Source: Labour Court under spotlight | The Herald March 18, 2019
Fidelis Munyoro Chief Court Reporter
The Labour Court last week came under spotlight for its ruling ordering Air Zimbabwe (Pvt) Ltd to either reinstate or pay damages to more than 300 workers whose contracts were unlawfully terminated on three months’ notice in 2015.
The national airline brought a fundamental question to the Supreme Court in the case in which it is challenging the Labour Court’s decision of September 2017 giving it a 60-day ultimatum to either reinstate or pay damages.
The issue at the centre of the dispute is whether the Labour Court in confirmation proceedings can substitute its own decision with that of a labour officer.
The matter, which was brought for hearing on Friday, was stalled after Justice Paddington Garwe allowed Airzim legal counsel Advocate Tawanda Zhuwarara to amend his papers to deal with the important question of law.
The retrenched workers’ lawyer, Mr Caleb Mucheche, had requested for sufficient time to prepare his response following the amendments of grounds of appeal by Adv Zhuwarara.
Although Mr Mucheche argued that the Labour Court has the power to amend the relief sought, he could not deal with the point raised at short notice, because it was fundamental to the development of the country’s jurisprudence around the labour law.
He said he wanted to make informed arguments to assists the court with well researched and informed submissions.
In this case, the labour officer had issued a declaration that Airzim cannot terminate employment contracts on three month-notice.
Aggrieved by the decision of the labour officer, Airzim approached the Labour Court on appeal.
The Labour Court came up with its own decision and ruled that the workers had been unfairly dismissed and it proceeded to order their reinstatement or that be paid damages.
In his fresh ground of appeal, Adv Zhuwara claims that this was a serious error of law, arguing that the Labour Court does not have the power to substitute its own determination with that of the labour officer.
This case is important as it will clarify the powers of the labour officers and how the Labour Court can deal with the decisions of labour officers.
This is one of the issues that has arisen because of the Amendment No. 5 of the Labour Act, which radically changed the law around termination on notices.
In September 2017, Labour Court judge Ms Emilia Muchawa found that although Airzim ended the contracts in the spirit of the infamous Zuva Petroleum judgment of July 17, 2015, Section 24 of the Finance Act Number 8 of 2015, gave retrospective effect to the Labour Amendment Act, Number 5 of 2015.
The Labour Amendment Act, through Section 12(4a), outlawed arbitrary termination of employment on notice and set the parameters in which such termination should be done.
The new law only allows termination on notice in circumstances where one is employed on a fixed contract basis or has consented to the termination of contract.