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

On 6 October 2004, some employees of Tel-One embarked on collective job action (strike) by absenting themselves from work. On 19 October 2004, the Minister of Public Service, Labour and Social Welfare issued a show cause order against the striking employees. On 9 November 2004, the Labour Court set aside the show cause order on technical grounds. Meanwhile, on 15 October 2004, the appellant suspended the striking employees without pay and charged them under its Code of Conduct with absence from work, disobedience, and disregarding procedures. In December 2004, the appellant conducted disciplinary hearings which resulted in dismissals. The Communications and Allied Services Workers' Union (the respondent) filed an application in the High Court for review of the disciplinary proceedings in its own name. The appellant's employees were employed in an essential service declared by Statutory Instrument 137 of 2003, which prohibited certain categories of employees from engaging in collective job action. The High Court (Makarau J) found the Union had locus standi, the High Court had jurisdiction, and that it was irregular for the appellant to conduct disciplinary proceedings under its Code rather than following Part XIII of the Labour Relations Act.

• Whether the respondent trade union had locus standi to bring a review application in its own name when it was not a party to the disciplinary proceedings
• Whether the High Court had jurisdiction to entertain the review when domestic remedies had not been exhausted
• Whether Part XIII of the Labour Relations Act barred an employer from taking disciplinary action in terms of its Code of Conduct against employees who participated in collective job action
• Whether the collective job action was lawful or unlawful
• Whether participation in unlawful collective job action could be disciplined through an employer's Code of Conduct

The appeal succeeded. The order of the High Court was set aside and replaced with: "The application for review is dismissed with costs." The respondent was ordered to pay the appellant's costs.

Part XIII of the Labour Relations Act does not prohibit or bar an employer from conducting disciplinary proceedings in terms of a Code of Conduct against employees who have participated in unlawful collective job action or who have absented themselves from work in breach of the Code. Section 108 of the Labour Relations Act provides immunity only to employees participating in lawful collective job action; participation in unlawful collective job action does not provide a defence to disciplinary charges for absence from work or breach of a Code of Conduct. A trade union may have locus standi to bring review proceedings on behalf of its members where the union has been involved in ongoing related proceedings, the disciplinary proceedings are part of a wider dispute between the union and employer, and the members have authorized the union to act on their behalf. The High Court has discretion to entertain review proceedings even where domestic remedies have not been exhausted.

The Court observed that it was not possible to determine from the record which specific employees had participated unlawfully in the strike, but noted that some employees were clearly prohibited from collective job action by virtue of being employed in an essential service under Statutory Instrument 137 of 2003. The Court also noted that the court a quo appeared to have assumed the collective job action was lawful based on the Labour Court's setting aside of the Minister's show cause order, but this assumption was questionable given the essential service designation. The Court distinguished the Cargo Carriers case, noting it stood for the proposition that where collective job action is massive and circumstances dwarf the Code of Conduct, it would be inappropriate to use the Code; however, this does not mean Codes can never be used in cases involving collective job action. The Court also expressed the view that employees who participated in lawful collective job action cannot be dismissed for such participation even if it contravenes a Code of Conduct provision such as absence from work.

This case is significant in Zimbabwean labour law as it clarifies the relationship between Part XIII of the Labour Relations Act (dealing with collective job action) and employers' disciplinary Codes of Conduct. It establishes that Part XIII does not bar employers from taking disciplinary action under their Codes of Conduct against employees who participate in unlawful collective job action or who absent themselves from work in breach of the Code. The judgment distinguishes between lawful and unlawful collective job action, holding that while participation in lawful collective job action provides immunity under section 108 of the Act, participation in unlawful collective job action does not. The case also clarifies that trade unions can have locus standi to bring review applications on behalf of their members in certain circumstances, particularly where there is an ongoing dispute and the union has been involved in related proceedings. It confirms that employees in essential services are prohibited from engaging in collective job action.