Sabbath for man not for Sabbath

Spectrum Joram Nyathi
AT the time of going to print yesterday, almost a thousand employees had been given termination of contract notices. The toll was rising sharply. It was evident that a number of employers were keen to take advantage of the situation to stoke this harvest of grief. Whether or not they were acting on a wrong interpretation of the Supreme Court ruling is for lawyers to decide.

The Supreme Court ruling last Friday based on common law that employers can end an employee’s contract of employment upon giving a three months’ notice must be the most consequential judgment, by impact and effect, ever made against workers in this country since Independence. That’s my layman’s view. It stripped the paid worker of all dignity and sense of self-worth by showing how much power the employer wields in the contract of employment and how, in turn, the worker had nothing but his labour to sell, all at the whim of the employer.

More importantly, it exposed the fallacy of empty rhetoric by employers when they claim the employee is their biggest asset. The bond of trust which should exist between the worker and the employer has been broken in the case of those workers who woke up to find letters of termination of employment in the letter box at home on Saturday morning. It is a devastating experience in every imaginable sense of the word.

There is nothing as degrading and demeaning as waking up in the morning only to discover that one has become an unbankable project, which is the full import of the Supreme Court ruling. All salaried employees have become a high risk for banks.

You cannot apply for a loan using a job as collateral, certainly not something as long-term as a mortgage bond. If you already have one, you have overnight become a very high risk. One certainty is the possible loss of title if one can’t clear the balance on their mortgage, unless they have alternative sources of funds to service the bond.

The Supreme Court ruling last Friday also exposed fundamental truths which we are not used to in Zimbabwe: the common law fallacy that an employee and his employer are equal; and secondly, that when a law is applied without being tempered by the principles of equity and social justice, that is, when a law is interpreted in a mechanical, Sherlockian fashion, as the Supreme Court seems to have done in the case of Zuva Petroleum against its fired managers, it ceases to serve the interests of humanity and society.

It was the great teacher himself Jesus who rebuked his disciples at one time, reminding them that the Sabbath (law) was created for man, not man for the Sabbath.

Let’s face the reality: how can an employee who is engaged to meet the specific needs of the employer at a particular point in the enterprise be said to be an equal? Equal to a juristic person who can have multiple personalities and presences in different jurisdictions at the same time? That by itself gives the employer infinitely more power by virtue of resources which a single worker can never match. That is what led to the creation of labour unions, because individually, the worker can never meet the legal costs in a fight with his employer.

Now the Supreme Court ruling implies that a worker can have his contract terminated for joining or belonging to a labour union since the employer is under no legal obligation to give reasons for his decision.

This should be a sobering lesson for our neoliberal colleagues always playing megaphones for those endlessly calling for labour law reforms as a condition for investment. When such demands are given full expression they can produce chaos and market volatility of a staggering magnitude in which no one is safe in a job and the majority shareholder operates on a whim.

It is my understanding that common law is founded on customs and precedents as it evolved in Britain over the centuries. The views and opinions of experts kept refining it and better reasoned commonsense became a precedent. While lawyers have to work with precedents on settled issues, there is no doubt that in this era of enlightenment, human rights and judicial activism, exceptions can be made.

Last Friday’s Supreme Court ruling is a peculiar case where applying common law in its dry sense can have dire consequences and demands the direct immediate intervention of the legislature to give our labour laws a human face. How useful is a law which says workers can be thrown on to the streets empty-handed at the issue of three months’ notice, just because the employer and the employee are presumed to be equal contractors and because that is the length of notice the worker is required to give the employer?

How are the people thrown on to the streets without terminal benefits expected to take their humiliation and bleak prospects? Fold their arms, close their eyes and pray? What are they supposed to do with their families, financial obligations and other normal human commitments in their daily interactions? Given Zimbabwe’s current economic situation, what safety nets exist to give relief to such people? In short, this is very dangerous. Not even Esap, during which thousands of workers were retrenched in the name of promoting investment and economic development in the 1990s, gave this country anything nearly as drastic as the Supreme Court’s laissez faire interpretation of common law in the relationship between the employer and employee, in complete disregard of likely consequences.

A number of shortsighted employers now feel empowered and emboldened by the ruling to immediately issue termination of employment contract letters. The ruling provided them with sufficient cover for what was probably long decided.

Yet despite the common law, a more circumspect ruling could have been made to serve the interests of both the worker and employer and in the interests of national stability.

We were reminded of an almost similar case back in 2009 when 70 white commercial farmers led by one Collin Cloate and Gramara (Pvt) Ltd took the Zimbabwean government to the Sadc Tribunal and won a judgment to have the land reform programme declared illegal and reversed because it was deemed to be racist. That process required that the Sadc ruling be registered in Zimbabwe so it could be enforced by the courts under common law.

It fell upon Justice Bharat Patel to execute this odious decision. He must have found Advocate Uriri’s arguments quite persuasive. The fact that the Treaty establishing the Tribunal did not require ratification to apply in a member state only made worse of a bad situation. But he weighed the implications of serving the interests of 70 farmers against those of the entire nation. He refused to register the ruling.

Justice Patel argued that enforcing the Sadc Tribunal ruling would run “contrary to public policy” and create social and political instability as it (the ruling) had the effect of nullifying the land reform programme.

The same considerations must have prevailed in South African President Jacob Zuma’s mind early this year when he circumvented an ICC bid to arrest President Al-Bashir who was attending an AU Summit in Sandton. What possible greater good for the continent could be served by enforcing the order of such a patently partisan institution? Zilch.

Back home, it doesn’t appear that there was much thinking about the impact, effect and consequences of interpreting common law strictly by the letter and not the spirit, thus potentially leaving millions of workers at risk of losing their jobs and without legal recourse, while their erstwhile employers hid behind the voluminous robes of Supreme Court justices.

One can only hope that Parliament and, indeed, the Executive, will act with the necessary speed to outlaw this common law which reduces skilled workers and responsible adults to chattels to serve at the whim of employers.

The point is certainly not to protect deadwood in any sector of the economy. It is simply to, we repeat, observe that the Sabbath was created for man, not man for the Sabbath.

The law should serve and save us, not the other way round. Why should a person who has sacrificed the best part of his/her life growing and prospering an enterprise suddenly find themselves thrown out like a common law thief, with nothing to show for years of toil, when his crime could just be that the employer feels he doesn’t want to pay a severance package which might cut deep into his mountain of profit?

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