Davies Ndumiso Sibanda, Labour Matters
ONE of the contentious clauses of the Labour Amendment Act, which requires dismissed employees to be paid a retrenchment package, was confirmed by the Labour Court, a thing that is likely to have disastrous consequences for some employers and leave many dismissed workers celebrating.
In the matter Nunurai Bore vs Juvania Take Away (Pvt) LTD and Florence Chinyowa, the Labour Court confirmed an order to have a dismissed employee paid the minimum retrenchment package.
This legal position come into effect with the latest Labour Act Amendment No. 5 but employers have not been paying any retrenchment packages citing absurdity of the provisions and not many workers have seriously challenged employers over non-payment of retrenchment packages related to dismissal.
This provision is also part of the class action by EMCOZ. The Judge said the provisions section of 12C (2) read with provisions of section (4a)(a) clearly relate to retrenchment packages payment for employees who are dismissed and as such dismissed employees have to be paid the minimum retrenchment package.
The Judge went further to address the argument of absurdity, which has been raised by employers as they refuse to pay retrenchment packages to dismissed employees. The judge said” In S v Takaendesa 1972(1) ZLR 162 BEADLE CJ (as he then was) referred to “the” elementary (golden) rules on the interpretation of statutes”, and cited, with approval, the excerpt from Maxwell on Interpretation of Statutes. The quotation adopted by the then Chief Justice states: “Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be….The duty of the court is to expound the law as it stands, and to leave the remedy (if one be resolved upon) to others”.
If this judgment is not appealed, it presents good news to dismissed employees and has the potential of opening litigation floodgates with many dismissed workers making claims for retrenchment packages. The judgement effectively makes disciplinary action a waste of time in cases where dismissal is a potential outcome. The employer would rather quietly retrench the individual and avoid the cost of taking disciplinary action and related litigation. Such an approach, while business prudent for employers is cruel to workers who could have argued their cases and survived dismissal. Even if the workers argue unfair dismissal, it will be difficult for them to provide evidence as employers can raise credible arguments such as reorganisation as restructuring as reasons for retrenchment. Some businesses could fold under the weight of retrenchment costs related to dismissal cases.
In conclusion, we all wait to see the effects of the judgement on the ground, however, I am of the opinion that it is likely to increase cases of labour litigation and collapse of business.
Davies Ndumiso Sibanda can be contacted on:
email: [email protected], or cell No: 0772 375 235.