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Caleb Mucheche Review Correspondent
Amendments to the Zimbabwean Labour Act (Chapter 28:01) and their implications on the employment relationship: A review of some critical sections of the Labour Amendment Act No. 5 of 2015.INTRODUCTION
The Zimbabwean Labour Act was recently amended following what The Herald newspaper edition of 18 July 2015 described as a shock labour ruling. This was pursuant to the Supreme Court judgment in Don. Nyamande and Another vs Zuva Petroleum (Pvt) Ltd delivered on 17 July 2015 asserting an employer’s common law right to unilaterally terminate a contract of employment on notice.

The new section 12 (4a)of the Labour Act’s mandatory wording allows for termination on notice in four instances namely; where it is done in terms of either an employment code or the model code made under section 101(9) of the Labour Act; or the employer and employee mutually agree in writing to the termination of the contract; or the employee was engaged for a period of fixed duration or for the performance of some specific service; or pursuant to retrenchment, in accordance with section 12C.

In all the aforesaid four scenarios, an employee whose contract of employment has been terminated is legally entitled to compensation for loss of employment as stipulated in terms of the new section 12C of the Labour Act.

Among others, there is a raging debate mainly on the possible interpretation(s) to be ascribed to section 12(4a) of the Labour Act. This essay seeks to explore some of the likely interpretations and their impact on the employment relationship.

REINCARNATION OF THE EMPLOYER’s COMMON LAW RIGHT TO TERMINATE a CONTRACT OF EMPLOYMENT ON NOTICE AS a STATUTORY RIGHT IN TERMS OF THE LABOUR ACT
The demise of the employer’s common law right to terminate a contract on notice was short lived as same was resurrected by parliament as a statutory right in terms of the new section 12(4a) of the Labour Act albeit with some modifications. The amendment now provides an employer with a statutory right to terminate a contract of employment on notice in terms of the model code (national code of conduct, Statutory Instrument 15 of 2006), by mutual agreement with the employee and pursuant to an employment code of conduct.

The employment code contemplated by section 12(4a) of the Labour Act is the one governed by section 101 of the Labour Act. It may therefore be a NEC Code or a code made for a particular undertaking. What this therefore means is that the right to terminate a contract of employment on notice in terms of the common law has been abolished by the latest amendments to the Labour Act.

Termination on notice is now regulated by statute and only permissible under the circumstances provided for in terms of section 12(4a) of the Labour Amendment Act No 5 of 2015. The parties to an employment contract have been given the room to contract either including it or to contract out of it.

The difference with the pre amendment era is that under the old regime, the employer was only obliged to pay for the notice period where it required the employee to leave immediately while under the new regime, the employer has to pay a retrenchment package stated under section 12C (2) for any termination of employment as provided for in terms of section 12(4a) of the Labour Act.

Thus it can be argued that the new labour legislation has eroded job security for employees and introduced flexible termination of a contract of employment by the employer.

TERMINATION ON NOTICE: ONE SIZE FITS ALL
It is worth noting that termination on notice is a one size fits all as it can be applied from top to the bottom in the echelons of the employment relationship. Termination on notice is akin to a hangman noose for death penalty which can be lethal to both the chief executive officer and environmental technician (cleaner) in any given workplace.

Each worker can rest assured that termination on notice can be delivered at anytime by the real employer who calls the shots at that workplace. Manager’s masks as pseudo employer will be removed the moment the genuine employer who controls the business decides to show them the door by means of termination on notice.

SPECIAL EMPLOYEES WHO ARE IMMUNE FROM TERMINATION ON NOTICE BY THE EMPLOYER
The only categories of employees who are immune from termination on notice by the employer are judges of the Labour Court, High Court, Supreme Court and Constitutional Court and Prosecutor General as they are a special category of employees who enjoy a security of tenure in terms of the Constitution of Zimbabwe Amendment No. 20 of 2013.

All other employees who do not enjoy job security in terms of the Constitution of Zimbabwe are legally naked. With respect, the disparity occasioned by the insulation of a certain layer of employees from termination on notice via the Constitution and the lack of protection of the rest of the other employees is manifest violation of equality before the law and unjustified discrimination which is an affront to section 56 of the Constitution of Zimbabwe.

WHETHER EMPLOYMENT CODES OF CONDUCT OR THE MODEL CODE ENSHRINE AN EMPLOYER’S RIGHT TO TERMINATE A CONTRACT OF EMPLOYMENT ON NOTICE
For one to know whether an employment code of conduct registered in terms of section 101 of the Labour Act as read with the Labour Relations(Employment Codes of Conduct) Regulations, SI 379 OF 1990 allow termination of employment on notice by the employer, it is important to closely look at the provisions of the applicable employment code of conduct. Some employment codes of conduct provide for termination on notice by the employer while others do not.

The rationale for allowing termination of employment on notice by an employer if provided for in terms of an employment code of conduct is anchored on the fact that employment codes of conduct are bipartite statutory contracts negotiated and agreed upon between employers and employees to regulate their various conditions of employment including but not limited to misconduct proceedings, grievance handling procedures, termination of employment, hours of work and rates of remuneration.

Thus if employers and employees, in the exercise of their autonomy and acting through their representative organs either at the works council or employment council, agree on an employment code of conduct conferring an employer with a right to terminate an employee’s contract of employment on notice, then that legal provision is enforceable between the parties.

If the applicable employment code of conduct between a given employer and employee provides for compensation in the event of an employer terminating an employee’s contract on notice, the compensation stipulated within that employment code is what the employer should pay to the affected employees and not the minimum package provided for in terms of the new section 12C of the Act unless the employer successfully applies for an exemption from paying such a compensation package to the applicable authority.

Conversely, where the employment code of conduct simply gives an employer the right to terminate a contract of employment on notice without specifying the compensation package payable to the affected employee(s), by operation of law, the employer is automatically legally obliged to pay the employee(s) the compensation package provided for in terms of the new section 12C of the Act unless the employer has been granted an exemption from paying the minimum package by the applicable authority.

In its current form, the model code, SI 15 OF 2006, does not have any legal provision allowing termination of a contract of employment on notice as the lawful methods of termination of employment contained in section 5 of that legal instrument excludes termination on notice by an employer.

Caleb Mucheche LLB (Hons) UZ, LLM Labour Law- is a legal practitioner/labour specialist/arbitrator/senior partner @ Matsikidze and Mucheche Legal Practitioners, Commercial and Labour Law Chambers and this article is an excerpt of a paper he presented at Great Zimbabwe University, Masvingo on 29 September 2015.