Several international human rights instruments embody the rights of workers but more particularly, the International Labour Organisation (ILO), a United Nations Body created in 1919 is tasked with the obligation to promote industrial relations and to set international standards so as to curtail unfair competition and to protect vulnerable employees among others.
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In terms of the ILO standards, retrenchment is covered under the Termination of Employment Convention, 1982 (No.158) and Termination of Employment Recommendation, 1982 (No.166) Article 4 of the convention provides that, “the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service”.
This provision makes it mandatory for the employer to justify that there is a real need to terminate a contract through retrenchment and such reason has to be valid and it must be based on the operational requirements of the business.
The justification is done to the employees or their representatives and to government to satisfy them that there is a genuine reason to take such a measure.
According to article 13 of the convention, the employer is compelled to provide workers’ representatives in good time with relevant information as to the reason for termination, the number of workers and categories of workers likely to be affected, the selection criteria, period the retrenchment is intended to be carried over and any major changes in production that may result in termination of employment.
The details must be communicated to the workers’ representatives as early as possible to give them enough time to consult their members so as to avert the termination of employment and to adopt measures to mitigate the adverse effects of the retrenchment.
The duty to consult is not mere formality, but should be able to influence on the decision taken or proffer alternatives to what is intended.
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Transparency is a major element during consultations in order to satisfy the employees or their representatives that there is a genuine concern. There is also a duty to notify the competent authority which is the government (article 14).
Parties are required to avert or minimise as far as possible termination of employment. Government has a duty to assist the parties in seeking for a solution to the problems raised before terminating the employment.
The measures to avert or minimise retrenchment includes recruitment freeze, spreading the workforce, reduction for a certain period of time to allow for natural reduction, internal transfers, training and retraining, voluntary early retirement with appropriate income protection, restricting overtime, reduction of working hours, work sharing, redeployment, transfers, placement in suitable employment with other employers, allowing employees on notice time to look for alternative employment etc. Where employees are to be retrained, they should be given some income protection during any period of training like reimbursement of costs and mitigating costs of relocation. Government should consider providing financial resources in implementing this measure.
According to paragraph 23 of the recommendation, the selection of employees to be retrenched must have been made in advance, giving due weight to both the interest of undertaking and workers. The criteria must be objective in order to avoid arbitrary decision and discrimination and ensure those workers’ representatives are not arbitrarily dismissed.
An abridged version of article by Zakeyo Mutimutema. Mutimutema is a Labour Law Expert and Legal Advisor to the Zimbabwe Congress of Trade Unions.
