Author: Taurai Mrewa

St. Giles Medical Rehabilitation Centre v Patsanza (SC 59/18)

“This provision is clear and requires no interpretation. It seems to me that the provision provides that where an employer decides to include a probationary period in the contract of employment then that period is not renewable. The court a quo in my view correctly found that the use of the word “may” in the above section relates to the employer’s discretion to engage an employee either on probation or immediately into a substantive position. Once a probationary period is given by an employer then it can only be a “single, non-renewable” period”.

Introduction

This dispute boiled down to whether a probationary period can be extended. This is a big legal question in my view. Employers may be faced with a situation where an employee needs seemingly need more time to improve work performance. Such employers may dread giving this employee a permanent appointment. The temptation in this instance is thus to extent the period of probation. Patsanza precludes employers from extending the probationary period.

Facts

The respondent, Lambert Patsanza was employed subject to a three months probationary period. The appellant, St. Giles Medical Rehabilitation Centre, decided to extend the probationary period by a period of one month in an attempt to allow the employee to improve his work-related performance. The employer terminated the contract after the expiry of the one-month extension. The employee argued that his termination was unlawful as he had become a permanent employee. The arbitrator and the Labor Court made the decision that the termination had been unlawful. It was based on the decision of the Labor Court that the current matter was before the supreme court.

Reasoning

The court reasoned that the purpose of a probationary period is to assess an employee’s performance. This probationary contract is different from the contract that follows when an employee completes the probationary period and is appointed permanently. The contract of permanent employment, the court reasoned, only comes after successful completion of a probationary period.

The court looked at the wording of section 12 (5) and made a finding that these words did not provide an employer a right to extend the probationary period. Section 12(5) provides for a “non-renewable probationary” period. The court in this regard noted as follows:

“This position was also set out in the case of Kazembe v the Adult Literacy Organisation SC 173/1994, where the court stated that once a probation period ends and the employer is dissatisfied with the probationer’s performance, all that the employer needs to do is to inform him that his services are no longer required and that would be the end of the matter.”

The appellant had not been dismissed following the expiry of the probationary period. The court went to reason that he had become a permanent employee because the period of probation had expired.

Verdict

The employee was deemed to have been unfairly dismissed.

Own Comment

The Judgement of this court was well reasoned. The relevant section, 12 (5) is clear cut and not complex interpretation was necessary.

This case indicates one area where the Zimbabwean Labour Law is different from the South African law. In terms of Patsanza and as already noted above the probationary period cannot be extended. On the contrary, n terms of South African law, a probationary period can be extended. It is therefore not an unfair labor practice in South Africa to extend the period of probation. South African labor law thus envisages three possible outcomes at the end of the probationary period. The first possible outcome is that of confirmation of the employee as an employee on a permanent contract, the second possible outcome is that of dismissing the employee and lastly, the contract can be extended. The only valid reason in terms of South African law for the extension of a probationary period is to provide the employee with an opportunity to improve himself or herself.

1,337 Views

Medecins Sans Frontiers (MSF) Belgium v Vengai Nhopi & 11 Others SC 11/19

“The arbitrator and consequently the court a quo erred in finding that an employee can reasonably form a legitimate expectation for re-employment by the mere fact of being invited for an interview by a former employer. In addition, the contracts that the respondents in casu had with the appellant clearly stated each was for a fixed term. By reason of the burden that the law places on them, the respondents had to place more evidence before the court to show that in light of all the circumstances pertaining to their matter, they reasonably expected to be re-engaged in the appellant’s employ which they failed to do”.

This matter deals with the doctrine of legitimate expectation. This doctrine arises when one has an expectation of being reemployed after the termination of a fixed-term contract. With most companies’ having their employees on fixed-term contracts practitioners should be well versed with this doctrine. Medecins Sans Frontiers Belgium v Vengai Nhopi & 11 Others deals with the legal question whether this doctrine can arise when an employee’s contract is not renewed, and the employer calls him or her for an interview and subsequently the employee is not offered the job. I will point out the problems I have with the reasoning that the court reached as well as the loopholes in this case.

Introduction

Facts

The respondent’s contracts were not renewed upon effluxion of the time stipulated in the contracts. The employer had initially indicated that it was facing funding challenges and hence the renewals were not practical. After the contracts had expired the employer managed to get funding for some of its projects in Mbare, Chikomba as well as Gutu. The respondents were called for an interview. Most of these respondents did not get the jobs applied for. They applied to a Labour Officer and Labour Court challenging their separations. Both forums confirmed the unlawfulness of their dismissals and held that the employer had created a legitimate expectation of contract renewal. The question before the supreme court was therefore whether a legitimate expectation of contract renewal had been created by the act of calling these ex-employees for a job interview.

Court Findings and the Law

The employer argued that it could not renew the contracts as it wanted to employ people from the communities it was operating from. This disqualified most of the respondents. This position was rejected by the Labour Officer as well as the Labour Court which forums insisted that a legitimate expectation of contract renewal had been created.

The court accepted the employer’s position that there was no basis upon which the ex-employees should have developed a legitimate expectation of contract renewal simply because of an interview. These interviews, it was argued, was meant to assess the ex-employees suitability for the new positions. The ex-employees were not suitable as they did not reside in the communities that the employer wanted to operate from. In my view, the court accepted this as a valid reason for not renewing the contracts.

Reference was made to the employee’s contracts which explicitly provided that the employees should not have a legitimate expectation of extension of the contracts. The letter used to communicate the non-renewal of the contract also pointed to the fact that they should not develop a legitimate expectation of contract renewal. The court referred to the case between Magodora v Care International 2014 (1) ZLR 397 (S) which is the authority to the legal position that legitimate expectation of contract renewal will not arise where a contract explicitly forbids such. The court also stated that:

“Reference is also made to the case of Swissport (Pty) Ltd v Smith NO (2003) 24 ILJ 618 (LC) where the point is made that it is a fundamental principle of the law of contract that, once parties have decided to reduce a contract to writing, the document that they produce will be accepted as the sole evidence of the terms of the contract.”

It was because of the above that the court did not find any reason why the employees ought to have argued that they had developed a legitimate expectation of contract renewal.

Final Judgement

The court allowed the appeal. This meant that the employees were not unfairly dismissed.

Own Comment

I think the court missed the point. In my opinion, the question which ought to have been answered is whether an employer who lets fixed-term contracts to expire and then hires a new set of employees on the same terms as the ones terminated commits an unfair labor practice. The employer decided to hire new employees in place of those whose contracts had expired. This, in my view, was unfair. I will illustrate the point.

Section 12B (3) reads:

“An employee is deemed to have been unfairly dismissed—

(a) ….

(b) if, on termination of an employment contract of fixed duration, the employee—

(i) had a legitimate expectation of being reengaged; and

(ii) another person was engaged instead of the employee.”

The interview in question should have been viewed considering the background of this case. The employer did not renew because he had no funding. That was his initial reason. When funding became available the employees should have been re-engaged. The conduct of the employer leaves a lot to be desired. It is argued that the intention from the start was to get rid of these employees. The reasons put forward might have just been a façade to hide the real reason.

The employer went on to employ other people. The reason set forth by the employer is unreasonable in that these employees did not say they could not work in the locations the employer was operating in. They should have been afforded an opportunity to get the jobs considering that they were once employed by the appellant.

It is because of this that I think the court should have afforded these employees protection.

1,429 Views

Emmanuel Masvikeni v National Blood Service Zimbabwe SC 28/19

“In our view, the appellant, by deliberately absenting himself without leave from the hearing, waived his right to challenge the conduct of the disciplinary proceedings. He had the option, which he did not exercise, of seeking a postponement since he knew that he would not be available on the date of the hearing. In these circumstances, we do not feel that the failure by the respondent to strictly comply with the Regulations operated to vitiate the disciplinary proceedings.”

Moyo v Rural Electrification Agency SC-4-1

Introduction

Disciplinary hearings will always recur in the life of a Labour Relations Practitioner or a Labour Lawyer. Not only do they recur, but they also come in all shapes and sizes. Emmanuel Masvikeni v National Blood Service Zimbabwe is important in illustrating the effects of not attending a disciplinary hearing as well as the standard of proof required in such inquiries. I will proffer the argument that employees in the position of the appellant ought to be protected. To illustrate this kind of protection I will expound on the South African position in similar matters.

Facts

The appellant was employed as a Blood Procurement Manager. He was accused of circulating emails that contained divisive and damning allegations against certain members of staff. He was duly notified of the disciplinary hearing but chose to abscond for no apparent reasonable cause. The hearing subsequently found him guilty and prescribed his dismissal as the appropriate penalty. All his appeal efforts internally and the Labour Court failed as all the forums concluded that he had been dismissed lawfully.

The law and findings

For starters, the court emphasized the legal position found inMoyo v Rural Electrification Agency in terms of which once an employee fails to attend a hearing, he or she cannot challenge the composition of the disciplinary committee that decided on the hearing. It argued that he should have attended the hearing and thereafter challenge the composition of the disciplinary authority.

The employee denied having authored the emails. The court had to decide whether from the record it can be shown that the employee was the author of the emails or not. It noted sections of the record in which the appellant had admitted to authoring these emails. This finding confirmed what the Labour Court had also found. The supreme court thus held that:

“In light of this exchange, on a balance of probabilities, the appellant admitted, through his legal practitioner, that he is the one who published the emails in issue. He seems to prevaricate and avoid giving simple or straight forward answers.” (Page 10)

This case thus illustrates the standard of proof in disciplinary hearings. The court is bound to look at the most likely version between what is presented by the appellant and that which is put forward by the respondent in reply. This accords with the position found in Lewendo Ent. (Pvt) Ltd v Freight Africa Logistics (HC 2416/14) in which the court reasoned that:

“The standard of proof in civil proceedings is proof on a balance of probabilities. What this brings to mind is a mental picture of the scales of justice, the embodiment of the underlying principle that underpins the justice system. It entails a balancing of the plaintiff’s claim against the defendant’s defence.  It necessitates a decision of which of their versions of events is more likely to be true. In other words which version is more believable, or most likely to have transpired, than the other? It is my view that the preponderance of probabilities is an exercise which involves an evaluation and an assessment of the likelihood of the plaintiff’s version being the correct one as opposed to the defendant’s, or vice versa. In making this determination we look at the pleadings, at the documentary evidence, at what the parties’ representatives said and did when they were in the witness stand, and finally at what the law says in light of the evidence that we will have accepted. Then we determine what ought to be done in order to do justice between the parties.”

Determination

The court concluded that the appellant had been correctly dismissed and it set aside the appeal.

Own Comment

I will endeavour to point out that the labour laws in Zimbabwe should evolve and protect employees in the position of the appellant. The basis of my assertion is the fact that the employee was charged for “accusing his superior of nepotism in the anonymous letters he published”. In my view, the appellant was whistleblowing and bringing to the attention of management what he considered unprofessional behaviour. It is unfortunate that we do not have laws that protect such employees as the appellant. This was going to be a different case had this happened in South Africa.

South African perspective

In South Africa, the Protected Disclosures Act (No 26 of 2000) protects employees who disclose information about unlawful or corrupt conduct by their employers or fellow employees. This means such employees cannot be dismissed when they disclose such matters. In a matter between the City of Tshwane Metropolitan Municipality V Engineering Council of South Africa And Another, an employee had been advising the employer about the dangers of appointing unskilled and inexperienced people in dangerous work. After not getting cooperation from the employer he decided to send an email to the employer advising him of the conduct. He then copied the Engineering Council and the Department of Labour. The employer decided to engage in disciplinary action against, but the authorities decided that this was a protected disclosure and that the employee could not be subjected to disciplinary action.

The South African position is thus commendable. The law protects employees if they disclose information that exposes management. This also, arguably, fosters democracy in the workplace.

It is submitted that unless and until our laws are evolved to afford such protection, employees will continue to be subject to conduct that at times may be tantamount to victimization.

1,459 Views

Verukai Emilton N/O v TM Supermarket (Pvt) Ltd and Itai Nkomo and Thembinkosi Nyathi LC/MT/37/18

“I  feel compelled  to  respectfully state  that  Act  5 of 2015 was a knee jerk reaction to the aftermath of  the  Zuva judgment and so not much thought was put into the  drafting of  the amendment resulting in poor  draftsmanship which  has  caused  interpretation nightmares  to litigants, Labour  Court judges  and legal practitioners alike.”

Introduction

I find the principles of law discussed in this case interesting. This matter pertained to an application for confirmation of a draft ruling in terms of section 93 of the Labour Act as amended in 2015.  The case explores various claims put forward by two ex-employees. Issues to do with overtime, shares emanating from an ownership scheme and compensation for loss of employment were subject of contention in this case. The reasons put forward by the court in coming up with the final judgment are exciting and will be summarised in this instance.

Background

The brief facts of the matter are that the employees were dismissed in December 2016 after breaching company rules. They then decided to put forward various claims before the Ministry of Labour, Labour Officer. As mentioned above, these claims entailed overtime payment, a claim for shares as well as compensation for loss of employment in terms of the amended provisions of the Labour Act. The Labour Officer to whom the dispute was referred decided in favour of the former employees. It was this draft ruling that the labour officer sought to have confirmed by the Labour Court.

Reasons for the judgment

For ease of reference, I will breakdown the reasons for the judgment under small headings inline with the matters before the court.

Overtime claim

The court did not support the claim for overtime. For starters, it found that the employees did not produce evidence for the claim. It reinforced the rule that the one who claims should provide the proof of the claim. The court further made a finding that the biometric system that the employer used was reliable and that its results had always been used to pay the employees overtime or to give them time off in lieu of overtime. The fact that the employees failed to adduce evidence supporting their overtime, therefore, meant that there was no supportable claim. The court also supported the company’s argument that the overtime ought to have been authorized before being existent. Failure to provide such proof proved disastrous for the employees.

In addition to the above, the court made a finding that the Labour Officer failed to show the basis for the computations he had inserted in the draft ruling. The Labour Officer went on to admit that he had erred in as far as the computations were concerned. It was for these reasons that the court could not support the claim put forward and had no option other than not to confirm this part of the draft ruling.

Shares

The employees were contributing to a share ownership scheme in line with the country’s indigenization policy. The money for this scheme was deducted from the employee’s salaries and remitted to this scheme. The employee’s contention was in connection with a payout that had been made. They argued that because the employer was the one deducting these monies the employer ought to compensate them.

The court did not support the employee’s argument. It noted that the administration of the scheme was in the hands of trustees. These are the persons the employees ought to have confronted if they had an issue with the payout which had been made. It pointed out that the employer would only come into the picture if the deducted amounts had not been remitted to the scheme.

The court failed to support this claim.

Compensation for loss of employment

The employee sought to claim compensation in terms of section 12(4a) which came as a result of the 2015 amendment. The court had a problem with the argument that the employees having been dismissed were entitled to compensation for loss of employment. It realized that that section 12 (4a) applied to instances were an employee lost his employment as a result of termination through giving notice. It argued that the employees in casu had been dismissed. Such a dismissal was in terms of section 12B and as a result, section 12 (4a) could not apply.

The court decisively reasoned as follows:

“A dismissal letter is just that, it can never be equated to notice given where termination is on notice. To suggest so would be tantamount to saying once disciplinary proceedings have ended and the employee is found guilty and the penalty of dismissal is meted out,  the employer then serves the employee with a notice, informing them of the decision but giving them notice that such dismissal will take place on some future date”.

As a result of the above findings, the court concluded that the employees were not entitled to the compensation for loss of employment. It thus also failed to confirm this part of the draft ruling.

Court Decision

The court failed to confirm the whole draft ruling.

Own comment

The courts reasoning is this case is much-admired. The issue of compensation for loss of employment was well reasoned. There is no reason why an employee who has been dismissed should be compensated. Such an employee would have breached company rules for starters. Why then should someone be compensated for going against company rules?

Further, the judgment is also commended for upholding the need for employers to approve and authorize overtime before its worked and paid. This avoids a situation where an employee deliberately prolongs work at the expense of the employer. It also did not support instances were labor officers insert figures in their awards without any legal basis.

1,170 Views

IMATU & Others v Rustenburg Transitional Council (2000) 21 ILJ 377 (LC)

“The senior employee who becomes a union leader must, in consequence, tread carefully, especially in his handling of confidential information. It is not enough simply to keep the information secret; he must recuse himself from every discussion within the union to which such information might be relevant either directly or indirectly lest he conveys, merely by his conduct or simply by silence, facts which the employer would prefer the union not to know. “

Introduction

In February 2019 the Zimbabwe media was inundated with a landmark ruling which granted senior managers the right to trade union membership. The matter was decided by the Supreme Court of Zimbabwe and in no doubt changed the concept of trade union membership which many regarded as a right for “junior” employees.

In this article, I will not be discussing the Zimbabwean case. I will discuss the matter between IMATU & Others v Rustenburg Transitional Council which was decided in the South African labour court in 1999. Yes, as far back as 1999 South Africa had such a landmark ruling. I believe that this case is important in broadening our understanding of the right to trade union membership as it applies to senior employees as well as the convolutions that come with such a relationship.

Summary of facts

The employer, in this case, passed a resolution which had the effect of prohibiting the participation of its senior managers in trade union activities as well as serving in executive positions in such unions. The employer contended that its senior managers could not lawfully partake in Trade Union activities as this would be contrary to their duty of fidelity towards the organisation they serve.

Reasons for the Judgement

The court acknowledged that the relationship between a trade union and an employer can be adversarial in nature. Conflict is inevitable. A Union is an organisation meant to further the interests of employees is bound to extract what it can from the employer either through negotiations or were possible using strike action.

An employee can commit a breach of fiduciary duty if he or she works against the interests of the employer. This may happen if the employee in question discloses private and confidential information pertaining to the employer.

The court noted that at common law an employee could be dismissed if he or she joined a union and participated in its lawful activities. Such participation would be deemed to be a breach of fidelity towards the employer. Whilst the common law could justify the dismissal of the employee for breach of fiduciary duty simply by participating in a trade union activity the constitution had amended this position. In terms of the Bill of Rights, the right to join a trade union is unfettered. Neither the drafters of the constitution nor the drafters of the Labour Relations Act intended to limit the right of Senior Employees in joining a trade and in participating in its lawful activities.

Noting that the senior employees can participate in the lawful activities of a trade union the court proceeded to warn such managers. Disclosure of private and confidential information to a Trade Union will constitute a dismissible offence. The court then decisively remarked as follows:

“The senior employee who becomes a union leader must, in consequence, tread carefully, especially in his handling of confidential information. It is not enough simply to keep the information secret; he must recuse himself from every discussion within the union to which such information might be relevant either directly or indirectly lest he convey, merely by his conduct or simply by silence, facts which the employer would prefer the union not to know. He can, I believe, participate in discussions on strategy to which information given to him in confidence is irrelevant, since this is implicit in his right to participate in trade union activities, but he must guard himself even from exercising a judgment on the basis of such information. The delicacy of discretion that this entails makes his position an unenviable one, but the Act gives him the right to enter this minefield if he wishes.”

Court Decision

The court set aside the resolution by the council thus allowing its senior employees to join a trade union of their choice and to participate in its lawful activities.

Own Comment

Senior managers contemplating joining a trade union should take heed of the need to tread with caution as warned by the court. The court did not mince its words. It’s a “minefield”. Balancing the relationship as a trade union official and as a senior manager is complex as noted above. It is thus advisable that senior managers recuse themselves from trade union membership.

2,434 Views

Mike Chiruma v Delta Bevarages LC/MT/74/18

“I do not  intend  to consider whether  the principles applicable in  quantification of  damages in lieu  of  reinstatement can be imported  to  the  compensation  for loss  of employment  provided  for  in  S12 C (2)  of  the  Act,  a point  which  deserves  serious  thought  but  better  left  for appropriate  argument  should it be  raised  in  future  litigation…”

Introduction

This case involved an application for quantification of damages in lieu of reinstatement. I liked the way the court defined back-pay and how it then used the back-pay period as a yardstick for computing all the damages/claims that were applicable. The legal conclusion reached in determining whether an employee is entitled to cash-in-lieu of notice in the process of quantification damages in lieu of reinstatement is also thought-provoking.

I lament that the court decided not to pronounce on an important question as to whether the principles behind the quantification of damages in lieu of reinstatement can be imported to the compensation for loss of employment provided for in S12 C (2) of Act 5 of 2015. This question has been subjected to controversy and commentators do not entirely agree on this matter. The court had an opportunity to bring clarity to this matter and unfortunately, this was left for another day.

Facts

What is important to note is that an employee was dismissed from Delta Beverages’ employ whereupon an appeal was lodged to the Labour Court. Internal appeals had been unsuccessful. At the Labour Court, the appeal was successful following a default judgement. Reinstatement failed and with the consent of all the parties, an order for payment of damages was granted leading to the current application.

Reasons for Judgment

Back-pay

The court agreed with the respondent’s argument that back pay should be calculated from the date of unfair dismissal and up to the day of order of reinstatement. This means that the backpay cannot be calculated beyond the period of reinstatement. The effect of this period is that all other claims/damages will be calculated using this period of back pay. Cash in lieu of leave, production bonus among others, were computed with this period of back pay in mind.

 When determining what the employee was entitled in terms of all the claims the court did not go beyond the period of back pay. It is submitted therefore that the back-pay period is instructive in terms of the quantum of the damages. The period of back-pay can only be altered after taking into consideration the efforts made by the employee in finding alternative employment to mitigate the loss emanating from the wrongful dismissal.

Cash in lieu of leave

The period of cash in lieu of leave will be determined by the period of back pay. The court noted that the entitlement to cash in lieu of leave emanated from the fact that if it was not for the unfair dismissal the employee would have accrued paid vacation leave.

Cash in lieu of notice

The court argued that the employee was not entitled to any cash in lieu of notice because his employment never revived. It found this claim to be contradictory in the sense that the current application was for quantification for damages because reinstatement had failed. That if he had been reinstated then the application for quantification of damages would have been unnecessary. Having not been reinstated the employee, the court argued, was not entitled to cash in lieu of notice.

Production Bonus

It was agreed that but for the unfair termination, the employee would have been entitled to a production bonus. The court argued that the production bonus to be awarded to the employee should fall within the period of back pay, above.

Compensation for loss of employment

The employee had his employment terminated on the 30th of April 2015 and thus the court did not see merit in the argument that the compensation in terms of act 5 of 2015 would apply to the employee.  It would seem like the court was prepared to accept the argument by the respondent that this compensation would amount to two separate awards, the damages in lieu of reinstatement as well as compensation for loss of employment. The court did not consider it necessary to determine whether compensation for loss of employment can be applied to the principles for quantification of damages in lieu of reinstatement.

Mitigation of loss

The court explored the various efforts made by the employee to secure alternative employment in order to mitigate the losses deriving from the wrongful termination. Such efforts are always taken into consideration to determine whether the period of back pay should be shortened or increased. Issues like the employee’s age, health, qualifications are all important in determining the efforts made by the employee in finding alternative employment.

Medical Aid

The employee wanted to claim the money that would have been payable to his medical aid company. The court did not agree that the employee was entitled to medical aid payments. The courted was quick to mention that the employee would have been entitled to a refund of medical expenses that he had incurred during the period of unfair termination.

Punitive Damages

The court argued that these can be claimed separately and despite the award of other claims. These would not amount to “double damages” a situation where an employee is compensated twice for the same act of unfair termination. From the court’s remarks, these damages are awarded when the employer deliberately and with no reasonable cause made reinstatement impossible.

Non-monetary Benefits

The notable principle here is that an employee is entitled to all the benefits he would have been entitled to, but for the unfair termination.  The court found that the employee was entitled to soap and beverages that he would be entitled to in the course of his employment. The monetary value of such benefits was calculated mindful of the period of back-pay as mentioned above.

Own comment

As mentioned above, I believe an opportunity was lost when the court decided not to determine whether the principles applicable in the quantification of damages in lieu of reinstatement can be imported to the compensation for loss of employment provided for in  S12 C (2) of the Act. When Act 5 of 2015 was promulgated and compensation for loss of employment there was a lot of debate on this subject with some arguing that damages in lieu of reinstatement had been replaced by this compensation. The court should have therefore provided some direction as to how the two are related if they are.

1,749 Views

THE CONSTITUTIONALITY OF MATERNITY LEAVE PROVISIONS IN THE LABOUR ACT

Introduction

A lot has been written about the constitutionality of maternity leave provisions in the Labour Act (Chapter 28.01). Most authors seem to think that the position in the Labour Act should be ignored and that the Constitution should be followed as it takes precedence over all law of the land. Those who propose that the constitution should prevail argue that all law that is inconsistent with the constitution should be construed as null and void.

In this article, I will proffer an alternative perspective and conclude that the position found in the Labour Act is the correct legal position. I will argue that in the absence of a law amending that piece of legislation or a constitutional court ruling invalidating the provisions in the Act, employers should continue to be bound by the provisions in the Act. It must be pointed out that my argument in this article does not mean that companies are precluded from implementing better conditions compared to those found in the Labour Act.

Labour Act provisions

The Labour Act (Chap 28.01) provides for maternity leave under section 18. The important part of this section for purposes of this discussion is section 18(1) which reads as follows:

“Unless more favourable conditions have otherwise been provided for in any employment contract or in any enactment, maternity leave shall be granted in terms of this section for a period of ninety-eight days on full pay to a female employee who has served for at least one year.”

The section mentioned above is obligatory in granting maternity leave to an employee. The employer and the employee can provide better conditions in their employment contract or any enactment. Once better conditions have been agreed, these become decisive in determining how maternity leave will accrue to a female employee. The conditions in the Labour Act can thus be ignored once there are better conditions agreed between parties in an employment relationship.

The critical aspect of this provision is that maternity leave should be afforded an employee once the same has served for a period of one year with the same employer. Amongst other conditions placed in section 18, some commentators have argued that this section is against the constitution because the constitution, being the supreme law of the land, does not have such “onerous” conditions. It is this line of argument that I don’t agree with. I will now proceed to assess the constitutional provision that is relied on by most commentators.

The Constitution of Zimbabwe Provision

The Constitution of Zimbabwe[i] provides for maternity leave under section 65 (7). The section reads:

“Women employees have a right to fully paid maternity leave for a period of at least three months.”

Commentators have argued that this provision alone should override any other provision in any act or enactment. This section, it is argued, does not bring with it any other conditions contingent on granting maternity leave to female employees. The result, the debate rages on, is that conditions in the Labour Act are null and void.

It is important to note that, commentators mentioned above, rely on section 2 of the constitution. This section provides that the Constitution of the Republic is the supreme law of the land. All law that is inconsistent with the Constitution is “invalid to the extent of the inconsistency.” Section 2 further places an obligation on the part of everyone to uphold the constitution.

It should be pointed out that the argument, at face value, cannot be disputed. The purpose of this article is to bring, as mentioned at the beginning is to bring out an alternative perspective. This perspective entails showing that the Labour Act provisions should be construed as they are until they have been amended.

The need to consider the constitution as whole

It is argued that for one to fully grasp the meaning of constitutional provisions the constitution must be construed as a whole document[ii]. In construing the whole constitution, one needs to take note of section 86 (2) which reads as follows:

“The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness justice, human dignity, equality and freedom, taking into account all relevant factors including…”

The importance of this section is that it provides for the restriction of all fundamental rights in the constitution, including the rights that accrue to female employees in maternity leave situations. What is important is for the limitation to be in terms of a law of general application. What then is ‘law of general application’? In Du Plessis v De Klerk[iii] the court noted that the law of general application includes legislation, common law, and indigenous law. In addition, it should be noted that for a law to be of general application it must apply equally to everyone and must not be arbitrary in its application[iv].

It is argued that the Labour Act is the law of general application on maternity leave and all other labour issues. What this means is that the right in the Constitution can be limited in terms of the provisions in the Labour Act. There is nothing wrong with the legislature coming up with a piece of legislation that gives detail to the provisions in the constitution. The labour Act is there to provide much guidance on how the maternity leave should accrue to a female employee. It follows therefore that until the Labour Act is amended or until the relevant provisions have been declared unconstitutional by a competent court, the provisions remain unchanged.

The unconstitutionality of the labour act provision

As mentioned, the above debate does not preclude anyone from challenging the constitutionality of maternity leave provisions. One might argue that the provisions are not “fair, reasonable, necessary and justifiable in a democratic society based on openness justice, human dignity, equality, and freedom”. The same provisions can be attacked for being discriminatory and this a violation of the constitution.

Conclusion

Given what has been outlined above, it will be emphasised that until the position in the labour act pertaining to maternity leave is amended by an act of parliament, employers need to continue following the law as it is. This argument does not preclude employers who wish to come up with better conditions for maternity leave to implement the same. It should be noted that anyone contemplating to challenge the constitutionality of the maternity leave provisions might succeed based on various constitutional grounds mentioned above.

Sources

[i] The Constitution of Zimbabwe Amendment (No. 20) Act, 2013

[ii] S v Makwanyane 1995 (3) SA 391 (CC) on paragraph 115

[iii] Du Plessis v De Klerk 1996 (3) SA 850 (CC)

[iv] Islamic Unity Convention v Independent Broadcasting Authority 2002 4 SA 294 (CC).

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MATERNITY LEAVE AND FIXED TERM CONTRACTS

Introduction

Recently, a colleague of mine brought a legal question involving maternity leave and renewal of fixed-term contracts. The facts surrounding this question can be summarised as follows:

An employee has been signing fixed-term contracts from 2017. She has applied for maternity leave and the company is now of the position that it won’t renew the contract because it doesn’t want to pay maternity leave. The employee has been told that she can always come back after giving birth to her child. The company intends on hiring someone to replace such an employee during the period of maternity leave.

I will argue that employees on fixed-term contracts are entitled to maternity leave, in the same manner, the right is conferred to employees on permanent contracts. I will also argue that this case points to systematic discrimination based on pregnancy and that the employer in this instance is under an obligation to renew the fixed term contract to ensure that the employees right to maternity leave is upheld. In the last section, I will explore the legal remedies that can be available to an employee who is seized by such a daunting situation.

Discrimination

Unfairly discriminating against employees based on gender and pregnancy is prohibited by the Labour Act (Chapter 28.01). Discrimination has been defined as the treatment of employees favourably or unfavourably based on various grounds. When the grounds for discriminating against an employee are based on inherent job requirements there is no unfair discrimination. Problems arise when the grounds for discrimination are explicitly prohibited by an act such as the Labour Act.

The Labour Act outlaws the discrimination of employees based on gender and pregnancy. Section 5 (1) of the Labour Act[i] reads as follows:

“No employer shall discriminate against any employee or prospective employee on grounds of race, tribe, place of origin, political opinion, colour, creed, gender, pregnancy, HIV/AIDS status…”

It is submitted that the moment an employee’s contract is not renewed simply because she has fell pregnant a case of unfair discrimination on one of the prohibited grounds would have occurred. The pregnant employee is going to be treated less favourably compared to those employees who are not pregnant. This unfair treatment is what section 5(1) was created to cure. It is argued that based on the facts presented above, the employer indeed discriminated against the female employee.  It follows that this action alone will be accompanied by various legal consequences. Such consequences will be discussed under the section on remedies.

Maternity Leave Provisions

The Labour Act provisions on maternity leave are important in resolving the case at hand. The most important part of these provisions is Section 18(1) of the Labour Act which reads as follows:

“Unless more favourable conditions have otherwise been provided for in any employment contract or in any enactment, maternity leave shall be granted in terms of this section for a period of ninety-eight days on full pay to a female employee who has served for at least one year.”

Section 18(1) is clear cut. It provides that an employee who has served the employer for a period of one year is entitled to 98 days of maternity leave. The employee mentioned in this section, it is submitted, is one on either a fixed-term contract or one on a permanent contract. What is decisive is whether the employee has served the employer for a period of at least a year in order to qualify for maternity leave.

From the facts in casu, the employee has been on a fixed-term contract from 2017 to 2019. More than a year has elapsed which means that the employee qualifies for paid maternity leave. This picture would have been totally different if the employee’s continuous service was less than one year.

It is important to note that in terms of the said section, employers can provide for better terms in a contract of employment or another enactment. Such better conditions should not relegate the position in the act. This means that employers can provide for conditions such as lowering the qualifying service for maternity leave or coming up with long periods of maternity leave.

It is thus vehemently argued that Section 5 (1) (Anti-Discrimination Provision) when read together with Section 18 (1) (Maternity Leave Provision) allow for employees on fixed-term contracts to be afforded paid maternity leave without any derogation. What this means is that that a fixed-term contract should be extended in order for an employee to be afforded an opportunity to enjoy paid maternity leave as found in the labour act. Failure to extend such a contract and terminating in the grounds of pregnancy will come with serious legal ramifications.

Non-Renewal of a Fixed Term Contract

The non-renewal of a fixed term contract can have serious repercussions on the employer if it does not take into consideration section (12)(3)(b) of the Labour Act.

The section reads as follows:

“An employee is deemed to have been unfairly dismissed—

(a) ….

(b) if, on termination of an employment contract

of fixed duration, the employee—

(i) had a legitimate expectation of being re-engaged;

and

(ii) another person was engaged instead of the employee”.

From the facts provided at the start of the article, it has been pointed out that the employer in question intends to hire labour to replace those employees whose contracts are not renewed. Further, the employer seems to be suggesting that but for the pregnancy, the contracts could have been extended. This shows that the employees had the legitimate expectation of having their contracts renewed. In the circumstance, it is risky for the employer to decide to terminate the contract citing the pregnancy and proceed to hire another employee.

Labour Amendment Act, 2015

The Act which came into force in 2015 came with provisions that were meant to cure the anomaly that arises when a fixed-term employee is denied an opportunity to enjoy benefits that accrue to employees on permanent contracts despite the continuous renewal of the contract.

The important provision is section 12 (3a) which provides as follows:

“A contract of employment that specifies its duration or date of termination, including a contract for casual work or seasonal work or for the performance of some specific service, shall, despite such specification, be deemed to be a contract of employment without limitation of time upon the expiry of such period of continuous service as is-

(a) fixed by the appropriate employment council; or

(b) prescribed by the Minister if there is no employment council for the undertaking concerned, or where the employment council fixes no such period;

and thereupon the employee concerned shall be afforded the same benefits as are in this Act or any collective bargaining agreement provided for those employees who engaged without limit of time.”

The Labour Amendment Act provisions point to the need for Labour Practitioners, HR Practitioners and lawyers alike to be aware of the legal provisions in specific industries. At the time of writing this article, the minister has not fixed the period of continuous renewal of fixed-term contracts in compliance with this provision. Various industries have however prescribed the number of permissible renewals.

Be that as it may, it is submitted that nothing in the labour act or any provisions preclude the benefit of maternity leave to be afforded to employees on fixed-term contracts. As already mentioned, non-renewal of contracts of fixed-term duration based on pregnancy may result in unfair discrimination allegations as well as the evocation of the doctrine of legitimate expectation all which result in serious legal problems for the company.

Available Legal Remedies

From the legal provisions discussed above, it is argued that the employee has a wide range of remedies available to her. These range from criminal remedies, civil or labour law-related remedies and constitutional remedies. Some of these remedies discussed in this section.

Once is accepted that by failing to renew the employee’s contract based on her application for maternity leave is tantamount to discrimination, then remedies to cure this discrimination can be evoked. One of these remedies is provided for under section 5 (3) which reads:

“Any person who contravenes subsection (1) or (2) shall be guilty of an offence and liable to a fine not exceeding level eight or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment”.

It is submitted that Section 5(3) points to the fact that violating discrimination provisions may warrant criminal prosecution.  Such a prosecution might result in the payment of a fine or the imprisonment of the employer.  This is not the only remedy under the section. Other remedies are also provided for.

The section provides for other remedies as follows under subsections 4 and 5:

“(4) Without prejudice to any other remedy that may be available to him in any competent court, any person who is aggrieved by any act or omission of an employer in contravention of subsection(1) shall be entitled to claim or apply under Part XII, as the case may be, for either or both of the following remedies—

(a) damages from the employer for any loss caused directly or indirectly as a result of the contravention;

(b) an order directing the employer to redress the contravention, including an order to employ any person, notwithstanding that the vacancy in question has already been filled and notwithstanding that the employer may be liable to any claim arising from the need to dismiss or terminate the services of any other employee who has been engaged.”

“(5) Without prejudice to any other remedy that may be available to him in any competent court, any person who is aggrieved by any act or omission of any person in contravention of subsection (2) shall be entitled to claim or apply under Part XII, as the case may be, for either or both of the
following remedies—

(a) damages from such person for any loss caused either directly or indirectly as a result of the contravention;

(b) an order directing such person to redress the contravention.”

it is clear that discriminating against an employee can have far-reaching consequences. Besides the criminal sanction prescribed under the section under consideration, an employee can be entitled to damages. The same employee is also entitled to a court order directing that she be retained by the employer.  What is important to note is that section 5 does not preclude the employee from pursuing other remedies provided for in the Labour Act or the Constitution.

Conclusion

From the foregoing discussion, it is submitted that employees on fixed-term contracts and those on permanent contracts should be afforded the same maternity leave conditions. Section 18 of the Labour Act does not distinguish between maternity leave given to a fixed-term employee and that which is afforded an employee on a permanent contract. Once the period of qualifying service has been achieved, the employee is entitled to the right conferred by the act.  In certain circumstances, it is argued, it might be necessary to extend a fixed-term contract in order to afford the employee an opportunity to enjoy this maternity leave. Failure to renew such a contract, will depending on the conditions, amount to discrimination and might result in complaints of unfair dismissal.

SOURCES

[i] Labour Act (Chapter 28.01)

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REFRAINING FROM ATTENDING A DISCIPLINARY HEARING

One of the biggest mistakes an employee can ever make when accused of having breached company rules is to abscond a disciplinary hearing. Practitioners dealing with disciplinary issues can also fall into the trap of not properly handling situations that arise when an accused employee refrains from attending a disciplinary hearing. Employers and employees, alike, should be well versed with the legal implications of failing to attend a disciplinary hearing. In this article, the serious consequences that flow from this wing of our labour law will be discussed. The right to be heard which forms the foundation of every disciplinary process will be explored for in the first place.

The right to be heard

The cornerstone of every hearing, whether in criminal or civil spheres, is the right to be heard. This right is encapsulated in the maxim audi alteram partem translated to “hear the other side”. In terms of this principle, an impartial tribunal must hear a dispute and come up with an impartial determination/resolution (See the article on impartiality). This principle also entails that an employee must be arraigned before a disciplinary tribunal and be given an opportunity to state his or her case. The net effect of this principle is that when it is violated or in other words if the employee is not awarded the opportunity to be heard, the resultant proceedings may be impugned by the courts.

So important is the audi alteram partem principle that our courts in Taylor v Minister of Education & Anor[i] highlighted that:

“The maxim audi alteram partem expresses a flexible tenet of natural justice that has resounded through the ages. One is reminded that even God sought and heard Adam’s defence before banishing him from the Garden of Eden. Yet the proper limits of the principle are not precisely defined. In traditional formulation, it prescribes that when a statute empowers a public official or body to give a decision which prejudicially affects a person in his liberty or property or existing rights, he or she has a right to be heard in the ordinary course before the decision is taken.”

The view expressed by the courts in Zimbabwe is also observed by courts of other jurisdictions. In this regard in the Labour Court of South Africa and, in a matter between Kock and Another v Department of Education Culture & Sport Province of the Eastern Cape and Others[ii] the court noted that:

“For these reasons, I found that the principles of natural justice had not been observed. Failure by the Department and the respondents to apply the audi alteram partem rule has constituted a procedural impropriety vitiating the agreement in so far as it affected Mr Kock. Accordingly, the argument advanced on behalf of the respondents had to fail.”

Given the importance attached to this principle, the question that begs a response is, what then are the consequences attached to an employees absence from a hearing? This will be dealt with within the next section.

Waiver of the right to be heard

The importance of the right to been outlined above. Despite being important in legal proceedings, this right can be waived or be lost in certain circumstances. Failure to attend a hearing is one of the ways in which the right to be heard can be lost. It is important to note that this failure must be imputed on the employee for the same to lose the right.

The matter between Zesa Enterprises (Private) Limited v Aloyce Roy Stevawo[iii] clearly explains how the waiver of the right to be heard can emanate from the failure by the employee to be present at a hearing. The court in this matter decisively remarked as followed:

“The facts before the court a quo established beyond question that the respondent was given notification of the hearing date. He successfully negotiated for a date convenient to himself but defaulted on the date of hearing. His request for a further compromise by email could not absolve him from attending the hearing unless it was granted by the employer. By deliberately absenting himself from the hearing the respondent irrevocably waived his right to be heard.”

This matter shows that when an employee has a valid reason for not attending a disciplinary hearing such a reason will have to be communicated to the employer. Once communicated the employer must acknowledge the reason and excuse the employee from not attending the hearing. In practice, the disciplinary committee or official is the person who receives such communication and who then excuses the employee. The role of HR in this instance is to facilitate the communication and the documentation that will accompany such permission.

Evidentiary Burden

One who alleges that an employee has deliberately absented himself or herself from a hearing has the onus of proving the same. Evidentiary burden entails an obligation to produce the requisite evidence.

This obligation points to the need for practitioners handling disciplinary proceedings to keep adequate documentation. An important document in this regard is the “hearing notification”. This is the document that tells the employee to attend a hearing at a certain place and time and to respond to the allegation so raised. Another important document is the “hearing postponement” document. This is the document that will show that a hearing has been postponed, the reasons thereof as well as the date and place of the next hearing. These documents differ depending on the industry and institution but the principles behind them remain the same. These are the documents that will show whether an employee was aware of the hearing and whether the failure to attend the hearing can be imputed on the same employee.

To illustrate the importance of such documentation I will refer to a matter between Zesa Enterprises (Private) Limited v Aloyce Roy Stevawo. The court took notice of the contents of a hearing notification and realised that:

The notice to appear before the disciplinary committee dated 14 December 2011 advised the respondent of his rights and cautioned him that in the event of him defaulting, the hearing would proceed in his absence.

It is submitted that in the absence of the documentation referred to in this matter the employee would have managed to get away with a clear default. That said, I will hasten to mention that Zesa Enterprises (Private) Limited v Aloyce Roy Stevawo should not be used as authority for failing to recognise genuine reasons put forward by employees when they cannot attend a disciplinary hearing. This aspect will be dealt with next.

The need to trade with caution

The above sections highlighted that a right to be heard is imperative in disciplinary proceedings and that this right can be waived if the employee is at fault. In this section I will reconcile what has been discussed so far with the remarks by the court in the Aloyce Roy Stevawo case when it said:

“His request for a further compromise by email could not absolve him from attending the hearing unless it was granted by the employer.” (Emphasis Added)

Does this mean that the court/tribunal can ignore any reason put forward by the employee unless permitted by the employer? The answer is no, it is submitted.

Factors such previous conduct of the employee in question and the actual reason put forward by the employee will have to be taken into consideration in determining whether the permission to be absent from a hearing is to be granted. These are not the only reasons. What is needed is for the disciplinary authority and practitioners dealing with the discipline to approach the employee’s absence and the reasons put forward with an open mind. If the reason put forward by the employee is such that one can infer that the situation was beyond the control of the employee, then it will only be fair for the hearing not to proceed and foster the audi alterum paterm rule as discussed above.

Conclusion

The discussion in this article dealt with situations were employees decide not to attend a disciplinary hearing. The effect of this absenteeism has also been highlighted together with the need to handle such absenteeism with caution and an open mind. Whilst the employer has the right to accept or refuse the reasons put forward, for not proceeding with a hearing, it is always important to trade on the side of caution. This is especially true if the employee is facing circumstances beyond his or her control or if the employee is resolving issues to do with legal representation.

SOURCES

[i] Taylor v Minister of Education & Anor 1996 (2) ZLR 772

[ii] Kock and Another v Department of Education Culture & Sport Province of the Eastern Cape and Others (ZALC 47 (30 March 2001)

[iii] Zesa Enterprises (Private) Limited v Aloyce Roy Stevawo (Sc 29/2017)

1,609 Views

Muparaguda v Commercial Workers Union of Zimbabwe (SC 55/18)

“There having been no irregularity in the manner in which he uplifted the suspension, the upliftment of the suspension was perfectly lawful and binding. An employer who elects to pay an employee during the course of disciplinary proceedings voluntarily assumes an obligation from which he cannot unilaterally wriggle out without first re-suspending the employee without pay. Although it was within the appellant’s discretion to re-suspend the respondent without pay, it did not exercise that option until the contract was lawfully terminated on 26 April 2013. For that reason, the judgment of the court a quo upholding the arbitral award of 26 April 2013 cannot be faulted.”

Introduction

At times it becomes necessary to suspend an employee without pay in order to carry out an investigation into an allegation that the employee has breached workplace rules. This is called a precautionary suspension. There are also instances where an employee will have to be suspended as a function of a penalty imposed in a hearing. This is called punitive suspension. Muparaguda v Commercial Workers Union of Zimbabwe deals with a precautionary suspension. It answers the daunting legal question as to whether an employee is entitled to remuneration between the time of suspension and the time of his dismissal.

Facts

The facts of this case can be summarised as follows:

  1. The employee, Muparaguda, was employed on the 19th of January 2009.
  2. On 12 October 2009, he was suspended without pay following allegations of breach of the National Employment Code of Conduct, SI 15 of 2006.
  3. On 3 November the hearing official referred the matter to the General Secretary noting that he was unable to finalise the matter.
  4. The General Secretary wrote to the employee informing him that his suspension without pay had been uplifted and that he was now an employee on suspension with pay.
  5. On 30 November 2009, the General Secretary dismissed the employee pursuant to a request by the hearing official who had indicated that he could not finalise the matter.
  6. The matter was brought before a Labour Officer who made a ruling nullifying all the proceedings. He proceeded to hear the matter afresh and made a ruling that the dismissal was unfair for want of compliance with substantive and procedural fairness requirements of the National Employment Code of Conduct, SI 15 of 2006.
  7. The date of award, 26 April 2013, was deemed to be the effective date of the employee’s termination and that he be paid his salary and benefits from the date of suspension to the date of the award. The appellant was not happy with the verdict given by the labour officer and appealed to the Labour Court.
  8. The employee was also not satisfied with the verdict given by the Labour Court thus founding an appeal to the Supreme Court.
  9. At the Supreme Court, the only legal question was whether the employee was entitled to a salary from the date of suspension to the date of lawful dismissal, from 12 October 2009 to 26 April 2013.

Reasoning

The Court reasoned that there was nothing wrong with the General Secretary altering the suspension from being an employee on a suspension without pay to an employee on a suspension with pay. This was considered to be an administrative function and not a disciplinary action. This administrative function was permissible in terms of the constitution of the employer as the General Secretary had the discretion to suspend an employee with or without pay.

The court thus reasoned that when the administrative action of the General Secretary was put into effect, the status of the employee changed to that on suspension with pay. This, therefore, meant that when the arbitrator nullified the proceedings, the parties reverted to the status quo ante with the employee being one on a suspension with pay. The court thus decisively remarked as follows:

“Thus, the respondent could not have reverted to being an employee on suspension without pay because that status no longer existed.”

Verdict

The appeal was dismissed.

Own Comment

This judgment was well reasoned, and the legal principles articulated in this case are clear cut. If there are irregularities necessitating the nullification of disciplinary proceedings, the employee reverts to the status he held before the nullification of the proceedings. In the present case, the last status the employee held was that of an employee on suspension without pay. This was the status he reverted to. This was although the employee had been previously suspended without pay and benefits at one point.

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