This is an appeal against the decision of the Labour Court
dismissing an appeal against the award of an arbitrator made in favour of the
respondents.
Background
The respondents, who are forty-three in number, were
employed by the appellant on monthly contracts that were continuously renewed.
In the longest instance, the employee's contract had been renewed for six
years. On 19 May 2010, the appellant terminated all forty-three contracts
on notice without giving any reason other than that the contracts had expired.
The dispute between the parties was referred to
arbitration. The respondents claimed that they had become permanent employees
in terms of section 12(3) of the Labour Act [Chapter 28:01]. The
arbitrator upheld the respondents' claims and ordered their reinstatement or
the payment of damages in lieu of reinstatement.
The appellant then appealed against that award to the
Labour Court.
Decision of
the Labour Court
In arriving at its decision, the Labour Court referred to
various international labour standards that require safeguards against the
recourse to fixed term contracts that are designed to avoid the protection of
employees from the termination of their employment without valid reason. The
court found that the relevant provisions of the Labour Act conform with these
standards in order to protect workers from short term contracts generally. In particular,
where a short term contract is repeated for more than six weeks in any period
of four consecutive months, it becomes a contract of permanent employment by
virtue of section 12(3) of the Labour Act [Chapter 28:01].
The court further held that the practice of repeated short
term contracts constitutes casualisation of labour prohibited by the Labour Act
as read with the governing international standards and that this is buttressed
by section 46(1) of the Constitution, which enjoins the courts to take international
law into account, and by section 65(4) of the Constitution, which requires the
implementation of equitable and satisfactory conditions of work.
With respect to the final ground of appeal, relating to the
arbitrator's adjustment of the allowances payable to two of the respondents,
the court found that the arbitrator's award was grounded in the information
that was presented to him and did not involve any gross misdirection on the
facts. Therefore, there was no basis for interfering with that part of the
award.
The appeal was accordingly dismissed in its entirety with
each party being ordered to bear its own costs.
Grounds of
Appeal and Submissions by Counsel
The grounds of appeal herein are somewhat prolix and
repetitive. In summary, they aver that the court a quo erred in the following
respects:
(i) Interpreting the provisions of the Labour Act to mean
that the respondents had become permanent employees.
(ii) Holding that the renewal of fixed term contracts in
casu amounted to the casualisation of labour.
(iii) Mis-interpreting and mis-applying the relevant
international labour standards.
(iv) Not holding that the respondents' claims had
prescribed; such claims having been made more than two years after the initial
contracts had expired….,.
In relation to the substantive grounds of appeal, counsel
for the appellant submits that international instruments cannot avail where the
domestic law is clear and the court a quo clearly misdirected itself in
importing the concept of casualisation of labour. By the same token, the
court's reliance on the historical context was unnecessary and misplaced
because the relevant provisions of the Labour Act are clear and do not entail
any absurdity. The Act draws a clear distinction between casual employment and
fixed term employment and expressly allows the creation, renewal and
termination of fixed term contracts - even on a monthly basis. This is
buttressed by section 5(d) of the Labour (National Employment Code of Conduct)
Regulations 2006 (S.I. 15/2006) which stipulates that a fixed term contract may
be lawfully terminated at the expiry of its fixed duration.
Counsel for the respondent accepts that the Labour Act
differentiates between fixed term and casual employment and also contemplates
the renewal of fixed term contracts. He submits that this accords with the
literal interpretation of the relevant provisions of the Act. He further
submits that the court a quo correctly proceeded beyond this literal
interpretation to consider the mischief aimed at by section 12(3) of the Labour
Act [Chapter 28:01]. In this regard, the historical context shows that the
legislature intended to protect employees against the abuse of fixed term
contracts where permanent employment is available. The literal application of section
12(3) of the Labour Act [Chapter 28:01] leads to the absurdity of rejecting the
casualisation of labour and yet allowing the renewal of fixed term contracts.
Relevant
Statutory and Constitutional Provisions
Section 12(3) of the Labour Act [Chapter 28:01], the interpretation
of which constitutes the crux of this appeal, regulates the duration of a
contract of employment that does not specify its duration or date of
termination. It provides as follows:
“A contract of employment that
does not specify its duration or date of termination, other than a contract for
casual work or seasonal work or for the performance of some specific service,
shall be deemed to be a contract without limit of time:
Provided that a casual worker
shall be deemed to have become an employee on a contract of employment without
limit of time on the day that his period of engagement with a particular
employer exceeds a total of six weeks in any four consecutive months.”
I note, in passing that section 12 of the Labour Act
[Chapter 28:01] was recently amended by section 4 of the Labour Amendment Act
2015 (No.5 of 2015) in several respects appertaining to the continued
subsistence of fixed term contracts and contracts for casual, seasonal or piece
work. The amendment also deals with the termination of contracts by notice and
the payment of compensation for loss of employment. By virtue of section 18 of
the amending Act, section 12 of the principal Act, as amended, “applies to
every employee whose services were terminated on three months' notice on or
after the 17th July, 2015”.
These retrospective changes to the Labour Act were
obviously designed to address the stark implications of the landmark decision
of this Court in Nyamande & Donga v Zuva Petroleum (Pvt) Ltd SC43-15.
At any rate, they do not apply to the respondents in casu
as their contracts of employment were terminated in May 2010. Ironically,
presumably as an incident of hastily crafted legislation, the intended benefits
of the amended provision also do not extend to the appellants in Nyamande &
Donga v Zuva Petroleum (Pvt) Ltd SC43-15, as they too were discharged before
the stipulated date of 17 July 2015; that being the date when judgment was
handed down in that case.
Turning to the relevant Constitutional provisions, the
learned judge a quo invoked section 65(4) as read with section 46(1)(c) of the
Constitution to fortify his interpretation of the Labour Act. Section 65(4) of
the Constitution declares that:
“Every employee is entitled to just, equitable and
satisfactory conditions of work.”
Section 46 governs the interpretation of Chapter 4 of the
Constitution, being the Declaration of Rights. With particular reference to
international law, it provides that:
“When interpreting this Chapter, a court, tribunal, forum
or body -
(a)…,.;
(b)…,.;
(c) Must take into account international law and all
treaties and conventions to which Zimbabwe is a party;
(d)…,.;
(e)…,.;
in addition to considering all other relevant factors that
are to be taken into account in the interpretation of a Constitution.”
Also relevant for interpretive purposes is section 327 of
the Constitution relating to international conventions, treaties and
agreements. The salient provisions are contained in sub-sections (2) and (6) as
follows:
“(2) An international treaty which has been concluded or
executed by the President or under the President's authority –
(a) Does not bind Zimbabwe until it has been approved by
Parliament; and
(b) Does not form part of the law of Zimbabwe unless it has
been incorporated into the law through an Act of Parliament.”
“(6) When interpreting legislation, every court and
tribunal must adopt any reasonable interpretation of the legislation that is
consistent with any international convention, treaty or agreement which is
binding on Zimbabwe, in preference to an alternative interpretation
inconsistent with that convention, treaty or agreement.”
Fixed Term
Employees or Casual Workers
It seems reasonably self-evident that the relevant
provisions of the Labour Act draw a clear distinction between casual or
seasonal workers and employees on fixed term contracts. The term 'casual work'
is defined, in section 2 of the Labour Act, to mean “work for which an employee
is engaged by an employer for not more than a total of six weeks in any four consecutive
months;” while 'seasonal work' means “work that is, owing to the nature of the
industry, performed only at certain times of the year.”
On the other hand, fixed term contracts are specifically
distinguished, in section 12(2)(b) of the Labour Act [Chapter 28:01], which
requires the employer to provide written particulars of “the period of time, if
limited, for which the employee is engaged,”,and, in section 12B(3)(b), which
relates to the consequences of “termination of an employment contract of fixed
duration” in certain circumstances.
The distinction is pointedly captured and articulated in section
12(3) of the Labour Act [Chapter 28:01] itself.
This provision recognises three different, and distinct,
categories of employment, i.e. –
(i) A contract of fixed duration;
(ii) A contract for casual, seasonal or piece work; and
(iii) A periodic contract without limit of time.
In the first category, the duration or date of termination
of the contract is clearly stipulated, whereas in the third category it is not
expressly specified. Ordinarily, the same would apply to contracts for casual,
seasonal or piece work, being contracts the duration of which cannot be
specifically delimited due to the nature of the work that they involve.
However, once a contract for casual work exceeds the prescribed period of a
total of six weeks in any four consecutive months, it is deemed to have become
a contract of employment without limit of time.
The critical question for determination in casu is whether
the categories of casual work and fixed term employment are mutually exclusive.
In this regard, the distinguishing characteristics of the
two categories are instructive. First and foremost, a fixed term contract
expires automatically upon the effluxion of its stipulated period, whereas the
duration of a contract of casual work will depend upon the nature of the work
involved and the circumstances under which it is to be carried out. It is this
indeterminate nature of its duration that entails the deemed conversion of a
casual contract into one of indefinite employment in terms of the proviso to section
12(3) of the Labour Act [Chapter 28:01].
On a literal and grammatical interpretation of section
12(3), and without any attendant absurdity, the proviso clearly does not apply
to an employee on a fixed term contract.
There are other equally significant distinguishing features
as between the two categories of employment:
(i) In terms of section 12(4) of the Labour Act, the
periods of notice required to terminate contracts of employment vary according
to the duration of the given contract; being only one day in the case of casual
or seasonal work.
(ii) Section 12(5) of the Labour Act stipulates different
periods of probation and different notice periods during probation in respect
of casual or seasonal work as compared with all other contracts of employment.
(iii) Generally speaking, a casual worker is not entitled
to the minimum conditions of employment laid down in the Labour Act or in
subsidiary regulations or Collective Bargaining Agreements – which is the
reason why a casual worker usually receives remuneration at a rate that is
higher than the minimum rate so as to compensate for the loss of other
prescribed benefits.
(iv) The Consolidated Collective Bargaining Agreement:
Engineering and Iron and Steel Industry 1990 (S.I.282/1990), which regulates
the sector in casu, specifically differentiates the two forms of employment in
section 3(1), by defining a casual worker as one “who is not engaged as a
contract worker” and a contract worker as one “who is engaged for a specified
period, task or project.”
In the final analysis, having regard to the relevant
provisions of the Labour Act and its subsidiary legislation, I take the view
that the court a quo patently misdirected itself in concluding that the
respondents were casual workers and that they subsequently graduated to the
status of employees on indefinite or permanent contracts of employment.
Concept of
Casualisation of Labour
The learned judge a quo held that the repeated
re-engagement of employees on short term contracts, where work of a permanent
nature is available, constitutes the 'casualisation of labour.'
He reasoned that the legislature intended to proscribe this
unfair labour practice through section 12(3) of the Labour Act [Chapter 28:01].
In arriving at this proposition, he relied upon earlier decisions of the Labour
Court and the injunction in the Labour Act to construe it “in such manner as
best ensures the attainment of its purpose” as declared in section 2A(2) of the
Labour Act [Chapter 28:01], i.e. 'to
advance social justice and democracy in the workplace.' He also relied upon sections 65(4)
and 46(1)(c) of the Constitution (cited above) as well as the applicable
international labour standards on the subject….,.
The avowed object of section 12 of the Labour Act [Chapter
28:01] is to regulate the duration and termination of employment contracts.
As I have already stated, the proviso to section 12(3) of
the Labour Act [Chapter 28:01] is confined to casual workers and cannot be
construed to extend to employees on fixed term contracts. In my view, section
12(3) does not, whether explicitly or by necessary implication, prevent an
employer from engaging employees for successive fixed terms, provided that they
continue to enjoy the full rights and benefits that are accorded under Part IV
of the Labour Act and to which they are entitled as fixed term employees. By
the same token, employers cannot be burdened or penalised by having fixed term
employees foisted upon them on a permanent basis. In this regard, the Labour
Court cannot invoke its equitable jurisdiction, on the basis of advancing
social justice in the workplace, to insinuate into section 12(3) of the Labour
Act [Chapter 28:01] an interpretation that is simply not supported by its
unambiguous language. To do so involves the double sin of doing violence to
what Parliament itself has enacted as well as rewriting the terms of a contract
that has been freely and voluntarily entered into, by altering something so
fundamental as its agreed and intended duration.
In short, the concept of casualisation of labour does not
form part of section 12 of the Labour Act [Chapter 28:01] as originally framed,
i.e. before its amendment, the Labour Amendment Act 2015 (No.5 of 2015).
Impact of
International Labour Standards
In interpreting the Labour Act so as to avoid or minimise
the casualisation of labour, the court a quo relied upon two instruments
formulated under the auspices of the International Labour Organisation, namely,
the Termination of Employment Convention 1982 (No.158) and its supplementary
Termination of Employment Recommendation 1982 (No.166).
In particular, the court invoked Articles 2.3 and 4 of the
Termination of Employment Convention 1982 (No.158). Article 2.3 enjoins Member
States to provide adequate safeguards against recourse to fixed term contracts
the aim of which is to avoid the protection afforded by the Convention. Article
4 sets out the principal form of such protection by proscribing the termination
of employment unless there is a valid reason for such termination connected
with the capacity or conduct of the employee or based on the operational
requirements of the employer. Paragraph I.3 of the Termination of Employment
Recommendation 1982 (No.166) reiterates the injunction to provide safeguards
against recourse to fixed term contracts and elaborates the measures to be
taken for that purpose, including the deeming of contracts for a specified
period of time to be contracts of employment of indeterminate duration,
particularly when they are renewed on one or more occasions.
Although the court a quo might have correctly interpreted
the substantive protection accorded by these international labour standards, it
appears to have overlooked or disregarded two critical aspects bearing upon
their application to the case before it.
(i) Firstly, Article 2.2 of the Termination of Employment
Convention 1982 (No.158) and Paragraph I.2(b) of the Termination of Employment
Recommendation 1982 (No.166) explicitly entitle Member States to exclude
certain categories of employed persons from all or some of their provisions.
These categories include workers engaged under contracts for a specified period
of time or for a specified task, workers on probation or a qualifying period of
employment, and workers engaged on a casual basis for a short period.
(ii) Secondly, and more significantly, the learned judge a
quo clearly misconceived the principles governing the application of
international law in the domestic sphere.
As was observed in Magodora & Others v Care
International Zimbabwe SC24-14, at p 6 of the cyclostyled judgment:
“I do not think that the courts are at large, in reliance
upon principles derived from international custom or instruments, to strike
down the clear and unambiguous language of an Act of Parliament. In any event,
international conventions or treaties do not form part of our law unless they
are specifically incorporated therein, while international customary law is not
internally cognisable where it is inconsistent with an Act of Parliament.”
This common law position is firmly entrenched and codified
in the relevant provisions of the Constitution that I have cited earlier. In
terms of section 46(1)(c) of the Constitution, courts are enjoined, when
interpreting the Declaration of Rights, to take into account all treaties and
conventions “to which Zimbabwe is a party.” More pointedly, section 327(2) of
the Constitution declares that an international treaty “does not bind Zimbabwe
until it has been approved by Parliament” and “does not form part of the law of
Zimbabwe unless it has been incorporated into the law through an Act of
Parliament.” By virtue of section 327(6), the duty of the courts to interpret
legislation in a manner that is consistent with any international convention,
treaty or agreement is expressly confined to an instrument “which is binding on
Zimbabwe.”
According to the ratification lists for International
Labour Organisation conventions, as at 30 September 2015, Zimbabwe has not
ratified the Termination of Employment Convention 1982 (No.158).
Accordingly, as is explicitly recognised in Article 16 of
the Convention, it is not binding upon Zimbabwe, notwithstanding its status as
a Member of the International Labour Organisation.
What all of the foregoing means is that the provisions of
the Termination of Employment Convention 1982 (No.158), as supplemented by the Termination
of Employment Recommendation 1982 (No.166), cannot be invoked as definitive or
decisive aids to the interpretation of our legislation. Moreover, unless, and
until, those provisions are specifically domesticated, they can be nothing more
than persuasive guides in interpreting and applying the law. And even then,
they certainly cannot be applied so as to override or negate clear provisions
embodied in Acts of Parliament.
In the instant case, the court a quo manifestly misdirected
itself in applying the provisions of the Termination of Employment Convention
1982 (No.158) to interpret section 12(3) of the Labour Act [Chapter 28:01] in a
manner that exceeded the bounds of its express and unambiguous language.
Disposition
In the result, I take the view that the appeal is merited
and must be allowed on the three grounds adverted to above.
In arriving at this conclusion, I am not oblivious to the
basic socio-economic reality that pervades the labour market, not only in this
country but also almost everywhere else. The markedly unequal bargaining power
of prospective employers on the one hand and aspirant employees on the other
more often than not entails the latter having to succumb to the dictates of the
former insofar as concerns the material terms and conditions, including the
duration, of their contracts of employment.
But this is an evil that the legislature is best placed and
empowered to combat through the enactment of legislation clearly designed to
achieve that purpose….,.
It is accordingly ordered that:
1. The appeal be and is hereby allowed with no order as to
costs.
2. The judgment of the court a quo is set aside and
substituted as follows:
“(1) The appeal is partially allowed with no order as to
costs.
(2) The arbitrator's award dated the 15th of
October 2010 is set aside in respect of his rulings on casualisation of labour
and unfair dismissal.
(3) The termination of the respondents'
contracts of employment be and is hereby upheld.”
