There have been no major enactments or court decisions which have resulted in changes in employment law in the last 12 months.
The legislative actions and initiatives which have been taken to cope with the COVID-19 crisis from an employment perspective are aimed at securing the protection of employees’ health and safety while they are in the workplace. This has been achieved by setting minimum standards which should be implemented by employers, such as testing for COVID-19, and compulsory hand sanitisation and temperature checks.
The relevant legislation is the Public Health (COVID-19 Prevention, Containment and Treatment) (NATIONAL LOCKDOWN) (No 2) ORDER, 2020, SI 200 of 2020.
The legislation is of temporary application, and is subject to regular review.
Our law does not utilise the terms “blue collar” and “white collar” in classifying workers. There is however a distinction between managerial and non-managerial employees which is recognised by statute. Non-managerial employees are generally subject to industry-level Collective Bargaining Agreements (CBAs), while managerial employees are rarely subject to CBAs.
CBAs regulate the terms and conditions of employment, such as grading, wages, benefits and working hours. They also define the minimum wage which is applicable to each grade.
The term “non-managerial employee” can apply to both blue collar and white-collar employees. For instance, the non-managerial employees in an agricultural enterprise may comprise of general labourers (blue-collar workers) and clerical staff (white-collar workers).
While the distinction is not explicitly recognised at law, the grading system is implicitly cognisant of the distinction, as unskilled labour is generally placed in the lowest grades with the least pay.
In addition to the distinction between managerial and non-managerial employees, there exists a distinction along the lines of the nature of the employment contract, that is, whether the contract is for an indefinite period, or for a fixed term; or whether it is seasonal or casual. These contracts are discussed in greater detail in 2.2 Contractual Relationship.
The main types of employment contracts are as follows.
A contract of employment does not have to be in writing. In terms of our law, oral contracts are valid and enforceable. Section 12 (2) of the Labour Act [Chapter 28:01] obliges the employer to inform an employee in writing of the following particulars upon engagement:
Hours of Work
Maximum working hours are generally regulated under the relevant Collective Bargaining Agreement. In the absence of an applicable CBA, the employee should be informed of the ordinary hours of work within the context of section 12(2)(g) of the Labour Act, which has been referred to in 2.2 Contractual Relationship.
Generally, employees work an eight or nine hour day, with shift-workers in some industries working up to 12 hours per day. In terms of Section 14C of the Labour Act, an employee shall have at least 24 hours of continuous rest per week.
Employers may permit their employees to work on a flexitime basis. This is, however, not regulated.
Contracts of employment for part time workers must stipulate the hours which they are required to work per day, week or month, as well as the applicable remuneration.
Overtime for employees who are subject to a CBA is regulated in terms thereof. In some industries, the employer may compel its employees to work overtime, while in others the employer may only request its employees to work overtime. Managerial employees are generally not entitled to overtime pay unless the employment contract provides for it.
Overtime is usually calculated at a rate which is higher than the ordinary hourly wage, in some cases at as much as double the regular hourly wage. Employees may also be compensated for overtime by way of time off corresponding to the overtime worked, calculated at a rate which is generally higher than the actual overtime worked.
Section 20 of the Labour Act empowers the Minister responsible for the administration of the Labour Act to promulgate a Statutory Instrument specifying minimum wages and benefits in respect of any class of employees in any undertaking or industry.
The Labour (Specification of Minimum Wages) Notice, SI 70 of 1996 was gazetted in terms of and to give effect to Section 20 of the Labour Act. In terms thereof, the Minister specifies the minimum wage which should be paid to certain groups of employees, excluding employees who are subject to a National Employment Council agreement, and employees in the agricultural sector, as well as domestic workers.
The minimum wage was last reviewed by SI 81/2020, which came into effect on 27 March 2020.
In addition to Section 20 of the Labour Act, Section 74 (2) of the same Act allows registered trade unions and registered employer organisations or federations thereof to negotiate and agree on rates of remuneration and minimum wages for different grades and types of occupations. The resultant agreed wages are recorded in collective bargaining agreements which are industry or sector specific.
Collective bargaining agreements made under Section 74 of the Labour Act are binding on all employers and employees in the sector or industry to which the agreements relate.
Neither the Labour Act nor the Minimum Wage Regulations make it compulsory for employers to pay a bonus or 13th cheque. However, some CBA’s, such as the CBA for the Banking Undertaking, SI 273/00, make it compulsory for employers to pay a 13th cheque. In all other cases, the entitlement to a bonus is a discretionary matter, which is regulated by the terms of the contract between the parties.
In terms of Section 14A of the Labour Act, an employee who would have completed their first year of service with an employer is entitled to fully paid vacation leave at the rate of one calendar month per year or two and a half days per month. An employee who has no accrued vacation leave may take unpaid vacation leave.
An employee is entitled to paid special leave not exceeding 12 days in a calendar year in terms of Section 14B of the Labour Act. An employee may be allowed to take special leave on the basis of any of the following:
Weekly and Public Holiday Rest
Under Section 14C of the Labour Act an employee is entitled to not less than twenty-four hours of continuous rest per week. An employee is also entitled to a leave of absence on public holidays. If they consent to work on public holidays, they will be entitled to at least double their ordinary daily remuneration rate.
A female employee who would have served for at least a year is entitled to a maximum of three fully paid periods of maternity leave in terms of Section 18 of the Labour Act. Each period of maternity leave must be at least 98 days, and shall be separated from the next period of maternity leave by not less than 24 months. An employee who fails to meet the stipulated requirements will be granted unpaid maternity leave. Zimbabwean law does not provide for paternity leave.
A sick employee is defined as a person who is prevented from attending duties because of illness or injury, or who is undergoing medical treatment. The illness should be certified by a registered medical practitioner.
In terms of Section 14 of the Labour Act, a sick employee is entitled to 90 days of fully paid sick leave per year, as well as a further 90 days of sick leave on half pay. If the medical condition persists thereafter, the employer is entitled to terminate the employment contract by reason of the employee’s incapacity.
There is nothing in the Labour Act which regulates the disclosure of confidential information. This is regulated by the common law, in terms of which an employee is not allowed to disclose confidential information without authority from the employer. Employers are also at liberty to include a confidentiality clause in their employment contracts.
The Labour Act does not prohibit employees from speaking negatively about the employer, its products or its services. The duty is however implied by the existence of the employee’s duties at common law to further the employer’s best interests, and to avoid bringing the employer into disrepute. In addition, some codes of conduct make it an offence to say or do anything which brings the employer into disrepute.
An employee who speaks negatively about the employer or its products or services may, in addition to facing disciplinary action, face a claim for damages. Such a claim would not be subject to any limitation of liability, unless the contract of employment provides otherwise.
A non-compete clause is generally enforceable if it is reasonable and not contrary to public policy. A non-compete or restraint of trade clause will usually affirm that the employee accepts that the restraint is reasonable, both in scope and duration.
It is not a legal requirement that restrictive covenants be accompanied by independent consideration for the same. Resultantly, employees do not generally receive compensation in return for entering into non-compete agreements with their employers.
An employee who breaches a non-compete clause may be subject to a claim for damages by the employer. The onus of proving the quantum of such damages lies with the employee, unless the quantum of the same is specified in the non-compete clause.
Clauses which prohibit an employee from contacting the employer’s customers following the termination of the contract are a common feature of employment contracts. Non-solicitation clauses in relation to fellow employees are less common.
Non-solicitation clauses are generally enforceable, and, in the event of breach, the employer may make a claim for damages. Such damages may be quantified with reference to the business lost as a result of the breach. The damages may also be liquidated, that is, a certain sum may be stipulated in the contract as comprising the damages due in the event of breach by the employee. In addition to making a claim for damages, the employer may also seek an order directing the former employee from soliciting its customers or employees.
The general position is that employee data collected by the employer should be treated as confidential, and should be used only for the purposes for which it was collected. Employee data should be collected with the employee’s consent.
Employees have the right to privacy, which is enshrined in Section 57 of the Constitution of Zimbabwe. Section 57 operates to prohibit an employer from breaching an employee’s right to the privacy of their communications, as well as the right not to have their health condition disclosed.
The Zimbabwe Investment and Development Agency Act [Chapter 14:38] permits foreign investors to employ senior expatriate staff in the capacity of a senior manager, technical and operational expert or advisor.
There is no prohibition against employing foreigners under any other law, subject to the requirement that such foreign employees should be lawfully resident in Zimbabwe, and should be in possession of an employment permit as required by the Immigration Act [Chapter 4:02] as read with the Immigration Regulations, SI 195 of 1998.
An employer who wishes to employ a foreign national is required to make an application for the issuance of a temporary employment permit to the foreign national under Section 22 of the Immigration Regulations, SI 195 of 1998. The application for the employment permit should be accompanied by a job offer from the employer, together with the prospective employee’s educational and professional qualifications, as well as proof of their work experience.
The temporary employment permit will be issued for a period not exceeding five years.
In terms of Section 27 of the Labour Act, any group of employees may form a trade union, which shall become a body corporate capable of suing and being sued in its own name upon its registration.
The role of trade unions is generally to represent the interests of its members in matters relating to their employment. The rights which are granted to trade unions under Section 29 (4) of the Labour Act include the following:
Workers are represented in the workplace by Workers Committees. These are comprised of employees who are elected or appointed to the workers committee by their fellow employees. It is not mandatory that there be a workers committee in every undertaking.
Managerial employees may not be elected or appointed to a non-managerial employees workers’ committee and vice versa. Employees are entitled to be assisted by a labour officer or a trade union in setting up the workers committee.
Employers are under a legal obligation to negotiate in good faith with the workers committee.
The functions of a workers committee are set out under Section 24 of the Labour Act as follows,
The works council is a workplace forum made up of equal numbers of workers committee members and managerial representatives. It exists in order to allow employer and employee representatives to discuss issues which relate to employee welfare, workplace safety and productivity among other things. The role of the worker representatives in the works council is to represent and advance the interests of the workers.
There are two types of collective bargaining agreements which are recognised under Zimbabwean law. The first are collective bargaining agreements which are negotiated between the workers committee and the employer in terms of Section 24 of the Labour Act; and the second are collective bargaining agreements which are negotiated between a registered trade union and a registered employer organisation.
Collective bargaining agreements which are negotiated between the employer and the workers committee may address the terms and conditions of employment of the employees who are represented by the workers committee. They are subject to ratification by at least 50% of the employees and by the trade union which is mandated to represent the employees. They are binding only on the employer concerned.
In the case of conflict between a collective bargaining agreement negotiated by the workers committee and one negotiated between an employer’s organisation and a registered trade union, the latter prevails unless the former has more favourable conditions.
Collective bargaining agreements between employer organisations and registered trade unions are negotiated at National Employment Council level. They may regulate any conditions of employment, including working hours, overtime, leave entitlement, health and safety standards, and minimum wages and benefits.
Industry level collective bargaining agreements must be registered and published as statutory instruments, thereafter becoming binding on all the employers and employees in the industry or sector to which the agreement relates. The provisions relating to minimum wages and benefits are reviewed regularly, in some cases several times per year.
Our law creates a distinction between termination and dismissal. While dismissal for misconduct is a form of termination, it is distinct from other forms of termination and is governed by a separate set of rules.
A contract of employment may be terminated in the absence of misconduct in the following circumstances:
Dismissal for misconduct is permitted only where it is effected in terms of an employment code of conduct, or, in the absence of an employment code of conduct, under the national employment code of conduct. The applicable code of conduct will define the conduct on the part of an employee which constitutes misconduct. It is, however, accepted that codes of conduct do not contain an exhaustive list of offences, and that there may be acts of misconduct which may be gleaned from the common law or from the terms of the contract of employment.
The procedure to be followed where an act of misconduct has been discovered is to be found in the applicable code of conduct. Generally, the employee is notified of the commencement of investigations, where after a charge sheet is issued. Suspension may follow, depending on the nature of the offence and the provisions of the code of conduct. A disciplinary hearing will be held, at which the employee is entitled to be present with his witnesses and a representative. A determination and the imposition of a penalty will mark the conclusion of the proceedings.
There is, in all cases, a right of appeal against the initial determination. The appellate body may be an internal appeals committee or authority, or it may be external, such as a Labour Officer or the Labour Court. A right to seek the review of the disciplinary proceedings on the basis of procedural irregularities also exists.
A dismissal will be set aside if it was procedurally irregular, or if the appellate body finds that the act of misconduct was not proved. If the dismissal is set aside, an order for the reinstatement of the employee with an alternative of damages will be issued.
An employer is entitled to retrench employees whose positions or duties would have become redundant due to technological changes or due to the re-organisation or restructuring of the workplace. Employees may also be retrenched for the purpose of reducing expenditure or costs, or as a consequence of the closure of the enterprise in which they are employed.
An employer who intends to carry out a retrenchment exercise is required to give notice of its intention to the works council established for that undertaking. In the absence of a works council, the notice should be issued to the National Employment Council for the sector or industry. In the absence of both the Works Council and the National Employment Council, the notice should be issued to the Retrenchment Board.
Negotiations as to the terms of the retrenchment will be carried out at works council level. In the absence of a works council, the employer may conduct the negotiations with the affected employees.
The Labour Act stipulates the minimum retrenchment package which is payable to retrenched employees in Section 12C. In the absence of agreement between the parties for the payment of a retrenchment package which surpasses the minimum package, the employer is required to pay the minimum retrenchment package of one month’s salary for every two years of service.
A retrenchment exercise which does not follow the stipulated procedure, or one which is carried out in the absence of duly recognised causes of redundancy, may be treated as an unfair dismissal, thus rendering it susceptible to being set aside.
An employer’s failure to pay the retrenchment package on time or at all constitutes an unfair labour practice. In cases in which the employer alleges financial incapacity to pay the stipulated minimum severance package, the employer may make an application for an exemption from paying the retrenchment package on time or at all. The application will be addressed to the employment council for the industry, or, in the absence of an employment council, to the Retrenchment Board.
Termination on Notice
A contract of employment may only be terminated on notice under the following circumstances:
The formalities for termination on notice in terms of a code of conduct will be stipulated in the applicable code of conduct, while the procedure relating to termination pursuant to a retrenchment exercise has been discussed in 7.1 Grounds for Termination. In the case of termination by mutual consent, there are no stipulated formalities, save that the termination agreement must be in writing. The termination of a fixed term contract on notice is effected through a notice issued to the employer notifying him or her of the termination, as well as the effective date of the termination.
The applicable notice periods are stipulated in Section 12 (4) of the Labour Act as follows:
An employer may elect to pay the employee cash in lieu of notice as opposed to requiring them to serve the stipulated notice.
In addition, an employee who was employed on the basis of a contract without limit of time whose contract is terminated on notice is entitled to a severance package which is calculated at the rate of one month’s salary for every two years of service. The parties are however entitled to negotiate a severance package which surpasses the stipulated minimum.
There is no external authority required in order to effect a termination on notice, save where the termination is by reason of redundancy, in which case the Retrenchment Board should be notified of the retrenchment.
Summary dismissal occurs when an employee is dismissed from employment without notice as a consequence of a grave act of misconduct. The dismissal will be preceded by disciplinary proceedings in terms of the applicable code of conduct. The applicable procedure has been outlined in 7.1 Grounds for Termination.
An employee who is dismissed for misconduct is not entitled to notice or notice pay. They are however entitled to terminal benefits comprising of any unpaid salaries and benefits as at the date of dismissal, cash in lieu of accrued vacation leave, and any gratuity which may be due under the collective bargaining agreement.
A dismissed employee has a right to appeal against the dismissal to any internal appellate bodies, and thereafter to a Labour Officer in the case of proceedings conducted in terms of the National Employment Code of Conduct, or to the Labour Court in all other cases.
The employer and employee may agree to terminate the employment contract. This is referred to as mutual termination. The agreement has to be in writing. Best practice requires that the termination agreement should record the effective date of the termination, the agreed termination package, the date on which or by which the package should be paid, and any other consequences of the termination, such as the return by the employee of the employer’s property.
In the event that the termination relates to an employee who was employed on the basis of a contract without limit of time, the employer is obliged to pay the minimum termination package which is stipulated in the Labour Act, unless the parties agree to the payment of a package which is in excess of the minimum.
There are no other formalities which are required at law.
All employees are equal, and may be subjected to disciplinary action if the circumstances so require. This is also the case in relation to employee representatives. In the event, however, that it is demonstrated that a dismissal amounts to the victimisation of employee representatives, the dismissal will be considered to be unlawful.
Every employee has the right not to be unfairly dismissed. An employee is unfairly dismissed if the employer fails to show that the employee was dismissed in terms of a registered employment code of conduct. In the absence of an employment code of conduct, the employer should show that the dismissal was carried out in terms of the model or national code of conduct.
Disciplinary proceedings which are procedurally irregular may be set aside on review, particularly where the irregularity prejudiced the employee in the conduct of his defence. Examples of procedural irregularities include the use of an inapplicable code of conduct, a failure to constitute the disciplinary authority or committee as stipulated in the code of conduct, or a failure to permit the employee to be accompanied by their legal representative.
A dismissal may be found to have been unlawful on appeal if there was insufficient evidence to prove that an act of misconduct was committed as alleged.
A successful appeal or application for review will result in the setting aside of the disciplinary proceedings with or without loss of salary and benefits. If the dismissal is set aside and the employee is reinstated without loss of salary and benefits, the employer will be required to pay all the unpaid salaries and benefits which would have been due to the employee between the date of dismissal and the date on which the order for reinstatement was made.
An employer who elects not to reinstate the employee following an order for reinstatement will be required to pay the employee damages for loss of employment. These are calculated on the basis of the salary which would be due to the employee for a period equivalent to the time which it would take the employee to secure alternative employment.
In applications for the review of disciplinary proceedings, a finding that the proceedings were irregular may result in the dismissal being set aside, and the matter being remitted to the employer for a re-hearing in a procedurally proper manner.
In terms of Section 5 of the Labour Act, employees and prospective employees are protected from discrimination on the grounds of race, tribe, place of origin, political opinion, colour, creed, gender, pregnancy, HIV/AIDS status, or disability.
In addition to being subject to a claim for damages, an employer who contravenes the right of an employee or prospective employee to equal treatment may face criminal charges in terms of Section 5 (3) of the Labour Act.
An employee who has been subjected to discrimination may also seek an order directing the employer to cease the discriminatory conduct.
An employee who makes a civil claim for damages arising from discriminatory conduct or for an order directing the employer to cease such conduct has the onus of proving the allegation of discrimination on a balance of probabilities.
In the event that criminal charges are brought against the employer, the applicable standard of proof is proof beyond a reasonable doubt.
The following are the authorities and courts which have the jurisdiction to hear labour matters.
This is an official employed by the Ministry of Labour in terms of Section 121 of the Labour Act. Labour Officers are generally tribunals of first instance, and they conduct conciliation proceedings in terms of Section 93 of the Labour Act. In the event that conciliation fails, they are entitled to make a ruling which will be subject to confirmation by the Labour Court. Labour Officers also hear appeals in disciplinary matters which are conducted under the National Employment Code of Conduct.
This is an individual employed by an employment council in terms of Section 63 of the Labour Act. They have the same jurisdiction as do Labour Officers to conduct conciliation proceedings. Their jurisdiction is however limited to matters which arise in the industry in which the employment council is registered. The rulings which they issue are subject to confirmation by the Labour Court.
In terms of Section 89 (1) of the Labour Act, the Labour Court has the jurisdiction to hear applications and appeals in terms of the Labour Act or any other enactment. In the exercise of its functions, the Labour Court may refer a dispute to a labour officer, designated agent or arbitrator. The Labour Court also has powers of review over labour matters.
An appeal on a question of law from a decision of the Labour Court lies with the Supreme Court.
Class Action Claims
In terms of the Class Actions Act [Chapter 8:17], a class action may be brought before the High Court on behalf of any class of persons. The class action should be preceded by an application for leave to bring the action.
While the law does not provide for class actions in the Labour Court, proceedings in the Labour Court or before Labour Officers or Designated Agents may be instituted by or against several named appellants, applicants, or respondents.
Litigants may be represented in proceedings before Labour Officers, Designated Agents or the Labour Court by legal practitioners, trade union officials or employer organisation officials. Litigants may also appear as self-actors. In proceedings before the Supreme Court employees may either appear as self-actors or they may be represented by a legal practitioner.
A dispute may be resolved through arbitration in the following circumstances;
Arbitration proceedings may also be held in accordance with an arbitration agreement.
Arbitration proceedings are conducted in accordance with the provisions of Arbitration Act [Chapter 7:15]. An appeal on a question of law against an arbitral award which is issued following a reference to arbitration under Sections 89 or 93 of the Labour Act lies with the Labour Court.
An award which is issued pursuant to arbitration proceedings which are held in accordance with an arbitration agreement is however not subject to appeal. It may only be set aside following an application in terms of Articles 34 and 35 of the Schedule to the Arbitration Act. Such an application will succeed only if it is demonstrated that the award offends against public policy, or that it is subject to some irregularity, for instance, that the dispute is one which is not capable of resolution through arbitration.
The court or arbitrator is endowed with the discretion to make an appropriate order of costs. Usually costs are awarded to the successful party on the party and party scale, which is lower than the attorney and client scale. Where circumstances warrant, however, for instance, where the unsuccessful party’s conduct was reprehensible and thus deserving of a punitive order of costs, costs will be awarded to the successful party on the attorney and client scale.