The Sunday Mail
This is a continuation from last week’s instalment.
SECTION 12B of the Labour Act was interpreted in the Zuva judgment as not abolishing the employer’s common law right to terminate employment on notice in terms of an employment contract. This means no argument can arise from that section to impeach termination on notice. Even the very same subsection 4(a) introduced by the amendment cannot be a legal basis to argue that termination on notice was abolished.
The Labour Bill, as was gazetted, had some very interesting explanation for the proposed amendment that finally gave birth to subsection 4(a). The reading of the intention of the lawmakers is clear when they were crafting the Bill:
“This clause amends section 12 to unambiguously deal with the issue of the common law practice of termination on notice and also deal with issues of casualisation by making provision that a fixed term contract cannot be for a period that is less than 12 months, unless the employment is for seasonal or casual work or for the performance of a specific service.
“This clause further provides that an employer who has the majority of his or her workers on fixed-term contracts will have to make use of retrenchment provisions when the contracts are terminated.
“This clause further provides for termination of contracts for breach of express or implied conditions of service after a due process (procedural fairness) in line with applicable and established code of conduct or agreed disciplinary procedure.”
In the Labour Amendment Bill, the Legislature was well aware of the fact that the practice of termination on notice was still alive. Furthermore, there was need, according to the lawmakers, to deal unambiguously with the practice. In the final amendment, it must be noted that Section 12(4) was not amended.
It remains as it was at the time of the Zuva judgment. Furthermore, Section 12(4a) of the amendment was changed by repealing the 2015 amendment.
The question, therefore, is: Does Section 12(4a) “unambiguously deal with the issue of the common law practice of termination on notice”? My answer is no, in so far as abolishing it is concerned. That very same subsection makes it easier for the employer to terminate a contract of employment on notice.
Further explanation for this stance is below:
The time-honoured and golden rule of statutory interpretation is that you give the words of a statute their primary meaning. See National Railways of Zimbabwe Contributory Pension Fund v Edy S-141-88; Madoda v Tanganda Tea Company Ltd 1999 (1) ZLR 374 (S); S v Masivira 1990 (1) ZLR 373 (HC); Maxwell on The Interpretation of Statutes 12 ed at p28; Nyemba and Watunga v R 1961 R & N 688 (SR) at 691C-D; Mike Campbell (Pvt) Ltd v Minister of Lands and Anor 2008 (1) ZLR 17 (S) at 33-35; and Mawarire v Mugabe NO and Ors CCZ-01-2013.
Applying this golden rule of statutory interpretation, there are no words in Sec 12(4a) of the Labour Act that either expressly or by necessary implication abolish the employer’s common law right to terminate an employment relationship by way of notice.
It is also a well-established principle of statutory interpretation that a statute cannot effect an alteration of the common law without saying so explicitly. The alternation of the common law has to be express.
There are no words in Sec 12(4a) of the Labour Act that either expressly or by necessary implication abolish the employer’s common law right to terminate an employment relationship by way of notice. It is also a well-established principle of statutory interpretation that a statute cannot effect an alteration of the common law without saying so explicitly. The alteration of the common law has to be express.
This principle finds authority in the case of Phiri and Ors v Industrial Steel Pipe (Pvt) Ltd 1996 (12) ZLR 45 (S) at 49, wherein the following was stated: “There is a presumption, in the interpretation of statutes, that Parliament does not intend a change in the common law, unless it expresses its intention with irresistible clearness or it follows by necessary implication from the language of the statute in question that it intended to effect such alteration in the common law; for ‘construing the statute by adding to it words which are neither found therein nor for which authority could be found in the language of the statute itself, is to sin against one of the most familiar rules of construction . . . ’: per LORD HALSBURY LC in Bank of England v Vagliano [1891] C AC 107 at 120.”
See also PTC v Mahachi 1997 (2) ZLR 71 (H); Mushaishi v Lifeline Syndicate and Anor 1990 (1) ZLR 284 (H) at 287D; and Johannesburg Municipality v Cohen’s Trustees 1909 TS 811.
Termination of employment on notice is not among the conduct that Sec 12(4a) of the Act outlaws.
Neither Sec 12(4) nor Sec 12(4a) of the Act abolishes the employer’s right to terminate employment on notice.
The reading of the original Bill will show that the lawmakers had used the phrase “notwithstanding any provision of the common law to the contrary”. This was an attempt to expressly deal with the common law position.
LEGAL DISCLAIMER: The material contained in this article is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the article. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a practising attorney, author, human capital trainer, business speaker, thought leader, law lecturer, consultant, coach and legal proctor (University of Zimbabwe). He is also a notary public and conveyancer. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]
