source here
By Kunda Mulega
16th, July, 2024
Employment Law - Trade Unions
A
critical analysis of the cases of Kelvin Lukonde and
Others v. Mopani Copper Mines App No. 165 of 2010 and Zambia Sugar Plc v.
Lumuno Mukwali App No. 152 2019.
1.What
is a Trade Union?
A
trade union is an organization in which members are wholly or mainly workers
and their principal purpose include the regulation of relations between
employees and their employers or employers’ organization. The Industrial and Labor Relations Act (ILRA) is
the law regulating matters in relation to trade unions, though it does not seem
to define the word trade union. A trade union acts as a representative for
employees in a specific field of work it was registered for, with its main
function being, to help negotiate better terms and conditions between the
represented employees and their respective employers.
The
Right to Be a Member of a Trade Union.
Being a member of a trade union is a constitutional right guaranteed under Article 21(1) of the Constitution, which provides that, except with his own consent a person has the right to be a member of a trade union, and also Section 5(1)(a)(ii) ILRA, provides that, an employee has the right to be a member of any trade union of his choice. It is clear from these provisions that, the right to be a member of a trade union is one protected by law which cannot be easily taken away, as freedom association includes the right of works to join organizations of their choosing. Thus, any infringement to this right should fall under the exceptions under Article 21(2) of the Constitution.
In the case of Bridget Lwanga and others v. Nemchem International Ltd, the court stated that,
"an employer that dismisses an employee as a result of that employee exercising his/her right belong to a trade union contravenes the constitution. The law is very clear and no justification can be put to the termination of employment by the employer purely on the basis that an employee belongs to a trade union or is participating in union activities."
Despite an employer having the right to be part of a trade union and to take part in activities thereto, this right is limited to what the ILRA terms as ‘an appropriate time’. Section 5(1)(b), provides that,
"an eligible employee shall as between himself have the he right, at any appropriate time, to take part in the activities of the trade union. Additionally, the right to absent himself from work without leave of the employer for the sole purpose of taking part in the activities of the trade union, if the leave of absence though applied for was unreasonably withheld by the employer."
A
unionized employee (an employee who is a member of a trade union) is under a
contract of employment with the employer and as such must carry out his
obligations under the contract diligently. Carrying out union activities must
be done at an appropriate time, this could mean, outside working hours or
within working hours but with permission from the employer or on leave days
accordingly. In order to understand the concept of ‘an appropriate time’
recourse is sought from the case of Kelvin Lukonde and Others v. Mopani
Copper Mines.
Facts
The
four Complainants namely; Kelvin Lukonde, Osward Simfukwe, Costain Muzyamba and
Elijah Kombe were all employees of the Respondent; Mopani Copper Mines Plc.
They were dismissed by the Respondent on the charge of failure to comply with
established procedures on or about 23rd September 2009. They were accused of organizing a meeting to
overhaul the union leadership during working hours on the Respondent’s
premises; without the consent of management. It was alleged that the
Complainants sought to cause confusion to the rest of the Respondent’s
employees by soliciting for them to attend the meeting, during working hours,
thereby threatening to disturb the Mining operations.
Issue(s)
Whether
the allegation made by the Respondent to the effect that the complainant failed
or neglected to comply with the established procedure when choosing to hold a
meeting in the Mining area without consent and during working hours was
incorrect?
Holding
The
court held that, no employer should dismiss any person for exercising his/her
right to attend Union meetings, and activities.
Attendance to Union meetings, and activities however, should not be
unconditional and without order. One of
those conditions must, of necessity, be that the employee concerned should have
the permission of his/her supervisor; or the consent of the employer; and that
such permission or consent should not be withheld without good reason. The
right of employees to attend Union meetings and/or activities without the
threat of dismissal should not be overstretched to protect employees who
organize Union meetings and/or activities at the employer’s premises without
the consent and permission of their supervisors and management. To hold otherwise, would be promoting
disorder, chaos and disruption of work and paralysis of the employer’s business.
Significance
This case illustrates that, the right to
participate in trade union activities cannot be exercised during working hours
and without permission from the employer. The rationale behind this is to
ensure a balance on the fair and orderly running of the employers’ business
against the exercise of a unionist’s constitutional right.
This
case can be distinguished from the case of Zambia Sugar Plc v. Lumuno
Mukwali.
Facts
The
respondent was employed by the appellant as a unionised employee in the
position of Zone Supervisor. He was subsequently elected President of the
Zambia Union of Sugar Industry and Allied Workers (ZUSIAW). The said Union was
duly recognized by the Appellant. On a Sunday the respondent's day off, whilst
he was in the company of the Union Secretary General, the Respondent featured
on a paid for phone-in radio programme hosted by Mazabuka radio station. During
the said programme the Respondent made utterances about the poor working
conditions and the low wages, and that management was to blame for the pathetic
conditions. The Appellant's management was aggrieved with the Respondent's utterances
and charged him with gross misconduct. A disciplinary hearing was duly held
where the Respondent made his representations and he was subsequently dismissed
from employment. His appeal to the Appellant's Managing Director proved futile.
Issues
1. Whether
a Union official, in his capacity as Union president, can be subjected to disciplinary
action or procedures for words spoken at an occasion as in the present?
2. Whether
the appellant’s dismissal infringed his rights to participate in union
activities as a unionised employee?
Holding
The
court in its holding interpreted the provision of section 5 of (ILRA), from
the said provision, the Respondent as union president was at liberty to
participate in any union activities. It must be noted that the participation in
union activities is limited to what is referred to as "any appropriate
time." Consequently, in this case, the Respondent in his capacity as Union
president used his day off on Sunday to participate in the radio programme that
was dedicated to addressing union matters which can be considered as "an
appropriate time" to attend to such activities.
Significance
This case affirms that, an employee in his/her exercise of the right to be a
member of a trade union and participate in union activities is not a basis for
dismissal from his/her employment.
From
the two cases it is evident that the right to participate in union activities
is not absolute but is limited to ‘an appropriate time’ and should be exercised
in such a manner as not to jeopardize the functioning of the employer’s
business. As seen from the case kelvin Lukonde and Others v. Mopani
Copper Mines, an employer is justified in dismissing an employee where this
right is exercised unreasonably. This notwithstanding, the law in Zambia
Sugar Plc v. Lumuno Mukwali adequately protects employees who exercise this
right within the confines of section 5 (ILRA). This section allows union
members to perform their union activities without intimidation and to remain
unfettered in their operations so as to enable them to adequately represent
their members. Thus, any dismissal of a unionized employee participating in the
activities of a trade union in accordance with the provisions of the law, is an
infringement to their constitutional right.
REFERENCES
Statutes
The Constitution of Zambia Chapter 1 of the Laws of Zambia.
Industrial
and Labor Relations Act Chapter 269 of the laws of Zambia.
Cases
Kelvin Lukonde and Others v. Mopani Copper Mines App No. 165 of (2010).
Zambia Sugar Plc v. Lumuno Mukwali App No. 152 (2019).
Bridget Lwanga and others v. Nemchem International Ltd (2017)
This Article is brought to you by:
LEGAL AID INITIATIVE
(Access to Knowledge)
About the Author:
Kunda Mulenga is a third-year
law student at the University of Zambia and serving as
the Secretary General of the Legal Aid Initiative.