Alex T. Magaisa
This is a follow-up to my article yesterday /dark-day-for-the-zimbabwean-worker-as-supreme-court-goes-neo-liberal/ in which I explained and critiqued the judgment of the Supreme Court in the landmark case of Nyamande & Anor v Zuva Petroleum (2015). I want to demonstrate further, with some hypothetical examples, why the implications of this judgment represent a mortal danger to the rights of employees and why the employee in independent Zimbabwe is now worse off in terms of rights than the employee in colonial Rhodesia.
Capitalists will no doubt applaud this judgment because it gives them power to literally do as they please, even shamelessly arguing that employers and employees can ‘negotiate’ employment contracts, when they know very well that given the inherently skewed relationship, this ‘negotiation’ of terms is a mere façade. It is precisely this unequal relationship which necessitated the labour legislation, in Zimbabwe and elsewhere.
Granted, labour legislation in Zimbabwe was probably too rigid and perhaps anachronistic and needed modernisation, but the turn that it has taken in the wake of this judgment is just as worse, only now, for the employee. There is need for balance, which is lacking in the old and the new set-up.
But let me start by illustrating what has happened to labour legislation and labour rights in the aftermath of the judgment. In a country, when there is a crisis, the President might declare a state of emergency. When a state of emergency is declared, fundamental rights and freedoms enshrined in the constitution are suspended. The President then rules by decree. Courts are suspended, as is Parliament. Martial law is declared. There will be curfews – everyone at home at 6pm. They can only come out at 6am the next day. That is an emergency situation, when rights are held in abeyance.
This is the equivalent of what has happened at the workplace in the wake of the Supreme Court judgment in the Zuva case. Basic rights known to employees over the years have been rendered nugatory. Any attempts to exercise such rights as are contained in labour legislation is likely to carry a serious risk of losing employment – because the Supreme Court has said bosses have unlimited to fire at will, as long as they issue a notice to terminate in terms of the contract. They do not have to give a reason – the notice is adequate.
All this sounds sweet in a relationship of equals. But an employment relationship is not, which is why legislation has always intervened. Thomas Hobbes described life in the state of nature as “nasty, brutish and short”. This is exactly what it will be for the worker in Zimbabwe in the wake of this judgment.
Supporters of the judgment say it is a good way to rationalise the capital and labour markets, especially at a time when Zimbabwe’s economy is weighed down heavily by economic problems. They are hailing it as a great judgment. They say labour was too powerful and stifled business. I appreciate that labour legislation was probably over-the-top and needed some correction to ensure balance between employer and employee.
But what this judgment has done is to turn the lock the other way in a manner that leaves employees more vulnerable and completely at the mercy of the bosses, especially vindictive bosses. The law has always existed to prevent abuse of power at the workplace, taking cognisance of the fact that it is the employee who wields power. Government probably went too far when it enacted labour legislation, but the intention to protect the worker was noble. Now, in a bid to correct that, the court may have opened the floodgates of abuse. I present here a few examples of potential abuse that could arise:
Suspected Offence
If an employer suspects that you committed an offence, he was required to institute disciplinary proceedings in terms of a code of conduct. You would have a chance to be heard and to defend yourself. If found guilty, you could be sacked or reprimanded. If not guilty, you would be exonerated.
Now, however, if an employer suspects that you committed an offence, he can simply terminate your employment contract on notice. He has no need to institute disciplinary proceedings or to even make reference to the suspected offence as the reason for the sacking. If the employer’s suspicion is based on false information, it doesn’t matter – you have no way of defending yourself. This would be unfair but the court said this is not dismissal and therefore there is no need for misconduct proceedings.
Pregnant Employees
If you were a female employee and became pregnant, you were entitled to take maternity leave and guaranteed at least 3 months’ pay while on maternity leave. This right is also enshrined in the constitution.
Now, as soon as the employer knows or suspects that you are pregnant, he can simply put you on notice, telling you he’s terminating the employment contract on notice. The employer doesn’t have to cite the reason that you’re pregnant – just the notice is enough. According to the Supreme Court, this would be perfectly lawful. This renders useless all the constitutional guarantees to protect women against discrimination.
Retrenchment Provisions
Before the judgment, if an employer wanted to retrench some employees, he was required to follow retrenchment procedures set out in terms of the law and to pay a retrenchment package.
Now however, retrenchment procedures are redundant. The employer doesn’t have to make use of these procedures in the law. He can choose, instead, to simply terminate employment on notice and let you serve your notice or pay you in lieu of notice. In other words, the retrenchment package, as it has been known all along, is dead. It is unlikely any company will use it. Why, when you can simply terminate, as indeed Zuva Petroleum did in that case? Which begs the question – why did the legislature ever have those retrenchment provisions if they were meant to be ignored in this way? The Supreme Court has clandestiney amended the Labour Act, rendering some of its provisions, like on retrenchment, moribund.
Labour Unions
If employees wanted collective representation, they could form a union at the company and/or join trade union in their industry or a general trades union such as the ZCTU. The employer had no right to stop them. In fact, it was an offence to do so. Trade unionism has a deep history in Zimbabwe. It was trade unionism that helped give birth to modern nationalism.
Now however, the employer can simply tell his employees that he would prefer if they didn’t join these unions. He doesn’t have to say so directly as he would be committing an offence. But he can simply terminate on notice the employment contract of employees who form or join unions. That way, everyone else will know not to form or join unions. In other words, the right to form or join labour unions faces extinction in a world of extensive employer power. Exploitation of the worker is always easier when workers are not unionised.
Collective Bargaining
Workers have always enjoyed the right to collective bargaining. In most trades, it makes sense to negotiate for wages and conditions of service in a collective form, rather than individually, given the skewed economic relationship between employer and employee. It has been recognised that workers bargain better as a collective. It is so important that it is a constitutionally-recognised right.
Now, however, an employer can circumvent this important right. Workers who don’t accept individual offers or engage in collective bargaining can very simply be placed on notice. Of course they are not told that their contracts are being terminated because they are asserting their right to collective bargaining. They are simply told termination is on the basis of their individual contracts. Each man for himself, no more collective bargaining!
Right to Strike
Under the new constitution, efforts were made to include in specific terms the right to strike, to withdraw labour, to demonstrate, to have sit-ins, etc, these being recognised as critical labour rights. An employer could not fire employees for exercising these constitutional rights within the law.
Now however, “difficult” employees who try to exercise these constitutional rights can simply be fired using termination on notice. The employer needs not give a reason for terminating employment. It will probably be an unfair dismissal under the guise of termination on notice, but this would have to be proven. In effect, the court has, in one judgment, rendered useless these constitutional rights in respect of employees.
Pay-Cut
The employer decides to reduce your wages. In the past you would have recourse in terms of the law and through unions. Now, however, the employer can simply issue a notice of termination of employment if you are not happy. He doesn’t have to justify the wage-cut.
Vindictiveness
- You have burnt the midnight oil earning a new qualification, such as an MBA, hoping for a promotion? Well if your new qualification threatens a boss, he can simply invoke his powers to terminate your employment on notice. No need to invent an offence to institute a lengthy disciplinary hearing which is likely to fail. No need to go the retrenchment route. Just issue a notice to terminate!
- You clashed with your boss over a personal matter – maybe you clashed over a loved one – and he wants to get rid of you? It’s very easy now, he will simply issue a notice in terms of the contract, terminating your employment. In the past he would have had to invent some misconduct allegation which had to be proven in a disciplinary tribunal. Not anymore. Cross the boss and you’re gone. Employees will now live in perpetual fear of the bosses, who wield the sword of Damocles!
- You are worried about health and safety issues at the workplace? Well, in the past you could complain and probably raise alarm with the unions or the regulatory authorities if the employer did not act. Now, however, the employer can tell you to go to where the sun don’t shine! If you cause trouble, he will simply issue notice to terminate employment. He doesn’t have to cite any reason.
- You have been working overtime? You would normally expect extra remuneration for working overtime? Well, now, you might not have a choice. If you refuse, the employer will simply fire you on notice. He doesn’t have to cite any reason. In the past the employer would have had to do through lengthy procedures and the employee would have had an opportunity to complain about the unfairness.
These are examples of the new workplace environment going forward. They may sound extreme but they are not unlikely. We must not forget that at the end of the day, when we talk about “employers”, we are talking about real people with power to exercise on behalf of companies, organisations, etc. They are human being with prejudices. Give them too much power and they will abuse it. The bosses have been given licence to fire at will. They do not have to justify themselves. Where they had to look for good cause, now they only have to cite a contractual provision on notice. The junior employee is literally at the mercy of his or her bosses. Some of the bosses who are celebrating this judgment do not also realises that they are juniors to other bosses and that this sword hangs above them, too. The rights painstakingly developed over the last three decades are now not worth the paper they are written upon.
If the labour laws were too much in favour of the employee and stifled business, then this judgment has veered in the opposite direction, leaving the employee exposed to the whims of the bosses. Labour law has always existed, as the Labour Act states in its preamble and s. 2A to promote and protect the rights of employees, because the employment relationship is inherently in unequal in favour of the employer. Now, however, the employee is back to where he was before legislative intervention – weak, exposed and vulnerable. Heroes of the labour movement, the likes of Benjamin Burombo, Charles Mzingeli and even Joshua Nkomo, must be turning in their graves … A balance is needed and policy-makers in Government must act to restore that balance.
waMagaisa
