Matthias Ruziwa HR Issues “In terms of section 167(3) of the Constitution of Zimbabwe, the concerned High Court judgment is temporary or provisional in nature and not legally enforceable or binding before it has been confirmed by the Constitutional Court which is reposed with the unique jurisdiction to make the final decision on constitutional invalidity”
The Herald edition of Thursday March 16, 2017 reported that workers who lost their jobs following a Supreme Court ruling which allowed employers to terminate employment contracts on three months’ notice will not get anything following a High Court ruling in the matter between ZIMIND PUBLISHERS (PVT) LTD versus MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE AND ARTTONEY – GENERAL OF ZIMBABWE HH 170 – 17.
Zimind Publishers (Pvt) Ltd as an employer fired 75 workers on August 20, 2015 on the basis of the Supreme Court Judgement No 43/2015.
The Government brought relief to the fired workers through amendments to the labour law that compelled companies to pay fired workers compensation for loss of employment in retrospect. The brief facts of the case according to the High Court judgement are as follows;
Zimind Publishers (Pvt) Ltd as an employer and aggrieved party approached the High Court seeking a declaratory relief impugning the provisions of section 18 of the Labour Amendment Act, 2015 on the basis of ultra vires the Constitution of Zimbabwe and hence unconstitutional.
The import of Section 18 of the Labour Amendment Act, 2015 is that it provides for the retrospective or backdated application of the same Labour Amendment Act, 2015 which was passed into law on August 26, 2015 to commence its application with effect from July 17, 2015 by curtailing the employer’s common law right to terminate an employee’s contract on three months’ notice.
By so doing, section 18 of the Labour Amendment Act, 2015, imposes a legal obligation to financially compensate the affected employee upon an employer who terminated the employee’s contract of employment on notice under the then applicable common law as pronounced in the landmark judgement of the matter in Don Nyamande and Kingstone Dhonga versus Zuva Petroleum on July 17, 2015 including the period from July 17, 2015 to August 25, 2015 when the Labour Amendment Act, 2015 was not yet passed into law by the legislature.
For the avoidance of doubt, the reading of Section 18 of the Labour Amendment Act, no 5 of 2015 states; “The Labour Act (Chapter 28:01) as amended by this Act applies to every employee whose services were terminated on three months’ notice or after 17th July 2015”. The 2015 amendments, particularly section 18 of the Labour amendment Act, 2015 came as a fire-fighting measure when some employers embarked on massive termination of employees on notice.
According to various media reports, it is more likely that around 30 000 workers lost their jobs as employers rode on the excitement that was ushered in by the Zuva judgement.
There was a huge outcry from trade unions against the employers’ actions and they urged the Government to extend protection to those affected.
President Mugabe assured the nation that Government was going to correct the labour laws to ensure a state of equilibrium between employers’ and employees’ interests and accordingly eliminate arbitrary termination of the workers.
The Parliamentary Legal Committee (PLC), which is required to give its opinion on the constitutionality of proposed legislation, unanimously passed an opinion that found the retrospective effect of the proposed changes to be defective and submitted its report to the Parliament on August 18, 2015.
Clause 18 of the proposed labour law amendments would have the effect of revoking the rights of employers to terminate job contracts on notice, as upheld by a July 17 Supreme Court ruling.
The PLC report stated “The clause provides for the retrospective application of section 12 of the Act to every employee whose services were terminated on three months’ notice on or after the 17th of July. The committee unanimously agreed that the clause violates section 3(2) (e) of the Constitution regarding the separation of powers in that the judgment made by the Judiciary was correct at law and in seeking to nullify that by an insertion of the retrospective clause, Parliament will have violated the principle of separation of powers.
Additionally, since the employers acted from the correct position at law, and having vested rights in terms of the Act, applying the retrospective positions in the clause would be punitive on the employer and violates section 56 of the Constitution relating to equal protection of the law.”
However, it must be noted that Parliament voted to override the PLC, after lawmakers condemned the committee’s adverse report.
The legislature made its decision and on August 26, a Labour Amendment Act was gazetted after having been approved by President Mugabe. Since introduction of the Labour Amendment Act, 2015, some employers complied with Section 18 of the Labour Amendment Act, 2015 while others chose to challenge the retrospectivity aspect citing violation of the Constitution’s provisions.
Most employers asked the Employers Confederation of Zimbabwe (EMCOZ) to defend their interests.
In the recent High Court judgement where the court ruled against paying the sacked, Justice Loice Matanda-Moyo remarked as follows; “While it may be lawful to legislate retrospectivity, such legislation may not take away vested rights. I am of the view that taking away vested rights is contrary to the Constitution. It is also not in conformity with the principle of the rule of law to prescribe a law ex post fact. Accordingly, it is declared that;
1. Section 18 of the Labour Act No. 5 of 2015 is inconsistent with sections 3(2)(k), 56(1) and s 86 of the Constitution of Zimbabwe and is therefore invalid.
2. As a consequence, the Registrar of the High Court is hereby directed to refer this matter to the Constitutional Court for a determination in terms of s167(3) of the Constitution of Zimbabwe.”
The lessons from the High Court judgement are;
a) Legislature cannot enact retrospective legislation which has the effect of taking away vested rights and the question still stands to say, Did Section 18 of the Labour Amendment Act, 2015 took away vested rights from the employers?
b) By referring the matter to the Constitutional Court, it simply means the matter is still unresolved as it is subject to determination by the Constitutional Court as stated in paragraph 2 of the judgement.
Labour law expert, Caleb Mucheche of Matsikidze and Mucheche Legal practitioners in his article ” The haunting ghost of three months’ termination of employment on notice: Unlocking the legal effect of the recent Zimbabwean High Court judgement in ZIMIND PUBLISHERS (PVT) LTD versus MINISTER OF PUBLIC SERVICE , LABOUR AND SOCIAL WELFARE AND ATTORNEY – GENERAL OF ZIMBABWE, declaring the retrospective application of the Labour Amendment Act, 2015 to compensate victims of such termination on notice, unconstitutional” explored the legal effect of the High Court judgement and remarked that ” The Constitution of Zimbabwe provides a clear answer on the legal effect of the High Court judgement declaring section 18 of the Labour Amendment Act No.5 of 2015 to be unconstitutional. In terms of section 167(3) of the Constitution of Zimbabwe, the concerned High Court judgement is temporary or provisional in nature and not legally enforceable or binding before it has been confirmed by the Constitutional Court which is reposed with the unique jurisdiction to make the final decision on constitutional invalidity as per the following mandatory provisions;
“The Constitutional Court makes the final decision whether an Act of Parliament or conduct of the President or Parliament is unconstitutional and must confirm any order of constitutional invalidity made by another court before the order has any force”
Mr. Mucheche further states that the provisions of section 167(3) are further aptly buttressed by section 175(1) of the same constitution and advises that it is premature for either employer or employee parties or any other interested party to celebrate or sorrow over the High Court judgement as the final and legally binding decision lie entirely with the Constitutional Court.
The Constitutional Court has not yet given a once and for all definitive legal pronouncement on whether or not section 18 of the Labour Amendment Act, no 5 of 2015 is unconstitutional. As such the legal battle rages on until the Constitutional Court makes its final decision on the matter.
Opinions expressed herein are solely those of the author
Matthias Ruziwa is an experienced Arbitrator and growing Strategic Human Resource Practitioner based in the Midlands Province, City of Kwekwe.