Matthias Ruziwa HR Issues
Government has played a very crucial role in ensuring a win-win situation between employees and employers by setting a minimum retrenchment package of one month for every year served in terms of Section 12C of the Labour Amendment Act, 2015. This is in line with regional trends eg in South Africa and Kenya. However, my view is that termination on notice need to apply in no fault situations and honestly that should be linked to retrenchment procedure as per Section 12C of the Act.
“One is reminded that even God sought and heard Adam’s defence before banishing him from the Garden of Eden”. There is no doubt that labour law reform process became a topical subject over the past few months in Zimbabwe.
It’s now exactly three weeks after the gazetting of amendments to the principal Labour Act Chapter 28:01.
Although there were several issues that were amended by the Labour Amendment Act, 2015, the labour market has placed much interest in the amendments made to Section 12 “Duration, particulars and termination of employment contract”, the main reason being that it is that section of the Labour Act which sought to deal with abolishing of the employers’ and employees’ common law right to terminate a contract without specific limit of time by giving three months’ notice.
In the famous Supreme Court judgement of Don Nyamande and Kingstone Donga v Zuva Petroleum (Pvt) Ltd — SC 43 /15 5, the Supreme Court’s Chief Justice Chidyausiku, remarked as follows; “That common law right in respect of both the employer and the employee can only be limited, or regulated by an Act of Parliament, or a Statutory Instrument that is clearly intra vires an Act of Parliament”.
In this article an attempt is made to closely review the amendments introduced to section 12 in the Labour Amendment Act, 2015.
Section 12 (“Duration, particulars and termination of employment contract”) of the principal Act is amended-
(b) by the insertion after subsection ( 4) of the following subsections-
“(4a) No employer shall terminate a contract of employment on notice unless—
(a) the termination is in terms of an employment code or, in the absence of an employment code, in terms of the model code made under section 101(9); or
(b) the employer and employee mutually agree in writing to the termination of the contract or
(c) the employee was engaged for a period of fixed duration or for the performance of some specific service; or
(d) pursuant to retrenchment, in accordance with section 12C.
(4b) Where an employee is given notice of termination of contract in terms of subsection (4a) and such employee is employed under the terms of a contract without limitation of time, the provisions of section l2C shall apply with regard to compensation for loss of employment”.
In my view, a close analysis of the above section enshrined in the Labour Amendment Act,2015, reveals that termination on notice which had become one of the recognised ways of terminating employment relationship was extensively dealt with by the legislature in a way to ensure, that employees are protected from the much powerful employer who could now just terminate the employment relationship without any compensation given to the employee as evidenced by over 20 000 workers who lost their jobs between 17th July 2015 and 20th August 2015.
The new law interpreted correctly is saying an employer can give notice to terminate the contract of employment but the conditions set are such that retrenchment has emerged as the only lawful way to terminate an employment relationship.
A close reading of section 12 of the Act shows that where an employee is to be disciplined for misconduct in terms of an employment code of conduct, eg, for theft, fraud, incompetence, sexual harassment etc, the employer is obliged to terminate that employee on notice and accordingly invoke the retrenchment procedure set in Section 12 C of the Act to compensate the employee despite having found him or her guilt of the alleged misconduct.
With the same token, this also applies to the other forms of termination such as termination of fixed term contracts and termination by mutual agreement.
The four laid down legal ways of terminating an employment relationship now specifically envisaged under section 12 of the Act are commendable in terms of international practice.
However, my opinion is that there is need to understand here that before amendments to this section were made, there seemed to be a misunderstanding that employers could terminate contracts of employment on notice to the exclusion of other recognised ways of termination such as upon effluxion of time, by mutual agreement, dismissal or retrenchment.
The Supreme Court judgment cited above simply said termination on notice was only but one of several lawful ways of termination in appropriate situations the other ways of termination being dismissal, retrenchment etc.
The amendments have technically abolished all other forms of termination other than retrenchment and this may be viewed as inflexible laws by industry and potential investors.
Government has played a very crucial role in ensuring a win-win situation between employees and employers by setting a minimum retrenchment package of one month for every year served in terms of Section 12C of the Labour Amendment Act, 2015.
This is in line with regional trends eg in South Africa and Kenya where the minimum retrenchment packages are laid down in the respective labour legislation.
However, my view is that termination on notice need to apply in no fault situations and honestly that should be linked to retrenchment procedure as per Section 12C of the Act.
In other words Section 12(4b) which provides that “Where an employee is given notice of termination of contract in terms of subsection (4a) and such employee is employed under the terms of a contract without limitation of time, the provisions of section l2C shall apply with regard to compensation for loss of employment” is very appropriate in situations where the employer has initiated termination on notice in no fault situations.
Payments of retrenchment packages are not appropriate in fault situations.
International practice entails inter alia that where an employee has committed an offence, the employer has the right to discipline such employee and if found guilty an appropriate penalty is imposed which may include dismissal without payment of a retrenchment package.
Section 12B of the Labour Act, Cap 28:01 deals with the concept of unfair dismissal.
Where an employee has been unfairly dismissed, the remedies according to our courts are either reinstatement without loss of salary and benefits or payment of damages in lieu of reinstatement.
The challenge in the view of the new amendments to section 12 is that it may be construed as constituting a departure to the concept of tenets of natural justice that defines our employment jurisprudence.
In Taylor v Minister of Education & Anor 1996 (2) ZLR 772 GUBBAY CJ stated at p 780A-C: “The maxim audi alteram partem expresses a flexible tenet of natural justice that has resounded through the ages.
One is reminded that even God sought and heard Adam’s defence before banishing him from the Garden of Eden”.
Our labour laws have been developing well on the basis of principles of natural justice and given the current circumstances, employers will not see any value in conducting a disciplinary process that will lead to a retrenchment process in order to dismiss an alleged offender.
According to the Sunday Mail addition of 23 August 2015, Honourable Prisca Mupfumira, Minister of Public Service, Labour and Social Welfare was quoted as saying “The process (of amending the law) is on-going”.
I am confident that the Tripartite Negotiating Forum (TNF) is capable through the Minister to consider further amendments to the Labour Act in the spirit of “modernising labour laws” which is one of the key pointers laid by His Excellency, President RG Mugabe in the state of the nation address 25th August 2015.
Matthias Ruziwa is an experienced and progressing Strategic Human Resource Practitioner. He is also an independent arbitrator practicing in the Midlands Province, City of Kwekwe. Opinions expressed herein are solely those of the author. You can contact Matthias at the following email address: firstname.lastname@example.org /whatsapp 0773 470 368