by Benjamin Magogo
Introduction
I
have always contented, with great respect, that if the judgment of the Supreme
Court (“SC”) in the case of Don Nyamande and Another v Zuva Petroleum
(Private Limited) SC 43/2015 (the “Zuva”
judgment) is not being misinterpreted, then in my view, it was wrongly
decided. I have strenuously argued in conversations with many other like-minded
colleagues that the judgment was wrongly interpreted and applied by a host of
employers to their now obvious detriment. I have stressed my respectful view
that for the view relating to the judgment having been wrongly decided to be
acceptable without hustle, we must furthermore accept that the matter was generously
presented and argued from an international labour law practice perspective in
the apex court. Sadly, the apex court seemed unready to traverse that route. What
disappoints me to this day is the fact that the judgment was decided on the
basis of simplistic legal issues, the exposition of which was not beneficially
germane to the resolution of the actual dispute arising from the termination of
the contracts of employment for Mr Nyamande and Mr Donga by Zuva Petroleum (Pvt) Ltd.
Having
perused the fresh Constitutional Court (“Concourt”)
judgment in Greatermans Stores (1979)
(Private) Limited t/a Meikles Stores and Another v The Minister of Public Service,
Labour and Social Welfare and Another CCZ 2/18 (the Greatermans judgment) in so far as it relates to the Zuva Petroleum judgment, I must admit
that I feel hugely vindicated for the view that I took as regards the Zuva judgment. Not only has the Concourt
judgment expressly stated that the Zuva
decision was misinterpreted but it unconsciously expounds temptingly sound
legal principles on which to gauge the overall correctness of Zuva while simultaneously exposing the shortfalls
in the line of argument consciously chosen by the employees in their appeal to
the court. I am very much alive to the
fact that the Concourt did not express a view that Zuva was wrong. A case will be made in this opinion piece that,
even without the Labour Amendment Act No
5 of 2015, the Zuva judgment
cannot be used as authority for the wholesome dismissals which occurred after
its issuance. A deeper analysis will focus on whether the ConCourt judgment
cannot in its effect obliterate the very base on which Zuva was decided.
PART A
THE ZUVA JUDGMENT
The
facts
Mr
Nyamande and Mr Donga were employees of Zuva
Petroleum (Pvt) Ltd, then BP Shell. On the occasion of the transfer of their
undertaking from BP Shell to Zuva Petroleum, their employer offered to retrench
them voluntarily. They rejected the proposed terms for the same. The matter
went to the retrenchment board and the Board postponed the matter for 21 days
to allow for further negotiations. The employer terminated their contracts of
employment immediately after the postponement. An arbitrator ruled the
dismissals to be unfair on the grounds that the two had been unfairly dismissed
other than in terms of a code of conduct. The Labour Court set aside the award
finding that the termination of the contracts of employment was not a dismissal
as envisaged in Section 12B of the Labour Act. The court found that there is no
provision in the Labour Act, let alone Section 12B, that expressly outlawed the
employer’s right to terminate a contract of employment on notice. In the
absence of such a provision, the court reasoned, the termination of employment
on notice – itself an exercise of an extant common law right - could not be faulted.
The employees together with a large section of the labour market froze; no one anticipated
this to emerge from the Labour Court – the supposed statutory bastion of equity
in our court structures.
The
grounds of appeal to the SC
With
respect, the grounds of appeal to the Supreme Court may have been a little
overly generous in that they sought more than just relief for the two employees.
Granted, if the grounds had succeeded
the employees were to benefit but I still think that there was need for an
alternative narrative in the event that the said grounds had failed. The Labour
Court judgment was attacked on three grounds, to wit,
(a)
that it failed to find that the termination of
contracts of employment was an unfair dismissal proscribed in Section 12B of
the Labour Act,
(b)
that
Section 12 (4) of the Labour Act did not provide a right to terminate on notice
and;
(c)
that
the court erred in allowing a termination on notice which was akin to
termination for no cause.
I
pause here to state that the three grounds of appeal asked the court to answer
simple questions which as the law stood were trite. I am alive however to the
fact that the grounds of appeal were pitched in the complexion of international
labour standards and in the expectation that the court would not be prepared to
deviate from same. Sadly, this was not to be. None of the grounds, preferably
in the alternative to ground (b) above, sought to advance an argument that
where the right to terminate on notice is accepted, that right is capable of
limitations and the facts in the present matter (termination for operational
reasons) provided one such exception. Put differently, I opine that the
employees shot themselves in the foot when they insisted on not accepting the
hypothetical possibility that the SC would confirm the existence of the right
to terminate on notice. My gripe with them is simply that they ought to have
pitched their grounds of appeal with an alternative just to cover them in the
event – as it later turned out – that the court was not prepared to accept the
argument for the outright abolishment of the right to terminate a contract of
employment on notice. They ought to have invited the court to decide, once it
finds even against their will that a common law right is extant, on the extent
to which that right could be limited and whether in fact their particular
circumstances gave rise to such a limitation.
The
court’s decision
In
its judgment, the SCanswered the first question on appeal by outlining the
distinction between “termination” and “dismissal” which, barring the tone of
international labour law jurisprudence, was at that time common cause. Following on from the manner in which the
Labour Act is structured, it cannot be gainsaid that a dismissal is merely a
form of termination and not vice versa. On the second ground, the Supreme Court
proclaimed that the employer’s right to terminate on notice was not abolished
by any of the provisions of the Labour Act (Cap 28:01), let alone Section 12B
thereof. In my view, that finding was a product of a literal interpretation of
the provisions of the Labour Act than anything else. Tallied to this was the
rather arguable though settled proposition that an employer has a common law
right to terminate a contract of employment on notice in what was referred to
as “no fault” or what others have termed colourless termination. The court
therefore answered all questions posed by Nyamande and Donga.
Sadly,
these were not the only questions on which matter ought to have rested.
The
first error
With
great respect, the error of the SC was not in stating that the right to
terminate on notice exists in common law. It was not even in its reiteration of
the common cause distinction between termination and dismissal. In those
findings, I am with the court. I differ with it on one point. When the Supreme
Court pronounced itself on these principles of law which in my view were
elementary, it ought to have noted that the matter could not just end there. It
must have proceeded to inquire on the real question which cried for
determination from the facts regardless of whether or not the issue was
motivated before it. Granted; the tragedy was that the real issue was not expressly
placed before it neither was it motivated in argument. That however should not
have been the end of the matter for so important a dispute. The issue was
implied in the facts as they were presented in pleadings. This tragedy was
compounded when the Supreme Court did not identify the real issue and consequently
failed to invite parties to address the same.
It
is not uncommon that courts of appellate jurisdiction advert their minds to
issues which arise by necessary implication from the pleadings. The SC ought in
my view to have requested the parties, or failing them an amicus curiae, to address the question on “whether or not the common law right to terminate on notice was an
absolute right to be exercised without limitations”. In my view the facts
of the matter cried out for a determination of the question of whether the
employer’s reason for termination ought not to be considered as a factor to
disqualify the employer from so exercising the right to terminate on notice. In
other words, the facts of the matter cried for a determination of the
exceptions to the right to terminate on notice, viz, whether the case presented one such exception.
In
my view, this could not have amounted to overstepping or to a court deciding a matter
on issues outside the appeal. The ultimate finding of the SC was that the right
to terminate on notice was extant and that the Labour Act did not abolish it.
It was not out of line for the court to decide the concomitant limitations of a
right which it was proclaiming; worse off in a case where the facts spoke
boldly of one such limitation.
The
case of PG Industries v Mabhena SC 44/03
had long decided that where an employer terminates a contract for operational
reasons, that amounts to a retrenchment and further that where misconduct is
touted as the causa for termination,
then again disciplinary proceedings ought to follow. In both instances,
termination on notice would not have been an option. It followed therefore that
the SC should have considered the operational reasons for the termination of Mr
Nyamande and Donga’s contracts leading to an inescapable finding that the
retrenchment regulations ought to have been followed. That ought to have been
an exception to the exercise of the right to terminate on notice.
I
submit that the Supreme Court’s prime error was not just the failure to detect
and apply the exception to the right to termination on notice. Rather, it was
the failure to consider the issue at all that stands out for mention. The court
could very well have reasoned, wrongly so in my view, that the exception is
inapplicable in the matter but that would have meant that the issue was at
least considered.
The
second error
The
second error made by the Supreme Court in the Zuva judgment is apparent from page 11 of the cyclostyled judgment.
After reproducing Section 12(4) of the Labour Act dealing with notice periods,
the court remarked as follows,
“The wording of s 12(4) of the Act is so
clear that it leaves very little room, if any, for misinterpretation. It
governs the time periods that apply when employment is being terminated on
notice. It stands to reason that the notice periods do not apply when an
employee is dismissed. In instances of dismissal no notice is required. The
periods of notice referred to in s 12(4) of the Act can only apply where there
is termination of employment in terms of a process involving the giving of
notice provided for in a contract of employment.”(emphasis added)
Having
accepted that Section 12 (4) of the Labour Act regulates periods of notice when
employment is being terminated in terms of a process involving the giving of
notice, the court fell into error by treating the common law termination of a
contract of employment on notice as the sole right which gave rise to the
promulgation of Section 12 (4). In so doing, the court ignored the fact that
there existed other methods of terminating a contract of employment which
involved the giving of notice as provided in Section 12 (4). The provision was
therefore not solely meant to regulate the common law right to terminate in
notice. The court’s reasoning appears to be that Section 12 (4) was solely
meant to facilitate the exercise of a right to terminate on notice and nothing
else. To this extent, the court’s reasoning seems to be that Section 12 (4)
would be nugatory if it was not employed to facilitate only the right to
terminate on notice. I strongly disagree. Said the court;
“As Mr Mpofu aptly submitted, providing “for
a time period for a right that does not exist is a puerile exercise, one which
could never have been engaged in by a sane legislator”. The presumption is
that Parliament must be taken to have intended its enactments to have meaning.
Section 12(4) of the Act can only
have meaning if there is a substantive right, in this case the common law right
to terminate employment on notice, to which it pertains. This is especially
so when one considers that all that s 12(4) of
the Act does is to facilitate the exercise of an extant common law right.”
(emphasis added)
With
respect, this is too simplistic a proposition.
Section
12 (4) of the Labour Act does not exist solely to facilitate the exercise of
the common law right to terminate on notice. It does more. It facilitates the
exercise of several other substantive rights to terminate contracts of
employment such as termination for operational reasons in Section 12C or for
medical reasons in terms of Section 14 (b). I submit that though Section 14 (b)
is not made subject to Section 12 (4), good practice in line with the fair
labour standards espoused in the Constitution envisions the giving of notice
before the right to terminate on medical grounds is exercised. In that case
Section 12 (4) becomes important insofar as it lays the law on the applicable
notice. That therefore gives Section 12 (4) life outside the common law termination
on notice right.
Even
then, Sections 13 (1) (b) and (c) of the Labour Act also bring to the fore two other
methods of terminating a contract, to wit, resignation and incapacitation. It
is also submitted that the exercise of the right to terminate a contract of
employment in each of those cases should be guided by Section 12 (4) of the Act
in so far as the notice period to be given is concerned. An employee who resigns
effectively terminates a contract of employment. He/she has to give notice in
order to prepare the employer for life without him/her. Section 12 (4) spells
out that notice. Equally so, when an employer wants to terminate for
incapacity, good practice suggests that the employer ought to give the employee
some notice to prepare the employee for life without it. Section 13 (1) (a)
suggests, inter alia, other methods of termination such as by mutual consent.
Even in that case, notice is given. Section 12 (4) is there to facilitate the
exercise of the right to terminate the contract in such fashion.
That
Section 12 (4) exists only to facilitate the common law right to terminate on
notice cannot, with respect, be good law.
Even
more relevant to the case at hand, Section 12 (4) serves an even undoubted
purpose in termination for operational reasons, i.e. retrenchment. Section 12C
(5) of the Labour Act before the amendment stated that,
“No employer shall retrench any employee
without affording the employee the notice of termination to which the
employee is entitled” (emphasis added).
After
completing retrenchment formalities, by statutory obligation, an employer ought
to give the employee to be retrenched notice. The employee therefore obtains a corollary
right in Section 12 C (5) to be given notice of an unspecified period. That is
where Section 12 (4) kicks in. It facilitates the employee’s right to notice on
the occasion of termination by retrenchment. By proceeding as if Section 12 (4)
was meant only for termination of employment on notice, the court fell into a
huge error of justifying the existence of the right to terminate on notice by
the suggestion of periods in Section 12 (4) as if those periods would become unnecessary
even where the right to terminate on notice is expressly abolished. By
implication, it would not be “a puerile
exercise[1]”
to enact Section 12 (4) even where the right to terminate on notice is
abolished. The recent amendment to the Labour Act exposed this fact. Section 12
(4) was not repealed even though the right to terminate on notice has now been
seriously curtailed. The legislature simply added s12 (4a) even though
effectively outlawing the raw right to terminate on notice.
If
the court had accepted that Section 12 (4) serves a purpose broader than that
to which it ascribed it, then a finding on the inapplicability of the right to
terminate on notice on the facts of this matter would have followed.
The
third error
The
SC reasoned as thus,
“Section 12(4) of the Act explicitly applies
to both the employer and the employee. There is no possible explanation,
and none has been advanced, why, despite the explicit language of the
section, it should apply to the employee only and not to the employer;
or why the section should exist to regulate a non-existent right.”
Granted,
the express wording of Section 12 (4) of the Labour Act applies to both the
employer and employee. However the court’s decried the absence of a
justification for the restriction of the right to the employee in spite of the
clear language of the Act. The justification may not have been presented but
the court ought to have invited argument on that point, or better still it
should have made the same considerations made by the Concourt in the Greatermans case. These considerations
border on the supposed equal standing of the employers and employees. The
ConCourt has made it clear that there is no equality between these two parties.
Said Malaba DCJ (as he then was) at page 31-32 of the cyclostyled judgment;
“The applicants, who belong to a class of
persons obliged to pay minimum retrenchment packages, cannot allege unequal
protection of the law against employees who are in a different class from
theirs. The employees whose contracts were terminated on notice are not
comparable to employers who terminated their contracts on notice for the
purpose of the legislation retrospectively applied to the parties. The employer
cannot in the circumstances claim equality with the employee whose employment
he or she or it terminated on notice.”
The
equal exercise of the right to terminate on notice implied in Section 12 (4) is
based on the faulty premise of equality between the employer and the employee.
These parties are inherently unequal. The other owns the means of production
and thus has a stronger bargaining platform whereas the other depends on the
employer for survival. In the same manner that the Concourt justified the differentiation
between employer and employee for purposes of applying retrospective
obligations on an employer, it is arguable that the SC ought to have construed
Section 12 (4) as giving room to exclude the employer from making use of the
drastic right to terminate on notice without compensation. The right regulated
in Section 12 (4) would therefore have excluded the employer.
The
final error
The
SC did not qualify its judgment in light of the exceptions to the common law
right above. The SC did not limit its applicability. It decided a matter with
facts pointing to an exception without expressly addressing the exception. The
flipside of the court’s manner of doing this comes when a person now wants to
argue and distinguish Zuva based on
the legal principles enunciated therein. Another will contend that Zuva did not state that operational
reasons should be ignored in favour of termination on notice but then another
will simply point to the obvious fact that though this is not expressly stated
in the judgment, it is implied considering that the court decided a matter on
similar facts and even expounded the facts in greater detail.
This
failure to qualify the applicability of
the right as measured against the applicable exceptions is responsible for the
misinterpretation of the judgment by employers as decried by Malaba DCJ in the Greatermans case.
The judgment is now considered next in Part B of this article.
Part B
THE GREATERMANS CASE
The
Greatermans case[2]
was bought as an application to the ConCourt by two employers who, after
terminating contracts of employment en
masse on the strength of the Zuva
Petroleum judgment, were taken aback when the legislature enacted Labour
Amendment Act No. 5 of 2015 (the
Amendment Act). Though it was enacted after the wholesale termination of
contracts of employment for their respective employees, the Amendment Act
carried a provision in terms of which the employers were supposed to compensate
the employees for loss of employment. Put differently, the Amendment Act
introduced a retrospective obligation to pay damages for loss of employment in
the form of a retrenchment package. They alleged that the retrospective
provision was unconstitutional in so far as it infringes their rights as
enshrined in Section 56 (1), 65 (1) and 71 (3) of the constitution, among other
constitutional contentions.
The
constitutional court rejected the application finding, inter alia, that;
(a)
There
was no constitutional provision which prohibits the legislature from passing
retrospective legislation to govern civil as opposed to criminal rights and
obligations.
(b)
The
Applicants failed to pinpoint the specific constitutional right upon which they
relied for their contention challenging the enactment on retrospective
legislation.
(c)
In
any event, the Amendment Act did not in any way infringe any of the rights in
Section 56 (1), 65 (1) and 71 (3) of the constitution.
(d)
The
need to compensate employees who have served their employers for longer periods
of time is founded in social justice and
even more accepted in international labour law statutes some of which have
since been domesticated, and when the legislature gave effect to them in the
amendment, it was a reasonable exercise of legislative power.
(e)
As
regards equality before the law, employers and employees cannot be said to be
equal in the eyes of the law and the legislature could not be faulted for
classifying them differently and giving them different obligations even with
retrospective effect.
The
judgment is indeed a mouthful. Suffice in this piece to focus on the specific
issues on the basis of which I have made the conclusion that Zuva was misconstrued and, in the
extreme case, wrongly decided. These are they.
The case for misinterpretation of the Zuva
judgment
At
page 36 of the cyclostyled judgment, Malaba DCJ (as he then was), remarked as
follows;
“In fact, the Zuva judgment was
misinterpreted to mean that an employer could terminate the employment
contracts of any number of employees at will. There were other provisions in
the Act which prohibited the wholesale termination of employment. For example,
s 12C of the Act before it was amended, provided that the termination of
employment of five or more people amounted to retrenchment and that
retrenchment legislation was to apply”
There
can be no doubt that Malaba DCJ (as he then was) laid out an exception to the
common law right to terminate on notice. To his credit, I will refer to this as
the Malaba DCJ exception. With this exception in mind, there can be no doubt
that all employers who terminated contracts of employment for large swathes of
employees before or after the Zuva
judgment cannot find solace in the judgment anymore. That much now needs no
over-elaboration. I however venture to suggest that the manner in which Zuva was argued and ultimately decided
gave life to this misinterpretation. The generous reluctance to tackle
exceptions to the common law rule may arguably be responsible for the fate of
most employees whose terminations were purportedly based on Zuva. In my view, as the final appeal
court in what was then not a constitutional dispute, the SC ought to have been clearer
on the limit of their judgment not to wait for employers to figure it out
themselves. It has taken the Con Court to clear this position in a way that the
SC itself ought to have done.
Malaba
DCJ’s exception to the right to terminate on notice is simply that the right
cannot be exercised where an employer terminates contracts of employment for a
group of employees. It was inspired by the wording of the then Section 12C of
the Labour Act which outlined the law when an employer was to retrench five or
more employees. Put differently, the Concourt found an exception to the right
to terminate on notice in Section 12C of the Labour Act. That in my respectful
view was and remains obvious. I submit however that the Concourt did not
exhaust all the exceptions under this head neither did it claim to be outlining
them all. As argued above, the facts of the Zuva
judgment provided another exception in the same genus as the Malaba DCJ
exception save for the fact that in this case it governed the retrenchment of
even less than five employees.
To
begin with, Section 2 of the Labour Act defines “retrench” to mean termination
of a contract for operational or similar reasons. It followed therefore that
the reason for termination underlies the procedure to be followed. From the
court’s recital of facts, Zuva
Petroleum terminated contracts of Messrs Nyamande and Donga following
re-organisation of their undertaking. The reason was no doubt operational. The
company even commenced the termination process by offering a voluntary
retrenchment package. There was therefore no doubt about the reason for
termination being an operational one.
In
terms of Section 3 (2) of the Labour Relations (Retrenchment)
Regulations, 2003 also known as SI
186 of 2003, another exception seemingly excluded but related to the Malaba
DCJ exception is introduced[3].
In that provision the procedure to be followed where termination of employment
for operational reasons affected less than five employees is also the
retrenchment legislation. For that reason, it is my submission that the SC in Zuva ought to have realised that the
termination of the employees’ contracts of employment ought to have been
governed by the retrenchment regulations in SI 186 of 2003. If the court had made that finding, it would not
have dismissed the appeal by the employees. The same Court in PG Industires v Mabhena SC 44/03 touched
on this aspect of the law and left no doubt that just as it is not correct to
invoke the right to terminate on notice where the reason given is misconduct,
the same right is unavailable where the reason given for termination is for
operational or reorganisation of the workplace. Said the court at page 8 of the
cyclostyled judgment,
“Mr Matinenga was unable to argue that
terminating an employee’s
employment because of
the re-organisation of the undertaking did not constitute
retrenchment. It is
common cause therefore that Mabhena would have been
retrenched without the
mandatory procedure prescribed in SI 404/90 having been
complied with. Section
10 of SI 404/90 makes it very clear that retrenchment of an
employee outside the
statutorily prescribed procedure shall be of no effect
whatsoever. The
termination of Mabhena’s contract of employment would have been
unlawful for the
reason of non-compliance with the mandatory retrenchment
procedure.”
It
is therefore my view that the court’s pronouncement that the common law right
to terminate on notice was extant though correct was not the only necessary
legal exposition for the resolution of the case brought before it. The case’s
resolution lay in the expounding of applicable and inapplicable exceptions, an
exercise which I contend the court was well positioned to undertake even
outside the parties’ submissions.
The
equality matrix
In
the Zuva judgment, the SC remarked as
thus,
“Section 12(4) of the
Act explicitly applies to both the employer and the employee. There is no
possible explanation, and none has been advanced, why, despite the explicit
language of the section, it should apply to the employee only and not to the
employer;”(emphasis
added)
My
reading of the court’s sentiments, aside from the views expressed elsewhere in
this piece, are that Chidyausiku CJ (as he then was) lamented the absence of
any explanation or justification as to why the common law right to terminate on
notice should not be applied to employers and employees alike. Granted, Section
12 (4) is explicit that the right to be regulated applied to both parties but
the submission made herein is that as in other forms of termination such as
retrenchment, resignation, medical reasons or mutual termination, it does not
follow that either party can avail itself of the right to terminate on the
notice given in Section 12 (4). The specific method of termination prescribes
who between an employer and an employee will give the notice. This is because
not in every case is a right to terminate a contract applicable both ways. The
right or obligation to give notice in a resignation falls on the employee
resigning. In a mutual termination, either party can do so. Where termination
if for incapacity or for medical reasons, it is the employer who gives notice. In
each case, the reason for termination would guide the procedure to be taken and
the specific giver of notice.
It
is therefore too generous to reason that because Section 12 (4) provides that
either party may exercise the right to give the specified notice, then the
exercise of that right inevitably applies to both of them. Where termination is
to be made on notice by the employee, it is a resignation and she/he gives
notice. Where it is the employer who terminates, it is the employer who gives
notice. There was therefore room to argue that there exists a possible
explanation to apply the right to terminate on notice only to employees because
the notion that employers and employees are equal in the eyes of the law is
illusory. As alluded to above, Malaba DCJ clearly accept that there is inherent
inequality between employers and employees in the Greatermans case. I would venture to submit that the inherent
inequality was good reason enough to ascribe the right to give notice provided
for in Section 12 (4) to an employee and not to the employer. That view would
even negate the basis upon which the SC sought to apply the right to terminate
on notice as if it was some equal right between equal parties. I accept that a
lot could be said on this point but I leave it at that save to highlight that
if Malaba DCJ’s inequality argument is taken as seriously as he brings it out
in the Greatermans judgment, there
can be no doubt that the exercise of the right to terminate on notice could
only have been reserved for employees and not employers because the benefits
and burdens of terminating a contract on notice are not felt the same between
the employer and the employee.
Compensation
for long service.
Malaba
DCJ picks on a trite principle of labour relations which is underpinned by
social justice and equity and reflected in the international labour law instruments
to which he made reference. He says on page 43,
“It
is recognised principle of our labour relations of social justice that when
employment is being terminated for reasons other than misconduct, compensation
for long service rendered is paid. Payment of a severance package based on
length of service to an employee whose contract was terminated for a reason
other than misconduct has always been viewed as a means of ensuring that the
employee has a soft and safe landing after losing employment.” (emphasis added)
On
the strength of this principle which derives largely from the body of
international labour law standards accepted and domesticated in this nation, a
court of law should not sanction a termination of employment as a result of
which an employee would not be compensated for long service where the
termination is for reasons other than misconduct. In other words, the SC in Zuva ought to have realised the inequity
and injustice in acceding to the termination on notice for long serving
employees whose contracts were not terminated for misconduct when it was clear
that the method of termination would effectively leave them without a legal
entitlement, save for an employer’s discretion, to be paid compensation. Messrs
Nyamande and Donga were long serving employees who were discharged at a time
the company’s undertaking was being transferred. There could never have been
more justification for them to be compensated than that. For this reason, the
court ought to have been persuaded to consider the applicability of SI 186 of
2003, the only instrument brought in place by the legislature to govern their
discharge and to guarantee them fair compensation for long service rendered.
Conclusion
It
is my respectful view that to state that Zuva
Petroleum is only being misinterpreted is a soft landing spot for a Constitutional
Court that does not wish to proclaim that the same court, sitting as a SC, was
wrong in a very recent past. While Malaba DCJ’s judgment in the Greatermans case leaves no doubt on the
question of misinterpretation of the Zuva
case albeit in the stated restricted sense, a more compelling case can be made
to outrightly declare that on the basis of the sound principles of perceived equality
before the law and the need for compensation on termination enunciated by the Concourt
in the Greatermans case, the Zuva judgment was wrongly decided. It
does not make good law. That the matter may have been ambitiously argued is
neither here nor there. The SC is not a kindergarten court. It should have
anticipated the consequences of issuing an incomplete judgment. If ever there
was doubt about this, the madness that was precipitated by its judgment which
culminated in the sacking of up to 18 000 employees (against the background of
calm and measured terminations prior to the judgment) is testimony enough that
such judgment cannot represent good law. The retrospective Labour Amendment Act
would not have been needed if the SC had done what it ought to have done. If
the SC cannot initiate the process to overrule itself, then the Concourt must be bold
enough to do it. This may also be a reason why there is clamour in the legal
fraternity for the Concourt and SC to be separate courts in the true sense. Bad
law should not remain in our law books simply because the person/institution which
pronounced the bad law is the same expected to lead the way in denouncing from
it.
[1] as
was argued by counsel and accepted by the Court.
[2]
Supra, Greatermans
Stores (1979) (Private) Limited t/a Meikles Stores and Another v The Minister
of Public Service , Labour and Social Welfare and Another CCZ 2/18.
[3]
There can be no question that SI 186 of
2003 is intra vires the Labour Act and therefore it was an acceptable
limitation to the common law right to terminate on notice. See Chidyausiku CJ’s
remarks at page 5 f the Zuva judgment supra, where he accepted that “….,
it is common cause that once upon a time both the employer and the employee had
a common law right to terminate an employment relationship on notice. That
common law right in respect of both the employer and the employee can only
be limited, abolished or regulated by an Act of Parliament or a statutory instrument
that is clearly intra vires an Act of Parliament.”(emphasis added)
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* No part of this publication can be reproduced without the writer's express permission.
