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Matthias Ruziwa/Alyson Martens
The labour law harmonisation process has been necessitated by the need to create an enabling environment for social economic transformation driven by the dynamics of the labour market.

At the official opening of the second session of the Eighth Parliament on October 28, His Excellency, the President Comrade R. G. Mugabe remarked that:

“Labour laws are being reviewed in a bid to improve business and investment conditions in the country.

“Furthermore, a Tripartite Negotiation Forum Bill which seeks to render the Tripartite Negotiation Forum more effective, accountable and responsive to the development needs of the nation will be tabled in this House during this session.”

Government has been ceased with the process of harmonising labour laws in consultation with social partners and various stakeholders since the last amendment of the Labour Act in 2005.

The labour law harmonisation process has been necessitated by the need to create an enabling environment for social economic transformation driven by the dynamics of the labour market.

Following successful deliberations by the Tripartite Negotiation Forum, thirteen proposed principles were submitted to Cabinet for discussion. It is indeed delighting to note the good work done by the Tripartite Negotiating Forum who ensured that the proposed principles take cognisance of the historic economic blueprint Zim-Asset which seeks to achieve “sustainable economic development and social equity anchored on indigenisation, empowerment and employment creation”.

Apart from this purpose, the labour law reform process was underpinned by the Constitution of Zimbabwe Amendment No. 20 of 2013 which expressly states the need to provide the right to just, fair and equitable conditions of work under Section 65.

As stated above, thirteen labour law reform principles are set to be discussed by the Cabinet and these include honouring of fixed term contracts which has been a topical issue between labour, business and the Government for more than a decade.

According to the Tripartite Negotiation Forum’s draft:

“Current labour laws give a wide array of contracts of employment that the employer can chose from when engaging workers. These include fixed term contracts. The current laws appear conducive to enterprise viability and decision making.

“The concern has been on perceived abuse on fixed term contracts whereby employers perpetually hold employees on fixed term contracts in order to avoid obligations that come with permanent employment such as longer notice periods on termination, pensions, retrenchment packages, etc. “To curtail the abuse of fixed term contract work, the principle introduces the concept of affording contract workers similar benefits to those of permanent employees after a prescribed period of continuous service.

“Under this principle, there is a proposal for employment councils to be empowered to set a limit (cap) over the period upon which a fixed term contract must be renewed and a contract that exceeds the agreed cap will be deemed a contract without limit of time.”

Since 2003, when the Labour Act was amended, some trade unions have been advising that contractual employment is no longer possible and alleging when contract of employment is terminated, that a retrenchment package is possible as he/she was permanent.

The unions give as the authority for this assertion that: “It is in the Labour Act”. On the contrary, employers have used fixed term employment contracts basing on the understanding that the Labour Act in no way restricts contractual employment.

The trade unions have termed the continuous renewal of fixed term contracts for long term periods by business “casualisation of labour”.

In terms of Section 12 (1) of the Labour Act Chapter 28:01, every person working for another and receiving remuneration in return is deemed to be under a contract of employment i.e., not merely contract employees. The Labour Act provides for various types of contracts, namely:
(a) Casual/seasonal work.

(b) Fixed term contracts.

(c) Permanent contracts/contract that does not specify date of termination or expiration. Whether or not fixed term contracts should be honoured is a critical proposed principle which the Tripartite Negotiating Forum has submitted to Cabinet for debate.

Nevertheless, we shall have a look at what the courts have said concerning the continued renewal of fixed term contracts in Zimbabwe. A number of decisions have been made on the issue of casualisation of labour and it is high time we get closure.

Arguments that the employers has submitted to the courts are that:
(a) Employees who work for specified time periods are not casual workers.

(b) The Labour Act does not say if an employee on fixed term contract has his contract renewed repeatedly/continuously for a period of months/years that employee shall be deemed to be an employee on contract without limit of time.

(c) The Labour Act only deems an employee to be a permanent employee if he/she is employed on a contract without limit of time , if the contract does not specify date of termination or duration.

(d) There is nothing wrong in terms of the business giving notice of termination to an employee on fixed term contract as provided for in Section 12 of the Labour Act.

On the other hand, labour has submitted to the courts, that re-engagement of short-time contracts when clearly there is work of a permanent nature is what they claim as casualisation of labour.

Furthermore, it has been labour’s view that business will be seeking to avoid the consequences of permanent employment contracts such as entitlement to benefits such as retrenchment packages, pensions etc. Our courts have made a couple of decisions on casualisation of labour over the past few years which include the following judgments:

Lifestyle Zim Furnishers v Admire Mawoyo and 215 others LC/H/02/2012 Rachel Kadzinga & 20 others v Eastern Textiles (Pvt) Ltd t/a Devstar Clothing LC/MC/02/2007 and Zimbabwe Bata Shoe Company v Zimbabwe Bata Workers Committee LC/MD/24/2005 A critical analysis of the above mentioned court decisions clearly reveals that the Labour Court has not supported casualisation of labour.

The courts have said that International Labour Organisation (ILO) of which Zimbabwe is a signatory, encourage that states should protect workers from employers who try to avoid permanent employment by use of short term contracts.

In one judgment, a learned judge had this to say: “To allow an employer to subject employees to one month renewable contracts for six years is as good as taking us to dark ages in the circumstances.

“The court cannot be seen to aid and abate such a move in the guise of freedom of contract. We must move forward.”

In short, our Labour Court has put the continued renewal of fixed-term contracts as trivialisation of labour which eliminates the dignity of labour.

In all the judgments cited above, the Labour Court Judges said casualisaition of labour is illegal. One may also give regard to the new Constitution of Zimbabwe Amendment Act (No. 20) No. 1. Paragraph (c) of, subsection 1, of section 46.

“When interpreting this Chapter, a court, tribunal, forum or body must take into account international law and all treaties and conventions to which Zimbabwe is a party.” The same Constitution in Section 65 stipulates that: “Every employee is entitled to just, equitable and satisfactory conditions of work”.

However, a recent Supreme Court judgment in the case of Kundai Magodora and others v Care International of Zimbabwe (SC 24/14), has set a new precedence on unfair dismissal and legitimate expectation. In this matter, appellants were engaged by respondent on fixed term contracts of nine (9) months duration.

The last such contract was from 1 October 2006 to 30 June 2007.

By letter dated 27 March 2007, the respondent purported to terminate the contracts before their scheduled date of expiry. The contracts were to terminate on 31 March 2007 and the appellants were to be paid one month’s pay in lieu of notice.

The contracts provided a clause which required application of retrenchment procedures in the event of premature termination. Respondent withdrew the notice of termination letters, cancelled the terminations and reinstated the contracts of employment up to 30 June 2007 at which date the fixed term contracts would expire without being renewed.

The matter was referred to arbitration, Labour Court and finally, to the Supreme Court on a question of law.

Appellants in their submissions stated that the repeated renewal of their contracts changed their status to that of permanent employment.

In other words, they had legitimate expectation of permanency or renewal of contract in similar terms.

On the other hand, the employer submitted that it did not violate the employees’ right not to be unfairly dismissed under Section 12B of the Labour Act by terminating their fixed term contracts with effect from the stipulated date of expiry. It was further submitted that the legitimate expectation provisions of Section 12B(3) of the Labour Act only apply where another employee is engaged in place of the employee whose fixed term contract is terminated.

In this case, respondent made it clear that no one else was employed and the appellants’ jobs had effectively been abolished. In this judgment, the Supreme Court Judge remarked that: “My reading of Section 12B (3)B of the Labour Act does not give me any ground for departing from that decision.

“The plain meaning of that provision is that the employee on a contract of fixed duration must have had legitimate expectation of being re-engaged upon its termination and that he was supplanted by another person who was engaged in his stead.

“These requirements are patent and conjunctive and the mere existence of an expectation without concomitant engagement of another employee does not suffice. I do not think that the courts are at large, in reliance upon principles derived from international custom or instruments, to strike down the clear and unambiguous language of an Act of Parliament.

“In any event, international conventions or treaties do not form part of our law unless they are specifically incorporated therein, while international customary law is not internally cognisable where it is inconsistent with an Act of Parliament. See Section 11B of the former constitution and Section 326 and 327 of the current Constitution.”

The Judge further remarked that: “Apart from the clear wording of Section 12B (3)B, we cannot avoid the explicit provisions of the contracts in casu.”

There was a provision in the appellants’ contracts which stipulated that: “This contract shall in no way whatsoever meet legitimate expectation of further employment beyond the contract’s date of termination.”

The Judge said: “Appellants are surely bound by the express terms that they have agreed to and cannot then complain, not withstanding those terms that they had a legitimate expectation of being re-engaged.

Our analysis of the Supreme Court judgment have further shown that the current provisions of fixed term contracts in the Labour Act are legally alright and there is room for our legislators to bring about consistency between the existing Labour Act and International Labour Organisation (ILO) conventions which Zimbabwe is a party. We shall wait to see how this critical issue will be dealt with by our legislators.

• Matthias Ruziwa is an experienced and growing Human Resource Practitioner. Alyson Martens is an Industrial Psychologist. Both are practising in the Midlands Province, City of Kwekwe. You can contact either Matthias or Alyson at the following email addresses: [email protected]/whatsapp 0773 470 368 [email protected]