Elegant Legal Resources

22/03/2024

AGREED RETRENCHMENT PACKAGE
Below are my reflections on the meaning of an ‘Agreed Retrenchment Package’ as provided in the new Section 12C which repealed section 12(4a) of the principal Act.
Section 12C (3) provides that:
“An employer who intends to retrench any one or more employees or has negotiated with his or her employees a retrenchment package better than the minimum retrenchment package (hereafter called the “agreed retrenchment package”) shall…”
The wording of this section envisages two situations for an employer:
 a situation where an employer intends to retrench any one or more employees; or
 a situation where an employer has negotiated with his or her employees a retrenchment package better than a minimum retrenchment package [the ‘agreed retrenchment package’], presumably without the employer having or being required to give notice of intention of his intention to retrench.
How is the ‘Agreed Retrenchment Package’ arrived at?
According to this subsection an ‘agreed retrenchment package’ is a package above the ‘minimum retrenchment package’ but the section does not explain how the ‘agreed retrenchment package’ is arrived at, which is quite unhelpful.
Generally, a retrenchment agreement is secured by a process of negotiation/consultation between representatives of the employer and the employees to be retrenched or their representatives on the proposed retrenchments. See for example case of Mugabe and Others v Zvimba Rural District Council-SC 29/06
The agreement will be on the need for the retrenchment, as described in the annexure detailing the reasons for retrenching the listed employees and the terms and conditions of the retrenchment which cover the size of package and payment terms etc.
Each party must be able to tender documentary evidence as proof of agreement having been reached on the need to retrench and the terms and conditions of the retrenchment which include size of package and its payment.
Existence of a signed document detailing among other things, the size of package and date of retrenchment is prima facie evidence of the existence of an agreement on the retrenchment package between the parties, as contemplated under section 12C(3) of the Act.
While the drafters refer to a retrenchment package that is better than the ‘minimum retrenchment’ as an ‘agreed retrenchment package’ it is my humble view that, notwithstanding its size, every retrenchment package is a result of negotiation and agreement including the undefined and so-called ‘minimum retrenchment package’ between the employer and the employees concerned or their representatives.
An employer cannot impose on the employees a retrenchment package.
It is my humble submission that even a ‘minimum retrenchment package’ [which is not specified in the amendment Act], must also be negotiated and agreed between the employer and the employee(s) to be retrenched or their representatives, and employees concerned may reject the offer to be paid the ’minimum retrenchment package’, even if it was defined/specified, if they believe that the employer has capacity to pay more.
Important: What is referred to as ‘agreed retrenchment package’ is section 12C (3) is referred in other subsections as ‘enhanced retrenchment package’. See definition of ‘Capacity to pay’ under section 12C(1).
Key Takeaways
 Every retrenchment must be predicated on the employer terminating employment on any one or more of the retrenchment grounds specified in the Act (Interpretation section 2) as read together with section 12C (1), and an employer cannot negotiate and agree on a retrenchment package with the affected employees or their representatives without making his intention to retrench known, and his intention can only be known by issuing a notice to retrench as provided under section 12C (3)(a).
 Any other agreement between an employer and employee(s) to terminate employment and to pay a package/terminal benefits can only be appropriately pigeonholed and rightfully be described as mutual termination and not a retrenchment.
 A retrenchment agreement is between the employer and the affected employees or their representatives and no one else.
Please note that while a retrenchment agreement is between an employer and the affected employees or their representatives, an employer who has negotiated and agreed on a retrenchment package with the employees concerned or their representatives must notify the Retrenchment Board and the Board shall issue to the employer a certificate (hereinafter called a “notification certificate”) if it is satisfied that the agreed retrenchment package is indeed better than the minimum retrenchment package. It stands to reason that the Retrenchment Board will not issue the ‘notification certificate’ if it is not satisfied that the agreed retrenchment package is indeed better than the ‘minimum retrenchment package’.
Having made these reflections it is suggested that there is urgent need for further refinement, by way of legislative amendment to the wording and formulation of the current section 12C to address these glaring omissions and shortcomings noted in this piece and elsewhere in section 12C and not discussed in this piece in order to make it more user-friendly.
Until next time
I Machingambi

For more on this subscribe to our Labour and Employment Law for Practitioners Handbook 2023 by visiting our online shop at www.elr.co.zw
If you are still unsure Elegant Legal Resources will be your knowledge partner helping you manage retrenchments and other workplace changes correctly and you can contact the author on WhatsApp number 0772 979 612.

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12/02/2024

CRITERIA FOR MERIT INCREASES OR PAYMENT OF DISCRETIONARY BONUSES
One of the proposals listed under section 25A (5) relates to setting or establishment of criteria for merit increases or payment of discretionary bonuses. The employer cannot implement such a proposal unilaterally.
Merit increases and discretionary bonuses fall under that rubric of variable remuneration [bonuses and incentives] and are often paid to employees to encourage them to perform and behave in a way consistent with the organisational strategic goals and targets.
It also allows the employer to attract, motivate and retain key employees by providing competitive remuneration packages.
A decision to give an employee an amount of variable remuneration is the employer’s but the law requires that the employer consults the works council when introducing and implementing such a scheme.
While the Act is silent on areas to consult, it is proposed that the consultation should cover both the designing and implementation of the remuneration scheme including determination of the following:
 Who is eligible;
 Whether to use short-term incentives or long-term incentives;
 What vesting period will apply;
 The ratio of variable remuneration to fixed remuneration;
 The criteria to be used to determine whether an employee will be granted the variable remuneration;
 The form the scheme will take, e.g. cash or benefits;
 Whether there will be provision for performance-based adjustments; and
 How to treat incentives upon termination of employment.
Until next time
I Machingambi
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09/02/2024

RETRENCHMENT AND NOTICE PERIODS UNDER NEW SECTION 12C
Termination of employment for operational reasons [Retrenchment] may only be considered in situations such as bankruptcy of enterprise, closure of business, restructuring, introduction of new technology or work methods, increasing profitability or cutting losses and reduced availability of work or such other operational reasons.
The law affords employees protection from such termination and strict requirements have been set down such as adhering to stipulated notice periods and failure to comply with these requirements can result in the employer being slapped with a certificate of non-compliance by the Retrenchment Board!
An employer wishing to retrench one or more employees or has negotiated and agreed with his employees on a retrenchment package is required to observe the following notice periods:
 Give 14 days’ written notice to Works Council and to the NEC if most employees agree or if there is no Works Council.
 A copy of such notice must be served on the Retrenchment Board.
Employer is required to notify the Retrenchment Board within 14 days from date of retrenchment, of the following:
 the retrenchment and particulars of any agreed retrenchment package.
Retrenchment date is the date on which an employment contract is terminated for the purpose of retrenchment and is preceded by the notice to retrench and it cannot be later than the date on which the employer lodges written notice of retrenchment with the Retrenchment Board.
If no retrenchment date is specified in the written notice of retrenchment issued in terms of subsection (3)(a) then the retrenchment date shall be presumed to be the date on which the employer lodges written notice of retrenchment with the Retrenchment Board in terms of subsection (5).
The Retrenchment Board must issue a notification certificate signifying satisfaction with the agreed package within 14 days from the date when the employer notifies the Retrenchment Board of its intention to retrench.
If agreement is secured on the retrenchment package and date(s) of payment the employer must notify the Retrenchment Board no later than the end of the notice period.
The Retrenchment Board is required to issue a notification certificate [a certificate that signifies the board’s satisfaction that the agreed package is better than the minimum retrenchment package]
The notice shall be issued by the board on its retrenchment notice board or virtually for seven consecutive days.
Failure by an employer to notify the Retrenchment Board of the minimum or agreed package on the 21st day after the employee or employees are retrenched, the employees or their representatives may enforce payment of their package as per section 12C (6) and (7) of the Labour Act.
The employer will be given an opportunity to be heard before the board and if the board is satisfied that compliance has not been made, the board must issue a certificate of non-compliance and stating the extent of non-compliance.
The issuance of this certificate will allow employees to proceed with the enforcement of the retrenchment package.
Until next time
I Machingambi
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25/01/2024

CAN YOU SUSPEND AN EMPLOYEE WHILE HE IS ON LEAVE?
There's nothing at law that prevents an employer from suspending an employee who is on leave as long as the employee can be contacted and he can be advised of the decision to suspend him as well as the reasons thereof.
The employee must also be informed about the terms of the suspension which may include restricted access to the workplace.
However the better approach would be to wait for the employee to return from leave simply because when an employee is on leave he is away from the workplace and this is precisely the reason for suspension, that is to keep the employee away from the workplace.
However if the employer is of the view that there is a reasonable chance that the employee will interfere with witnesses and evidence at the workplace while on leave then a suspension will be sensible under those sort of circumstances.

23/12/2023

From all of us at Elegant Resources we would like to wish you all a happy holiday season-wherever you are and however you choose to celebrate it.
We thank you for joining us and we hope you found our daily posts useful in complying with the law.
Like many of you we will be taking a break for the holiday season from the 24th of December 2023 to 5th January 2024.
Our daily posts will return on the week commencing 8 January 2024.
We hope to bring you more important posts next year.
Until then, stay safe and blessed.

23/12/2023

ANNUAL LEAVE CYCLE
An annual leave cycle refers to the period of 12 months’ employment with the same employer and the cycle starts either when the employee starts working for the employer or on completion of that employee’s previous leave cycle.
In the absence of a ‘qualifying service’ and for purposes of calculating any period of vacation leave, vacation leave is calculated in a leave cycle of 12 months, starting from the employee’s first date of employment, even if an employee is on probation.
The vacation leave year shall be on a calendar year. On the 31st of December of an employee’s first year of service the proportion of the leave earned from date of engagement to the end of the calendar year shall be credited to the employee. Put simply, the entitlement is pro-rated. From the 1st of January following, the employee’s leave shall accrue monthly up to the maximum annual entitlement in arrears.
For example, in terms of the Labour Act an employee’s vacation leave shall accrue monthly at a rate of two and half (2.5) days per month up to a maximum annual entitlement of thirty (30) calendar days.
The leave accumulates progressively during the year and any unused vacation leave will roll over from year to year subject to the maximum allowable.
Please note that leave of absence presupposes the continued existence of a contract of employment. Accordingly, vacation leave continues to accumulate even when an employee is on paid or unpaid:
 vacation leave;
 maternity leave;
 sick leave; and
 special leave
As long as the employment contract is extant or subsisting an employee continues to accrue vacation leave irrespective of whether he or she has taken another form of paid leave and not coming to work.
Until next time
I Machingambi
For more on this subscribe to our Labour and Employment Law for Practitioners Handbook 2023 by visiting our online shop at www.elr.co.zw
If you are still unsure Elegant Legal Resources will be your knowledge partner helping you manage attendance and timekeeping issues correctly and you can contact the author on WhatsApp number 0772 979 612.

At Elegant Legal Resources we are committed to giving a service that will transform the way practitioners and businesses access legal advice that will assist them in fulfilling their compliance obligationsIn the process of creating our content we follow an essentially “middle of the road approach....

18/12/2023

HOW IS AN EMPLOYMENT CONTRACT DIFFERENT FROM AN EMPLOYMENT RELATIONSHIP?
A contract of employment is different from an employment relationship in that a contract of employment comes into existence before the employment relationship is formed.
In other words an employment contract precedes an employment relationship and an employer will need an employment contract with an employee to have an employment relationship.
However, the contract of employment concluded by the parties must satisfy all the essential legal requirements of a valid employment contract before an employment relationship can be established and the relationship can fall within the scope of labour legislation.
Parties may enter into contract of employment and consequently an employment relationship for the purposes of the Labour Act, even if there may be no signed contract of employment. In such a situation, the court will have to look at the particular facts of each case, in the light of the provisions of section 12(1) of the Labour Act in deciding whether a person is an 'employee' for the purposes of the Labour Act.
The section provides that:
“Every person who is employed by or working for any other person and receiving or entitled to receive any remuneration in respect of such employment or work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.”
The above provision is also true for cases where parties may attempt to 'dress up' an employment relationship as something else in a written agreement.
If an employer withdraws an offer of employment after it has been accepted by the employee this may amount to a breach of employment contract.
Similarly, if an employee resigns before the starting date, this can be a breach of employment contract.

13/12/2023

RESTRUCTURING LEADING TO RE-DEPLOYMENT

In a workplace restructuring leading to redundancy and re-deployment, an employer may offer a redundant employee continued employment in a similar role in a successor company or an alternative role in another section or business unit in the case of a group of companies.
Redeployment by an employer will pass the muster, if:
 a redundant employee is offered a newly created or otherwise vacant job; and �
 the job offer to the redundant employee has taken into account:
 the employee’s current grade level;
 the employee’s skills and competence;
 the salary and benefits of the role.
Finally, if an employee agrees to be redeployed in a similar role in a successor company or in another role in the employer’s business, the employer will not be obligated to pay any retrenchment package under the Labour Act, because in reality employment will have continued and termination in the strict sense has not occurred. Put differently, the employee would not have been retrenched.
Until next time
I Machingambi
For more on this subscribe to our Labour and Employment Law for Practitioners Handbook (2023) by visiting our online shop at www.elr.co.zw and do not forget to share with friends.

At Elegant Legal Resources we are committed to giving a service that will transform the way practitioners and businesses access legal advice that will assist them in fulfilling their compliance obligationsIn the process of creating our content we follow an essentially “middle of the road approach....

11/12/2023

WHO BEARS THE ONUS TO PROVE TERMINATION OF EMPLOYMENT
Termination of employment, however and for whatever cause, presupposes the existence of a valid contract of employment.
Termination of employment is not possible when no contract of employment has been agreed.
Where the employer does not admit the existence of a valid contract the onus is on the employee to first establish the existence of a contract before requiring the employer to comply with the statutory provisions relating to the termination of employment.
Case law: In the case of Mirirai Zata and Ors v Harare City Council SC 74/99 the Judge said:
“…the provisions of Urban Councils Act and the Labour Relations Act which govern the termination of contracts of employment presuppose the existence of valid contracts of employment, and that where,…the employer does not admit the existence of a valid contract the employee should first establish the existence of a contract before requiring the employer to comply with the statutory provisions relating to the termination of employment.”
Once an employee has successfully discharged the onus of proving existence of a valid contract and its wrongful termination, the onus shifts to the employer.
The employer bears the onus to prove that the termination was for a valid and fair reason relating to either:
 the employee’s conduct; or
 the employee’s capacity; or
 the employer’s operational requirements.
Until next time
I Machingambi
For more on this subscribe to our Labour and Employment Law for Practitioners Handbook (2023) by visiting our online shop at www.elr.co.zw and do not forget to like this article and share with friends.
If you are still unsure Elegant Legal Resources will be your knowledge partner helping you manage termination of employment legally and correctly and you can contact the author on WhatsApp number 0772 979 612.

At Elegant Legal Resources we are committed to giving a service that will transform the way practitioners and businesses access legal advice that will assist them in fulfilling their compliance obligationsIn the process of creating our content we follow an essentially “middle of the road approach....

06/12/2023

DUTY TO CONSULT WORKS COUNCIL: Step-by-step guide
The duty to consult the works council imposed by the Labour Act involves the preparatory or resolution stage and the implementation stage.
Step 1: Preparatory stage
Employer should give the works council all the relevant information, preferably in writing explaining:
 the nature of the proposed changes; and
 the expected effects of the changes on the employees.
If a workplace change is likely to result in redundancy, in the discussion the employer must include:
 the causes of the redundancy;
 measures to mitigate the adverse effects of the change;
 opportunities for redeployment; and
 the suitability of current employees to be redeployed or to fill vacancies arising, having regard to the employee’s qualifications and merit, and the skills and experience required in the roles.
Step 2: Implementation stage
An employer must give works council members representing the workers committee:
 reasonable time to respond, comment and suggest other alternatives or options; and
 consider and take into account the alternative proposals proffered before any final decisions are made.

Until next time
I Machingambi
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04/12/2023

CONTROL MEASURES FOR REMUNERATED OVERTIME
It is the responsibility of the HOD to ensure that:
-there is adequate supervision and control measures at all times for overtime worked;
-the overtime is not performed for a continuos period in excess of the hours allowable;
-overtime costs are managed efficiently and effectively;
-record of all overtime duty is kept;
-when overtime claim is submitted for payment, the output produced during the period covered by the claim form is clearly provided; and
-all claim forms and the overtime authorisation shall be submitted to HR or payroll.

27/11/2023

OTHER FORMS OF EVIDENCE
Following on our previous post we think it is prudent to add to the list other forms of evidence and the rules governing the admissibility of such evidence, and these include identification by photographs and by voice tests, electronic evidence, physical objects and inspection-in-loco.
 Photographs and plans
A photograph or plan relating to any matter that is relevant to an issue in any disciplinary proceedings shall be admissible at any stage of the proceedings, if a person upon whose indications or observations the photograph or plan was taken or prepared gives evidence either before or after the photograph or plan is put in by the party tendering it as to the nature or effect of his indications or observations.
Identification by photographs- where it is sought to establish the identity of a person by this means, a series of photographs should be shown from which the suspect might be picked-R v Jackson 1955 S.R. 125.
 Identification by voice tests- care and skill should be taken in conducting voice tests lest the evidential value of such tests becomes problematic. The whole purpose of this test is to discover whether a witness’s conclusion is reliable and such reliability will remain untested and inconclusive if the test is improperly conducted. The following questions should be put to the witnesses;
(1) what was there about the voice that the witness heard which made him sure it was a particular person’s voice
(2) did the voice have a timbre or quality that set it apart from others
(3) were the words spoken in a soft or loud voice
(4) in cases of assault had the assault affected the witness’s capacity to hear voices and recognise them
(5) was the voice attributed to the person the only voice heard and were there other sounds which might have blurred his hearing- R v Chitate 1966 (2) SA 196 (R) A.D. in J.G. Storry p 263-264.
 Videos, audio tapes and similar material (electronic evidence)
These constitute recording material by means of which sound or sounds and pictures may be recorded. Recording material such as c.c.tv shall be admissible as evidence of the things recorded thereon.
In estimating its weight the investigator should have regard to all the circumstances affecting its accuracy, in particular whether or not the recording has been or may not have been edited or interfered with in any way, and if it has, whether the editing or interference has materially affected its accuracy or authenticity.
The hearing authority must also consider whether the recording is original or a copy. If a copy, why the original recording has not been tendered and whether the copy can be relied on.
Whether there is any independent evidence that may verify the things recorded on the recording material.
Should the complainant wish to bring videotape as evidence against the employee, the representative will need to bring as witness the person who filmed the video. In cases where there is evidence of a tape recording the informant should be present to be cross-examined.
Neither party should tamper with the evidence either by making deletions or additions to the audio or video tapes as such alterations can easily be detected by technical experts.
 Physical objects
Physical evidence is tangible evidence that has to be physically introduced such as a stolen item. Such exhibits are admissible if agreed by the parties or introduced through oral evidence that is through a witness who identifies or describes the object. The result of a breathalyser test and/or blood test forms part of tangible evidence. These are instruments used to demonstrate prima facie alcohol or drug abuse. The test alone is not conclusive evidence of intoxication; it is important that the breathalyser test be performed in the presence of a witness and followed by a blood test to be accurate and conclusive. In other words it is evidence that must be spoken to.
 Inspection-in-loco
Tangible evidence may be an immovable structure or scene of incident which cannot be brought to the hearing and may require a site visit or inspection in loco. At the inspection in loco both parties need to be present. Indications will be made by the alleged offender and the complainant and their witnesses at the scene where the offence was committed. Where a witness testifies to seeing the alleged offender doing something the investigator must establish;
• how far away such witness was,
• what obstructions there were and so on.
This entails asking detailed questions to establish on a balance of probability whether the witnesses are identifying the right person and eliminate the possibility of wrong identification.
It is important for the chairperson to make notes and make known the observations at the scene of the inspection.
Until next time
I Machingambi
For more on this purchase our Disciplinary Hearings Handbook by visiting our online shop at www.elr.co.zw
If you are still unsure Elegant Legal Resources will be your knowledge partner helping you manage disciplinary matters in your workplace correctly and you can contact the author on WhatsApp number 0772 979 612.

At Elegant Legal Resources we are committed to giving a service that will transform the way practitioners and businesses access legal advice that will assist them in fulfilling their compliance obligationsIn the process of creating our content we follow an essentially “middle of the road approach....