MIDLANDS STATE UNIVERSITY

FACULTY OF LAW

BACHELOR OF LAWS HONOURS DGREE

LABOUR LAW

MODULE LB 309

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Author: Tapiwa G. Kasuso
LLD Cand (Mercantile Law) (University of South Africa)
LLM (University of South Africa)
LLB (Hons) (University of Zimbabwe)

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Table of Contents
OVERVIEW..............................................................................................................................................1
UNIT 1.........................................................................................................................................................3
Introduction to Labour Law........................................................................................................................3
1.1 Introduction...................................................................................................................................3
1.2 Objectives.......................................................................................................................................3
1.3 Definition of Labour Law...................................................................................................................3
1.4 Branches of Labour Law.....................................................................................................................3
1.5 Importance of Labour Law.................................................................................................................4
1.6 Purpose of Labour Law.......................................................................................................................5
1.7 Theoretical Perspectives on Labour Law..........................................................................................5
1.7.1 Libertarian Perspective................................................................................................................6
1.7.2 Social Justice Perspective.............................................................................................................7
1.8 Summary.........................................................................................................................................8
References..................................................................................................................................................9
UNIT 2......................................................................................................................................................10
Sources of Labour Law...........................................................................................................................10
2.1 Introduction.......................................................................................................................................10
2.2 Objectives...........................................................................................................................................10
2.3 Legislation..........................................................................................................................................10
2.3.1 The Constitution.........................................................................................................................11
2.3.2 Acts of parliament.......................................................................................................................13
2.3.3 Delegated legislation...................................................................................................................13
2.4 International Labour Standards......................................................................................................14
2.5 Common Law.....................................................................................................................................15
2.6 Custom...............................................................................................................................................17
2.7 Authoritative Texts............................................................................................................................17
2.8 Summary............................................................................................................................................18
UNIT 3......................................................................................................................................................20
Evolution of Labour Law in Zimbabwe.................................................................................................20
3.1 Introduction.......................................................................................................................................20
3.2 Objectives...........................................................................................................................................20
3.3 Colonial Epoch (1888-1990)..............................................................................................................21

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 3.3.1 Proclamation of 10 June 1891....................................................................................................22
3.3.2 The Hut Tax Ordinance 5 of 1894.............................................................................................23
3.3.3 Southern Rhodesia Order in Council of 20 October 1898.......................................................24
3.3.4 Public Service Regulations 1898................................................................................................24
3.3.5 The Natives Employment Ordinance 9 of 1899........................................................................25
3.3.6 Master and Servants Ordinance 1901.......................................................................................25
3.3.7 Industrial Dispute Ordinance 1920...........................................................................................27
3.3.8 The Southern Rhodesia Constitution of 1923...........................................................................27
3.3.9 The Industrial Conciliation Act 10 of 1934...............................................................................28
3.3.10 Industrial Conciliation Act 21 of 1945.....................................................................................29
3.3.11 Federation of Rhodesia and Nyasaland...................................................................................30
3.3.12 Industrial Conciliation Act 29 of 1959.....................................................................................31
3.3.13 Southern Rhodesia Constitution of 1961.................................................................................32
3.3.14 The 1965 Unilateral Declaration of Independence Constitution...........................................35
3.3.15 The 1969 Constitution of Rhodesia..........................................................................................35
3.3.16 The 1979 Zimbabwe - Rhodesia Constitution.........................................................................36
3.4 Post Independence Period (1980-2018)............................................................................................37
3.4.1 The 1980 Constitution of Zimbabwe.........................................................................................38
3.4.3 The Minimum Wages Act 1980..................................................................................................39
3.4.4 Employment Act 13 of 1980.......................................................................................................40
3.4.5 Labour Relations Act 16 of 1985 and its amendments.............................................................41
3.5 Summary............................................................................................................................................48
References................................................................................................................................................49
UNIT 4......................................................................................................................................................50
The Protection of Employees in Terms of Labour Legislation.............................................................50
4.1 Introduction.......................................................................................................................................50
4.2 Objectives...........................................................................................................................................50
4.3 Application of the Labour Act..........................................................................................................50
4.4 Statutory Exclusions..........................................................................................................................51
4.5 Application of Labour Act when Inconsistent with other Laws.....................................................52
4.6 Interpretation of the Labour Act......................................................................................................53
4.7 Defining the Employment Relationship...........................................................................................54
4.8 Parties to the Employment Relationship..........................................................................................55

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 4.8.1 Employee.....................................................................................................................................56
4.8.3 Employer.....................................................................................................................................60
4.9 Types of Contracts of Employment..................................................................................................61
4.9.1 Contracts of indefinite duration................................................................................................62
4.9.2 Fixed term contracts...................................................................................................................62
4.9.3 Casual contracts..........................................................................................................................62
4.9.4 Seasonal contracts.......................................................................................................................63
4.9.5 Probation contracts....................................................................................................................63
4.9.6 Managerial employees................................................................................................................64
4.10 Content of Contract of Employment..............................................................................................64
4.11 Variation of a Contract of Employment........................................................................................65
4.12 Summary..........................................................................................................................................66
References................................................................................................................................................68
UNIT 5......................................................................................................................................................69
The Employment Relationship: Rights and Duties of the Parties........................................................69
5.1 Introduction.......................................................................................................................................69
5.2 Objectives...........................................................................................................................................69
5.3 Duties of Employees...........................................................................................................................69
5.3.1 Duty to provide service...............................................................................................................69
5.3.2 Duty of competency and reasonable efficiency.........................................................................71
5.3.3 Duty of subordination.................................................................................................................72
5.3.4 Duty of good faith.......................................................................................................................73
5.4 Duties of Employers...........................................................................................................................75
5.4.1 Common law duties....................................................................................................................75
5.4.2 Statutory duties...........................................................................................................................77
5.5 Other Terms and Conditions of Employment.................................................................................83
5.5.1 Concept of Unfair Labour Practices.........................................................................................83
5.5.2 Restraint of trade........................................................................................................................86
5.5.3 Transfer of employees................................................................................................................86
5.5.4 Promotion employees..................................................................................................................87
5.5.5 Vicarious liability........................................................................................................................87
5.6 Summary............................................................................................................................................89
UNIT 6......................................................................................................................................................92

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Breach of Contract of Employment and Remedies...............................................................................92
6.1 Introduction.......................................................................................................................................92
7.2 Objectives...........................................................................................................................................92
7.3 Remedies Available to Employers....................................................................................................92
7.3.1 Common law remedies...............................................................................................................92
7.3.2 Statutory remedies......................................................................................................................94
7.4 Remedies Available to Employees....................................................................................................95
7.4.1 Reinstatement.............................................................................................................................95
7.4.2 Re-employment...........................................................................................................................97
7.4.3 Damages in lieu of reinstatement...............................................................................................98
7.4.5 Back pay....................................................................................................................................101
7.4.6 Punitive damages......................................................................................................................101
7.5 Summary..........................................................................................................................................102
UNIT 7....................................................................................................................................................105
Termination of The Contract of Employment.....................................................................................105
7.1 Introduction.....................................................................................................................................105
7.2 Objectives.........................................................................................................................................105
7.3 Termination under the Common Law...........................................................................................106
7.3.1 Termination by mutual agreement..........................................................................................106
7.3.2 Termination on notice..............................................................................................................106
7.3.3 Summary termination..............................................................................................................107
7.3.4 Death..........................................................................................................................................108
7.3.5 Effluxion of time.......................................................................................................................108
7.3.6 Completion of specified task....................................................................................................108
7.3.7 Impossibility of performance...................................................................................................108
7.3.8 Insolvency..................................................................................................................................109
7.3.9 Resignation................................................................................................................................109
7.3.10 Retirement...............................................................................................................................110
7.4 Termination under Statute.............................................................................................................110
7.4.1 Transfer of undertakings.........................................................................................................110
7.4.2 Retrenchment............................................................................................................................112
(i) Defining retrenchment.............................................................................................................113
(ii) Retrenchment procedure......................................................................................................113

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 7.4.3 Voluntary retrenchment...........................................................................................................116
7.5 Unfair Dismissal Law......................................................................................................................117
7.6 Meaning of Unfair Dismissal..........................................................................................................118
7.7 Types of Unfair Dismissals..............................................................................................................119
7.7.1 Constructive dismissal..............................................................................................................119
7.7.2 Non-renewal of a fixed term contract by the employer..........................................................120
7.7.3 Dismissal under a code of conduct or model code..................................................................122
7.8 Summary..........................................................................................................................................132
UNIT 8....................................................................................................................................................134
Law of Dispute Settlement....................................................................................................................134
8.1 Introduction.....................................................................................................................................134
8.2 Objectives.........................................................................................................................................134
8.3 Nature of Industrial Disputes.........................................................................................................134
8.4 Types of Disputes.............................................................................................................................135
8.5 Prescription of Industrial Disputes................................................................................................136
8.6 Resolving Industrial Disputes.........................................................................................................137
8.6.1 Conciliation...............................................................................................................................137
8.6.2 Arbitration................................................................................................................................140
(a) Voluntary arbitration...........................................................................................................140
(b) Compulsory arbitration.......................................................................................................140
8.7 Labour Courta.............................................................................................................................141
8.9 Summary..........................................................................................................................................155
References..............................................................................................................................................156
UNIT 9....................................................................................................................................................157
Trade Union Law and the Right to Organise......................................................................................157
9.1 Introduction.....................................................................................................................................157
9.2 Objectives.........................................................................................................................................157
9.3 International Perspectives on Trade Unionism.............................................................................158
9.4 Types of Trade Unions....................................................................................................................159
 Craft unions...............................................................................................................................159
 General unions...........................................................................................................................159
 Industrial unions........................................................................................................................159
 Occupational or non-manual unions........................................................................................159

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 9.5 The Structure of Trade Unions...................................................................................................159
9.6 The Legal Framework of Trade Unions in Zimbabwe.................................................................160
9.6.1 The Constitution of Zimbabwe................................................................................................160
9.6.2 The Labour Act.........................................................................................................................161
9.6.3 Formation and registration of trade unions............................................................................162
9.6.4 Consequences of registration and non-registration................................................................165
9.6.5 Deregistration and variation of registration of trade unions.................................................166
9.7.1 Workers’ committees................................................................................................................167
9.8 Trade Unions in the Public Service................................................................................................171
9.9 Summary..........................................................................................................................................172
References..............................................................................................................................................173
UNIT 10..................................................................................................................................................174
Collective Bargaining Law....................................................................................................................174
10.1 Introduction...................................................................................................................................174
10.2 Objectives.......................................................................................................................................174
10.3 Worker Participation....................................................................................................................175
10.4 Forums for Worker Participation................................................................................................175
10.4.1 Works council.........................................................................................................................176
10.4.2 Employment councils..............................................................................................................177
10.5 Collective Bargaining....................................................................................................................178
10.5.1 The legal framework for collective bargaining in Zimbabwe..............................................180
10.5.2 Types of collective bargaining agreementss..........................................................................181
10.5.3 Parties in collective bargaining..............................................................................................181
10.5.4 Levels of collective bargaining...............................................................................................182
10.5.5 Duties in collective bargaining...............................................................................................183
10.5.8 Deadlocks in collective bargaining........................................................................................184
10.5.9 Registration and enforcement of collective bargaining agreements....................................184
10.5.10 Amendment of collective bargaining agreements...............................................................185
Activity 10.3...........................................................................................................................................185
10.6 Summary........................................................................................................................................185
References..............................................................................................................................................186
UNIT 1....................................................................................................................................................187
Collective Job Action Law....................................................................................................................187

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References..............................................................................................................................................205
UNIT 12..................................................................................................................................................206
Social Security Law...............................................................................................................................206
12.1 Introduction...................................................................................................................................206
12.2 Objectives.......................................................................................................................................206
12.3 Defining social security..................................................................................................................206
12.4 Compensation for Work-related Injuries, Diseases and Deaths................................................207
12.4.1 Application of the compensation scheme..............................................................................209
12.4.2 Circumstances under which compensation is due................................................................210
12.4.3 Special provisions....................................................................................................................211
12.4.4 Procedure for compensation..................................................................................................212
12.4.5 Compensation payable...........................................................................................................212
12.5 State Employees.............................................................................................................................213
12.6 Pension Law...................................................................................................................................213
12.6.1 Private pension schemes.........................................................................................................214
12.6.2 State pension scheme..............................................................................................................216
12.6.3 Pension law in the public sector.............................................................................................216
12.7 Summary........................................................................................................................................216

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OVERVIEW

Labour law refers to a collection of rules that regulate the voluntary relationships arising from
the workplace and whose enforcement is guaranteed by the State as law. These relationships can
either be individual, collective or tripartite. This module is intended to equip students with a
working knowledge of Zimbabwean labour law, its principles and foundations. It is divided into
three parts, namely individual labour law, collective labour law and some aspects of social
security. The module takes a holistic approach which is influenced by international standards,
international best practices, global trends and the changing patterns of the international labour
market.

The first part of the module on individual labour law is in Units 1-8. In Unit 1 we define the term
labour law and discuss the branches of labour law, the importance and purpose of labour law,
including the theoretical perspectives of the discipline. Unit 2 is concerned with the sources of
labour law and these incude the following: legislation, the common law, international labour
standards, custom and authoritative texts. In Unit 3 we discuss the evolution of labour law in
Zimbabwe from 1888 to present day. Unit 4 deals with the protection of employees in terms
labour legislation. Parties to the employment relationship are identified, categories of employees
are discussed and the contents of a contract of employment are reviewed. Unit 5 is concerned
with the rights and duties of parties to the employment relationship. We will discuss the common
law as well as the statutory rights and duties of employers and employees. Other concepts such
as unfair labour practices, restraint of trade, transfer of employees, promotion and vicarious
liability are discussed.

Unit 6 gives an overview of the remedies available to both employers and employees in the event
of breach of the contract of employment by either party. Remedies available to employees such
as reinstatement, re-employment, backpay and damages in lieu of reinstatement are given
prominence. In Unit 7 we will evaluate the various forms of lawfully terminating a contract of
employment under the common law and labour legislation. Of significance is an overview of
dismissal law in Zimbabwe. The various forms of unfair dismissal under section 12B of the
Labour Act (Chapter 28:01) are hashed out. In Unit 8 we evaluate the law of labour dispute
settlement. Types of disputes are defined and the various forums of resolving labour disputes
such as conciliation, arbitration, Labour Court and the civil courts are discussed.

Units 9-11 constitute the second part of the module and are concerned with aspects of collective
labour law. In Unit 9 we discuss the right to organise and trade union law. This includes issues
such as types of trade unions, formation and registration of trade unions, deregistration of trade
unions and the legal framework of workers’ committees in Zimbabwe. In Unit 10 we discuss the
legal framework of collective bargaining in Zimbabwe including the following: types of

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collective bargaining agreements, parties to collective bargaining, and levels of collective
bargaining, duties in collective bargaining and registration and enforcement of collective
bargaining agreements. In Unit 11 we discuss the legal framework regulating the right to
collective job action in Zimbabwe.

Unit 13, is the last part of the module. It gives an overview of social security law in Zimbabwe.
Issues covered include compensation for work-related injuries and pensions law.

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 UNIT 1

Introduction to Labour Law

1.1 Introduction

This unit introduces students to the discipline of labour law and its theoretical foundations. It
defines the term labour and identifies the branches of labour law. In addition, it discusses the
importance of labour and theoretical perspectives on labour law.

1.2 Objectives

By the end of this unit, you should be able to:

 define the term labour law
 identify the two main branches of labour law
 explain the importance and purpose of labour law
 discuss the theoretical foundations underlying labour law in Zimbabwe

1.3 Definition of Labour Law

Labour law is a system of rules that regulates the voluntary relationships arising from the
workplace, whose enforcement is guaranteed by the State as law (Gwisai, 2006, p.3). In addition,
it embraces the rules regulating the existence and operation of all the institutions of the labour
market, such as employee organisations, employer organisations, the State in its dual capacity as
employer and regulator and the labour dispute resolution entities (Madhuku, 2015, p.1).
Therefore, labour law is concerned with the mutual relations arising from the workplace. These
relationships can either be at an individual level or collective level.

1.4 Branches of Labour Law

Workplace relations can either be individual or collective in nature. These relationships signify
the two main branches of labour law, namely, individual and collective labour law. On the one
hand, individual labour law regulates the relationship between a single employer and a single
employee. Its foundation is the contract of employment entered into by an individual employer
and an individual employee. Generally, individual labour law concerns itself with the following
issues: formation of the employment relationship, content of the contract of employment, rights
and duties of parties to the employment relationship, termination of the contract of employment,

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enforcement of the contract of employment, remedies for breach of the employment relationship
and dispute resolution. On the other hand, collective labour law regulates the collective relations
in the labour market, such as that between group of workers through workers’ committees and
trade unions and an employer or group of employers through employer’s organisations. Under
collective labour law, focus is on issues such as collective bargaining, trade union organisation
and collective job action law.

Although the distinction between individual and collective labour law is conceptually useful,
there is no watertight distinction between these two branches of labour law (Basson, 2006, p.4).
The two branches do overlap and impact on each other. For instance, wage negotiations on a
collective level through collective bargaining between an employer’s organisation and a trade
union may directly impact on how much an individual employee is to be paid. The subordination
of labour and inequality inherent in the individual relationship between an employer and
employee is what drives the formation of collective labour relations and ultimately collective
labour law.

A third relationship which is difficult to classify involves the State. The State has relationships
with all its citizens (such as individual workers) and with all groups of citizens (groups
formalised into, for example, trade unions or employers’ organisations). This is a relationship
between the State and its collective subjects.

Activity 1.1
1. Define the term labour law.
2. Analyse the difference between individual labour law and collective labour law?

1.5 Importance of Labour Law

Labour law is the principal means by which relationships arising out of the workplace are
regulated. Therefore, the significance of labour law as a discipline is apparent at individual,
collective, national and societal levels (Van Niekerk et al, 2012, p.3). At an individual level work
is fundamental to the definitions of self and provides status and esteem. It is also the primary
means through which one earns an income for consumption. This is the reason why loss of
employment has devastating effects on an employee, economically, socially and emotionally. At
economic, social and political levels, work is the principal means to create wealth and conduct
economic activity. Adam Smith (1723- 1790) stated that ‘it was not by gold or silver but labour
that all wealth of the world was purchased.’ At collective level, groups of workers such as trade
unions have had a great impact on government policies through collective job actions. Trade
unions have also had an impact on the political landscapes of many nations. For instance, in
Zimbabwe, the Movement for Democratic Change (MDC) a labour based political party, formed
to seriously challenge ZANU-PF hegemony, was born out of the Zimbabwe Congress of Trade
Unions (ZCTU). In light of the foregoing, labour law is a discipline worthy of study. It deals

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with bread and butter issues.

1.6 Purpose of Labour Law

The basis of the employment relationship is the contract of employment. In terms of this
relationship, work is done in a position of subordination, in that an employee works under the
command, control and authority of an employer. Kahn-Freund (1977, p.6) concisely captures the
reality of the relationship between an employer and employee in the following terms:
The relation between an employer and an isolated employee is typically a relation between a
bearer of power and one who is not a bearer of power. In its inception it is an act of submission,
in its operation it is a condition of subordination, however much the submission and the
subordination may be concealed by that indispensable figment of the legal mind known as the
‘contract of employment.’

In reality there is an inherent imbalance of power within the employment relationship. Thus, the
first purpose of labour law is to protect employeees. It seeks to balance the inequality of
bargaining power inherent in the employment relationship by facilitating the operation of
organised labour as a countervailing force to capital (Madhuku, 2015, p.3). This is achieved
through guaranteeing of collective labour rights alien to the common law such as the right of
employees to organise, right to collective bargaining and the right to collective job action. In
addition, labour law regulates, supports and restrains the power of capital and the power of
organised labour law (Rycroft & Le Roux, 2017, p.14). Labour law acts as a balancing
mechanism to protect the employer and employee from the other party’s power.

Furthermore, labour law performs a social function of protecting employees from the full
operation of market forces by creating minimum conditions of employment which parties to the
employment relationship are prohibited from contracting below. These minimum floor of rights
include entitlement to leave, maximum hours of work, minimum wages and protection from
unfair dismissals (Madhuku, 2015, p.2). Modern notions of labour law also view the purpose of
labour law as to promote economic development and social justice. Dukes (2014) contends that
the purpose of labour law is to promote economic efficiency and labour market flexibility in a
way that responds to demands for fair treatment of workers. This approach calls for the
entrenchment of minimum or core standards of employment so as to protect workers from abuse
by employers. In conclusion, it can be argued that labour law seeks to protect employees, balance
the inequality inherent in the employment relationship, and promote social justice, economic
development and labour market flexibility. In Zimbabwe, these objectives are mainly achieved
through the Constitution and labour legislation such as the Labour Act (Chapter 28:01) and
regulations made thereunder.

1.7 Theoretical Perspectives on Labour Law

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The employment relationship is the predominant framework that underpins the operation of the
labour market in Zimbabwe. As noted above, this relationship is premised on the common law
contract of employment which ensures that an employer and employee are on an equal footing.
Put differently, it is based on principles of sanctity of contract and freedom to contract on equal
terms, the right to work under any conditions and the ‘enter and terminate at will principle.’ In
reality, this is a legal fiction. The employment relationship is a relationship of inequality between
a bearer of power (the employer) and a person who is not a bearer of power (the employee)
(Basson et al, 2002, p.38). It is for this reason that the State has intervened in the realm of labour
law by ensuring that most principles of labour law are regulated by legislation such as the Labour
Act. The question which then arises is, to what extent should the State intervene in the labour
market? Basically, they are two schools of thought which discuss the extent to which the State
should intervene in the labour market, namely, the libertarian perspective and the pluralist
perspective.

1.7.1 Libertarian Perspective

This perspective is the other side of the same coin of the laissez faire or free market model or the
unitarist perspective of labour relations (Van Niekerk et al, 2012, p.7). It is premised on the
common law contract of employment. The theory advances that happiness can only be achieved
if society and the economy are regulated through the laws of supply and demand. In respect of
the employment relationship, the contract of employment and the individual bargain it represents
is the only mechanism to regulate the relationship. Intervention by the State, through labour
legislation is regarded as alien. Not only does it impose unwarranted regulation of the freedom to
contract on equal terms in the labour market but it is also inconsistent with employees’ right to
work under any conditions (Van Nierkerk et al 2012, p.7).

Unitarists also view collective organs of employees such as workers’ committees and trade
unions with disdain. They are not essential for harmonious management of industrial conflict.
Proponents of this theory advocate for deregulation of the labour market as they believe that it is
the best way to protect interests of both employers and employees. This enhances production and
ultimately results in improved conditions of work for employees. Guest and Peccel (2001) also
argue that with the unitarist perspective, employer and employee interests are integrated, thus,
enhancing employee commitment and loyalty. It is a flexible and competitive model which is
attractive to foreign investors.

Regrettably, this theory does not address the power inequalities inherent in the employment
relationship which generate conflict. It treats employees as commodities and not human beings.
Since it is based on the principle of freedom of contract and enter and terminate at will approach,
it does not offer employees any job security. In Zimbabwe, it is now difficult to deregulate the
labour market. Firstly, Zimbabwe is a member of the International Labour Organisation (the

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ILO). It has ratified eight ILO’s core conventions which guarantee right of freedom of
association, equality at work, right to collective bargaining, freedom from forced labour and
child labour (these ILO conventions are dealt with in Unit 2). As a member State of ILO,
Zimbabwe has domesticated ILO Conventions. Therefore, it has an obligation to observe the
principles that underlie ILO Conventions. Secondly, section 65 of the 2013 Constitution of
Zimbabwe entrenches labour rights. Labour market policy is not only a matter of economics but
also the Constitution. Labour rights are fundamental rights. Finally, labour legislation such as the
Labour Act, give effect to the constitutional labour rights. It sets minimum standards which
parties to an employment relationship cannot contract below. In light of the foregoing,
deregulation of the labour market is no longer possible in Zimbabwe.

1.7.2 Social Justice Perspective

This perspective is sometimes referred to as the pluralist perspective of labour relations. It owes
its origins to Kahn-Freund who developed a conception of labour law as a means to countervail
the inequality of bargaining power between employers and employees (Davies & Freedland,
1983, p.18). Pluralists analyse work and the employment relationship from a theoretical
perspective which believes that conflict is inherent in the employment relationship. In addition,
society has diverse interest groups competing for scarce resources which the law must allow the
freedom to further the interests of their constituents within a plural framework of rules and
institutions (Gwisai, 2006, p.14). To achieve this, law must be interpreted and enforced in a
manner which takes into account societal differences and the need to mitigate and mediate social
conflicts.

With pluralists, the purpose of labour law is best achieved by promoting collective regulation of
the employment relationship within a framework of rules facilitated and guaranteed by the State.
Therefore, the theory embraces a balancing paradigm between labour and capital. The balancing
of the competing interests of employers and employees is the central feature of the theory. The
theoretical assumptions of the theory of social justice are that:
(i) there is conflict of interest in the employment relationship and such conflict is
natural, hence the need for policy intervention.
(ii) employees are not commodities but human beings with feelings, aspirations,
emotions, needs and rights such that they are entitled to decent working and living
conditions.
(iii) employees have democratic rights to participate in decision making at the
workplace.
(iv) collective bargaining and trade unions are voluntary, democratic and legitimate
means of controlling conflict and countervailing employers’ economic power.
(v) labour disputes are best resolved through specialised forums such as conciliation,
arbitration and Labour Courts.

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The social justice perspective is the theory which underlies enactment of the Labour Act in
Zimbabwe. This is apparent in section 2A (1) (a) – (f) of the Labour Act which provides that:
(1) The purpose of this Act is to advance social justice and democracy in the workplace by;
(a) giving effect to the fundamental rights of employees provided for under Part II.
(b) …………………..
(c) providing a legal framework within which employees and employers can bargain collectively for
the improvement of conditions of employment;
(d) the promotion of fair labour standards;
(e) the promotion of the participation by employees in decisions affecting their interests in the
workplace;
(f) securing the just, effective and expeditious resolution of disputes and unfair labour practices.
The Constitution and international labour standards are some of the medium designed to promote
social justice and are given effect to by the Labour Act. Modern pluralist theories have been
extended to cover social responsibility in labour relations. Corporate governance and social
responsibility programmes are vehicles for establishing and enforcing labour rights (Uzhenyu &
Kasuso, 2019).

Activity 1.2
1. Explain in detail the importance of labour law.
2. Analyse the purpose of labour law?
3. The social justice perspective underlies the enactment of Labour Act (Chapter
28:01).
Discuss the key features of the social justice or pluralist perspective of labour law.

1.8 Summary

This unit introduced students to the field of labour law. It defined labour law and identified the
two main branches of labour law, namely, individual labour law and collective labour law. This
was followed by a discussion of the importance and purpose of labour law. It was noted that
labour law is important at an individual level and national level. As for its purpose, labour law
seeks to protect workers, balance the inequality inherent in the employment relationship and
promote social justice, economic development and labour market flexibility. Lastly, this unit
analysed the two broad theoretical perspectives on labour law: the unitarist perspective and the
pluralist perspective. It was noted that the pluralist perspective is the one which underlies labour
legislation in Zimbabwe. By now you should have a good idea of what labour law is all about. In
the next unit we will introduce you to the sources of labour law.

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References
Basson, A.C. (2005). Essential Labour Law, Centurion: Labour Law Publications.
Davies, P. & Freedland, M. (1983). Kahn-Freund’s Labour and the Law, Oxford: Hart
Publishing.
Dukes, R. (2014). The Labour Constitution: The Enduring Idea of Labour Law, Oxford:
Oxford University Press.
Gwisai, M. (2006), Labour and Employment Law in Zimbabwe: Relations of Work under
Neo-Colonial Capitalism, Harare: Zimbabwe Labour Centre.
Guest, D.E. & Peccei, R. (2007), Partnership that work: Mutuality and the Balance of
Advantage, British Journal of Industrial Relations.
Kahn-Freund, O. (1977). Labour and the Law, London: Stevens & Sons Ltd.
Madhuku, L. (2015). Labour Law in Zimbabwe, Harare: Weaver Press.
Rycroft, A. & Le Roux, R. (2017). Decolonising the labour law curriculum, Industrial
Law Journal 1473.
Van Niekerk, A.C., Smit, N., Van Eck, S. & Christianson, M. (2012). Law@work,
Durban: LexisNexis.
Uzhenyu, D. & Kasuso, T. (2019). Industrial and Labour Relations Management. Harare:
Zimbabwe Open University.

9
 UNIT 2

Sources of Labour Law

2.1 Introduction

The Zimbabwean legal system is the sum total of the laws of Zimbabwe, and includes the
various ways laws are made, sources of law, how law is enforced and the institutions involved in
law making and enforcement. Critical to this unit are sources of law and specifically sources of
labour law. These are basically the origin from which rules of conduct at the workplace come
into existence and derive their legal force and binding characteristics. Several factors have
contributed to the development of labour law. These factors are regarded as sources of labour
law. This unit unpacks the various sources of labour law in Zimbabwe. These include legislation,
common law, international standards, authoritative texts and customary law.

2.2 Objectives

By the end of this unit, you should be able to

 identify the hierarchy of sources of labour law in Zimbabwe
 critically analyse the strengths and weaknesses of the different sources of labour law
 explain the impact of the 2013 Constitution as a source of labour law
 discuss the applicability of international labour standards as a source of labour law in
Zimbabwe
 evaluate the relevance of the common law as a source of labour law in Zimbabwe

2.3 Legislation

Legislation is the most important and extensive source of labour law in Zimbabwe. It is made by
Parliament and is embodied in specialised legal documents called Acts of Parliament (Madhuku,
2010, p.13). In certain instances, Parliament delegates its law making authority to Cabinet
Ministers, the President and other institutions. Laws created through delegated authority is
embodied in statutory instruments (Madhuku, 2010, p.13). In Unit 1, it was established that the
common law contract of employment is unitaristic in nature. Therefore, legislative intervention
in the realm of labour law seeks to address the inequalities inherent in the common law contract
of employment. As shall be demonstrated in this Unit, this has been achieved through various
interventionist methods which include the following: constitutionalising labour rights; imposing
of minimum conditions of employment; promotion of collective bargaining, trade union
organisation and collective job action; the establishment of specialised dispute resolution forums
such as, conciliation, Arbitration and the Labour Court and the recognition of international

10
labour standards in domestic law. The main forms of legislation as a source of labour law
discussed in this Unit are, the Constitution of Zimbabwe, Acts of Parliament and delegated
legislation.

2.3.1 The Constitution

At the apex of sources of labour law and in particular legislation, sits the Constitution. Section
2(1) of the Constitution provides that it is the supreme law of Zimbabwe and any law, practice,
custom or conduct inconsistent with it is invalid. The obligations imposed by the Constitution are
binding on every person, including employers and employees (s2(2) of the Constitution). A
significant departure from the Lancaster House Constitution is that the 2013 Constitution sets
outs founding values and principles which establish the general framework for the Constitution.
In this regard Chapter 1 is dedicated to the founding provisions. Chapter 2 of the Constitution
sets out national objectives which establish principles of State policy. One fundamental policy
implanted in section 24 of the Constitution is that on ‘work and labour relations’ and provides as
follows:
(1) The State and all institutions and agencies of government at every level must adopt reasonable
policies and measures, within the limits of the resources available to them, to provide everyone
with an opportunity to work in a freely chosen activity, in order to secure a decent living for
themselves and their families.
(2) The State and all institutions and agencies of government at every level must endeavour to
secure –
(a) full employment;
(b) the removal of restrictions that unnecessarily inhibit or prevent people from working
or otherwise engaging in gainful economic activities;
(c) vocational guidance and the development of vocational and training programmes,
including those for persons with disabilities; and
(d) the implementation of measures such as family care that enable women to enjoy a real
opportunity to work.

In order to give effect to the national objectives in the Constitution, Chapter 4 contains a
Declaration of Rights, which entrenches fundamental human rights and freedom. By virtue of
supremacy of the Constitution, these rights are protected from encroachment by the legislative
and executive organs of the government. Unlike the Lancaster House Constitution, which was
restricted to civil and political rights, the 2013 Constitution is progressive in that it does not only
broaden the civil and political rights but it also guarantees socio-economic rights, cultural rights
and solidarity rights. For the first time in the history of Zimbabwe, the 2013 Constitution
entrenches socio-economic rights which include labour rights. The framework for the regulation
of labour and employment rights is established in section 65 in the following manner:
(1) Every person has the right to fair and safe labour practices and standards and to be paid a fair and
reasonable wage.
(2) Except for members of the security services, every person has the right to form and join trade

11
 unions and employee or employers’ organisations of their choices and to participate in the lawful
activities of those unions and organisations.
(3) Except for members of the security services, every employee has the right to participate in
collective job action, including the right to strike, sit in, withdraw their labour and to take other
similar concerted action, but a law may restrict the exercise of this right in order to maintain
essential services.
(4) Every employee is entitled to just, equitable and satisfactory conditions of work.
(5) Except for members of the security services, every employee, employer, trade union, and
employee or employer’s organisation has the right to –
(a) engage in collective bargaining;
(b) organise; and
(c) form and join federations of such unions and organisations
(6) Women and men have a right to equal remuneration for similar work.
(7) Women employees have a right to fully paid maternity leave for a period of at least three months.

Constitutions do not in general entrench the broad right to four labour practices. In Africa, it is
only found in the Constitutions of South Africa, Malawi and Kenya. Therefore, the constitutional
entrenchment of labour rights represents a milestone in the development of labour law in
Zimbabwe (Tsabora & Kasuso, 2017, p.43). It is a critical step in the march towards
democratisation of the workplace and protection of workers. It heralds the dawn of a new era in
Zimbabwean labour law which is now grounded on a rights based model of constitutionalism.

The impact of section 65 on labour law is acknowledged by Tsabora & Kasuso (2017, p.46) who
state that:
In relation to labour rights, this entrenchment effectively impacts on labour and employment law
in two main ways. The first impact is that s65 can be used to test the validity of legislation (or
legislative provisions), such as the Labour Act, which purports to give effect to it. Furthermore,
provisions on constitutional rights can be used to develop the common law as well as customary
law in terms of section 46 of the Constitution. Clearly, the purpose of the provision of
constitutional rights is critical to the development of a constitutional state that is based on the rule
of law and the supremacy of the Constitution.
Madhuku (2015, p.4) also argues that the impact of section 65 on labour legislation is extended
by section 46(2) of the Constitution which requires every court, tribunal forum or body to
promote and be guided by the spirit and objectives of the Declaration of Rights when interpreting
any enactment. In addition to section 65, the Constitution also has generic rights which impact
on labour law indirectly. These include section 55- freedom from forced labour, section 56 –
equality and non-discrimination, section 58 – freedom of assembly and association and section
64 – freedom of profession, trade or occupation.

Furthermore, the 2013 Constitution also has provisions which impact directly on labour law. For
instance, Chapter 10 of the Constitution regulates employment by the State through the
establishment of a Civil Service Commission which sets conditions of service of civil servants.

12
Chapter 8, Part 2 of the Constitution provides for conditions of service and tenure of members of
the judiciary. Chapter 11 deals with security services, whilst Chapter 12, section 234 regulates
conditions of service of employees of independent commissions such as the Anti-Corruption
Commission, Zimbabwe Human Rights Commission, and Gender Commission among others.
Chapter 6, section 154, deals with conditions of service of the Clerk of Parliament and other
employees of Parliament. Lastly, section 266 of the Constitution makes provision for conduct of
employees of provincial and local government authorities.

2.3.2 Acts of parliament

The Constitution is followed by Acts of Parliament in the hierarchy of legislative sources of law.
The principal legislation in labour law is the Labour Act (Chapter 28:01) as amended by the
Labour (Amendment) Act No. 5 of 2015. It provides the most detailed regulation of the
employment relationship. In terms of section 3(1) of this Act, it applies to all employers and
employees ‘except those whose conditions of employment are otherwise provided for in the
Constitution. This group of employees are State employees or civil servants. The employment of
the bulk of these employees is covered by the Public Service Act (Chapter 16:04), whilst those in
the health services fall under the Health Service Act (Chapter 15:16). Therefore, it can be
concluded that Zimbabwe has a two tier labour law system. Section 3(3) of the Labour Act also
excludes from its application members of the disciplined forces. These include members of the
defence forces regulated by the Defence Act (Chapter 17:02), members of the police force
regulated by the Police Act (Chapter 11:10), members of the Prisons and Correctional Services
regulated by the Prisons Act (Chapter 7:11) and members of the intelligence services. The
regulation of the employment relationship in Zimbabwe is also apparent in social security and
occupational health law. Gwisai (2006:40) refers to this branch of legislation as paternalistic
legislation. It includes the following: National Social Security Act (Chapter 17:04), Pension and
Provident Funds Act (Chapter 24:09) and the Factories and Works Act (Chapter 14:08), among
others. The last category is that of manpower development legislation. It provides for training
and rationalisation needs of the labour market. A good example of this form of legislation is the
Manpower Planning and Development Act (Chapter 28:02). Labour legislation in Zimbabwe also
establishes specialised forums and statutory bodies for the purpose of resolving labour disputes.

2.3.3 Delegated legislation

This form of legislation is also known as subsidiary legislation and is embodied in statutory
instruments. It can either be direct or indirect delegated legislation (Madhuku 2015, pp.7-8).
Direct delegated legislation refers to statutory instruments made by the Minister in terms of an
enabling Act of Parliament. For instance, section 17 of the Labour Act empowers the Minister of
Labour to promulgate regulations covering all aspects of the employment relationship. For
example, the Labour (National Employment Code of Conduct) Regulations 2006 (SI 59/2006),

13
Labour (Settlement of Disputes Regulations 2003 (SI 217/2003) and Labour Court Rules 2017.
Under the Public Service Act, the Minister promulgated the Public Service Regulations 2000 (SI
1/2000).

Indirect delegated legislation refers to agreements which are the products of collective
bargaining between employers and employees through their representatives. These agreements
regulate all aspects of employment including terms and conditions of employment. On
registration of a collective bargaining agreement, it becomes binding. It then applies to all
employers and employees in the industry or undertaking for which it was registered. On
publication in the Government Gazette, a collective bargaining agreement attains the same status
as direct delegated legislation and is embodied in a statutory instrument. For example, Collective
Bargaining Agreement: Transport Operating Industry, SI 26/2017). Since a statutory instrument
is made in terms of an enabling statute it must be consistent or intra vires that statute. Any
statutory instrument ultra vires an enabling Act is null and void.

Activity 2.1
1. Describe legislation as a source of labour law.
2. Differentiate principal legislation from subsidiary legislation.
3. Discuss the relevance and impact of the 2013 Constitution as source of labour law.

2.4 International Labour Standards

A meaningful study of labour law is not complete without at least a rudimentary understanding
of the institutions that shape international labour standards, the basic content of the standards and
the relationship between them and domestic labour legislation. Sections 34, 46(1) (c), 326, 327
of the Constitution recognise the role of international law in domestic law. In addition, one of the
purpose of the Labour Act as outlined in its preamble is to give effect to the international
obligations of Zimbabwe as a member State of the ILO. Therefore, the most important source of
international labour standards recognised by labour legislation are those of the ILO. Its
instruments and standards are critical tools in interpreting labour legislation.

2.4.1 Establishment of the ILO

ILO was founded by the Treaty of Versailles in 1919 under the then League of Nations (now the
United Nations) and is seated in Geneva, Switzerland. Du Toit et al. (2004) submits that the
principal purpose of ILO is to provide for the international regulation of labour standards with a
view to ensuring labour peace, social justice and the elimination of unfair competition based on
exploitative and inhumane conditions of labour. An enduring feature of ILO is its tripartite
nature, reflected in the presence of government, employers and employees’ representatives on an
equal footing in all its structures and committees. The highest policy making body of ILO is the
International Labour Conference. Its main function is standard setting. It is followed by the
Governing body which is the Executive arm of ILO consisting of 56 members. Twenty-eight are

14
from governments, fourteen from employer representatives and another fourteen from worker
representatives. The role of the Governing Body is to determine which matters are to be put on
the agenda of the conference, it manages the ILO budget and makes policy decisions. The day to
day work necessary to give effect to ILO’s mandate is performed by the International Labour
Office headed by a Director-General who is appointed by the Governing Body.

2.4.2 ILO Standards

Labour standards made by the ILO assume various forms which include: conventions,
recommendations, declarations and codes of practice. ILO has identified eight core or
fundamental conventions which member states must ratify. These include: Freedom of
Association and the Right to Organise Convention 87 of 1948; Right to Organise and Collective
Bargaining Convention 98 of 1949, Forced Labour Convention 29 of 1930; Abolition of Forced
Labour Convention 105 of 1957; Minimum Age Convention 138 of 1973, Worst Forms of Child
Labour Convention 184 of 1999, Equal Remuneration Convention 100 of 1951 and
Discrimination (Employment and Occupation) Convention 111 of 1958. Zimbabwe joined ILO
on 6 June 1980 and has ratified all of ILO’s core conventions, although there are a lot of
contentious issues on the government’s sincerity regarding real practice and implementation.

2.4.3 Applicability of ILO Standards in Zimbabwe

International labour standards are not automatically part of Zimbabwean labour law. To be part
of our law, there must be voluntary assumption of obligation by the Executive through
ratification of the Convention. In terms of section 327(2) (b) of the Constitution, the instrument
must then be adopted and incorporated into domestic law through an Act of Parliament. As was
observed in Magodora & Others v Care International Zimbabwe SC 24/14, at p. 6 of the
cyclostyled judgment:

I do not think that the courts are at large, in reliance upon principles derived from international
custom or instruments, to strike down the clear and unambiguous language of an Act of
Parliament. In any event, international conventions or treaties do not form part of our law unless
they are specifically incorporated therein, while international customary law is not internally
cognisable where it is inconsistent with an Act of Parliament.

See also Simbi (Steelmakers) (Pvt) Ltd v Shamu & Others SC 71/15. However, this does not
mean that international standards are not useful. Madhuku (2015) submits that international
standards are a source of law in the following respects. Firstly, they can be used to directly
resolve labour disputes where international standards have been domesticated. Secondly, they
can be used as a guide to interpret domestic law in terms of sections 46(1), 326 (2) and 327 (6) of
the Constitution, thus giving content to domestic law. Thirdly, it is the basis of establishing
jurisprudential labour law principles based on international law in developing the common law.
Lastly, international standards strengthen domestic law.

15
2.5 Common Law

The regulation of the employment relationship and labour law in Zimbabwe is based on Roman-
Dutch common law. Although legislative regulation of the employment relationship has
increased with the passage of time, the common law remains a residual law used by the courts to
fill in areas where legislation is vague, unclear inconsistent or silent. In Hama v National
Railways of Zimbabwe 1996 (1) ZLR 664 (S), it was held that the common law remains
applicable and can only be ousted by clear, unequivocal and express provisions of a statute or by
necessary implication. Section 46(2) and 176 of the Constitution also requires courts to develop
the common law with a view of promoting the spirit and objectives of the Constitution.

The contract of employment is the basis on which the employment relationship is premised. It
was regulated by principles of the Roman-Dutch commercial contract of letting and hiring
(Smith v Workmen’s Compensation Commission 1979 (1) SA51 (A)). These principles owed
their origins to the Roman law locatio servi, the law which regulated the hire of slaves. Work
was performed by slaves and as such the contract of employment did not exist. The relationship
between a slave and his master was governed by the law of property (Lex Roux & Jordaan,
2009). The letting and hiring of services, locatio conductio was then developed from this master-
servant relationship. With this locatio a master would permit his slave to work for another person
in exchange of remuneration, which did not accrue to the slave but was payable to the master.
This relationship was mainly regulated by principles of the contract of lease, with the equality in
contracting existing between two equal masters, and the slave only being an instrument for
performance.

Three contracts of lease could be distinguished and this categorisation was based on the type of
performance rendered for payment of money (Du Plessis & Fouche, 2006, p.9). The first one was
the locatio conductio operis faciendi- an independent contract or contract for the performance of
a specific task. This locatio was primarily utilised in work such as training of slaves, building,
artisanal and craftsmen work. The second one is the locatio conductio rei- the letting and hiring
of physical objects such as land, buildings, animals and slaves. The hirer gained temporary use of
the property for a fee. The last category is the locatio conductio operarum. In terms of this
locatio a free man (liberi) agreed to let his personal services (operae suae) to another person
(conductor operarum) for a certain period of time, in return for the payment of money (Basson,
2005, p.19). Services were performed personally under the supervision and control of the
conductor operarum. The main duty of the liberi was to render services whilst that of the other
party was to pay the agreed remuneration.

The modern contract of employment evolved from the locatio conductio operarum. It gained
popularity during the industrialisation era in Britain. It was assimilated into the South African
legal system on occupation of the Cape by the Dutch and later entrenched by the British when
they took over. This common law contract of employment was then brought to Zimbabwe on its
16
colonisation by the British, through the proclamation of 10 June 1891. In circumstances, were
there is no legislation regulating any aspect of the employment relationship, courts rely on the
common law. It is also a well-established principle of statutory interpretation that a statute
cannot effect an alteration of the common law without saying so explicitly. In Phiri & Others v
Industrial Steel (Pipe) (Pvt) Ltd 1996 (2) ZLR 45 (S) the court held that:
There is a presumption, in interpretation of statutes that Parliament does not intend a change in
the common law, it expresses its intention with irresistible clearness or it follows necessary
implication from the language of the statute in question that it intended to effect such alteration in
the common law, for construing the statute by adding to it words which are neither found therein
nor for which authority could be found in the language of the statute itself, is to sin against one of
the most familiar rules of construction.

The first category of the common law which is made up of rules and principles contained in
Roman Dutch law is found in the writings of old Dutch jurists such as Voet and Grotius
(Madhuku, 2015, p.9). The second category of the common law is a collection of rules and
principles made by Judges in previous cases (judicial precedent). Decisions of the superior courts
are binding on lower courts. There is also a hierarchy of courts in labour matters. At the apex is
the Constitutional Court. It is the highest court in the land, and its decisions bind all other lower
courts. Below it is the Supreme Court which is the final court of appeal. Its decisions are binding
on the High Court and other lower courts but it is not itself bound by its own previous decisions.
The Supreme Court is followed by the High Court and then the Labour Court. The Labour Court
is a specialist court in labour matters and its decisions are binding on Labour Officers,
Designated Agents and Arbitrators. It must also be noted that Zimbabwean courts are not bound
by decisions of foreign courts. However, by virtue of section 46(1) of the Constitution foreign
case law from jurisdictions such as South Africa and England is persuasive.

2.6 Custom

Madhuku (2010, p.25) defines custom as those rules that become binding in the course of time
through observance by the community in question and are not necessarily written down. The
binding nature of custom originates from habitual observance of a rule. Custom can either be
general or African customary law. General custom applies in specialised fields such as company
law, banking law or labour law. It is binding if it is reasonable, long established, uniformly
observed and certain (Madhuku, 2010, p.23). In labour law, some practices at the workplace or
industry may become a basis of legal rules. These may be used in interpreting labour legislation.
As for African customary law, it regulates the life of indigenous Africans.

2.7 Authoritative Texts

These are writings of leading authors and commentators on labour law. Their views are
persuasive and can be relied upon where legislation or case law are unclear. Madhuku (2015,
p.10) states that the persuasive nature of legal writings depends on the standing of the scholar,

17
his reputation, the scholarly level of the piece of work involved and the degree to which the
nature of the presentation is convincing.

Activity 2.2
1. Critically discuss the hierarchy of sources of labour law in Zimbabwe.
2. Evaluate any two sources of labour law that you consider best achieve the purposes of
the Labour Act (Chapter 28:01).
3. Identify the International Labour Organisation core conventions which have been
ratified by Zimbabwe.
4. Discuss the applicability of international labour standards in the Zimbabwean legal
system.

2.8 Summary
In dealing with labour disputes the starting point is always the common law contract of
employment. One has to ascertain the express terms and conditions of the contract as well as
those implied by the common law. However, any terms and conditions of a contract must be
consistent with applicable legislation. At the bottom of the hierarchy of legislation as a source of
labour law is delegated legislation, followed by Acts of Parliament such as the Labour Act. At
the apex of the hierarchy is the Constitution. International labour standards, authoritative texts
and foreign cases are persuasive. The above discussion points out the hierarchy of sources of
labour law in Zimbabwe. It is also accepted that if a contract of employment provides for
favourable conditions than legislation, then the contract of employment shall take precedence.
This favourable conditions doctrine is codified in section 17(2) of the Labour Act.

18
References

Basson, A.C. (2005). Essential Labour Law, Centurion: Labour Law Publications.
Du Plessis, J.V. & Fouche, M.A. (2009). A practical guide to labour law, Durban:
LexisNexis.
Gwisai, M. (2006). Labour and Employment Law in Zimbabwe: Relations of Work under
Neo-Colonial Capitalism, Harare: Zimbabwe Labour Centre.
Le Roux, R. & Jordaan, B. (2009). Contract of employment in Thompson, C. &
Benjamin, P. (2009) South African labour law, Juta & Co: Cape Town.
Madhuku, L. (2015). Labour Law in Zimbabwe, Harare: Weaver Press.
Madhuku, L. (2010). Introduction to Zimbabwean Law, Harare: Weaver Press.
Tsabora, J. & Kasuso, T.G. (2017). 38 Reflections on the Constitutionalising of
Individual Labour Law and Labour Rights in Zimbabwe, Industrial Law Journal SA 43.
Van Niekerk, A.C., Smit, N., Van Eck, S. & Christianson, M. (2012). Law@work,
Durban: LexisNexis.

19
 UNIT 3

Evolution of Labour Law in Zimbabwe

3.1 Introduction

In order to comprehend Zimbabwe’s labour law landscape, it is imperative to consider the

historical development of labour law in Zimbabwe since the early industrial times after the
establishment of colonialism. The main argument justifying interrogating the historical context is
that a historical illustration assists in understanding the pillars and origins of current provisions
in the existing labour laws. It also provides useful guidelines on interpreting the current
framework of labour law. The fundamental assumption underlying this historiography is that
Zimbabwe’s labour regulation is tied to the socio-political and economic history of the State, and
cannot be perceived as a contemporary development. This unit does not only give a broad
overview of the historical developments of labour law in Zimbabwe but it also discusses the
various constitutional developments and how they impacted on labour law. In essence, the
evolution of labour law is interrogated from two perspectives. Firstly, the unit deals with
important time periods through which labour law has progressed since the earliest regulation by
looking at statutory developments. Secondly, it is also concerned with the constitutional
developments and their impact on the regulation of labour and employment rights.

3.2 Objectives
By the end of this Unit, you should be able to:
 identify key pieces of legislation which have shaped Zimbabwe’s labour law landscape
 discuss the different phases in the evolution of labour law in Zimbabwe
 explain the different constitutional developments in the history of Zimbabwe which
impacted on labour law
 explain the forces that have shaped Zimbabwe’s labour law framework, during the
colonial period and post-independence period

20
3.3 Colonial Epoch (1888-1990)

Prior to occupation by the British, the territory now known as Zimbabwe was exclusively
occupied by the Ndebele in the south west (now Matebeleland) and the Shona in the central and
northern parts of the territory (now Mashonaland). These feudal societies were ruled by
traditional chiefs who exercised sovereign power over their subjects (Linington, 1999). They
relied on subsistence farming, informal forms of trade, hunting and gathering and raiding. In this
feudal system there was no commodification of labour in any form, and thus no wage labourers
or earners. A general preference to collectivist approaches in economic activities meant very
limited forms of individual accumulation. The colonisation of Zimbabwe commenced at the end
of the nineteenth century. Its genesis was the signing of the Moffat Treaty in February 1888
between JS Moffat an emissary of the British High Commissioner for South Africa and the
Ndebele King, Lobengula (Palley, 1966). In terms of this treaty, Lobengula undertook not to
enter into any ‘correspondence or treaty with any foreign State without the consent of Her
Majesty’s High Commissioner for South Africa.’ Lobengula was recognised by the British as the
ruler of both the Ndebele and Shona territories. Through the Moffat Treaty the territory of
Zimbabwe was brought within the sphere of exclusive British interests. The treaty brought the
pre-industrial African state system into contact with a socio-political and economic system far
advanced than itself, and with an inherently individualistic approach to economic activity.

The Moffat Treaty was followed by the Rudd Concession of October 1888. Lobengula agreed to
grant Cecil Rhodes and his assignees ‘the exclusive charge over all metals and minerals situated
and contained in (my) kingdoms; principalities and dominions together with full power to do all
things they may deem necessary to win and procure the same.’ This Concession gave Cecil
Rhodes the legal basis to occupy Zimbabwe. In October 1889, the British government granted
Cecil Rhode’s company, the British South African Company (the BSAC) a royal charter to
administer and govern Zimbabwe. Armed with this charter, Zimbabwe was formally occupied by
the BSAC in September 1890. Although this occupation was resisted from 1893 to 1897, through
open rebellion, the insurrections by the Ndebele and Shona were vanquished and Zimbabwe
became a sphere of influence of the British Empire through the modicum of a private company,
the BSAC.

21
The occupation of Zimbabwe by the BSAC was driven by the need to exploit abundant minerals
and rich agricultural land. The wealthy entrepreneurs who made up the BSAC had the monetary
wealth which had to be transformed into capital. This required a large pool of labour which the
capitalists did not have. In contrast, the feudal economy of the indigenous people was based on
subsistence farming. It conflicted with the primitive accumulation needs of the settlers which
were individualistic and labour intensive (Gwisai, 2006). The only available option was to force
the indigenous peasant farmers into wage labourers, which was to compel them into an organised
industrial system. This demand for labour in these early times laid the foundation for the
regulation of the contract of employment and labour law in general. By conquest, the feudal
system was gradually destroyed and substituted by a system that worshipped commodification of
labour. A battery of ordinances, proclamations, and regulations that followed ensured this new
system would succeed and characterise Zimbabwe’s master and servant law. The legal
framework which thus laid the basis of Zimbabwe’s labour law is discussed below.

3.3.1 Proclamation of 10 June 1891

The starting point to any meaningful discussion of the regulation of labour in Zimbabwe is the
Proclamation of 10 June 1891 (Redgment, 1981). It laid the lynchpin of present day Zimbabwean
legal system by providing that the law to apply in Zimbabwe was to be the law in force at the
Cape of Good Hope as of the 10th of June 1891. The law applying at the Cape as at that date was
Roman- Dutch law which was a fusion of Roman law and medieval Dutch law. It had been
brought to the Cape in 1652 by a Dutch sailor, Jan van Riebeeck who was in the employ of the
Dutch East India Company which took over administration of the Cape (Hahlo & Kahn, 1968).
Sometime in 1806 the British deposed the Dutch and assumed control of the Cape. They did not
replace Roman-Dutch law but fused it with some English law aspects, especially in areas of
commercial law. It is this law which was referred to in the 10 June 1891 Proclamation. In unit 2
it was noted that this common law has two components, namely rules and principles made by
judges in previous cases (judicial precedent) and writings of old Dutch jurists (legal treatises).
The significance of the 10 June 1891 Proclamation is that it introduced Roman-Dutch law
adulterated with English law components in Zimbabwe. In addition, legislation in existence at

22
the Cape as of 10 June 1891 became part of Zimbabwean law. Significantly, the provision for the
applicability of Roman-Dutch law in present day Zimbabwe was also inserted in section 192 of
the 2013 Constitution, which provides that ‘the law to be administered by the courts of
Zimbabwe is the law that was in force on the effective date, as subsequently modified.’ The 2013
Constitution repealed and substituted the 1980 Constitution. Section 89 of the 1980 Constitution
provided that the law to be applied in Zimbabwe was Roman-Dutch law with an English law
influence.

3.3.2 The Hut Tax Ordinance 5 of 1894

In the preceding discussion it was noted that the pre-industrial feudal economy of kingdoms in
the territory of Zimbabwe relied on subsistence farming. The consolidation of colonialism
created the compulsion to join wage labour, but initially Africans were reluctant to take up
employment for the settler colonialists. Thus, there was scarcity of labour, and the settlers had no
option but to resort to coercive legislation and practices that were designed at forcing Africans
into wage labourers (Sachikonye, 1985). Some of the mechanisms which were adopted included
expropriation of land and livestock, forced labour (Chibharo system), and the imposition of
multiple taxes (Van Onselen, 1973). A clear outcome of these policies was to destroy a source of
livelihood for African population groups and channel them into the new economic system. One
such tax system which struck at the core of African society was the Hut Tax Ordinance 5 of
1894. It imposed a hut tax on African residences which were located on Crown land. The tax
obligation compelled Africans to seek wage employment as it was backed by criminal sanctions.
This ultimately created a pool of wage labourers for settlers to exploit.

The Hut Tax Ordinance was also backed by the Vagrancy Regulations of 1895 and the
Registration of Natives Regulations 1895 which impacted on labour law in several ways. Firstly,
Africans could only seek employment in towns after obtaining a pass or permit from the
Registrar of Natives. Secondly, Africans were not allowed in towns unless one produced proof of
employment or a registered contract of employment. Lastly, Africans found outside native
locations at night without a pass were guilty of a criminal offence. Machingambi (2007) submits
that these Regulations were designed to ensure that once employed Africans would not desert

23
their employers. This ensured creation and retention of a pool of labour. It also inevitably led to
the establishment of the Provincial Labour Bureau of 1895 whose responsibility was the
regulation of the labour market.
3.3.3 Southern Rhodesia Order in Council of 20 October 1898

The entrenchment of British rule over the territory of Zimbabwe was completed by the Southern
Rhodesia Order in Council of 20 October 1898. Its aim was to develop and regularise
governmental structures of Southern Rhodesia (Zimbabwe). The administration of the territory
remained under the BSAC. A Legislative Council which had the power to make laws was
established, and this was the earliest form of Parliament. Any laws promulgated by the
Legislative Council were sent to the British High Commissioner of South Africa for approval.
Annexed to the Order in Council were the Southern Rhodesia Native Regulations. They
empowered the Administrator in Council to exercise all political power and authority over all
natives. He had the power to appoint Chiefs to preside over native tribes. The territory of
Zimbabwe was divided into districts and sub districts which were under the control of Native
Commissioners who fell under the Native Department. In terms of Part III of the Regulations, the
Native Commissioner assigned land to natives for huts, gardens and grazing. He was also in
charge of registering huts in his district for purposes of collection of hut tax. In principle, the
Regulations were designed to administer the State and specifically native affairs in a manner that
would ensure that natives seek employment. It was one of the miscellany of mechanisms used
by the settlers to ‘proletarianise’ the African peasantry and formally lay the bedrock for the
gradual development of industrial capitalism (Arrighi, 1970).

3.3.4 Public Service Regulations 1898

One of the effects of the Order in Council of 1898 was the creation of central government tasked
with administration of the territory of Southern Rhodesia. Public administration was carried out
by the public service. Therefore, the Public Service Regulations, 1898 created for the first time a
public service which was manned by State employees. Only judges of the High Court were
excluded from the ambit of the Regulations. The Regulations laid the foundation of State
employment in Zimbabwe. Any member appointed to the public service had to serve a minimum

24
probation period of twelve months and a maximum of eighteen months, before confirmation of
permanent employment. The Administrator was given power to enact rules regulating the
employment of State employees. Lastly, the Regulations created acts of misconduct which were
punishable by summary dismissal. These included among others, absenteeism and habitually
using intoxicating liquor to excess (Madhuku, 2015).

3.3.5 The Natives Employment Ordinance 9 of 1899

With the growing demand for labour there was a need to regulate the recruitment of African
workers. This culminated in the enactment of the Native Employment Ordinance 9 of 1899
whose purpose was to ‘regulate the employment of natives within Southern Rhodesia, and for
controlling the removal of Natives for employment beyond its borders.’ In addition to the
Provincial Labour Bureaux of 1895, the Labour Board of Southern Rhodesia of 1903 was also
established to regulate the labour market by acting as labour procurement agencies (Sachikonye,
1985). The Ordinance called for the licensing and registration of employment agencies which
recruited African employees. The licence was renewed annually. In terms of section 21 of the
Ordinance it was an offence to act as a labour agent without a licence. Section 12 of the
Ordinance prohibited the drawing of contracts by a labour agent with any African for
employment beyond the territory of Zimbabwe unless such contract of employment had been
registered with the Native Commissioner of the responsible district. The securing of employment
for persons who would have deserted their masters or absented themselves from work was
prohibited. Lastly, the Ordinance ushered a system of labour inspections in terms of which the
Administrator was endowed with authority to investigate any grievances at the workplace by
natives. The inspectors also investigated and decided disciplinary issues concerning native
labourers (Madhuku, 2015). Since the employment relationship was still regulated by the
Roman-Dutch common law, violations of employees’ rights were never brought up or
investigated in any meaningful manner. The Ordinance of 1899 was repealed by the Labour
Regulation Ordinance 1911 whose purpose was to improve, and make more severe the
restrictions on the recruitment of natives beyond the territory of Zimbabwe.

25
3.3.6 Master and Servants Ordinance 1901

The proletarianisation of Africans led to an increase in the country’s productive labour and
expansion of the economy. The formal regulation of the individual employer-employee
relationship was inevitable. The first elaborate attempt to regulate this relationship was the
Master and Servants Ordinance of 1901. It borrowed heavily from the Master and Servants Act
15 of 1856 of South Africa, which regulated the rights and duties of employers and employees in
the Cape Province. The Master and Servants Ordinance 1901 regulated bilateral relations and
made no provision for collective labour relations such as collective bargaining and trade union
organisation. The system was rooted in the libertarian perspective of labour relations which is
hostile to the collective regulation of the employment relationship. For the first time, a statutory
definition of a worker was provided for. Though it covered both Africans and whites, it excluded
from its application skilled workers whose work was only reserved for whites (McCulloch,
2000). Also excluded from its ambit were members of the public service who were to be covered
later by the Public Service Regulations of 1898. This laid the basis for a fragmented regime of
labour law characterised by divisions based on race and gender.

The Master and Servants Ordinance, 1901 provided a legal framework that bound workers to
employers. Its key provisions included the following: the contract of employment was to be
reduced to writing and could not exceed three years, notice of termination of a contract of
employment was one month and a married woman could not enter into a valid contract of
employment without the consent of her husband. Thus, it entrenched the minority status of
women, perceiving them as lacking legal capacity to contract. The employee’s right to
remuneration was statutorily recognised and it provided penalties for employers who withheld
wages without reasonable cause (See R v Millin 1914 SR 171). Furthermore, an employee’s right
to paid sick leave was acknowledged. However, employees did not enjoy any job security as
employers retained the common law right to terminate the contract of employment on notice.

Critically, it created a motley of penal provisions for breach of contract. It specified twelve acts
of misconduct and it was a criminal offence for an employee to commit any of them.
Inconsistently, any conviction for breach of contract did not have the effect of cancelling the

26
contract. Upon serving any sentence imposed for the breach the employee was bound to return to
the employer and serve out the contract of employment. This system did not guarantee any
meaningful labour rights or the right to fair labour practices. It relied on direct State force and
criminal law to enforce employment relationships and was consequently perceived as a thinly
veiled system of forced labour (Chibharo) (Gwisai, 2006). At this early stage, it appeared
inevitable that the emergent State had no option but to rely on the coercive sanction of retributive
criminal punishment to assist in labour recruitment, contract regulation and enforcement of
contractual obligations. The Master and Servants Ordinance 1901 was complemented by other
repressive laws which enabled the colonial regime to police civility and to protect the racial
boundaries and settler prestige that was assumed to be threatened by impudent Africans
(Raftopoulos & Mlambo, 2009).

3.3.7 Industrial Dispute Ordinance 1920

The growing labour force meant that grievances and conflict were unavoidable. White workers
started organising themselves, forming employee organisations and embarking on industrial
action. Early industrial action organised by white led trade unions and supported by Africans
included the Wankie (now Hwange) strike of 1912 and the Bulawayo strike of 1919 (Gwisai,
2006). These strikes were isolated but ruthlessly dealt with. They sowed the seeds for the
development of a system of collective bargaining and trade unionism in Zimbabwe. Early labour
legislation only regulated the individual employment relationship and recruitment of workers.
Neither did it regulate collective labour relations nor labour dispute resolution. The Industrial
Dispute Ordinance of 1920 sought to provide a system of dispute settlement for collective labour
disputes only. This was done through the creation of alternative dispute resolution mechanisms
such as Conciliation Boards which were appointed by the Administrator. They dealt with
disputes now commonly referred to as disputes of interest and mainly focused on wage disputes.
The settler regime was cognisant of the fact that labour disputes stifle production. Therefore, the
purpose of this Ordinance was to manage conflict at the workplace and promote sound labour
relations through the creation of a system for the effective prevention and settlement of collective
labour disputes. Again, this approach was preventive and deterrent and was perceived as more
favourable to productive industrial development than a reactive approach.

27
3.3.8 The Southern Rhodesia Constitution of 1923

The Southern Rhodesia Constitution of 1923 was introduced by the Letters Patent of 1
September 1923. It did not grant full self-government to Southern Rhodesia but provided for the
establishment of a responsible government subject to certain limitations. Section 3 of the 1923
Constitution established a Legislative Assembly chaired by a Speaker. Additional controls
included the power of the British Government to legislate for and on behalf of Southern
Rhodesia (Linington, 2001). This extended to international law. Britain acted on behalf of
Southern Rhodesia. The 1923 Constitution did not contain a Bill of Rights. Therefore, labour
rights were not entrenched. However, it preserved limited interests of African people. For
instance, any legislation discriminating Africans was subject to external control of reservation by
Britain. In addition, constitutional provisions were inserted preserving the right of Africans to
own land on same terms as whites and the retention of Native Reserves for the exclusive use by
Africans. The Crown retained the power to amend or alter the Constitution and between 1927
and 1955 it exercised this power a total of eight times (Palley, 1966).

3.3.9 The Industrial Conciliation Act 10 of 1934

The Industrial Conciliation Act (the ICA) 1934 came into operation on 20 July 1934 and it
repealed the Industrial Dispute Ordinance of 1920. It is regarded by many as the first
comprehensive piece of labour legislation in Southern Rhodesia (Madhuku, 2015). It was
modelled on the South African Industrial Conciliation Act 1924. There were several factors
behind the enactment of the ICA 1934 and Gwisai (2006) aptly summarises them as follows;
Firstly, of course, was the pressure and militancy of the proletarianised white working class,
forcing the ruling class to grant them concessions but not to the weaker and semi-proletarianised
black working class. The changes also reflected the dominant ideology of the ruling class at the
time. With the granting of self-rule in 1923 and, in particular, in 1933, with the ascension to
power of the Reform Party, control of the state moved from the multinational capitalists around
the British South Africa Company to petite bourgeois white settler capitalists. The Reform Party,
later renamed the United Party and led by Godfrey Huggins, was a strategic alliance of white
settler interests led by medium-scale white capitalists, farmers and miners with white workers as

28
 junior partners. It won power, in the midst of the chaos of the Great Depression on the basis of a
populist and nationalist programme calling for greater state involvement in the economy,
protectionism from both international capital and blacks, employment relief, collective bargaining
and a job colour bar to protect white workers. In the area of labour, this was achieved through the
Industrial Conciliation Act and other legislation.

The purpose of the ICA 1934 was to make provision for the prevention and settlement of
industrial disputes by alternative dispute resolution mechanisms such as conciliation and
arbitration, to regulate the registration and operations of employee and employer organisations
and the regulation of other incidental issues related to employment such as collective bargaining.
It introduced a dual labour law system which was based on racial segregation. This was achieved
through the definition of ‘employee’ inserted in the Act. It defined an employee as ‘any person
engaged by an employer to perform work …. but shall not include a native.’ Therefore, Africans
were excluded from the application of the Act and remained under the purview of the draconian
Master and Servants Act 1901 (Austin, 1975).

The ICA 1934 granted white workers the right to trade union organisation. The regulation of
formation, registration and activities of trade unions was the responsibility of the Registrar of
Trade Unions. Madhuku (2015) submits that section 5 of the ICA fathered the concept of ‘one
industry, one union’ in that the Registrar could only register a trade union for a specific industry
after having been satisfied that there was no any other trade union in existence. Since the ICA
1934 recognised employer and employee organisations it also created Industrial Councils which
are equivalent to modern day National Employment Councils (NEC’s). Their purpose was to
facilitate collective bargaining and dispute resolution. Although the Act recognised employees’
right to trade union organisation, it placed severe restrictions on the right to collective job action.
In most instances this right was taken away. Furthermore, the ICA 1934 was supplemented by
health and safety legislation. The Workers Compensation Act 19 of 1936 provided for social
security and occupational safety issues. It also provided for compulsory compensation for
injuries or death at the workplace. The Manpower Development Act 1936 provided for the
training of skilled labour and rationalisation needs of the labour market. These pieces of
legislation maintained the dual labour law system by expressly excluding Africans.

29
3.3.10 Industrial Conciliation Act 21 of 1945

The ICA 1934 laid down a skeletal framework for the registration and regulation of trade unions
and employers organisations, dispute settlement and collective bargaining. There were calls for a
detailed framework for the regulation of the aforementioned aspects of collective labour law.
This necessitated the enactment of the ICA 1945 which repealed the ICA 1934. All key
provisions of the ICA 1934 were retained. The only difference was that it was more elaborate
than its predecessor. It maintained the dual labour law system by expressly excluding Africans
from its application, thus loudly proclaiming the new labour law philosophy of divide and rule
(Gwisai, 2006). In addition to Industrial Councils, the ICA 1945 established Conciliation Boards
which resolved disputes through mediation and arbitration. The employee’s freedom of
association or entitlement to membership of a trade union was a fundamental right which could
not be waived. Any yellow dog clause in a contract of employment was a nullity. However, the
Act did not provide for the employees’ right to join and participate in workers’ committees. It
only recognised the right to trade union organisation. It is submitted that by implication this
extended to the right to form, join and participate in workers’ committees. All in all, it is clear
that these massive concessions were a result of militant confrontational approaches by white
labour, and not a gesture or favour granted by a benevolent colonial state to its own offspring
(Kasuso, 2019).

3.3.11 Federation of Rhodesia and Nyasaland

In 1953, a Federal Constitution of Rhodesia and Nyasaland was adopted and its effect was to
bring Southern Rhodesia, Northern Rhodesia (now Zambia) and Nyasaland (now Malawi) under
one administration. The three countries retained their own distinct identities. A Federal Prime
Minister, Ministers, Federal governor and a Federal Parliament administered the federation.
Southern Rhodesia retained its governmental structures as provided for in the 1923 Constitution.
The reasons for establishing the Federation were socio-economic and political (Linington, 2001).
The creation of the Federation impacted indirectly on labour law. Of the three countries,
Southern Rhodesia’s economy was more stable and developed. It was the economic hub of the
Federation and most of the wealth plundered in the other two territories found its way to

30
Southern Rhodesia. As if that was not enough, labour migrated from Northern Rhodesia and
Nyasaland to Southern Rhodesia. There was a massive increase in migrant labour and the
migrant labourers brought with them the spirit of nationalism, consciousness and resistance. As
shall be discussed herein below this led to fundamental changes in industrial relations of
Southern Africa. Be that as it may, these developments also contributed to the demise of the
Federation in 1963.
3.3.12 Industrial Conciliation Act 29 of 1959

The dual system of industrial relations in Southern Rhodesia carried within it the seeds of its own
destruction. In the face of massive economic growth and an increase in the number of African
workers, the apartheid and racist policies of the settler regime became practically unworkable
(Gwisai, 2006). There was an increase in the consciousness of African workers who were
spurred by growing regional anti-colonial struggles. This led to the sprouting of black trade
unions and industrial action such as strikes. The growing militancy of African trade unions
resulted in unprecedented industrial turmoil. This was fuelled by the emergence of black
nationalist political parties which were mothered by trade unions. The white minority regime
capitulated and granted Africans labour reforms. This culminated in the enactment of the ICA
1959. It brought fundamental changes to the labour law landscape.

The first far reaching consequence of the ICA 1959 was the abolition of the racist dual system of
labour law. It defined an employee as ‘any person employed by or working for any employer and
receiving, or being entitled to receive any remuneration.’ The provision excluding African
workers from the ambit of labour legislation was removed and it was applicable to all employees
whether white or black. Secondly, the Act provided an extensive framework for the regulation of
trade union formation, registration and activities of these unions. It allowed African workers to
join trade unions. Given the link between African trade unions and nationalist struggles, the Act
had several suppressive provisions which prohibited trade unions from affiliating with or funding
of any political party. The Registrar of Trade Unions wielded enormous powers regarding
registration, investigation and deregistration of trade unions.

Unregistered trade unions were recognised in Part IV of the Act. The right to strike was

31
specifically guaranteed in the Act but was heavily curtailed by onerous requirements set out in
sections 122 and 123. Sadly, the Act still maintained a thin line between exclusion and inclusion.
Madhuku (2015) argues that the approach was two pronged. Firstly, trade unions under the ICA
1945 were deemed registered under the Act and these were white only trade unions. This gave an
edge to white trade unions. Secondly, it allowed for the registration of trade unions based on
skills. Therefore, skilled white workers could register a trade union exclusive for themselves
(Sachikonye, 1985). Significantly, the “one industry, one union’ policy under the ICA 1934 was
repealed in favour of a multiplicity of trade unions within one industry. Another fundamental
reform ushered by the ICA 1959 was the establishment of a dispute resolution machinery
comprising of Industrial Boards and Conciliation Boards which resolved disputes through
negotiation, mediation and arbitration. At the kernel of this system was the Industrial Court, the
first form of specialised employment court whose main purpose was dispute management as
opposed to conflict resolution.

In conclusion the ICA 1959 guaranteed African workers a number of labour rights, namely; the
right to form and join trade unions of their choice and participate in their lawful activities, the
right to participate in collective job action such as strikes and the right to engage in collective
bargaining. There was an engrossment on collective labour rights at the expense of individual
labour rights which remained regulated by the common law (Madhuku, 2015). However, the
following years were met with a battery of security legislation designed at suppressing militant
black trade unions and divorcing them from the anti-colonial struggle. The effect of these
developments was to whittle down protections which were being afforded employees by the ICA
1959.

3.3.13 Southern Rhodesia Constitution of 1961

The demise of the Federation of Rhodesia and Nyasaland meant that Southern Rhodesia had to
revert back to its 1923 Constitution. Unfortunately, this Constitution had been made redundant
by the growing militancy of African trade unions, unprecedented economic growth and the rise
in anti-colonial struggles. A new Constitution which made provision for these changing social-
economic and political dynamics had to be enacted. This led to the adoption of the 1961
Southern Rhodesia Constitution (the 1961 Constitution). It was influenced by the Nigerian

32
Constitution of 1960 and the European Convention for the Protection of Human Rights and
Fundamental Freedoms of 1951 of which Britain was a signatory (Palley, 1966).

This Constitution gave Southern Rhodesia a degree of self-government, both externally and
internally, save for the power to amend the Constitution which was retained by the Crown and
residual powers of disallowance, suspension and revocation of the Constitution. A significant
departure from the 1923 Constitution was the creation of a justiciable Declaration of Rights. The
settler regime desired to preserve land, economic, social and cultural supremacy of white
minority at all costs. Therefore, the 1961 Constitution did not guarantee any socio-economic
rights but civil and political rights. The rights guaranteed included the following: the right to life,
protection from, slavery and forced labour, protection from inhuman treatment, protection from
deprivation of property, protection of privacy of the home and other property, protection of the
law, protection of freedom of conscience, right to freedom of expression, right to freedom of
assembly and association and protection from discrimination by written laws or by
administrative action. A Constitutional Council was also established in section 73. Its purpose
was to prevent the enactment of legislation that was inconsistent with the Declaration of Rights.
The rights guaranteed in the Declaration of Rights were not absolute. They were subject to
several limitations and could be suspended during periods of public emergency.

Although the Declaration of Rights did not guarantee socio-economic rights such as labour
rights, it impacted directly and indirectly on labour law. Some of these provisions and the extent
to which they impacted on labour law deserve commenting. For instance, the 1961 Constitution
entrenched freedom from slavery, servitude and forced labour. Excluded from this right was
labour required in consequence of a court order or sentence, labour required from lawfully
detained persons, labour required for disciplinary purposes from members of the armed services,
labour required by virtue of a written law during a public emergency and any labour which
formed part of normal community or other civic obligations. Despite the existence of this right,
labour legislation and practices promoted forced labour. The Master and Servants Act 1901
imposed criminal sanctions on defaulting employees. It provided that any native who without
lawful cause deserted or absented himself from work was guilty of an offence and liable to a fine
or imprisonment. Upon serving the sentence the worker was obliged to serve the remaining part

33
of the contract of employment. Similar provisions which promoted forced labour were also found
in the African Labour Regulations Act, the Africans Identification and Registration Act and
practices such as Chibharo. In addition, the African Juveniles Employment Act (Chapter 89)
promoted child labour and the whipping of African juveniles who would have breached their
contracts of employment. The protection from inhuman punishment and treatment was also
curtailed by legislation such as the Law and Order Maintenance Act 1960 which recognised
whipping and imprisonment with hard labour as competent sentences.

The 1961 Constitution also protected freedom of movement. However, the same Constitution
failed to safeguard this right. For instance, section 37 of the African Affairs Act (Chapter 92)
prohibited Africans from moving from one district to another without the consent of the District
Commissioner. This invariably curtailed Africans’ right to work and freedom of profession, trade
or occupation. The Protected Places and Areas Act (Chapter 76) also gave the Minister power to
control movement and conduct of persons in prohibited areas. Moreover, the Foreign Migratory
Labour Act 37 of 1958 prohibited Africans from other countries from seeking work or working
in areas declared closed labour areas. Other relevant pieces of legislation which curtailed this
right through the imposition of curfews included the Law and Order Maintenance Act and the
Unlawful Organisations Act.

Section 66 (1) of the 1961 Constitution promoted freedom of assembly and of association, that is
the right to assemble freely and associate with other persons and in particular to form or belong
to trade unions or other associations. For the first time in the history of Southern Rhodesia, the
right to trade union organisation was elevated to a constitutional right. However, this right was
not absolute. It was intemperately curtailed by existing legislation. For instance, the Law and
Order Maintenance Act prohibited the holding of or participating in a public procession without
obtaining clearance from the regulating authority. Disregard of this provision invited criminal
sanctions. The right to strike was also regulated under the ICA 1959 which almost made it
impossible for employees to enjoy the right to industrial action. The ICA 1959 also prohibited
trade unions from participating either directly or indirectly in politics. These prohibitions ensured
that trade unions and their members do not enjoy fully their right to freedom of assembly and
association.

34
Lastly, despite the prohibition against discrimination in the Declaration of Rights, discriminatory
labour laws and practices were retained by the settler regime. Palley (1966) observed that in
addition to legalised discrimination in terms of these provisions, ‘legislation couched in non-
discriminatory language had its own effect on Africans who were subjected to its penal
provisions, whereas such Acts were in practice virtually inapplicable to Europeans’. These
included the African Affairs Act (Chapter 92), Law and Order Maintenance Act, Africans
(Identification and Registration Act 1957, ICA 1959, Firearms Act and the Land Apportionment
Act, among others. Without doubt, the repressive laws which were maintained under the 1961
constitutional dispensation made the Declaration of Rights ineffective. This was aided by a racist
judiciary which adopted a narrow positivist approach in interpreting the Constitution. The full
realisation of constitutional rights remained a pipe-dream for African workers.

3.3.14 The 1965 Unilateral Declaration of Independence Constitution

In 1964 Northern Rhodesia (Zambia) became independent. The British Government was also
warming up to the idea of granting Southern Rhodesia independence subject to fulfilment of set
conditions. The ruling party in Southern Rhodesia led by Ian Smith was opposed to this idea. The
white minority government of Southern Rhodesia rebelled against the British government and
gave itself full self-government. The Smith regime declared a state of emergency on the 5 th of
November 1965 followed by a Unilateral Declaration of Independence (the UDI) on 11
November 1965. To adorn this regime with legitimacy, the 1965 Constitution of Rhodesia was
enacted. The fundamental features of this Constitution included the following: it removed all
residual British powers in respect of Rhodesia, it granted it full self-government, the Declaration
of Rights which was a prominent feature of the 1961 Constitution was expunged, court appeals
to the Privy Council in Britain were abolished and the office of the British Governor was
replaced with that of Officer Administering the Government. This Constitution did not guarantee
civil and political rights, let alone socio-economic rights such as labour rights. It was designed to
entrench white minority rule and its apartheid political and socio-economic policies (Palley,
1966).

35
3.3.15 The 1969 Constitution of Rhodesia
In 1969, a new Constitution for Rhodesia was enacted. The Executive arm of the State was
headed by a non-executive President who acted on the advice of Ministers. A bicameral
legislative system consisting of a Senate and House of Assembly was also established. Judicial
authority was vested in the High Court of Rhodesia. The Second Schedule to the 1969
Constitution provided a Declaration of Rights which guaranteed civil and political rights. The
rights which were guaranteed included the following: protection of the right to personal liberty,
protection from deprivation of property, protection from search and entry, protection of law and
freedom of conscience. Those which impacted directly on labour law included the following:
protection from slavery and forced labour, protection from inhuman treatment, freedom of
expression, assembly and association and protection from discrimination. Section 9(2) of the
Second Schedule to the 1969 Constitution specifically guaranteed the right to form or belong to
trade unions or other associations. This was a reincarnation of the 1961 Constitution’s
Declaration of Rights. Regrettably, the Declaration of Rights did not secure socio-economic
rights. In addition, it was not justiciable. It was rendered useless by section 84 of the 1969
Constitution which provided that ‘no court shall inquire into or pronounce upon the validity of
any law on the ground that it is inconsistent with the Declaration of Rights (Linington, 2001).’

3.3.16 The 1979 Zimbabwe - Rhodesia Constitution

The 1970’s decade was characterised by civil unrest in Rhodesia led by trade unions. The two
main African political parties, namely, Zimbabwe African People’s Union (ZAPU) and
Zimbabwe African National Union (ZANU) were also waging an armed struggle against the
settler regime through their military wings. It is this armed resistance that influenced the political
developments of the 1970’s. ZANU and ZAPU were banned in Zimbabwe and were operating
from Zambia and Mozambique. Only a few African political parties were allowed to operate in
Zimbabwe and these included, the United African National Council (UANC) led by Bishop Abel
Muzorewa, the Zimbabwe African National Union (ZANU) led by Ndabaningi Sithole and the
Zimbabwe’s United People’s Organisation (ZUPO) led by Chief Chirau (Linington, 2001).
These political parties concluded talks with the white minority regime and agreed to the adoption
of the 1979 Zimbabwe – Rhodesia Constitution. Elections were held and won by Bishop Abel

36
Muzorewa who was elected Prime Minister of Zimbabwe-Rhodesia (Linington, 2001).

This Constitution created an Executive arm of the State with a non-executive President, a Prime
Minister and Ministers. A bicameral legislative system comprised of the Senate and House of
Assembly was maintained. In addition, a justiciable Declaration of Rights was entrenched in
sections 120-136. It only guaranteed civil and political rights with the exception of property
rights. Labour rights and specifically the right to fair labour practices were not guaranteed. In
addition, most provisions in the 1979 Constitution were classified as ‘specially entrenched’. This
implied that they could only be amended by two thirds majority of the House of Assembly
members and Senate.

The international community, Britain, ZANU and ZAPU refused to recognise the internal
settlement and its 1979 Constitution. This led to the British government arranging a
constitutional conference at Lancaster House in London with the aim of bringing majority rule
and real political independence in Zimbabwe. The following issues were agreed upon: the
holding of free and fair elections, the grant of independence, future structures of the disciplined
forces, Executive and judiciary, interests of white minority in independent Rhodesia, land issue
and adoption of a new Constitution (Gwisai, 2006). A new Constitution was agreed upon and
elections were held in early 1980. They were won by Robert Gabriel Mugabe’s ZANU (PF) and
on 18 April 1980 independence was conferred upon Zimbabwe- Rhodesia which then became
known as Zimbabwe.

Activity 3.1
1. A fundamental character of the capitalist labour law system and process of work in
Zimbabwe in the colonial period, has been the vertical and horizontal gender fragmentation
of the labour market against women, especially black women. Explain four ways in which
the labour law system and labour relations have operated against women.
2. Identify three ways in which the colonial Industrial Conciliation Act marked on the one hand
a milestone development of labour law in Zimbabwe, and on the other a setback for the
working class. What were the principal factors behind this?

3.4 Post Independence Period (1980-2018)

The liberation struggle of Zimbabwe was inspired by Marxist ideologies. Therefore, on

37
independence the economic policies of the new black government were based on socialism, at
least on paper. Racial discrimination was replaced by policies of reconciliation and inclusion.
Despite the new government inheriting colonial era legislation, the first decade of independence
was characterised with transformation of social, economic and political aspects of Zimbabwe
(Cheater, 1991). Labour law was not immune to this transformation. The developments in the
labour law framework after 1980 were as a result of several factors. Gwisai (2006) argues that
the changes were primarily as a result of alterations ‘in the form of state ideology as well as
intense class struggles.’ The once oppressed black majority who were now the ruling class, were
under pressure to introduce minimum social reforms to placate the masses who were aggrieved
by the debilitating effects of colonialism. In addition, Zimbabwe had enacted the 1980
Constitution which impacted on labour law both directly and indirectly.

Another relatively significant development was the readmission of Zimbabwe into the
international community. Zimbabwe joined the ILO on 6 th June 1980 and the United Nations (the
UN) on 25th August 1980. Since 1980 it has ratified several ILO and UN conventions. In doing
so, it has incurred international obligations which have had a direct impact on its labour law
framework. On independence a trilogy of colonial legislation regulated labour law in Zimbabwe.
The Master and Servants Act regulated individual employment law. The ICA regulated
collective labour law and the Public Service Regulations regulated State employment. The new
government adopted a piecemeal approach to labour law reforms and early independence
legislation included the Minimum Wages Act 4 of 1980 and the Employment Act 13 of 1980.
However, the first important development was the enactment of the 1980 Constitution and its
impact is discussed herein below.

3.4.1 The 1980 Constitution of Zimbabwe

Since 1980 Zimbabwe has been a constitutional democracy. The 1980 Constitution was the
supreme law of Zimbabwe and any other law inconsistent with it was to the extent of the
inconsistency void. Section 89 of the 1980 Constitution retained Roman-Dutch common law
with an English law influence as the common law of Zimbabwe. It also provided for three arms
of the state, that is, the Executive, Legislature and Judiciary. A Public Service which was
responsible for the administration of the State was provided for in section 73. The Public Service

38
Commission was responsible for the employment and welfare of State employees. Therefore, the
1980 Constitution directly provided the legal framework for the employment of State employees
as well as giving the Public Service Commission powers to make regulations relating to the
terms and conditions of employment of public servants.

More significantly, the 1980 Constitution contained a justiciable Declaration of Rights. With the
exception of property rights, all the other rights were civil and political in nature. It is not
surprising that this Constitution did not guarantee socio-economic rights. It was a negotiated
political document crafted to transfer power from colonial Rhodesia to independent Zimbabwe.
Liberation movements were more concerned with political freedoms at the expense of socio-
economic rights. The Declaration of Rights of the 1980 Constitution was also construed as
having a vertical application only, that is, it applied between the State and the citizen. It did not
apply to private contractual relationships such ‘as the individual employer- employee
relationship’

The 1980 Constitution affected labour law at two levels, directly and indirectly (Gwisai, 2006).
Indirectly, it was the benchmark for testing the validity of labour legislation. Any legislation
ultra vires the Constitution was null and void. More directly, the following provisions of the
1980 Declaration of Rights were part of the labour law framework: freedom from forced labour,
protection from discrimination, freedom of assembly and association and protection from
inhuman and degrading treatment. Additionally, protection of the law introduced the right of
employees’ to be heard and adherence to principles of natural justice before an employer
embarked on any action which adversely affected the employees’ rights. In principle, the same
rights which appeared in the Declaration of Rights of colonial Constitutions were maintained.
The main difference was that the Declaration of Rights in the 1980 Constitution was justiciable
and the judiciary had shifted its mind-set from a narrow positivist interpretation of the
Constitution to a more generous and purposive interpretation which augured well for social
justice.

3.4.3 The Minimum Wages Act 1980

39
Colonialism was characterised by racial discrimination, exploitation and inequality at the
workplace. Independence brought a crisis of expectations from the black workers who had
endured social, political and economic oppression. They anticipated realignment of the economy,
redistribution of wealth and eradication of racial discrimination through progressive labour
legislation. In recognition of these expectations, the new government enacted the Minimum
Wages Act 1980. The purpose of this Act was to make provision for the fixing, enforcement and
collection of minimum wages, to prohibit discrimination in the payment of wages and incidental
matters. Section 3 of the Act gave the Minister of Labour powers to fix minimum wages through
subsidiary legislation. An example of such subsidiary legislation was the Minimum Wages
(Specification of Wages) Notice 37 of 1980, which increased minimum wages for black workers
including those in agriculture and domestic servants. The Act also prohibited discrimination in
wages based on race, sex and age. In addition, a contract of employment could not be terminated
on account of failure by the employer to pay the minimum wage. The effect of the Act was to
void any contract in conflict with its provisions. Lastly, contravening the Minimum Wages Act
1980 was an offence punishable by a fine or imprisonment and in some cases damages could be
recovered from the employer. The Minimum Wages Act, 1980 was an attempt by the State to
guarantee every employee the right to a fair and reasonable wage. The benchmark of what was
fair was set by the Minister of Labour in a minimum wage notice. Additionally, the Minimum
Wages Act promoted the right to equal remuneration for similar work. It sought to erase the
wrongs of colonialism. This was in line with section 23 (1) of the 1980 Constitution which
prohibited discrimination.

3.4.4 Employment Act 13 of 1980

The Employment Act 1980 provided for the regulation of minimum conditions of employment,
the registration of private employment agencies and the control of the recruitment of persons for
employment within or beyond the borders of Zimbabwe. It repealed the following colonial
labour legislation: African Juveniles Act, the African Labour Regulation Act, Foreign Migratory
Labour Act and the infamous Master and Servants Act. Moreover, it amended the Industrial
Conciliation Act. Basically, the State extended its scope of control of the employment
relationship. Section 3 of the Employment Act empowered the Minister of Labour to make

40
regulations covering almost all aspects of employment, including but not limited to the
following: rights of employees; deductions from remuneration; leave; provision of benefits and
allowances; establishment of pension, sick, medical, holiday provident and insurance; special
conditions for employment of women and juvenile employees; employment of the disabled;
settlement of labour disputes and the general regulation of the conditions of employment.
Madhuku (2015) submits that leaving everything to the Minister was a stop gap measure meant
to buy time for the enactment of a comprehensive labour legislation. The Act prohibited the
employment of young persons who were below the age of sixteen. Duration of notice of
termination of the contract of employment by either party was prescribed in section 7 of the Act.
Fundamentally, summary dismissal was prohibited save for cases of misconduct. Part II of the
Act dealt with registration and licensing of private employment agencies as well as the
recruitment of persons for employment.

The Employment Act was followed by the Industrial Conciliation (Amendment) Act of 1981
which sought to recognise rights of female employees at the workplace. Women were granted
full legal capacity to enter into an employment relationship and they were granted paid maternity
leave of eighty-four days. This signified the formal recognition of women rights at the
workplace. The State also resorted to the use of the Emergency Powers Act to deal with
employment issues. The removal of the oppressive colonial labour legislation resulted in a wave
of strikes. This forced the State to invoke the Emergency Powers Act to regulate termination of
employment and the establishment of workers’ committees. Under this Act the Emergency
Powers (Termination of Employment) Regulations, 1982 were enacted. Their effect was to
prohibit summary termination of a contract of employment on notice unless the parties mutually
agreed to the termination or the employer obtained Ministerial approval. The Regulations also
permitted summary dismissals in limited circumstances of misconduct.

3.4.5 Labour Relations Act 16 of 1985 and its amendments

Independence brought with it changes in the ideology of the State and economic transformation.
Labour legislation which was still embedded in colonial policies was found wanting. It was
fragmented and did not reflect the political and socio-economic changes. In addition, it had not

41
been aligned with the 1980 constitutional requirements and international standards made under
the auspices of the ILO. It is these forces that influenced the enactment of the Labour Relations
Act 1985 (LRA). Not only did it repeal remnants of colonial labour legislation such as the ICA,
Employment Act and Minimum Wages Act, but it also introduced for the first time in Zimbabwe
a comprehensive piece of labour legislation.

The LRA covered both individual and collective labour law. It is still the law in place to this day
and has since been amended by the Labour Relations (Amendment) Act 12 of 1992, Labour
Relations (Amendment) Act 17 of 2002, Labour (Amendment) Act 7 of 2005 and the Labour
(Amendment) Act 5 of 2015. Since the LRA 1985 as amended is still the mainstay of
Zimbabwe’s current labour legislation, this discussion only summarises the changes brought by
the Act and its amendments. Firstly, the LRA 1985 entrenched a two tier labour relations system
in that its section 3 excluded from its application employees, ‘whose conditions of employment
are otherwise provided for by or under the Constitution’. In other words, excluded from its
application were State employees. Secondly, it entrenched fundamental rights of workers which
included among others; entitlement to membership of trade unions and workers’ committees,
protection of employees against discrimination in all aspects of employment; protection of
employees’ right to fair labour standards and protection of employees’ right to democracy in the
workplace. The rights of female employees to equal remuneration and maternity leave were fully
recognised and protected by the Act.

Thirdly, it introduced the concept of unfair labour practices. An unfair labour practice was
defined as ‘an unfair labour practice specified in Part III or declared to be so in terms of any
other provision of this Act.’ These unfair labour practices were exhaustive and could only be
committed by an employer, trade union or workers’ committee. In terms of section 10 of the Act
the Minister of Labour could prescribe further unfair labour practices. Although the concept of
unfair labour practice possessed novelty in its quest to protect workers’ rights from
encroachment by employers, trade unions and workers’ organisations, it was limited in its scope.
To be an unfair labour practice an act or omission had to be specifically prescribed in Part II of
the LRA, 1985. If not, it was not an unfair labour practice even if it was unfair. There was no
remedy against such an act or omission. Additionally, an employee could not commit an unfair

42
labour practice against the employer. Other labour rights guaranteed by this Act included the
rights to collective bargaining and collective job action. It also retained the concept of fixing of
minimum wages. Labour disputes were adjudicated by employment boards, the Labour Relations
Board and at the apex of this system was the Labour Relations Tribunal. The Minister of Labour
still wielded extensive powers in all aspects of employment.

The LRA, 1985 was viewed by many as pro-workers. It was based on socialist economic policies
and the social justice perspective of labour relations. However, by early 1990 the economic and
political policies of the State shifted. Gwisai (2006) notes that the State abandoned its state
corporatist policies for neo-liberalism. A new economic blue print called Economic Structural
Adjustment Programme (ESAP) was adopted, further confirming Gwisai’s assertions on neo-
liberal approaches to economic system. A key component of this policy was deregulation of the
labour market. There was a general perception that most of the provisions of the LRA, 1985
imposed inimical and unwarranted regulation on the freedom of the parties to contract on equal
terms and sanctity of contracts. This new libertarian perspective of labour relations influenced
the amendments that followed the LRA, 1985.

(a) Labour Relations (Amendment) Act 12 of 1992.

This was the first amendment to the LRA, 1985. It signified a shift from the state corporatist
policies to neo liberalism. This amendment removed State control on fixing of minimum wages
and replaced it with NEC’s for various undertakings. Minimum wages were now negotiated at
NEC level through collective bargaining. The state corporatist controls on dismissal were also
removed and replaced with codes of conduct. This paved the way for disciplinary matters and
retrenchment to be dealt with at shop floor level. The aim was to enhance employers’ flexibility;
namely employment flexibility, wage flexibility and functional flexibility. The ‘one industry one
trade union’ policy was abolished. It was argued that it suffocated labour market flexibility.
More than one union could now be registered in any industry. However, the Registrar of Trade
Unions still retained the discretion to refuse registration of a trade union. Several restrictions
were imposed on the right to collective job action and in particular the right to strike. Managerial
employees were prohibited from trade union membership and belonging to the same workers’

43
committees as non-managerial employees. They could form their own managerial employees’
workers’ committees.

Dispute resolution mechanisms were streamlined. Conciliation, mediation and arbitration under
the Ministry of Labour by Hearing Officers, Regional Hearing Officers and the Labour Relations
Board were removed. This amendment was also supported by other neo liberal legislation which
impacted on labour law such as the Export Processing Zones Act (Chapter 14:07). This piece of
legislation regulated the establishment of special economic zone areas called export processing
zones. The purpose of the Act was to attract foreign direct investment. Its effect was to exclude
the application of the LRA in export processing zones. Workers in these zones were therefore
regulated by the common law. However, the Export Processing Zones (Employment) Rules 372
of 1998 provided for terms and conditions of employment of workers in export processing zones.
Unfortunately, the protections afforded by these regulations were inferior to those of the LRA. It
is for this reason that Gwisai (2006) equated the export processing zones with the Chibharo
system of the colonial era.

(b) The Labour Relations (Amendment) Act 17 of 2002

During the late 1990s Zimbabwe underwent a massive economic and political meltdown. This
resulted in the emergency of a strong opposition political party, the Movement for Democratic
Change (the MDC) which was a labour based party. It presented the first real challenge to ZANU
PF’s hegemony since 1980 (Raftopoulos and Sachikonye, 2001). The free market policies had
failed and the ruling party was facing an imminent ouster from power. The State had to reform
its policies. This resulted in the State abandoning ESAP and the introduction major labour law
reforms. Gwisai (2006) describes the resultant labour legislation as ‘a transitional compromise
law between neo-liberalism, state corporatism and pluralism, reflecting the sharp political,
ideological and class struggles of the period.’

The first significant change brought by the Labour Relations (Amendment) Act 2002 (the LRAA
2002) was the renaming of the LRA to the Labour Act (the LA). Secondly, it amended the Public
Service Act (Chapter 16:04). This was significant. State employees who were previously

44
excluded from application of labour legislation were now covered by the LA with the exception
of dispute settlement systems. Put differently, it harmonised labour legislation. For the first time
in Zimbabwe, the employees’ right not to be unfairly dismissed was statutorily recognised. In
addition, special leave and fully paid maternity leave for female employees were introduced. The
dispute resolution framework was also overhauled. Labour dispute resolution under the Ministry
of Labour was now conducted by means of conciliation and arbitration by Labour Officers. At
the kernel of this system was the Labour Court which replaced the Labour Relations Tribunal.
Other pluralist measures introduced by the amendment included express provisions declaring the
Act’s purpose as to advance social justice and democracy in the workplace, collective
bargaining, employee participation in the workplace, just and expeditious resolution of disputes,
superiority of the LA over any other Act and the extension of circumstances under which a legal
strike may be undertaken.

(c) The Labour (Amendment) Act 7 of 2005

This amendment fine-tuned the LRAA 2002. Its first key amendment was the removal of State
employees from the ambit of labour legislation. The old two tier labour relations system was
reinstated. Section 3 of the Act excluded from labour legislation employees ‘whose conditions of
employment are otherwise provided for in the Constitution’. Secondly, the LAA 2005 enhanced
the jurisdiction of the Labour Court by giving it the same powers of review as are exercisable by
the High Court in respect of labour matters. Thirdly, section 56 of the Export Processing Zones
Act (Chapter 14:07) which excluded employees in these zones from the ambit of labour
legislation was repealed. Lastly, maternity leave was increased to ninety-eight days.

(d) The Labour (Amendment) Act No. 5 of 2015

Zimbabwe adopted a new Constitution in May 2013. This Constitution replaced the 1980
Constitution. The Labour (Amendment) Act 5 of 2015 (the LAA 2015) is the first amendment to
labour legislation after enactment of the 2013 Constitution. In July 2015, the Supreme Court in
the case of Nyamande & Another v Zuva Petroleum (Pvt) Ltd SC 43/15 affirmed the employer’s
common law right to unilaterally terminate a contract of employment on notice on the basis of

45
section 12(4) of the LA. There was a general perception that employers no longer had this right.
This ruling led to massive job losses as employers embraced the less costly method of
terminating contracts of employment on notice (Kasuso & Manyatera, 2015). It was in response
to these monolithic job losses that the government hurriedly enacted the LAA 2015. It sought to
align labour laws with the 2013 Constitution and promoting productivity and competitiveness of
local industry. Regrettably, an overview of the main provisions of the amendment clearly show
that it did the opposite of what it purported to be its objectives. Not only did it fail to align labour
laws with the 2013 Constitution but it also entrenched neo-liberalism. Its attempt to fuse it with
pluralism was cosmetic and an exercise in futility (Mucheche, 2016).

The first change brought by the Act was to codify the employers’ right to terminate a contract of
employment on notice. It made provision for limited circumstances in which an employer could
terminate a contract of employment on notice. In the event of termination on notice an employee
was entitled to compensation for loss of employment of one month’s salary for every two years
served. This codification of the employers’ right to terminate a contract of employment on
notice did not in any way enhance workers job security. Secondly, it streamlined the
retrenchment procedures and stipulated a minimum retrenchment package payable to employees
of one month’s salary for every two years served. Prior to this amendment there was no formula
for calculating a retrenchment package. However, the retrenchment package prescribed by the
amendment was viewed by workers as too low.

Thirdly, the Amendment Act overhauled labour dispute resolution. Labour Officers were given
powers to conciliate disputes. In the event that the parties fail to settle, a labour officer can
proceed to hand down a draft ruling in the dispute. The ruling is then confirmed by the Labour
Court on application by the Labour Officer. The review powers of the Labour Court were also
enhanced. This was achieved by prescribing grounds of review in labour matters which are
similar to those of the High Court. Fourthly, the amendment curbed the abuse of NEC funds by
employers and employees by giving the Registrar of Labour oversight powers over financial
affairs of employment councils. In addition, the Minister of Labour was also given powers to
investigate trade unions and employers’ organisations. On a more positive note the amendment
enhanced job security of fixed term contract employees by deeming certain contracts to be

46
permanent where such is fixed by the relevant NEC or the Minister of Labour. Another
contentious issue was the retrospective application of section 12 of the Act to every employee
whose services were terminated on three months’ notice on or after 17 th July 2015. The
Constitutional Court has since accepted the constitutionality of the retrospective application of
the Amendment Act in Greatermans Stores (1979) (Pvt) Ltd t/a Thomas Miekles Stores &
Another v The Minister of Public Service, Labour and Social Welfare & Another CCZ 2/18.

The LAA 2015 was followed by the Special Economic Zones Act 7 of 2016 whose purpose was
to provide for the establishment, administration, control, regulatory measures and incentives of
special economic zones. This was one of government’s efforts to attract foreign direct investment
under its Zimbabwe Agenda for Sustainable Socio-Economic Transformation (ZIMASSET)
economic blue print. Section 56 (2) of the Act provided that; ‘the authority must in consultation
with the Minister responsible for the administration of the Labour Act [Chapter 28:01] provide
rules for conditions of service, termination of service, dismissal from service and disciplinary
proceedings that apply within every special economic zone.’ The LA is not ousted from special
economic zones. It will be ousted once Regulations on employment in special economic zones
have been gazetted. However, these regulations must be consistent with the enabling Act, which
is the LA and the Constitution.

3.5 The Future

The amendments to labour legislation in Zimbabwe have been piecemeal and the current state of
labour law exhibits a mixture of contrasting ideological positions. It is a combination of neo-
liberalism, State corporatism and pluralism. With the advent of the 2013 Constitution which
entrenches labour rights in section 65, it is submitted that the current labour law system is
strained. The tradition was that labour policy was based on the ideologies of the ruling party,
politics and economics. This is no longer the case. The 2013 Constitution is now the basis upon
which labour legislation operates. In light of this development, the Ministry of Labour in 2017
identified thirteen principles for labour law reform. These include the following areas of reform:
streamlining retrenchment procedures; right to collective bargaining; streamlining the labour
dispute settlement system, collective job action, paid education leave, governance of
employment councils, right to organise, right to maternity protection, protection against forced

47
labour and right to equal pay for work of equal value, among others. However, realities of the
past will have a considerable positive influence on any future labour law reform. It seems clear
that the amendments have failed to address all key areas or they did not do so adequately.

Activity 3.2

1. Critically discuss what you consider to be the four most important changes to labour
legislation introduced after 1980.
2. The Labour (Amendment) Act 5 of 5 of 2015 has been hailed as a fundamental advancement
of the working class. Discuss.

3.5 Summary

This unit examined the evolution of labour law in Zimbabwe from colonisation to the present
day. It investigated the different statutory developments in the regulation of labour law, the
constitutional protection of labour rights and the political, social and economic factors
underlying the changes. A discussion of the history of labour law in Zimbabwe has revealed that
labour law is dynamic. It is determined by political ideologies of the ruling class and other socio-
economic influences. For this reason, labour legislation is never immune from critical reflection,
and when necessary, revision.

48
References

Arrighi, G. (1970). Labour supplies in historical perspectives: A study of the proletarianisation of

the African peasantry in Rhodesia, Journal of Developmental Studies 179.
Austin, R. (1975). Racism and apartheid in Southern Africa: Rhodesia, Paris: UNESCO Press.
Cheater, A.P. (1991). Industrial Organisation and the Law in the First Decade of Zimbabwean
Independence, Zambezia 1-14.
Gwisai, M. (2006). Labour and Employment Law in Zimbabwe: Relations of Work under Neo-
Colonial Capitalism, Harare: Zimbabwe Labour Centre.
Hahlo, H.R. & Kahn, E. (1968). The South African legal system and its background, Cape Town:
Juta & Co.
Kasuso, T.G. & Manyatera, G. (2015). Termination of the Contract of Employment on Notice: A
Critique of Nyamande and Another v Zuva Petroleum (Pvt) Ltd SC 43/15, MSU Law Rev 88-106.
Linington, G. (2001). Constitutional law of Zimbabwe, Harare: Legal Resources Foundation.
Machingambi, I. (2007). A Guide to Labour Law in Zimbabwe, Harare: I Machingambi
Publications.
McCulloch, J. (2000). Black peril, white virtue: Sexual crime in Southern Rhodesia,
Bloomington: Indiana University Press.
Madhuku, L. (2010). An Introduction to Zimbabwean Law, Harare: Weaver Press.
Madhuku, L. (2015). Labour Law in Zimbabwe, Harare: Weaver Press.
Mucheche, C. (2015). Amendments to the Zimbabwean Labour Act (Chapter 28:01) and their
Implications on the Employment Relationship: A Review of some Critical Sections of the
Labour Amendment Act No 5 of 2015, Paper presented at Great Zimbabwe University.
Raftopoulos, B. & Sachikonye, L. (2001). Striking Back: The Labour Movement and the Post-
49
Colonial State in Zimbabwe 1980-2000 Harare: Weaver Press.
Redgment, J. (1981). Introduction to the legal system of Zimbabwe, Harare: Salisbury Book
Centre.
Palley, C. (1966). The Constitutional History and Law of Southern Rhodesia, Oxford: Clarendon
Press.
Sachikonye, LM. (1985). Labour Legislation in Zimbabwe: Historical and Contemporary
Perspectives Zambezia.
Tsabora, J. & Kasuso, T.G. (2017). 38 Reflections on the Constitutionalising of Individual
Labour Law and Labour Rights in Zimbabwe, Industrial Law Journal SA 43.
Van Onselen, C. (1973). Chibaro: African mine labour in Southern Rhodesia 1900-1933,
London: Pluto Press

UNIT 4

The Protection of Employees in Terms of Labour Legislation

4.1 Introduction

This unit commences with an overview of the application of labour legislation in Zimbabwe. In
unit 2, it was established that the principal labour legislation in Zimbabwe is the Labour Act as
amended by the Labour (Amendment) Act 5 of 2015. In this unit, parties covered by the Labour
Act are identified as well as statutory exclusions to application of the Labour Act. In addition,
the unit analyses application of the Labour Act when in conflict with other laws. Further, this
unit discusses the interpretation model for labour legislation. It is trite that the predominant
framework which underpins the operation of the labour market in Zimbabwe is the contract of
employment. It is the basis of the employment relationship and the best vehicle through which
workers have access to protections guaranteed in labour legislation. Therefore, in this unit we
also discuss the protection of employees in terms of labour legislation. It is important to consider
how a contract of employment is concluded, identify parties to the contract of employment, its
contents and form and how it is varied.

4.2 Objectives

By the end of this unit, you should be able to:

 identify workers excluded from application of the Labour Act

50
  discuss the application of the Labour Act when in conflict with other laws
 evaluate the interpretative framework of labour legislation in Zimbabwe
 define the term contract of employment
 define the terms employee and employer
 distinguish between an employee and an independent contractor
 describe the different tests used by courts to determine whether a person is an employee
or not
 describe the categories of workers who are protected by labour legislation
 explain the circumstances it is permissible for an employer to unilaterally vary terms and
conditions of employment

4.3 Application of the Labour Act

Section 3(1) of the Labour Act provides that the Act applies to all employers and employees
except those whose conditions of employment are otherwise provided for in the Constitution.
This section sets the tone for the establishment of a two tier labour system in Zimbabwe
(Madhuku, 2015). On one hand, we have labour legislation applicable to the private sector and
on the other hand, labour legislation applicable to State employees. The Labour Act applies to all
employers and employees in the private sector. In addition, it also applies to parastatals, local
authorities and State universities. Some of these institutions are State aided whilst others are
quasi-State institutions. The only exceptions being employees whose conditions of employment
are otherwise provided for in the Constitution. See Mukundu v Chairman, Mutasa RDC &
Another 2002 (1) ZLR 469 (8); Rutunga & Others v Chiredzi Town Council & Another 2003 (1)
ZLR 197 (S) and Midlands State University Council v MSU Lecturers Association SC42/05.

4.4 Statutory Exclusions

The Labour Act applies to all employees except those in categories that are expressly excluded in
section 3(1), (2) and (3) of the Act. These are: those whose conditions of employment are
otherwise provided for in the Constitution; members of the Civil Service; members of the
disciplined forces of the State and any other employees designated by the President in a statutory
instrument. Civil servants are covered by two main pieces of legislation, that is, the Public
Service Act (Chapter 16:04) and the Health Services Act (Chapter 15:16). See City of Gweru v
Masinire SC56/18. In addition, the Labour Act is specific about its non-application to members
of the disciplined forces. Section 2 of the Labour Act defines the term disciplined forces to
include: a military, air or naval force, a police force, a prison service and persons employed in
the President’s Office on security duties or the intelligence services. Whilst other security
services are regulated by specific legislation such as the Defence Act and Police Act, there is no
legislation regulating employment of the intelligence services. See Vutabwarova v Chairman,
Board of Inquiry & Others HH 207/12 and Mawere & Another v The Central Intelligence
Organisation SC 30/07.
51
Other bodies whose conditions of employment are provided for in the Constitution and therefore
excluded from application of the Labour Act include members of the Judicial Service
Commission and the National Prosecuting Authority. The Zimbabwean Labour Act is different
with the Labour Relations Act, 1995 of South Africa which brings all employers and employees
under a single regulatory framework. It applies to private sector employees, public sector
employees, State owned enterprises, the police and prison services, among others. It only
excludes from its application members of the National Defence Force and Security Services.
Zimbabwe once abolished the two tier labour system in 2002, through the Labour (Amendment)
Act 17 of 2002. The current fragmented or dual system was reintroduced by the Labour
(Amendment) Act 7 of 2005 (See Unit 3).

Also excluded from application of the Labour Act are international organisations. In The
International Committee of the Red Cross v Sibanda & Another 2004 (1) ZLR 27 (S), the
Supreme Court accepted that the Labour Act applies to contracts of employment between
international organisations and their employees. The basis of this finding was that immunity
from suit and legal process does not extend to an act jure gestionis (of a private law character)
such as a contract of employment. Immunity only extended to an act jure imperi: (a sovereign or
public act) (Madhuku 2015:7). This position was subsequently overturned in Minister of Home
Affairs v Jenrich & Others SC 73/18. The court held that international organisations enjoyed
functional immunity which protects them from any legal process and execution under the local
legal system. It concluded that the International Committee of the Red Cross case supra, was
wrong, to the extent that it held that an international organisation does not enjoy functional
immunity. For the reason that international organisation can only carry out their functions
through employees, labour disputes lie at the core of an international organisations immunity
from suits in local courts by former or current employees in actions arising from employment
relationships. Labour disputes had to be dealt with in accordance with the international
organisations own internal mechanisms for dealing with employment related disputes.

4.5 Application of Labour Act when Inconsistent with other Laws

The supremacy of the Labour Act is affirmed in section 2A (3) of the Act which provides that
‘the Act shall prevail over any other enactment inconsistent with it.’ Therefore, in the event of
any conflict between the Labour Act and any other statutory provision, the Labour Act will take
precedent. This section does not by implication repeal provisions of the other statute which is
inconsistent with the Labour Act. Its provisions remain valid and applicable in all circumstances
not subject to application of the Labour Act (Gwisai, 2006). For instance, in Mombeshora v
Institute of Administration and Commerce SC 72/17, the issue arose of whether the Labour Act
or Companies Act was applicable in dismissal of a company Director. The Appellant was a
Director of the Respondent. He argued that although he was Respondent’s employee in terms of

52
a contract of employment, he was also a Director and as such his matter ought to have been
determined in terms of section 175 of the Companies Act. The court noted that section 175 of the
Companies Act was inconsistent with provisions in the Labour Act on unfair dismissal. It was
held that by virtue of section 2A (3) of the Labour Act, the Act overrides all other Acts
inconsistent with it. The dismissal of the Appellant was lawfully done in terms of the Labour Act
which overrides the Companies Act. See also Gomwe & Another v Associated Newspapers
Association of Zimbabwe 2001 (2) ZLR 415 (H), Crempton Trading (Pvt) Ltd v Matekenya 2012
(2) ZLR 161 (H) and Tamanikwa & Others v Zimbabwe Manpower Development Fund SC
33/13.

In City of Gweru v Masinire SC 56/18, the issue for determination was whether the termination
of a contract of employment of a senior council employee was governed exclusively by
provisions of the Urban Councils Act (Chapter 29:15) to the exclusion of the Labour Act. The
Respondent was employed as a Chamber Secretary by the Appellant in terms of section 133 of
the Urban Councils Act. He was subsequently dismissed from employment following a
disciplinary hearing held in terms of the Labour (National Employment Code of Conduct)
Regulations, 2006. The Respondent contended that he should have been dismissed in terms of
the Urban Councils Act and not regulations made under the Labour Act. He relied on City of
Mutare v Matamisa 1998 (1) ZLR 512 (S) which held that senior urban Council employees were
not susceptible to dismissal in terms of the Labour Act. See also Nyakanyanga v Postmaster-
General HH 19/89, City of Mutare v Fanuel Madzime & Others SC 91/99. The court held that
the Labour (Amendment) Act 7 of 2005 had made the Labour Act superior to all other
enactments inconsistent with it. Furthermore, it applied to all employees save for those it
expressly excluded from its ambit. Therefore, the Urban Councils Act was subservient to the
Labour Act and could not exclude the application of the Labour Act to senior council employees.
Section 2A (3) of the Labour Act has put to rest the controversy about whether or not the Labour
Act is superior to other pieces of legislation on labour matters.

4.6 Interpretation of the Labour Act

The starting point in interpretation of labour legislation is the Constitution. In Unit 2, section 65
of the Constitution was identified as a major source of labour law. It entrenches labour rights
which are given effect to by the Labour Act. The Constitution defines the manner in which it
must be interpreted in section 46 which provides as follows:
(1) When interpreting this Chapter, a court, tribunal, forum or body-
(a) must give full effect to the rights and freedoms enshrined in this chapter;
(b) must promote the values and principles that underlie a democratic society based on
openness, justice, human dignity, equality and freedom, and in particular, the values
and principles set out in section 3.
(c) must take into account international law and all treaties and conventions to which
Zimbabwe is a party;

53
 (d) must pay due regard to all the provisions of this Constitution, in particular the
principles and objectives set out in Chapter 2; and
(e) may consider relevant foreign law;
in addition to considering all other relevant factors that are taken into account in the interpretation
of a Constitution.

The Constitution adopts a purposive, teleological approach in interpreting constitutional labour

rights. This demands a generous interpretation which takes into account the changing conditions,
social norms and values. See Smyth v Ushewekunze & Another 1997 (2) ZLR 544 (S); Mudzuru
& Another v Minister of Justice, Legal and Parliamentary Affairs NO & Others CCZ 12/16. This
interpretative model is also reflected in section 2A (1) and (2) of the Labour Act. Section 2A (1)
of the Labour Act provides that the purpose of the Act is to advance social justice and democracy
in the workplace. Section 2A (2) then provides that the Act shall be construed in such manner as
best ensures the attainment of its purposes. Gwisai (2006) argues that these provisions express a
pluralist perspective of labour relations which must guide the courts in interpreting labour
legislation. The dominant perspective underlying labour rights and labour legislation is the
protection of workers. Therefore, the purposive approach is best suited to counteracting the
inequality inherent in the employment relationship and the advancement of social justice in the
workplace. See Nyanzara v Mbada Diamonds (Pvt) Ltd HH 63/16.
In light of the foregoing, specialised dispute resolution mechanisms established by the Labour
Act such as the Labour Court are concerned with issues of substantive justice and equity. They
are not legalistic or formalistic in their approach since they were created to dispense simple and
clear industrial justice unhampered by technicalities (Gwisai, 2006). However, in determining
what is just and equitable or fair, these dispute resolution mechanisms cannot invoke equity to
override or negate provisions and requirements of any legislation. See Ballantyne Butchery (Pvt)
Ltd t/a Danmeats v Chisvinga & Others SC 6/15, Hubert Davies v Mutsindiri SC 96/04,
Madhatter Mining Company v Tapfuma SC51/14, Flexmail (Pvt) Ltd v Samanyau & Others SC
27/14.

Activity 4.1
1. Discuss whether the following employees are excluded form application of the Labour
Act:
(a) Soneni, a clerk at Josiah Magama Tongogara Barracks, the national headquarters of
the Zimbabwe Defence Forces in Harare.
(b) Anyway, a university lecturer at Midlands State University, a state university in
Gweru.
2. Compare and contrast City of Mutare v Matamisa 1998 (1) ZLR 512 (S) and City of
Gweru v Masinire SC 56/18.
3. John was employed by Mutoko Rural District Council as its Chief Executive Officer. In
that capacity, he was a senior official of Mutoko Rural District Council appointed in
terms of section 66 (1) of the Rural District Councils Act (Chapter 29:13). Sometime in

54
 2017 John was dismissed from employment following disciplinary proceedings
conducted in terms of the Labour (National Employment Code of Conduct) Regulations,
2006, the model code made in terms of the Labour Act. The dismissal was subsequently
approved by the Local Government Board as provided for in the Rural District Councils
Act. John is dissatisfied with his dismissal. He objects to the jurisdiction of the
disciplinary authority which handled his matter. He contends that the Labour Act is not
applicable to him. Further, he argues that as a senior employee of the Rural District
Council he should have been dismissed in terms of the Rural District.

Advise John on whether Mutoko Rural District Council erred in terminating his contract
of employment in terms of the Labour Act and regulations made thereunder and not the
Rural District Councils Act.
4. Critically discuss the purposive rule of interpretation and its applicability to interpretation
of labour legislation.

4.7 Defining the Employment Relationship

The foundation of the employment relationship is the contract of employment. It is a voluntary

agreement between two parties, in terms of which one party (the employee) places his or her
labour potential at the disposal and under the control of the other party (the employer) in
exchange for some form of remuneration (Grogan, 2011, p.15). The essential elements of the
employment contract from this definition are: agreement to make personal services available,
remuneration and subordination. Denudated to its bones a contract of employment is not
different with any other contract and is governed by ordinary principles of the law of contract.
No specific formalities are required by law, and the contract can be constituted in writing or
orally or inferred from conduct of the parties (Madhuku, 2015, p.31). However, section 12(2) of
the Labour Act requires an employer to inform the employee in writing of a set of specified
particulars.

The general formalities applicable to any contract under the law of contract are also applicable
for a valid employment contract to be consummated. If the contract does not comply with these
requirements it is void. The most important requirement for the validity of the contract of
employment is that there must be consensus between the parties about the terms and conditions
of the contract. There must be offer and acceptance of employment. The parties to the contract
must have the capacity to contract. An employee can only be a natural person, whilst the
employer can either be a natural or juristic person. The conclusion of a contract of employment
and obligations arising thereof must be lawful. Contracts of employment tainted with illegality
are void and of no force. A contract of employment, may also be vitiated by mistake or
misrepresentation (See Posts and Telecommunications Corporation v Mhaka HH 127/03).

55
However, Madhuku (2015, pp 32-38) argues that the Labour Act ousts the general principles of
the law of contract in the following aspects: anti-discrimination provisions in section 5 of the Act
and the employment of children and young persons in section 11 of the Act.

Activity 4.2
1. Define a contract of employment.
2. Describe the essential elements of a contract of employment?
3. Which of the following would be valid contracts of employment?
(a) Peter, aged 13, approaches TK (Pvt) Ltd which had advertised a post in the local
newspaper for a delivery boy. Peter agrees to the terms and conditions proposed by
TK (Pvt) Ltd.
(b) John concludes an employment contract with Dave, and in terms of the contract,
Dave is expected to murder Miss P.
(c) Pascal is employed as a cleaner. Because Pascal can barely read, he and his employer
enter into an oral agreement.
(d) Steven and Michael enter into a contract. Steven is under the impression that he has
contracted to build Michael a house, while Michael believes that Steven has offered
him full time employment as manager of a building site.

4.8 Parties to the Employment Relationship

Generally, the employment relationship is a bipartite relationship between an employee and

employer. It is necessary that these two terms be defined.

4.8.1 Employee

Section 2 of the Labour Act defines an employee as follows:

Any person who performs work or services for another person for remuneration or reward on
such terms and conditions as agreed upon by the parties or as provided for in this Act, and
includes a person performing work or services for another person –
(a) in circumstances where, even if the person performing the work or services supplies
his own tools or works under flexible conditions of service, the hirer provides the
substantial investment in or assumes the substantial risk of the undertaking; or
(b) in any other circumstances that more closely resemble the relationship between an
employee and employer than that between an independent contractor and hirer of
services.
Identifying who is an employee for purposes of application of labour legislation has always been
forbiddingly a vexing question. At first glance the definition wears an air of deceptive simplicity.
It sheds little light on how to determine whether one is an employee or not (Madhuku, 2015,
p.26). The first part of the definition is predicated on the common law contract of employment,
56
whilst the second part is not. Part (b) of the definition makes reference to a relationship that more
closely resemble the relationship between an employee and employer than that between an
independent contractor and hirer of services. The focus shifts from the existence of a contract of
employment to the existence of an employment relationship. The definition of employee
conceals a complex debate on how to distinguish an employee from an independent contractor.
In distinguishing an employment relationship from other commercial relationships Zimbabwean
courts have relied on the dominant impression test. However, other tests have been developed
prior to the courts settling for the dominant impression test. These tests were developed as courts
sought for a single definitive touchstone to identify the employment relationship (Benjamin,
2004).

(a) The Control Test

The first test is the control test. It is premised on the principle that the employer’s right of control
with regard to the work which has to be done by an employee, when it is to be done and the
manner in which it has to be done, is the sole determining factor of the existence of an
employment relationship (Colonial Mutual Life Assurance Society Ltd v MacDonald 1931 AD
412). An independent contractor is controlled only as to what must be done and not how it is to
be done. The drawback of this test was that it was based on control as the sole determining factor
for the existence of an employment relationship and nothing else. It failed to cope with the
emergence of semi and highly skilled professionals who had latitude to determine the work they
do and how they had to do it. In addition, it was limited in scope since it was developed within
the context of vicarious liability under the law of delict and not labour law (Le Roux, 2010). The
control test is too wide and it is difficult to measure the degree of control sufficient to qualify one
as an employee or not.

(b) The Organisation Test

The second test is the organisation or integration test which was developed to address the
inadequacies of the control test. It identifies an employee by questioning if that individual is part
of the employer’s organisation. Lord Denning in the English case of Stevenson Jordan and
Harrison Ltd v McDonald and Evans [1952] 1 TLR 101 described the test as follows:
One feature which seems to run through the instances is that under a contract of service, a man is
employed as part of the business, and his work is done as an integral part of the business, whereas
under a contract for services, his work, although done for the business is not integrated into it but
is only accessory to it.
See also R v AMCA 1954 (4) SA 208 (A). The integration test was rejected in S v AMCA
Services 1962 (4) SA 537 (A) on the basis that it begged more questions than it answered and
failed to shed any light on the legal nature of the integration. It was difficult to gauge one’s
degree of integration. It was nebulous, vague and of no useful assistance. (Smit v Workmen’s
Compensation Commissioner 1979 (1) SA 51 (A).

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 (c) The Economic Realities Test
It was followed by the economic realities test which was developed in the English case of
Montreal v Montreal Locomotive Works [1947] 1 DLR 161. The test asks whether the worker is
in business on his own account or as an entrepreneur, or works for another person who takes the
ultimate risk of loss or profit (Deakin & Morris, 1995, p.152). The test raises the following
questions. Does the person provide his own equipment? Does he hire his own assistants? Who
takes financial risk? Is the person economically dependent on the employer? The problem with
the test is that it may suggest that a professional is always an employee as long as he does not
have an identifiable business of his own (Madhuku, 2015, p.27).

(d) The Dominant Impression Test

Zimbabwean courts have since endorsed the dominant impression test. (See Southampton
Assurance Company of Zimbabwe Ltd v Mutuma 1990 (1) ZLR 12(H), Chiworese v Rixi Taxi
Services Co-op Society HH 13/93, Masango v Farmers Commodity Exchange and Related Cases
2013 (2) ZLR 183 (H), Masango and Others v Kenneth & Another SC 41/15, Banda v
Gamegone (Pvt) Ltd & Another 1990 (1) ZLR 12(H). This test requires the court to ask whether
the nature of the relationship between the parties viewed as a whole, resembles a relationship
between an employer and an employee rather than that between an independent contractor and a
hirer of services. The test is codified in part (b) of the statutory definition of employee in section
2 of the Labour Act.

The factors considered by the courts are not exhaustive and include the following: right of
employer to supervise and control the worker, the extent to which the worker depends on the
employer for performance of work, whether the employee is allowed to work for other persons,
whether the employee can perform work through others, whether the employee is remunerated
by way of a salary or commission, whether the worker provides his or her tools of trade and
whether the employee is integrated into the organisation. These factors are also endorsed in the
ILO Employment Relations Recommendation 198 of 2006 which is a standard that provides
member States with guidance on how to establish the existence of the employment relationship.

When these factors are taken into account, a court will determine whether the dominant
impression created by the indicia is that of an employment relationship. In applying the test, the
assessment of whether a person is an employee or independent contractor is not a mechanical
exercise of running through a check list. It is necessary to stand back and assess the whole
picture which emerges from the accumulation of details (Slade, 1995, p.92). In Southampton
Assurance Company of Zimbabwe Ltd Mutuma & Another supra, the Respondent signed a
contract to work for Applicant as an insurance agent. He did not receive a wage but a
commission. His other conditions of service included the following: working hours were left to
his discretion, he was not entitled to any form of leave and he could work through others. When
his contract was terminated, Respondent raised an unlawful termination complaint. The
dominant impression test was invoked and the court held that Respondent was not an employee
58
but an independent contractor. This negated the statutory labour rights in the Labour Relations
Act.

Although the dominant impression test or multiple test is the preferred test, it has also been
criticised on a number of grounds. For instance, Mureinik (1990) argues that ‘to say that an
employment contract is a contract which looks like one of employment sheds no light
whatsoever on the legal nature of the relationship. Benjamin (2004) lampoons the test on the
basis that it provides no guidelines on the weight attached to the individual factors. It is difficult
to gauge the importance of each factor. In light of these shortcomings, South African courts have
since adopted a threefold test known as the reality test. With this test the court considers three
primary criteria: an employer’s right to supervise and control an employee, whether the
employee is integrated in the employer’s organisation and the extent to which the employee is
economically dependent on the employer. See SITA v CCMA (2008) 7 BLLR 611 (LAC); Denel
(Pty) Ltd v Gerber (2005) 26 ILJ 1256 (LAC); NEHAWU v Ramodise (2010) 31 ILJ (LC).
Courts are concerned with the substance of the work relationship and not its form or paper
description. Of interest is the true nature or reality of the relationship.

4.8.2 Illegal Employees

Illegal workers are not employees for the purposes of labour legislation and therefore cannot
receive any protection under the Act. This includes employees who are engaged in illegal work
such as prostitution and persons prohibited from engaging in certain work as a result of their
contractual capacity such as illegal immigrants and minors. However, it is also important to note
that illegal workers in South Africa have received protection under the broad right to fair labour
practices in section 23 of the South African Constitution. See Discovery Health v CCMA (2008)
7 BLLR 633 (LC); Kylie v CCMA (2010) 7 BLLR 705 (LAC); Ndikumdavyi v Vlakenberg
Hospital (2012) 33 ILJ 2648 (LC). It has been accepted that the South African Constitution
protects everyone’s rights, including workers’ rights. This protection extends to illegal workers
and foreign workers. These employees are open to exploitation by employers and are often
excluded from access to benefits such as unemployment insurance and workmen’s compensation
and therefore need protection. In terms of the principles of ubuntu and humanity, vulnerable
persons should be protected. The phenomenon of migrating workers is increasing worldwide,
especially in the member states of the Southern African Development Community (SADC).
South Africa is one of the major receiving countries of migrants in Southern Africa. Migrant
workers are vulnerable workers because they are often without documentation and therefore
susceptible to exploitation. In this regard South Africa has since enacted the Employment
Services Act 4 of 2014 (ESA). The ESA defines the term “foreign national” and regulates the
employment of foreigners in South Africa. The Act sets out the conditions that have to be
complied with before a foreign national may be employed in South Africa. The ESA also
regulates private employment agencies and public employment services.

Whether or not Zimbabwean courts will adopt a similar approach remains to be seen. However,
59
it must be noted that section 65(1) of the Constitution of Zimbabwe guarantees every person
including illegal employees the right to fair labour practices and standards. Any victim of an
unfair labour practice irregardless of his or her status would be entitled to relief in terms of the
Constitution. In any event section 85(2) of the Constitution provides that the fact that a person
has contravened a law does not bar that individual from approaching a court for relief. This
indicates the legislature’s intention to extend protections to illegal employees (Tsabora &
Kasuso, 2017). In addition, the Labour Act has in certain instances extended protections to
persons who lack contractual capacity. For instance, section 11 of the Act which deals with
employment of young persons provides that a contract of employment with a minor is void and
unenforceable but the minor may enforce any rights that have accrued to him or her under the
contract. It is therefore good law, consistent with the Constitution and best practices if labour law
protections are extended to illegal employees.

Activity 4.3
1. David is employed by Brian to build a wall that is 300 metres long. Brian agrees to pay
David $15 000 upon completion of the work. David will build the wall according to his
schedule as he has other work to do for Chris and Doris.

Discuss whether David is Brian’s employee or an independent contractor. In your answer

you must discuss the tests used by the courts.

2. Tembo is a builder and works for Forit Construction. Forit has realised that education is
crucial to the development of Zimbabwe, and is establishing various educational
enterprises at primary and secondary level. Tembo lives on premises of the first
educational venture, is paid monthly, has a pension and medical aid and is entitled to
leave days. Tembo is consulted about building plans, and even designs some of the
buildings himself. He is usually consulted about the hiring of builders’ assistants, some of
whom are with one of the managers of Forit to discuss the current building projects,
financing of building materials, the payment of the builders’ assistants, labour-related
problems and, when necessary, future plans. Discuss whether Tembo is an independent
contractor or employee? Support your answer with case law.

3. African Distillers appointed Wellington as an agent to sell its imported products. It

trained Wellington, but was not entitled to instruct him about the manner in which he sold
the products, or to whom he sold the products. Wellington could engage other people to
assist him in marketing African Distillers’ products and, if he wished, he could sell other
products as well. Wellington could go on vacation without the consent of African
Distillers, and had no obligation to submit medical certificates if he was ill.

Do you think Wellington was an employee or independent contractor?

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4.8.3 Employer

Section 2 of the Labour Act defines an employer in the following terms:

Any person whatsoever who employs or provides work for another person and remunerates or
expressly or tacitly undertakes to remunerate him and includes-
(a) the manager, agent or representative of such person who is in charge or control of the work upon
which such other person is employed; and
(b) the judicial manager of such person appointed in terms of the Companies Act (Chapter 24:03),
(c) the liquidator or trustee of the insolvent estate of such person, if authorised to carry on the
business of such person by –
(i) the creditors, or
(ii) in the absence of any instructions given by the creditors, the Master of the High
Court.
(d) the executor of the deceased estate of such person, if authorised to carry on the business of such
person by the Master of the High Court,
(e) the curator of such person who is a patient as defined in the Mental Health Act (Chapter 15:12)
(No. 15 of 1996), if authorised to carry on the business of such person in terms of section 88 of
the Act.

The definition of an employer is self-explanatory. By implication an employer is a person who

receives services from an employee or is assisted in the conduct of his or her business by another
and pays that person remuneration in exchange for the services (Du Toit et al, 2006, p.80). In
most cases it is not difficult to identify an employer. However, in modern business world,
employers are increasingly hiding behind multiple entity schemes or atypical forms of
employment in order to circumvent obligations imposed by labour legislation. One such common
development is that of triangular employment relationships where a labour broker supplies
workers to a client. In this case identifying the employer may be difficult since they are three
parties to the relationship, namely, the labour broker, the employee and the client where work is
performed. In South Africa triangular employment relationships (TES) are regulated in sections
198 and 198A of the Labour Relations Act, 1995, in terms of which the labour broker is deemed
the employer of the person whose services have so been acquired. These legal provisions were
developed to regulate and protect TES employees against abuses and exploitation by brokers and
client companies. Of importance, too, is that section 198A of the LRA is meant to ensure that
TES (deemed) employees, firstly, are not treated differently from employees employed directly
by the client (one can think of the principle of “equal work, equal pay”) and, secondly, are
integrated into the enterprise as employees of the client. In Zimbabwe, there is no such
regulation. In the absence of such regulation courts rely on the dominant impression test to
unmask the true identity of the employer. In limited circumstances, courts have also pierced the
corporate veil and identified the employer (Barnsley v Harambe Holdings (Pvt) Ltd & Another
HH 84/12). Courts will not allow a situation where legal entities are juggled around like puppets
to do the bidding for the puppet master. However, this approach is doubtful in labour law

61
context.

Activity 4.4
1.Define the term employer.
2. Try to determine who the actual employer is in the following case:

Catering staff, employed by Mambos Caterers, work full time for ZOU University in the student
canteen. The same staff, work at the canteen everyday. Edith is one of the chefs. Fourie, the
supervisor, terminates Edith’s contract after she was late for work on two occasions. Edith
declares a dispute with ZOU University, who claims that Edith is not an employee of the
University, and therefore she has not been dismissed by the University. Mambos Caterers claims
that, since Edith works at the University everyday, she is no longer their responsibility. This is
despite the fact that Mambos Caterers still maintains the payroll and leave schedule for the
catering staff.

4.9 Types of Contracts of Employment

Generally, contracts of employment are categorised by reference to their duration, direction of

work and work cycle (Gwisai, 2006, p.58). Each category may have its own legal implications
especially on termination.

4.9.1 Contracts of indefinite duration

Any contract that does not specify its duration or date of termination is deemed in section 12(3)
of the Labour Act to be an indefinite contract or contract without limit of time. Others refer to
such contracts as permanent contracts since an employee is in continuous employment for an
indefinite period. Contracts without limit of time can either be full time or part time (Gwisai,
2006, p.58). Full time employees are those that work for the whole cycle such as the whole
working day, week or month. Part time workers usually work for less than the normal working
hours. They only work for a portion of a work cycle. For instance, mornings only, weekends only
or three days a week.

4.9.2 Fixed term contracts

Fixed term contracts are contracts of employment for a specified period of time or for the
performance of a specific service. Since the contract specifies its duration, it automatically
terminates on expiration of the agreed period or performance of the agreed task. In Zimbabwean
law, there is no limit as to the number of times a fixed term contract may be renewed. Therefore,
an employee whose fixed term contract of employment is continuously renewed does not
metamorphosis into a permanent employee. (see Simbi (Steelmarkers) (Pvt) Ltd v Shamu &

62
Others SC 71/15 and Magodora & Others v Care International Zimbabwe SC 24/14. However,
section 12(3a) of the Labour Act as amended by the Labour (Amendment) Act 5 of 2015 now
provides for deeming of fixed term contracts to be contracts without limit of time upon expiry of
the fixed period. This deeming provision is only applicable where an Employment Council or the
Minister of Labour has fixed a limit as to the number of times a fixed term contract may be
renewed. In addition, non-renewal of a fixed term contract may be regarded as an unfair
dismissal in terms of section 12B (3) (b) of the Labour Act. This issue is dealt with in detail
under unfair dismissal. A fixed term contract can be terminated during its currency or by
effluxion of time (Chikanga & Another v Peterhouse 1999 (2) ZLR 329 (S) and Lever Brothers
(Pvt) Ltd v Maguchu & Others SC23/97). Finally, a fixed term contract can either be full time or
part time or temporary.

4.9.3 Casual contracts

Casual employment is work that is occasional, irregular, or for a short term (Madhuku, 2015,
p.43). It is short time work which lacks permanence. Section 2 of the Labour Act defines casual
work as ‘work for which an employee is engaged by an employer for not more than six weeks in
four consecutive months.’ Madhuku (2015) describes casual work as follows: ‘The focus is on
the value of work, and the reference to time is merely to emphasize that casual work must be
work not requiring lots of time to do it. If the work requires lots of time, it ceases to be casual
work.’ The work must be of an occasional and irregular nature. In Simbi (Steelmakers) (Pvt) Ltd
v Shamu & Others SC 71/15, the Supreme Court had an opportunity to distinguish a casual
contract from a fixed term contract. The first distinction is that, a fixed term contract expires
automatically upon effluxion of its stipulated period, whereas the duration of a contract of casual
work will depend upon the nature of the work involved and circumstances under which it is to be
carried out. Secondly, in terms of section 12(4) of the Labour Act, the periods of notice required
to terminate contracts of employment vary according to the duration of the given contract, being
one day in the case of casual work. Thirdly, section 12(5) of the Labour Act stipulates different
periods of probation and different notice periods during probation. In addition, a casual worker is
not entitled to the minimum conditions of employment laid down in labour legislation and for
this reason casual workers usually receive remuneration on higher rates so as to compensate for
the loss of prescribed benefits. This position is doubtful given that the definition of employee in
the Labour Act covers all employees including casual employees. Lastly, section 12(3) of the
Labour Act provides that ‘a casual worker shall be deemed to have become an employee on a
contract of employment without limit of time on the day that his period of engagement with a
particular employer exceeds a total of six weeks in any four consecutive months. (See also
section 12(3a) of the Labour (Amendment) Act 5 of 2015). It is the indeterminate nature of its
duration that entails the deemed conversion of a casual contract into one of indefinite
employment. This does not apply to a fixed term contract employee even if it is for a short
duration. What makes a contract casual is the occasional and irregular nature of the work

63
involved (Makings, 2006).

4.9.4 Seasonal contracts

Seasonal work is defined in section 2 of the Labour Act as ‘work that is owing to the nature of
the industry, is performed only in certain times of the year.’ The work is available in defined
periods of the year. For example, harvesting of tobacco or work available during Christmas
period. A seasonal contract automatically lapses at the end of the agreed season. However, by
virtue of section 12(3a) of the Labour Act as amended it can also be deemed to be a contract
without limitation of time.

4.9.5 Probation contracts

A probation contract entails a trial period in terms of which an employee’s ability is tested and
assessed so as to determine his or her suitability for employment on a substantive basis. In
essence, a probation contract is the equivalent of a putative contract or a contract within a
contract. It includes the probation contract itself and the second contract of regular employment,
which is conditional upon successful completion of the probation contract. It is akin to courtship
which precedes marriage. The purpose of probation is twofold. On the one hand, its objective is
not only to assess whether the employee has the technical skill and ability to do the work, but it
also ascertains whether the employee is a suitable person in a much wider sense. This includes
assessing the employee’s compatibility with follow employees, clients, management, including
his or her demeanour, diligence, character and personality. On the other hand, it is beneficial to
the new employee. It fulfils an important socialisation function, through which employees are
integrated into the organisation and familiarise with the work situation (Kasuso, 2018).

Probation is discretionary and is provided for in section 12(5) of the Labour Act which provides:
A contract of employment may provide in writing for a single, non-renewable probationary period of not
more than:
(a) one day in the case of casual work or seasonal work or;
(b) three months in any other case;
during which notice of termination of the contract to be given by either party may be one week in the case
of casual work or seasonal work or two weeks in any other case. Once an employee is given a
probation contract, it can only be a single non-renewable period. This means that on expiration
of the probation period the employer has to terminate the contract or employ the employee on a
substantive basis. There is no room for renewal or extension of probation once it matures (See
St. Giles Rehabilitation Centre v Patsanza SC 59/18).

4.9.6 Managerial employees

The Labour Act distinguishes managerial employees from non-managerial employees. Section 2

64
of the Labour Act defines a managerial employee as ‘an employee who by virtue of his contract
of employment or of his seniority in an organisation, may be required or permitted to hire,
transfer, promote, suspend, lay-off, dismiss, reward, discipline or adjudge the grievances of other
employees.’ This distinction is only relevant in matters of membership of workers’ committees.
Managerial employees cannot be appointed or elected to a workers’ committee of non-
managerial employees according to section 23(1) of the Labour Act. See Bankers Association of
Zimbabwe v Banking and Finance Managers Union of Zimbabwe & Another SC 15/19. In
addition, a workers’ committee may only represent the interests of managerial employees if it is
composed solely of managerial employees.

4.10 Content of Contract of Employment

The terms and conditions of a contract of employment define the rights and obligations of the
parties. They can arise expressly or impliedly. Express terms can either be provided for orally or
in writing. Section 12 (2) of the Labour Act requires an employer to inform an employee upon
his or her engagement in writing of the following particulars: name and address of employer;
period of employment, probation period; terms of any employment code; particulars of
remuneration, including its calculation and intervals of payment; benefits receivable in the event
of pregnancy or sickness, hours of work, particulars of any bonus or incentives; particulars of
vacation leave and any other benefits. The contents of a contract of employment cannot override
legislation (Communication and Allied Services Workers Union of Zimbabwe v Tel One 2005 (2)
ZLR 280). Terms and conditions can also be implied by the common law or from the facts.
Others are incorporated by legislation and custom. (Madhuku, 2015, pp.51-52).

4.11 Variation of a Contract of Employment

The foundation of the employment relationship is the contract of employment. Once the parties
to it agree on terms and conditions, such terms and conditions become fixed in the sense that
neither party can unilaterally vary them. Neither can a contract be legally repudiated by either
party. See Agribank v Machingaifa SC 61/07, Stewart & Others v The Vice-Chancellor of the
University of Zimbabwe & Another SC 97/01 and Air Zimbabwe (Pvt) Ltd v Zendera & Others
2002 (1) ZLR 132 (S). However, the principle is not cast in stone. The law recognises that
conditions of employment do not remain static. Contracts of employment respond to changes in
the fortunes of business and operating environment (Chirasasa v Nhamo N.O & Another 2003
(2) ZLR 206). It can therefore be questioned, when can an employer unilaterally vary a contract
of employment? Which particular aspects of the employment relationship can be varied and to
what extent is a unilateral variation permissible?

An employer cannot unilaterally vary terms and conditions which are the subject matter of
agreed terms. For instance, agreed salary and benefits are terms which form the subject of agreed

65
terms and cannot be varied. In other words, they are contractual entitlements. In Agribank v
Machingaifa supra Respondents were employed by Appellant in managerial positions and were
entitled to payment of a mileage allowance of 4000km per month. The employer unilaterally
revoked the mileage allowance on the basis that it was too expensive for the Bank to sustain. It
was held that the Bank could not unilaterally alter clearly defined contractual rights to payment
of an allowance. A similar position was adopted in Air Zimbabwe (Pvt) Ltd v Zendera & Others
supra in which an employer had unilaterally reduced meal allowances for flight attendants.
However, an employer can unilaterally vary work practices. These are not terms and conditions
per se but allowances or benefits given at the discretion of the employer. They are not
contractual entitlements. For example, the practice of paying employees a bonus which is not
provided for in a contract or the hosting of end of year parties. These are work practices and it is
not an unfair labour practice to vary such practices (Van Niekerk, 2012, p. 108).

The terms and conditions of employment which form the subject of agreed terms can be varied
by consent of the employees concerned or their representatives. In the event that the employees
refuse to consent to the variation an employer can use that as a ground to terminate the
employee’s contract and offer the employee a new contract. (Chirasasa & Others v Nhamo NO
& Others 2003 (2) ZLR 206 (S). Alternatively, a contract of employment can be varied by
operation of the law through changes in legislation. Lastly, an employer can proceed with the
unilateral variation and hope that the employee will not challenge it. Silence coupled with tacit
acquiescence can estopp an employee from denying legality of a variation. In these
circumstances the employer can raise the defence of waiver, estoppel or novation. (See Majero v
Danda HH 119/18). Nevertheless, where an employer unilaterally introduces new terms and
conditions, an employee can either reject the new terms and insist on old terms or accept the new
terms and relinquish the old terms (Madhuku, 2015, p.78).

Activity 4.5

1. Pamela is employed by BB Manufacturers to repaint their workshop.

Discuss whether he will qualify as a fixed-term employee or not.
2. Mr Charles applied for a position of Logistics Manager at TGK (Pvt) Ltd. A day after the
interview he receives the following email:

20/02/10
Dear Mr Charles
Congratulations! your application has been successful. We would like to appoint you as
Logistics Manager at TGK (Pvt) Ltd. We can offer you a salary of US$1 200-00 per
month. Please inform us before the 28th of February 2010 whether you accept the offer or
not.
Regards

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 The CEO of TGK (Pvt) Ltd
Mr Charles duly responded to the email the same day and accepted the offer. He also
accepted the offer via sms. When he arrived at his new workplace on 1 March 2010, he is
informed that the employer never received any communication from him. The employer
also contends that, the sms does not amount to a valid acceptance of the offer of
employment. In any event the offer of employment had been withdrawn on the 28 th of
February 2010, as the parties had not signed any contract of work and Mr Charles had not
commenced any work.

Advise Mr Charles on whether or not he is an employee.

3. Critically discuss circumstances where it is permissible for an employer to unilaterally

vary a contract of employment.
4. Are illegal workers protected in Zimbabwe?

4.12 Summary

In this Unit it was noted that the Labour Act applies to all employees and employers except those
whose conditions of employment are otherwise provided for in the Constitution. In other words,
it applies to employees and employers in the private sector, local authorities, parastatals and
State universities. Excluded from application of the Labour Act are civil servants, members of
the disciplined forces and any other employees designated by the President. This unit also
analysed application of the Labour Act when in conflict with other laws. The supremacy of the
Labour Act is affirmed in section 2A (3) of the Labour Act and it takes precedence over any Act
inconsistent with it. The purposive rule of interpretation was identified as the most appropriate
rule in interpreting constitutional labour rights and labour legislation.

In this unit, we also established that the contract of employment is the basis of the employment
relationship. Its essential elements were identified as well as the parties to the employment
relationship. It was noted that the general formalities applicable to any contract under the law of
contract are also applicable for a valid contract of employment to be consummated. Several tests
developed by the courts in identifying the employment relationship were discussed. These
include the following: the control test, organisation test, economic realities test, the dominant
impression test and the reality test. The preferred test in Zimbabwe was identified as the
dominant impression test. Lastly, the unit dealt with categories of employees, content of a
contract of employment and variation of contracts of employment.

67
References

Benjamin, P. (2004). An accident of history: Who is (and who should be) an employee under
South Africa labour law, Industrial Law Journal 787.
Brassey, M. (1990). The nature of employment, Industrial Law Journal 889.
Deakin S & Morris S.G. (1995). Labour Law, Oxford: Hart Publishing.
Du Toit, D. (2006). Labour Relations Law: A Comprehensive Guide, Durban: LexisNexis.
Grogan, J. (2011). Workplace Law, Cape Town: Juta & Co.
Gwisai, M. (2006). Labour and employment law in Zimbabwe: Relations of Work under Neo-
Colonial Capitalism, Harare: Zimbabwe Labour Centre.
Kasuso, TG. (2018). The rights of probationary employees under the Zimbabwean Labour Act
(Chapter 28:01), Midlands State University Law Review 1.
Le Roux, R. (2010). The foundation of the contract of employment in South Africa, Industrial
Law Journal, 139.
Madhuku, L. (2015). Labour Law in Zimbabwe, Harare: Weaver Press.
Makings, G. (2006). Employment of casual and contract workers, Harare: Labour Relations
Information Services.

68
Mureinik, E. (1980). The Contract of service: An easy test for hard cases, South Africa Law
Journal 246.
Tsabora, J. & Kasuso, T.G. (2017), Reflections on the consitutionalising of individual labour law
and labour rights in Zimbabwe, Industrial Law Journal, 43.
Slade, E. (1995). Tolley’s Employment Handbook, Oxford: Oxford University Press.
Van Niekerk, A. (2012). Law@work, LexisNexis: Durban.

UNIT 5

The Employment Relationship: Rights and Duties of the Parties

5.1 Introduction

The common law contract of employment is the principal source of rights and duties relevant to
the employment relationship. However, the contract of employment is so shot through by statute
and collective bargaining agreements, that it has become an inextricable complex of rights and
obligations with its source in the common law, custom, legislation and international labour
standards. This unit identifies and discusses the rights and duties of the parties to the
employment relationship.

5.2 Objectives

By the end of this unit, students you be able to:

 list and explain fully the common law duties of employees
 list and analyse the common law and statutory duties of employers
 discuss the concept of unfair labour practices in the Zimbabwean context
 explain the doctrine of vicarious liability and to apply the relevant principles in a
practical situation

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  explain the concept of restraint of trade
 discuss the principles applicable in promotion of employees
 evaluate the common law principles applicable in transfer of employees

5.3 Duties of Employees

These duties owe their origins to the common law. They are also reflected in Codes of Conduct
as acts of misconduct. For instance, section 4 of the Labour (National Employment Code of
Conduct) Regulations, 2006.

5.3.1 Duty to provide service

An employee must place his or her personal services at the disposal of the employer. An
employee need not render services but merely avail himself or herself to render services. The
importance of this duty is reflected in the common law maxim ‘no work no pay.’ The tender of
services is a prerequisite to the employee’s right to claim wages (Muzondo v University of
Zimbabwe 1981 ZLR 33). If an employee arrives at the agreed workplace, at the agreed time and
date, he would have fulfilled this duty and is entitled to remuneration. The employer is not under
any obligation to provide the employee with actual work, unless the employees’ remuneration is
dependent on work done. (Muzondo v University of Zimbabwe 1981 ZLR 333). The employees’
obligation to make service available exists during agreed working hours (Madhuku, 2015, p.55).
Under the common law, the parties are free to agree on the number of working hours. However,
collective bargaining agreements now regulate the maximum hours of work. The Labour Act
does not. Work to be performed by an employee must be as agreed in the contract of
employment. It is not a unilateral variation of a contract of employment for an employee to
perform additional tasks which are closely related to his or her duties. See Maranatha
Ferrochrome v Nyemba SC 28/12; City of Harare v Ewing 1985 (1) ZLR 128).

The common law duty has been modified by statute. In terms of section 4(c) of the Labour
(National Employment Code of Conduct) an employee is in breach of the duty to provide service
if he or she is absent from work for a period of five or more working days in a year without leave
or reasonable cause. Failure to render services takes various forms including absenteeism and
lateness or lack of punctuality. Absenteeism without just cause is a ground for termination of the
employment contract. See Swaibo v National Railways of Zimbabwe SC 54/95; Marvo
Stationery MFC (Pvt) Ltd v Jokwani & Others SC 47/05. The following are circumstances where
absence has been accepted by the courts as justifiable and not amounting to breach of contract
(Gwisai, 2006):
(a) Wrong legal advice from a legal practitioner (See Mhowa v Beverly Building Society
1998 (1) ZLR 546 (S).
(b) Detention by the police (Mbano v Securitas (Pvt) Ltd LC/H/206/07.
70
 (c) Absence due to participation in a lawful strike. (Speciss College v Chiriseri & Others SC
2/13).
(d) Absence due to illness provided that the illness is not protracted or the absence has
become unreasonably long.
(e) Where there is an immediate occupation hazard threatening the health and safety of
employees (See section 104 (2) of the Labour Act).
(f) Failure to provide service as a result of a supervening impossibility or casus fortuitous.

Activity 5.1
1. Advise the following workers who were dismissed for the following acts of misconduct:
(i) Toga, an employee of Vharazipi Ltd who was absent for ten days because he had
gone to his rural home and could not find transport because the bridges were flooded.
(ii) Spiwe, a cinema projectionist at Hell Movies, who was five hours late for work
because she was drunk, resulting in the movie being cancelled.
(iii) Employees at Hwedza Rural District Council who stopped coming to work after
failure by the employer to pay their wages for six months.

5.3.2 Duty of competency and reasonable efficiency

An employee impliedly undertakes to be reasonably competent or to exercise skill and diligence

in the performance of his or her work. The duty entails two elements, namely:
(a) That one is suited for the job and possess the necessary qualifications and experience;
and,
(b) That once on the job, the employee will exercise reasonable skill, diligence and care.
See ZIMASCO v Mafuka SC 246/92; PTC v Mhaka HH 127/03; Quest Motor Corporation (Pvt)
Ltd v Nyamakura 2000 (2) ZLR 84 (H), Toyota Zimbabwe v Posi 2008 (1) ZLR 173 (S);
Malimanji v CABS 2007 (2) ZLR 77 (S); Tregers Plastic (Pvt) Ltd v Sibanda & Another SC
22/12.

The standard of competence an employer is entitled to expect from an employee is subjective to

each individual employee. It is dependent on the employee’s training, experience, representations
made by the employee, the capacity in which the employee is engaged and the seniority accorded
him. For example, less is to be expected from a newly appointed graduate serving probation than
from an experienced one who has been in employment for ten years. This duty is codified in
section 4 (f), (g) and (h) of the National Code. The National Code differentiates lack of skill
which the employee expressly or impliedly held himself to possess and gross incompetency or
inefficiency in the performance of work and negligence. For some of the differences see

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Standard Bank v Chipininga SC 104/02; Mimosa Mining Company v Samukange SC 23/12;
Browne v Tanganda Tea Company SC 22/16; Munyaka v Bak Logistics (Pvt) Ltd SC 39/17.
Breach of the duty of competence is viewed by the courts as conduct going to the root of the
employment relationship which warrants dismissal. See Circle Cement v Nyawasha S60/03,
Zimbabwe Platinum Mines (Pvt) Ltd v Godide SC 2/16; Toyota Zimbabwe v Posi 2008 (1) ZLR
173 (S).

Activity 5.2
1. Discuss the difference, if any, between neglect of duties, incompetency and
inefficiency.
2. Advise the following employers on whether they can dismiss their employees:

(i) Sungura, a domestic worker who negligently broke a water glass.

(ii) Zvinonetsa, a former Human Resources officer, who was hurriedly promoted to
the position of Human Resources Manager, to replace the former manager who
had resigned without notice. During the second week of his appointment
Zvinonetsa, makes a mistake in conducting a job evaluation exercise. This
resulted in a third of the employees being erroneously upgraded resulting in the
company wage bill rising by 30%.

5.3.3 Duty of subordination

The employment relationship is founded on mutual respect and is inherently one of

subordination. The duty of obedience is the hallmark of the employment relationship. An
employer is entitled to insist on a harmonious working relationship. This is important, because
the employment relationship is a personal relationship and cannot continue if there is a lack of
cordiality between the parties. The duty is also extended to cover co-employees and third parties
such as the employers’ clients and business associates. Gwisai (2006) identifies two essential
elements of this duty, namely that:
(a) An employee must obey lawful instructions or commands of the employer. In Matereke v
CT Bowing and Associates (Pvt) Ltd 1987 (1) ZLR 206 (S), disobedience was defined as
the deliberate refusal to obey an instruction or intentional defiance of an order given by
the employer. Knowledge and deliberateness must be present. Obedience is necessitated
by the fact that every employer as a right to direct the operations of his employee through
the issuance of instructions. Accordingly, an employee is obliged to obey his employer’s
lawful and reasonable instructions competently and promptly. An employee’s refusal to
obey unlawful or unreasonable instructions does not constitute breach of contract. See

72
 Muchakata v Netherburn Mine SC 31/96; Kuvarega v Norton Bakery SC 80/95. The
following are examples of unlawful or unreasonable instructions:
(i) An instruction contrary to legislation or law. (See S v Collet 1978 (1) RLR
205.
(ii) An instruction falling outside the employee’s contract of employment
Machakata v Netherburn Mine 1996 (1) ZLR 153 (S), ZCTU v Makonese
SC 141/04; Philemon v OK Bazaars SC 22/95 and ZUPCO v Mabande &
Another 1998 (2) ZLR (S).
(iii) If the instruction exposes the employee to immediate harm or threatens the
existence of a workers’ committee or registered trade union.
(iv) If the order is contrary to public policy, degrading to the employee or
grossly unreasonable. (Gauntlett Security Services (Pvt) Ltd v Leonard
1997 (1) ZLR 583).
The existence of a moral excuse for the disobedience to a lawful instruction is irrelevant and will
not make disobedience any less wilful or the order any less lawful. See Zimbabwe Alloy Ltd v
Muchohonyi 2006 (1) ZLR 390 (S).

(b) The second element relates to respect and courtesy. These are essential to the
employment relationship as they help foster good interpersonal relationships between the
employer and employee. Respect in the employment context does not mean deference
and obeisance. An employee is not expected to grovel. It has been submitted that an
employee’s failure to greet his employer is not an instance of disrespect. Acts of
disrespect include use of abusive language which amounts to racial, sexual or other forms
of harassment. Whether or not language is abusive and the degree to which it is abusive
needs to be determined by reference to the circumstances of each case. There is a
difference between jocular or rude language and abusive language. Since an employment
relationship is founded on mutual respect and subordination, breach of this duty has been
held to be serious and going to the root of the employment relationship, thus warranting
dismissal. See Masukusa v National Foods 1994 (1) ZLR 66 (S); Medical Investments
(Pvt) Ltd t/a Avenues Clinic v Phiri SC 266/96; DHL International (Pvt) Ltd v Tinofireyi
SC80/14. The common law duty of subordination is also codified in section 4 (b) of the
National Code which makes it an act of misconduct for an employee to disobey lawful
and reasonable instructions of the employer.

Activity 5.3
1. What is the basis of the emergence and development of the duty of subordination?
2. Advise the following employee who was dismissed:
(i) Tatenda, a fifty-year-old messenger with TT Ltd was off duty on a Saturday
night. He bumped into his general manager at Connect Night Club. During the

73
 course of the night, the manager, called Tatenda over to his table and handed
him $50.00 saying, ‘young man, go and buy me two beers, urgently.’ Tatenda
refused and walked out of the night club.

5.3.4 Duty of good faith

The employment relationship is based on trust and confidence (Council for Scientific and
Industrial Research v Fijen (1996) 17 ILJ 18(A)). Therefore, an employee has a duty to further
the employer’s business interest and to serve the employer honestly and faithfully. This duty is
multifaceted and entails the following:
(i) An employee is prohibited from working for a rival employer even during his or her
spare time if that will seriously damage the principal employer’s business (Madhuku,
2015:57). However, in the absence of an agreement to the contrary, an employee can
hold two compatible jobs as long as the other job is done outside the working hours of
the first. See Mine Workers Union v Broderick 1948 (4) SA 959 (A). It may also arise
in circumstances where an employee pursues a personal relationship with a person
who has a direct interest in a business entity that competes with the employer.
(ii) An employee may not use his or her employment to make secret profits. He or she
has an obligation to account for all money and property received during the course of
employment. The employer can reclaim the secret profits. See ZIMASCO v Zakeyo
2007 (1) ZLR 132 (S).
(iii) The employee should not disclose confidential information obtained in the course of
employment. This duty may even remain after termination of the employment
relationship through restraint of trade clauses. See Mangwana v Mparadzi 1989 (1)
ZLR 79 (S); Chidembo v Bindura Nickel Corporation SC35/15.
The duty also entails that an employee must not be involved in the following acts: wilful
destruction of the employer’s property (Muzuva v United Bottlers 1994 (1) ZLR (S); committing
theft, fraud or any acts of dishonesty (Innscor Africa Ltd v Chimoto SC 6/12, ZINWA v
Mwoyounotsva SC 28/15); not to be involved in acts in conflict with the employer’s interest;
assaults, physical violence and unruly behaviour (Makwiro Platinum Mines v Paradzayi SC
47/15); not to be convicted of a criminal offence that has a material bearing on the contract of
employment; not to be involved in sexual harassment or intimidation (Mwenje v Lonrho
Zimbabwe Ltd 1999 (2) ZLR 429 (S)) and not to be intoxicated so as to be incapable of providing
service. The duty of good faith is codified in section 4 (a), (c), (d) of the National Code.

Related to this duty is off duty conduct of employees. Generally, employers are concerned with
conduct of employees at the workplace only. However, when an employee’s conduct outside the
workplace impacts on the employer’s business the employer is entitled to hold the employee
accountable. Van Niekerk (2012, p.269) argues that conduct outside the workplace impacts on

74
the employer’s business if it prejudices a legitimate business interest or undermines the
relationship of trust and confidence. Therefore, for off duty conduct to be of concern to an
employer it must be serious conduct which goes to the root of the employment relationship. In
addition, there must be a sufficiently close link between the misconduct and the employer’s
business. See Tanganda Tea Company v Mvududu SC 1/07 and Makwiro Platinum Mines v
Paradzayi SC 47/05. In National Union of Mine Workers and Others v East Rand Gold and
Uranium Co. Ltd (1986) 7 ILJ 739 (IC) an employee assaulted a fellow employee on a company
bus, outside the company premises and after working hours. The court held that the company’s
disciplinary arm was sufficiently long to reach into the bus. As for criminal conduct outside the
workplace, the general rule remains applicable. There should be some relevance of the offence to
the employment relationship. In Khutswa v SSAB Hardox (2006) 27 ILJ 1067 (BCA) an
employee was dismissed for killing his wife and her boyfriend whilst he was on leave. The court
made a finding to the effect that the offence committed was detrimental to the relationship
between the employee and employer and co-employees.

Activity 5.4
1. Advise the following workers who were dismissed for misconduct:

(i) Malvern, a welder at Simbi Steel, who runs his own small welding shop at
home, and supplied some bolts to his employer, without disclosing that he had
made them.
(ii) General Motors, who discover that their Finance Director, has been convicted
of theft and fraud and sentenced to perform community service, for theft from
a Burial Society where she is Treasurer.
(iii) Tichatonga and Shupikai are Chairman and Secretary of a workers’
committee. During a heated wage negotiation meeting, they shouted at
workers supporting the employer’s offer as follows: ‘vatengesi muchazviona,
tiri kuzvidira jecha’ (sell outs be warned, we shall make it not work).

5.4 Duties of Employers

Employers’ duties can be divided into common law and statutory duties. Failure by the employer
to comply with these duties constitutes breach of contract and entitles the employee to seek
remedies. The duties of the employer are discussed in detail below.

5.4.1 Common law duties

(a) To receive the employee into service

This duty is the corollary of the employee’s duty to enter into service. In order to be entitled to
his wages, the employee must tender his services to the employer and the employer must allow

75
the employee to work for him or receive him into service (Gumbo et al, 2003). However, there is
no obligation on the employer to provide work unless the employee’s remuneration depends on
performance of actual work. (Muzondo v University of Zimbabwe 1981 ZLR 333, Stewart
Wrightson (Pvt) Ltd v Thorpe 1974 (40 SA 67 (D). This is true with work in terms of which
remuneration is based on commission, or where the provision of work is necessary to maintain or
develop the employee’s skills or reputation (Madhuku, 2015, p.63). The obligation to provide
work also exists where failure to provide work would lead to degrading the status of the
employee.

(b) To pay the remuneration agreed upon

This is the principal obligation of the employer and only arises when the employee has either
done actual work or in cases where no work has been provided, but the employee has placed his
services at the disposal of the employer. This is premised on the common law principle of ‘no
work no pay.’ The amount of remuneration and interval will depend on the agreement between
the parties. A failure by the employer to pay the agreed remuneration entitles the employee to
refuse to render services. The employee can also treat this as repudiation by the employer
entitling him to cancel the contract and claim damages. (See Gladstone v Thomton’s Garage
1929 TPD 116, Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988 (1) ZLR 143 (SC) and Martin v De
Kock 1948 (Z) SA 719 (A). Under the common law remuneration may be money or money
worth (Madhuku, 2015, p.64; Standard Chartered Bank Zimbabwe Ltd v Matsika 1997 (2) ZLR
369 (S).

(c) To ensure safe working conditions

The common law recognises an employer’s duty to take reasonable care for the safety and health
of its employees. The duty owes its origins to the common law duty of care under our law of
delict. As owner of a business, an employer owes employees a duty to take reasonable care of
their safety (Mpande v Forbes and Thompson (Bulawayo) (Pvt) Ltd & Another 1980 ZLR 802).
However, the duty can arise contractually, if an employer expressly assures it in a contract of
employment or tacitly assures it. The duty to ensure reasonable care for the safety of workers’
entail, the provision by the employer of the following: safe premises, safe machinery and tools
and a safe system of work. Nevertheless, the duty is not absolute. In Barker v Union Government
1930 TPD 120 it was held that ‘the employer is not bound to furnish the safest machinery, nor to
provide the best possible means for its operation, in order to relieve him from responsibility.’

An employer who fails to meet the obligations imposed by this duty is in breach of contract and
liable to damages for injury, death or ill health occasioned by the breach (See Van Deventer v
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Workmen’s Compensation Commissioner 1962 (4) SA 28CT). In the event of breach of the duty
to provide safe working conditions, employees are entitled to withdraw their labour until the
dangerous working conditions have been addressed. The withdrawal of labour is not a breach of
contract (Grogan, 2011, p.57). The common law duty is restricted by imposing a light duty of
liability on the employer and use of vague defences available to the employer (Gwisai, 2006,
p.77). For instances, contributory negligence and the volenti fit non injuria doctrine can be
invoked to reduce or extinguish claims of employees. See Mpande v Forbes and Thompson
(Bulawayo) (Pvt) Ltd & Another 1980 ZLR 302; Kwaramba v Bain Industries (Pvt) Ltd SC
39/01; Sibanda v Independence Gold Mining Zimbabwe (Pvt) Ltd Ltd & Another 2003 (2) ZLR
155 (H).

(d) Duty to act in good faith and respect employees’ dignity

The employment relationship is a personal relationship. Therefore, the duty of good faith is
implied in the contract of employment. It is sometimes referred to as the duty of fair dealing. An
employer has an obligation to deal with employees honestly, with respect and fairly, so as not to
destroy the rights of employees provided for in a contract of employment (Van Niekerk, 2012). It
is a duty on the employer to honour its contractual obligations.

Activity 5.5
1. List four common law duties of employers.
2. Dalia is appointed for one month to make sure that all the marks in the examination papers
were correctly captured. Dalia will be paid at the end of the month. However, after two
weeks on the job, Dalia has not received a single examination paper to check. Is Dalia
entitled to be given examination papers to check? Would your answer be different if Dalia
was paid for each examination checked?
3. Anna is employed as an apprentice at Croco Motors. The firm has employed too many
apprentices and, as a result, Anna often plays computer games to pass the time. Is Anna
entitled to complain to management about the lack of work?

5.4.2 Statutory duties

All the common law duties of employers discussed above have since been codified by the
Labour Act which grants employees numerous rights. Employers accordingly have a statutory
duty to observe these rights. These can also be referred to as minimum terms and conditions of
employment established by the Labour Act. They are discussed below.

(a) Duty to respect employees’ entitlement to membership of trade unions and workers’
committees.

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This duty is derived from ILO Conventions and is entrenched in section 65(2) and (5) of the
Constitution. It is given effect to in sections 4 (1) (a) – (d), 50 and 52 of the Labour Act.
Employees have a right to participate in the formation and become members of trade unions and
workers’ committees and to participate in lawful activities of such unions and workers’
committees. Gwisai divides the duty into three parts namely:
(i) the right to form and become members of trade unions and workers’ committees.
(ii) the right to participate in the lawful activities of the workers’ committees and trade
unions; and,
(iii) workers right to democracy at the workplace, including the right of access of trade
unions to workers (Section 7 of Labour Act).
Any provision in a contract of employment requiring an employee to give up membership of a
trade union or workers committee in return for an offer of employment (yellow dog clause) is
null and void (section 4(3) of Labour Act). For the importance of this duty see ZCTU v Officer
Commanding Police, Kwekwe & Others 2010 (2) ZLR 277 (H) and ZCTU v OC Harare Central
District HH 297/13.

(b) Duty to refrain from forced labour

The duty is inspired by ILO Forced Labour Convention 29 of 1930 and the Abolition of Forced
Labour Convention 105 of 1957. It is constitutionally recognised in sections 54, 55 and 65(1) of
the Constitution. It is given effect to in section 4A of the Labour Act as amended. No person
shall be required to perform forced labour. Forced labour does not include labour performed in
circumstances provided for in section 4A (2) (a) – (e). This duty has implications on overtime.
Can an employee be compelled to work overtime? See Philemon v OK Bazaars SC22/95. Can an
employer refuse to accept a resignation by an employee? (Kasuso, 2017)

(c) Duty to refrain from unlawful discrimination

The duty owes its origins to the following ILO Convention on anti-discrimination:
Discrimination (Employment and Occupation) Convention 111 of 1958; Equal Opportunities and
Equal Treatment for Women and Men Workers Convention; Workers with Family
Responsibilities Convention 156 of 1981, Equal Remuneration Convention and the Home Work
Convention 177 of 1996. Section 56 of the Constitution specifically guarantees the right of every
person not to be unfairly discriminated. It states as follows:
56(1) All persons are equal before the law and have the right to equal protection and benefit of
the law.
(2) Women and men have the right to equal treatment, including the right to equal opportunities
in political, economic, cultural and social spheres.
(3) Every person has the right not to be treated in an unfairly discriminatory manner on such
grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language,
class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status,

78
 age, pregnancy, disability or economic or social status, or whether they were born in or out of
wedlock.
(4) A person is treated in a discriminatory manner for purpose of subsection (3) if-
(a) they are subjected directly or indirectly to a condition, or restriction or disability
to which other people are not subjected, or
(b) other people are accorded directly or indirectly a privilege or advantage which
they are not accorded.
In respect of labour legislation, the anti-discrimination provisions in the Constitution are given
effect to in section 5 of the Labour Act which makes discrimination on any of the prohibited
grounds unlawful. The section applies to employees and prospective employees. Discrimination
is prohibited in relation to all matters of employment such as advertising of employment,
recruitment, job creation, classification or abolition of jobs, determination or allocation of wages,
pensions, accommodation, leave, benefits, choice of persons for jobs, training, promotion,
transfer and retrenchment. The test for discrimination is laid out in section 5(6) of the Labour
Act which provides that;
(6) For the purposes of this section, a person shall be deemed to have been discriminated if his act
or omission causes or is likely to cause persons of a particular race, tribe, place of origin, political
opinion, colour, creed or gender to be treated –
(a) less favourably, or
(b) more favourably
than persons of another race, tribe, place of origin, political opinion, colour, creed or gender,
unless it is shown that such act or omission was not attributable wholly or mainly to the race,
tribe, place of origin, political opinion, colour, creed or gender of the persons concerned.

These provisions are supplemented by the Labour (HIV and AIDS) Regulation, 1998 which
prohibits any discrimination against workers and prospective workers on grounds of real or
perceived HIV/AIDS status (Madhuku, 2015, p.35). Section 5 (7) (a) – (e) of the Labour Act
allows certain defences to a claim of unlawful discrimination and disqualifies others. Remedies
for unlawful discrimination include the following criminalisation of contravention of the duty,
creating an unfair labour practice, cessation, instatement orders and damages. See the following
cases: Hurley v Mustoe (1981) ICR 498, Independent Municipal and Allied Workers Union &
Another v City of Cape Town (2005) 26 ILJ 1404 (LC), Inre Chikweche 1995 (1) ZLR 235 (H),
Hoffman v SA Airways (2000) 2 ILJ 2357 (CC).

(d) Duty to adhere to fundamental fair labour standards

Section 65(1) of the Constitution guarantees every person’s right to fair and safe labour practices
and standards. This right imposes, duty on employers not to infringe the right. The Labour Act
specifies a number of acts that are regarded as unfair labour practices.

(i) Duty to pay prescribed remuneration

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The common law duty to pay remuneration is codified in section 6(1) (a) of the Labour Act
provides as follows:
No employer shall pay any employee a wage which is lower than that to fair labour standard is
specified for such employee by law or agreement.
A similar right is entrenched in section 65(1) of the Constitution which guarantees every
employee the right to a fair and reasonable wage. Section 12A of the Labour Act regulates the
means, payment and deductions on remuneration. Remuneration on termination of employment
is regulated in section 13 of the Labour Act. The term remuneration is broader than wages in that
it includes wages and allowances or benefits. An employer only has an enforceable duty to pay
wages and not benefits unless the benefits have become vested in that they are provided for ex
contractu. See ZIMTA v Chairman, PSC & Others 1996 (1) ZLR 91 (H); Commercial Careers
College (1980) (Pvt) Ltd v Jarvis 1989 (1) ZLR 344; Chisipite School Trust (Pvt) Ltd v Clarke
1999 (2) ZLR 324 (S).

(ii) Duty to adhere to prescribed maximum working hours

Under the common law parties have the contractual freedom to contract on any hours they wish.
This position is modified by section 6 (1) (b) of the Labour which provides that an employer
must not require an employee to work more than the maximum hours permitted by law or by
agreement made under this Act for such employee. This regulation of working time is derived
from ILO Hours of Work Convention. The Labour Act does not provide the maximum hours of
work and most of these aspects are regulated in Collective Bargaining Agreements. However,
they are provisions in the Labour Act which impact on working hours. For instance, in terms of
section 14C of the Labour Act, employees are entitled to not less than 24 continuous hours of
rest each week. Secondly, every employee shall be granted leave of absence during every public
holiday as gazetted under the Public Holidays and Prohibition of Business Act (Chapter 10:21).
Lastly, section 18(8) of the Labour Act provides that mothers with suckling babies are allowed
an aggregate of one hour off a day in the first six months of the baby’s life. It must also be noted
that the term hours of work refer to the time during which employees are at the disposal of the
employer and does not include rest periods. See Lever Brothers v Bimha & Others SC 85/04.

(iii) Duty to comply with prescribed conditions of employment

Under the common law an employer has the duty to receive the employee into service. The duty
is codified in section 65(4) of the Constitution which provides that every employee is entitled to
just, equitable and satisfactory conditions of work. Section 6(1) (c) of the Labour Act then
provides that an employer has a duty to provide such conditions of employment as are specified
by law or as may be specified by agreement made under this Act. Once an employer receives an
employee into service, the employer has an obligation to ensure that the contract of employment
and relevant statutory obligations are respected. Employees must be given just and favourable
working conditions consistent with inherent human dignity.

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 (iv) Duty to provide safe working conditions

This duty is derived from the common law. It is entrenched in section 65(1) of the Constitution.
Section 6(1) (d) of the Labour Act provides that the employer has a fundamental duty not to
require any employee to work under any conditions or situations which are below those
prescribed by law or by conventional practice of the occupation for the protection of such
employees’ health and safety. Other relevant occupation health and safety laws include the
National Social Security Authority (Accident Prevention) (Workers Compensation Scheme)
Notice 68 of 1990, the Factories and Works Act (Chapter 14:08) and the Hazardous Substances
and Articles Act (Chapter 15:05). In section 104 (2) of the Labour Act, employees are permitted
to go on collective job action without heeding the formalities provided for in the Act if there is
an occupational hazard which poses an immediate threat to their health and safety. Section 11(4)
also prohibits harmful child labour and the employment of minors to perform work which is
likely to jeorpadise their health, safety or morals.

(v) Duty of equal protection of the law

The duty is derived from ILO Standards and is entrenched in section 56(1) of the Constitution. It
is also recognised in section 6(1) (e) of the Labour Act which provides that an employer has a
duty not to ‘hinder, obstruct or prevent any employee from, penalise for, seeking access to any
lawful proceedings that may be available to him to enable him to advance or protect his rights or
interests as an employee.

(j) Duty to grant leave

The common law does not recognise the right of an employee to any form of leave. Put
differently, an employer has no obligation to grant an employee leave of absence. The obligation
arises from the Labour Act which provides for different types of leave.

(a) Vacation leave

Vacation leave (annual leave) is provided for in section 14A (2) of the Labour Act and is
calculated at the rate of one twelfth of an employee’s service after completing one-year
employment up to a maximum of 90 days. Therefore, an employee is not entitled to paid
vacation leave in the first year of service. It only accrues after completion of the first year of
service. This is made clear in section 14A (1) which defines the term ‘qualifying service’ in
relation to vacation leave to mean any period of employment following the completion of the
employee’s first year of employment with an employer. Vacation leave may accrue up to a
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maximum of 90 days and anything beyond that is forfeited. In terms of section 14A (4) of the
Labour Act, if an employee falls sick whilst on vacation leave that employee may cancel
vacation leave and take sick leave. Madhuku (2015) argues that an employer cannot force an
employee to take vacation leave. This is the reason why the Act provides forfeiture of paid
vacation leave beyond 90 days. However, the employer may regulate the timing of taking
vacation leave depending with operational and business requirements. That is why vacation leave
is ‘granted’ by the employer. Vacation leave can also arise ex contractu. In Carstens v Ferreira
1954 (4) SA 704 (J) it was held that leave may be granted to run concurrently with the notice of
termination.

(b) Sick leave

Section 14 of the Labour Act deals with sick leave, which is available when the employee is ill
or injured or undergoing medical treatment not arising from a failure to take reasonable
precautions. In terms of section 14(3) of the Labour Act, the grant of sick leave is not automatic.
An employee has an obligation to apply for it and the application must be supported by a
certificate signed by a registered medical practitioner. The request can be oral or in writing and
can be made on behalf of an employee by a third party. Does the term medical practitioner
include a traditional medical practitioner? This is a contentious and subjective issue not
addressed by the Labour Act.

Sick leave is different with vacation leave in that there is no qualifying period. It can be granted
at any time if an employee falls sick or is injured. In any one year an employee is entitled to
ninety days’ sick leave on full pay. If an employee has used the 90 days’ sick leave, the
employee may request additional 90 days’ sick leave on half pay. The period of one year in
section 14(4) means a period of twelve months from the date on which the employee fell sick
(Zulu v ZB Finacial Holdings (Pvt) Ltd SC 48/18). The request must be supported by a signed
certificate of a medical practitioner expressing the opinion that it is probable that the employee
will be able to resume duty after the further period of sick leave (Section 14 (3) of the Act). If the
medical practitioner is of the view that the employee will not be able to recover and resume duty
after the further period of sick leave, there is no entitlement to unpaid sick leave (Madhuku 2015,
p.71). In Zimasco (Pvt) Ltd v Marikano SC 6/14 it was held that the significance of the
maximum statutory period of sick leave is that if, beyond that period, the employee fails to
recover and resume work, the employer has a right to terminate the employment relationship.
The unfettered right to terminate is a codification of the common law principle that an employer
is entitled to terminate employment due to incapacity. There is no requirement under section
14(4) for the employer to notify the employee before termination. See also Zulu v ZB Financial
Holdings (Pvt) Ltd SC 48/18, City of Harare v Zimucha SC 32/95; The Cotton Company of
Zimbabwe v Muchirahondo SC 94/02; Manyisa v Minister of Finance SC 6/02; Mutukwa v
National Dairy Co-op Ltd 1996 (1) ZLR 345 (8).

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 (c) Special leave

This is leave granted in terms of section 14B of the Labour Act and is designed to accommodate
a range of circumstances. An employee is entitled to twelve days of special leave in any calendar
year. Circumstances under which special leave may be granted are provided for in section 14B
(a) – (f) of the Act and include the following: illness because of an infectious disease, employee
subpoenaed to attend court, for trade union purposes, detained by the police, death of a spouse,
parent, child or legal dependent and any other justifiable ground. Weekends and public holidays
falling within special leave are not counted as part of special leave. In addition, special leave is
available to every employee regardless of the employee’s length of service. It does not accrue
nor can it be accumulated since it is circumstance driven (Madhuku 2015, p.73).

(d) Maternity leave

Female employees’ right to maternity leave is protected in section 65(7) of the Constitution
which provides that, ‘women employees have a right to fully paid maternity leave for a period of
at least three months.’ The Labour Act gives effect to the constitutional right in section 18 which
regulates maternity leave. The following are the key provisions of maternity protection under
section 18 of the Labour Act:
 The period of maternity leave on full pay is 98 days. Any request of maternity leave
outside this period may be unpaid maternity leave.
 The obligation to pay is on the employer.
 To be granted paid maternity leave an employee must have served the employer for at
least one year.
 Entitlement to paid maternity leave is limited in that it must be spaced at the rate of once
every 24 months and secondly, only three maternity leaves are permissible with any one
employer. Anything outside the limitations may be unpaid maternity leave.
 Sick leave may not be granted once paid maternity leave has begun or during a period of
unpaid maternity leave unless the sick leave is for medical reasons other than maternity.
 Maternity leave cannot be taken more than 45 days before the expected date of delivery,
and it must be taken at least 21 days before the birth of the child.
 During maternity leave an employee is entitled to all normal benefits, including right to
advancement and pension. Maternity leave does not interrupt continuous employment.
 Once an employee who was on maternity leave returns to work she is entitled to one hour
of nursing time each day during working hours for up to six months. Nursing time is only
available if the female employee is the mother of a suckling child.

Madhuku (2015) argues that the limitations on maternity leave are justifiable and reasonable.
Tsabora and Kasuso (2017) argue that the limitations cannot survive a challenge based on section
56 and 65 of the Constitution. It must also be noted that the full costs of maternity leave are

83
borne by employers. Zimbabwe has no social security or social insurance system to cater for
maternity benefits. This may act as a disincentive to the employment of women, thus limiting
women’s access to employment. See also ILO Conventions on maternity protection such as the
Maternity Protection Convention 2000.

Activity 5.5
1. Outline the procedure for applying for sick leave under the Labour Act.
2. Distinguish between direct and indirect discrimination.
3. Does the Labour Act recognise parental rights such as parental leave and paternity leave?
4. Discuss whether the limitations of the right to fully paid maternity leave in section 18 of
the Labour Act are consistent with the Constitution and international standards on
maternity protection?

5.5 Other Terms and Conditions of Employment

5.5.1 Concept of Unfair Labour Practices

Section 2 of the Labour Act defines an unfair labour practice as an unfair labour practice
specified in Part III, or declared to be so in terms of any other provision of the Act. In
Greatermans Stores (1979) (Pvt) Ltd t/a Thomas Miekles Stores & Another v The Minister of
Public Service, Labour and Social Welfare & Another CCZ 2/18, the Constitutional Court of
Zimbabwe had an opportunity to consider the meaning of labour practices in section 65(1) of the
Constitution. It held that for a person to allege an unfair labour practice as a violation of the right
enshrined in section 65(1), the conduct complained of must constitute one of the acts or
omissions listed by the Labour Act as unfair labour practices. The Labour Act provides a
numerus clausus of unfair labour practices by prescribing what is unfair as a way of indicating
what is fair. The Constitutional Court laid down the following requirements that must be
satisfied before conduct, positive or otherwise, can be held to fall within the definition of unfair
labour practice:
(i) The “act or omission” must constitute a “labour practice.” An “act” or “omission” may refer to
either a single act or a single inaction which may or may not have lasting consequences and
having occurred during the subsistence of the employment relationship, that is, in the period
between the conclusion of the contract of employment and its termination. The word “practice”
suggests that the employer must have actually done something or declined to do something.
(ii) The unfair labour practice can arise only if the employer does something or refrains from
doing something (“act or omission”). In Zimbabwe, the employer must have actually done
something listed in Part III of the Act, which act or omission the employee claims the employer

84
 should have done or should have refrained from doing.
(iii) The unfair labour practice must be between an employer and an employee. In Zimbabwe,
however, the unfair labour practice may be between the employee and a trade union, a workers’
committee or any other person or sexual conduct amounting to an unfair labour practice.
(iv) The unfair labour practice must involve one of the practices specified, for our purposes listed
in Part III of the Act or declared to be so in terms of any other provision of the Act; and
(v) The act or omission complained of must be unfair.

The Constitutional Court adopted a narrow view of the scope of the concept of labour practices.
In terms of this approach, labour practices are limited to practices arising from the unfair labour
practices jurisdiction of the Labour Act. These practices arise from the relationship between
employees, employers and their respective organisations. They can only be committed by
employers, worker’s committees and trade unions. Although the Constitutional Court
emphasised that unfair labour practices can only arise during the subsistence of the employment
relationship, section 8(g) of rthe Act prescribes an unfair labour practice which can be committed
before the commencement of the employment relationship. It is an unfair labour practice for an
employer to demand from prospective employee sexual favours as a condition of the recruitment
for employment. The unfair labour practices regime established by the Labour Act covers both
individual and collective labour law practices. It embraces all spheres of employment, from
recruitment, hiring, probation, training, promotion, disciplinary action, termination, dismissal,
collective bargaining, trade unionism and collective job action (Tsabora & Kasuso, 2017).

It is submitted that the narrow view adopted by the Constitutional Court does not find support in
section 65(1) of the Constitution. Labour practices are not limited to those prescribed in the
Labour Act. The contravention of the constitutional right to fair labour practices must be viewed
as a general unfair labour practice. A purposive interpretation of section 65(1) demands the
adoption of a broad view regarding the scope of labour practices. They are not limited to those
prescribed in the Labour Act, but to all practices related to and emanating from the employment
relationship. In this regard, Madhuku (2015) argues that ‘if a practice is not specified as unfair in
the Labour Act, it cannot be raised as an ‘unfair labour practice’ under the Act, but it may be an
infringement of the right to fair labour practices protected by the Constitution.’ Under these
circumstances a victim of an unfair labour practice can raise an action based directly on the
Constitution and not the Labour Act.

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The role of developing further unfair labour practices on the basis of section 65(1) lies with the
judiciary. In giving content to the right courts must be guided by domestic experiences reflected
from the jurisprudence generated by the unfair labour practices provisions in the Labour Act. In
addition, courts must seek guidance from international standards such as the United Nations
Declaration of Human Rights 1948, International Covenant on Economic, Social and Cultural
Rights 1966, African Charter on Human and Peoples Rights 1998 and regional instruments such
as the European Social Charter 1961 and the SADC Charter of Fundamental Social Rights 2003
and all relevant ILO conventions, recommendations and declarations. They are the bedrock of
rights and protections that make up labour practices in section 65 of the Constitution and labour
legislation. Although none of the ILO Conventions define the term ‘unfair labour practices,’ they
do provide guidance on what the content of the right should be. In extending the unfair labour
practices, courts must also be guided by the jurisprudence developed in foreign jurisdictions
which constitutionalised labour rights such as South Africa, Malawi and Kenya. Any unfair
labour practices developed by the courts must be fashioned in a manner that promotes values and
principles that underlie a democratic society. These include justice, dignity and equality.
Therefore, the notion of labour practices must embrace the protection against unfair labour
practices relating to work security and employment opportunities and underwrite minimum
standards (Cooper, 2007).

5.5.2 Restraint of trade

Clauses regarding restraint of trade are becoming more and more important as employers try to
protect themselves against competition from employees and ex-employees. Madhuku (2015)
defines a restraint of trade as a clause in a contract of employment that restricts a party’s freedom
to carry on his or her trade or profession. Its purpose is to bar an employee from competing with
a former employer either independently or as an employee of a competitor of the former
employer. The Zimbabwean law on restraints of trade was laid down in Magna Allays and
Research (Pty) Ltd v Ellis 1984 (4) SA 874 (A). In this case it was held that restraint of trade
clauses should be treated like any other contractual terms and should, in principle, be
enforceable. The reasoning is premised on freedom of contract rather than the value of freedom
of trade. Therefore, a restraint of trade is prima facie valid and its enforcement can only be
denied if the person bound by it proves that it is against public interest and unreasonable. The
Magna Alloys case was endorsed by the Zimbabwean courts in Book v Davidson 1989 (1) SA
638 (25). The issue of reasonableness is determined at the time of enforcement of the restraint of
trade clause and the onus is on the employee. See Mangwana v Mparadzi 1989 (1) ZLR 79 (SC).

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In commenting on circumstances where the employee shows that the restraint is too wide
Madhuku states that the restraint is enforced partially:
That part to be enforced need not necessarily be standing alone to be severable from others (the
so-called ‘blue pencil test’) but it is sufficient if the court is satisfied, after considering public
policy, that a part is enforceable. Thus in Mangwana case (supra), the court reduced the period of
the restraint from five years to three.
The term public interest depends on various factors which include the following: nature of the
restraint, duration of the restraint, purpose of the restraint and bargaining strength of the parties.

5.5.3 Transfer of employees

Under the common law, the duty of obedience implies that an employer has the right to transfer
an employee from one station to another. The transfer can be interdepartmental or involving the
movement from one location to another. The power of the employer to transfer an employee
under the common law is unlimited and depends with organisational requirements. See Guruva v
Traffic Safety Council of Zimbabwe 2009 (1) ZLR 58 (S). However, the power can be curtailed
ex contractu. If a contract specifically provides that an employee will be stationed at a specific
location without giving the employer the right to transfer an employee through a mobility clause,
then a transfer can amount to breach of contract. Secondly, a transfer can also be challenged by
an employee if it can be shown that it is a demotion or is actuated by mala fide. In other words,
an employee may on good cause challenge the right of an employer to transfer him or her. Good
cause can include unfounded allegations, victimisation or any action to disadvantage an
employee. The decision to transfer must not be motivated by bad faith or an ulterior motive. See
Rainbow Tourism Group v Nkomo SC 47/15; Sagandira v Makoni Rural District Council SC
70/14 and Theron v Minister of Correctional Services & Another (2008) 29 ILJ 1275 (LC). It
must however be emphasised that the right to transfer an employee is a policy decision which is
the prerogative of the employer and the employer’s discretion in this regard is not to be
interfered with lightly except for good cause shown. It must also be noted that in light of the
right to fair labour practices in section 65(1) of the Constitution and the right to administrative
justice in section 68 of the Constitution, employees have the right to be heard before a transfer.
This gives the employer an opportunity to take into account the employee’s personal
circumstances before effecting the transfer. It also entails that a transfer must not be on short
notice. See Kanonhuwa v Cottco 1998 (1) ZLR 68 (H), Farrid Begum Lang v Chief Magistrate
& Others HB 7/05, Director of Works v Nyangulu SC 27/02 and Taylor v Minister of Education
& Another 1996 (2) ZLR 772 (S).

5.5.4 Promotion employees

A promotion is an appointment of an employee to a higher post or status or insertion into a senior

rank. Under the common law promotion of an employee is a privilege or prerogative left to the
discretion of the employer to be conferred when deemed fit. Put differently, it is not a right

87
unless it is contractually provided for or the employer has created a legitimate expectation in the
mind of the employee that the employee would be promoted. This legitimate expectation does
not arise simply because one has acted in a position for a long time. The decision is a subjective
one based on considerations such as qualifications and performance. It can only be reviewed by
the courts if it is shown that the decision not to promote was seriously flawed, grossly
unreasonable and the employer acted in bad faith. See the following cases: Muwenga v PTC
1997 (2) ZLR 483 (S); Mudarikwa & Another v Director of Housing and Community Services &
Another 2007 (1) ZLR 41 (S), City of Gweru v Munyari SC 15/05.

5.5.5 Vicarious liability

In terms of this doctrine, an employer may be held liable for the wrongful acts or omissions of an
employee that were committed in the course of the employee’s employment, provided certain
requirements have been met. In other words, the employer is held accountable for the wrongs
committed by the employee in advancing or serving the interests of the employer. The common
law principle of vicarious liability is informed by twofold policy considerations, namely, holding
employers liable to just and adequate compensation for harm caused by employees to third
parties while doing the employer’s job, and inciting employers to take active steps to prevent
their employees from harming members of the broader community – that is, it plays a
compensatory and deterrent role.

Vicarious liability links well with ubuntu and with African norms that are encapsulated in the
following proverb: Kgomo e wetswa ke namane ko bodibeng. This essentially means that if a
child from household A has caused damage to household B, his or her parents should be held
liable. In the employment context, an employee would take up the position of the child and an
employer the position of the parent, simply because employers have control over their
employees. Also of importance is the fact that employees are typically under-resourced and may
not be able to pay damages to third parties when such is due. Therefore, employers would, in
terms of vicarious liability, be called in to pay damages and would use the inherent disciplinary
power they have over employees to get recourse from those employees who were wrongdoers.
This is fair to all parties and resonates with the culture of humaneness, human dignity and
respect for others.

Should the employer pay the full amount of damages, he is able to claim this amount from the
employee. In order to successfully rely on this doctrine and obtain compensation from an
employer, one must prove;
(i) The existence of an employment relationship between the wrongdoer and the defendant.
That is, there must be an employer-employee relationship.
(ii) That the employee caused harm or loss (committed a wrongful act or omission),
(iii) During the course and scope of his or her employment.

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Whether or not a delict is committed during the course and scope of employment depends on the
facts of each case. Employer has been held vicariously liable in the following situations:
 For damage caused at a fuel station by a fire which was caused by his employee’s
negligence. The employee, a lorry driver, had caused the fire by lighting a cigarette
whilst on the premises. (Hendrickz v Cutting 1937 CPD 417).
 For injury caused by the employee, a police constable, who accidentally shot a colleague
whilst on duty (Minister of Justice v Khoza).

The more difficult cases involve illegal acts of employees and loss caused outside normal
working hours and/or against the employer’s specific instructions. In Fawcett Security (Pvt) Ltd
v Omar Enterprises (Pvt) Ltd (1991) (2) ZLR 219), the employer was held not vicariously liable
for thefts by the employee, a security guard, from a client’s supermarket. The employer was
found not liable because in committing the thefts the employee was not purporting to exercise
any of the ostensible authority with which he was clothed. He had simply taken advantage of the
opportunity which his employment afforded him to steal.

If an employee performs an act which has been forbidden by his employer and thereby causes a
third party loss, his employer will be liable if the employee was nevertheless promoting the
interests of the employer. In General Tyre and Rubber Co (SA) Ltd v Kleynhans & Another 1963
1 SA533 (N) the employee drove a tractor on a public road, an act his employer had forbidden
and negligently caused an accident. The court held that the employee although performing a
forbidden act was promoting his employer’s interests and accordingly found the employer
vicariously liable.

The more problematic cases involve detours or frolics by employees, instances when the
employee deviates from work and causes harm to third parties whilst on that deviation. Such
cases require analysis of the detour or frolic, to determine whether or not its extent can be said to
so substantial as to absolve the employer of any liability. In Nott v Zimbabwe African National
Union (Patriotic Front 1984 (2) SA 105), the employee, a driver, deviated from his instructed
route and went on a 7-8 kilometre detour to fetch some personal papers. He negligently caused
an accident whilst on this detour. The court held that his employer was vicariously liable because
the instructions given to the employee had been flexible in relation to the time allowed to
complete the task and the employee’s deviation could not reasonably be said to be a major
deviation. Employers are not vicariously liable for delicts committed by independent contractors
because they do not have an employee and employer relationship with independent contractors.
However, employers have been held jointly liable with independent contractors in circumstances
where the employer has himself intentionally or negligently contributed to the causing of harm to
a third party.

Activity 5.6

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 1. Is the constitutional right to fair labour practices limited to the unfair labour practices
jurisprudence of the Labour Act? Explain your answer.
2. Soneni is employed by Spirit Salon as hair stylist. In terms of her contract of
employment, if she resigns, she will not be allowed to start a similar business within a
distance of 50 km from Spirit Salon for a period of two years. Discuss whether this will
qualify as a restraint of trade agreement.
3. Valerie is a porter at Harare Hospital Hospital. Rhoda is admitted to the hospital due to an
injury on her left leg. Rhoda falls and injures her right leg while Valerie tries to help her
into a wheelchair. Discuss whether Harare Hospital will be held vicariously liable for
Rhoda’s injuries.
4. Discuss the limited cirmstances in which an employee can challenge a transfer.
5. John is a security guard at Fawcett Security. He is assigned by his employer to guard Mr.
Dzobo’s house. During the Christmas holiday, Mr. Dzobo goes on holiday and secures
his house. John breaks into the house and steals valuables worth $10 000.00. With the aid
of case law explain the liability of Fawcett Security for John’s conduct.

5.6 Summary

This unit outlined the duties of employers and employees, both under the common law and
statute law. The principal duties of employees identified include the following: to render
services, duty of competency and efficiency, duty of good faith and the duty of subordination.
Breach of these duties amounts to an act of misconduct which entitles the employer to take
disciplinary action. The principal duties of employers include the following: duty to receive the
employee into service; duty to pay remuneration, duty to ensure safe working conditions, duty to
act in good faith and the duty to comply with statutory duties. The final section of this unit
explained other terms and conditions of the employment relationship. These include, the concept
of unfair labour practices, restraint of trade clauses, promotion and transfer of employees and the
doctrine of vicarious liability.

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References

Benjamin, P. (2004). An accident of history: Who is (and who should be) an employee under
South Africa labour law, Industrial Law Journal 787.
Cooper, C. ‘Labour Relations’ in Chaskalson, M. et al (2007) Constitutional law of South
Africa; Cape Town, Juta & Co.
Deakin, S. & Morris, S.G. (1995). Labour Law, Oxford: Hart Publishing.
Du Toit, D. (2006). Labour Relations Law: A Comprehensive Guide, Durban: LexisNexis.
Grogan, J. (2011). Workplace Law Cape Town: Juta.
Gwisai, M. (2006). Labour and employment law in Zimbabwe: Relations of Work under Neo-
Colonial Capitalism, Harare: Zimbabwe Labour Centre.
Kasuso, TG. (2017). Resignation of employees under the Zimbabwean labour law, Midlands
State University Law Review 1.
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Madhuku, L. (2015). Labour Law in Zimbabwe, Harare: Weaver Press.
Le Roux, R. (2010). The foundation of the contract of employment in South Africa, Industrial
Law Journal, 139.
Tsabora, J. & Kasuso, T.G. (2017) Reflections on the constitutionalising of individual labour law
and labour rights in Zimbabwe, ILJ 50.
Slade, E. (1995). Tolley’s Employment Handbook Oxford: Oxford University Press.
Van Niekerk, A. (2012) Law@work, Durban: LexisNexis.

UNIT 6

Breach of Contract of Employment and Remedies

6.1 Introduction

In unit 5 we dealt with rights and duties of the parties to the employment relationship. In the
event of either party breaching his or her duties, the innocent party is entitled to various
remedies. The remedies can arise out of delict, contract, administrative law, constitutional law or
labour law. As with any other contract, breach entitles the aggrieved party to various remedies
such as specific performance, damages, cancellation and interdicts. In labour law, remedies are
available to both the employer and employee. These remedies are available under the common
law or labour legislation. This unit discusses the remedies available to parties to the employment
relationship in the event of breach by the other party.

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7.2 Objectives

By the end of this unit, students should be able to:

 discuss the principal remedies available to employers under the common law and labour
legislation
 describe the principal remedies available to employees under both the common law and
labour legislation
 explain fully circumstances where an order of reinstatement will be refused by the courts
 explain the law of damages in lieu of reinstatement and circumstances were punitive
damages are payable
 distinguish remedies available in unlawful suspension and unlawful dismissal

7.3 Remedies Available to Employers

Employer remedies can either be founded on the common law or statute.

7.3.1 Common law remedies

(a) Cancellation

In the event that an employee has committed an act of misconduct, that is, breach of his or her
duties, the employer can summarily terminate the contract of employment. This amounts to
cancellation and is commonly known as summary dismissal. The right of an employer to
summarily dismiss an employee for breach has since been curtailed by statute. Section 12B of
the Labour Act gives employees the right not to be unfairly dismissed. This provision must be
read with section 12(4a) of the Labour Act as amended by the Labour (Amendment) Act 5 of
2015 and section 5 of the Labour (National Employment Code of Conduct) Regulations, 2006.
These statutory provisions are dealt with in unit 7.

(b) Damages

The employer has a common law right of action against employees for damages or loss
occasioned by negligent or intentional acts or omissions by employees. The cause of action
arises from delict and not labour law. Gumbo (2003) submits that a claim for damages will be
successful where an employer proves that:
(i) the employee infringed his employer’s right or failed to exercise a duty of care owed
to him;
(ii) the employee’s action was negligent or intentional and that

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 (iii) such action caused the employer harm or loss.

Examples of action that would entitle an employer to damages include the following:
 Destruction of employer’s property by an employee.
 Disruption of work or production by employees.
 Instances of desertion resulting in loss on the employer.
 Resignation without giving notice.

See Delta Distribution v Gurupira SC 20/10, Bevcorp (Pvt) Ltd v Nyoni & Others 1992 (1) ZLR
352, PTC v Mhaka HH 127/03; Nationwide Airlines (Pty) Ltd v Roedieger and Another (2006)
27 ILJ 1469 (W).

(c) Specific performance

An order for specific performance is one that directs a person to fulfil his or her contractual
obligations. In the employment context, an employee in breach of his or her contractual duties
can be ordered by a court to fulfil that which he or she breached. For instance, an employee
resigns without giving the agreed notice period of termination. This breach will entitle the
employer to hold the employee to the contract by demanding that the employee gives the agreed
notice period and render services for that period. This remedy of specific performance will only
be refused if a recognised hardship is proved by the employee. See Santos Professional Football
Club (Pty) Ltd v Igesund (2003) 5 SA 73 (C), Penrose Holdings (Pty) Ltd v Clark (1993) 14 ILJ
1558 (IC), Immaculata Secanday School v Bvuma & Another [2012] ZAGPJ AC 168. Courts
often do not grant specific performance in employment matters due to the personal nature of the
employment relationship.

(d) Interdicts

In appropriate circumstances a party to the employment relationship may apply for an interdict to
stop or restrain the other from breaching his or her rights. Interdicts can either be temporary or
final. One must prove that: he or she has a clear legal right; there must be a well-grounded basis
for believing that the employer will suffer irreparable harm if the interdict is not granted; the
balance of convenience must favour the applicant and there must be no alternative remedy
available to the party. For instance, in the employment context interdicts can be sought to
enforce a restraint of trade clause in an employment contract or to bar an employee from
disclosing trade secrets or confidential information. See Mangwana v Mparadzi 1989 (1) 79 (S).

(e) Declaratory order

An employer can approach the court requesting it to enquire into and determine any existing,

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future or contingent rights or obligations. In essence, the employer will be seeking a declaration
of rights (declarutur). For its requirements see Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR
337 (S), Matipano v Gold Driven Investments (Pvt) Ltd 2014 (1) ZLR 344 (S).

7.3.2 Statutory remedies

In addition to the common law remedies, an employer also has recourse to the following
statutory remedies.

(a) Employment code remedies

An employer may institute disciplinary action against an employee in terms of a Code of

Conduct or in its absence the Model Code (section 12B (2) of the Labour Act). In the event of
the employee being found guilty, the employer can impose various penalties which include
among others; suspension of the employee, dismissal, demotion, reduction in pay, fines,
warnings or withdrawal of benefits.

(b) Cessation order

The statutory equivalent of an interdict is the unfair labour practice cessation order (ceasing or
stopping of an unfair labour practice) granted in terms of section 89(2) (c) (vii) of the Labour
Act.

(c) Collective job action remedies

Where employees undertake an unlawful collective job action the employer has various remedies
available to it under sections 106 and 107 of the Labour Act. These include show cause orders,
disposal orders, prohibition of collection of union dues and cancellation of registration of trade
union among others. These are dealt with in the Unit which deals with collective job action law.

(d) Criminal prosecution

Certain conduct by employees can amount to criminal conduct under the Criminal Law
(Codification and Reform) Act (Chapter 9:23). The employer can report the employee concerned
to the police and have him or her prosecuted. The Labour Act also creates offences relating to
employee conduct. For instance, section 112(1) of the Labour Act criminalises failure to comply
with terms of a disposal order and section 109 of the Labour Act which deals with liability of
persons engaged in unlawful collective job action.

7.4 Remedies Available to Employees

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An employer may be in breach of its duties if it commits an unfair labour practice. In that event,
the Labour Act prescribes various remedies in 89(2). These include the following: cessation of
the unfair labour practices, insertion into seniority list, promotion, payment of legal fees and
costs. Sections 4 (a)-(b) and 5(4) of the Labour Act also make provision for the payment of
damages and compensation. These damages go beyond the ordinary delictual and contractual
damages (Gwisai, 2006). Remedies are also available in the event of an unlawful termination of
the contract of employment by the employer. The principal remedies in the Labour Act are
reinstatement, re-employment, payment of back pay and damages. These are discussed in detail
below.

7.4.1 Reinstatement

The remedy of reinstatement is the labour law equivalent of specific performance. It entails
restoration of status quo ante and the employee is treated as if he or she was not dismissed. (See
Chegutu Municipality v Manyara 1996 (1) ZLR 262 (S), Standard Chartered Bank v Matsika
1997 (2) ZLR 389 (S). Under the common law reinstatement was taken as an order for specific
performance, which was said to be unavailable in employment contracts. An employee was only
entitled to damages. The reason for this position was summarised in Schierhout v Minister of
Justice 1926 AD 99 as follows:
The inadvisability of compelling one person to employee another whom he does not trust in a
position which imports a close relationship, and the absence of mutuality, for no court could, by
its order, compel a servant to perform his work faithfully and diligently.

In addition, the remedy of specific performance would amount to forced labour since the
employee is compelled to work at the insistence of the employer (Madhuku, 2015, p.233). This
common law position was largely influenced by English law and has since been modified by the
courts. The current common law position on reinstatement in Zimbabwe is summarised by
Madhuku (2015, p.233) as follows:
It is not a rule of law that reinstatement is not available in employment contracts. The courts have
discretion, and in the exercise of the discretion reinstatement will not normally be granted. There
are appropriate cases where courts will not normally grant it. Whether to grant reinstatement or
not will depend with the facts of each case but usually the discretion depends on mutual
incompatibility and disappearance of trust between the employer and employee.
See Commercial Cancers College (1980) (Pvt) Ltd v Jarvis 1989 (1) ZLR 344 (SC), Zvoma v
Amalgamated Motor Corporation (Pvt) Ltd 1988 (1) ZLR 60 (HC), Art Corporation v Moyana
1989 (1) ZLR 304 (SC).

The Labour Act now provides reinstatement as a statutory remedy. Section 89(2) (c) (iii) of the
Labour Act provides that:
(iii) reinstatement or employment in a job;
Provided that-

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 (i) any such determination shall specify an amount of damages to be awarded to the
employee concerned as an alternative to his reinstatement or employment;
(ii) in deciding whether to award damages or reinstatement or employment, onus is on
the employer to prove that the employment relationship is no longer tenable, taking
into account the size of the employer, the preferences of the employee, the situation
in the labour market and any other relevant factors;

The statutory remedy of reinstatement is similar to specific performance. It signifies putting the
employee back in his or her former position as if the dismissal or unlawful termination never
happened. Basson (2009, p. 378) defines it as follows;
A reinstatement order restores the contractual position between the employer and the employee as
if it was never broken, meaning the employee is also entitled to be paid for the retrospective
period of reinstatement and entitled to benefits that may have accrued during the retrospective
period of reinstatement. Consequently, such rights as seniority rights will be unaffected.
See also Chegutu Municipality v Manyora 1996 (1) ZLR 262. Reinstatement under section 89(2)
(c) (iii) cannot be granted alone. Put differently, a pure order of reinstatement without an
alternative of damages in lieu of reinstatement is defective and incompetent. Therefore, an order
involving reinstatement must be couched as follows:
The Claimant is to be reinstated into his or her former position with no loss of salary or other
benefits with effect from (date) and in the event that such reinstatement is no longer possible, the
Claimant is to be paid such damages as an alternative to reinstatement as may be agreed upon
between the parties or that failing, as may be determined upon application by this tribunal/court.
See Olivine Industries v Gwekwerere 2005 (2) ZLR 421 (S), Mandiringa & Others v NSSA &
Others 2005 (2) ZLR 329, Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S),
Zimnat Life Assurance Ltd v Dikinya SC 30/10, Triangle Ltd v Sigauke SC 52/15.

However, in circumstances where reinstatement is not possible a court can award damages only.
See Gauntlett Security Services (Pvt) Ltd v Leonard 1997 (1) ZLR 583 (S). In other words,
reinstatement is not automatic, it is a discretionary remedy and will not be awarded where it is
inappropriate or inequitable. Reinstatement is not a primary remedy. It has an equal standing
with damages and it is the employer who decides whether to reinstate or pay damages. (Madhuku
2015, p.242). Gwisai (2006, p.128) argues that reinstatement under the Labour Act is a primary
remedy and a Court can award a straight and pure order of reinstatement. This approach is wrong
and has no basis under section 89 (2) of the Labour Act. Where reinstatement is inappropriate
damages in lieu of reinstatement will be ordered. For instance, where an employee whose
contract was unlawfully terminated reaches retirement age before finalisation of his or her case,
reinstatement is inappropriate. See Munhumutema v Tapambwa & Others 2010 (1) ZLR 509 (H).
Reinstatement is also inappropriate where the employee has already taken up employment with
another employer. See Maguchu v Lever Brothers (Pvt) Ltd 2000 (2) ZLR 187 (S). For a review
of some of the factors taken into account in deciding whether reinstatement is inappropriate or
not see Winterton, Holmes and Hill v Paterson 1995 (2) ZLR 68 (S), Girjac Services (Pvt) Ltd v
Mudzingwa 1999 (1) ZLR 243 (S), Dairiboard Zimbabwe Ltd v Muyambi 2002 (1) ZLR 448 (S).

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In the event of an order of reinstatement which is retrospective an employee is entitled to back
pay for the period he or she was not at work (See Madyara v Globe and Phoenix Industries (Pvt)
Ltd 2002 (2) ZLR 269, ZUPCO v Daison 2002 (2) ZLR 628 (S).

If an order of reinstatement is made and the employee refuses reinstatement and opts for
damages, that employee abandons the claim for damages. A refusal to take up reinstatement
constitutes a repudiation of the contract of employment by the employee. The position was
summarised in BHP Minerals Zimbabwe (Pvt) Ltd v Takawira 1999 (2) ZLR 77 (S) as follows:
An employee cannot choose, without justification, to refuse reinstatement and demand damages.
The employee must have good reasons to refuse reinstatement. If the employee refuses a genuine
offer of reinstatement, he abandons his claim for damages in respect of the period after the
reinstatement was supposed to commence.
Madhuku (2015, p.247) submits that this position of the law is correct, the objective is to enable
employees to keep their jobs, and not enable them get compensation for breach of contract. This
also finds support in section 89(2) (c) (ii)-(iii) where preference of the employee is not an
overriding factor in deciding whether or not to order reinstatement. Is the approach to
reinstatement in section 89(2) of the Labour Act consistent with the right to fair labour practices
in section 65 (1) of the Constitution and international labour standards? Is it not a pursuit of
employer’s interests at the expense of employees? See Madhuku, 2015, 248-249.

7.4.2 Re-employment

Section 89(2) (c) (iii) of the Labour Act provides for the remedy of reinstatement and re-
employment. The Labour Act does not define the term re-employment. In defining the term
Madhuku (2015) relies on the definition given by Basson (2009, p.378) to the following effect:
A re-employment order implies the statutory imposition of a new relationship which may be
different from the old one. The employee may be given the old job but without the rights, such as
seniority rights, which had been acquired in terms of the old employment contract. It may also
mean that the employee is given another job that differs from the old one… The employee may
be appointed to a new position on any terms.
It must also be noted that in terms of section 4 of the Labour Act, if an employer violates the
right of an employee or prospective employee not to be discriminated a court may order
employment of the affected employee.

7.4.3 Damages in lieu of reinstatement

It has been established that an order of reinstatement must be accompanied by an order for the
payment of damages. In terms of section 89(2) (c) (iii) whenever a court considers reinstatement,
the employer must be given the option of paying damages. They are an alternative to
reinstatement, hence the term damages in lieu of reinstatement. The Labour Act does not
prescribe the method of calculating damages in lieu of reinstatement. Therefore, reliance must be

98
placed on the common law principles. Damages in lieu of reinstatement are ex contractu and are
designed to compensate the employee for the actual loss suffered as a result of the loss of
employment. They are not delictual or for pain and suffering or injured feelings brought by the
unlawful termination. See Gauntlett Security Services (Pvt) Ltd v Leonard 1997 (1) ZLR 583 (S).
Damages in lieu of reinstatement cannot be awarded without quantification of these damages. An
employee must lead evidence to enable proper quantification. In Redstar Wholesalers v Mabika
SC 52/05, it was held that:
The Labour Court’s approach was wrong and its consequent ruling grossly unreasonable. The
court is not entitled to pluck a figure out of a hat because it is of the view that this figure “meets
the justice of the case.” Instead, the court is required to hear evidence as to how long it would
reasonably take a person in the position of the dismissed employee to find alternative
employment. The fact that the parties have led insufficient evidence to enable the court to arrive
at an informed conclusion does not absolve the court from its duty to utilise its powers in terms of
section 89(2) of the Labour Act by calling evidence in order to resolve the issue.
To quantify damages on no evidence is to commit an error of law. See also Delta Beverages v
Murandu SC 38/15, Masekesa Service Committee v Cahuke SC 1/12, First Mutual Life
Assuarnce Ltd v Muzivi 2007 (1) ZLR 325 (S), Heywood Investments (Pvt) Ltd t/a GDC Haulers
v Zakeyo SC32/13.

(a) Quantifying damages in lieu of reinstatement

Damages are what the employee would have earned save for the premature termination of his or
her contract of employment. The question would then be, how does one arrive at the amount of
wages or salary the employee would have earned? In fixed term contracts, damages in lieu of
reinstatement would be equivalent to the salary due to the employee for the unexpired period of
the contract. For instance, an employee with a fixed term contract of one year who is unlawfully
dismissed after serving two months will be entitled to damages equivalent to ten months’ salary,
which is the unexpired period. See SAFA v Mangope (2013) 34 ILJ (LAC), Maseko v Jongwe
Printing 2002 (2) ZLR 571 (H), Chiriseri and Others v Plan International 2002 (2) ZLR 261 (S),
ZUPCO v Daison 2002 (2) ZLR 628 (S).

With permanent employees, the unexpired period is not necessarily the date of retirement of the
employee but the period it would take a person in the position of the dismissed employee to
obtain similar employment. (Madhuku 2015, p.256) See also Ruturi v Heritage Clothing
Company (Pvt) Ltd 1994 (2) ZLR 374 (S). A reasonable period is dependant on the facts of each
case and includes an assessment of the following factors: educational qualifications of the
employee, age, economic environment, unemployment levels, efforts made by the employee to
look for alternative employment and expert evidence from employment agencies. See United
Bottlers v Kaduya 2006 (2) ZLR 150 (S), Fokoseni v Lobels Bakery 2004 (1) ZLR 406 (S). Even
in fixed term contracts, especially those of long duration, it does not follow that the unexpired
period for purposes of damages is the same length of time remaining up to the end of the contract

99
(Madhuku 2015, p.252). Courts will still award damages equivalent to the reasonable period it
would have taken a person in the position of the employee to obtain similar employment. See
Maseko v Jongwe Printing Co. (Pvt) Ltd 2002 (2) ZLR 571 (H).

(b) Salary scales used to quantify damages

In quantifying damages in lieu of reinstatement the amount of wages or salary used for
assessment is the net and not gross salary. (See Chiriseri and Others v Plan International 2002
(2) ZLR 261 (S), ZUPCO v Daison 2002 (2) ZLR 628 (S). In addition, damages are payable at
salary scales obtainable on the date of dismissal. In Olivine Industries (Pvt) Ltd v Nharara 2006
(1) ZLR 203 (S) it was held that an employee can only be compensated at the rate applicable at
the time and not at ‘today’s rates’ or some future unknown rate. This is based on the principle of
currency nominalism. However, if the rates applicable at the time were in a currency no longer in
use, damages will be assessed in the currency in use at the time of the assessment. This is what
happened after dollarisation of the Zimbabwean economy in 2009. See Samanyau and 38 Others
v Fleximail (Pvt) Ltd 2011 (1) ZLR 416 (H), Madhatter Mining Company v Tapfuma SC51/14,
Fleximail (Pvt) Ltd v Samanyau and Others SC21/14, Samanyau and Others v Fleximail (Pvt)
Ltd LC/H/776/14. Contractual benefits must also be included in quantifying the damages
payable.

(c) Mitigation of loss

Damages must take into account the issue of mitigation of loss, that is, reducing damages by
taking into account any remuneration earned in other employment, or what would have been
earned in other employment had the employee sought and obtained alternative employment
(Madhuku 2015, p.252). McNally JA in Ambali v Bata Shoe Company Ltd 1999 (1) ZLR 417 (S)
describes the duty to mitigate loss in the following words:
I think it is important that this court should make it clear, once and for all, that an employee who
considers, whether rightly or wrongly, that he has been unjustly dismissed, is not entitled to sit
around and do nothing. He must look for alternative employment. If he does not, his damages will
be reduced. He will be compensated only for the period between his wrongful dismissal and the
date when he could reasonably have been expected to find alternative employment.

The onus is on the employer to show that the employee did not look for alternative employment
or that he did not take up a reasonable job when it was offered to him. The employee is not
obliged to take any alternative employment; it must be reasonable employment. See Nyaguse v
Mkwasine Estate (Pvt) Ltd 2000 (1) ZLR 571 (S), Telecel Zimbabwe (Pvt) Ltd v Mabore SC
50/13, PTC v Swabata SC 42/03, Mukwenge v Clan Transport Co. (Pvt) Ltd 2001 (1) ZLR 199
(S), and Olivine Industries v Nharara 2006 (1) ZLR 203 (S).

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 (d) Taking up of alternative employment by the employee

If an employee takes up alternative employment after his dismissal it does not follow that his
claim for damages is extinguished. Madhuku (2015) argues that an alternative job at a lower
salary can only reduce mitigation payable to the employee. The duty of mitigation simply
requires the dismissed employee to make genuine efforts in looking for alternative employment
and need not find employment. See Fokoseni v Lobels Bakery 2004 (1) ZLR 406 (S). In the
event that a dismissed employee takes up a new job of a similar nature or with comparable
remuneration, damages can only be assessed up to the point of taking up the new job. If the
employee is paid remuneration which is lower than that of the old job then he is entitled to
damages for the reasonable period which he might have secured alternative employment, which
may include the wage the employee is already earning from the new job. Damages would be the
equivalent of the difference between the earnings from the new job and what the employee
would have earned from the old job (Madhuku, 2015, p.262).

(e) Difference between damages for wrongful suspension and wrongful dismissal

The position of a wrongfully suspended employee is different with that of a wrongfully

dismissed employee. An unlawful suspension is a repudiation of the contract of employment by
the employer. The employee can elect to accept the repudiation or enforce the contract. If an
employee accepts alternative employment whilst on suspension, by that fact alone he or she
accepts the employer’s repudiation and the only remedy available to him would be damages and
not reinstatement. See Zimsun Hotels (Pvt) Ltd v Lawn 1988 (1) ZLR 143 (S), United Bottlers v
Kaduya 2006 (2) ZLR 150 (S), Tel One v Kuyumani SC 110/04, CIMAS Medical Aid Society v
Nyandoro SC 6/16. In Tel One (Pvt) Ltd v Zulu 2005 (1) ZLR 133 (S), the Respondent while on
suspension secured employment with ZIMNAT. After four months of employment the contract
was terminated because ZIMNAT was advised that he was still an employee of Tel One although
he was on suspension. The court held that the employee terminated his employment with Tel
One when he took up alternative employment with ZIMNAT. It stated as follows:
An employee who is on suspension is under a legal obligation to avail himself for duty to his
employer during the period of suspension and that if such employee takes employment during the
period of suspension he repudiates his contract of employment.
Suspension of an employee does not terminate the employment relationship and the employee
has a legal obligation to make his services available to the employer at all times. Therefore, an
employee who has been wrongfully suspended has no duty to mitigate his loss. However,
Madhuku (2015) argues that it is not every alternative employment which repudiates the contract
of employment. He argues that if an employee is suspended without pay and benefits an
employee who takes a lower paying job or temporary job cannot be said to have repudiated the
contract. Repudiation must depend on the nature of the contract and conduct of the parties.

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7.4.5 Back pay

Three concepts of back pay are evident in the Labour Act. The first concept is associated with
reinstatement in that if an employer elects to reinstate an employee, then back pay arises. This
relates to any amount the employee would have earned between the date of dismissal and that of
reinstatement. This is also dependent on the duty of mitigation. Back pay is correctly captured as
a phenomenon of reinstatement in section 6(3) of the National Code. See also Leopard Rock v
Van Beek 2000 (1) ZLR 251 (S). The second concept of back pay associated with reinstatement
is in cases of suspension without pay. If the employee is reinstated, then he or she is entitled to
full back pay which covers the entire period to full back pay which covers the entire period of the
suspension without pay. In these circumstances, there is no duty of mitigation. See CIMAS
Medical Aid Society v Nyandoro SC 6/16. The last concept of back pay is captured in section 89
(2) (c) (i) of the Labour Act which states as follows: ‘Back pay from the time when the dispute
or unfair labour practice arose.’ This is concerned with all other disputes other than those relating
to unlawful terminations. It can be ordered in disputes involving non-payment of wages,
underpayment, improper grading of jobs and promotions, discrimination and related matters.

7.4.6 Punitive damages

Section 89 (2) (c) (ii) (iii) of the Labour Act provides that:
Should damages be awarded instead of reinstatement or employment as a result of an untenable
working relationship arising from unlawful or wrongful dismissal by the employer, punitive
damages may be imposed.
The Labour Act does not define the damages. In Mvududu v Agricultural and Rural
Development Authority the Supreme Court held that:
Furthermore, proviso (iii) to s89 (2) (c) (iii) does not, in my view, envisage the award of double
damages i.e. punitive damages in addition to damages in lieu of reinstatement. Rather, what may
be imposed is an award of damages in lieu of reinstatement that is punitive in nature and effect. In
other words, what is contemplated is a single award of punitive damages that would ordinarily be
awarded as damages in lieu of reinstatement.
For punitive damages to be awarded, reinstatement would have been untenable. In other words,
focus is on whether or not the employment relationship is still tenable. What is relevant is the
employer’s fault in the manner or circumstances in which he dismissed the employee and the
extent of his blameworthiness in causing the irretrievable breakdown of the employment
relationship. It is only in this situation that the question of punitive damages arises. The
discretion to award such damages may be exercised in order to penalise the employer for his
culpable conduct. Punitive damages are not automatic but discretionary. (Madhuku, 2015,
p.273).

Activity 7.1
1. Citing appropriate authority discuss and critique the reasons why the common law is

102
 hostile to the application of the specific performance remedy or reinstatement in contract
of employment circumstances.
2. Discuss and summarise the principles used by the courts to quantify damages in
situations relating to:
(a) Employees on permanent contracts.
(b) Employees on fixed-term contracts.
3. Following a Labour Court judgment finding that, Portia, an employee of Hondo (Pvt) Ltd
for ten years, was unfairly dismissed by the employer for absence because she had gone
on maternity leave, the court ordered reinstatement or payment of damages in lieu of
reinstatement on a punitive scale to ensure deterrence against gender discrimination in the
labour market and to ensure realisation of employees’ fundamental rights. In quantifying
damages, Portia claimed the following: back pay of four years’ salary from date of
dismissal to date of order of reinstatement; damages in lieu of reinstatement calculated as
follows: damages for an amount equivalent to five years’ salary as the period it would
take her to obtain alternative employment; five months’ salary for every year worked;
continuation of medical aid and school fees assistance for one year and relocation
allowance equivalent to three months’ salary. The employer rejects the quantification on
the basis that it is outrageous, unlawful and improper. The parties approach the Labour
Court for quantification of damages. Citing appropriate authorities give the judgment of
the Labour Court.

7.5 Summary

In this unit we dealt with remedies for breach available to both employees and employers. The
following remedies available to employers were identified, cancellation, damages, specific
performance, interdicts, declaratory orders, employment code remedies, cessation orders,
collective job action remedies and criminal persecution. As for employees, the Labour Act gives
them a potpourri of remedies which include unfair labour practices remedies such as cessation
orders, insertion into seniority list, promotion and payment of damages and compensation. In
addition, the following remedies are available in the event of unlawful terminations,
reinstatement, re-employment, damages in lieu of reinstatement, back pay and punitive damages.

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References
Du Toit, D. (2006). Labour Relations Law: A Comprehensive Guide, Durban: LexisNexis.
Grogan, J. (2011). Workplace Law, Cape Town: Juta & Co.
Gwisai, M. (2006). Labour and employment law in Zimbabwe: Relations of Work under Neo-
Colonial Capitalism, Harare: Zimbabwe Labour Centre.
Madhuku, L. (2015). Labour Law in Zimbabwe, Harare: Weaver Press.
Slade, E. (1995). Tolley’s Employment Handbook, Oxford: Oxford University Press.
Van Niekerk, A. (2012). Law@work, Durban: LexisNexis.

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 UNIT 7

Termination of The Contract of Employment

7.1 Introduction

Employment relationships do not last forever. At some stage, they must end. Some terminations
are planned, whereas others are not. This part of labour law is important and you will come
across it in your daily life, either as an employer or as an employee. There are various ways in
which the employment relationship may be validly terminated, both, under the common law and
statute. In certain situations, the common law is the only applicable law on termination, whilst in
others the common law has been codified, completely repealed or modified by statute.
Termination may be either voluntary or involuntary. It is important that you know and
understand the various ways in which an employment contract can be terminated.

An employment contract can also be terminated through a dismissal. This is a more drastic way
of terminating an employment relationship. Make sure that you know the different types of
dismissal contained in labour legislation and that you can differentiate between them. The

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requirements that employers must comply with before they dismiss employees are divided into
two categories, namely, requirements for procedural fairness and requirements for the
substantive fairness of a dismissal. You must understand these requirements since the fairness of
any dismissal depends on them. The first step is to determine if the conduct of the employer
amounts to dismissal. If such conduct does constitute dismissal, the next step is to determine
whether it is fair or unfair. Thus, in this unit we analyse the various ways of validly terminating
the contract of employment under the common law and statute.

7.2 Objectives

By the end of this unit, students should be able to:

 explain the concept of termination of employment in terms of common law
 explain different ways in which a contract of employment may be terminated under the
common law and statute
 define the term retrenchment and explain the retrenchment procedure in labour legislation
 define the statutory concept of dismissal and to explain different forms of dismissal
 distinguish between substantive fairness and procedural fairness of a dismissal and to
apply these principles in a practical situation
 evaluate whether the Zimbabwean framework on termination of the employment
relationship is consistent with the Constitution and international labour standards
 discuss protections afforded employees by labour legislation on transfer of an
undertaking

7.3 Termination under the Common Law

In unit 2, it was established that the common law remains applicable unless ousted by clear,
unequivocal and express provisions of a statute or by necessary implication. The common law
provides for various ways of terminating the employment relationship. These are discussed in
detail herein below.

7.3.1 Termination by mutual agreement

Parties to the employment relationship may agree to termination of their contract of employment.
In essence, the parties enter into a new agreement or a second agreement whose effect is to
terminate the first agreement. The agreement to terminate need not be in writing. However, the
agreement must be genuine in that it must not be induced by a misrepresentation, undue
influence or duress. See R v Van Breda 1933 SR 42, S v Collet 1978 (3) SA 206 (RA), Ndebele v
Foot Warehouse (Pty) Ltd t/a Shoe Warehouse (1992) 13 ILJ 1247 (IC). Neither party may
thereafter unilaterally revoke such an agreement. The common law position is modified by

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statute. For instance, section 12(4a) (b) of the Labour Act as amended by the Labour
(Amendment) Act 5 of 2015 provides that:
(4a) No employer shall terminate a contract of employment on notice unless-
(b) the employer and employee mutually agree in writing to the termination of the
contract
A similar provision is also found in section 5(c) of the Labour (National Employment Code of
Conduct) Regulations, 2006. The common law position has been modified in that the agreement
to terminate must be reduced to writing. See also Choga v Jonston’s Motor Transport (Pvt) Ltd
1998 (2) ZLR 560 (H), Ruturi v Heritage Clothing (Pvt) Ltd 1994 (2) ZLR 374 (S), Mushonga v
NRZ 1986 ZLR 111.

Mutual termination can also arise where the termination is on account of a settlement or waiver.
In these circumstances, the employee accepts payment of money in return for agreeing to
termination of the contract of employment. The effect of the waiver would be to extinguish any
rights and concomitant obligations arising from the contract of employment. See Industrial Steel
& Pipe Ltd v Moodie 1997 (1) ZLR 617 (S), Chidziva & Others v ZISCO 1997 (2) ZLR 368 (S),
Halwick Investments t/a Whelson Transport v Nyamwanza SC 48/09, Mukwinya v Clan
Transport SC 47/01, Mbisva v Rainbow Tourism Group t/a Rainbow Towers 2009 (2) ZLR 33
(S).

7.3.2 Termination on notice

The common law recognises that a contract of employment can be terminated on notice. If the
notice period is not specified in the contract of employment, then reasonable notice must be
given. See Tiopazi v Bulawayo Municipality 1923 AD 317. The employer can terminate the
contract for any reason or for no reason at all. The harshness of the common law position was
witnessed after the handing down of the Nyamande & Another v Zuva Petroleum (Pvt) Ltd SC
43/15 judgment. Termination on notice is also recognised in section 12(4a) of the Labour Act as
amended by the Labour (Amendment) Act 5 of 2015 which provides as follows:
(4a) No employer shall terminate a contract of employment on notice unless-
(a) the termination is in terms of an employment code, or, in the absence of an employment code,
in terms of the model code made under section 101 (9); or
(b) the employer and employee mutually agree in writing to the termination of the contract; or
(c) the employee was engaged for a period of fixed duration as for the performance of some
specific service, or
(d) pursuant to retrenchment, in accordance with Section 12C.

The notice period to be given by either party in the event of termination on notice is also
prescribed in the Labour Act. Specifically, section 12(4) of the Labour Act provides that:
(4) Except where a longer period of notice has been provided for under a contract of employment
or in any relevant enactment, and subject to subsections (5), (6) and (7), notice of termination of
the contract of employment to be given by either party shall be-

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 a) three months in the case of a contract without limit of time or a contract for a period
of two years or more;
b) two months in the case of a contract for a period of one year or more but less than
two years;
c) one month in the case of a contract for a period of six months or more but less than
one year,
d) two weeks in the case of a contract for a period of three months or more but less than
six months;
e) one day in the case of a contract for a period of less than three months or in the case
of casual work or seasonal work.

In the event that termination is at the instance of the employer, the employer has an option to pay
the employee cash in lieu of the notice period. This has the effect of terminating the contract with
immediate effect and is recognised in section 12(7) of the Labour Act (Kasuso & Manyatera,
2015). The notice of termination is a unilateral act that does not require acceptance by the other
party and once given it cannot be withdrawn without consent of the other party. See Rustenburg
Town Council v Minister of Labour 1942 TPD 220, Mushonga v NRZ 1986 (1) ZLR,
Gwaradzimba v PG Merchandising Ltd and Another 1993 (2) ZLR 215.

7.3.3 Summary termination

If either party commits a fundamental or material breach of the contract, the innocent party may
terminate the contract by cancellation. If it is the employee who is guilty of the breach, the
employer has a right terminate the contract summarily. Grounds which justify summary
termination include insubordination, negligence, absence from work and conflict of interest,
among others. See National Foods Ltd v Masukusa 1994 (1) ZLR 66 (S), Thomas Miekles Stores
v Mwaita and Another 2007 (2) ZLR 185 (S). An employee is also entitled to terminate the
contract summarily where the conduct of the employer amounts to repudiation. This may be the
case in cases of constructive dismissal, where the employer’s conduct renders continued
employment intolerable. This concept is now codified in section 12B (3) of the Labour Act and
is discussed under Dismissal. See Mudakureva v Grain Marketing Board 1998 (1) ZLR 145 (S).

7.3.4 Death

Under the common law, the death of either party terminates the contract of employment. Section
15 of the Labour Act has since modified the common law position. The employer’s death does
not terminate the contract of employment; the estate will be liable for the payment of
remuneration. See also section 13 of the Labour Act and the definition of employer in section 2
of the Labour Act. Boyd v Stuttaford and Co. 1910 AD 101, Reserve Bank of Zimbabwe v
Siwawa Estate’s Executor 1999 (1) ZLR 185 (S). In the event of an employee dying, the
employee’s estate is entitled to terminal benefits prescribed in section 13 of the Labour Act.

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7.3.5 Effluxion of time

Fixed term contracts terminate automatically on the expiry of the specified or agreed period. This
common law position is also recognised in section 12(4a) (e) of the Labour Act as amended and
section 5(d) of the Labour (National Employment Code of Conduct) Regulation, 2006. See also
Chikonye and Another v Peterhouse 1999 (2) ZLR 329 (S).

7.3.6 Completion of specified task

If a contract is for the performance of a specific task, then the contract terminates automatically
on the completion of the agreed task. See Peters, Glammon and Co. v Kokstand Municipality
1919 AD 427.

7.3.7 Impossibility of performance

If either party is unable to perform its obligations under the contract permanently or for an
unreasonably long period, the other party may terminate the contract on the ground of such non-
performance. Performance may become impossible due to a vis major or casus fortuitus
(Grogan, 2011, p.160). Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 (S). Instances
of supervening impossibility of performance in employment contracts may be as a result of the
following:
(i) Absence for long periods due to detention or imprisonment. See Samancor Tubatse
Ferrochrome vs Metal Engineering Industries Bargaining Council and Others (2010)
ILJ 1838 (LAC).
(ii) Incapacitation due to illness. See sick leave provisions in the Labour Act.
(iii) Where an employee’s licence or work permit is withdrawn see FAWU abo Meyer v
Rainbow Chickens (2003) BALR 140 (CCMA).
(iv) State action which renders either party incapable of performance. For instance,
compulsory acquisition of a farm. See Al George (Pvt) Ltd v Minister of Labour HH
8/03.

7.3.8 Insolvency

Insolvency arises when a company is unable to pay its debts. At common law, contracts of
employees are automatically terminated upon insolvency of the employer and the subsequent
sequestration. The common law is codified in section 40(1) of the Insolvency Act (Chapter 6:07)
which provides that all contracts of employment between an insolvent employer and its
employees automatically terminate on the date of liquidation, subject to the right of employees to

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claim compensation for loss of employment and the right to claim terminal benefits. See Kasuso
& Sithole, (2020) for a detailed discussion of the protection of rights of employees on insolvency
of the employer in Zimbabwe. See Merlin Ex-Workers v Merlin Ltd SC 4/01.

7.3.9 Resignation

The act of resignation is a voluntary and deliberate unilateral act by the employee in terms of
which he or she brings the employment relationship to an end without the consent of the
employer. It can either be on notice or without notice. To be legally effective, a resignation must
be clear, in that it must indicate an employee’s intention to give up his or her job or leave
employment. It is a unilateral act which does not require acceptance or rejection by the employer
and takes effect as soon as it has been communicated. See Madondo v Conquip Zimbabwe (Pvt)
Ltd SC 25/16, Jakazi & Another v Church of Province of Central Africa and Others 2010 (1)
ZLR 335 (H), Muzengi v Standard Chartered Bank & Another 2002 (1) ZLR 334 (S), Lee Group
of Companies v Ann Claire Elder SC 6/05, Riva v NSSA 2002 (1) ZLR 412 (H). Once an
employee resigns the resignation cannot be withdrawn without the consent of the employer. See
Kasuso, (2017), for a detailed discussion of the following: the legal act or resignation; is
acceptance of a resignation necessary for its validity; communicating a resignation, the effect of
a resignation and remedies available to an employer in the event of resignation without notice.

7.3.10 Retirement

Retirement age is usually set by agreement of the parties or in terms of rules of a pension
scheme. When an employee reaches the agreed retirement age, the contract of employment
expires automatically. If an employee decides to leave employment prior to attainment of the
retirement age that is a resignation. However, it must be emphasised that pension fund rules do
not fix the age at which the employee will retire from employment unless, expressly or
impliedly, the employer and employee agree that this be so. They only fix the age at which
contributors retire from making contributions to the fund. See Mubvumbi v City of Harare SC
64/18, Chabatwa v Zimbabwe Catering and Hotel Workers Union& Another HH 563/19.
Retirement is different from a retrenchment in that a retrenchment is termination on account of
operational reasons. See Mutare Board and Paper Millers v Kudzanayi 2000 (1) ZLR 641 (S),
Athol Evans Hospital Home v Marata SC 66/05 and Munhumutema v Tapambwa 2010 (2) ZLR
509 (H).

Activity 7.1
1. Define the term resignation.
2. Explain the difference between mutual termination and resignation.

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 3. Analyse the rights available to employees on termination of the contract of employment
on account of employer insolvency in the Labour Act and Insolvency Act.
4. Explain how the Labour (Amendment) Act 5 of 2015 modified the employers’ common
law right to terminate a contract of employment on notice.
5. Outline the difference between a retirement and retrenchment.

7.4 Termination under Statute

Apart from codifying the various common law forms of termination, the Labour Act also
provides other ways in which the employment relationship may be validly terminated. Two of
these forms of termination namely, transfer of undertakings and retrenchment are discussed
herein below.

7.4.1 Transfer of undertakings

A transfer of an undertaking may arise as a result of sale of a business, mergers, acquisitions and
takeovers. Under the common law if a business is sold, contracts of employment automatically
terminate. The employment contract is personal in nature and for that reason may not be
transferred or substituted without the consent of the parties concerned. There is cessation or
delegation of the employment contract and this requires consent not only of the employee
concerned but also of the transferor and transferee employers. See Nokes v Doncaster
Amalgamated Collieries Ltd [1940] ALL ER 549 HL. The common law has since been modified
by section 16 of the Labour Act. It regulates the employment related consequences of the transfer
of the whole or any part of a business and provides as follows:

16 (1) Subject to this section, whenever any undertaking in which any persons are employed is
alienated or transferred in any way whatsoever the employment of such persons shall unless
otherwise lawfully terminated be deemed to be transferred to the transferor of the undertaking on
terms and conditions which are not less favourable than those which applied immediately before
the transfer and the continuity of employment of such employees shall be deemed not to have
been interrupted.

Nothing in subsection (1) shall be deemed –

(a) to prevent the employees concerned from being transferred on terms and conditions of
employment which are more favourable to them than those which applied immediately
before the transfer from obtaining terms and conditions of employment which are more
favourable than those which applied immediately before, or subsequent to the transfer;
(b) to prevent the employees concerned from agreeing to terms and conditions of
employment which are in themselves otherwise legal and which shall be applicable on
and after the transfer, but which are less favourable than those which applied to them
immediately before the transfer.

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 Provided that no rights to social security, pensions, gratuity or other retirement benefits may be
diminished by any such agreement without the prior written authority of the Minister:
(c) to affect the rights of the employees concerned which they could have enforced against
the person who employed them immediately before the transfer and such rights may be
enforced against the employer or the person to whom the undertaking has been
transferred or against both such persons at any time prior to, on or after the transfer;
(d) to derogate from or prejudice, to violate or evade, to attempt to violate or evade in any
way the provisions of this section.

The purpose of section 16 is to protect employees against the loss of employment in the event of
a transfer of a business. See Mutare RDC v Chikwena 2000 (1) ZLR 534 (S). For section 16 of
the Labour Act to be triggered, the following elements must be present: an undertaking, business
or enterprise, transferred or alienated; as a going concern. For a discussion of the meaning of
these terms see Kasuso, T.G. (2014) ‘Transfer of Undertaking under section 16 of the
Zimbabwean Labour Act (Chapter 28:01)’ 1 Midlands State University Law Review 20. The
main consequence of section 16 is that the employment of the employees concerned unless
lawfully terminated are deemed to be transferred to the transferor. Therefore, the new employer
is automatically substituted for the old employer. All rights and obligations between the old
employer and the employees are included in the basket of what is transferred. In addition, the
transfer does not interrupt an employees’ continuity of employment. The general rule is that the
employees shall not be offered less favourable conditions on transfer of an undertaking.
However, parties may agree on any new conditions which can be favourable or less favourable.
It must also be noted that section 16 permits all or some of the employees to be excluded by
agreement from the alienation or the transfer of the undertaking to the new employer. Anything
done before the transfer by the old employer is considered to have been done by the new
employer. Section 16(3) of the Labour Act provides that it shall be an unfair labour practice to
violate or to attempt to violate or evade in any way provisions of section 16. See Chemco
Holdings (Pvt) Ltd Tenderere and 24 Others SC 14/17.

Activity 7.2
1. In your own words, summarise the content of section 16 of the Labour Act.
2. Distinguish the scope of application of section 16, the meaning of ‘transfer’ and the meaning
of ‘as a going concern.’
3. In January 2016, the Midlands State University (MSU) decided to find ways of outsourcing
the security services at the various MSU campuses. It establishes a new company, called MSU
Security Services (Pvt) Ltd. The idea is to transfer all the security personnel to the books of this
new company. When moved to the new company, all security personnel will enter into new
contracts with the new company and will retain their current salaries, though selected benefits

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such as cellphone allowance, uniform allowance and meals will be removed. They will also have
to work a new shift system with reduced hours of work. Not all the security personnel agree to
the proposal.

Advise the employer on the proposed changes.

7.4.2 Retrenchment

Retrenchment falls under the class of termination of employment for operational or economic
reasons. The termination has nothing to do with capacity or conduct of the employee or employer
but is as a result of unavoidable economic considerations. Retrenchment law serves several
purposes. Collins (1992, p.144) advances that retrenchment law ensures that economic dismissals
never occur, or at least to make it economically inadvisable for employers as long as the business
remains solvent. Madhuku (2015, p.196) submits that another purpose of retrenchment law is
distributive justice. He states that employers benefit from improved productivity whilst workers
who have sacrificed their jobs should partake of some or the benefits to general welfare derived
from superior productivity.

The Zimbabwean law on retrenchment is not designed to prevent employers from retrenching
employees. The underlying rationale of Zimbabwean retrenchment law is the need to balance the
employee interest in job security and the employers’ interest in flexibility. Madhuku (2015)
states that this delicate balancing act seeks to prevent unwarranted resort to retrenchment,
cushion workers from the economic effects of losing employment and encourage workers to
accept retrenchment. In Continental Fashions (Pvt) Ltd v Mupfuriri and Others 1997 (2) ZLR
405(S) it was recognised that one of the purposes of retrenchment is to avoid the collapse and
liquidation of a company. In Chidziva & Others v ZISCO Ltd 1997 (2) ZLR (S) it was also
recognised that retrenchment law serves the following purposes: prevent unnecessary and
wholesale retrenchments; ensure that where retrenchment is justified, it is carried in a fair and
transparent manner and protection of employees against the adverse effects of loss of
employment. See also Flexible Packaging (Pvt) Ltd v Mushonga SC 72/00.

(i) Defining retrenchment

Retrenchment is unknown under the common law. An employer has the right to terminate a
contract of employment on notice under the common law, whether or not the reasons for the
termination are economic reasons. Therefore, retrenchment law in Zimbabwe is derived from the
ILO Termination of Employment at the Initiative of the Employer Convention 158 of 1982. In
Continental Fashions (Pvt) Ltd v Mupfuriri supra the term retrenchment was defined as the
cutting back of expenditure on the employment of workers by reducing their number. Section 2
of the Labour Act defines the term retrench as follows:

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 to terminate the employee’s employment for the purpose of reducing expenditure or costs,
adapting to technological change, reorganising the undertaking in which the employee is or was
employed, or for similar reasons and includes the termination of employment on account of the
closure of the enterprise in which the employee is employed.

The definition covers most conceivable forms of economic dismissals or terminations on account
of operational reasons which include reorganisation of the business, closure, technological
changes and saving costs. Madhuku (2015, p.200) posits that what makes a termination
retrenchment is the reason for that termination. If the reason qualifies under the definition of
retrench then that termination is a retrenchment and an employer must resort to the retrenchment
procedures prescribed in labour legislation. See Mutare Board and Paper Mills (Pvt) Ltd v
Kodzanai 2000 (1) ZLR 641 (S), NEI Zimbabwe (Pvt) Ltd v Zane Brown & Others SC 84/04. It
is therefore improper for the employer to circumvent retrenchment procedures by coming up
with voluntary retrenchments or other means of termination which for all intents and purposes
fall under the definition of retrench. See the dissenting judgment of Sandura JA in Retrenched
Employees of National Breweries Ltd v National Breweries Ltd & Another 2003 (1) ZLR 263
(S), Phiri & Others v Industrial Steel and Pipe (Pvt) Ltd 1996 (1) ZLR 45 (S).

(ii) Retrenchment procedure

Prior to enactment of the Labour (Amendment) Act 5 of 2015, the retrenchment procedure
depended on the number of employees involved. If the employer was retrenching five or more
employees within six months, the procedure to be followed was as laid out in section 12C of the
Labour Act. If it was less than five employees, the procedure was found in the Labour Relations
(Retrenchment) Regulations, 2003. This is no longer the case. The Amendment Act has since
introduced a similar procedure for all retrenchments. This procedure is peremptory. See Stanbic
v Charamba 2006 (1) ZLR 96 (S), Kadir and Sons Ltd v Panganai & Another 1996 (1) ZLR 598
(S). In the event that an employer does not follow the procedures, the retrenchment will be null
and void. In that event the employees are regarded as still employed, with the consequent
obligation of the employer to pay them wages. The procedure is as follows:

(a) Consultations and special measure to avoid retrenchment

In terms of section 12D (1) of the Labour Act as amended, every employer shall ensure that, at
the earliest possible opportunity, employees are informed and consulted in regard to any changes
in production, programmes, organisation or technology which is likely to entail the retrenchment
of any employee. Therefore, before any notice to retrench is issued an employer must consult
employees (s25A of the Labour Act) and agree with them or their representatives on special
measures to avoid retrenchment. Section 12D (a)-(b) of the Labour Act prescribes two special
measures, that is, placement of employees or short time and instituting a shift system. If the

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parties reach an agreement, the agreement shall take precedence over the contract of
employment, a Collective Bargaining Agreement or Regulations. See section 12D (3) of the
Labour Act. This is designed to avoid retrenchment but at the expense of the employees (Gwisai,
2006). Before implementing the agreed special measures an employer shall give the employees
affected seven days’ written notice (section 12D (6) of the Labour Act).

In the event that the parties fail to reach an agreement on measures to avoid retrenchment, the
employer shall give written notice to the Employment Council for the undertaking or in its
absence to the Retrenchment Board. (Section 12D (2a) of the Labour Act). Within thirty days of
receiving the notice the Employment Council must accept or reject the special measures or refer
back the matter to the employer for reconsideration (Section 12D (2a) (c)-(d) of the Labour Act).
Section 12D (2a) of the Labour Act then provides that in the event that the employer’s proposed
measures have been rejected or no agreement on alternative measures have been reached, then an
employer may within thirty days give written notice of the original or revised proposed measures
to avoid retrenchment to the Retrenchment Board if the first proposal was made to the
Employment Council or the Minister if the first proposal was made to the Retrenchment Board.
The Retrenchment Board or Minister shall within thirty days accept or reject the employers
proposed measures to avoid retrenchment. In respect of agreements reached with employees
alone, such agreements shall be forwarded to the Employment Council or in its absence to the
Retrenchment Board within fourteen days after the employer starts implementing the agreement
(Section 12D (8) of the Labour Act). In terms of section 12D (9) of the Labour Act, the
Employment Council or Retrenchment Board has a right to nullify any agreement which is not in
the best interests of employees.

(b) Notice to retrench

If after preliminary consultations a retrenchment is unavoidable, then the employer must in terms
of section 12C (1) (a) of the Labour Act give written notice of its intention to retrench. The
notice is directed to the works council, or where there is no works council, to the employment
council or where there is no works council or employment council, to the Retrenchment Board.
Section 12C (1) (b) of the Labour Act provides that the written notice must give details of the
reasons for the retrenchment and the names of all employees the employer wishes to retrench. In
the event that notice is given to either the works council or employment council, it must be
copied to the Retrenchment Board (Section 12C (1) (c) of the Labour Act). See also Prosser and
Others v ZISCO Ltd HH 201/93, Chidziva & Others v ZISCO Ltd 1997 (2) ZLR 368 (S). A
notice which does not provide adequate details is fatally defective and a nullity. See Stanbic v
Charamba 2006 (1) ZLR 96 (S), Chipunza & Others v Beverly Building Society 2002 (2) ZLR
231 (H), Nkomo & Others v Rubber and Allied Products (Pvt) Ltd & Another 2002 (1) ZLR 428
(S).

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 (c) Post notice period

Prior to the adoption of the Labour (Amendment) Act, once a notice had been issued the
appropriate authority had a duty to secure agreement between the employer and employees
concerned or their representatives on whether or not the employees in question should be
retrenched and if the employees are to be retrenched the retrenchment package payable. See
Mugabe & Others v Zvimba Rural District Council 2006 (1) ZLR 84 (H), Nyangani & Others v
Zimnat Insurance Co. 2001 (1) ZLR 412 (S). If the parties failed to agree, the matter would then
proceed to the Employment Council, Retrenchment Board and finally the Minister who would
approve the retrenchment or reject it. The decision of the Minister could only be challenged on
review to the Labour Court. There was no provision for an appeal against the Minister’s decision
in terms of the Labour Act. Thereafter, a retrenchment would become effective after the
employer gives notice of termination in terms of the old section 12C (5) of the Labour Act. See
Freda Rebecca Gold Mine Holdings Limited v Nhliziyo & Others SC16/13. This is no longer the
procedure. The employer simply sends a notice of intention to retrench to the appropriate
authority and proceeds to issue notice of termination. There is no need of approval of the
retrenchment by the Retrenchment Board or the Minister. In fact, there are no checks and
balances in the process as everything is employer driven.

(d) Minimum retrenchment package

Previously there was no formula for calculating retrenchment packages. In Continental Fashions
v Mupfuriri & Others 1997 (2) ZLR employees were awarded severance allowance for
recognition of loss of job (severance pay), severance allowance for recognition in pay for each
year of service (gratuity), relocation allowance and miscellaneous benefits. This is no longer the
case. Section 12C (2) of the Labour Act as amended now prescribes a minimum retrenchment
package of one month’s salary for every two years of service unless the parties agree on a more
favourable retrenchment package. However, an employer can still be exempted from paying the
minimum retrenchment package. Section 12C (3) of the Labour Act provides that an employer
who alleges financial incapacity and inability to pay the minimum retrenchment package
timeously or at all can make an application to the Employment Council for the undertaking or in
its absence to the Retrenchment Board seeking an exemption from paying the full retrenchment
package. The Employment Council or Retrenchment Board must respond to the request within
fourteen days of receiving the notice, failure of which the application is deemed to have been
granted. In considering the request, the employment council or Retrenchment Board must
demand and receive proof of the employer’s inability to pay. If the employer offers to pay the
retrenchment package in instalments over a period of time the employment council or
Retrenchment Board must consider whether the proposal is reasonable and may propose an
alternative payment schedule. Lastly, the employment council or Retrenchment Board may
request the employer to consider alternatives to retrenchment in section 12D of the Labour Act.
(See section 12C (4) of the Labour Act). The decision by the Employment Council or
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Retrenchment Board is not appealable. Agricultural and Rural Development Authority v Baureni
& 18 Others SC 16/19.

7.4.3 Voluntary retrenchment

The Labour Act does not make provision for voluntary retrenchment. A retrenchment must
comply with procedures in the Labour Act and not be disguised as voluntary retrenchment.
(Madhuku, 2015, p.221). If an employer and employees agree to a retrenchment, this is not
voluntary retrenchment but termination by mutual agreement.

Activity 7.3
1. Define the term retrenchment.
2. Explain the changes that have been brought about by the Labour (Amendment) Act 5 of
2015 on retrenchment law in Zimbabwe? Are the consistent with international labour
standards of ILO on termination of employment.
3. Beta Bricks, a company that manufactures bricks, has been facing financial difficulties
for some time. The company thinks that by reducing the number of its employees, it will
save a lot of money and be able to continue its operations. The company decides to
dismiss 10 of its employees, starting with those who have been absent from work for
more days than others.
Discuss whether the dismissal of those employees will qualify as dismissal based on
operational reasons and whether the selection criterion used by the company is
acceptable.

7.5 Unfair Dismissal Law

The common law offers employees little protection against arbitrary conduct by employers. It
gives employers unfettered power to dismiss an employee at will without following any
procedural requirements. In Key Delta v Moriner [1998] 6 BLLR 647 (E) at 652, the common
law position was summarised as follows:
It may be so that under the common law a contract of employment may give the employer the
right to dismiss an employee for any reason, or indeed for no reason at all, provided that proper
notice is given where notice is required. In such circumstances, a summary dismissal will be
unlawful only for want of notice. The employee’s damages may then be restricted to his loss of
earnings for the notice period.
The common law is only concerned with lawfulness of a termination and not fairness or
unfairness of a termination (Madhuku, 2015:97). As a result of the weaknesses inherent in the
common law, most countries have adopted measures requiring employers to demonstrate a fair
reason for termination and the need to observe fair procedures before a decision to terminate is

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made. Those in favour of the intervention argue that work is important to an individual and
employees acquire rights to their jobs which are akin to ownership rights (Davies, 2004, p.161).
Others argue that individual dignity and autonomy are the primary justifications for unfair
dismissal laws and the need to protect employees.

The concept of unfair dismissal originated from international labour standards and specifically
the ILO Termination of Employment at the Initiative of the Employer Convention 158 of 1982.
Although Zimbabwe has not yet ratified the Convention, it has had profound effects on
Zimbabwean dismissal law. Article 4 of the Convention provides that the employment of a
worker may not be terminated unless there is a valid reason for the termination connected with
capacity or conduct of the worker or based on operational requirements of the undertaking.
Article 5 of the Convention identifies reasons for termination that do not constitute valid reasons.
The automatically unfair dismissals include: union membership or participation in union
activities; seeking office as or acting or having acted in the capacity of a workers’ representative;
the filing of a complaint or participation in proceedings against an employer; race, colour, sex,
marital status, family responsibilities, pregnancy, religion, political opinion, national extraction
or social origin and absence from work due to pregnancy.

The Convention is complemented by the ILO Termination of Employment at the Initiative of the
Employer Recommendation 166 of 1982 which provides further details on procedural and
substantive fairness of a dismissal. Domestically the concept of fairness of a dismissal is
recognised in section 65(1) of the Constitution which provides that every person has the right to
fair and safe labour practices and standards. The constitutional right to fair labour practices is
given effect to by the Labour Act. One of the most important right in the Labour Act is the right
of employees against unfair dismissal. Specifically, section 12B (1) of the Labour Act provides
that every employee has the right not to be unfairly dismissed.

7.6 Meaning of Unfair Dismissal

Section 12B (2) and (3) of the Labour Act provide as follows:
(2) An employee is unfairly dismissed:
(a) if, subject to subsection (3), the employer fails to show that he dismissed the employee in
terms of an employment code; or
(b) in the absence of an employment code, the employer shall comply with the model code
made in terms of section 101 (9).
(3) An employee is deemed to have been unfairly dismissed:
(a) if the employee terminated the contract of employment with or without notice because the
employer deliberately made continued employment intolerable for the employee;
(b) if, on termination of an employment contract of fixed duration, the employee-
(i) had a legitimate expectation of being re-engaged; and
(ii) another person was engaged instead of the employee.

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The Labour Act does not define the term unfair dismissal. What it does is to prescribe
circumstances in which a dismissal is unfair or deemed to be unfair. Madhuku (2015, p.98)
submits that the Act makes provision for two broad categories of unfair dismissals; that is,
generic unfair dismissals in section 12B (1) and automatically unfair dismissal in section 12B (2)
and (3). Anything outside these sections is not an unfair dismissal for purposes of the Act.
Therefore, section 12B of the Labour Act does not apply to every termination. For instance,
section 12B does not apply to retrenchments as these are specifically covered by section 12C and
12D of the Labour Act. See Four Seasons Foods (Pvt) Ltd v Matsvakanhau SC 44/09,
Nyamande and Another v Zuva Petroleum (Pvt) Ltd SC 43/15, Farm Community Trust v
Chemhere SC 22/13.

In addition, it does not apply to an employee whose contract is terminated on account of sickness
(incapacity) as this is regulated by section 14 of the Labour Act or termination on account of
insolvency. Section 12B (2) and (3) of the Labour Act specifies three circumstances of unfair
dismissals. These include the following:
(a) If there is a registered code of conduct and the dismissal for misconduct is not in terms of
that code or in the absence of a registered code of conduct, the dismissal for misconduct
is not in terms of the model code made in terms of section 101 (9) of the Act (Section
12B (2) (a)-(b) of the Act.).
(b) Constructive dismissal arising from an employee terminating the contract of employment
because the employer deliberately made continued employment intolerable for the
employee (Section 12B (3) (a) of the Act).
(c) Non-renewal of a fixed term contract in circumstances where an employee had a
legitimate expectation of being re-engaged and someone else was engaged instead of the
employee.
The onus to prove that the dismissal is unfair is on the employee to establish that the
circumstances fall within the confines of section 12B (2) and (3) of the Labour Act. The different
types of unfair dismissals are discussed herein below.

Activity 7.4
1. Explain the difference between termination and dismissal.
2. Identify international standards which form the basis of our law of unfair dismissal.
Summarise the relevant articles in your own words.
3. Identify three forms of dismissal in section 12B of the Labour Act.

7.7 Types of Unfair Dismissals

Section 12B of the Labour Act makes provision for the following forms of unfair dismissal.

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7.7.1 Constructive dismissal

Under the common law constructive dismissal occurs when an employee resigns from his or her
employment because the employer has made continued employment intolerable for the
employee. The essential feature of constructive dismissal is that the employee terminates the
employment contract with or without notice because of the employer’s conduct. The employee
must prove the existence of the following three elements in order to succeed with a claim for
constructive dismissal: that he or she resigned, that the reason for the resignation was that
continued employment became intolerable and that it was the employer’s conduct that created
the intolerable environment (but for the actions of the employer, the employee would not have
terminated the contract of employment or resigned). The term signifies any action on the part of
the employer which renders the continuation of the employment relationship unbearable for the
employee, to such an extent that the employee is left with no option but to terminate the
relationship (Grogan, 2010, p.51).

Section 12B (3) (a) of the Labour Act modifies the common law position. It makes provision for
statutory constructive dismissal which is automatically unfair. It occurs when an employee
terminates the contract of employment with or without notice because the employer deliberately
made continued employment intolerable for the employee. Traditionally, if an employee resigns
it is a termination and not a dismissal. However, under section 12B (3) (a) the resignation is
forced by the employer’s conduct, that is why it uses the term ‘deemed.’ In every employment
relationship an employer has a duty of good faith and shall refrain from conduct which makes the
employment relationship intolerable. Madhuku (2015, p.100) submits that the concept of
constructive dismissal in section 12B (3) (a) is narrower than that under the common law
because of the requirement that conduct of the employer must be deliberate or intentional. As for
the test of whether or not continued employment was intolerable, it is an objective test – would a
reasonable employee have found continued employment intolerable. See Astra Holdings v
Kohwa SC 97/04, Mudakureva v GMB 1998 (1) ZLR 145 (H). In addition, there must be causal
nexus between the resignation of the employee and the intolerable situation.

The conduct of the employer must be deliberate. The employer must be culpably responsible in
some way for the intolerable conditions. Its conduct must have lacked reasonable and proper
cause. Murray v Minister of Defence (2008) 29 ILJ 1369 (SCA), Jordaan v CCMA & Others
(2010) 12 BLLR 1235 (LAC). The Act does not provide conduct which would amount to
intolerable conduct or repudiation by the employer. Each case depends on its own circumstances.
However, such conduct may include unfair targets, sexual harassment, verbal and physical abuse,
and unilateral variation of contract of employment or transfers amounting to demotions. For
instance, in Thomas Miekles Stores v Mwaita & Another 2007 (2) ZLR 185 (S), the employer
wrote to two of its employees advising them of a restructuring. The employees were given two
options, either to accept a demotion or accept an exit package. This forced the employees to
resign as they could not accept the humiliation of a demotion. The Supreme Court held that this
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was a case of constructive dismissal.

The word ‘intolerable’ means that there is an onerous burden on the employee. He or she must
provide evidence to justify that the relationship had indeed become so intolerable that no
reasonable option, save for termination was available. Sight must not be lost to the fact that with
an employment relationship, considerable levels of irritation, frustration and tension inevitably
occur over a long period. None of these justify a claim for constructive dismissal. (Van Niekerk
et al, 2012, p.223). The intolerable situation must have been caused by the employer or a
representative of the employer. Lastly, an employee cannot claim constructive dismissal where
the employer has already taken steps to discipline the employee and the employee resigns so as
to avoid disciplinary action. See Muzengi v Standard Chartered Bank 2000 (2) ZLR 137 (H).

Activity 7.5
1. Explain the common law concept of constructive dismissal and how it has been modified
by section 12B(3)(a) of the Labour Act.
2. Tatenda is a qualified engineer at Kashep Engineers. Instead of giving Tatenda tasks to
do as part of his job, Sam, the manager at Kashep Engineers, sends him out to run
errands, even though the company has a messenger. This goes on for several months and
Tatenda decides to lodge a grievance with the employer. However, the manager continues
sending Tatenda on errands. Tatenda thinks “enough is enough” and decides to resign
from his job and alleges that he was dismissed. Discuss whether Tatenda’s resignation
will amount to a dismissal.

7.7.2 Non-renewal of a fixed term contract by the employer

The refusal or failure by an employer to renew a fixed term contract on its expiration is not a
dismissal under the common law. A fixed term contract automatically terminates upon expiration
of the agreed period. Section 12B (3) (b) of the Labour Act modifies the common law by
deeming non-renewal of a fixed term contract an unfair dismissal under certain circumstances. It
is an automatically unfair dismissal if a fixed term contract is not renewed where the employee:
(i) had a legitimate expectation of being re-engaged, and
(ii) another person was engaged instead of the employee.
In UZ-UCSF Collaborative Research Programme in Women’s Health v Shamuyarira 2010 (1)
ZLR 127 (S), it was held that both requirements must be satisfied if an employee is to succeed
and the onus is on the employee to prove the requirements. Section 12B (3) (b) seeks to protect
employees against abuse of fixed term contracts by the employer and is influenced by Article 3
of the ILO Termination of Employment at the Initiative of the Employer Recommendation 166
of 1982. Furthermore, section 12B (3) (b) of the Labour Act has since been strengthened by
section 12(3a) inserted by the Labour (Amendment) Act 5 of 2015 which provides as follows:
A contract of employment that specifies its duration or date of termination, including a contract for
casual work or seasonal work or for the performance of some specific service, shall, despite such

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 specifications, be deemed to be a contract of employment without limitation of time upon the expiry
of such period of continuous service as is-
(a) fixed by the appropriate employment council; or
(b) prescribed by the Minister, if there is no employment council for the undertaking concerned, or
where the employment council fixes no such period;
and thereupon the employee concerned shall be afforded the same benefits as are in this Act or any
collective bargaining agreement prescribed for those employees who are engaged without limit of
time.

In determining the existence of a legitimate expectation for purposes of section 12B (3) (b) (i),
courts examine all relevant factors. To be legitimate, the expectation must arise from impressions
created by the employer. The expectation can arise from an express promise of renewal given by
the employer or from the existence of a regular practice which the employee can reasonably
expect to continue. See Taylor v Minister of Higher Education and Another 1996 (2) ZLR 772
(S), Muvenga v PTC 1997 (2) ZLR 483 (S) and PTC v Managerial Employees Workers
Committee 1998 (1) ZLR 444 (H). Therefore, the test for legitimate expectation is AN objective
one – would a reasonable person expect re-engagement (Madhuku, 2015, p.101).

Zimbabwean courts have since accepted that the right in section 12B (3) (b) can be waived by an
employee. In UZ-UCSF Collaborative Research Programme in Women’s Health v Shamuyarira
supra, an employee signed a contract of employment in which he agreed that the renewal would
not give rise to a legitimate expectation of further renewal. The Supreme Court held that in such
circumstances the employee cannot possibly entertain a legitimate expectation to be re-engaged.
This narrow approach goes against the spirit of the right to fair labour practices in section 65(1)
of the Constitution. It was also adopted in Magodora & Others v Care International Zimbabwe
SC 24/14. It is submitted that statutory rights cannot be waived and legitimate expectation can
still exist even where a contract stipulates that there is no expectation of renewal. What changes
in such situations is that the onus will be heavier on the employee to prove objective evidence
giving rise to the alleged expectation. This is the approach that has been taken by South African
Courts. See NUMSA v Buthelezi & Others v LTR Appointments CC (2005) 9 BALR 919, Brown
v Read Educational Trust (2006) BALR 605 (CCMA).

The second requirement is that another person must be engaged instead of the employee. This
means that the other person must be engaged to do the employee’s actual work and not in a
different capacity. In Kenyan Airways v Musarurwa SC 67/14, it was held that another person is
not restricted to the hiring of an outsider but it also covers situations where the other person
engaged is from within that company. See also SA Rugby (Pty) Ltd v CCMA & Others [2008] 9
BLLR 845 (LAC).

7.7.3 Dismissal under a code of conduct or model code

In the event of an employee committing an act of misconduct an employer can only dismiss the

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employee in terms of a registered code of conduct or in its absence the Labour (National
Employment Code of Conduct) Regulations, 2006 (the Model Code). This is the specie of unfair
dismissal captured in section 12B (2) of the Labour Act read with section 5 (a)-(b) of the Model
Code. In the absence of an employment code, an employer must comply with the Model Code in
all cases of misconduct. Failure to do so will result in the dismissal being labelled an
automatically unfair dismissal. This part reviews dismissal in terms of a registered code and the
Model Code.

(a) Registration of codes of conduct

Section 101 of the Labour Act makes provision for an employment council code of conduct and
a works council code of conduct. It follows that a code of conduct can only be registered by a
works council or employment council. In the event that there is in existence an employment
council code of conduct registered for a specific undertaking, no works council in that industry
can apply for registration of a code of conduct without approval of the employment council
(Section 101 (1a) of the Labour Act). In addition, if the works council is the first to register a
code of conduct and the employment council subsequently registers its own code, the latter will
supersede that of the works council, notwithstanding the works council having been registered
first. (Section 101 (1b) of the Labour Act). However, the works council can still approach the
employment council and seek approval of its pre-existing code which would have been
superseded by the employment council code. In the event that the employment council refuses to
approve a code by a works council section 101 (1c) of the Labour Act provides that the works
council may refer the matter to a Labour Officer whose determination is final unless the parties
agree to refer the matter to voluntary arbitration. An employment code must provide for matters
in section 101 (3) of the Labour Act. These include the following:
 Disciplinary rules to be observed by employees.
 Definitions of acts or omissions which constitute misconduct.
 Procedures for disciplinary processes.
 Penalties for breach of the employment code such as warnings, fines, and reduction in
pay, suspension, demotion and dismissal.
 Person, committee or authority responsible for implementing and enforcing rules,
procedures and penalties.
 Procedure of notifying an employee commencement of disciplinary processes.
 Right of an employee to be heard before any decision is made.
 Production of a record of proceedings.

Once the Registrar is satisfied that a code captures the aforementioned details he or she must
proceed to accept registration of the code of conduct (Section 101 (2) of the Labour Act). If the
Registrar registers a code of conduct which does not satisfy requirements of section 101 (3), his
decision in that respect can be challenged on review in the Labour Court. For proceedings under
a code of conduct to be valid, the code of conduct must be registered in terms of the Labour Act.

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Put differently, proceedings under an unregistered code of conduct are a nullity. See Zimbabwe
Newspapers (1980) Ltd v Ndlovu 2000 (1) ZLR 127 (S).

(b) The model code and its applicability

Section 12B (2) of the Labour Act makes it clear that the Model Code can only be invoked where
there is no registered code of conduct. In Chikomba Rural District Council v Pasipanodya 2012
(1) ZLR 577 (S), Garwe JA summarised this position as follows:
There can be no doubt regard being had to the provisions in the Act and the Regulations to which
reference has been made, that the submission of the Appellant that it was entitled to use both the
Act and the Regulations or both is untenable. Both the Act and the Regulations are clear that the
National Employment Code of Conduct contained in those regulations can only be invoked where
there is no registered code of conduct. Since it is common cause that the appellant does have a
registered code of conduct, the termination of a contract of employment of any of its employees
had to be in terms of its code of conduct and not the National Employment Code of Conduct. The
appellant therefore erred in terminating the respondent’s contract of employment in terms of the
National Employment Code of Conduct. The submission that the appellant was entitled to use the
National Code of Conduct because the parties had agreed that the code could be used is equally
without merit. Clearly any agreement entered into between the parties had to comply with the
specific provisions of both the Act and the Regulations. Any agreement to the contrary would be
against the law and a termination of a contract of employment based on such agreement would be
null and void. That statutory provisions override the common law goes without saying.
See also Medical Investments Ltd t/a Avenues Clinic v Chingwena SC 2/12, Tirivangana v
University of Zimbabwe SC 21/13, Four Seasons Foods (Pvt) Ltd v Matsvakanhau SC 44/09 and
Mucheche, C. ‘Can an employer discipline an employee in terms of the Labour (National
Employment Code of Conduct) SI 15 of 2006 where a registered Code of Conduct exists?’ in
Mucheche, C. (2013), A Practical Guide to Labour Law in Zimbabwe 16-25.

The statutory right against unfair dismissal in section 12B (2) of the Labour Act cannot be
waived by the parties. However, they are permissible departures from the use of a registered
code and resort to the Model Code. The expression ‘in the absence of’ in section 12B (2) of the
Labour Act must be interpreted purposively. The mere existence of a registered code does not
oust the Model Code. There must be a registered code of conduct applicable to the case in
question. Where the registered code of conduct has been dwarfed by circumstances or the
circumstances of the case makes it difficult to apply it, then there is ‘the absence of an
employment code’ for purposes of section 12B (2) (Mucheche, 2013). In that event, the
employer can resort to the Model Code. See Samuriwo v ZUPCO 2000 (1) ZLR 647 (S), Cargo
Carriers (Pvt) Ltd v Zambezi and Others 1996 (1) ZLR 613 (S).

It must also be noted that a Labour Officer cannot intervene in a dispute which is still being
determined in terms of a registered code of conduct or the Model Code. (Section 101 of the
Labour Act). However, in terms of section 101 (6) of the Labour Act, an employee or employer
may refer a matter to a labour officer if the matter is not determined within 30 days. See

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Mashonganyika v Lena NO & Another 2001 (2) ZLR 103 (H), Mwenye v Lanhro Zimbabwe Ltd
1999 (2) ZLR 429 (S), Marimo v National Breweries SC 125/00, Watyoka v ZUPCO (Northern
Division) 2006 (2) ZLR 170 (S). At this stage, this unit will now consider the disciplinary
procedure under the Model Code. Most undertakings have their own registered codes of conduct
and it is impossible to deal with all of them in this unit. Therefore, the Model Code is being used
as an example on how to terminate the contract of employment under a code of conduct.

(c) Disciplinary procedure under the model code

Section 12B (2) of the Labour Act outlaw summary dismissal. The disciplinary procedure under
the Model Code only applies if an employee is suspected of having committed an act of
misconduct as specified in the Code.

(i) Objectives of the Model Code

The Model Code is made in terms of section 101 (9) of the Labour Act. Madhuku (2015, pp.113-
114) submits that the Model Code serves two functions. The first function is in section 101 (10).
A works council or employment council can apply to the Registrar and be given permission to
adopt the Model Code subject to any modifications. If the application is granted the Model Code,
with or without modifications, shall become the employment code for that employment council
or works council. The second function is in section 12B (2) of the Labour Act. The Model Code
applies in the absence of an employment code so as to avoid an automatically unfair dismissal. In
addition to providing for termination in terms of the Model Code, section 5 of the Model Code
also recognises termination by mutual agreement and termination of contracts of fixed duration.
The objectives of the Code are set out in section 3 which provides as follows:
(3) Objectives of the code shall, among other issues include the following:
(a) to provide machinery for careful investigation of offences before corrective/disciplinary
action can be administered, or
(b) to ensure consistency and prompt action by the responsible or administering official or
committee on issues concerning discipline, or
(c) to ensure equality of an offence to the resultant corrective action allowing for mitigation or
aggravating factors, or
(d) to provide guidelines on procedural and substantive fairness and justice in handling
disciplinary matters at the workplace.

(ii) Misconduct

In terms of section 6 of the Mode Code, the disciplinary processes under the Code are only
invoked if an employee is suspected of having committed a serious misconduct specified in the
code. An employee cannot be summarily dismissed, but is entitled to a substantively and
procedurally fair disciplinary procedure. The acts of misconduct in the Code are specified in
section 4, which provides as follows:

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 (4) An employee commits a serious misconduct if he or she commits any of the following offences-
(a) any act of conduct or omission inconsistent with the fulfilment of the express or implied
conditions of his or her contract, or
(b) wilful disobedience to a lawful order, or
(c) wilful and unlawful destruction of the employer’s property, or
(d) theft or fraud, or
(e) absence from work for a period of five or more working days without leave or reasonable
cause in a year, or
(f) gross incompetency or inefficiency in the performance of his or her work, or
(g) habitual and substantial neglect of his or her duties, or
(h) lack of skill which the employee expressly or impliedly held himself or herself to possess.

These specific acts of misconduct are discussed in detail by Madhuku (2015, pp.134- 145).
These acts of misconduct involve breach by an employee of his or her common law duties which
were discussed in Unit 4. The list of acts of misconduct in the Model Code is exhaustive in that
to charge an employee for an act of misconduct, there must be reference to a specific provision
of the Code. In other words, the breach must be of an identifiable provision of the Code. See
Delta Corporation Ltd v Gwasha SC 96/00. However, in other cases, it has been held that the list
of acts of misconduct is not exhaustive but merely examples See Marvo Stationery
Manufacturing (Pvt) Ltd v Jokwani and Others 2005 (2) ZLR 261 (S).

(iii) Suspension

Section 6(1) of the Code provides that if an employer has good cause to believe that an employee
has committed one or more acts of misconduct specified in section 4, may suspend such
employee with or without pay. The term good cause means the existence of reasonable suspicion
that an offence has been committed. In this regard, the suspension is not a disciplinary sanction
short of dismissal but a precautionary measure effected pending a disciplinary enquiry. It
facilitates investigations and is not meant to punish an employee. It is the employment equivalent
of an arrest. Cheadle (2006) argues that the rationale of a suspension is the reasonable
apprehension that the employee will interfere with investigations or repeat the misconduct.
However, suspension of an employee is discretionary, it is only necessary where continued
presence at the workplace of an employee is undesirable. It impacts on the employee’s
reputation, advancement, fulfilment and income. Zimbabwean law permits summary suspension.
For a different perspective see Dince & Others v Department of Education North West Province
& Others (2010) 31 ILJ 1193 (LC).

On being suspended, the employee must forthwith be served with a letter of suspension with
reasons and grounds of suspension. Upon serving the employee with the suspension letter, the
employer shall, within 14 working days, investigate the matter and conduct a hearing into the
alleged misconduct and serve a notice, in writing, on the employee either terminating the
contract of employment or removing the suspension (Section 6(2) of the Model Code). It must be
noted that the 14-day period starts to run upon serving the employee with the letter of

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suspension. The term forthwith implies that the letter of suspension must be served within a
reasonable period of time after commission of the act of misconduct by the employee or after the
employer becomes aware of the act of misconduct. See Standard Chartered Bank Zimbabwe Ltd
v Matsika 1996 (1) ZLR 123 (S), ZESA v Bopoto 1997 (1) ZLR 126. The suspension letter must
inform the employee of the reasons and grounds of suspension. Madhuku (2015, p.120) explains
these terms as follows:
Reasons refer to the alleged misconduct as specified in section 4. At this stage of being contained
in the letter of suspension, the ‘reasons’ need not formulate the serious misconduct in the legal
language of section 4. It is sufficient if the misconduct is couched in such a way that a reasonable
person in the position of the employee would relate it to one or more of the specifications in
section 4. ‘Grounds’ refer to the facts giving rise to the alleged misconduct. At this stage, they
need not be detailed. They must be such that a reasonable person. In the position of the employee
would understand the basis of the alleged misconduct.

A suspension letter without reasons and grounds of suspension renders the suspension a nullity.
See Tip Top Dry Cleaners (Pvt) Ltd v Karangura 1997 (2) ZLR 420 (S). It also follows that any
subsequent grounds of termination must be the same with grounds for charging and suspending
an employee. See Nyarumbu v Sandvik Mining SC 31/13, Karembera v Mvurwi RDC 1999 (1)
ZLR 327 (SC) and Standard Chartered Bank Matsika 1996 (1) ZLR 123 (S). An employer has
discretion to suspend an employee with or without pay and benefits. Under the common law
suspension is only on full pay and benefits. Therefore, an employer must choose whether to
suspend an employee with pay and benefits or not, at the point of suspension. If the employer
does not make this choice, then it is deemed that the employee is on suspension with full pay and
benefits. See Makova v Urban Development Corporation 1992 (1) ZLR 326 (H). Once an
employer suspends an employee with pay and benefits, the employer cannot change his mind and
then withdraw the pay and benefits. See Mutandiro v PTC HH 43/01. Not all benefits can be
suspended. Only those benefits that do not result in the de facto termination of the employment
relationship can be suspended. For instance, use of company vehicle, cell phone or laptop.
Benefits such as accommodation cannot be withdrawn during suspension. See ZBH v Gono 2010
(1) ZLR 8 (H), Zimbabwe Posts (Pvt) Ltd v Chiura HH 63/14. In the event that an employee has
been suspended without benefits, and refuses to handover the property to the employer, the
employer cannot take the law into its hands and forcibly take away the property. It has to follow
due process of the law by instituting rei vindicatio proceedings. See Chisipite School Trust (Pvt)
Ltd v Clarke 1999 (2) ZLR 324, ZBC v Gono 2010 (1) ZLR 8 (H). However, if the employee is
challenging the legality of the suspension, then the employer must wait for the outcome of the
challenge before recovering the property. See Tafuma v Tudor House Consultants (Pvt) Ltd 2002
(2) ZLR 1 (H).

The suspension facilitates investigation into alleged acts of misconduct. The Model Code does
not define the term investigation or prescribe a method of investigation. It is accepted that it
entails the gathering of facts and evidence and the employee may be interviewed or asked to
write reports. (Madhuku 2015, p.123). The investigation is done by the employer since it is the

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employer who must have ‘good cause’ to believe that an act of misconduct has been committed.
It also follows that only the employer can suspend and serve the employee with the suspension
letter. A suspension which does not comply with provisions of the Model Code is a nullity. In
Mugwebi v Seed Co Ltd 2000 (1) ZLR 93 (SC) it was held that:
The question which now arises is whether the appellants’ suspension was valid. There is no doubt
in my mind whatsoever that it was null and void. It was a complete nullity. In this respect, I can
do no better than quote what Lord Denning said in MacFoy v United Africa Co. Ltd (1961) 3
ALL ER 1169 (PC) at 11721:
‘If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is
no need for an order of the court to set it aside. It is automatically null and void without
more ado, though it is sometimes convenient to have the court declare it to be so. And
every proceeding which is founded on it is also bad and incurably bad. You cannot put
something on nothing and expect it to stay there. It will collapse.’

An employee is entitled to challenge his suspension without waiting for the disciplinary
proceedings to be finalised. See Tafuma v Tudor House Consultants (Pvt) Ltd 2002 (2) ZLR 1
(H). In the event of the setting aside of a suspension, the employer has two option: either to re-
suspend the employee on the same or another ground or initiate a process towards a disciplinary
hearing on the same or another ground without re-suspending. See Karembera v Mvurwi Rural
DC 1999 (1) ZLR 37 (S). Therefore, there is no law that precludes an employer from instituting
proceedings afresh if earlier proceedings have been impugned on basis of procedural
irregularities. See Madawo v Interfresh 2000 (1) ZLR 660 (H), Chipangura v EMA SC 35/12,
MacKenzie v Rio Tinto Zimbabwe SC 144/04.

For procedural irregularities to render a suspension a nullity the irregularities must be sufficient
enough or so serious as to go to the root of the proceedings. In addition, the employee must have
suffered prejudice. The principle underlying this position is that an employee must not escape the
consequences of his or her misdeeds simply because of a failure to conduct proceedings
properly. Procedural irregularities must always be raised at the beginning of the disciplinary
processes and not ex post facto. See Ramana v NSSA SC 38/03, Cold Storage Company v Ndlovu
& Others SC 67/07, MBCA v Dube 2004 (1) ZLR (S), Pangeti v GMB 2002 (1) ZLR 454 (S),
Nyahuma v Barclays Bank SC 67/05, Chipangura v EMA SC 35/12. The fact that a suspension
has expired without conducting a hearing does not mean that the allegations of misconduct have
fallen away or prevent the holding of a hearing. If a suspension terminates by operation of law,
only the suspension falls away and not the charge that may have given rise to the suspension. See
Shumbayaonda v Ministry of Justice SC 11/14.

(iv) Hearing

After an employee has been served with a suspension letter, the employer must conduct a hearing
into the alleged misconduct within 14 days (section 6 (2) of the Model Code). The hearing must

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be conducted after investigations have been concluded and informing the employee of the
charge. The charge is different with the letter of suspension. It must be written and must be based
on the reasons and grounds in the suspension letter. It must specify an act of misconduct
provided for in section 4 of the Model Code, with clarity. It must also provide the facts giving
rise to the act of misconduct in a manner which enables the employee to plead to the charge. In
terms of section 6(4) (a) an employee is also entitled to at least three working days’ notice of the
hearing. Failure to give an employee reasonable notice of the hearing can nullify the subsequent
proceedings if the irregularity is fatal and prejudicial to the employee. See Majurira v Tredcor
Zim (Pvt) Ltd SC 48/13.

Section 6(4) (b) of the Model Code provides that a hearing may be conducted by the employer or
the employer’s representative or a disciplinary authority. The Model Code defines a disciplinary
authority as a ‘person or authority or such disciplinary committee dealing with disciplinary
matters in an establishment or at a workplace.’ Madhuku (2015) identifies three entities which
qualify as a disciplinary authority. It can either be a person, authority or disciplinary committee.
A disciplinary committee is defined in the Model Code as a ‘committee set up at the workplace
or enterprise composed of employer and employees’ representatives to preside over and decide
disciplinary cases and/or worker grievances.’ In differentiating a disciplinary committee from a
disciplinary authority, the Supreme Court in National Engineering Workers Union v Dube SC
1/16 stated as follows:
It seems to me that whereas the National Code has stipulated who should constitute a disciplinary
committee, the composition of a disciplinary authority has been left to the discretion of the
employer. A disciplinary authority on the other hand can mean a person or a committee dealing
with disciplinary matters at the workplace and its composition is not dictated by the Code of
Conduct. Clearly, the Appellant is mixing the two. The disciplinary authority can be constituted
by a single person and it can be extended to a disciplinary committee. Applied to the
circumstances of this case, it becomes evident that the Appellant consciously set out to constitute
a disciplinary authority (as opposed to a disciplinary committee) and properly exercised its
discretion in choosing the size of and specific people to sit on such disciplinary authority. It is
pertinent to note that in this respect that no limitation is imposed by the Code as to the number of
persons who should constitute a disciplinary authority. Nor is the designation of such persons
stipulated. It is all left to the employer’s discretion.
See also Mandizvidza v ZFC Limited & Another SC 73/15, Mucheche, C. (2013), A Practical
Guide to Labour Law in Zimbabwe, Madhuku, L. (2015), Labour Law in Zimbabwe.

The Code is very clear that an employee must be given an opportunity to be heard by attending
the hearing. Section 6 (4) (a) of the Model Code provides that an employee is entitled to three
working days’ notice of the hearing. See Majurira v Tredcor Zimbabwe (Pvt) Ltd SC 48/13.
However, the right to be heard can be abandoned or waived if an employee fails, neglects or
refuses to attend a hearing. In Munyuki v City of Gweru 1998 (1) ZLR 182 (S) it was held that:
Although it is a fundamental legal principle that an employee charged with misconduct by the
employer has a right to be heard, I have no difficulty in accepting that such right may be
abandoned or waived. There is no compulsion upon the employee to attend the hearing. Non-
attendance is not a disciplinary offence unless specified in the pertaining code. If the employee

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 does not attend, however, he abandons his right to be present and the hearing may proceed in
absentia.
See also Moyo v Zimbabwe Electrification Agency SC 4/14, Dombodzvuku & Another v CMED
SC 14/11, Forestry Commission v Moyo 1997 (1) ZLR 254 (S).

In terms of section (4) (b) of the Model Code, the employee has a right to appear in person and
be represented either by a fellow employee, workers’ committee member, trade union official or
a legal practitioner. The right to legal representation is also a fundamental right entrenched in
section 69(4) of the Constitution. It states that every person has a right, at their own expense, to
choose and be represented by a legal practitioner before any court, tribunal or forum. The term
‘forum’ encompasses disciplinary committees and disciplinary authorities set up in terms of a
code of conduct. Therefore, a code of conduct can no longer prohibit legal representation. At the
hearing an employee has a right to call witnesses and have them cross examined (Section 6(4)
(c) of the Code). Evidence may be led by way of statements or affidavits or it can be oral
evidence (Madhuku 2015, p.169). Where witnesses give viva voce evidence, the evidence must
be given in the presence of the employee, who has a right to cross examine the witnesses. It is
improper for witnesses to give evidence in the absence of an employee and then invite the
employee later to conduct cross examination. See Mawuta v Secretary for Finance 2003 (2) ZLR
323 (H).

Although all misconduct cases have a certain element of institutional bias in that the charge and
the hearing are being conducted by the employer, disciplinary proceedings must be conducted in
a fair and impartial manner. Justice should not only be done but should manifestly and
undoubtedly be seen to be done. The Model Code prescribes a 14-day period for the entire
proceedings. Madhuku (2015, p.133) argues that there are three possible implications of a failure
to conclude proceedings within fourteen days. The first one is to render the proceedings a nullity.
The second is to create a dispute entitling the aggrieved party to refer the matter to a labour
officer as provided for in section 101 (6) of the Labour Act. The third option is for the employee
to apply for a mandamus, compelling compliance with time limits. See Nhari v Zimbabwe Allied
Banking Group SC 51/13.

(v) Determinations and penalties

At the end of the hearing, the disciplinary committee or disciplinary authority must make a
determination. In terms of section 6(4) (d) of the Model Code an employee must be informed of
reasons for decision. This right is also entrenched in section 68 of the Constitution. An employee
who is found guilty of misconduct must also be given an opportunity to address in mitigation
before the imposition of a penalty. See section 6(4) (e) of the Model Code and section 12B (4) of
the Labour Act. Commenting on the importance of mitigation, the High Court in Bishi v
Secretary for Education 1989 (2) 240 (HC) held that:
Even justice administered under a palm tree demands that a man be heard in mitigation before

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 you blow up his means of living. One is reminded that even God sought and heard Adam’s
defence before banishing him out of the Garden of Eden.
However, a different approach was adopted in Innscor v Chimoto SC 6/12, Mashonaland Turf
Club v Mutangadura SC 5/12, ZB Financial Holdings v Manyarare SC 3/12.

In disciplinary proceedings the onus is on the employer to prove the allegations of misconduct on
a balance of probabilities. The proved facts must disclose the offence the employee has been
charged. See ZESA v Dera 1998 (1) ZLR 500 (S), Zimbabwe Financial Holdings v Mafunga
2005 (2) ZLR 289 (S). However, in Astra Industries Limited v Chamburuka SC 27/12 the
Supreme Court held that in allegations of misconduct which involve criminal conduct, the
allegations must be proved beyond reasonable doubt. This position was rejected in Nyarumbu v
Sandvik Mining and Construction Zimbabwe (Pvt) Ltd SC 31/13. What is required in any
disciplinary proceedings is proof on a balance of probabilities. If the evidence does not support
the charge preferred, the employee is entitled to an acquittal and reinstatement if he or she was
on suspension. See CIMAS Medical Aid Society v Nyandoro SC 6/16.

An employer finding an employee guilty of misconduct has a number of penalties which at its
disposal. These include, dismissal, warnings, demotion, suspension, transfers and fines.
Dismissal does not always follow every conviction. It depends with circumstances of the case.
Generally, Zimbabwean courts have adopted the approach that dismissal is proper as long as the
conduct complained of goes to the root of the employment relationship. The discretion to impose
a sanction for proved misconduct rests in the first instance with the employer and courts will
only intervene if the decision is manifestly or demonstrably unfair. This principle is known as the
reasonable employer test. See Malimanji v CABS SC 47/07, Tregers Plastics (Pvt) Ltd v
Woodreck Sibanda & Another SC 22/12. In South Africa the reasonable employer test was
rejected in Sidumo & Another v Rustenburg Platinum Mines Ltd and Another (2007) 12 BLLR
1097(CC) on the basis that it violated the right to fair labour practices in section 23 of the
Constitution of South Africa. It is argued that the reasonable employer test violates section 65(1)
of the Constitution as it affords preferential status to the employer’s view on fairness of a
dismissal. It tilts the balance in favour of employers. Lastly, the effective date of a dismissal is
usually the date of suspension if the employee was on suspension or the date of conviction.
(vi) Appeals

Section 8 of the Model Code gives the employer the option of establishing an in house appeal
procedure for determining appeals from disciplinary proceedings conducted in terms of the
Model Code. An appeals officer may be appointed or designated by the employer with the
consent of workers’ representatives. The aggrieved employee must note an appeal within seven
working days. The Appeals Officer or Committee may call a hearing to hear the appeal or decide
the appeal on record. The appeal proceedings must be completed within fourteen days from date
of receipt of the appeal. Any party aggrieved by the decision of the Appeals Officer or
Committee may refer the matter to a Labour Officer and the dispute is disposed in terms of

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section 93 of the Labour Act. An employee must exhaust internal remedies provided for in a
Code of Conduct before approaching the courts. An appeal to a Labour Officer must be lodged
within 7 days. See Murowa Diamonds v Makumbe SC 16/09, ZIMRA v Mupindiwa SC 85/06,
FBC Bank v Chisayiva LC/MD/03/13 and Chitima v Stanbic Bank LC/H/447/12.

Activity 7.6
1. Discuss the requirements for substantive fairness in respect of a dismissal based on
misconduct.
2. Discuss whether an employee who is on probation can be dismissed.
3. Pamela is employed as a cleaner at ZOU. Every day, cleaners fetch detergents from the
storeroom in order to clean toilets. Pamela often takes detergents from the storeroom but
instead of using them in the toilets, she takes them home. Discuss whether Pamela can
be charged and dismissed for her conduct.
4. TK Logistics is a company that sells computers and computer parts. A computer hard
drive is missing from the lock-up cabinet, and Biggie was the last person seen opening
the cabinet. Welly, who is Biggie’s supervisor, accuses him of theft and tells him to go
home and to never come back to work. Advise Biggie on whether he was dismissed and
whether the dismissal was procedurally fair.
5. Sihle was employed as a receptionist at Jameson Hotel. On 4 February 2018, Sihle, who
has a driver’s license, was instructed to deliver hotel linen for laundry since the hotel
driver was late. Although she had finished her duty, she agreed. After making two trips to
the laundry, she complained that she was tired and hungry. The driver had not yet
reported for duty. Her superior instructed her to continue working but she refused and
went home. She was charged with insubordination and dismissed from employment. The
hearing was conducted six months from date of suspension despite the fact that Jameson
Hotel’s code of conduct provided that an employee could not be suspended for more than
14 days. The hearing was conducted in terms of the Labour (National Employment Code
of Conduct), 2006. One of the reasons for dismissal was incompetence although this was
never stated in the suspension letter. Sihle was also denied the right to legal
representation on the basis that Jameson Hotel code of conduct did not provide for such a
right. Sihle is the bread winner of a family of five, a first offender and has worked for
Jameson for twenty years. Sihle asks for your advice on the following:
(a) Whether or not the dismissal was fair.
(b) The steps she can take to challenge the dismissal and the remedies available to
her.

7.8 Summary

In this unit we first dealt with termination of the employment relationship under both the
common law and statute. Under the common law a contract of employment can be validly
terminated through mutual agreement, on notice, summary termination, death, effluxion of time,

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completion of a specific task, impossibility of performance, insolvency, resignation and
retirement. These different forms of termination have since been modified by labour legislation
whist others have been codified. It was also established that termination under statute is largely
regulated by retrenchment law. We also dealt with transfer of undertakings and how section 16
of the Labour Act has modified the common law position.

This unit also dealt with the concept of unfair dismissal. It differentiated the term dismissal from
the concept of termination. The rationale behind the concept of unfair dismissal was identified.
In this unit the meaning of unfair dismissal was unpacked and the following forms of unfair
dismissal under the Labour Act were discussed: constructive dismissal, non-renewal of a fixed
term contract in circumstances where an employee had a legitimate expectation of re-
engagement and dismissal in terms of a registered code of conduct or in its absence, the Model
Code.

References
Davies, P & Friedland, M. (1983). Kahn-Freund’s Labour and the Law, London: Stevens & Son.
Grogan, J. (2011). Workplace Law, Cape Town: Juta & Co.
Gwisai, M. (2006). Labour and employment law in Zimbabwe: Relations of Work under Neo-
Colonial Capitalism, Harare: Zimbabwe Labour Centre.
Kasuso, T.G. (2014). Transfer of Undertakings under section 16 of the Zimbabwean Labour Act
(Chapter 28:01), Midlands State University Law Review 20.
Kasuso, T.G. (2017). Resignation of an Employee under Zimbabwean Labour Law: A Unilateral
Act, Midlands State University 46.
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Kasuso, T.G. & Sithole, K. (2020), Protection of the Rights of Employees in Insolvency Law: A
Zimbabwean Perspective, Journal of African Law.
Kasuso, T.G. & Manyatera, G. (2015). Termination of the contract of employment on notice: A
critique of Don Nyamande & Kingstone Donga v Zuva Petroleum (Pvt) Ltd SC 43/15, Midlands
State Law Review.
Madhuku, L. (2015), Labour Law in Zimbabwe, Harare: Weaver Press.
Mucheche, C. (2013). A Guide to Labour Law in Zimbabwe, Harare: Zimlaw Trust.
Van Niekerk, A. (2012). Law@work, Durban: LexisNexis.

UNIT 8

Law of Dispute Settlement

8.1 Introduction

Disputes are an inevitable characteristic of employment relations. This is so given the dichotomy
in interests and goals inherent in the employment relationship. (Mahapa & Watadza, 2015, p.65).
The objective of public policy is to manage such conflicts at the workplace and promote sound
labour relations. This is achieved by the creation of a system for the effective prevention and
settlement of industrial disputes. In Zimbabwe, the Labour Act accords a significant role to

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consensus based dispute resolution mechanisms such as conciliation and arbitration. In addition,
the Act establishes a specialised Labour Court, ring fenced from the formal civil courts (Kasuso
2018). Section 2A (1) (f) of the Labour Act provides that the reasons for the creation of these
specialised dispute resolution forums include the need for expeditious, efficient and affordable
procedures and easily accessible, specialist institutions. These specialised forums are also
endorsed by International Labour Organisation (ILO) Conventions and Recommendations such
as Freedom of Association and Protection of the Right to Organise Convention, 1948, Right to
Organise and Collective Bargaining Convention, 1949, Labour Relations (Public Service
Convention 1978, Voluntary Conciliation and Arbitration Recommendation, 1951 and
Examination of Grievances Recommendation, 1967. Therefore, this unit is dedicated to an
analysis of the dispute resolution mechanisms established by the Labour Act aimed at resolving
industrial conflict. Before this is done the unit identifies the nature, classification and causes of
industrial disputes.

8.2 Objectives

By the end of the Unit, you should be able to:

 define the term dispute
 explain the types different of industrial disputes
 describe the dispute resolution mechanisms established by the LA such as conciliation,
arbitration and the Labour Court and evaluate their effectiveness
 explain the role of civil courts in labour dispute adjudication

8.3 Nature of Industrial Disputes

Disputes at the workplace arise as a result of economic and non-economic factors. Generally,
economic factors relate to issues to deal with wages, bonus, allowances, benefits, conditions of
employment, working hours, leave and unjust terminations and dismissals among others. Non-
economic factors would encompass social and political factors. Section 2 of the Labour Act
defines a dispute as a dispute relating to any matter concerning employment which is governed
by this Act.

Although the definition is not of much assistance, the following points emerge from it. Firstly, an
industrial dispute relates to matters concerning employment (Madhuku, 2015, p.350). Therefore,
the definition presupposes the existence of an employment relationship or some other
relationship which is premised on the existence of an employment relationship. For instance, the
relationship between employers, employer organisations, trade unions and workers’ committees.
Secondly, the definition also covers disputes emanating from a past employment relationship or
one which has been terminated. Thirdly, Madhuku (2015) argues that a dispute between an
employee and a fellow employee is not covered by the definition of dispute in the Labour Act.

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The definition is predicated on an employment relationship and an employee and another
employee cannot be said to be in an employment relationship. Lastly, any matters of employment
subject of the dispute must be governed by the Labour Act. Anything outside the Labour Act is
not a dispute for purposes of the Act. At most it can be described as a grievance that is any
dissatisfaction or sense of injustice which is felt by an employee in relation to his terms and
conditions of employment or other aspects of employment.

8.4 Types of Disputes

Broadly speaking, disputes can be classified as either individual or collective (Gwisai, 2006,
p.267). Individual disputes involve a single worker or a number of workers in their individual
capacities or in relation to their individual contracts of employment. As for collective disputes
they involve a number of workers collectively, that is workers’ committees, trade unions and
employer organisations (ILO, 1980, p.50). The Labour Act does not distinguish disputes on the
basis of individual or collective disputes. It classifies disputes into disputes of right and disputes
of interest.

8.4.1 Disputes of right

Section 2 of the Labour Act defines a dispute of right as follows:

any dispute involving legal rights and obligations, including any dispute occasioned by an actual
as alleged unfair labour practice, a breach or alleged breach of this Act or of any regulations made
under this Act, or a breach or alleged breach of any of the terms of a collective bargaining
agreement or contract of employment.
Disputes of right are concerned with the alleged infringement of a legal right, or the conferment
of a benefit to which the claimant is legally entitled to (Grogan, 2010). It is concerned with
interpretation of existing rights provided for in contracts of employment, Collective Bargaining
Agreements and labour legislation.

8.4.2 Disputes of interest

A dispute of interest is defined in section 2 of the Labour Act as “any dispute other than a
dispute of right.” This definition is not very useful. Disputes of interest are sometimes referred to
as economic disputes. There is no established right or entitlement but the claimant party seeks a
benefit or advantage to which he has no legal entitlement. Disputes of interests are usually
resolved through negotiation, collective bargaining or collective job action. The outcome of these
processes may result in the creation of new rights that will affect the future relationship of the
parties (Machingambi, 2007, p.174). The distinction between disputes of right and disputes of
interest is important in industrial relations as the method of dispute resolution provided for in the

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Labour Act depends on the nature of the dispute.

8.5 Prescription of Industrial Disputes

Industrial disputes prescribe within a period of two years. For the avoidance of doubt, section 94
of the Labour Act provides as follows:
(1) Subject to subsection (2), no labour officer shall entertain any dispute or unfair labour practice
unless _
(a) it is referred to him, or
(b) has otherwise came to his attention;
within two years from the date when the dispute or unfair labour practice first arose.
(2) Subsection (1) shall not apply to an unfair labour practice which is continuing at the time it is
referred to or comes to the attention of a labour officer.
(3) For the purpose of subsection (1), a dispute or unfair labour practice shall be deemed to have
first arisen on the date when-
(a) the acts or omissions forming the subject of the dispute or unfair labour practice first
occurred; or
(b) the party wishing to refer the dispute or unfair labour practice to the labour officer first
become aware of the acts or omissions referred to in paragraph (a); if such party cannot
reasonably be expected to have known of such acts or omissions at the date when they first
occurred.

If a dispute has prescribed a tribunal, forum or court has no jurisdiction to entertain the dispute
(See City of Gweru v Munyari SC 15/05). However, it is a defence to prescription to allege that
the dispute or unfair labour practice is continuing at the time of the referral to a Labour officer.
Under such circumstances a Labour Officer must entertain the dispute regardless of the length of
time.

Activity 8.1
1. Explain the difference between a dispute of right and a dispute of interest.
2. Describe the significance of the distinction between a dispute of right and a dispute of
interest.
3. Explain the significance of prescription of labour disputes as provided for in section 94 of
the Labour Act.

8.6 Resolving Industrial Disputes

In order to protect industrial relationships from anarchy and preserving industrial peace, the
Labour Act in Part XII establishes structures and processes of dispute resolution. These are
complemented by the following pieces of legislation: Arbitration Act (Chapter 7:15],
Administrative Justice Act (Chapter 10:28), the Labour (Settlement of Disputes) Regulations,
2003 and the Labour Court Rules, 2017. The various methods of dispute resolution established

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by labour legislation are discussed herein below.

8.6.1 Conciliation

The Labour Act provides a framework for conciliation of industrial disputes in section 93 of the
Act. It sets the tone for conciliation in section 93(1) by providing that:
A labour officer to whom a dispute has been referred, or to whose attention it has come, shall
attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration.

The Labour Act does not define the term conciliation but it is understood as a process involving
assisting the parties to clarify their points of disagreement and attempting to promote a
settlement but the terms of any settlement remain the responsibility of the parties (Deakin &
Morris 1995, p.92). The overall value of this consensus seeking process is twofold:
(a) Employers and employees are involved in an employment relationship. It is beneficial to
any industrial relationship to settle disputes through agreement rather than resolving them
by means of a final decision where there will be a winner and loser.
(b) Settlements have the advantage of lessening the burden on the other dispute resolution
mechanisms established by the Labour Act and thus facilitating the expeditious resolution
of labour disputes.

Section 93(1) of the Labour Act is worded in peremptory terms. This signifies that conciliation is
mandatory unless the parties have referred their dispute to voluntary arbitration. Conciliation is
done by Labour Officers who are employed by the State and have national jurisdiction. In
National Employment Councils conciliation is done by Designated Agents and their jurisdiction
is limited to a given industry or undertaking. Both disputes of interest and disputes of rights are
subject to conciliation.

At conciliation the Labour Officer does not adjudicate a dispute but carries out an enquiry and
attempts to have the parties reach an amicable settlement. The Labour Act does not provide the
procedure for conducting conciliation. Gwisai (2006) proposes the following procedure:
(i) Introduction – parties introduce themselves and set ground rules such as language to
be used and terms of conciliation. Preliminary issues are also dealt with.
(ii) Fact finding – parties are given an opportunity to present their cases starting with the
Claimant and then the Respondent. The conciliator then summarises the issues in
dispute and agreed issues.
(iii) Mediation – conciliator explores with the parties’ options of resolving the dispute by
consensus.
(iv) Recommendations - conciliator may make recommendations to the parties of setting
the dispute but such recommendations are not binding.
(v) Conclusion – if the parties agree to a settlement, the conciliator will record the
settlement in writing in a certificate of settlement and that will signify the end of the

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 conciliation process.

In the event that the parties do not reach an agreement, the Labour Officer can still try to re-
engage the parties. However, the conciliation process is given a time span of 30 days from the
day the labour officer begins the process (section 93(8) of the Labour Act). This period can be
extended to a maximum of ninety (90) days subject to agreement of the parties in terms of
section 3(5) of the Labour (Settlement of Disputes) Regulations, 2003. If the dispute is not
resolved within the 30-day period or the extended 90-day period, a Labour officer must bring the
process of conciliation to an end, and issue a certificate of no settlement (section 93(3) of the
Labour Act) which must be signed by the Labour officer.

The procedure that then follows after the issuance of a certificate of no settlement has since been
changed by the Labour (Amendment) Act 5 of 2015. Section 93(5) of the Labour Act as
amended provides as follows:
(5) After a labour officer has issued a certificate of no settlement, the labour officer, upon consulting
any labour officer who is senior to him or her and to whom he or she is responsible in the area in
which he or she attempted to settle the dispute of unfair labour practice –
(a) shall refer the dispute to compulsory arbitration if the dispute is a dispute of interest and the
parties are engaged in an essential service, and the provisions of section 98 shall apply to
such reference to compulsory arbitration.
(b) may, with the agreement of the parties, refer the dispute or unfair labour practice to voluntary
arbitration if the dispute is a dispute of interest, or
(c) may if the dispute or unfair labour practice is a dispute of right;
make a ruling that; upon finding on a balance of probabilities that-
(i) the employer or other person is guilty of an unfair labour practice; or
(ii) the dispute of right or unfair labour practice must be resolved against any employer
or other person in a specific manner by an order –
A. Directing the employee or other party concerned to cease or rectify the infringement or
threatened infringement, as the case may be, including the payment of moneys, where
appropriate;
B. For damages for any loss or prospective loss caused either directly or indirectly, as a
result of the infringement or threatened infringement, as the case may be;
whereupon the provisions of subsections (5a) and (5b) shall apply.

In the event of failure of conciliation and after the issuance of certificate of no settlement, a
Labour officer has the following options. Firstly, he or she shall refer the dispute to compulsory
arbitration on condition that the dispute is a dispute of interest. In addition, the parties must be
those engaged in an essential service. Section 102 of the Labour Act defines essential services
and the Labour (Declaration of Essential Services) Notice 137 of 2003 lists the following
services as essential services: fire brigade, distribution of water, veterinary services, services
provided by revenue specialists, health services, transport and communication services,
electricity services and any public broadcaster among others. The framework for compulsory

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arbitration is provided for in section 98 of the Labour Act. Secondly, the Labour Officer, may
with agreement of the parties refer the dispute to voluntary arbitration. Thirdly, the Labour
Officer may if the dispute or unfair labour practice is a dispute of right proceed to make a ruling.
In this scenario the Labour Officer is no longer a conciliator but an adjudicator. Once a ruling
has been made, section 93(5a) of the Labour Act as amended is invoked.

In Drum City (Pvt) Ltd v Garudzo SC 57/18 section 93(5a) of the Labour Act was interpreted to
entail the following:
(a) The labour officer, after making a ruling in terms of section 93 (5) (c) (ii) of the Act,
makes an affidavit to that effect and attaches to it any evidence on which such ruling is
based.
(b) The Labour Officer then gives notice to the employer or any person against whom such
ruling and order is made (respondent), of the lodging by him, of an application with the
Labour Court for an order directing the respondent to comply with the ruling within a
period not less than 30 days from the date the matter is set down for hearing (restitution
day).
(c) The labour officer then appears before the Labour Court on the date of the hearing, as the
applicant, seeking an order confirming his or her draft ruling.
(d) Should the respondent fail to make an appearance, the Labour Court will nevertheless
make a ruling confirming the order with or without an amendment.
(e) On the date of the hearing (and presumably with the respondent in attendance) the Labour
Court may also conduct a hearing and grant (confirm) the order sought with or without
amendment.
(f) Thereafter, should the respondent fail to comply with the order of the Labour Court
within 30 days of the hearing date, the Labour Officer, will submit to the relevant court,
such order for registration.
(g) Upon submission of the order to the relevant court for registration, it shall have the same
effect for purposes of enforcement, as any civil judgment of that court.

It must be noted that only if the labour officer rules against the employer or any person will he or
she be required to take the ruling for confirmation to the Labour Court. Once the ruling is
confirmed it can then be registered with either the High Court or Magistrates Court for
enforcement purposes.

8.6.2 Arbitration

Madhuku (2015, p.358) defines arbitration as a procedure whereby a third party (individual
arbitrator, board of arbitrators or arbitration court), not acting as a court of law, is empowered to
take a decision which disposes of the dispute. It entails a contested hearing where parties present
evidence and argument to a third party, followed by the arbitrator’s decision known as an arbitral

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award. The Labour Act provides for two forms of arbitration, namely voluntary arbitration and
compulsory arbitration.

(a) Voluntary arbitration

This form of arbitration arises under sections 93(1) and 93(b) of the Labour Act as amended. In
the first instance, under section 93(1) of the LA, parties may agree to forego conciliation and opt
for voluntary arbitration. In the second scenario, under section 93(5) (b) of the Labour Act as
amended, parties may agree after the issuance of a certificate of no settlement by a labour officer
to refer their dispute to voluntary arbitration. The common denominator in both instances is that
this form of arbitration arises from the agreement of the parties. Voluntary arbitration is not
governed by the Labour Act, but the Arbitration Act (Chapter 7:15). The parties determine the
following issues: terms of reference, appointment of arbitrators and their number, procedure to
be adopted during arbitration, place of arbitration and language to be used among other issues.
On conclusion of the arbitration proceedings, the arbitrator hands down an award in writing, with
reasons upon which it is based. The award can thereafter be enforced by registering it with either
the Magistrates Court or High Court depending with its monetary value (Kasuso, 2015). A party
aggrieved by a decision of an arbitrator in voluntary arbitration can only challenge the award by
making an application for the setting aside of the award in the High Court. The application is
made in terms of Article 34 of the Model Law to the Arbitration Act. In addition, a voluntary
arbitration award can only be set aside on the basis of the grounds in Article 34 (2) of the Model
law to the Arbitration Act which include among others, a party to the arbitration agreement
lacked capacity, no proper notice of appointment of arbitrator and arbitral proceedings was
given; award dealt with a dispute which cannot be subject to arbitration and the award is against
public policy.

(b) Compulsory arbitration

It arises only after the failure of conciliation and the issuing of a certificate of no settlement in
terms of section 93(5) (a) of the Labour Act as amended. The dispute must be a dispute of
interest and the parties must be engaged in an essential service. In terms of section 98(11) of the
Labour Act, once a dispute of interest has been referred to for compulsory arbitration, no
collective job action in respect of the dispute may be engaged in. The procedure in compulsory
arbitration is regulated in section 98 of the Labour Act. In terms section 98(3) of the Labour Act,
before a dispute is referred to compulsory arbitration parties must be afforded an opportunity to
make representations, especially on terms of reference. The parties do not choose an arbitrator
but the Labour Officer appoints an arbitrator from a list of arbitrators prepared by the Minister of
Labour (section 98(5) of the Labour Act). The annual appointment, fees to be charged and
ethical conduct of these arbitrators is regulated by the Labour (Arbitrators) Regulations, 2012.
Section 98(2) of the LA provides that any matters not covered by the section 98 of the Act in

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respect of arbitration proceedings, are regulated by the Arbitration Act. For instance, the conduct
of the hearing and making of an award are issues not covered by the Labour Act and in such
situations the Arbitration Act applies.

An arbitral award made under compulsory arbitration can only be challenged in the Labour Court
on appeal only on questions of law. See section 98(1) of the Labour Act, Zimbabwe Education
Scientific, Social and Cultural Workers Union v Welfare Educational Employers Institutions
Association SC 11/13, Mbisva v Rainbow Tourism Group Ltd 2009 (2) ZLR 33 (S). To enforce,
an arbitral award made under section 98 of the Labour Act, a party to whom it relates must
submit it for registration to the Magistrates Court or High Court depending on the quantum of the
award (section 14 and 15 of the Labour Act). For a detailed discussion of purpose of section 98
of the Labour Act, procedure for registering an award, documents which must be submitted when
registering the award, effect of registering an award and recourse against an arbitral award see
Kasuso, T.G. (2015), Registration and enforcement of arbitral awards made under compulsory
arbitration, Midlands State University Law Rev (2) 7-29.

8.7 Labour Court

In order to fully comprehend the Labour Court adjudication system in Zimbabwe, it is imperative
to consider the historical development of the court. The main argument justifying interrogating
the historiography is that it clearly shows the evil that the legislature sought to remedy when it
established the Labour Court. It also provides useful guidelines in interpreting current provisions
in the Labour Act dealing with the exclusive jurisdiction of the Labour Court. Prior to March
2003, the Labour Court was known as the Labour Relations Tribunal (the Tribunal), which was
established in section 83(1) of the Labour Relations Act, 1985 as a special court of record with
jurisdiction over labour and employment matters. It sat at the apex of labour dispute resolution
machinery under the Labour Relations Act, 1985 (Gwisai, 2006). The Tribunal was made up of
the Chairman, Deputy Chairman and not fewer than two and not more than four other members
(section 83(2) (a)-(c) of the Labour Relations Act, 1985). The Chairman was appointed by the
President and was a person who was qualified to be a judge of the High Court. The Deputy
Chairman was also appointed by the President and was a person who was registered as a legal
practitioner. The other members of the Tribunal were qualified legal practitioners or persons with
experience in labour relations.

In exercising its functions, the Tribunal could be constituted by a single member or more,
assisted by one or more assessors. The Tribunal had no enforcement mechanisms of its own and
appeals on a question of law from a decision of the Tribunal lay to the Supreme Court.
Jurisdiction of the Tribunal was set out in section 89 of the Labour Relations Act, 1985 which
provided as follows:
The Tribunal shall exercise the following functions –
(a) hearing and determining appeals in terms of any provision of this Act which provides for an
appeal to the Tribunal; and

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 (b) hearing and determining appeals from any determination, direction or decision of the
Minister in terms of section twenty-five, fifty-one, seventy-nine or eighty-one,
(c) hearing and determining matters referred to it by the Minister in terms of this Act, and
(d) doing such other things as may be assigned to it in terms of this Act or any other enactment.

The Tribunal was a creature of statute with limited jurisdiction over matters that were not only
defined but were also determinable in terms of the Labour Relations Act, 1985. Under the old
constitutional order judicial authority in Zimbabwe vested in the Supreme Court, the High Court
and such other courts subordinate to the Supreme Court and the High Court as may be
established by the legislature. Section 14 of the High Court Act (Chapter 7:06) clothed the High
Court with full original civil jurisdiction over all persons and over all matters within Zimbabwe.
On the basis of these provisions questions were frequently raised by the courts on the jurisdiction
of the Tribunal vis-à-vis that of the High Court. Specifically, it was questioned whether or not
the effect of section 89 of the Labour Relations Act, 1985 was to oust the jurisdiction of the High
Court in labour disputes falling under that provision?

Two schools of thought emerged from the decisions of the superior courts. The first school of
thought accepted that the Tribunal did not have exclusive jurisdiction over matters enumerated in
section 89. Okpaluba (1999) defines the term exclusive jurisdiction as follows:
The term “exclusive” implies, no other court has jurisdiction with regard to that same subject
matter. In other words, the jurisdiction over the specified subject matter or person pertains only to
that court that is vested with jurisdiction and would not admit of any other court to participate or
share in that jurisdiction. The court having exclusive jurisdiction exercises the power to
adjudicate the action over the subject matter or person thereby granted it by legislation to the
exclusion of all other courts.
The Tribunal was not a superior court with inherent jurisdiction like the High Court. Under the
common law, it is a well-recognised rule of statutory interpretation that, in order to oust
jurisdiction of courts with inherent jurisdiction, it must be clear that such was the intention of the
legislature. There was nothing in section 89 of the Labour Relations Act, 1985 that showed that
the intention of the legislature was to give the Tribunal exclusive jurisdiction over labour matters
and oust jurisdiction of the High Court. Therefore, a person whose dispute was covered under the
Labour Relations Act, 1985 could by-pass its statutory remedies and approach the High Court
directly under its original jurisdiction. In other words, the Tribunal and the High Court shared
concurrent jurisdiction over labour disputes specified in section 89. Concurrent jurisdiction refers
to where more than one court shares the authority to adjudicate over the same subject matter.
This position was summarised in Dzikiti v United Bottlers 1998 (1) ZLR 389 as follows:
One is therefore able to state the following clear principles. An aggrieved employee has an
unfettered election whether to pursue a cause of action arising from employment according to the
common law or through the domestic and statutory procedures appointed. Even when he has
chosen, or been compelled, to submit to the domestic procedures, he is not obliged to exhaust
those remedies before praying for relief from the High Court.
This position was not surprising considering that the Constitution, 1980 viewed the Tribunal as a
subordinate court to the High Court. In addition, the High Court had powers to review decisions

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of the Tribunal. Gwisai (2006) argues that the effect of this approach was to allow the High
Court to ‘cannibalise the Labour Relations Tribunal, subvert the substantive rights and benefits
given to workers by the Labour Relations Act and take away powers expressly granted the
Tribunal by the Act.’

The second approach was to the effect that litigants did not have an open and unhindered choice
to approach the High Court or the Tribunal but were compelled to exhaust domestic remedies
under the Labour Relations Act, 1985 before approaching the High Court. In few instances, the
High Court declined jurisdiction on the basis that a litigant had not exhausted domestic remedies
under the Labour Relations Act, which included approaching the Tribunal (Biti, 2005). This was
designed to avoid inundating the superior courts with matters that could easily be resolved by
dispute resolution mechanisms established in terms of the Labour Relations Act, 1985. However,
the High Court could only decline jurisdiction where domestic remedies were capable of
providing an effective redress and where the unlawfulness alleged had not been undermined by
the domestic remedies themselves (see Girjac v Mudzingwa 1999 (1) ZLR (S); Tutani v Minister
of Labour Manpower Planning and Social Services & Others 1987 (2) ZLR 88; Musandu v
Chairperson of Cresta Lodge Disciplinary and Grievance Committee HH 115/94; Cargo
Carriers (Pvt) Ltd v Zambezi & Others 1996 (1) ZLR 613 (S); Manyanda v PTC 1999 (2) ZLR
81 (H)). Therefore, a litigant had an obligation to exhaust domestic remedies before approaching
the High Court unless there were good reasons for approaching the High Court directly.

Both approaches were not satisfactory. The Tribunal’s adjudication system was based on
fairness, justice and equity, whilst the High Court was concerned with the common law. The
Tribunal was an informal court, not bound by any rules of procedure or evidence whose object
was to dispense simple, speedy and cheap industrial justice unhampered by legal jargon and
technicalities (Bhunu, 2004). Therefore, giving the High Court concurrent jurisdiction meant that
workers were being given inadequate justice. Furthermore, the approaches ‘were resulting in the
fragmentation and disempowerment of the Tribunal, enabling employers to resort to the
formalistic, legalistic and expensive superior courts, which favoured them and disadvantaged the
ordinary workers, thus achieving the opposite of the intended objective of the Labour Relations
Act’ (Gwisai, 2004). Judges of the High Court were also given wide discretion to accept or
decline jurisdiction. This resulted in the development of an incoherent labour law jurisprudence.
It is against this background that the legislature saw it fit to establish the Labour Court which
replaced the Tribunal.

8.7.1 Locating the Labour Court in the hierarchy of courts under the Constitution
The Labour Court was established in March 2003 by the Labour Relations (Amendment) Act 17
of 2002 (Amendment Act, 2002). The renaming of the Tribunal to Labour Court signified a
movement towards a more formalised labour adjudication system. Not only did the Amendment
Act, 2002 replace the Tribunal with the Labour Court but it also renamed the Labour Relations
Act, 1985 to the Labour Act. However, unlike the superior courts, the Labour Court was not
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provided for under the 1980 Constitution, save for it being referred to as a subordinate court. On
the 22nd of May 2013, Zimbabwe enacted a new Constitution entitled Constitution of Zimbabwe
Amendment (No. 20) Act 2013. It superseded the 1979 Constitution which had become outdated,
bulky, unclear and inaccessible given that it had been amended a record nineteen times during its
three decades of existence (Manyatera, 2014).

The 2013 Constitution creates a hierarchical judicial system and its section 162 provides that
judicial authority in Zimbabwe is vested in the following courts: the Constitutional Court, the
Supreme Court, the High Court, the Labour Court, the Administrative Court, magistrates courts,
customary law and local courts and other courts established by or under an Act of Parliament. At
the apex of this judicial system sits the Constitutional Court and its decisions are binding on all
other lower courts. Below the Constitutional Court is the Supreme Court. It is the final court of
appeal in respect of all disputes which do not raise constitutional matters. The Supreme Court
has appellate jurisdiction only and entertains appeals from the High Court, Labour Court,
Administrative Court and other specialist courts established by statute. It is followed by the High
Court. In terms of section 170 of the Constitution, the High Court is a superior court with
original jurisdiction over all criminal and civil matters in Zimbabwe. In addition, the High Court
has jurisdiction to supervise and review decisions of subordinate courts such as magistrates
courts and other tribunals. It also has jurisdiction to decide constitutional matters except those
the Constitutional Court may decide and has appellate jurisdiction as may be conferred upon it
by the legislature. In confirming the superiority of the Constitutional Court, the Supreme Court
and High Court, section 176 of the Constitution provides that these courts have inherent powers
to protect and regulate their own processes and to develop the common law or customary law,
taking into account the interests of justice and provisions of the Constitution.

The Constitution makes provision for two specialist courts. On the one hand, is the
Administrative Court which is established in terms of section 173 (1) of the Constitution. It has
jurisdiction over administrative matters as may be conferred upon it by statute. On the other
hand, is the Labour Court which is established in terms of section 172 (1) of the Constitution,
with jurisdiction over labour and employment matters as may be conferred upon it by the Labour
Act. On adoption of the 2013 Constitution, the Labour Court and Administrative Court enjoyed
the same status as the High Court. However, in 2017 the Labour Court and Administrative Court
were made subordinate courts to the High Court. Section 5 of the Constitution of Zimbabwe
(Amendment) (No. 1) Act 2017 amended section 174 of the Constitution by insertion of the
following provision, ‘For the purpose of this section and section 171 (1) (b), it is declared, for the
avoidance of doubt, that the Labour Court and Administrative Court are courts subordinate to the
High Court.’

Furthermore, these two specialist courts are now headed by a Senior Judge and not a Judge
President. The explicit subordination of the Labour Court to the High Court means that the
former court is an inferior court (Mucheche, 2019). The implication of this hyponymy of the
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Labour Court is discussed in detail under jurisdiction of the Labour Court. The Labour Court
and the Administrative Court are followed by the magistrates courts which preside over civil and
criminal cases as prescribed by statute. At the bottom of the hierarchy are customary law courts
presided over by Chiefs and Headmen. Their jurisdiction concerns primarily the application of
customary law. Finally, the Constitution leaves room for the establishment, and jurisdiction of
other subordinate courts and alternative dispute resolution mechanisms such as conciliation,
mediation and arbitration. In Zimbabwe, labour dispute resolution is mainly conducted through
these alternative dispute resolution mechanisms established by the Labour Act.

8.7.2 Composition of the Labour Court

The Labour Court is a single court with national jurisdiction. It sits in Harare, Bulawayo and
Gweru. The Labour Court is headed by a Senior Judge and constituted by as many Judges as may
be appointed from time to time. Judges of the Labour Court are appointed through the same
process as judges of the High Court. For appointment as Judge of the Labour Court, a person
must be at least 40 years old and either be or have been a Judge of a court with unlimited
jurisdiction in civil or criminal matters in a country with a legal system based on Roman-Dutch
or English law and English is an official language or has been qualified to practise as a legal
practitioner for at least seven years and is currently so qualified to practise. It is not a
requirement that a person to be appointed a Judge of the Labour Court must have knowledge and
experience in labour law. This potentially undermines the purpose underlying establishment of
the Labour Court. Speedy social justice requires that specialised labour dispute resolution forums
be manned by Judges who are experienced and knowledgeable in labour and employment
matters. Gwisai (2006) takes the argument further and submits that the appointment process of
the Judges must not be restricted to public interviews by the Judicial Service Commission only
but must also include tripartite labour advisory bodies representing the key stakeholders in
labour relations. All the same, it should be noted that Judges should have some minimum
standards and skills in dispensing justice. Elitism in judicial appointments often eventually
shapes the jurisprudence developed by a court.

Although the Constitution now uses the term Senior Judge and Judges of the Labour Court, the
Labour Act once referred to them as Senior President and Presidents of the Labour Court. These
terms confused the generality of the public and were not in conformity with regional and
international titles. Therefore, the Labour (Amendment) Act No. 5 of 2015 aligned the Labour
Act with the Constitution by deleting all references to President. Judges of the Labour Court also
enjoy conditions of service similar to those of Judges of the High Court. However, the
Constitution Amendment (No. 1) Act, 2017 has since subordinated the Labour Court to the High
Court. Section 174(2) provides that, ‘In conformity with section 188(4) of the Constitution, the
salaries, allowances and other benefits of judges of the Labour Court and Administrative Court
holding or acting in office as such on the date of commencement of this Act shall not be
reduced.’ This provision makes it clear that Judges of the Labour Court appointed after the 7 th of
September 2017 when the Constitution Amendment Act, 2017 became effective, can be
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appointed on less favourable conditions of service. This is despite the fact that these Judges
possess the same qualifications with High Court Judges and they go through the same rigorous
appointment process. This selective treatment arises from the fact that they are Judges of a
subordinate court. Indeed, all Judges are equal but some are more equal than others. It is
submitted that this discriminatory approach to the status of Judges is patently unfair and
unconstitutional (Mucheche, 2019). It has the potential of impacting on the efficiency of the
Judges.

In discharging their duties Judges of the Labour Court may be assisted by assessors. The
assessors are drawn from a list prepared by the Minister of Labour of not less than ten persons
who have knowledge and experience in labour relations. A sitting of the Labour Court may be
constituted by one or more Judges who may sit with one or more assessors (section 90 of the
Labour Act). Assessors have no say on questions of law or any question as to whether a matter
for decision is a question of fact or of law or any question as to the admissibility of evidence
(Madhuku, 2015). They can only vote on issues to do with questions of fact. In the event that the
Labour Court is constituted by two or more Judges, questions of law and fact shall be by
majority decision (section 90 of the Labour Act). However, where opinion of the Judges is
equally divided then the decision of the Senior Judge of the Labour Court shall be the decision of
the court. Judges of the Labour Court may also make rules for the Court and the rules shall not
have effect unless approved by the Chief Justice.

8.7.2 The exclusive jurisdiction of the Labour Court

The Labour Court is a creature of statute. Its functions, powers and jurisdiction are circumscribed
in section 89(1) and 89(6) of the Labour Act which provides as follows:
(1) The Labour Court shall exercise the following functions –
(a) hearing and determining applications and appeals in terms of this Act or any other
enactment;
(b) hearing and determining matters referred to it by the Minister in terms of this Act;
(c) referring a dispute to a labour officer, designated agent or a person appointed by the Labour
Court to conciliate the dispute if the Labour Court considers it expedient to do so;
(d) appointing an arbitrator from the panel of arbitrators referred to in subsection (6) of section
ninety-eight to hear and determine an application;
(d1) exercise the same powers of review as would be exercisable by the High Court in respect of
labour matters;
(e) doing such other things as may be assigned to it in terms of this Act or any other enactment.
(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and
determine any application, appeal or matter referred to in subsection (1).

The purpose of section 89(1) and (6) and of the Labour Act is to decisively deal with the
controversies which existed during the era of the Tribunal (Gwisai, 2006). Therefore, the
memorandum which accompanied the Labour Relations (Amendment) Act 2002, which
established the Labour Act, made it clear that, the Labour Court will have exclusive original
jurisdiction and no court other than the Labour Court may hear or determine matters in section

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89(1) in the first instance. The Labour Act adopts the total ouster approach whose import is that
the Labour Court has jurisdiction in the first instance to hear and determine matters enumerated
in section 89(1) of the Labour Act, to the exclusion of all other courts. If a matter is not so
specified, then the Labour Court has no jurisdiction at all. The ouster provision in section 89(6)
of the Labour Act means that the Labour Court has jurisdiction in all matters where the cause of
action and the remedy for that cause of action are provided for in the Act (see Medical
Investments Ltd v Pedzisayi 2010 (1) ZLR 111 (H); DHL (Pvt) Ltd v Madzikanda 2010 (1) ZLR
(H) 204; Moyo N.O v Gwindingwi N.O & Another 2011 (2) ZLR 368 (H); Matongo v Midlands
State University HH 174/13; Nyahora v CFI Holdings (Pvt) Ltd 2014 (2) ZLR 607 (S);
ZIMASCO (Pvt) Ltd v Marikano 2014 (1) ZLR 1 (S); UZ-UCSF Collaborative Research
Programmes in Women’s Health v Shamuyarira 2010 (1) ZLR 127 (S), Plaza Hotel (Pvt) Ltd v
Marimbita & Another 2007 (1) 80 (H); Border Timbers (Pvt) Ltd v Export Processing Zones
Labour Board & Others 2009 (2) ZLR 308 (S)). In Sibanda & Others v Martindale Trading
(Pvt) Ltd t/a Lyons HH 131/04, Makarau J summarised the position as follows:
For the Labour Court to enjoy exclusive jurisdiction ousting the High Court and the other courts, the
parties, the subject matter, the remedy sought and the procedure for prosecuting such remedy, must be
expressly provided for in the statute creating the Labour Court and in addition the jurisdiction of the
other courts must, expressly, or by necessary implication, be excluded, and if that is not so then the
jurisdiction of the High Court and other courts is not ousted.

The critical terms in section 89(1) of the Labour Act are ‘in terms of this Act’ and ‘any other
enactment.’ These terms severely limit the jurisdiction of the Labour Court to matters
specifically referred to in the Labour Act or any other enactment conferring jurisdiction on the
Labour Court. This interpretation is confirmed in National Railways of Zimbabwe v Zimbabwe
Railways Artisans Union 2005 (1) ZLR 341 (S) in which it was held that:
There is, I think, judging from the cases which have come before us, a misconception generally held
by the Labour Court, namely that it is, in terms of section 89 of the Act, endowed with jurisdiction to
entertain all applications before it. Thus, before an application can be entertained by the Labour
Court, it must be satisfied that such an application is ‘an application in terms of the Act or any other
enactment.’ This necessarily means that the Act or the other enactment must specifically provide for
applications to the Labour Court. Thus the application and the remedies obtainable thereby must be
authorised in the Act.

However, in Tuso v City of Harare 2004 (1) ZLR 1 (H), Bhunu J held that section 89(1) and (6)
of the Labour Act gave the Labour Court exclusive jurisdiction in all labour matters in the first
instance. With due respect, this reasoning does not find support in the wording of section 89(1)
and (6). The jurisdiction of all other courts is expressly excluded in relation to matters spelt out
in section 89(1) of the Labour Act. It is not ousted and remains intact in respect of all other
matters. It is for this reason that in Nyahora v CFI Holdings (Pvt) Ltd 2014 (2) ZLR 607 (S), it
was held that the High Court remains vested with full and unimpeded jurisdiction to hear and
determine every labour matter, other than those specified in section 89 (1) of the Labour Act. In
light of the foregoing, Zimbabwean authorities have accepted that the Labour Court has no
jurisdiction to entertain the following labour matters: ordering the constitutional invalidity of any

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law, granting declaratory orders, ordering a mandamus, granting interdicts, to hear an appeal or
review from voluntary arbitration and determining delictual claims or common law contractual
labour disputes. See Agribank v Machingaifa & Another 2008 (1) ZLR 244 (S); Mushoriwa v
Zimbank 2008 (1) ZLR 125 (H); UZ-UCSF Collaborative Research Programme in Women’s
Health v Shamuyarira 2010 (1) ZLR 127 (S) Nyahora v CFI Holdings (Pvt) Ltd 2014 (2) ZLR
607 (S); PG Industries (Zim) Ltd v Machawira 2012 (1) ZLR 552 (H); Mazarire v Old Mutual
Shared Services (Pvt) Ltd HH 187/14; Zimbabwe Education Scientific, Social and Cultural
Workers Union v Welfare Institutions Employers Association 2013 (1) ZLR 187 (S); Reserve
Bank of Zimbabwe v Maturure HH 152/14.These matters are not specified in section 89(1) of the
Labour Act. Therefore, a litigant in such matters has to approach the High Court which is clothed
with inherent and original jurisdiction over all matters. In other words, the Labour Court has no
exclusive jurisdiction over all labour matters. Its exclusive jurisdiction is limited to matters in
section 89(1) of the Labour Act.

8.7.3 Renascence of concurrent jurisdiction

The enactment of the 2013 Constitution has brought with it fresh jurisdictional tension between
the High Court and Labour Court. Before the enactment of the 2013 Constitution section 13 of
the High Court Act (Chapter 7:06) conferred the High Court with full original civil jurisdiction
over all persons and over all matters within Zimbabwe. Since original jurisdiction of the High
Court was conferred by statute and the common law, it could be ousted by statute (Madhuku,
2015). For instance, section 89(6) of the Labour Act ousted the jurisdiction of the High Court in
labour matters specified in section 89(1) of the Act. It has been established above that the
original jurisdiction of the High Court is no longer a matter of the High Court Act and the
common law. Section 171(1) (a) of the Constitution now provides that the High Court has
original jurisdiction over all civil and criminal matters throughout Zimbabwe. Madhuku (2015),
argues that the effect of this provision is as follows:
This provision means that it is unconstitutional and therefore invalid to oust the jurisdiction of the
High Court in any matter, including labour matters. Where the Constitution or other enactment
creates a specialist court, such as the Labour Court, this provision gives the High Court concurrent
jurisdiction over those matters allocated to a specialist court.

A review of the interpretation of section 171(1) (a) of the Constitution by the High Court
confirms the existence of two divergent approaches. The first approach is to the effect that
section 171(1) (a) of the Constitution restored concurrent jurisdiction. The genesis of this
controversial approach is the case of Confederation of Zimbabwe Industries v Mbatha HH
125/15. In this case the Applicant approached the High Court with an application for the setting
aside of an arbitral award which awarded the Respondent damages in lieu of reinstatement. The
application was made in terms of Article 34 of the UNCITRAL Model law which is a schedule
to the Arbitration Act (Chapter 7:15). This was despite the fact that the arbitral award was a
product of compulsory arbitration under the Labour Act. Section 98(10) of the Labour Act
provided that such an award could be challenged on appeal in the Labour Court on a question of

149
law. The Respondent objected to the jurisdiction of the High Court on the basis that the Labour
Court had exclusive jurisdiction to entertain appeals against arbitral awards made under
compulsory arbitration. The court rejected the Respondent’s argument and held that section
171(1) (a) of the 2013 Constitution of Zimbabwe had reinstated the jurisdiction of the High
Court on labour matters which had been ousted by provisions of section 89(6) of the Labour Act
and there was nothing that barred the High Court from exercising its inherent jurisdiction.
Manthonsi J concluded that:
To the extent that the Constitution overrides any Act of Parliament, there can scarcely be any doubt
that s171 (1) (a) overrides s89(6) of the Labour Act. What this means is that by clear constitutional
provision this court has original jurisdiction over all matters including those of a labour nature where
prior to the new constitutional order, the Labour Court enjoyed exclusively.
The basis of this reasoning by the Court is that section 171(1) (a) of the Constitution does not
allow the taking away of the jurisdiction of the High Court by the legislature and its allocation to
another court. What the legislature can only do is to create a specialist court with concurrent
jurisdiction.

Subsequent decisions by the High Court further strengthened the High Court’s concurrent
jurisdiction over labour matters specified in section 89(1) of the Labour Act. In Kuchena v
Scientific and Industrial Research and Development Centre HH 180/16, Chigumba J reaffirmed
that the effect of section 171(1) (a) of the Constitution is to clothe the High Court with
concurrent jurisdiction with the Labour Court to deal with purely labour matters at first instance.
She however reiterated that the High Court as a creature of inherent jurisdiction, can decline to
exercise its jurisdiction in favour of a litigant for any reason it deems fit or in the interests of
justice. For instance, jurisdiction could be declined where litigation has already been commenced
in dispute resolution forums established under the Labour Act, including the Labour Court. In
such circumstances a litigant would have to exhaust domestic remedies. Therefore, the issue is
on the legal principles which determine whether or not the High Court may exercise jurisdiction
in labour matters (Madhuku, 2015). See also Capri (Pvt) Ltd v Maponga HH 92/15; Chitiki v
Pan African Mining (Pvt) Ltd HH 656/15; Water and Allied Workers Union of Zimbabwe v City
of Harare HH 238/15; Mazarire v Old Mutual Shared Services (Pvt) Ltd HH
187/14.Furthermore, it has also been suggested that the High Court may review proceedings of
the Labour Court. This is despite section 89(1) (d1) of the Labour Act giving the Labour Court
the same powers of review as would be exercisable by the High Court. It was noted that the
Constitution (Amendment) (No. 1) Act, 2017 subordinated the Labour Court to the High Court.
Section 171(1) (b) of the Constitution provides that the High Court has jurisdiction to supervise
magistrates courts and other subordinate courts and to review their decisions. On the basis of this
provision it was suggested in Jongwe v National Foods Limited & Another HB 147/18, that the
High Court as a superior court has jurisdiction to review decisions of the Labour Court. In any
event there is nothing in the Labour Act itself that indicates anything to the contrary.

It is submitted that the above interpretation of section 171(1) of the Constitution results in an

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untenable and irrational situation. It is a regression to the Tribunal era which was characterised
by forum shopping, cumbersome and expensive labour dispute resolution. It defeats the
legislature’s intention of creating specialist courts and it questions State’s decision to invest
public funds in establishment and maintenance of the Labour Court. This favours capitalistic
jurisprudence as access to labour justice is for the usually rich employees. In light of the
foregoing some High Court Judges have questioned the correctness of decisions reinstating the
concurrent jurisdiction of the High Court in labour matters specified in section 89 (1) of the
Labour Court. In Nyanzara v Mbada Diamonds (Pvt) Ltd 2016 (1) ZLR 195 (H), the Applicant
filed a court application for payment of wages and benefits on termination of employment. The
application was opposed on the basis that the matter was purely a labour matter governed by
section 13 of the Labour Act and as such the High Court had no jurisdiction to entertain the
matter. The Applicant contended that the High Court had jurisdiction by virtue of section 171(1)
(a) of the Constitution which had restored the jurisdiction of the High Court in labour matters. Its
effect was to override section 89 (6) of the Labour Act. Justice Chitapi disagreed with this
interpretation. He stated that apart from establishing the High Court with inherent jurisdiction,
the Constitution in section 163 and 172 also established the Labour Court. The Labour Court
unlike the High Court does not enjoy inherent jurisdiction but section 172 (2) of the Constitution
gives it jurisdiction over matters of labour and employment as may be conferred by statute. The
Labour Act in section 89(1) and (6) provided for such matters in which the Labour Court has
exclusive jurisdiction. He then proceeded to state as follows:
What the legislature has done and acting by virtue of powers granted to it by the Constitution is to
circumscribe matters of labour which the Labour Court shall exercise exclusive jurisdiction in the
first instance to the exclusion of other courts which of necessity must include the High Court. I do not
read s171 (1) (a) of the Constitution which provides for original jurisdiction of the High Court over
all civil matters as conflicting with s89 (6) of the Labour Act. In my reasoning, an exercise of original
jurisdiction over a matter does not mean that the exercise of such jurisdiction, original as it may be
called is to be exercised in a manner which usurps or defeats the intention of the legislature where the
legislature will have passed a law by virtue of powers given to it by the same Constitution.

Justice Chitapi advocated for a purposive interpretation of the Constitution and the Labour Act.
The Constitution itself recognised the existence of subordinate and special courts and gave them
jurisdiction over specific matters. There was nothing in section 171(1) (a) of the Constitution
which provided that the legislature cannot in providing the jurisdiction of the Labour Court give
exclusive jurisdiction over certain matters to that court and by implication thus limiting or
excluding jurisdictional powers of other courts to deal with such matters. Therefore, the High
Court declined jurisdiction on the basis that it was a labour matter falling under section 89(1)
which the Labour Court had exclusive jurisdiction. This approach was also followed by Justice
Makoni in Triangle Limited & Others v Zimbabwe Sugar Milling Industry Workers Union &
Others HH 74/16. She reasoned that provisions of the Constitution cannot be read in isolation. If
section 171(1) of the Constitution is read with section 172 it becomes clear that ‘all matters’ in
section 171(1) excludes matters over which a specialised court, such as the Labour Court is
established. The absurdity that will arise is that while the Labour Court is set up with elaborate

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mechanisms to deal with labour disputes, litigants will by-pass it and approach the High Court.
This would render the establishment of specialised courts nugatory. This would not have been
the intention of the legislature. See also Machote v Manpower Development Fund HH 813/15.

It is submitted that the purposive interpretation adopted by Justice Chitapi and Justice Makoni is
appealing. Section 171 of the Constitution cannot be read in isolation but must be read with other
constitutional provisions such as section 172 of the Constitution which establishes the Labour
Court. Although the Labour Court does not enjoy inherent jurisdiction the Constitution
acknowledges that it is a specialist court with jurisdiction over labour and employment matters as
may be provided for in an Act of Parliament. Section 89(6) of the Labour Act gives the Labour
Court exclusive jurisdiction in matters referred to in section 89(1). This jurisdiction is to the
exclusion of other courts, including the High Court. Therefore, there is no basis to read section
171(1) (a) of the Constitution as conflicting with section 89(6) of the Labour Act. The
Constitution itself does not in any way provide that it is illegal for the legislature to give the
Labour Court exclusive jurisdiction in certain matters to the exclusion of the High Court. As
correctly noted by Justice Makoni, ‘reference to all civil and criminal matters in section 171(1)
(a) of the Constitution excludes matters over which the Labour Court has jurisdiction.’ Any
interpretation to the contrary is not only specious in that it divests the Labour Court of the full
breadth of its oversight in labour matters but is also absurd as it renders it redundant and
nugatory (Kasuso, 2018). It would literally obliterate the Labour Court and undermine the
legislative intent of creating a specialist court. This creates a fertile ground for forum shopping
and parallel litigation. The Labour Court must be a one stop shop for labour matters and provide
finality in litigation involving labour matters. Otherwise there is no point in creating the Labour
Court in the first place.

8.7.4 Enforcement of Labour Court decisions

The Labour Court was deprived of the competence and power to enforce its own judgments. A
successful litigant must approach the traditional civil courts and register a Labour Court order for
enforcement purposes. Section 92B (3) of the Labour Act provides as follows:
Any party to whom a decision, order or determination relates may submit for registration the copy of
it furnished to him in terms of subsection (2) to the court of any magistrate which would have had
jurisdiction to make the order had the matter been determined by it, or, if the decision, order or
determination exceeds the jurisdiction of any magistrates court, the High Court.
Since the Labour Court has no enforcement mechanisms of its own, the rationale for registering
its orders is for enforcement purposes only. It is to convert an unenforceable order of the court
into a fully enforceable civil judgment of either the High Court or magistrates court and ensure
observance. The registration is purely an administrative process on the part of the registering
court which does not sit as a review or appeal court with jurisdiction to question the Labour
Court decision. See Chimango & Another v International Committee of the Red Cross HH 96/16;
Nduna v Proton Bakeries HH 164/15; Muneka v Manica Bus Company 2013 (1) ZLR 81 (H).
Therefore, a litigant in registration proceedings cannot seek, any other relief beyond registration

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of the Labour Court order.

Section 92B (4) of the Labour Act sets out the effect of registration of Labour Court orders. It
states that where a decision, order or determination has been registered, it shall have the effect,
for purposes of enforcement, of a civil judgment of the appropriate court. On registration, the
unenforceable Labour Court order is converted into a civil judgment of either the High Court or
magistrate court for purposes of enforcement. Despite the clear wording of section 92B (4) of the
Labour Court, the effect of registration of Labour Court judgments has generated diverse
pronouncements on the exclusivity and concurrency of the jurisdiction of the Labour Court and
High Court (Kasuso, 2020). The seeds for the controversy were sowed in Net One Cellular (Pvt)
Ltd v Net One Employees 2005 (1) ZLR 275 (S). Chidyausiku CJ held that the registration of
Labour Court judgments converts the determination into a judgment of the registering court for
all intents and purposes. This interpretation means that the Labour Court loses control of its own
judgment which is literally snatched by the civil courts. It is trite that execution of a judgment is
a process of the court which issued that judgment. It is only the registering court which has
power to control its own processes subject to its rules and grant any interim relief. This implies
that once a Labour Court judgment has been registered, the Labour Court cannot have any say on
its own judgment. The judgment can now be varied, rescinded, corrected or stayed by the
registering court. The position was aptly summarised in Zimbabwe Cricket Union v Muzamhindo
LC/H/315/13 as follows: ‘Once an award is registered with the High Court or Magistrates Court
it becomes an order of that court. Consequently, the power to stay that order rests on the court
which registered the award in question and the Labour Court has no jurisdiction.’ This line of
reasoning was also adopted in the following cases: Dhlodhlo v Deputy Sheriff Marondera &
Others 2011 (1) ZLR 416 (H); University of Zimbabwe v Jirira SC 6/13; Mvududu v ARDA 2011
(2) ZLR 440 (H), Rainbow Tourism v Kabasa SC 52/14.

It was established that section 89(6) of the Labour Act gives the Labour Court exclusive
jurisdiction in the first instance to hear and determine matters in section 89(1). However, once
the Labour Court has made a determination on any of the matters specified in section 89(1) its
jurisdiction is taken away and given to the registering court. With respect, this reasoning is not
only unclear but it is also premised on a loose and ill-defined ground which does not find support
in the Labour Act and the Labour Court Rules, 2017. Firstly, section 92B (4) is clear that the
purpose of registering Labour Court orders is for enforcement purposes only and not for all
intents and purposes. Secondly, section 92C of the Labour Act gives the Labour Court
jurisdiction to vary, correct and rescind any of its determinations despite registration. In addition,
Rule 41 of the Labour Rules, 2017 gives the Labour Court jurisdiction to stay execution of its
own decisions pending appeal, despite registration of such orders in terms of section 92B (3) of
the Labour Act. If these incidental issues to a Labour Court order still remain the province of that
court and not the registering court, it logically follows that the order is not converted into an
order of the registering court for all other purpose. See National Foods Ltd v Ngwaru & Others
2016 (1) ZLR 481 (H); Muneka v Manica Bus Company 2013 (1) ZLR (H) 81.
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Madhuku argues that the current framework clothes both the High Court and Labour Court with
concurrent jurisdiction to stay execution of a registered Labour Court order (Madhuku, 2015). In
applications for stay of execution, courts are enjoined to consider prospects of success on the
merits. This includes interrogating the merits of the Labour Court decision. Principles of equity
and social justice are always invoked when the Labour Court resolves labour disputes. It is the
only court endowed with the full authority to examine issues of equity and justice and it is
capable of developing its own jurisprudence based on equity. Civil courts such as the High Court
are formalistic and legalistic in nature and rely on the common law to determine disputes. It is
improper to give them jurisdiction to entertain applications for stay of execution of Labour Court
judgments which they would have registered. They do not have authority to examine issues of
equity and justice. In any event it encourages a multiplicity of proceedings, forum shopping and
inhibits the development of a uniform and coherent labour law jurisprudence by the Labour
Court. All incidental issues arising from a registered Labour Court judgment must be dealt with
by the Labour Court.

8.7.5 Appeals against Labour Court decisions – Role of the Supreme Court
The Constitution establishes the Supreme Court as the final court of appeal in respect of all
disputes which do not raise constitutional matters, including labour matters. Section 92F (1) of
the Labour Act provides that an appeal on a question of law only shall lie to the Supreme Court
from any decision of the Labour Court. A question of law involves the application or
interpretation of the law or what the correct legal test is. The best definition of what a question of
law is in Zimbabwe was laid down by Gubbay CJ in Muzuwa v United Bottlers (Pvt) Ltd 1994
(1) ZLR 217 (S) in which he stated as follows:
First, it means a question which the law itself has authoritatively answered to the exclusion of the
right of the court to answer the question as it thinks fit in accordance with what is considered to
be the truth and justice of the matter. Secondly, it means a question as to what the law is. Thus, an
appeal on a question of law means an appeal in which the question for argument and
determination is what the true rule of law is on a certain matter. And third, any question which is
within the province of the judge instead of the jury is called a question of law. I respectively
adopt this classification, although the third sense is of no relevance to a matter such as this.

A question of law can also arise if there is a serious misdirection on the facts. A gross
misdirection of fact arises where a court fails to appreciate a fact at all, or makes a finding of fact
contrary to the evidence or a finding of fact that is without factual basis or based on a
misinterpretation of facts. It also includes the giving of reasons that are bad in law or a decision
which is clearly wrong. See Mbisva v Rainbow Tourism Group Ltd 2009 (2) ZLR 342 (S); Farm
Community Trust v Chemhere SC 22/13; Mutsuta & Another v Cagar (Pvt) Ltd 2009 (2) ZLR
327 (S); Reserve Bank of Zimbabwe v Granger & Another SC 34/01; Hama v National Railways
of Zimbabwe 1996 (1) ZLR 664 (S); ZINWA v Mwoyounotsva SC 28/15. The second requirement
in section 92F (2) of the Labour Act is that a party seeking to appeal against a Labour Court
determination must obtain leave to appeal from the Judge or Judges of the Labour Court who
made the decision. In the absence of the Judge, leave can be sought from any Judge of the

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Labour Court. If leave is refused a party may seek leave from a Judge of the Supreme Court
(section 92F (3) of the Labour Act). The object of these provisions is to facilitate the expeditious
and effective resolution of labour disputes and finality in litigation (Gwisai, 2006).

Regrettably, the Supreme Court is a formal court, deeply seated in common law ethos. A
specialist Labour Appeal Court was the best suited final court of appeal in labour matters to
develop labour jurisprudence consistent with social justice and equity. Another disquieting
aspect arises from the fact that the noting of an appeal to the Supreme Court suspends the
decision appealed against. See Kingdom Bank Workers Committee v Kingdom Bank Financial
Holdings 2012 (1) ZLR 93 (H). The power of a court to order execution of its own orders
despite the noting of an appeal is founded in the common law doctrine of inherent jurisdiction.
The Labour Court is a creature of statute with no inherent jurisdiction. Therefore, it has no
jurisdiction to order execution of its own judgments pending appeal. A litigant has to approach
the Supreme Court, which has inherent jurisdiction to control its processes and seek leave to
execute a Labour Court order pending appeal. This calls the Supreme Court to examine issues of
equity and justice which it has little or no experience to adjudicate upon. The establishment of a
Labour Appeal Court would enhance the efficiency of the Labour Court and strengthen its
exclusive jurisdiction.

8.8 The Constitutional Court

Madhuku (2015), argues that in labour matters, the Constitutional Court has jurisdiction in the
following circumstances:
 If a constitutional matter arises in any proceedings in the Labour Court, the High Court or
Supreme Court or any other court dealing with a labour matter, it may be referred to the
Constitutional Court in terms of section 175(4) of the Constitution.
 If the High Court or Supreme Court makes an order of constitutional invalidity of any
aspect of labour law, that order requires confirmation of the Constitutional Court before it
has force.
 If on appeal in am labour matter, the Supreme Court makes a decision on the basis of a
legal rule that raises a constitutional matter, a party may take the decision to the
Constitutional Court.
 The development of, or failure to develop, the common law in labour law by the High
Court and Supreme Court in terms of section 176 may raise a constitutional matter for the
Constitutional Court.
For the approach of the Constitutional Court in determining whether a labour matter is a
constitutional matter see the following cases: Magurure v Infrastructure Development Bank of
Zimbabwe CCZ 9/17, Mushapaidze v St Annes Hospital & Others CCZ 18/17, Magurure &
Others v Cargo Carrires International Haulers (Pvt) Ltd t/a Sabot CCZ 15/16.

Activity 8.2

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 1. Define the term conciliation.
2. Describe the changes that have been brought about by the Labour (Amendment) Act to
conciliation of labour disputes in Zimbabwe?
3. Define the term arbitration.
4. Critically discuss the difference between voluntary arbitration and compulsory
arbitration.
5. ‘The Labour Court is a creature of statute whose jurisdiction is limited to the four
corners of the Labour Act.’ Discuss this statement.

8.9 Summary

Conflict is inevitable but it is also necessary and should not be viewed as destructive or harmful
only. The traditional view of conflict views it as undesirable and can be avoided contrary to the
modern view. Conflict levels range from intra-personal, inter-personal, intra-group and inter-
group. Conflict brings change, creativity and adaptation. Conflict in its ‘nasty’ state culminates
in industrial action such as boycotts, stay aways and strikes. Conflict management strategies
including third party intervention strategies namely conciliation, mediation and arbitration were
discussed in detail. This was followed by a discussion of adjudication of labour disputes in the
Labour Court. In particular, the unit reviewed composition and jurisdiction of the Labour Court,
enforcement of decisions of the Labour Court and appeals against decisions of the Labour Court.
The role of civil courts in labour adjudication such as the High Court, Supreme Court and
Constitutional Court was also discussed.

References

Bhunu, C.E. (2004), The jurisdiction of the Labour Court under the new Labour Act: The dawn
156
of a new era, The Kempton Makamure Labour Law Journal (1) 1.
Biti, T. (2005), Setting the cat amongst the pigeons: Jurisdiction of the Labour Court under the
new Labour Act’ The Kempton Makamure Labour Law Journal 10.
Gwisai, M. (2004), Jurisdiction of the Labour Court and Superior courts: Chikara kununa kudya
chimwe: Judicial subversion under the cloak of legality, The Kempton Makamure Labour Law
Journal 10.
Gwisai, M. (2001). Labour and Employment Law in Zimbabwe, Harare: Zimbabwe Labour
Centre.
Kasuso, T.G. (2018). Enforcement of Labour Court Judgments in Zimbabwe: Lessons and
Perspectives from Southern Africa, Industrial Law Journal 1435.
Kasuso, T.G. (2015). Registration and Enforcement of Arbitral Awards made under Compulsory
Arbitration, Midlands State University Law Rev 7-29.
Kasuso, T.G. (2020). The Exclusive Jurisdiction of the Labour Court over Matters of Labour and
Employment: The Case of Zimbawe, Festschrift in Honour of Professor Okpaluba.
Rycroft, A. & Jordaan, B. (1992), A Guide to South African Labour Law, Durban: Juta & Co.
Okpaluba, C. (1999), Labour adjudication in Swaziland: The exclusive jurisdiction of the
Industrial Court (1999) Journal of African Law (43) 184.
Madhuku, L. (2015). Labour Law in Zimbabwe, Harare: Weaver Press.
Mahapa, M. & Watadza, C. (2015). The dark side of Arbitration and Conciliation in Zimbabwe,
Journal of Human Resources Management and Labour Studies.
Manyatera, G. (2014) ‘The Constitution of the Republic of Zimbabwe: Commentary’ in
Wolfrum, R; Grote, R & Flanz G Constitutions of the Countries of the World, Oxford: Oxford
University Press.
Mucheche, C. (2014), ‘The Paradox of Parallel Jurisdiction of the Labour Court and High Court
in Labour Matters in Zimbabwe’ in Mucheche, C. A Practical Guide to Labour Law,
Conciliation, Mediation and Arbitration in Zimbabwe, Harare, Zimlaw Trust.
Sambureni, N.T. & Mudyabikwa, P. (2003). Introduction to Industrial and Labour Relations,
Harare: Zimbabwe Open University.
Uzhenyu, D. (2015). Introduction to Industrial and Labour Relations, Harare: Zimbabwe Open
University.
Van Niekerk, A. (2012). Law@work, Durban: LexisNexis.

UNIT 9

Trade Union Law and the Right to Organise

9.1 Introduction

Section 2 of the Labour Act (Chapter 28:01) defines a trade union as ‘any association or
organisation formed to represent or advance the interests of employees or class thereof in respect

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of employment.’ Therefore, a trade union is any organisation, whose membership consists of
employees, which seeks to organise and represent their interests, both in the workplace and
society. It seeks to regulate the employment relationship through the direct process of collective
bargaining with management (Sambureni, 2001). The Constitution of Zimbabwe in section 58
entrenches the right to freedom of association and assembly. A well-established aspect of this
right is the freedom to form, join and participate in the lawful activities of trade unions. A more
explicit recognition of the right right is in section 65(3) of the Constitution.

Trade unionism is a discipline worthy of study. Trade unions are of significance in modern
industrial society. Economically, trade unions are the means by which employers counteract the
inequality inherent in the employment relationship (Gwisai, 2006). Socially, trade unions
provide a platform for workers to socialise and promote industrial democracy (Rycroft &
Jordaan, 1992). Politically, trade unions provide a platform where workers learn to organise,
work in solidarity and develop political consciousness (Gwisai, 2006). With this in mind, this
unit unpacks the Zimbabwean legislative framework on trade union organisation. To put this
discussion in its proper perspective, the unit also considers the right to trade union organisation
under international law

9.2 Objectives

By the end of the unit, you should be able to:

 define the term trade union and explain their role in society
 critically evaluate international perspectives on trade union organisation
 analyse the legal framework for the regulation of formation and registration of trade
unions in Zimbabwe
 discuss the role of workers’ committees and their relationship with trade unions
 evaluate trade union organisation in the public sector
 explain employees’ right to freedom of association in terms of the Constitution and the
Labour Act and to apply the relevant principles in a practical situation
 explain different methods of acquiring organisational rights
 explain the process of dispute resolution relating to organisational rights

9.3 International Perspectives on Trade Unionism

Trade union organisation owes its origins to international human rights instruments which
recognise the right to freedom of association. The most prominent international standard is the
Universal Declaration of Human Rights 1948. Article 20(1) provides that everyone has the rights
to freedom of peaceful assembly and association. It also entrenches the negative freedom not to
associate in Article 20(2). At regional level the right is guaranteed in Article 10(1) of the African
Charter on Human and People’s Rights. In addition, the SADC Charter of Fundamental Social
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Rights 2003, recognises the right to freedom of association in Article 4. It urges member states to
create an enabling environment consistent with International Labour Organisation’s (ILO)
Conventions on freedom of association.

Zimbabwe is a member of ILO, a body which facilitates the provision of minimum labour
standards at international level. Key ILO core conventions ratified by Zimbabwe relevant to this
discourse are the Freedom of Association and Protection of the Right to Organise Convention 87
of 1948 and the Right to Organise and Collective Bargaining Convention 98 of 1948. The ILO
Convention on Freedom of Association and the Right to Organise is the principal source of
international labour obligations in relation to the right to freedom of association in the world of
work (Van Niekerk, 2012) Article 2 of this Convention provides that ‘workers without
distinction shall have the right to establish and, subject only to the rules of the organisation
concerned, to join organisations of their own choosing without previous authorisation.’ In broad
terms the convention protects the freedom of workers to form, join or participate in the activities
of associations of their choice, including trade unions. It includes, the right to organise
administration and activities and to formulate programmes, in full freedom, and without
interference by the State.

The SADC Charter of Fundamental Social Rights, 2003 also elaborates the right on freedom of
association to include, the right of workers to form trade unions of their choice for the promotion
and defence of their economic and social interest; the freedom of workers to join or not join trade
unions without any personal or occupational damage being thereby suffered by him or her and
the right of trade unions to negotiate and conclude collective agreements under the conditions
laid down by national legislation and practice (Article 4(a) – (c)). It also outlines organisational
rights for representative unions which include: right of access to employer premises; right to
deduct union dues; right to elect trade union representatives; right to choose and appoint full time
trade union officials; right of trade union leave and right of trade unions to disclosure of
information (Article 4(f) (i) – (ii)). These rights must be read with the Right to Organise and
Collective Bargaining Convention 98 of 1948.

Therefore, the right of workers to freedom of association and the right to organise is a
fundamental human right recognised in international law. International standards aside, there
are, of course, compelling justifications for the existence of trade unions. These include the
following:
 Power- according to the Maxist perspective, trade unions are the economic defence
organs of workers. They do countervail the employer’s power and balance the inequality
inherent in the employment relationship.
 Economic regulation – maximise wages and employment conditions of workers.
 Job regulation – trade unions facilitate the establishment of joint rule making system
which protects workers from arbitrary decisions by employers and promotes democracy

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 at the workplace.
 Social – trade unions provide employees with a platform to socialise and to express social
cohesion and aspiration or political ideology of its membership and seek to develop a
society which reflects this view.
 Political – trade unions provide a platform where workers learn to organise, work in
solidarity and develop political consciousness (Gwisai, 2006).
 Member services – provide a range of services or benefits to the individual member
especially to members in conflict with the law, for instance trade union representation.
 Self-fulfilment – to provide a mechanism whereby individuals may develop outside the
immediate confines of their jobs and participate in decision making processes.

9.4 Types of Trade Unions

The following are the common forms of trade union organisation:

 Craft unions
These consists of skilled people who pursue the same craft or trade.

 General unions
These bring together all categories of workers in a range of industries.

 Industrial unions
These organise all the employees with all levels of craft in a specific industry.

 Occupational or non-manual unions

These unions are concerned with the organisation of technical, clerical, professional, supervisory
and managerial staff separately from other employees.

9.5 The Structure of Trade Unions

Trade unions are usually staffed by full-time headquarters officials, headed by an Executive and
a President or a General Secretary. The headquarters staff give a range of advisory, legal, welfare
and social services and provide professional negotiations to take part in collective bargaining and
other negotiations with employers and employer organisations. The Executive of a trade union is
responsible for implementing union policy. This policy is determined by delegates to the annual
national conference of a trade union held annually. The delegates are elected by the membership
through the branch structure and vote on policy issues. The next tier in the structure is the district
or regional level, consisting of full-time paid officers. It also comprises of a committee of
delegates from local branches. They assist the branches by providing advice and can intervene in

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disputes between employers and union members. At the bottom is the local branch or grass root
level. It consists of union members at one work place. Usually, it is made up of workers’
committees’ representatives.

9.6 The Legal Framework of Trade Unions in Zimbabwe

The right to trade union organisation is derived from international law and is given effect to by
the Constitution and then the Labour Act.

9.6.1 The Constitution of Zimbabwe

Section 65 of the Constitution entrenches a set of labour rights which include the right to trade
union organisation (Kasuso, 2017). Section 65(2) the Constitution specifically provides that
‘Except for members of the security services, every person has the right to form and join trade
unions and employee or employers’ organisations of their choice, and to participate in the lawful
activities of those organisation.’ In addition, section 65 (5) (b) of the Constitution provides that
‘Except for members of the security services, every employee and employer has the right to
organise and form or join federations of such unions and organisations.’ This right is also
supplemented by the right to freedom of association and assembly in section 58 of the
Constitution.

Madhuku (2015) submits that a number of issues arise from the fundamental right to trade union
organisation in the Constitution. Firstly, the right is available to every person except for members
of the security services who include members of the Defence forces, Police force, intelligence
services and Prison and correctional services. Therefore, the right is available to employees in
both the private and public sector. Secondly, a trade union is given the rights to engage in
collective bargaining and to organise, which include the right of access of employees at the
workplace and the right to a check off system. Lastly, the freedom of association in section 58 of
the Constitution includes a right not to associate with others. Therefore, trade unions have a right
to decide on their membership provided they do not infringe the equality and non-discrimination
provisions of section 56 of the Constitution (Madhuku, 2015).

9.6.2 The Labour Act

The constitutional right to form or join a trade union of one’s choice is given effect to by the
Labour Act. Section 3(1) of the Labour Act provides that the Act applies to all employers and
employees except those whose conditions of employment are otherwise provided for in the
Constitution. Therefore, provisions in the Labour Act on trade union organisation apply to all

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employees in the private sector including those in parastatals, State universities and local
authorities. They do not apply to civil servants who are regulated by the Public Service Act, the
Health Services Act and a miscellany of labour legislation and regulations (Kasuso, 2017).

The starting point in the Labour Act is section 4 titled ‘employees’ entitlement to membership of
trade unions and workers’ committees.’ It provides as follows:
(1) Notwithstanding anything contained in any other enactment, every employee shall, as between
himself and his employer, have the following rights –
(a) the right, if he so desires, to be a member or an officer of a trade union;
(b) where he is a member or an officer of a trade, the right to engage in the lawful
activities of such trade union for the advancement or protection of his interest;
(c) the right to take part in the formation and registration of a trade union;
(d) the same rights, mutatis mutandis, as are set out in paragraphs (a), (b) and (c) in
relation to workers’ committees.
(2) Every employee shall have the right to be a member of a trade union which is registered for
the undertaking or industry in which he is employed if he complies with the conditions of
membership.
(3) No term or condition of employment and no offer of employment shall include a requirement
that an employee or perspective employee shall undertake –
a) if he is a member or officer of a trade union or workers’ committee, to relinquish his
membership or office of such trade union or workers’ committee; or
b) not to take part in the formation of a trade union or workers committee;
and any such requirement shall be void.

Related to section 4 is section 7 of the Labour Act, which protects an employee’s right to
democracy in the workplace and unfair labour practices by trade unions and workers’ committee
in section 9 of the Labour Act. Emerging from section 4 of the Labour Act is that the employee
is not restricted to membership of a registered trade union nor is he only entitled to be a member
of a trade union which is registered for the undertaking or industry in which he is employed. The
right exists whether or not the trade union is registered (Madhuku, 2015). In addition, the
employer has a no right to determine the trade union which an employee may join (POSB v
Chimanikire & Others 2005 (1) ZLR 285 (H)). An employee can even join a trade union
registered for an industry or undertaking different from the one in which he or she is employed.
(Zimbabwe Banking and Allied Workers Union & Another v Beverley Building Society & Others
2010 (1) ZLR 292 (S)). Importantly, an employee cannot waive his right to form or join or
participate in the activities of a trade union as provided for in section 4 (3) of the Labour Act.
Managerial employees are also entitled to form or join a trade unions (Madhuku, 2015). Section
4(4) of the Labour Act affords employees remedies for infringement or threatened infringement
of the right to trade union organisation. These include an order directing the employer to cease
the infringement (interdict) and an order for damages for any loss or prospective loss arising
from the infringement.

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Activity 9.1
Tamie is employed as a marketing manager at Image Magic Promotions. Tamie is an active
member of Progressive Union of Zimbabwe (PUZ). In 2017 she was elected as a trade union
representative for PUZ. However, the employer informed her that she had to decline her election
within the union because she was part of management.

Advise PUZ and Tamie on the matter with reference to relevant case law and legislation.

9.6.3 Formation and registration of trade unions

Section 27(1) of the Labour Act gives any group of employees the right to form a trade union. A
similar right is available to employers in section 27(2), which provides that any group of
employers may form an employer’s organisation. Section 27(3) of the Labour Act then provides
that any group of trade unions or employers organisations may form a federation. The Labour
Act provides for both the formation and registration of trade unions. These are two separate acts
as a trade union can be formed and elect to exist as an unregistered trade union (Madhuku,
2015).

(a) Formation

A trade union is a voluntary association of two or more persons formed to represent or advance
the interests of any employees or class thereof in respect of their employment. A group of people
come together and agree to form a voluntary association and the agreement need not be in
writing (Madhuku 2015). However, section 28(1) (b) of the Labour Act prescribes that within six
months of its formation the trade union must adopt a written Constitution providing for:
 Qualifications for membership and membership fees.
 Right of any person to membership if he is prepared to abide by the rules and conditions
of membership.
 Number of office bearers, their functions, powers, appointment or election.
 The holding of annual general meetings.
 Re-election and re-appointment of office bearers.
 Conduct and procedure of meetings
 Prohibition of unlawful discrimination
 Amendment of the Constitution
 Winding up of the trade union

A trade union cannot raise funds before the adoption of a Constitution. In terms of Section 28(3)
of the Labour Act two copies of the adopted Constitution must be submitted to the Minister of
Labour within six months of formation of the trade union. In the event of an amendment of the
Constitution, it must be submitted to the Minister within one month. Gwisai (2006) submits that

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the requirements in section 28 are problematic, both jurisprudentially and constitutionally, as
they do interfere with the independence or operations of trade unions.

(b) Registration

Once a trade union has been formed it may apply for registration, if it so desires. In terms of
section 29(1) of the Labour Act registration of a trade union is not mandatory. However, section
30 of the Labour Act imposes a number of restrictions on unregistered trade unions, while
section 29(4) gives registered trade unions a motley of benefits. Section 33(1) of the LA provides
that an application for registration of a trade union must be lodged with the Registrar in the
prescribed form. The application must be supported by a copy of the Constitution, details of the
scope of the trade union, anticipated sources of funds for its operations and the following details
in section 34 (a) – (e) of the Labour Act:
 Name of the trade union or employers’ organisation or federation.
 Names and relevant particulars of persons intending to secure registration.
 The coverage of the proposed trade union or employers’ organisation or federation with
regard to the undertakings or industries concerned, with such exclusions as may be
intended, and
 The affiliates to, and the affiliations of, the trade union or employers’ organisation or
federation, including international, national or local unions, organisations or workers’
committees, and
 Sources of funds and materials, both current and anticipated, for organising the trade
union or employers’ organisation or federation, and the address of its bank.

In addition, section 35 of the Labour Act provides that a Constitution of a trade union which
seeks registration must make provision for:
 Consultation between the various governing bodies or branches of the trade union before
entering into a collective bargaining agreement or recommending collective job action.
 Keeping of books of accounts and the submission of such books of accounts for auditing
 The prohibition of the use of union or association dues of the trade union for
electioneering for the trade union or for political purposes.
 The maintenance of a register of members.
 The equitable sharing of the funds of the trade union with the branches of the trade union.
 The giving to any person who is refused membership or who is expelled of written
reasons for such refusal or expulsion.

Once the Registrar receives the application, he is obliged in terms of section 33 (2) of the Labour
Act to publish a notice in the Gazette. The 30 days’ notice is given to any interested person who

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wishes to make any representations regarding the registration to do so. On expiration of the 30-
day period, the Registrar may conduct accreditation proceedings as provided for in section 41 of
the Labour Act. The accreditation proceedings may be held at the instance of either the Registrar
if he considers them desirable, the Minister of Labour if he directs that they be held or where any
interested person has made a request that they should be held and the Registrar accedes to the
request. In the event that accreditation proceedings are to be held, the Registrar must in terms of
section 42 of the Labour Act give not less than thirty days’ notice of the proceedings. The notice
must be reduced to writing and published in the Gazette. The notice must state the subject of the
accreditation proceedings and the time and place of the proceedings.

The procedure at the accreditation proceedings is regulated by section 43 of the Labour Act. The
parties may appear in person or through their representatives and must be given an opportunity to
present their case. Upon completion of the accreditation proceedings the Registrar must in terms
of section 44 of the Labour Act, notify all interested parties who appeared at the proceedings in
writing of his decision, together with reasons for the decision. In granting or refusing the
application for registration, the Registrar must take into account factors outlined in section 45 of
the Labour Act and these include:
 Representations by employers and employees who might be affected, the Minister and
any member of the public likely to be affected.
 Desirability of affording the majority of the employees and employers within an
undertaking or industry effective representation in negotiations affecting their rights and
interests.
 The desirability of reducing to the least possible number, the number of entities with
which employees and employers have to negotiate.
 Whether representations made at any accreditation proceedings indicate that the trade
union will not be substantially representative.

The decision by the Registrar to register or not register a trade union or employer organisation
can be challenged in the Labour Court. Section 47 of the Labour Act affords the right of appeal
to any person aggrieved by the decision of the Registrar (ALB & Another v ZAIWU 1998 (2)
ZLR 196 (S)). The appeal must be filed within thirty days from the date on which the aggrieved
party was notifed of the decision against which he intends to appeal. In terms of section 48(2) of
the Act, the appeal does not suspend the operation of the decision appealed against. Upon
hearing the appeal, the Labour Court can confirm, vary or set aside the decision of the Registrar.
(See section 49 of the Labour Act and the following cases Agricultural Labour Bureau &
Another v Zimbabwe Agro-Industry Workers Union 1998 (2) ZLR 196 (S), Automotive and
Allied Workers’ Union v Motor Trade Workers Union 2006 (1) ZLR (S) and National Union of
Railwaymen v Zimbabwe Amalgamated Railways SC 8/1996). In terms of section 36 of the
Labour Act, on registration of a trade union, the Registrar shall enter in his register;
 The name of the trade union or employers’ organisation

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  Every undertaking or industry in respect of which the trade union or employer
organisation is registered; and
 Such other particulars as may be prescribed
A registered trade union will also be issued with a certificate of registration in the prescribed
form.

9.6.4 Consequences of registration and non-registration

Registered trade unions are entitled to a potpourri of rights provided for in the Labour Act.
Section 29 of the Labour Act grants registered trade unions the following organisational rights:
 A trade union becomes a body corporate which can sue or be sued in its own name and
can purchase, or acquire, hold or alienate property.
 It can be assisted by a Labour officer or Designated agent in its dealings with employers.
 The right of access to employees at the workplace.
 To be provided by employers with the names and other relevant particulars, including
particulars as to wages of all employees who are employed in the industry or undertaking
in which it is registered.
 To make representations to a determining authority or the Labour Court.
 To form or be represented on any employment council.
 To recommend and engage in collective job action.
 The right to levy and collect trade union dues.
 To act as an agent union in terms of section 31 of the Labour Act.
 Right to paid and unpaid union leave for its office bearers. This must be read with section
14B of the Labour Act.
 Right to engage in collective bargaining as read with section 104 (3) (c) of the Labour
Act.

In addition, section 29(4) (j) of the Labour Act provides that a registered union has the right to
exercise any other right or privilege conferred by the Act on registered trade union. The other
rights indirectly provided by the Labour Act include:
 Protection against acts of interference by employers (section 4, 7 and 9).
 Exclusive representation rights in workers’ committees (s23 (1)).
 Authority over its members and workers’ committees, including rights to
(i) Approve works council’s collective agreements (s25 (1)).
(ii) Approve strikes by a workers’ committee (s104 (3) (b)).
(iii) Suspend strikes of its members or a worker’s committees (sI11).
The rights or benefits available to registered trade unions are not available to unregistered trade
unions. They make it impossible for unregistered trade unions to survive (Gwisai 2006).

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9.6.5 Deregistration and variation of registration of trade unions

The variation, suspension or rescission of registration of a trade union is regulated by section 39

of the Labour Act. Registration of a trade union may be lost through the following means:
 Through section 39(1) of the Labour Act. Any interested person, including the trade
union itself, may apply to the Registrar for the variation, suspension or rescission of the
registration of a trade union. On receipt of the application the Registrar will proceed in
terms of section 40 of the Labour Act. He publishes the application in the Gazette, invite
interested persons to make representations on the matter within 30 days of publication of
notice and thereafter hold accreditation proceedings (Madhuku, 2017). The
representations are considered and the Registrar may rescind the registration of a trade
union. Section 40 (5) of the Labour Act provides that anyone dissatisfied with the
decision of the Registrar may appeal to the Labour Court.
 In terms of section 39(2) the Minister can direct the Registrar to hold accreditation
proceedings to determine whether or not the registration of the trade union should be
varied, suspend or rescinded if he is of the opinion that:
(i) The trade union no longer adequately represents the interests or area for which it was
registered, or
(ii) Has failed to perform any of its functions.
The decision whether or not to rescind the registration lies with the Registrar and not the
Minister. The decision of the Minister may also be challenged on appeal in the Labour Court in
terms of section 40(5) of the Labour Act.

Madhuku (2015) also identifies two further situations in terms of which registration can be
revoked. These include:
 In terms of section 120 of the Labour Act, the Minister may appoint an investigator if he
or she ‘has reasonable cause to believe that the property or funds of any trade union are
being misappropriated or misapplied or that the affairs of any trade union are being
conducted in a manner that is detrimental to the interests of its members as a whole.’ If
the investigator recommends deregistration, then the Minister will make an application to
the Labour Court seeking deregistration. The Labour Court will pronounce on the matter.
 In terms of section 107, disposal order issued by the Labour Court when a trade union is
involved in an unlawful collective job action may provide for rescission of the
registration of such trade union.
In addition to the above, it must be noted that a trade union is a voluntary organisation regulated
by a Constitution. Therefore, it can also voluntarily wind up in terms of its own constitution
(Gwisai, 2006).
Activity 9.2
1. Define the term trade union.
2. Discuss whether the recognition of employees’ right to trade unionism in the

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 Zimbabwean legal framework is consistent with international standards.
3. Identify four types of trade unions.
4. Explain in detail the requirements for the formation and registration of trade unions in
Zimbabwe.

9.7 Employee Organisations at Shopfloor level

Labour legislation recognises two shop floor institutions, namely workers’ committees and
works council. In this unit we discuss workers’ committees and in unit 10 we will discuss the
works council which is a forum of worker participation at the workplace.

9.7.1 Workers’ committees

The Labour Act makes provision for the right of employees to organise at shop floor level
through workers’ committees. Its provisions are inspired by the Workers Representatives
Convention 135 of 1971. Section 2 defines a workers’ committee as a workers’ committee
appointed or elected in terms of Part VI of the Act. Traditionally, a workers’ committee is an
employee organisation established by and composed exclusively of employees (Madhuku, 2015).
Section 23 (1) of the Labour Act gives employees employed by one employer the right to appoint
or elect a workers’ committee to represent their interests. Therefore, even in circumstances
where an employer has several plants, only one workers’ committee can be established by
employees. In addition, section 23(1) of the Labour Act provides that “Provided that no
managerial employee shall be appointed or elected to a workers’ committee, nor shall a workers’
committee represent the interests of managerial employees, unless such workers’ committee is
composed solely of managerial employees appointed or elected to represent their interests.” This
provision effectively provides for two types of workers’ committees namely:
 Workers’ committee made up of employees who are below the level of managerial
employees, and
 Workers’ committee composed of managerial employees only.
For a distinction between managerial and non-managerial employees see Ngulube v ZESA &
Another 2002 (2) ZLR 335 (5) and First Mutual Life Assurance v Muzivi 2004 (1) ZLR 287 (S).

(a) Formation and composition of workers’ committees

In terms of section 23 (1a) of the Labour Act the composition and procedure of a workers’
committee shall be determined by the employees at the workplace concerned. However, section
23(1b) of the Act then provides that if a registered trade union has a membership of not less than
50% of the employees of the employer concerned, then only members of the trade union may be
elected into the workers’ committee. The Labour Relations (Workers Committee) (General)
Regulations, 1985 provides details of the composition of a workers’ committee. It must have a
minimum of three and a maximum of fifteen members on a term of office of two years, with

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eligibility for re-election. Members of the workers’ committee shall, from among themselves
elect a Chairperson and a Secretary. Employees of an employer are entitled to be elected, elect or
appoint workers’ committee members. Section 23(2) of the Labour Act provides that for the
purposes of appointing or electing a workers’ committee, the employees shall be assisted by a
Labour officer or representative of the appropriate trade union. The employer also has an
obligation to provide them with names and relevant particulars of all employees of the employer.
Unlike a registered trade union, the Labour Act does not give a workers’ committee legal
persona (Madhuku 2015, Cold Storage Co. National Workers’ Committee v Cold Storage Co.
Ltd 2002 (1) ZLR 141 (H); CT Bolts (Pvt) Ltd v Workers Committee 2012 (1) ZLR 363 (S). It
cannot sue on behalf of employees although it can institute proceedings on its own behalf. Its
legal capacity is limited.

(b) Functions of workers’ committees

During the conference on “Changing patterns of worker relations in Zimbabwe” held on 10-12
April 1981, the Ministry of Labour issued the Workers Committee Guidelines, 1981. These
guidelines provide that a workers’ committee acts a direct link and means of communication
between management and employees at shop floor level. Furthermore, the following are
identified as the aims and objectives of a workers’ committee:
 To provide means for the presentation of and discussion with management of employees’
requirements and grievances.
 To provide stability and good employment/management relationships and to encourage
the settlement of differences and disputes by disciplinary methods.
 To promote productivity by generating a stable and healthy atmosphere within the
company and especially within the working environment.
 To promote the interests of the employees whom they represent by making regular
contact with them.
 To ensure that, if a fellow worker seeks their advice in respect of any grievances or
disciplinary matter, that such advice and assistance be granted as required.
 To cooperate with established trade union in ensuring where applicable that the industrial
regulations for the industry are observed to the mutual benefit of all employees and
management.
 To initiate labour unrest as a way of forcing management to accede to its demands but
following lawful procedures.

The above principles are codified in section 24 of the Labour Act which sets to primary functions
of workers’ committees. These are:
 To represent employees in any matter affecting their rights and interests.
 Elect members into the works council and negotiate collective agreements with the
employer, subject to sections 24 and 25 of the Labour Act.

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Therefore, issues within the jurisdiction of a workers’ committee include all matters of mutual
interest to the employees; provision of welfare and community services, safety and occupational
health issues, provision of accommodation, improvement of working and living conditions,
implementation of agreements including CBAs and the avoidance of industrial dispute and
maintenance of industrial peace.

(c) Rights and powers of workers’ committees

Gwisai (2006) identifies the following rights of workers’ committees available in the Labour
Act:
 Right to be consulted by the employer in the works council and provided with a
reasonable opportunity to make representations in terms of section 25A (5) of the Labour
Act. The right is available in issues such as restructuring of the workplace, product
development plans, job grading, training, retrenchments and implementation of
employment codes
 Recommend a lawful collective job action, subject to section 104 (3) of the Labour Act.
 To be provided by the employer with reasonable facilities to communicate with each
other and meet during and after working hours (section 23 (2) (b)).
 Protection from being hindered or obstructed by the employer

(d) Conduct of meetings of workers’ committee

The procedure to be followed by a Workers committee at its meetings shall be as simple and as
informal as possible and a workers’ committee shall act in such a manner and on such interests
of the workers whom it represents. Fifty percent attendance at any meeting for a workers’
committee shall forma quorum. Matters to be concluded or finalised at any meeting of a workers’
committee shall be decided by a majority and in the event of an equality of votes, the chairperson
shall have a casting vote in addition to his deliberation one. Meetings shall be held regularly or
when need arises but outside the normal working hours unless prior permission has been sought
from management. The chairperson shall ensure that minutes of all proceedings and decisions
taken at every meeting of the workers’ committee, are entered in books kept for record purposes
by the secretary. Members of the workers’ committee should have reasonable access to heads of
departments and management. Should this necessitate leaving the job in hand or the normal work
site, prior permission should be obtained from the individual’s immediate superior either directly
in charge of him or at the work site. In order to enable the workers’ committee to function
satisfactory, management should consider making available to the workers’ committee a room or
hall with adequate facilitates, such as tables and chairs, for the workers’ committee to meet and
discuss their business in private. For this purpose, the workers’ committee should ensure that
management is given adequate notice of their requirement for the room or hall as the case may

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be.
It is possible that some, if not all, members of the workers’ committee and works subcommittees
may require some training and guidance in the conduct of meetings, taking of minutes etc.
Management should be prepared to assist if required to do so in providing this training and
guidance or to facilitate hiring of a labour specialist (consultant).

(e) The effect of negotiated agreement by workers’ committee

Any agreement negotiated by the committee must be referred to employees and if approved by
50 percent of employees and the trade union, it will become binding on them and the employer
and will remain so until mutual agreement to terminate. If a conflict arises between the above
agreement and an existing agreement by a trade union, the latter shall prevail unless the terms
and conditions of the former agreement are more favourable. Should the Minister consider any
agreement to be inconsistent with the Act or unfair to the parties concerned or the public, he may
direct that further negotiation take place to the extent specified by him, after which he will again
consider the agreement and amend it as he deems fit. The agreement will remain in force despite
change of:
a) Ownership or management.
b) Membership of workers’ committee or employees.
c) Transfer of employees’ undertaking or industry.

Activity 9.3
1. Explain the operations of the workers’ committee referring to an organisation of your
choice and the Labour Act Chapter 28:01 in terms of:
 Membership
 Positions for nomination of office bearers
 Conducting elections
 Roles or functions
 Term of office
 Conducting meetings
 Decision making or resolutions
 Negotiations with the employer (management)
 Feedback to constituency

(f) Ministerial control of the workers’ committee

The Minister may make regulations as necessary to regulate and control workers’ committees,
which may provide for:

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 a) The method and procedure in the formation of a workers’ committee
b) The length of service of members of workers’ committee
c) The operation, management and conduct of the affairs of workers’ committees.

(g) Constitution of the workers’ committee

It is suggested that the constitution of the workers’ committee, when finally decided upon and
agreed by the workers’ committee and management, should be printed or typed and signed by the
chairperson and vice-chairperson of the workers’ committees, the general manager/manager of
the company and/or the secretary of the committee for official recognition by all concerned.
Copies of the constitution should then be posted on notice boards and made available to each of
the workers’ committee, subcommittees, works council and, of course, to relevant members of
management.

(h) Suggested level of representation

It is also recommended that apart from the traditional executive positions of Chairperson, Vice
chairperson, Secretary, Vice Secretary and Treasurer, other committee members can be chosen
based on proportionate representation of the number of staff as categorised below. It is important
to try to accommodate all units or departments.
NB. This is not a standard but a proposal:

6 - 60 3 representatives
61 - 80 4
81 - 100 5
101 - 140 6
141 - 180 7
181 - 220 8
221 - 240 9
241 - 540 10
541 - 1 000 11
1 001 - 1 500 12
1 501 - 2 000

Activity 9.4
1. Discuss how the Minister of Labour influences the activities of workers’ committees.
2. Explain the key issues that should be addressed in the constitution of a workers’
committee.

9.8 Trade Unions in the Public Service

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Despite the fact that the Labour Act does not apply to members of the civil service, the right to
form and join trade unions of one’s choice entrenched in section 65 of the Constitution is
available to every person. This includes members of the civil service. They may form trade
unions and participate in their lawful activities. Section 24 of the Public Service Act provides as
follows:
(1) The Minister may, by written notice to the association or organisation concerned, declare any
association or organisation representing all or any members of the Public Service to be a
recognised association or recognised organisation, as the case may be, for the purposes of this
Act.
(2) The Minister may at any time, by written notice to the recognised association or organisation
concerned, revoke any declaration made in terms of subsection (1).
(3) Without derogation from section twenty -
(a) the Minister and the Commission may consult with a recognised association or
organisation on such matters affecting the efficiency, well-being or good
administration of the Public Service or the interests of the members of the
recognised association or organisation, as the Minister or the Commission, as the
case may be, thinks appropriate, and
(b) a recognised association or organisation may make representations to the
Minister and the Commission concerning the conditions of service of the
members of the Public Service represented by the association or organisation,
and the Minister or the Commission, as the case may be, shall pay due regard to
any such representations when exercising any function in terms of this Act.
(4) Any member of the Public Service who is eligible to do so my join a recognised association or
organisation and, subject to this Act, participate in its lawful activities.
(5) A member of the Public Service who fails or refuses to join a recognised association or
organisation shall not, on account of such failure, be debarred from or prejudiced in respect of
any appointment, promotion or advancement within the Public Service.

The scheme under section 24 of the Public Service Act is now unconstitutional and invalid by
virtue of section 65 of the Constitution (Madhuku, 2015). Members of the civil service are
entitled to form and join trade unions of their choice. Regrettably, the Public Service Act does
not regulate the formation and registration of trade unions for members of the civil service. In the
absence of this scheme, formation and operation of trade unions in the civil service is
unhindered.

9.9 Summary

In this unit we discussed about trade unionism and labour relations. The discussion started with
an overview of the theoretical underpinnings of the right to form and join trade unions and
participate in their lawful activities. This right is recognised in international and regional
instruments as well as international standards made under the auspices of the ILO. In Zimbabwe,
the right is entrenched in the Constitution and given effect to by the Labour Act. The
constitutional right is available to employees in the private sector and public sector with the

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exception of members of the security services. The unit also covered issues to do with formation,
registration, organisational rights and deregistration of trade unions. A brief overview of trade
union organisation in the public sector was also given. It was apparent that members of the civil
service rely directly on the Constitution for the enjoyment of this right as the Public Service Act
does not have mechanisms for trade union organisation.

References
Gwisai, M. (2001). Labour and Employment Law in Zimbabwe, Harare: Zimbabwe Labour
Centre.
Kasuso, T. and Tsabora, J. (2017). Reflections on the Constitutionalising of Individual Labour
Law and Labour Rights in Zimbabwe, Industrial Law Journal 43.
Rycroft, A. and Jordaan, B. (1992). A Guide to South African Labour Law, Durban: Juta.
Madhuku, L. (2015). Labour Law in Zimbabwe, Harare: Weaver Press.
Sambureni, N.T. (2001). Industrial and Labour Relations, Harare: Zimbabwe Open University.
Sambureni, N.T. & Mudyabikwa, P. (2003). Introduction to Industrial and Labour Relations,
Harare: Zimbabwe Open University.
Uzhenyu, D. (2015). Introduction to Industrial and Labour Relations, Harare: Zimbabwe Open
University.

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 UNIT 10

Collective Bargaining Law

10.1 Introduction

The rights of employees to participate in decisions affecting their interests and collective
bargaining are recognised in several international standards by the International Labour
Organisation. These include; the Collective Bargaining Convention 154 of 1951, Right to
Organise and Collective Bargaining Convention 98 of 194, Workers Representatives Convention
135 of 1971 and the Declaration on Fundamental Principles and Rights at Work, 1998. The
underlying values and principles of these international standards is pluralism. Domestically,
section 65 of the Constitution of Zimbabwe recognises every person’s right to fair and safe
labour practice as well as every employee, employer, trade union and employer organisation to
engage in collective bargaining. These rights are given effect to by the Labour Act (Chapter
28:01). One of the main purpose of the Labour Act is to promote collective bargaining and
participation by employees in decisions affecting their interests in the workplace. The Labour
Act also provides a framework within which employees, employers, employers’ organisations
and trade unions can bargain collectively to determine wages, terms and conditions of
employment, other matters of mutual interest and to formulate industrial policy. Therefore, this
unit gives an overview of worker participation and collective bargaining in Zimbabwe and the
legal framework underpinning this framework.

10.2 Objectives

By the end of this unit, you should be able to

 identify forums of worker participation at the workplace and explain how they are
established
 describe the role of the works council and National Employment Councils in collective
bargaining
 define the term collective bargaining
 explain the process of collective bargaining

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  explain whether or not there is a duty to bargain in Zimbabwean labour law
 define the term collective bargaining agreement
 explain the binding effect of collective bargaining agreements and to apply the relevant
principles in a practical situation
 explain how collective bargaining agreements are amended
 explain the process of dispute resolution in respect of collective agreements

10.3 Worker Participation

Worker participation in managerial decision-making at the workplace is recognised by the

Labour Act through the establishment of bipartite institutions. The Act recognises a ‘dual stream’
of engagement between employers and employees’ (Van Niekerk et al, 2012). The first stream
being collective bargaining over terms and conditions of employment, and the second
participation by employees in workplace decisions not normally subject to collective bargaining.
Workplace forums are designed to facilitate a shift at the workplace, from adversarial collective
bargaining on all matters to joint problem solving and participation on certain subjects. In
creating a structure for ongoing dialogue between management and workers, statutory
recognition is given to the realisation that unless workers and managers work together more
effectively they will fail adequately to improve productivity and living standards. Workplace
forums are designed to perform functions that collective bargaining cannot easily achieve, the
joint resolution of problems and the resolution of conflicts over production. Worker participation
is therefore, designed to supplement collective bargaining (Summers, 1995).

Industrial relations entail the full participation and involvement of employees in the management
of workplace relations including the formulation and enforcement of rules and agreements. It
involves participative decision making in key decisions such as restructuring, recruitment and
selection, training needs assessment and budgetary issues (Driver & Thompson, 2002). Homann
(1988) identifies two mental models of democracy. Principle of organisation model – democracy
refers to particular standards and procedures for organising social interactions. Principle of
legitimation – democracy refers to consensual self-governance. Of equal importance the
components of workplace democracy identified by Derber (1970). These include the following:
representation, shared sovereignty over all levels of decisions, opportunities for direct and
indirect participation, right of dissent, due process, responsibility, access to complete
information, guaranteed equal rights, right to minimum standards and right to a fair share of the
value created by one’s work (Schurman & Eaton, 1996).

Activity 10.1
 Explain the difference between worker participation and involvement.
 Discuss international labour standards which underpin the right of employees to

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 participate in decisions that affect their interests at the workplace.

10.4 Forums for Worker Participation

The Labour Act recognises two main forums of worker participation, namely, the works council
and the employment council.

10.4.1 Works council

Section 2 of the Labour Act defines a works council as a bipartite body composed of an equal
number of representatives of an employer and representatives drawn from members of a
workers’ committee and a chairperson (See also section 25A (2)). A works council must be
established in every organisation in which a workers’ committee representing employees other
than managerial employees has been elected. In terms of section 25A (3) of the Act the
procedures to be adopted by the works council in the conduct of its business are determined by
the employer and the workers’ committee at the workplace concerned.

The main functions of works councils are laid out in section 25A (4) of the Labour Act and
include the following:
(a) To focus the best interests of the establishment and employees on the best possible use of
its human, capital, equipment and other resources, so that maximum productivity and
optimum employment standards may be maintained.
(b) To foster, encourage and maintain good relations between the employer and employees at
all levels and to understand and seek solutions to their common problems.
(c) To promote the general and common interest, including health, safety and welfare of both
the establishment and its workers.
(d) To promote and maintain the effective participation of employees in the establishment,
and to secure the mutual co-operation and trust of employees, the employer and any
registered trade union representing employees in the establishment, in the interests of
industrial harmony.

The Labour Act in section 25A (5) also imposes a duty on the employer to consult a works
council on any proposals relating to:
(a) The restructuring of the workplace caused by the introduction of new technology and
work methods.
(b) Product development plans, job grading and training and education schemes affecting
employees.
(c) Partial or total plant closures and mergers and transfers of ownership.
(d) The implementation of an employment code of conduct
(e) The criteria for merit increases or payment of discretionary bonuses

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 (f) The retrenchment of employees, whether voluntary or compulsory.

Before any employer implements or adopts any of the above mentioned proposals, the employer
must afford members of the works council representing the workers’ committee an opportunity
to make representations and to advance alternative proposals. In terms of section 25A (6) of the
Labour Act, the employer must consider and respond to the representations and alternative
proposal. In addition, the employer must attempt to reach an agreement with members of the
works council representing the workers’ committee.
10.4.2 Employment councils

An employment council is a bipartite labour body which is formed by a registered trade union
and a registered employer’s organisation in a given industry (Madhuku, 2015). The main purpose
of employment councils is to assist members in the conclusion of a collective bargaining
agreement and supervise its implementation (Madhuku, 2015). The legislative framework for the
establishment, registration and duties of employment councils is provided for in the Labour Act.

(a) Types of employment councils

Section 56 and 57 of the Labour Act provides for two types of employment councils; namely
voluntary and statutory employment councils. A voluntary employment council is established in
section 56 of the Labour Act which provides as follows:
Any –
(a) employer, registered employers’ organisation or federation of such organisations; and
(b) registered trade union or federation of such trade unions.
may, at any time, form an employment council by signing a constitution agreed to by them for the
governance of the council, and by applying for its registration in terms of section fifty-nine.

Therefore, a voluntary employment council is a product of an agreement of two parties, an

employer or employer organisation on one hand and registered trade union or federation of such
trade union on the other hand. An employer can only be a party to an employment council to
which its employees are members via the trade union (Madhuku, 2015). Similarly, a trade union
can only be a member of an employment council to which an employer or employers of its
members are party. Statutory employment councils are established at the request of the Minister
of Labour in terms of section 57 of the Labour Act. Madhuku (2015) is of the view that statutory
employment councils appear unconstitutional as they violate section 58(2) of the Constitution
which provides that no person may be compelled to belong to an association or attend a meeting
or gathering. They also go against the voluntary and autonomous character of collective
bargaining (Gwisai, 2006).

(b) Registration of employment councils

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Before an employment council is registered it must adopt a Constitution. In terms of section 58
of the Labour Act, the Constitution must provide for the following details:
(i) Aims and objectives of the council.
(ii) That the registered trade union concerned and employer organisation or federation
appoint fifty percent each of the members of the employment council.
(iii) Appointment of chairman and vice chairman of employment council.
(iv) Dues payable to the employment council by members.
(v) Administration of the funds of the employment council.
(vi) Keeping of minutes and other records.
(vii) Admission of new parties to the employment council.
(viii) Procedures for dealing with disputes within the industry.
(ix) Amendment of the constitution.
(x) Winding up of the employment council, and
(xi) Such other matters as may be prescribed.

An application is then made to the Registrar who must be satisfied that the employment council
and its constitution comply with the Labour Act. In terms of section 59(2) of the Act, the
Registrar shall furnish the employment council with a certificate of registration which specifies
the industry for which the employment council is registered. Registration also clothes an
employment council with separate legal persona (Section 60). Madhuku (2015) submits that
‘withdrawal from membership by an employer who is still engaged in the undertaking or
industry for which the employment council is registered is not permitted by law.’ An
employment council would have to be wound up in terms of its constitution. The Registrar can
also vary registration of employment councils. The Labour (Amendment) Act 5 of 2015 has also
given the Registrar wide powers to regulate financial affairs of employment councils. Section
63A inserted by the Amendment Act makes provision for audit of accounts of employment
councils, inspection and examination of books and administration of affairs of employment
councils in certain cases.

(c) Functions of employment councils

The main function of an employment council as provided for in section 62(1) (a) of the Labour
Act is to facilitate collective bargaining, conclusion of collective bargaining agreements and to
supervise their implementation. In addition, employment councils have a duty to prevent disputes
from arising, and in the event that disputes have arisen, they have a duty to settle such disputes.
This include disputes of right and disputes of interest. Dispute resolution is usually done by
designated agents, whose office is regulated by section 63 of the Labour Act. As for the dispute
resolution process it is provided for in section 93 of the Act as amended by section 93 (5) of the
Labour (Amendment) Act 5 of 2015. Disputes are resolved through conciliation and arbitration.
Employment councils also carry out institutional visits for the purpose of checking and
ascertaining labour law compliance. The inspections are done by designated agents to check
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compliance, advice industrial members and carry out training needs assessment. Furthermore,
employment councils carry out labour education, and training, hearing appeals and grievances
processing, exemptions processing in terms of section 12(1), (3) and (4) of the Labour
(Amendment) Act 5 of 2015 and enforcement of labour legislation.

10.5 Collective Bargaining

Sidney and Beatrice Webb (1902) propounded a classical model of collective bargaining which
was essentially an economic model. It defined the main role of unions as bargaining over the
price of labour. Unions alternatively used mutual insurance and legal enactment methods for
obtaining various benefits for members. Collective bargaining was exclusively a trade union
method with no implicit or explicit interest on the part of employers. It substituted collective will
for individual bargain. The Labour Act does not define the term collective bargaining. Instead,
section 2 of the Act defines a collective bargaining agreement as ‘an agreement negotiated in
accordance with the provisions of this Act which regulates the terms and conditions of
employment of employees.’

On the basis of this definition Madhuku (2015) argues that collective bargaining is a negotiation
process with a view of agreeing on terms and conditions of employment. Rycroft and Jordaan
(1992) define the term as a ‘voluntary process for reconciling the conflicting interests and
aspirations of management and labour through the joint regulation of terms and conditions of
employment. The International Labour Organisation Collective Bargaining Convention 154 of
1959 defines collective bargaining in the following terms:
Collective bargaining extends to all negotiations which take place between an employer, a group
of employers or one or more employers’ organisations, on the one hand, and one or more
workers’ organisations on the other, for:
(a) Determining working conditions and terms of employment; and/or
(b) Regulating relations between employers and workers; and/or
(c) Regulating relations between employers or their organisations and a workers’’
organisation or workers’ organisation.

Critical in collective bargaining is negotiation, haggling or wrangling so as to arrive at some

agreement on terms and conditions of employment. See TM Supermarket v TM National
Workers Committee SC19/04. The principle of voluntariness and autonomy of the bargaining
partners underlies the collective bargaining process. It is different with mere consultations as it
assumes a willingness on each side not only to listen to the other side but also to abandon fixed
positions were possible in order to find common ground (Mucheche, 2018).

The pluralist perspective of labour relations identifies three main roles, of collective bargaining
(Gwisai, 2006). Firstly, it fulfils an economic function. It accepts that economic conflict is

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inherent in the relationship between capital and labour. Therefore, collective bargaining seeks to
regulate the individual and collective workplace relations (Rycroft & Jordaan, 1992, p.116).
Secondly, it fulfils a social function, in that it establishes an industrial justice system that protects
workers from arbitrary action by employers, allows them to participate in decisions affecting
their interests and recognises their right to human dignity. Lastly, collective bargaining serves a
political function in that it promotes democracy at the workplace by giving employees a say in
matters which affect their working lives (Gwisai, 2006, p.311).

10.5.1 The legal framework for collective bargaining in Zimbabwe

The Constitution of Zimbabwe is the supreme law of the land and any law, practice, custom or
conduct inconsistent with it is invalid to the extent of the inconsistency. Section 65(5) of the
Constitution expressly entrenches the right to collective bargaining by providing as follows:
(5) Except for members of the security services, every employee, employer, trade union, and
employee or employer’s organisation has the right to –
(a) engage in collective bargaining.
The constitutional right to collective bargaining is enjoyed by both employers or their
representatives and employees and their respective unions or representatives. However, the right
is not available to members of the security services who include the following: members of the
Defence forces, Police force, Prison and correctional services and intelligence services. In
addition, the enjoyment of the right to collectively bargain is made possible by the existence of
the freedom of assembly and association entrenched in section 58 of the Constitution. The
Constitutional right to collective bargaining is given effect to in section 74 (2) of the Labour Act
which provides as follows:
(2) Subject to this Act and the competence and authority of the parties, trade unions and
employers or employers’ organisations may negotiate as to any conditions of employment which
are of mutual interest to the parties thereto.

A similar right is provided for in section 24 (1) (b) of the Labour Act which recognises the right
of workers’ committees to collectively bargain at enterprise level. Section 74(3) of the Labour
Act then provides a list of issues for collective bargaining or the bargaining agenda. These
include the following: rates of remuneration and minimum wages; benefits of employees;
deductions which an employer may make from employees’ wages; methods of calculating rates
of pay, times and modes of payment; issues of overtime, periods of vacation and vacation pay;
demarcation of appropriate categories and classes of payment and their functions; conditions of
employment of apprentices, the number of hours of work; requirements of occupational safety;
maintenance of, and access by the parties to records of employment and pay; procedures for
dealing with disputes within the industry; housing and transport facilities and measures to
combat workplace violence. It is clear that parties can negotiate on anything related to terms and

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conditions of employment. However, parties cannot agree on terms lower than those provided for
in the Labour Act. In other words, a collective bargaining agreement cannot provide for less
favourable conditions than those in the Labour Act. Furthermore, the Minister may direct the
Registrar to refuse to register a CBA which in his or her opinion is unreasonable or unfair. See
The Catering Employers Association of Zimbabwe v The Zimbabwe Hotel and Catering
Workers’ Union HH 206/00 and Chivemba & Others v Reserve Bank of Zimbabwe 2000 (2) ZLR
370 (S).

10.5.2 Types of collective bargaining agreementss

Section 74(1) of the Labour Act makes provision for two types of CBA’s namely; statutory
collective bargaining agreements and non-statutory CBAs. Statutory CBAs can be divided into
two categories. On one hand, is the industrial CBA made between registered trade unions,
employers or employers’ organisations or federations (Gwisai 2006, p.315). On the other hand, is
the CBA made at the workplace level between an employer and a workers’ committee made
under Part VI of the Labour Act. A statutory CBA enjoys the status of subsidiary legislation and
is binding across the entire industry (Section 82). A CBA at works council binds all employees
of the enterprise.

Non-statutory CBA are made between employers and trade unions outside the ambit of Part X of
the Labour Act or they do not comply with the provisions thereof (Gwisai 2006, p315). In
addition, they also include CBAs made by unregistered trade unions and employers’
organisations. Although a non-statutory CBA is binding, its application may be limited by issues
such as agency, ratification and the negotiotiorum gestio doctrine. Since the Labour Act does not
apply to the process, the statutory rights of the bargaining parties are not available, such as the
duty to negotiate in good faith.

10.5.3 Parties in collective bargaining

The parties who negotiate in collective bargaining are sometimes referred to as bargaining agents
(Gwisai, 2006, p.321). On the employees’ side there must be a collective group of workers and
not an individual employee. Therefore, workers’ committees and trade unions can engage in
collective bargaining. Representation of workers by a trade union is at industry level, whilst
collective bargaining at enterprise level is through a workers’ committee. As for employers,
negotiations can be done by a single employer or an employer’s organisation. Gwisai (2006,
p.317) identifies three principles from the Labour Act dealing with representation. Firstly,
sections 45 (1) (a) and 61 (a) of the Labour Act provide that the parties must be sufficiently
representative of the undertaking or industry they represent. Secondly, the majority of the

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employees and employers must be afforded effective representation in negotiations. Lastly,
section 45 (i) (a) (iv) of the Act recognises the desirability of reducing, to the least possible
number, the number of entities with which employees and employers have to negotiate.

Representation of employees by a workers’ committee in collective bargaining is not governed

by Part X of the Labour Act but sections 23-25 of the Act. As indicated earlier on, such
representation can only take place at enterprise level. Collective bargaining by a workers’
committee arises in the following circumstances. Firstly, in the absence of an appropriate trade
union for the employees concerned. Secondly, section 24(3) (a) of the Labour Act provides that,
where an appropriate trade union exists for the employees but has no CBA ‘with the employer
concerned,’ the workers’ committee will represent workers but will require authorisation in
writing by the trade union. Thirdly, where a collective bargaining agreement already exists in the
industry, the workers’ committee shall be entitled to engage in collective bargaining only to the
extent permitted by such CBA. (See section 24(3) (b)).

Before any collective bargaining process, the bargaining agents must specify in writing their
terms of reference and powers of the agents who will represent them (section 77). As for
negotiations done at an employment council level, this requirement is satisfied by provisions of
the Constitution of the NEC concerned (Madhuku 2015, p.325). Generally, the parties to
collective bargaining are agents and bind their principles through the law of agency. See PTC v
Zimbabwe Posts and Telecommunications Workers Union & Others 2002 (2) ZLR 722 (S).

10.5.4 Levels of collective bargaining

The Labour Act does not specifically deal with the levels at which collective bargaining may
take place. Two levels are implied, that is, enterprise level and industry level. At enterprise level,
an employer is free to enter into collective bargaining negotiations with the workers’ committee
at his/her enterprise provided the resultant collective bargaining agreement does not provide
inferior conditions to those contained in an industry-wide collective agreement. It is also a
requirement that an enterprise level collective bargaining agreement entered into with a workers’
committee be referred to the trade union for approval. Given that the law already makes the
enterprise agreement inferior to the industrial agreement, this latter requirement is unnecessarily
superfluous, with or without trade union approval.

The second level of collective bargaining is the industry level negotiation between the trade
union and the employer’s organisation. Invariably, this takes place under the guidance of the
National Employment Council, a body formed by the union and the employers. The Act lays
more emphasis on this level of collective bargaining and hence its extensive regulation in section
74-82. There is nothing in the Act to stop any plant level collective bargaining although this will
essential be governed by the common law.

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Activity 10.2

1. In terms of the Labour Act (Chapter28:01), who is authorised to take part in

collective bargaining and why?
2. Under what conditions can workers’ committees take part in collective bargaining?
Are these apparent restrictions justified? Explain.
3. Discuss the levels at which collective bargaining takes place. Take particular note
of the role of the negotiators, control mechanisms of the process and expected
outcomes of the negotiation process.
4. Mazvita’s contract of employment provides that she is entitled to 40 days’ vacation
leave per annum. A collective agreement is concluded at the bargaining council in
the sector in which Palesa works, which provides that employees are entitled to 25
days’ vacation leave per annum. The Labour Act provides for 30 days’ vacation
leave per annum. Discuss whether Palesa will be entitled to 40, 25 or 30 days’
vacation leave.

10.5.5 Duties in collective bargaining

(a) Duty to bargain

Since section 65(5) of the Constitution entrenches the right to collective bargaining, it may be
questioned whether the right to engage in collective bargaining entails a duty to bargain on the
other party? Madhuku (2015, p.330) argues that section 65(5) (a) of the Constitution does not
create a judicial enforceable duty to bargain but requires the State to create a framework
conducive to collective bargaining. This framework must ensure that a party may not
unreasonably refuse to bargain. In Zimbabwe, the Labour Act provides this framework.
However, the Act does not expressly lay down a positive duty to bargain on either party.
Impliedly, the duty arises from the unfair labour practice concept in the Labour Act. For
instance, section 8(c) the Act provides that it is an unfair labour practice for an employer to
refuse to bargain in good faith with a workers’ committee or a trade union. Section 8(f) of the
Labour Act also makes it an unfair labour practice for an employer to bargain collectively with
an uncertified trade union where a certified trade union exists. In the event of a finding being
made that an employer has committed an unfair labour practice, a tribunal, forum or court may
order the employer to negotiate, thus creating a duty to bargain. Section 74(6) of the Labour Act
does not create a legal obligation on employers or employees to negotiate. It provides that the
existence of a CBA does not impose a legal impediment to negotiations seeking to create
favourable conditions than those stipulated in the CBA (Madhuku, 2015, p.332). See Olivine
Industries (Pvt) Ltd v Olivine Workers Committee 2000 (2) ZLR 200 (S).

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 (b) Duty to bargain in good faith

During collective bargaining, the parties or agents have a duty to negotiate in absolute good
faith, Section 75 of the Labour Act limits the good faith to the following;
(i) Disclosure of all information relevant to the negotiations
(ii) Making no false or fraudulent misrepresentation in regard to matters relevant to the
negotiations.
(iii) Earnestly and expeditiously endeavouring to arrive at a successful conclusion in
negotiation.
(iv) Not in any way bring about a situation that undermines the basis of negotiating in
good faith
In terms of section 75 of the Labour Act, it is an unfair labour practice to fail to negotiate in good
faith.

(c) Duty of full financial disclosure

In the event that an employer alleges financial incapacity as a ground for inability to agree to any
terms, then the employer is obliged to make full disclosure of its financial position, supported by
all relevant accounting documents. (section 76). Any dispute as to whether or not there is full
disclosure shall be referred for determination to a labour officer unless the parties agree to refer it
to voluntary arbitration. (section 76(2)).

10.5.8 Deadlocks in collective bargaining

Any deadlock in collective agreement is a dispute as defined in section 2 of the Labour Act and
is dealt with in terms of the dispute resolution mechanisms established by the Act. The following
options are available to the parties:
(i) Referral of the dispute of interest to compulsory arbitration in terms of section 98 of
the Labour Act.
(ii) Referral of the dispute to voluntary arbitration.
(iii) Embark on collective job action after fulfilling formalities in section 104 of the
Labour Act.

10.5.9 Registration and enforcement of collective bargaining agreements

A CBA binds the parties to the agreement and employees and employers who are members of the
parties concerned (section 82(1)). With industry level agreements, they bind all employers,
contractors and their respective undertaking or industry to which the agreement relates. (section
82(1) (a)). For a CBA to be binding certain procedural requirements must be satisfied. Firstly, it
must be registered by the Registrar of Labour in terms of section 79 (1) of the Labour Act.

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Secondly, the CBA must be gazetted by the Minister as a statutory instrument (section 80(i)).
Similar provisions exist in relation to a works council agreement (section 25 (2)). Before, it takes
effect it must be referred by the workers’ committee to the employees and the trade union and
approved by the union and more than 50% of the employees. Only registration is required for a
CBA to be effective and binding. See National Railways of Zimbabwe v Siziba SC 12/01). If the
parties have not specified a date from which the agreement becomes effective, publication is
relevant to the extent that if there is no publication, the agreement does not enter into force
(Madhuku 2015, p.340). A CBA may be retrospective in operation. See Posts and
Telecommunications v Zimbabwe Posts and Telecommunications Workers Union & Others 2002
(2) ZLR 722 (S).

10.5.10 Amendment of collective bargaining agreements

A CBA can be amended under the following circumstances:

(i) Parties may agree to amend the agreement during its course.
(ii) A party may propose an amendment after expiry of 12 months in terms of section
74(4) of the Labour Act.
(iii) Agreement may be amended during its course, pursuant to a directive by the Minister
to the Registrar to renegotiate it in terms of section 81 of the Labour Act.
(iv) Amendment pursuant to a referral of a dispute for compulsory arbitration.

Activity 10.3
1. Explain the process of collective bargaining and the values are entrenched in it.
2. Explain how deadlocks in collective bargaining are dealt with under the Labour Act.
3. Discuss the fundamental duties of parties to collective bargaining.
4. Explain the levels at which bargaining can take place in Zimbabwe
5. Discuss whether or not an employer has a duty to bargain with a trade union.
6. Identify four circumstances a collective bargaining agreement can be amended.

10.6 Summary
One of the main purposes of the Labour Act is to advance social justice and democracy in the
workplace by promoting the participation of workers in decisions affecting their interests in the
workplace. This unit therefore identified and discussed the legal framework in Zimbabwe that
facilitates workers’ participation in the workplace. Workers participation at works council and
employment council level was discussed. In addition, this unit analysed the right to collective
bargaining. It defined the term collective bargaining and explained its theoretical justifications.
This was followed by a critical discussion of the legal framework of the right to collective
bargaining in Zimbabwe.

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References

Derber, M. (1970). Crosscurrents in Worker Participation, Industrial Relations: A Journal of

Economy and Society.
Driver, C. & Thompson, G. (2002). Corporate Governance and Democracy: The Stakeholder
Debate Revisted, Journal of Management Governance.
Gwisai, M. (2001). Labour and Employment Law in Zimbabwe, Harare: Zimbabwe Labour
Centre.
Kasuso, T. & Tsabora, J. (2017). Reflections on the Constitutionalising of Individual Labour
Law and Labour Rights in Zimbabwe, Industrial Law Journal.
Rycroft, A. & Jordaan, B. (1992). A Guide to South African Labour Law, Durban: Juta.
Madhuku, L. (2015). Labour Law in Zimbabwe, Harare: Weaver Press.
Sambureni, N.T. (2001). Industrial and Labour Relations, Harare: Zimbabwe Open University.
Sambureni, N.T. & Mudyabikwa, P. (2003). Introduction to Industrial and Labour Relations,
Harare: Zimbabwe Open University.
Schurman, S. & Eaton, E. (1996.) Labour and Workplace Democracy, Labour Studies Journal.
Uzhenyu, D. (2015). Introduction to Industrial and Labour Relations, Harare: Zimbabwe Open
University.

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 UNIT 1

Collective Job Action Law

11.1 Introduction

The right of employees to withdraw their labour is an integral aspect of the freedom to bargain
collectively. It lies at the very heart of the existence of an association of workers. Therefore, to
remove their freedom to withhold their labour would be to sterilise their association. See Re
Retail Wholesale Union and Government of Saskatchewan (1985) 19 DLR (4th) 609. This unit
examines the right to collective job action in Zimbabwe. Firstly, it explores the philosophical
justifications for protection of the right. Secondly, it examines the right to collective job action in
international law and the Constitution. This is followed by a discussion of the legal framework
giving effect to the right to collective job action. The ultimate aim of the unit is to ascertain
whether labour legislation fully gives effect to the right.

11.2 Unit Objectives

By the end of the unit, you should be able to:

 define the term collective job action

 explain the justifications for the right to collective job action
 identify the various forms of collective job action in Zimbabwe
 explain procedural requirements for a protected lawful collective job action and to
apply them in a practical situation
 explain what disputes of interest are
 explain the limitations or prohibitions on collective job action and to apply them in a
practical situation
 explain the legal consequences of a protected lawful collective job action
 discuss the legal consequences of an unlawful collective job action and to apply them
in a practical situation
 explain the measures in labour legislation to supress an unlawful collective job action

11.3 Rationale for the Right to Collective Job Action

Davies and Freedland (1983) argue that the right of employees to collective job action is an

188
obvious right in any democratic society. It is an essential means for the promotion of the social
and economic interests of employees and trade unions, based on the proposition that trade unions
should be free to organise their activities and formulate their programmes for the purposes of
defending interests of their members. It is an essential element of collective bargaining process
and the following are the justifications for the existences of the right.

 the human rights argument

The positivist approach argues that the right of employees to strike is a human right for
the simple reason that it recognised as such in international treaties and standards.
(Mantouvalou, 2012). Therefore, the justification is the defence of human rights in
general, namely self-evident rights which accrue by virtue of being human (Madhuku,
2015). However, Collins (2011) argues that the labour rights such as the right to strike are
not human rights but liberal political rights because they are non-compelling, non-
universal, non-strictness and non-timelessness.

 the democracy argument

It has been urged that the right to strike is intrinsic to the notion of democracy; a view
reinforced by the fact that, conversely, it is often banned in totalitarian societies, (Deakin
& Morris, 1995).

 the equilibrium argument

The right to collective job action plays an important role in maintaining equilibrium
between labour and the concentrated power of capital. Kahn Freund (1972) posits that it
is a means to countervail the economic power of capital. Equilibrium is key to the
establishment of a properly functioning industrial relations system and a means of
facilitating collective bargaining (Madhuku, 2015).

 the psychological argument

Kahn Freund (1972) submits that the right to collective job action aids in the release of
industrial tension. He further argues that self-government is better than legal regulation
and enforcement - the need for autonomous sanctions to enforce collective bargains.

11.4 International law

Several international treaties recognise labour rights including the right to strike as a
fundamental right. For instance, the United Nations Covenant on Economic, Social and Cultural
Rights (1967) makes provision for the right to strike in Article 7. At regional level a similar right
is recognised in the European Community Social Charter (1989) which provides that the right to
resort to collective action shall include the right to strike. Other instruments impliedly guarantee
the right to strike by recognising the freedom of association of workers. Such instruments

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include the African Charter on Human and People’s Rights (1986), the European Convention for
the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil
and Political Rights, the American Convention on Human Rights, the San Salvador Additional
Protocol in the Area of Economic, Social and Cultural Rights and the SADC Charter of
Fundamental Social Rights.

Furthermore, the International Labour Organisation (ILO), the expert branch of the United
Nations in labour relations, has endorsed several fundamental labour rights. Although no ILO
standard specifically deals with the right to collective job action the right can be implied from
conventions and declarations dealing with the right to organise, freedom of association and
collective bargaining. For instance, the ILO Committee of Experts on Freedom of Association
has developed the right to strike from Freedom of Association and Protection of the Right to
Organise Convention, 1948 and the Right to Collective Bargaining Convention. Zimbabwe has
since ratified these Conventions. The right to strike has been recognised as an intrinsic corollary
to the right to organise and a legitimate means through which workers promote and defend their
economic and social interests (Blanpain & Engels, 1993). Other relevant ILO initiatives include
the Declaration of Fundamental Principles and Rights at Work which recognises freedom of
association and collective bargaining as fundamental labour rights. A similar approach is also
followed by the United Nations Global Compact which lays down minimum labour standards for
multi-national corporations. Although ILO recognises the importance of the right to strike, it also
acknowledges that the right can be limited. It is not an absolute right and restrictions are
permissible with members of the public service and essential services. ILO defines essential
services as those ‘interruptions of which would endanger the life, personal safety or health of the
whole or part of the population.

11.5 The Constitution of Zimbabwe

In Unit 3 it was established that the Constitution of Zimbabwe, 1980 did not guarantee any
labour rights, including the right to strike. However, it provided for the freedoms of association
and assembly. Madhuku (2015) submits that the 1980 Constitution, even on the basis of a broad,
purposive or generous interpretation, did not provide for right to strike. The Constitution of
Zimbabwe, 2013 is a marked departure from the typical Westminster model Constitution of
1980. It entrenches labour rights in section 65 and section 65(3) specifically provides as follows:
(3) Except for members of the security services, every employee has the right to participate in
collective job action, including the right to strike, sit in, withdraw their labour and to take other
similar concerted action, but a law may restrict the exercise of this right in order to maintain
essential services.
The Zimbabwean Constitution takes leaf from the Constitutions of Kenya, Malawi, Namibia and
South Africa. However, in these jurisdictions, the right to strike is an independent right and not a
form of the exercise of another right (Madhuku, 2015). Thus, the right to strike in Zimbabwe is
embedded in the right to participate in collective job action.

Section 65(3) of the Constitution excludes members of the security services. These includes
members of the Defence Force, Police Force, Prison and Correctional services and intelligence
services. Furthermore, the right is available to every employee. Firstly, this denotes that the right
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to strike is an individual right but can only be exercised collectively (Madhuku, 2015). Secondly,
by using the tem employee it follows that the right is not expressly available to trade unions.
Madhuku (2015) argues that trade unions only derive the right to strike from their members who
are employees. Thirdly, the term employee in section 65(3) also covers State employees.
However, there is no legislation giving effect to the right of State employees to strike such that
they have to rely on the constitutional right. Fourthly, the right to strike is only available for
employer-employee related issues. Fifthly, Madhuku (2015) contends that, the constitutional
right to strike is an unqualified right in that it is not restricted to collective bargaining. Zimbabwe
adopts the individualistic theory as opposed to the organic theory.

In addition, the constitutional right to collective job action is not available to employers.
Therefore, a lockout is not protected as a constitutional right. Whether or not the employers right
to lock out deserves constitutional protection is debatable. However, the South African
Constitutional Court in Exparte Chairperson of the Constitutional Assembly: In re Certification
of the Constitution of the Republic of South Africa, 1996 (1996) 17 ILJ 821 (CC), held that the
right to strike and the employer equivalent of lockout were not equal. Lastly, the constitutional
right to strike can be limited by law in order to maintain essential services. This is tautology
since the limitation can be on the basis of section 86 of the Constitution which provides that
fundamental rights can be limited in terms of a law of general application and to the extent that
the limitation is fair, reasonable, necessary and justifiable in a democratic society based on
openness, justice, human dignity, equality and freedom. The Labour Act gives effect to the
constitutional right to collective job action and also limits the right. Whether the Labour Act
fully gives effect to the constitutional right to strike is discussed herein below.

11.6 The Labour Act

Section 104(1) of the Labour Act provides for the right to collective job action in the following
manner:
Subject to this Act, all employees, workers’ committees and trade unions shall have the right to
resort to collective job action to redress disputes of interest.
The right to collective job action in the Labour Act is a collective right. It is available to
employees, workers’ committees and trade unions. In respect of trade unions, the right unlike in
other jurisdictions, is available to unorganised workers, as long as they are employees (Madhuku,
2015). What is also apparent from section 104(1) is that the right is only available in respect of
disputes of interests. It is not available for the redress of disputes of right. For the distinction
between disputes of right and disputes of interest see Unit 10. Disputes of right are largely
resolved through procedures outlined in section 93 of the Labour Act.

11.6.1 Definition of collective job action

Section 2 of the Labour Act defines the term collective job action as follows:
an industrial action calculated to persuade or cause a party to an employment relationship to
accede a demand related to employment, and includes a strike, boycott, lockout, sit-in and sit-out,
or such concerted action.
The definition is broad and covers all forms of industrial action including strikes and lockouts
(Gwisai, 2006). However, in other jurisdictions only the right to strike is protected as a form of

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industrial action. For conduct to qualify as industrial action, the following features must exist:
 Industrial action
Industrial action is an act done by employees which prevents the operation of the contract
of employment. Therefore, for conduct to amount to collective job action there must be
some element of work stoppage or disruption of work (Gwisai, 2006). This follows that
collective job action can only be carried out during working hours. The period or form of
the stoppage or disruption is irrelevant. In ZB Financial Holdings v Manyarare SC 3/12
the Respondent had participated in an unlawful collective job action for two hours. The
court held that the fact that the collective job action was only for two hours was not
mitigatory because that was the duration of the industrial action. See also Wholesale
Centre (Pvt) Ltd v Mehlo & Others 1992 (1) ZLR 376 (H); Speciss College v Chiriseri &
Others SC2/13.

 Demand related to employment

The definition of collective job action is clear that the industrial action must be directed
to a demand related to employment. A mere cessation of work is not collective job action.
There must be a demand related to the employment relationship. Gwisai submits that not
all work stoppages are collective job action and he gives the following examples: refusal
by an employee to do work outside ones’ job description (ZUPCO v Mabande & Another
1998 (2) ZLR 150), a work stoppage in response to a refusal on the part of the employer
to perform his obligations in terms of the contract or a stay way.

 Party to an employment relationship

The industrial action must be directed to a party to the employment relationship. If the
action is directed at Government as in political and socio-economic strikes the action
ceases to be collective job action. Madhuku submits that sympathy strikes are not covered
because they take place in a workplace other than the one where the dispute exists in an
attempt to force an employer to settle the dispute. A party to an employment relationship
is the employee’s employer and therefore a strike cannot be directed against any other
employer (Madhuku, 2015). See Rutunga & Others v Chiredzi Town Council & Another
2003(1) ZLR 197(s).

 Concerted action
The industrial action must involve a collective of employees with a deliberate or common
purpose, (Gwisai, 2006). An individual employee cannot exercise the right. However, a
single employer can embark on collective job action by locking out employees. See
Tsingano & Others v Munchville Investments (Pvt) Ltd t/a Bernstern Clothing SC 163/98;
Schoeman & Another v Samsung Electronics (Pvt) Ltd (1997) 10 BLLR 1364(CC).

11.6.2 Forms of collective job action

Just like section 65(3) of the Constitution, the definition of collective job action in section 2 of
the Labour Act provides for many forms of protected industrial action. The following forms are

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identified by Gwisai (2006):

 Strike
This is the most common form of industrial action available to employees. It is the
collective withdrawal of labour by workers or other concerted interruption of work to put
pressure on an employer to concede to their demands (Grogan, 2011).

 Boycott
Rycroft and Jordaan define the term as the combining in refusing to hold relations with
another so as either to punish him or to coerce him into abandoning his or her position.

 Lock out
It is the employers equivalent of a strike and the employer withdraws the opportunity for
the workers to work by locking them out of the premises, discontinuing the business of
terminating their contracts of employment (Gwisai, 2006). See Cargo Carrier (Pvt) Ltd v
Zambezi & Others 1996(1) ZLR 613(5); CWIU & Others v Indian Ocean Fertiliser
(1991) 12 ILJ 822 (IC). Section 102 of the Labour Action defines a lock out as follows:
any one or more of the following acts or omissions by any person who is or has been an
employer –
(a) the exclusion by him of any person or number of persons, who are or have been in his
employ, from any premises on which work provided by him is or has been performed; or
(b) the total or partial discontinuance by him of his business or of the provision of work; or
(c) the breach or termination by him of the contracts of employment of any person or number
of persons in his employ, or
(d) the refusal or failure by him to re-employ any person or number of persons who have
been in his employ;
if that exclusion, discontinuance, breach, termination, refusal or failure is in consequence of a
dispute regarding conditions of employment or other matters, and the purpose of that
exclusion, discontinuance, breach, termination, refusal or failure is to induce or compel any
persons who are or have been in his employ or in the employ of other persons to agree to or
comply with any demands concerning conditions of employment or re-employment or other
matters made by him or on his behalf or by or on behalf of any other person who is or has
been an employer.

 Sit in and sit out

With sit ins workers remain in the workplace, possibly continuing to work, but with the
aim of denying the employer control of or access to work processes (Gwisai, 2006). A sit
out is the opposite of a sit in.

 Other concerted action

Other forms of industrial action include the following. Work to rule is a popular action
among employees who perform tasks on their own initiative and who produce or do more
than what they are required to do. Workers simply adhere to set hours of work or
production targets. It is designed to slow production. With go slows workers withhold
their labour but without actually bringing production to a halt. They continue to fulfil

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 their duties but at a slow pace (Gwisai, 2006). Overtime bans are another form of
collective job action and may have an effect similar to a go-slow. Workers who are
obliged to work overtime refuse to do so. See NUMSA & others v Gearmax (Pvt) Ltd
(1991) 12 ILJ 778 (A). However, refusal to work voluntary overtime does not constitute
collective job action (Gwisai, 2006).

Activity 11.1
1. Explain why the right to collective job action deserves protection.
2. Identify international standards which have influenced the domestic recognition of the
right to collective job action.
3. Define the term collective job action.
4. Read the following sets of facts and decide whether the actions comply with the
essential elements for conduct to qualify as collective job action:

(a) Members of the Zimbabwe Congress of Trade Union who work in the dispatch
department of Electrical Appliances embark on an action in terms of which they
report for duty every morning, but refuse to work during lunchtime.
(b) Employees in the data capturing section of a company lock the doors to their offices
and refuse to receive any new information for capturing for a few hours every day.
During this time, they carry on with the work that they have on their desks, but do not
accept any new work.
(c) Employees of AZ Bazaars engage refuse to work in support of a national protest
action demanding that the government change the tax system called for by the main
opposition party.

11.6.3 Requirements for a lawful collective job action

The Labour Act imposes several conditions which must be satisfied by employees before they
can embark on a lawful collective job action. These conditions can alternatively be referred to as
restrictions on the right to collective job action. The following are the prerequisites for a lawful
collective job action:

 Existence of a dispute of interest

Section 104(3) (a) (ii) restates the restriction in section 104(1) that there is no right to
strike in respect of a dispute of right. Therefore, the starting point is that there must be
dispute of interest in existence before other procedural requirements are satisfied. See
Zimbabwe Graphical Workers’ Union v Freedom of Master Printers of Zimbabwe &
Another 2004 (2) ZLR 103 (S).

 Attempt to conciliate dispute and certificate of no settlement. The dispute of interest must
in terms of section 104(2) (b) have been referred to conciliation. The attempt to conciliate
the dispute must fail resulting in the issuance of a certificate of no settlement in terms of
section 93(3) of the Labour Act. See NetOne Cellular (Pvt) Ltd v Communications and
Allied Services Workers Union of Zimbabwe SC 89/05, Zimpost (Pvt) Ltd v
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 Communications and Allied Workers Union 2009 (1) ZLR 334(5).

 No referral to arbitration
Section 104(3) (a) (iii) of the Labour Act provides that employees cannot embark on a
collective job action if there is an agreement with the employer to refer the dispute to
arbitration. The agreement to refer the dispute to arbitration must have been entered into
after the dispute had arisen (Madhuku, 2015).

 Secret ballot
In terms of section 104(3) (e) of the Labour Act, collective job action must be approved
by the majority of the employees voting by secret ballot. The conduct of the secret ballot
is regulated by the Labour (Settlement of Disputes) Regulations, 2003. The Regulations
provide for a simple majority of the valid votes cast. The voting process is monitored by
a Labour Officer or Designated Agent. In terms of section 8(4) of the Regulations the
secret ballot must be conducted at the workplace before the expiry of the period of notice
of intention to resort to collective job action and during working hours. Madhuku (2015)
argues that this provision has the potential of infringing freedom of association as
enshrined in the Constitution.

 Trade union approval

Unregistered trade unions are prohibited from recommending or embracing collective job
action in terms of section 104(3) (c) of the Labour Act read with section 30(3) (a). Where
a proposed collective job action involves a workers’ committee or employees on their
own, section 104(3) (b) requires the proposed industrial action to be approved by the
relevant trade union. There is no specified format for the approval of the collective job
action (Madhuku, 2015).

 Compliance with, or exhausting remedies in a union agreement

Madhuku (2015) submits that this restriction is in section 104(3) (d) and only applies to a
strike proposed by workers’ committee for an industry or undertaking in which there is a
‘union agreement’ governing the matter in dispute. If a union agreement governs the
matter in dispute or provides remedies for the dispute, no collective job action by a
workers’ committee is permissible before compliance with the relevant provisions of the
agreement. The restriction is not applicable to collective job action organised by
employees on their own.

 Notice of intention to resort to collective job action

Section 104(2) (a) of the Labour Act provides that 14 days’ written notice of intention to
resort to collective job action must be given to the employer, the appropriate employment
council and the trade union, if action is by members of a trade union. Madhuku (2015) is
of the view that the notice must be issued after all processes have been completed. This is

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 logical. To be valid the notice must be: in writing, specify the grounds for the intended
action; be served on the persons specified in the Act and give a period of at least 14 days
before the intended action. See Moyo & Others v Central Africa Batteries (Pvt) Ltd 2002
(1) ZLR 615 (S), Zisco Ltd v Dube & Others 1997 (2) ZLR 172 (S); Kambuzuma &
Others v Athol Evans Hospital SC 118/04; Zimbabwe Graphical Workers Union v
Federation of Master Printers of Zimbabwe & Another 2007(2) ZLR 103 (S). Collective
job action must take place on expiration of the noticed period or within a reasonable
period thereafter. See Net One Cellular (Pvt) Ltd v Communications and Allied Services
Workers Union of Zimbabwe SC 89/05. As long as employees give a reasonable
explanation for the delay, the notice remains valid. In the event that the notice lapses
without the employees embarking on collective job action, they have to issue a fresh
notice. See Moyo & Others v Central African Batteries supra. Where collective job action
is interrupted and called off on several occasions to give parties an opportunity to settle
the dispute amicably, no fresh notice is required for its resumption (Madhuku, 2015). See
Cole Chandler Agencies (Pvt) Ltd v Twenty-Five Named Employees SC 161/98. Lastly,
the grounds in the notice must be the same with the issues constituting the dispute
between the parties, have been subject of the conciliation ad contained in the certificate
of no settlement (Madhuku, 2015).

 The collective job action itself

Once the above procedural requirements have been satisfied employees can now embark
on the various forms of industrial action.

11.6.4 Circumstances were right to collective job action is unavailable

In parargraph 11.5 it was established that the right to collective job action is not absolute. It can
be limited in terms of a law of general application. In certain circumstances, the right is not even
available. The Labour Act is one such law which not only limits the right but takes it away in
specific circumstances. The following are the various circumstances in section 104 of the Labour
Act were the right to collective job action is unavailable.

 Essential services
Section 104(3) (a) (i) of the Labour Act prohibits employees engaged in essentials
services from embarking on collective job action. Section 102 of the Labour Act defines
the term essential service as any service:
(a) the interruption of which endangers immediately the life, personal safety or health of
the whole or any part of the public; and
(b) that is declared, by notice in the Gazette made by the Minister, after consultation with
the appropriate advisory council to be an essential service.
The definition is influenced by ILO standards as it links the concept of essential service
to an immediate threat (Gwisai, 2006). For the Minister to declare any services as
essential service, the service must be one whose interruption endangers the life, safety or
health of the public. The Minister has since declared in section 2 of the Labour

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 (Declaration of Essential Services) SI 137 of 2003 the following services or essential
services: services relating to fire brigade, distribution of water, veterinary services,
revenue specialists involved in the performance of security and health checks at airports,
certain areas in health and electricity services and a public broadcaster during a declared
state of disaster. See also Rutunga & Others v Chiredzi Town Council & Another S
117/02, Kadoma Magnesite (Pvt) Ltd v Acting Regional Hearing Officer & Others 1991
(1) ZLR 283 (H).

However, it must be noted that not all employees in a declared essential service are
regarded as being engaged in the essential service (Madhuku, 2015). The Minister
specifies categories of employees in that particular service who are regarded as being
‘engaged’ in an essential service. For instance, section 2(a) of the SI 137/2003 declares
the following employees in the fire brigade as essential services: drivers, control
attendants, chief fire officers and assistants, divisional officers and supervisors of fire
fighters and station officers. Any other employees employed by the fire brigade outside
the above specified categories are not engaged in an essential service. In terms of section
3 of SI 173/2003, the Minister has the power to declare a non-essential service an
essential service if a strike in a sector persists to the point that the lives, personal safety or
health of the whole or part of the population is endangered. In addition, essential services
are also regulated by the Emergency Powers Act (Chapter 11:04). Lastly, disputes of
interests in essential services are resolved through compulsory arbitration as provided for
in section 93 of the Labour Act as amended.

 Dispute of right
As discussed earlier section 104(3) (a) (ii) prohibits collective job action in respect of
disputes of right.

 Arbitration agreement
Employees cannot lawfully go on collective job action if there is an agreement with the
employer to refer the dispute to arbitration. This aspect has already been discussed. See
Chisvo & Others v Aurex (Pvt) Ltd 1999 (2) ZLR 334.

11.6.5 Circumstances were right to collective job action is immediate

The Labour Act makes provision for two circumstances justifying an immediate collective job
action. In other words, employees are permitted to embark on collective job action, without
taking heed of the procedural requirements set in section 104 of the Act. Section 104(4) of the
Labour Act provides for the following circumstances:

(a) in order to avoid any occupational hazard which is reasonably feared to pose an
immediate threat to the health or safety of the persons concerned:
Provided that:
(i) the occupational hazard has not been deliberately caused by the persons resorting to
the collective job action;
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 (ii) the collective job action resorted to shall remain proportional in scope and locality to
the occupational hazard in question;
(iii) the collective job action shall diminish in proportion as such occupational hazard
diminishes.

(b) in defence of an immediate threat to the existence of a workers’ committee or a registered

trade union. See First Mutual Life Assurance v Muzivi SC 62/03.

Activity 11.2
1. Outline the procedural requirements which must be satisfied for employees to embark on
a lawful collective job action.
2. Describe two circumstances where employees are allowed to go on collective job action
without taking heed of the procedural requirements of section 104 of the Labour Act.
3. Define the term essential services.
4. Discuss whether employees engaged in essential services may participate in a strike
action.
5. Wise Owl College is a private school located in Gweru. It has a staff complement of 80
employees and these include teachers, administrative staff and cleaners. The employees
have entered into wage negotiations with the College with the assistance of the
Zimbabwe Federation of Trade Unions (ZFTU). After three wage negotiation meetings,
the parties are nowhere near reaching settlement. This is largely due to the fact that the
school is facing a financial crisis because of mismanagement of funds, and has very
limited finances available for the employees’ annual wage increase. The school has
already dismissed those who were responsible for the mismanagement of funds and is
currently discussing the retrenchment of 20 employees. The employees demand is for a
200% wage increase, and the inflation rate is accepted by all parties to be 150%. The
employees’ wages are generally higher than those of employees in comparable
institutions. One day, the employees wait until parents of children have dropped off their
children at the school, and left. Then they announce that they are striking. They leave the
children unattended, and gather at the school gate, where the sit. They vow not to return
to work unless they are given at least a 150% wage increase. The Principal of the College
phones you in panic. He wants to know what he can or should do in the circumstances.
Provide him with detailed advice.

11.6.6 Consequences of a lawful collective job action

A lawful collective job action has several effects on the contract of employment. In addition, the
Labour Act also affords employees engaged in a lawful collective job action certain rights and
protections. A lawful collective job action is one which complies with the procedural
requirements in section 104 of the Act. The first consequence of a lawful collective job action
identified by Madhuku (2015) is that the employer is not obliged to remunerate employees on a

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lawful strike. This is a codification of the common law principle of ‘no work, no pay’. The
position was summarised in National Railways of Zimbabwe v Zimbabwe Railways Artisans
Union & Others 2005(1) ZLR 314 (5) as follows:
At common law, the obligation of an employer to pay wages is dependent upon the performance
by the servant of the work that he contracted to do. The common law position is restated in
section 108(4) of the Act. The point being made is that the striking employee is not entitled to
remuneration even where the strike is lawful.
However, where remuneration of an employee is partly in kind and includes benefits such as
accommodation, provision of food and other basic amenities of life, these cannot be suspended
during the period of the lawful strike. Section 108 of the Labour Act gives the employer the right
to recover the monetary value of the payment in kind after the lawful strike.

Secondly, section 108(2) of the Labour Act protects employees on a lawful collective job action
from discipline and dismissal. Workers committees and trade unions are granted immunity from
civil liability or any proceedings arising from the lawful strike. However, the immunity does not
extend to wilful acts or omissions, which cause destruction or damage property. See
Communications and Allied Workers Union of Zimbabwe v Tel One (Pvt) Ltd 2005 (2) ZLR
200(H), Tel One (Pvt) Ltd v Communications and Allied Services Workers Union of Zimbabwe
2006(2) ZLR 136 (S). Thirdly, in the event of the collective job action being a lock out, section
108(5) of the Labour Act provides that the employer may not employ other persons to do the
work of the employees who have been locked out. Put differently, employees have a right not to
be replaced by scab labour (Gwisai, 2006).

11.6.7 Consequences of an unlawful collective job action

An unlawful collective job action is one which does not comply with the requirements set out in
section 104 of the Labour Act. See Speciss College v Chiriseri & Others SC 2/13. The following
are the consequences.

 Discipline and dismissal

Under the common law participation in unlawful collective job action is a breach of the
employment contract warranting summary dismissal. See Wholesale Centre (Pvt) Ltd v Mehlo
& Others 1992(1) ZLR 376 (H); Lancashire Steel (Pvt) Ltd v Mandevana & Others SC 29/95.
The common law position has since been modified by statute. Section 12B(1) of the Labour
Act affords every employee the right not to be unfairly dismissed. This right also covers
participants in an unlawfully collective job action. Their dismissal must be procedurally and
substantively fair. They have to bed disciplined in terms of an employment code of conduct or
in its absence, the national employment code of conduct. When provisions of a code of
conduct are invoked, an employer must charge employees individually with acts of
misconduct connected with or arising from the strike. See Zimpost (Pvt) Ltd v
Communications and Allied Workers Union 2009 (1) ZLR 334 (S); Pungwe Breweries (Pvt)
Ltd v Mambondiani & Others SC 90/04; CABS v Rugwete & Others SC 23/03.

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The employer is under no obligation to charge all employees who participated in an unlawful
collective job action. Selective punishment of employees is permissible. It is therefore not
uncommon for the ringleaders in unlawful collective job action to be singled out for
discipline. See Lancshire Steel v Zvidzai & Others SC 29/95; Mashonaland Turf Club v
Mutangadura SC 5/12. However, this position violates the parity principle and the
constitutional right to fair labour practices which requires that employees who have
committed acts of misconduct that are similar in nature should not be treated differently.
Unjustified selective punishment or dismissal is unfair.

Alternatively, on employer can use the additional special procedures for the dismissal of
strikers in the Labour Act. On one hand is section 107(3) (a) (ii) which provides that a
disposal order may provide for the dismissal of specified employees or categories of
employees engaged in the unlawful collective job action. A disposal order may give the
employer the power to dismiss participants in an unlawful collective job action without
invoking the code of conduct. In this case, section 12B of the Labour Act is inapplicable. See
Dube & Others v Unifreight Ltd & Another SC 101/99. Madhuku (2015) submits that this
route is an exceptional measure only available on strict conditions. He proposes the following
conditions:
(a) the dismissal must be part of the proposed orders or actions in the show cause order
in terms of section 106(2) (a) (ii).
(b) the specified employees must have disobeyed the provisions of a show cause order
made in terms of section 106(2) (b) directing them to terminate, postpone or
suspend the unlawful collective action pending the Labour Court hearing, and
(c) the employees concerned must have been afforded an opportunity on the return day
of the show cause order to make representations on the issue of their dismissal
through the disposal order.
The approach affords employees the same protections against unfair dismissal guaranteed in
section 12B. However, this approach is not mandatory. An employer can still opt for the code
of conduct route. See Marondera Rural District Council v Morris & Others 2006 (1) ZLR 63
(S); Carnaud Metal Box (Pvt) Ltd v Mwonzora & Others SC 9/09, ZICSO v Dube & Others
1997 (2) 172(S).

On the other hand, section 107(3) (a) (ii) provides that a disposal order may provide for the
employer to take disciplinary action in terms of the code of conduct or lay off or suspend with
or without pay, specified employees or categories of employees engaged in the unlawful
collective job action. In this case the employer is obliged to take disciplinary action in terms of
a code of conduct. Therefore, section 12B must be complied with. However, in Dube & Others
v Unifreight Ltd & Another supra, the Supreme Court accepted that the term ‘any disciplinary
action’ includes a dismissal without a hearing.

There is nothing in the Labour Act which prescribes that an unlawful collective job action can
only be addressed through a code of conduct or show cause orders. The employer has various
options available to him. However, where the collective job action is massive and provisions of
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a code of conduct are dwarfed, it is desirable for the employer to use the disposal order route.
Employment codes are designed to deal with individual disputes rather than collective disputes
(Gwisai, 2006). Requirements of a fair and just dismissal process are unlikely to be met. See
Cargo Carriers (Pvt) Ltd v Zambezi & Others 1996 (1) ZLR 613 (5), ZISCO Ltd v Dube 1997
(2) ZLR 172 (S), Tel One (Pvt) Ltd Communications and Allied Workers Union 2006 (2) ZLR
(S), CABS v Rugwete 2009 (2) ZLR 26 (S). Dismissal via the disposal order procedure has its
own limitations. It is only available if the unlawful collective job action is still being threatened
or engaged in at the time the procedure is invoked (Madhuku, 2015). The procedure falls or
does not arise if the unlawful collective job action is terminated. See Zimpost (Pvt) Ltd v
Communications and Allied Workers Union 2009 (1) ZLR 334 (S). In addition, the right of the
employer to use the disposal order route is dependent on the discretion of the Labour Court
which can authorise the dismissal of the employees.

 Criminal sanctions
Section 109(1) of the Labour Act imposes criminal liability on workers’ committees and trade
unions involved in an unlawful collective job action. The criminal offences include the
following: recommending, advising, encouraging, threatening, inciting, commanding, aiding,
procuring, organising and engaging. Criminal liability is also extended to every official or
office bearer of the workers’ committee or trade union. The penalties imposed by the Act
include a fine not exceeding level fourteen or imprisonment for a period not exceeding five
years or both such fine and such imprisonment. Criminal liability is further extended to parties
outside the employment relationship. Section 109(2) creates liability for anyone who
recommends, address, encourages, threatens, incites, commands, aids or procures any
collective action with the intention or realising that there is a risk or possibility of bringing
about such collective action. Additional offences of disobeying a show cause order or disposal
order are also created in section 112 of the Act. In terms of section 109(7) a criminal court
convicting in terms of section 109(1) or (2) can also award compensation to any person who
has suffered personal injury or whose right or interest in property of any description has been
lost or diminished as a result of the unlawful collective job action.

 Suspension of check-off scheme

Trade unions have the right to levy, collect or recover union dues. In terms of section 109(3)
the Minister has power to issue an order in writing suspending for a specified period not
exceeding 12 months the right of a trade union to levy, collect or recover union dues by a
means of a check-off scheme. The power can only be exercised if the Minister believes on
reasonable grounds that the trade union is involved in an unlawful collective job action.
Madhuku (2015) identifies two circumstances in which the suspension of the check-off
system can be ordered. Its either simultaneously with a show cause order or independently or
instead of a show cause order. (section 109(4) and (5).

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  Civil liability
The Labour Act imposes civil liability on organisers and participants in an unlawful collective
job action. Section 109(6) provides that every official or office bearer of the trade union and
every employee who participates in the action are jointly and severally liable ‘for any injury to
or death of a person, loss or damage of property or other economic loss, including the
perishing of goods caused by the employees’ absence from work, or caused by or arising out
of or occurring during an unlawful collective job action.’ Damage can be recovered through
civil proceedings in terms of section 109(6) or at the conclusion of criminal proceedings
instituted in terms of section 109(1). Gwisai (2006) submits that the provisions are drconian in
nature and act as a disincentive for employees to exercise their right to collective job action.

11.6.8 Measures to suppress an unlawful collective job action

Section 106 of the Labour Act provides that a collective job action or proposed collective job
action which is regarded as unlawful collective action can be arrested through a show cause
order. The Minister may either on his own initiative or on application from a person affected by
the matter, issue a show cause order calling upon the responsible person to show cause why a
disposal order should not be made in relation thereto. It is labour law’s equivalent of an interdict.
However, to understand the concept it is necessary to define a disposal order first. A disposal
order is an order made by the Labour Court in terms of section 107(2) of the Act directing the
termination, postponement or suspension of an unlawful collective job action. The order may
also direct that the issues giving rise to the unlawful collective job action be referred to the
dispute resolution forums established in the Labour Act such as conciliation or arbitration
(section 107(2) (b) of the Labour Act). What is issued before a disposal order is a show cause
order. The essence of a show cause order is that a responsible person for the unlawful collective
job action be given an opportunity to argue why a disposal order should not be issued. In terms
of section 106(2), the show cause order calls upon the responsible person to appear before the
Labour Court on a specified place date and time and justify why the unlawful collective job
action should not be terminated postponed or suspended. The show cause order must also show
the proposed content of the disposal order and the proposed action dealing with the collective job
action.

From the foregoing it is clear that there can be no disposal order without a show cause order,
(Madhuku, 2015). It therefore follows that if a show cause order is invalid, then any disposal
order arising from it is a nullity. A show cause order can only be issued by the Minister of
Labour. See Cargo Carriers (Pvt) Ltd v Zambezi & Others 1996 (1) ZLR 613 (S). The Minister
can act on his own initiative or upon application by any person affected or likely to be affected
by the collective job action. (section 106(1) 0f the Act). He or she may also call the parties to
appear before him or her. Madhuku (2015) argues that it would be unreasonable to issue a show
cause order without affording the parties the right to be heard. It goes against fundamental
principles of fairness and the right to administrative justice. In Zimbabwe Graphical Workers
Union v Federation of Master Printers of Zimbabwe & Another 2007 (2) ZLR 103 (S) it was
held that the Minister has no power to issue a second show cause order in the same matter and in
respect of the same dispute. The Minister must strictly comply with section 106.

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Before issuing a disposal order, the Labour Court must in terms of section 107(1) inquire into the
matter in that it must afford the parties concerned an opportunity to make representations in the
matter. Of interest during the inquiry before the Labour Court is the lawfulness or otherwise of
the collective job action and nothing else. It has nothing to do with the underlying dispute that
resulted in the collective job action. If the Labour Court finds that the collective job action is
unlawful, it has no discretion but to issue a disposal order. There is no basis to issue a disposal
order if the collective job action is lawful. Once issued the disposal order must be served on the
workers’ committee of the striking employees if the workers committee is the representative
during the proceedings. See Tsingano & Others v Munchville Investments SC 163/98; Dube &
Others v Unifreight Ltd & Another SC 101/99. As for its contents a disposal order must direct the
termination, postponement or suspension of the unlawful collective job action including ancillary
issues such as a dispute settlement. Additional relief which is provided for in section 107(3)
include: discipline and dismissal of strikers, suspension or rescission of registration of trade
union and prohibition of collection of union dues. These actions are not independent. They can
only be ancillary to either (a) an order of termination, postponement or suspension of the strike
as an end in itself, or (b) a termination, postponement or suspension pending a determination of
the issue in terms of Part XII of the Labour Act. Lastly, it must be noted that there is no scope for
a show cause order if there is no responsible person such as a workers’ committee or trade union.
Therefore, if the collective job action is by a group of workers (unorganised workers) not led by
a workers’ committee or trade union, then the action cannot be interdicted through the show
cause route (Madhuku, 2015).

11.7 Picketing
Section 104A (1) of the Labour Act defines a picket as follows:
a gathering of members and supporters of a trade union or workers’ committee for either or both
of the following purposes-
(a) demonstrating peacefully –
(i) in support of any collective job action; or
(ii) in opposition to any lockout;
and
(b) peacefully persuading other members of the trade union or workers’ committee or
employees of the industry, undertaking or workplace represented by the trade union
or workers’ committee to take part in the collective job action or demonstration.
A picket must be authorised by a registered trade union or workers’ committee (Section 104A
(2)). From the definition, a picket can be made up of the striking employees, members of a trade
union not involved in the strike and supporters who need not have any connection with the
dispute, trade union or industry. In terms of section 104A (3) (b) a picket must be conducted in
an area which does not substantially affect production. This can be outside the premises of the
employer and any place to which the public has access to but reasonably near the employers’
premises. A picket can only take place inside the employer’s premises if a collective bargaining
agreement or code of producting made in terms of section 119 permits.

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Demonstrating during a picket includes displaying and waving placards with written messages,
singing, dancing and chanting slogans in furtherance of workers’ demands. During the
demonstration the picket must be peaceful. On whether or not a picket is subject to the regulatory
framework of public demonstrations in the Public Order and Security Act (POSA), Madhuku
(2015) submits that section 104A(3) does not exempt a picket from POSA. Since the Act
requires a picket to be peaceful, POSA is meant to prevent public disorder and the only way of
guaranteeing peace is to comply with provisions of POSA on public meetings and demonstration.
Gwisai (2006) argues that it is not necessary to notify the police under POSA. He relies on the
authority of ZCTU v Officer Commanding, ZRP, Harare 2002 (1) ZLR 323 (H). However, this
case dealt with the right of police officers to attend trade union meetings of the Applicant.

Activity 11.3
1. Discuss whether employees who participate in a lawful collective job action may be
dismissed.
2. Briefly discuss the “no work, no pay” principle.
3. Define the term picket.
4. Members of trade unions affiliated to the Zimbabwe Federation of Trade Unions are
participating in an action to demand a change in the education system that has just been
introduced by the government. Discuss whether these workers are engaged in a collective
job action.
5. Following a deadlock in collective bargaining negotiations for wage increments for the
second quarter of 2010, the Pottery Industry Workers Union (PIWU) gave the Pottery
Federation of Employers a fourteen days’ notice of intention to go on collective job
action, if the federation did not accede to their demand for a minimum monthly wage of
$250 a month for the lowest paid employee. Following a show cause order issued by the
Minister on application by the Federation the dispute is referred to the Labour Court
which issues a dispoal order stipulating that “the collective job action be suspended
pending the outcome of conciliation proceedings”. After two weeks of negotiation the
conciliation fails and a certificate of no settlement is issued by the labour officer.
Immediately after this, members of PIWU, including employees of Thomas Nigel (Pvt)
Ltd go on strike.

The employer responded by dismissing “on the spot” the chairperson and secretary of the
workers’ committee for leading an unlawful strike because no lawful notice was issued

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 nor other formalities required under the Labour Act. A further ground was their writing a
leaflet to workers encouraging them to join the strike to deal with their bosses who were
“dyed in the wool of colonial and indigenous exploiters”. Other members of the workers’
committee were charged under the company’s employment code with the offence of
conduct inconsistent with the express or implied terms of their contracts of employment.
The hearings were done six months after the strike whilst the employees’ lawyers and
PIWU representative were barred from attending the hearings. The employees were
found guilty and given sentences of demotions, non –payment of wages for the period of
the strike and a final warning.

The union and employees approach you for advice on whether their dismissal and other
disciplinary measures were lawful and what appropriate remedies are available to them.
In particular, they seek your advice on the following:
(a) whether the strike was lawful
(b) whether the dismissal of the chairperson and secretary of the workers’ committee
was lawful and if not what is the appropriate remedy

11.8 Summary

This unit dealt with the right to collective job action in Zimbabwe. It commenced with a
discussion of the rationale for the right and international standards which influenced the right.
This was followed by an analysis of the domestic protection of the right as provided for in the
Constitution and the Labour Act. In this discussion, the following issues were dealt with:
definition of collective job action and its various forms, requirements for a lawful collective job
action, exclusions of the right, circumstances were the right is immediate; consequences of a
lawful collective action, consequences of an unlawful collective job action, measures to supress
an unlawful collective job action and picketing. It was established that the constitutional right to
collective job action is heavily curtailed by the Labour Act.

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References
Gwisai, M. (2001). Labour and Employment Law in Zimbabwe, Harare: Zimbabwe Labour
Centre.
Rycroft, A. & Jordaan, B. (1992), A Guide to South African Labour Law, Durban: Juta & Co.
Madhuku, L. (2015). Labour Law in Zimbabwe, Harare: Weaver Press.
Mahapa, M. & Watadza, C. (2015). The dark side of Arbitration and Conciliation in Zimbabwe,
Journal of Human Resources Management and Labour Studies.
Sambureni, N.T. & Mudyabikwa, P. (2003). Introduction to Industrial and Labour Relations,
Harare: Zimbabwe Open University.
Uzhenyu, D. (2015). Introduction to Industrial and Labour Relations, Harare: Zimbabwe Open
University.
Van Niekerk, A. (2012). Law@work, Durban: LexisNexis.

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 UNIT 12

Social Security Law

12.1 Introduction

This unit introduces students to the discipline of social security law. It defines the term social
security and identifies the two main categories of social security. In addition, the unit discusses
the two areas of social security which arise in Zimbabwean labour law, namely, compensation
for work-related injuries, diseases and death and pensions.

12.2 Objectives

By the end of this unit, you should be able to:

 define the term social security
 identify the two main broad categories of social security law in Zimbabwe
 discuss the jurisprudential basis of social security protection in Zimbabwe
 critically examine the legal framework for compensation for work-related injuries,
diseases and death in Zimbabwe
 evaluate the legal framework of pension law in Zimbabwe

12.3 Defining social security

Social security constitutes measures that are put in place to guarantee either the basic necessities
of life for the less privileged or an income for all categories of persons affected by the risk of
loss of earnings. It encompasses schemes or actions backed by the State which ensure that people

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have such protection (Madhuku, 2015, p.488). Social security can be divided into two categories:
social insurance and social assistance. Social insurance or earned social security is where persons
are entitled to benefits only if they have previously contributed to a fund. This form of social
security is available to workers and their families. Usually the contributions are compulsory and
shared by employers and employees. Social assistance is concerned with pay outs made by the
State to individuals on the basis of need (usually the less privileged) and without them having
contributed previously to any fund (Scheinin, 2001).

At international level, the ILO Social Security (Minimum Standards) Convention 102 of 1952
regulates social security. The Convention identifies the following forms of social security
benefits: medical care, sickness benefit, unemployment benefit, old-age benefit, employment
injury benefit, family benefit, maternity benefit, invalidity benefit and survivor’s benefit. Section
30 of the 2013 Constitution of Zimbabwe provides that ‘the State must take all practical
measures, within the limits of the resources available to it, to provide social security and care to
those who are in need.’ This principle of state policy is not justiciable and there is no right to
social security in the Declaration of Rights of the Constitution. In Zimbabwe, social security is
regulated by labour legislation. Two areas of social security arise, namely, compensation for
work-related injuries, diseases and death and pensions.

12.4 Compensation for Work-related Injuries, Diseases and Deaths

Most countries in the world have a social security scheme providing for one or another form of
compensation for work-related injuries, deaths and diseases. The origins of this area of social
legislation is the common law, which placed a duty on employers to ensure reasonable care for
the safety of its workers, including the provision of safe premises, machinery and systems of
work (Gwisai, 2006, p.378). Breach of the common law duty entitled the employee to sue for
delictual damages or contractual damages. However, the common law was inadequate in several
respects. For instance, use of the delictual standard of care of the reasonable person did not cater
for vulnerable workers such as women and the disabled; the standard of care under common law
was too low and ill defined; the common law allowed employers to minimise or exclude liability
through defences such as volenti non fit injuria, contributory negligence and express exclusion
clauses in agreements; under the common law compensation is on a fault basis and the thrust of
the common law is on damages subsequent to the harm, rather than on mandatory measures of
prevention and safety.

As a result of the inadequacies of the common law, several instruments were adopted at
international law guaranteeing employees right to a safe and healthy workplace as a fundamental
right. These include the following: the Universal Declaration of Human Rights, the United
Nations International Covenant on Economic, Social and Cultural Rights, the Convention on the
Elimination of all Forms of Discrimination against Women, the African Charter on Human and
Peoples Rights and the SADC Charter. The ILO also has several instruments on occupational

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health and safety that establishes employer’s obligation to protect worker’s health and safety.
The principal ILO instrument is the Occupational Safety and Health Convention 155 of 1981.

Zimbabwe recognises worker’s rights to occupational health and safety at national level. Section
65(1) of the Constitution entrenches the right to safe labour practices and standards. The right is
then given effect to by various pieces of labour legislation. Section 6(1) (d) of the Labour Act
provides that ‘no employer shall require any employee to work under any conditions or situations
which are below those prescribed by law or by conventional practice of the occupation for the
protection of such employee’s health or safety.’ The most detailed institutional framework and
enforcement machinery of the right to occupational health and safety in Zimbabwe is found in
the National Social Security Authority (Accident Prevention) (Workers Compensation Scheme)
Notice 68 of 1990.

The Second Schedule of Notice 68 of 1990 lists a number of scheduled occupational diseases.
The Third Schedule to the Notice 68 of 1990 then creates duties of employers, supervisors or
safety representatives and workers which impact on the right to safe and healthy working
conditions. For employers, the following duties are created:
 Equipment, protective devices, safety measures or health services must be provided and
maintained in good condition.
 Accurate records must be maintained for handling, storage, use and disposal of
biological, chemicals or physical agents.
 Workers can only do work after undergoing medical tests to ascertain if they are fit to do
the work (See section 15 of the Third Schedule).

Employees have the following rights:

 Right to information of the measures and procedures to be taken for the protection against
risks to safety.
 Right to training in occupational health and safety.

The Notice 68 of 1990 aims to eliminate health and safety risks in the work systems, plant and
machinery and risks associated with all work related activities. It also establishes accident
reporting procedures and makes provision for the establishment of a Safety Committee. To
ensure compliance by employers the Third Schedule to the Notice 68 of 1990 creates an office of
the Supervisor or Safety Representative at the workplace. His or her role is to ensure compliance
by the employer with occupational health and safety requirements. The duty of ensuring a safe
and healthy workplace also lies with the worker. The Third Schedule of Notice 68 of 1990 places
the following obligations on the employees:
 Duty to report any health hazards.
 Duty to report contravention of Notice 68 of 1990.
 To have medical tests carried out at the expense of the employer.

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  To work in compliance with safety requirements.
 Duty not to operate any equipment which may endanger the worker.

In the event of breach of the employer’s duty to ensure reasonable care for the safety of its
workers, the employer is liable for damages. Zimbabwe has a statutory system for the payment
of work-related injuries, deaths and diseases. The main statutory system is provided for in terms
of the National Social Security Act (Chapter 17:04). Part II of the Act provides for Social
Security Schemes and the Minister in terms of section 3(1) of the Act established the Accident
Prevention and Workers Compensation Scheme in 1990. It was established by the Notice 68 of
1990. This legislation largely complies with the following ILO Conventions ratified by
Zimbabwe: Workmen’s Compensation (Accident) Convention 17 of 1925, Workmen’s
Compensation (Agricultural) Convention 12 of 1921, Workmen Compensation (Occupational
Diseases) Convention 18 of 1935 and the Equal Treatment (Accident Compensation) Convention
19 of 1925. Notice 68 of 1990 is a social insurance scheme because in terms of section 66 the
employer is obliged to make contributions to the Workers Compensation Fund. Workers do not
make contributions to the fund since under the common law, it is the duty of the employer to
provide safe and healthy working conditions. In terms of section 69 of the Notice, employers’
contributions may be supplemented by public funds.

12.4.1 Application of the compensation scheme

Section 4 of the Notice 68 of 1990 provides that to qualify for compensation under the scheme,
one must be a worker or a dependant. A worker is defined as ‘any person who has entered into,
or works under, a contract of employment or of apprenticeship or learner ship with an employer,
whether the contract is expressed or implied, is oral or in writing, and whether the remuneration
is calculated by time or by work done, or is in cash or in kind.’ The term also includes persons
undergoing rehabilitation or training in terms of the Scheme, and those engaged in the
transportation of goods (Gwisai, 2006, p.391). The Notice defines the term dependant to mean
the widow or widower of the worker, or, in the absence of these, ‘any person with whom the
worker was, in the opinion of the general manager, living as man and wife, children of the
worker, parent or step parent of the worker, son/daughter, brother, sister, half-brother or half-
sister, or brother of a parent or any grandparent or grandchild or any person who at the time of
the accident was wholly dependent upon the worker for the necessaries of life.’ (Section 5 of the
Notice). Notice 68 of 1990 also defines the term employer broadly. It means ‘any person or any
body of persons, corporate or incorporate, having a contract of employment or apprenticeship or
learner ship with a worker or who employs a worker, and includes any person controlling the
business of an employer. With clubs, co-operatives or other association of persons, the members
of the managing committee, the secretary or other responsible office are deemed to be the
employer.

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A key feature of Notice 68 of 1990 is the ouster of any common law claims of damages which
the employee may have against the employer for disablement or death arising out of the course
of employment. Section 8 of the Notice specifically provides that:
From and after the 1st January, 1960-
(a) no action at common law shall lie by a worker or any dependant of a worker against such
worker’s employer to recover any damages in respect of an injury resulting in the
disablement or death of such worker arising out of and in the course of his employment; and
(b) no liability for compensation shall arise save under and in accordance with this scheme in
respect of such disablement or death.
Therefore, no action for compensation may be taken other than under the provisions of the
scheme. See Sibanda v Independence Gold Mining Zimbabwe (Pvt) Ltd & Another 2003 (2) ZLR
155 (A). However, section 9 of Notice 68 of 1990 makes provisions for an exception to this rule.
If the accident is due to negligence of the employer or a senior manager, or is caused by a patent
defect in the condition of the premises or machinery, the worker may institute a common law
action against the employer for additional compensation. See Mpande v Forbes and Thompson
(Bulawayo) (Pvt) Ltd & Another 1980 ZLR 302; Ncube v Wankie Colliery and Co. & Another
2007 (1) ZLR 96 (H). It must also be noted that there is no liability for delictual damages for pain
and suffering under the Scheme.

Madhuku (2015) submits that the prohibition of common law action against the employer which
restricts work-related injuries, deaths and diseases to the statutory remedies, may be
unconstitutional. It violates the right to the equal protection of the law in section 56 of the
Constitution. However, the South African Constitutional Court in Jooste v Score Supermarket
Trading (Pty) Ltd 1999 (2) SA 1(CC) held that the ouster of common law actions was fair,
reasonable, necessary and justifiable in a democratic society and therefore not unconstitutional.
This is in light of the purpose of the prohibition which is to promote the public interest in having
an orderly, guaranteed and no fault-based compensation scheme for work-related injuries, deaths
and diseases. Madhuku (2015, p.491) identifies the following three advantages of the
compensatory framework under the Scheme:
 It is a no-fault scheme in that an employee is not required to prove any fault on the part of
the employer (all that is required is to prove that the injury, death or disease arising out of
and in the course of employment).
 It covers situations where an employer is financially incapacitated and unable to pay the
damages (damages are paid from an insurance fund).
 Benefits are extended to dependants of employees killed as a result of work-related
accident or disease.

The ouster of common law claims is against the employer only and not third parties. However,
section 10 of the Notice 68 of 1990 regulates actions against third parties. In terms of section
10(1) (b) of the Notice, NSSA has a right of action against a third party for the recovery of the
compensation it is liable to pay under the Scheme. This right takes precedence over the worker’s
right of action against the third party. Any action against the third party can only be instituted as
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additional to a claim for compensation under the Scheme (See section 10 (2) of the Notice). The
action against the third party can only be commenced after giving notice to the general manager
of NSSA of an intention to commence proceedings in a court of law. Section 10(1) (b) of Notice
68 of 1990 provides that NSSA’s right of action against the third party may be exercised either
by intervening in proceedings instituted by the worker against the third party or by instituting
separate proceedings. An employer may be granted an exemption from making contributions to
the fund if it is proved that the employer has established and made provision for the maintenance
of a fund for insurance against any liability which may arise in respect of all its workers. (See
section 76 of the Notice). Section 77 of the Notice describes exempted employers as ‘employer
individually liable.’

12.4.2 Circumstances under which compensation is due

A person can exercise the right to claim compensation in the following circumstances:
 That the person is a worker in a contract of employment.
 The disablement or death arose in the course of employment.
 That there was a bona fide accident which caused the disablement or death.
 That the claim is made within the prescribed period and in accordance with the
prescribed procedure (Gwisai, 2006, p.391).
The disablement, injury or death must arise from a bona fide accident. Section 3 of the Notice
defines an accident as ‘an unlooked for mishap or untamed event or process of work arising out
of and in the course of a worker’s employment, which was not expected or designed by the
worker and which results in injury to him. It is something which is neither anticipated nor
designed by the worker. See Workers Compensation Committee v Stewart 1990 (2) ZLR 376(S).
No compensation is payable if the accident is attributable to the serious and wilful misconduct of
the worker. (See section 24(2) of the Notice). Notwithstanding, the general manager of NSSA
has the discretion to reject or apportion the liability if the accident results in serious disablement
or death of the worker in circumstances where there is a dependant widow or child.

In terms of section 24(1) of the Notice the accident must arise out of and in the course of
employment. This entails that the accident must occur while the employee is performing his or
her contractual duties. See Workers Compensation Commissioner v Stewart (Pvt) Ltd 1990 (2)
ZLR 376 (S); Minister of Justice v Khoza 1996 (1) SA 410 (A). An employee does not cease to be
in the course of employment on account of the fact that at the time of the accident he or she was
acting contrary to an order of the employer (Madhuku, 2015, p.494). See also Jackson v
Lonestar Tribune Ltd 1939 SR 247; Native Commissioner of Salisbury NO v National Employers
Mutual General Insurance Association Ltd 1945 SR. Section 24(2) (b) of the Notice provides
that where a worker dies more than twelve months after the accident, no compensation is payable
unless it is proved that the accident directly caused the death or was the principal contributory
cause of the death. If a claim is based on contracting a disease, it must be shown that the disease

212
is a scheduled disease and was as a result of the nature of the worker’s employment (Section
62(1) of the Notice). A scheduled disease is one that is specified in the Second Schedule to
Notice 68 of 1990 and can be proved by the grant of a certificate by a medical practitioner.

12.4.3 Special provisions

Other provisions designed to protect the employees in Notice 68 of 1990 include the following:
 Section 28 of the Notice prohibits contracting out. The rights in the Notice entitling
workers and their dependants cannot be relinquished or waived. Any such agreement
is null and void.
 Section 29 of the Notice prohibits deductions from the earnings of workers by
employers so as to pay compensation or assessment under the Scheme and
contributions by workers towards the Scheme.
 Section 88 of the Notice prohibits victimisation of employees. It provides that any
person who, by threat or in any other manner whatever, compels or attempts to
compel any worker to do or omit to do any act, the doing or omission of which
deprives or is intended to deprive him or her or their dependants of any right to
compensation, shall be guilty of any offence.
 Section 81 of the Notice prohibits any person in a claim for compensation from
knowingly making false statements.

12.4.4 Procedure for compensation

A party making a claim for compensation must follow the procedure in Part VI of Notice 68 of
1990. In summary, the following steps must be taken:
(i) Employer must give written notice to the general manager of NSSA of the accident
together with particulars of the accident and nature of disablement. This must be done
within 14 days from date of accident.
(ii) The worker must submit the claim for compensation supported by an appropriate
medical certificate.
(iii) On receipt of the claim the general manager shall in terms of section 52 of the Notice
determine the claim and degree of disablement and thereafter advise the worker and
employer of his or her determination.
(iv) The employer or worker may request a reconsideration of the general manager’s
determination within 14 days and the general manager must give a final
determination.
(v) An aggrieved worker may challenge the general manager’s determination by lodging
an appeal within 21 days to the NSSA Board. The appeal must be set down not later
than 30 days from date of noting the appeal. (Section 19(3) (a) of the Notice).
(vi) Any party aggrieved by the Board’s decision has a right to appeal to the

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 Administrative Court within 21 days.

12.4.5 Compensation payable

The Scheme makes provision for a miscellany of benefits that are payable. The amounts payable
are prescribed in Part V of the Notice and are reviewable upon application to the Board. The
benefits payable include the following:
 Medical expenses reasonable and necessarily incurred as a result of the accident in
relation to medical or hospital treatment, medicines supply or repair of dentures,
spectacles, hearing aids, artificial limbs and crutches, travel and subsistence costs etc.
(section 58 of the Notice).
 Provisional payment. Section 33(a) of the Notice provides that employers are required to
pay the worker 100% of the worker’s monthly wage up to the prescribed amount for the
first 30 days following the accident, subject to refund by the general manager of NSSA.
 Periodical payments for workers who suffer temporary disablement or if permanent,
pending determination of the extent of the disablement, as compensation for loss of
remuneration due to absence from work due to occupational accidents or hazards or as a
refund to employers who continue to pay such absent workers. (Section 33 (1) (6) of the
Notice).
 Compensation pension where there is permanent disablement, that is, where a worker’s
disability is over 30% and whose monthly pension amount is above the prescribed sum,
compensation will be paid to the worker as a pension (See section 34 of the Notice).
 Lump sum payment which is paid to a worker whose disability is not permanent, that is
less than 30% and whose monthly pension is less than the prescribed figure (Section 43
of the Notice).
 Funeral grant which is paid in terms of section 35(5) of the Notice to the family or person
who met the funeral expenses of a deceased worker or pension.
 Survivors pension and children’s allowance:
(a) Section 40 of the Notice provides that where a worker dies his or her spouse is
entitled to a pension calculated at the rate of 2/3 of the pension the worker would
have received had he or she been disabled. Where there is more than one spouse, they
will share the amount.
(b) Section 34 of the Notice provides that children below 18 years or those born within
10 months of a worker’s death are entitled to a children’s allowance.
Compensation awarded to a dependent does not in terms of section 83 of the Notice form part of
the worker’s estate and therefore exempt from estate duty.

Activity 12.1
1. Define the term social security.
2. Explain in detail the Zimbabwean legal framework of compensation for work-related

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 injuries, diseases.

12.5 State Employees

These are covered under the State Service (Disability Benefits) Act (Chapter 16:04). The Act
applies to all public servants and members of the disciplined forces. Compensation payable is
paid from the Consolidated Revenue Fund.

12.6 Pension Law

Madhuku (2015, p.495) defines a pension as a regular payment to a person who has ceased being
an employee on account of either old age or disability. If the payment is not regular instalments
but a lump sum then it ceases to be a pension. Under common law there is no right to a pension
unless it is expressly provided for in the employment contract (Gwisai, 2006, p.397). The area of
pension law in Zimbabwe is regulated by statute law. There are two types of pension schemes
available in Zimbabwe, namely, private pensions and a State pension scheme.

12.6.1 Private pension schemes

Private pension schemes are contractual in nature and involve two contracts. The first contract is
the contract of employment. It creates the right of the employee to a pension and terms and
conditions governing the employee’s right to participate in a pension scheme. (Madhuku 2015,
p.498). The second contract is the pension contract which establishes a relationship between the
employee and the pension scheme. It sets out the terms and conditions of entitlement to the
benefits payable under the scheme. An example of a clause in a contract of employment entitling
an employee to membership of a pension scheme is couched in the following terms:
You (the employee) will be required to join the company assisted Pension and Group Life
Assurance Schemes contributions to which amount to 6% of your monthly salary. In this
connection, please supply our Personnel Department with a copy of your Birth and Marriage
Certificates. Please note that the company contributes 165 of your monthly salary to your pension
in addition to your own contribution. Please refer to the Pension Fund Booklet for further details.

A contract of employment imposes a duty on the employee and employer to join and contribute
to a pension fund and sets the contribution levels. A private pension scheme is a body corporate
with separate legal existence from the employer. See Ritchie v Delta Pension Fund 1992 (2) ZLR
413 (S). The terms of a pension contract may be embodied in a collective bargaining agreement.
Private pension schemes can either be workplace based pension schemes, employment council
schemes, trade union-run schemes or insurance company schemes.

Private pension schemes are regulated by the Pension and Provident Funds Act (Chapter 24:09).
Section 2 defines a fund as

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 any scheme or arrangement the principal object of which is to provide benefits for persons who are or
have been members of the scheme or arrangement upon their retirement on account of age or ill-
health, whether or not such scheme or arrangement-
(a) also provides benefits for dependants or nominees of deceased members; or
(b) continues to admit members or to receive contributions;
and includes any fund established by or in terms of any enactment.
The definition of a fund does not include a scheme or arrangement which is established for
the benefit of only one member or his or her dependants. The Act identifies the following
types of funds.
(i) Pension fund – any fund the principal object of which is to provide for the
payment of a pension to a person who is or has been a member of the fund on his
retirement.
(ii) Retirement annuity fund – fund established by an association of persons or an
insurer which –
(a) provides for the payment of a pension to a person who is or has been a
member of the fund on his retirement,
(b) is operated either as an insurance company scheme or without payment of
commission to any person for the introduction of business.
(iii) Provident fund – a fund which is not a pension or a retirement annuity fund.

Every fund must comply with the requirements of the Pension and Provident Fund Act and
regulations made thereunder such as the Provident Funds Regulations, 1991 as amended. In
terms of section 4 of the Act, no person may establish a pension fund unless it is registered or
previously registered. On considering whether or not to register a fund, the Registrar must in
terms of section 5 of the Act consider; (a) that the formalities for application have been complied
with; (b) that the rules of the fund are not inconsistent with the Act and (c) that the fund is or will
be based on sound financial principles. Section 3(3) of the Act prohibits the registration of more
than one active fund by an employer in respect of its permanent employees without approval of
the Registrar. On registration a fund is conferred with the following rights and benefits:
 Conferment of body corporate status capable of suing and being sued in its corporate
name (section 6).
 Shall have assets, rights, liabilities and obligations pertaining to its business to the
exclusion of any other person (section 6).
 A certificate of registration is proof that all the requirements for registration in the Act
have been complied with and the fund is registered (section 9).
 The right to use in its business or name, the terms pension fund, provident fund or
retirement annuity fund (Section 33).
 The right to amalgamate with another registered fund, subject to the approval of the
Registrar, and/or to transfer all or any of its assets and liabilities to another fund (section
27).

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A fund must comply with the formalities and requirements of administration in Part II and III of
the Act. These include: having fully compliant rules of fund; a registered office in Zimbabwe;
having a principal officer who shall ordinarily be resident in Zimbabwe; appoint an auditor, who
shall not be an officer of the fund, and a valuator unless exempted, and generally, comply with
the specified requirements of financial management. Every fund must have rules of fund which
must be approved by the Registrar (Section 7 of the Act). The rules must comply with prescribed
minimum requirements in the Pension and Provident Funds Regulations, 1991. These include
appointment of trustees; functions, powers and duties of trustees; appointment of a principal
officer; right of members to refer disputes to a court of law and conditions and benefits of
membership. Any rule of a fund which is inconsistent with the Act or Regulations is null and
void. Part III of the Act also provides rules relating to membership and benefits of a fund. For a
discussion of these rules see Gwisai, M. (2006) The major ones are on membership,
contributions, benefits, and refunds, benefits on retrenchment, periods, commutation and
disability benefits. It must be noted that the retiring age set by the Act is not less than 55 years
and the maximum is 70 years. Investigation and dissolution of funds is also provided for in the
Act and Regulations.
12.6.2 State pension scheme

The NSSA (Pensions and Other Benefits Scheme) Notice 1993 (SI 393/93) creates a compulsory
pension scheme known as the Pensions and Other Benefits Scheme. It applies to all employees
including State employees with the exception of domestic workers. In Nyambirai v NSSA and
Another 1995 (2) ZLR 1 (S) it was held that the compulsory nature of the scheme was
constitutional. The Scheme provides several benefits which are payable to employees on
retirement, injury, illness or death. Section 21 of the Notice 1993 identifies the following
benefits: invalidity pension, invalidity grant, retirement pension, retirement grant, survivor’s
pension, survivor’s grant and funeral grant. For a discussion of these benefits see Madhuku
(2015) 497-498 and Gwisai (2006) 405-407.

The benefits are paid from the Pension and Other Benefits Fund, which is made up of the
contributions, surcharges, rent, interest, or dividends from investment or other lawfully accrued
funds (section 63). The Fund is administered by the general manager of NSSA. The procedure
for lodging a claim is prescribed in Part X of the Notice (see section 38 of the Notice).

12.6.3 Pension law in the public sector

Pension law in the public sector is governed by the Public Service (Pensions) Regulations, 1992,
Pensions and Other Benefits Act, the Pensions (Increases and Adjustments) Act (Chapter 16:02)
and the Pensions Review Act (Chapter 16:03). The Public Service Scheme is compulsory for all
persons employed full time in one of the Public Services. The benefits include; (a) pension and
(b) a gratuity. A pension is payable where the employee’s pensionable service is 10 years or

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more. A gratuity is payable where the employee’s service is less than ten years. The benefits
under the Scheme are payable on retirement, death, ill-health or mental or physical infirmity.

Activity 12.2
1. Identify the two broad categories of social security law in Zimbabwe.
2. What is the purpose of social security law?
3. Discuss the key features of the legal framework of pension schemes available in
Zimbabwe.

12.7 Summary

This unit introduced students to the discipline of social security law in Zimbabwe. It defined the
term social security and identified its two main branches, namely, compensation for work-related
injuries, death and diseases and pension law. Compensation for work-related injuries, deaths and
diseases in Zimbabwe is largely regulated by the NSSA (Accident Prevention) (Workers
Compensation Scheme) Notice 68 of 1990. It is influenced by international standards of the ILO
and the Constitution. Key features of Notice 68 of 1990 that were analysed included the
following: application of the compensation scheme, circumstances under which compensation is
due, special provisions, procedure for compensation and compensation payable. The second part
of the unit discussed pension law in Zimbabwe. It evaluated private pensions schemes, State
pension scheme and pension law in the public sector.

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References
Gwisai, M. (2006). Labour and Employment Law in Zimbabwe: Relations of Work under Neo-
Colonial Capitalism, Harare: Zimbabwe Labour Centre: Harare.
Madhuku, L. (2015). Labour law in Zimbabwe, Harare: Weaver Press.
Scheinin, M. (2001). The Right to Social Security.

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