Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 336, Marzo 2005

1. 866. The complaint is contained in a communication from the Organisation of African Trade Union Unity (OATUU) dated 1 March 2004, as well as a communication from the Union Network International (UNI) dated 1 April 2004. The International Confederation of Free Trade Unions (ICFTU) sent allegations referring to the same matter in a communication dated 9 July 2004.
2. 867. The Government sent its observations in communications dated 14 May 2004 and 19 November 2004.
3. 868. Zimbabwe has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 869. In its communication dated 1 March 2004, the OATUU stated that Mr. Lovemore Matombo, President of the Zimbabwe Congress of Trade Unions (ZCTU), was dismissed from work on 23 January 2004 by the management of Zimbabwe Posts (Zimpost). The complainant organization stated that Mr. Matombo was initially suspended from work on 13 January 2004 for allegedly disrupting a Zimpost board meeting on 11 December 2003. The complainant organization recorded Zimpost’s allegation that Mr. Matombo was absent from work without official leave from 5-12 January 2004, when in fact he had led the ZCTU’s delegation to the 8th Congress of the OATUU in Khartoum, Sudan on those dates.
2. 870. The OATUU considered Mr. Matombo’s dismissal to be irregular and a flagrant violation of Convention No. 98. The organization stated that it had received neither an acknowledgement nor a response to a letter dated 26 January 2004 it had sent to the Minister of Public Service, Labour and Social Welfare seeking Mr. Matombo’s reinstatement. The organization appended that letter to its communication, as well as an email dated 24 January 2004 from the ZCTU informing it that Mr. Matombo had been dismissed.
3. 871. The UNI communication, dated 1 April 2004, substantially repeated the OATUU’s allegations concerning Mr. Matombo’s dismissal. It was explained that Mr. Matombo was also the President of the Communications and Allied Services Workers’ Union (CASWUZ), an affiliate of the UNI. The UNI indicated that, in relation to Mr. Matombo’s attendance of the OATUU Congress, it had been advised that, despite Zimpost’s allegations to the contrary, Mr. Matombo had indeed “carefully followed all the necessary procedures as required i.e. apply for special leave and attach the invitation letter of the host organisation (OATUU)”.
4. 872. The organization further alleged that three other CASWUZ officials – Mr. C. Nkala (Vice President), Mr. C. M. Chizura (Deputy General Secretary), and Mr. D. C. Munandi (Financial Secretary) – were suspended indefinitely by Zimpost management on 12 January 2004, allegedly for disrupting the Zimpost board meeting on 11 December 2003. The UNI stated that the union executives had gone to the board meeting to demand the payment of workers’ salaries after 41 days without pay and following a failed appeal to meet management. The salary payments had been delayed because management had decided to deduct 17 leave days from the workers’ salaries as punishment for a strike called by CASWUZ between 17 November-4 December 2003 demanding a cost of living adjustment. The UNI alleged that the “negotiations” at the board meeting resulted in an agreement that workers would be paid on 12 December 2003, the following day. It was further stated that “at no point during the meeting or in the days after the meeting did the Board claim that the union’s behaviour was in any way rude or disrespectful”.
5. 873. In a communication dated 9 July 2004, the ICFTU also referred to the dismissal of Mr. Matombo. The ICFTU considered that Mr. Matombo was dismissed from his Zimpost position due to his trade union activities.

B. The Government’s reply

1. 874. In a communication dated 14 May 2004, the Government gave the following account of the circumstances pertaining to the dismissal of Mr. Matombo. The Government stated that the OATUU invited the ZCTU to attend its 8th Ordinary Congress in Khartoum during the period 5-12 January 2004 and that Mr. Matombo was nominated by the ZCTU to be part of its delegation to the Congress. The Government stated that Mr. Matombo had not completed the required leave application procedures but had instructed Mr. Chimanikire, the Secretary-General of the CASWUZ, to make an application for special leave on his behalf, well after he had already left for the Congress. It was indicated that Zimpost management submitted that they had not received a leave application on Mr. Matombo’s behalf as alleged.
2. 875. On Mr. Matombo’s return to Zimbabwe, the Government stated that he was charged with misconduct pursuant to the company’s code of conduct and subsequently appeared before a formally constituted disciplinary hearing committee under the Posts and Telecommunications Employment Code of Conduct. The Government considered it pertinent that the disciplinary committee included two union and two management representatives, including members from Mr. Matombo’s trade union. Mr. Matombo was found guilty by the disciplinary committee and accordingly dismissed; he subsequently appealed in terms of the code of conduct’s disciplinary procedure. Having failed to reach a decision within 30 days, the appeals board sent the matter to the Ministry of Public Service, Labour and Social Welfare pursuant to section 101(6) of the Labour Act 28:01. The Government stated that “the matter will be handled by our competent Labour Officer like any other Labour disputes in terms of our Labour Act 28:01”.
3. 876. The Government wished to make it clear that the role of the Ministry and the Government was to ensure that justice was not only done but was seen to be done and in this regard it could only watch the agreed and approved mechanisms in the country take their course. The Government considered Mr. Matombo to be first and foremost a worker of Zimpost.
4. 877. In a communication dated 19 November 2004, the Government submitted additional information particularly in relation to the allegations pertaining to the suspension by Zimpost of Mr. C. Nkala, Mr. C. Chizuro and Mr. D. C. Munadi. The information obtained suggested that the workers in question had been suspended on the basis of allegations of disrupting a board meeting, in accordance with the Posts and Telecommunications Code of Conduct.
5. 878. The Government advised that, as the Zimpost disciplinary committee had failed to reach a decision on this within 30 days, it had accordingly referred the matter to the Ministry on 15 April 2004 pursuant to section 101(6) of the Labour Act 28:01. After numerous conciliation attempts by the labour officer assigned to deal with the matter, a “certificate of no settlement” was issued on 17 August 2004 and the matter was referred for arbitration in accordance with the dispute settlement procedures in the Act. The Government advised that the parties had been summoned to appear before the arbitrator on 15 December 2004 for an arbitration hearing.
6. 879. The Government wished to make it clear that industrial relations disputes at Zimpost, like any other private company in Zimbabwe, fell under the Labour Act 28:01, which was enforced indiscriminately by the Ministry, and the Government could only watch the established legal mechanisms take their course. The Government indicated that the Ministry remained “open to educate the concerned trade union leaders on the provisions of the Labour Act 28:01 which protect the workers rights and the available remedies should there be any violation”.
7. 880. In relation to the ICFTU’s allegations concerning the dismissal of Mr. Matombo, the Government referred to its communication dated 14 May 2004.

C. The Committee’s conclusions

1. 881. The Committee notes that this complaint concerns allegations of anti-union discrimination in relation to two related matters. The first matter is the dismissal of Mr. Matombo, President of the ZCTU and the CASWUZ, following a decision that he had been absent from work without permission. The second matter is the suspension of three union officials on the basis that they had disrupted a board meeting of the company.
2. 882. In relation to the dismissal of Mr. Matombo, President of the ZCTU and the CASWUZ, the Committee notes that Mr. Matombo was initially suspended from work on 13 January 2004 together with Mr. Nkala, Mr. Chizura and Mr. Munandi, who it seems are still indefinitely suspended. Mr. Matombo was dismissed from his employment on the basis of an apparently separate matter and it seems that this overrode his initial suspension.
3. 883. The Committee notes that both the complainant organizations and the Government stated that the reason given for the dismissal of Mr. Matombo by Zimpost was his unauthorized absence from work between 5-12 January 2004, when he had led the Zimbabwe delegation to the OATUU 8th Congress in Khartoum. The Committee recalls that the complainant organizations alleged that the reason given was untrue and, in particular, the UNI stated that Mr. Matombo had carefully followed the necessary procedures of applying for the special leave and attaching the invitation letter from the host organization.
4. 884. The Committee recalls that the Government stated that Mr. Matombo had not completed the required leave application procedures but had instructed the Secretary-General of the CASWUZ to make the application on his behalf, well after he had already left for the Congress; Zimpost management maintained that a leave application on Mr. Matombo’s behalf had not been received. The Government stated that Mr. Matombo was found guilty of misconduct by a properly constituted disciplinary committee and accordingly dismissed. His appeal to an appeals board was subsequently referred to the Ministry of Public Service, Labour and Social Welfare under the Labour Act as no decision had been reached within 30 days, and the Government has indicated that the matter will be handled by the competent labour officer like any other labour dispute.
5. 885. The Committee recalls that participation by trade unionists in international trade union meetings is a fundamental trade union right [see Digest of decisions and principles of the Freedom of Association Committee, 4th (Revised) edition, 1996, para. 151] and that another of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions [see Digest, op. cit., para. 724]. The Committee further recalls that the Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned [see Digest, op. cit., para. 738]. The Committee finally recalls that the dismissal of trade unionists for absence from work without the employer’s permission, for example, to attend a workers’ education course, does not appear in itself to constitute an infringement of freedom of association [see Digest, op. cit., para. 728].
6. 886. The Committee notes that there is a direct conflict in the statements provided by the complainant organizations and the Government, in addition to an absence of written evidence in relation to this matter. In these circumstances the Committee is unable to reach any final conclusion as to the veracity of the allegations and therefore requests the complainants to provide additional information. It must nevertheless record its concern that the dismissal of Mr. Matombo, coming soon after a strike action called by the CASWUZ and the indefinite suspension of not only Mr. Matombo, but also other CASWUZ leaders, appears to raise the suggestion of a link between these events and, thus, the possibility that Zimpost’s actions may have had an anti-union component. In light of these concerns, the Committee requests the Government to convene an inquiry that is independent and considered as such by the parties, to thoroughly and promptly consider the allegations of anti-union discrimination against Mr. Matombo and to ensure that appropriate measures are taken in response to any conclusions reached. The Committee expects that if it appears that Mr. Matombo has fulfilled the requirements applicable for trade union leave, he will be reinstated in his job, without loss of pay. The Committee requests the Government to keep it informed of any developments in this regard.
7. 887. In relation to the second matter, the Committee notes that on 13 January 2004, three CASWUZ officials were indefinitely suspended from their jobs at Zimpost for allegedly disrupting a Zimpost board meeting on 11 December 2003. The Committee recalls that the complainant organizations alleged that Mr. Nkala, Mr. Chizura and Mr. Munandi, all of whom are executive officials of the CASWUZ, had attended the board meeting to demand the payment of workers’ salaries after 41 days without pay. This followed a strike action called by CASWUZ during November-December 2003 and a failed earlier attempt to meet with management. The complainant organizations alleged that during the board meeting an agreement was reached that the salary arrears would be paid to workers, and that at no time then or in the following days was it claimed that the officials had behaved in a disrespectful manner.
8. 888. The Committee recalls that the Government stated that Mr. Nkala, Mr. Chizura and Mr. Munandi were suspended for disrupting the board meeting, in accordance with the appropriate code of conduct. It appears that the proper procedure was followed: the matter was considered by the Zimpost disciplinary committee which failed to reach a decision within the prescribed 30 days and so referred the matter to the Minister on 15 April 2004 pursuant to the Labour Act. On 17 August, a certificate of no settlement was issued after the responsible labour officer had attempted various conciliation attempts. The matter was referred to arbitration according to the statutory procedure, and the parties were summoned to appear on 15 December 2004.
9. 889. In this respect, the Committee recalls its earlier comments concerning the fundamental nature of the protection against anti-union discrimination and, in particular, such discrimination against trade union leaders and officials [see Digest, op. cit., para. 738]. It further repeats its concern that the events described by the complainant organizations appear to raise the possibility that Zimpost’s actions may have had an anti-union component. The Committee requests the Government to convene an inquiry that is independent and considered as such by the parties, to thoroughly and promptly consider the allegations of anti-union discrimination in relation to the indefinite suspension of Mr. Nkala, Mr. Chizura and Mr. Munandi, and to ensure that appropriate measures are taken in response to any conclusions reached. If the competent body were to decide that they were suspended from their positions for anti-union reasons, the Committee expects that these three workers will be reinstated in their jobs or an equivalent position, without loss of pay or benefits. The Committee requests to be kept informed in this regard.