Coronavirus Disease (Covid-19) has disrupted virtually all facets of life, including workplace relationships and productivity. It has threatened the health and the livelihoods of workers and employers globally. More than a year on, the impact of COVID-19 on the employment landscape is hugely significant and has brought about significant changes to the way we work.With unprecedented disruptions, lockdowns, closures, and regulatory changes, employers have been forced to make difficult decisions about their workforce and the contractual relationships they currently have as well as those they will create in the future. This disruption of traditional workflow has raised legal questions affecting the viability of employment contracts/ relationships.
1.0 Law Applicable to Employment Contracts
An employment contract is the foundation of an employer-employee relationship. It is a hybrid of specific terms and conditions which are express and implied. Section 12 of the Labour Act [Chapter 28:01] governs the employment contracts. It sets out duration, particulars and termination of the contracts made in employment. Subsection 2 provides that, “An employer shall, upon engagement of an employee, inform the employee in writing of the following particulars— (a) the name and address of the employer; (b) the period of time, if limited, for which the employee is engaged; (c) the terms of probation, if any; (d) the terms of any employment code; (e) particulars of the employee’s remuneration, its manner of calculation and the intervals at which it will be paid; (f) particulars of the benefits receivable in the event of sickness or pregnancy; (g) hours of work; (h) particulars of any bonus or incentive production scheme; (i) particulars of vacation leave and vacation pay;14 (j) particulars of any other benefits provided under the contract of employment”.
2.0 What are the likely labour and employment issues arising due to Covid-19?
- Disruption of workflow
- Retrenchments and Organisational restructuring
- Salary and Benefits cuts
- Variation of Employment contracts
- Mandatory covid-19 vaccination at a workplace
3.0 Can Employers Require Employees to Get Covid-19 Vaccinations?
Legally speaking, an employer cannot compel an employee to get vaccinated. The basis of this arise from the Constitution of Zimbabwe, 2013 and the relative legislation. Section(s) 51, 52 and 60 of the Constitution provides for the right to human dignity, right to personal security and for freedom of conscience respectively. Section 51 further provides that every person has inherent dignity in their private and public life, and the right to have that dignity respected and protected. Every person has the right to bodily and psychological integrity, which includes the right not to be subjected to medical or scientific experiments, or to the extraction or use of their bodily tissue, without their informed consent. Freedom of conscience is elaborated on section 60, that every person has the right to freedom of conscience, which includes, freedom of thought, opinion, religion or belief; freedom to practice and propagate and give expression to their thought, opinion, religion or belief, whether in public or in private and whether alone or together with others.
In terms of section 31(1) of the Public Health Act [Chapter 15:17], there are principles of public health that must guide public health policy and practice. These include respect for human rights and adherence to both rights and responsibilities. Section 35 of the same Act further provides for the consent of the user. For the purposes of this section “informed consent” means consent for the provision of a specified health service given by a person with legal capacity to do so and who has been informed. Vaccination remains an individual choice of the employee. An employer cannot therefore require an employee to be vaccinated but rather encourage the employee to make an informed decision.
However, these sections cannot be read in exclusion of section 86 of the Constitution which provides for limitation of rights and freedoms. These rights may only be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors provided on sub-section 2 of section 86. The right to human dignity is non-derogable.
4.0 Can an employer require a prospective employee to be vaccinated before starting work?
Vaccination remains an individual choice of the employee. An employer cannot therefore require an employee to be vaccinated but rather encourage the employee to make an informed decision. The legislative provisions discussed above, on whether or not an employer can require an employee to be vaccinated can apply with the same effect to a prospective employee.
It can be argued that it is unconstitutional and therefore unlawful for an employer to require a prospective employee to be vaccinated. This is a contravention of section 56 of the Constitution which provides for equality and non-discrimination. Subsection 3 provides that every person has the right not to be treated in an unfairly discriminatory manner whatsoever.
5.0 Can an employees be dismissed for Staying at home for fear of COVID19 (Absenteeism)? –see October/Teleperfomance SA 2021 4 BALR 426
Absenteeism is one of the serious misconducts, which if committed by an employee may warrant disciplinary proceedings against the employee. Section 4 of the Labour (National Employment Code of Conduct) Regulations, 2006 provides that an employee commits a serious misconduct if he/she commits any of the following offences-e) absence from work for a period of five or more days without leave or reasonable cause in a year. The question is about the extent of reasonableness in the sight of both parties.
However, in October v Teleperformance, a call centre agent was dismissed for absenting himself from work without permission for four days during May 2020. He had stayed home because he felt afraid after a colleague had been infected by Covid-19. It was noted that a regulation issued provided that employees may refuse to work if they reasonably feel that doing so would pose an imminent threat of exposure to Covid-19 and that they may not be dismissed or disciplined for this. The applicant was awarded compensation of four months’ salary.
6.0 Can a contract of employment be terminated where the employee is unable to deliver on tasks or the employer fails to provide tools to work remotely?
An employment contract is made up of rights and obligations of both parties. The employer has an obligation to provide tools for work unless there is an arrangement otherwise. Liability caused by unavailability of the tools of trade ought to be borne by the employer. This however should not be used as an excuse for employee’s gross incompetence and inefficiency in the performance of the work. Both parties must address the challenges brought by the pandemic and agree on the way forward.
The Covid-19 pandemic will continue to have drastic effects on the labour market which might require a re-evaluation of employment contracts, and in some cases, will cause loss of remuneration and employment. Amid the heightened tensions and anticipated hardships that our society will face, workplace conflict could arise and it will require employers and unions or employee representatives to have some hard and difficult conversations to reduce the impact of what could emerge in the years to come. Social dialogue between employer and employee will play a massive role in the control of the virusat the workplace and beyond, but also to avoid massive job losses in the short and medium term. Joint responsibility is neededfor dialogue to foster stability.
Wow, this is a great article which has made me aware of a lot of important information which I was completely unaware of. Thank you for educating us employees and employers alike of what the law says when it comes to these situations…