IMPORTANT CASES ON WORKS COUNCILS IN ZIMBABWE   AS AT 28 JUNE 2018

1. Thomas Meikles Centre vs. National Workers committee and others SC/77/02

(Binding effect of the constitution of the works council)

The court held that the employer, works council and workers committee are different entities. The works council had its own constitution different from that of workers committee. The court also stated that the constitution of the works council only binds the works council and not the workers committee. The court went ahead to say that whatever was agreed in the works council constitution doesn’t take away the rights of the employer and the employee to discuss and negotiate wages.

2. GEDDES      LIMITED                V                MARK      TAWONEZVI S.C. 34/02

(Role of works council in disciplinary proceedings)

In this case clause 3.3 of the Code of Conduct provided that:

“… the employer, after consultation with the Works Council, shall appoint in writing one or more persons in his employment to be the ‘Designated Officer’ for the purpose of administering this Code.” 

3. Wilbert Mugabe and others vs Zvimba Rural Council SC 29/O6

(Role of works council in retrenchment was mediatory)

The object of the requirement of the steps to be taken in accordance with the procedure for the retrenchment of employees prescribed under s 12C of the Act is to ensure that the retrenchment is by agreement between the employer and employees concerned or their representatives with the approval of a third party (No longer the position after Act 5 /2015). The role of the Works Council in the prescribed procedure is not to have an agreement reached between its own members. Its role is that of a mediator to secure an agreement on the retrenchment, its terms and conditions between the employer and the employees concerned or their representatives.See Prosser & 35 Ors v Ziscosteel HH 201 – 93; Chidziva & Ors v Zisco 1997 (2) ZLR 368(S); Nyangoni & 14 Ors v ZDC HH – 34 – 98

In this case the representatives of the employer and the employees concerned reached an agreement on the retrenchment, its terms and conditions without the involvement of the Works Council. The Works Council which was required by law to approve the retrenchment in terms of the agreement did so. The retrenchment therefore was to be carried out in accordance with the approval granted in terms of s 12C of the Act. The employer gave the employees concerned written notice of termination of their employment as it was obliged to do in terms of s 12C (5) of the Act.

4.  Gweru Water Workers Committee vs City of Gweru SC 25/15

(Selected workers committee members represent workers in works council)

It is one of the functions of the workers committee to appoint its members to the workers council.

5. Chemco v Tendere and Others  SC 14/17

           (Role of works council in transfer of undertaking)

 The provision of section 25 of the Labour Act requires the employer intending to transfer ownership to afford, to members of the works council representing the workers committee, an opportunity to make representations and advance alternative proposals.  The employer is placed under no obligation to accept the proposals. He simply has to give reasons for disagreeing with them. No power of veto is given by the statutory provision to the works council or to the employees.  That is to say, s 25 of the Act does not authorise the works council or the employees to stop the transfer of ownership. It does not nullify a transfer which has taken place in the absence of consultation.  It imposes no sanction for non- compliance. This may well be because the legislature has, in s 16 of the Labour Act, provided adequate recourse for employees affected by a transfer of an undertaking.  In the end, the aim is to ensure that the tenure and conditions of employment enjoyed by the employees under their former employer are not reduced or diminished by the new employer without their consent.

6. Fungura & Another v Zimnat  2000 (1)ZLR 379 (H)

(Binding nature of agreement reached in works council)

The court held that an agreement reached in works council by workers’ representatives about a retrenchment package is binding on the workers, provided that the formal requirements of the regulations are complied with and provided that the representatives have the authority of the workers for whom they act to give consent.

Individuals amongst the body of workers who dissent from the package properly agreed by authorised representatives will nevertheless be bound by the will of the majority so represented. This applied in the present case and the application must therefore be dismissed.

Further , the court held hat a works council cannot represent and bind the retrenchees when the retrenchees have not been notified of their position and could not have mandated the workers’ representatives on the works council in these negotiations. The position is different where the works council has been properly mandated by the workers.

7. Hove vs Zimphos LC/H/20/14

(It is important for works council to keep clear minutes)

The labour court relied on the minutes of the works council and it was established that the appellant had misrepresented the facts hence committed a misconduct. Minutes of works council are therefore useful in resolution of disputes.

8. Gabriel Dizha vs Zimbabwe Leaf Tobacco Company LC/H/39/2014,

(Involvement of works councils in disciplinary matters)

In this case, the court refused to attend to an application for condonation for an appellant who didn’t not note his appeal with the works council on the basis that, the works council was the body that could only grant that appeal. The rationale was condonation was would be granted by the works council as it will be the one to decide on the case any way.

9. Silver Anne Mungofa vs ZB Bank LC/H/01/14

(Role of works council in retrenchment was mediatory)

The court said that the works council may not discuss and negotiate terms and conditions for retrenchment without the involvement of the affected employees.

It was stated that Section 12 C (2) (No longer the position after Act 5/2015) of the Act provides that: “A works council or employment council to which notice (of intention to retrench five or more workers) has been given in terms of subsection (1) shall forthwith attempt to secure agreement between the employer and employees concerned or their representatives as to whether or not the employees should be retrenched and if they are to be retrenched, the terms and conditions on which they may be retrenched….” (Emphasis added) The facts of the matter reveal that the works council did not comply with the provisions of s 12 C (2) of the Act in that it did not attempt to secure agreement between the employer and employees concerned or their representatives. The whole process was therefore not in compliance with the provisions of law and accordingly defective, improper and a legal nullity. See in this regard the case of Chidziva & Ors v Zimbabwe Iron & Steel Company Limited 1997 (2) ZLR 368 (S) and also the case of Prosser & Ors v Zimbabwe Iron & Steel Company HH 201- 93 were the learned judge underscored the need and importance of precisely following the procedure in a retrenchment process were such have been laid down.