adminIn her judgment on a case where three Servcor employees were appealing against their dismissal by the employer, Mrs Mercy Moya-Matshanga ruled that Messrs Paul Guri, Edmos Shoko and Kudzanai Dzumbunu, who were first, second and third Appellant respectively, had been unfairly dismissed and should be reinstated to their former positions without loss of salary and benefits.
Messrs Guri, Shoko and Dzumbunu were dismissed from work on 12 April 2011 following an internal disciplinary hearing at the company where they were charged with willful disobedience of a lawful order in terms of Section 1.8.111.3 of the Servcor Code of Conduct.
Servcor is situated in Belmont industrial area, Bulawayo.
The company last year summoned its entire staff for a hearing for allegedly failing to obey an instruction to return old uniforms.
All the workers were found guilty by the internal disciplinary team and some of them walked out in protest after the verdict.
They then sought reprieve at the Labour Court.
The management had recalled all old uniforms used by workers after an official had reportedly spotted someone not employed by the company wearing the uniform at a private function on a weekend.
The function was not for the company and the management felt that affected the company’s reputation thereby prompting the decision to summon all workers to return the old uniforms.
The management had set 6 April as the deadline for the return of the uniforms, failure to which workers would be charged.
The workers did not meet the deadline but wrote to the management that they would surrender the uniforms on 7 April and when they did, the management refused to accept them but instead charged every employee resulting in them being dismissed.
Messrs Guri, Shoko and Dzumbunu took their case to court and won it.
Mrs Moya-Matshanga said the matter was governed by the Collective Bargaining Agreement for the catering industry, Statutory Instrument 167 of 1991 Section 29(7) which states that “Any clothing supplied to an employee in terms of the clause shall remain property of his employer and shall be returned to him in good condition on the resignation, retirement or discharge of such employee.”
The Labour Court president said the Collective Bargaining Agreement was binding for both parties that enter into it and no party, in this case Servcor or its workers, could arbitrarily alter its provisions like what Servcor did in casu
Mrs Moya-Matshanga said the workers were justified when they delayed to surrender the uniforms because they felt that their employer was acting in an arbitrary manner.
“If any discussions had been held there, I am of the view that the workers would probably not have resisted. They only submitted the uniforms after seeking advice from the National Employment Council and in my view they were right because they were neither resigning, retiring and either being discharged. The Act is clear that the uniform is property of the employer but shall be returned to him on specific conditions and none of these conditions had occurred. As such no employer or employee may waive the provisions of this agreement,” said Mrs Moya-Matshanga.
She said the employer should have dealt with the culprit as an individual than to arbitrarily act ultra vires.
“The workers rightly resisted because the employer was waiving provisions of the collective bargaining agreement without going to the works council. The binding nature of a registered Collective Bargaining Agreement is a trite principle of our Labour Law and its terms shall become effective and binding.
“Therefore the employer in casu had no right to change provisions of the agreement because once registered, it becomes a piece of legislation and no one party can amend it, as doing so renders one guilty of unfair labour practice and liable to prosecution under criminal justice system,” Mrs Moya-Matshanga said.
She said the employer’s instruction to fire the workers was unlawful as it clearly went against the provisions of Collective Bargaining Agreement and therefore upheld the Appeal.
The respondent, being the company was also ordered to pay the cost of suit.
Mr Z Chikwenya of the Zimbabwe Catering and Hotel Workers Union represented the workers while the company’s lawyers were Coghlan and Welsh Legal Practitioners.
Londile Moyo
Bongani Ndlovu