The High Court of Zimbabwe.
Alois Vinga
THE main labour movement, the Zimbabwe Congress of Trade Unions (ZCTU), has been granted the right to be enjoined as one of the respondents in a case in which the Employers’ Confederation of Zimbabwe (EMCOZ) is challenging a section of the Labour Act Amendment in the High Court.
The Labour Act Amendment compels employers to pay separation packages to employees who were affected by the July 17, 2015 Constitutional Court (ConCourt) ruling that made it possible for employers to end services for their workers on three months’ notice.
High Court Judge Justice Foroma ruled in favour of the labour union under judgment record number HC/11669/15.
The enjoinder, according to legal experts, enables all parties affected by the Labour Act Amendment to be heard.
It also saves the bench considerable time and effort through resolving the dispute in a holistic manner.
This is one of the rarest incidents whereby ZCTU and government have found themselves fighting from the same corner.
Government has a longstanding mistrust of the union, which it accuses of being an accessory of the opposition Movement for Democratic Change.
But in this case, they have been joined by the common interest to protect their respective constituencies.
ZCTU is out to protect its members whose jobs were lost when the ConCourt made the landmark ruling, while government is doing it for the purpose of gaining votes.
Employers are adamant that it is unconstitutional to apply the amendment in retrospect.
In its submission ZCTU said: “The substance of the matter is that on the 28th of September 2015 EMCOZ made a court application under case number 971/15, against the Minister of Public Service, Labour and Social Welfare, seeking the deletion of Sections 4(b), 12 c (2,) 16 and 18 of the Labour Amendment Act 5 of 2015 be declared unconstitutional and invalid.”
Reasons presented by ZCTU in the joinder application were that the issues raised by EMCOZ constituted an infringement of the fundamental rights of employees.
In particular, the notices of termination of the contracts of employment did not specify the reasons for the termination other that citing the common law right to terminate employment on notice.
The failure to provide reasons for the termination infringed upon the protection of the law, in particular the rights to administrative justice, which require reasons to be given for the exercise of any administrative action.
“Further, in some instances, the reasons cited in relation to operational requirements and financial constraints suffered by employers’ also had the effect of denying employees the right to protection of law especially given that where such a reason is a basis for termination, the proper recourse will have been retrenchment laws by seeking to hide under the guise of their common law entitlements. Section 12, which employers also seek to strike off was at first recommended by the same employers at the Tripartite Negotiating Forum,” ZCTU argued in its application.
Employers’ Confederation of Zimbabwe president, John Mufukare, expressed confidence that the enjoinder will bring varied opinions that will inform the judiciary in coming up with a sound judgments.
“The enjoinder will go a long way in providing the judiciary with a wide base of parties drawn from the employees, employers and the government and we hope that this diversity will guarantee a balanced outcome. We can’t allow our members to continue being pressed for compensation by the trade unions and their lawyers as a result of the fact that contracts were terminated on notice. This development therefore comes as an opportunity to enlighten each other on our varied concerns,” he said.
ZCTU president, George Nkiwane, said labour cannot stay out of the issue and pretend as if it’s a dispute between the employers and government when workers were the eventual losers.
“Issues raised by the employers are of fundamental interest to our constituency. We cannot allow employees, who were fired on employment contract termination notice, to go empty handed. This is a matter of exercising our constitutional right in defending poor employees. We are in to help the government ease off pressure from employers in the aftermath of the labour amendment era,” Nkiwane said.
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