Financial Gazette (Harare)
Vote Muza
31 August 2008
column
Harare — The temptation this week was to write about the convening of the House of Assembly, whose composition for its entire term is likely to witness mind blasting debates, and fair legislation since the balance of power is evenly distributed.
I then hesitated to venture into this constitutional law territory since it required extensive research.
Meanwhile, the task to ventilate this interesting topic will be left to other competent commentators, and in the event of their failure to do justice to the subject, these pages will in forthcoming weeks certainly devote space for such a discussion not to educate, but also to inform readers.
It has been a fairly long time since I discussed labour law and an irresistible urge has caused me to place the spotlight on this subject for this week.
My exposure and keen interest in labour litigation has left me to continuously discover err-ors that parties in dispute always fall into. In this respect I will, against the risk of being labelled biased, restrict myself to some blunders committed by employers.
The propensity at which, these mistakes are being committed, to the obvious detriment of vulnerable employees is nothing but shocking.
Officials in some organisation manning the human resource portfolios appear to believe that they can in this day and age get away with impunity.
They practice anachronistic and redundant master and servant relationships where they, through clear malice, vindictiveness and arrogance hire and fire employees without any regard to procedures and guidelines set by law.
Others appear to take advantage of operational constraints and apathy at the Labour Court, as well as legal loopholes to victimise targeted subordinates.
The practice is being exacerbated by affected employees' indigence that leaves them unable to enforce their rights in the courts.
Indeed, with the labour court now existing in name only, without any serious business to justify its existence, many employees are left wallowing in sorrow having been hard done by our malfunctioning legal system.
Take the example of a client who approached me recently after having been unfairly dismissed by a certain company in the funeral assurance business.
The matter was handled in an extremely clumsy manner, pointing even to appalling incompetence on the part of the company's legal advisors.
A perfectly innocent man ended up victimised be-cause of confusion within a holding company and its subsidiaries.
Four years ago, the man was emp-loyed by a subsidiary of this holding company, and a glance at his contract of emp-loyment confirm-ed this.
Come the time of disciplinary action, another di-fferent subsidiary wrote his letter of suspension. I shall not bother myself by dwelling on the nature or way in which, the suspension letter was drafted.
Another shocker came at the disciplinary hearing when the employee discovered that officials from the holding company presided over the tribunal, and even went a step further to write his letter of dismissal.
All that happened here fell flat in the face of a trite company law principle giving distinct legal persona to a company upon its incorporation.
In particular, Section 9 of the Companies Act (Chapter 23:04) provides that a co-mpany shall have the capacity and powers of a natural person of full capacity in so far as a body corporate is capable of exercising such powers.
Thus a company can enjoy freedom of contract, and enter into agreements with employees, and such contracts of employment can only be legally terminated by the contracting company.
It is unheard of, as in the example given that a legitimate employment contract can be terminated by a company different from the one employing the person in the first place.
The naïve assumption that officials at the holding company made was that since they held all shares in the subsidiary, then they could as well do as they wished with the subsidiaries' employees.
Such a practice has no support at law and in the absence of legal precedent; it remains exposed as woefully illegal. In other words, it is a nullity without any legal effect.
I am also deeply worried to note the tendency by employers to dismiss emp-loyees, even in the face of overwhelming mitigating circumstances calling for the handing down of a more lenient punishment.
Such a practice continues to be perpetuated in disregard of Statutory Instr-ument 15 of 2006 that clearly lays out guidelines for sentencing employees.
One such key provision is that first time offenders must always and as of necessity be spared the horrible, traumatising and cru-el punishment of dismissal.
Obviously, in passing such a law the law-maker was mindful of the current harsh economic conditions that call for a more cautious and sensitive approach when sentencing employees since jobs are now hard to find.
Many innocent victims have been left destitute and their families impoverished for the rest of their lives.
Despite the law laying out provisions safeguarding employees against victimisation and such safeguards having been repeatedly enforced by the courts, the human factor in some employers remains the major hurdle to entrenchment of a culture of procedural fairness.
Much needs to be done to educate human resource practitioners and employers in general to appreciate the great need to protect employees against a culture of impunity where they get dismissed on flimsy, frivolous and spurious grounds.
It would be very sad to find a law being developed to end up criminisaling certain categories of unfair dismissals.
Indeed, such a practice in our capitalist society, where the employer plays the tune might face stiff resistance and might even be judged to be unreasonable and undemocratic.
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