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Fidelis Munyoro and Daniel Nemukuyu Harare Bureau
SCORES of people who lost their jobs when their employment contracts were recently terminated on notice, are now flocking to the Constitutional Court challenging the constitutionality of their employers’ decision.

Termination of employment on three months notice has become a cheaper way of firing workers by companies without going through the demanding and costly retrenchment route.

This follows the Supreme Court judgment last month allowing employers to terminate employment at any time without paying any terminal benefits.

The Constitutional Court has now been inundated with labour challenges stemming from the landmark judgment.

To date, 18,000 workers have been fired on the strength of the judgment, a development that has prompted some to approach the Constitutional Court for recourse.

Among the litigants who have approached the apex court was fired Civil Aviation Authority of Zimbabwe general manager David Chawota and seven Daily News journalists.

The journalists — Lizzie Mawarura, Margaret Chinowaita, Kudzai Chawafambira, Lloyd Mbiba, Wendy Muperi, Sandra Mtetwa, and Albert Masaka — were on July 23 served with termination notices along with Ray Matikinye, Godfrey Mutimba Nyasha Chingono plus 13 other workers.

Chawota and the journalists separately filed their applications at the Constitutional Court yesterday.

In their application, the journalists are asking the court to set aside their dismissal and order their reinstatement.

They argue that ANZ breached their rights in terms of the Constitution and were therefore entitled to approach the apex court for relief under Section 85 of the country’s supreme law.

“It is our contention that at first instance, the purported termination on notice, breached our right to equal protection and benefit of the law as defined in Section 56(1) of the Constitution of Zimbabwe,” argued Mawarura in her affidavit filed with the court.

“Part of the protection of the law which we were denied was the protection of Section 12(C) of the Labour Act (Chapter 28:01).

“We contend that the respondent’s claim that our dismissal was covered by Section 12(4) of the Act was wrong and illegitimate.”

That provision, she contends, only applies where the termination is neither misconduct nor economic reasons.

“In our situation the employer terminated our contracts of employment, a total of 23 employees in all departments to reduce expenditure,” stated Mawarura.

“That being the case, the employer was obliged to follow the provisions of Section 12(C) of the Labour Act read together with the retrenchment regulations contained in SI186/2003.”

She asked the court to look at the underlining causes of their termination in light of the meaning and spirit of the Labour Act.

It is also contended that the ANZ decision was in breach of section 65 of the Constitution of Zimbabwe.

The cited section makes it clear that every person has the right to fair labour practices and standards.

“It is our contention that the respondent’s actions in casu (present case) have breached Section 65 of the Constitution,” argues Mawarura.

“We contend for instance that the concept of fair labour practice takes away the common law master and servant status or indeed contractual right of terminating on notice.”

She contends that the movement of the labour law in this country “has been from contract to status”.

“The Supreme Court judgment could not be interpreted to be a reversal of that,” she stated.

“Indeed the Supreme Court judgment cannot be read to be an implicit repeal of Section 12(B), 12(C) and 12(D) of the Labour Act.”

The female journalists also queried the criteria used by ANZ to terminate their contracts.

“It may be a coincidence but it looks like those who were fired either had turned down sexual advances or had been sexually harassed,” Mawarura stated.

She also contends that ANZ actions and employers doing the same will run in conflict with the International Labour Organisation conventions.

The ILO statutes are clear they do not allow the right of notice to be exercised by an employer.

Zimbabwe is a member of the ILO.

Chawota received his notice for termination on Monday this week.

Through his lawyer Caleb Mucheche of Matsikidze and Mucheche law firm, Chawota is seeking an order nullifying the termination. He wants the court to declare the termination of contract as unconstitutional.

Chawota’s argument is that CAAZ had on July 16 this year sent him on forced leave pending investigation into allegations of poor corporate governance.

When the judgment allowing termination on notice was declared, CAAZ made a U-turn and served him with a notice for termination on notice.

To that end, Chawota argued the company was being unfair to him by abandoning disciplinary proceedings and embarking on a cheaper route of termination on notice.

After serving the company for 31 years, Chawota was on Monday sent home empty-handed.

In his founding affidavit, Chawota argued that the company violated his constitutional rights.

“I maintain that in reality, the underlying cause for the termination of my contract of employment by the respondent is premised on the letter dated July 16 2015 although in form the respondent presented it as termination on notice in its letter dated August 2 2015.

“I’m reliably informed by my counsel that the respondent violated my constitutional right to fair labour practices enshrined in terms of Section 65(1) of the Constitution of Zimbabwe by terminating my contract of employment on notice on August 2 2015 after initially preferring allegations of a misconduct or fault nature against me on July 16 2015 by insinuating that I violated corporate governance,” he said.

Meanwhile, Pastor Partson Munyengeterwa who was stationed at Apostolic Faith Mission in Zimbabwe’s (AFM) Waterfalls assembly, is also contesting the termination of his contract on notice and the matter is now at conciliation stage.

An attempt by the church to fire Pastor Munyengeterwa through disciplinary proceedings failed after he won an arbitral award for reinstatement.

Pastor Munyengeterwa’s lawyers, Matsikidze and Mucheche law firm have written to the Principal Labour Officer at the Ministry of Public Service, Labour and Social Welfare seeking conciliation.

He also argued that termination was not genuine because it was a way of fixing him for his victory at arbitration.

Part of the letter reads:

“In that vein, we are of the firm view that termination is a disguised unfair dismissal given that client has an award in his favour which reinstated him without any loss of salaries and benefits after the employer had committed summary dismissal.”

Chief Justice Godfrey Chidyausiku and four other judges, sitting as a Supreme Court, last month unanimously agreed in the case of Don Nyamande and Kingston Donga challenging their dismissal from Zuva Petroleum that the common law position placing employees and employers on an equal footing was still operational.

As a result of that common law position, employers have the same right to give notice and terminate employment, in as much as a worker can do the same.

Following the Supreme Court judgment, thousands of workers have lost their jobs and the dismissals have been seen by analysts as a scramble by companies to fire workers without benefits as they capitalise on the court’s ruling.