23 February 2018

Zimbabwe: Business Mull Class Action Over Labour Clause

Bisuness is set to meet over a contentious clause in the Labour Act which entitles workers who have been fired for misconduct to receive compensation amid the possibility of class action, businessdigest has learnt.

The Labour Amendment Act Number 5 of 2015 entitles workers who have been dismissed to receive compensation which includes notice pay.

Employers' Confederation of Zimbabwe executive director John Mufukare told businessdigest on Tuesday that they will meet their attorneys next month to get their legal argument around the clause. However, he would not name the law firm, saying it would not be prudent to do so before they meet to discuss the issue.

"We are meeting lawyers from a top law firm and get their reading of the act and their legal argument around the clause," Mufukare said. "We will then hear their legal arguments around this clause and will then decide whether we will take a class action against this clause."

He said although they had agreed with their other social partners, labour and government, that the clause be removed as part of the amendment of the Labour Act, the time it will take to do so would disadvantage its membership.

Mufukare said some of their members were facing lawsuits from workers they have dismissed as a result of this clause which warranted the business sector to take urgent action to protect their affected constituency.

This will not be the first class-action against government by business.

Employers in 2015 took government to court over the retrospective application of the law where employers are now obligated to compensate workers they dismissed using the July 17 2015 Supreme Court ruling that allowed them to do so on three months' notice without paying a retrenchment package. The case is yet to be heard.

However, in his presentation at a judges' symposium last year, Chief Justice Luke Malaba said parliament is within its rights to apply the law retrospectively.

"In any event, nothing in the Constitution bars the legislature from enacting retrospective legislation," Malaba said at the symposium. "The Legislature gets its power from people in terms of Section 112(1) of the constitution. Thus one of the main duties of the legislature is to use the law as a tool of social engineering in order to promote harmony in society.

Therefore, where a situation arises which threatens that harmony, the legislature has an obligation to cure this even if it means enacting retrospective litigation."

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