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However, the going has not been easy for the companies ever since the Labour Court ordered troubled Air Zimbabwe not to lay off nearly 500 workers. The Court ruled that the airliner had not followed proper procedure, particularly Section 12 C of the Labour Act that deals with retrenchment.
Many other employers flouted procedures and failed to lay off their workers. In November last year, the Labour Court declared the Cotton Company of Zimbabwe’s retrenchment of 62 workers illegal, and ordered their immediate reinstatement. PG Zimbabwe Industries is currently seeking to lay off about 50 workers, while 35 who were laid off last year after closure of PG Auto-glass are yet to be paid their retrenchment packages.
The issue of payment of the packages is before an arbitrator who will determine the period over which the money can be paid. PG Industries wants to pay the packages over a period of three years, while the workers want to be given a once off payment. Some workers have also been embroiled in disputes with employers for terminating their contracts without, or at short notice.
Twenty-five workers who were employed by Cresta Lodge are up in arms against the hospitality concern following termination of their contracts on December 31, 2011. Some of the workers served the company since 2008 and had their contracts renewed after three months. On July 1, 2011 they signed a six months contract valid till December 31. However, they were notified of the subsequent termination of their contracts on
December 1, 2011. This brings about the questions: What is dismissal according to the Labour Act? What is retrenchment?
Dismissal is dealt with by Section 12 B of the Labour Act. Every employee has the right to be fairly dismissed from employment. An employee is unfairly dismissed if the employer fails to show that he dismissed the employee in terms of an employment code.
In the absence of an employment code, the employer should comply with the model code made in terms of the Labour Act. An employee is deemed to have been unfairly dismissed if he/she terminates the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the worker. If, upon termination of an employment contract of fixed duration (like in the Cresta case) the employee had a legitimate expectation of being re-engaged, it is deemed unfair dismissal. If an employer engages another person to fill a position of a worker whose contract has not been renewed, it also amounts to unfair dismissal. In any proceeding the adjudicating authority should take other issues into consideration, in addition to considering the nature or gravity of any misconduct on the part of the dismissed employee.
The adjudicating authority during mitigation should consider whether any misconduct can justify alternative action other than dismissal. This includes the length of the employee’s service, previous disciplinary record, nature of the employment and any special personal circumstances of the worker.
When it comes to retrenchment, an employer who wishes to retrench five or more workers within six months shall give a written notice of his intention to the works council established for the undertaking.
If there is no works council established for the undertaking – or if the majority of the employees concerned agree to such a course – the employer gives notice to the employment council established for the industry. If there is neither of the above, the employer should give notice to the Retrenchment Board.
It is important to note that functions of the works or employment councils should be construed as a reference to the Retrenchment Board, or a person appointed by the Board to perform such functions on its behalf.
The employer should also provide details of every worker to be retrenched and of the reasons for the proposed retrenchment.
A works council or employment council to which notice has been given shall forthwith attempt to secure agreement between the employer and employees concerned or their representatives.
This is as to whether or not the employees should be retrenched and – if they are to be – the terms and conditions on which they may be retrenched.
If, within a month after receiving notice from the employer, an agreement is secured between the employer and workers concerned or their representatives on the matters referred to above, it shall send the employer its written approval of the retrenchment of workers concerned in accordance with the agreement.
A copy of the approval should then be sent to the Retrenchment Board.
If an agreement is not secured between the employer and workers concerned within one month or their representatives, the matter shall be referred to the Retrenchment Board.
This is through sending the Retrenchment Board written notice of the disagreement, together with copies of all documents which the employer and employees concerned may have submitted to the works or employment councils.
Copies of minutes of any proceedings and deliberations should also be included. No employer should retrench any worker without affording the employee the notice of termination of which he/she is entitled.
The Retrenchment Board shall consider any matters that are referred to it and within two weeks recommend to the Minister of Labour in writing whether or not the proposed retrenchment should be permitted.
If so permitted, terms and conditions upon which it should be effected should be specified.
The Retrenchment Board may in its discretion invite and receive representations – whether written or oral – from any interested parties. If the Retrenchment Board fails to make a recommendation within the specified period, it should forward all documents in the matter to the Minister, who shall give a decision.
The Minister shall consider without delay any recommendation submitted to him by the Retrenchment Board, before approving the proposed retrenchment, subject to such terms and conditions, as he may consider necessary or desirable to impose.
The Minister may refuse to approve the proposed retrenchment, and in so doing paying due regard to the consideration that the retrenchment of the workers should be avoided as far as possible. It is where this can be done without prejudicing the efficient operation of the undertaking in which the workers concerned are employed.
There should also be considerations that the consequences of retrenchment to employees should be mitigated as far as possible. This is in particular the workers prospect of finding alternative employment and the terminal benefits to which they would become entitled.
Section 12 C of the Labour Act has been criticised by several Government Ministers including Tendai Biti, Welshman Ncube and Nicholas Goche as making difficult – if not impossible – to retrench workers.
leeroy