The Labour Amendment Act No. 5 of 2015 ushered in a new paradigm in terms of labour law practice and procedures in general. The amendment brought with it a number of challenges to labour law practitioners and litigants. This paper seeks to highlight the legal and practical challenges faced by lawyers and litigants alike under the new Labour Amendment Act.
A lot of challenges can be attributed to poor draftsmanship and poor alignment of laws by drafters.
- CONTRADICTORY PROVISIONS
Section 12(4b) of the Act provides that minimum compensation shall be paid to an employee terminated on notice and those employees retrenched in terms of Section 12C only in terms of subsection (4a). However Section 12C(2) of the Act provides that the minimum compensation shall be paid by the employer whether the loss is occasioned by retrenchment or by virtue of termination of employment pursuant to Section 12(4a)(a),(b)or (c) which means that even an employee terminated for disciplinary misconduct is eligible to be paid minimum compensation. Such a provision is absurd!
- UNCERTAIN RETRENCHMENT PROCESS
The new Section 12C provides that an employee who wishes to retrench shall give written notice to the Works Council and/or NEC and the Retrenchment Board.
- The Act does not specify the purpose of giving such notice as no board nor is tribunal given powers to approve or disprove the intention to retrench. Hence giving the notice does not serve any meaningful purpose. This has left employers and employees in the dark about how to go about the process. Some employers choose to wait for approval from the Retrenchment Board which approval strictly speaking is no longer required. Some employees are approaching NECs or Labour officers seeking to challenge the retrenchment process but to no avail as the Labour Officers are not given powers to approve or disprove retrenchment.
- The minimum package stipulated in Section 12C (2) is the maximum package. Practically speaking no or very few employers are prepared to pay more than the stipulated minimum package as there is no legal obligation to pay more. There is little or no room for negotiation on the part of the employees affected. Further there is no viable remedy available for employees to challenge the package even where they can prove capacity to pay more.
- Section 12D of the Labour Act which requires the employer to implement special measures to avoid retrenchment has now been rendered redundant as the employer is now simply required to give notice of intention to retrench.
- Section 12C (3) and (4) grants an employer the right to apply for exemption to pay the full or part of the minimum package. No right is granted to the employee to challenge the application for exemption. Employee part’s right to heard was overlooked.
- UNCERTAINTY OF LITIGANTS’ RIGHTS UNDER SECTION 93 OF THE LABOUR ACT AS AMENDED
- The new amendment Act in Section 93(5) granted labour officers powers to make a ruling in disputes of right. The ruling issued by the Labour Officer is a draft ruling. This poses the question what is a ‘draft’?
- Procedure to be adopted by the Labour Officers when parties are not in agreement not so clear. Is there room for written submissions or oral hearing before a draft ruling is rendered?
- Enforcement of rulings. The Labour Officer is mandated by the law to ensure confirmation of the ruling in the Labour Court. The Labour Officer takes over the role of lawyers to litigate on behalf of their clients. This cuts across the right of litigants to be represented by lawyers of their choice as guaranteed by the Constitution of Zimbabwe.
- The Labour Officer in the confirmation proceedings in required to notify only the person against whom the ruling or order is made. What happens in the case of partial success of the parties? This has led to Labour Officer refraining from citing an interested party. This overlooks the right of litigants to be heard.
- If the Labour Court declines confirmation or confirms that ruling with major amendments what happens, the Act is silent on that. Is the matter remitted to the same Labour Officer? Is it the Labour Officer’s ruling? It becomes an order of the Labour Court and who shall be responsible for having it registered.
- Labour Officer forced to take sides which may compromise future cases.
The confirmation proceedings pits a Labour Officer against the losing party and the contest will not be a pleasant one as the Labour Officer will be defending his or her ruling while the losing party will be tearing into the ruling. The same party may have a future case allocated to the same Labour Officer. This may create an obstinate situation where a litigant is required to appear before a Labour Officer who potentially has scores to settle over a previous suppressed ruling.
- After successful confirmation by the Labour Court, how is the registration by the Labour Officer to be done. Is it through submission or Court Application? Who does the writ of execution in the event of a ruling sounding in money? At what point is the winning party involved in the matter since he/she is not cited as a party.
- RETROSPECTIVE EFFECT OF THE AMENDMENT
The Act provides in Section 18 that Section 12 of the Labour Act as amended shall apply to every employee whose services on three months’ notice on or after 17th of July 2015.
The legislature followed up on this vague provision by promulgating Section 24 of the Finance Act No. 8 of 2015 which repealed Section 18 of the Act No. 5 of 2015 by providing that the Labour Act Chapter 28:01 as amended by this Act applies to every employee whose services were terminated on three months’ notice on or after 17th of July 2015.
The moot question is whether the Act nullified the termination on notice which renders all such terminations illegal or the alternative view being that it did not reinstate the employees rather it simply provided a remedy in the form of payment of minimum compensation in terms of Section 12C(2)? This is a moot point which would require to be settled by the Supreme Court of Zimbabwe one of these days.
Further the retrospective legislation has its own challenges as it seeks to make something unlawful which was lawful at the time of commission.
It is crystal clear that the Labour Amendment Act Number 5 of 2015 brought more confusion than certainty to litigants and the sooner it is repealed the better.
The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.
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