What is Labour Law?
Labour law basically refers to the collection of legal rules which govern the employment relationship. There is no doubt that labour or work is one aspect of modern society, hence there must be a system of rules to regulate same. The rules of labour law, like any other legal rules, are legally enforceable meaning that a party to an employment relationship may approach a court of law or other appropriate institution or forum to obtain relief in respect of the breach of the rules.
Labour law in Zimbabwe focuses on various types of employment relationships. The most common employment relationship is that between an employer (an individual person or an artificial person such as a company). The other employment relationships recognised by our labour laws are between the employer and a group of employees, the employer and a trade union, an individual an employee and a trade union and relationships between employers, unions and employers’ organisations.
In light of the above, labour law can be formally defined as a collection of legal rules which govern and regulate employment relationships between employers and employees, employers and trade unions and employers’ organisations and trade unions. The State in its dual capacity as the employer and regulator is also governed and regulated by our labour law.
What is Individual and Collective Labour Law
Labour laws can be divided into two broad categories, that is, “individual labour law” and “collective labour law”. Individual labour law which is the relationship between an employer and an employee focuses mainly on the relationship between the employer and the individual employee, and it is regulated by the contract of employment concluded between the employer and the individual person.
As for collective labour law this refers to the relationship between the employer, employers’ organisations, and trade unions. These are referred to as collective relations because they are between collective entities or groups. The collective labour law is therefore governed by collective bargaining between employers, employers organisations and trade unions representing employees.
Sources of Labour Law
Legislation
The Constitution of Zimbabwe Amendment (No. 20) Act, 2013
The Constitution of Zimbabwe is the supreme law of the land and any law inconsistent with it is invalid. There are key provisions of the Constitution which are part of the Zimbabwean labour law, for instance the Declaration of Rights Chapter, which include labour rights, equality and non-discrimination, freedom of assembly and association and freedom of profession, trade or occupation. The Constitution also has provisions which regulate employment by the State such as the civil service, security service, employees of independent commissions and other employees of Parliament.
Acts of Parliament
The principal Act of Parliament in labour law is the Labour Act [Chapter 28:01]. The Act applies to all employers and employees except those whose conditions of employment are specifically provided for by the Constitution. The Labour Act prevails over any other enactment inconsistent with it.
Delegated Legislation
Delegated legislation is promulgated in the form of various Statutory Instruments and Regulations. Statutory Instruments are made by the relevant Minister in terms of the enabling Act of Parliament. There are also industry specific collective bargaining agreements which are legally binding after their registration with the relevant authorities. These collective bargaining agreements are written agreements concluded by an employer or employers’ organization and a trade union representing the employees.
International Labour Instruments
The main international labour instruments are the Conventions and Recommendations of the International Labour Organization (ILO). These international labour instruments also forms part of the Zimbabwean labour law.
Common Law
Common law of Zimbabwe refers to the unwritten law or law that is not derived from legislation. In Zimbabwe, the common law is primarily based on judicial precedent and principles derived from Roman-Dutch Law and English Law. Judicial precedent, that is to say, case law authority also forms part of our common law.
Authoritative Texts
This relate to the views of leading authors and commentators on labour law. These are of persuasive value and usually apply where neither legislation nor case law is directly in point.
The contract of employment
What is a contract of employment?
The contract of employment is the main foundation of the relationship between an employer and employee. The contract of employment, thus, links the employer and the employee in an employment relationship. The contract of employment can be defined as an agreement between two parties in terms of which one party (the employee) works for another (the employer) in exchange for remuneration. The contract of employment is therefore a product of offer and acceptance which outlines the terms and conditions of employment between an employer and an employee. Most employees in Zimbabwe are engaged under different types of employment contracts which shows the nature of the employment relationship between the employer and employee. However, it must be noted that an oral employment contract is recognised at law as valid and binding if it satisfies the requisite elements for a contract of employment.
Essentials of a contract of employment
There are three important elements of a contract of employment:
a) Agreement to make personal services available
b) Remuneration
c) Subordination
The Labour Act however, obliges employers to provide their employees with written particulars of their employment conditions. Under Zimbabwean labour law, it must be noted that employers and employees are generally free to conclude their contracts of employment for either a fixed term or an indefinite period.
Types of contracts of employment
There are three types of contracts of employment that employers and employees can agree on. The following are the types of contracts of employment in Zimbabwe:
Contract of casual nature or seasonal contract of employment
A casual contract of employment basically entails a contract of fewer than six weeks in four consecutive months and a seasonal contract is also a casual contract albeit its implementation is governed by weather seasons.
Fixed term contract of employment
A fixed-term contract by its name entails that it has a specific fixed date of commencement and an expiry date. The end date is thus agreed upon by the employer and employee in advance.
Contract of employment without a limit of time
A contract of employment without a limit of time is self-explanatory in that this is a contract of employment whose end date is unknown to the parties for the reason that the end date is not agreed upon by the employer and employee in advance.
Parties to an employment contract
It is imperative to note that the Labour Act [Chapter 28:01] (“Labour Act”) is the main piece of legislation governing employment relationship in Zimbabwe as read together with other enactments. The Labour Act applies to all employers and employees except those whose conditions of employment are provided for in the Constitution of Zimbabwe and members of the public service and members of the disciplined forces. Conditions of service of members of the public service are regulated by the Public Service Act [Chapter 16:04], members of the disciplined forces are regulated by the Defence Forces Act [Chapter 11:02], Police Act [Chapter 11:10] and the Prison Services Act [Chapter 07:10]. As for members of the judiciary their conditions of services are regulated by the Judicial Services Act [Chapter 07:18].
Who is an employer?
The definition of an employer is provided for in the Labour Act as “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…” and also includes a number of other persons such as the judicial manager or liquidator of a company, executor of a deceased estate.
In view of the above definition, an employer is therefore a person, whether juristic or a natural person who provides work to an employee and undertakes to remunerate such an employee for the services rendered.
Who is an employee?
As for the definition of an employee, it is provided for in the Labour Act as “any person who performs work or services for another person for remuneration or reward on such terms and conditions as agreed upon by the parties or as provided for in this Act, and includes a person performing work or services for another person— (a) in circumstances where, even if the person performing the work or services supplies his own tools or works under flexible conditions of service, the hirer provides the substantial investment in or assumes the substantial risk of the undertaking; or (b) in any other circumstances that more closely resemble the relationship between an employee and employer than that between an independent contractor and hirer of services;”
The first part of the definition of an “employee” embodies the concept of what we would commonly understand as an employee, that is, a person who must perform work or service for the benefit of getting remuneration. The rest of the definition as a whole is reasonably self-explanatory. The definition, in itself is reasonably clear. However, the definition does raise the issue of independent contractors and how they differ from employees in general. The distinction between an employee and an independent contract is therefore of utmost importance as legal duties that flow from being an employee differ from an independent contractor.
What is an Independent Contractor?
An independent contractor is a person who undertakes to carry out, for another person a given piece of work and who, in the executing that piece of work, uses his own discretion, and is not subject to that of his principal. As we have noted the Labour Act applies to employers and employees and independent contractors fall in class of workers who are not employees and they do not fall within the scope of the Labour Act.
Duties applicable to an employer-employee relationship
The employer-employee relationship comes with several legal duties and responsibilities that accrue to both the employer and employee.
Duties of an employee.
- Duty to respect and abide by his or her contract of employment
- Duty of fidelity or loyalty
- Duty of subordination
- Duty to be available for work
- Duty to render services competently
Duties of an employer
Probationary periods
Probationary periods are permitted in a contract of employment which is for a single non-renewable period. The probationary period affords the employer an opportunity to evaluate the employee’s performance and suitability for employment before confirming his or her appointment. At the end of the probationary period, the employer must make the final decision whether or not to confirm the employee in its employment. Thus, if the employer does not want to confirm the employee in its employment, it is entitled to terminate the employee’s employment.
Basic conditions of employment
Working time
Generally, working hours are provided for in the contract of employment or in terms of the collective bargaining agreement covering the specific industry or undertaking.
Overtime
Employees generally enjoy the statutory overtime benefits. An employer can only require an employee to work overtime if the employee’s agreement to do so has been obtained. An employer must pay an employee at least one-and-a-half times the employee’s usual wage for overtime worked or grant the employee paid time off.
Termination of the employment contract
Methods of terminating a contract of employment
The employment contract can be terminated in a number of ways by either the employer or the employee. The Labour Act provides distinct methods of ending an employment relationship and these methods differ with the circumstances that the parties find themselves in.
Mutual Termination Agreement
Our labour law recognises a mutual agreement between an employer and employee as a method of terminating a contract of employment. A mutual agreement to terminate an employment contract should be in writing. Since this is a mutual agreement, both parties must show that they agree to the terms contained in the agreement and must append their signatures in the presence of witnesses. It must be noted that a mutually agreed termination overrides all other rights that an employee might have in terms of the law. The recent Labour Amendment Act, 2023, confirms the above position that an employment contract, such as a permanent contract can be terminated when parties mutually agree in writing to such termination.
Termination on notice
The right to terminate a contract on notice was provided for in terms of Section 12(4) and (4b) of the Labour Amendment Act, 2015 (No.5 0f 2015). However, the above provision was repealed by section 12(4a) of the Labour Amendment Act, Act 11 of 2023.
Section 12 (4a) of the Labour Amendment Act, 2023 provides that a contract of employment may be terminated only, on the part of an employee, by his or her resignation or retirement. It further provides a contract of employment may be terminated by the employer by mutual agreement in writing as discussed above and in respect of any breach of an express or implied term of contract by an employee, upon such breach being verified after due inquiry under an applicable employment code or in any other manner agreed in advance by the employer and employee concerned.
From the reading and interpretation of the above provisions, we venture to suggest that section 12(4a) under Act 11 of 2023, can result in the termination of a contract of employment on notice. Our considered view is that the repealing of section 12(4a) under the Labour Amendment Act 5 of 2015, result in parties reverting to the common law position that an employer can terminate a contract of employment on notice by giving the appropriate notice period. The rationale is that the provisions which codified the common law position under Labour Act 5 of 2015 was repealed by section 12(4a)(b) of the Labour Act 11 of 2023. The latter however, excluded the termination of a contract on notice by an employer which does not fully reflect the provision of the Labour Act under Labour Amendment Act 5 of 2015.
Notice period
Section 12 (4) of the Labour Act deals with the applicable periods of notice of termination to be given by either party to a contract of employment. The applicable notice period shall be-
a) 3 months in the case of a contract without limit of time or a contract for a period of 2 years or more;
b) 2 months in the case of a contract for a period of 1 year or more but less than 2 years;
c) 1 month in the case of a contract for a period of 6 months or more but less than 1 year;
d) 2 weeks in the case of a contract for a period of 3 months or more but less than 6 months;
e) 1 day in the case of a contract for a period of less than 3 months or in the case of casual work or seasonal work.
It must be noted that the above notice periods are an exception to circumstances where a longer period of notice has been provided for in a contract of employment or in any relevant enactment. It is imperative to note that the above provisions simply specify the applicable notice periods to be given and does not empower the employer to terminate employment simply by giving the relevant notice period. It is also important take note that in terms of the Labour Act parties to a contract of employment may waive the right to notice.
Expiration of Fixed Term Contract of employment
Our labour law recognises the right of an employer and employee to agree on a contract of fixed duration. Thus, at the end of the specified period in the contract of employment, the employment relationship between the employer and employee is terminated. All rights and obligations arising out of a fixed term contract are extinguished at the end of the specified period of duration of the contract. A fixed term contract of employment can be renewed upon its expiry on the terms agreed by the parties.
Resignation
Resignation is a voluntary and deliberate unilateral act by the employee in terms of which he or she brings the contract of employment to an end without the consent of the employer, with or without notice. From the above definition, it is imperative to note that the hallmark of resignation is that it must be a voluntary and deliberate unilateral act of the employee to end the employment relationship. Thus, if resignation is tainted with force, coercion, duress or undue influence by the employer, it ceases to be a resignation but constructive dismissal.
Retirement
Retirement is when an employer ends a contract of employment because an employee has reached a certain age limit.
Dismissal
Dismissals are required to be for a fair reason and effected pursuant to a fair procedure; therefore, employees may not be dismissed without a legal cause. The Labour Act provides that every employee has the right not to be unfairly dismissed from his/her employment. In essence, an employee can only be legitimately dismissed as opposed to retrenchment/retirement/death or incapacitation in one or two ways that is either through an employment code or if there is no employment code then in terms of Statutory Instrument 15 of 2006.
So an employee is also deemed to have been unfairly dismissed if the employee terminates the contract of employment for the reason that the employer deliberately made continued employment intolerable or where, in the case of a fixed-term contract, the employee had a legitimate expectation of renewal and the employer employed someone else in his or her stead. An employer is entitled to dismiss for good reasons related to the employee in terms of section 12B of the Labour Act where an employee has committed an act of misconduct which warrants dismissal. Acts of misconduct are provided either in the employment code or in terms of Statutory Instrument 15 of 2006. An employee who has been dismissed for misconduct is not therefore entitled to any compensation on dismissal
Retrenchment
Retrenchment is one of the several methods of ending an employment contract and it is a legal process that is governed by the Labour Act. Retrenchment is a no-fault termination of an employee’s contract of employment. It is a process whereby the employer reviews its business needs in order to increase profits or limit losses, which leads to reducing its employees. In other words, an employer may retrench employees for operational requirements. Operational requirements are requirements based on the economic, technological, structural or similar needs of an employer, that is, the “business needs” of the employer.
The previous section 12C as read with section 12D of the Labour Amendment Act 5 of 2015, provided for retrenchment in Zimbabwe. However, with the promulgation of the Labour Amendment Act 11 of 2023, the legislature amended the whole section 12C which provided for the retrenchment and compensation for loss employment. At face value, the retrenchment procedure under the Labour Amendment Act 11 of 2023 appears to be cumbersome. However, it is our well-considered view that the process is simple to understand and implement. The Labour Act, 2023 now refers to two types of retrenchment packages that is minimum retrenchment package as well as an enhanced retrenchment package, which is negotiated and agreed upon between the employer and employees.
Terminal benefits
The Labour Act provides that where a person is dismissed from his/her employment or otherwise has his/her employment terminated by retrenchment, retirement, resignation or incapacitation to perform work, or by death, then he/she is entitled to wages or salary and other benefits due to him/her up to the time of the dismissal, resignation, incapacity or death or accruing up to the end of the employment.
Gratuity
Upon termination of an employment contract, some employees will be entitled to a gratuity in terms of a collective bargaining agreement. Many collective bargaining agreements contain provisions for payment of a gratuity to an employee who leaves employment after a given number of years with an employer. However, it must be noted that for the reason that gratuity is provided for in a collective bargaining agreement, gratuity provisions will not apply to more senior employees who are not covered by such agreements.
Employment dispute settlement
What is a dispute?
Section 2 of the Labour Act defines a ‘dispute’ as ‘a dispute relating to any matter concerning employment which is governed by this Act’. The definition of ‘dispute’ in the Act does not distinguish between ‘individual’ and ‘collective’ disputes. This means that it covers both types of dispute.
What is a dispute of right and dispute of interest?
Dispute of right
The Labour Act defines a “dispute of right” as any dispute involving legal rights and obligations, including any dispute occasioned by an actual or alleged unfair labour practice, a breach or alleged breach of this Act or of any regulations made under this Act, or a breach or alleged breach of any of the terms of a collective bargaining agreement or contract of employment. So in essence, a dispute of right simply refers to a dispute about the application or interpretation
of an existing law or collective agreement
Dispute of interest
The Labour Act defines a “dispute of interest” as ‘any dispute other than a dispute of right. So with a dispute of interest there is no existing legal right in contention but the parties are seeking either to establish new rights or to obtain the best bargain under the existing market and economic conditions.
Tribunals and Courts with the jurisdiction to hear and determine employment disputes
Labour Officer
The Labour officer is an official employed by the Ministry of Public Service, Social Welfare and Labour in terms of 121 of the Labour Act. Section 93 (1) of the Labour Act makes provision for conciliation. Thus, the Labour Officer is empowered to conduct conciliation proceedings in terms of section 93 of the Labour Act. Conciliation is therefore a statutorily compulsory method for the resolution of all disputes and unfair labour practices referred to a Labour Officer.
Designated Agent
Section 62(1(a) of the Labour Act gives an Employment Council the power to settle disputes that have arisen or may arise between employers and employees within the undertaking or industry in respect of which it is registered. The registered Employment Council exercises the power and performs the function to settle disputes referred to in section 62(1)(a) of the Labour Act through its Designated Agents, appointed and authorised by the Registrar of Labour in terms of section 63(3a) of the Act. Section 63(3a) of the Labour Act allows a Designated Agent, to either redress or attempt to redress any dispute which is referred to the Designated Agent or has come to his or her attention.
Arbitrator
Arbitration is a procedure whereby a third party not acting as a court of law, is
empowered to take a decision which disposes of the dispute. As highlighted above, in terms of section 93(1) of the Labour Act all disputes properly referred to a Labour Officer must first be subjected to the process of conciliation before they are referred to arbitration or adjudication, depending on the nature of the dispute. The Labour Act is therefore concerned exclusively with what it terms as ‘compulsory arbitration’. Only disputes of interest are referable to arbitration after a certificate of no settlement has been issued in terms of section 93(3) of the Act.
Labour Court
The Labour Court is now established by the Constitution of Zimbabwe and in terms of section 172 of the Constitution establishes the Labour Court as a court of record. The jurisdiction and powers of the Labour Court to hear matters of labour and employment is conferred to it by the Labour Act. The functions, powers and jurisdiction of the Labour Court are provided in section 89 of the Labour Act. The Labour Court is therefore a creature of statute and can only exercise that jurisdiction which is found within the four corners of the relevant statute and any decision or order made without jurisdiction is a nullity. From the reading of section 89 of the Labour Act, the Labour Court has three types of
jurisdiction:
a) As a court of first instance when considering applications in terms of the Labour Act or any other enactment;
b) Review jurisdiction, and
c) As a court of appeal.
High Court
The High Court has full original jurisdiction over all persons and all matters in Zimbabwe. This means that the High Court always has jurisdiction unless there is a specific statutory provision taking away or prohibiting jurisdiction. So where the Labour Court has no jurisdiction, the court with jurisdiction in labour matters is the High Court for instance in the case where a party is seeking a declaratory order, an interdict and a mandamus.
Supreme Court
The Supreme Court is the apex court of appeal in Zimbabwe. The Supreme Court has appellate jurisdiction over labour matters when it considers on appeal from the Labour Court or the High Court. An appeal from the Labour Court is only permissible on a ‘question of law’ and thus, lies to the Supreme Court. it must be noted that there is no automatic right of appeal to Supreme Court from the Labour Court, a party must first seek leave from the Labour Court to appeal.
Constitutional Court
The Constitutional Court is a specialist court in constitutional matters. It has jurisdiction to hear labour matters where there are constitutional issues arising from the Labour Court, the High Court or Supreme Court or any other court dealing with a labour matter.
I have a question for you as labour people. I resigned from my work because of poor working conditions and also for personal reasons. I was working in the tourism sector and had more than 3 months’ unused leave and more than 60 days of holidays worked.
I have gone for six months now without my benefits being deposited into my bank account. The HR has been blueticking me and it’s been 6 months now. How best can I be helped. Thank you
Hello MacBeth
Firstly check if you were being paid what is stipulated by the NEC minimum wage notice,if not part of your claim will be outstanding wages emanating from underpayment.
Step number calculate your cash in lieu of 90 days maximum claimable.
Step 3 :Check the CBA of the tourism industry with regards to working on holidays and the nature remuneration thereof..if it’s like in most industries thus you 60 days is multiplied by 2 to come up with 120 days thereby formulating the other part of your claim.
Step 4 : Establish if the number of years you have worked in that sector qualify for a gratuity claim if so then that makes up other part of your claim. In most industries employees who save 3 or 5 years continuously are eligible for a gratuity claim.
Step 5.You mentioned something about poor working conditions establish from your CBA wether you were supposed to receiving certain allowances that you were not getting that would be another claim ,,
N.B. Cash in lieu , outstanding wages ,overtime and allowance claims are quantifiable backdating 24 months under the guidance of the law of prescription.
Preparation .. Prepare evidence to establish employment with that particular organisation
Prepare evidence that your leave days had matured up to 90 days either through payslips or a witness.
Evidence of holiday work.
Owen Mthobi Moyo
+263778832515
This article was helpful
i am working for a tobacco company for the past three years and i dont have a contract or never signed a contract , i work as a manager i want to resign due to unfair working conditions ,no contract and what kinds of basic benefits am i entitled to have , how long am i going to serve my notice a
I worked in a casino for 5 months and every month 25% of my salary was deducted for tax every month but no Nasa number was issued to me. Can i claim this money back and claim payment for my accrued leave days for the past 5 months?
Chinese people are using us 13 hours a day ,they are not giving us off days even weekends. our Zimbabwean holidays they are not caring. in terms of salary they are giving us less than 200 dollars if we talk about increasing they fire us even causes violence . we are working without resting.
I need help l have been working for a company that sells clothes l worked for 4 months now and l hv been transferred 3 times now.last month l was transferred from Mutare to Gweru where a new branch was being opened. I was never paid for transport costs or anything for all the times l have traveled. On the 19th of this month we had a stock take and our stock did not balance and l had the keys to the shop and also l receipted all of the things bought in the shop… But also sometimes l wuld go out so that l culd send his money. But he said l was stealing from yet l wasn’t. Can l take this matter to labour court and also do l need a lawyer for it
I need help l have been working for a company that sells clothes l worked for 4 months now and l hv been transferred 3 times now.last month l was transferred from Mutare to Gweru where a new branch was being opened. I was never paid for transport costs or anything for all the times l have traveled. On the 19th of this month we had a stock take and our stock did not balance and l had the keys to the shop and also l receipted all of the things bought in the shop… But also sometimes l wuld go out so that l culd send his money. But he said l was stealing from yet l wasn’t. Can l take this matter to labour court and also do l need a lawyer for it
Your article on duspute of interest has enlightened me.
What steps and evidence needed to pursue a dispute in which I was expecting to be promoted, but intestead, my employer recruited a less qualified, less experienced and young person to be my superior. Employer requested that I hand over all responsibilities to my new superior on day 2. Surprisingly, my new superior earn less than what I agreed on my contract. Do I have a case to take for conciliation?
I have been served with a final demand of payment by the NEC which I have not joint or even received a statement requesting payment. What can I do and is it mandatory for me to join them. I am in the motor industry and self employed without any employees
I need help
I have been working at a company for almost 3 years now but I am having issues when it comes to salaries being paid on time and even receiving the salary. For the past 3 months now I haven’t received my salary and the employer keeps saying the company is broke without any means of compensation whatsoever..I have been afraid to make claims and having them target me because the employer is well known even in judicial areas
what can you recommend I do
I have a question, I have a case where a certificate of settlement was issued but I feel the applicant was prejudiced as he did not understand the legal jargon that was being issued.
Is there a way an appeal against the certificate can be raised ,to initiate arbitration
Its almost a year and half working for a Rwandese in Zimbabwe working conditions are not even fair at all at first we were told only to give a helping hand from 6:30am -20:00hrs but thats not it sometimes we are dismissed around 22:00hrs salaries or overtime wages not even granted how do l get assistance and get my fair wages because he is embarrassing me so that l will get angry and leave the premises
after receiving my pension i continoued working for same employer for another 9 years without contributing to any pension fund. I had my contract terminated without any gratuity paid and leave days not paid after employer alleging that I was above 72 years of age and had gone on pension 9 years ago. what am I supposed to claim, please help. i thought I could claim gratuity and leave days for the 9 years.