Court name
Industrial Relations Court
Case number
IRC Matter 154 of 2006

Jassani & Ors. v Telkom Networks (MW) Ltd (IRC Matter 154 of 2006) [2008] MWIRC 4 (29 January 2008);

Law report citations
Media neutral citation
[2008] MWIRC 4



NUMBER IRC 154 OF 2006








M Chisanga; of
Counsel for the Respondent

V Nyimba; of Counsel for
the Applicants

Official Interpreter


  1. Dismissal-Reason for
    dismissal- Misconduct- Abscondment-Breach of Terms and Conditions of

  2. Abscondment-Serious
    misconduct-Section 59 Employment Act

  3. Strike-procedures to
    strike-Workers to follow procedure-Failing which employees deemed to
    have been absent from work without excuse
    and authority

  4. Procedure- Opportunity
    to be heard- and defend oneself-Employee to avail himself/herself to
    the right to be heard

  5. Check off
    system-Encourages paid up Union membership-Not to be revoked without
    valid reasons


The applicants were
employed on various dates. On 22 March 2006 the applicants received
individual letters to show cause why serious
disciplinary action
should not be taken against them after it was alleged that the
applicants had absconded from work on two occasions
namely; 31
January - 1 February and 14-16 March 2006. In response the applicants
wrote back to management a standard note basically
telling management
that they were not interested in showing cause why disciplinary
action should not be taken against them because
according to them the
matter was being handled by their trade union, ostensibly on their
behalf. However the said Union did not
respond to the query made by
management on behalf of the applicants.

In essence
therefore the applicants failed to give an explanation in their own
defence on why they on two aforesaid occasions stayed
away from their
work. As a result the respondent dismissed the applicants. The
applicants were not satisfied with this dismissal
and hence this

alleged that their dismissal was unfair because it was based on an
invalid reason; namely that they were targeted for dismissal
they were active members of Trade Union who were trying to negotiate
on behalf of fellow employees with management on better
salaries and
an issue concerning sell of the respondent company to another
company. They concluded that this termination was aimed
intimidating the workers to prevent them from embarking on any future
negotiations with management on salary structure and other
concerning the welfare of the employees.

applicants were seeking as a result of this unfair dismissal the
following remedies: reinstatement; damages for unlawful dismissal;

severance allowance; withheld pension contributions;
resumption of check off system for union
members and salaries from date of dismissal to date of reinstatement.

respondents opposed the action. They alleged that the dismissal was
fair for a valid reason and after a fair opportunity was
given to the
applicants to explain their side and defend themselves. The
respondents conceded that they were in negotiations with
applicants on salary revision and other matters. However before the
negotiations were concluded the applicants on 31 January
to 1
February absconded from work. They stayed away from work without
permission and without any good reason. A few weeks after
resumed work, the applicants for the second time stayed away from
work between 14-16 March without permissions and without
any good

to the respondent this conduct was in breach of the terms and
conditions employment specifically Clause 25.4.1(b) which
that: “the following cases of abscondment may warrant
dismissal…Illegal industrial action or inciting other employees
participate in an illegal industrial action including but not limited
to illegal strikes, work stoppage, boycotts, work to rule,
or any
other interference with the operations of the company”.

It was on
the basis that the applicants had violated this provision that the
respondents called for the applicants to make explanations
in their
own defence or else disciplinary action would be taken against them.
On failing to provide any satisfactory explanation
the respondents
felt entitled to dismiss the applicants summarily. The reason for
dismissal was abscondment arising from an in
illegal strikes. Before
the termination was effected the applicants were warned to go back to
work within a specified date. They
refused to comply and continued to
stay away in what was termed a strike.

In court
the respondents informed court that the stay away was an illegal
strike because the applicants did not follow the statutory

preliminary procedures before going on a strike. The applicants
conceded that they did not give the requisite notice before going
strike. In court the applicants sought to give an excuse for this
conduct. They said that the strike was not sanctioned by the
The workers took it upon themselves to go on strike without the
Union’s blessing. However the applicants failed to explain
they did as executive members of the Union to prevent their members
from refusing to work in a space of weeks.

The Law

employer is entitled to terminate the services of an employee who is
guilty of misconduct inconsistent with the fulfillment of
expressed or implied conditions of his contract of employment, see
section 59 of the Employment Act. In this case the applicants
found guilty of misconduct that was inconsistent with fulfillment of
their expressed conditions of service. The applicants
breached Clause
25.4.1 (b) of their conditions of service. Further abscondment or
absenteeism without valid excuse or authority
is ground for
dismissal, see section 59 of the Employment Act. It has been held in
this court that absenteeism is valid reason
for dismissal see for
Saidi v Chris and Sons
[Matter Number IRC 181 of 2002 (unreported)]IRC. The court therefore
found that the reason for termination was valid.

The court
made the above finding after noting that the applicants as executive
members of the Union were engaged or allowed their
members to stay
away from work without any valid reason and without authority. The
applicants did not convince the court that they
were targeted as a
way of intimidation. It was in fact shown that the respondents were
responsive to the workers needs for negotiations.
The mere fact that
the respondent allows a Trade Union to operate freely is an
indication that they are willing to accommodate
workers freedom of
association within the workplace.

It was
also shown that the respondents and the workers had some form of
collective bargaining agreement stipulating how both parties
conduct themselves in certain specified situations including on
issues of negotiations, grievance procedures, lay offs and
and lock out. Based on these examples, the court could not believe
the allegations that the applicants made in this court
against the
respondents regarding intimidation. It is a well known fact that we
still have in this country many big organizations
that resist Trade
Unions. It is also true that even in those organizations that have
trade Unions, it is rare to see as comprehensive
a collective bargain
agreement as we were shown in this instance.

obvious conclusion was that the applicants abandoned work without
permission and without any valid reason permissible either
by law or
by their terms and conditions of service. This was therefore a clear
breach of terms and conditions of employment; see
section 59 of the
Employment Act. Hence the reason was valid. If the applicants had not
committed any wrong, or had a valid reason
for their conduct they
should have said so when they were given an opportunity to explain to

In case
the employees wished to go on strike. It was within their power
legally to go on strike. This is a right that is provided
to workers
both in the Constitution and the Labour Relations Act. There are
however procedures that must be followed before workers
can embark on
a strike. These are provided in Chapter V of the Labour Relations
Act. In summary workers may go on strike if the
following things are
satisfied: (1) they must give adequate notice to
strike and (2) they must comply with all the other procedures
stipulated in section 46 of the Labour Relations Act namely
that: (a)
the dispute must be deemed to be unresolved (b) the dispute is
reported to the Principal Secretary and conciliation process
instituted and fails and (c) the matter is not pending for
determination in the Industrial Relations Court.


The applicants alleged that
the reason was not substantiated and that they were not given a
proper hearing. The court heard and
found that the applicants chose
not to defend themselves. They chose not to explain their side of the
story. They chose not to
utilize the opportunity given to them to
have their case heard. They could not allege that the reason was not
substantiated when
they chose not to say anything in their own

was not a criminal case where an accused could choose to remain
silent. In employment cases an employer is legally compelled
to give
an employee a right to be heard in a case of misconduct or
incapacity, see section 57(2) of the Employment Act. It means
the employee has a corresponding duty to say something in his/her
defence when faced with an allegation of misconduct. S/he
choose to remain silent without facing consequences of a disciplinary
action, see
Mawaya and others V ADMARC
[Matter Number IRC 13 of 2005 (unreported)] IRC.

with Employer’s Decision

It has been held in this
Court that decisions of employers should not be tampered with if
there is no allegation that the process
to arrive at the decision was
not fair. See the case of Kachingwe &others V Southern
Bottlers Mw Ltd
[Matter No.162 of 2003(unreported)]. In that case
the Court quoted with approval a holding of the Labour Appeal Court
of South Africa
in the case of County Fair Foods (Pty) Ltd V CCMA
& others
[1999]11BLLR 1117 (LAC), per Kroon JA:

with the employer’s sanction “ is only justified in the case of
……..unfairness.” However, the decision
of the arbitrator as to
the fairness or unfairness of the employer’s decision is not
reached with reference to the evidential
material that was before
the employer at the time of its decision but on the basis of all
evidential material before the arbitrator.”

In the
instant case the applicants did not allege that the procedure leading
to their termination was unfair. In fact the respondents
with the Collective Bargaining Agreement 8.2 , providing that before
any disciplinary action is taken against any member
of the Union,
that person should be given chance to explain his/her side of the
story. The applicants, who were members of the
Union failed without
good cause to utilize this opportunity when it offered to them.

the applicants who were members of the Union and party to the
Collective Bargaining Agreement failed to follow the grievance

procedure as provided in 3.5 to try and reconcile through contact and
dialogue. They opted to use a short route of absconding from
without exhausting the grievance procedures.

It was in
fact due to the applicants’ various violations of the contents of
the Collective Bargaining Agreement that on 29 March
2006 the
respondents gave notice to revoke the said Collective Bargaining
Agreement in accordance with the provisions relating
to revocation of
the said Agreement.


The Court finds that the
respondent complied with the law. The reason was valid and the
procedure was fair. The dismissal was fair
according to section 57 of
the Employment Act. The action on unfair dismissal is dismissed in
its entirety.

Off System

The applicants had alleged
on the side that the respondents had suspended a check off system
without any valid reason. This is a
system where the respondent as an
employer facilitates payment of Union membership by deducting
membership fees from the source
(deducted from the salary before it
is committed to the employee). This system encourages more employees
to pay their membership
fees therefore enhances Union membership.

respondent did not give a proper explanation as to why they suspended
this system. The court agrees with the applicants that
check off
system encourages more paid up membership to Unions and must be
sustained unless good reason is given why it should stop.
The court
allows this application and orders the respondents to immediately
reinstate the check off system.

Any party
aggrieved by this decision is at liberty to appeal to the High Court
within 30 days of this judgment.

this 30th
day of January 2008 at

Zibelu Banda


RN Padambo