Davies Ndumiso Sibanda
THE Labour Amendment Act had an unintended consequence of giving employers an alternative to dismissal other than using the code of conduct.
The provisions of section 93(5) of the Labour Act make it very expensive to terminate employment contracts using the national employment code of conduct as one has to conduct a hearing, attend to an internal appeal, appear before a Labour Officer for conciliation and appear before the same Labour Officer for adjudication and thereafter appear before the same Labour Court.
This process can take several months meaning that if the employer loses the case he will pay a substantial amount to the employee.
Many employers have abandoned the disciplinary process when there are cases of indiscipline involving employees with a short service.
They now prefer the retrenchment route which will cost them 3 months’ salary notice pay plus one month salary for every 2 years worked and the matter is put to finality.
While this is definitely cruel, it cannot be denied that the cumbersome dispute resolution process introduced by the Labour Amendment Act is responsible for the conduct of employers as they find it more business prudent to retrench rather than discipline.
In the majority of cases, employers do not even tell the employee that he/she has committed a misconduct, they merely exercise their right to retrench by giving the employee notice of intention to retrench and thereafter engage the employee over the retrenchment package and the employee has no choice but to accept the package as he/she will be aware of the fact that going to the Retrenchment Board is unlikely to change anything. Moreso, given the fact that in the majority of cases, even if misconduct is not the official reason given for the retrenchment, the worker will be aware of the underlying cost.
I am of the view that the Labour Amendment Act did not intend to make dispute resolution cumbersome to an extent that retrenchment becomes a better option as many retrenchment packages given in this manner are much lower than litigation costs related to following the national code of conduct procedures. However, as things stand, employees are going to continue to abuse the retrenchment process as it is a cheaper option.
In conclusion, workers have very limited room when it comes to dispute resolution and raising grievances against the employer as they can easily be retrenched for raising a simple grievance moreso those with a shorter service.
Davies Ndumiso Sibanda can be contacted on: email: [email protected] or cell no: 0772 375 235