The Supreme Court overturned Airzim’s botched mass
dismissals using three months’ termination notices and upheld the Labour Court
decision ordering reinstatement of the workers or payment of damages in lieu of
reinstatement. There was a brief period in 2015 when employers found, via
another court ruling, that they had a right to fire a worker on three months
notice, but Parliament then intervened to block that route, retrospectively,
and restore the position that had been accepted that while an employer could
dismiss permanent staff without cause, such as in a redundancy programme,
compensation would generally be a great deal more than just three months
salary.
But the airline argues that it has no capacity to pay or
compensate the more than 300 workers that it reinstated.
Airzim was placed under reconstruction in terms of the
State-Indebted Insolvent Companies Act in 2018, for being technically insolvent
and is encumbered with a US$341 million debt, 92 percent of which is owed to
Zimbabweans and Zimbabwean companies.
The workers had complied with the company directive to
report for work and collect their reinstatement letters after the company had
written to their lawyer Mr Caleb Mucheche advising his clients that they had
been reinstated in compliance with the superior court’s ruling.
However, when they complied with the company directive to
collect their reinstatement letters, they were also given letters dated
December 12 putting each reinstated worker on unpaid leave with effect from
December 7, 2020, until further notice.
In a letter to Air Zimbabwe dated December 30, 2020, Mr
Mucheche said the move was in flagrant violation of, and in contempt of the
Supreme Court judgment which ordered reinstatement or payment of damages.
“To add insult to injury, our clients have not been paid
their back pay arrears salaries and benefits accrued from July 2015 to 7
December 2020, which is one of the main bones of contention and reasons for our
clients’ High Court application for your (Airzim administrator Mr Reggie
Saruchera) removal as administrator filed on 24 December 2020 under case Number
HC 7667/20,” he said.
In their recent application filed at the High Court shortly
before being reinstated, the workers claimed that Mr Saruchera was grossly
mismanaging the company’s affairs and violating workers’ Constitutional labour
rights.
Mr Mucheche said Mr Saruchera’s conduct in sending his
clients on forced leave bolstered their grounds for his removal as
administrator.
“We demand that you immediately withdraw your illegal
letter dated 12 December 2020 purporting to place or send them on forced unpaid
leave by unconditionally reinstating them with their salaries and benefits
within 24 hours of receipt of this letter in compliance with the Supreme Court
ruling dated 7 December 2020.
“Failure of which our clients will take appropriate legal measures that include, but not limited to, a declaratory relief seeking among other things jail or fine or criminal recourse for contempt of the Supreme Court judgment plus punitive costs,” said Mr Mucheche.
Last month, Airzim complied with the Supreme Court ruling,
which made it clear that the retrospective statutory changes in labour law made
in 2015 after a large batch of workers were dismissed on notice, overrode the
common law enunciated in the Zuva Supreme Court judgment of that year, and
overrode it retrospectively, and permanent staff fired then on notice are
deemed to be protected and should be reinstated or compensated.
The judgment confirmed that the Labour Amendment Act of
2015 gave more protection to permanent contract workers who can no longer be
simply dismissed by an employer giving notice, usually three months’ notice,
and critically gave this protection retrospectively, so those fired between the
Zuva judgment and the enactment of the amendment were also protected.
The affected workers had greatly benefited from the legal
protection brought about by the action of the Government and Parliament of
Zimbabwe through retrospective enactment of Labour Amendment Act No. 5
Airzim’s reaction to the Supreme Court ruling is likely to
trigger a similar action in other companies that laid off employees following
the July 2015 Zuva judgment that allowed employers to dismiss staff on three
months’ notice. Some companies did, after the Labour Act was amended, did
convert the three-months notice to redundancy and used the recognised formulas
to compensate staff. Herald
0 comments:
Post a Comment