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