EMPLOYMENT LAW AND THE
CORONAVIRUS IN ZIMBABWE: SOME BURNING QUESTIONS AND ANSWERS
Together we can successfully fight
this virus!!!!!
By Cephas Mavhondo
Mhishi Nkomo Legal Practice, Harare
Date: 31/03/20
Introduction
Coronavirus disease, now otherwise known as
COVID-19, was first reported in 2019 in Wuhan City, China. It then spread
globally. On the 11th of February 2020, the World Health
Organisation (WHO) officially declared the disease a global pandemic. WHO
officially named the disease COVID – 19. Nations across the world panicked as
business operations slowed down. This article seeks to look at the impact of
the pandemic on the employer-employee legal relationships (labour laws
/employment laws) in Zimbabwe.
Background
Before delving into the specific issues relating
to the impact of COVID-19, it is worth mentioning that the government of
Zimbabwe has taken certain measures in response to the pandemic. Whether the measures are enough or not is a
question for another day. Such measures give a good context to this article.
Following the declaration of COVID-19 by WHO as a global pandemic, the
government has through SI 76 of 2020 declared that a state of disaster exists
in the rural and urban areas in Zimbabwe. This was with effect from 23 March
2020.
On the same day, SI 77 of 2020 was passed. This
SI declared COVID-19 a formidable epidemic disease, prohibited public gathering
of more than a hundred people, among other things.
From the measures that are being taken globally
and locally, one message is clear; co-operation of everyone is needed.
On the 27th of March 2020, the
President of Zimbabwe announced that the nation shall be under 21 days lockdown
effective 30 March 2020. On the 28th
March 2020, SI 83 of 2020 was promulgated, providing, among other measures, for
the closure of borders and the 21 days
national lockdown except for people/businesses involved in rendering essential services. During this national lockdown, the majority of
companies will remain closed while a few offering essential services will be
operational subject to social distancing rule and other protocols.
In terms of SI 83 of 2020, essential service (for
purposes of the regulations) includes, among other stated services, hospital services, generation or supply or distribution
of electricity, supply or distribution of
water and production of food, fuel or coal.This to a certain extent is consistent
with section 102 of the Act which
defines essential services (for purposes of collective job action) as any service the
interruption of which endangers immediately the life, personal safety or health
of the whole or any part of the public and any such service declared by the
Minister of Labour to be an essential service. It is noted that in terms of
both SI 83 of 2020 and the Act, the respective Ministers are empowered to
declare any other services as essential services. Given that the Act takes precedence over any
other law, other than the Constitution, it is important to understand that in
as far as collective job action law is concerned, the Act shall be applied, while
SI 83 of 2020 shall apply in dealing
with the issue of who is allowed to go
to work or operate a business during the
lockdown.
Some burning questions
In light of the above, one then wonders what
exactly is happening or is going to happen in Zimbabwe in as far as labour laws
are concerned. Several questions may arise around changes to employment
contracts, occupational health, payment
of remuneration, sick leave, vacation leave, discrimination, government
assistance, termination of employment etcetera.
This article will attempt to answer some of the burning questions
namely:
a)
What changes are
likely to be made to the employment contract?
b)
What remedies are
available to the employer where employees refuse to attend work when the
employer renders essential services?
c)
What should the employer do when an employee
is infected by COVID 19?
d)
Is the employer
obliged to continue paying salaries during a lockdown?
e)
What are the legal
options available where either party to the employer-employee relationship
decides to end the relationship?
International
law and domestic law position
Before
answering the above questions, a bit of exposition on the law is important. In
respect to labour rights, section 65 of the Constitution of Zimbabwe provides
that every person has the right to fair and safe labour practices and standards
and to be paid a fair and reasonable wage. Fair and safe labour practices and
standards entail a safe and healthy working environment. Employees are therefore
constitutionally entitled to this right. This provision applies to every
employee in both the public sector and the private sector.
This
right is also recognized in international law. In terms of Article 16 of
Occupational Safety and Health Convention, 1981 (No. 155), employers have the
overall responsibility of ensuring that all practicable preventive and
protective measures (e.g protective clothing and adequate information on COVID
19) are taken to minimize occupational risks. Zimbabwe ratified this convention
in April 2003.
Furthermore, section 6 (d) of
the Labour Act [Chapter 28;01] (hereinafter called ‘the Act’) provides that “No
employer shall require any employee to work under any conditions or situations
which are below those prescribed by law or by the conventional practice of the
occupation for the protection of such employee`s health or safety”.
In terms of our common law, an employee has the
duty to make his or her services available, while the employer has a duty to
provide remuneration. The effect of these two corresponding duties is that, except
in very exceptional circumstances (e.g when an employee is on sick leave or
paid vacation leave), when an employee has not provided the required services,
there will be no remuneration for the employee- no work no pay. Some employers may avoid paying salaries for
employees who during the lockdown were not providing service. However, the
employees may argue that they wanted to provide service but for the lockdown.
Either the employer or the employee can argue
that COVID 19 led to what is called a supervening impossibility making
fulfilment of contractual obligations impossible. In contract law, a
supervening impossibility can either be a vis majeure (superior force) or
casus fortuitous (fortuitous event) which makes the performance of the contract
impossible. Is COVID 19 going to fit in
this? The question will be whether or not the impossibility will be
viewed objectively as final as opposed to being temporary.
If COVID 19 is going to render the performance of any particular contract
finally or completely impossible surely, it will fit. The opposite will be
true.
The courts have dealt
with this issue of impossibility of performance before. BOSHOFF JP
in Bischofberger v Van Eyk 1981
(2) SA 607 (WLD) at 611 B-D said:
“When the Court has to decide on the effect of the impossibility of
performance on a contract, the Court should first have regard to the general
rule that impossibility of performance does in general excuse the performance
of a contract, but does not do so in all cases, and must then look to the
nature of the contract, the relation of the parties, the circumstances of the
case and the nature of the impossibility to see whether the general rule ought,
in the particular circumstances of the case, to be applied. In this connection,
regard must be had not only to the nature of the contract but also to the
causes of the impossibility. If the causes were in the contemplation of the
parties, they are generally speaking bound by the contract. If, on the
contrary, they were such as no human foresight could have foreseen, the
obligations under the contract are extinguished.”
This position was also adopted in our jurisdiction in
the case of Watergate (Pvt) Ltd v Commercial
Bank of Zimbabwe2006 (1) ZLR 9 (S)
The courts have also made it clear that for supervening
impossibility to hold water, the contract must have become finally and
completely impossible of performance as opposed to the situation where one
party is only temporarily disabled from fulfilling its obligations. See Beretta v Rhodesia Railways Ltd 1947
SR 48 at 49-50; NUST v NUST Academic Staff & Others 2006 (1) ZLR 107 (H)
at 109A-D
Proposed answers to some burning
questions
What changes are likely to be made to employment
contracts following the lockdown?
The
national lockdown does not necessarily entail termination of the legal
relationship between employer and employee unless the parties agree otherwise.
Depending on the nature of the job and the length of the lockdown, parties are
at liberty to come up with various measures if they intend to continue with
their relationship. Such measures can include the following:
a)
Where possible, the
employer can agree with the employees that the employees work from home. This
will remove the face to face interaction. This can be done by increased use of
e-communication such as e-conferencing thereby making better use of the ICT.
This is commonly referred to as telecommuting/remote working.
b)
Where possible
employees can go on leave using their vacation leave days as provided for in
section 14A of the Act or compassionate leave days as provided for in section
14B of the Act
c)
The parties can agree
to review salaries and allowances up or down;
d)
The employer can
introduce short-time work and shift systems in terms of the Act
e)
The employer can
effect salary deductions in terms of the Act.
What remedies are available to the employer where
employees refuse to attend work when the business renders essential services?
This arises in cases where the employee mero motu
decides to absent himself from work as a personal health measure. It is up to
the employer to demonstrate that it had provided enough safety to the employee,
then he can lawfully terminate the contract of employment through disciplinary
action. However, this is tricky as COVID 19 is quite a ghost. As it stands,
there is less scientific evidence available to such an extent that an employer
can guarantee with 100% certainty that an employee is safe. That is why tech
companies like Facebook simply closed offices when the pandemic started. In
businesses not rendering essential services, should the employee comply with
the lockdown laws and stay at home, he cannot be faulted.
What should the employer do when an employee is
infected by COVID 19?
When an employee falls sick, soon after reporting
the COVID 19 related illness to the employer and the health authorities, the
employee is entitled to apply for sick leave in terms of Section 14 of the Act.
The employer is therefore obliged to consider the application for sick leave.
Where the sickness is prolonged the laws applicable in respect of extension of
sick leave shall apply. Such leave should be generously considered.
Is there any liability for the employer’s failure
to provide safe and healthy working conditions?
As alluded to above, our common law and
international labour laws require that the employer provides safe and healthy
working conditions. If the employer fails to do this, he may be liable for damages
to the employee if the employee can prove that the employer was responsible for
his illness (including COVID 19 related illness). It is important to note that in terms of
common law, the employee has a duty to ensure due care and comply with the
employer’s orders regarding safe and healthy working standards and
conditions, otherwise the employer`s
liability will be reduced to the extent of the worker’s contributory
negligence.
Furthermore, it is an unfair labour practice for
an employer to fail to comply with his duty to provide safe and healthy working
conditions.
Is an employer obliged to continue paying
salaries during the lockdown?
Generally,
as long as the employment contract is still in existence and the employee is
providing the required services, the employer is obliged to continue paying
salaries during the lockdown. However in cases where the employee is no longer
rendering services the ‘no work no pay’ principle will apply subject to the
applicability of the supervening impossibility defence as discussed above. The
common law maxim of ‘no work no pay’ appropriately applies against the employee
if the employee has absented himself from work without a reasonable cause.
However,
should the lockdown become prolonged, the employer can lawfully terminate the
contract of employment through retrenchment on the basis that the company is no
longer able to carry the costs. Retrenchment is provided for in terms of
section 12 C and 12D in the Labour Act. However, before retrenchment, the
employer should consider measures to avoid retrenchments such as short-time
work or shift systems.
What
are the legal options available where either party to the employment
relationship decides to end the relationship?
The labour laws in Zimbabwe, for example, section
12 of the Act allow either party to an employment contract to terminate the
contract on notice in certain circumstances. It, therefore, follows that either
party is at liberty to terminate on notice the employment agreement should the
need to do so arise. For example, if the employer and the employee fail to
agree on new employment terms to respond to COVID 19, the parties can terminate
their relationship on notice through a mutual agreement. Alternatively, an
employee can resign at any time.
Conclusion
In conclusion, given the questions and proposed
answers highlighted in this article, the impact of COVID-19 is likely to be far-reaching.
The employer-employee legal relationship will be negatively affected. The need
to strategize becomes clear. Long and short term strategies become relevant.
For employers this is not an opportunity to drop workers, it is not their fault
that we have this pandemic. As such the following options are recommended for
employers:
a)
Where possible, the employer can agree with
the employees that the employees work from home. This will remove face to face interaction. This can be
done by increased use of e-communication such as e-conferencing thereby making
better use of the ICT. This is commonly referred to as telecommuting/remote
working.
b)
Where possible
employees can go on leave using their vacation leave days as provided for in
section 14A of the Act or compassionate leave days as provided for in section
14B of the Act.
c)
The parties can
agree to review salaries and allowances up or down;
d)
The employer can
introduce short time work and shift systems in terms of the Act.
e)
The employer can
effect salary deductions in terms of the Act and the no work no pay principle.
f)
In extreme
circumstances and where appropriate, the employer can terminate the employment relationship through
retrenchment or disciplinary action.
For the employees, this is not the time to fake
illness or become unavailable. Both parties should be glued to each other and
remain focused on the organisational vision, mission, objectives, and goals as
a way of fighting this pandemic.
Disclaimer
The contents and suggestions contained in this article
are for information purposes only and are not for the purpose of providing specific
comprehensive legal advice. If need be, you should contact us to obtain advice with respect to any particular issue or
problem mentioned herein.
Contact details: Cell 0772 456 954, Tel: + 263-242- 703664/6, 701622, Email: cmavhondo@mhishilaw.co.zw,
Website: www.mhishilaw.co.zw
