[By James Kayula]
THE University of Zambia Lecturers and Researchers Union (UNZALARU) has been effectively exterminated by the Labour Commissioner (the “Commissioner”), as per the letter dated 7th February 2020.
This decision by the Commissioner follows the application by the University of Zambia management to the Commissioner to terminate the recognition agreement on the ground that UNZALARU has breached the recognition agreement.
This article argues that the decision made by the Commissioner demonstrates that this office bearer either lacks competence to fully comprehend the relevant labour laws as cast in our various statutes, or is simply spineless, to say the least. It is regrettable that a watershed decision such as this, with colossal effects on the welfare of UNZALARU members, is devoid of sound legal reasoning.
One would expect the Commissioner to traverse around the factual circumstances that are allegedly causing strain in the relationship between UNZALARU and Management. To the contrary, this decision lacks factual and legal analysis. It lacks legal clothing. It is simply hollow. This decision has done more harm to the standing of the office of Labour Commissioner than it has to the university community. The damage that this decision has occasioned on this very important office is not only indelible, but also irreparable.
The article outlines why this decision is outrageously outlandish. Firstly, the Commissioner is deeply conflicted and could not have acted as an impartial arbiter between UNZA management and the UNZALARU. Consequently, in purporting to determine a dispute between UNZALARU and UNZA management, the Commissioner breached one of the quintessential rules of natural justice, namely, nemo judex causa sua (you cannot be a judge in your own cause).
In understanding the flagrant partiality and biasness by the Labour Commissioner, one must know that the Commissioner had, on 7th January 2020, set in motion the process of cancelling the certificate of registration of UNZALARU on the ground that the union had breached section 3 of the Industrial and Labour Relations Act.
The Commissioner demanded, in this regard, that the unions show cause why its certificate of registration should not be cancelled. The last paragraph of the ‘show cause letter’ from the Labour Commissioner reads as follows:
“Therefore, you are advised to show cause in writing as to why your certificate of registration should not be cancelled for violating the Industrial and Labour Relations Act, Cap 269 pursuant to section 12 (2) of the said Act.” In effect, this was a letter of the Labour Commissioner charging the union of having allegedly breached the law.
On the same date (the 7th January 2020), UNZA management also began its own process of getting rid of UNZALARU by making an application to the Labour Commissioner to terminate the recognition agreement. It is this process initiated by UNZA management which has culminated in the fateful termination of the recognition agreement. The other process initiated by the Commissioner is still in abeyance as it has not been withdrawn or abandoned; it still awaits exculpation from UNZALARU.
What is clearly visible here, is that both the Commissioner and UNZA management separately charged UNZALARU of wrong doing arising from the same set of facts (the press briefing by UNZALARU) and on substantially the same grounds. What also becomes conspicuously inescapable is that the Labour Commissioner, by commencing the process of deregistering UNZALARU, had successfully thrown away its impartiality and dropped the mantle of a judge. As a result, such an office cannot purport to hold even, nice and clear the scales of justice. This, therefore, makes both the Commissioner and UNZA Management interested parties in the demise of UNZALARU.
And the hearing between UNZA management and UNZALARU, presided over by the Commissioner, was simply an empty formality and a communion of interests between UNZA management and the Commissioner in their joint enterprise of eliminating UNZALARU.
Emphasising the need to uphold the rules of natural justice, the Supreme Court of Zambia had the occasion, in the case of Bob Zinka vs Attorney General (1991), wherein it stated, in part, thus:
“……The principles of natural justice – an English law legacy – are implicit in the concept of fair adjudication. These principles are substantive principles and are two-fold, namely, that no man shall be a judge in his own cause, that is, an adjudicator shall be disinterested and unbiased (nemo judex in causa sua);….”
In the same case, the Supreme Court observed:
“The principles of natural justice must be observed by courts, tribunals, arbitrators and all persons and bodies having the duty to act judicially, except where their application is excluded expressly or by necessary implication… In order to establish that a duty to act judicially applies to the performance of a particular function, it is now unnecessary to show that the function is analytically of a judicial character or that it involves the determination of a lis inter partes; however, a presumption that natural justice must be observed will arise more readily where there is an express duty to decide only after conducting a hearing or inquiry or where a decision entails the determination of disputed questions of law and fact.”
It is not in dispute that, the office of the Commissioner is bestowed with quasi-judicial functions of determining, among others, disputes/allegations, as the case maybe. Arising from the fact that the office of the Commissioner is clothed with powers analogous to that of a judicial officer, this office is expected, both in conduct and deed, to partake of the essential elements that are integral to the administration of justice, such as impartiality, independence and disinterestedness in the handling of disputes.
The twin principles of natural justice, being the right to be heard on the one hand, and not to be a judge in one’s own cause, on the other, are the procedural safeguards upon which the delivery of a sound and just decision is securely preserved and undergirded. It must be noted, albeit solemnly, that the right to be heard would be rendered nugatory and an empty formality if either party to a dispute doubts the impartiality of the arbiter.
Henry Bracton, 1270, reiterating the absolute necessity of an impartial arbiter, aptly stated, thus:
“Let the suspect judge be removed and one who is not substituted for him…it is a fearful thing to litigate under a suspect justice and very often leads to the saddest outcomes.”
The ancient words of Henry Bracton are as relevant today as they were then, because in these very words, we find the reality of our today, that is to say, grappling with a decision of a biased, partial and an interested Commissioner. This is the saddest outcome that was feared and projected ahead of time.
The effect of the deviation from the rules of natural justice in the administration of justice, and determination of disputes generally, renders the resulting decision void from the outset. This, indeed, is the status of the decision made by the Commissioner. It is, to say the least, an inoperable decision devoid of any legal effect. What is even more appallingly shocking, is the thought that the Commissioner neglected/failed /refused to recognise these elementary and entrenched principles of law.
Secondly, section 65A of the Industrial and Labour Relations Act, the authority upon which the Commissioner anchored her decision, is worded in very clear and imperative terms. This power to approve the termination of a recognition agreement is vested in the Commissioner, not the Ministry of Labour or any other officer in the ministry. However, the wording of the letter is unfortunately and regrettably unaware as to who must exercise this power.
The last paragraph of the letter approving the termination of the recognition agreement reads as follows:
“In view of the above, the Ministry (emphasis mine) wishes to inform you that the application to terminate the Recognition Agreement has been approved in accordance with section 65A (3) (a) of the Industrial and Labour Relations Act, Chapter 269 as amended by Act No. 8 of 2008 of the Laws of Zambia.”
This wording clearly shows that the decision was taken by the ministry, as opposed to the Commissioner. The implication is that the decision to terminate the recognition agreement was taken by an illegal entity; unknown by the law under section 65A of the Industrial and Labour Relations Act. The effect, therefore, is that a decision taken by an illegal entity is itself an illegal decision. The Ministry of Labour and Social Security has no power under the law in question, to hear and determine an application for termination of a recognition agreement; such power is vested in, and exercisable exclusively by the Commissioner. In fact, the usage of the phrase “Ministry” in the letter of termination of recognition agreement appears in more than five instances.
The probity of this decision is adulterated to the extent that it was not made by a legally recognised office under the applicable law. The Ministry of Labour and Social Security is not the authority mentioned and envisaged under section 65A, and cannot, therefore, exercise powers and functions not assigned to it by law.
Thirdly and lastly, the entire approach to this case by the Commissioner is menacingly simplistic. The office bearer conveniently departs from addressing the real challenges between UNZA Management and UNZALARU; delayed salaries and insufficient funding.
The letter of termination of recognition agreement apportions no iota of wrongdoing on the part of UNZA management. The Commissioner creates an impression that UNZA management adheres to the law strictly and consistently. The Commissioner only acknowledged and acted on the alleged violation of the law by UNZALARU. What about UNZA management’s failure to pay salaries on time which is a breach of section 66 of the Employment Code Act, and a criminal offense envisioned under section 135 of the said Employment Code Act?
What about the failure by UNZA management to commence collective bargaining as stipulated under section 69 of the Industrial and Labour Relations Act? What about management’s failure to honour its contractual obligations relating to gratuity and other benefits? Are all these breaches of the law by UNZA management invisible to the Commissioner, or probably too minute and mundane to attract the real attention of this office?
This decision of the Commissioner has rendered this office moribund, as it is incapable of hearkening to the groans of workers at the University of Zambia and elsewhere. The question that the Commissioner must address, even post this decision, is how the termination of the recognition agreement would resolve the issue of delayed salaries, delayed commencement of collective bargaining, unpaid gratuities and other benefits for employees at the University of Zambia.
What the Commissioner has achieved by approving the termination of recognition agreement between UNZALARU and UNZA is to legalise, de facto, the violations of the law by UNZA management. UNZA management has now been given carte blanche power to do as it wishes in violating the law and employees’ rights without any voice of censure.
The Commissioner in arriving at this decision, completely vacated the position of knowledge regarding the latin maxim: ex turpi causa non aurito actio. This legal maxim and principle dictates that, no court will help a guilty party from benefiting from its own wrong doing. To the contrary, the Commissioner has decided to award UNZA management for its known and clear violations of the law by terminating the recognition agreement. The Commissioner has, in effect, licensed the breaking of the law by UNZA management. The Commissioner has become a purveyor of lawlessness.
Finally, the advice to the Commissioner is to rescind this scandalous decision, to avoid the impending embarrassment both on the office and the officials thereunder, should this matter go to court. It is clear that the decision to terminate the recognition agreement has fractured the entrenched principles of law, and no court would sanction, by any standard, this lawlessness by the Commissioner, whose adverse ramifications are immensely perverse.
The author is a legal practitioner and a lecturer at the University of Zambia.