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NEC codes have no universal application

There are several cases in which arguments have been raised on the applicability of National Employment Council Codes of Conduct.

BY REQUEST MACHIMBIRA

This has led to arguments that are purely technical, and thereby ignoring the merits of the cases at hand.

In this installment, I review a Supreme Court judgement which sets out relevant precedence on the applicability NEC Codes of Conduct. The matter is Almin Metal Industries Limited vs Hardon Chinowaita SC8-03. In this matter, Almin Metal Industries was the applicant and Hardon Chinowaita was the respondent.

Facts of the matter
The issue in this matter is whether or not the National Employment Council Code of Conduct for the Engineering and Iron and Steel Industry applies to managerial employees.

The respondent, who was employed as a manager by the appellant was, on March 11 1996, suspended without pay pending dismissal.

An application for authority to dismiss the respondent was made, and the matter was heard by the Labour Relations Officer who ordered the appellant to reinstate the respondent with immediate effect and “without loss of pay, benefits and status or alternatively to pay his wages and terminal benefits … within 14 days after receipt of this determination”.

The Senior Labour Relations Officer before whom the matter went on appeal, found the allegations against the respondent to have been proved and reversed the determination of the Labour Relations Officer, and authorised the dismissal of the respondent with effect from the date of suspension.

Before the Labour Relations Tribunal, the respondent persisted in his stance that he should be dealt with in terms of the appellant’s Code of Conduct and that the Labour Relations Officer and Senior Labour Relations Officer had had no jurisdiction to hear the matter.

This contention was upheld by the tribunal which found that the respondent, as a managerial employee, was covered by the Code of Conduct for the industry and ought to have been dealt with in terms thereof.

The tribunal directed the appellant to reinstate the respondent without loss of pay and other benefits with effect from the date of his suspension. Against this decision, the appellant appealed to the Supreme Court, on the grounds that the tribunal erred in law in holding that the Code of Conduct for the industry concerned applied to the respondent notwithstanding that he was a managerial employee.

The Supreme Court observed that the NEC Code of Conduct for that industry provided that the code shall apply to:

“The employers and employees in the industry who are members of the employers’ organisation and trade union respectively in the area of Zimbabwe;

All other employers and employees in the industry in the area of Zimbabwe.

The Collective Bargaining Agreement further defined “employee” as follows:

“Employee means every person employed in the industry, other than a managerial employee as defined in the Act, the nature of whose employment is covered by the registered interests of the trade union and for whose grade or class of skill a salary or wage is prescribed in this agreement, and includes a learner as provided for in clause 21A and a self-employed person”.

A further amendment to the Agreement was published in SI 301 of 1996. It provides in s 1(2) that:

“This Code of Conduct applies to all employers and employees in the General Engineering Industry covered by the Collective Bargaining Agreement of the Engineering and Iron and Steel Industry (General Engineering Section)…”

The definition of employee as contained in the agreement was not amended by the statutory instruments afore-mentioned. The respondent, being a managerial employee, was not covered by the agreement and the Code of Conduct was therefore not applicable to him.

The Tribunal based its judgement on a decision of the Supreme Court in Zimbabwe Tourist Investment Company vs Gwinyai S-150 of 1995, in which it was held that the Code of Conduct of the appellant in that case was applicable to all employees including managerial employees.

At page three of the cyclostyled judgement McNally JA after quoting the definition of “managerial employee” as set out in s2 of the Labour Relations Act 16/85, said:

“I quote this definition to underline the perhaps obvious point that a managerial employee is an employee. Therefore, prima facie a Code of Conduct applicable to employees is applicable to all employees unless otherwise stated.”

It will be seen, that unlike the position which pertained in Gwinyai’s case supra, the Code of Conduct applicable in casu does state otherwise. It clearly stated, by its definition of “employee”, that it is not intended to apply to managerial employees.

The Supreme Court therefore concluded, then, that the Tribunal was wrong in its conclusion that the Code of Conduct for the Engineering and Iron and Steel Industry as contained in the agreement applied to managerial employees. Accordingly, the appeal was upheld with costs.

The matter is remitted to the tribunal to hear and determine the appeal on the merits.

Major learning points:
Employers must verify the coverage of NEC Codes of Conduct.
It is imperative to specify the applicable employment Code of Conduct in every employee’s employment contract.

Induction programmes must incorporate education on the applicable employment code.

Employers must continuously build the industrial relations capacity of the managers and employees through training.

l Disclaimer: I do not accept liability for any losses incurred as a result of this article.

Request Machimbira is the Editor-In-Chief of the Labour Dimensions Magazine. He is also Group CEO for Proficiency Consulting Group International. For feedback: phone 08644 070654, 0772693404, 0776228575 or email: proficiencyconsulting@gmail.com. Website: www.proficiencyinternational.com

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