Unfair Dismissal Under the Labour Act [Chapter 28:01]: The Procedural and Substantive Requirements

Introduction

The Labour Act [Chapter 28:01] (the Act) is the primary legislation governing employment relations in Zimbabwe. The law of unfair dismissal has undergone significant development through amendments to the Act and the decisions of the Labour Court and Supreme Court of Zimbabwe.

The Statutory Framework

Section 12B of the Act prohibits unfair dismissal and sets out the grounds on which a dismissal may be found to be unfair. A dismissal is unfair if:

• It is not for a valid and fair reason related to the employee's conduct, capacity, or the operational requirements of the employer
• The employer did not follow a fair procedure before dismissing the employee

Procedural Fairness

The Act and the model codes of conduct registered with the National Employment Councils require employers to follow a fair disciplinary procedure before dismissing an employee. The minimum requirements are:

1. A written notice of the charges against the employee
2. A hearing at which the employee has the opportunity to respond
3. A decision by an impartial presiding officer
4. The right of appeal within the organisation

Substantive Fairness

The dismissal must be for a valid and fair reason. The Act recognises three categories of valid reasons:

• Misconduct: Conduct that is inconsistent with the employment relationship
• Incapacity: Inability to perform the duties of the position
• Operational requirements: Genuine retrenchment based on the employer's operational needs

The Role of the National Employment Councils

Most sectors of the Zimbabwean economy are covered by registered National Employment Councils (NECs), which have their own codes of conduct and dispute resolution procedures. Practitioners must be familiar with the applicable NEC code before advising on disciplinary matters.

Jurisdiction of the Labour Court

The Labour Court has exclusive jurisdiction over labour disputes, including unfair dismissal claims. Appeals from the Labour Court lie to the Supreme Court of Zimbabwe on questions of law.

Recent Developments

The Supreme Court's decision in Nyamande & Another v Zuva Petroleum (Pvt) Ltd SC 43/15 significantly affected the law of retrenchment, holding that the common law right to terminate a contract of employment on notice survived the amendments to the Labour Act. This decision was subsequently addressed by the Labour Amendment Act No. 5 of 2015.

Conclusion

Practitioners advising on employment matters in Zimbabwe must have a thorough understanding of both the Labour Act and the applicable NEC code. The interaction between common law and statute in this area remains complex, and specialist advice is essential.