Onisimo Chikuwe & 38 Others v Guruve Rural District Council & 2 Others

The first appellant was the Chairman of the Workers Committee of the first respondent (Guruve Rural District Council). On 19 March 2000, the Works Council awarded salary increments of 69-75% to all appellants effective from 1 January 2000. However, on 29 March 2000, the full Council decided it could not afford such increases and instead awarded a 35% across-the-board increase. The Workers Committee threatened strike action if the 75% increase was not paid. Workers went on strike on 12 April 2000. On 28 April 2000, the Labour Relations Officer issued an order referring the dispute to compulsory arbitration and ordering employees to return to work, which was ignored. On 9 May 2000, the Minister issued a show cause order requiring workers to return to work by 12 May 2000. At a hearing on 12 May 2000, parties agreed that workers must return to work by 10 am on Monday 15 May 2000. On 15 May 2000, appellants gathered under a tree on Council grounds, chanting, holding placards, and beating drums. The Council found they had not returned to work by 10 am and suspended them without pay pending approval for dismissal.

• Whether the appellants complied with the agreement to return to work by 10 am on 15 May 2000
• Whether the suspensions imposed by the Council were lawful
• Whether the trial court erred in making findings regarding dismissal when the issue before it was only the legality of suspensions

The appeal was dismissed with costs.

The binding legal principle is that for employees to be considered as having complied with an agreement or order to return to work, they must demonstrate a genuine intention to resume their duties. Merely being present at the workplace while continuing protest activities such as chanting, holding placards, and beating drums does not constitute returning to work. The conduct of the employees must objectively evince an intention to resume normal employment duties. Additionally, employees cannot rely on spurious excuses (such as lack of access to keys) when the evidence establishes they had reasonable opportunity and means to access their workplaces.

The Court made obiter observations regarding the trial judge's error in characterizing the employment action as 'dismissal' when it was actually 'suspension pending approval for dismissal'. Ziyambi JA observed that while this constituted a misdirection in terminology, it did not affect the substantive correctness of the finding that the appellants had repudiated their contracts of employment by refusing to return to work. The Court emphasized that courts should not make findings on issues not properly placed before them, and that there must be clear distinction between suspension and dismissal in employment law contexts, as these have different legal consequences and procedural requirements.

This case is significant in Zimbabwean labour law for establishing principles regarding compliance with return-to-work orders and the evidential requirements to demonstrate genuine intention to resume employment following industrial action. It clarifies that symbolic presence at a workplace while engaging in continued protest activity does not constitute compliance with an agreement to return to work. The case also demonstrates the importance of courts confining their findings to the actual issues placed before them, particularly distinguishing between suspension and dismissal in employment matters.