BY JAMES MUTASA

A Chipinge arbitrator Desire Makaure recently upheld the dismissal of Toendepi Mushukuto, who was a workers committee chairperson, by his employer Matanuska Holdings (Pvt) Ltd for allegedly spearheading an unlawful strike.

Mushukuto who was represented by Moffat Chikata of the General Agriculture and Plantations Workers Union of Zimbabwe (GAPWUZ) had argued before the arbitrator that the disciplinary committee did not consider that the strike took 1 hour 4 minutes.

“The company did not suffer any prejudice out of the strike and no one was injured during intimidation or force,’ Chikata stated in his submission on behalf of Mushukuto. ‘The disciplinary committee did not consider that when appellant spoke to the HR Manager, workers returned to work and they completed their tasks on time.”

In the submission Chikata further argued that dismissal was not warranted considering factors in section 12(4) of the Labour Act (28:01). He also highlighted that Mashukuto was supposed to be charged with offence in category 1(3) for improperly calling a meeting of employees instead of illegal industrial action.

The GAPWUZ legal advisor also stressed that most employees got injured after carrying more than recommended weights of 23kgs so they had their rights to stop working until their issues were addressed. Adding that employees were working under unfavourable conditions and it was their right to remove themselves from danger as according to section 32 of SI 197 of 2020.

But Jean Panashe a Human Resources Officer for Matanuska Holdings submitted that Mushukuto who was chairperson of the workers committee acknowledged participating in a strike but claims it lasted only 1 hour and 4 minutes, causing no prejudice to the company.

“As the chair of workers committee, Mashukuto was expected to demonstrate leadership and adhere to high standards of behaviour,” he said.

Panashe urged Makaure to dismiss Mushukuto’s appeal arguing that the dismissal penalty cannot be altered as the strike impacted on various operations and the employer suffered losses as 1 hour 4 minutes lost constituted prejudice to the employer as no deductions were made on participants’ wages.

“It is common cause that appellant engaged an illegal strike in the premises of the respondent.

Instead, appellant argued that the strike only took 1 hour 4 minutes and did not prejudice the

Employer,” reads part of Makaure’s arbitral award.

“It is clear in the Code of Conduct that an illegal industrial action means “participation in an unlawful strike and/or incitement by the employee for other employees to take part in an illegal strike.’ The above definition is expressive and it does not provide for a prejudice as a qualifying factor of illegal industrial action. The third ground of appeal is just more of a confirmation that appellant and other employees participated in a strike; and after speaking to the HR Manager, they returned to work. The said strike was ruled illegal during the disciplinary proceedings therefore, the admission by the appellant must be taken as it is and should act as a basis on which the third ground ought to be dismissed.”

“From the above conclusions it is clear that appellant is not denying any of the alleged offences but is arguing for a lesser penalty which is final warning instated of dismissal. In this regard the arbitrator cannot alter the dismissal penalty. In view of the foregoing, it is determined that the appeal lacks merit and is hereby dismissed,’ ruled Makaure.