WHAT a legacy to leave behind!
History like law has a long arm and will catch up with our judges. Justice is defined as a just conduct, fairness.
By Moses Tshimukeni Mahlangu
We come from intense lobbying by Finance minister Patrick Chinamasa and Reserve Bank of Zimbabwe governor John Mangudya, Zimbabwe Revenue Authority boss Gershem Pasi and business for productivity linked wages and liberalisation of the labour market. The intended arm twisting dismally failed.
The Tel One case where 2000+ workers were sentenced to death by the Supreme Court. Statistics point to a grim picture of these workers who have been decimated by stress related conditions and abject poverty. Going by the generally accepted family of six (2 000 x 6 = 12 000) 12 000 souls either dropped out of school, lost a bread winner, could not afford food stuffs, medication, school fees and other.
Back to the D-Day case; Don Nyamande and Kingston Donga vs Zuva Petroleum (Pvt) Ltd, Judgement No. SC 43/15/Civil Appeal No. SC 281/14
Section 16(1) of the Labour Act, Chapter 28:01 provides; “ The employment of such persons shall unless lawfully terminated, be deemed to be transferred to the transferee of the undertaking in terms and conditions which are not less favourable, than those which applied immediately before the transfer and the continuity of employment of such employees shall be deemed to have not been interrupted.”
Issues that jump to the fore in the case under review are; (a) The transferor did not lawfully terminate Applicants before the transfer and therefore transferee cannot subject continuity of employment to retrenchment. Applicants were justified in refusing to be retrenched as this was not only making their conditions worse, but bringing an end to their livelihood.
Common law argument
Case law is developed by courts and tribunals in the course of dealing with cases and interpreting statutes. Judges make decisions based on the facts of a given case guided by precedence. Put differently, case law derives from decisions made by judges over time.
The Supreme Court bench of five was at pains to explain how the terms termination and dismissal mean two different things. However, definitions by the Precise Oxford Dictionary demystifies what the bench would want us to view as big issues.
Below are the definitions of terms revolving around or meaning dismissal
Termination: an act or instance of terminating, an ending, make an end
Notice: an intimation or warning especially a formal one, to allow preparation to be made , a formal announcement or declaration of intention to end an agreement or leave employment at a specific time – notice must give adequate time.
Termination by notice would therefore (in its literal meaning) refer to making an announcement to make an end or terminate a contract of employment, nothing more, it is not a method of partying ways.
Dismiss: is to send away, cause leave of ones presence, discharge from employment,
Dismissal: therefore is discharging from employment,
Retrench: reduce the amount of, cut down expenses,
Retrenchment: reducing employees for purposes of cutting down expenses,
Redundant: superfluous, not needed, can be omitted without any loss of significance, no longer needed at work,
Redundancy: rendered insignificant,
If constructive dismissal can be inferred from the employer’s conduct, what more the blatant so called termination by notice, with no reasons given for that matter.
Law lecturer Alex Magaisa makes interesting observations regarding the case under review; he sees victory for neo liberalists, whom he suggests will even be surprised at getting more than their share of the pound of meat. There is a marked shift from the pre- independence Marxist-Leninist ideology to the neoliberal thrust. This was confirmed, by the introduction of the Economic Structural Adjustment Programme (Esap) of the 1990s.
Human beings, the workers, are not commodities to be used, manipulated and then dumped. In dealing with mankind, there is need for common standards offairness, decency, social justice and public interest.
In this case, Zuva Petroleum Pvt Ltd interest is inferior to the greater public interest, the workers of Zimbabwe. The Supreme Court bench could have thought they were dealing with two employees, when in fact the judgement has a ripple effect not only on ordinary workers. The Ministry of Labour, the law firms, arbitrators and labour consultants have been given marching orders to oblivion.
The Labour Act is shredded and thrown into the dust bin as it were.
Over decades, our labour law has been protective to the workers for good reasons. The dynamics of power favour the employers, hence attempts were made to establish interventions like collective bargaining, dispute resolution mechanisms. This was an acknowledgement that, left to their own , employers would bash workers as what has happened in less than a week.
For some time now, there has been calls for an Appeals Court, for labour matters. The argument for such an institution is based on the realisation that judges of the High Court and by promotion, those of the Supreme Court and of late the Constitutional Court bring to the bench an adversarial attitude of the criminal court. There is need for a paradigm shift by way of training judges to handle labour matters without being adversarial in approach.
Magaisa views the reasoning of the Supreme Court in the case under review as shocking, so dry, mechanistic and utterly devoid of context.
The highest authority in the universe, God’s word, the Bible advises that justice must blend with mercy and fairness. Section 2A(1)(a) describes the purpose of the Act as to advance social justice and democracy at the workplace by giving effect to the fundamental rights of employees provided for in Part II (e) The promotion of the participation by employees in decisions affecting their interests in the workplace.
Termination by notice as elaborately expounded by the Supreme Court does not comply with the tenets of the purpose of the Labour Act, Chapter 28:01. As I was drafting this article, at around 5:15 pm on Wednesday, I received a call from an employee of one of the parastatals.
This employee was sobbing as she narrated her ordeal. She had her contract of employment terminated by notice summarily. Her salary arrears and notice pay would be staggered up to August hopefully.
Workers are already stressed up owing to economic challenges, non or late payment of salaries. In addition, terminations just drop from nowhere.
Employment has been rendered uncertain and unstable, leading to possible social, political and other health breakdowns.
When an employee losses a job, the experience resembles that of a death or life sentence in terms of livelihoods.
What is boggling the mind is the extent to which the legislature was elaborate in Sections 12, 12A, 12B, 12C of the Labour Act and yet these tedious processes can be taken away at the stroke of a pen by the Supreme Court bench.