2004. The respondent was ordered to pay the costs of the application.

A trade union registered under the Labour Act has locus standi to bring representative actions on behalf of its members where it has a statutory duty to protect their interests and demonstrates a direct and substantial legal interest in the subject matter. An employer cannot resort to its code of conduct to discipline or dismiss employees who participated in collective job action that was ultimately declared lawful by the Labour Court. Section 108(3) of the Labour Act expressly protects employees engaged in lawful collective action from having their employment terminated on that ground. A code of conduct, being part of the contract of employment, cannot override the express provisions of the Labour Act, which forms part of the law of the country. Disciplinary proceedings conducted in violation of these statutory protections are grossly irregular and constitute a nullity ab initio.

The court made important observations on the development of representative litigation in Zimbabwe, noting that the jurisdiction has moved significantly from the restrictive approach in Wood v Ondwanga Tribal Authority. The court observed that the enactment of the Class Action Act in 2000 evidences that class actions are desirable in the jurisdiction and that representative or public interest litigation is now a recognized feature of Zimbabwean jurisprudence. The court also noted that the definition of 'sufficient legal interest' is a value judgment reflecting judges' views on access to justice at any given time. Regarding exhaustion of remedies, the court clarified that while the High Court always enjoys jurisdiction even where domestic remedies have not been exhausted, it will in its discretion sometimes withhold jurisdiction to allow domestic remedies to be exhausted, with the approach being to discourage duplication of proceedings unless good cause is shown.

This case is significant in Zimbabwean labour law as it establishes important principles regarding: (1) the standing of trade unions to bring representative actions on behalf of their members; (2) the development of class action and public interest litigation in Zimbabwe; (3) the supremacy of statutory protections for lawful collective action over employer codes of conduct; and (4) the protection afforded to employees who engage in strikes that are ultimately declared lawful by the Labour Court. The judgment reinforces that employers cannot use internal disciplinary codes to circumvent statutory labour protections, particularly regarding collective bargaining rights.