Davies Ndumiso Sibanda
MANY organisations have managerial employees who unlawfully serve the non-managerial workers committee and at the same time unlawfully subscribe to the non-managerial employees trade unions.

Our labour legislation creates a distinction between managerial and non-managerial employees and is express in section 23 that non-managerial employees cannot represent managerial employees and vice-versa.

While I have written many articles on the subject, there seems to be misunderstanding on the difference. The Labour Act Chapter 28:01 defines a managerial employee as “an employee who by virtue of his contract of employment or of his seniority in an organisation, may be required or permitted to hire, transfer, promote, suspend, lay-off, dismiss, reward, discipline or adjudge the grievances of other employees”. This leaves all other employees who are not defined in the Act as non-managerial employees.

Many employers and trade unions have taken a simplistic approach to create the divide between managerial and non-managerial employees by saying all employees whose grades are covered by NEC are non-managerial employees. This is the long approach. While grade can be a useful guide, it is not a legal guide as when a dispute arises as to who is a managerial employee the court will not look at the grade of the employee but will look at the definition given in the Act. The moment one supervises someone and is responsible for that subordinate’s discipline, then the individual is a managerial employee. Simply put if you can write a complaint form against a fellow employee then you are a managerial employee.

There are also cases of individuals who might not have subordinates but the nature of their work makes them managerial employees. For example, the internal auditor of public relations officer might have no subordinates but the nature of the job is managerial.

In most cases the problem arises where an individual had a dream of one day becoming a trade union president and is promoted to managerial ranks and is told to relinquish membership of the workers committee. In the famous case of Ngulube vs ZESA SC52/2002, the Supreme Court confirmed the dismissal of Ngulube who was ordered to withdraw from the non-managerial workers committee and he refused. The Supreme Court rejected the argument of freedom of association stating that the Act provided a clear path for representation of managerial employees.

The Ngulube judgement put to rest an argument by workers who want to hold on to workers committee positions despite being elevated to managerial positions. Employers are within their rights to order managerial employees not to join the non-managerial workers committee or vice-versa. Any refusal to obey the instruction could result in disciplinary action for refusal to obey a lawful order which at common law is a dismissible offence.

Managerial employees are at liberty to form a managerial workers committee to represent their interests. While these used to be frowned upon by many employers, the last 10 years have seen many employers embracing them and taking advantage of their contribution to business stability and growth. In conclusion, the area is a political minefield in the area of labour relations where transparency is required so that the separation is not viewed as dividing the workers or weakening the workers committee.

 Davies Ndumiso Sibanda can be contacted on: Email: [email protected]