BY ADMORE MARAMBANYIKA

VOLUNTARY National Employment Council (NEC) business has been thrown into serious disarray following a recent High Court order which declared them ‘illegal’ until they are compliant with the recent amendment of section 56 of the Labour Act (28:01) which has morphed them into statutory bodies.

The High Court ruling threatens to throw NEC business including wage negotiations into limbo while employees would need new contracts of employment.

The matter was prompted by a Court Judgment delivered by Justice Moya-Matshanga in the DGL Investments Number 5 Private Limited v Martin & 14 Others case heard recently. The affected employees then approached the National Employment Council, claiming unfair dismissal since their contracts had not expired. They also claimed payment of terminal benefits and underpayment of back pay from July 2020 and January 2022 up to the 30th of November 2022. In the determination, the DA ruled that the appellant had erred at law by making employees redundant for purposes of economic hardships he faced adding that they had a legitimate expectation to be re-engaged.

Aggrieved by the determination, the company appealed against the decision citing several grounds amongst them that the NEC Mining DA, Forbes Chitsenga had lost his jurisdiction to render a determination in this matter following the ammendment. The court then confirmed and upheld the appellant’s assertion that the mining NEC Designated Agent (DA) who determined on the case no longer had the locus-standi to handle the matter following the promulgation of the recent labour amendments.

Justice Moya-Matshanga pointed out that although the Designated Agent had already heard the matter prior, at the time of making the determination, he no longer had the mandate because his employment council, under whose auspices he operated, had ceased to exist with the promulgation of the Amendment Act on 14 July 2023. She further held that there were no provisions in the Act that allowed him to render his determination post the promulgation date when voluntary Employment Councils ceased to exist.

However, Labour law experts are proffering different interpretations on the judgement.  An analysis by Dr Rodgers Matsikidze a labour law expert, argues that the judge erred in passing the inconclusive ruling.

“Respectfully, the court erred, as at no point did the voluntary employment council cease to exist. It existed as before and continued to exist as such after the enactment of section 56 under the new Labour Amendment Act No. 11 of 2023. What is apparent from the summary of the submissions made before the Court is that the parties to the appeal did not wholly submit to the import of the repeal and re-enactment of section 56 of the Labour Act (28:01). Lesson learned: Parties must assist the Court,” said Matsikidze

He also argued that the finding of the Court would have required the Court to join the Registrar of Labour, the Minister of Labour and the Attorney General, and the DGL judgment might have been different.

“However, the ratio decision of DGL judgment, in our respectful view, does not stop all NECs from operating as such or making determinations of the various designated agents to be a nullity. Such a position would only be possible if all employment councils were a party to the suit,” he added.

Another labour law expert Caleb Mucheche said the High Court ruling had the potential to create some far reaching serious practical challenges and potential paralysis of labour dispute resolution by way of making null and void any determination by a Designated Agent (DA) employed by a the old voluntary employment councils, for the period from 14 July 2023 when Labour Amendment Act No. 11 of 2023 was passed as law by the President and Parliament of Zimbabwe up to 15 November 2023 when that judgment was passed.

“Suffice to mention that the reasoning by the Labour Court is that the repeal of the old section 56 of the Labour Act which created voluntary employment councils legally means that a designated agent who was employed by a voluntary employment council automatically ceased to have jurisdiction over labour disputes by operation of the law, with effect from 14 July 2023 when that old law was repealed. There was no automatic legal transition and acquisition of jurisdiction by a designated agent from being employed by a voluntary employment council to being employed by the new statutory employment council created by the new section 56 of the Labour Act ushered by Labour Amendment Act No. 11 of 2023.

He said the new statutory employment council created by the new section 56 of the Labour Act is legally different from the old voluntary employment council which was abrogated or outlawed by the law on 14 July 2023.

He asserts that any labour determination, decision or dispute settlement by a designated agent employed by the former voluntary employment council without a new contract of employment under the new statutory employment council from 14 July 2023 to the present date until the statutory instrument is legally operationalised, is under legal spotlight and a heavy cloud as it may be up in smoke if contested, challenged or impugned by any aggrieved party as a legal nullity or null and void ab initio.

Mucheche said DA’s now require new contracts of employment from a statutory employment council as the employer and new authority, mandate or credentials from the government of Zimbabwe’s Ministry of Public Service, Labour and Social Welfare to exercise jurisdiction over any labour dispute under the new statutory employment council created by section 56 of the Labour Act.