5

Duties of the employer

Introduction
The employer and employees have several duties under the employment relationship. We start
with the duties of employers, which are conversely rights of employees.
The duties of the employer arise from different but intertwining levels:
 the Constitution.
 fundamental duties in terms of the Labour Act.
 ordinary duties under principal labour legislation.
 duties under subsidiary legislation
 the individual contract of employment and the common law.

Let us briefly look at the common law and the Constitution as sources of duties.

Common law
The common law provides the background law, but most of its principles have now been
modified and codified under statute law. Bourgeois courts still use common law to ostensibly fill
in gaps or elaborate on statutory provisions. The principal duties of the employer under the
common law are:
 the duty to receive the employee into service or provide work
 the duty to pay remuneration
 the duty to provide safe working conditions
 the duty of good faith and to respect the employee’s dignity

Constitution
The Constitution has become an increasingly important source of labour law. However, this is
subject to limitations including its vertical application and the reluctance by the judiciary to rely
on the Constitution as a major source of law. Nonetheless, the Constitution, especially the
Declaration of Rights, contains a number of provisions relevant to the duties of the employer,
including duties to:
a. refrain from forced labour or slavery – s 14
b. refrain from inhuman and degrading treatment of employees – s 15. Hence a penalty in
employment codes like whipping would be unlawful.1
c. grant employees an opportunity to be heard and to adhere to the principles of natural
justice before embarking on anything that adversely affects employee’s rights, including
disciplinary action – s18.2
1
S v A Juvenile 1989 (2) ZLR 61 (S). In S v Collet 1978 (1) RLR 205 (RAD) the court held the
punishment of whipping an employee to be against public policy.
2
Marumahoko v Chairman of PSC & Anor 1991 (1) ZLR 27 (S); Holland & Ors v Minister of the
Public Service, Labour & Social Welfare 1997 (1) ZLR 186 (S); Taylor v Minister of Higher
Education & Anor 1996 (2) ZLR 774 (S) and Sithole v PG Industries (Zimbabwe) Ltd S-2-04

1
 d. refrain from unlawful discrimination, including on grounds of religion or conscience – ss
19 and 23.3
e. not to violate the employees’ freedoms of association, assembly, movement and
expression – ss 20, 21, and 22.4

Fundamental duties of employers under the Act

Introduction
Part II of the Labour Act creates what are titled fundamental rights of employees. One of the
principal objectives of the Act is the fulfilment of such rights, which are inversely fundamental
duties of the employer.
They are termed fundamental because they represent core values of the Zimbabwean labour
relations system, which are in turn derived from the fundamental values of its political system as
reflected in the Declaration of Rights and international human rights law. Three key values seem
to be projected:
 Protection and enhancement of the freedoms of assembly, association and trade unionism.
This shows that collective bargaining and industrial pluralism are the preferred system
and philosophy of labour relations in this society.5
 Protection of the inherent dignity and personal liberty of all human beings. 6
 Recognition of certain basic standards of work as being consistent with such human
dignity including the right to work,7 to just & fair labour standards and the right to equal
protection of the law to redress grievances. 8

The characterisation of such duties as ‘fundamental’ has immense implications for both the
substantive and procedural aspects of labour law. For instance:
- it creates a heavier burden and onus than normal on employers to justify any
conduct that prima facie violates such rights, with a presumption of violation unless
otherwise proved;9
- it acts as an interpretation guide as to the purpose of the Act and in balancing
conflicting demands and interests between employers and workers; and

3
Wazara v Principal of Belvedere Teachers College & Anor 1997 (2) ZLR 502 (H) and In re
Chikweche 1995 (1) ZLR 235 (S).
4
In re Munhumeso & Ors 1994 (1) ZLR 49; Nyambirai v NSSA & Anor 1995 (2) ZLR 1 (S);
Association of Independent Journalists & Ors v Minister of State for Information & Publicity S - 136
– 02 and Mudyanduna v Mukombero & Ors S-63-03
5
Derived from ss 21, 22 and 20 Declaration of Rights which are in turn based and recognized under: the
Universal Declaration of Rights, (UDHR) Arts. 20 & 23; the International Covenant on Civil and Political
Rights – Arts. 21 & 22; the International Covenant on Economic, Social and Cultural Rights – Art. 8 and
the African Charter on Human and Peoples’ Rights – Arts. 10, 11 & 12.
6
See ss 13, 14 and 15 Constitution and various international instruments prohibiting slavery, inhuman
treatment and forced labour such as: Arts: 3, 4 and 5 UDHR; Arts. 7 and 8 ICCPR; and Art. 4 ACHPR.
7
Note that the Supreme Court has ruled that s 16 (1) of the Constitution does not guarantee the freedom of
trade or economic activity – as such right is merely a liberty or power – Frontline Marketing Services
(Pvt) Ltd v GMB & Ors S 116 - 02
8
See ss 18 and 23 Const - and various international instruments provide for the right to use the law and
equality before the law and protection from discrimination such as – Arts. 7 and 10 UDHR; Art. 14 ICCPR;
and Art. 3 ACHPR, and those providing for just and favourable conditions of work including fair wages
that guarantee a decent living standard and equal remuneration for work of equal worth and equal work
opportunities between men and women and safe and healthy working conditions such as – Arts. 23, 24 and
25 UDHR; Arts. 6, 7 and 11 ICESCR; Art. 15 ACHPR and Art. 10 CEDAW.
9
As an example see s 5 (6a)LA

2
 - it means legislative provisions must be interpreted broadly, creatively, holistically
and purposefully where the effect is to realize rights, and strictly and restrictively
where the effect is to restrict rights. 10 Such an approach could lay the basis of an
expanded concept of legitimate expectation broader than the courts have hitherto
been prepared to accept.

Duty to respect employees’ entitlement to membership of trade unions

and workers’ committees
This is the first fundamental duty of employers, which is specified under Part 11. It is essentially
a duty to respect the workers’ right to organize.
The duty is essentially in two parts, namely the duty of employers to respect:
 the workers’ right to join and participate in trade unions and workers’ committees and
nullifying any provision of a contract that in which the employee waivers such rights – s
4 and POSB v Chimanikire & Ors HH-30-05.; Mavisa v Clan Transport
LC/H/199/2009 where workers representative declined permission to attend employment
council meeting but attended nonetheless having taken sick leave – held improperly
dismissed and that employer had no right to decline application for “pressure of work”
reasons – cited s14B (c) LA; s29(4a)LA and that Zim ratified - Workers Representatives
Convention (No. 135) and Freedom of Association Convention No. 87
 the workers’ right to democracy in the workplace, including the right of access of trade
unions to workers or any interference with workers’ committees – s 7.
The details of this duty are discussed in Chapter 18, but the Supreme Court has affirmed the
importance of this duty in a number of decisions – Jiah & Ors v PSC & Anor 1999 (1) ZLR 17
(S) and In re Munhumeso & Ors 1994 (1) ZLR 49 (S). BUT COMPARE WRONG DECISION
IN Muderede v ZESA LC/H/243/2009 relying on common law principle in Lanchashire Steel
P/L v Zvidzai & 3 Ors SC 29 – 1995 to justify selective punishment of workers leaders. –
DROP THIS AS FOOTNOTE – DANGEROUS PRECEDENT. “Arguments may be
addressed ... as to how unfair it is that the four respondents out of 40 who participated in the
unlawful collective ejob action should have ben selected for punishment, but such arguments
cannot absolve them of their breach of their statutory duty not to participate in sch action. It is
not uncommon for the alleged ringleaders in any unlawful gathering or action to be singled out
for punishment. If they are guilty it is not in law relevant that others may have also been guilty.”
NB IS IT IRRELEVANT IF THEY ARE TRADE UNION OFFICIALS/ WORKERS
COMMITTEE REPRESENTATIVES IN VIEW OF SEC 4LA/ ILO C NO 135; ILO CON NO
87 --- DISTINCTION HAS TO BE MADE HERE BETWEEN ORDINARY RINGLEADERS
AND THE LATER – THEY ENJOY STATUTROY PROTECTION AS IN JIAH CASE—AT
THE LEASR --- AND RELEVEANT IN TERMS OF UNFAIR DISMISSAL DOCTRINE

Duty to refrain from forced labour

Section 4A (1) provides that no person shall be required to perform forced labour. This is
consistent with s 14 of the Constitution and international treaties, including ILO conventions that
Zimbabwe has ratified.11
Very limited excerptions are provided, principally in relation to labour required as a result of a
court sentence, from members of disciplined forces in pursuance of their duties, or by way of
parental discipline or required under a state or public emergency. This duty has implications on
the law of overtime, in so far as overtime cannot be forced on workers, unless they have given
prior consent or by need of an emergency. 12

10
Capital Radio (Pvt) Ltd v Broadcasting Authority of Zimbabwe & Ors S-128-02
11
Forced Labour Convention, 1930, (C29) and the Abolition of Forced Labour Convention, 1957, (C105)

3
Duty to refrain from unlawful discrimination
At common law the employer has the prerogative of employing whomever they will on whatever
terms they deem fit as long as this is not in violation of the contract of employment or statutes. In
Malunga & Ors v PTC S -117 – 99 the court rejected a legitimate expectation for an employee
to be paid a certain wage because other employees, junior, were receiving even greater and
unjustified benefits. Also: Nare v National Foods Ltd LRT /MT/38/02.13
This gives employers immense powers to divide the working class by granting or conceding
privileges to sections to some and denying them to others, which undermines their potential for
solidarity and united action – their strongest weapon against capitalist exploitation. Historically
employers have divided workers on the basis of race, gender; ethnicity, national and religious
background.

Gender discrimination
One of the oldest and most perverse forms of has been discrimination against women. The
capitalist labour market is characterized by a vertical and horizontal gender discrimination against
women. Women are excluded from the skilled, permanent and higher paying jobs and
congregated in the low skill, temporary and low paying jobs, usually associated with domestic
care. Where they are in the same jobs with men, women are not paid the at the same level as men
or jobs that are dominated by women are degraded in their value and paid less compared to
similar jobs where men dominate.
Oppression of women predates capitalism, having evolved with the emergence of private
property, classes and the patriarchal monogamous family under the slave mode of production
about 10 000 years ago. It continued and was strengthened under feudalism in order to protect the
male-dominated family, which was the essential economic unit of production under that society.
Under both systems, male control of women’s sexuality, reproductive rights and labour was
driven by the desire to ensure continuous supply and a definitive inheritance transmission belt of
wealth from one male generation to the next. After all it is only women who, until recently, had
100 per cent certainty that their children were theirs. Men imposed the social cage of the
monogamous family based on severe restrictions on women’s sexuality, to ensure some degree of
certainty. An entire ideological superstructure was created, usually in the form of religious and
cultural norms, to justify the subordination and exploitation of women.
Capitalism continued with this trend but only selectively adopting key aspects that served its
interests, even as it proclaimed liberty and equality of all human beings before the law, God and
humanity --- a hypocrisy brutally exposed by Mary Wollenstonecraft. Gender discrimination
serves the interests of capitalists in a number of ways. It makes women the providers of unpaid
domestic care. Originally women were not allowed or encouraged to enter paid work, so that they
remained at home, taking care of the needs of the current and future generations of workers, the
ill and the elderly – all this as unpaid domestic labour. This was held to be proper by eminent
jurists. For instance the USA Supreme Court upheld university regulations that denied women the
right to enter law schools on the ground that their brains were too small to undertake the rigorous
studies required.14 Under colonial capitalism, women were forced to stay in the rural areas by
12
As in an instance where a concerted refusal to work overtime where there was no prior obligation under
the contract was held not to be an illegal strike - Matsoba & Ors v Fry’s Metals (Pty) Ltd (1983) 4 ILJ 107
(IC). See generally Chapter 16.
13
Port Elizabeth Municipality v Minister of Labour & Anor 1975 (4) SA 278 (E).
14
Bradwell v Illnois 83 US 130 (1873), which was only overturned 100 years later, held that “women’s
unique capacity for child-bearing gives them the unique capacity for child-rearing and house-making, and
renders them unsuitable by nature to the vicissitudes of the world of industry and trade”. See also
Incorporated Law Society v Wookey 1912 AD 623 refusing that a legislative term providing ‘persons’ with
the right to enter the legal profession included women – “mainly on the ground of immemorial practice of

4
various draconian legal and extra-legal measures, such as the requirement under the Master and
Servants Ordinance that a married woman could only enter and remain in a contract of
employment with the authority of her husband whilst “passes” were required in certain areas.
Women remained perpetual minors at law. Generally the racist colonial legal order was designed
to promote rather than to prevent discrimination. Anti-discrimination was limited such as the
provisions prohibiting race based trade unions under the 1959 ICA. 15
As capitalism expanded so did the need for labour, forcing the capitalists to draw an increasing
number of women into the labour market, a process that initially took place in the advanced
capitalist countries during and after World War Two. In the former colonial countries, the anti-
colonial struggles produced new constitutions with justiciable Bills of Rights including freedom
from discrimination. Further the massive rural to urban migration of the late 1970s and 1980s in
the era of neo-liberal economic policies sharply increased rural poverty pushing millions of
women into the urban areas, many of them as formal workers.
However this has happened in a way that perpetuates the oppression and exploitation of
women. The workplace is still structured in a manner that conceives of the standard worker as a
male, excluding the legitimate demands of women that arise from their different biological and
social functions. Women continue to carry double burdens as providers of paid labour in the
workplace and providers of unpaid labour in the house. They are thus pushed into part-time low
paying jobs that allow them to mix such double roles. At the same time such demands make it
difficult for women to play full roles in unions and workers’ committees, thereby perpetuating a
gender division of organized labour, which is exploited by employers.
The movement of significant numbers of women into the workforce, even if in such distorted
manner, provided them the platform to fight back that had not existed before, as it brought them
directly into the sphere of social and collective labour relations. 16 Over time it has become clear to
increasing numbers of male workers that the emancipation of the working class cannot occur
without the full participation of their female colleagues – as both are victims of a system that
places profits before human needs. Thus women have come to play an increasingly important role
in working class and democratic struggles are in many instances are providing heroic leadership
roles. It was only through such struggles that gains in women’s rights have been made, often in
the face of violent resistance by employers and the capitalist state. Such struggles include the
1912 Roses and Bread strike in the USA, the February 1917 Revolution in Russia, the civil rights
movement in the USA in the 1960s ignited by a brave young textile worker, Rosa Parks or the
heroic nurses strikes of the late 1990s in Zimbabwe which heralded the emergence of the first real
serious fight against the Mugabe neo-colonial government and eventually led to Act No. 17 of
2002.17
Not surprisingly, principles of gender equity and justice in the workplace have increasingly
become reflected in national law and international human rights law, even if not always
implemented by the capitalists. The primary international instrument is the Convention on the
Elimination of all Forms of Discrimination Against Women (CEDAW). Key demands of gender
labour justice have included: express prohibition of gender discrimination; affirmative action to
redress past historical and social discrimination; equal pay for work of equal worth; full paid
maternity and paternity leave; pregnancy related leave; family responsibility leave; full paid day

centuries, l am of the opinion that the word ‘person’ in these enactments must be construed in accordance
with that practice and must therefore be taken to mean men only.”
15
See s 47
16
Generally see – Littleton C., “Restructuring sexual equality” (1987) 75 California L.R. 1279 .
17
Which contains many progressive provisions on women’s rights. See generally Chitumwa S., “The legal
implications of the Labour Act, Act No. 17 of 2002 on the status of women at the workplace” (LLBS Hons
Dissertation, UZ – 2004) and Dube N, “A new era dawns: Zimbabwean female workers in labour
legislation” (LLBS Hons Dissertation, UZ – 2004). And for a review of the previous regime see generally -
Madhuku L, “Legislation on Gender and Employment in Zimbabwe” (Unpublished 1999)

5
full day care centres; and generally a workplace that guarantees the dignity of all workers
regardless of their sex but at the same time recognizes their different biological and social
functions and needs.
Whilst many reforms have been won, it is still possible to achieve more because, unlike the
previous modes, capitalism, as a system does not depend on the family as its basic unit of
production. But on the other hand the inherent drive for maximization of profits and the cyclical
periods of economic crisis mean that the gains made are continuously vulnerable to attack by the
capitalists. Thus full equality at the workplace will not become a possibility without socializing
the process of work and the means of production, so that these are geared to fulfilment of human
needs rather than profit.

Legal framework
Today employers are under a fundamental duty not to discriminate against employees or
prospective employees in regards to certain specified grounds. The legal framework for
discrimination law is provided under the Declaration of Rights and Part II of the Labour Act and s
18 of the Public Service Act for public servants.
Under s 5 (1) of the Labour Act employers are under a fundamental duty to refrain from
discrimination –
“against any employee or prospective employee on grounds of race, tribe, place of
origin, political opinion, colour, creed, gender, pregnancy, HIV/AIDS status or subject to
the Disabled Persons Act any disability referred to in the definition of ‘disabled person’
in that Act.”
Act No. 17 has expanded the specified groups in relation to which discrimination is prohibited,
consistent with ILO and international human rights law. 18 Some comments on a few of them are
apposite:
a) Gender and pregnancy – this has replaced ‘sex.’ Gender discrimination refers to the totality
of discrimination, which one suffers as a result of biological and social factors. Article 1 of
CEDAW defines the term ‘discrimination against women’ as “any distinction, exclusion or
restriction made on the basis of sex which has the effect or purpose of impairing or
nullifying the recognition, enjoyment or exercise by women irrespective of their marital
status, on a basis of equality of men and women, of human rights and fundamental freedoms
in the political, economic, social, cultural, civil or any other field.”
 This holistic definition goes beyond the traditional symmetrical definition of
discrimination, which restricts equality to equal treatment with men, and therefore fails to
recognize the different and legitimate needs of women arising out of their biological and
social differences.19
 College requirements forcing expulsion of pregnant students in a government college
were held to be unlawful discrimination under s 23, Wazara v Belvedere Teachers
College 1997 (2) ZLR 508 (H).20 But such requirements were held not to be
unconstitutional in relation to a private college, because s 23 only had vertical application
to the state and local authorities - Chaduka NO & Anor v Mandizvidza S -114 – 01. In

18
The principal ILO conventions include: Discrimination (Employment and Occupation) Convention, 1958
(C111) – (ratified); Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with
Family Responsibilities Convention, 1981 (C156); Home Work Convention, 1996 (C177) and the Part –
Time Work Convention, 1994 (C175) not ratified).
19
See generally: O’Regan C., “Equality at work and the limits of the law: Symmetry and individualism in
anti-discrimination legislation” in Murray C (ed) Gender and the New South African Legal Order (Juta,
1994); and Kentridge J, “Measure for measure: weighing up the costs of a feminist standard of equality at
work” in Murray C, ibid at 84
20
And in Mandizvidza v Chaduka NO & Morgenster College 1999 (2) ZLR 375 (H)

6
 the later case, the court held that such provision could still be held as invalid as being
contra bonos mores.
 Dismissal of an employee on notice during maternity leave has been held to be unlawful
discrimination – ARDA v Murwisi LC/H/90/2004
b) A “disabled person” is defined under s 2 of the Disabled Persons Act, Cap. 17:01as- “a
person with a physical, mental or sensory disability, including a visual, hearing or speech
functional disability, which gives rise to physical, cultural or social barriers inhibiting him
from participating at an equal level with other members of society in activities, undertakings
or fields of employment that are open to other members of society.” Section 9 of the Act,
prohibits discrimination against disabled persons in employment.
c) AIDS / HIV – Provisions prohibiting discrimination including compulsory tests are provided
in the Labour Relations (HIV & AIDS) Regulations, S.I. 202 of 1998.
d) Notable omissions include:
 Non- inclusion of the grounds of “marital status” and “family responsibilities” as is the
case under international law instruments. It can, however, be argued that these fall under
the ground of “gender.”
 Non-inclusion of the ground of “anti-union discrimination.” However, this is in fact
implied as of necessity by virtue of s 4 of the Act, providing it as a fundamental right –
Jiah and Ors v PSC & Anor 1999 (1) ZLR 17 (S).

In terms of s 5 discrimination is prohibited in relation to those already in employment and

applicants for jobs. The prohibition applies to employers and any relevant ‘person’ such
employment agencies and the media. Discrimination is prohibited in relation to all matters
relating to employment, including:
 advertisement of employment and recruitment for employment
 creation, classification or abolition of jobs or posts
 determination or allocation of wages, pensions, accommodation, leave, benefits or the
provision of facilities related to or connected with employment
 choice of persons for jobs, training, advancement, apprenticeships, transfer, promotion or
retrenchment;

Discrimination is defined broadly under s 5 (6) to mean –

“an act or omission which is likely to cause persons of a particular race … to be treated
– (a) less favourably or (b) more favourably than persons of another race … unless it is
shown that such act or omission was not attributable wholly or mainly to the race … of
the persons concerned.”
This means the Act prohibits both direct and indirect discrimination. Direct discrimination refers
to discrimination, which either favours or adversely affects one of the specified groups, for
instance the requirements targeting only pregnant persons or requiring only men. 21 In a case
before the SA Constitutional Court, it was held that the employer’s denial of a job as cabin crew
to an applicant because he was HIV positive was unfair discrimination in violation of the right to
equality, human dignity and fair labour practices and ordered his reinstatement. 22
Indirect discrimination on the other hand refers to an act, conduct or criterion which does not
directly involve or affect one of the specified groups, but which nonetheless results in
disproportionate impact of effect in relation to a specified group:

21
Reed v Reed 404 US 71 (1971) and Craig v Boren 429 US 190 (1976) overturning a century of
jurisprudence justifying direct gender discrimination.
22
Hoffman v SA Airways (2000) 21 ILJ 2357 (CC)

7
  Height and weight requirements have been held to be indirect discrimination against
women and Asians.23
 Certain educational qualifications requiring a high school diploma, which
disproportionately affected blacks but were not shown to be essential for the job, were
held to be racial discrimination.24 In Kombayi v Registrar – General 2001 (2) ZLR 356
(S) it was held that the Constitution allows discrimination on the grounds of qualification
for public office or statutory body.
 Hairstyle and clothing preferences in the case of In re Chikweche 1995 (1) ZLR 235, in
which the Supreme Court overturned a High Court judgment denying this author the right
to register as a legal practitioner because of his dreadlocks, on the grounds that was
discrimination on the basis of conscience – religion. Similar positions have been held in
other jurisdictions in relation to prohibitions of head-gear like turbans and beards for
Sikhs and Moslems.25
 Denial of benefits to part-time employees has been held to be gender discrimination as
women are disproportionately in this type of work, as has been age requirements
targeting women of certain ages – who might not be desired for instance because of
greater costs related to maternity and pregnancy.
 Compulsory medical tests for AIDS/HIV status may amount to indirect discrimination
against those who are AIDS/HIV positive.26
 Making pregnant women undertake jobs or tasks that imperil their health or the unborn
child, such as work at night or soon after giving births up to eight weeks, would amount
to discrimination on the basis of pregnancy.27

There is a presumption of unlawful discrimination whenever, prima facie evidence is shown to

have disproportionate impact – s 5 (6a). This affirms the strict duty on employers placed by
earlier American court decisions as opposed to unitarist decisions that sought to whittle down the
onus and burden on the employer.28

Defences available to the employer

The Act allows certain defences to a charge of discrimination and disqualifies others.
Legitimate defences: The following defences, which are mainly provided in terms of s 5 are
legitimate:
 Special measures-Where it can show that:
o it has provided ‘special conditions for female employees’ under the Act or any
other law. This is not meant to provide lower standards to males, but in fact is
derived from requirements under international instruments that special and
23
Shields v E Coomes (Holdings) Ltd (1978) ICR 1159 striking out such requirements for prison guards.
24
Griggs v Duke Power Co. 401 U.S. 424 (1971). See also Perera v Civil Service Commission (1983)
I.C.R. 428
25
In Dzvova v Minister of Education & Culture & Ors SC 26-2007 where it was held that the “the
expulsion of a Rastafarian from school on the basis of his expression of his religion through his hairstyle is
a contravention of sections 19 and 23 of the Constitution of Zimbabwe.” Also - Ojutiku v Manpower
Services Commission (1982) I.C.R. 661; and Mandla v Lee (1983) I.C.R. 385
26
See also s 49 (2) ZCTU Model CBA prohibiting such tests in a medical examination.
27
See Art. 7, Night Work Convention, 1990 (C171)
28
The standard under s 5 (6a) LA, follows the strict test was initially applied in Griggs v Duke Power Co.,
supra. But decisions that sought to water down the employer’s duty, and therefore impliedly rejected in the
Zimbabwean case, included Wards Cove Packing Co. v Atonio 109 Sct. 2115 (1989) which stated that
general prima facie evidence of disproportionate impact was insufficient but that the applicant had to show
how each practice of the employer was directly related to the alleged discrimination and to show that the
employer had other alternatives.

8
 favourable conditions may be provided to “meet the particular requirements of
persons, who for reasons such as sex, age, disablement, family responsibility or
social or cultural status are generally recognized to require special protection or
assistance”29 Examples include granting women: paid maternity leave, pregnancy
related leave, special hygienic facilities, leave for menstruation purposes, or
requirements that women may not work certain duties if pregnant or at night or
underground other than for women holding managerial or technical positions or
those in health and welfare services.30
o it distinguishes between employees of different genders in accordance with the
Act, any other law or in the interests of decency. This has been the basis on
which distinctions such as in uniforms or responsibilities have been given, such
as in prisons, security guards, hospitals and so forth where females can only work
in female environments and males vice versa. But in a world of changing norms,
values and advancing technology, the last ground on ‘interests of decency’ must
be read very restrictively if it is not to become a disguised platform for
continuation of discrimination against women for primary jobs. 31
o it is done in bona fide pursuit of the lawful objects of a men’s or boys’ or girls’
organization. Again there is need of caution here.
 Political religious – creed defence: if the act is done by a political, cultural or religious
organization in the bona fide pursuit of the lawful objects of such organization. For
instance church requires priests to belong to the specific denomination would be proper
or a teacher on religious education – but it would not be bona fide requirement in relation
to all other general subjects. In Mada v Reformed Church of Zimbabwe
LC/MS/05/2004 the employee was a Boarding Master at a church school and was
dismissed for having entered into a polygamous marriage which was deemed to be
“contrary to our Christian principles and moral values … as he was in charge of school
children and…was expected to be exemplary to them in the principles and values for
which the Mission was set.” The Court reversed the dismissal on the basis that it was
unduly discriminatory in so far as the principal duties of a boarding master were to keep
order but performance of such duty did not require that one leads a Christian life. The
Court observed that such a restriction may have been justifiable if the worker “was
required to conduct religious ceremonies as a pastor or priest (in which case) it may have
been necessary to match his deeds to his sermons…”
 Gender, race and disability affirmative action defence: If the employer is implementing
any employment policy or practice “aimed at the advancement of persons who have been
historically disadvantaged by discriminatory laws or practices” or “assisting disabled
persons.” This is consistent with international law and in particular refers to affirmative
action measures such as lower qualification or experience thresholds or longer probation
periods.32
 Commercial interest defence: This is the one favoured by bosses and which must be dealt
with decisively if anti-discrimination law is to have real teeth. An employer may cite
economic interests as a defence, but in restricted circumstances. In terms of s 5 (7) (e) of

29
Art. 5 of ILO C111
30
See Art 3, Night Work (Women) Convention (Revised), 1948 (C89) – (not ratified)
31
See Art. 4 CEDAW stating that special measures “shall in no way entail as a consequence the
maintenance of unequal or separate standards;” and Murray C., and Kagnas F., “Equality and culture in
South Africa’s Interim Constitution (1994)” V The Oxford International Review 17.
32
See Art 4 CEDAW, stating that such measures “shall be discontinued when the objectives of equality of
opportunity and treatment have been achieved;” and Pittard M., “Affirmative action programs for private
and public sector employees” (1988) 1 Australian J of Labour Law 85 – 91.

9
 the Act, any distinction, exclusion or preference in respect “of a particular job which
results in discriminatory effect shall only be allowed if “it is based on the narrowly
defined inherent operational requirements, needs and necessities of that particular job.’
o The wording of the section is very strict and restrictive using words like
“narrowly”, “inherent” and “necessities.” The employer has to show that its
business cannot do without such distinction or exclusion. As stated in one case,
“business necessity is the touchstone” and not mere business interests or profit. 33
o This strict interpretation is reinforced by s 8 (g), which stipulates that it shall be
no defence to prove that “it was in the business interests of the person charged to
commit the contravention and the presumption of unlawful discrimination and
express disqualification of certain defences.

Illegitimate defences: Certain defences are expressly disqualified under s 5 (8):

 That the person or prospective employee was not in fact taken or has left or has not left
employment of the employer concerned.
 The employee or prospective employee has been subsequently taken into employment in
circumstances that show s/he has not been discriminated against.
 The employer subsequently withdrew or did not fill the vacancy or is no longer
committing the contravention.
 The employee or prospective employee was party to the contravention or did not
complain about it.
 That it was in the business interests of the person or employer.

Remedies for unlawful discrimination

The Act provides several remedies for unlawful discrimination under s 5 (3) (4) & (5):
 Contraventions constitute unfair labour practices and criminal offences.
 There is strict liability whenever such contraventions have been made, regardless of the
rectification or cessation of such acts – s 5 (8).
 Provision of damages for both direct and indirect losses.
 Cessation and rectification orders.
 Instatement orders into employment notwithstanding that the vacancy in question has
been filled.

Critique and conclusion

The Labour Act has gone much further than colonial legislation in creating an anti-discrimination
legal framework. However, the experience locally, regionally and internationally is that such
legislation has not managed to substantially address the question of the horizontal and vertical
gender segregation of the labour market. The gender apartheid wall has substantially remained in
tact. This is not surprising arising out of both legal and extra legal factors including:
a) The first weakness has been the assumption that employers will voluntarily implement
affirmative action programmes. Employers want to keep labour costs as low as they can and
therefore have an inherent interest in maintaining division in the labour force, which allows
them to divide workers and minimise resistance. Unless there is a direct profit connection,
as in employing young women in sweatshops, or direct state sanctions, employers will not

33
Griggs v Duke Power, supra. This is in opposition to the loose neo-liberal standard used in Wards Cove
Packing Co. v, Atonio 109 Sct. 2115 (1989). The wording is derived from Art. 1 of ILO C 111 which refers
to “any distinction, exclusion or preference in respect of a particular job based on the inherent
requirements” of a job.

10
 voluntarily abandon positions that assure their dominance over labour in the process of
work.
b) The enforcement machinery of the state in relation to inspections and prosecutions of errant
employers is weak and reluctant, except in rare publicized cases.
c) The structure of the law is unhelpful. The law is structured in a symmetrical and individual
manner. To prove discrimination, women for instance have been required to prove a male
comparator – in other words that they are not being treated equally as males. But sometimes
women do require to be treated differently in order to take into account the differences in
their biological and social contexts.
d) The law assumes that the party who will mobilize its provisions is the affected individual,
thus decisions denying locus standi to workers committees. Yet individuals more often than
not will lack the confidence, courage, knowledge or resources to mobilize the law, unless
these are managerial employees – for the most part, a tiny male dominated portion of the
workforce. What are required are proactive general measures and policies affecting strata of
employers.
e) The sanctions of the law are not sufficient. What are required are general policies and
measures that affect employers were they feel it the most – profits. This can be done in
several ways including:
 Compulsory quotas for employers of certain sizes in relation to groups that have suffered
particular severe discrimination such as women and the disabled. For instance in Norway
all listed companies are now required to have a quota of 40% of females on their boards
or face winding down orders.
 Compulsory company policies, work-plans and measures to achieve balancing of the
workforce, in particular gender and disability.
 Linkage of thresholds of tax liability to fulfilment of the above measures.
 Linkage of award of state and local authority contracts to the above.
 Provisions allowing worker to take over of companies that are in continuous or serious
violation.
 Insufficient compliance with SADC Protocol; CEDAW; and ILO C 111: Give examples –
refer to Women’s Law notes.

Duty to respect the employee’s right to democracy

In terms of s 7 employers are under a fundamental duty to respect the employees’ right to
democracy in the workplace. This means:
 The employer is under a duty not to hinder employees from forming or conducting any
workers’ committee or to threaten employees with reprisals for any lawful act taken to
advance her / his rights or interests.
 The employer shall permit a labour officer, a representative of any appropriate trade
union or employment council to have reasonable access to the employees at their place of
work during working hours to advise them on labour law, formation or running of
workers’ committees or trade unions and the protection or advancement of the
employees’ rights.
 Providing reasonable facilities and access to the above persons.
The right of employees to do this is subject to it not causing “any disruption of normal production
processes, or any interference with the efficient running of an undertaking or industry …”
The above means there is no absolute right of access by employees, but neither can there be
absolute perpetual denial of access. The right presupposes some degree of interference. What
must be done is to balance the two competing rights of the employer to production and the
employees to democracy at the workplace. Therefore, the employer must negotiate in good faith

11
with the employee’s representatives to come up with a mutually agreeable arrangement. This
generally places an obligation on the union representatives or other officials to give reasonable
notice of the meeting and to hold it at a time that causes minimum disruption to normal
production.

Duty to adhere to fundamental fair labour standards

The fourth duty of the employer is to adhere to fundamental fair labour standards as set out in s 6
of the Labour Act. One of the purposes of the Act is to promote fair labour standards. The concept
of fair labour standards is now entrenched in international law. The principal fair labour standards
found under international law are:
 Equal protection of the law and protection of workers from discrimination. 34
 Recognition of the right to organize and the right to collective bargaining.
 The right to work, to free choice of employment and just and favourable conditions of
employment including the right to rest and leisure.
 To a just, fair and favourable remuneration ensuring the worker and her/his r family a
decent living worthy of human dignity.
 To equal pay for equal work, equal work opportunities between men and women, and
generally women being guaranteed conditions of work not inferior to those enjoyed by
men.
 To safe and healthy working conditions.35
The fair labour standards under Zimbabwean labour law mirror those under international law. The
standards under the Act are divided into two categories, namely the fundamental ones under Part
II and those specified in the rest of the Act.
The s 6 fundamental fair labour practices which the employer must adhere to are the:
 Duty to pay the remuneration prescribed under the law.
 Duty to adhere to the prescribed working hours.
 Duty to comply with prescribed conditions of employment under the law.
 Duty to comply with prescribed laws and conventional standards on employees’ safety
and health.
 Duty not to hinder or prevent any employee from or penalizing her / him for seeking
access to any lawful proceedings in order to advance her / his rights.

Duty to adhere to prescribed maximum working hours

Section 6 (1) (b) creates a fundamental duty on the employer not to “require an employee to work
more than the maximum hours permitted by law or by agreement made under this Act for such
employee.”
This duty is a modification of the common law duty of the employer to receive the employee
into service. What has been varied is the common law contractual freedom of the parties to
contract on any hours they wish. Although the Act itself does not provide the maximum hours to
be worked, there are a number of provisions in the Act and subsidiary legislation regulating
working hours:
 Under s 14C employees are entitled to not less than twenty-four continuous hours of rest
each week, either on the same day of every week or other agreed day.

34
Arts. 7 and 10 UDHR; Art. 14 ICCPR and Art. 3 ACHPR
35
Generally see Arts. 23, 24 and 25 UDHR; Arts. 6, 7 and 11 ICESCR; Art. 15 ACHPR and Art. 10
CEDAW

12
  Every employee shall be granted leave of absence during every public holiday as gazetted
under a notice in terms of the Public Holidays and Prohibition of Business Act, Chapter
10:21.36
 Virtually, every CBA provides for minimum hours of work. The ZCTU Model CBA
recommends a maximum of eight hours per day, subject to the nature of the work and 40
hours per week and that no employee shall be required to work continuously for more
than five hours without being given a rest period of not less than an aggregate of one hour
paid break and that breast-feeding mothers shall be afforded two hours each day of
breast-feeding for a period of 12 months, and one hour thereafter for a period of 6
months.37 Note that in Kurawega v Norton Bakery S - 80 – 95 the court upheld the
unilateral variation of working hours upwards by an employer because this still fell under
those prescribed by the CBA.
 Mothers with suckling babies are allowed an aggregate of one hour off a day in the first
six months of the baby’s life under s 18 (8)LA.
The term ‘hours of work’ refers to ‘the time during which the persons employed are at the
disposal of the employer – it does not include rest periods during which persons employed are at
the disposal of the employer.’38 In Lever Bros v Bimha & Ors S 85 – 04 Gwaunza JA ruled that
the term hours of work under a CBA did not include the thirty minutes break the workers were
allowed per shift, even if the they spent the time at the workplace. The workers could use it for
their own purposes such as taking a nap, having refreshment or personal business, but they could
not be paid overtime for it. In Catering Employees Association of Zimbabwe v ZHCWU &
Anor 2001 (2) ZLR 388 (S) the arbitrator ruled against the splitting of shift hours in the hotel
industry –a decision which was not altered on appeal.
Overtime is not compulsory unless provided for in the CBA 39 or regulations, contract or it is a
situation of an emergency, force majeure or arising out of a general interruption of work due to
things like interruption of power, light, heating or water. In these circumstances, international
labour standards allow the increase of working hours to make up for the lost hours up to a total
aggregate of 30 days in a year and up to 10 hours per day. 40 In Philemon v OK Bazaars S-22-95
the court reversed the dismissal of an employee who had refused to work an extra fifteen minutes,
as such extra work was not a requirement in her contract and neither was it an emergency. In
Zimbabwe Alloys Ltd v Muchohoyi SC 7/06 the employee agreed to stay over time, but
subsequently left early without informing his supervisor and was dismissed despite his plea that
he was hungry and tired. The Labour Court accepted this plea under s 12B (4) of the Act, but this
was reversed on appeal, relying on the existence of two past warnings.
The above provisions are aimed at compliance with international treaties, especially ILO
conventions. These provide for: a maximum of 48 hours a week; an eight hour day up to a
maximum of ten hours; 24 consecutive hours of rest in every period of seven days; and regulation
of night time work, including prohibition of requiring women to work at night unless they are in
technical, managerial employees or in the health and welfare services. 41 These conventions are the
result of the massive struggles that the international proletariat has fought over the last century in
36
For instance the public holidays for 2005 are set out in GN 326/2004 as: New Year’s Day (1 January);
Good Friday (9 April); Easter Monday (12 April); Independence (18 and 19 April); Workers’ Day (1 May);
Africa Day (25 May); Heroes’ and Defence Forces Days (9 and 10 August); National Unity Day (22
December) and Christmas Day and the day following (25 and 26 December).
37
See s 13. Also s 26 provides that every employee shall be entitled to 48 hours of rest each week and that
upon her / his request an employee may take 3 days off for every day of a public holiday worked.
38
See Art. 2 of ILO C 30
39
As an example see s 16 of the ZCTU Model CBA providing a discretion on an employee to refuse to
work overtime and that where this is worked, the employee be paid at a rate of no less than twice the
normal hourly rate and thrice on a Sunday or public holiday.
40
See for example Art 5 of ILO C 30

13
the face of resistance by the state and the judges, to reduce the maximum number of working
hours, as much as possible, and thereby reduce the rate of exploitation and reduce the pool of the
unemployed.42

Duty to comply with prescribed conditions of employment

Under s 6 (1) (c ) an employer has a fundamental duty “to provide such conditions of employment
as are specified by law or as may be specified by agreement made under this Act.”
This is a requirement of the employer to receive the employee into service in terms of the
employment contract and also the CBA and any relevant regulations. What are “conditions of
employment?” [In Railway Artisans Union & Ors v Railmed & Ors HH 111-2008, Gowora J
held: “Conditions of employment in the present context means simply the terms, either
express or implied, contained in a contract of employment”.43]
This provision seeks to comply with international labour standards requiring that employees be
given “just and favourable working conditions” consistent with inherent human dignity.
The duty is a modification of the common law duty of the employer to provide work or receive
the employee into its service in terms of the contract. 44 Under common law the employer is not
required to provide actual work, but to pay the due remuneration – Commercial Careers College
(1980) (Pvt) Ltd v Jarvis 1989 (1) ZLR 344 (S). In Kandembiri v DDF & Anor HH 6 – 98, a
driver was involved in an accident causing damages to the employer’s vehicle. The bosses
suspected that the accident was caused by negligence but had no evidence, and in an apparent
effort to frustrate the worker, stopped giving him actual work, although he continued to receive
his wages. The employee was dismissed when he stopped coming to work. The court held the
employee to have repudiated his contract. See also Dandavare & Ors v ZOU HH 49 – 02.
There are limited circumstances under common law when an employer is required to provide
actual work such as when the employee’s remuneration depends on actual work being given as
when the employee is paid by way of commission or the job provides an opportunity for
advancing the employee’s professional or artistic development or the employer had undertaken to
train the employee. In Standard Chartered Bank v Matsika 1997 (2) ZLR 389 (S) an employer
who denied a reinstated employee actual work, was held to be in breach because the employee’s
remuneration depended on actual work. In Muzondo v UZ 1981 ZLR 33 the employer was held
liable to pay special damages including for lost income from potential published work to a
lecturer whose contract had been terminated prematurely.
At common law the employer has the right to unilaterally vary the terms of employment such
as the duties being done by the worker, the location of work or department or to facilitate
disciplinary investigations, provided such variation is not substantially different from the contract
job description or does not result in substantial downgrading of the status and dignity of the
employee or is in breach of a legitimate expectation of the employee or is not unlawful
discrimination. [in Taylor v Minister of Higher Education &Anor 1996 (2) ZLR 772 (S) court
reversed dismissal of a college lecturer who had refused to be transferred from BUlawyo to Haare
without being given notice or right tot make representations – held to have a legitimate
41
See Hours of Work (Industry) Convention, 1919 (C 1) Art. 2 and 3; Hours of Work (Commerce and
Offices) Convention, 1930 (C30) – Art 3; Hours of Work and Rest Periods (Road Transport) Convention,
1939 (C67) – Art. 5; Weekly Rest (Industry) Convention, 1921 (C14) Art. 2 – ratified; Weekly Rest
(Commerce and Offices), 1957 (C106) and the Night Work Convention, 1990 (C171)
42
France now provides for a 35 hour week. In the USA these struggles resulted in the murder of several
workers leaders in Chicago in the 1880s, an even which became commemorated on May 1 as Workers Day,
although up to this day the American ruling class refuses to recognize this date, fearful of the memories it
may raise in the current generation of workers. In Lochner v New York 198 US 45 (1905) the court sided
with bosses in declaring unconstitutional state legislation prescribing a maximum 8 hour working day.
43
Citing OK Bazaars (1929) Ltd v Madeley NO & Anor 1943 T.P.D. 392
44
Pett v BSA Co. 1911 AD 194

14
expectation to be heard before transferred. Followed in Guruva v Traffic Safety Council of
Zimbabwe SC 30-2008 [Cheda JA] where court held that an employee had the right to be heard
before such transfer because of the audi alteram partem rule ---, and in that case where initially
told to transfer before being given chance to be heard, held the subsequent consideration of the
letter of representation by Appellant sufficient to cure initial defect taking into account that –

“It must be accepted that the right to transfer an employee from one place to another is the prerogative of the employer.
It is the employer who knows better where the services of an employee are required. The employer’s discretion in
determining which employee should be transferred and to which point of the employer’s operations is not to be readily
interfered with except for good cause shown.

Good cause in the circumstances, while not easy to define, would include such matters as unfounded allegations,
victimization of the employee and any action taken to disadvantage the employee.” [further that]: “The employee who
undertakes to work for an employer whose business is carried out at different places takes the risk of being sent to
perform services for the employer where ever such services are required unless the employment contract stipulates that
he is to be employed and remain at a specific place only.”45

[But legitimate expectation principle applies only to the employer-employee relationship and not
general contractual relationships involving a third party who is not the employer – Railway
Artisans Union & Ors v Railmed & Ors HH 111-2008.] In ZUPCO v Mabande & Anor 1998
(2) ZLR 150 (S) the court upheld the dismissal of driving instructors who had defied an
instruction by the employer to drive buses in replacement of striking bus drivers, on the ground
that this was reasonably within the scope of their job descriptions. Similarly in Masawi v Silver
Ranch (Pvt) Ltd LC/H/38/2004 the Court upheld the dismissal of a headwaiter who had refused
to serve delayed refreshments to guests in the absence of the ordinary waiters, on the ground that
this reduced his status in the eyes of his subordinates and guests. In Chimenya v Associated
Textiles (Pvt) Ltd S - 201 – 94 the court upheld the right of the employer to transfer an employee
from one department to another to facilitate misconduct investigations. In Muwenga v PTC 1997
(2) ZLR 483 (S) it was held that the right to promote an employee was a privilege of the
employer and that therefore the refusal to promote an employee into a position he had acted in for
several years was not an unfair labour practice. 46
On the other hand in Muchakata v Netherburn Mine 1996 (1) ZLR 53 (S) where a personnel
officer fed up with an overload of work from a security officer who was notorious for arraigning
workers before the disciplinary committee, ordered him to sit in the disciplinary committee so
that he could see for himself the overload he was causing. When he refused he was dismissed for
refusing to obey a lawful command and failure to provide service. The court reversed the
dismissal as substantial variation. In Mutsaka v Mutare Board & Paper Mills LC/MC/07/2003
an ‘issuing clerk,’ in one department whose job description included general clerical work, selling
of scrap, orderly packing of stock and ‘any other work as delegated by the Stores Controller’, was
transferred to another department, with a new title of “Yard Clerk”, whose duties included to
“accompany driver on deliveries and collections.” He refused to sign the new job description or
to take the transfer, stating that this amounted to demotion, as it would make him more of a
messenger than a clerk. He was dismissed for insubordination. The court reversed the dismissal as
45
Cited Ngema Chule v Minister of Justice; Kwazulu & Anor 1992 (4) SA 347
46
Or even if the persons promoted are of lesser qualification or performed worse in the interview –
Zinyemba v NRZ LC/H/295/04; Mudarikwa & Mwaziya v Director of Housing and City of Harare SC
56-2006[ where Appellants acted satisfactorily for thre years; 80% of other persons promoted did nothave
the new degree requirement] and City of Gweru v Munyari SC 15/05; or that junior employees are
receiving higher wages - Malunga & Ors v PTC S 117 – 99 and Nare v National Foods Ltd
LRT/MT/38/02. See also PTC Managerial Employees Workers Committee v PTC & Anor 1998 (1)
ZLR 444 (H) and Chiremba (duly authorized Chairman of Workers Committee) & Ors v RBZ 2000
(2) ZLR 370 (S); and Kurawega v Norton Bakery S - 80 – 95.

15
substantial ‘unilateral variation of the contract.” 47 In Air Zimbabwe (Pvt) Ltd v Zendera & Ors
S - 125 – 01, the employer unilaterally reduced the meal allowances of flight attendants on the
basis of an agreement with another set of employees – pilots. Chidyausiku CJ held the variation
to be unlawful, as the mandate of the flight attendants had not been given. In another case where a
chief accountant who reported directly to the head of a department, had subordinates and flexible
working hours was reassigned to work in a pool of accountants without similar authority or
flexibility as before but on the same salary, was held to have been unlawfully dismissed because
of the substantial downgrading of his status.48 This is known as constructive dismissal. In
Kanonhuwa v COTTCO 1998 (1) ZLR 68 (H) a female employee recently married requested
for and was granted a transfer from one town to another to join her husband. But shortly
thereafter she was instructed to return to the first town, and refused and was dismissed. The court
reversed the dismissal as a violation of the employee’s legitimate expectation. In Taylor v
Minister of Higher Education & Anor 1996 (2) ZLR 774 (S) a senior college lecturer for ten
years in Bulawayo was transferred to Harare without any prior consultation. He refused and was
dismissed. The court reversed the dismissal on the basis that public servants had a legitimate
expectation to be consulted before any decisions adversely affecting them. 49 Note also that the
courts have rejected unilateral impositions in collective bargaining situations - Olivine Industries
(Pvt) Ltd v Olivine Workers’ Committee 2000 (2) ZLR 200 (S) and Old Mutual v Old Mutual
Workers’ Committee S - 257 – 96.
These positions of common law have been significantly modified by Act 17 of 2005:
 The requirements of s 2A (1) of promotion of fair labour standards and social democracy
and justice in the workplace, compel that each person be given actual work. This is
consistent with inherent human dignity, as work not only has economic but also social
and psychological functions for every employee.
 The requirement of promotion of employees participation in decisions that affect them
under s 2A (1) and s 25A(5) and (6) means that employers may no longer unilaterally
effect changes, without consulting workers’ representatives – Martindale School v
Jongwe LC/H/165/04, where the dismissal of an employee who had refused to sign for a
unilateral change was reversed.
 The reluctance of the courts to apply the legitimate expectation doctrine broadly is no
longer justifiable as the concept of fair labour standards and social justice imply
entitlements going beyond contract. The Act itself has provisions drawn from the
principle of legitimate expectation such as protecting employees from constructive
dismissal under 12B(3). *** IN Guruva v Traffic Safety Council of Zimbabwe SC 30
-2008 court accepted the authority of the Taylor case but proceeded to distinguish it.]

Duty to provide safe and healthy working conditions

Employers have a duty to ensure that they provide safe and healthy working conditions under the
common law and statutes. However, in the drive for profits employers have historically tried to
minimize their duty to the least possible, often at the expense of life and limb of workers. The
courts and common law have come to the aid of employers imposing a light duty of liability on
the employer including use of vague concepts derived from delict law like contributory
47
For a patently erroneous decision see Mutyaka v Reformed Church in Zimbabwe LC/MC/05/2003
where Makamure P upheld the dismissal of a plumber – electrician who had refused to transfer from one
mission station to another where he would be a “general hand” / assistant cook, because he saw this as a
degrading demotion. The Court he should have complied with the instruction anywhere and challenge later
– but at law there is no obligation to comply with an unlawful instruction.
48
ibid.
49
Although the court was at pains to stress that it was not opening the flood-gates for the legitimate
expectation doctrine. Thus the doctrine was denied in - PTC v Managerial Employees Workers 1998 (1)
ZLR 444 (H); Malunga & Ors v PTC S 117 – 99 and Nare v National Foods Ltd LRT/MT/38/02

16
negligence to deny responsibility. Hence, a major struggle of workers has been one for higher
standards at the workplace. We discuss this in detail in Chapter 19.
The employer has a fundamental duty under s 6 (1) (d) LA not “to require any employee to
work under any conditions or situations which are below those prescribed by law or by
conventional practice of the occupation for the protection of such employee’s health or safety.”
The duty is a codification of common law and is also derived from international labour
standards including ILO conventions.50 Under the common law an employer has a duty to ensure
reasonable care for the safety of workers, including the provision of safe premises, machinery and
systems of work, taking into account the actual working conditions of the worker including the
dulling of her senses through repetition, familiarity and exhaustion. In Mushaya v Glens
Corporation 1992 (1) ZLR 162 the court rejected the dismissal of a long distance driver for
causing an accident, when he had been compelled to drive when he was exhausted. The employer
is vicariously liable for acts resulting in harm from co-employees.
The worker is under the duty to exercise due care, otherwise the employer’s liability will be
reduced to the extent of the worker’s contributory negligence – In Mpande v Forbes and
Thompson (Bulawayo) (Pvt) Ltd & Anor 1980 ZLR 302 a miner was paralysed from the neck
downwards in a work accident. Gubbay J (as he then was) rejected a claim for additional
compensation under occupational health legislation on the basis that the employee had
purportedly contributed to the accident by not taking sufficient precautions. In Sibanda v
Independence Gold Mining Zimbabwe (Pvt) Ltd & Anor HH -139 – 03 Smith J held that the
NSSA compensation scheme did not provide for payment for pain and suffering and that the
worker could not claim additional compensation because of failure to comply with the formalities
under the notice.
Workers in inherently dangerous jobs are assumed at common law to have voluntarily
assumed risk of reasonably foreseen dangers that may befall them, and the employer is not liable
if it has taken reasonable steps to prevent harm – the volenti non fit injuria doctrine. In
Kwaramba v Bain Industries (Pvt) Ltd S 39 – 01 a welder developed a skin disease, which her
doctor said was probably due to heat from her workplace. When she refused to continue working
in such environment she was dismissed for failure to provide service and the court upheld the
dismissal.51
Starting with s 6 (1) (d) of the Act, the common law duty is enhanced by statutory provisions.
As this is a fundamental duty, it means that the common law principles that create a light duty on
employers must be read restrictively. The Act even authorizes employees to go on strike without
heed to formalities in order to redress an immediate occupational hazard – s 104 (4).
Harmful child labour and the employment of “any person under the age of eighteen years to
perform any work which is likely to jeopardize that person’s health, safety or morals” are
prohibited under s 11(4) and international law. 52

50
Ratified ones include: the Occupational Safety and Health Convention, 1981 (C 155); Prevention of
Major Industrial Accidents Convention, 1993 (C 174); Safety and Health in Mines Convention, 1995 (C
176); Asbestos Convention, 1986 (C 162); Chemicals Convention, 1990 9C 170); Equality of Treatment
(Accident Compensation) Convention, 1925 (C 19) and the Underground Work (Women) Convention, 1935
(C 45). Not yet ratified but important is the Maternity Protection (Revised) Convention, 2000 9C 183)
which has provisions for the protection of pregnant women and un born children from various workplace
hazards. Most of them though may be incorporated by the s 5 prohibition of discrimination against pregnant
women.
51
SARH v Cruywagen 1938 CPD 219
52
See the Labour Relations (Employment of Children and Young Persons) Regulations, S.I. 72 of 1997 and
- the Worst Forms of Child Labour Convention (C 182); the African Charter on the Rights and Welfare of
the Child (1990), Art. XV and the Convention on the Rights of the Child, Art. 32

17
NB FOR A MUCH BETTER COMPARISON IN RELATION TO WORKERS COLLECTIVE
RIGHTS VZ THIS DUTY SEE NAMIBIAN EQUIVALENT, Labour Act, 2007
CBAs provide further statutory enhancement of the duty. The ZCTU Model CBA provides a
comprehensive framework under ss 48 and 49 including the establishment of safety committees at
each workplace comprised of equal representation from the employer and workers. The
committees ensure compliance with workplace safety legislation and standards.
Finally, there are various other workplace safety laws employers must comply with:
 The National Social Security Authority (Accident Prevention) (Workers Compensation
Scheme) Notice No. 68 of 1990. This creates general duties on employer to ensure health
and safety of employees.
 The Factories and Works Act [Chapter 14:08] and the Hazardous Substances and Articles
Act [Chapter 15:05] provide for minimum requirements of factory sizes, ventilation,
labelling and protective clothing.
 Protection from Smoking (Public Health) (Control of Tobacco) Regulations, S.I. 264 of
2002 prohibit smoking in enclosed public places including workplaces.
 Labour Relations (HIV & AIDS) Regulations, S.I. 2002 of 1998 prohibit discrimination
on the grounds of AIDS / HIV and require protective clothing and other safety measures
to prevent the spread of HIV / AIDS at the workplace.

Duty of equal protection of the law

Under s 6 (1) (e) the employer has a duty not to “hinder, obstruct or prevent any employee from,
penalize him for, seeking access to any lawful proceedings that may be available to him to
enable him lawfully to advance or protect his rights or interests as an employee.”
This provision is derived from international labour standards, which require that every
employee be entitled to equal protection of the law in the redress of grievances, including seeking
assistance from trade unions. It must be read in conjunction with the employer’s duty to respect
the employees’ right to democracy under s 7. The right to equal protection of the law is central to
the concept of a law-governed society as under social liberal democracies.

Duty to pay the prescribed remuneration and benefits

The final fundamental labour standard that the employers must comply with is the duty to pay the
prescribed remuneration under s 6 (1) (a). This reads:
“No employer shall pay any employee a wage which is lower than that to fair labour
standard specified for such employee by law or by agreement.”
Wages may be set in terms of minimum wage regulations under s s 17 (3) (a) and 20 of the Act or
under statutory collective bargaining agreements. In Tel-One v Nyambirai & Ors LC/MS/09/04
failure to pay contract workers the minimum wages stipulated in the CBA was held to be an
unfair labour practice. In S v Lyons Brooke Bond 1981 ZLR 384 an employer was convicted for
failure to pay a statutory minimum wage.
The section is a modification of the common law duty of the employer to pay her/his
employees their wages in terms of the agreement – NRZ v National Railways Contributory
Fund 1985 (1) ZLR 16 (S).53 The term remuneration is broader than wages. 54 Remuneration
includes the wages plus the allowances, bonuses and other benefits that the employee receives. At
common law wages are distinguishable from allowances and bonuses. The employer has a duty to
pay wages, but not necessarily bonuses and allowances, unless these have become vested. In
ZIMTA & Anor v Chairman, PSC & Ors 1997 (1) SA (9), S-70-96, (the bonus case), the
majority of the court upheld the removal of a bonus by the state from its employees through a
statutory instrument amending an earlier one, providing the right to the bonus. It was held that the
53
Gladstone v Thornton’s Garage 1929 TPD 116
54
Nash v Golden Dumps (Pty) Ltd 1985 (3) SA 1 (A)

18
payment of bonuses and allowances is discretionary. 55 In Chisipite School Trust (Pvt) Ltd v
Clarke 1999 (2) ZLR 324 (S) the court upheld the right of an employer to withhold a housing
benefit to an employee on suspension pending termination. 56 However, where a bonus, allowance
or benefit has become vested by contract, statute or CBA it is mandatory for the employer to pay.
In ZESA v Smith & 55 Ors SC 9/05 where the employer had offered to sale to its employees its
houses they were occupying and they accepted, but only for the employer to turn around and stae
that a huge mistake had been made and sought to cancel the agreement. This was rejected by the
court, as a binding contract was now in place. The minority in the bonus case held that the right to
bonus for that particular year had become vested. On the other hand in Foreman & Anor v KLM
Royal Dutch Airlines 2001 (1) ZLR 108 (H) the court declined to hold that a benefit of travel
had become vested by usage and could not therefore be unilaterally varied by the employer.

Amount payable
At common law, the wage to be paid is as per the agreement of the parties. Section 12 (2) requires
that the particulars of the remuneration, benefits and bonuses be reduced into writing. However,
should the contract still be silent on the quantum, the employer’s duty to pay may be based either
on the doctrine of quantum meruit, that is a fair and reasonable remuneration for the services
rendered,57 or the unjust enrichment doctrine, that is the employer should not be entitled to enrich
itself at the expense of the employee by refusing to pay for services rendered to it by which it has
benefited – City of Harare v Zimucha 1995 (1) ZLR 285 (S). The employer pays for the
availability of the worker’s service and not for actual work done. Commercial Careers College
(1980) (Pvt) Ltd. v Jarvis 1989 (1) ZLR 344 and Belmore v Minister of Finance 1948 (2) SA
852 (SR).58
As to the actual amount payable, s 6 (1) (a) merely requires that it not be lower than that
specified by law or an agreement made under the Act, namely a CBA. Although s s 20 and 17
(3) (a) empower the minister to gazette regulations providing a minimum wage, this has not been
done, at a general level. Instead minimum wage notices have been issued in relation to industries
not covered by employment councils under the Labour Relations (Specification of Minimum
Wages) Notice, S.I. 70 of 1996 as read with the Labour Relations (Specification of Minimum
Wages) (Amendment) Notice, S.I. 307A of 2001.59 Thus there is no general requirement, at
common law or under statutes, to pay the worker a wage proportionate to the value of wealth
created or one which will, as required under international law, ensure a ‘just and favourable
remuneration ensuring for himself and his family an existence worthy of human dignity” or fair
wages guaranteeing a decent living, namely a living wage. 60 [See prioritisation of employer’s
ability to pay defence over workers’ demand of living wage in deciding what is appropriate public
policy in Tel-One (Pvt) Ltd v Communications & Allied Services Workers Union of
Zimbabwe HH 74-2007 cited in Cap. 1]The Parliament Portfolio Committee on Labour Report

55
See also Crossley v Union Government 1921 NPD 114 at 123. Also - Art Corporation Ltd v Moyana
(1989) (1) ZLR 304 (S); Alison Farms (Pvt) Ltd v Makwanya S-9-96 and Zimbabwe Sun Hotels (Pvt)
Ltd v Lawn 1988 (1) ZLR 143 (S)
56
See also Tafuma v Tudor House Consultants (Pvt) Ltd HH-153-02
57
Middleston v Carr 1949 (2) SA 374, 386 (AD) and Angath v Muckundalal’s Estate 1954 (4) SA 283 (N)
58
Gladstone v Thornton’s Garage 1929 TPD 116; Faberlan v Mackay and Fraser 1920 WLD 23 at 26
59
Such as under the Labour Relations (Domestic Workers) Employment Regulations, S.I. 377 of 1992.
However, prior to the 1990s the state used to promulgate minimum wages at a general level. Wage
regulation in fact pre-dates the Labour Act, but started with the Minimum Wages Act, No. 4 of 1980 as read
with the Minimum Wages (Specification of Minimum Wages) Notice, S.I. 367 of 1980.
60
Art 23 (3) UDHR and Art. 7 ICESC. There are also several ILO conventions requiring the setting of a
framework for minimum wages such as the Minimum Wage-Fixing Machinery Convention, 1928 (C26).

19
had proposed the Minister should, annually, by statutory instrument specify minimum wages and
pensions which must ‘be reasonably consistent with the Consumer Price Index.’ 61
The Act is silent on increments and how often these should be or the principles to be used in
the computation of wages, other than the prohibition of unlawful discrimination in any matter
relating to wages and benefits under s 5.Section 22 providing for ministerial regulation of
maximum wages has been repealed by s 12 of Act No. 7 of 2005. Otherwise, the employer at
common law is free to grant different wages to different employees on whatever basis it wishes,
even in disregard of seniority – Malunga & Ors v PTC S-117-99 and Nare v National Foods
Ltd LRT/MT/38/02. Increments are thus at the discretion of the employer and it has been held
that an agreement to review wages annually does not necessarily mean that actual increments
must be granted and that a job evaluation is not binding unless both parties accept it – Chiremba
(duly authorized Chairman of Workers’ Committee) and Ors v RBZ 2000 (2) ZLR 370(S);
Chubb Union Zimbabwe (Pvt) Ltd v Chubb Union Workers’ Committee S-1-01 and PTC
Managerial Employees Workers’ Committee v PTC & Anor 1998 (1) ZLR 444 (H).
The authority of the above cases, is now however doubtful in view of the requirements of the
Act for the participation of employees in decisions at the workplace and the promotion of social
justice at the workplace and collective bargaining under s s 2A(1) and 25A 95). Unilateral and
irrational salary increments severely undermine the dignity, self-esteem of employees and the
process of collective bargaining. Thus in National Foods Laboratory Assistants v National
Foods LC/H/42/05 where the employer changed its grading system to the Patterson system but
left out the laboratory assistants, the employer was ordered to re-grade them and pay back wages
in arrears.
However, in the public sector a criterion of merit is incorporated by virtue of s 20(2) of S.I. 1
of 2000 which requires salaries to be fixed by reference to “academic, professional or technical
qualifications, training or relevant experience or the attributes necessary for the efficient and
effective execution of the tasks attached to the post.” The Minister of Finance is also authorized
to designate certain posts and control salaries in such posts in government and statutory bodies
under s 39 of the Audit and Exchequer Act Chapter 22:03 – PTC v PTC Managerial
Employees Workers 1998 (1) ZLR 444 (H) and NSSA v NSSA’s Assistant Managers
LC/H/73/05.

Political economy of wages

Unlike previous working people like slaves and peasants, who received their share in kind as
food, shelter and clothing, the modern worker is paid in money form just like other commodity
owners. But is the actual share that the modern worker gets really different from that which was
enjoyed by the slaves or peasants, namely just enough to guarantee survival and capacity to keep
on working?
In reality the wage system fundamentally has not altered the relationship of exploitation. The
wages the workers receive are not a proportionate share of the fruit of his/her labour, exposing the
limitations of liberal conceptions of democracy and social justice at the workplace.
Karl Marx and Friedrich Engels were the first to explain the reality of the wages system under
capitalism. They showed that wages reflect the value of labour power and not the value of the
fruits of the process of labour. Wages move between two levels. The first is an absolute bottom
level determined by the absolute minimum breadbasket of goods and services required to keep
the worker and their family alive. An upper limit is that which would begin to threaten the profits
61
The NCA Draft Constitution in cl. 28 (1) proposes a right to every worker “to be paid at least a living
wage consistent with the poverty datum line.” Clause 43 (1) of the ZCTU Model CBA states that - “The
employer shall be required to allocate at least 20% of net profit at the end of each financial year to
employees as a share of profits for the period where applicable.” NB See also: UDHR – Art 23 (3);
ICESCR – Art 11 (1): COMPARE Art 28 (1) NCA Draft Constitution with: Art 91 Constitution of
Venezuela; Bolivia Constitution; See generally Gwisai et al 2 KMLJ 71 (2009)

20
of the capitalist. [See the court’s position proscribing arbitration awards that give a poverty datum
line wage where this threatens employer’s existence as against the “public policy” ground in
terms of the Arbitration Act in Tel-One (Pvt) Ltd v Communications & Allied Services
Workers Union of Zimbabwe HH 74-2007 [Hungwe H].62 Wages move between these two
levels, with a living wage being a level above the absolute minimum at a standard of life the
worker views as decent. Question is whether the logic of the above case also applies to the lower
end of zero% increments where wages significantly below the poverty datum lie- logic show sit
should.]Two further determinants are the cost of training workers to a particular skill and the
traditions and the standard of living particular groups of workers are used to. These are reflected
in the amount of wages paid, hence, the differences between workers in different industries or
sectors. As a general rule, workers create wealth or value equivalent to the value of wages in only
part of the work day or month. The employer makes the worker work beyond such period, with
the extra wealth created therein, surplus value, expropriated for free by the capitalist, as profit,
with a small portion distributed as taxes and as bribes to buy the ideological hegemony of the
capitalist class. The employer can increase the surplus value through several means: by paying as
low wages as it can; increasing the length of the workday through overtime or cutting the rest-
time available to workers, or forcing them to accept a lower standard of life than they had been
used to. A general reduction in the cost of goods that constitutes the bread basket has a similar
effect.
The extent to which the employers will be stopped from driving wages to the lowest
level, is the degree of resistance by the workers. Workers’ resistance receives its highest
expression, when workers are organized in collective bodies, such as trade unions and
using these to threaten or hold strikes, to defend wages or push for higher ones. The more
organized, united and militant workers are, the more likely that the higher their average
wages whilst the reverse applies. However, it is clear that as long as the employers own
and control the means of production as private property, then workers will always be
exploited and at a fundamental disadvantage in the struggle with capital. Employers will
use their surplus value to control other institutions of society to support them in their
struggle with labour, critically the state and the ideological institutions of society like
schools, the media, churches, NGOs and so forth. Fairness and justice in work process
can only be achieved through abolition of the wage system that is the overthrow of
capitalism and its replacement by a system that ensures the means of production are
owned and controlled democratically by those who produce and the fruits of labour
shared communally throughout society. That system is communism.63

Form and manner of payment of remuneration

62
Wherein he stated: “An award that plunges the apple-cart over the cliff in my view
could not be said to be in the best interest of the general good of Zimbabwe...
Applicant has demonstrated that the award in effect will result in it being obliged to
pay or commit 130% of its income ... In all work situations salaries and wages are
limited by an employer’s ability to pay. The courts and indeed all tribunals delegated
with decisions of a financial nature would be failing in their duty if they were to will-
nilly give awards whose effect would be to drive corporations into insolvency thereby
destroying the economic fabric of the nation. Such awards would defeat the very
purpose they are meant to serve. As such they are liable to be set aside as being in
conflict with the public policy of Zimbabwe.”
63
F. Engels, ‘The wages system’, Inqaba ya Basebenzi, Aug – Oct 1983 and Marx K and Engels F,
Communist Manifesto (Bookmarks 1996)

21
The form and manner in which remuneration is paid is provided for in the Labour Act and
common law. Prior to Act 17 of 2002 common law and the provisions of CBAs regulated the
payment of wages as the LRA did not directly provide for this. At common law payment could
be made in money or both in money and kind if provided for in the contract - Jamieson v
Elsworth 1915 AD 115. If payment is in kind the worker is entitled to an account of how the
calculation is made whilst wages are due at the end of the contract period or at agreed intervals. -
Howarth v Lion Steel Construction Company (Pvt) Ltd 1960 R & N 305.64
The manner of payment of remuneration is now directly regulated in the LA, drawing mainly
from the provisions of the Protection of Wages Convention, 1949 (C95). The first regulation is
the obligation placed on employers to ensure that workers have detailed written information about
their remuneration. Under s 12 (2) every employer is under an obligation, upon engagement, to
inform an employee in writing of:
(e) particulars of the employee’s remuneration, its manner of calculation and the
intervals at which it will be paid.
(h) particulars of any bonus or incentive production scheme.
(i) particulars of vacation leave and vacation pay.
(j) particulars of any other benefits provided under the contract of employment.
These requirements are enhanced by s 12A (5) which states that all remuneration should be
accompanied by a written statement, a “pay slip”, showing:
 the name of the employer and employee;
 the amount of remuneration and the period it relates to;
 the component of remuneration representing bonus or allowances;
 deductions made; and
 the net amount received.

Above must be read in conjunction with s 125LA obliging employers to keep payment and
remuneration records for employees covered by a CBA, regulations or determination for up to
three years and availing the same to a labour officer or designated agent on request, even without
notice. Presumption that were absence of records the employees are appropriately covered and
also a criminal offence: Magoto v Menwood Trading LC/H/169/2009.

The Act does not provide for the manner of calculation of wages, but CBAs do. Section 15 of the
ZCTU Model CBA deals with the method of converting a weekly wage to its hourly, daily or
monthly equivalent. For the hourly equivalent, the weekly wage is divided by the number of
working days in a week and divided by the number of hours worked each day; for the daily
equivalent, the weekly wage is divided by the number of days ordinarily worked in a week; and
finally for the monthly equivalent, the weekly wage is multiplied by 52 weeks and divided by 12
months.
Under s 12 (1) and (2) remuneration may be paid in money or money and in kind subject to a
number of conditions. Firstly remuneration payable in money may only be in ‘legal tender’.
Examples include cash, cheques or electronic transfer to an employee’s account. Payment by way
of promissory notes, vouchers, coupons or any other form is prohibited. Secondly payment in
kind is allowed subject to the following conditions:
 It is for the personal use of the employee and not for the employee to resale.
 Its value is fair and reasonable. This means the employer may not unilaterally place a
value on the goods.
 Equipment or clothing required for heath and safety is not to be computed as
remuneration in kind.

64
NUTW & Ors v Jaguar Shoes (Pty) Ltd. 1987 (1) SA (N) at 44

22
  Remuneration in kind shall not be in the form of liquor or drugs.
 Remuneration in kind shall not “substitute entirely for remuneration in money.” The
substantial portion of the remuneration must be in money form. This is consistent with
ILO C95 and the fundamental rights of the employee as a citizen, who has rights to
dignity of person and freedom of movement and choice.
Under s 12 A (3) and (4), wages shall be paid at regular intervals on working days at or near the
workplace and shall be paid directly to the employee unless otherwise provided by law or a CBA,
such as a garnishee order or payment of union dues to the union.

Deductions from remuneration

At common law the operating principle is that deductions by the employer from the worker’s
remuneration are not permissible unless if it is for a period of absence, to set off due and liquid
claims or authorized by agreement or operation of the law - City of Bulawayo v Fuyana S-68 -
95.
The common law is now modified by statute. Under s 12A (6) LA it is provided that “No
deduction or set-off of any description shall be made from any remuneration except’ in the
defined circumstances.” This provision has been held to be specific and exhaustive, and hence
deductions for theft, a non prescribed circumstance, were held unlawful by Bhunu J, in S v
Simon HH-84-04. Otherwise deductions are allowed:
 Where an employee is absent from work other than on public holidays or lawful leave.
This is a restatement of the common law principle of ‘no work no pay’- Zimbabwe Sun
Hotels (Pvt) Ltd v Lawn 1988 (1) ZLR 143 (S). 65 Where a worker is unable to provide
work due to a reason caused by the employer or a casus fortuitus (unforeseen event like
power cuts), then the worker is entitled to payment of his/her remuneration. 66 Section 20
(i) of the ZCTU Model CBA provides that no deduction or work extra time shall be made
on an employee’s remuneration to compensate ‘for time not worked as a result of weather
conditions such as rains, power cuts, machine failure, or unavailability of work
instruments or any other work stoppage not wilfully caused by the employee.” Another
instance is the worker’s right to payment of wages whilst on suspension, unless such
suspension without pay is authorized by a registered code of conduct or statute -
Zimbabwe Sun Hotels (Pvt) Ltd v Lawn; Maibva v Urban Development Corporation
1992 (1) ZLR 326 and Chisipite School Trust (Pvt) Ltd v Clarke 1999 (2) ZLR 324 (S).
 Where compelled by law or legal process such as for income and pension taxes as in
Nyambirai v NSSA & Minister 1995 (2) ZLR1 (S) a garnishee order.67
 Where an advance has been paid to the employee, provided that deductions at any one
time do not exceed 25 per cent of the gross remuneration of the worker.
 By written stop – order for contributions to insurance policies, pension funds, medical aid
societies, building societies, burial societies and registered unions.
 For loans given by the employer to the employee and the employee has given his/her
written consent for such deduction. Where there is no such written consent the employer
cannot automatically deduct.
 For an amount recovered for payments made in error. The mistake must be substantial
and reasonable – a justus error, otherwise the employer would not be able to recover 68 –
65
following the South African case of East London Municipality v Thomson 1944 AD 46
66
Johannesburg Municipality v O’ Sullivan 1923 AD 201. Thus in Boyd v Stuttaford and Co 1910 AD 10 it
was stated that under common law workers absent from work due to sickness, other than domestic workers,
are not entitled to payment of wages for the period of absence.
67
Medix Pharmacies (Pvt) Ltd v Commissioner – General, ZIMRA & Anor HH-102-03
68
Willis Faber Enthoven (Pty) v. Receiver of Revenue & Anor 1992 (4) SA 202 AD. Also City of Harare v
Zimucha 1995 (1) ZLR 285 (S).

23
 University of Zimbabwe v Gudza 1996 (1) 249 (S) and PTC v ZPTWU & Ors S – 107
– 02.
Note that under s 12A (7) the aggregate amount of permissible deductions in any pay interval
“shall not exceed twenty – five per cent of the employee’s gross remuneration for that interval.”
This an important provision to protect wages derived from ILO C95.
Deductions as disciplinary measures may only be permissible if compelled by law, such as under
a statute, including a registered employment code. This reverses the position previously stated in
City of Bulawayo v Fuyana S-68-95 and Bevcorp (Pvt) Ltd v Nyoni & Ors 1992 (1) ZLR 352
(S).69 These decisions reversed earlier decisions holding that disciplinary deductions were against
public policy given the real risk of an employer abusing inherent dominant position to effect
unconscionable and unjust penalties and usurping the functions of the courts - S v Collet 1978 (1)
RLR 205 (RAD) and R v Van Breda 1933 SR 42. Note that any deductions made as a
disciplinary measure are subject to the 25 per cent proviso in s 12A (7).

Payment on termination of employment

On termination of the contract of employment, for whatever cause, the employer is obliged under
s 13 LA to pay to the employee the wages and benefits due to him/her up to the time of such
termination including any outstanding vacation and notice period, medical aid, social security and
any pension entitlements. In Magoto v Menwood Trading LC/H/169/2009 at p. 3 where
arbitrator had omitted to include payment of cash in lieu of notice where there was a mutual
termination, Matanda-Moyo P held that arbitrator erred and Appellant entitled to three months
notice pay in lieu under s 13 (1) (a).
This section overrides the common law position that a deserter forfeits any remuneration due -
Elsworth v Antelope Gold Mining Co. Ltd 1942 SR 168.70
The remuneration payable to a worker shall be paid “as soon as reasonably practicable after
such” termination. A useful guide is the normal interval period of payment of wages. The
employer is entitled to deduct from the total remuneration due to an employee, any amount owing
due to absence, advances, loans or amounts paid in error by virtue of s 12A (7) - Muchabaiwa v
City of Harare HH -252 -99; Time Bank v Moyo HH-26-02 and Ndebele v Industrial Crops
Research Unit HB-65-02
It is a criminal offence under s 13 (2) to withhold or unreasonably delay payment of wages and
benefits at termination. Under s 13 (3) the court convicting such employer may also order the
employer to pay “an amount which, in its opinion, will adequately compensate the employee
concerned for any prejudice or loss he has suffered as a result of the contravention concerned,
within such period and in such instalments as may be fixed by such court.” This therefore
empowers the courts to order interest at the prevailing commercial rates as opposed to the
prescribed court rate.

Ordinary duties of employers

Introduction
The duties dealt with in the preceding section deal with the fundamental duties of employers. The
employer has further duties under the LA and common law, which we focus on in this last section
of the chapter.
The duties discussed here are not exhaustive. Duties may arise from other legislation. In
particular one must remember that the Minister can legislate for more duties under the broad
powers of s 17 of the Act or prescribe further unfair labour practices under s 10.

Duty not to commit unfair labour practices

69
Schierhout v Union Government 1926 AD 286 at 290
70
Valesky v Consolidated Frame Cotton Corporation Ltd. 1983 (1) SA 694 (N)

24
The employer has the duty not to commit unfair labour practices, that is to adhere to fair labour
practices. The detailed discussion on the history and nature of fair labour standards and unfair
labour practices was carried out on the discussion on the fundamental duties. The Act provides for
further fair labour standards in Part III. An employer or where any appropriate person, commits
an unfair labour practice under s 8 if it does any of the following acts or omissions:
a. prevents or hinders an employee in the exercise of any rights conferred under Part
II that is the fundamental rights of employees.
b. contravenes any provision of Part II or s 18 on maternity leave and benefits.
c. refuses to negotiate in good faith with a workers’ committee or registered trade
union.
d. refuses to co-operate in good faith with an employment council.
e. fails to comply with: a CBA, decision of an employment council or employment
board; a decision or finding under Part XII such as from a labour officer, designated
agent, arbitrator or Labour Court; or any determination or direction binding upon
him/her in terms of the Act.
f. bargains or deals with another union where a registered union exists.
g. commits sexual harassment against any employee or prospective employee in
recruitment or any other matter related to employment.
In Muwenga v PTC 1997 (2) ZLR 483 (S) it was held that the list of unfair labour practices is
exhaustive. The Minister may, however, prescribe by statutory instrument, further unfair labour
practices after consultation with the Labour Court, in terms of s 10.

Duty not to commit sexual harassment

An employer has the duty not to commit sexual harassment against its employees or prospective
employees by its actions or omissions.
Prior to the Amendment Act, the employer’s duty not to commit sexual harassment was not
expressly provided for in statute but could be inferred from other duties such as the duty not to
discriminate and the duty good faith, in particular the duty to treat an employee with due respect -
Jamieson v Elsworth 1915 AD 115,71 and Mudzingwa v One Stop Co op S-38-01.An employer
may also be vicariously liable for the acts or omissions of sexual harassment of its employees,
especially its managers.72
The absence of express statutory provisions made it more difficult to prove sexual harassment.
This reflects an important aspect of bourgeois labour law, namely the oppression of women
workers, who for long have been forced to be the concubines of their bosses on pain of losing
their jobs. That it took over twenty years after independence for labour legislation to expressly
provide for sexual harassment also expresses the marginalisation of the concerns of women
workers on the agenda of organized labour. Even now it is not provided as a fundamental duty of
employers.73
The duty is provided for under s 8(c) of the Act. The section covers both quid pro quo sexual
harassment (‘something for something’) and hostile environment sexual harassment.
Firstly, for the quid pro quo harassment, an employer, manager or other relevant person is
deemed to have committed an unfair labour practice of sexual harassment if they demands from
any employee or prospective employee any sexual favour as a condition of any matter related to
employment including –
71
In R v Lukelo 1929 TPD 370 an employee who refused to obey an otherwise lawful order was held
justified where there was fear of repetition of assault by the boss. Also see United African Motor and Allied
Workers Union v Fodens (SA) (Pty) Ltd 1983 ILJ 212 (IC)
72
On the vicarious liability of the employer for the ‘wrongful acts committed in the course and within the
scope of the employee’s duties’ see Fawcett Security Operations (Pvt) Ltd v Omar Enterprises (Pvt)
Ltd 1991 (2) ZLR 291 (S)
73
Reddi, ‘Sexual harassment’ in C. Murray (Juta, 1994)

25
  recruitment for employment.
 creation, classification or abolition of jobs or posts.
 remuneration or other conditions of employment.
 choice of persons for jobs, training, advancement, transfer, promotion or retrenchment.
 the provision of facilities related to or connected with employment.
The second aspect is that relating to environmental sexual harassment. This occurs when an
employer or its agent “engages in unwelcome sexually-determined behaviour towards any
employee, whether verbal or otherwise, such as making physical contact or advances, sexually
coloured remarks, or displaying pornographic materials in the workplace.” In Mudzingwa v One
Stop Co op the court upheld the dismissal of an employee who at an after hours end of year
company party kept on making unwanted sexual advances to two female co-employees. The
courts also have upheld the dismissal of a senior manager for sexual harassment of junior female
employees.74
The definition of ‘sexual harassment’ is not gender specific. Thus, it also covers gay or
homosexual harassment. Employers are liable not only for ‘acts’ but also ‘omissions’, which
means an employer who fails to redress an environment of sexual harassment when it has come to
its attention or one that a reasonable employer should have foreseen, is liable.

Duty of good faith and respect of the employee’s dignity

An employer has the duty of good faith, that is generally to refrain from conduct which makes
“the continuation of the employment relationship intolerable or unworkable or which undermines
trust and confidence between employer and employee.”
Traditionally, common law has been reluctant to extent this duty to employers, thereby
expressing its underlying anti-worker prejudices:
“On the one hand, the interests of the enterprise and the dictates of commercial morality
are seen to require high standards of fidelity on the part of the employee. On the other
hand, there’s the countervailing tradition which asserts that the employment relationship
does not give rise to a contract of uberrime fidei, no doubt in order to stress a narrowly
contractual nature of the mutual expectations that employer and employee may have of
each other, to stress in other words, that employment confers only a contract and not a
status …”75
However, modern labour jurists certainly recognize such duty of the employer. 76 In Jamieson v
Elsworth 1915 AD 115 it was held that the employment relationship requires “the minimum of
ordinary respect and civility from one to the other.” 77 In an English case of the court observed:78
“In a contract of employment, and in conditions of employment, there has to be mutual
trust and confidence between master and servant. Although most of the reported cases
deal with the master seeking remedy against a servant or former servant for acting in
breach of confidence or breach of trust that action can only be upon the basis that trust
and confidence is mutual.”
The duty is now codified under s 12 B (b) LA that makes it an unfair dismissal “if the employee
terminated the contract of employment with or without notice because the employer deliberately

74
J v M (1989) 10 ILJ 755 (IC). See also Lever Brothers v Maguchu 2000 (2) ZLR 187 (S) and Mwenye
v Lonrho 1999 (2) ZLR 429 (S)
75
Davies and Freedland (1983) 312
76
See - Riekert, Basic Employment Law (Juta) 36; Wallis M, Labour and Employment Law (Butterworths
1992) 19 – 20; and Creighton Ford & Mitchell, Labour Law: Text and Materials at 208
77
In Humphries & Jewell (Pty) Ltd v. Federal Council of Retail & Allied Workers Union 1991 ILJ 1032
(LAC) the court referred to “the relationship of trust, mutual confidence and respect which is the very
essence of a master – servant relationship.”
78
Robinson v Crompton Parkington Ltd (1978) IRLR 61 (EAT) 65

26
made continued employment intolerable for the employee.” The duty to adhere to fair labour
standards and social justice in the workplace under s 2A (1) provides further basis for the duty.
There are a number of components to the duty:
 To respect the dignity of the employee as a human being. In Dandavare & Ors v
Zimbabwe Open University HH 49 of 2002 where employees inherited from another
institution were locked out of offices and not given any actual work to do for nearly three
years, the presiding judge observed - “I think it is disgraceful that the appellants are being
so badly treated by UZ and ZOU … they are human beings and their welfare should be
taken into consideration…”
 Not to make undue intrusions into the employee’s privacy for instance not to compel
intrusive tests or dress codes - Banda v Wright HH -139-97 and Mpumela v Berger
Paints (Pvt) Ltd 1999 (2) ZLR 146 (S).
 Not to assault or verbally abuse employees - S v Collet 1978 (1) RLR 205. In one case
an employee who refused to obey an otherwise lawful order was held justified where
there was fear of repeated assault by the employer. 79
 Not to sexually harass the employee.80

Duty to grant leave

Where appropriate an employer has the duty to grant employees leave. Leave refers to an
authorised period of absence from work. It may be paid or unpaid, although the operational
principle at common law is “no work no pay”, meaning leave is unpaid unless otherwise provided
for in the contract or statute - City of Harare v Zimucha 1995 (1) ZLR 285 (S).81 At common
law, leave may not be accumulated into the next cycle unless otherwise provided for in the
contract or statute.
There are different types of leave. The main ones include: sick leave, maternity leave, vacation
or annual leave, occasional leave, study leave, trade union leave, bereavement leave,
compassionate leave, family responsibility leave and special leave. For public servants, the main
instrument providing for leave is the Public Service Regulations. 82

Duty to grant sick leave

An employer is under an obligation to grant sick leave “to an employee who is prevented from
attending his duties because he is ill or injured or undergoes medical treatment which was not
occasioned by his failure to take reasonable precautions” – s 14 (1) Labour Act.
This position is broadly consistent with the common law principle that an employee is entitled
to unpaid absence from work due to illness as long as such absence is not unduly long or
protracted - City of Harare v Zimucha 1995 (1) ZLR 285 (S).83
Act 17 of 2002 has substantially increased the number of sick leave days. 84 Under s 14 (2), an
employee is entitled to a minimum of:
 In any one year period of service to a total of 90 days’ sick leave on full pay, or
 An additional 90 days on half pay where the employee provides a certificate signed by a
registered medical practitioner showing that in the opinion of the doctor “it is probable
79
R v Lukelo 1929 TPD 370 – also see United African Motor and Allied Workers Union v Fodens (SA)
(Pty) Ltd 1983 ILJ 212 (IC)
80
J v M Ltd (1989) 10 ILJ 755 (IC)
81
East London Municipality v Thomson 1944 AD 46; Wallach’s Printing and Publishing Co. v Wallach
1932 AD 49; Myers v Sieradzki 1910 TPD 869
82
This replaced the Public Service (General Leave) Regulations, 1978 RGN No. 42 of 1978
83
Boyd v Stuttaford and Co. 1910 (AD) 50 where an exception was held to apply to domestic workers.
84
Previously the Act provided for 22 working days for a five day week or 26 working days for a six day.
The new regime is modeled on that of the public service under s 38 of S.I. 1 of 2 000

27
 that the employee will be able to resume duty after such further period of sick leave.” The
mere fact that an employee is HIV/AIDS positive does not preclude them enjoying this
right; otherwise it might be held unlawful discrimination.
 The right to be granted accrued vacation leave instead of sick leave on half pay or
without pay under s 14 (5) LA. This modifies the common law, where the employer had
absolute discretion. In Swaibo v NRZ S-54-95 a sick employee, absent from work, failed
to comply with the formalities for taking sick leave and requested that the employer grant
him accrued ordinary leave days retrospectively to cover the absence. The employer
refused and successfully applied to dismiss him, with the court observing that though the
decision was harsh it was lawful because “the privilege of compassion is the employer’s
alone.” Now under the Act an employer must have a compelling reason to refuse to grant
vacation leave in lieu of sick leave, otherwise it would be unfair dismissal.
 Further under s 14B (a) LA an employee “who is required to be absent from duty on the
instructions of a medical practitioner because of contact with an infectious disease” is
entitled to a further 12 days as Special Leave.
Section 14 (1) LA does not make an explicit distinction between illnesses and sickness that may
arise naturally and that occasioned directly by the employer. In Kwaramba v Bain Industries
(Pvt) Ltd S-39-01 the court upheld the dismissal of a welder who had been absent from work in
excess of the days allowed under s 14 (b) LRA and was suffering from an illness most probably
attributable to the work environment of heat, with the employer not prepared to place her in an
alternative position. However, this precedent is no longer applicable under Act No 17 of 2002,
which protects employees from unfair dismissal. In such circumstances the employer is required
to take steps to provide alternative employment. 85
The granting of sick leave is subject to a number of conditions, that is:
 There must be illness or injury, which is ‘not occasioned by his failure to take reasonable
precautions.’ An employee who was away on an extended absence from work of over two
months without getting approval from the employer or offering any explanation, was held
properly dismissed – TM Supermarket v Makuzva LC/MS/15/05. The Act does not
prescribe the illness. This means, that in the absence of a pregnancy leave, pregnant
women may, before the onset of maternity leave, utilize this provisions whenever, they
suffer any illnesses arising out of pregnancy. The term “reasonable precautions” must be
read restrictively in view of the purpose of the section and Act. Thus, it cannot be read to
include consumption of harmful ‘leisure’ substances like tobacco, alcohol or drugs as this
would be to allow too great an intrusion into the privacy and life choices of employees as
free citizens in a democratic society.
 It has to be “at the request of the employee.” This generally must before going on the sick
leave, wherever, reasonably possible, but may not be so in situations of emergency. In
Manyisa v The Minister of Finance S-6-2002 an employee with a bad record of absence
was absent from work, ostensibly whilst sick, but the court upheld his dismissal as he was
held to have a duty to advise the employer. See Makuzva case. In Lee Group of
Companies v Ann Clare Elder SC 6-2005 an employee who had verbally resigned,
packed her things at the workplace and was absent for three days, with a doctor’s note
claiming to have been sick, was still held properly dismissed as the doctor’s note was
held suspicious in the circumstances, moreso because it did not initially specify sick
leave. Illness is not a premeditated event and cannot be boxed in a rigid notification
regime. [In Mahachi v Zimbabwe Grain Bag LC/MT/143/2007 an employee with a bad
record of absenteeism was away from work for 5 days ostensibly sick after being given a
85
In Dlokweni v A (1984) ICD (1) 16 the court held as unfair the dismissal of a driver who was unable to
drive as a result of an eye cataract because the employer did not consider the alternative of employing him
as a car-washer. See Chapter 12.

28
 doctor’s medical certificate which he did not sent to the employer, but the sixth day after
a further four days extension by the doctor and sent some other person with a note to give
to his supervisor. Dismissed for absenteeism on the basis that did not inform employer
timeoulsy. Held that “Illness is not premeditated and a person can fall ill any time and
require the attention of a medical practitioner urgently without having had to consult his
employer first...whilst the it is accepted that generally the prerogative to give sick leave
rests with the employer, il believe that each case should be decided on its merits.” Held
further that “A person cannot be dismissed from work for being ill especially where there
is uncontroverted evidence of a specialist like a medical practititioner that he was ill. In
casu l find that the employer was adequately notified and timeoulsy..” Referred to
Termination of Employment Convention, 1982 – Art 4 arw art 6 (i) and stated that
although no deficiency in Zimbabwean labour legislation unlike in Botswana, “there is
nothing that should stop this court from referring to international la win order to
strengthen a decision based on domestic law. Zimbabwe ratified the ILO convention No.
158.” [not sure about that actually!!!}86 Such an unjust result was made in the case of
PTC v Chihoro 1997 (1) ZLR 148 (S) where the court upheld the dismissal of a postman
who had disobeyed an instruction to deliver telegrams, given shortly before he was about
to knock off and go for a doctor’s examination as he was not feeling well. In Mavisa v
Clan Transport LC/H/199/2009 where workers’ representative asked for permission to
go to a meeting and was refused but still did not come, instead going to the meeting but
later submitted doctor’s certificate held improperly dismissed because employer could
not rely on mere suspicion that certificate fraudulent – had to lead evidence to disprove
that sickness false.
 A certificate signed by a registered medical practitioner must support the sick leave
request. This means a practitioner registered under the Health Professions Act, Chapter
27:19, unless the CBA provides otherwise, as for instance in the textiles, engineering,
timber and railways industries that provide for a registered traditional healer or nurse. 87
Indeed, this provision is too restrictive and requires amendment in view of the prohibitive
costs of medical practitioners and the extensive use of traditional healers by most black
workers. Company appointed doctors cannot be imposed on a worker. The right to
personal dignity of the employee includes the privacy of the person and choice of medical
doctors. In any case there is significant potential conflict of interest for such a company
paid doctor.88 It is proper though, for such doctors to be used to interpret or confirm the
contents of medical certificates.

NB IT HAS BEEN HELD THAT SECTION 14 APPLIES TO EMPLOYEES

AND NOT FORMER OR DISMISSED EMPLOYEES – Hongyu Enterprises v
Mafoti SC 43-2007.
Termination
Where an employee exceeds in any one year, the above periods of sick leave, “the employer may
terminate the employment of the employee concerned” – s 14 (4) LA. This means sick leave
under the Act is not accumulative and will only be so if provided in the CBA or contract.
However, the provision does not mean that an employer can automatically terminate the
contract on expiry of the sick leave days. The section only states that the employer ‘may’
terminate the contract. In view of the protection of employees from unfair dismissal under s 12B
(1) and promotion of social justice at the workplace, the termination must still be substantially
86
Cited a Botswana case – Sebonego v Newspaper Editorial and Management Services Ltd 1999, NO
1C/64/98
87
See s 21 (2), Textile Employment Council CBA, S.I. 124 of 1995; s 16 (4), Engineering Employment
Council CBA S.I. 201 of 1996 and s 17 (4) of the Food Employment Council CBA S.I. 27 of 1996.
88
Le Roux and Van Nierkerk (1994) 231

29
and procedurally fair, meaning that there must still be an assessment, in consultation with the
employee wherever possible, of factors like the likelihood of recovery, whether alternative
employment is possible, the cause of the illness and compliance with any necessary formalities of
termination, before the termination can be held to be fair. The basis is that termination for
incapacity due to ill health is different from dismissal for misconduct and the approach to be
taken should be one of ‘sympathy, understanding and compassion. 89 Hence in Mutukwa v
National Dairy Co – Op Ltd 1996 (1) ZLR 345 the court reversed the dismissal of a sick
employee who had finished his sick leave days on the grounds that the employer did not get the
approval of the Minister under S.I. 371 of 1985.

Duty to provide vacation leave

Employers have a duty to grant employees paid vacation leave every year in terms of s 14A
(2)LA. Vacation leave refers to a single long period of rest granted to an employee on a regular
period, usually annually. Previously the LRA did not provide for vacation leave, although the
Minister could promulgate regulations providing for vacation leave under s 17 (3) (e). The leave
was mainly provided under CBAs.
Under the common law, vacation or annual leave is granted at the privilege of the employer,
and if provided for there is no right to being paid unless agreed to. 90 This position is still carried
in the LA where s 14 A (5) provides that where an employee has no accrued vacation leave s/he
may be granted vacation leave without pay.
The period of paid vacation leave is, subject to more favourable conditions in the contract or
CBA, calculated at “the rate of twelfth of his qualifying service in each year of employment” up
to a maximum of ninety days – s 14A(2). This works out to a minimum of 30 days a year.
Weekends and public holidays are counted as part of the leave. However, logically and in terms of
equity, there is no reason why this should be so and has been recognized in some CBAs as unjust
to workers.91 An employee who falls sick during a vacation leave is entitled is entitled to cancel
their vacation leave and apply for sick leave – s 14A (4).
Vacation leave may be taken on completion of the first year of employment. Leave is forfeited
if not taken when due unless the failure to take it was caused by the employer. The timing of
when an employee may go on leave is at the discretion of the employer, who may grant it as an
‘annual shut down,’ or concurrently with notice of retirement or termination - Ballendern v
Salisbury City Council 1948 SR 269 and Matsambira v Gweru City Council.92 In Zisco v
Keche S-34- 98 it was held that a refusal of permission to take leave implied an order to remain at
work. In some CBAs to balance the interests of workers and bosses, it is mandatory for
employers to grant vacation leave within a specified period from the date of application by the
employee.93
On termination the employee is entitled to cash in lieu of accrued or vested vacation leave or a
pro rata share thereof under s 13 LA.
The conditions for public servants are provided under s 36 of S.I. 1 of 2 000 and are the ones
on which the provisions of the Labour Ac are modelled. Section 37 provides an additional
“annual leave” of twelve days per year, which is designed ‘to enable members to take short
89
See the English cases of Lynock v Cereal Packaging Ltd (1988) IRLR 510 at 512 and East Lindsay
District Council v Daubney (1977) IRLR and the South African case of Joy Manufacturing (Pty) Ltd and
NUMSA (1990) ARB 8.1.6. See Le Roux and Van Niekerk at 230 and generally Chapter 12.
90
East London Municipality v Thompson 1944 AD 56
91
This is derived from the common law position whereby all days are treated alike – Coetzee v Argus
Printing and Publishing Co. Ltd 1914 CPD 749. But see for instance s 21 of the ZCTU Model CBA
stipulating that public holidays that fall within the period of vacation leave shall not be counted or s 15 of
the CBA for the Food Industry S.I. 27 of 1996 excluding weekends.
92
Casterns v Ferreira 1954 (4) SA 704 and Reed v Richmond Local Board 1923 AD 50
93
For instance the Textiles Industry CBA, S.I. 254 of 1995 s 16

30
breaks from work to attend to personal matters.” In the private sector, most CBAs provide for the
same, entitled an “occasional leave.”

Duty to provide special leave

Under s 14 B of the Act, an employer is required to grant an employee “special leave” of up to
twelve days in a calendar year on full pay. This provision was introduced by s 11 of Act 17 of
2002. It is drawn from s 40 of S.I.1 of 2 000 and industrial practice as shown in CBAs that
provided for compassionate or bereavement leave.
The employer is required to grant special leave to an employee:
 who is required to be absent from duty because of contact with an infectious disease.
 who is subpoenaed to attend court as a witness.
 who is required to attend as a delegate or office – bearer any meeting of a registered trade
union – applied in Mavisa v Clan Transport LC/H/199/2009 [Mhuri P] – where held
arw s 29(4a)LA --“According to the above sections, the employer has no discretion to
allow or decline an application for permission to attend a meeting by an office bearer.” At
p4
 who is detained for questioning by the police. The term ‘police’ here broadly refers to all
sections of a ‘disciplined force’ that have authority to detain persons. The reason for the
detention is immaterial. The leave is for ‘detention’ as opposed to being jailed or
imprisoned after conviction.
 on the death of a spouse, parent, child or legal dependant or ‘on any justifiable
compassionate ground.’ The later could include attending to the illness of such a close
relative or friend. The terms here require a broad interpretation taking into account local
cultural factors. Hence, “parent” can mean in-laws whilst “child” is defined by reference
to the extended rather than the nuclear western family.
However, there is need to amend the Act or promulgate regulations under s 17, to go beyond the
current restricted formulation which is influenced by the western conception of the individual
nuclear family rather than the local extended family conception. It also needs to include other
equally pressing social concerns like illness and cultural l functions like ‘memorials’ or kurova
guva. Currently absent is an express and broad family responsibility leave, consistent with the
Family Responsibilities Convention, 1981 (C156), such as the South African Basic Conditions of
Employment Act, 1997.94

Duty to grant maternity leave and benefits

Introduction and history
One of the most important duties of employers is to grant maternity leave and related benefits to
women workers. Yet for the greater part of history of labour law in Zimbabwe this duty has not
existed. This is a reflection of a fundamental character of bourgeois labour law, namely the
oppression of women. The fact that women bear children and have historically played the
dominant role in their rearing has been used to oppress and marginalize them in the labour market
and in society in general.95 As observed by one scholar, “one of the crucial issues to eliminate

94
This provides for a ‘family responsibility leave’ of three days available when the employee’s child is born
or falls ill or when there is death of a ‘spouse, “life partner”, parent, adoptive parent, grandparent, child,
adopted child, grandchild or sibling. See also s 23 (3) of the ZCTU Model CBA providing that the mother
of a child under thirteen years of age is entitled to be granted time off for the purpose of taking such child
for treatment.
95
Sankara T Women’s Liberation and the African Freedom Struggle (Pathfinder 1990); Rees T and Kemp A,
Women’s Work: Degraded and Devalued (Prentice Hall 1994); Bradley H, A Socialist History of the
Division of Labour in Employment (Polity Press 1998); Maltsev, An Illusion of Equal Rights: Legal
Inequality in the Capitalist World (Progress Publishers 1988)

31
social and economic subordination of women is to make the workplace more accommodative to
pregnancy and parenting needs. Unfortunately, when women join the workplace, they often find
that the workplace structures are not sensitive to the reality of women with both motherhood and
job responsibilities.”96
Common law is harsh. Absence from work due to pregnancy is taken as a supervening
impossibility that justifies termination of the contract. A pregnant woman who chooses to remain
is likely to run foul of the duty of competence and efficiency as her pregnancy advances, as
common law provides no special exceptions for pregnant women.
Colonial legislation never provided for the right to paid maternity leave. The first changes
were introduced by the Industrial Conciliation (Amendment) Act, 1981, which introduced for
maternity leave of 84 days. This was followed by the LRA of 1985, which provided a right to
paid maternity leave of up to 75 per cent of normal pay, protection of employment status and post
– natal benefits to women workers under s 18. For public sector workers, a similarly qualified
right to maternity leave and related benefits was first provided under the Public Services (General
Leave) (Amendment) Regulations, S.I. No. 347 of 1986 which was similar to s 18 LRA. A
subsequent amendment provided for 100 per cent paid maternity leave. 97 This legislation was
inspired by international labour standards, in particular the Maternity Leave Convention, 1952
(C103), which was subsequently replaced by the Maternity Protection Convention, 2000
(C183).98 Under the period of enhanced structural adjustment (ESAP), s 3 of the Labour
Relations (Amendment) Act, 1992 reduced the freedom of choice of pregnant women and their
post – natal rights. A separate regime was provided for workers in export processing zones under
the Export Processing Zones (Employment) Rules, 1998. The Labour Act, 2002 introduced the
right to 100 per cent pay on maternity leave, although women of less than one year of service
could only get unpaid leave. The Labour Amendment Act, 2005 subsequently removed even this
for workers of less than one year service, although it increased the number of leave days to 98
days, to make them consistent with C183 and brought EPZs under the Labour Act. Zimbabwe has
not ratified the ILO conventions.

Maternity leave under s 18

Under s 18 (1) LA, as amended, an employer is required to grant maternity leave ‘for a period of
ninety eight days on full pay to a female employee who has served for at least one year,’ subject
to the specified conditions and to more favourable conditions that might otherwise be provided in
the contract, CBA or any enactment
This is an important improvement from the previous regime where a woman was entitled to
only 75 per cent of pay if she forfeited her vacation leave days or 60 per cent if she didn’t.
However, a major weakness that remains is that it is the individual employer who is liable for
paying remuneration, whereas the ILO conventions state that it should be done through national
social security schemes. The current arrangement disadvantages women in the job market as it
encourages employers to discriminate against women of childbearing age. It is better to impose a

96
Chitumwa S, “The Legal Implications of the Labour Act on the Status of Women at the Workplace”
(LLBS Hons Dissertation UZ, 2004) 41
97
Provided in s 39 of the Public Service Regulations, S.I. 1 of 2000. Earlier amendments to S.I. 347 of
1986 had included S.I. 162 of 1989 providing an option to a woman to take either 90 days maternity leave
with 75 per cent salary or 60 days maternity leave and 30 days accrued vacation leave or vacation leave in
advance on full pay; S.I. 275 of 1989 effectively prohibiting the taking of annual leave or vacation without
pay in addition to maternity leave; and S.I. 121 of 1990 dealing with the calculation of the 24 months
period before entitlement to going on another maternity leave.
98
See also Art. 11 of CEDAW which requires maternity leave with pay without loss of former employment
or seniority and special protection to women during pregnancy from harmful types of work. Also Art. 10
ICESCR and Art. 25 UDHR

32
general maternity levy on all employers to fund a Maternity Fund similar to the Accident
Compensation Fund.99
Enjoyment of maternity leave is subject to the following conditions:
 The woman must have served for ‘at least one year.’ Under the LRA 1985, there was no
such discrimination based on service, but it was provided in the public sector under s 39
of S.I. 1 of 2000 whereby workers of less than one year service got unpaid leave. The
public sector provision was adopted in the Labour Act. However, s 10 of the Labour
Amendment Act has now removed even the right to unpaid maternity leave for workers
of less than one year service. This provision is retrogressive and inconsistent with the
ILO Conventions. It unjustly links the right to paid maternity leave to a period of actual
production, as is the case with vacation leave. This reflects one of the problems of
making individual employers liable for maternity leave wages.
 Under s 18 (2) the employee must show proof of pregnancy by production of a certificate
signed by a medical practitioner or State Registered Nurse. The later requirement is
inappropriate, given the country-wide shortage of SRNs. A better proposition is any nurse
or health practitioner with a Mid-Wifery Certificate.
 The employee may only go on maternity leave under s 18 (2) “not earlier than the forty-
fifth day and not later than the twenty first day prior to the expected date of delivery.” 100
 There is a maximum of three paid maternity leave periods that are granted once per 24
months per one employer under s18 (3).
 Under s 18 (6), sick leave may not be granted once paid maternity leave has begun or
during a period of unpaid maternity leave unless it is for medical reasons other than
maternity.
 Under s 18 (5), any “maternity leave requested in excess of the limits prescribed … may
be granted as unpaid leave.” This can cover situations like were the woman has finished
the number of days or periods entitled per particular employer or where there have been
complications in birth.101
The employee is entitled to other benefits related to maternity leave including:
 The employee’s normal benefits and entitlements including rights to seniority or
advancement, accumulation of pension rights and continuous service shall not be
considered broken by maternity leave under s 18 (7).
 Under s 18 (8) and (10) the mother of a breastfeeding child shall be entitled to take off a
one hour or two half-hour periods, which may be combined with other normal breaks, as
she may choose, for nursing the child, provided that this is done “in accordance with all
the exigencies of her employment and nothing done to prevent any disruption of normal
production processes or any interference with the efficient running of an undertaking or
industry.” Examples of the meaning of this include late commencement of work,
extended lunch or tea break or early knocking off. The onus is on an employer who may
object to the woman taking her nursing time to show that this results in disruption of
normal services, taking into account things like the size of the employer, the impact on
the business of the employer, the grade or status of the worker or their strategic
importance to the firm. This section implies that if she so wishes a breastfeeding mother
should be allowed to have her child brought to the workplace for her to breast feed it, as
long as this does not disrupt the normal operations of the workplace. The woman is only
entitled to this benefit “for the period during which she actually nurses her child or six
99
Such proposal had been made in the Parliament Portfolio Committee on Labour Proposals. In SA the
obligation to pay wages is on the state through the Unemployment Insurance Act 30 of 1966
100
There was no such provision under the 1985 LRA, but Act No 12 of 1992 introduced a 14 days period.
This is permissible under the conventions.
101
See previous formulation under s 18 (2) LRA

33
 months, whichever is the lesser” – s 18 (11). This is a retrogressive provision, which puts
pressure on women. If anything the period should be longer taking into account that the
recommended period of breastfeeding is 12 months. 102

Conclusion
There is need to provide in CBAs, for ‘more favourable conditions’ than those under s 18, which
has a number of weaknesses:
 The section does not provide a pregnancy leave for the period before formal maternity
leave is taken. A pregnancy leave is necessary to cover things like pregnancy related
illness or fatigue, miscarriages or abortions.
 The need for restrictions on the types of job that pregnant women or mothers who have
just given birth may do, with prohibitions of types of work that are harmful to them or the
unborn baby. In South Africa, a woman cannot start work earlier than six weeks after
giving birth.
 The need for an express provision ensuring that maternity leave is available even when
there is stillbirth or miscarriage.
 The right of the male partner or husband of a woman who dies in birth to assume the
unexpired period of maternity leave.
 The right to paid paternity leave for the male partners of women who give birth. 103

Duty to grant trade union leave

Under s 29 (4a) the employer is required to grant to employees who are officials or office-bearers
of a registered trade union, reasonable paid or unpaid trade union leave “for the purpose of
enabling the official or office bearer to perform the functions of his office.” Mavisa v Clan
Transport LC/H/199/2009 where held employer has no discretion to stp workers’ representative
eon application, even for “pressure of work” reasons also cited Workers Representatives
Convention (No. 135)
The amount and nature of the leave is as agreed in the CBA. This leave is available to
members of a workers’ committee, which is also a trade union committee under s 23 (1b).

Duty to keep remuneration records in the prescribed form

Section 125LA places an obligation on employer to keep remuneration records for up to
three years, where governed by a CBA; regulations or a determination – where failure to
do so – presumption that all employees covered under CBA etc; further a criminal
offence; Duty to make such documents available on request to a labour officer or
designated agent – Magoto v Menwood Trading LC/H/169/2009 where it was held that
where appropriate an arbitrator should order production of relevant documents before
making decision. Read in conjunction with s 126

Duty to respect employee’s rights on dismissal and sale of business

102
The ZCTU Model CBA, s 13, provides more favourable conditions which unions should seek to
incorporate in their CBAs such as: the period of breast feeding is two hours for a period of twelve months
and thereafter one hour for a period of six months; breast-feeding mothers shall not engage in shift work
before 8 am and beyond 6 pm, and where possible the child can be brought to the workplace to be
breastfed.
103
The Parliament Portfolio Committee Recommendations proposed a 21 days pregnancy – related leave
and 14 days paternity leave. Section 24 (1) of the ZCTU Model CBA provides paternity leave of a ‘period
of at least seven days before spouse’s delivering and 14 days after spouse’s delivery on full pay.’

34
The Labour ant documentsAct imposes a number of duties on employers on termination of the
contract and/or transfer of an employer’s business. The detailed discussion on termination is
carried out later. In summary the principal obligations of an employer include:
 Not to unfairly dismiss the employee - s 12 B (1). This means any dismissal or
termination must be procedurally and substantively fair. Thus this ousts the employer’s
common law right to summary termination of the contract or to terminate on notice for no
cause.
 Employees are entitled to due notice under s 12 (4) and to payment of due wages and
benefits on termination under s 13.
 Where the business is alienated or transferred in any way whatsoever, the contract is
deemed transferred to the new owner, unless it has otherwise been lawfully terminated,
although the former owner also remains jointly liable for any benefits and the employees
– s 16 LA.

Duty to respect the employees’ right to collective job action

Under s 104 LA employees, workers’ committees and registered trade unions are granted the right
to resort to collective job action or strike, to resolve disputes of interest, or to avoid any
occupational hazard which is reasonably feared to pose an immediate threat to the health or safety
of the employees or in defence of an immediate threat to the existence of a workers’ committee or
trade union. Under s 108 it shall no be a delict or breach of contract for the employees, workers’
committee or trade union to engage in lawful collective job action. Although the employer is not
obliged to remunerate striking employees it still has a duty, where appropriate, to continue
payment in kind “by way of accommodation, the provision of food and other basic amenities of
life…”

Employer’s vicarious liability for delicts of employee

At common law the employer has joint liability, in delict, for the employee’s “wrongful acts
committed in the course and within the scope of the employee’s duties…”Fawcett Security
Operations (Pvt) Ltd v Omar Enterprises (Pvt) Ltd 1991 (2) ZLR 291 (S).104
The definition of “employer” under s 2LA states that the term ‘employer’ includes “the
manager, agent or representative of such person who is in charge or control of the work upon
which such other person is employed.” This, therefore, makes employers liable for the acts or
omissions of their managers.
The test for whether the employee is acting within the scope of his / her employment is not
whether the employee was engaged in the affairs of the employer at the time, but whether his/her
act or omission constituted a negligent performance of the work entrusted to her or him. In the
Fawcett Security Operations (Pvt) Ltd case the court held that the employer of a security guard
who had stolen goods entrusted to him to guard was not liable, because the guard had acted
outside his mandate.105 But this decision has been justly criticized as creating a very low standard
of obligation on employers.106 Under the doctrine of vicarious liability, employers are held liable
not because of any morally irreprehensible conduct on their part, but for a number of reasons
including; they are the ones who have created the risk that has resulted in the harm to innocent
third parties; employers are likely to be in a much better financial position to provide relief to the
injured third party unlike the employee who is more likely to be a person of straw. The real
dangers of such decision become obvious in instances of misconduct by employees in the
104
Feldman (Pvt) Ltd v Mall 1945 AD 733; Nott v Zimbabwe African National Union (Patriotic Front)
1984 (2) ZLR 208.
105
See also South British Insurance Co. v Du Toit 1952 SR 239
106
Madhuku L, “Vicarious Liability of an employer for the delictual acts of his servant under Zimbabwean
law”, [1994] 38 (No. 2) J.A.L. 181

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disciplined force, where such a low standard could result in the state escaping liability for gross
and wanton human rights violations by such members.107 Thus, subsequently an employer of an
employee who commits theft was held vicariously liable in Fawcett Security Operations (Pvt)
Ltd v Rose S-21-00, following on earlier decisions like Nel v Minister of Defence 1978 RLR
455. See also - Cargo Carriers v BP Zambia Ltd HH -174- 97 and Biti v Minister of State
Security 1999 (1) ZLR 165.
The scope of employment may include acts done after hours or outside the mandate instructed
by the employer. Biti v Minister of State Security involved a driver not actively on duty, but
who was on call and required to look after the vehicle overnight as well as collect some
employees in the morning. On the occasion in question the worker, possibly drunk, rammed into
another car causing serious injury to the driver of that car. The High Court held the employer not
vicariously liable, but this was reversed by the Supreme Court, using the “creation of risk”
approach observing that the employer “by entrusting a motor vehicle to a relatively low paid
employee overnight had placed an enormous temptation in the driver’s way.” Old Mutual Fire
and General Insurance Co. of Rhodesia (Pvt) Ltd. v Britz 1976 (1) RLR 119 (A).
An important point to note is that many of the old cases on the vicarious liability of the employer
were developed when the dominant test used to define an “employee” was the supervision and
control test, which in turn was based on a unitary perspective. This was unduly restrictive
allowing many employers to escape liability especially a highly skilled or professional employee,
on the ground that the person concerned was not an “employee.” 108 However, given the pluralist
basis of labour law now including the broad definition of “employee” under s 2 using the
economic realities test, the scope of application has been expanded.

107
Similarly in Nock v. Minister of Internal Affairs 1939 SR 286 a hospital was held not liable for the
delicts of its physicians. But in Minister of Police v Rabie 1986 (1) SA 117 the state was held accountable
for the criminal behaviour of a member of the police force, in wrongfully detaining and assaulting a
civilian.
108
For instance Nock v Minister of Internal Affairs, ibid.

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