Employees appeal against ruling

Daniel Nemukuyu Senior Court Reporter—
Two Zuva Petroleum managers, Mr Don Nyamande and Mr Kingstone Donga, have filed an appeal at the Constitutional Court challenging the Supreme Court judgement allowing employers to terminate workers’ contracts on notice. A number of workers from different companies thronged The Herald yesterday with letters from their management telling them not to report for work anymore because their contracts have been terminated.

The Associated Newspapers of Zimbabwe, publishers of the Daily News, took advantage to fire 11 journalists and other supporting staff using the same ruling.

The journalists fired were Lloyd Mbiba, Thelma Chikwana, Margret Chinowaita, Wendy Muperi, Ray Matikinye, Kudzai Chawafambira, Godfrey Mutimba and Nyasha Chingono.

Sub-editors who were booted out were Sandra Mtetwa, Lizzy Miller and Albert Masaka.

A letter written to the journalists and signed by general manager human resources Vongai Makombe indicated that their contracts as read with section 12(4) of the Labour Act required the company to give them three months notice to terminate their contracts.

CFI Holdings fired close to 100 workers at its various subsidiaries, including Farm and City, Agrifoods and Hubbard on the same basis.

Highveld Seeds served at least 21 workers in the same fashion, while Mike Appel Organisation fired 25.

In the case of Mr Nyamande and Mr Donga, they are now challenging the constitutionality of the law relied upon by the Supreme Court in throwing out their appeal.

They are represented by their lawyers Matsikidze and Mucheche law firm.

Chief Justice Godfrey Chidyausiku and four others, sitting as the Supreme Court’s full bench, last week dismissed an appeal by Mr Nyamande and Mr Donga on the basis that the common law rule that places the employer and the employee on an equal footing was still valid.

The court held that Section 12B of the Labour Act did not abolish the common law position, hence the employer had the entitlement to terminate employment on notice the same way workers do whenever they leave employment.

Since Friday, over a thousand workers lost employment on notice, a development that has been widely condemned by legal and labour experts as workers went home empty-handed after serving companies for many years.

In the notice of appeal filed at the Constitutional Court yesterday, Mr Nyamande and Mr Donga’s lawyers argued that the Supreme Court erroneously ruled without seeing copies of contracts of employment between the two managers.

“The Supreme Court erred in law in such a fundamental respect as to deny the appellants the benefits of law granted to them by Section 56 of the Constitution, particularly in that:

“It (Supreme Court) erred by upholding the Labour Court judgement on the basis that the appellants’ contracts of employment provided the respondent as employer with a common law right to terminate their contracts of employment when such contracts were conspicuously not available in the Labour Court and consequently not in the Supreme Court record despite the fact that before the arbitrator, appellants placed respondent on the strictest proof to prove the bare and unsubstantiated allegation that their contracts purportedly entrenched termination on notice by the employer but the employer failed to do so.”

The lawyers argued that the court ought to have considered the fact that the underlying cause of the termination of the appellants’ contracts of employment in respect of the two managers was retrenchment and Zuva Petroleum had to abandon the retrenchment route it had already initiated.

It was argued that the court could have found that termination on notice violated the purpose of Section 2A of the Labour Act as read together with the provisions of International Labour Organisation Convention 158 which stipulates that termination should only be done when there is a valid cause.

The lawyers further argued that Supreme Court violated Section 3 of the Constitution.

“The Supreme Court erred in law and infringed Section 3 of the Constitution in reviving a common law rule that last had application more than 30 years ago without first developing the common law under Section 176 of the Constitution of Zimbabwe, 2013,” reads the grounds of appeal.

The Supreme Court, the lawyers argued, erred by not applying Section 5 Statutory Instrument 15 of 2006 that prohibits termination on notice because it infringes Section 56 of the Constitution.

It was argued in the papers that the court applied a non-existent rule of the common law, thereby infringing the duo’s rights enshrined under Section 56 and 65 of the Constitution of Zimbabwe.

The Court, the lawyers argued, erred when it concluded that Section 12B of the Labour Act does not prohibit termination of employment on notice.

The pair wants the Constitutional Court to quash the judgement of the Supreme Court and to declare it unconstitutional.