Recently, a furious workers’ committee chairman at a manufacturing company in Harare called me and complained: “A few hours ago, I went to my boss’s office to request for information pertaining to a grievance I am working on. He refused to give me the information. I got angry and raised my voice at him. His door was wide open and some of my co-workers saw it. He threatened to fire me if I ever yell at him again. Can he get away with that?”
Does this sound familiar? I have come across numerous cases like these where workers’ committee activities have provoked a manager into either insulting or threatening them with dismissal.
There are managers who view the existence of workers’ committees as a thorn in the flesh.
They see worker representatives as intruders trying to bring down or take control of the business.
They tend to view the workers’ committee as their adversary and devise ways of victimising or getting rid of those workers’ committee members whom they consider to be mischievous and disrespectful.
On the other end of the spectrum, it is not uncommon for worker representatives to misconstrue their role. They believe that by virtue of their status, they are immune to their organisations’ disciplinary policies when they misbehave.
What makes this worse is that some managers are reluctant to take any action against an errant worker representative for fear of provoking collective job action or being taken to the Ministry of Labour or the Labour Court for committing an unfair labour practice.
The discipline of worker representatives is usually complicated by the fact they fulfil two functions.
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They are on one hand, employees on contract of employment like any other employee. On the other hand, they act as representatives of other workers.
Workers’ committees are employees elected by their colleagues to represent them in dealings with management. Sections 23 to 25 of the Labour Act (Chapter 28:01) and Statutory Instrument 372 of 1985 give members of the Workers’ Committee a number of special rights.
The detail of it may not concern us here but suffice it to say that the workers’ committee member’s status does not exempt him or her from adhering to the employer’s rules.
Managers do have the right to discipline workers’ committee members, including dismissing them but this must be done in a procedurally and substantively fair manner.
Disciplining a worker representative must be for a good reason, otherwise you cause irreparable damage to workplace relations, as was held by the court in the case of Ngubo v Hermes Laundry Works (1990).
Our labour laws have an equality or “parity principle.” Though not explicitly stated, the principle holds that when a worker representative is discharging his or her duties, he is on an equal footing with management.
This principle was laid out in Food and Allied Workers’ Union v Harvestime Corporation (Pty) Ltd (1989).
In this instance, a worker representative made an abusive remark towards a supervisor while enquiring into the lateness of an employee’s pay and was dismissed.
The court stated that an employee who is a worker representative wears two hats in his relationship with senior officials and management.
When he or she acts as a worker representative, they do so on a virtually equal level with management and the ordinary rules applicable to the normal employer-employee relationship are relaxed.
At face value, this principle makes a lot of sense.
How can you be a good worker representative if you can’t confront management forcefully?
However, my view is that there are limits to which this can go. There is absolutely no reason to yell or use foul language.
You can’t threaten your boss with violence. You can’t use unrestrained profanity or obscenities especially when you are performing your duty as a worker representative.
For us to have a better appreciation of the issue under discussion, let’s look at a number of cases decided by the courts in Zimbabwe over the years.
In James North (Zimbabwe) Limited vs Muronze and Others (Case No HH32/1997), an eight-member workers’ committee incited a section of the workforce to embark on an unlawful strike.
They were dismissed. They challenged their dismissal on the basis that there had been a go-slow and not a strike.
The High Court decided that a go-slow was a form of collective job action, which in this instance was unlawful. Their dismissal was confirmed.
Section 2 of the Labour Act defines a “managerial employee” as “an employee who by virtue of his contract of employment or of his seniority in an organisation, may be required or permitted to hire, transfer, promote, suspend, lay off, dismiss, reward, discipline or adjudge the grievances of other employees”.
The Labour Act forbids managerial employees from joining the rank-and-file workers’ committee, unless such managerial employees form their own committee.
The Supreme Court endorsed this in Ngulube v Zesa and Others (Case No SC52/2002). Ngulube joined the non-managerial Workers’ Committee at Zesa.
The employer ordered him to withdraw since he held a managerial post.
He refused and was fired. Ngulube argued that his constitutional right of freedom of association had been violated. The Supreme Court rejected this argument and held that his dismissal was in order.
Still on managerial employees, but from a different perspective, the Supreme Court decided in favour of the employee in First Mutual Life v Muzivi (Case No. SC 62/2003).
The facts of the matter were that managerial employees at First Mutual Life, including Muzivi, decided to form a managerial workers’ committee.
In an apparent move to forestall this development, the company regraded the employees concerned to positions that were openly non-managerial.
This action effectively dissolved the committee. A strike followed. Muzivi was dismissed for having participated in what the employer deemed to be an illegal strike.
Ruling in favour of Muzivi, the Supreme Court held that the strike was lawful, as it was in response to an immediate threat to the existence of the workers’ committee, as provided by Section 104(4)(b) of the Labour Act.
In the case heard at the Labour Court, a workers’ committee chairman was dismissed for participating in an illegal strike (Chidare v Chibuku Breweries, 2005).
The Labour Court upheld the dismissal and found the appellant (Chidare) to have been arrogant and insubordinate to his employer.
Worker representatives are first and foremost employees of the organisation, and should conduct themselves within the framework of existing rules and procedures.
The Supreme Court alluded to this in its ruling in Zesa v Mare (Case No SC43/2005).
Mare was a member of the workers’ committee at Zesa.
A member of staff was asked by management to provide a written report as a witness in a disciplinary case. Mare forcibly dispossessed the report from its author and tore it.
Mare argued that he had done what he did in his capacity as a worker representative and therefore was not liable to discipline.
The Supreme Court could not be convinced by this argument and threw out his appeal.
When dealing with the workers’ committee, neither the antagonistic nor the hands-off approach is the right one. Instead, managers and supervisors need to have a full understanding of what the workers’ committees’ rights are and limitations to those rights.
They should learn to act rationally and keep their tempers in check when handling issues involving workers’ committees.
In terms of our labour laws, it is an employee’s fundamental right to participate in the activities of a workers’ committee, including holding office.
The same Act makes it an unfair labour practice to hinder or obstruct any employee from exercising such a right.
However, employers have a duty to keep control of the workforce regardless of the presence of workers’ committee.
Legitimate action should be taken against workers’ committee members who exceed their powers.
