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.