By Fidelis Munyoro
The statutory changes in labour law made in 2015 after a large batch of workers were dismissed on notice override the common law enunciated in the Zuva Supreme Court judgment of that year, and override it retrospectively, and permanent staff fired then on notice are deemed to be protected and must be reinstated or compensated, the Supreme Court has confirmed.
The ruling will see nearly 400 Air Zimbabwe permanent workers who were fired on simple notice procedures being reinstated automatically or the employer forced to pay damages in place of reinstatement.
The judgment confirmed that the Labour Amendment Act No 5 of 2015 did give more protection to permanent contract workers who can no longer be simply dismissed by an employer giving notice, usually three months notice, and critically gives this protection retrospectively, so those fired between the Zuva judgment and the enactment of the amendment were also protected.
Nearly 400 employees of Airzim were terminated on notice but through their lawyer, Mr Caleb Mucheche, successfully contested their case at the Labour Court, which gave the employer a 60-day ultimatum to either reinstate or pay damages to its fired workers whose contracts were unlawfully terminated on three months’ notice in 2015.
It was the Labour Court’s finding that although Airzim terminated the contracts in the spirit of the Zuva Petroleum judgment of July 17, 2015, Section 24 of the Finance Act Number 8 of 2015, gave retrospective effect to the Labour Amendment Act, Number 5 of 2015.
The affected workers had greatly benefited from the legal protection brought about by the action of the Government and Parliament of Zimbabwe through retrospective enactment of Labour Amendment Act No. 5 of 2015 in August 2015 but backdated to apply from 17 July 2015.
Dissatisfied by the ruling, Airzim approached the Supreme Court challenging the Labour Court decision ordering it to reinstate nearly 400 workers whose contracts were terminated just on notice back in 2015.
However, a three-judge panel comprising Justices Paddington Garwe, Susan Mavangira and Nicholas Mathonsi threw out Airzim appeal on the basis that it was misdirected.
Writing the judgment for the court, Justice Garwe said the Labour Court only amended the order in the case brought to it to make it acceptable in terms of the law.
“At the end of the day, therefore,
the order granted by the court a quo was one within contemplation of the labour officer, the amendment having been made merely to ensure that the confirmed order accorded with the dictates of the law,” he said.
“I am of the considered view in light of the above sentiments that the changes effected by the Labour Court were indeed amendments and that they cannot by any stretch of imagination, be termed a substitution.”
He said the appeal was without merit as the amendments effected by the Labour Court in the process of confirming a draft ruling by a Labour officer were completely consistent with law, which allows confirmation “without or with amendments”.
The Labour Amendment Act outlawed arbitrary termination of employment on notice and set the parameters for such termination should be done. The new law only allows termination on notice in circumstances where one is employed on a fixed contract basis or has consented to the termination of contract.
Several private and State-linked firms dismissed thousands of employees on the strength of the Zuva judgment, prompting Government to intervene.
Government amended the Labour Act — albeit without wide consultations — in a bid to stem the arbitrary dismissal of workers on the strength of a court ruling that uncovered a right on employers that everyone had assumed no longer applied and had not been used for decades.
Thousands were fired after the July 17, 2015, Supreme Court ruling.
The arbitrary action saw employers’ representatives taking Government to court challenging various sections of the amended legislation including that which compels them to compensate workers dismissed on three months’ notice without a retrenchment package as permitted by a July 2015 Supreme Court ruling.
Business was also accusing Government of ignoring the concept of equality when the Labour Act was amended. The Herald