Hilary Muza 
ON September 20 this year, the High Court handed down a judgment touching on a crucial aspect of labour law and it is only expedient that this judgment be brought to the attention of the reading public. 
It is a well-written and well-reasoned judgment and applause must be given to Justice Dube for doing justice to this controversial area of law that has become the centre of much confusion.
Employers in all their various forms, labour law practitioners in trade unions and employer organisations, and particularly human resource personnel are better advised to get a copy of the judgment and study it for better understanding.
This is encouraged since human resource personnel are risk mitigators to their organisations and therefore, a good understanding of this judicial pronouncement may come in handy.
The judgment in the case of Govera and another v NetOne HH762/20 involved a dispute between employees who failed to agree after they were unlawfully dismissed by their employer NetOne Cellular Private Limited.
They were served with letters of termination on notice. They argued that the termination of their contracts of employment was unlawful in that provisions of the Labour Act (Chapter 28:01), as well as the common law had not been followed.
They further argued the employer`s right to terminate an employment contract on notice was abolished and had become a statutory right governed by specific circumstances prescribed under section 12 (4a), (a) to (d) which section was introduced by the Labour amendment Act No: 5 of 2015.
On the other hand, the employer argued that it had not breached any law since it had terminated based on the common law right that every employer has to terminate on notice.
In order to put the reader into proper perspective, one must be reminded of the legal position that existed prior to 2015 and that was confirmed in the case of Nyamande and Another v Zuva Petroleum (Private Limited SC/43/2015.
Before July 2015, both an employer and an employee had the right to terminate a contract of employment without fault by giving a notice of termination to the other side.
This meant that even where an employee had not committed any offence the employer could just wake up one morning and write a letter of termination on notice.
In the Zuva case, the court reasoned that just as an employee had the right to terminate a contract of employment at any time by giving a notice of resignation from such employment, by the same token, an employer also enjoyed the same right to terminate such contract of employment by giving notice of termination.
By holding as such, the court was confirming the common law position that permits termination on notice for no fault.
Those with recollection of how the evens transpired can remember how the Zuva Petroleum case opened the floodgates for employers to fire employees at will.
Employees began to receive letters of termination on notice at a rate that had never been seen before and this carnage resulted in a public outcry.
The situation that ensued was summarised in “Greatermans” Stores (1979) (PVT) Ltd/a Thomas Meikles Stores, Meikles Hospitality (PVT) Ltd v Minister of Public Services, Labour and Social Welfare and Another CCZ//18, at p4 of the cyclostyled judgment as follows;
“The reaction to the Zuva Petroleum judgment was a rush by employers, including the applicants, to terminate employment relationships on notice. Termination of employees` contracts on notice became a strategy adopted to employers countrywide to get rid of employees to save costs in an environment of economic difficulties.
“Employees were only paid cash in lieu of notice regardless of the length of service rendered to the employer. No further benefits accrued to the large number of employees whose contracts were terminated after July 17, 2015 whose employment contracts were terminated.
“As large numbers of employees were left jobless and uncompensated for the years that they had worked for their respective employers, save for their salaries paid in lieu of notice, there was widespread public outcry.
“The actions of employers revealed a national crisis characterised by lack of protection for the employees who lost employment, some of the employees were sole breadwinners for their families. Termination of sources of livelihood brought severe finance hardships on households. That gave the legislature the rational basis for the enactment of the legislation and for giving it retrospective effect.”
Parliament was then jolted into action and passed amendment number 5 of 2015 which provides that no employer shall terminate a contract of employment on notice unless, the termination is in terms of an employment code of conduct or the model code, or the employer and employees have mutually agreed to the termination of the employment contract, or where the employee was engaged for a fixed duration or pursuant to a retrenchment in terms of Section 12C.
Having been asked to give its opinion on the dispute between the parties, the court held that the employer’s common law right to terminate on notice a contract of employment was now governed by the new amendment to the Labour Act.
Hence employers no longer had the freedom to terminate willy-nilly as had been the case after July 2015.
Any employer who wishes to terminate on notice must follow the provisions introduced in Section 12 (4a), (a) to (d).
Further, particular attention must been given to the letters of termination since such letters must specify exactly under what section is the termination been done.
Anything short of that will render the termination unlawful.
Muza is a Harare-based legal practitioner. He writes in his personal capacity.
