Chronicle Editor
Davies Ndumiso Sibanda, Labour Matters
SINCE the coming into force of the New Constitution of Zimbabwe on 22 May 2013, women’s maternity leave rights continue to be violated by many employers under the guise of complying with the Labour Act Chapter 28:01 or using the misplaced argument that the Labour Act has not been aligned to the Constitution.
As a result, they say, there is no need for them to comply with Constitutional provisions on maternity leave rights.
The delay in alignment of the Labour Act with the Constitution, has been used as an unethical and illegal cover by employers to avoid granting pregnant women maternity leave rights and sadly, female lawyers and women rights groups have remained silent.
The argument that until the Labour Act is aligned to the Constitution related Labour Act provisions are not applicable is not correct.
The Constitution of Zimbabwe is express on maternity leave rights applicable with effect from 22 May 2013 when the new Constitution became law. Section 65(7) of the Constitution reads, “Women employees have a right to fully paid maternity leave for a period of at least 3 months.”
This provision carries no ambiguity and it kicked in in 2013. Simply put, from that date all maternity leave is paid irrespective of the nature of the employee’s contract.
Any employee who went on maternity leave from 22 May 2013 was entitled to fully paid maternity leave irrespective of what the Labour Act Chapter 28:01 says. Further the once every two years maternity leave provisions and limit of three children also fell away on the same date.
Some employers have held on to the provision in section 18(1), which says the employee should serve a year before qualifying for maternity leave.
Such approach is wrong and an unethical means of creating savings on maternity leave costs. It damages the image of the human resources practitioner and the organisation.
I do not believe such abuse of pregnant women is about ignorance of the law as the Zimbabwe Constitution in section 2(i) reads, “This Constitution is the Supreme Law of the Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistent.”
Simply put, it means that all existing labour laws remain in force but must be construed in conformity with the Constitution.
This position is expressly given in schedule 6 paragraph 10. The Constitution clearly states that any part of existing laws that is not consistent with the Constitution is a nullity.
The provision reads “Subject to this Schedule, all existing laws continue in force but must be construed in conformity with this Constitution”.
It, therefore, means all maternity leave provisions remain in force except those clauses of parts of clauses that offend the Constitution.
The part of section 18(1) which limits the right to paid maternity leave offends the Constitution thus is invalid due to its inconsistency with the Constitution. The rest of section 18(i) remains intact.
The Constitution is drafted in such a manner that those who apply laws should be able to read it and relate to subordinate Acts and where there are inconsistencies, the Constitution overrides only to the extent of the inconsistency.
Simply put, the sections or clauses in the Labour Act that offend the Constitution became invalid on 22 May 2013. So is part of section 18(i) which says women have to wait 12 months before qualifying for maternity leave.
There is no doubt that other areas of the Labour Act lack clarity and may require Courts to interpret until the Labour Act is aligned to the Constitution, I am of the opinion that some employers who are deliberately avoiding to pick maternity leave provisions that offend the Constitution are more of anti-feminists rather than ignorance of the law.
Moreso, given the fact that the alignment of laws was discussed widely during the constitution making, and there is a lot of literature related to interpretation of statutes.
Pregnant employees have a right to enforce their right to fully paid maternity leave through filing grievances of unfair labour practices through Labour officers or appropriate NEC. If they get no joy, they can approach the Labour Court for relief.
Approaching the Constitutional Court directly also remains available as the Constitution allows for it but one would need a lawyer to handle that. Prospects of success in my opinion are a hundred precent unless the papers are not in order.
There are gray areas that lack clarity such as what happens to maternity leave if a woman miscarries or loses the baby before the end of maternity leave from purposive interpretation of maternity leave provisions the woman continues on maternity leave until a medical doctor declares her fit for duty.
It must be noted that maternity leave is not about the baby only but is also a window for the woman to recover from delivery-related complexities.
Employees on fixed term contract have a right to maternity leave for any maternity leave period that falls within the life of the fixed term contract.
At the expiry of the fixed term contract, the maternity leave collapses unless the employer grants the employee another fixed term contract during the period of maternity leave. This is common where the employer wishes to retain the employee.
Many women allow themselves to be denied paid maternity leave out of fear of being victimised for falling pregnant and being hounded out of their jobs.
Those on fixed term contract will be afraid of losing jobs thus they choose to live with abuse and breaking of the law.
Interestingly, many women know about their leave rights but continue to suffer in silence in order to keep jobs.
I have seen cases of women on fixed term contract giving birth and referring to work with two or three weeks in order to keep jobs. In my opinion that is cruel and unlawful.
In conclusion, it is up to individual organisations to act within the laws of the land and for women groups to stand up for women and at the same time educate some male employers that being pregnant is not a workplace crime.
Human resources practitioners must also familiarise themselves with how to read unaligned legislation into the Constitution so as to stay within the law.
Online Reporter