TelOne (Pvt) Ltd v Chigaazira (SC70/17)

“Applied to the circumstances of this case, it is evident that even if this court were to find that the respondent had a legitimate expectation of his contract being renewed, his claim would fall on the basis that the second requirement was not met.”

Introduction

Disputes involving the doctrine of legitimate expectation of contract renewal are prevalent in our jurisdiction. The question that arose in TelOne (Pvt) Ltd v Chigaazira SC 70 – 17 is whether the mere placement of an advertisement after an employee’s contract has expired results in unfair dismissal in terms of section 12B of the Labour Act (Chap 28.01).

Facts

The appellant company gave the respondent employee notice of both the expiry and the non-renewal of his 5-year fixed-term contract.  The appellant went on to advertise for the post of Commercial Director, a title which was previously held by the respondent. The employer did not employ anyone despite advertising the position. The Labour Court decided that there was a legitimate expectation of renewal of the contract a position the appellant did not agree with thus resulting in the supreme court dispute under discussion.

The law

The court looked at the structure of section 12 (B) which reads:

“(3) 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.” (Own Emphasis).

In the court’s assessment, the two requirements in sections 12(B)(3)(B) (i) and (ii) should be present for an employee to be deemed unfairly dismissed. It ruled:

However, s 12(b)(3)(b) of the Labour Act requires that for an employee to be deemed to have been unfairly dismissed in terms of that provision, he must not only establish that he had a legitimate expectation of being re-engaged, but also that another person was engaged in his stead.

Conclusion

The court concluded therefore that there was no unfair dismissal.

Own Comment

The supreme court’s remarks and conclusion are important. Indeed the use of the word “and” between sections 12(B)(3)(B)(i) and (ii) shows that both sub-sections must be interpreted jointly and not separately. It was going to be a different case if the legislature had used a word such as “or” which would give a claimant an option to prove legitimate expectation alone without worrying about whether someone was employed in their stead.

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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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