Judgment No SC 118/04
Appeal No. 81/04
AND TWENTY-TWO OTHERS v
ATHOL EVANS HOSPITAL HOME COMPLEX
COURT OF ZIMBABWE
JA, MALABA JA & GWAUNZA JA
NOVEMBER 11, 2004 & JANUARY 13, 2005
for the appellants
Phillips, for the respondent
SANDURA JA: This is an appeal against a judgment of the Labour
Court which dismissed the appeal to that court by the appellants
(the workers) against their dismissal by the respondent (the
factual background is as follows. At the relevant time the workers
were employed by the Home, an institution which looked
and other persons needing care, and which fell under the general
ambit of the Salvation Army. Four of them were
nurse aides, three
were maintenance workers, eleven were gardeners, two worked in the
kitchen and three worked in the laundry.
and 27 November 2001, the workers embarked upon collective job action
because of a salary dispute. The collective job action
recommended by their trade union, and fourteen days notice of the
intention to resort to such action had been given to
the Home in
terms of s 104(2) of the then Labour Relations Act
[Chapter 28:01] (the Act).
on 3 December 2001 Mr Howard (Howard), the
administrator of the Home, wrote to each of the workers as
On the 26th and 27th November you took part
in collective job action which seriously disrupted the hospital and
caused considerable distress.
Salvation Army Code of Conduct you are suspended from duty
immediately, without pay or benefits.
is the Complaint Form, and you are invited to complete Section Two
in your defence and return it to the Chairman of
Disciplinary Committee has called for a Hearing at 2.15 pm on
Wednesday the 5th December 2001 at the Salvation Army
Headquarters, 45 Josiah Chinamano Avenue, Harare, when you are
requested to attend.
on 5 December 2001 only one worker arrived at the venue where
the disciplinary committee (the Committee)
was scheduled to
conduct the hearing, but she refused to appear before the Committee.
The hearing was then postponed to 12 December
2001, and the
workers were informed in writing. They were warned that if they did
not attend, the proceedings would go ahead in
on 12 December 2001 the workers appeared before the Committee
and were represented by Mr E Guri (Guri),
a trade union
representative. At the commencement of the proceedings, Margaret
Sutherland (Sutherland), the chairwoman of
stated that the act of misconduct complained of in terms of the Code
of Conduct (the Code) was unlawful collective
then read out the statements made by the persons who had witnessed
the unlawful collective job action, and who were present
disciplinary hearing. Thereafter, Guri handed in the Complaint
Forms which had been completed by the workers, and on which
workers had set out their replies to the charge.
worker had replied to the charge as follows:
It was not an unlawful collective job action as notice was given
to the employers by the union dated 29 October 2001. The
collective job action was a national job action. The issue in
dispute is of right and not of interest as prescribed by SI 307A
It is my
understanding that the matter has since been referred to the
Registrar of Labour Relations for resolution.
no show cause order issued by the Minister, and no disposal order
declaring the collective job action as unlawful.
the Complaint Forms had been handed in by Guri, Sutherland gave the
workers the opportunity to say what they wanted to say
charge. Guri spoke on behalf of all of them and raised a number of
issues to which the Committee responded. The Committee
reserved its decision.
on 17 December 2001, the Committee found the workers guilty and
recommended their dismissal. Accordingly, on
21 December 2001
Howard dismissed them with effect from 3 December 2001, the date
on which they had been suspended.
workers then appealed to the Labour Relations Tribunal (the
Tribunal) (now the Labour Court), but the appeal was subsequently
dismissed. Aggrieved by that decision, they appealed to this Court.
notice of appeal, the workers prayed that the decision of the Labour
Court be set aside on the following grounds:
1.1 The Court a quo erred in law in ignoring the fact
that the respondent had conducted a mass disciplinary hearing.
1.2 A fortiori
the Court a quo ignored that the Code of Conduct was not
respected with regard to the need for each individual employee to be
separately judged and
separately brought before a disciplinary
the Court a quo grossly erred in holding that the Code of
Conduct that was applied was registered or was the correct one.
the Court a quo grossly erred in holding that the
collective job action embarked upon was unlawful.
attempt to amend the grounds of appeal by the addition of two new
grounds was abandoned at the hearing of the appeal. I shall
with the grounds of appeal set out above in turn, though not in the
THE COLLECTIVE JOB ACTION
The Labour Court found that the collective job action embarked upon
by the workers was unlawful because it contravened s 104(3)(a)(i)
of the Act. In my view, that decision was correct.
of the Act provided as follows:
Subject to subsection (4), no collective job action may be
threatened, recommended or engaged in by
(a) any employees, workers committee or trade union
(i) if the employees concerned are engaged in an essential service;
of s 104 of the Act, which is mentioned above, is not relevant
in the present case.
relevant time, the definition of essential service, which was
set out in s 102 of the Act, included any health,
view, bearing in mind the fact that the Home was registered as a
nursing home, and that it looked after people suffering from
sickness, injury and the infirmities of old age, there can be no
doubt that it provided a health service to the patients it looked
workers were, therefore, engaged in the provision of an essential
service, and should not have embarked upon the collective
The fact that some of them were not directly involved in looking
after the patients is irrelevant. They were all
employed by the
Home which provided an essential service, and their services were
required for the proper functioning of the Home.
THE ALLEGED MASS HEARING
The allegation that the Committee had conducted a mass hearing was
not one of the grounds on which the workers relied when they
to the Tribunal against their dismissal. Consequently, when the
appeal was later heard by the Labour Court, that court
did not deal
with it, and cannot be faulted for not doing so.
McNALLY JA stated in S.T. Chikanda v United
Touring Company Ltd SC-7-99 (not reported), at pp 3-4 of the
The function of the Tribunal was to deal with the appeal on the
basis of the grounds of appeal raised by the appellant.
argument was not raised before the Tribunal, the Tribunal cannot be
faulted for not dealing with it. It cannot be a ground
from the Tribunal that it did not deal with a matter it was not asked
to deal with.
circumstances, the allegation of a mass hearing was not a matter
properly before us, and cannot be a basis for setting aside
Labour Courts decision.
even if the allegation had been a matter properly before this Court,
I do not think that the workers would have succeeded
in their attempt
to persuade us that the Labour Courts decision should be set aside
on that basis.
a disciplinary hearing is a mass hearing which vitiates the
disciplinary proceedings would depend upon the facts of each
The number of employees involved in the hearing is not decisive of
Carriers (Pvt) Ltd v Zambezi & Ors 1996 (1) ZLR 613 (S) the
number of employees involved in the disciplinary hearing was three
hundred and twenty-two, and the holding
of a hearing involving so
many employees was inconsistent with the provisions of the relevant
Code of Conduct. In addition, the
employees were not given an
opportunity of making oral submissions at the hearing. This Court
held that the holding of such a mass
hearing was improper and that,
as a result, the disciplinary proceedings were vitiated.
the facts in the present case are very different from those in the
Cargo Carriers case supra. Firstly, the disciplinary
hearing involved only twenty-three workers as opposed to three
hundred and twenty-two. Secondly, at
the hearing the twenty-three
workers were given an opportunity to make oral submissions
individually but they decided that Guri should
make the submissions
on their behalf. And finally, the Code of Conduct in the present
case envisaged a disciplinary hearing involving
more than one worker.
It provided, inter alia, as follows:
disciplinary hearing will be attended by:
facing disciplinary action;
circumstances, the holding of a disciplinary hearing involving the
twenty-three workers cannot be faulted.
In this regard, the Labour Court found that the Code had been
registered and that it applied to the workers. These are findings
of fact and, unless it can be said that they are so outrageous in
their defiance of logic that no sensible person who had applied
mind to the relevant issues could have made such findings, this Court
will not interfere with them.
view, bearing in mind that the Code is stamped Labour Relations
Registrar 20th October 1992 on every page, and that in
the application for the registration of the Code it was specifically
stated that the Code
would apply to the Athol Evans Hospital Home,
Harare, I cannot say that the findings of fact made by the Labour
Court are outrageous
in the sense indicated above.
I wish to consider whether the Code provided for the dismissal of the
workers. I do not think that it did. The relevant
the Code provided as follows:
Summary suspension with application for dismissal: an employee
may be suspended without pay, if there is good cause to believe
he/she is guilty of any of the following offences
1. - 11.
job action (which refers to any action by one or more employees to
withdraw their labour or go slow
compelling management to take or refrain from taking any specific
happens, the Code was loosely worded. However, it would appear that
what was contemplated was most probably that where
there was good
cause to believe that a worker had committed a serious act of
misconduct, such as unlawful collective job action,
he would be
suspended without pay pending the authorisation of his dismissal by a
labour relations officer in terms of s 3(1)
of the Labour
Relations (General Conditions of Employment) (Termination of
Employment) Regulations, 1985, published in Statutory
of 1985 (the Regulations).
was the intention of the parties, it follows that the Home did not
comply with the Code when it dismissed the workers.
But even if the
Home had complied with the Code and applied to a labour relations
officer for the authority to dismiss them, the
officer could not have entertained the application because in terms
of s 101(5) of the Act a labour relations
intervene in any dispute or matter liable to proceedings under the
Code. And embarking upon the unlawful collective
job action was a
matter liable to proceedings under the Code.
clearly, when the Code was prepared the parties overlooked the
provisions of subs (5) of s 101 of the Act. Had
aware of the provisions of that subsection, they would have made
provision for the termination of contracts of employment
by the Home
without seeking the authority of a labour relations officer.
issue which now arises is what should be done at this stage. In
considering that issue, it is necessary to bear in mind the
effects of the unlawful collective job action. They were set out by
Howard and by the matron in their statements to the
statement, Howard said:
In conclusion, the action of a number of staff, mainly gardeners,
but assisted by others, resulted in severe disruption, considerable
distress to both visitors and patients, as well as endangering the
lives of those who are very sick. Many members of staff wanted
go to work but were threatened with severe consequences if they
statement, the matron had this to say:
After I returned to the wards from the B scheme, both sisters
had been forced outside, leaving no trained staff SCN Katsande
helpless patients and no staff some lying in wet and dirty beds
and not even able to turn over. 2 unconscious male patients
tube feeding and oxygen to breathe left alone.
going through all the wards taking all nursing staff away.
Evacuation of the most serious helpless patients was therefore
necessary and ambulances had to be called to take them to safety and
gate the male staff were preventing entry and exit. The EMRAS
ambulance had a great struggle to get in and Dr Layard
collect his helpless wife had his car pushed and obstructed.
ambulance phoned to say they could not help us in a violent
clear, therefore, that as a result of the violent and unlawful
actions of the workers the situation at the Home was serious
life-threatening. Since the workers had no defence to the charge,
they were properly found guilty, and their subsequent dismissal
circumstances, it seems to me that, bearing in mind that the Home did
not have the power to dismiss the workers, that the
dismissal of the
workers was entirely justified, and that no useful purpose could be
served by any delay in the finalisation of the
dispute between the
parties, this is an appropriate case in which this Court should
exercise the power it has in terms of s 22(1)(b)(ix)
Supreme Court Act [Chapter 7:13] and dismiss the appeal.
That section reads as follows:
Subject to any other enactment, on the hearing of a civil appeal
the Supreme Court
(b) may, if it thinks it necessary or expedient in the interests of
any other course which may lead to the just, speedy and inexpensive
settlement of the case;.
With regard to costs, I think that it would be appropriate not to
make any order because in terms of the Code the Home did not have
power to dismiss the workers although the dismissal was completely
appeal is, therefore, dismissed with no order as to costs.
JA: I agree.
JA: I agree.
Blanckenberg, appellants' legal practitioners
Godlonton & Gerrans, respondent's legal practitioners