Landmark ruling says 3-month notice dismissals unlawful

scales-and-gavel

Daniel Nemukuyu, Harare Bureau
THOUSANDS of workers who were fired on three months’ notice without their consent after the 2015 Zuva Petroleum judgment, are now entitled to reinstatement or payment of damages after the Labour Court ruled that they were unlawfully dismissed.

In a landmark judgment, the head of the Labour Court bench Justice Gladys Mhuri, ruled that the Labour Amendment Act (Number 5 of 2015) applies in retrospect to cover all those who lost their jobs from July 17 2015.

The judgment was handed down in a case in which an independent arbitrator, Ms Faith Mupangani, was seeking confirmation of her decision that ordered the reinstatement of seven workers fired on notice by the National Handling Services (NHS) Private Limited.

The amendment in question spells out four grounds on which employment can be terminated.

Section 12 (4) (a) of the Act reads:

“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 12 (c) (retrenchment).

In terms of that law, for termination on notice to be effected, there has to be consent from the workers and the parties have to agree on a retrenchment package or compensation.

NHS had opposed the workers’ challenge arguing that the company could not have complied with the law that was not yet in existence at the time of termination.

However, Justice Mhuri ruled that Section 18 of the Finance Act clearly brings the law backwards to cover those who were fired before the Labour Amendment Act Number 5 of 2015.

“This provision, in my view, is very clear and unambiguous. It applies to terminations of contract on notice, which were done on or after the 17th of July 2015.

“These terminations were therefore affected by Section 12(4) (a) which section prohibits termination of contracts on notice unless they fall under the four scenarios provided in Section 12(4) (a).

“In view of the retrospective application of Section 18 of the Finance Act Number 8/15, the argument by first respondent that it could not possibly comply with a law which was not yet in existence, is without merit,” the judge ruled.

To that end, Justice Mhuri ruled that the terminations constituted unlawful dismissal, hence an order for reinstatement or damages in lieu of reinstatement.

The judge held that Section 12(C) of the Labour Act, which provides for compensation, does not apply to those who were unlawfully terminated on notice, hence payment of damages or retrenchment was the best way to go.

“The remedy for unlawful dismissal is reinstatement or payment of damages in this case. This is because Section 12 (C) of (the Labour) Act 5 of 2015 which provides for compensation does not apply in this case.

“The Section applies to those employees whose contracts of employment were terminated pursuant to Section 12 (4) (a) (four grounds outlined above),” the judge ruled.

Justice Mhuri ordered the reinstatement of the seven NHS workers or payment of damages within 45 days of the court order.

“Within 45 days of this order, first respondent (NHS) shall reinstate second to eighth respondents without loss of pay and benefits.

“If reinstatement is no longer possible, first respondent is ordered to pay second to eighth respondents damages which the parties are to negotiate and in the event of a deadlock, the parties are to approach the applicant (Arbitrator) for quantification,” reads the judgment.

National Airways Workers’ Union (NAWU) vice president Mr Elijah Chiripasi, welcomed the development saying the court had correctly interpreted the law.

“NAWU welcomes the development. Justice Mhuri, who heads the Labour Court bench, has correctly interpreted the law.

“The judgment is in line with the Zimbabwe Agenda for Socio-Economic Transformation (ZimAsset). President Mugabe is on record expressing concern over the way thousands of workers were treated after the Zuva judgment,” said Mr Chiripasi.

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  • Thank you

    There is God in heaven

  • Thank you

    There is a God in heaven

  • Brutal Truth

    This is good news.Something is terribly wrong with Zimbabwe’s slave trade era like type of labour laws.A lot still needs to be changed

  • Ziyabheda

    What happens to those employees who died say ten months after such layoffs? Who will negotiate on their behalf? And what reading do investors make of Zim labor laws?

  • libertyatliberty

    Njabulo:Iibertyatliberty at gmail dot com .Its hats off to the person who was adjudicating in this case.One hopes that this archetypal case will set precedence that will breed fairness and justice in the labour courts of Zimbabwe.There have been many complaints from many people that the labour courts in Zimbabwe were very unfair to the plaintiffs .Even Maduku has also been complaining about the manner in which the labour courts handles cases.He even said that there were no successful cases by plaintiffs and that made it difficult for many lawyers to have references cases when arguing their cases in the court .However ,one mistake which could be used by the defence lawyers in the case in question ,is that you cannot legislate retrospectively.In other words ,the defence may appeal on grounds that the court erred ,because at the time the ruling was made on the case ,when it failed ,that piece of legislation had not yet come into effect.said

  • MUTASAWAKAROKA

    Principle of Natural Justice prohibits enactment of Laws that operate in restrospect, the simple reason being that nobody should be penalised for a “crime” that didn’t exist at the time of commission/omission. Gone are the days of “The Dog’s Law” whereby one waits for a dog to do something then you beat it so that the dog knows that what it has done is not allowed. The Judge is wasting appallents’ time and meagre resources knowing fully well that the Supreme Court has already made a ruling on the matter which she is supposed to follow.

  • chinos

    I need clarification here. If I employ you to look after my cattle and for one reason or another all the cattle die. Am I obliged to keep employing you for more than three months? What should I do to free myself of you?

    • MakhosiXamu

      A stupid question from an idiot. Go read the law again so that your mind maybe restored since it is dead wood.

      • Zapalala

        KKK namuhla kuvukile . Usawadla amatablets na

    • makhosi

      Good question for sure.
      If the cattle header, say, challenges in court. You will win the case on merits of your case.

      In short, just fire the lad.

  • It is well

    Ziyabhedha and Mutasawakaroka are just confused people, what investor who loves slave trade, the Chief Justice openly said he believes in the law being applied retrospectively if it has to promote harmony. Read widely don’t just waffle

    • Ziyabheda

      Slave trade? You think organizations lay people off because they want free labor? Come on man,be mature enough. Organizations lay off employees to allign the numbers with the level of business being generated. Some have even closed shop. Besides,investors want to invest in a predictable environment,not one where a superior court ruling can be trashed by a surbodinate court,No!

  • Vumani

    This ruling is fundamentally flawed judgement it will need Constitutional court to correct rectify this anomaly, these labour judges spend their legal careers in the prosecution then are subsequently promoted to deal with civil pertinent matters which they are not apparently very well versed by the look of it,hence the dubious judgements it calls in to question their competency in labour law and interpretion of constitutional law this places the parties in difficult position to apply matters retrospectively in labour matters.The judgement is devoid of common sense.

    • MakhosiXamu

      Fuseki …khandakhulu ulilema . mgodoyi

      • Zapalala

        For what Kwathe , umthukelani

      • Vumani

        Unathile amaphilisi akho lamuhla ???

    • munyoro

      The judgement is very correct s 18 of Act no. 5 of 2015 is clear that `s 12 of the Labour Act as amended applies effective 17 July 2015` in respect to those employees terminated on three months`notice. s 132 of the constitution does not outlaw retrospective application of laws. The world over laws have been applied in retrospect even in this country. what that means is the termination must be in compliance with s 12 of the labour act as amended. Occurred rights were taken away by the amendment. That judgement is meritorious. In actual facts it is the SC judgement in ZUVA that is flowed NOT in expression of the law on termination on notice (which is correct) but in that it neglected its review powers in that ZUVA was not entitled to terminate the contracts under common law termination on notice in terms of the contract. The basis was that it had initiated a retrenchment process that it neglected and utilised notice. This was at variance with many decisions of the SC namely Mutare Board paper mill case. the object of the termination was retrenchment disguised in notice. It is that which is devoid of common sense. The Judge President Mhuri is thus correct.

      • Vumani

        The reasoning seems attractive but cannot be accepted in its entirety without qualification, instead of placing heavy reliance on the rights of employees the labour court should have taken into account the circumstances that led to the termination of employment. If anything there is nothing meritorious about granting an employee unfettered discretion to granting consent to termination of employment because the likelihood of one granting such consent if relatively minimal notwithstanding the premises upon which the employer might have been induced to initiate the redundancy, operational variants and sustainability are the determinant factors. The enforceability of such judgements is called into question under the prevailing economic climate the resultant leaves many ex-employees under a cloud of uncertainty and languishing on false hope.

  • Enzo Shumba

    I am shocked about utterances by most of the commentators its as if they are against the idea that disadvantaged workers who worked for more than 20 years or more be paid their dues. It is their right, Its extremely disappointing, outright selfishness by the heartless contributors, please don’t be jealous and insensitive . After all who Chairs the Concourt which you keep on referring to.

  • Tanyaradzwa

    This has virtually got nothing to do with 2018 elections this is Justice which people were denied by Chidyausiku, the Head of the Labour Court has articulated it well.

  • chirandu_mukuru

    Politics!

  • Tsuro

    The Finance Act is an overriding law. This is what all these capitalist slave drivers are deliberately choosing to forget.

  • Tsuro

    Finance Act 8 of 2015 actually amended a whole host of other laws and that is normal.

  • On point

    The truth is Justice G. Mhuri is one of those rate Judges who actually read the law and should make it to the top. Sadly others get confused by some corrupt,fake and trickster Advocates whom they have become very close to to the extent where they allow them get away with technicalities on fundamental issues of justice and equity. I will never forget a revealing comment made by one “renowned” Advocate based outside the country. He said a good lawyer knows the law but a better one knows the Judge. The Zuva judgement did not come as a surprise to me but I am happy we still have the likes of Justice Mhuri on the bench. If anything the rumor on the Zuva case was out as early as April 2015. My prayer is that the Lord gives us more such principled judges. In other words we end up questioning the right of government to govern of which the Finance Act is a the principal tool.

  • Kitikiti

    Very true “on the point” Companies like…….knew about the judgement on the Zuwa as early as March and they applied it. Thanks to the Almighty for getting rid of the former CJ. There was too much corruption and its still there but I believe the new CJ will try and get rid of it . I know him to be a no nonsense man.

  • zibulo

    I once asked, and still do , who is ZUVA , seeing that they have the economic muscle as big as BP,Shell, Egen. I notice they replace m ost of the Foreign owned big names in Petrol. Who owns it and how did “they rise”? i am not happy at all because they seem to be favored or connected and its back to the same colonization again- these opportunities should be spread to all , and publicized even Emaguswini , so that locals also know what is available, instead of advertizing in Harare, otherwise another liberation war is coming , to rid ourselves of Harare!!!! its not fair, its not moral, not human at all to have Harare dominate=remember we have always been deliberately disadvantaged. Think i am joking about this; TIME WILL TELL