Exploring constructive dismissal from work

EXTRA Contributor

2 days ago

Brenald Chinyowa
Constructive dismissal is another extension of no fault termination which is defined in Section 12B (3) (a) Chapter 28:01of the Labour Act as considered to have taken place; “if the employee terminated the contract of employment with or without notice because the employer made continued employment intolerable”.
It is any action on the part of the employer which renders the continuation of the employment relationship unbearable for the employee — to such an extent that the employee is left with no other option but to resign.
The employer does not actually dismiss the employee, but the employer’s conduct must be such that no reasonable employee can be expected to put up with it.
So the employee is not formally dismissed by their employer, but is forced to resign because of their employer’s unlawful behaviour.
The employment contract is being terminated by the employee.
Constructive dismissal is an unfair labour practise and all employees falling victim of it can seek recourse at law.
But in order to pursue a claim for constructive dismissal, you must show that, your employer committed a serious breach of your employment contract, you did not accept the breach; and you felt forced to resign because of that breach.
Therefore, the onus is on the employee to prove that the employment relationship was made intolerable by the employer.
Constructive dismissal can result from the following though (not exhaustive): An employer unilaterally cutting or reducing an employee’s pay or salary (including overtime and fringe benefits) or failing to pay the employee. For instance an employer just reducing the salary of an employee from $500 to $450 without any explanation or consultation with the employee. If the employee is no longer comfortable to keep on working whilst getting $450 and resigns, even without being paid can lead to constructive dismissal case.
If the employee leaves employment because of unpaid wages or salary, note this can only be constructive dismissal if it was the sole cause of the resignation. Remember it only become constructive dismissal if you had left the job.
Also when the employer arbitrarily demotes you to a lesser role without reason that is maybe the employee is a manager but tomorrow he wake up a messenger. As long as it is arbitrary and the employee has been forced to leave the job because of that then it is an unfair labour practice.
When an employer changes your job description or duties, working hours and or place of work without your agreement, this amounts to a breach of your contract.
Furthermore a complete change in the nature of your job, that is if the employers breaches your agreed terms of the job and this forces you to leave the job then it become constructive dismissal.
Also constructive dismissal can be in the case where an employer threatens to dismiss the employee for refusing to agree or to accept changes to his or her employment terms and conditions.
It can also result when the employer is making it impossible for the employee to do his or her job effectively.
There are also disciplinary proceedings which are manifestly unreasonable, harassing or bullying that can lead one to decide to leave employment.
Also being forced to work in breach of health and safety laws, including working without proper safety clothing or protective clothing and forcing the employee to work in conditions where health and safety regulations are ignored can fush an employee to resign and this can be classified as constructive dismissal.
It is interesting to note that harassment, or bullying from fellow workers can result in one feeling the need to leave the environment if not being protected by the employer and this can also be classified as constructive dismissal.
Constructive dismissal can also result from seriously breaching the ‘duty of mutual trust and confidence’ – which is implied into every employment contract – such as, wrongly and without evidence accusing the employee of theft or other misconduct without substantive evidence.
Claiming for constructive dismissal can precluded when the employee fail to resign within a reasonable period from the date of the breach, however when an employee accept or waived the breach if the acceptance must, nonetheless, be unambiguous and unequivocal.
But if the employer has done a series of acts (of breach), which individually or in the aggregate constitute a serious breach of contract, culminating in an event that triggers resignation, the employee’s response may be measured from the last incident rather than the first.
Thus, in this case, an employee’s failure to resign after the first act may not constitute an acceptance or waiver.
However, constructive dismissal can at times be hard to prove because you have to show that your employer’s actions amounted to a serious breach of contract forcing you to quit.
It is often difficult to show that your employer’s behaviour was so bad as to make you leave. Therefore, having witnesses and other tangible evidence to back up your claim is essential.
Read more of my articles on The Sunday Mail website (www.sundaymail.co.zw) as I look into Terminal Benefits.
Brenald Chinyowa contributes on www.sundaymail.co.zw and writes in his personal capacity. Feedback email chinyowab@gmail.com Blog: profbrenald.blogspot.com

SALE OF BUSINESS WHAT ARE THE LABOUR IMPLICATIONS
This matter is dealt with under Section 16 of the Labour Act. I will also refer to local and foreign case law to highlight the labour rights of workers under such circumstances and the obligations of the buyers and sellers of such businesses.
When business is transferred as a going concern, either partly or wholly, a number of labour implications arise. I will look at the five major implications:
The change of ownership does not interrupt an employee’s continuity of employment and an employee’s contract of employment continues with the new employer as if with the old employer.
Put in another way, this simply means that the new employer inherits the transferred employees as if they had always been on its payroll.
It is not permissible to ask employees from the old employer to apply for jobs in the new company, the contracts of employment transfer automatically.
One obvious implication of this is that any benefits the employees might derive from the length of service, for instance, severance pay if the employees are later retrenched by the new employer, are not affected by the transfer of ownership.
For the purpose of calculating the employee’s length of service, the years served with the old employer are added to those served with the new employer.
Employees can only be subjected to similar or more favourable conditions under the new employer. They cannot earn less; neither can the new employer unilaterally withdraw benefits which the workers enjoyed under their previous employer.
By mutual agreement, the law does not stop the transferred employees and their new employer from agreeing to less favourable conditions. However, if such agreement has the effect of diminishing the employees’ rights to social security, pensions, gratuities or other retirement benefits, prior written authority of the Minister of Labour and Social Services has to be sought.
Anything done before the transfer by or in relation to the old employer, including dismissal of an employee or the commission of an unfair labour practice or act of unfair discrimination is considered to have been done by or in relation to the new employer.
For example, an employee dismissed by an old employer can still bring a claim for reinstatement or damages against the new employer. As a further example, the new employer is also bound by any arbitration awards or collective bargaining agreements that were binding on the old employer before the transfer.
The rights of the transferred employees can be enforced against the buyer or seller of the business at any time prior to, on or after the transfer. This means that depending on the circumstances, the old employer can still be liable at law after the business has already been sold to the new employer.
In similar vein, the prospective employer can also be liable even before the ownership of business has been transferred to it!
It would be unfair labour practice to violate or evade in any way these provisions of Section 16 of the Act.
A typical local case relating to the matter under discussion was handled by the Supreme Court in Premier Wholesalers vs Regional Hearing Officer & 15 Others (case number 83/93).
The facts of the matter were that Premier Wholesalers took over the operations, including staff of Premier Milling in Mutare with effect from January 1 1991.
However, on January 2 1991, it terminated the employment of some of the workers. Premier Wholesalers was ordered to reinstate them, which it did. However, the employer unilaterally reduced their pay.
The Supreme Court ruled that Premier Wholesalers had acted unlawfully by terminating the employees and then later subjecting them to less favourable conditions without their consent.
The lesson from the Premier Wholesalers case is that if you intend to purchase a business but do not wish to take over the employees, confirm this in writing before signing the agreement of sale/purchase.
The responsibility of what to do with the employees then lies with the current owner. This means that an employer wishing to sell its business may have to retrench its employees if the purchaser does not wish to engage the seller’s employees.
A controversial case is where an employer decides to sell a portion of its business and then enters into a contract to outsource the product or service from the new owner.
What then happens to employees if their old employer decides to terminate the outsourcing arrangement?
This was the issue dealt with by the court in Aviation Union SA vs South African Airways and Others (2008).
South African Airways cancelled an outsourcing deal with a service provider which it had contracted a few years before and advertised for fresh tenders.
Aviation Union sought an order declaring that the termination of the outsourcing contract would constitute the transfer of undertaking back to South African Airways.
The court decided that it had no jurisdiction to restrain South African Airways from taking on a new service provider.
It was also held that the successful tenderer would not become the employer of the old subcontractor’s employees, even though they had all been transferred to it from South African Airways when it subcontracted the services concerned.
It remains to be seen whether Zimbabwean courts would hold the same view under similar circumstances.
There are situations where a group of companies decides to close one of its subsidiary companies due to viability problems. Employees of the closed company may then be transferred to other sister companies within the group.
Courts have held that the closure of one company in a group and the transfer of its business to another does not amount to the transfer of business in the manner envisaged in section 16 of the Labour Act.
In mergers and acquisitions, the provisions of Section 16 do apply. As in Forecourt Express (Pty) Limited vs SA Transport and Allied Workers’ Union and Another, the courts are prepared to accept that new employers are entitled to restructure their business to the extent necessary to accommodate the acquisition of another company, even if it entails the retrenchment of employees of the old employer.
However, everything must be done in a manner that doesn’t prejudice the rights and benefits of the affected employees.
In Telkom SA vs Blom and Others (2003), the Supreme Court of Appeal held that pension fund holdings and benefits of employees transferred do not remain in the pension fund of the old employer.
The court decided that the automatic transfer of employment contracts “does not prevent an employee from being transferred to a pension, provident, retirement or similar fund other than the fund to which the employee belonged prior to the transfer . . .”
While the Labour Act is not explicit on how pension funds are handled on transfer of business, I guess, in terms of pension laws, the Director of Pensions would need to be satisfied that any scheme to amalgamate or transfer funds is reasonable and equitable and accords with the full recognition of the rights and reasonable benefit expectations of the persons concerned.
Under the law relating to insolvency, the benefits and rights conferred upon employees will be handled differently. Professional legal advice has to be sought.
‪#‎NEWSDAYJULY052011‬

YOU CANT JUST HIRE AND FIRE

YOU CANT JUST HIRE AND FIRE

By Brenald Chinyowa

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.

In my previous article I talked about the local legal framework that governs the termination process which include the Labour Act chapter 28:01 (Sec 12B & C and 101 (9)) also the SI 15 of 2002 which happen to be the national code and the collective bargaining agreements which are crafted at industrial level through the NECs and changed from time to time when necessary by the concerned parties. There are also several ways of terminating employment contracts that are legally permissible in the Zimbabwean Labour laws which include (a) death of the employee (b) liquidation of the organisation (c) retrenchment (section 12C) of our labour Act (d) dismissal section 12B and in line with section 101 (e) expiry of a fixed term contract (f) completion of business project (g) supervening impossibilities (f) incapacity to perform the agreed tasks (g) retirement.

 However it must be in the cognisance of every player in the labour industry that a competent workforce can be used to recuperate financial invincibility. In light of that, l recommend that retrenchment must be the last option. Rather, employer’s should craft performance or productivity based contracts.

Taking a leap in the international community there is the ILO  Convention  on  the  Termination  of  Employment  at  the  Initiative  of  the  Employer,  1982  (C  158)  and  ILO Recommendation on the Termination of Employment at the Initiative of the Employer, 1982 (R 166) provide the essential elements, namely:

♦  All  dismissals  must  be  substantively  and  procedurally  valid,  with  a  valid  reason  given  for the  dismissal ‘ connected  with  the  capacity  or  conduct of the  worker or  based  on  the  operational  requirements  of the undertaking, establishment or service." That is no employer should terminate the employment contract Willy nilly without a solid reason. Also leaning from in the case of MAKAYA v PAYLESS SUPERMARKET (PTY) LTD 2007 (1) BLR 521 (IC) Gaborone (Botswana) Case No: IC 737 of 2005. The applicant had been dismissed for not recording his disposing of half a scone, according to company policy. He had also been charged with 'damage caused wilfully or by gross negligence to moveable or immoveable property'. No evidence was presented at a disciplinary hearing other than that relating to one half scone. He was found guilty by the disciplinary hearing, which was chaired by the store manager, who also investigated the matter and instituted the charges against the applicant. The applicant was summarily dismissed. From the minutes of the disciplinary hearing, it was evident that the respondent did not consider an alternative to dismissal, but applied a rigid policy to stamp out all shrinkage. An internal appeal against the dismissal was refused, where after the applicant approached the court and it was held against the employer, that the applicant's dismissal was substantively unfair.

The decision was arrived on the following grounds, “An employee can only be dismissed if the employer has a valid reason for doing so. To comply with the valid reason test an employer must be satisfied, judged objectively, that the misconduct, with which the employee is charged, especially misconduct of which dishonesty is an element, has in fact been committed and that there is sufficient proof that the said misconduct had in fact been committed by the employee so charged, except in a case where the employee pleads guilty to the charge(s). In such cases the employer need only lead sufficient evidence for him to decide on an appropriate sanction. It is not for the employee to prove his innocence but the onus is on the employer to prove the employee's guilt.

If an employee is dismissed at a disciplinary hearing, that then terminates the contract of employment. If an appeal is lodged, it does not reinstate the employee pending the hearing of the appeal. If the appeal is successful, the employee is reinstated retrospectively. If not, the date of dismissal is the date on which the original dismissal occurred as leant and with consultation from the cases of Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC) and Nkomo v Pick 'n Pay Retailers (1989) 10 ILJ 937 (IC)

♦  Certain reasons are inherently invalid or automatically unfair including  reasons connected to:  the worker's union membership or participation in union activities when outside working hours; the worker having acted in his or her capacity as a workers’ representatives; the worker lawfully  filing of a complaint against an employer; the worker being absent from work during maternity leave and the race, colour, sex,  marital status, family responsibilities,  pregnancy,  religion,  political opinion,  national extraction or social origin of the worker.

♦ There is procedural unfairness, whereby an employee is denied an fair opportunity to defend themselves before any dismissal. Also as leant 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. Yet the proper limits of the principle are not precisely defined. In traditional formulation it prescribes that when a statute empowers a public official or body to give a decision which prejudicially affects a person in his liberty or property or existing rights, he or she has a right to be heard in the ordinary course before the decision is taken. Also See Metsola v Chairman, Public Service Commission & Anor 1989 (3) ZLR 147 (S) and In an ancient case (1722), The King v Chancellor, University of Cambridge, where Justice Eyre remarked: "The laws of God and man both have given the party an opportunity to make his defence, if he has any.... Even God himself did not pass sentence upon Adam before he was called upon to make his defence."

Therefore employers should be very careful when dismissing an employee inspite of the misconduct or reason behind the dismissal a fair opportunity and channel to enable the employee to be heard should be created. In practise of this to be safe as an employer and prevent losing money over emerging cases after the dismissal, it must be in the cognisance of the employer that justice must not only be done, but it must be seen to be done.

Constructive dismissal is another extension of no fault termination which is defined on Section 12B (3) (a) of the Labour Act, Chapter 28:01 which consider constructive dismissal to have taken place “if the employee terminated the contract of employment with or without notice because the employer made continued employment intolerable”. Isaac Mazanhi a Regional Labour analyst defined it as, ‘any action on the part of the employer which renders the continuation of the employment relationship unbearable for the employee — to such an extent that the employee is left with no other option but to resign. The employer does not actually dismiss the employee, but the employer’s conduct must be such that no reasonable employee can be expected to put up with it.’

In the United States, constructive dismissal has differing meanings depending on the jurisdiction. In California, the California Supreme Court defines constructive dismissal as follows: "In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign

Now taking a leap in case law

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged…”  (Western Excavating  v Sharp [1978] ACC ER 713 per Lord Denning and quoted by Malaba JA (as he then was) in Astra Holdings (Private) Limited v Peggy Kahwa SC 97/04).

Efforts should be made by labour officials, workers' representatives and organisations of workers to ensure that workers are fully informed of the possibilities of appeal at their disposal, after termination of the employment contract. Also during the period of notice referred to in Article 11 of the Termination of Employment Convention, 1982, the worker should, for the purpose of seeking other employment, be entitled to a reasonable amount of time off without loss of pay, taken at times that are convenient to both parties.

A worker whose employment has been terminated should be entitled to receive, on request, a certificate from the employer specifying only the dates of his engagement and termination of his employment and the type or types of work on which he was employed; nevertheless, and at the request of the worker, an evaluation of his conduct and performance may be given in this certificate or in a separate certificate

Read more of my articles on The Sunday Mail website (www.sundaymail.co.zw) as I look into Constructive dismissal and the new section substituted for section 12C of Cap. 28:01 where the principal Act is amended by the repeal of section 12C.

Brenald Chinyowa contributes weekly on www.sundaymail.co.zw  and writes in his personal capacity. Feedback email chinyowab@gmail.com (0777 897 586). Blog: profbrenald.blogspot.com

TERMINATION OF THE EMPLOYMENT CONTRACT

Opinion & Analysis Contributor

January 17, 2016

Brenald Chinyowa
Once employed, employees do not look forward to having their contracts terminated.
Unfortunately, most employers recently found any easier scapegoat. My conviction is that the raison d’être behind the retrenchment and termination of employment contracts on notice is that employers are seeking to hide behind labour costs due to their financial glitches.
By the way, I am not advocating for life time employment models. However,l encourage all employees to prove their worth. In others words, be competent! Before I get into the legalities of terminating the employment contract, let me borrow a statement from one famous businessman who said, “You can take everything I have, but leave me with my people and I will be able to rebuild again.”
A competent workforce can be used to regain financial invincibility. In light of that, l recommend that retrenchment must be the last option. Rather, employer’s should craft performance based contracts. Usually, termination of the employment contract involves releasing an employee against his or her will. The process is unavoidably painful to the affected employee.
Termination of contracts, however, are a necessary part of business life and must be carried out promptly when the need for such actions become obvious.
When an employee is dismissed or fired, it is generally thought the employee would have been at fault. On the other hand, some lay-offs are usually done when business slows down during economic downturns. This can be outside the employee’s performance. Retrenchment may be voluntary.
In the case of Samuriwo vs Zimbabwe United Passenger Company 1999 (1) ZLR (H), wherein Garwe (as he then was) had to say, ‘…the code in compliance with S (section)101 of the Act steers clear of other matters that have nothing to do with misconduct, such as termination for other reasons’. In this case supra places beyond dispute the fact that there are several legally permissible ways of terminating the employment contract apart from dismissal in terms of codes of conduct following disciplinary proceedings as provided for in the codes of conduct.
The several ways of terminating employment contracts include (a) death of the employee (b) liquidation of the organisation (c) retrenchment (section 12C) of our labour Act (d) dismissal section 12B and in line with section 101 (e) expiry of a fixed term contract (f) completion of business project (g) supervening impossibilities (f) incapacity to perform the agreed tasks (g) retirement.
In the Zambian labour law, depending on the type of contract involved, employment can be terminated, not at the initiative of the employer, in circumstances that include: the expiry of a fixed-term contract, the completion of the task for which the contract was concluded, the death of the employee, or any other manner in which a contract of service may be lawfully terminated or deemed to be terminated, whether under the provisions of the Employment Act or otherwise. Under the South African law section 188 of the Labour Relations Act, a termination is unfair if the employer fails to prove that the reason for dismissal is: (a) a fair reason related to the employee’s conduct or capacity; or (b) based on the employer’s operational requirements; and (c) that the dismissal was effected in accordance with a fair procedure. The Labour Relations Act classifies terminations for certain reasons as being automatically unfair.
Back home before 26 August 2015, section 12 (4) of our Labour Act chapter 28:01 made it legally permissible to terminate the employment contract on notice as learnt from the cases of Art Corporation Ltd v Moyana 1989 (1) ZLR 304 (S) at 308G-309G and Chirasa and others v Nhamo NO and another (2003) ZWC 72 and the popular Don Nyamande and another v Zuva Petroleum pvt ltd (2015) SC 43/15.
The above judgement where reached as a result of the provision of Sec 12 (4) of the Principal Act which read “….Except where a longer period of notice has been provided for under a contract of employment or in any relevant enactment, and subject to subsections (5), (6) and (7), notice of termination of the contract of employment to be given by either party shall be —” The above lead to thousands of employees being dismissed from work. Case law proves that the loophole was existent from the inception of the Principal Act but it became popular in 2015 on the judgement of Don Nyamanda and K Donga vs Zuva Petroleum case. However, the Amendment of section 12 of Cap. 28:01 of the principal Act 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 12C shall apply with regard to compensation for loss of employment.”. This has changed or has outlawed the termination of the employment contract by giving notice if the termination is the initiative of the employer, that is, this statue restricts the common law’s right of the employer to terminate the employment contract by only giving the employee notice of termination.
But basing on this provision, the employees are still at liberty of terminating the employment contract by giving the employer notice of termination but in compliance with section 12 (4) Cap 28:01.
The new provisions of Sec 4(a) of Cap 28:01 entail that we have to read section 12 (4) together with 12C . Dismissal is another way of terminating the employment contract, but it has to be practised in compliance with section 12B, Cap 28:01 where it outlines the circumstances in which the employee could have been unfairly dismissed. (1) Every employee has the right not to be unfairly dismissed. An employee is unfairly dismissed— (a) if, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or
(b) in the absence of an employment code, the employer shall comply with the model code made in terms of section 101(9). (3) An employee is deemed to have been unfairly dismissed—
(a) if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee;
There the CoC should be used when dismissing the employee. ln the case of absence of the code, the national code shall be used (SI 15 of 2002) (b) if, on termination of an employment contract of fixed duration, the employee—
(i) had a legitimate expectation of being re-engaged; and (ii) another person was engaged instead of the employee.
If an employee is dismissed and another person is employed instead, it makes the dismissal unfair. However, this clause applies only when the employee was dismissed when their contract expires. Legitimate expectation does not apply when the employee has been dismissed on the grounds of misconduct. Read more of my articles on The Sunday Mail website (www.sundaymail.co.zw) as I look into the ILO — Termination of Employment Recommendation, 1982 (No. 166) concerning termination of employment at the initiative of the employer.
Brenald Chinyowa contributes weekly on www.sundaymail.co.zw and writes in his personal capacity. Feedback email chinyowab@gmail.com. Blog: profbrenald.blogspot.com

Labour law: Achieving social justice

Opinion & Analysis Contributor

January 10, 2016

January marks six months since some employers took advantage of a loophole in the labour legal framework and sent home thousands of employees on three-month notices.
Brenald Chinyowa 
The July 17, 2014 Supreme Court ruling on termination of employment contracts and the ensuing amendments to the Labour Act (Chapter 28:01) marked an overnight paradigm shift.
Almost everyone affected cried foul to being subjected to a shoddily drafted law that was fast-tracked to address the shortcomings of the principal Act whose effects were already haunting the country.
Among others, there was the issue of termination of employment contracts by notice, where employers justified the terminations as legal, but Government and workers criticised them as illegal and a misinterpretation of the principal Act.
It can be argued that Government rushed to come up with HB7/2015, the Labour Amendment Bill, which among other things has the retrospective effect where all workers who lost jobs from July 17, 2015 as a result on judgment No SC 43/15 (Don Nyamande & Kingston Donga v Zuva Petroleum) were entitled to compensation for sudden loss of employment.
One lawyer was reported saying “it appears the Government acted in a panic mode by rushing the process to save face from angry, disgruntled, poor and hopeless fired workers who had to adjust to their fate and reorganise their future.
“The Act did not cover all the essential elements for a win-win situation for both employers and employees. Both employers and workers are not happy with the Amendment”.
The questions now are: Is this a bad law? Was it really fast-tracked? Did the amendment achieve a win-win situation?
Is there still balance of power between the parties? Is it really business friendly, and if so how did it achieve its purpose as an instrument that advances social justice? Do employees feel protected by the new law?
To answer the above, I will walk through the amendments and analyse what the new Act stipulates or is trying to address, and it’s likely aftermath.
The golden rule of statutory interpretation shall be applied; that is, to give the words of statutes their primary meaning.
A Bill was brought before and passed by Parliament before President Mugabe signed it to amend the Labour Act (Chapter 28:01).
Some people argue that the amendment was fast-tracked as Government panicked.
I beg to differ with that perspective because in my understanding the amendment was long overdue and there was need to realign it with the Constitution.
There was need to realign the Act with trending labour practices in the international community and to make it more business friendly.
The principal Act had a lot of gaps that needed addressing.
“Section 12 of Cap. 28:01 is amended; (a) by the insertion of subsection (3a) A contract of employment that specifies its duration or date of termination, including a contract for casual work or seasonal work or for the performance of some specific service, shall, despite such specification, be deemed to be a contract of employment without limitation of time upon the expiry of such period of continuous service as is –
“(a) fixed by the appropriate employment council; or (b) prescribed by the minister, if there is no employment council for the undertaking concerned, or where the employment council fixes no such period; and thereupon the employee concerned shall be afforded the same benefits as are in this Act or any collective bargaining agreement provided for those employees who engaged without limit of time.”
This new provision means the incessant renewal of contacts an unlimited number of times is no longer permissible.
The previous practice was that an employer would give an employee a contract ending after three months, and the employee would have to try and have it renewed upon expiry; or the employee was required to stay at home and come back after a certain period for re-engagement.
My interpretation and understanding is that the law took this as an abuse of fixed-term contracts, because fixed term contracts were made for projects or business ventures that end or cease operations within a specific time.
An example is a road construction project. It is not a continuing business. It will definitely end so it is not logical to employ a permanent employee for such a project.
But if it’s scheduled to be finished after, say, five years, then we have to draft fixed-term contracts of five years.
Recently, the Commercial Sectors of Zimbabwe Statutory Instrument 45 of 1993 was amended with effect from December 1, 2015 on the following provisions:
That a contract of employment which is for a stipulated period which shall not be less than three months and flexible up to a maximum period of 12 months, shall specify the date of commencement and the date of termination thereof.
The fixed-term employment contract can be renewed for a maximum of six times and thereafter, an employee is deemed to have become an employee on a contract of employment without limit of time on the day the sixth fixed-term employment contract expires.
This simply means fixed-term contracts in the commercial sector can be renewed, but for not more than six times and the contract can be up to 12 months.
Therefore, we are looking at up to six years as the legal period or span were fixed-term contracts can be renewed when an employer gives 12-month contracts.
This should be welcome for the employers because they have up to six years to decide whether or not to give a permanent contract.
But to the employees in the commercial sector, what it simply means is, the employer will contract you for a maximum period of six times, thereafter your contract is not renewed.
Questions are then asked as to what happens if your contract is renewed five times then there is a break and you are offered another contract? Are you deemed to be on a contract of employment without limit of time? I feel that national employment councils should exercise caution on the provisions of that section so as achieve social justice and productivity.
Brenald Chinyowa will from this week contribute articles on labour issues on www.sundaymail.co.zw
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