SOCIAL MEDIA AND EMPLOYMENT LAW IN ZIMBABWE

Relevant knowledge about the following is necessary:

Interception of Communication Act (Chapter 11:20) eg section 3.

Constitution of Zimbabwe; Section 57 (right to privacy of communication); Section 61 (freedom of expression). 

Labour Act (Chapter 28:01); Section 12B (right not to be unfairly dismissed)

SI 15/06 and other Employment  Codes; misconduct- conduct inconsistent with express or implied terms of the employment contract.

EC Policies or ICT policies vs. section 6 of the Labour Act (unilateral variation of employment conditions)

What is social media?

It is a collective of online communications channels (websites and applications) dedicated to community –based input, interaction, content –sharing and collaboration.Examples; Facebook, Google+, YouTube, Twitter, LinkedIn, Pinterest, WhatsApp, Telegram , WeChat , blogs etc

Use of social media to recruit, (secret screening or background check)

- it is unlawful in France if without employee’s consent

-it may not be unlawful if the information is public.

Use of social media to denigrate or defame employer ; to harass other employee to share confidential information (trade secrets); Defence of privacy inapplicable if ‘Facebook friend’  brings out information. ;South African case of Haliwell v  Holiday Inn Sandton.

-May be a misconduct

Employee taking LinkedIn contacts (collated during employment) away upon termination of employment.

Employer taking over ex employee LinkedIn account; Identity theft by employer? Yes, as in the US case of Eagle v Morgan .

The practice of employers demanding Facebook login details of interviewees or employees was  outlawed in many states in USA.

Use of LinkedIn contacts from former employer in breach of non –compete, non solicitation and confidentiality agreement by ex employee, led to ex employee being ordered to stop same forthwith; USA case of TEK v Hammernickemployment

 - such contacts held in UK to be owned by employer.; not by employee.

Employer using employee’s Facebook postings to prove fake sick leave

Freedom of expression and right to privacy on social media not always protected.

Employer’s vicarious liability for the actions of an employee on Facebook; Profile message; ‘I am gay’ in the UK case of Otomewo v Carphone Warehouse Ltd .

Employer taking over ex employee LinkedIn account; Identity theft by employer? Yes, as in the US case of Eagle v Morgan.

The practice of employers demanding Facebook login details of interviewees or employees was  outlawed in many states in USA.

Use of LinkedIn contacts from former employer in breach of non –compete, non solicitation and confidentiality agreement by ex employee, led to ex employee being ordered to stop same forthwith; USA case of TEK v Hammernick

Service of letters, court papers and other documents through social media like Facebook is getting recognition; CMC Woodworking Machinery Pty Ltd v Pieter Odendaal Kitchens 2012 (5) SA 604 (KZD)Morgan .

Do managers in Zimbabwe have a right to form a trade union?

BAZ vs. BFMUZ & Registrar of Labour SC 15/2019 

Managers in the banking, finance and allied industry, formed a trade union and when they sought to register it with the Registrar of Labour in terms of Section 45 of the Labour Act, BAZ opposed it. The ground of opposition was that BFMUZ was not allowed to be registered as a union by virtue of section 45 (1) (b) of the Labour Act. The Registrar rejected this ground and registered the union as he did not see anything at law barring registration of such a union. BAZ appealed to the Labour Court and lost. It later appealed to the SC and lost. Date of SC judgment: 26 February 2019 From the grounds of appeal; Whether or not mangers are allowed to register a trade union in terms of section 45 of the Labour Act; Whether or not it was unconstitutional to register such a trade union; Whether or not it was contrary to public policy to register such a trade union.

From the grounds of appeal the following issues arose:

Whether or not mangers are allowed to register a trade union  in terms of section 45 of the Labour Act?

Whether or not it was unconstitutional to register such a trade union

Whether or not it was contrary to public policy to register such a trade union?

The judgment in summary was;

Section 45 (1) (b) (i) of the Labour Act provides that ‘a trade union shall not represent employers’ but it does not prohibit managers from forming or joining a trade union. Section 2 of the Labour Act  defines,  ‘employer’, ‘employee’ and ‘managerial employee’- manager is a sui generis employer/employee. Section  4 of the Labour Act , gives  every employee the right to  belong to a trade union.Section 45 of the Labour Act  must be read in line with the other provisions of the Labour Act. Section45 is in line with Constitution of Zimbabwe and International Convention. It is not contrary to public policy.

Important links to other labour law articles

http://labourwatchzim.blogspot.com/



https://www.theindependent.co.zw/2018/04/13/tm-labour-case-zuva-ghost/


https://www.theindependent.co.zw/2018/05/11/renewal-fixed-term-contracts-impacts-workers/


https://www.theindependent.co.zw/2020/02/14/how-to-reduce-labour-costs-for-your-firm-a-legal-perspective/

IMPORTANT CASES ON WORKS COUNCILS IN ZIMBABWE   AS AT 28 JUNE 2018

1. Thomas Meikles Centre vs. National Workers committee and others SC/77/02

(Binding effect of the constitution of the works council)

The court held that the employer, works council and workers committee are different entities. The works council had its own constitution different from that of workers committee. The court also stated that the constitution of the works council only binds the works council and not the workers committee. The court went ahead to say that whatever was agreed in the works council constitution doesn’t take away the rights of the employer and the employee to discuss and negotiate wages.

2. GEDDES      LIMITED                V                MARK      TAWONEZVI S.C. 34/02

(Role of works council in disciplinary proceedings)

In this case clause 3.3 of the Code of Conduct provided that:

“… the employer, after consultation with the Works Council, shall appoint in writing one or more persons in his employment to be the ‘Designated Officer’ for the purpose of administering this Code.” 

3. Wilbert Mugabe and others vs Zvimba Rural Council SC 29/O6

(Role of works council in retrenchment was mediatory)

The object of the requirement of the steps to be taken in accordance with the procedure for the retrenchment of employees prescribed under s 12C of the Act is to ensure that the retrenchment is by agreement between the employer and employees concerned or their representatives with the approval of a third party (No longer the position after Act 5 /2015). The role of the Works Council in the prescribed procedure is not to have an agreement reached between its own members. Its role is that of a mediator to secure an agreement on the retrenchment, its terms and conditions between the employer and the employees concerned or their representatives.See Prosser & 35 Ors v Ziscosteel HH 201 – 93; Chidziva & Ors v Zisco 1997 (2) ZLR 368(S); Nyangoni & 14 Ors v ZDC HH – 34 – 98

In this case the representatives of the employer and the employees concerned reached an agreement on the retrenchment, its terms and conditions without the involvement of the Works Council. The Works Council which was required by law to approve the retrenchment in terms of the agreement did so. The retrenchment therefore was to be carried out in accordance with the approval granted in terms of s 12C of the Act. The employer gave the employees concerned written notice of termination of their employment as it was obliged to do in terms of s 12C (5) of the Act.

4.  Gweru Water Workers Committee vs City of Gweru SC 25/15

(Selected workers committee members represent workers in works council)

It is one of the functions of the workers committee to appoint its members to the workers council.

5. Chemco v Tendere and Others  SC 14/17

           (Role of works council in transfer of undertaking)

 The provision of section 25 of the Labour Act requires the employer intending to transfer ownership to afford, to members of the works council representing the workers committee, an opportunity to make representations and advance alternative proposals.  The employer is placed under no obligation to accept the proposals. He simply has to give reasons for disagreeing with them. No power of veto is given by the statutory provision to the works council or to the employees.  That is to say, s 25 of the Act does not authorise the works council or the employees to stop the transfer of ownership. It does not nullify a transfer which has taken place in the absence of consultation.  It imposes no sanction for non- compliance. This may well be because the legislature has, in s 16 of the Labour Act, provided adequate recourse for employees affected by a transfer of an undertaking.  In the end, the aim is to ensure that the tenure and conditions of employment enjoyed by the employees under their former employer are not reduced or diminished by the new employer without their consent.

6. Fungura & Another v Zimnat  2000 (1)ZLR 379 (H)

(Binding nature of agreement reached in works council)

The court held that an agreement reached in works council by workers’ representatives about a retrenchment package is binding on the workers, provided that the formal requirements of the regulations are complied with and provided that the representatives have the authority of the workers for whom they act to give consent.

Individuals amongst the body of workers who dissent from the package properly agreed by authorised representatives will nevertheless be bound by the will of the majority so represented. This applied in the present case and the application must therefore be dismissed.

Further , the court held hat a works council cannot represent and bind the retrenchees when the retrenchees have not been notified of their position and could not have mandated the workers’ representatives on the works council in these negotiations. The position is different where the works council has been properly mandated by the workers.

7. Hove vs Zimphos LC/H/20/14

(It is important for works council to keep clear minutes)

The labour court relied on the minutes of the works council and it was established that the appellant had misrepresented the facts hence committed a misconduct. Minutes of works council are therefore useful in resolution of disputes.

8. Gabriel Dizha vs Zimbabwe Leaf Tobacco Company LC/H/39/2014,

(Involvement of works councils in disciplinary matters)

In this case, the court refused to attend to an application for condonation for an appellant who didn’t not note his appeal with the works council on the basis that, the works council was the body that could only grant that appeal. The rationale was condonation was would be granted by the works council as it will be the one to decide on the case any way.

9. Silver Anne Mungofa vs ZB Bank LC/H/01/14

(Role of works council in retrenchment was mediatory)

The court said that the works council may not discuss and negotiate terms and conditions for retrenchment without the involvement of the affected employees.

It was stated that Section 12 C (2) (No longer the position after Act 5/2015) of the Act provides that: “A works council or employment council to which notice (of intention to retrench five or more workers) has been given in terms of subsection (1) shall forthwith attempt to secure agreement between the employer and employees concerned or their representatives as to whether or not the employees should be retrenched and if they are to be retrenched, the terms and conditions on which they may be retrenched….” (Emphasis added) The facts of the matter reveal that the works council did not comply with the provisions of s 12 C (2) of the Act in that it did not attempt to secure agreement between the employer and employees concerned or their representatives. The whole process was therefore not in compliance with the provisions of law and accordingly defective, improper and a legal nullity. See in this regard the case of Chidziva & Ors v Zimbabwe Iron & Steel Company Limited 1997 (2) ZLR 368 (S) and also the case of Prosser & Ors v Zimbabwe Iron & Steel Company HH 201- 93 were the learned judge underscored the need and importance of precisely following the procedure in a retrenchment process were such have been laid down.

UNPACKING CURRENT DEVELOPMENTS REGARDING TERMINATION OF EMPLOYMENT ON NOTICE

 

Prepared by Cephas Mavhondo

Mhishi Nkomo Legal Practice

Dated 05/09/17

 

 

Good labour law should encourage economic growth. This means the regulation of the labour market should be sensitive to economic growth. The question is how is the labour market is supposed to be regulated in order to guarantee economic growth? In regulating the labour market some laws may bring more questions than answers. Such laws should be quickly amended or repealed to avoid confusion in the labour market. Such confusion is not healthy for the so much sought after foreign direct investment which stimulates economic growth. In light of this view, the writer will try to unpack the current developments in Zimbabwe regarding termination of employment contracts in terms of Act 5/2015.

 

On 17^th July 2015, the Supreme Court of Zimbabwe delivered a judgment in Don Nyamande and Another v Zuva Petroleum (Private) Limited:  SC 43/15 to the effect that:

(a)  The employer had a right to terminate a permanent employment contract on notice;

(b)  That this right of the employer was there in terms of the common law of Zimbabwe;

(c)  That the Labour Act  never abolished that right; and

(d)  The employee is equally entitled to terminate the same contract on notice.

 

Soon after the Zuva judgment, thousands of employees lost their employment in Zimbabwe as employers took advantage of the legal effect of Zuva judgment.  For the employees, the Zuva judgment spelled doom. About a month after the Zuva judgment, the Parliament of Zimbabwe (House of Assembly and Senate) enacted the Labour Amendment Act No. 5 of 2015, which amended the Labour Act (Chapter 28:01) herein after called ‘the Act’.  The amendment became law on 26^th August 2015. Act No. 5 of 2015, introduced a number of changes to the Act.  With respect to termination of employment contracts on notice, the critical provisions are to the effect that:

 

(a)      No employer shall terminate a contract of employment on notice unless, the termination is in terms of an employment code of conduct or the employer and employee mutually agreed in writing to the termination, or the employee was engaged on a fixed term contract or the termination is pursuant to retrenchment.

 

(b)      Where an employee’s permanent contract is terminated on notice in terms of the Act as amended, that employee shall be entitled to a minimum retrenchment package of not less than one (1) month’s salary for every 2 years of service or a pro rata (a proportion of that)

 

(c)      Section 12 of the Act as amended by Act 5/2015 applies to every employee whose services were terminated on three (3) months’ notice on or after the 17^th July 2015.

 

What followed after Act 5/2015 is what is currently giving players in the labour market relentless headaches. The amendment has one main shortcoming-it is not clear in various respects. This is proving costly to players in the market. The courts are continuously grappling with conflicting interpretations of some of the parts of the amendment.  Resultantly, a number of questions arise and I will attempt to answer them in this article.

 

Does the employer still have the common law right to terminate a contract on notice?

 

Yes. However, the right is now heavily regulated by section 12 (4a) of the Act as amended.  The employer can only terminate on notice if the termination is in terms of a code of conduct; or the employer and employee have mutually agreed in writing; or when the employee is employed on a fixed term contract; or the termination is pursuant to retrenchment.

 

Does the employee still have the common law right to terminate the contract of employment on notice? 

 

Yes and this right has not been affected by Act 5/15 as section 12 (4a) of the Act as amended which regulates termination of employment on notice does not cover termination at the instance of the employee.

 

How can a contract of employment be terminated on notice in terms of a code of conduct?

 

In my view a contract of employment can only be terminated on notice in terms of a code of conduct if that code of conduct provides for termination of employment on notice. There is a contrary view that an employee whose contract has been terminated through disciplinary proceedings in terms of a code of conduct is entitled to a notice. This is, in my view, a clear misinterpretation of the Act as amended. 

 

Does a clause in a contract of employment to the effect that the contract can be terminated on notice provide a basis that the employer and employee mutually agreed in writing to the termination of the contract?

 

No.  The agreement to mutually terminate a contract on notice is only reached at the time or after either party has mooted the idea to terminate the contract.

 

Does an agreement to mutually terminate a contract need to be on a single written document?

 

No. What is only required is that the employer and the employee must have ‘mutually agreed in writing’. In my view, any written document (s) can provide proof that the parties ‘mutually agreed in writing’- that is there was a meeting of the minds in writing.  For example where the employer writes a letter to the employee and the employee replies the letter agreeing to have the contract terminated.  However, it is ideal to have a single document recording the agreement which both parties would have signed. See Ruturi v Heritage Clothing P/L 1994 (2) ZLR 374 (S)

 

Is it really necessary to terminate a fixed term contract on notice?

 

Not for the stated termination date, unless the parties had previously agreed in the contract that it shall be necessary to issue a notice in order to terminate a fixed term contract. Either party has no right to terminate a fixed term contract, unless the parties agreed otherwise.  This is so because a fixed term contract terminates automatically by expiry of time. This is the position of our common law. However, it may be courteous to give notice even if it is not required.

 

It seems as if Act 5/2015 has changed this common law position such that the employer now has a right to terminate a fixed term contract on notice.

 

It is important to note that the notice periods stated in section 12 (4) of the Act do not create a right for either the employer or the employee to terminate a fixed term contract. The notices only apply when there is a right to terminate a fixed term contract for example where the parties have agreed that their contract shall be capable of being terminated on notice or where an enactment (for example Act 5/2015)  provides such a right.

 

How does notice apply pursuant to retrenchment?

 

Amendment number 5/2015 repealed a provision in the old section 12C of the Act which expressly provided that no employer shall retrench any employee without affording the employee the notice of termination to which the employee is entitled - See Garikai v ZIMASCO SC 46/96. Despite the repeal, this position in my view has not changed as section 12 (4a) of the Act as amended covers termination on notice pursuant to retrenchment. This means that upon retrenchment of an employee, the employer is still required to give the employee the applicable notice period.  This notice period is normally given in the retrenchment package as cash in lieu of notice.

 

What are the terminal benefits that an employee is entitled to upon termination on notice?

 

These are: all unpaid salaries, if any, accrued leave days (paid as cash in lieu of leave), if any, applicable notice period (cash in lieu of notice), minimum retrenchment package (This does not apply to fixed term contracts), medical aid expenses (if applicable), any pension, if any and statutory or contractual gratuity, if any. See section 13 and section 12 C (2) of the Act as amended. The agricultural sector has its own special terminal benefits.

 

Is section 18 of Act 5/2015 a retrospective provision?

 

Yes.  This position was accepted by the Labour Court in a recent judgment by Justice Mhuri in the matter of Faith Mupangani N.O v National Handling Services (Private) Limited and 7 Others LC/H/ 495/17) in which the court ruled that Section 18 of  amendment Act 5/15 as further amended by Finance Act 8/15 is clearly retrospective such that all the terminations done in terms of Section 12 (4) of the Labour Act were rendered null or void as they do not comply with the new Section 12 (4a) of the Act as amended. The court extended the retrospective effect of section 18 to cover the validity of termination of employment done in terms of section 12 (4). Resultantly the court found that section 18 invalidated such terminations.   The court went on to say such terminations are therefore unlawful and the remedy for such employees is reinstatement failing which payment of damages in lieu of reinstatement.

 

Are the employees whose permanent contracts were terminated on notice following Zuva judgment but before Act 5/15, entitled to the minimum retrenchment package?

 

A reading of the retrospective section 18 of Act 5/2015 seems to show that Parliament wanted such employees to be paid the minimum retrenchment package. 

 

However, strict interpretation of Act 5/2015 shows that such employees are not entitled to the minimum retrenchment package. This is the approach taken in the case of Aleck Magwenzi N.O. v Chapman Golf Club LC/H/800/16 where Murasi J held that Section 12 C(2) of the Act as amended does not apply to employees whose contracts were terminated in terms of Section 12 (4) of the Act. In other words, the Labour Court in that judgment accepted that Section 18 of Act 5/2015 had a retrospective effect.  The court however was of the view that the retrospective effect was not extended to Section 12 C (2) as to enable payment of compensation to employees whose contracts were terminated in terms of Section 12 (4) of the Act.

 

Is section 18 of Act 5/2015 constitutional in being retrospective?

 

The question was in a way answered in the judgment of ZimInd Publishers (Private) Limited v Minister of Labour HH170-17 when Justice Matanda-Moyo held that Section 18 of Act 5 /2015 is retrospective and that the retrospectivity is unconstitutional as it takes away vested rights of the employer.  The court found that section 18 was inconsistent with sections 3(2) (k) of the Constitution of Zimbabwe that provides for “due respect for vested rights”, section 56 (1) and section 86 of the Constitution.

 

 

 

 

 

 

 

 

Since the pronouncement of the constitutionality of section 18 in ZimInd case supra (above) is yet to be confirmed by the Constitutional Court in terms of section 167 of the Constitution, it is too early for employers to celebrate and for employees to be sad. The game is still on.

 

What is the way forward in terms of legislative developments?

 

Possibly because of all these problems in termination of employment contract in terms of Act 5/ 2015, the Labour Act is being amended again but this time in a more holistic way. It will make more sense to discuss the proposed amendments once the relevant Bill has been gazetted.

 

 

 

Conclusively, Act 5/15 has caused a lot of problems for both employers and employees. Indeed it has brought more questions than answers concerning termination of employment contract on notice. There are other problems brought about by this Act for instance empowering Labour Officers to make draft rulings in conciliation matters, which rulings are supposed to be confirmed by the Labour Court. The writer will not go into details about the issue of Labour Officers in this article. That issue is left for another day.  As such Act 5/2015 has to be quickly amended or repealed to avoid more confusion in the labour market. This confusion is not good for the nation as it may drive away foreign direct investment.

 

 

THE TECHNOLOGICAL DYNAMICS IN LABOUR LAW AND THE SIGNIFICANCE OF ICT POLICIES

 

In law and business, closing the stable door after the horse has bolted, is not an option.The digital age is here.The developments in Information and Communication Technology (ICT) are terrific. Every aspect of our lives is being affected.  Your business in not spared. Our law is not spared.  The media is awash with stories about these developments.  Even criminals are casting new ways of achieving their criminal goals such as phishing (the attempt to acquire or acquiring sensitive information such as usernames, passwords, and credit card details, often for malicious reasons, by masquerading as a trustworthy entity in an electronic communication).

This means that business society and justice system ought to be prepared on how to deal with these technological developments. Computer and internet based criminal acts are now common. The advent of internet based social media means something else. Cases in which people have been defrauded through WhatsApp are on the rise.  It is obviously because of these developments that Zimbabwe is moving with time by embarking on the crafting cyber laws (e.g Computer Crime and Cyber Criminal Bill, Electronic Transactions and Electronic Commerce Bill and Data Protection Bill). Our civil justice system is also moving in the right direction as we are witnessing the proposed amendments to the civil laws of the country through the Judicial Laws Amendment (Ease of Settling Commercial and Other Disputes) Bill, 2016.

In this wake of technological changes, waiting in not an option. It is my view that in the realm of business in general and the labour market in particular, it is necessary for companies to have Information Communication Technology Policies (ICT Policies). Just like any company policy affecting employment relationship, ICT policy should be linked with the contracts of employment for it to be effective.  In other words, it is advisable to have a clause in the contract of employment to the effect that the employee agrees to be bound by the terms and conditions of the policy. Generally for business to come up with an effective ICT policy, it is necessary to hire a lawyer who can draft such policies.

Alternatively, for those industries that require what are called Collective Bargaining Agreements (CBAs) and for companies that have company Codes of Conduct, it is advisable to ensure that such CBAs and Codes of Conduct capture the relevant aspects that govern use of Information Technology.

It is important to note that although technology is bringing new concepts and methods of communication that are faster than the traditional ones, when it comes to the law, it is not like  completely new concepts of law have to be invented.  In my view, what should happen is our Parliamentarians and the courts should apply or modify the existing legal concepts in order to deal with new legal questions that may arise as a result of these technological changes. This, I believe, is what needs to be born in mind when crafting or debating these ICT policies and cyber laws. A good example that always come to my mind is the “Facebook” concept.  Facebook wall is like a newspaper that you buy from vendors along the streets of Harare.  Whatever is written in the newspaper is public and likewise whatever is posted on your Facebook wall becomes public and the existing rules of law governing defamation, privacy, confidentiality disclosure and transparency, respectfulness, security, diplomacy, disclaimers, copy rights and pending legal matters etc should come into play.  An email generated by an employee via company email address is just like a letter on the company letterhead and the existing laws governing employment come into play.  Obviously, there are some modifications that need to be done to the existing laws for them to effectively address the new needs of our society.

For more information of ICT policies, it may please someone to refer to my previous article that was published in the Law Society of Zimbabwe-run publication called Zim Juris (Issue No.1 2015). The article is entitled “Social Media visa vis employee misconduct”. That article is also available online on www.labourwatchzim.blogspot.com. In that article I recommended the use of Electronic Communication Policy (ECP) or ICT policy by companies as a way of improving dispute resolutions at workplace. It is interesting to note that the Employment Council for Electronic, Communication and Allied Industry recently came up with a CBA with very progressive provisions on use of technology. Section 28 of the CBA (SI 88/16) provides that:

“It is act an act of misconduct for an employee to disregard or breach the IT Policy and procedures including but not limited to the following:-

1. Sharing of passwords without authority;
2. Abuse of email;
3. Disclosing information of a confidential nature to unauthorized persons,
4. Accessing prohibited websites;
5. Spending time on non-work related internet activities.   

Though there are other legal issues that may arise as a result of these policies such as constitutional right to privacy and freedom of expression, these policies are very important in business. If a business has an ICT policy in place it means for that business if incidences of abuse of computers and internet are minimized hence less risks associated which such abuses e.g company legal liability and loss of business/profits. In cases of abuse of computers and internet, it is easy and quicker to dispose of disciplinary matters arising, hence leaving more time for business production and ultimately bringing more profits and a stable society. If business is making profit it will should not fail to pay its employees handsomely. Quick and easy resolution of disciplinary matters means less expenses in legal costs.

In the case of Elineth  Dick vs. Zimbabwe Revenue     Authority     SC 16/15  one of the reasons why the appellant employee lost an appeal was that she had sought to argue that the IT policy from which the misconduct she was charged with emanated,  was not part of her contract of employment.The allegation against the appellant was that on 22 April 2010 she had sent a video clip entitled “work done in the kitchen” via email.  It was not in dispute that the video clip contained indecent, obscene and immoral material. It was found that the dissemination of such material was contrary to the IT policy of the respondent which formed part of her contract of employment.  The offensive material had been sent from her business computer during working hours. Both the Labour Court and the Supreme Court found on appeal that it was clear that the IT policy was part of the appellant’s contract of employment hence the appellant was properly charged in terms of that IT policy and found guilty. Clearly the use of IT policy made it easy and cheaper for the business in this case to deal with a disciplinary matter involving use or abuse of emails.

It is critical to note that caution has to be exercised by both the employees and the employers when dealing with alleged misconduct emanating from IT policies or general abuse of business computers or internet. Employers have a tendency of rushing the allegations and carry out a hearing before proper investigations. For instance if the employer withdraws a computer from an employer and later on discovers, in the absence of the employee, some offensive material on the computer, it may create doubts in the minds of the court that indeed the offensive material was kept in the computer by the employee unless the nature of the material is such that it can be traced back to the employee without any doubt.

To goad discussions on the impact of the digital age on labour laws, I will pose the following questions:

1. Should it be fair for an employer to vet a prospective employee based on information gleaned from social media websites such as Facebook? Should the consent of the employee be required?
2. Should it be a misconduct for employees to discuss conditions of service on social media?
3. Should an employee be compelled by the employer to disclose his LinkedIn contacts which he acquired or obtained in his capacity as employee? Can such compulsion ignore LinkedIn user terms and conditions? Who owns these contacts, the employer or the employer?
4. Should an employer be allowed to use as evidence of misconduct the employee’s private YouTube or Twitter or Facebook or any social media posts?
5. Should an employer be held vicariously liable for the actions of its employees on social media?
6. Should an employer company that has failed to protect its secret or confidential date be allowed to stop ex-employees to use that data in a competing business?
7. Should court processes or letters of demand be served through Facebook?
8. Are Facebook posts private or public?
    

Answers to the above questions depend on what the existing laws (including CBAs) or employment contracts (including ICT policies and codes of conduct) say about the relevant concepts in each case e.g right to privacy, interception of communication, restraints of trade and confidentiality, unfair completion, soliciting of employees, customers/clients, defamation, harassment and recruitment etc.


In conclusion, Zimbabwe in general is in the right direction in as far as moving with technology is concerned. What is however required is to move with speedy in crafting cyber laws and ICT policies. With technology, the laws should be quickly amended or crafted otherwise if it is delayed,  technology will remind us that ‘ justice delayed is justice denied’- in deed a lot of bad things may have taken place by the time the new law comes out. As such we should avoid waiting to close the stable after the horse has bolted.