A viewpoint from the Parliamentary discussions that took place before Act 11 of 2023 was passed
Introduction
During nearly every workshop I attend, there’s a recurring inquiry about whether Act 11 of 2023[2] permits employers to terminate permanent contracts with notice. The presence of section 12(4) of the Labour Act (Chapter 28.01) which provides for the “notice of termination of the contract of employment to be given by either party” is to other people an indication that permanent contracts in Zimbabwe can still be terminated on notice.
When Act 5 of 2015 was enacted, the clear intention of the drafters of the legislation was that “no employer shall terminate a contract of employment on notice”.[3] This position was indeed a response to the Zuva Petroleum judgement which recognised the employer’s right to end a contract on notice. This undesirable law led to several employees losing their jobs a position which Act 5 of 2015 sought to resolve.
When Act 11 of 2023 was then promulgated, the provision that “no employer shall terminate a contract of employment on notice” was removed. Section 12 (4a) was reamended in the following terms:
“ 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) by mutual agreement in writing.
(b) 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.”
This article will analyse if the enactment of Act 11 of 2023 and the removal of the clause that provided that “no employer shall terminate a contract of employment on notice”[4] now allows employers to end contracts on notice. It assesses parliamentary discussions of the bill that became Act 11 of 2023 and from that discussion, the article outlines the intention of the legislature as far as termination of contracts on notice is concerned.
It will be concluded at the end of this article that employers should utilise other methods of ending contracts that are found in the Labour Act and desist from ending contracts on notice.
The intention of the legislature
Interpreting legislation is not an easy job. It entails discerning the intention of the drafters of the legislation or as put by Christo Botha, “to determine what the legislation has to accomplish in the legal order”.[5]
Several rules have been devised in our jurisdiction to ascertain the true meaning of words in statutes. The most accepted rule of interpreting legislation in Zimbabwe is the so-called golden rule of statutory interpretation. The golden rule for interpreting statutes dictates that if the language in a statute is clear and unambiguous, it should be interpreted according to its ordinary meaning unless doing so would result in absurdity or conflict with the legislature’s intent.[6] In Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S) it was held that:
“There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to, as LORD WENSLEYDALE said in Grey v Pearson (1857) 10 ER 1216 at 1234, ‘unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further.’”
It is only when the golden rule of statutory interpretation is in conflict with the intention of the legislature that one can resort to other methods of statutory interpretation such as the historical context of the legislation.[7] In our situation, it is essential to consider the history of section 12(4a) of the Act, introduced in 2015 to address the implications of the Zuva Petroleum judgment. This raises the question of whether the legislative intent has shifted between 2015 and 2023. This article contends that the legislature’s intention to prohibit the termination of employment contracts with notice has remained consistent throughout this period.
Parliamentary Debates and Interpretation of Legislation
Section 15B of the Interpretation Act (Chapter 1:01) allows for the use of extrinsic material in the interpretation of enactments. In terms of the Act, a Minister’s speech to Parliament, made when proposing the second reading of a bill containing a specific provision, along with the committee stage proceedings related to that bill as recorded in the Votes and Proceedings of Parliament or any official parliamentary debate records, can be utilized to confirm and determine the meaning of the provision.[8] In addition, the Act also allows for “any relevant material in the Votes and Proceedings of Parliament or any official record of debates in Parliament.”[9]
Legal scholars also concur that parliamentary debates that preceded an Act of Parliament can be used to interpret provisions in an Act of Parliament and discern the intention of the legislature.[10] Christo Botha observes that in De Reuck v Director of Public Prosecutions, Witwatersrand Local Division 2003 (3) SA 389 (W), the court utilized parliamentary debates to interpret the Films and Publications Act 65 of 1996 in South Africa.[11] The same author also notes that in Case v Minister of Safety and Security; Curtis v Minister of Safety and Security 1996 (3) SA 617 (CC) the Constitutional Court of South Africa referred to parliamentary debates during its interpretation of the relevant legislation.
It therefore follows that records of parliamentary debates assist persons in discerning the true meaning of the legislative provision. The same records can be used to ascertain the true meaning and consequence of section 12(4) of the Act when read together with section 12(4a).
Parliamentary records and debates relevant to the termination on notice
A perusal of the records of the second reading of the Labour Amendment Bill in the Senate shows that the Minister of Justice, Legal and Parliamentary Affairs (Hon. Ziyambi) remarked in the following terms when dealing with the issue of termination of contracts on notice:
“…, I think we have removed that part that employers can just give you notice and then you are discharged. In fact, what most employers were now doing, instead of going through the processes of disciplinary hearings and all that, they will simply write you a letter and say we are giving you notice that after three months we are terminating your employment. It was legal. They were now avoiding the processes of disciplinary hearing and they could just dispose of workers as and when they wanted. We have removed that provision that came about because of the Zuva Judgement, and we believe that employers can negotiate if they are under distress. If they want to downsize, they pay retrenchment package as opposed to doing that.”[12]
The impact of these statements is that ending a permanent employment contract solely through notice is forbidden under Act 11 of 2023. The honorable Minister’s mention of the three-month notice pertains to the period given to numerous employees following the Zuva Petroleum case’s aftermath. Hence, when the Act was still in the Bill stage, it was the legislative intent that termination of permanent contracts with notice should not be permitted. This intent remains unchanged.
The Acceptable Perspective
Considering the aforementioned points, the recommended approach involves interpreting the provisions of Section 12 (4) of the Labour Act in conjunction with Section 12 (4a) of the same legislation. This entails understanding that Section 12(4) specifies the legal notice periods applicable when implementing any termination methods outlined in Section 12(4a) of the Act. Employing this perspective, parties considering mutual separation, retirement, or resignation would need to adhere to the legal notice periods stipulated in Section 12(4). It’s crucial to view these two provisions not as conflicting but rather as complementary.
Conclusion
Although it is acknowledged that the language of Act 11 of 2023 does not explicitly forbid termination of permanent contracts on notice in the same manner as Act 5 of 2015, this does not negate the legislative intent. As previously discussed, this intent primarily stems from the parliamentary deliberations. The Senate records of June 7th, 2023, distinctly illustrate a legislature aiming to safeguard employees from contract termination via notice. This legislative intent remains unchanged.
This exposition has demonstrated that when the golden rule of statutory interpretation conflicts with legislative intent, the context of the legislation as evident in parliamentary debates and the provision’s history can be utilized to interpret its meaning.
Such an interpretive method does not endorse the notion that termination on notice is now permissible under Act 11 of 2023. Therefore, employers should terminate employment contracts in accordance with the clear provisions of Section 12(4a) of the Act or any other relevant provision applicable to their circumstances.
[1] Taurai Mrewa is an academic writer, and his writings are intended for informational purposes only. They should not be considered a substitute for professional legal advice. You can view more of such articles on HTTPS//: taumrewa.co.zw/blog.
[2] Labour Amendment Act 11 of 2023.
[3] Section 12(4a) of the Labour Amendment Act 5 of 2015.
[4] Section 12(4a) of the Labour Amendment Act 5 of 2015.
[5] See Christo Botha (2012) ‘Statutory Interpretation: An Introduction for Students’ (Fifth Edition) Juta South Africa, page 10.
[6] In Delta Beverages (Pvt) Ltd v Zimbabwe Revenue Authority HH129-15 the court held on page 4 that: “The golden rule of interpretation of statutes is that where the language used in a statute is plain and unambiguous it should be given its ordinary meaning unless that would lead to some absurdity or inconsistency with the intention of the legislature.”
[7] See Christo Botha (2012) ‘Statutory Interpretation: An Introduction for Students’ (Fifth Edition) Juta South Africa, paragraphs 5.3.2 and 7.2.2.
[8] Section 15B(2)(f) of the Interpretation Act (Chapter 1:01).
[9] Section 15B(2)(h) of the Interpretation Act (Chapter 1:01)
[10] See Christo Botha (2012) ‘Statutory Interpretation: An Introduction for Students’ (Fifth Edition) Juta South Africa, paragraph 6.4.3 (a).
[11] See Christo Botha (2012) ‘Statutory Interpretation: An Introduction for Students’ (Fifth Edition) Juta South Africa, page 150.
[12] Pages 43 – 44 of Parliament of Zimbabwe record of Wednesday, 7th June 2023 in which the Second Reading of The Labour Amendment Bill [H. B.14a, 2021] was undertaken. Available at https://parlzim.gov.zw/download/senate-hansard-7-june-2023-vol-32-no-35/ <Accessed 18 May 2024>.