Net*One Cellular (Private) Limited v (1) Communications and Allied Services Workers Union of Zimbabwe (2) Fifty-Six Net*One Employees

Net*One Cellular (Private) Limited (appellant) employed approximately 100 employees who were formerly employed by the Posts and Telecommunications Corporation (PTC). On 20 May 2004, employees gave notice of intention to strike citing management's refusal to negotiate, failure to hold works council meetings, and victimization of worker representatives. Discussions failed to resolve the dispute. On 15 June 2004, fifty-six employees went on strike. The reasons for the strike communicated later differed from those in the original notice. The appellant commenced disciplinary proceedings against each employee for absence from work for five or more consecutive days without reasonable excuse or cause under clause 2 of the Code of Conduct and section 12B of the Labour Relations Act. All fifty-six employees were dismissed following individual disciplinary hearings. The first respondent (the union) filed a complaint of unfair dismissal. After failed conciliation, the matter was referred to compulsory arbitration. The arbitrator ordered reinstatement. The appellant appealed to the Labour Court, which upheld the arbitrator's determination on the basis that the appellant should have followed Part XIII of the Act regarding unlawful collective job action rather than section 12B. The appellant appealed to the Supreme Court.

• Does the Supreme Court have jurisdiction to hear an appeal from a Labour Court decision reviewing an arbitrator's award?
• Were the fifty-six dismissed employees properly cited as parties?
• Was the collective job action by the employees lawful?
• Did the appellant follow the correct procedure in dismissing the employees under the Code of Conduct and the Labour Relations Act?
• Were the arbitrator and Labour Court required by law to award damages as an alternative to reinstatement?

The appeal was allowed. The arbitrator's award was set aside. It was declared that the dismissal of the fifty-six employees was lawful. Costs were awarded against the respondents jointly and severally, the payment by one absolving the other.

The binding legal principles established are: (1) Section 92D of the Labour Relations Act confers jurisdiction on the Supreme Court to hear appeals on questions of law from any Labour Court decision, irrespective of whether the matter originated as an arbitration award; (2) Collective job action is unlawful if employees fail to comply with section 104 requirements, including giving proper notice specifying grounds, maintaining consistency in stated reasons, and obtaining a certificate of no settlement before commencing industrial action; (3) An employer may discipline employees for absence from work under a Code of Conduct or section 12B without resorting to Part XIII procedures where the charge is absence from duty rather than participation in unlawful industrial action; wrongly citing section 12B instead of an identical Code provision is an error of form, not substance, and does not constitute unfair labour practice where the conduct violates both provisions and due process is observed; (4) Arbitrators appointed under section 93(5) and section 98(9) are required by operation of sections 98(9) and 89(2)(c)(iii) to award damages as an alternative to reinstatement; failure to do so renders the determination legally deficient; (5) Disposal orders under Part XIII do not grant immunity from disciplinary action for absences during unlawful strikes.

The Court observed that the arbitrator's reasoning was "confused" and her conclusion "clearly wrong" regarding the lawfulness of the collective job action. The Court noted that the Labour Court's conclusion that the Code of Conduct applied was "probably correct" given the operation of section 111(4) of the Posts and Telecommunications Act, though the appellant's submission distinguishing between "conditions of service" and a "Code of Conduct" as a legal framework was described as "cogent." The Court also commented that if the Labour Court had not sidestepped the issue of the legality of the collective job action, it "most probably would have come to a different conclusion." These observations suggest the Court's view that both lower tribunals erred in their analytical approach, even where they reached defensible intermediate conclusions.

This case is significant in Zimbabwean labour law for clarifying: (1) The appellate jurisdiction of the Supreme Court over Labour Court decisions under section 92D of the Labour Relations Act, distinguishing this from the limited review powers under Article 34 of the Arbitration Act; (2) The strict compliance required with section 104 procedural requirements for lawful collective job action, including proper notice and consistency of reasons for industrial action; (3) The distinction between disciplinary charges for absence from work versus charges for participating in unlawful industrial action, and the corresponding procedural pathways under Codes of Conduct and Part XIII of the Act; (4) The principle that procedural errors in citing the wrong legal provision (section 12B versus a Code of Conduct clause) do not necessarily constitute unfair labour practice where the substance is the same and due process is followed; (5) The mandatory requirement that arbitrators award damages as an alternative to reinstatement under section 89(2)(c)(iii), applicable to arbitrators appointed under both sections 93(5) and 98(9). The case reinforces that employers may pursue disciplinary action for absences during unlawful strikes without being confined to Part XIII procedures, and that Part XIII orders do not grant immunity from such discipline.