The Sunday Mail
Zimbabwe’s economic solutions do not, in any way, lie in free termination of employment as the law currently provides.
Rodgers Matsikidze
My view is that we need to deal with the following issues if the economy is to be revived:
— Weed corruption at all levels of society
— Protect our local market from the external markets
— Improve corporate governance
— Bring all those involved in gross mismanagement to book
— Ensure that all our natural resources are to the benefit of everyone through the National Fiscus
— Give ourselves 100 percent drive to improve channelling of FDI to this country
— Ensure Government guarantees loans for recapitalisation and sourcing of business and industrial equipment
— Opening new markets for agro products
— Benefaction, etc.
Thinking that employment issues are the problem to this economy is akin to treating symptoms.
I wonder who of the employees would be worried to be given three months notice when there is an optional job; an unemployment benefit or capital for the unemployed to start businesses.
Labour flexibility can only work in a functioning economy where jobs are available.
Without that, sending people home empty-handed creates a new problem, which has a direct impact on the business itself. This is not to say the companies should bear the responsibility of the State.
There is need for the Labour Act (28:01) to be amended in order to create the balance and protection of both parties.
The current law which provides for termination on notice removes that balance.
And without balance, obviously abuse is inevitable.
Hence, it is possible for one to abuse termination on notice for selfish reasons such as to:
1. Settle personal scores
2. Intimidate and avoid accountability
3. Discriminate against certain individuals or groups
4. Avoid retrenchment
5. Run down the company for unjust enrichment.
In addition, the dangers of termination on notice to employment relationship and productivity are:
1. Employee motivation is likely to go down as nobody would be certain about tomorrow
2. Potential sabotage and thieving as employees know that there is no benefit in the company for them on being retired or having their employment terminated
3. Creation of a welfare State as all these employees will naturally be dependant on the State
4. Increase of informal sector players, leading to low fiscal revenue, or taxes
5. Decline in the finished product market
6. Increase in taxes to cater for those without jobs, i.e. education, public health, etc
7. Low uptake of personal loans
8. Collapse of family units dependant on work; withdrawal of children from schools; medical aid schemes
There is, therefore, need to amend the Labour Act, in particular, the following aspects, which, in my view, are harmful to industrial relations.
Removing the right to terminate on notice by the employer should be scrapped like what South Africa did or alternatively, if it is to be retained, then an employer should be deemed to have given notice to retrench and all retrenchment processes in terms of Section 12 C of the Labour Act (28:01) should apply.
Zimbabwe’s retrenchment processes are problematic in that they do not reflect the true principles of retrenchment. Retrenchment should be possible even under the following circumstances;
1. When companies are making profit
2. When companies are about to make loss and not yet making losses
4. When making losses
5. When restructuring.
The current problem is in the manner in which a board examines cases. Why?
The reason is simple: There is nothing in the Labour Act, which fixes a package and quantum. In other words, the Board has powers to fix the package depending on the circumstances of each company. The question is whether that is happening in practice.
Hence, there is need to put guidelines on fixing quantum and packages.
The major problem, which has also made our labour law difficult for business and workers is the labour dispute resolution system itself.
The dispute-resolution system, in my view, should be streamlined as follows:
A matter should start from an internal code of conduct and then to conciliation, followed by arbitration.
An appeal against an award should not be on a point of law because not all arbitrators are lawyers.
Hence, from arbitration, an appeal should go to the Labour Court of Zimbabwe.
The Labour Court of Zimbabwe should have exclusive jurisdiction on labour matters. This should give it powers to hear and grant urgent chamber applications and deal with all issues relating to execution of awards.
It should be able to stay executions of awards pending appeal.
This kind of procedure will help mitigate executions of awards that may be contrary to public policy or wrong at law.
Any person aggrieved by the Labour Court would then have automatic rights to appeal to the Supreme Court. It should be possible for one to apply for execution pending appeal.
The current multi-faceted approach to stay and executions of awards is a major obstacle, which makes the labour law look wicked.
In essence, we need a balanced law if we are to be productive.
In South Africa, one cannot terminate on notice when they are productive. Their answer to balanced flexi lies in balancing retrenchment regulations and streaming the dispute-resolution mechanisms.
Otherwise, very soon, this whole labour problem might be hijacked by politicians and we will lose focus on mending the economy.
Rodgers Matsikidze in a lawyer and law lecturer based in Harare
