Fired workers take Chidyausiku judgment to ILO

SACKED TelOne workers have written to the International Labour Organisation (ILO) to express concern over a decade-old Supreme Court judgment validating their dismissal.

The judgment was made by the Supreme Court bench under chief justice Godfrey Chidyausiku, who retired in February after a career on the bench spanning over three decades.

The ex-TelOne workers had been fired for staging an unlawful industrial strike over 13 years ago in October 2004.

On October 15, 2004, TelOne suspended the striking workers without pay and benefits for being absent from work, disobeying a lawful order and disregarding standing procedures, before they were eventually dismissed from their employ.

The employees have since then been contesting the legality of their dismissal, saying none of them was ever invited to attend a hearing before being dismissed as is provided for by the law.

They further claimed that there was no reason for the dismissals since the industrial action was legally sanctioned.

But TelOne has maintained that the hearings that led to their dismissal were conducted legally and that the employees were charged under the company's code of conduct.

After failing to reach consensus on the matter, the parties approached an arbitrator, who ruled in favour of the employees.

TelOne proceeded to lodge an appeal with the Labour Court, which ruled in favour of the employees.

In a bid to clarify the legality of the purported hearings, the Communication and Allied Services Workers Union of Zimbabwe (CASWUZ) filed an application to the High Court for a review of the disciplinary proceedings.

The then High Court Judge Justice Rita Makarau found that TelOne's decision to fire the workers flew in the face of the express letter of law, noting that TelOne's code of conduct was not compatible with the laws of Zimbabwe.

She went on to say that the disciplinary hearings conducted by TelOne were a nullity as nothing lawful came out of them even if the company met all the lawful requirements of the code and law.

Dissatisfied with the outcome, TelOne appealed to the Supreme Court, where the now retired Chief Justice Chidyausiku, who presided over the matter ruled under judgment SC 26/06 that the dismissals were lawful since the employees had violated Statutory Instrument 137 of 2003, which provides that employees who are in the essential services sector shall not embark on industrial action.

The ex-TelOne employees are now arguing that the manner in which Chidyausiku handled the case was biased and violated ILO conventions.

In a four-page petition dated March 7, 2017, copied to the Ministry of Public Service, Labour and Social Welfare and the Zimbabwe Congress of Trade Unions, TelOne's former employees pleaded with ILO to urgently come to their rescue.

"Herein under is a list of some of the aggrieved and disgruntled 1 255 TelOne (Private) Limited dismissed employees who were unlawfully dismissed from employment following our participation in a lawful industrial action," reads part of the petition.

"We are being denied our terminal benefits and we are humbly appealing to your honourable offices in pursuit of our benefits as is enshrined in terms of section 13 of the Labour Act 28.01".

Frank White, CASWUZ organising secretary, told the Financial Gazette that even TelOne's code of conduct clearly stated at the time that for all matters dealing with industrial action, reference to the Labour Act had to be made but all these factors were disregarded in dismissing the employees' argument.

"Honestly how can a whole Chief Justice give the green light for salary and terminal benefits to be forfeited for merely staging an honest demonstration? Besides, TelOne did not follow the proper procedures because we were fired first and invited for a hearing later in a move which lives up to the proverbial statement, which says, ‘locking the stable when the horse has bolted out'," said Passmore Gweza, who served as TelOne's technical assistant before being dismissed.

Contacted for comment, Public Service, Labour and Social Welfare Minister, Prisca Mupfumira, said she was not aware that the matter was in the process of being reported to ILO.

"I have not been officially briefed on the matter and I can't shed more light at the moment," she said.

TelOne corporate manager, Melody Mbira-Harry, who had earlier hinted that the article was likely to tarnish the company's image, had not responded to questions forwarded to her at the time of going to print.

Legal expert, Passmore Nyakureba said it was not going to be easy for the ex-TelOne workers to overturn the court ruling.

"…the ILO has no legal force to overturn the Supreme Court of Zimbabwe judgment because it is formed on the principles of tripartism, thereby drawing membership from labour, business and government. However, the best that can be achieved is to use the organ to bring government to the table and persuade the relevant authorities to reconsider the plight of the workers which will possibly lead to compensation of the dismissed workers," he said.

Bulawayo-based labour analyst, Davies Sibanda, said the workers prospects in winning the case were minimal .

"The major stumbling block is that ILO conventions do not automatically become a part of the national law. As such, the ex-TelOne workers can just lobby the ILO in order to avoid such kind of judgments to be passed in future," he said.

The challenge on Chidyausiku's judgment comes in the wake of yet another pending case at the Supreme Court where Romeo Zibani, a University of Zimbabwe law student, is challenging his appointment of retired judge Vernanda Ziyambi to hear a case in which he was challenging the process used to select a new chief justice.

Towards the end of Chidyausiku's reign, the Judicial Services Commission called for suitable candidates to apply for the Chief Justice post. The candidates went through public interviews that led to four candidates being short-listed.

Of those four one did not come for the final round of interviews which came out with three names recommended to President Robert Mugabe.

Zibani went to court seeking a constitutional amendment that would give President Mugabe the sole powers to select Chidyausiku's successor.

His court challenge was dismissed by a three-member judges panel of Ben Hlatshwayo, Bharat Patel and Zyambi, which prompted him to challenge the constitutionality of the appointment by Chidyausiku of retired Justice Ziyambi to the judges panel that heard his case.

Ziyambi retired from the bench last year after reaching the age of 70.

Zibani's argument is that Chidyausiku contravened Section 168 (2) of the Constitution of Zimbabwe by appointing Ziyambi thus making the judgment in his case null and void.

The case is pending at the Constitutional Court.