Landmark ruling for fired thousands

labour lawsDaniel Nemukuyu Senior Court Reporter—
THOUSANDS of workers who were fired on three months’ notice without their consent after the 2015 Zuva Petroleum judgment, are now entitled to reinstatement or payment of damages after the Labour Court ruled that they were unlawfully dismissed. In a landmark judgment, head of the Labour Court bench Justice Gladys Mhuri ruled that the Labour Amendment Act (Number 5 of 2015) applies in retrospect to cover all those who lost their jobs from July 17, 2015.

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The judgment was handed down in a case in which an independent arbitrator, Ms Faith Mupangani, was seeking confirmation of her decision that ordered the reinstatement of seven workers fired on notice by the National Handling Services (NHS) Private Limited.

The amendment in question spells out four grounds on which employment can be terminated.

Section 12 (4) (a) of the Act reads:
“No employer shall terminate a contract of employment on notice unless—

a) The termination is in terms of an employment code or in the absence of an employment code, in terms of the model code made under Section 101(9) or

b) The employer and employee mutually agree in writing to the termination of the contract; or

c) The employee was engaged for a period of fixed duration or for the performance of some specific service; or

d) Pursuant to retrenchment, in accordance with Section 12 (c) (retrenchment).

In terms of that law, for termination on notice to be effected, there has to be consent from the workers and the parties have to agree on a retrenchment package or compensation.

NHS had opposed the workers’ challenge arguing that the company could not have complied with the law that was not yet in existence at the time of termination. However, Justice Mhuri ruled that Section 18 of the Finance Act clearly brings the law backwards to cover those who were fired before the Labour Amendment Act Number 5 of 2015.

“This provision, in my view, is very clear and unambiguous. It applies to terminations of contract on notice, which were done on or after the 17th of July 2015. “These terminations were therefore affected by Section 12(4) (a) which section prohibits termination of contracts on notice unless they fall under the four scenarios provided in Section 12(4) (a).

“In view of the retrospective application of Section 18 of the Finance Act Number 8/15, the argument by first respondent that it could not possibly comply with a law which was not yet in existence, is without merit,” the judge ruled.

To that end, Justice Mhuri ruled that the terminations constituted unlawful dismissal, hence an order for reinstatement or damages in lieu of reinstatement.

The judge held that Section 12(C) of the Labour Act, which provides for compensation, does not apply to those who were unlawfully terminated on notice, hence payment of damages or retrenchment was the best way to go.

“The remedy for unlawful dismissal is reinstatement or payment of damages in this case. This is because Section 12 (C) of (the Labour) Act 5 of 2015 which provides for compensation does not apply in this case.

“The Section applies to those employees whose contracts of employment were terminated pursuant to Section 12 (4) (a) (four grounds outlined above),” the judge ruled.

Justice Mhuri ordered the reinstatement of the seven NHS workers or payment of damages within 45 days of the court order.

“Within 45 days of this order, first respondent (NHS) shall reinstate second to eighth respondents without loss of pay and benefits.

“If reinstatement is no longer possible, first respondent is ordered to pay second to eighth respondents damages which the parties are to negotiate and in the event of a deadlock, the parties are to approach the applicant (Arbitrator) for quantification,” reads the judgment.

National Airways Workers’ Union (NAWU) vice president Mr Elijah Chiripasi, welcomed the development saying the court had correctly interpreted the law.

“NAWU welcomes the development. Justice Mhuri, who heads the Labour Court bench, has correctly interpreted the law.

“The judgment is in line with the Zimbabwe Agenda for Socio-Economic Transformation (ZimAsset). President Mugabe is on record expressing concern over the way thousands of workers were treated after the Zuva judgment,” said Mr Chiripasi.

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  • God In Heaven

    There is a God in heaven, it is pay back time, the cheats are in trouble, own up before you are embarrassed

  • Ndumiso Sithole

    Thought the 3 months of notice judge ment was made by supreme Court .I wonder now what this is all about.

    • 5星级将军

      its all about giving back what was wrongly taken from the hard working zimbabweans

  • God In Heaven

    There is definitely a God in Heaven, the cheats should pay back before being embarrased.

  • Wakisai

    Wonder how many more companies will be forced to close and declare bankruptcy, when after downsizing to survive, they have neither the resources or treasury to comply with this court ruling?
    At least government workers fired and reinstated, know that Government can expediently issue more worthless Treasury Bills to inflate the national debt and let future generations worry about honouring government obligations.

  • zimbotry

    Too little and much too late for those made jobless and their families. There is no way they will get their jobs back or see any compensation

  • tariro shumba

    Let them close, they made millions and some continue to externalise and exploit, if you are one of them join the bandwagon, you exploited people, they helped you build your empires over years and you threw them under the bus. Its time that you have sleepless nights as well, you are heartless, you are paying for your sins.

  • Hacha Duke of Enkeldoorn

    Too true. I never understood how a struggling company is expected to pay hefty retrenchment packages.

  • Hacha Duke of Enkeldoorn

    Rather confusing I must say. What has the Finance Act got to do with labour Issues?? I have a feeling that this is a terrible judgment – legal wise.

  • NJABULO :libertyatIiberty

    ############## .Its hats off to the person who was adjudicating in this case.One hopes that this archetypal case will set precedence that will breed fairness and justice in the labour courts of Zimbabwe.There have been many complaints from many people that the labour courts in Zimbabwe were very unfair to the plaintiffs .Even Maduku has also been complaining about the manner in which the labour courts handles cases.He even said that there were no successful cases by plaintiffs and that made it difficult for many lawyers to have references cases when arguing their cases in the court .However ,one mistake which could be used by the defence lawyers in the case in question ,is that you cannot legislate retrospectively.In other words ,the defence may appeal on grounds that the court erred ,because at the time the ruling was made on the case ,when it failed ,that piece of legislation had not yet come into effect.said

  • Justice

    You might be correct in some instance, but my forma company is filthy cash rich..our dismissal was not to do with astruggling company but racism etc. Before we got the letters of termination on notice, money was olready in the bank accounts for accum leave days, notice pay etc. So the real deal is now……

  • Pastor Farie

    Remember the Article by Magaisa in Chronicle Aug 2015….. Its interesting how thing end up eventually.

  • Frank

    its a landmark ruling but will not change anything for the worker because most of the companies are dead and for those in existence they have no capacity to pay. so the result is going to be legal challenge after legal challenge with no result. This is worsened by the fact that in zim implementing court judgements is normally a challenge. they are ignored especially by the ruling elite.