Talk to the National Railways of Zimbabwe Education Seminar
INTRODUCTION
I have been asked this afternoon to speak on “the legal framework for labour relations in Zimbabwe”. The topic is far too broad to do justice to it in 30 minutes; indeed students at University spend an entire year studying labour law. Accordingly I propose to take a brief look at the changes to the appeal procedure and dispute resolution procedure and then shall consider some aspects regarding termination of employment in the broadest possible terms.
Changes to Legislation
As you are aware the Labour Relations Act has been substantially amended by the Labour Relations Amendment act no 12 of 1992. Likewise Statutory Instruments 368/1985 being the Labour Relations (General) Regulations 1985 and Statutory Instrument 369/1985, being the Labour Relations (Labour Relations Tribunal) Regulations 1985 have been repealed recently and replaced by Statutory Instrument 31 of 1993, the Labour Relations (General) Regulations, 1993 and Statutory Instrument 30 of 1993, the Labour Relations (Settlement of Disputes) Regulations, 1993 respectively. This afternoon I intend concentrating on the Labour Relations Amendment Act itself and statutory instrument 30 of 1993.
I shall concentrate on three changes to the act and regulations, namely changes to the appeals procedure, the prescription of disputes and employment codes of conduct legislation.
Appeal Procedure
Zimbabwean workers and businesses have been burdened by the cumbersome 5 tier appeal procedure first instituted in 1985. I am sure that you will agree with me when I say that the former procedure was detrimental to the interests of workers, management and productivity in Zimbabwe. To illustrate my point I should mention that tomorrow I am handling a case on behalf of the Railways before the labour relations tribunal (in terms of the old regulations) in connection with a Railways employee who was dismissed after being absent from duty in December 1987 without permission. Five years have gone past and this worker still does not know where he stands through no fault of the Railways. And the procedure isn’t finished yet as any party aggrieved by the decision of the tribunal can still appeal to the Supreme Court which will take at least another year. Here we have a case involving a simple matter which has taken at least five years to resolve. Justice delayed is justice denied; the worker in this case has been held in limbo for five years; the Railways face the prospect of having to pay the worker five years in back pay when no work has been done. Clearly the law was entirely unsatisfactory and government is to be commended for shortening the appeal procedure.
In Hong Kong there is only a 2 tier procedure. One first appears before a labour hearing officer who considers legal and factual issues. Thereafter there is only an appeal to a higher body on matters of law and cases are determined extremely quickly. I would of course have liked a similar appeal procedure to be introduced in Zimbabwe as I believe it is the cheapest and quickest method for all concerned. Government has reduced the 5 tier procedure to a 3 tier procedure as follows:
1. Initially disputes are still handled by labour relations officer whose powers are somewhat extended save for the fact that they cannot now issue an interim order in terms of section 109 the Labour Relations Act as amended by section 24 of the Labour Relations Amendment Act 12 of 1992. The labour relations officer can either make a determination himself or he can refer the matter for determination by senior labour relations officer.
The labour relations board has been dispensed with although its activities will continue until approximately mid this year to finalise matters already in the pipe line. Likewise the regional hearing officer’s position has been dispensed with.
2. Any party aggrieved by a decision made by the labour relations officer or senior labour relations officer may appeal to the Tribunal direct which in terms of Statutory Instrument 30 of 1993 has similar powers to those conferred on it in terms of the now appealed Statutory Instrument 369/1985.
3. An appeal from the tribunal to the Supreme Court in terms of section 108 of the Labour Relations act is still allowed.
The Labour Relations (general conditions of employment) (termination of employment) Regulations 1985 (Statutory Instrument 371 of 1985) continue to be in force. Although the regulations are not clear it appears as if a determination will be made by a labour relations officer with an appeal direct to the tribunal. In other words it does not appear as if senior labour relations officers will be involved in termination matters unless labour relations officers feel they cannot handle it themselves and refer the matter to a senior labour relations officer for determination in terms of section 8(e) of the labour relations (settlement of disputes) regulations 1993.
Whilst dealing with termination of employment matters let me stress that the landmark decision arrived at in the case of Masiyiwa versus T M Supermarket 1990 (1) ZLR166 (SC) will not be affected in any way by the change to the Act or the Regulations. In this case the Supreme Court decided whether the labour relations officer or the tribunal has any discretion to vary the punishment imposed on an employee once a ground of suspension relied upon by the employers has been approved. The Supreme Court decided that neither a labour relations officer nor the tribunal has any discretion to impose a lesser punishment on the employee than the one imposed by the employer. In other words once labour relations officers or the Tribunal has found the employee guilty of the misconduct alleged they are obliged to serve a determination terminating the contract of employment and cannot substitute some lesser form of punishment.
There seems to be considerable confusion regarding this case and it appears as if employees, unions, lawyers representing employees and the tribunal itself are not aware of the full implications of this case. This week I argued a matter where the opposition lawyer sought a ruling from the tribunal lessening the punishment imposed. The sooner that everyone concerned realises that neither the labour relations officer nor the tribunal has any discretion to impose a lesser penalty the better.
A major concern I have regarding these termination disputes is that an enormous amount of money is wasted and the only people that are benefiting are the lawyers on both sides! Whilst undoubtedly the new appeal procedures will cut down on costs we are still faced with a 3 tier appeal procedure. In past years we have done precious little else on behalf of the Railways other than represent them in termination of employment disputes. In the vast majority of these cases employees have been guilty of serious misconduct. Union representatives have sought to argue that a lesser punishment should be imposed. Often unions have employed legal practitioners to argue in the same manner. None of these cases have come to the Supreme Court yet, but I am confident that if they do the Railways will be successful. But in the interim the Railways, the unions, the employees and the country suffers through indecision, unnecessary legal bills and uncertainty. The new 3 tier system will undoubtedly cut down on time and money but it is imperative that if the Railways is going to be a profitable organisation then some form of agreement must be reached with the unions that they will not unnecessarily pursue these actions.
Let me stress that I am not saying for one moment that employees should not vigorously appeal their case on the merits of the matter. By this I mean when the allegations levelled against the employee concerned are not clear or in dispute that is a different matter. Then morally speaking it is in everyone’s interests to have the issue fully aired. However where the facts are clear and misconduct is established showing that the employee is liable to summary suspension in terms of section 3 of the labour relations (general conditions of employment) (termination of employment) regulations 1985 then time and money should not be wasted by the unions in defending such employees.
Employment Codes of Conduct
I think that part of the reason why the unions and employees have sought to argue that the tribunal should impose lesser punishments is because there has often been no uniformity of punishment imposed by the Railways. I have argued many cases where union representatives and employees have placed evidence before the labour relations officer or the tribunal showing that different employees have received lesser punishments than termination. Whilst morally it seems only fair that there should be uniform punishments imposed on everyone, as the law stands at present the labour relations officer and the tribunal have no discretion to impose a lesser punishment. Once the misconduct is established then, as far as the law is concerned the termination of employment must follow. This lead me onto the second major change I wish to discuss introduced by Section 25 of the Labour Relations Amendment Act 1992 which introduces a new Section 117A(1) to the Labour Relations Act. In terms of this section an employment council or works council may apply to register an employment code of conduct that shall be binding in respect of a particular industry.
Section 117A(3) (c) interests me the most. It states that a code shall provide for penalties for any breach of the code, which may include oral or written warnings, fines or reductions in pay for a specified period, suspension with or without pay or on reduced pay, demotion and dismissal from employment. Whilst the National Railways of Zimbabwe has set-up various punishments which may be imposed it has not so far, as far as I am aware, to tie these punishments to various misdemeanours. The appropriate punishment is largely left to the discretion of the senior management person involved in making the decision. Inevitably this procedure does lead to instances where different penalties will be imposed fro the same offences. In my experience people who have done wrong are usually satisfied that the punishments imposed on them are fair if they know that everyone else has received the same medicine. Whilst I recognise that it is difficult to categorise all the different misdemeanours I believe that some effort should be made to tie penalties to particular breaches of an employment code within the National Railways of Zimbabwe. It goes without saying that the various penalties should be agreed to by both the management and the workers representatives. In this way I believe that many of the lengthy disputes regarding termination of employment can be resolved at an early stage. At the very least employees who have been dismissed will have to fight matters on their own without the assistance of the unions if the unions are satisfied that the employment code has been followed.
Prescription of Disputes
The third and final change to the act and regulations which I would like to discuss this afternoon concerns the introduction of a prescription period for disputes. In terms of section 110 of the act amended by section 24 of the labour relations amendment act no 12 of 1992 no labour relations officer shall entertain any dispute or unfair labour practice which has been referred to him after 180 days have elapsed from the date when the dispute or unfair labour practice first arose. This is a most welcome change to the act and both management and the unions need to take careful note of it.
It has come to my attention in two recent cases handled by us that management has waited up to six months after the misdemeanour occurred before suspending the employee and applying for his dismissal. This section will prevent the Railways from bringing such cases before the labour relations officer and the worker will have to be reinstated. Likewise it will prevent an employee from resurrecting an issue which happened a long time ago. It goes back to the principle mentioned earlier that justice delayed is justice denied. Any delay in bringing an employee before the labour relations officer is fundamentally unfair and the management will in future have to make an immediate decision whether or not to suspend an employee and apply for his dismissal in terms of the regulations.
Conclusion
In conclusion I would like to leave you with a few general comments. I spoke earlier about my belief that the legal framework of the resolution of dispute is still far too cumbersome and I would far prefer the Hong Kong system which I think benefits both employee and employer. However no matter what legal framework one has in place there is a more fundamental issue and to illustrate what it is I shall give you two examples. Firstly in Hong Kong I understand that they have very few cases which come before the equivalent of our labour relations officers. The reason for this is because it is a disgrace for a worker to have to argue his case before a labour relations officer. In other words if there are any allegations levelled against a worker that he has been lazy, negligent or incompetent workers generally consider it to be a disgrace and do not want to compound their disgrace by having their dirty linen aired before a public tribunal. Likewise Clem Sunter the South African economist and writer tells the story of his visit to Japan and in particular when he took the famous Bullett Train. The Bullett
train as you may know is renowned for its punctuality; in fact I understand that in Japan their Railway system as a whole is renowned for its punctuality. On the day that Clem Santa took the train there had been a typhoon which had disrupted the rail and as a result the Bullett train was late. When Clem Santa enquired about the delay the station manager did not seek to make any excuses; he did not blame the typhoon – instead he apologised profusely and said that the Japanese Railways were entirely responsible for the delay!
These two stories illustrate an ingredient missing in Zimbabwe. That ingredient is commitment to efficiency in service. That commitment must be displayed not only by the workers but also by management. The legal framework I have spoken about this afternoon should be seen by everyone working for the Railways as a last resort. All those working for Railways should take tremendous pride in the Railways and display that pride by showing commitment to efficiency and top rate service; then these regulations will become largely irrelevant. It goes without saying that as long as everyone relies on the legal framework as the main-stay of their rights the longterm economic viability of the Railways will be in jeopardy. The railways can only become a viable economic enterprise if ALL working for it and associated with it are committed to providing a first class service!