Davies Ndumiso Sibanda

Since the Amendment Act became law, it is cheaper for the employers to retrench employees than take them through the disciplinary process unless the employee has long service.

The provisions of the Labour Amendment Act which now makes it compulsory for all labour cases to be concluded at the Labour Court makes it very expensive for the employer to take an employee through the disciplinary process as in the event the case is lost, the employer would have to pay a lot of money in back-pay.

Jane, a cashier at a supermarket has been short of cash on many occasions and the employer is now tired of dealing with her cases. He does not tell her of the problems, instead he merely tells her he no-longer needs her services and thus he starts retrenchment process where he offers Jane 3 months’ notice pay and one month salary for every two years worked. Jane has served only three years and for her services she gets 1½ months’ salary which means in total Jane gets a total of 4½ months’ salary and that is the end of the matter. However, had the employer taken the option of disciplining Jane, it would have meant going through conciliation and adjudication by the labour officer and the matter will still be parked at the Labour Court. In the event that Jane won the case on a technicality, the employer would have had to reinstate her at a huge cost.

The question that is being asked by many workers is why such cruel legislation was made as more workers might have lost jobs as employers apply the Labour Amendment Act provisions. Looking at events on the ground, many employees with short service have either voluntaril “agreed” or taken retrenchment packages that are based on the prescribed minimum. While one can argue that workers are leaving with at least a package, the amounts involved are generally very small and can hardly help an employee start a self-help project.

The issue here is not retrenchment but is the fact that the retrenchment procedures have become an alternative discipline management tool as employers avoid the paralysed discipline management process. The position taken by employers is understandable because no reasonable employer would want to have a discipline case that runs all the way to the Labour Court each time an employee is dismissed given that most employers are not skilled in labour litigation and the cost of labour litigation could be high.

For the workers, there are not many choices for them where there is unfair labour practice. It is unsafe to complain, it is also very unsafe to express views and opinions that are not palatable to the employer as one can easily be dismissed without recourse. The workers are disadvantaged in that once the employer takes the retrenchment route and offers the minimal retrenchment package, there is nothing more the worker can do unless the business is doing very well and the worker can provide evidence to that effect to the Retrenchment Board.

In conclusion, given all these situations there is a likelihood that more workers have lost their jobs through the provisions of the Labour Amendment Act than the terminations on notice that were done in terms of the Zuva Judgment.

Davies Ndumiso Sibanda can be contacted on: email: [email protected] Or cell No: 0772 375 235

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