NEW DISPENSATION “MIRACLE”: Zuva Victims Suddenly Get Massive Compensation
29 March 2018
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By Terrence Mawawa | In what could be a pure New Dispensation Miracle, victims of the Zuva Petrolleium verdict have won a sudden windfall  – they will now be paid (collective) millions of dollars in compensation for the same dismissal previously passed as lawful during the Robert Mugabe years.

This was revealed yesterday when Chief Justice Luke Malaba ruled that workers whose contracts were arbitrarily terminated on notice and empowered by the July 2015 judgement will now be paid damages for loss of employment.

Justice Malaba announced saying this is in terms of Section 12C of the Labour Act.

His verdict was passed by broad panel of eight other judges of the Constitutional Court.

Amendments to the Labour Act which compel employers to pay damages to fired workers by taking into account the number of years served apply in retrospect. The Constitutional Court issued the judgement in a case in where Greatermans Stores and Meikles were challenging the constitutionality of the retrospective application of the law. The two companies argued that since workers were fired before the amendment of the Labour Act, as employers they should not be bound by a law that came into effect well after the workers were fired. However, the Constitutional Court ruled that the retrospective application of the law was legal.

Chief Justice Malaba said retrospective application of the law was meant to achieve fairness and justice, considering that the workers who had served for years were now poor after being sent packing empty-handed.

“The court holds, on the main ground on which the constitutionality of the transitional provision is challenged, that there is no constitutional provision which prohibits the use by the legislature of the method of retrospectivity to implement civil legislation.

“On the alternative ground of the challenge to the constitutionality of the transitional provision, the court holds that the applicants failed to prove the alleged infringement of any of the fundamental rights they relied upon.

“The retrospective imposition of new financial obligations on the applicants to pay compensation to the employees whose employment they terminated on notice for loss of employment, respects their rights enshrined in Section 56(1), 65(1) and 71(3) of the Constitution,” reads part of the judgment.

Section 12(4) of the amended law allows termination of employment in cases where the employee and the employer mutually agree in writing.

The same law allows termination of contracts for those employed on fixed terms.

In terms of that law, the employer may terminate employment in terms of the employment code (disciplinary proceedings) or pursuant to the retrenchment route as stipulated under Section 12C of the Labour Act.

The same piece of legislation states that in cases where one is not employed for a fixed-term period and is not in agreement with the employer, the retrenchment route must be followed.

The amended law, in terms of a transitional provision gazetted by Government after the 2015 terminations, should apply in retrospect to cover all people fired prior to the amendment.

Chief Justice Malaba said retrospective application of the law was meant to achieve fairness and justice, considering that the workers who had served for years were now wallowing in poverty after being sent packing empty-handed.

“All that the legislation did was to impose a restrospective obligation to conduct that was past, justifiably so, to achieve fairness and justice.

“Acting in accordance with the fundamental principles of fairness and justice, the employers would have realised that long-serving employees deserved more than three months’ notice pay.

“Long-serving employees would have become what they were in society because of their work.

“The legitimate legislative purpose of protecting employees, whose contracts were terminated on notice from the harm of loss of employment for no fault of their own, ensured that the public interest in the fundamental values of fairness and justice which underlay the employment relationships ought to have been taken into account by employers in terminating employment on notice,” ruled Chief Justice Malaba.

The court found that most employers who fired workers on notice pursuant to the Zuva judgment only used the opportunity to offload workers cheaply.

The amendment was effected to control employers who were firing workers at will without the need for fair  compensation.

“A system that allows an employer to just wake up one bad day and decide, for undisclosed reasons, to terminate a contract of employment by giving notice of intention to do so without any regard to the need to compensate the employee for loss of employment, is fundamentally unfair,” reads the judgement.