Philimon Mathe & 40 Others v Forbes & Thompson (Bulawayo) (Pvt) Ltd

The respondent owned and operated Vumbachikwe Mine in Gwanda District. The appellants were employed at the mine in various capacities and engaged in a collective job action. Subsequently, 17 of the appellants were subjected to disciplinary hearings in terms of the code of conduct published in SI 152/90 as read with SI 165 of 1992. Notices of disciplinary hearings were issued and delivered individually with personal service, warning that failure to attend would result in a default judgment. The appellants shunned the hearings. The 17 appellants were dismissed with effect from 14 December 2016 following disciplinary hearings and ordered to vacate mine-allocated houses within 7 days of receiving termination letters. They appealed through their Trade Union by letter dated 4 January 2017 and filed this urgent application seeking to stay their eviction pending the appeal.

• Whether the application was urgent
• Whether the dismissals were unlawful and irregular for failure to invite union leaders to disciplinary hearings
• Whether the noting of an appeal suspends the decision appealed against
• Whether the notice period to vacate mine accommodation was unreasonably short
• Whether section 74 of the Constitution prohibits eviction from mine accommodation without a court order
• Whether the employer was required to obtain a show cause order from the Minister before conducting disciplinary hearings for employees engaged in collective job action
• Whether parties can contractually waive constitutional and statutory rights through a Collective Bargaining Agreement

The application was dismissed with costs.

The binding legal principles established are: (1) A code of conduct that permits employees to bring representatives of their choice does not impose an obligation on employers to notify trade union representatives of disciplinary hearings - this is the employee's responsibility. (2) An appeal to the Labour Court does not suspend the decision appealed against (per section 92E(2) of the Labour Act). (3) Parties to a collective bargaining agreement can lawfully waive statutory rights, including the one-month notice period for vacating employer-provided accommodation prescribed in section 12(6) of the Labour Act. (4) Section 74 constitutional protections against eviction do not prevent eviction pursuant to lawful contractual agreements in CBAs. (5) An employer is entitled to discipline employees engaged in unlawful collective job action under a code of conduct without first obtaining a show cause or disposal order from the Minister - the code of conduct procedure is separate and distinct from the Labour Act procedure for unlawful job actions (following Telone (Pvt) Ltd v Communications & Allied Services Workers Union).

The court observed that it makes practical sense that the Code does not require employers to notify trade unions because: (1) it is the worker who knows which union they belong to at the mine, and (2) there is a real possibility that some workers are not members of any union. The court also noted that because each individual accused employee would have unique circumstances and face different charges, a collective letter from a union representative raising general alleged irregularities is not a competent or valid appeal under the Code which requires "the employee" to individually note the appeal and give reasons. The court emphasized that the applicants could not hide behind their appeals to bar the respondent from evicting them from mine accommodation, and that there was no question of "arbitrary evictions" as the respondent was acting lawfully in terms of the CBA and the Code.

This case is significant in Zimbabwean labour law (applicable to South African context for comparative purposes) as it clarifies several important principles: (1) employers are not obligated to notify trade unions of disciplinary hearings - the onus is on employees to arrange their own representation; (2) appeals to labour tribunals do not automatically suspend employer decisions; (3) parties can contractually waive statutory protections through Collective Bargaining Agreements, including notice periods for vacating accommodation; (4) constitutional protections against eviction can be waived by agreement in employment contexts; and (5) employers can proceed with disciplinary action under codes of conduct against striking employees without first obtaining ministerial show cause orders. The case affirms employer prerogatives in managing industrial action and the binding nature of CBAs.