The Sunday Mail
Some workers who lost employment last year following the June 17, 2015 Supreme Court ruling empowering companies to lay off staff through three-month notices of termination of contracts can get relief from the courts, it has emerged.
This comes after the labour office in Harare recently ordered the reinstatement of 23 Clover Leaf Motor Group employees whose contracts were terminated on three-month notices on the basis that the “company was not performing well”.
The workers successfully argued that their termination on notice was bungled and constituted an unfair labour practice.
The March 8 ruling cannot, however, set a precedence.
The labour office ordered Clover Leaf to reinstate the 23 employees after their sacking on August 1, 2015.
The 23, through lawyer Mr Michael Mandikumba, said: “Termination on notice, when not properly done, constitutes an unfair labour practice. In fact if the termination is done without following the proper tenets of the law, the termination is void ab initio which means that there is no termination in the first place.
“To then dismiss an employee on the basis of a notice which is void ab initio constitutes an act of unfair labour practice at a workplace.
“In casu the reason for which the claimants were put on notice falls squarely into a category which is sufficiently provided for by the law, namely retrenchment.
“Therefore the proper course to take would and was retrenchment as opposed to termination of contract by giving notice in terms of Section 12(3)(c).”
Clover Leaf’s lawyers, Sawyer and Mkushi, said termination on notice was not an unfair labour practice and this was provided for in common law.
The company further argued there was no law obliging employers to retrench rather than terminate contracts on notice.
The labour officer ruled in favor of the workers, saying Clover Leaf should have initiated retrenchment processes instead of firing people on three-month notices.
“It is hereby ordered that the complainants, that is, Richard Mwanza and 22 others be reinstated without loss of salaries and benefits. If reinstatement is no longer tenable, parties may agree on payment of damages in lieu of reinstatement, if no agreement is made parties may approach the labour officer for quantification of damages. This ruling must be implemented within 30 days.”
In an interview, lawyer Mr Terrence Hussein said the ruling would not establish precedence that would give all workers affected by last year’s mass sackings a reprieve.
“The ruling was made by a labour officer which is an inferior jurisdiction. It’s a lower adjudication body and its rulings are not set as precedence.
“It, therefore, means that apart from the people who were involved in the particular case we cannot look at the case as guidance for the future.
“However it also shows that people feel aggrieved by the termination of their contracts have the right to seek recourse from the courts … But another court can come up with a different outcome to the Clover Leaf case.”
Mr Mandimbuka said the ruling showed there could be relief in cases where companies bungled termination procedures.
“The motive and intention behind the termination of employment is a deciding factor of what course of action the employer must take.
“In this case the proper course of action was to retrench rather to terminate the employment contract on notice. For that reason alone, it was submitted that the termination of contract was wrongful and unlawful because the employer took an improper course of action.”
Labour law expert Mr Rodgers Matsikidze added: “The ruling has nothing significant in terms of labour jurisprudence. It will not affect the employees terminated before the Zuva or after the Zuva case.
“I also have doubts on the reinstatement because the labour officer should not have ordered the back pay and damages components as the minimum package has the back pay and damages for premature loss of employment as it stands.”
