National Engineering Workers Union v Dube (SC 1 – 2016)

“Firstly, there are two definitions of ‘disciplinary committee’ in the definitions section of the Code. There is one that I will refer to as a “stand alone” definition, and the other that is subsumed under the definition of ‘disciplinary authority.’ This means that a disciplinary committee as so subsumed, is one of the ‘bodies’ that may constitute a disciplinary authority, just like the ‘person’ or ‘authority’ mentioned in the definition in question”.

Introduction

This dispute is remarkable. What was before the Supreme Court was a question as to whether a disciplinary hearing that dismissed an employee was constituted as a committee or an authority in terms of SI 15 of 2006.

The Facts

An employee was charged and dismissed in terms of the National Code of Conduct. Aggrieved, the employee approached a Labour Officer and an Arbitrator, which proceedings ended with a conclusion that the employee must be reinstated because the committee that heard the matter was not properly constituted. The Appellant appealed to the Labour Court and the court ordered the payment of damages to the employee. This then founded the Supreme Court proceedings. In summary, before the Supreme Court were essentially three questions:

Whether the disciplinary hearing was conducted by a Disciplinary Authority or by a Disciplinary Committee.
Whether the adjudicating authority was properly constituted, and
Whether the court a quo erred by proceeding to order that the respondent be paid damages in the absence of any evidence before, and without the parties addressing, the court on that issue.

The Law

The Labour Court and the Arbitrator had concluded that the disciplinary committee that heard the dispute was not properly constituted. The appellant argued that it was not a committee but a disciplinary authority. According to the Supreme Court, the evidence presented showed that the employer intended on setting up a disciplinary authority as opposed to a disciplinary committee. The court firmly remarked:

“Applied to the circumstances of this case, it becomes evident that the appellant consciously set out to constitute a disciplinary authority (as opposed to a disciplinary committee), and properly exercised its discretion in choosing the size of and specific people to sit on, such disciplinary authority. It is pertinent to note in this respect that no limitation is imposed by the Code as to the number of persons who should constitute a disciplinary authority. Nor is the designation of such persons stipulated. It is all left to the employer’s discretion. In the proceedings in question and in compliance with s 6(1)(4)(b) of the Code, the respondent was allowed to bring, and be represented by, her legal practitioner”.

The remarks above are important in so far as they show that an employer has discretion in terms of who constitutes a disciplinary authority. It can be a group of people or even one person. The employer in question had set up a disciplinary authority as opposed to a disciplinary committee.

Regarding the award of damages in the absence of evidence, the Supreme Court found this to be an irregularity in the following terms:

“That award, in addition to not having been requested by the respondent, is without any discernible basis. It invokes the commonly used catch phrase: “plucked from the air.” This Court has expressed itself on numerous occasions on the undesirability of the court proceeding in this manner.”

Conclusion

The matter was remitted to the Labour Court for a hearing on the merits.

Own Comment

What is likely to catch one’s eye is the way the Court distinguished between a disciplinary committee and a disciplinary authority. There is therefore no restriction as to who can form an authority, the size, and the composition. All is left at the discretion of the employer. It is therefore imperative that when an employee is charged in terms of the national code of conduct, the employer must ensure that there is clarity in terms of the type of body that is going to hear the disciplinary hearing. This clarity must be provided in the form of documents that are used to summon the employee for the hearing. If it is a committee, what follows is an obligation to ensure that the parties are equally represented. No doubt therefore that most employers would prefer using an authority as there is no restriction as to who can be part of the hearing panel.

The case is also important in showing what the Supreme Court has repeatedly held in various judgements as far as the quantification of damages is concerned. The court has strongly held that damages in lieu of reinstatement must be supported by the evidence presented by the parties. In

Heywood Investments (Private) Limited T/A GDC Hauliers v Pharaoh Zakeyo (SC 32/2013) the Supreme Court held:

“What the court is not empowered to do is to award damages in the absence of any evidence in support of such award.”

The same sentiments were also echoed in Monterey Estate (Private) Limited v Kenny Broxham (SC 49 – 16) and in Erickson Mvududu v Agricultural and Rural Development Authority (SC58/2015). It is therefore fatally irregular for a court to consider quantification of damages in lieu of reinstatement without accepting any evidence from the parties.

809 Views

ZIMPLATS v Ronald Godide (SC 2 – 2016)

“I agree with the submissions by Mr Mpofu that the right to dismiss is available at common law and that such right is entrenched. The employer at its election may decide to impose a lesser penalty than dismissal. Such is the exercise of discretion”.

Introduction

ZIMPLATS v Ronald Godide (SC 2 – 2016) deals with the discretion of an employer to dismiss an employee upon taking a serious view of the offence committed. It also explains why an employer is entitled to look at the previous disciplinary record of the employee.

Facts

The respondent employee was a mechanical foreman for ZIMPLATS (Zimbabwe Platinum Mines (Private) Limited). In the process of resolving a breakdown, the employee secured a rubber with worn-out bolts instead of using the new ones. This resulted in another breakdown. This was on 14 March 2022. Production was lost because of this breakdown. Later the employee was charged with gross incompetence or inefficiency in the performance of his duties. The employee had earlier on received a final warning for another offence. He was then dismissed. It was the disciplinary committee’s finding that the employee was sitting on a final warning letter which necessitated a dismissal. Internal appeals failed. The Labour Court was of the view that the final warning letter had been issued for a different offence as a result it was not applicable to the disciplinary proceedings that had led to the dismissal of the employee. It set aside the dismissal and imposed a final warning. Aggrieved ZIMPLATS petitioned the Supreme Court.

Law

The Supreme Court upheld the employer’s discretion to dismiss an employee upon a finding that the conduct of the employee goes to the root of the employment relationship. It buttressed this common law position as follows:

“At common law an employer has the discretion on what penalty can be imposed upon an employee who has been found guilty of an act of misconduct which is inconsistent with the fulfilment of the expressed or implied terms of his or her contract of employment and where such misconduct goes to the root of his or her employment contract. It is also settled that an appeal court cannot interfere with the exercise of this discretion by the employer unless there has been a misdirection in the exercise of such discretion.”

It added that the discretion of an employer can only be substituted only if the employer acted on a wrong principle or of the discretion was irrational. Once an employer has taken a serious view of the matter dismissal may be warranted despite what the code of conduct says:

“The law is clear that once an employer takes a serious view of the matter and the aggravated nature of the misconduct, it is irrelevant that the code does not provide for dismissal as a penalty”.

The respondent employee’s argument was that the final warning letter he was sitting on ought not to have been considered in coming up with an ultimate penalty. The Supreme Court disagreed. It argued that the employee’s conduct in the working environment, including previous disciplinary records, must be considered when the employer exercises the discretion of imposing an ultimate penalty.

Conclusion

The court’s conclusion was that the appeal was well-placed, and it upheld it.

Own Comment

ZIMPLATS v Ronald Godide SC 2 – 2016 is a case one cannot ignore. It contains several lessons. The first lesson is that the employer has the right to choose an appropriate penalty when an employee has been dismissed. This discretion to dismiss can go against the penalties prescribed in a code of conduct. This is because, at common law, the employer has the discretion to dismiss an employee upon taking a serious view of the matter. This position has also been held and supported in Mashonaland Turf Club v George Mutangadura (SC 5/2012) wherein the Supreme court noted:

“In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfere with the exercise of the employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root of the contract of employment.”

The second lesson is that an employer can take into consideration previous warning letters given to an employee in the exercise of the discretion to dismiss. It is not a procedural irregularity to consider how an employee was previously performing before issuing a penalty. The second lesson is also buttressed in other Supreme Court Judgements such as Fraser Muyaka v BAK Logistics (Pvt) Ltd (SC 39/2017) where the court held:

“The employee’s previous disciplinary record is a relevant consideration in terms of s 12B (4) of the Labour Act”.

1,045 Views

Parties to an Employment Contract

Labour law is about an employer and an employee. These are essentially the main parties to an employment relationship. This whole book explores the relationship between these parties to the employment relationship. It assesses the various laws behind the relationship. Noteworthy, it is not easy to define whether one is an employee or something else. Equally so, it may also be difficult to pinpoint who an employer is if one considers the existence of labour broking relationships.

In this section, we look at what constitutes an employee and the various tests that have been buttressed by the courts in showing whether an employer-employee relationship exists between parties. We also look at the relevance of being an employee or employer in labour law and in this respect, we note that once a person, juristic or otherwise, is deemed an employer or an employee certain duties flow from this relationship.

An Employee

An employee is defined under Section 1 of the Labour Act (Chapter 28.01) specifically as follows:

“employee” means any person who performs work or services for another person for remuneration or reward on such terms and conditions as agreed upon by the parties or as provided for in this Act, and includes a person performing work or services for another person—

(a) in circumstances where even if the person performing the work or services supplies his own tools or works under flexible conditions of service, the hirer provides the substantial investment in or assumes the substantial risk of the undertaking; or

(b) in any other circumstances that more closely resemble the relationship between an employee and employer than that between an independent contractor and hirer of services; (Own Emphasis).

From the definition above, an employee must perform work or service for the benefit of getting remuneration. The employee may even supply his tools.^[1] Section 1 (a) includes those people who work under “flexible conditions of service”. We submit that such flexible work conditions include arrangements where employees work from home, flexible working hours for example where one starts work at 9 am rather than 8 am, moving from full-time to part-time work amongst a host of other arrangements that the employer may have with his or her employees.

Section 1(b) specifically excludes an independent contractor and hirer of services. This is important because an independent contractor may look like an employee in a lot of respects and if one is not careful the unfortunate conclusion may be that an independent contractor arrangement is an employment relationship under the purview of the Labour Act. As mentioned above, the distinction between an employee and an independent contractor is important in that legal duties flow from being an employee which duties do not apply when one is an independent contractor. Equally so, the jurisdiction of Designated Agents, Labour Officers, and the Labour Court is excluded once an independent contractor relationship is in existence.^[2]

Alive to the fact that it is not always easy to distinguish between an employee and an independent contractor our courts have devised various tests to be applied to ascertain the kind of relationship in existence. The three major tests are discussed below.

Supervision and Control Test

This test looks at whether an individual is under the direct control and supervision of another. If there is no such supervision and control, there is a greater likelihood that the individual is an independent contractor. Following the same reasoning, if an individual is under the supervision and control of another, an employer-employee relationship is in existence. Control, in this case, envisages a situation where one must abide by the instructions not only in the things, he or she must do but, in the time, and way he or she must do them.^[3] The presence of supervision and control is seen as an imperative component of the employer-employee relationship such that open defiance of an employer’s lawful orders constitutes a dismissible offence.[4].

In the South African case of Stein v Rising Tide Productions (CC),^{^[5]} the court acknowledged that whilst supervision and control are important aspects of the employer-employee relationship, the two aspects are not exhaustive. As a result of this observation by the court in various jurisdictions other tests have been devised to determine if an employment relationship exists. These tests include the unpopular organisation test and the dominant impression tests discussed hereunder.

The Organisation Test

The organisation test connects an individual to an organisation and uses this nexus to determine if an employment relationship exists or not. If an individual is connected to an organisation that they are rendering a service to, an employment relationship is likely to be deduced. On the other hand, if this relationship is remote, an independent contractor arrangement is likely to be obtaining. This the South African case of R v AMCA Services Ltd^[6] this test was rejected for being vague. We submit that the court’s observation was correct because there is more to being an employee than being part and parcel of an entity. The widely accepted test, in Zimbabwe and in South Africa has been the dominant impression test discussed hereunder.

The Dominant Impression Test

The widely used test for determining whether an employment relationship is in existence is the dominant impression test. The test tends to borrow from all the tests discussed above.^[7] It posits that if there is supervision and control of a person there is a greater likelihood that an employment relationship is in existence. Equally so, it also looks at the existence of an organisation. In this regard, the fact that the individual is part and parcel of an organisation points to the greater likelihood of an employment relationship.^[8] There is no single factor that should be used in determining whether there is an employment relationship.

The test emphasises what was said by the Supreme Court in Masango & Others v Kenneth & Another (SC 307/13) where the court remarked:

“…. what the parties call each other in such a contractual relationship, or what they perceive their relationship to be is not decisive and may actually be irrelevant. The court looks at the totality of the evidence and all the circumstances to determine the true nature of the relationship.”

In essence, all the evidence presented to the court will be assessed to determine the type of relationship existing between the parties. Unlike in all the tests discussed thus far, one single factor is not decisive. Factors that a court may consider include nature of rewarding the person, whether it was by way of a commission or a wage. The nature of the business and how it was conducted.

We submit that not all industries can accommodate independent contractors. As an example, it may be practical to have an independent contractor in insurance sales compared to the mining sector this is because, an insurance salesperson can easily work independent of the employer whereas a miner may need to be constantly under the supervision of the employer. In considering all the factors surrounding the relationship, a court is compelled to look at the totality of evidence presented to it.

The Supreme Court in Masango & Others v Kenneth & Another (SC 307/13) looked at factors such as the fact the person was part of an organisation but the degree of control and pointed to the existence of an independent contractor relationship. The fact that the person called himself an employee did not change the fact. The totality of the evidence pointed to the existence of an independent contractor relationship.

Duties applicable to an employer-employee relationship

The presence of an employer-employee relationship comes with legal consequences. One of the immediate consequences is that the labour laws of the country will govern the relationship. In addition, several duties and responsibilities accrue to an employment relationship. These duties apply to both an employer and an employee. Some of the duties are statutory whereas others accrue from the common law.

Generally, every party to an employment relationship is under a common law and statutory duty to respect and abide by his or her contract of the employment. This duty flows from the common law and equally applies to the employer. At common law, the sanctity of the contract of employment is something that has been respected since Roman times. This sanctity of the contract is aptly explained in Printing and Numerical Registering Co v Sampson (1875) LR 19 as follows:

“If there is one thing more than another that public policy requires, it is that man of full age and competent understanding shall have the utmost liberty of contracting and that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by courts of justice. Therefore, you have this paramount public policy to consider — that the courts are not likely to interfere with this freedom of contract.”

Further, in Magodora & Others v CARE International Zimbabwe (SC 191/13) the court remarked:

“It is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so as a matter of public policy.”

It follows therefore that public policy demands that once an employer-employee relationship is established the contract between the parties must be respected. The positions remain intact unless the contract is void or voidable on legal grounds.

The relevance of being an employee

As indicated above, several duties accrue to an employee. The duty of fidelity is one of the fundamental duties that an employee owes an employer from the moment an employment relationship comes into existence. This forms the primary basis of all the other duties to be discussed herein. Without being loyal to the employer an employee cannot further the interests of the employer. Any act or omission by an employee that breaches the employee’s duty of loyalty or fidelity repudiates a contract of employment giving the employer a right to follow the necessary procedure to dismiss the employer.

Respect the employer’s lawful authority

This is a fundamental duty an employee has regarding his or her employer. It is a duty of subordination. Without this legal duty, there is no employment contract. The supervision and control test discussed above is the basis for this duty.^[9] It emanates from the common law. So fundamental is this duty that it has been codified, in one form or the other in several codes of conduct applying in Zimbabwe. In this respect, the phrase “willful disobedience to a lawful order given by the employer” is a quite common offence designated in several codes of conduct.

In NEC Catering Industry v Kundeya & Others (SC 35 of 2016) theSupreme Court argued that the refusal to follow the employer’s lawful instructions can render an employee incapable of performing his or her employer’s work thereby repudiating the contract of employment. The case also points to the fact that when the disobedience was not in error nor on the spur of the moment, but carefully considered and relentless over a long period of time the employer may be justified in dismissing the employee.^[10]

Matereke v CT Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206 established the test to be applied when an employee is alleged to be disobedient. Here the court established:

“… wilful disobedience or wilful misconduct, the words in my view connote a deliberate and serious refusal to obey. Knowledge and deliberateness must be present. Disobedience must be intentional and not the result of mistake or inadvertence. It must be disobedience in a serious degree, and not trivial – not simply an unconsidered reaction in a moment of excitement. It must be such disobedience as to be likely to undermine the relationship between the employer and the employee, going to the very root of the contract of employment.”

Respecting the employer’s authority, therefore, is a cardinal duty that every employee owes the employer. Failure to respect this authority vitiates the employer-employee relationship giving the employer the discretion to end the employment marriage.

Placing personal services at the disposal of the employer

Closely related to the employee’s duty to follow the employer’s instructions is the duty to be available for work. Primarily, an employee is in contract with the employer so that he can be provided work in return for a wage or a salary.^[11] Failure to put the employees’ services at the disposal of the employer also constitutes a fundamental breach of the employment contract. So fundamental is this duty that section 12A(6)(a) authorises an employer to deduct money equivalent to the days that an employee is not available for work.^[12]

In addition to this provision, absenteeism from work is also codified in various codes of conduct as an offence that can warrant the dismissal of the employee. The National Code of Conduct (Statutory Instrument 15 of 2006) prescribes that “absence from work for a period of five or more working days without leave or reasonable cause in a year”^[13] is a dismissible offence. This position in terms of the South African law is not different, the Labour Appeal Court of South Africa remarked in Wyeth SA (Pty) Ltd v Manqele and Others[14] that:

“At common law an employee in a contract of employment commits a breach thereof he reneges on his duty of placing his personal service at the disposal of the employer. The employer on the other hand breaches the contract of employment if he reneges on his undertaking to pay the salary or wages agreed in consideration for services rendered.”

We submit that, once an employee puts his or services at the disposal of the employer, it becomes the duty of the employer to utilize those services. When an employer fails to utilize the services correctly put at his or her disposal by an employee, no liability accrues to the employee in compensation forthe employer’s failure.

Competence

Not only should an employee be available for work. He or she should work competently. The employee should have the capacity to render the services competently. It is an offence in almost every code of conduct and indeed in terms of the national code of conduct to mislead an employer that one holds a certain skill when such exist in an employee’s skills set.^[15] It is a dismissible offence for an employee to be incompetent.

An Employer

Defining an employer is arguably less controversial compared to defining an employee. The Labour Act defines an employer as follows:

“employer” means any person whatsoever who employs or provides work for another person and remunerates or expressly or tacitly undertakes to remunerate him, and includes—

(a) the manager, agent or representative of such person who is in charge or control of the work upon which such other person is employed; and

(b) the judicial manager of such person appointed in terms of the Companies Act [Chapter 24:03];

(c) the liquidator or trustee of the insolvent estate of such person, if authorized to carry on the business of such person by—

(i) the creditors; or

(ii) in the absence of any instructions given by the creditors, the Master of the High Court.

(d) the executor of the deceased estate of such person, authorized to carry on the business of such person by the Master of the High Court (e) the curator of such person who is a patient as defined in the Mental Health Act [Chapter 15:12] (No. 15 of 1996 authorized to carry on the business of such person in terms of section 88 of that Act;^{^[16]}

An employer is a person, whether juristic or a natural person and such a person should provide work to an employee and undertakes to pay such an employee. From the definition in Section 1 of the Labour Act and as outlined above one can see the inclusion of several persons in the definition of an employer. Except for managers, agents, or representatives of an employer the rest for the persons outlined under the definition of an employer are not normally seen in the ordinary course of doing business.

We submit that the words “manager, agent or representative of such person” are free from ambiguity or uncertainty. A manager is anyone who works on behalf of an employer. A manager must mainly supervise lower-level employees. An agent or representative is anyone who operates in the stead of the employer. This can be any person, juristic or natural.

In our respectful view, there was no need for the Labour Act to specify that a “judicial manager”, “liquidator or trustee of the insolvent estate” and “the executor of the deceased estate of such person” are all considered employers because all these persons act as representatives of the employer in their various circumstances and capacities. These persons, by the operation of the law, step into the shoes of the employer and become de facto employers.

Whilst the definition of an employer is straightforward, problems often arise when one seeks to identify the employer in a labour broking arrangement. Labour broking involves three parties, there is the labour broker, who provides labour to a client and the labour. The labour then works for the client, but all conditions of services are managed by the labour broker. The labour has a contract of employment with the broker and not with the client. In the absence of a written agreement, it can be difficult to ascertain who the employer is under these circumstances.

A dispute over the identity of the employer arose in Yoramu and Ors v PG^{^[17]}. The relevant facts of the dispute are that Yoramu, and other employees were employed at a farm which was expropriated for resettlement. The “employees” did not leave the farm after the expropriation. They argued that the new owners of the land became their new employers. The Constitutional Court, among other findings, ruled that there was no transfer of an undertaking following the acquisition of the farm and its subsequent allocation to a number of beneficiaries. The new beneficiaries were not the employers of the employees. Consequently, the contracts of the employees were deemed terminated upon the expropriation of the land from their former employer. The Yoramu case, thus shows and clearly demonstrates how it may be difficult to determine who an employer is in certain circumstances.

The relevance of being an employer

Once a person, juristic or natural, has been identified as the employer, it follows that several legal obligations flow from this designation. In this section, we look at these obligations. The duties of the employer are also from the common law and the majority have since been codified and have been incorporated into the Labour Act. The statutory duties of the employer now include the right not to commit unfair labour practices.^[18] Breach of these duties is tantamount to a repudiation of a contract of employment. The employee will exercise the choice between quitting the job and claiming damages or staying on the job and remedying the breach.

The duty to pay a lawful wage and salary

Every employer is under a statutory duty to pay a lawful wage or salary. The Labour Act has heavily regulated this duty. Controls have been put in place to protect employees from getting wages and salaries which are beyond the specified minimums for every employee.

It is unlawful to pay an employee a salary or wage which is lower than the minimum specified for such an employee.^[19] It is also illegal to terminate an employee’s contract simply because the employer cannot pay the lawful minimum wage.^[20] The law also makes it unlawful to withhold remuneration as a result of a lockout.^[21] These measures were put in place because the legislature was alive to the unequal bargaining power between employers as the owners of the means of production and the employees who are always subordinate to the employer. That unequal bargaining power is therefore balanced through minimum wage laws.

The protection afforded to employees as far as the minimum wage payment has been strengthened by most Collective Bargaining Agreements (CBAs) in Zimbabwe. Employers are also protected from paying the minimum wages if they are unable to do so but this does not happen casually. The majority of CBAs in Zimbabwe allow employers to apply for exemption from paying the minimum stipulated wages. The exemption is not granted carelessly. An employer has to show why they cannot comply with the minimum wages stipulated for the industry. Evidence of incapacity to comply must be presented before the NEC. The evidence can include financial statements and production reports to mention a few. The NEC is under an obligation to fully scrutinize the evidence presented by the employer before granting the exemption if the circumstances so allow. In our view, the granting of exemptions by the NEC thus affords legal protection to employers who cannot afford to pay the minimum wage. We submit also that this protection may qualify as special measures to avoid retrenchment in terms of section 12D of the Act. It prevents the employer from shutting down completely due to failure to pay wages and salaries which protects employees from retrenchment.

Safe working environment

Every employer is also under a statutory obligation to provide a safe working environment. Morally no employer should allow their employee to be injured. The Labour Act also codifies this duty. Under section 6 of the Labour Act (Chapter 28.01) employers are precluded from requiring employees to work in unsafe environments. The employer is also required to provide personal protective equipment (PEE) at no cost to the employee.^[22] The works council is endowed with the power to promote safe and healthy establishments.^[23]

If an employer correctly provides the employee with the necessary PPE, the relevant training and supervision, such an employer may not be held liable for the harm that the employee may face in the course of doing his or her duty. The doctrine of voluntary assumption of risk will apply to such an employee. In terms of this doctrine, a party that exposes themselves to danger, fully aware that the danger exists will not blame an employer for the harm that ensues. For this to apply, the employee must have directed his or her will towards the danger to his or her prejudice. Because of the application of this doctrine, an employee may not sue the employer for the injury they face having willingly endangered themselves. On the other hand, if the employer does not comply with the statutory obligations they must comply with, which act or omission results in the injury of the employee, the employee may sue the employer for damages.

Duty not to unlawfully dismiss an employee

Every employer is now under a statutory duty to ensure that the correct procedure is followed when separating with an employee. Like with any other duties discussed above, this duty is now emphasized in the Act. A perusal of section 12B of the Act shows the extent to which this duty has been prescribed by the legislature. The duty involves using a code of conduct when dismissing an employee.^[24] The employer is also proscribed from making a working environment intolerable on the part of the employee.^[25] The duty extends to terminating a fixed-term contract and replacing the dismissed employee when the dismissed employee had the legitimate expectation of being re-engaged.^[26]

If an employer does not separate with an employee in accordance with the Labour Act, the resultant dismissal or termination may be held to be unlawful and void. Such was the case in NMB Bank Limited v Ashton Kupara[27] where a purported termination on notice had happened outside the confines of the Labour Act (Chapter 28.01). The court, in this case, remarked:

“Termination on notice by the employer outside the ambit of Section 12 (4a) of the Act is prohibited per the clear wording of the provision. Any purported termination notice which fails to comply with the provision is, therefore, a nullity. Choga’s case is authority for the ruling that waiver does not arise in the circumstances of this case where the terminations of employment amounted to a nullity.”

It is, therefore, the duty of every employer to ensure that every employee is not unlawfully dismissed or terminated. Breach of this statutory duty may result in the reinstatement of an employee without loss of pay or payment of damages.^[28]

Conclusion

The presence of an employment relationship is not always easy to determine. The courts have had to outline various tests as a guide to show whether an independent contractor relationship or an employment contract is in existence. The most user-friendly guide is the dominant impression test. It takes into consideration the totality of the evidence presented before a court to ascertain if an employment relationship is in existence. It has also been shown that the presence of an employment relationship comes with attendant duties and responsibilities. The most fundamental duty between the parties is that they should respect the agreement they voluntarily entered into. The employee has a duty to act in a manner that furthers the interests of the employer. The employer has a duty to pay for the services rendered, creating a healthy and safe working environment as well as not to unfairly dismiss an employee.

[1] Section 1 (a) of the Labour Act Chapter 28.01.

[2] Sithembiso Ndlovu N.O v Casmyn Football Club (LC/MT/22/22).

[3] Blismas v Dardagan 1950 SR 234.

[4] National Employment Council for the Catering Industry v Richard Kundeya (SC 35/2016).

[6] 1962 4 SA 537 (A) 540H (SA case number).

[7] Diedericks L “The Employment Status of Magistrates in South Africa and the Concept of Judicial Independence” PER / PELJ 2017(20) – DOI http://dx.doi.org/10.17159/1727-3781/2017/v20i0a1475.

[8] Diedericks L “The Employment Status of Magistrates in South Africa and the Concept of Judicial Independence” PER / PELJ 2017(20) – DOI http://dx.doi.org/10.17159/1727-3781/2017/v20i0a1475.

[9] See NEC Catering Industry v Kundeya & Others (SC 35 of 2016).

[10] See NEC Catering Industry v Kundeya & Others (SC 35 of 2016)

[11] See the definition of an employee in terms of Section 1 of the Labour Act (Chapter 28.01 as amended).

[12] The section reads: No deduction or set-off of any description shall be made from any remuneration except—

(a) where an employee is absent from work on days other than industrial holidays or days of leave to which he is entitled, the proportionate amount of his remuneration only for the period of such absence.

[13] See Section 4 of the Statutory Instrument 15 of 2006.

[14] Wyeth SA (Pty) Ltd v Manqele and Others (JA 50/03) [2005] ZALAC 1).

[15] See Section 4 of the Statutory Instrument 15 of 2006.

[16] Section 1 of the Labour Act (Chapter 28.01).

[17] CCZ 2 – 2016.

[18] Section 8 of the Labour Act (Chapter 28.01).

[19] Section 6(1)(a) of the Labour Act (Chapter 28.01).

[20] See Section 21 of the Labour Act (Chapter 28.01) which reads: (1) No employer shall, otherwise than in terms of an exemption granted to him in terms of subsection (2), terminate the services of an employee solely on the ground of a requirement to pay him a minimum wage in terms of a minimum wage notice.

[21] See Section 105 of the Labour Act (Chapter 28.01).

[22] See Section 12A(2)(c) of the Labour Act (Chapter 28.01).

[23] See Section 25A(4)(c) of the Labour Act (Chapter 28.01).

[24] See section 12B of the Labour Act (Chapter 28.01).

[25] See section 12B(3)(a) of the Labour Act (Chapter 28.01).

[26] See section 12B(3)(b) of the Labour Act (Chapter 28.01).

[27] NMB Bank Limited v Ashton Kupara and 25 Others LC/H/62/22.

[28] See section 89(2)(c)(iii) of the Labour Act (Chapter 28.01).

783 Views

Distinguishing between an independent contractor and a labour broking arrangement.

In this section, we discuss the fundamental differences between an independent contractor and an employee in a labour broking arrangement. The two concepts can be unclear. Without distinguishing between the two arrangements, it may be difficult for an employer to choose between the two arrangements. An employee may also not fully understand the legal repercussions that come with being in any of the two arrangements. The purpose of this section is therefore to demystify the two concepts to allow employers and employees an opportunity, at the very least, to understand the legal consequences of each arrangement. We also look at the contemporary position in terms of South African law. At the end of the discussion, it is recommended that the South African position that seeks to protect employees provided by a labour broker is recommended for the Zimbabwean labour law jurisdiction.

Defining the two arrangements

An independent contractor resembles an employee under the purview of the Act. The major difference is that an independent contractor is not under the control of the employer.[1] Control, in this case, envisages a situation where the employer oversees the employee’s work. In a proper employment relationship, the employer provides the employee with any work-related instructions. Per contra, in an independent contractor relationship, the employer does not regulate the time, and way the contractor must undertakes his or her tasks. The employer is mainly interested in the results. The independent contractor relationship does not result in the payment of a salary but fees or commissions.[2] Tests to determine if an employment relationship is in existence have already been discussed in the foregoing section.

On the other hand, a labour broking arrangement envisages three parties. There is the employer party (the labour broker) and the client, who receives the services of the employee(s). There is the employee(s) who is attached and employed by the labour broker. The client does not have a contract with the employee but with the labour broker.[3] All the conditions of service for the employee are managed by the labour broker.[4] The contract of employment between the employee and the labour broker basically follows the requirements of the Labour Act. The contract or service level agreement between the client and the labour broker who is the employer is unique. We attach in the precedents section a model contract for a labour broker and a client.

The Labour Act (Chapter 28.01) position

The Labour Act’s position is that an independent contractor is not an employee.[5] Labour law does not apply to independent contractors.[6] The non-application of labour law means that an employer who engages an independent contractor does not have to pay for such statutory contributions as a pension, NEC contributions and any other taxes that apply to persons who work as employees. A salary is also not payable to an independent contractor. On separation, terminal benefits applicable in labour law will not apply to an independent contractor.

On the contrary labour brokerage arrangements are recognised in our law. Persons provided under labour brokerage arrangements are employees recognised in terms of the Act. In its current form, the recognition of labour broking is found in case law[7] and in terms of the Labour Amendment Act, 2021. Because the Labour Act applies to employees under a labour brokerage arrangement, it is expected that pension, NEC contribution, union dues, and Pay as You Earn (PAYE) tax are deductible from an employee’s wage or salary. Terminal benefits will apply to an employee under a labour broker. The only aspect that is peculiar to an employee in a labour brokerage arrangement is that the employer is the labour broker and not the client. It is the labour broker that is responsible for the payment of wages and salaries as well as the payment of terminal benefits on separation.

Vicarious Liability

Generally, an employer is vicariously liable for the actions of the employees. What this means is that an employer may end up paying a person, damages for the injury or harm caused by his or her employees in the normal course of doing business. Damages may accrue to the employer even in circumstances where the employer was not at fault. The rationale behind vicarious liability was outlined in Mkhwananzi v Totamirepi & Anor ZWBHC 118 – 2016 in which the court accepted that by engaging in business, an employer may increase the risk of harm to others. The employer has a better financial capacity to compensate victims of harm than the employee. These two notions, therefore, justify vicarious liability, as a rule, to protect the public from the harm that employees belonging to an employer may cause.

On the contrary, vicarious liability does not apply when an independent contractor arrangement is in place. In Masango & Others v Kenneth & Another SC 41 – 2015 the Supreme Court explained this position in the following terms:

“The authorities cited above also re-state the principle that a principal is liable for the delict of his agent where such agent is a servant but not where he is a contractor, sub-contractor or their servant”.

The foundation of this position is that in an independent contractor relationship, the person receiving the services of the contractor does not have control over the way the person so contracted operates. The manner and time of executing the work are all left to the direction of the independent contractor. The “employer” is therefore not vicariously liable for the actions of the independent contractor.

Arguably, in a labour brokerage arrangement, the person benefitting from the services of employees provided by the labour broker is not to be held vicariously liable for the actions of the employees. The labour broker should be held liable. The labour broker is the employer. This will be the case where there is a clear written agreement showing the nature of the arrangement in place. It is also submitted that in the absence of a labour brokerage agreement both the labour broker and the employer should be held jointly and severally liable.

Labour Broking and Independent Contractor Arrangements in South Africa

The law providing for independent contractors in South Africa is not very different from the Zimbabwean law. In South Africa, the Labour Relations Act No. 66 of 1995 specifically excludes independent contractors from the purview of the South African Labour law. This is not surprising; the two legal jurisdictions share a similar common law. In terms of this common law, three types of contracts of employment existed, that is locatio conditio operarum (the letting and hiring of personal services in return for money), locatio conditio aperis (the letting and hiring of services by an independent contractor), and locatio conditio rei (the letting and hiring of a thing for money). It is the common law rules behind locatio conditio operis that form the basis of the independent contractor relationship as we know it today. This type of contractor is not covered by the labour laws in South Africa and so is the case in Zimbabwe.

The way labour broking is regulated in South Africa is commendable. It does not create avenues for the abuse of the system by unscrupulous employers. There is a lot that the Zimbabwean labour law jurisprudence can learn from South African Labour law as far as regulating labour broking arrangements is concerned. In terms of the South African Labour Relations Act,[8] a person employed under a labour broking arrangement is deemed to be the employee of the labour broker.[9] The Act also clarifies that if a person is an independent contractor, such a person will not be deemed to be the employee of either the labour broker or the client receiving the services of such a person.[10] Certain contraventions of the law makes the client and the labour broker jointly and severally liable for damages in favour of the employee. Such contraventions include breaches of a collective bargaining agreement, breach of a binding arbitration award, a breach of the South African Basic Conditions of Employment Act; and a breach of a determination made in terms of the Wage Act.[11] The law in South Africa is also such that an employee can be on a labour brokerage arrangement for only three months with one client and a breach of this rule makes the employee permanently employed by the client.[12] In our view, this is a better way of regulating labour broking as it protects employees from being subjected to poor labour standards.

The discussion on labour broking and independent contractor arrangements will not be complete if a review of David Victor and 200 Others v CHEP South Africa (Pty) Ltd[13] is not undertaken. CHEP South Africa (Pty) Ltd had an independent contractor agreement with C Force in 2014. The service level agreement, forming the basis of the independent contractor relationship, stipulated that C Force would condition and repair pallets on behalf of CHEP. C Force would supply the labour and the tools, and the materials required for the process would be supplied by CHEP. The labour provided by C Force worked for CHEP for more than three months. The 201 employees were aggrieved by the arrangement and applied to the Commission for Conciliation, Mediation and Arbitration (CCMA) for an order declaring them as employees of CHEP. This was given the provisions in the Labour Relations Act that stipulated that if employees earn below a certain threshold and are provided by a labour broker, they become the employees of the client on a permanent basis after working for a client for more than three months.

Upon a close assessment of the agreement between the two companies, CHEP and C FORCE, a commissioner for CCMA concluded that a labour brokerage arrangement, rather than an independent contractor relationship existed between the parties. The net effect of this finding was that the employees were declared to be employees of the CHEP. On appeal to the Labour Court, the finding by the CCMA commissioner was overturned leading to a Labour Appeal Court application. The Labour Appeal Court proceedings upheld the decision of the CCMA commissioner. The basis of the decision by the Labour Appeal Court is discussed next.

It was the Labour Appeal Court’s finding that when assessing whether an independent contractor or a labour broking arrangement is in existence, it is the substance of the relationship rather than the form that is important.[14]

Several factors must be taken into consideration.[15] The service level agreement between the parties utilised man hours for the calculation of the fees payable to C Force which meant that labour was indeed provided to CHEP. It was because of this labour that C Force charged fees, pointing to the existence of a labour broking arrangement. Other factors that the court took into consideration included the fact that CHEP had control over the employees provided by C Force. The court observed:

“Where a client contractually controls the overall work process of persons who work at its premisses, as well as their conduct and behaviour, such persons ordinarily will be deemed to work for the client.”

The fact that the required raw materials, plant, and equipment were supplied by CHEP, that the process of pallet conditioning formed an integral part of CHEPs business and that CHEP controlled the hours of work showed that G Force was a labour broker. Having found that a labour broking arrangement existed, the Labour Appeal Court concluded that the provisions in the Labour Relations Act that deems an employee to be permanently employed by the client applied in the circumstances.

The case illustrates the robust nature with which South African labour law protects employees who are under a labour brokerage arrangement. If a client utilises the labour for more than 3 months, the employees will become those of the client rather than those of the labour broker. This protects employees from being subjected to poor labour standards on the pretext that a labour brokerage arrangement is in place. This is the kind of protection one would recommend for the Zimbabwean jurisdiction.

Conclusion

The discussion above illustrates the distinct nature of a labour broking arrangement and an independent contractor relationship. The two arrangements are different. A person under a labour broking arrangement is considered an employee under the purview of the Labour Act. An employee under an independent contractor arrangement is not regarded as an employee. We note further that, labour broking in Zimbabwe is not as highly regulated as one would ascertain from the South African jurisdiction. The position in South Africa is such that if a person is employed for a period of more than three months, they become an employee for the client if they earn below a set threshold. David Victor and 200 Others v CHEP South Africa (Pty) Ltd shows the test that has been applied by the Labour Appeal Court in South Africa to determine if a labour broking arrangement is in place. In essence, it is the substance of the arrangement rather than the form that is more instructive.

[1] Jacobus Hendrik Saayman v Christiaan Andreas Visser & Others Case Nr: 1267/01 (South Africa) held: “Unlike an employee, an independent contractor is generally not subject to the control or the instructions of the employer as to the manner in which he or she performs the work or produces the result”.

[2] Masango & Others V Kenneth & Another SC 41 – 2015.

[3] See David Victor and 200 Others v CHEP South Africa (Pty) Ltd

[4] See McGregor M (2014), Labour Law Rules, Siber Ink CC, South Africa.

[5] See Section 1 of the Labour Act (Chapter 28.01).

[6] Masango & Others V Kenneth & Another SC 41 – 2015.

[7] Schweppes Zimbabwe V Stanley Takaendesa LC/107/2014.

[8] No. 66 of 1995.

[9] Section 198(2) of the South African Labour Relations Act No. 66 of 1995.

[10] Section 198(2) of the South African Labour Relations Act No. 66 of 1995.

[11] Section 198(4) of the South African Labour Relations Act No. 66 of 1995.

[12] See McGregor M (2014), Labour Law Rules, Siber Ink CC, South Africa.

[13] JA/55/2019

[14] See David Victor and 200 Others v CHEP South Africa (Pty) Ltd at paragraph 39.

[15] David Victor and 200 Others v CHEP South Africa (Pty) Ltd.

892 Views

Unfair labour practices and the protection of employees

The protection of employees against unfair labour practices and standards is enshrined in the Constitution of Zimbabwe.^[1] The Labour Act expands on the concept of unfair labour practices. It details instances where an employer, workers committee and the trade union may commit such unfair labour practices against employees. At this point, it is critical to note that an employee cannot commit an unfair labour practice against the employer. A perusal of the sections that provide for unfair labour practices shows that these can only be committed in the course of employment and not after an employee’s contract has been terminated. This section discusses the difference between the concept of unfair labour practices as found in the Zimbabwean Constitution and in the Labour Act. It also outlines the classes of breaches that constitute unfair labour practices.

The Constitution and the Labour Act

The two pieces of the legislation, the Constitution, and the Labour Act, refer to the concept of unfair labour practices as shown above. The Constitution is the supreme law of the land and any law that is inconsistent with it is invalid to the extent of the inconsistency.^[2] The labour act gives content to the right not to be subjected to unfair labour practices as found in the constitution.

Evidently, South African labour law also provides for the concept of unfair labour practises, in the same manner, provided in Zimbabwean labour law. The South African constitution seeks to protect “everyone” from unfair labour practices.^[3] The Labour Relations Act of South Africa expands on the right to be protected against unfair labour practices and specifically accords this right to “employees”.^[4] The right to fair labour practices in the Constitution is wider compared to the restricted approach that is provided in the Labour Relations Act.^[5] The right in the constitution protects everyone and whereas the rights in the South African Labour Relations Act protect only employees.^[6] The constitutional rights to fair labour practices have been extended to illegal^[7] and invalid employment contracts because the constitution seeks to protect everyone.^[8] The South African context is thus wider in its application when compared to the Zimbabwean context.

As indicated above, the law in Zimbabwe is like that in South Africa in that the listing of unfair labour practices found in the Labour Act is a closed list. If action falls outside the actions or omissions provided in the Labour Act it cannot be classified as unfair labour practice.[9] A typical example, is one cited by McGregor wherein he argues that if an employer is unkind to an employee his or her actions may not qualify as an unfair labour practice despite the employee viewing this unkind behaviour as unfair to him or her.^[10]

The Greatermans^{^[11]} case is the locus classicus, in Zimbabwe, of the position that for an action to be classified as an unfair labour practice in should fall within any one of the categories under sections 8, 9 and 10 of the Labour Act (Chapter 28.01). The position in Zimbabwe is therefore that if an action or an omission falls outside the confines of the unfair labour practice as defined by the Labour Act, no matter how unfair such an act or omission is to an employee, it cannot be classified as an unfair labour practise. Some writers lament the restricted interpretation provided to the concept of unfair labour practises in the Gratermans case.^[12] Until this position changes, the contemporary labour law in Zimbabwe is that actions or omissions that do not fall within the categories or sections mentioned above, do not qualify to be termed as unfair labour practices.

The following part deals with actual actions classified by the Labour Act as unfair labour practices.

Unfair Labour Practices by the Employer

In the course of employment, an employer is expected to avoid certain actions or omissions that are unwarranted to an employee. The legislature came up with section 8 of the Labour Act whose main purpose is to outline unfair labour practices that an employer is prohibited from committing in the course of the employment relationship.

One of the unfair labour practises that an employer can commit is found under Section 8 (a) of the Labour Act. It is provided that an employer is proscribed from preventing, hindering, or obstructing “any employee in the exercise of any right conferred upon him in terms of Part II”. Part II provides for several rights that accrue to an employee. To mention a few of these rights, Part II provides for the right of an employee to membership in a trade union or workers committee^[13], protection against discrimination^[14] as well as protection of employees’ right to democracy in the workplace.^[15] This section is in keeping with the right to freedom of association as provided under international conventions on the subject.^[16]

Section 8(b) precludes an employer from contravening employee rights in part II as well as the rights contained under section 18 of the Act. Section 18 provides for maternity leave provisions. It is therefore an unfair labour practice to prevent an employee from going on maternity leave. The Labour Amendment Act 2021 had removed the qualifying service that was applicable before the enactment. It was required that an employee must spent 12 months of service with an employer before qualifying for maternity leave. It is now an unfair labour practice and a violation of section 8(b) of the Act for one to compel an employee to work for a certain period before qualifying for maternity leave.

Section 8(c) of the Act makes it an unfair labour practise for an employer to refuse to negotiate in good faith with a worker’s committee or a trade union applicable to an entity. Negotiating in good faith is not defined in the Act. We submit that negotiating in good faith entails dealing honestly and fairly with others. The employer must not engage in practises that shows a deliberate act of not disclosing the true picture of a situation whilst negotiating with a workers committee. It may also involve co-opting a workers committee through bribing the workers representatives in a bid to have them side with the employer. All this constitutes unfair labour practices.

Section 8 (d) speaks to the need for an employer to co-operate in good faith with an employment council on which the interests of the employees are represented. We submit that cooperating with an NEC means working jointly or assisting the NEC in complying with the Act. It may also entail negotiating in good faith in all negotiations that happen at the employment council. Failure to render such cooperation makes the employers omission or act an unfair labour practice.

Section 8 (e) outlines several failures by an employer that also constitute an unfair labour practice. The section reads:

“An employer or, for the purpose of paragraphs (g) and (h), an employer or any other person, commits an unfair labour practice if, by act or omission, he—

(e) fails to comply with or to implement— (i) a collective bargaining agreement; or (ii) a decision or finding of an employment council on which any of his employees are represented; or (iii) a decision or finding made under Part XII; or (iv) any determination or direction which is binding upon him in terms of this Act;”

Our view is that section 8(e) of the Act is self-explanatory and does not require much emphasis.

Unfair Labour Practices by the Workers Committee

Whilst it is clear that an individual employee may not commit an unfair labour practice, a trade union or workers committee can commit an unfair labour practice against an employee. Section 9 of the Act outlines the unfair labour practices as follows:

“A trade union or a workers committee commits an unfair labour practice if by act or omission it—

(a) prevents, hinders, or obstructs an employee in the exercise of any right conferred upon him in terms of Part II; or

(b) contravenes any of the provisions of its constitution; or

(c) fails to represent an employee’s interests with respect to any violation of his rights under this Act or under a valid collective bargaining agreement, or under a decision or finding of an employment council, or under Part XII; or

(d) fails to comply with or to implement any decision or finding of an employment council, or any decision or finding made under Part XII, or any determination or direction under this Act which is binding upon it; or

(e) not being registered, purports to act as a collective bargaining agent in terms of Part X or participates in the collection of union dues; or

(f) recommends collective job action in contravention of a valid collective bargaining agreement; or 13

(g) except as may be authorized in terms of this Act, purports to act as the collective bargaining agent for employees, or calls for collective job action when another trade union has duly been registered to represent the employees concerned; or

(h) purports to enter upon an agency agreement or collective bargaining agreement when another trade union has been duly registered for the workers concerned.

The role of the workers committee is to represent employees in the workplace. If the workers committee perpetuates the violation of employees rights such conduct or omission can be an unfair labour practise as shown above. At face value, an employee aggrieved by the conduct or omission of a workers committee may have recourse against the workers committee. This is so in terms of section 9 when read together with Part XII of the Labour Act.

It is however important to note that a workers committee is not a legal persona, and it cannot sue or be sued. It cannot be brought before a court or a conciliation tribunal. This was held in CT Bolts (Pvt) Ltd v Workers Committee (SC 16/2012). It is therefore our respectful submission that section 9 of the Labour Act is academic to the extent that it provides that a workers committee can legally commit an unfair labour practise. There is no legal way of making a determination that the committee has indeed committed an unfair practise. In addition, even if a way was to be found of making such a determination, there is no legal way of remedying the unfair labour practise mainly because a workers committee cannot be brought before a court.

Enforcement of the right to fair labour practises

Part XII of the Labour Act deals with the resolution of unfair labour practices. The power to resolve such disputes is primarily vested in designated agents^[17] and labour officers.^[18] Several remedies for unfair labour practices are prescribed in the whole Labour Act. To mention a few these may involve ordering the party infringing the employee’s rights to stop the unfair labour practice, payment of compensation and reinstatement of the employee to his or her former position if the unfair labour practise had resulted in the unfair dismissal of the employee.[19]

Whilst the right to fair labour practises is enshrined in the constitution, the courts have concluded that remedies against the violation of the right will have to be found in terms of the Labour Act and not the Constitution. In Magurure & 63 Ors v Cargo Carriers International Hauliers (Pvt) Ltd (SABOT) (CCZ 15/ 2016) the Constitutional Court was seized with an application that was meant to buttress the employees right to fair labour standards. In dismissing the application, the court argued that parties cannot use the constitution to directly litigate when there is a law of general application that is providing for constitutional rights. In this case, the aggrieved employees could and should have enforced their right to fair labour practices using the Labour Act as compared to making a direct Constitutional Court application.

In our view the position held by the Constitutional Court in Magurure is well-founded. Litigants are under a legal and ethical obligation to follow domestic remedies found in the Labour Act before approaching the apex court. The Constitutional Court should not be clogged with cases that can easily be handled by lower courts and tribunals.

Conclusion

From the foregoing discussion, it is indeed the position in Zimbabwean labour law that unfair labour practises are only those actions listed under 8, 9 and 10 of the Labour Act (Chapter 28.01). Constitutional protection against unfair labour practices is only provided under those listed circumstances. This is different from the South African jurisdiction where beyond persons legally recognised as employees, constitutional protection against unfair labour practices has been provided to everyone including illegal workers. We look forward to a broader interpretation of this concept to allow everyone the privilege of enjoying this right in the manner it is implemented in other jurisdictions.^[20] This discussion also outlined the various actions or omissions that qualify as unfair labour practices. The important lesson is that unfair labour practises as found in the Labour Act can only be committed against an employee in the course of employment and not when a contract has seized to exist. We have also expressed our doubt in terms of the applicability of section 9 of the Labour Act our main argument being that a workers committee is not a legal persona and may not be in a position of being accused to have committed an unfair labour practise against an employee.

[1] See Section 65(1) of the Constitution of Zimbabwe (Amendment) Act 20 of 2013 provides that: “Every person has the right to fair and safe labour practices and standards and to be paid a fair and reasonable wage”.

[2] See Section 2 of the Constitution of Zimbabwe (Amendment) Act 20 of 2013.

[3] Section 23(1) of the Constitution of the Republic of South Africa reads: “Everyone has the right to fair labour practices”

[4] Section 186(2) of the South African Labour Relations Act No. 66 of 1995 reads: (2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving – (a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; (b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.

[5] See McGregor M (2014), Labour Law Rules, Siber Ink CC, South Africa at page 106.

[6] See McGregor M (2014), Labour Law Rules, Siber Ink CC, South Africa at page 106.

[7] Kylie v CCMA, unreported Case No CA10/08, May 28, 2010.

[8] See McGregor M (2014), Labour Law Rules, Siber Ink CC, South Africa at page 106.

[9] Greatermans Stores and Anor v Minister of Public Service, Labour & Social Welfare CCZ 2/2018 held at page 39 that :” For a person to allege an unfair labour practice as a violation of the right enshrined in s 65(1) of the Constitution, the conduct complained of must constitute one of the acts or omissions listed by the Act as unfair labour practices.”

[10] See McGregor M (2014), Labour Law Rules, Siber Ink CC, South Africa at page 105 and 106.

[11] Greatermans Stores and Anor v Minister of Public Service, Labour & Social Welfare CCZ 2/2018.

[12] See TG Kasuso (2021) Revisiting the Zimbabwean Unfair Labour Practice Concept, http://dx.doi.org/10.17159/1727-3781/2021/v24i0a9016 (Accessed 9 July 2022) who argues that “In giving meaning to the constitutional right to fair labour practices, the Constitutional Court should have examined the essential elements of the right, namely, every person (beneficiaries of the right), fairness, and labour practice.”

[13] Section 4 of the Labour Act (Chapter 28.01).

[14] Section 5 of the Labour Act (Chapter 28.01).

[15] Section 7 of the Labour Act (Chapter 28.01).

[16] Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

[17] See section 63 of the Labour Act (Chapter 28.01).

[18] See section 93 of the Labour Act (Chapter 28.01).

[19] In Xstrata South Africa (Pty) Ltd (Lydenburg Alloy Works) v Num Obo Masha and Others (JA 4/15) [2016] ZALAC 25 (South Africa) the court reasoned that reinstatement is the primary remedy for unfair dismissal unless reasonably impractical or employment relationship irretrievably destroyed.

[20] See Kylie v CCMA, unreported Case No CA10/08, May 28, 2010, where the right to fair labour standards was enforced in favour of a prostitute.

1,683 Views

Fair Dismissals!

Several authors have written about unfair dismissals and the consequences thereof. Our Labour Act also clearly outlines circumstances where one is deemed to be unfairly dismissed. As an example, if one is on a fixed-term contract that is terminated and replaced by another employee, automatically unfair dismissal would have occurred. This is just one example.

What is often ignored are the circumstances where dismissal is fair! Fairness as a legal principle is not as simple as the layperson may presume. It is explained from the substantive law and the procedural law perspectives. In this section, we commence by defining the two types of fairness that are recognised in our law, substantive fairness, and procedural fairness. We will then proceed to outline examples from our case law in which fair dismissals were documented. We examine the most common types of offences found in various codes of conduct in Zimbabwe.

Substantive Fairness

Substantive fairness emanates from substantive law. According to Pete et al “substantive law deals with the question of whether or not a legal claim exists in any particular situation”.[1] Substantive fairness in a disciplinary case, therefore, entails whether or not, on a balance of probability, the employee is guilty of the charges being levelled against him or her. It is not concerned about the steps so taken to prove that the employee is guilty.

Procedural Fairness

Procedural fairness comes from procedural law or adjectival law. This “deals with the procedures to enforce legal claims in civil or criminal law”.[2] In a disciplinary case, this is concerned with the steps taken to prove whether the person is guilty or not. These steps are outlined in the code of conduct and the labour act. The fact that the employee is given three days’ notice before attending the hearing, and requiring the employee to mitigate before the ultimate penalty is given are examples of procedures found in codes that ensure that there is procedural fairness.

There is a fine line between the two types of fairness and in most cases, a substantial departure from the rules that govern both types of fairness can result in the vitiation of the disciplinary hearing. As a general rule, in Zimbabwe, procedural irregularities that do not result in prejudice may be condoned by a court.[3] In the famous case between Nyahuma v Barclays Bank of Zimbabwe SC 67-05, the Supreme Court pronounced that:

“…it is not all procedural irregularities which vitiate proceedings. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.”

A typical example of a procedural irregularity that can result in the invalidation of proceedings is found in Unifreight Limited v Lighton Madembo SC 6 – 18. Here the Supreme Court found that the fact that the chairman of the hearing acted as both the complainant and the chairman prejudiced the employee of a fair hearing. This was compounded by the fact that no record of the hearing was present and that the members of the worker’s committee did not attend the hearing.

Fairness in Context

Here we assess common offences found in codes of conduct across the labour law spectrum in Zimbabwe. We review the facts and the law that resulted in the court concluding that the dismissals were fair.

We accept that each context is unique and that what the courts decided in these cases may be different from what one may face in reality. Whilst this is so, the cases discussed here provide an important guide in our quest to understand what fairness entails.

Any Act of Conduct or Omission Inconsistent with The Fulfilment of The Express or Implied Conditions of His or Her Contract

This is a common offence favoured by several employers. The offence talks about express conditions. These are conditions written down either in a contract, instruction, standard operating procedure, or policy, to mention a few. Violation of such terms will constitute an offence chargeable in terms of a code of conduct. Equally so, every contract has implied conditions of contract. In terms of the common law, every employee is expected to behave in a manner that promotes the employer’s interests. This is called the fiduciary duty of trust between an employer and an employee. Such a duty does not necessarily need to be written down because it is implied in every contract of employment.

As far as this offence is concerned, there is no “fixed rule defining the degree of misconduct that will justify dismissal”[4]. This is perhaps the reason why employers prefer this charge as what is important is that the employer proves that the conduct of the employee undermined the trust and confidence between the parties.

In Stella Nhari v Zimbabwe Allied Banking Group Limited SC 6 – 20 the Supreme Court concluded that an employee who fails to follow a new reporting structure established by the employer can fairly be dismissed in terms of this offence. The court remarked:

“In my view, the appellants conduct cannot be regarded as consistent with the fulfilment of her employment. Her conduct undermined the trust and confidence between the parties as envisaged by her correspondence with the Chief Executive Officer. It is an implied term of the appellant contract that she my comply with orders of the respondent bank. The failure by the appellant to comply with the order, despite numerous invitations to do so made the relationship between the parties untenable. She should have complied with the directive and then taken corrective measures later. In my view, this amounted to a serious misconduct which warranted dismissal”.

It, therefore, follows that it will be substantively fair if an employee were to be dismissed because he or she acted in a manner inconsistent with the employment contract provided that the misconduct goes to the root of the employment relationship. This is shown when the conduct or omission itself warrants the inference that the offence committed undermines the trust and confidence between the parties.

Gross Negligence

The test for negligence is settled in our civil law. According to Kasvosve v Masuku & Ors HH 64 – 2018, the test is whether a reasonable person would have behaved in the same manner as the individual in question. If on a balance of probability it is found that YES a reasonable person would have behaved in the manner the accused did, then there is no offence and the employee ought to be found not guilty. If on the other hand, the answer is a NO, because no reasonable person in the position of the accused would have acted in the manner he or she did then a guilty verdict may be concluded.

Negligence tested in this form is also found in criminal matters. The so-called reasonable person test is used to assess whether one was negligent or not.

In Kasvosve v Masuku & Ors HH 64 – 2018 the court had this to say:

The principles applicable to an inquiry into the existence or absence of negligence are settled. Jonathan Burchell in Principles of Delict (Cape Town, Juta & Co Ltd) at p 86, summarises them as follows:

“the test for determining negligence is as follows:

Would a reasonable person, in the same circumstances as the defendant, have foreseen the possibility of harm to the plaintiff;

Would a reasonable person have taken steps to guard against that possibility;

Did the defendant fail to take the steps which he or she should reasonably have taken to guard against it?

If all three parts of this test receive an affirmative answer, then the defendant has failed to measure up to the standard of the reasonable person and will be adjudged negligent.”

In disciplinary hearings, therefore, we submit that for the negligence to be “gross” it should be of such a magnitude that no reasonable person would have behaved in the manner the accused did. In CIMAS Medical Aid Society v Lindiwe Mhunduru (SC133/21), an employee who recommended the awarding of a tender to a certain construction company was deemed to be grossly negligent and the Supreme Court upheld her dismissal from employment. In this case, the court noted that a senior employee who knows of the existence of a policy but proceeds to follow a procedure that is contrary to the written policy is deemed to be grossly negligent. The court made use of the principles outlined in Rosenthal v Marks 1944 TPD 172 at 180 where it was said:

“Gross negligence (culpa lata, crassa) connotes recklessness an entire failure to

give consideration to the consequences of his actions, a total disregard of duty”.

Wilful Disobedience to a Lawful Order

This is a common offence found in the majority of codes of conduct and not surprising that the National Code of Conduct (Statutory Instrument 15 of 2006) retains this as one of the offences that can be charged under the code. The offence originates from the basic fact that an employee owes the employer a duty of fidelity in terms of which the employee is expected to further the interests of the employer. An employee is thus expected to obey the lawful and reasonable instructions of the employer.

In Innscor Africa (Private) Limited v Terrence Gwatidzo (SC 5/2015) the court had an opportunity to deal with a case involving an employee who refused to give the employer a written report as to why he had not worked emergency overtime. The employee argued that he was on an authorised off and there was no need for the employer to question why he did not avail himself to work overtime. The court upheld the dismissal of the employee. In coming to this conclusion, the Supreme Court observed that the instruction given by the employer was lawful and reasonable. It was deemed lawful because it was capable of being carried out. The court argued that the existence of a moral excuse for the disobedience does not result in the offence being less wilful or will not result in the employer’s order being less lawful. In the circumstances, the dismissal was upheld.

Theft or Fraud

Theft or Fraud are perennial problems in the modern workplace. The two charges are also in our view mishandled because they are also found in criminal law. Very often, the employers ignore the fact that the criminal law and labour law routes of disciplining a person are different routes. It has been emphasised on various forums that the fact that an employee has been charged by the state for theft and fraud does not preclude the employer from also pursuing the internal disciplinary hearing. The mistake often made therefore is where the employer waits for the criminal law processes to finish and then move to dismiss the employee. In some cases, the employee is found not guilty by the criminal justice system leaving the employer with a dilemma as to what should be done next. Very often employees who are guilty of theft or fraud are then left untouched. The best option proposed is that of pursuing the criminal law route and the labour law route (internal disciplinary hearing) at the same time. This is so because the outcome of one process does not interfere with the outcome of the other. An employee may still be found guilty in internal proceedings whilst the criminal law justice system may find them not guilty.

We submit that the criminal law definition of these two offences applies in Labour law. The definitions outline the elements that will have to be proven by the employer on a balance of probability. In terms of the Criminal Law (Codification and Reform) Act [Chapter 9:23][5] under section 113, theft is outlined as follows:

“Any person who takes property capable of being stolen:

(a) knowing that another person is entitled to own, possess or control the property or realising that there is a real risk or possibility that another person may be so entitled; and

(b) intending to deprive the other person permanently of his or her ownership, possession or control, or realising that there is a real risk or possibility that he or she may so deprive the other person of his or her ownership, possession or control”.

The same Act outlines Fraud as follows:

“Any person who makes a misrepresentation:

(a) intending to deceive another person or realising that there is a real risk or possibility of deceiving another person; and

(b) intending to cause another person to act upon the misrepresentation to his or her prejudice, or realising that there is a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice;”

It should be remembered that whilst the criminal law definitions have been used to explain what theft or fraud this does not change the burden of proof. In ZESA v Dera 1998 (1) ZLR 500 (S) cited in Pia Ngwaru v First Mutual Health Company (Private) Limited Sc 38-19 the Supreme Court argued:

“It is a startling, and in my view, an entirely novel proposition, that in a civil case the standard of proof should be anything other than proof on a balance of probabilities. The reason, I have always understood, why in a criminal case proof beyond reasonable doubt is required, is that the loss of a criminal case can result in death by hanging, incarceration, or at the least, the branding of a person as a criminal or convict. A criminal trial is an attack by the State, representing the whole of society, upon the integrity of an individual. Thus a

person convicted of a crime is marked as one whose conduct stands condemned by society.

A civil case, on the other hand, is merely a dispute between individuals. The loss of such a case, however ruinous in terms of money or property, loss of employment or loss of face, is not a judgment by society as a whole, but simply a resolution of the dispute between the parties.

Moreover, the parties in a civil dispute are equally interested parties, in the sense that each one seeks relief. A claims money from B, B claims an order that he owes nothing; A wishes to dismiss B, B wishes to remain employed. In a criminal matter the State does not stand to gain or lose by the outcome of the trial. So, if B is acquitted of theft, the State does not suffer. But if A is forced to continue to employ B whom it has accused of theft, A does indeed suffer if B, who is in fact a thief, is found not guilty of theft.

So in a criminal case one is primarily concerned with doing justice to the accused. In a civil case one is concerned to do justice to each party. Each party has a right to justice, and so the test for that justice has to balance their competing claims. Hence the “balance of probability” test. ZESA, in the present case, has a right not to be forced to employ a thief; Dera has a right not to be dismissed unjustly. The law must balance those rights.”

The fact, therefore, remains that, the fact that a code has an offence that is criminal in nature, does not change the standard of proof expected in the disciplinary proceedings. A disciplinary committee or authority faced with a Theft or Fraud case will still need to balance the probabilities of the accused’s guilty or not guilty.

Absence from Work for a Period of Five or More Working Days Without Leave or Reasonable Cause in a Year

This is also a common offence. The basis is that every employee is employed to render personal services to the employer. If the employee decides to be absent this will constitute a breach of the rendering of personal services.

In Cotton Company of Zimbabwe v Muchirahondo SC 262/99 the Supreme Courtfound that an employee who admitted being away without official leave was properly charged and dismissed. The court mentioned:

“There is no basis for accusing the bodies that heard Muchirahondo’s case of having relied upon the fact that he was serving a written warning for the offence of having been absent from work for three to four days without leave in finding him guilty of the offence he was charged with. Even if reference to the written warning became a factor in the assessment of guilt, it could not affect the fact that Muchirahondo admitted that he was absent from work for five or more days without leave. The fact that he was serving a written warning for previously having been absent from work without leave showed that he was aware of the requirement that he should seek leave from the employer for being absent from work. Any reasonable tribunal faced with such an admission of the elements of the offences charged would find the offender guilty as charged.”

This is a clear offence and does not require further elaboration. If any employee does not further the interests of the employer because of being absent for a period of 5 or more days, dismissal is warranted.

Gross Incompetency or Inefficiency in The Performance of His or Her Work

This offence is split into two. An employee will have to be found guilty of either incompetency or inefficiency for the dismissal to be warranted. This offence was correctly explained in Fraser Muyaka v Bak Logistics (Pvt) Ltd SC 39-17. In this case, the employee was found to be grossly inefficient because he failed to supervise his department and relied on assumptions for almost 6 months. He also failed to attend three meetings he had scheduled. In that case, the court aptly explained the two offences as follows:

“The misconduct was couched as “gross incompetence or inefficiency in the performance of his duties.” The use of the word “or” means either of the two but the requirement is that it be gross of either incompetence or inefficiency. This means for one to be guilty of misconduct, he has to be found to be either incompetent or inefficient. A distinction at law between the two is found in the fact that it can be either of the two.

The literal meanings of the two words can be useful in establishing a distinction between them. Incompetence is defined as “the lack of skill or ability to do a job or a task as it should be done.” Inefficient is defined as “not doing a job well and not making the best use of time, money, energy etc” (see the Oxford Advanced Learner’s Dictionary, International Student’s ed pp 760 and 766).”

Habitual and Substantial Neglect of His or Her Duties

For one to be found guilty of this offence the act or omission complained of should be habitual, substantial and should also constitute neglect of duties. The word habitual means that the behaviour complained of must be continual, perpetual, repeated, or frequent. It does not have to be one event. Secondly, the act should be substantial, which means it must be considerable, or material. Lastly, there should be neglect of duties. Neglect means that the employee should have shown that they do not care for their duties. Trivial and infrequent neglect of duty is not chargeable under this offence.

In Happison Sigauke v Falcon Gold Zimbabwe Limited (SC 18/2017) the Supreme Court confirmed the dismissal of an employee who had failed to have a spare key to a safe for 17 years. It said:

“The consistent failure by the appellant over this period to take any measure to secure the safe whether by replacement of locks or otherwise can only amount to habitual and substantial neglect of his duties.”

Lack of A Skill Which the Employee Expressly or Implied Held Himself or Herself Out to Possess.

This is one offence that one can commit at the point of being engaged by the employer. It is common for prospective employees to undertake that they can do certain tasks. In a world where getting a job is onerous some have found themselves having to over-promise to get a job. Most codes are alive to this problem and this offence has been taken into consideration to deal with us unfortunate situations.

In Total Zimbabwe (Pvt) Ltd. v Moyana (09-03) the job that the employee was required to perform required that he verify delivery notes after having seen and verified the contents as written on the delivery note. The employee did not do so despite the contract being clear that this was a requirement of the job. This was despite the employee has undertaken to the employer that he could work in such an environment. In upholding the employee’s dismissal from employment, the Supreme Court had this to say:

“It seems to me that in signing such an important document as a delivery note without having seen the products it referred to as having been loaded onto the truck, Moyana denied himself the opportunity of exercising any of the skills he had undertaken to exercise in the performance of his duties. He was in fact committing a fraud on his employer, in that by his signature on the delivery note he misrepresented that he had exercised reasonable skill by physically checking and counting the contents of the truck. He certified everything as being in order when that was not the case”.

Conclusion

We have discussed the most common offences chargeable in terms of the codes of conduct in Zimbabwe. What is important to take note of are the various elements of each offence which if proven from a substantive and procedural law perspective, results in a fair dismissal.

[1] Peté, Hulme, Du Plessis, Palmer & Sibanda Civil Procedure: A Practical Guide 2^nd ed (2013) Oxford University Press.

[2] Peté, Hulme, Du Plessis, Palmer & Sibanda Civil Procedure: A Practical Guide 2^nd ed (2013) Oxford University Press.

[3] Unifreight Limited v Lighton Madembo SC 6 – 18.

[4] Stella Nhari v Zimbabwe Allied Banking Group Limited SC 6 – 20.

[5] Act 23/2004

3,202 Views

Towards Quantifying Damages for Sexual Harassment in Zimbabwe

Rita M Mbatha v Farai B Zizhou & Another HH 675 – 21.

Introduction

Sexual harassment in the workplace has no place in any modern-day society. There is continuous recognition in our jurisdiction that this barbaric disease has to be nipped from the bud. As we write this article, we know that the legislature is contemplating amending the Labour Act so as to ensure that anyone who perpetrates sexual harassment in the workplace may be imprisoned for 10 years. The relevant provisions robustly articulate:

“Any person who contravenes subsection (3) shall be guilty of an offence and liable to a fine not exceeding level twelve or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment”.[1]

In this discussion, we look at the matter between Rita M Mbatha and Farai B Zizhou & Another [2]. We assess the summary facts that led to this dispute as well as the authorities cited by the High Court in determining the case. It should be noted from the start of this discussion that, the process of seeking damages for sexual harassment falls within the field of civil law and not labour law. Anyone contemplating suing for such damages should at least approach a Civil Court within their area of jurisdiction.

Facts

We shall not dwell much on the detail as it regards the legal journey that the applicant in this case followed. The major facts that led to the dispute between the parties are as follows:

The plaintiff, in this case, was employed by the second respondent from 2002 – 2003. The employment lasted 9 months.
She was unfairly dismissed and according to the Court, the first defendant facilitated her dismissal after the plaintiff accused him of sexual harassment.
The sexual harassment took various forms and again, according to the court records the second defendant had sent emails to the plaintiff expressing his affectionate feelings towards the plaintiff.
Reports of sexual harassment reached the president of the second respondent, but nothing was done, and she then resorted to the law.
The proceedings that led to the judgement under discussion were instituted in June 2014.
In this application, the plaintiff outlined the damage that she suffered as a result of this sexual harassment. In this respect she said that she suffered psychological trauma, she dropped out of law school, lost her immovable property and marriage.

The Law

We have already mentioned that the process of recovering damages for sexual harassment falls within the field of civil law. These principles are discussed here.

First, the court noted that sexual harassment is prohibited in terms of the labour laws of Zimbabwe. It looked at sections 8 (g) and (h) and concluded that sexual harassment is “an actionable wrong in terms of our labour laws”.

The court recognised that sexual harassment is actionable under the Lex Aquilla. The Lex Aquilla, in modest terms, constitutes a set of rules that were passed during Roman times which rules protected persons against injury caused by others. It is an old set of rules that have survived to this day. The High Court in this case took note of the fact that sexual harassment causes non-patrimonial loss which results in the need to compensate the victim.

It also took into consideration the rights guaranteed in terms of the constitution in particular the need to respect an individual’s dignity. In this respect the court remarked:

“Section 51 of our Constitution guarantees the right to human dignity. It says every person has inherent dignity in their private and public life, and the right to have that dignity respected. It is axiomatic that sexual harassment, especially at the workplace, strips the victim of his or her dignity. It degrades her2. It turns her into an object of sexual gratification. It strips her of her right to personal security as contemplated by s 52 and s 53 of the Constitution”.

Calculating the damages

The court accepted that calculating damages of this sort is not an easy job. It recognised that coming up with the damages is a matter of the court exercising its discretion. It suggested that the compensation should show that no lip service is paid to such issues and that it be tangible.

It was accepted that damages for sexual harassment have no precedence in this jurisdiction. This case was therefore amongst the first cases to deal with this subject. The court took into consideration an out of court settlement that had taken place in 2010 and concluded that the damages payable to the plaintiff, after considering all the facts, is USD 180 000.

Own Comment

The High Court has set the tone for future assessment of these damages. The fact that sexual harassment attacks the fundamental rights enshrined in the constitution will always be taken into consideration when dealing with matters such as the one before the court.

[1] Proposed Section 6(3)(4) of the Labour Act.

[2] Rita M Mbatha v Farai B Zizhou & Another HH 675 – 21.

2,043 Views

Labour Amendment Bill: Designated Agents of Employment Councils

Designated agents (DAs) of Employment Councils play a key role in the resolution of disputes and unfair labour practices in the industries they belong. The Labour Act in its current form excludes Labour Officers from dealing with disputes that are within the authority of Designated Agents. The proposed bill shows a legislature that intends on further controlling DAs in the exercise of the section 63 powers. It also seeks to expand the authority of Labour Officers.

The proposed section 63 (3b) now provides for concurrent authority between Labour Officers and Designated Agents.^[1] Where Labour Officers were previously precluded from entertaining disputes within the DAs authority, they can now deal with these provided this is done after the expiry of 30 days after the dispute arose and the matter has not been referred to a DA. The proposed provision reads:

“(3b) Subject to subsections (3c) and (3d) where a designated agent is authorised to redress any dispute or unfair labour practice in terms of subsection (3a), no labour officer shall have jurisdiction in the matter during the first thirty days after the date when the dispute or unfair labour practice arose, but a labour officer may assume such jurisdiction (and exercise in relation to that dispute or unfair labour practice the same powers that a designated agent has in terms of this section) after the expiry of that period if proceedings before a designated agent to determine that dispute or unfair labour practice have not earlier commenced.”^{^[2]}

Further, the proposed legislation empowers the Registrar to withdraw the appointment of a DA after an interested party or a labour officer has complained of the conduct of the DA. The grounds of such a withdrawal are crafted as “failure on the part of the designated agent to exercise his or her mandate effectively or to comply with the provisions of this Act”. The provisions also prescribe that if the complaint is because the DA is slow in acting, the Registrar may direct that the matter be heard by another Designated Agent or may refer it to a Labour Officer.^[3]

We view these provisions as a serious attempt by the legislature to positively control the quality of dispute resolution outcomes as well as speedy resolution of labour disputes. The legislature should, perhaps, define terms such as failure to “exercise his or her mandate” and “unduly dilatory” to reduce interpretation problems at the point of implementing the respective provisions. The same provisions should also apply to labour officers and arbitrators in as far as they provide for a sanction for failure to adequately exercise a mandate as well as being unduly dilatory.

[1] Proposed Section 63 (3b)

[2] Proposed Section 63 (3b)

[3] Proposed Section 63 (3c)

1,476 Views

Labour Amendment Bill: Fixed Term Contracts

Introduction

A fixed-term contract of employment is a contract that has a start date and an end date. There was not much regulation to this type of contract. The major restriction has been that an employer cannot terminate a fixed-term contract and replace the employee. This would then constitute an unfair dismissal. Our perusal of the proposed Bill shows greater regulation for this type of contract. We believe the legislature wishes to deal with complaints of employees being put on perpetual fixed-term contracts. It also wants to restrict the termination of fixed-term contracts. This section looks at the provisions in the Bill and examines the consequences that will come with this amendment as far as fixed-term contracts are concerned.

The proposed amendment

The current Bill seeks to amend section 12 of the Act in respect to fixed terms contracts in the following manner;

“Section 12 (“Duration, particulars and termination of employment contract”) is amended—

(a) ………………..

(b) by the repeal of subsections (4a) and (4b) and the substitution of the following—

“(4a) A contract of employment may be terminated only, on the part of an employee, by his or her resignation or retirement, and in the following cases on the part of an employer—

(a) ……………………… or

(b) ……………………………………………………………

(c) in the case of a fixed term contract, upon the expiry of the period of the contract without the need to give notice under subsection (4):

Provided that—

(i) notwithstanding anything in such contract to contrary no fixed term contract shall be for less than twelve months except—

A in the case of employment that by its nature is casual or seasonal employment; or

B the contract is for the performance of some specific service which may be completed before that time;

(ii) any fixed term contract that purports to be for a period off less than twelve months shall be deemed to be a contract for an indefinite period.

(iii) if the majority of employees engaged by the same employer are on fixed term contracts, and at any time when an employee’s employment is terminated on the expiry of his or her fixed term contract, then the provisions of sections 12C and 12D shall apply to such termination as if it was retrenchment.

(d)……………………………………………………………………………………

(e) ………………………………………………………………………………..….

(f) 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.”

The period of a fixed-term contract

The Bill provides that no fixed term contract shall be for less than twelve months. What this essentially means is that employers who had employees in contracts of less than twelve months will have to make the necessary changes on the expiry of the current contracts but before the Bill becomes an Act of parliament. The provision is not cast in stone as it unequivocally accepts that fixed-term contracts of less than 12 months are permissible in setups where the work is of a casual or seasonal nature as well as in situations where the work is of a specific service e.g. the agricultural sector. It follows that an employer who alleges that the work is seasonal or is for the performance of a specific service shall have the burden of proving the same.

The Deeming Provision

In addition to the restriction that’s coming with the period of a fixed-term contract, there is a deeming provision which provides that if an employee were to be on the contract of less than twelve months such an employee shall be deemed to be on a permanent contract. This section reads:

“(ii) any fixed term contract that purports to be for a period of less than twelve months shall be deemed to be a contract for an indefinite period.”

This stance is not surprising. Following the 2015 amendments to the Act, National Employment Councils have been capping the maximum number of times a fixed-term contract can be renewed. The following are examples:

Commercial Sectors: 6 contracts
Funeral Industry: 3 years
Furniture Manufacturing Industry: 2 years
Plastics Manufacturing Industry: 10 years

From 2015, there has been a shift towards the protection of employees on fixed-term contracts.

The proposed amendments will do away with most of these provisions in contracts and collective bargaining agreements. Every contract that is of a fixed term nature and is of less than twelve months shall be deemed to be permanent. When this happens, it means for example, in certain industries where employers are not obliged to pay pension for their fixed-term contractors, they will be obliged to pay such. For all intents and purposes, an employee who is on a contract of less than twelve months shall be deemed to be on a permanent contract at the time this law is put into effect. This is one of the intense consequences that’s going to flow from this provision. The provision does not allow a grace period to allow employers to restructure their establishments.

Termination at the expiry of the fixed-term contract

The law in its current form provides that an employee on a fixed-term contract gets nothing at the expiry of that contract. There is not even a need to give such an employee notice of the impending end to the employment relationship. Presumably, to offer some form of protection for workers and to ensure that they at least get terminal benefits at the expiry of the contract the following provision is being put in place in terms of the proposed amendments:

“iii. if the majority of employees engaged by the same employer are on fixed term contracts, and at any time when an employee’s employment is terminated on the expiry of his or her fixed term contract, then the provisions of sections 12C and 12D shall apply to such termination as if it was retrenchment”.[1]

The Bill provides that sections 12C and 12D shall apply when a fixed-term contract expires. The consequence is that a retrenchment package becomes payable to an employee. This retrenchment package can be a minimum or the negotiated retrenchment package, which is higher than the minimum, in terms of the proposed amendment.

This provision however does not apply to every employee. The provision applies if the majority of the employees of one employer are on fixed-term contracts. The Bill does not define what a majority entails, but one would postulate that this provision applies when more than 50% of the employees of one employer are on fixed-term contracts. The intention is clear, the legislature wants to do away with what others would term as casualisation of labour, a phenomenon where employees are perpetually on fixed-term contracts or where an employer deliberately puts employees on fixed-term contracts without any reasonable cause.

One thing that exercised our minds is that the provision is seemingly discriminatory. Employees who are employed in setups that do not have the majority of the employees on fixed-term contracts are not given the same benefit as those who belong to setups that have the majority on fixed-term contracts. Equally so, it punishes employers who employ more employees on fixed-term contracts even when the nature of business and the setup may not allow everyone to be on a permanent basis. This is not what the Constitution of the land intended when it provided that every person has the right to equality before the law. Every employee has the right to fair labour practices. We respectfully submit that this provision may not survive constitutional scrutiny.

Furthermore, it is not clear how section 12 D of the Act will apply when a fixed-term contract is terminated. This is a source of controversy as section 12D provides for special measures to avoid retrenchment which measures are usually complied with before termination. The legislature needs to closely look at this provision in this regard.

Conclusion

In conclusion, the bottom line is that every employee, save for those on casual work or task contract, will, in the event that the Bill become law, be in a longer-term contract of at least twelve months. Fixed-term contracts of less than twelve months won’t exist when this law is passed. We are worried that the deeming provision does not allow employers to look into their systems and make the necessary changes before the provision comes into effect. By making everyone an employee on a permanent contract, employers may be prejudiced in situations where the work does not qualify as seasonal or task but at the same time, there is a need for flexibility in the management of contracts. We are also worried that the proposed Section 12 (4a) (c) (iii) is seemingly discriminatory as it affords more protection to employees who are employed by employers with many employees on fixed-term contracts compared to those employees employed by employers with fewer employees on fixed-term contracts.

[1] Proposed Section 12 (4a) (c) (iii) of the Act.

2,409 Views

Deduction from Wages/Salaries Upon Failure by an Employee to Serve a Notice Period

1. Introduction

One recurring situation in labour relations is where an employee resigns and decides to leave employment without honouring or giving the employer the requisite notice. Without the consent of the employee in question, some employers simply proceed to deduct the notice from such an employee’s terminal benefits. Indeed, some contracts of employment and Collective Bargaining Agreements empower the employer to make such deductions if the employee decides to leave without serving the employer the obligatory notice. In this section, we explore, the legality of such deductions. We also give an overview of how this area of law is handled in other countries. Lastly, we look at the remedies available to an employer faced with such a predicament.

2. Notice of termination

Section 12 (4) of the Labour Act provides for the notice of termination of the contract of employment to be given by either party. The notice depends on the nature and length of the contract in question. For a contract without a limit of time or a contract for two years or more three months’ notice is prescribed, two months in the case of a contract for one year or more but less than two years and so on. Section 12 (4a) precludes an employer from terminating a contract of employment on notice unless certain conditions are met for instance in terms of a code of conduct, by mutual agreement, if it is a fixed-term contract or if an employer is engaging in a retrenchment exercise. Whilst the employer’s right to terminate on notice has been curtailed, the employee retains the full right to end an employment relationship on notice. As already noted above, circumstances may compel the employee to leave the place of work without serving the requisite notice. This is where some employers have resorted to deducting the notice period from either the accrued leave days, outstanding wages, pension etc. The major instruments used by the employers in such circumstances can be the CBA or the contract of employment. We submit in this article that this is misguided and a serious misunderstanding of the law.

3. Permissible deductions

The Labour Act is clear-cut in terms of deductions that can be taken from an employee’s salary or wages in the course of employment and on separation. In summary, such deductions include where an employee is absent from work on workdays, statutory deductions, advance payments made to the employee, and payments made in error.[1] The relevant section is crafted in peremptory terms leaving no room for any other form of permissible deductions. The section is also clear that these permissible deductions can be deducted in full on separation. As an example, if a payment was made in error, an employer can deduct the full amount if the employee were to leave employment. This would not apply to a deduction in lieu of the notice that the employee was supposed to serve on resignation. This would be so even when the contract of employment and the CBA provides for such deductions.

Section 17(3)(b) allows the Minister of Labour to make regulations providing for the deductions which may be made from the wages of employees. No such regulations have been made empowering an employer to deduct cash in lieu of the notice of termination of the contract.

4. Collective bargaining agreements and contracts

Certain CBAs empower employers to deduct wages upon a failure by an employee to serve the notice. One such CBA is the CBA for the Motor Industry[2] which provides:

“If an employee leaves his employment without giving notice or having given notice, and fails to work during that period of notice, the employer may deduct, from any wages or leave due to that employee, an amount equal to the wages he would have earned if he had worked the period of notice”.[3]

We submit that such a provision violates section 74 (5) of the Labour Act which precludes a CBA from having a provision that is contrary to what is provided in the Labour Act. The section unambiguously reads:

“A collective bargaining agreement shall not contain any provision which is inconsistent with this Act or any other enactment, and any collective bargaining agreement which contains any such provision shall, to the extent of such inconsistency, be construed with such modifications, qualifications, adaptations and exceptions as may be necessary to bring it into conformity with this Act or such other enactment”.

Whilst a CBA can contain a provision which is of mutual interest to the parties including deductions that can be made to employees’ wages and salaries[4] such matters should always comply with the provisions under section 74(5) of the Labour Act when read together with Section 12A (6) of the same Act. From the provisions discussed thus far, one aspect of the issue in question stands out, deducting wages in lieu of the notice that was supposed to have been served by an employee is not permitted by the labour laws of this country. One might ask, what is the law in other countries? This is reviewed below.

5. The law in other countries

In South Africa, the labour laws do not empower an employer to deduct cash in lieu of the notice upon an employee’s failure to serve the notice period. The Basic Conditions of Employment Act (BCEA) in South Africa has provisions that are close to the Labour Act in Zimbabwe. What is slightly different is that the BCEA can allow an employee to consent to certain deductions including a deduction in lieu of notice. This logically means that a South African employer will still have to pay the employee their full wages on termination even though the employee failed to serve the notice of termination of the employment contract.

Further, as a general rule in India, wages, and salary deductions for not serving the notice period are not permissible. The laws in India provide for a list of deductions that can be made to an employee’s wages and notably, deductions for failure to serve the requisite notice are not allowed.

The manner in which this issue is handled in different countries is equivalent to what happens in Zimbabwe. This is not surprising. Labour laws are meant for the protection of employees against a capitalist system. It is accepted that employers as the owners of the means of production are more powerful when compared to employees who only render a service. To balance this unequal distribution of power, labour laws are enacted.

Does this mean a Zimbabwean employer is without recourse if an employee leaves his or her employment without giving the required notice? NO. There is no doubt that the action of leaving employment without serving the notice can result in irreparable harm on the part of the employer. The importance of a smooth handover process in the management of a business cannot be underestimated. What follows is the recourse that can be taken by the employer.

6. Recourse on the part of the employer

Failure by an employee to serve the required notice constitutes a breach of contract. A breach of contract is a material non-compliance with the terms of a legally binding contract.[5]

A party who has suffered a breach of contract has the option of enforcing the contract and order specific performance and to also sue for damages. The damages can be based on actual loss or future loss. This procedure is not based on labour law but civil law and would entail the issuance of summons of an appropriate court. There is no doubt that this is a cumbersome process as compared to recovering the equivalent of the notice from the employee’s wages but until our labour laws are amended, this is the law that we have to abide by.

7. Conclusion

In this article, we highlighted that our labour laws do not allow an employer to deduct wages upon a failure by an employee to serve the requisite notice. Contracts and CBAs that empower employers to deduct wages may fail the lawfulness test as they are contrary to the provisions in the Act. We also demonstrated how our laws are structured in a manner not so different from other countries. This is so as a function of the need for the labour laws to protect the employees mindful of the unequal relationship that exists between the owners of the means of production, the employers, and the providers of service, the employees. The only viable option on the part of the employer is to issue out summons and recover damages from the employee but this is a long and costly process and as a result, very few employers are willing to go that route. Until our laws are changed, deduction of wages upon a failure by an employee’s failure to serve the requisite notice remain unlawful.

[1] Section 12A (6) of the Labour Act (Chapter 28.01).

[2] Statutory Instrument 84 of 1993.

[3] Section 13(3) of Statutory Instrument 84 of 1993.

[4] Section 74(3)(c) of the Labour Act.

[5] Leigh Ellis (Updated 8 October 2019), https://hallellis.co.uk/breach-contract-meaning/.

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