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Landmark ruling says 3-month notice dismissals unlawful

By Daniel Nemukuyu

Thousands of workers who were fired on three months’ notice without their consent after the 2015 Zuva Petroleum judgment, are now entitled to reinstatement or payment of damages after the Labour Court ruled that they were unlawfully dismissed.

File picture of construction workers on a break
File picture of construction workers on a break

In a landmark judgment, the head of the Labour Court bench Justice Gladys Mhuri, ruled that the Labour Amendment Act (Number 5 of 2015) applies in retrospect to cover all those who lost their jobs from July 17 2015.

The judgment was handed down in a case in which an independent arbitrator, Ms Faith Mupangani, was seeking confirmation of her decision that ordered the reinstatement of seven workers fired on notice by the National Handling Services (NHS) Private Limited.

The amendment in question spells out four grounds on which employment can be terminated. Section 12 (4) (a) of the Act reads: “No employer shall terminate a contract of employment on notice unless: ” a) The termination is in terms of an employment code or in the absence of an employment code, in terms of the model code made under Section 101(9) or b) The employer and employee mutually agree in writing to the termination of the contract; or c) The employee was engaged for a period of fixed duration or for the performance of some specific service; or d) Pursuant to retrenchment, in accordance with Section 12 (c) (retrenchment).

In terms of that law, for termination on notice to be effected, there has to be consent from the workers and the parties have to agree on a retrenchment package or compensation.

NHS had opposed the workers’  challenge arguing that the company could not have complied with the law that was not yet in existence at the time of termination.

However, Justice Mhuri ruled that Section 18 of the Finance Act clearly brings the law backwards to cover those who were fired before the Labour Amendment Act Number 5 of 2015.

“This provision, in my view, is very clear and unambiguous. It applies to terminations of contract on notice, which were done on or after the 17th of July 2015.

“These terminations were therefore affected by Section 12(4) (a) which section prohibits termination of contracts on notice unless they fall under the four scenarios provided in Section 12(4) (a).

“In view of the retrospective application of Section 18 of the Finance Act Number 8/15, the argument by first respondent that it could not possibly comply with a law which was not yet in existence, is without merit,” the judge ruled.

To that end, Justice Mhuri ruled that the terminations constituted unlawful dismissal, hence an order for reinstatement or damages in lieu of reinstatement.

The judge held that Section 12(C) of the Labour Act, which provides for compensation, does not apply to those who were unlawfully terminated on notice, hence payment of damages or retrenchment was the best way to go.

“The remedy for unlawful dismissal is reinstatement or payment of damages in this case. This is because Section 12 (C) of (the Labour) Act 5 of 2015 which provides for compensation does not apply in this case.

“The Section applies to those employees whose contracts of employment were terminated pursuant to Section 12 (4) (a) (four grounds outlined above),”the judge ruled.

Justice Mhuri ordered the reinstatement of the seven NHS workers or payment of damages within 45 days of the court order.

“Within 45 days of this order, first respondent (NHS) shall reinstate second to eighth respondents without loss of pay and benefits.

“If reinstatement is no longer possible, first respondent is ordered to pay second to eighth respondents damages which the parties are to negotiate and in the event of a deadlock, the parties are to approach the applicant (Arbitrator) for quantification,” reads the judgment.

National Airways Workers’ Union (NAWU) vice president Mr Elijah Chiripasi, welcomed the development saying the court had correctly interpreted the law.

“NAWU welcomes the development. Justice Mhuri, who heads the Labour Court bench, has correctly interpreted the law.

“The judgment is in line with the Zimbabwe Agenda for Socio-Economic Transformation (ZimAsset). President Mugabe is on record expressing concern over the way thousands of workers were treated after the Zuva judgment,” said Mr Chiripasi. The Chronicle

  • kana vanhu vanetsa varume batai vanhu

  • Labour issues are stubborn the workers!!

  • Icho!

  • And I keep on reminding some of my friends that Chimisa was no genious in this case.Many may eulogise him all they want, but this was a clear conflict of interests.The prime duty of Parliamentrians is their legislative role.He is a lawmaker.

    The Movement for Democratic Change is a labour party.These are its roots, this is the origin of the MDC.Chamisa’s role in representing Zuva petroleum against the two managers was simply an appalling disdain.As a parliamentarian, he could have addressed the loophole in that piece of legislation through a substantive motion.In order to effect a debate that could result in the ammendment of law.Instead he chose to make money for himself at the detriment of the people.That is where the conflict is.Corruption is an economic cancer that disproportionately impacts those least capable of absorbing its malignancy.As people languish in poverty the aftermath of job losses, the Zuva lawsuit remains one of the prime examples of how corrupt these politicians can be.

    • Very true, actually he disappointed a lot of people who had faith in him!! This is one thing that is going to haunt him for the rest of his political carrier!!!

  • So what

  • Sometimes companies are justified to fire without notice some workers are a big problem at work always inciting and stubborn and rude to managers.Thats why if you notice when that 2015 Supreme Court ruling gave power to companies to terminate employment without notice, most companies targeted those stubon, talkative rude individuals for dismissal. Leave Chamisa alone.Nelson Chamisa is a lawyer, s very good lawyer who put his facts and arguments very well.Pasi ne ma stubbon workers, pasi navo!

    • We said a conflict of interests.Party interests vs personal interests.People who voted you into power versus Zuva whose major shareholding is held by ZANU pf members.Now that’s the ethical dilemma we are talking about.He is simply corrupt.As a matter of fact he did resigned from that position because as people we put enough pressure.

    • What do you mean by stubborn, most companies took advantage of the ruling and fired those who served with them for too long, sparing new joiners.

    • Munya Chikanga sometimes kunyarara kwakangonaka.I have noticed you’re an attention addict and you post stupid things to get it.This is not the time for your attention seeking.Hard working people were cheated out of their dues because of that dubious ruling, never forget that.

    • He is ridiculous.Companies have strict policies which are enforced by both procedures and ethics.If one has to be terminated , there should be chain of disciplinary processes which includes coaching first before termination.

      Chamisa did not have to be a good lawyer in that case.He needed to be a good law maker which is his primary duty as a parliamentarian.I explained it easily that, by choosing to be a lawyer it means he had to let down the people who voted him.Instead he could simply have submitted a substantive motion to amend the act.Zanu pf did that amendment .Now they look like heroes.It was a conflict of interests sir.

    • I agree Tinashe.Chamisa wasn’t looking at the bigger picture.All he saw was a chance for the rural Masvingo boy to shine.

    • Let’s call it self interest.”a rural Masvingo boy” is deregatory.

    • masvingo yava nguva yenyu kkk remember ana bushu nana binga went thru this for years its yr time kkk hanzi indava kuwanza chibharanzi semunhu wekumasvingo kkk nekudzidza kwenyu ikoko

    • We are simply trying to focus on calling the problem Wizzy Zvoushe.Don’t be listen to the ghost account above.I like the way you think already.But let us not give them a chance to think that our sentiment is natural, but instead it reasonable based on promises and expectations.

    • Ndimi maboss asingadi kubhadhara pedzozvo moti maworkers ari stubborn.Of course vanotsamwa kana musingavapi mari. Ipa vanhu mari

  • This is unprofessional at its best wy make ppl safa vamwe vakatofa ne stess and kuti mhuri yakasara ipiwe Mari iyyo vanofamba bhutsu dzikapera make long lasting decisions that are tu the workers advantage aaa

  • Capitalist employers in trouble now payback time

  • Mukanya

    The sell-out judgement of the late Chidyausiku is now haunting him, though it contributed to heroship status!!!

  • Elections are on the way. Your worst enemy has the best gift for you.Does it help going to a workplace where you get paid after 6 months? Tell us Cdes.Better if they had given these people land in Mazowe.That would have made a difference.Unganzi dzokera kubasa kuZisco iyo yakavhara muna 2000 zvine musoro here? Funga.

  • Who are directors at Zuva? Why is it that judgment smelled apolitical?

  • Mr Munya you sound so perfect.All workers are entitled to lay complaints if they feel victimised.Often its the official that it was reported to is abusive.

  • These workers must move on.Zuva had won their case so their will be appeals and appeals until donkeys grow horns

  • Sounds very fun

  • This is zimbo for you one thing is legal today and sounds good but tomorrow the same thing is illegal and it sounds horrible. Simply becoz election time is nearer but soon after everything will change.even the most trusted cadres will sturb us on the back coz we are poor

  • zim a real circus, why such a funny judgment waited for a few months before elections

  • How can a lower court over rule a higher court? Labour court vs constitutional court….

  • Stupid.How can a labour over rule a superior court’s judgment?
    More politics than legality here