The Sunday Mail
The recent judgment by the Labour Court did not surprise us at all as we are already in the courts with a class action against aspects of the Labour Act (Amendment No. 5 of 2015).
We are mainly appealing the retrospective action of the law under Section 18. This is from a human rights point of view where somebody does something legal and then the law changes, making him/her culpable in a manner that prejudices them.
Our argument is sensible. That’s why we are unsurprised; the Labour Court is only interpreting the law as it is and, therefore, right.
The law says (retrospective compensation) is backdated to July 17, 2015 and the judge has no option but to rule in favour of the worker. But now, this is a more strategic level where we are asking: “What is this doing to the employers’ human rights?”
That can only be decided by the Constitutional Court.
Our advice to employers is to appeal that (Labour Court ruling) at the High Court. After appealing, they can consider our class action and use similar arguments.
They should argue that their constitutional rights are being infringed upon as they are suffering prejudice out of doing something legal.
The Employers’ Confederation of Zimbabwe has had no less than two breakfast meetings to advise members, and it is from these meetings that we started the class action.
We have taken the legal route, with three cases from our class action already set down for hearing at the Constitutional Court.
Initially, we challenged the amendment in the Constitutional Court but were told “you do not just approach the court; the Constitutional Court is not a court of first instance. You have to go right to the beginning and only be referred to the Constitutional Court by either the High Court or the Supreme Court”.
That’s what we then did. The three cases have all gone via the High Court.
It is difficult to employ workers in Zimbabwe because once you take on an employment relationship, one has to carry certain rights and responsibilities. Those rights and responsibilities are central to commerce when business is doing well. The problem comes when business is not doing well as expected.
The employer remains with the responsibility to pay the worker even though the situation will have changed and the worker is not in a position to fulfil his/her objectives to the employer. This can either be due to lack of foreign currency, raw materials or power. In such a case, the employee cannot fulfil his/her obligations.
However, the employer is still expected to fulfil his/her obligation of paying the employee. Under normal circumstances, the employer only pays an employee from the work the employee would have done.
So, if no work has been done, how is the employer expected to pay? This basic relationship has been understood at many workplaces. This is why many workers are not up in arms as they understand that they have not done work and there is no way the employer can pay them for doing nothing.
Sometimes you might even think that these so-called bad relations between workers and employers are contrived because, really, an employee with all his/her reason about them cannot expect to be paid for doing no work.
It’s as simple as that. It is only in an unusual situation where you find someone saying, “I don’t care where you find the money, I am your employee and you must pay me.” That is a mercenary kind of employee. Many employees are in good relationships with their employers.
Work relations post-July 2015
Many workers acknowledge that what the employers did was not motivated by malice, but by sheer need to survive. Only 35 members joined our class action.
In the rest of the cases, workers and employees seem to have come to an understanding that what happened was necessary. Companies were keeping people they were unable to pay.
What is the point of one being in a legal employment relationship where the employer is unable to fulfil his/her part of the bargain?
This is why many people were happy to come to an agreement on the basis of two weeks salary for each year worked. It’s not a question of somebody trying to take advantage of the other; it’s a situation where employers couldn’t carry the payroll.
They couldn’t just tell people to go because the then retrenchment requirements were even worse than keeping a person on the job. At the moment, one cannot go to a bank and borrow money to pay salaries.
This is the situation most organisations are in. They retrenched, yes, but they cannot even pay that two weeks salary requirement. They have committed to pay when they are able to.
In a nutshell, I would not say we are satisfied with the two weeks salary-for-each-year-served provision, but we accepted that requirement.
We are dissatisfied because the period we are looking at has already been paid for.
The worker has already been paid for that period, and the employer is now being asked to pay extra without there being anything coming in to balance what he/she is paying.
The employees’ work has already been done, and profits have already been paid among shareholders. The employer now has to find new money to pay for an obligation that is way done?
That was always going to be difficult, but at least two weeks for each year worked was probably manageable for some companies. However, some cannot even manage that two weeks requirement, and can only make enough to pay for what is happening now.
This is the dilemma the employer finds himself/herself in.
Mr John Mufukare is the Executive Director of the Employers’ Confederation of Zimbabwe. He was speaking to The Sunday Mail’s Senior Reporter Lincoln Towindo.