CRISIS is set to strike the Labour Market following a recent Court Order rendering all the National Employment Councils (NECs) illegal, a position which some legal experts believe is a misinterpretation of the amended Labour Act.
The matter was triggered by a Court Judgment delivered by Justice Moya-Matshanga in the DGL Investments Number 5 Private Limited v Martin & 14 Others LC/MT/70/23 case heard recently.
The appellant in the matter was the employer of the respondents, who were employed in various capacities on fixed-term contracts.
On the 14th of March 2022, the employer (the appellant) wrote letters terminating the employment contracts, citing viability challenges.
However, on the following day, he employed other people in the place of the respondents who had worked continuously for many years.
The affected employees then approached the National Employment Council, claiming unfair dismissal since their contracts had not expired.
They also claimed payment of terminal benefits and underpayment of back pay from July 2020 and January 2022 up to the 30th of November 2022.
The hearing date was 28 August 2022; however, the matter was postponed to 30 November 2022.
The determination was handed down on the 31st of July, 2023 when the NEC's Designated Agent found that the appellant had erred at law in making employees redundant for purposes of economic hardships he faced.
Aggrieved by the ruling, the company appealed against the decision citing several grounds of interest one point where an argument that the NEC Mining DA, Forbes Chitsenga lost his jurisdiction to render a determination in this matter.
The appellant said upon the advent of the Labour Amendment Act, 2023, the NEC being a voluntary NEC, for which he was registered as a designated agent ceased to exist with the consequence that he lost his status as such.
After hearing submissions from both parties, the learned Judge Justice Moya-Matshanga ruled that the Designated Agent made his determination on 31 July 2023.
She pointed out that although the Designated Agent had already heard the matter prior, at the time of making the determination, he no longer had the mandate because his employment council, under whose auspices he operated, had ceased to exist with the promulgation of the Amendment Act on 14 July 2023.
The Judge further held that there are no provisions in the Act that allow him to render his determination post the promulgation date. She held further that having looked at the Labour Amendment Act No. 11 of 2023, the voluntary Employment Councils ceased to exist on the promulgation of the Act on 14 July 2023.
However, the judgment has triggered confusion.
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In a recent analysis legal expert, Doctor Rodgers Matsikidze argues that the judge erred in passing the inconclusive ruling.
"Respectfully, the court erred, as at no point did the voluntary employment council cease to exist. It existed as before and continued to exist as such after the enactment of section 56 under the new Labour Amendment Act No. 11 of 2023.
"What is apparent from the summary of the submissions made before the Court is that the parties to the appeal did not wholly submit to the import of the repeal and re-enactment of section 56 of the Labour Act (28:01). Lesson learned: Parties must assist the Court," said Matsikidze
He also argued that the finding of the Court would have required the Court to join the Registrar of Labour, the Minister of Labour and the Attorney General, and the DGL judgment might have been different.
"However, the ratio decision of DGL judgment, in our respectful view, does not stop all NECs from operating as such or making determinations of the various designated agents to be a nullity. Such a position would only be possible if all employment councils were a party to the suit," he added.
