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Davies Ndumiso Sibanda, Labour Matters
MANY workers engage in illegal collective job action out of ignorance of the law and at times employers fail to take legal action on illegal collective job action out of ignorance of their right.

While the Constitution of Zimbabwe grants employees’ rights to collective job action, the rights are not absolute as they have to be balanced to those of the employer meaning that procedure for collective job action set out in the Labour Act Chapter 28:01 section 104 have to be followed without fail except for those clauses that interfere with fairness.

Workers should not be misled by people who say the Constitution gives unregulated freedom to engage in collective job action as collective job action is still regulated by the current procedures. Changes will only come when the Labour Act is aligned to the new Constitution.

In my opinion, there is not much that will change in procedures for engaging in collective job action as to a large extent the procedures do not create unfairness but provide for orderly processes that take into account the interests of both parties.

The only thing that might change is maybe making the process simpler and user friendly to the parties but risks for the parties will remain alive where parties do not follow procedure.

Section 2 of the Labour Act Chapter 28:01 defines collective job action as “means an industrial action calculated to persuade or cause a party to an employment relationship to accede to a demand related to employment, and includes a strike, boycott, lock-out, sit-in or sit -out, or other such concerted action”.

From that definition, it is clear that any act by employees that is intended to get the employer to give in to their demands is collective job action. It does not matter whether the workers are on or off duty or on leave, we find guidance in this matter in the case Lancashire Steel Pvt LTD vs Zvidzai and 3 others SC29/95 where Justice McNally confirmed the dismissal of employees who were engaged in collective job action after hours.

Workers must also know that certain conduct during job action whether written into the code of conduct or not could result in dismissal. These are acts such as booing or jeering at management or offering insulting behaviour.

These are common law offences that an employee can be charged with even if they are not in the code of conduct because they are acts inconsistent with implied conditions of employment. We find guidance in the same case where Justice McNally said

“We cannot subscribe to the view that when mature men jeer, boo and offer such insulting behaviour to management they are unaware that such conduct is unlawful. They do not have to be told that their gathering in unlawful. It is not only upon refusal to desist from such behaviour after such caution that they can be dismissed for unlawful collective job action. This is not a requirement under the Labour Relations Act”.

Further, the Supreme Court has said exclusion of common law offences in codes of conduct does not mean the charges related to common law offences cannot be raised against an employee. This was said by the Supreme Court in the case DHL International vs Tinofireyi SC80/14.

Given the legal issues raised, employers and workers need to avoid engaging in collective job action from an uninformed position. There is a need to seek legal advice from a competent lawyer.

In the majority of cases, many good men and women have lost careers and jobs due to poisonous advice given by bogus labour advisers who usually disappear when the legal process begins and in worse cases poor workers would have been milked their hard earned cash by somebody who leads them to slaughter.

As things stand as I have mentioned in my earlier articles, engaging in collective job action is not the best route for workers as the process in cumbersome and expensive and it is a high risk game where workers could easily lose their jobs. Smart workers have tended to litigate despite the time it takes and at the same time remain loyal to their workplaces.

Employers are at times faced by illegal expensive collective job action due to lack of investment in worker education and at times managers are also not trained as well. In some instances, the training of the workers committee and managers is basic and done by unqualified and inexperienced people.

Thus the labour relations ends up being managed through the grapevine mythology and other beliefs which easily result in suspicion and conflict with other employers and solutions become difficult to get as the disputes will not be founded on tangible facts.

In conclusion, parties must invest in labour relations education and seek legal advice before engaging in collective job action.

Davies Ndumiso Sibanda can be contacted on: email: [email protected] Or cell No: 0772 375 235