The Supreme Court has in the last few weeks handed down two Labour Law decisions that have left many feeling justifiably rather nervous. The first decision that sent shock waves amongst the relatively few employed Zimbabwean workforce was the ruling that employers have a common law right to terminate employment on notice, and this right is not hampered in any way by s12B in the Labour Act dealing with unfair dismissal.
A key part of the reasoning in the ruling was the fact that the Labour Act did not on the face of it intend to dislodge the common law right. Further, under the act in s12(4) we are given time periods for the giving of notice in the event of termination. This was held to be further proof of the existence of a common law right to terminate on notice as 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 legislature.”
Essentially, because the Act does not explicitly do away with the right to terminate on notice, the right still exists and can be used by employers and employees alike. The second decision states that the court cannot and will not read benefits and allowances into employment contracts, where these are not provided for.
Termination spree further proof economy is in jeopardy
Within 24 hours of this ruling being handed down, termination notices were flying left, right and centre. What started off as restructuring by privately owned corporations quickly extended into the public sector as well. Parastatals have also been letting some of their employees go, with more dismissals announced by ZBC today. Employers seem to be heaving a collective sigh of relief. They had been complaining quite vocally through various media that the rigidity of labour laws was robbing them of the flexibility to adjust to the prevailing economic climate thereby robbing them of a competitive edge both in regional and wider international markets.
Meanwhile, workers have been decrying what they perceive as the erosion of legal protections in a country that theoretically calls itself socialist. The court in its termination decision was quick to emphasise that it was important that employers and employees alike have equal access to the right to give notice, stating that to rule that the right to give notice existed but could only be used by employees would be unfair.
Changes in employer-employee relations
Labour experts have expressed concern that these rulings provide an unequal balance of power on the labour market. This is because employees are now quite obviously liable to lose work without any compensation, even where their employment is lost through no fault of their own. The days of a package being guaranteed are over. While the court was at pains to emphasise that termination by notice was but one way of ending employer-employee relations, they cannot be unaware that it is set to become a very popular route. Many companies – as we have already seen, would rather get rid of hordes of employees without further haemorrhaging capital. And in the event of a retrenchment procedure being started but having stalled, what is to stop a company from opting to terminate with notice instead? Nothing at all, given that that is what happened to the Zuva employees.
Unequal bargaining power in entering into contracts
It’s an established point of contract law that the law will not protect you if you make a bad deal. Or if you come to an agreement that you regret but there was neither mistake nor misrepresentation to lean on to vitiate the contract, then the contract holds. In the second ruling to do with benefits and allowances, the courts essentially said that all they’ll be doing is reading your contract and seeing whether you’re entitled to claim what you claim you’re entitled to claim. This initially sounds very fair because what are contracts there for but to set the tone and terms of engagement? However, legal soundness aside we must be aware that with this ruling, assuming that everyone has the power to negotiate the best possible terms for their employment is simply untrue.
Yes, collective bargaining is a thing, but that doesn’t apply across industries and there is not an effective/ efficient union for every economic sector ever. This means that there is an onus on every individual attempting to enter the job market to not only read the terms of the contract, but to also try to have terms they deem necessary inserted, such as an actual living wage. This is no easy ask in Zimbabwe. Most employers just send through a standard contract and the expectation is that you will sign it. In this particular economic climate, attempts at negotiation are frowned upon and fear mongering is a sport many corporations actively engage in. It’s a lot more difficult if you are looking for entry-level work because as far as corporations are concerned, you are easily replaced.
Zimbabwean employers and casual fear mongering
Yes, companies have been facing liquidity constraints and yes, they have to become more competitive if they want to be able to compete on the global market. However, what makes these decisions problematic for me is the way they are already feeding into the culture of fear mongering that is the norm in too many Zimbabwean corporations. People are generally overworked, underpaid and constantly reminded of the swarms of people who would kill to have their jobs and a stable income. A stable income of any sort given that many do not earn a living wage. Only now we’ve eroded that stability somewhat, as well as hopes of a cushion should one find themselves out of work. Suddenly, the possibility of you becoming an instant entrepreneur -a vendor- has become the Zimbabwean norm.
The narrative of the ‘lazy worker’ trying to bleed corporations dry has been given a lot of credence over the past few years. I am now concerned that the rulings will bolster employers’ feelings of entitlement to increase workloads and continue to underpay those who are not in management positions. What does the future hold for employees? No one can say. But if you have a job, be thankful…and hope that you get to keep it.
To read more from Anthea, check out her blog: thirdculturefeminist.
Main image from www.marxist.ca