adminDavis Ndumiso Sibanda Labour Matters
Due to economic hardships many employees are losing their jobs as organisations try to cut cost and stay afloat, however in a number of instances the workers bounce back at a huge cost to the employer because of failure to follow legal procedure.Termination of any employments contract in Zimbabwe is guided by the Labour Act as read with related regulation. Provisions of the Act that are applicable depend on the grounds for termination of employment contract.
Where an employee is permanent and the employer wants to terminate the worker’s employment contract, the routes available are mutual separation, voluntary retrenchment and compulsory retrenchment. For each method of contract termination there are set procedures to be followed to avoid having the retrenchment or termination of employee contracts declared a nullity.
One employer running a small business decided to reduce his staff from 21 employees to 10 employees.
He called the 11 target employees and told them there was no more work for them and as such he is giving them three months’ salary and their leave days.
He said anyone who refuses the money shall walk home with nothing. The workers took the money and approached the NEC on a case of unfair dismissal.
The employer was called for conciliation, he dragged his feet giving excuses for not attending until the NEC sent the matter for arbitration.
At arbitration the employer attended, the matter was heard nine months after the workers were terminated. The award came during the eleventh month and the employer was ordered to reinstate the workers and follow procedure if he wanted to retrench the workers.
The award simply meant the workers had to be paid their salary for the period of unlawful dismissal and then the employer follows the law if he still wanted to retrench the workers.
Arguments that workers collected their terminal benefits are of little or no use as the courts will interrogate whether the taking of terminal benefits amounted to abandonment of rights.
In most cases, the employer in unable to prove the abandonment of right, moreso there are many reasons why workers will take the money and still litigate.
Where workers have been terminated without following retrenchment procedure, the employer runs the risk of being ordered to reinstate the workers and follow procedures.
Many employers have argued that the termination was mutual separation but on digging deeper is found that there is no mutual separation but the employer bullied workers into accepting packages they would not have accepted had the employer negotiated.
For employer it is advisable to follow the retrenchment process and not retrench any worker before receiving the Retrenchment Certificate and Tax Directive from ZIMRA.
While it is true that the Retrenchment Board was feared by employers of late since the Freda Rebecca Mine judgement SC.
The situation has changed as the retrenchment board is now obligated to give a struggling business relief and most recent Arbitration awards seem to be very sensitive to the needs of both the worker and business.
In conclusion, where the employer is not skilled in the retrenchment process he or she must seek services of experts. This helps avoid expenses related to retrenchment errors.
Davies NdumisoSibanda can be contacted on: email:[email protected] <mailto:[email protected]>
Or cell No: 0772 375 235
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