At the time of
writing this article, 549 474 cases of Covid 19 virus have been confirmed worldwide.
128 701 people have since recovered from this virus and 24 883 deaths have been
recorded.[i] Zimbabwe
had recorded 1 death and 5 cases.
Institutions are
embarking on a raft of measures to contain the impact of this virus on their
employees. The World Health Organisation has recommended that the best way to
control this virus is one in which a social distance of 1meter is maintained
between persons.[ii]
Mindful of the difficulties associated with maintaining such a social distance
several organisations have sent their employees on unpaid leave whilst others
have had downsized.[iii]
The purpose of this article is to outline the
procedure that organisations can engage in to legally implement unpaid leave in
their institutions.
Circumstances in which unpaid leave
can be applied.
Unpaid leave should be
implemented in situations where an organisation is attempting to avoid
retrenchment.[iv]
The Labour Act specifically provides that retrenchment as a method of
terminating a contract of employment can be implemented in response to the need
to reduce expenditure, adapting to
technological change, reorganising the undertaking or on account of the closure
of the enterprise in which the employee is employed.[v]
Covid 19 virus represents a major challenge necessitating
a need for every organisation to relook at way operations are being run to
curtail the impact of the pandemic.
Faced with the need
to reorganise, organisations have an option to utilise retrenchment options
provided under section 12C of the Act. In the alternative, section 12D is
available as a means of business rescue (special measures to avoid retrenchment).
It is important to
note that whilst the Labour Act uses the terms “special measures to avoid retrenchment”,
such measures amount to unpaid leave and the term “unpaid leave” will be used
in this article.[vi]
Communication with the concerned
employees.
Before implementing
unpaid leave, the Labour Act makes it mandatory for an establishment to
constantly communicate with its employees, any foreseeable changes that may
result in the retrenchment of the employees.[vii]
This Act does not prescribe how this communication can be rendered but one
would assume that this can be through a workers committee or works council and
if there is none the communication can be directed to the employees themselves.
Further, even though
not directly prescribed in terms of the Labour Act, my experience has shown
that such communication must be in writing.
Agreement with
the employees concerned.
For unpaid leave to
be legal in Zimbabwe, the employer needs to secure an agreement with the
employees before implementing it. In practice, a works council resolution duly
signed by the parties is more secure than any other form of agreement.
Whilst verbal agreements
are not prohibited by the Act, it should be emphasised that written agreements should
always be secured.
Once the agreement
has been reached with the employees, an employer is expected to give its
employees 7 days’ notice before implementation.
Forms of unpaid leave.
Two forms of unpaid leave are envisaged by the Labour
Act.[viii]
The first option is the short-time work. Short time work is where an employee works
less hour per day than normal. As an example, in response to Covid 19, NETONE
is going to allow its employees to start work at 9 AM and finish at 1 PM
instead of starting at 8 AM and finishing at 4.30 PM.[ix]
Secondly, a system of shifts can also be
implemented. In terms of this option, employees may work alternate days or
weeks. A good example is where an employee works the first two weeks of the
month and is off duty (unpaid leave) on the second week of the month.
It is crucial to note that these two systems can
be implemented concurrently.
It is also doubtful if any other forms of unpaid
leave, not specifically provided for, will be tolerated legally.
Effect of the agreement.
Once the employees
concerned have agreed to revert to any form of unpaid leave discussed above, such
agreement shall override any other agreement, contract or collective agreement.[x]
The employees concerned
shall be paid wages and salaries equivalent to the actual hours worked. This
thus means that when correctly implemented employee’s salaries will be cut,
thus cutting organisational expenditure.[xi]
The unpaid leave
should result in a reduction of an employee’s salary by 50%.[xii]
The implementation of
such unpaid leave shall not affect an employee’s period of service.[xiii]
Period of unpaid leave.
The system discussed above shall be implemented
for 12 months after which an organisation is expected to retrench the employees
concerned or to revert to normal duties.
Notification of the NEC or Retrenchment
Board
Notification of the
agreement to the NEC or retrenchment board is only mandatory if the worker’s committee
or employees that were part of the agreement were not part of a registered union.[xiv] Such
notification should be given 14 days after the employer has started to implement
unpaid leave.
The retrenchment board or the NEC shall have the
power to refer these measures to the Minister if these institutions form the
impression that such measures are contrary to public policy or otherwise unfair
to the employees.
In my next article, I
will outline the procedure available to an employer when an agreement can is
not secured with the employees.
REFERENCES
[i] https://google.org/crisisresponse/covid19-map
(Date of Use: 27 March 2020).
[ii]
https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public
(Date of Use: 27 March 2020).
[iii]
https://www.zimeye.net/2020/02/19/stanbic-bank-to-shut-down-beitbridge-and-chitungwiza-branches/
(Date of use: 27 March 2020).
[iv] See section 12D of the Labour Act
as amended in 2015.
[v] Section 2 of the Labour Act.
[vi] Section 12D (7) of the Labour Act.
[vii] Section 12D (1) of the Labour Act.
[viii]
Section 12D (1) of the Labour
Act.
[ix]
https://www.techzim.co.zw/2020/03/netone-cuts-working-hours-closes-certain-shops-in-response-to-corona/ (Date of use: 27 March 2020).
[x] Section 12D (3) of the Labour Act.
[xi] Section 12D (4) of the Labour Act.
[xii] Section 12D (4) of the Labour Act.
[xiii]
Section 12D (7) of the Labour
Act.
[xiv] Section 12D (8) of the Labour Act.
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