The Supreme Court of Zimbabwe’s judgement that licensed employers to hire and fire employees, can only be described as a miscarriage of justice. The Court acted negligently by failing to guard against the unintended consequences of its decision. As a result, thousands of workers woke up without jobs.
The landmark decision delivered on July 17 2015 by the Chief Justice Godfrey Chidyausiku with the concurrence of Elizabeth Gwaunza JA, Paddington Garwe JA, Ben Hlatshwayo JA and Antonia Guvava JA, stripped off Zimbabwe’s labour force of its right to employment security. The ruling upheld an earlier decision by the Labour Court judge Justice Fatima Maxwell ascertaining the employer’s common law right to terminate an employment contract on notice. This is the case of Don Nyamande and Kingstone Donga SC 45/2015. To add insult to injury, the highest court had the audacity to order Nyamande and Donga to pay legal costs incurred by Zuva Petroleum. We must applaud Don Nyamande and Kingstone Donga for exposing our judiciary’s mindset towards the working people of Zimbabwe.
What is surprising in the judgement is that the Court preferred a narrow interpretation of the Labour statutes despite the clear intention of the legislature and government policy since 1980 to ban arbitrary termination of employment.
The ruling is in compliance with the colonial era practice in which the Master and Servant ordinance of 1901 and its regulations gave employer the right to hire and fire labour wily-nilly. After attainment of independence, the government of Zimbabwe never tolerated the abuse of workers by employers to terminate employment contract willy-nilly.
In 1985, government enacted the Labour Relations (General Conditions of Employment) Termination of Employment Regulations SI371/1985. This regulation prohibited employers from terminating employment contracts without ministerial approval. However, the regulation was repealed in the 1990s to allow for the ill-conceived labour market flexibility instigated by the International Monetary Fund and the World Bank.
In 2002, the government revised its labour laws and created section 12B (1) which provides that “every employee has the right not to be unfairly dismissed”. However, the learned judges were not persuaded by this section as they got busy searching for loopholes. The Court’s reasoning was that there is a gap in law as there is nothing in labour statutes that takes away the employer’s common law right to terminate on notice.
The Court ignored the intention of the legislation, its purpose and government policy as well as public policy. Allowing mass termination of employment is against public policy. The Labour Act in section 2A provides that its purpose is to advance social justice and democracy in the workplace. The learned judges did not bother to look at the notion of social justice as it did in the case of Horace Nzuma and anor v Hunyani. In this case, the Court noted a gap in law in converting Zimbabwean dollars to United States dollars and ordered the Labour Court to do the conversion.
However, in the Don Nyamande case, the Court focused on words semantics of the difference between “dismissal and termination”. Furthermore, the learned judges failed to see that the matter started well as a retrenchment and mid-stream, Zuva Petroleum dumped lawful retrenchment procedures and opted to terminate on notice.
The Court further equates an employee with capital. This will never happen. Labour law guru Kahn Freud in his book Labour and the Law states that the purpose of labour law is to regulate the unequal relationship between capital and labour so as to protect the weaker party, which is the employee.
The question the working population asks the bench is: Is it just to fire somebody without a reason in this human rights era? Where is the promotion of social justice envisaged by the legislature through section 2A? Was the bench not able to read the intention of the legislature and government policy since 1980?
Furthermore, our Constitution provides in section 65 (1) “that every person has the right to fair and safe labour practices and standards and to be paid a fair and reasonable wage”. Is it then fair to arbitrarily terminate a contract on notice without any fault, without any package? This judgement did not even bother to consider the fairness of such a decision.
Section 46 of the Constitution allows our courts to take into consideration international law. The International Labour Organisation’s (ILO) Convention on Termination of Employment, 1982 provides in article 4 that “the employment of a worker shall not be terminated unless there is a valid reason connected with the conduct or capacity of the employee or for operational requirements. In article 10 it provides for payment of adequate compensation if there is unjustified termination. The ILO’s Philadelphia Declaration in 1948 ascertained that ‘Labour is not a commodity’”. This means workers are human beings and so cannot be compared to products that you can modify at any time.
An analysis of the Supreme Court’s previous interpretation of important labour matters reveals that the Court favours capital interests when assessing damages as an alternative to the reinstatement of an unlawfully dismissed employee. Section 89 (2) (c) (iii) of the Labour Act Chapter 28:01 provides that if an employer refuses to reinstate an unfairly dismissed employee, punitive damages must be paid to the employee. The Supreme Court has been reluctant to award punitive damages against an employer who elects to use its economic power to buy an employee out of employment. The Court set the precedent that the employee must look for alternative employment and mitigate his or her loss. The employee must prove that he or she diligently looked for alternative employment. If the employee fails, the damages will be reduced.
In the case of Olivine Industries Pvt Ltd v Nharara SC88/05, the Supreme Court ordered a deduction from the employee’s damages, an amount earned by the employee from selling tomatoes. As a result, most employers no longer reinstate an unlawfully dismissed employee opting to buy him or her out of employment. The Supreme Court placed the burden on the worker while the culprit that broke the law by firing the employee is smiling.
The following among others is a summary of the implications of the Supreme Court decision to our society:
It creates uncertainty, or insecurity as to the duration of employment.
As workers lose their jobs en masse, government is going to lose revenue in the form of Pay as You Earn (PAYE) and will obviously fail to meet its operational requirements as well as meeting social services.
As PAYE is depleted, the Value Added Tax will also be eroded as workers will not have disposable income.
The same industries are going to suffer a low demand of goods as disposable income dwindles due to loss of jobs.
Pensions Schemes both private and public will be affected as workers lose their jobs.
A lack of access to social protection and benefits usually associated with full-time employment has been lost.
The decision undermines collective bargaining as workers representatives and trade unions are undermined, lose membership, become weak, thereby tilting the bargaining power to the employer.
The general condition of fear and insecurity also dissuade workers from joining trade unions, leaving them even more vulnerable to precarious work arrangements.
Communities will also be in unstable and insecure situations, disrupting their life planning options and as large numbers of people are unemployed, social unrest may occur in the country, including criminal activities.
This is a recipe for political instability as disgruntled workers will turn against their government for failure to protect them. The Arab Springs is such an example.
Gender segregation is also part of the system. Women have historically suffered workplace discrimination which includes sexual harassment. Failing to protect jobs will be perpetuating discrimination.
The entire labour dispute machinery including the Labour Court and the Supreme Court have been indirectly closed as no sane employee will choose to go to court with such matters.
As large numbers of people lose employment and industry is closed, the state has an obligation to provide for their needs and if it fails, it is digging its own grave.
The judiciary must use human rights instruments as tools of interpretations and stop compromising state security by throwing people on the streets. Government must also wake up and protect workers, otherwise another industrial revolution is in the making.
l Zakeyo Mutimutema is a Labour Law expert with a Masters Degree in Labour Law from the University of Cape Town (UCT). He is also an advisor to the Zimbabwe Congress of Trade Unions.