African Labour Law International Consultancy

07/12/2020

24/11/2020

African Labour Law Conference

07/10/2020

06/10/2020

Good day. The Supreme Court of Zimbabwe today granted NEC Communication and Allied Services vs Netone appeal and set aside the High Court judgment which had earlier said it was unconstitutional to compel employers to subscribe to NECs and that employers are not legally bound to contribute dues to NECs under the old Constitution of Zimbabwe. Netone has indicated that it may want to pursue a new challenge of section 82 of the Labour Act and CBAs under the new Constitution of Zimbabwe but it will remain an uphill legal task. Legally they are bound by the current law. There is no longer any judgment legally stopping employers from paying NEC dues.

Courtesy of Caleb Mucheche and Partners Law Chambers Legal Practitioners, Harare, Zimbabwe.

17/09/2020

Of constructive, unfair dismissal
John Manzongo At the Workplace
There are various issues unfolding at the workplace. In many cases both employers and employees do not know something is wrong until someone visits the Labour Court for redress. I felt it might help both sides if the issue is discussed or highlighted. Such issues include constructive dismissal, termination of contract, casualisation of labour and unfair dismissal, among others.
A good example is the case of labour lawyer and arbitrator Caleb Mucheche in his book, ‘A Practical Guide to Labour Law in Zimbabwe’.
He says constructive dismissal is the termination of an employment contract by an employee or a worker with or without notice because the employer has made continued employment intolerable for the worker.
Thus the worker surrenders due to pressure or unspecified unfavourable conditions.
This is also found where a worker resigns because he or she is left with no option but to do so by the employer.
The most appropriate word to use here is coerced resignation.
The Zimbabwe Labour Act says constructive dismissal is when “an employee/worker is deemed to have been unfairly dismissed — if he or she terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable.
The Act does not, however, state the exact circumstances that give rise to intolerable conditions of employment which culminate in constructive dismissal.
It sometimes becomes difficult for both parties to prove that constructive dismissal actually took place but there are a few tips that can point to the cause.
Workers have to prove that the employer or agent committed the act, prove the action was unlawful as it was outside the scope of the contract of employment and that there was an element of duress, coercion or undue influence taking into account the subjective factors pertaining to that employee.
Some examples of constructive dismissal include an offer for an inferior position when in the first place the worker occupied a higher grade.
If the worker does not accept the inferior position and decides to part ways or to resign, that can constitute constructive dismissal.
In trying to understand this issue it must be noted that certain positions or grades at work come with certain benefits and privileges.
As such, if one is given an inferior position somehow things will change and this can affect the worker differently depending on how one takes it.
We take for instance a demoted worker now doing the same work as those he or she used to command or assign tasks to.
It is natural that some will start mocking the downgraded worker in different forms such that he or she will just decide to part ways with the employer.
To some it might be an issue of their well-being in society.
Neighbours would have known him or her to be the boss at so and so company, driving the trump cars and his children going to the best schools and all of a sudden they see him or her in an inferior position; that will certainly affect the worker.
Termination of employment is in two ways which are by the employee’s choice through resignation or by the employer through termination of employment on notice.
It must be noted that termination of employment must be done not only verbally but in writing. Some may wonder why but in many cases some parties, especially employees will later claim they were unfairly dismissed or their contracts were terminated illegally.
The codes of conduct that must be found at all workplaces ensure that for dismissal of a worker to be effected fairly it must be done in sync with four corners of the same code of conduct.
Mr Mucheche further says the essence of employment codes of conduct was to bring workplace democracy where employees and employers jointly coin rules and regulations to govern industrial relations, disciplinary procedure and grievances handling procedure at the workplace.
In essence, codes of conduct empower both the worker and the employer, for no one can unilaterally terminate the employment contract without following laid down procedure.
It then goes to say serious workers who are concerned about their welfare at work must familiarise themselves with their workplace codes of conduct.
Labour Court president Justice Kachambwa says: “When we talk of casualisation we are not referring to an employee being on casual employment as such. The issue is that of not placing employees on permanent employment when the work of permanent employment is available.”
In this scenario the employer deliberately places worker on short fixed term contracts or on casual contract. In this process the employer avoids responsibilities of permanent employment at the expense of the employee.
Mr Mucheche says if employer habitually makes employees sign employment contracts of less than six weeks for a reasonably long period of time, the inference is that such employees cease to be casual and assume the status of employees on contracts without limit of time or permanent employees.

Herald 09 JUL, 2014 - 21:07

16/09/2020

‘Non-security workers can go on strike without notice’
October 27, 2014 Shingirai Huni Top Stories
Daniel Nemukuyu Senior Reporter
Workers who do not belong to the security and essential services sectors have a Constitutional right to go on strike without giving notice, top labour lawyers have revealed.
Defending the decision by 1 750 Mashonaland To***co Company workers to strike without giving a 14-day notice, Mr Caleb Mucheche of Matsikidze and Mucheche law firm, said the new Constitution gives the workers a right to strike without notice. It is the workers’ argument that Section 104 of the Labour Act, which makes it a requirement for the workers to issue out a 14-day notice for strike, was unconstitutional. In terms of Section 65 (3) of the new Constitution, the workers said, employees were given unlimited freedom to participate in collective job action.
The section reads: “Except for members of the security services, every employee has the right to participate in a collective job action, including the right to strike, sit-in, withdraw their labour and to take other similar concerted action, but a law may restrict to exercise this right in order to maintain essential services.”
The lawyers argued that the business of Mashonaland To***co did not fall under essential or security services and that Section 104 of the Labour Act was not applicable under the circumstances.
The Labour Court last week heard arguments from lawyers for both the employer and the workers and reserved judgment on the legality of the strike.
It was argued that the right to strike by workers outside the security and essential services had no limitations.
“The right to strike is one of the dibble fruit in the orchard of bill of rights located in the Constitution of Zimbabwe with the only restrictions applicable to members of the security services and essential services,” read the workers’ heads of argument.
It was the workers’ argument that the Constitution was superior to all other enactments including the Labour Act, hence it takes precedence. “It is humbly submitted that the strike is lawful as it is provided for under the Constitution of Zimbabwe under Section 65 (3).
“The position of the law is clear that the Constitution is the supreme law and that it takes precedence over any other enactment inconsistent with it,” read the workers’ heads of argument. As long as the Labour Act is not synchronised with the new Constitution, the lawyers said, Section 104 of the Labour Act remains invalid. “Before harmonisation of the Constitution of Zimbabwe with the Labour Act, the former reigns supreme as confirmed by the fact that the fundamental rights contained in the bill of rights, that includes the right to strike, became operative law with effect from May 22 2013.
“Thus in terms of Section 65(3) of the Constitution of Zimbabwe, during this window period before the harmonisation of the Constitution of Zimbabwe and the Labour Act, every employee who is not a member of security or essential services acquired an unbridled constitutional right to strike in terms of a higher law, which supersedes the Labour Act, if there is any inconsistency as demonstrated above,” read the papers.
Mashonaland To***co argued that the workers downed tools on October 3 this year over unpaid transport and housing allowances without giving notice.
They embarked on a strike after the parties failed to agree on the payment of the allowances, resulting in the employer applying for a show-cause order to the Minister of Public Service, Labour and Social Welfare. The minister stopped the strike and referred the case to the Labour Court for the workers to justify the legality of their action.
According to the employer, Section 65 (3) of the Constitution does not nullify the procedure provided for in the Labour Act.
The company said the 14-day notice for strike was not given and secret ballot was not conducted.
It was the employer’s argument that there was no attempt by the workers to settle the matter through conciliation.
On that basis, the employer argued that the strike was unlawful.
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10/09/2020