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Act, 2015
 ARIPO

 Conveyancing
BACKGROUND

 Copyright On 17 July 2015, the Supreme Court handed

down judgment in the case of Nyamande and
 Corporate
Anor v Zuva Petroleum (Pvt) Ltd SC 43/15 (“the
:
 & Zuva case”) which dealt with the issue of
Commercial termination on notice without cause. In

summary it held that the common law position

 Family Law
was, and had always been that an employer
could, on reasonable notice, terminate an
 Featured
employee’s contract with no reason being given.
 H&B
Restatement of the legal position by the
 Human Supreme Court resulted in many employers

Rights & taking the opportunity to terminate employees’

Constitutional contracts on notice. This extreme reaction was

Law prompted by the dire economic environment

prevailing in Zimbabwe and the then existing

 Industrial
retrenchment procedures which made it a
Design
lengthy and costly process for employers to

reduce their workforce. The number of

 Labour Law
employees whose contracts were terminated
 Litigation after the Zuva case has been put at tens of
thousands, with the City of Harare being alleged
 Patents
to have terminated contracts of more than 3 000
employees, the National Railways of Zimbabwe
 Trade
of over 1 500 employees, and the private
Marks
banking sector of over 2 000 employees. Reports
 Trusts Wills in the month following the Zuva case suggest
& Estates that over 20 000 employees’ contracts were
terminated over a three week period
 Vacancies
(http://www.reuters.com/article/us-zimbabwe-
employment-idUSKCN0QL0ID2015 0816),
:
 although others suggest that the egure could be

more than double that.

Facing pressure from unemployed workers, the

Government scrambled to introduce
amendments to the Labour Act [Chapter 28:01]
(“the Act”). In an unusually quick period of time,

the Labour Amendment Act No. 5 of 2015 was

promulgated and came into force in 14 August
2015. The major changes introduced included:

A prohibition on termination on notice

except in speciec circumstances

The introduction of a minimum
retrenchment package
The application of a retrospective

compensation package payable to

employees whose contracts were
terminated on notice

Amendments to the conciliation and

arbitration process at Labour Oice level.

As a result of the rushing through of the Labour

Amendment Act, a number of issues have since

arisen in respect of the Constitutionality of some
of the changes, as well as the lack of clarity on
how certain sections of the Act apply in practice.

PROBLEMS FACED WITH THE

:
 AMENDED ACT

The most serious issue arising out of the

amendment of the Labour Act is that of the
retrospective application of the amended
Section 12 as provided for in Section 18 of the
Labour Amendment Act. This meant that
employers – who had been acting lawfully at the
time – would have to pay compensation to

employees terminated on notice. The enancial

impact on already struggling companies was
signiecant, and as such, many employers have
chosen not to pay and rather deal with the issue
at court.

The High Court has since held, in the case of

Zimind Publishers (Pvt) Ltd. v Minister, Public
Service, Labour & Social Welfare & Another

[2017] ZWHHC 170 that:

“Creating legislation with retrospective

e3ect is the hallmark of tyranny as
such laws place citizens at the mercy
of government…

I am of the view that taking away

vested rights is contrary to the
Constitution. It is also not in
conformity with the principle of the
:
 rule of law to prescribe a law ex post
fact.
Accordingly it is declared that;
Section 18 of the Labour Act No. 5 of
2015 in inconsistent with sections 3 (2)
(k), 56 (1) and s 86 of the Constitution

of Zimbabwe and is therefore invalid”.

In addition to the retrospective provision, the

amendment of Section 93(5) of the Labour Act
has resulted in Labour Oicers being given
additional powers to make rulings against
parties who no longer have a right of appeal

against the same. The Labour Oicer, having

made a ruling, has to expend additional costs
and time applying to the Labour Court for the
conermation of the ruling before it takes ekect.
In addition, the wording of the amended section
means that a party against whom a decision has
not been made, is not joined to the Labour Court

proceedings even though they clearly have an

interest in the outcome. The amendments
contravene the following sections of the
Constitution: Section 56(1) (right to equality
before the law); Section 69(1) (right to a fair
hearing) and Section 69(3) (access to the courts).
Several matters have already been referred to
:
 the Constitutional Court on the issues raised
above.

The drafting of the sections dealing with

termination on notice (Section 12(4a)) and
retrenchment (Section 12C) also leaves much to
be desired. The Act appears to still allow for

termination on notice where the contract is a

exed term contract, but the provision relating to
compensation for termination on notice only
speaks to permanent contracts (Section 12(4b)
of the Act). In addition, it appears to provide that
termination on notice can be provided for in
Codes of Conduct, although not in contracts of

employment and does not make provision for

resignation.

Section 12C ekectively does away with the

powers of the Retrenchment Board, whose
power – where the minimum compensation

package is okered – is limited to merely

stamping a notiecation from the employer.

To address the problems created, a new

amendment Act is being prepared, colloquially
known as the Zero Draft Labour Bill. The Zero
Draft Labour Bill seeks to address the issues
relating to Section 12 and termination on notice
by limiting termination on notice to
:
 retrenchment, resignation, mutual agreement
and failure to return from sick leave. It also very
clearly sets out the methods of termination,
other than giving notice. It also seeks to repeal
the subsection dealing with compensation.

The Zero Draft Labour Bill seeks to reinstate

the powers of the Retrenchment Board, but
retain the minimum package – speaking,
however, to employers who are “incapacitated”
from paying more, which will likely lead to
numerous dikerences of opinion and a number
of disputes.

The Zero Draft Labour Bill would restore the

dispute resolution provisions under the “old” Act,
restraining Labour Oicers to conciliating
matters and having Arbitrators make rulings
which can be appealed to the Labour Court. It
also more clearly sets out the conciliation and
arbitration procedures which will beneet
employers and employees alike.

In summary, the Zero Draft Labour Bill is a

deenite improvement on the status quo, and if it
is circulated amongst interested parties, can only
be improved upon, leading to a more fair and
eicient labour law and process in Zimbabwe.
:
 Emma Drury
Partner
Corporate and Commercial Department

By Emma Drury | September 10th, 2017 | Featured, Labour

Law | Comments O?

Share This Article.

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About the Author: Emma Drury

Emma is a Partner in the Litigation
Department at Honey &
Blanckenberg. She holds BA and LLB
degrees from Rhodes University, South Africa.
Emma commenced her legal career as an intern
with Gollop & Blank Legal Practitioners where
she was involved in legal research regarding
potential cases in the SADC Tribunal and the
International Criminal Court. She was also
involved in research for a recent case which has
been placed before the African Commission for

Human and Peoples’ Rights regarding the SADC

Tribunal. Emma joined Honey & Blanckenberg in
2012. Her areas of interest in law include civil
:
 litigation, labour law and human rights law.

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