LEGAL MATTERS: Sacking by notice: Whose problem is it?

There is a world of difference between the law and justice.

Tichaona Nyahuma

2407-2-1-LAWThe law is essentially the tool through which justice is sought to be achieved. However, what ultimately is just or unjust depends on one’s notion of justice because what is just to one person may be unjust to another.

As they say, one man’s meat is another man’s poison.

It has been said that ours are courts of law and not courts of justice. However, inasmuch as this is true, it does not mean that judges completely close their eyes and ears to what is just.

Justice is taken into account but only within the boundaries of the law. If the law under which a case has to be decided is bad or unjust, the court is nevertheless bound thereby.

The following passage by former Supreme Court judge Justice Ebrahim, from Minister of Lands & Others v Commercial Farmers Union 2001 (2) ZLR 457 though a minority judgement, is relevant.

“During argument, the view was expressed that justice was on the applicants’ side, but the law was on the respondents’ side. Admittedly, law and justice do not always coincide. Examples of oppressive and unjust laws can be found in many countries.

“But this does not mean that the courts, which are sworn to uphold the law, can ever allow their personal, subjective view of what constitutes justice to override the clear provisions of the law. It is not the function of the courts to support the government of the day, or the would-be government of tomorrow.

“It is not their function to support the State against the individual, or the individual against the State. The courts’ duty is to the law and the law alone. Judges, as individuals, have their own political, legal and social views and opinions. But it is the sworn duty of every judge to apply the law, whatever he or she may think of the law. If a law is patently unjust, the courts can seek to ameliorate matters as far as possible, within the law, but they may never subvert the law.”

When judges and magistrates sit to adjudicate cases brought before them, they are guided by the law as it is laid down in legislation or statute books.

They are also directed by yet another branch of law known as the common law.

By definition, common law refers to that law which is not contained in any legislation or Acts of Parliament but which comes about in the course of the courts deciding cases and is also found in the writings of certain jurists who are seen as authorities in the law.

To illustrate, it is well known that if you drive a motor vehicle recklessly and you cause death and or injury to third parties, the courts are bound to make you pay compensation to your victims or their dependants.

Clearly, there is no enacted law that says the negligent driver is liable to pay compensation. The aspect of compensation, therefore, has its roots in common law.

The same used to also apply to criminal law.

Until the enactment of the Criminal Law Code in 2004, many crimes in Zimbabwe, including murder and rape, were dealt with under common law.

This is what judgments handed down over all these centuries have always said. So, common law is as much law as any legislated law. The courts are, therefore, only there to interpret and apply the law.

Accordingly, when courts hand down judgements that are seemingly unjust or unfair, know that in all probability, the problem is not that of the judge or the court, but the law as it is written down.

The recent Supreme Court ruling in Zuva Petroleum (Private) Limited v Don Nyamande & Another is a case in point.

A slow reading of the judgment suggests that it may be unjust in that employees now no longer have the protection of the law as employers may now have found a way to get rid of them without paying retrenchment packages or conducting disciplinary hearings.

In fact, all laws and regulations to do with retrenchments and dismissal for misconduct may just have been thrown into disuse by that decision.

Most in danger are employee representatives that are seen by management as vocal or hostile as employers now merely have to give the requisite notice before terminating their contracts.

There is no provision for the employee to reject the notice. Once it is issued, the contract ends at the end of the notice period.

Equally affected are certain “employers” in the form of some senior managers such as CEOs, human resources managers, directors and the like as their contracts of employment can also now be terminated on notice.

So it is not like the workers have to mourn while the “employers” celebrate. Both are in the same basket.

The only groups of workers unaffected by the Zuva judgment are civil servants, members of the disciplined forces and intelligence services as they are not governed by the Labour Act.

Those employed in State-linked organisations like Zesa, the National Railways of Zimbabwe and the like, fall within the realms of the judgment.

So as things now stand, the Labour Court may soon have to be disbanded because employers will naturally choose to end contracts on notice rather than the long and expensive route of disciplinary or retrenchment procedures.

Also affected are labour arbitrators who are likely soon not to have any cases referred to them. Lawyers who specialise in Labour Law will now have much less to do.

I stress, however, that what the Supreme Court did in the Zuva case is not a historical at all. The court did not reinvent the wheel contrary to what the newspapers have sought to portray.

We all know that David Livingstone did not “discover” the Victoria Falls as is recorded in some history texts because that part of the country was already occupied by indigenous people.

What David Livingstone merely did was to tell the rest of the world that there are those falls on that part of the Zambezi River.

The Supreme Court has done much the same. It has told or reminded employers that the Labour Act (Chapter 28:01) under Section 12(4) allows ending an employment relationship via notice.

If that section of the law is seen as unjust, then it is not in the hands of the courts to alter or renovate that provision.

The rights granted by the provision under scrutiny have always been enjoyed by employees but the Zuva case has confirmed to employers that they too have the same rights. The question that then arises is whether this is just or not.

Another question that emerges is whether an employer and an employee are equal partners in the contract.

I think not.

First, the employer usually occupies a lofty and privileged position in that he is endowed with vast financial resources when compared to the employee.

The terms and conditions of the contract are usually dictated by the employer, never mind that the law provides for collective bargaining.

Second, in the vast majority of cases, when an employee gives notice to terminate the contract, he normally does so for a job elsewhere, the so-called greener pastures.

Hardly does it ever occur that an employee will voluntarily leave his/her employment to go and sit at home, as it were.

Third, the employer does not suffer much prejudice, if at all, upon the abrupt departure from employment by the employee because there is always a reserve army of the unemployed jostling for that vacancy.

But the same is not possible for an employee who is suddenly thrown into the streets by the employer.

Fourth, upon the contract being terminated on notice, the effects are devastating in that the notice would have come as a complete surprise when the employee does not have a Plan B.

What of obligations such as school fees, mortgages, rent and the like? What will three-months’ salary do?

When looked at from that viewpoint, I have no hesitation to conclude that the Zuva judgement is unjust. It has completely changed the complexion of Zimbabwe’s Labour Law regime.

But was it the court’s problem? Can the court really be faulted? Was it the court’s concern that the aspect of the law in question is deficient or malnourished?

Again, I locate the answer to these questions in the same Commercial Farmers Union judgment I referred to earlier where it was stated: “The remedy for an unjust law lies, not with the courts, but with the legislature.”

It, therefore, follows that if we are agreed as a nation that Section 12(4) of the Labour Act is unjust, then it is in the hands of Parliament to effect the necessary amendments.

Parliament should be implored to move with speed to tackle the problem brought by the Zuva judgment.

If we are to be honest, this ruling has wound the labour clock back to the period prior to 1980. Do we really want that? I think not.

Employers are already making maximum use of the Zuva decision and hundreds of workers have been thrown into the streets.

I shudder to think where we will be by end of next week, end of the year. God help us!!

 

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