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MOMENT M. BHEBHE
Email: mbhebhe@msu.ac.zw

Tele: 0777 051 817 / MSU ext 266

Office: NSB 24

DEPARTMENT OF HUMAN RESOURCE MANAGEMENT

“Training varies in the degree of motivation possessed/esteem levels of trainees. Those with low
motivation or self esteem will normally take longer to complete a training programme than well
motivated trainees”
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MODULE OBJECTIVE

-At the end of this module, a student must be legally conversant with the interpretation and
application of the Labour Laws of Zimbabwe in achieving social justice and democracy at the
workplace.

-a student shall among other legal instruments, possess a copy of the Labour Act (Chapter
28:01) of Zimbabwe and amendments numbers 17 of 2002 and 7 of 2005.

MODULE OUTLINE

1. INTRODUCTION TO LABOUR LAW

- importance/functions/theories/history/sources/Labour Act

2. CONTRACT OF EMPLOYMENT (s12)

- definition/features/formation/content/forms/probation and notice periods

3. RIGHTS AND DUTIES IN EMPLOYMENT RELATIONSHIP (s4-s12)

- Duties of employer and responsibilities of employee/ fundamental rights/ unfair

labour practices/ remedies on unfair labour practices

4. TERMINATION OF EMPLOYMENT (s12)

- All forms including those prescribed in the model code SI 15 of 2006

5. LEAVE PROVISIONS (s14)

- Sick/vacation/special/maternity

6. COLLECTIVISM (s23-27 et al)

- Workers committee/works council/trade union/employer organisation
- Employment councils/designated agents/agent unions

7. COLLECTIVE BARGAINING (s74)

- Scope /obligations/representation/ratification

8. COLLECTIVE JOB ACTION (s102)

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- issues/right to strike/ lockout/ picketing/ other forms of CJA

- show cause order/disposal order/ protected persons engaged in lawful

CJA/liability for persons engaged in unlawful CJA/appeals/ cessation of CJA

9. CODE OF CONDUCT (S101)

- Provisions and common pitfalls.
- The class will study and examine a code of conduct of an organisation

10. LABOUR COURT (s83)

- Functions/powers/jurisdiction/representation/appeals etc

11. LAW OF DISPUTE SETTLEMENT (s98)

-disputes of right and interest / conciliation &arbitration mechanisms/appeals

12. MINISTERIAL POWERS (s17)

NB: The class will critique the Labour Act and analyse suggested amendments as put
forward by key employment parties’ representatives (refer to social partners position
paper)

-Tutorial attendance is non- negotiable and active participation is encouraged.

-The Labour Act, textbooks (library and other), the PRESS, labour court offices and materials
including internet research will go a long way in building a practical appreciation of the legal
world of labour relations.

Module Evaluation

Assignment 1 (Individual in-class written) 25%

Assignment 2 (group in-class presentation) 15%

Assignment 3 (Exam) 60%

N.B: Individual assignment shall be written;

 During the 2nd block for the visiting class, for 1 hr.
 In the week 01 Sept -09 Sept 2011 for full time students, for 1hr.

Individual Assignment
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Either 1. “One of the cornerstones of the law of contract is the freedom to contract. This
fundamental principle of freedom to contract is now more fictional than reality due to over
regulation through the Labour Act”. Is this a correct reflection of labour law? Is the current
state justified? MTN

OR 2. Account for the development of Labour Law in Zimbabwe since 1980, in

advancing social justice and democracy at the workplace. MTN

TUTORIAL QUESTIONS

1. Discuss the extent to which the Labour Act has addressed the welfare of the working
class? TUT 10

2. What do you understand by the expression legal framework for Collective

Bargaining? How does collective bargaining harmonise the relationship between
employees and management?

3. Critically analyse the statutory provision of strike action in Zimbabwe, giving

examples.

4. The Labour Act provides for the setting up and general running of the workers
committees. Using the legislation as a guide, in a clear and simple manner, set out a
draft constitution for a workers committee at your organisation.

5. Labour law seeks to “counterset the inequality of bargaining power inherent in the
employment relationship”. Discuss with specific reference to the Labour Act
Amendment No. 17.

6. Make a critical analysis of the Labour Act as far as advancing social justice and
democracy at the workplace is concerned. In your opinion, does it really advance this
cause? With the use of relevant examples, do you think that the social justice and
democracy issues addressed therein are being put into practice by firms?

7. Discuss giving practical examples, what in terms of Zimbabwe ’s legislation

constitutes:

a) Unfair labour practices by an employer

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b) Unfair labour practices by a trade union or worker’s committee.

8. “The freedom of association regime enshrined in the Labour Act (Chapter 28:01) is in
need of serious revision”. Do you agree? Discuss the assertion with specific reference
to registration and organisational rights of trade unions and employer’s organisations.

9. Strikes have been viewed by many as the only tool of creating equilibrium between
capital and labour. Using appropriate sources of law critically explain the procedures/
steps to be taken to engage in a lawful strike. To what extent is this equilibrium
maintained.

10. Other than the provisions of SI 15/2006 (acts of misconduct), citing relevant case
laws, analyse ways under which a contract of employment may be terminated in
Zimbabwe. Make ref to LA (Chapter 28:01)

11. Under Section 12A (6) Labour Act, it is provided that “No deduction or set –off of
any description shall be made from any remuneration except in the defined
circumstances”. Clearly explain the circumstances where these deductions can be
made.

12. “If there is one thing which more than another, that public policy requires, is that
persons of full contractual capacity should be allowed to enter into their contracts
freely and voluntarily. Their contracts once so entered into, should be held
sacrosanct”. Discuss. TUT 01

13. There can be no equilibrium in IR without a freedom to strike. In protecting that

freedom, the law protects the legitimate expectation of the workers ‘that they can
make use of their collective power....’. Discuss this statement and give specific
examples from the Zimbabwe labour relations.

14. One of the principal purposes of the labour act is to combat industrial unrest. On what
ways are the provisions of the Act consistent with this objective? TUT 09

15. Critically analyse the role of the state in the employment relationship. Also make
reference to the Labour Act. MTN

16. “....the main objective of labour law then becomes to act as a counterveiling force to
counteract the inequality of bargaining power, which inherently pervades the
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employment relationship”. Discuss this statement in relation to the development of

labour law in Zimbabwe since 1980. TUT 02

17. Discuss the view that collective job action seeks to correct the inequality inherent in
an employment relationship. MTN

18. “One of the cornerstones of the law of contract is the freedom to contract. This
fundamental principle of freedom to contract is now more fictional than reality due to
over regulation through the Labour Act”. Is this a correct reflection of labour law? Is
the current state justified?

19. Critically analyse the legal framework on the promotion of participation by

employees in the decisions affecting their interests at enterprise level. MTN

20. With reference to case law, explore the duties and responsibilities of the employer
and employee respectively, in the operation of the employment contract.

November 2010 Labour Law Exam Questions

1. “This Act up to now does not give workers their full rights and has so many obstacles
that take away their rights”, (The Standard, 2 May 2009). Comment on this statement
with regards to the right to strike as promulgated in the Labour Act (Chapter 28:01)
(20) TUT 06

2. Discuss the extent to which the Labour Act has advanced the goal of achieving social
justice and democracy at the workplace. (20) MTN

3. With supporting examples, critically examine the statutory provisions for sick and
maternity leave in Zimbabwe. (20) TUT 04

4. a. Critically explore the legal requirements for retrenchments in Zim (12)

b. What alternative measures exist for organisations that do not retrenchment? (8)
TUT 05
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5. a) Giving practical examples, discuss the Constitution and International Law as

sources of Labour Law in Zimbabwe. (10)

b) With reference to settled cases, explore remedies available to the employer on a

breach of the employment contract by employees. (10)

May 2011 Labour Law Exam Questions

1. Make a critical analysis of the Labour Act (Chapter 28:01) in advancing social justice
and democracy at the workplace. Make recommendations on the way forward. MTN

2. Citing relevant case law, discuss ways in which a contract of employment may be
terminated under Statutory Instrument 15 of 2006 (acts of misconduct). MTN

3. Discuss the relevance of the Labour Court in securing the just, effective and
expeditious resolution of disputes and unfair labour practices. Make reference to
conciliation and arbitration. TUT 08

4. Assess the significance of the legal framework for Collective Bargaining in

Zimbabwe in the dollarized era and its impact on the employment relationship. TUT
07

5. With reference to legal provisions of the Labour Act, discuss any five of the following
terms;
a) Designated agents
b) Agent union
c) Employment councils
d) Works council
e) Lock out
f) Show cause and disposal orders.
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ELEMENTS OF LABOUR LAW –HRM 203

TOPIC ONE – INTRODUCTION TO LABOUR LAW (L L)

A Elements of labour law

- LL is a system of rules that regulates an employment r/shp and whose enforcement is

guaranteed by the state as law.

- It developed as a reflection of the struggles of workers to gain a fair and dignified

existence at the workplace.

- It saw the employment r/shp as a social r/shp, hence the need to counter inequality
between the individual employee and the employer. ( The relationship’s main
foundation is the Contract of Employment)

B Importance and functions of Labour Law

- It is the principal means by which society regulates the r/shps arising out of the
process of work.

- Its study helps us understand the dynamics of the economic relations of society, which
determine the character of the process of work in any society.

- It thus regulates, supports and restrains the power of mgt and that of organised labour.

- To act as a counterveiling force to counteract the inequality of bargaining power as

guided by public policy.

- To ensure the undisturbed continuation of the process of work.

- To promote methods of dispute resolution that is least harmful to productivity
enhancement.
- To create a win-win situation in the emplt r/shp by giving the employer the right to
manage business without undermining on the rights and well-being of labour, in that
relationship.
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C Theories of Labour Relations

1. Unitarism
-It developed from the free market economic theory of Adam Smith and
positivist legal theories of John Mill et al.
-It is of the notion that employers and employees share the same values and
goals in the process of work. Conflict is unnatural and dysfunctional;
Collective Bargaining, strikes and TUs are undesirable (an interference).
-A good LL system is one that guarantees; “freedom of the employer and
employee from the interference of the state in the labour market, the freedom
of choice of the contracting parties and the freedom of private will to
determine the contents of the contract.”

2 Pluralism

-Propounded by German philosopher Max Weber et al.

-Is identifiable with mixed economy.

-Conflict is natural at the workplace, TU seen as the legitimate org,

CB a voluntary, dynamic, democratic process for expressing and

controlling conflict.

-Otto Kahn- Freund a pluralist scholar described the CoE as;

“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 subordination

may be concealed by that indispensable figment of the legal mind known as
“CoE.”

D History of Labour Law in Zimbabwe

-4 distinct phases in its dvt;

1. Primitive accumulation (1890-1930s) - led to the establishment of the capitalist mode of

production. The central coercive legislation of this period was the Master and Servants
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Ordinance/1901 and Natives Pass Ordinance /1902. (designed to fast track the
establishment of racist capitalist system on the back of cheap and forced black labour)

2. Colonial State Corporatism (1930s – 1980)-marked a major milestone in labour law

through the Industrial Conciliation Act of 1934, which dealt with white working class, co
existing side by side with a unitary law applicable to the majority of the black working class.
It was the 1st legislation to provide for Collective Bargaining, conciliation and arbitration for
dispute resolutions, recognition of trade unions one per industry but with highly restricted
freedom of association. ICA was based on openly racist lines with blacks prevented from
competing with whites for skilled jobs and excluded from the definition of employee in the
Act. The 1945 and 1948 strikes led to amendments of the Act.

3. Post Colonial State Corporatism (1980-1990)-saw the enactment of Minimum Wages

Act/1980, Employment Act/1980 and later the Labour Relations Act #16 of 1985
spearheaded by then Labour Minister Fredrick Shava. An era of a victory of the black-
middle class led anti colonial mvt over settler colonialism. In the Act, the state was granted
the power to make regulations governing virtually every aspect of the emplt r/shp incl min
and max wage notices. The Act declared fundamental rights of employees including
protection from unlawful discrimination and the right to organise. The single labour
federation of ZCTU was formed in 1981, an alliance of the new government led by the
victorious Zanu PF.

4. Neo- Liberalism (1990 –present) - adoption of free market policies under Economic
Structural Adjustment Programmes (ESAP) imposed through International financial
institutions to address economic stagnation. ESAP was christened “Eternal Suffering for
African People” by labour. The main legal instrument used to achieve deregulation of labour
policies was the LR Amendment #12 of 1992 characterised by;
- Removal of state controls on min and max wages and introduction of NEC sectorial
bargaining
- Streamlining disciplinary handling system by introducing employer controlled by
codes of conduct.
- Restrictions on the right to strike and abandonment of the one industry one union
policy (multiple TU mushroomed)
- Destruction of permanent jobs through easy retrenchment and dismissal laws and their
substitution by contract/ casual jobs paying lower wages.
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- effects of ESAP remained unmitigated with growing unemployment and social

poverty that led to massive and unprecedented working class struggles with the huge
felt national strike and stay away of 1997. This led to a rise in political consciousness,
and ZCTU- Zanu PF alliance was broken culminating in the emergence of the MDC
political party initiated and led by the unions under ZCTU.
-ZFTU was born in 1999; government initiated, to spearhead and further drive the
interests of labour.

- A labour law reform in the form of the new Labour Act was brought in by LR
Amendment Act # 17 of 2002 to advance social democracy in the workplace and
harmonised private and public sector employees (collectively bargain, engage in
strikes and form TUs), Labour Court was established, conciliation and arbitration
clarified.
-in 2005 the Labour Act was amended by Act #7. It allowed for the removal of the
public servants from the Act and improved maternity rights, strengthened the
jurisdiction of the LC and provided remedies on unfair dismissal among other
incorporations.
-From the 2000-2008 the nation witnessed land reforms, a politically diverse
parliament, economic sanctions, a rise in inflation, high levels of unemployment, the
flourishing black/ informal markets, high levels of brain and skills drain,
unsustainable salaries, closure of companies, high corruption levels especially in
parastatals, unsustainable economic policies and all these impacted on labour relations
in the world of work.

- Under the current political dispensation in the banner of a SADC facilitated

Government of National Unity, there has been stability in the dollarized economy and
this has shaped the labour relations climate in contrasting ways. Also in the current set
up, some highly placed politicians have held esteemed positions in the ZCTU
structures. The indigenisation policies impact on labour relations. EMCOZ, ZCTU
and ZFTU have submitted position papers on the anticipated labour law reforms.

E. Sources of labour law

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1. Legislation- made through the Acts of Parliament and overrides Common law by
addressing its deficiencies. It includes the Constitution, principal legislation,
statutory instruments, statutory CBA, International treaties and conventions.

2. Common law-legal rules not contained in legislation and it uses the eyes of the
‘common’ person to decide. Derived from the Roman-Dutch law and the Cape of
Good Hope of RSA, 1981. Also known as General law.

3. Legal writings- are persuasive. Labour Gurus include Otto Kahn Freund the
pluralist, George Makings, M. Gwisai, L. Madhuku etc.
4. Custom and Trade usage-a form of common law
5. Judicial Precedent/case law- based on past/ settled cases.
6. Contract of employment- creates duties and obligations
7. Collective Bargaining Agreement-a joint regulation of terms and conditions of
employment.

The Constitution as a source of labour Law

- Is the supreme law of the land and key in Labour law. (herein lies our sovereignty)
- The post colonial constitution contains a justifiable declaration of Rights that can be
actioned in court.
- It affects LL directly and indirectly;
DIRECT- The declaration of rights (Chapter 3) confer various rights and duties to the
parties in the employment relationship including; protection from slavery and forced
labour, protection from degrading and inhuman treatment, a fair hearing and equal
application of the law including the right to natural justice, religious freedom and
conscience, expr ession, association, assembly and movement including the right to
trade unionism and to protection from discrimination. It also provides the legal
framework for employees not governed by this Act. The commissions that include
Public Service, Judicial Service, Defence forces, Police Service, Prisons Service, are
empowered to make regulations governing the terms and conditions of such
employees.
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INDIRECT- It is a fact that every enactment must not be in contravention/ ultra vires
the provisions of the constitution otherwise the offending provisions would be
declared a nullity.

International Law
- Refers to the rules relating to relationships of state parties in the International
community, in particular agreements or treaties between/among states. These
agreements are called treaties or conventions. Through ILO (International Labour
Organisation), a UN specialised agency formed in 1919 minimum labour standards in
the form of Conventions and Recommendations are proposed and adopted at the
conference by a 2/3 majority and come into effect via states which ratify them. The
conference is a tripartite body represented by 2 government delegates, 1 employer
delegate and 1 worker delegate from each member state. The recommendations are
not legally binding unless ratified and incorporated into Zimbabwean law by an Act
of Parliament. Zimbabwe has ratified a number of conventions including the Equal
Remuneration 1951 Convention (in 1989), the Occupational safety and Health 1981
Convention (in 2003) and the Right to Organise and Collective Bargaining 1998
Convention (in 1998).

F. LABOUR ACT: Purpose and Application

-Legally referred to as Labour Act (Chapter 28:01), came into existence in 1985 as
Labour Relations Act, revised in 1996, renamed Labour Act as amended in 2002
(amendment #17) and 2005 ( amendment #7).
-established to address deficiencies of common law such as protection against
unilateral dismissals, inequality of bargaining power and emergency of collective
relationships between employer and employee.

Purpose -s2A (1)

-to advance social justice and democracy in the workplace by;
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a) Giving effect to the fundamental rights of employees provided for under Part ll.
c) Providing a legal framework within which employees and employers can bargain
for the improvement of conditions of employment.
d) The promotion of fair labour standards.
e) The promotion of participation by employees in the decisions affecting their
interests in the workplace.
f) Securing the just, effective and expeditious resolution of disputes and unfair labour
standards.

s2A(3)- the Act shall prevail over any other enactment inconsistent with it. Thus
subject to the constitution and with the exclusion of employees of the Public Service
and such other as declared by the President, the LA t akes precedence over any other
source where there is conflict. In s17 the Minister is empowered to intervene over any
enactment deemed less favourable, thus the provision regulates a superior status to
both the CoE and common law and all other statutory instruments.

COMMENT- from the provisions, there is a clear rejection of the unitary perspective
and an overwhelming endorsement of the pluralist perspective of LR i.e. the
recognition that the employee is a weaker party in an employment relationship
(protectionism). It requires courts to give employees the benefit of the doubt in hard
and unclear cases.

Application (s3)
- The Act shall apply to all employees and employers except those whose conditions
of employment are provided in the constitution.
-The Act does not apply to Public Service members, members of a disciplined force
of the state and employees of the state as designated by the President (of the
Republic).
-the Act applies to those in parastatals and local authorities. In the case of Midlands
State University Council v Midlands State University Lecturers Association (2005),
it was held that employees of a state university were not public servants, but they
enjoy a distinct legal personality.
- The Act applies only to “employees and employers ”. The courts held that it does not
apply to former employees or job applicants unless expressly provided for in the Act.
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REMARK- amendment #17 of 2002 heralded a significant progress in line with a goal
of the working class (a key demand), the harmonisation and codification of labour law
(as the capitalist LL favoured fragmentation of LL in order to facilitate the division
and control of workers). Most public servants were covered by the LA but it was
reversed by amendment #7 of 2005.

Principles of Justice of Law

 Reasonableness
 Generality
 Equity
 Certainty

TOPIC TWO – CONTRACT OF EMPLOYMENT (s12)

Matthew 20:1-16 and Leviticus 19:13

- s12(1)- every person working for another and receiving remuneration in return is ‘deemed to
be under a contract of employment’.

-creates a legally enforceable employment relationship, the core of labour relations.

-is the cornerstone of labour law establishing obligations for the contracting parties.

-is a lawfully binding agreement between two parties who possess the capacity to contract.

*In the case of Mohamed Fathi v Highlanders FC, the employer refused to pay the coach
full salary in his remaining 3 months (and instead paid half the amount) arguing that he was
under qualified, almost a year after being engaged on the strength of his qualifications
submitted to ZIFA for approval by the club. The court held that a contract is a complete and
written document binding on both parties and none of the parties can without leading
evidence now seek to modify the contract.

*Amendments to contractual conditions should be mutual unless precisely stated. In the case
of Air Zimbabwe v Zendera, meal allowances were part of the conditions of employment for
flight attendants and pilots. Having agreed with pilots to reduce the allowances, the employer
then unilaterally reduced them for flight attendants as well, even though these were
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represented by a different body. The court held that a contract in place cannot be unilaterally
changed.

-every contract consists of an offer and an acceptance, which must be clear.

-in an employment relationship the employee lets his services of a defined nature to the
employer in exchange for fixed or ascertainable remuneration.

Features essential for a contract of employment to exist

-there must be a voluntary agreement between parties otherwise it may become invalid (if
made under duress/ misrepresentation/undue influence).

-Is a bipartite relationship-the employee as a natural person (a human being), the employer a
juristic person (legal persona).

-employee renders personal service and has duties of subordination and good faith to the
employer.

-the employer pays a wage/ remuneration.

-there is an indefinite or specified period of contract.

Key definitions (s2)

Employee-any person who performs work/services of another person for

remuneration/reward on such terms and conditions as agreed upon by the parties.

Employer-any person whatsoever who employs or provides work for another person and
remunerates or expressly or tacitly undertakes to remunerate him, and includes the manager,
agent or representative of such person who is in charge or control of the work upon which
such other person is employed, judicial manager, liquidator, executor and curator.

Managerial employee-is 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
the other employees.
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Formation of the contracts-formalities

Legal capacity-minors, insolvents, mental patients have restricted capacity; otherwise such a
contract may be deemed void and unenforceable (limping contract).

Lawfulness-must be lawful and not be against statutes, public policy or morality. A contract
by a receiver of stolen goods to employ a number of pickpockets would be unenforceable
because the whole basis of the employment relationship is illegal. In Pearce v Brooks, a job
master was unable to recover from a prostitute his charges for the hire of a horse drawn cab
because he knew her profession and that she was using the cab for prostitution purposes.

Performance- must be physically capable of performance.

Certainty- must be clear and not uncertain/vague on the essential features.

s11- general age of employment in Zim is 18yrs, apprentice 13yrs under guardianship,
subject to parental or guardian authority.

Content of contract

-written/unwritten

-agreed upon between parties

It is constituted of;

 Express terms-provisions on which parties have explicitly agreed.

 Implied or tacit terms- are dictated by common law as unexpressed or unspoken

provisions. They are inferred from the conduct of the parties.

 Incorporated terms-are dictated by legislative provisions and CBAs e.g. sick and
maternity leave and hours of work.

s12 (2) - compels the employer to reduce the agreement into a written contract specifying the
following particulars;

 Name and address of the employer

 Period of time (engagement) of contract/service duration

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 Terms of probation

 Terms of any employment code

 Particulars of remuneration, manner of calculation and payment intervals.

 Particulars of benefits receivable in the event of sickness/pregnancy.

 Hours of work.

 Particulars of any bonus or incentive production scheme.

 Particulars of vacation leave and vacation pay.

 Particulars of any other benefits provided under contract of employment

Forms of Contracts

s12 (3) - when the contract is silent on duration it is deemed to be a contract without time of
limit or indefinite contract except in the case of casual or seasonal work.

A seasonal worker is one that works for a certain period of the year as determined by the
nature of the job/industry such as the Agricultural sector.

A casual worker is one whose contract does not exceed 6 weeks in 4 consecutive months,
otherwise on that day he may become permanent. They are not entitled to any benefits, like
leave, pension, NSSA as they are not in the organisation for long periods. They are paid
strictly per time input

A contract worker is more advantageous than the expensive double paid (of normal CBA
rate) casual. Contracts can be renewed as many times as possible although some industries
e.g. textile industry if one signs a contract for 12 months, he becomes permanent. A fixed
term contract worker is entitled to annual leave, NSSA and Pension.

N.B Legitimate expectation s12B (3b) - an employer cannot (for no reason) terminate a
fixed term contract worker’s employment and replace with another for the same job when
there’s clearly more work to be done. One would have overlooked the employee ’s legitimate
expectation of being renewed.
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Notice periods to terminate employment contract by either party-s12(4)

-a longer notice period can be negotiated by the parties in the formation of a contract of
employment.

-issuing of notice period is based on the duration of contract of employment;

3 months –exceeding 2 years or without time of limit

2 months-exceeding 1 year but less than 2 years

1 month- exceeding 6 months but less than a year

2 weeks- exceeding 3 months but less than 6 months

1 day- less than 3 months or for casual/seasonal labour

Probation Period (ss5)

To assess the suitability and competence of an employee. The contract should be precise. It
shall be 1 day for casual / seasonal workers and 3 months in any other case. Probation is
single and non-renewable. A contract can be terminated even before the full period of the
probation by giving notice of 1 week for casual/seasonal work and 2 weeks in any other case.

NB-If accommodation has been provided to the employee, the employee can only vacate after
a period of 1 month after the expiry of notice period.

The Act provides that a waiver of notice may be mutually agreed subject to payment for a
period corresponding to the notice period (cash in lieu of notice)

The courts have held that when an employee continues to work after the completion of
probationary period, it does not necessarily signify confirmation of employment. The courts
will study a case in light of its circumstances (express and implied terms looked into) to reach
a decision.

Remuneration
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-Shall be payable at regular intervals and only in legal tender and not by way of promissory
notes, vouchers and coupons. Payment in kind is permissible in undertakings customarily
accepted as agreed (not in drugs and alcohol).

-the employer is compelled to provide a pay slip containing name of employer and employee,
amount and period worked, allowances, deductions and net pay. Total employer deductions
from gross pay must not exceed 25%.

TOPIC THREE – DUTIES AND RIGHTS (s4-s12)

Duties of Employer

-provide work as expressed, failure of which may amount to constructive dismissal. In Fisher
et al v Air Zimbabwe, the courts did recognise that where a person has been employed to do
certain work and is later or thereafter made to perform work of lower grade or meaningless
work without demotion, in such circumstance that treatment amounts to constructive
dismissal.

-pay the agreed wage or salary (in legal tender) and benefits in the agreed period. In Tel One
v Nyambirai et al (2004), failure to pay contract workers the minimum wages stipulated in
the CBA was held to be an unfair labour practice. Remuneration is broader than wages. It
includes wages plus allowances, bonuses and other benefits that the employee receives.

-comply with statutory duties/obligations e.g. leave provisions, hours of work

-to act in good faith and respect the employee’s dignity.

- to provide a safe working environment (as read with factories & works Act, NSSA Act,
HIV/AIDS SI and Pneumoconiosis Act).In the case of Mushaya v Glens Corporation (1992),
the court rejected the dismissal of a long distance driver for causing an accident, when he had
been compelled to drive when he was exhausted. The employer is held liable for acts
resulting in harm from employees. In the case of Mpande v Forbes and Thompson Byo Pvt
Ltd (1980), a miner was paralysed from the neck downwards in a work accident. The court
rejected a claim for additional compensation under occupational health legislation on the
basis that the employee had purportedly contributed to the accident by not taking sufficient
precautions.
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Responsibilities of the Employee

-provide service as contracted.

-be loyal to the employer e.g. abstain from divulging into company secrets.
-obey lawful instruction of the employer (duty of subordination). In Zupco v Mabande et al
(1998), the courts upheld the dismissal of driving instructors who had defied an instruction by
the employer to drive buses in replacement of striking bus drivers, on the ground that this was
reasonably within the scope of their job descriptions. In Muchakata v Netherburn Mine
(1996), where a Personnel Officer, fed up with an overload of work from a security officer
who was notorious for arraigning workers before the disciplinary committee, ordered him to
sit in the Disciplinary Committee so that he could see for himself the overload he was
causing. When he refused he was dismissed for refusing to obey a lawful command and
failure to provide service. The court reversed the dismissal as substantial variation.
-act in good faith including refraining from misconduct and avoiding conflicts of interest. In
Standard Chartered Bank v Mapuka (2004), the court upheld the dismissal of a senior
manager who altered a cheque from the employer to be paid to suppliers for building
materials, to instead be paid into his wife ’s account. In Chasasa v Ministry of Education &
Culture (2005) it was held that the fact that an offender pays back the stolen money does not
absolve him from disciplinary action-it is only mitigatory.
-duty to exercise due care (refer to employer duty to safe working env.)
-duty of competence. A job is offered on suitability to accomplish based on skill, knowledge
and attributes. In the case of Zimbabwe Mining & Smelting Company v Mafuku, the court
upheld the dismissal of an HR Manager who was unable to perform basic duties of personnel
management despite being given a number of chances. However in addressing the aspect of
performance/ competence, alternatives to improve it should have been addressed such as in
the case of Quest Motor Corporation v Nyamakura (2000), a worker of 22 years experience
failed to operate a new system resulting in the losses to the employer. The employer sought to
recover damages on the basis of negligence. The court rejected this on the basis that the
employee’s action was due to incompetence arising out of a lack of adequate training and
supervision by the employer.
 22

Fundamental Rights of Employees (Part II)

- To membership of a Workers Committee or Trade Union including engaging in

lawful activities for advancement/protection of employee interest (right to organise).

- Protection from forced labour.

- Protection against discrimination

- Protection to fair labour standards e.g. pay/hrs of work

- Protection to democracy at the workplace e.g. consulted on matters that may affect the
relationship

- Right to negotiate and both parties should do so in good faith, with a willingness to
arrive at mutual decision.

Unfair Labour Practices (Part III)

(i) By Employer (s8)

 Interfering with employee’s right to workers committee/trade union

membership.

 Refusing to negotiate in good faith.

 Failing to implement CBA

 Dealing with an unregistered union where registered union exists.

 Demand from employee/prospective employees any sexual favours.

(ii) By Workers Committee (s9)

 Preventing workers from exercising their fundamental rights

 Contravenes its constitution

 Fails to observe CBA

 Recommends illegal Collective Job Action.

 23

 Fails to represent workers in respect of any violation of his rights.

NB: The minister may prescribe further unfair labour practices in consultation with labour
court through SI.

REMEDIES

To employer
-dismissal. It is the chief weapon in substantial breach of contract.
-sue for damages
-Interdicts. A court order to do or not to do something.
-criminal prosecution e.g. in fraud/theft cases
-apply employment code with such penalties as suspension, demotion, reduction in pay,
warnings, evictions, property repossessions and dismissal.

To employee
-reinstatement. Primary remedy especially when unlawfully dismissed
-interdicts (tempo/interim relief).
-claim damages. Is a prescribed alternative when the employer proves that the employment
r/ship is no longer tenable subject to court’s ruling.
-cancellation of the contract through resignation
-criminal prosecution e.g. employing of young persons, contravening fundamental rights.
Fines may be imposed as per the Act and Ministerial intervention.
-lawful collective job action (collectivism).

A case on remedy
Employee wins US$26 000 damages (2010)
Mbuso Moyo (Snr division manager at Marko Departmental Store, Byo) awarded by the
Labour Court eq. US$26 000 in back pay and bonuses for unfair dismissal over missing toilet
paper, in August 2005.
Facts-68 packs of 50 toilet paper roles went missing. Mbuso reported the matter to his
immediate supervisor as well as Stores GM, who ordered him to pay or resign. He was
dismissed after a hearing and the matter was referred for arbitration which upheld the
dismissal. Mbuso appealed to the LC and it was held that there was no evidence of any
misconduct by Mbuso and that the case itself did not warrant dismissal at all. The company
 24

was ordered to reinstate appellant without loss of wages and benefits with effect from the
date of suspension or pay damages if reinstatement was no longer an option, equivalent to
18months salary calculated at the current salary scale plus interest on the total sum at the
commercial lending rate of 1000% per annum and company pays cost of this appeal. For
quantification;
$16 975 as back pay for 48 months and 5 days
$ 1 050 cash in lieu of notice for 3 months
$ 1 050 annual bonus for years 2005/ 2006/2007
$ 3 850 severance pay at 1 month’s salary for the 11 years served.
$ 350 a month’s salary as gratuity

TOPIC FOUR – TERMINATION OF EMPLOYMENT RELATIONSHIP (s12)

LUKE 16:1-13

1. Expiry of fixed term contract, subject to s12 (4) on period of notice and s12B(3)(b) on
legitimate expectation of being re-engaged.

2. Completion of task- performance of job has been fulfilled as per terms e.g. seasonal
work.

3. Supervening impossibility of performance- incapacitation of worker e.g death, illness,

accident, mental disorder, intoxication

4. Retirement-s26(2) of NSSA Act, 60 years at employee’s request and 65 years

statutory). Employer may still offer continued employment but not for the purposes of
pension contribution.

5. Mutual agreement- Agreement must be genuine and once agreed no unilateral change
by either party.

6. Under provisions of National/Model code SI 15/2006

7. Under registered employment code of conduct (disciplinary procedure). An employer

not covered by a registered Code can use an unregistered Code to undertake the
disciplinary process up to the stage of final written warning- then use SI 15/2006 to
terminate employment.
 25

8. Retrenchment- as provided in s12C.

9. Unilateral Resignation by Employee. It is a unilateral act which does not require

acceptance or concurrence by the other party. It thus should be clear and once given,
may not be unilaterally withdrawn. In Kadada v City of Harare, an attempt by the
worker to withdraw a notice that had been properly tendered was rejected by the
court. Also refer to Muzengi v Standard Bank (SC129/2001). (NB- Employer
dismisses, employee resigns)

10. By state action-e.g. employee imprisoned for long period or in the case of a driver,
licence has been rescinded, employer may terminate using code of conduct,
employment contract, and notice.

11. Death of employer-provided notice is served upon the death of employer as the
organisation is a legal persona. If an undertaking is sold/transferred the contracts of
employment are automatically transferred to new owners on the same conditions...so
are the pending negotiation issues.

12. Insolvency-liquidation, normal process is followed as in retrenchment.

13. Probation as read in s12(5). A notice is served by either party.

Compulsory Retrenchment as a Termination method (s12)
A case on retrenchment
Kadir & Sons v Panganai- the employer sought to deny liability for payment of
wages once he had closed down his business, which was prior to receiving approval to
retrench. The court held that until approval to retrench was received from the
Minister, wages must continue to be paid.
Reasons
 Monetary/economic reasons.
 Technological reasons
 Reorganising or restructuring
 Mergers and takeovers (incl winding up/liquidation)

Procedure in retrenching 5 or more people within 6 months;

 Written notice to works council or employment council or retrenchment board,
giving names & reasons. A copy should be sent to the Retrenchment Board.
 26

 Works council or Employment councils seeks agreement through facilitation

within one month of notice.
 If agreement obtained, the council will send the employer its written approval
and also notify the Retrenchment Board. If not, all copies and minutes are sent
to the Board, who within two weeks, shall recommend to the Minister its
proposal (Board may invite parties for representations before drawing
proposal to Minister)
 If Board fails to recommend within two weeks, Minister will require them to
provide him all documents and give his decision as if it was recommended by
the Board, either by approving or refusing.
 Minister will without delay approve/decline (previously 28 days)
 The Minister’s determination is binding on all employees concerned,
irrespective of their personal thinking (compulsory retrenchment)
 Normal notice of termination as provided in the act shall be given to
employees.
 Consideration of alternatives to retrenchment, prospects of finding alternative
employment, mitigation of retrenchment consequences is key in the
determination of the exercise.
NB: For managerial staff, retrenchment negotiation is on a one on one basis with a
senior company official (unless a Managerial Workers Committee exists).
*Retrenchment appeals lie with the LC, in the mean time the employer should comply
with the Ministerial decision as read with s92E(2).
* The Retrenchment Board established in terms of SI 186/2003 consists of 2
employees from the labour ministry (one will chair), 1 nominated by Finance
Minister, 1 nominated by of Minister of Industry, 2 from employer organisation and 2
from TU as recognised by the Minister.

Alternatives
 Short time work ( entitled to not less than 50% of current wage)
 Shift work (no shift without work for 6/12 months)
*The above are contained in s12D (a) and (b).
 Eliminate overtime
 Voluntary retrenchment
 Rotational unpaid leave
 27

 Terminating casual labour

 Freezing capital expenditure
 Rationalising costs.
 Staff transfer to other units/plants/departments

Retrenchment Package
*Severance pay for loss of job- of ‘x’ weeks/months plus
*Recognition (gratuity) for length of service- of ‘y’ weeks/months for each year of
service plus
*Relocation/ Stabilisation allowance, where applicable.
*other discretionary allowances
-The package is subject to tax purposes and the tax free limit will be applied.

NB: In retrenching less than 5 people, Retrenchment regulations contained in SI

186/2003 apply.

Terminal benefits (s13)

A person whose contract of employment is terminated through dismissal, resignation,
incapacitation or death is entitled (as soon as reasonably practicable) to;
 wages& benefits due to him
 cash in lieu of accrued leave and notice period
 medical aid cover
 pension entitlement, private or NSSA
 Exit /gratuity package, if entitled.

Termination under the National Code (S.I 15/2006)

The acts of misconduct contained in this code were borrowed from SI 371/1985 (Termination
of employment regulations), which compelled an employer without a code of conduct to seek
Ministerial authority to dismiss.
-under common law these offences warranted summary dismissal
 28

(s4)...an employee commits a serious misconduct if he/she commits any of the following
offences;

a) any act of conduct/ omission inconsistent with the fulfilment of the express or implied
conditions of his/her contract. (an omnibus charge)In the case of Mvere v Tanganda
Tea, Mvere tore from the reconciliation a portion that bore her supervisor ’s signature
and argued that she did it to show dissatisfaction with the manner in which the
instruction was given to her. The court held that she breached the integrity of the
documents and undermined the chain of command in the coy, therefore the dismissal
was justified. (if you want to dismiss on ‘Act inconsistent’, the action must not be
trivial (of small consequence), inadvertent (unintentional/not deliberate), aberrant
(out of character/abnormal) or otherwise excusable.

b) Wilful disobedience to a lawful order. In the case of ZCTU v Makonese, the court
held that for an order to be lawful it must meet the following requirements (be given
by the employer; be capable of being carried out; for the advancement of employer ’s
business; closely related to employee’s duties; not a wrongful act (be legal); employee
must refuse to carry out order and actually not carry it out). Also refer to the case of
Zupco v Mabhande & Mawire (driving instructors).

c) Wilful & unlawful destruction of employer’s property.

d) Theft/fraud (misrepresentation). On a balance of probability. Case of ZESA v Dera

(98), a driver at a Zesa found with four tyres stolen from Zesa garage and appeared
before the company’s Disciplinary Committee (dishonesty). He argued that they
belonged to a security guard in the company. The court held that he was guilty. Also
refer to the case of Standard Chartered Bank v Mapuka( cheque fraud)respo of ee on
gud f

e) Absence from work for a period of 5 or more working days without leave or
reasonable cause in a year.
 29

f) Gross incompetency or inefficiency in the performance of his/ her work. Onus lies
with the employer to prove. Refer to case of Zim Mining &Smelting Company v
Mafuku (HR Mgr).

g) Habitual and substantial neglect of duty.

h) Lack of a skill which the employee expressly or implied held himself/herself to

possess. In Total v Moyana, the court held that if an employee fails to perform his
duties at the level of skill he held himself to possess, he may be disciplined. In a case
of falsely claiming qualifications, Makina v State, the court upheld the dismissal of
an employee who presented qualifications belonging to another as his own (may also
be charged with criminal fraud).

Constructive dismissal s12B(3a)-termination of employment contract, with or without

notice because the employer made continued employment intolerable for the employee, thus
the employee was left with no option but to resign.
-the 1st requirement is that the employee must have brought the relationship to an end.
-onus on employee to prove it would have been intolerable to remain in employment, thus
employer behaved in a deliberately oppressive manner.
-employee must generally show that they were subject to coercion/ duress/ undue influence.
Mere unhappiness at the workplace is not enough.
- include deliberate reduction in pay, change in job content or status, change in hours of
work, failure to provide work, failure to provide working environment reasonably suitable for
performance.
-the conduct of employer should be substantial and normally over time period.
Remedies for unlawful dismissal
1) Reinstatement with full benefits as if there was unbroken relationship. If the employer
can prove that the employee had taken up alternative employment, the benefits will be
paid from the time of reinstatement up to the point alternative employment was taken
or convince the courts that the employee could have mitigated his/her circumstances
by looking for alternative employment of comparable status, on the strength of his/her
skill, qualifications and experience and availability of job opportunities.
 30

2) Damages in lieu of reinstatement as advanced by the employer. Should the employer ’s

reasons for refusal to reinstate not be good enough then punitive damages may be
imposed S89(2C)(iii).
3) Severance package.
4) Re employment e.g. contract staff (broken relationship)

TOPIC FIVE – LEAVE PROVISIONS (s14)

Leave-authorised period of absence from work (paid/unpaid).

LA studies 4 types. Organisations have bargained for other types such as study and
occasional leave.
-LA provides the minimum conditions (clause ‘unless more favourable conditions have been
provided for...”).

SICK LEAVE (s14)

-sick leave is granted to an injured or ill employee or undergoing medical treatment not
occasioned by failure to take reasonable precaution.
-granted on an aggregate 90 calendar days on full pay per year only upon provision of a
certificate signed by a registered medical practitioner.
-subject to medical certificate submission, leave may be extended to 90 more days on half
pay (if medical practitioner sees the probability of duty resumption).
-after an aggregate 180 days for the year, employment contract may be terminated by
employer.
-can utilise accrued vacation leave instead of sick leave on half pay or without.
In Manyisa v The Minister of Finance (2002), an employee with a bad record of absence
was absent from work, while sick, but the court upheld his dismissal as he was held to have a
duty to advise the employer.
-sick leave is not accumulative to the following year.

VACATION LEAVE (s14A)

-a long period of rest granted, usually annually.
-granted after completion of 1 year of service.
-accrued at a rate of 1/12 a month for 12 months.
-maximum accrual of days is 90 (ceiling)
-all Saturdays, Sundays and public holidays are counted.
 31

-if employee becomes ill while on vacation, vacation leave may be cancelled and sick leave
applied for.
-unpaid leave may be granted at the discretion of employer.

SPECIAL LEAVE (s14B)

-granted on full pay for 12 days per year and cannot be carried over to the following year
(non-cumulative). Designed to cover;
 Attending a court hearing e.g. as a witness
 Attending TU business (as a delegate/office bearer)
 Detention for questioning by police
 Death of spouse, parent, child or legal dependant
 On medical practitioner’s instructions because of contact with an infectious disease.
 On any justifiable compassionate ground.
*This leave is granted on a use-or-lose basis each calendar year.

MATERNITY LEAVE (s18)

-98 days on full pay to a female employee (previously after serving 1year...still reflecting in
the Act though repealed in 2005 amend) upon the provision of a certificate of pregnancy
confirmation signed by a registered medical practitioner or SRN.
-proceed on leave not earlier than 45 th day or later than 21st day prior to expected date of
delivery.
-This benefit can be enjoyed with the same employer only 3 times on full pay (beyond this, it
is unpaid) and is granted after every 24 months from previous maternity leave.
-no sick leave during ML unless employer grants for medical reasons other than maternity.
-normal benefits and entitlements, including rights to seniority, advancement and
accumulation of pension rights will continue uninterrupted.
-breast feeding granted for 1 hr or 2 half hr times per day for 6months to nursing mothers.
Comment on getting pregnant at recruitment/ do you reveal at interview, what rights, and
chances of employment? Should the law consider pregnancy leave to cover pregnancy
related illness of fatigue, miscarriage or abortions?
Weekly rest and working on Public Holidays
 32

-at least 1 day (24hr) rest per week.

-paid leave of absence every public holiday if on that day one was meant to be on duty.
Otherwise it’s twice the payment for that day where an employee consents to work.

TOPIC SIX – COLLECTIVISM

-The act gives employees a fundamental right to be a member of a TU and or workers

committee and take part in activities in the promotion of their interests at the workplace.

Workers Committee (WC) s23

-a shop floor worker organisation (enterprise level).

Formation
-decided by employees (fundamental/ constitutional right to organise)
-employer to provide facilities for them to meet without production disruption
-be provided with employee database / staff compliment list with relevant particulars.
-managerial employees can form their own WC.
-TU to assist in formation.
*s23 where a TU has 50% of employees within a single business unit as union members,
every member of WC must be a member of the TU concerned.
-an ordinary WC cannot constitute or represent a managerial employee, unless it solely
represents them alone. s23(1)
-composition and procedure of a WC shall be determined by employees.
-SI 372/1985 also provides regulations guiding the formation of WC. The Workers
Committee Guidelines published by the Labour Ministry in the early 1980s can also be
referred to.

Functions
-represent employees in matters of rights and interests.
-negotiate with employer a CBA on terms and conditions of employment.
-recommend CJA.
-elect members to works council.
* WC may negotiate a CBA only if there is no existing CBA, or if the TU agrees to allow it
to negotiate one or with ministerial intervention on issues he feels are pertinent.
 33

Effect of CBA negotiated by Workers Committee

-be binding to both parties if approved by the TU and more than 50% of employees (in any
conflict, TU position will override).
-Minister may direct for a re-negotiation of a CBA.
-CBA negotiated will not be affected by change in management, ownership, and workers
committee, transfer of industry or undertaking.
-minister may make regulations to workers committee (in consultation with appropriate
advisory council, if any) for the control of WC and WCc on methods or procedures of
formation, tenure of office of members of both, operation, management and conduct of affairs
of both.

Case 1 (Managerial employee cannot join)

Ngulube v ZESA- a managerial employee refused when instructed to withdraw from the WC
he had joined, arguing that his constitutional right of freedom of association was being
infringed. He was subsequently dismissed. The court held that his rights were clearly laid out
in the Labour Act with a clear path for representation of managerial employees that he was
free to pursue.

Case 2 (Member cannot act unlawfully)

ZESA v Mare (SC43/2005) - Mare, a member of the WC used force to seize and tear a
disciplinary record from a staff member who as a witness in a disciplinary case was asked to
provide a written report. He argued that he did this as a member of the Workers Committee
and was not personally liable. The court held that members of the WC are not a law unto
themselves, but are still subject to management control.

Case 3 (Member cannot act unlawfully)

Chidare v Chibuku Breweries, a WC chairperson was dismissed for participating in an
illegal strike. The LC upheld the dismissal and found Chidare to have been arrogant and
insubordinate to his employer.

Works Council (WCc) (s25A)

-established in organisations in which a workers committee has been elected.
 34

-a joint body composed of an equal number of members representing employer and workers
committee (thus, observers can come in but will be silent throughout or play an advisory role
if both parties concur).
-Amendment #7/2005 altered to include the Chairperson in addition to the equal
representation of parties but no corresponding amendment to s25A(2) which still refers to
‘equal numbers’.

Functions
-collective bargaining
-focus on best possible use of resources
-foster, good relations
-promote and maintain effective participation by employees.
-promote common interest

Matters employer should consult Works Council on

-restructuring of a workplace (e.g. intro of new tech/ work methods).
-product development plans, job grading and training and education schemes affecting
employees.
-partial/ total plant closures and mergers and transfers of ownership.
-implementation of a code of conduct.
-criteria for merit increases/ payment of discretionary bonuses.
-retrenchment of employees (voluntary/ compulsory).
* before implementing any of the above, the employer shall afford WCc members
representing WC a reasonable opportunity to make representations and to advance alternative
proposals, consider and respond on such proposals and attempt to reach a consensus. This
should not be misinterpreted as seeking approval but consultation.

Trade Union (TU) s27

- e.g. Commercial Workers Union of Zimbabwe, Public Service Association, Railway
Association of Enginemen, Zimbabwe Amalgamated railwaymen ’s Union, Zimbabwe
Bankers and Allied Workers Union, MSULA, Zimbabwe Catering and Hotel Workers Union,
Zimbabwe Urban Councils Workers Union.
 35

-an organisation whose membership consists of employees who seek to organise and
represent their interests both in the workplace and society and in particular seek to regulate
the employment relationship through the direct process of CB with management.
-a continuous association of wage earners for the purposes of maintaining or improving
conditions of their employment.
-any group of employees can form a TU or a federation
-a constitution is drawn up to include such aspects as the right to join, membership fees and
office bearers.
-in 1992 LRA amend; the government in line with ILO convention on freedom of association
dropped the policy of ‘one TU per industry’ in favour of multiplicity unions.
-the late MDC founding President and ex minister of National Healing Mr Gibson Sibanda
was the 1st ZCTU President from 1989 to 1999. He also held, on behalf of Zimbabwe, the
position of Commonwealth Trade Union Council Chair.

Benefits of Registered TU
-becomes a body corporate (may sue or be sued, hold property...)
-be assisted by Labour Officer or designated agent in its dealings with employers.
-act as an agent union
-access to employees
-require employers to provide them with employee particulars incl wage details.
-make representations to a ‘determining authority’ such as Labour Court.
-sit on employment board/ participate in forming an employment council.
-recommend collective job action
-collect dues.
-be represented in the Tripartite Negotiating Forum in Zim.
-use any other relevant powers conferred by the LA.

Formation and Registration

-any group of employees may form a TU. This right is a constitutional one (freedom,
expression, movement, assembly...)
-a written constitution and submission to the minister within 6 months.
-office bearers can be recalled (accountability issues e.g. where union leaders go astray and
involved in bribery and manipulation of employees, state.
-Registration with Registrar with all details (name, sponsors, coverage, affiliation....).
 36

Function
*Economic- operate as eco defence organs of the working class.
*Social- provides self esteem/ sense of camaraderie to members (solidarity). Provide social
change (express social cohesion, aspiration, political ideology of their members).
*Political-platform where workers learn to organise, work as a solidarity and develop
political consciousness.
*Regulatory-issue of job regulation and other employment conditions.

NB- a company employee who is an official / office bearer of a registered TU/ federation is
entitled time off during working hours to attend to Union business, paid or unpaid as
provided in CBA (also refer to Special leave provision).

Unregistered TU/Employer Organisation –cannot make representations to the Labour Court

or be assisted by a labour officer or designated agent. It cannot sit in an NEC, be provided
with employee details by employers, recommend CJA, levy or collect union dues.

Agent Union- is when a registered TU represents employees not represented by a registered

TU provided;
*50% employees to be affected agree.
*the registered or unregistered union which already represents the employees requests the
registered TU to act as its agent union.
*minister requests a registered union to act as one.

-A registered union wanting to act as an agent must apply to the minister (union agency lasts
only 3 yrs.....may be extended or revoked by minister). In his determination the Minister shall
consider the ability/suitability/capability to represent interests of employees concerned,
employer and employee views, levies or dues to be charged to affected employees.

Employer Organisation
-in a similar manner to TU, employers have a right to form an employer organisation, register
and have a written constitution.EMCOZ/ ZNCC/CZI e.t.c
Benefits
-becomes a body corporate
 37

-assisted by labour officer/designated agent

-sit on employment board/ participate in employment council formation
-obtain from TU/ workers committee names and particulars of members.
-make representations to a ‘determining authority’.
-use any other relevant powers in the LA.
-be a part of the TNU in Zim.

Employment Councils (N.E.C) s56

 Voluntary EC (s56)- formed when the registered employer organisation and registered
TU get together on a constitution and apply to the Minister to have an EC formed.
 Statutory EC (s57)- is ministerial powered, in the ‘national interest ’. He requests
registered TU and employer organisations to get together to form the council. If not
done in 3 months, he can decide who will best serve the interest of employees and
employers and instructs them to form an EC by signing a constitution (he appoints).

Duties (s62)
-assist in the negotiation of acceptable CBA.
-assist in dispute settlement between parties.
-ensure CBA are observed within the industry it covers.
-NEC in textile, hotel & catering etc

Designated Agents (s63)

-appointed by the Registrar as advised by NEC and issued with appointment certificates.
-his jurisdiction is on the undertaking, industry or areas falling under the said NEC.
- employer grants him a right of reasonable access to employees to advise and assist them on
employment matters, right to reasonable premises and check coy books vis a vis CBA terms,
right to entry and search (on the belief a contravention of the Act is taking place).
-must not disrupt normal production.
-allows them to conciliate workplace disputes and unfair labour practices referred to them by
NEC
- He exercises similar powers as LOs and thus can also refer disputing parties to compulsory
arbitration
 38

-Any hindrance or obstruction by the employer may lead to a fine/ imprisonment of up 6

months or both.

TOPIC SEVEN – COLLECTIVE BARGAINING FRAMEWORK

-an agreement negotiated in accordance with the provisions of the Act which regulates the
terms and conditions of employment of employees.
-a process in terms of which employers and employees collectively seek to reconcile their
conflicting goals through a process of mutual accommodation.
-A voluntary process for reconciling the conflicting interests and aspirations of management
and labour through the joint regulation of terms and conditions of employment-Gwisai, 2006
-CBA becomes a source of implied terms to the employment contract.
- To the employer it helps maintain industrial peace, allowing for peaceful production
planning. To the employee, it guarantees the creation and maintenance of workplace
standards such as wages and job security.
-PART X of the Labour Act provisions relate to bargaining at NEC level. At enterprise level
most of its provisions do not apply. However as noted in s74(6), the Act allows but does not
oblige further negotiations at company level. However once started, such negotiations must
be finalised, as in the case of Old Mutual v OM Workers Committee, where the employer
withdrew from the CB process as a settlement could not be reached and waited for the NEC
award. The court ruled that the company was obliged to negotiate to settlement or deadlock.
A party thus, cannot unilaterally abandon a CBA in motion before reaching its finality.

Issues/ Scope (not limited to these)

-rates of remuneration and minimum wages per grade/occupation
 39

-employee benefits e.g. meals, medical aid

-employer deductions e.g. loan sharks, union subs, premium such as 1 st mutual, court ordered
such as maintenance.
-methods of pay calculation, dates, times and payment modes
-overtime, piece work, vacation and vacation pay
-job evaluation methods for grades of employment.
-apprentice employment conditions
-hours of work and times of work
-requirements of occupational safety
-access to personal files
-dispute handling procedures
-housing and transport facilities/ allowances
-measures to combat workplace violence

*CBA valid for 12 months, however negotiation may happen any time for more favourable
conditions.
*CBA should not be in contravention of the Act’s provisions.

Parties are obliged to negotiate in good faith(s75). Its elements constitute:

 Disclosing all relevant information such as records, papers and books
 Make no false or fraudulent representation
 Attempt to settle or arrive at a successful conclusion expeditiously and earnestly.

Good faith does not mean agreeing to increases

-negotiation does not mean that one party has to give in to the demands of the other, thus
agreement to disagree is still a conclusion. TM Supermarkets v TM National Workers
Committee (2004), frustrated in its demand for a wage increase, the workers committee
alleged the employer failed to negotiate in good faith. The Supreme Court held that
negotiation does not necessarily mean a discussion in which one party gives in to the
demands of the other and the fact that the employer did not agree to the demands did not
mean there was no negotiation and that there is a difference between ‘refusing to negotiate ’
and ‘refusing to grant an increase’.
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As a ground to inability to agree to terms or conditions, parties are obliged to disclose in full
when financial incapacity is alleged s76. Any dispute on this can be referred to LO or to
voluntary arbitration where it will be established if it is inability or unwillingness and failure
to comply with the determination which is binding shall be guilty to a fine or imprisonment.

*Representation- committees, delegates or agents (specify in writing to the other party prior
negotiations).

*Ratification-by all parties. Before committing, TU should 1 st consult employees. Ratification

formally legitimises an agreement. In national interest matter, Minister may come in.

Approval of CBA
-should be submitted to the Registrar of Labour, and thereafter the Minister, in terms of the
powers vested in him, shall publish the agreement as an SI and come into a binding effect.
Each party will be provided with a copy of CBA, which should also be visibly located e.g.
staff notice board.
-On any inconsistent provision the Minister, may direct the Registrar not to register until
amended (failure amounts to unfair labour practice). He may then direct parties to amend
within a specified period and report to him (if aggrieved a party will appeal to LC). In PTC v
Posts & Telecommunications Workers Union et al (2002), the employer tried to avoid
compliance with a gazetted agreement on the ground that it could not afford the increments,
which it felt had been made by mistake. The minister ordered PTC to pay lower wages and
referred the matter to a mediator. The court ruled that this was unlawful, as the Minister is not
recommended to direct any party to ignore a proper statutory CBA nor refer the matter to a
mediator.

*Unless replaced by a substitute agreement (upon expiry of time), or terminated by mutual

agreement, a CBA shall remain binding even when there is a change of ownership, industry,
membership, structure of TU or employer organisation.

NB: s82B (in amend number 7, the Minister is now obliged to gazette ‘codes of best practice,
guidelines and model agreements’ for the guidance of employers and employees-who
however will not be obliged to follow them.
 41

A non statutory CBA is one made outside the provisions of the Act when parties freely enter
into such agreements whose incorporation at law can be expressly, impliedly or by
ratification.

TOPIC EIGHT – COLLECTIVE JOB ACTION

1.“Without an effective right to strike, there can be no genuine trade unionism, collective
bargaining, and therefore no effective participation of workers in decisions that affect them in
their working lives- a fundamental human right”. Discuss this statement in relation to the
Right to strike in Zimbabwe.
2. “The right of workmen to strike is an essential element in the principle of Collective
Bargaining”. Discuss

Introduction
-is an industrial action calculated to persuade / cause a party in an employment relationship to
accede to the demand related to employment; including strike, go slow, lock out, picketing,
sleep in, work to rule, boycott and sympathy strike.
-According to Khan Freund (1983:22), there can never be equilibrium in IR without the right
to strike.
-A CJA paralyses economic business operation for the employer as much as in the case of
employees, it provides a counter veiling force to management prerogative in that the right to
CJA serves as a safeguard against the imbalance of power between the isolated employee and
the employer.

Strike Action
-is a stoppage of work in a joint action against an employer for a recognised purpose.
-it is a concerted withdrawal of labour by workers in support of their interest and is central to
CB and dispute resolution.

The Right to Strike in Zimbabwe s104

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-employees in essential service cannot undertake a strike action. This is any service that
endangers the immediate life, personal safety or health of the whole or any part of the
public.
(it is defined by the Minister, gazetted as SI 137/2003 ‘Declaration of Essential
Services Notice’ e.g. fire, water, health, certain veterinary services, customs, certain
transport and comm., electrical)
-No strike over a dispute of right thus can only resort to a strike only if dispute of interest.
-Where a dispute has been referred to arbitration, a strike cannot be ordered.
-There can be no strike where there is a union agreement governing the matter in dispute and
has not been complied with or remedies specified or exhausted to address issue.
-no strike without the majority employees agreeing through secret ballot voting.
- TU or employer organisation approval for CJA
-14 days written notice of intent and grounds for it to the party whom the action is to be
taken, employment council, TU or employer organisation.
-Show that an attempt to conciliate the dispute having failed and issued with a certificate of
no settlement.

NB: Notwithstanding the above requirements, an immediate strike can be undertaken;

*to avoid any occupational hazard which is reasonably feared to pose an immediate threat to
the health or safety of persons concerned.
*in defence of an immediate threat to the existence of a Workers Committee/ registered TU.
In First Mutual Life v Muzivi (SC62/2003), employees at FML, including Muzivi decided to
form a managerial WC. To hinder this move, the company regraded the employees concerned
to positions openly non management. This action effectively dissolved the committee. A
strike followed and Muzivi was dismissed for participating in an illegal strike as deemed by
the employer. The court held that the strike was lawful as it was in response to an immediate
threat to the existence of the WC.

Picketing
- is a solidarity tool authorised by registered TU/Workers Committee. It is a peaceful
demonstration designed to convey to the general public the reason for a strike and to mobilise
support for the strikers’ cause as well as in opposition to a lock out. It takes place outside
employer premises but can also be inside if CBA authorised or if approved by the Minister.
 43

Lockout
-employer’s option. A tool to put pressure on a union/ workers committee to desist from CJA.
The employer must comply with s102 and s104.
-it gives the employer power to perform acts which prejudice their workers i.e. compel them
to comply with some demand/proposal.

Show cause Order (s106)

-Minister may (on his own initiative or an affected party) issue an order for the responsible
persons to show why a disposal order should not be made, thus advance through submissions
the reasons why the minister should not terminate, postpone or suspend intended/undertaken
strike action. The responsible persons shall appear before the Labour Court as specified by
the order.

Disposal Order (s107)

-a final order by the LC that directs that unlawful CJA be terminated or suspended or
postponed or the issue be referred to another authority to be dealt with. It may provide for
such actions as suspension of pay for the strike duration, and dismissal of specified
employees.

NB: Previously an employer could summarily dismiss, lay off or suspend with or without
paying employees engaged in unlawful collective action, but now as prescribed in
subsection3a(ii) the employer may take disciplinary action in terms of the code or law.

Protection of persons engaged in lawful CJA (protected persons) s108

-protection from discipline and dismissal
-cannot employ people during lock out.
-right to picket.
-right not to be interdicted incl show cause.
-right to remuneration in kind by way of accommodation, food provision, basic life amenities
(employer may only recover monetary value through action instituted in the LC). Thus s108
(4), takes the common law position of ‘no work, no pay’.
-immunity from civil liability.
 44

Liability of persons engaged in unlawful CJA (responsible persons) s109

-fine and/or imprisonment
-Public Order and Security Act (POSA) shall apply in determining the conduct of a party
leading to CJA.
-suspend the collection of TU dues or employer organisation membership fees.
-compensate loss to the affected party (sued for damages)
-Criminal Procedure and Evidence Act will be invoked.

Appeals
-appeal on the show cause or disposal order to the Labour Court.
-lodging an appeal will not suspend an order appealed against unless an interim order is
granted by the Minister.

Cessation of CJA s111

-there are four conditions:
 When the underlying cause has been removed.
 Where the determination has been issued in terms of dispute resolution
 Where the relevant TU or WC has ordered the strike to be suspended.
 Where a show cause or disposal order directs stopping, delaying or suspending the
strike.

Case study 1 (14 days notice cannot be carried forward indefinitely)

Moyo v Central African Batteries-employees gave 14 days notification of an intention to go
on strike. Upon the expiry of those 14 days, they did not go on strike, rather went 3 months
later, arguing that they had served the employer with the said notice. The court found that it
was unacceptable to rely on this notice, as the delay of 3 months was unreasonable and there
was no evidence of using it 3 months later, as basis for a strike.

Case 2(CJA definition is not limited to a strike)

James North Ltd v Muronze. An 8 man Workers Committee induced a portion of James
North’s workforce to embark on a go-slow. The Court held that a go slow was a form of CJA
and therefore in the particular circumstances dismissal was appropriate.
Case 3 (No work, no pay)
 45

NRZ v Railway Artisans Union. Employees of NRZ, of the above union, embarked on an
illegal strike. During the time the employees were on strike they were not paid and the Union
on their behalf argued that they should have been. The court held that, in common law terms,
if you do not work, then you do not get paid.

Case 4 (Disposal order-discipline)

Ziscosteel v Dube. A strike was threatened which resulted in a Show Cause hearing.
Employees went on strike as negotiations failed to resolve matter. A Disposal Order was
issued and employees returned to work as ordered. However Ziscosteel took disciplinary
action against those involved, in terms of its Code of Conduct, and dismissed them. The
workers argued that, as a Disposal Order had been issued and they had complied with it, they
should not be discharged. The court held that a Disposal Order did not preclude disciplinary
action in terms of the Code of Conduct.

TOPIC NINE – CODE OF CONDUCT (s101)

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“NOT TO KNOW IS BAD; NOT TO WISH TO KNOW IS WORSE”. NIGERIAN PROVERB

-one of the far reaching changes made to Zimbabwe employment law as a direct result of
ESAP was the introduction of CoC with the LRA amendment of 1992 as a measure of
deregulating the labour market, giving employer more control over discipline and termination
of employee contracts. SI 371/1990 and SI 56/1992 give guidelines on how to draft
workplace codes of conduct and their implementation. s101 of the Labour Act as read
together with the SI of 1990 and 1992 give legitimacy workplace negotiated code of conduct.

-prior to their introduction contracts could be terminated with approval from the Minister
unless where there was mutual consent of the parties or in some instances summary
suspension.

-basically registered Codes are established at NEC level, in-house level and the
National/Model code (SI 15/06). Registrar of LC registers and codes become binding.

-An unregistered Code can only be used up to the final written waning before using the
provisions contained in the National Employment Code of Conduct Regulations in SI 15/06.

-The application of the Code should be precise...to all employees (incl managerial ones) or to
non managerial. If NEC Code is used, it cannot apply to managerial staff. In the case of ZTI v
Gwinyai, having been dismissed in terms of the Works Council negotiated Code, he appealed
that it did not apply to him as he was managerial. The court held that it did, as it referred to
‘all employees’.

Definition

-a guideline of rules and procedures intended to promote disciplined work behaviour.

-has to be registered with the Registrar including its amendments, and shall be binding. Any
dispute on this shall be settled by the Labour Officer unless voluntary arbitration is sought.

-NEC registered CoC supersedes works council negotiated CoC unless approved by that NEC

Provisions (ss3)

 Disciplinary rules to be observed incl exact definitions of acts/omissions of

misconduct

 Procedure upon its breach.

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 Penalties or sanctions for its breach (should be progressive e.g. warning,

deductions...)

 Specify person/authority/committee vested with implementation or enforcement. A

case of improper composition as in the case of Minerals Marketing Corporation of
Zimbabwe v Mazvimavi, where the employer had one more representative than
provided in the code, the proceedings were held invalid

 Specify notification procedure to offender.

 Provide the right to be heard by an appropriate committee (principles of natural

justice)

 Right to be heard before any decision is reached. In Securitas Pvt Ltd v Musora,
where the employer dismissed the employee on the basis of an investigation report
without giving the employee an opportunity to be heard, the dismissal was held
unlawful.

 Minutes/ summary of proceedings and award should be kept for future references as
in the appeal process.

-If case not determined at the workplace after 30 days from the date of notification, either
party may refer it to the LC.

-Minister may, after consultation (with TU/Employer Org) by SI publish a model

employment code (ss9).

Common Pitfalls

* Not revised in line with environmental changes e.g. fines still in Z$, issues on
conducting personal business and moonlighting (taking outside employment), not wearing
a standard uniform, addressing only absenteeism ignoring presentism (all in the era of
economic hardship in Zimbabwe, 2007-2008)

*representation ...can one be represented by a legal practitioner, friend?

*right to be heard including mitigating before verdict s12B(4) and bringing own
witnesses.
 48

*composition to disciplinary hearing esp. on management side?

*notification issues.

*lack of knowledge on labour issues by the panel

*ignorance by management e.g. asking for a code or clarity 5minutes before the process

* Chairperson’s pot of disaster in disciplinary hearings esp. on impartiality.

*pre determining the case

*inadequate investigation

*prompting through leading questions e.g. have you stopped stealing......?

*Procedural fairness esp. according alleged offender all documents to be made use of at
the hearing within a reasonable time (otherwise it becomes a miscarriage of justice).

*poor preparation and delay of the process

*inconsistencies and interpretation in penalties and offence classification

* s12B(4) consider mitigatory factors such as length of service, previous disciplinary

record, nature of employment and other special circumstances that can alleviate/ lessen
the penalty avoid unnecessary appeals.

*unclear roles of the panel who tend to take sides.

*quick hearings because all should return to busy work stations.

*not providing a determination or decision (including minutes) supported by the basis for
the decision (will aid in appeal circumstances)

*internal appeal structure should not be more than 2

*position with regards to managerial employees. In the case of Samuriwo v ZUPCO, the
court held that the code, although it stated that it applied to all employees regardless of
rank, could not apply to the MD as he was a central participant in the entire process on
the side of the employer.
 49

“BE CURIOUS ALWAYS, FOR KNOWLEDGE WILL NOT ACQUIRE YOU; YOU NEED TO
ACQUIRE IT”. SUDIE BUCK

TOPIC TEN – LABOUR COURT (s83)

 50

- Part XI is largely under the administration of the Minister of Justice, except s89(1)(b)
a responsibility of the Labour Minister (hearing and determining matters).

- A court of appeal and record.

- A court of initial jurisdiction.
- Final court on disputes of facts.
- Consists of Senior President, Presidents and assessors.
- Administered by the Minister of Justice or any assigned by the President.

Qualification as LC President (s85)

- Former Supreme Court judge or High Court Judge
- Qualified High Court Judge
- Has been a magistrate in Zimbabwe for at least 7years
- Salary conditions, allowances and pension determined by the President of the
Republic on recommendation of the Public Service Commission.

Assessors (s86)
- Appointed by Senior President of LC in consultation with the Minister
- Must possess experience or knowledge in labour relations, HR.
- Salary and allowances determined by the Justice Minister with the consent of the
Finance minister.

Registrar of the Labour Court (s87)

- A public office for safeguarding the records of the LC including filing appeals,
applications, and other documentation lodged with the LC, notifying parties of
hearing among other duties assigned by the Senior President.

Functions, Powers and Jurisdiction of LC (s89)

- Hearing and determining applications and appeals including those referred to it by the
Minister of Labour
- Refer labour dispute to a labour officer, designated agent or conciliator
- Appoint an arbitrator to hear and determine an application
- Exercise same power as High Court with regards to labour issues
 51

- Other duties assigned with regards to this Act/other enactments.

- Confirm, vary, reverse or set aside the decision, order or action appealed against or
substitute its own decision or order.
- Refer matter back to the same LO or another to handle as guided.
- May order;
 Back pay from time of unfair labour practice
 Reinstatement/employment in a job (award damages if relationship can be
proven by employer no longer tenable and with punitive damages imposed to
such an employer)
 Pay damages determined at the LC
 Promotion of employee
 Payment of legal fees and costs
 Cessation of the unfair labour practice.
NB: s89 (2C)(iii)(iii) provides for the imposition of punitive (disciplinary/
penalizing/castigatory) damages in the case where damages have been awarded in
lieu of reinstatement/ employment as a result of an untenable (shaky/
indefensible/unsustainable) working relationship arising from unlawful or wrongful
dismissal by the employer.

- LC is not bound by the strict rules of evidence.

- LC may summon witnesses to examine them under oath.
- Parties before the LC will be accorded chance to question or cross examine each other
or witnesses.
- A member may appear in person or be represented by a registered legal practitioner or
an official or employee of a registered TU/employer organisation he/she belongs.
- LC may fix date from which order/determination/decision shall come into operation
- LC may alter or rescind on its own decision if made in the absence of the party
against whom it was made/void/made through fraud or as a result of a mistake or to
correct an error; provided parties should first be notified or the case is pending review
or appeal.
- An appeal shall not suspend the decision appealed against. s92E (2). Upon
application, an interim determination (or a stay of execution) may be made by the LC
pending review outcome.
 52

- Appeals to the Supreme Court are on a question of law only, provided leave to appeal
is sought from the President who made the decision (he/she is better placed to
interpret what constitutes a question of law). If he/she refuses, leave to appeal may be
sought from a judge of the Supreme Court (commendable as it seeks to achieve
finality in litigation).

Comment
The act is silent on what transpires to the judgement where an appeal has been
lodged with the Supreme Court (common law principle of suspending judgement may
apply).

TOPIC ELEVEN – LAW OF DISPUTE SETTLEMENT

 53

Dispute-a continued disagreement between employers and employees or their unions as

regards any matter of common interest, any work related factor affecting their relationship or
any process and structures established to maintain such relationship. Defined in the Act as a
dispute relating to any matter concerning employment which is governed by this Act.

Dispute of Right- a dispute involving legal rights and obligations or on unfair labour practice,
breach of Act or regulations made under the Act or that of CBA or contract of employment. It
is a right to which a party is entitled to, by law, by contract, by agreement or by established
practice. Its transgression constitutes a civil/ criminal offence e.g.
*failure of one party to abide by the CoE
*unilateral change in accepted/ customary practices.
*failure to implement legally determined conditions and procedures such as minimum
working hours or prescribed notice periods.

Dispute of Interest-any other dispute other than that of right as defined by the act e.g.
creation of new rights such as wage increments. It is an interest to which a party is not yet
entitled but to which the party would like to become entitled. The interests are subject to CB
or negotiation whose failure culminates in a deadlock (a source of dispute of interest). Once
agreement has been reached the interest sought may become a right.

Resolving Disputes:
*Adjudication- determination of a dispute by 3rd party (binding).
*Collective Bargaining-negotiations by representatives.
*Collective Job Action-strikes/ lockouts
*mediation & conciliation- reconcile by 3rd party to reach consensus.
*Arbitration-vested with authority to make a decision, more informal than adjudication and
seeks to build consensus.

Conciliation
-is a voluntary, impartial, confidential dispute resolution method.
 54

-requires a high level of knowledge, tact and skill (listen and interpret the issue from two
sides of view).
-a movement towards a mutually acceptable solution.
-Labour Officers (LO) and designated agents play this role.
-LO can entertain disputes which are within a period of 2 years from the date when the
dispute first arose and must settle it within 30 days unless the parties agree to extend up to a
maximum of 90 days (SI 217 of 2003).
-conciliator makes a recommendation that is not binding.
-agreement should be acknowledged by both parties and issued with a certificate of
settlement. In the case of a disagreement conciliator issues a certificate of no settlement after
the lapse of 30 days and refers to compulsory arbitration.
-LO, in consultation with his senior labour officer, after issuing a certificate of no settlement
may refer the matter to compulsory arbitration;
 If it is a dispute of interest and parties are in essential service.
 In agreement with the parties
 If it is a dispute of right
-As provided in s93(7) if LO refuses to issue a certificate of no settlement in relation to that
dispute, it is impossible to refer the matter to compulsory arbitration, any party may apply to
the LC for the disposal of the dispute in the case of a dispute of interest or refer it back to the
same Labour Officer or an appointee in the case of a dispute of right to handle as guided.
Arbitration
-usually a ‘last’ resort.
-can be voluntary or compulsory.
-terms of reference shall guide the arbitrator.
-it is an outcome of a ‘failure to agree’. This means that an independent person will make a
decision that in all probability will satisfy neither party to the dispute.
-hearing takes the form of a committee meeting (informal, arbitrator chairs).
-Arbitrator makes the award, binding to both parties.
-for voluntary arbitration, the 1996 Arbitration Act (chapter 7:15) shall apply.
-for compulsory arbitration, the Labour Act shall apply.
Compulsory (s98)
-where the LO/LC has referred a dispute to compulsory arbitration, no employees, workers
committee, TU or employer organisation shall engage in CJA in respect of the dispute.
 55

-Before referring a dispute to compulsory arbitration, the LC shall afford parties a reasonable
opportunity to make representations on the matter.
-Terms of reference shall be determined by the LC/LO in consultation with the parties.
-Subsection 5 spells the appointment of an arbitrator from a list of arbitrators (appointed by
the Minister in consultation with the senior president of the LC and advisory council. The list
consists of any LO, Designated agent or any person the Minister considers experienced and
qualified in arbitration). The LC or LO (after consulting his senior) who has been conciliating
the case shall be responsible for the appointment provided the said LO shall not be appointed
in that dispute.
-Arbitrator shall have the same powers as the LC in hearing and determining any dispute.
-An appeal on a question of law from the arbitrator’s decision shall lie with the LC within 14
working days after the date of arbitral award.
-Arbitrator to provide copies of the decision to all parties affected.

NB: For voluntary arbitration it lies with the High Court within 3 months of receiving award.
-arbitration awards (fundamental lying principle) are supposed to be binding and final
especially on disputes of fact (in line with the objective of LA that of expeditious resolution
of disputes and unfair labour practice).

Grounds for review of an award

*on a point of law only (thus the arbitrator misdirected himself in law such as coming to a
conclusion that no reasonable man in the circumstances would have come to)
*incapacity of a party- insolvent, alien, mental patient
*inadequate notice to a party.
*arbitrator exceeds power or not properly appointed or award is ultra vires law
*subject matter above Arbitrator’s jurisdiction
*composition/ procedure unfair.
*award is in conflict with public policy (e.g. fraudulently induced, corruption).

Appeals under compulsory arbitration s98(10)

- Be made 14 days from the date a party became aware of the award, only on a question
of law.
- No engaging on CJA once referred to compulsory arbitration.
 56

- Minister in consultation with Senior LC President will prepare a list of arbitrators

(consisting of any LO or Designated Agent experienced or qualified or any whom he
considers experienced or qualified).
- LA governs compulsory Arbitration while the Arbitration Act governs voluntary
arbitration.

TOPIC 12: MINISTERIAL POWERS s17

-Minister –subject to s83, refers to the Minister of Labour or any assigned by the
President to administer this Act.
-it details the Minister’s extensive power to regulate employment issues.
 57

-she may consult advisory council (appointed by her, in terms of s19) if any, to make
regulations, providing for the development, improvement, protection, regulation and
control of employment and employment conditions.
-subsection 2 makes it clear that the Minister ’s regulations take precedence over other
existing contractual employment arrangements which provide terms/conditions less
favourable than those specified in the new regulations (to bring it to conformity).
-the Minister has absolute power on any employment matter e.g. in 2003 he issued
regulations on Retrenchment and Resolution of Disputes and in 2006, regulations
containing the National Employment Code of Conduct (also see s12B, 12C and 93 to
support this)
-The Minister publishes such intended regulations in the Gazette for inspection and calls
upon persons with any objections to the proposed regulations to lodge them to her in
writing within 30 days of the date of publication. Failure by her to comply with this shall
not affect the validity of the regulations concerned.

Provisions subsection 3(1)

 Rights of employees (incl min. wages, benefits and other conditions)
 Pay deductions
 Work hours (incl overtime, night and shift work)
 Rest and meal breaks, food provision and other services at work
 Leave provisions and remuneration/allowances in that regard
 Holidays granted or withheld from employees.
 Establishment of pension, social security, sick, medical, holiday and other funds for
employees and levy contributions.
 Special conditions applicable to female, juvenile and disabled employees
 Employment restrictions on juveniles, pregnant women and their rights and
priviledges.
 Contract management including overtime, part time, short time, casual basis
 Encouragement of employment of disabled persons and facilities provided for such
persons
 Dispute settlement
 Protection of rights of employees in respect of employment issues
 Implementation of any national/international standards of employment
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 Recruitment and employment of labour including apprentices, recruitment control of

citizens, non citizens and residents within and outside Zimbabwe.
 Employment of unemployed persons and those released from penal institutions
 Termination of employment
 Reinstatement of employees retrenched unfairly or contrary to national interest.
 Regulation and control of recruitment and employment agencies
 Any other matter relating /connected with employment.

!!!END OF MODULE!!!

“The heights by great men (and women) reached and kept, were not attained by sudden
fight, but they, while their companions slept, were toiling upward in the night”.

Henry Wadsworth Longfellow

60 pages/ 15 079 words