Introduction to Labour Law 2024 CIN2206.pptx

An introduction on Zimbabwean Labour law

1. Introduction to Labour Law CIN2206

2. Introduction What Is Labour Law? Is the system of rules that regulates the voluntary relationships arising from the workplace and whose enforcement is guaranteed by the state as law. Labour Law is closely related to other branches of law like; Contract Law, delict , a dministrative Law, company law, Constitutional law and International law. Labour Law can be loosely understood in two forms.

3. Branches of Labour Law INDIVIDUAL LABOUR LAW – That part of law that regulates the relationship between the individual worker and the employer whose foundation is the contract of employment . COLLECTIVE LABOUR LAW- Collective labour law regulates the legal relationship between employee organisations (trade unions) on the one hand and employer organisations on the other. This relationship has its legal basis in the collective agreements entered into by the parties.

4. SOURCES OF LABOUR LAW Although L abour law regulations are to a large extent contained in legislation, there are other sources as well, such as the : Constitution and the Labour Act C ommon law C ase law I nternational Labour Organisation Conventions (ILO Conventions)

5. Importance of Labour L aw Labour is one of the most important branches of the law. This is because it is the principal means by which society regulates the relationship arising out of work. WORK AND LABOUR LAW are of significance to the individual / society for a number of reasons including the following: ECONOMIC REASON – the livehood and economic well being of society depends on the wealth created in the formal work sector. PSYCHOLOGICAL, SOCIAL AND POLITICAL NATURE and impact through the transformation of raw materials from nature into useful things used by society, the worker gets a sense of mastery and self fulfillment which builds his sense of self-dignity and social worth.

6. Constitutional regulation of Labour L aw s 65 of the Constitution gives everyone the right to fair & safe labour practices. it further allows employees to join trade unions and employers to join employers organisations & to engage in lawful activities of such organisations employees and employers can also take part in collective job action such as striking, picketing, lock-out etc.… Employees and employers may also engage in collective bargaining

7. F unctions of L abour L aw. To ensure the undisturbed continuation of the process of work, principally for the well being of the employer. To ensure the dominance of the employer class in the employment relationship, i.e. the law imposes a duty on the worker to obey the commands of the employer and gives the employer the right to manage the business at the same time enjoying the fruits whilst the worker gets only a WAGE. 3) To promote methods of dispute resolution. 4 ) To limit the excessive exploitation and arbitrary powers of individual employers.

8. Applicable Legislation in Labour Law. THE LABOUR ACT 28:01 is the legislation at use in labour law. It applies to all employers and employees including those in parastatals and local authorities. However the exceptions are employers whose conditions of employment are provided for in the constitution, i.e. Disciplined Forces, Public Servants – (Public Service Act) The L.A. takes precedence over any other enactment inconsistent with it-S2A(3).

9. EMPLOYMENT CODES OF CONDUCT. An employment code of conduct is a bunch of rules and regulations that govern relations of employees and employers at the workplace. The code should not be ultra vires the L.A. There are 3 types of Employment Codes of Conduct, namely: The NATIONAL CODE OF CONDUCT -commonly known as the National Employment Code of Conduct –NECC. The INDUSTRIAL CODE OF CONDUCT . The WORKPLACE CODE OF CONDUCT . The Workplace Code of Conduct regulates the process/relationship of work at a particular institution, say a company or organization e.g. Delta, Stanbic , or NUST .

10. The NECC as its name implies is applicable nationally , irrespective of the name of the line of business of the co. or industry . Where there is no Workplace Code of Conduct, the Industry Code shall apply , but where there is also no such Industrial Code of Conduct, the NECC shall apply . N.B. Workers generally are governed by their Employer’s Code of Conduct, provided its provisions are not ultra vires the NECC and the L.A.

11. Vicarious liability V icarious liability is the principle of law that holds one party liable for the acts (or inactions) of another. It holds that the employer is responsible or liable to third parties for delicts/crimes committed by his employees within the scope of their employment. Generally the employer is liable for the wrongful acts of an employee if these are committed while the employee acts in the normal acts of business or is abound by his master’s business. An employer of an employee who injures someone through negligence while in the scope of employment ( doing work for the employer) is vicariously liable for damages to the injured person.

12. Reasons for Vicarious Liability As the employer makes a profit from the activities of employees should also bear any losses that those activities cause. the employer is reaping economic benefits from the employee (enjoy profits and suffer the negative consequences). because has the right to control employees. best positioned to pay. employer has the financial muscles to cover himself. it encourages accident prevention by giving an employer a financial interest in encouraging employees to take precautions for the safety of others. employee is held to be an agent of the employer.

13. Duties of Employers : Duty to respect employee’s entitlement to membership of trade unions and workers committee. Duty to refrain from forced labour- s4A(1)LA- consistent with S65 of the new Constitution of Zimbabwe. N.B. This duty has implications on the law of overtime, because overtime can not be forced on workers, unless they have given prior consent or by need of an emergency. Duty to refrain from unlawful discrimination S5 LA. [colour, race, tribe, background, religion, sex, ethnic, region….etc .] Duty to adhere to fundamental fair labour standards – S6- The FAIR LABOUR PRACTICES which the employer must adhere to are:

14. Cont … Duty to pay the remuneration/salary prescribed under law. Duty to adhere to the prescribed working hours. “prescribed conditions of employment” under law. Not to hinder any employee from seeking access to any lawful proceedings to advance their rights.

15. 4) Duty to adhere to prescribed maximum working hours – S6 Under S14C employees are entitled to not less than 24 continuous hours of rest each week or other agreed day. Mothers with suckling babies are allowed an aggregate of one hour off a day in the 1st 6months of the baby's life under S18(8)L.A . 5) Duty to equal protection of the law. 6) Duty to provide safe and healthy working conditions. 7) Duty to pay the prescribed remuneration and benefits.

16. Duties of the Employee The employee has duties in the employment relationship, arising from common law and statutes. Breach of such duties amounts to misconduct. Under the common law, the principal duties of the employee are: 1) THE DUTY TO PROVIDE SERVICE – Thus an employee may be dismissed where he is absent from work for a period of five or more working days without leave or reasonable cause – S4 , S 15 of 2006 NECC. 2) THE DUTY TO SERVE DILIGENTLY AND COMPETENTLY- The worker has a duty to be reasonably efficient and competent through out the duration of the employment contract.

17. According to the case of Total Zimbabwe Pvt Ltd V Moyana s 127 04 The worker is presumed to have given an implied warranty that he has the necessary qualifications or experience required in a job. ( N.B – according to the NECC it is a misconduct for the employee to lack a skill which the employee expressly or implied held himself or herself out to possess.)

18. 3) THE DUTY OF SURBODINATION – A worker has the duty to obey lawful orders given by the employer. This duty is codified in S4 of NECC SI 15 of 2006, which allows dismissal of a worker guilty of “willful disobedience”. 4) DUTY OF GOOD FAITH- an employee has the duty to work in and advance the interests of the employer and not against its interests. The employee is to refrain from misconduct or anything which makes the continuation of the employment relationship intolerable or unworkable or which undermines trust and confidence in employer and employee. E.g. Theft and fraud at work, willful destruction of company property, conflict of interest ETC.

19. Unfair dismissals and remedies. The L.A. provides employees with significant rights and protection of job security. S12B of this Act provides that every employee has the right not to be unfairly dismissed. To that end, unfair dismissal is termination of an employee’s work which is not substantively and procedurally fair. The NECC specifies one of its objectives as to “provide guidelines on procedural and substantive fairness and justice in handling disciplinary matters at the work place” SOME OF THE GUIDELINES ARE AS FOLLOWS:

20. VALID REASONS – The burden to prove the fairness of the dismissal is placed on the employer; an employer is deemed to have unfairly dismissed an employee unless he can show that he dismissed the employee in terms of a registered employment code or in the absence of this, the NECC or by mutual agreement. 2) DISMISSAL AS LAST RESORT- S12B(4) states that in determining the fairness of a dismissal, an adjudicating authority shall consider the nature and gravity of the misconduct concerned as well as mitigating factors particular to that employee, such as length of service, disciplinary record and nature of employment.

21. 3) AN OPPORTUNITY TO DEFEND ONESELF before an impartial body , every employment code to provide for that, right of notification and to be heard b4 any decision is made. Minerals Marketing Corporation of Zim v Mazvimavi 1995 (2) ZLR 353(S), the court stated that a disciplinary authority is required to apply the elementary tenets (principles) of natural justice, namely to act fairly and honestly . S5 of the National Employment Code requires that a: hearing be conducted for an employee charged with misconduct and provides extensive procedural rights to them in the final including, 3 days notice of the hearing, appearance in person before the disciplinary authority, to be represented by the fellow employee or a legal practitioner, to call witnesses, to be informed of the reasons for a decision and to address the hearing in mitigation.

22. 4) EFFECTIVE REMEDY – The demands of just and effective resolution of disputes require effective remedies for unfair dismissal – courts have held that the most effective remedy is reinstatement and that this is the primary remedy – ZUPCO V CHISVO 1999(1) ZLR 67 (5). Damages may also be given. -In deciding whether or not to award reinstatement, a determining authority shall also take into consideration the preferences of the employee.

23. The other factors that would be considered in whether to reinstate or give damages include : whether there is an untenable working relationship- e.g. where there is a complete loss of confidence in the employee by the management. The size of the employer – the bigger the employer the less likely it will be held that the relationship is no longer tenable since personal contact is minimal . The intention of the legislature – reinstatement should be ordered where its denial would frustrate legislative intention.

24. Cont … 5. SAFEGUARD MEASURES TO PROTECT FIXED TERM CONTRACTS and prevent circumvention (avoidance) of the Act. The L.A. MAKES IT AN ACT OF UNFAIR DISMISSAL FOR AN EMPLOYER TO FAIL TO REVIEW AN EMPLOYMENT CONTRACT OF FIXED DURATION WHERE THE EMPLOYEE HAD A LEGITIMATE EXPECTATION OF BEING RE-ENGAGED AND ANOTHER PERSON WAS ENGAGED INSTEAD OF THE EMPLOYEE . Under S12(3) LA – a casual contract may be transformed into a permanent contract if the employee works for an aggregate total of more than 6weeks in any four consecutive months. In the case of Zimbabwe Bata Shoe Co Ltd v Zimbabwe Bata Workers’ Committee LC 24/05 The court held indefinite repeated contracts to be against public policy because they led to casualization of labour.

25. Dismissals The stating point is section 65 (1) of the Constitution which provides the right to fair and safe labour practice and standards. The right to fair labour practices is codified by the L abour Act and an important provision of the L abour Act is section 12b (1) of the L abour Act which provides that every employee has the right not to be unfairly dismissed. Unfortunately the L abour Act does not define the term unfair dismissal but in section 12b (2 and 3) read with section 5 of the National C ode as well as section 2a of the L abour Act it provides circumstances when a dismissal will be held or deemed to be unfair. The existence of a dismissal does not mean that it is not unfair take note. A dismissal must be both substantively and procedurally fair in order to escape a finding of an unfair dismissal. for a dismissal to be fair it must be within the confines under section 12 B read with section 5 of the National Code.

26. U nfair dismissal in the Labour Act Dismissal in terms of the employment code of conduct or the model code of conduct S.I 15 of 2006. An employer who wishes to dismiss an employee for capacity or conduct must do so in terms of a registered code of conduct or in its absence the national employment code S.I 15 of 2006 this is sanctioned in terms of section 12b (2) of the L abour A ct read with section 5 a and b of the national code. Any dismissal outside a registered code of conduct or the code is an unfair dismissal.

27. Constructive dismissal I t means any action on the part of the employer which renders the continuation of the employment relationship unbearable for the employee to such extent that the employee is left with no option but to resign . M eans any action on the part of the employer which renders the continuation of the employment relationship unbearable for the employee to such extent that the employee is left with no option but to resign . T he statutory constructive dismissal concept means that an employee terminated a contract of employment with or without notice because the employer made the employment intolerable. Termination is at the initiative of the employee. C onstructive dismissal occurs when then employer repudiation of the contract of employment cause the employee to resign. T he L abour Act does not provide for circumstances to say this would amount to constructive dismissal; such conduct depends on the facts of each case.

28. Refusal or failure by the employer to renew a fixed term of contract The fixed term contract expires upon the agreed time or completion of a specific task. One cannot claim that he has been unfairly dismissed under Common Law. Section 12B of the LA has modified termination of fixed contract where one has legitimate expectation of being employed is a deeming provision. If an employee on a fixed term contract wants to challenge non renewal of his fixed term contract on the basis of section 12 B (3) b of the Labour Act. Must prove 2 things without doubt. 1) That he had a legitimate expectation of being engaged. 2) That another person was engaged in his stead.

29. Cont … Section 12 (b)3 b seeks to protect employees against abuse by the employer of fixed term contracts as such employees do not have any job security. This section was influenced by article 3 of ILO Recommendation on Termination of Employment Number 166 of 1992. So we derived our section from that recommendation. What is a reasonable and legitimate expectation under section 12 (3b). There is no single factor that determines what is reasonable in each case, the test applied is an objective one which requires an examination of all relevant factors since the Labour Act does not define the term legitimate expectation. However, in Taylor v Minister of education 1996 it was accepted that a legitimate expectation refers to an expectation short of a legally binding obligation and an enforceable right. It may arise from the express authority given form the authority or from the existence of a regular practise which a claimant can reasonably expect to continue.

30. Cont … O ne must establish that the expectation was reasonable and secondly that employer did not renew the contract and relevance to the reasonable are the following factors:- 1) terms of the contract and nature of the contract, was it a short term or long term? 2) nature of employment when in nature is seasonally there cannot be reasonable expectation. 3) whether the employer made any indications, promises that the employment contract is going to be renewed. 4) remaining in employment after expiration of the agreed period.  

31. Collective Bargaining Collective bargaining is a voluntary process for reconciling the conflicting interests and aspirations of management and labour through the joint regulation of terms and conditions of employment. It extends to all negotiations which take place between an employer, a group of employers or one or more employers’ organizations, on the one hand, and one or more workers’ organizations on the other. Collective bargaining is premised on the fact that workers and employers have divergent interests and that conflict is natural. For collective bargaining to be effective, there is need for relative equilibrium of power between the parties and the use of legitimate economic weapons such as strikes by workers opposed by the employer’s right to withdraw wages.

32. Definition of Collective Job Action. What is collective job action? S2 L.A. it means “an industrial action calculated to persuade a party to an employment relationship to accede to a demand related to employment, and includes a strike, boycott, lock out, sit-in or sit-out or other such concerted action”. The definition shows that there must be some element of work stoppage or disruption of production, meaning a demonstration outside working hours can not be classified as collective job action.

33. Forms of collective job action S trike Boycott Lockout Sit in/sit out Go slow Secondary/sympathy strikes usually by trade union supporting their members on strike.

34. Strike and Collective Job Action Law Strike or the collective and concerted withdrawal of labour by workers in support of their interests, is a central aspect of both collective bargaining and dispute resolution law. It is called COLLECTIVE JOB ACTION in the L.A. There are several conditions imposed by the L.A. before a party may embark on collective job action. Such conditions are designed to prevent the most violent forms of strikes that affect the vital interests of employers.

35. Circumstances where collective job action is outlawed or banned Alt hough the Labour Act guarantees the right to strike there are circumstances where there is deemed to be no right of collective job action. members of the security forces essential services disputes of right arbitration situation. unregistered trade union or employer associations

36. Circumstances where collective job action is banned – S104. There are various circumstances specific under S104 when there is deemed to be no right to collective job action: These are: ESSENTIAL SERVICES:- Strikes are prohibited in essential services. Essential service is defined as any form of service the withdrawal of which will endanger immediately the life, persona; safety or health of the whole or part of the public . E.g. medical services during a pandemic of cholera. DISPUTES OF RIGHT:- It is prohibited to go on collective job action to redress a dispute of right. A dispute of right is defined in S2 L.A. as any dispute involving legal rights and obligations including a dispute caused by unfair labour practice, breach of the L.A. or of the terms of a Collective Bargaining Agreement

37. Cont … 3) ABITRATION SITUATIONS:- CJA is prohibited where the dispute has been referred to arbitration. 4) UNREGISTERED TRADE UNIONS:- These are prohibited from recommending or engaging in collective job action – S104(3).

38. 5) Section 111 circumstances states that any person involved in CJA shall refrain from participating in such CJA where: The underlying cause of the action has been removed. The issue or dispute has been resolved under part 13 of the L.A. in either conciliation or arbitration. There is a disposal (order) suspending or terminating the CJA.

39. Procedure for going on a C.J.A A PARTY OTHERWISE ENTITLED TO GO ON CJA HAS TO COMPLY WITH CERTAIN FORMALITIES BEFORE DOING SO. These are specified under S104 and include: NOTICE:- A 4 day notice is required stating the grounds for going on job action and must be given to the relevant employer. The notice must be writing. CERTIFICATE OF NO SETTLEMENT:- There must have been an attempt at conciliation of the dispute and a certificate of no settlement has been issued by a labour officer stating that he has failed to resolve the matter. SECRET BALLOT:- A secret ballot must have been conducted with the approval of the majority of the employees, S104(3 ).

40. Cont … The majority amongst those who actually cast their votes. The ballot is conducted before the expiry of the notice and at the workplace. In the case of an enterprise level strike, the voting must be done in the presence of a labour officer who shall record the results. UNION APPROVAL:- before any workers committee can embark on C.J.A. they must get approval of the registered trade union. UNION AGREEMENT RESRTICTIONS:- a workers’ committee can not engage in C.J.A. if there is a union agreement (i.e. CBA) which provides for or governs the dispute and such agreement has not been complied with i.e. if remedies specified therein have not been exhausted as to the issue of the dispute. S104(3)(d).

41. Picketing (Section 104 A) It refers to a gathering of members and supporters of a trade union or workers committee for either or both of the following purposes— (a) demonstrating peacefully— in support of any collective job action; or in opposition to any lock-out; and (b) peacefully persuading other members of the trade union or workers committee or employees of the industry, undertaking or workplace represented by the trade union or workers committee to take part in the collective job action or demonstration.

42. Picketing cont … It has been held that picketing employees may stand outside the gates of the employer’s premises in a public area and hold, display or wave placards to communicate with the employer or the public or anyone who may have dealings with the employer. However, the communications should not constitute criminal offence. The picketing employees and supporters can also speak with members of the public and sing , chant or dance to draw attention to their cause. The purpose of the picket is to peacefully encourage non-striking employees and members of the public to oppose a lock-out or to support strikers involved in a protected/lawful strike. The nature of the support can vary. It may be to encourage employees not to work during the strike or lock-out ( Van Niekerk and Smit,2015) .