Striking doctors are expected to show up for work without delay after the Labour Court on Saturday deemed their downing of tools illegal.
By Kudakwashe Pembere
With members of the Zimbabwe Hospital Doctors Association having spent 21 days not working and demonstrating, delivering the ruling Justice Gladys Mhuri, outlawed the strike.
“Having listened to both parties’ submissions, the court found that the collective job action embarked on by the respondents and its members on the first of December 2018 is unlawful. This finding is based on the fact that the respondents are in the essential services category as provided for by the provisions of SI 137 of 2003. They are prohibited from engaging in a collective job action,” she said flanked by co-judge Justice Betty Chidziva.
As a witness ZHDA president Dr Muzoremba grilled by Mr Farai Chingwere representing the Health Service Board, according to the judges, failed to justify that their health was at risk due to poor working conditions.
“Respondents even through their witness Dr Muzoremba failed to prove that they were exposed to occupational hazards which they reasonably feared could pose an immediate threat to their health or safety for the collective job action to be called for in terms of section 104 subsection 4 of the labour act. No evidence whatsoever was adduced to substantiate their averment that they embarked on the collective job action to avert an immediate threat to their health and safety,” Justice Mhuri said.
Justice Mhuri also issued a disposal order to put an end to the doctors’ industrial action. “Section 107: 2 of the Labour Act has the following terms that: The unlawful collective job action engaged by the respondent sand its members is terminated forthwith,” she said.
She added that HSB does not have obligation to remunerate members of the ZHDA and all doctors, medical staff who participated in the unlawful job action.
Justice Mhuri also ruled that HSB could take disciplinary action to the striking doctors. “And that the HSB is entitled to take disciplinary action against members of the ZHDA, doctors and members who participated in the unlawful job action and also that respondents are to bear application costs on the ordinary scale,” she said.
She also said the judgement would be submitted at the given address by Doctors dubbed Parirenyatwa Doctors’ Lounge.
Representing the aggrieved doctors was Mr Munyaradzi Gwisai who argued they were given a short notice to appear before the court to show cause justifying the job action. In an interview, one of the doctors’ counsel, Mr Edison Matika concurred they were not given ample time to prepare their case.
“If employees engage on collective job action, the employer may apply to the Minister of Labor for what is known as a show cause order. This show cause order is actually an order by the minister inviting the employees on collective job action to appear before the Labour Court on a date which is actually specified in that order and the time is also specified in that order to give reasons why their strike must not be declared illegal.
“That’s where the term show cause is coming from. So this was done by the Minister Sekai Nzenza on 21 December. So when the Minister issued the show cause order, doctors were invited to appear before the labor court on the 24th of December. That’s this coming Monday.
“To our surprise, instead of us appearing on Monday, we were told yesterday we were supposed to appear yesterday. We were actually told around 16:40 Hrs that we were supposed to appear before the Labour Court at 17:15 Hrs. It was actually after hours,” he said. “Then the other issue we raised was that there was a show cause order issued on 13 th of December by the acting minister Kazembe Kazembe. Which actually was brought to the court on the 14th and that show cause was still valid because it was not cancelled. So we were surprised to see the Minister issuing another show cause order when this one was still in effect. So the court has dismissed that to say when you came to court it was nullified which we take issue because the court did not say it is a nullity.”
As stipulated by the Constitution that the Judge might refer a case to the Constitutional Court at his or her discretion, the Doctors who felt they were denied the right to a fair hearing were told their request frivolous and vexacious sounded more like an appeal against the quashing of their founding arguments.
“The respondents they really had no case. They knew beforehand that they really had no case or had no defense at all. You can note that from the multiple of applications made today, that’s why we spent the whole day, as they were frivolous and vexacious. For example they raised a preliminary objection which is a point of law. “And they then want that preliminary objection after the court has given a ruling on that same point. They then want to raise it as a constitutional issue which they want to refer to the constitutional court. That is an improper application,” said Mr Chingwere after the proceedings.