Chidyausiku judgement juxtaposed with justice, fairness and equity

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Pursuant to the author’s article of last Friday entitled; “Court Presides Over The Death Of Workers’ Rights”, a further analysis of the said judgement continues.

Pursuant to the author’s article of last Friday entitled; “Court Presides Over The Death Of Workers’ Rights”, a further analysis of the said judgement continues.

Was the judgement in protection of the public policy, public interest, justice, fairness and equity?

Public policy seeks to protect declared State objectives that relate to among others health, morals, and well being of the citizenry. Was it in the interest of public policy to sacrifice hard won workers’ rights on the altar of a once upon a time common law?

From a public interest perspective, the judgement serves selfish interests of business at the expense of impoverished workers.

Fairness implies a proper balance of conflicting interests. On the other hand justice implies an exact following of a standard of what is right and proper

●Equitable refers to a less rigorous standard than just, usually suggests equal treatment of all concerned

● Impartial stresses an absence of favour or prejudice

● Unbiased implies in an even stronger manner an absence of all prejudice

● Dispassionate suggests freedom from the influence of strong feeling and often implies cool or even cold judgment

● Objective refers to a tendency to view events or persons as apart from oneself and one’s own interest or feeling

● Upright implies a strict adherence to moral principles

● Honest stresses adherence to virtues like truthfulness, candor, fairness

● Just stresses conscious choice and regular practice of that which is right or equitable

● Conscientious and scrupulous imply an active moral sense governing one’s actions and painstaking effort to follow one’s conscience

● Honourable suggests a firm holding to codes of right behaviour and the guidance of a high sense of honour and duty

An honourable person will make a difficult yet honourable decision. A conscientious and scrupulous individual will train his moral sense to govern all his actions and painstakingly follow his conscience.

In order to attain or arrive at the above mentioned attributes, one needs to be connected to God who is love and source of wisdom. The far reaching nature of Chief Justice Godfrey Chidyausiku’s judgment called for a balance approach and casting the research net far and wide. The Labour Act, the Constitution, International Labour Organisation (ILO) Standards and Conventions needed to be consulted widely before making such a watershed decision.

Section 13 of the same Act, captures for you routes to ending an employment contract i.e. dismissal or the employment is otherwise terminated. This points to the fact that termination by notice (simply a notification, own emphasis) is subject to dismissal procedures. It is further intriguing to note that the Supreme Court bench of five unanimously concurred with Chief Justice Chidyausiku in such a critical and defining case.

Two assumptions are a possibility to these I do’s, namely, the bench was whipped into line, alternatively, the learned judges were influenced by neoliberal considerations or their own interests as new employers, the new farmers.

Again Alex Magaisa had no kind words for the bench. In his view, the bench spent good time splitting hairs by suggesting that termination by notice is different from dismissal. This is with all due respect flawed reasoning according to him.

● Narrow interpretation

Any form of divorce from an employment relationship is dismissal or resignation. The bench over looked the right to natural justice. How on earth can the employer be allowed to terminate employment without giving reasons, at the same time be enabled to dictate terms of such parting.

This further leads to the principle of public interest. In this instance workers interest is superior. Imagine a situation where management wanted to maintain their mega salaries — they will simply terminate off poor workers who are now bereft of any recourse.

Section 65(1) of the Constitution gives workers a right to fair and safe labour practices and standards. In the circumstances, it cannot be a fair labour practice to dismiss an employee willy nilly, without giving valid reasons. Section 2(2) and 45(2) of the Constitution are even more emphatic :- “The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all Executive, Legislature and judicial institutions and agencies of government, at every level and must be fulfilled by them” — the Supreme Court bench is not an exception to this provision.

Another area of concern to Alex Magaisa is the rigidity shown by the bench in reference to the common law. Law sources change and progress over time. Instead of being blinkered, the bench was expected to develop the common law into taking aboard provisions penned in the Labour Act and the Supreme Law, the Constitution.

The law must not be cast in stone, it must be progressive. In the case under review, the bench became prisoners of their case law, when their hands were unfettered. Courts are at liberty to upgrade and develop the common law especially the Supreme Court with its liberty to review own decisions.

● Cross roads

It is evident beyond any reasonable doubt, that the bench has become advocates of neoliberalism. The Zanu PF manifesto during the 2013 general election was among other things promising to create two million jobs within the next five years. Chief Justice Chidyausiku’s judgement seems to rubbish this promise and so are Industry minister Mike Bimha’s remarks when he suggests that the Labour Act is unfair to business. Progressive requisites for terminating employment:-

● The employer must act reasonably

● The employer must have a fair reason for the termination Zimbabwe Congress of Trade Union in its Press release, highlights the following resolutions by its top leadership

● Implore the State President to invoke the Presidential Powers Temporary Measurers to reverse Chidyausiku’s judgement

● Preparedness to stage demonstrations until this diabolic judgement is stayed and its effects reversed

● To lobby for the boycott of all Zuva Petroleum filling stations and its sister businesses

● Blacklisting all hostile law firms

Accolades to Labour minister

The Chronicle and the Herald were the first to sound the Battle cry. The Herald continued with the condolences on the death of workers rights. On 21/07/2015, it was headlined “Ruling Triggers Fierce Job Losses” and the following day it ran the heading “Court Ruling Costs 700 Jobs in 5 days” this slates to 140 job losses per day and this is likely to upsurge once business realised that perpetrators of this heinous onslaught go unpunished.

The minister of Labour, Prisca Mupfumira who is also acting minister of Information has been with workers at their night vigils over the demise of their rights. It is no coincidence that the State media houses resonate with her sentiments as Minister of Labour.

She challenged businesses or managements to put themselves in the shoes of somebody who has worked for 20 or 25 years and suddenly without any reason, is told in three months you are off or immediately. She promised that government will take appropriate action.

Workers hopes are now pinned on the Almighty Lord, who is able to influence either the Executive or Parliament to take remedial action. God is the final arbiter.