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This summary is based on our book, “Contemporary Employment Law in Zimbabwe” which you can only access as a hard copy. A preview of the book is available for download on this website, using this LINK.
The Act now refers to two types of retrenchment packages,[1] that is a minimum retrenchment package as well as an enhanced retrenchment package,[2] which is negotiated and agreed upon between an employer and an employee. The definition of a minimum retrenchment package is missing from the Act 11 of 2023.
When the Labour Amendment Bill of 2021 was produced it marked that the minimum retrenchment package was pegged at 1 month’s salary for two years served.[3] This was similar to the provisions in Act 5 of 2015 which also provided for 1 month’s salary for every 2 years served. Strangely, the provision that provided for the definition of a minimum retrenchment package is no longer there in Act 11 of 2023. This creates a gap which results in interpretation problems for employers and employees.
A perusal of the whole section 12C shows a legislature that was making a distinction between a minimum retrenchment package and an agreed enhanced package. Section 12C (2) shows that the minimum retrenchment is payable in the absence of an agreed enhanced retrenchment package. Without ascribing a meaning to the minimum retrenchment package some of the provisions in section 12C become difficult to comprehend. For example, if an employer alleges that he or she cannot pay any part of the minimum retrenchment package it becomes mandatory for the same employer to still notify the retrenchment board and indicate that “the portion of the minimum retrenchment package that he or she can pay” is not “less than twenty-five per centum of the total package.”[4] The reference in this section to 25% of the total minimum retrenchment packages means that the legislature envisaged that the “minimum retrenchment package” would be known beforehand. In the absence of the definition of a minimum retrenchment package in the Act, there is no objective way of calculating the 25% that should be strictly paid by an employer that cannot afford the minimum retrenchment package. This is a legal problem.
The legal challenges caused by the absence of the definition of a minimum retrenchment package in the Act call for two options. The first option is for the legislature to amend the Act once more and provide a definition of a minimum retrenchment package. The second option is for the Bill to be taken into consideration in understanding the definition of the minimum retrenchment package. This will be in line with the Interpretation Act (Chapter 1:01) which provides for the use of extrinsic material in the interpretation of enactments.[5] If such an approach is taken, one would realise that extrinsic information such as “any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before or furnished to members of Parliament by a Minister before the time when the provision was enacted;” can be used to interpret the legislative provision.[6]
If the second approach is taken and if this is indeed seen to be practical, the inescapable conclusion one might reach is that a minimum retrenchment package of 1 month’s salary for every year served was contemplated by the legislature when section 12 C of the Act was promulgated under Act 11 of 2023. The definition of the minimum retrenchment package was there in Bill. It was not different from what it was under Act 5 of 2015. This is the definition that the legislature must have had in mind when it enacted the whole of section 12C of the Act. The temptation to be escaped in the circumstances is where an employer plucks figures from the air and then ascribes them to the definition of a minimum retrenchment package. The legislature must not have contemplated such a haphazard approach.
[1] Section 12C (1) of the Act as amended.
[2] Section 12C (1) of the Act as amended.
[3] The Labour Amendment Bill provided: “minimum retrenchment package” means one months’ wages for every two years served (and the proportionate amount for every part of a year served). Unless better terms are negotiated and agreed between the employer and the employee or employees concerned or their representatives, a minimum retrenchment package shall be paid by the employer as compensation for retrenchment not later than the date on which the retrenchment takes effect”.
[4] Section 12C(9) of the Act provides: “Where an employer alleges lack of capacity to pay any part of the minimum retrenchment package— (a) the employer shall within fourteen days of any employee being retrenched comply with subsection (5)(b) as if reference to minimum retrenchment package in that provision is a reference to the portion of the minimum retrenchment package that he or she is able to pay not being less than twenty-five per centum of the total package and subsections (6) and (7) shall apply to that portion accordingly”
[5] Section 15B of the Interpretation Act (Chapter 1:01).
[6] Section 15B(e) of the Interpretation Act (Chapter 1:01).
This summary is based on our book, “Contemporary Employment Law in Zimbabwe” which you can only access as a hard copy. A preview of the book is available for download on this website, using this LINK.
Section 12(4a) (b) under Act 11 of 2023
Section 12(4a) (b) of the Act provides that an employer can terminate a contract of employment in the following circumstances:
“For the breach of an express or implied term of contract, upon such breach being verified after due inquiry under an applicable employment code or in any other manner agreed in advance by the employer and employee concerned.” (Own Emphasis).
This section is subject to controversy as some practitioners are of the view that it gives the employer the right to terminate a contract on notice. The assumption by these practitioners is that the words “in any other manner agreed in advance by the employer and employee concerned” applies to the parties generally agreeing to a method of termination not provided under the whole section 12(4a). The argument goes on to suggest that the provision allows an employer and an employee to choose to terminate a contract on notice.
In our respectful view, section 12(4a) (b) must be construed as a whole. We submit that the employer and employee may agree to a different method of inquiring into the alleged breach other than a method in the code of conduct. The word “inquiry” means “a request for information or a systematic investigation often of a matter of public interest or examination into facts or principles.”[1] The wording of the provision thus suggests that upon an employee being accused of breaching workplace rules, there must be an inquiry to verify this breach. There are two ways of verifying the breach. An investigation can be done as per the specifics of a code of conduct. The parties may also agree in advance on how they will conduct this investigation or inquiry.
We submit that it is only after the investigation has been carried out and a subsequent hearing has been done that an employee can be deemed to have been fairly dismissed in terms of section 12(4a) (b) of the Labour Act. The same section cannot be used to propagate the view that the termination on notice was introduced in the Labour Act via the back door. Such an interpretation will fly in the face of section 12(4a) which has expressly excluded the termination of a contract on notice.
Besides the above, we also submit that jurists must interpret legislation to protect the legislature’s intention. There is no doubt that after the infamous Zuva Petroleum judgment, and the enactment of Act 5 of 2015, the intention has been to curtail the termination of a permanent contract on notice. By expressly proving for the strict ways a contract can be terminated the legislature intended to make it clear that termination of a permanent contract on notice must be removed from our law. If one is to peruse the parliamentary debates on this issue, the clear message that was sent out was that the common law rule of terminating a contract on notice must not be available in the Labour Act. This was the intention of the legislature, and this is how section 12(4a) of the Labour Act must be interpreted.
The interpretation that perpetuates the termination of permanent contracts on notice does not save and protect the legislative intention to preclude the termination on notice. The section must not be used to revive the ghost of 2015 which saw thousands of employees losing their jobs after the Zuva Petroleum judgement.
[1] https://www.merriam-webster.com/dictionary/inquiry <Accessed on 14 July 2023>.
Introduction
Vicarious liability is a legal concept that holds an employer or principal liable for the wrongful acts committed by its employees or agents in the course of their employment. This doctrine has been applied in various court cases in Zimbabwe and South Africa, with differing outcomes. This article provides an overview of the legal framework and court decisions on vicarious liability in these countries.
Legal Framework
In Zimbabwe, the law of vicarious liability is based on the common law, which imposes liability on an employer for the wrongful acts of its employees committed within the scope of their employment. The test for determining whether an employee’s conduct falls within the scope of employment is whether it is sufficiently connected to the employee’s duties or whether it is a “frolic of his own.”
In South Africa, the law of vicarious liability is also based on the common law. However, the Constitutional Court has held that vicarious liability can also arise from statutory duties, such as those imposed by the Employment Equity Act and the Occupational Health and Safety Act.
Court Cases
In Zimbabwe, the case of S v Chidziva established that an employer can be held liable for the sexual harassment of an employee by a fellow employee if the employer knew or ought to have known about the harassment and failed to take reasonable steps to prevent it. In this case, the employer was held liable for damages suffered by the victim.
In another case, Muzenda v Attorney-General, the Supreme Court held that an employer can be held liable for the negligent driving of its employee, even if the employee was not acting within the scope of his employment at the time of the accident. The court held that the employer had a duty to ensure that its employees were competent and qualified to operate its vehicles.
In South Africa, the case of K v Minister of Safety and Security established that a police officer who committed rape while on duty could be held liable for damages, and the Minister of Safety and Security could also be held vicariously liable for the officer’s actions. The court held that the officer’s conduct was sufficiently connected to his duties as a police officer, and that the Minister had failed to take reasonable steps to prevent the officer from committing the offence.
In another case, Ngubane v South African Broadcasting Corporation, the Constitutional Court held that an employer can be held vicariously liable for the discriminatory conduct of its employees, even if the employer did not expressly authorise or condone such conduct. The court held that the employer had a duty to take positive measures to prevent discrimination in the workplace.
Conclusion
Vicarious liability is an important legal concept that holds employers accountable for the actions of their employees. In Zimbabwe and South Africa, courts have applied this doctrine in various cases involving wrongful acts committed by employees. The outcomes of these cases have varied, depending on the specific facts and circumstances. However, they provide useful guidance on the legal framework and principles governing vicarious liability in these countries. Employers should be aware of their potential liability for the actions of their employees and take reasonable steps to prevent wrongful conduct in the workplace.
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