This article is based on Chapter 7 of the latest book “A PRACTICAL STEP-BY-STEP GUIDE TO RETRENCHMENT LAW, IN ZIMBABWE” which is available in hard copy.
From the foregoing, a common predicament employers face arises when an employee falls ill or is accused of breaching workplace rules, leading employers to resort to retrenchment in such circumstances. It is expected that whenever an employee is ill, the procedure outlined under section 14 of the Act should be followed to terminate the contract of employment. Similarly, when a breach of workplace rules is alleged, compliance with section 12B of the Act is mandatory.
We submit that resorting to retrenchment for reasons other than those specified under section 2 of the Labour Act is procedurally unfair and subject to challenge. For instance, a sick employee’s contract can only be terminated after the exhaustion of the initial 90 days of sick leave on full pay, upon a doctor’s recommendation, or after an additional 90 days on half pay. Retrenching such an employee is not only inhumane but also deprives them of other rights provided under the Act.
Likewise, retrenching an employee accused of breaching workplace rules undermines the rights outlined in section 12B (2) of the Act. Employers are therefore urged to utilize retrenchment only in the appropriate circumstances as stipulated in the Act.
Employees have a constitutional right to equal benefit and protection of the law, retrenchment laws included. This means that all the rights accruing to employees in terms of the Labour Act must be respected without derogation. This further means that retrenching employees in inappropriate circumstances prevents them from enjoying some of the rights accruing to them in terms of the Act, to the extent that a retrenchment process may be challenged if the reasons put forward by the employer are not legitimate.
Despite our submission above, situations may arise in the workplace where an employee who is ill or has a pending disciplinary hearing opts to be retrenched. In such cases, it is advisable for the employer to engage in a mutual separation arrangement under section 12(4a) of the Act. This approach allows the employer to avoid using the retrenchment procedure in circumstances where it may be inappropriate.