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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