Labour Forum January 2018

LABOUR FORUM ISSUE 7 January 2018 www.ncslabour.co.zw @ncslabour on Facebook/ Twitter

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SEXUAL HARASSMENT IN THE WORKPLACE

Jan 2018. LABOUR FORUM. Page 2

EDITORIAL January 2018

A note from Gladys

CONTENTS Editorial ....................... Page 2

Happy New Year! I trust that you had an excellent holiday and that you’re ready to take on the new challenges that the ‘new dispensation’ will bring.

News ............................ Page 4 Trending Issue ............ Page 5

Here at NCS, there’s renewed viguor in our team to engage you more. You can expect more of sectoral level trainings and workshops that will be organised in partnership with NEC’s.

Labour Law ............... Page 7 Policy ............................ Page 8 Events ....................... Page 9

Labour Forum is NCS’s first electronic newsletter. The goal of our newsletter is to provide our established and prospective clients with news and info about human resources programs and events.

The newsletter is a free service emailed on a monthly basis with special editions throughout the year.

More so, we have committed ourselves to give you an interactive Labour Forum.

FAQ’s .......................... Page 11

Our Cover story and Special Feature focus on Sexual Harassment in the work place and how proving fraud requires high level skills.

The Pulse .................. Page 12

Thanks for sticking with US. Pleasant reading!

PUBLISHERS NCS LABOUR & TRAINING CONSULTANTS +263 71 261 7383 / +263 712 717 708 Unit 8 Aida Court, Windsor Park, Famona, Bulawayo. @NCSlabour (Facebook, Twitter, WordPress) WhatsApp Business : +263-9-75237

Gladys Mpemba.

Editor

First class Gladys - Thank you. - Sheona, Forever African Safaris So well put together and very informative.

Thank you for the hard work - Esme Devilliers Your first addition was quite good and this one is superb. You are doing a sterling job and your newsletter is quite informative and a joy to read. Keep up the good work and I can not wait for the next edition. - Bheki Moyo: Auto Tyres.

Another excellent newsletter. You are on a roll ….. good luck. - Les Ross: Girls College.

Congratulations Makorokoto. Thank you for your debut Newsletter. Well written and laid out. - Dr & Mrs Battey

Editor Gladys Mpemba Non-Executive Directors Shepherd Mpemba Chido Mpemba Contributor Peter Ngorima Administrator Lucia Murumbi Design & Layout Tam’sanqa Mhepoh (+1-402-304-6540 / +263-71-292-3105) mhepoh@gmail.com Images and Illustrations Tamsanqa Mhepoh

This month’s profile: Steve Lea- Genral Manager- Bonsa Spar

Congrats Gladys and team- very well presented and informative.- Anne Middleton -ER York.

GET YOURSELF AHEAD

WITH NCS LABOUR RELATIONS PUBLICATIONS

Retrenchment Disciplinary Procedures DIY – ONUS – He who Procedures & Labour Act Handbook.

Contracts of alleges must Guiding Court (Chapter 28:01).

(A practical employment. Updated to prove.

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Interested? Contact Gladys or Lucia on NCS Labour Relations Consultants 0712 617 383 or 0712 717 708 Unit 8 Aida Court, Windsor Park, 16th Ave, e- mail: ncslabour@gmail.com Famona, P.O. Box 215, BULAWAYO.

Page 3. LABOUR FORUM. Jan 2018

ABOUT NCS

LABOUR COURT RULES

& RETRENCHMENT PROCEDURES

S E M I N A R 2018 2 FEBRUARY | 8.00AM - 2PM SETHULE LODGE,BULAW A Y O

Understanding New Labour Court Rules Enacted December 2017 And Practical Retrenchment Procedures SPEAKERS FROM Retrenchment Board Legal Fraternity Labour Court (Registrar) FACILITATOR Gladys Mpemba

CALL NOW TO REGISTER LUCIA:0712 717 708 GLADYS:0712 617 383 OFFICE :09-77405 WWW.NCSLABOUR.CO.ZW

4 Lois Lane, Eloana, Bulawayo, Zimbabwe.

Reservations: +263-9-77405 /+263-77-554-5983 www.retreatlodge.co.zw

Jan 2018. LABOUR FORUM. Page 4

NEWS NEW LABOUR COURT RULES & PROCEDURES

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ISSUE 7 January 2018 www.ncslabour.co.zw

fter the promulgation of the Labour Amendment Act Number 5 of 2015, the Labour Court of Zimbabwe revamped its Court procedures and rules to align with the Amendment Act and these revisions were effected in 2017.

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On the 22nd of December 2017, the Ministry of Justice and Judicial Services gazzetted Statutory Instrument (SI150/2017) to streamline labour processes which are rules and procedures.

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SEXUAL HARASSMENT IN THE WORKPLACE

CONSTRUCTION INDUSTRY NEC

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@ncslabour on Facebook/ Twitter

Trending

It’s a reality that the Labour market is changing fast. It therefore means that players have to be at pulse with emerging developments in order to achieve efficient dispute resolution and harmonious industrial relations.

tatutory Instrument 45 of 2013 being the Collective Bargaining Agreement for the Construction Industry defines Construction Industry as meaning: without in any way limiting the ordinary meaning of the expression and subject to the inclusion stated at the end of this definition, the industry in which employer and employee are associated together for all or any of the following purposes, this is to say the construction, finishing, renovation, reparation, alteration, maintenance and demolition (including the associated excavation and other works and stabilization and scaffolding work) of airfield runways, aprons and other surfaces, aqueducts, bins, bridges, bunkers, cableducts, caissons, canals, cement-grouting, chimneys for factories or works, cooling and water towers, dams, docks, encasements,

LABOUR FORUM

fences, filer-beds, gates, grave-stones, harborworks, hydro-electric installation, irrigation works, mine shaft collars, monuments, piers, pile-driving, pipelines, quays, rafts, railways, reservoirs, river-works, roads, sewage works, sewers, shafts, silos, streets, swimming pools, thermal installations, toms, and tombstones, walls (boundary, garden, and retaining) wharves, and any other works of a similar nature, as well, as the making or articles(subject to the limitations contained in the definition of “joinery”) for use in such operations whether the work is performed, the material is prepared or the necessary articles are made on the sites of those buildings, structures or other works or elsewhere, and includes all work executed or carried out by persons in the industry who are engaging in the following activities or subdivisions thereof.

DISCLAIMER Labour Forum is not meant to be an exhaustive legal reference or a substitute of the statutes .It is among others, an explanatory guide to those parts of labour relations and human resources that directly affect the employment relationship.

The information, opinions and views set out in this publication are those of the author(s) and do not necessarily reflect the official opinion of NCS, executive members nor any of their partners.Neither NCS Labour Consultants nor any person acting on their behalf may be held responsible for the use which may be made of the information contained therein. Rights to the photographs and articles remain with the photographers and with the authors respectively. Contact NCS Labour for reproduction. While all care has been taken during editing, errors and omissions may slip through and we sincerely apologise for these

MEET OUR TEAM

Shepherd and Chido Mpemba (Non Executive Directors)

Gladys Mpemba (Principal Consultant)

Lucia Murumbi (Administrator)

Godfrey Makasva (Office Assistant)

Page 5. LABOUR FORUM. Jan 2018

T R E N DING IS SU E

SEXUAL HARASSEMNT IN THE WORKPLACE

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ounds far-fetched? It’s more prevalent than we realise.

From unwanted physical contact, inappropriate remarks and wolf whistling to rape. Sexual harassment is bad behaviour that usually happens behind closed doors and goes unreported.

Victims of sexual harassment in the workplace often experience severe trauma, anxiety, depression and feelings of low self-esteem; and will adversely affect their moral and job performance.

31% of women out of 132 employees interviewed in a survey by the Zimbabwe Congress of Trade Unions (ZCTU) and Zimbabwe Banks and Allied Workers Union (ZIBAWU) in 2016 indicated that they had been victims of sexual harassment or had witnessed sexual harassment in the workplace.

Out of the individuals who indicated that they had been victims of sexual harassment, only 34% had reported these cases.

61% of participants in the study were female.

Women are more affected by forms of Gender Based Violence such as sexual harassment than men.

Quoting the Labour Act Chapter28, section 8, Labour consultant Gladys Mpemba defined sexual harassment as unwelcome sexually

by Tam’sanqa Mhepoh

determined behaviour towards any employee, whether verbal or physical.

Mpemba added that, “Sexual harassment is a form of unfair labour practice that can be perpetrated against both man and women, by either employees or superiors.”

“Sexual harassment by employees of the same level usually has no direct link to job benefits,” said Mepmba. “However, sexual favours demanded by a superior may result in promotion if granted or victimisation if denied.”

Forms of sexual harassment

Dr Sibongile Kamusoko, Dean at the National University of Science and Technology mentioned the following as forms of sexual harassment: Verbal harassment: offensive or suggestive remarks, comments, jokes, jesting, kidding, sounds and questioning, Non-verbal/gestural harassment such as leering or ogling (to look at someone in an unpleasant way) with suggestive overtones, licking lips or holding or eating food provocatively, hand signal or sign language denoting sexual activity, and persistent flirting (to behave towards someone in a way that shows you are sexually attracted to him/her, although you do not really want a relationship with him/her); Visual harassment: showing pornographic materials,writing sex-based letters or sexual exposure;

Psychological: repeated unwanted social invitations, persistent proposals for dates or physical intimacy; and Physical harassment: inappropriate touching, patting, stroking, brushing up against the body, hugging, kissing, fondling or sexual assault.

Why victims hardly report sexual harassment?

Mpemba said that victims do not report most cases of harassment for a variety of reasons.

“Women and men that are harassed at work don’t come forward because they are afraid of victimisation or reprisal,” Mpemba said.

“Sexual harassment is a highly personal issue which victims may be unable to open up about ,some also fear losing their jobs.”

What are the procedures to be followed if an employee reports harassment?

Sexual harassment is a dispute of right because the law clearly prohibits it.

Employers should follow disciplinary procedures as listed by their own or the employment councils’ code of conduct : However, top level executives may not be covered by the NEC ‘s code of conduct, hence sexual harassment complaints must be taken to the Department of Labour.

Jan 2018. LABOUR FORUM. Page 6

FEATURE PROVING FRAUD REQUIRES HIGH LEVEL SKILLS

by Ivan Israelstam

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orkplace fraud, by its nature, is a secretive act. It is a type of dishonesty that is normally committed in such a way that its very existence is concealed. Collins Concise Dictionary defines fraud as “deliberate deception, trickery or cheating intended to gain an advantage”.

This means that those frauds for which employees have been caught are likely to be only the tip of the iceberg. As shown in the Rope constructions case reported later in this article, even apparent frauds discovered by employers may go unpunished because of lack of proof that the accused was, in fact, the fraudster.

In order to prove fraud, the employer must show that the accused employee was the one who committed the act and that he/she did so for gain. However, such gain would not have to be confined to direct financial advantage. The fraud could be committed for the advantage of a friend or family member or could be a means towards gaining the perpetrator a job.

For example, claiming false qualifications for a job would be fraudulent in the sense that the job applicant would be gaining employment based on a lie.

While fraud can occur at any level it is at its most dangerous at the upper levels of the organisation. This is because of senior employees:  often have easier access to bigger amounts of money  can cause great damage to customer relations  can be in a better position to cover up irregularities  are often trusted more than are junior employees The employer’s strategy for combating employee fraud needs to be based on two broad approaches, namely, prevention and reaction. Prevention involves the principle

of trusting nobody and the implementation of comprehensive safeguards. These could include measures such as video cameras and telephone conversation recordings, authority levels and procedures, access controls and auditing procedures amongst others.

Reaction involves taking seriously all reports or hints of irregularities, swift action and, above all, building a cast iron case against the accused. Failure to do so properly can result in the dismissed employee being reinstated simply because the employer failed to prove the employee’s guilt at the CCMA or bargaining council.

In the case of CEPPWAWU obo Limba vs Consol Glass (2009, 5 BALR 431) the employee was dismissed for fraud after he completed a

“...In order to prove fraud, the employer must show that the accused employee was the one who committed the act and that he/she did so for gain...” form wherein he claimed to have conducted a sample check. It was established that he had not, in fact, conducted that check and that he should not have completed the form. At the arbitration, the employer was unable to convince the commissioner that the employee had completed the form for reasons of fraud.

The commissioner appeared to believe that the employee had made an error by completing the form. In view of this and due to the fact that the employee had not been given the opportunity to cross-examine his accusers the commissioner found the dismissal to be unfair and ordered the employer to reinstate the employee with back pay.

It is possible that, after completing a sample check, the employee could make some errors

while completing the check confirmation form.

However, it is most unclear how an employee could logically complete an entire check confirmation form by mistake. In the absence of a clear and credible reason for making such an alleged error, I would submit that the balance of probabilities are that the employee completed the check form intentionally and that he did so dishonestly in order to make it appear that he had completed the check. It might be argued that this was a type of ‘fraud’ in the sense that he would have gained from it by dishonestly avoiding having to do the work necessary to complete the sample check.

Employers need to understand that legally, where they wish to infer that an employee committed fraud, they must at least be able to prove that the false act could not have been carried out in error. This illustrates the urgent need for employers to make improvements to their evidence preparation skills and labour law expertise. The optimisation of these skills is crucially important because:  the employer has the full onus of proving that the employee was guilty of the charges and hence that the dismissal was fair;  Many commissioners see the preservation of the jobs of employees to be of great importance and will not be likely to uphold a dismissal decision unless the employer has succeeded in convincing the commissioner that dismissal is fully justified;  Employees have access to highly experienced and skilled trade union officials to represent them Ivan Israelstam is Chief Executive of Labour Law Management Consulting in South Africa and has presented at NCS Labour Relations Seminars. You can see more on his blog www.labourlawadvice.co.za.

Page 7. LABOUR FORUM. Jan 2018

POL IC Y

What is ‘Unfair’ in Labour Law

by Ivan Israelstam

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f all the confusing legal terms used in labour law the one that keeps most judges, arbitrators, employers and legal practitioners awake at night is the term “unfair”. The term is not defined in any of the statutes which leaves the decision of what is “unfair” to whoever is applying their mind to each individual case where unfairness is being alleged.

It would, ironically, be unfair to blame the legislators for failing to provide a definition of the term because the concept has such wide connotations and is so susceptible to subjective interpretation.

However, every employer needs to have a grasp of the legal meaning of “unfair” in order to avoid the legal repercussions of doing anything unfair to its employees.

In seeking the meaning of this elusive term we need to look at dictionary explanations and definitions, at statutory expressions referring to the term and at the way in which the courts interpret it.

DICTIONARIES The Soule Dictionary of English Synonyms lists under “unfair” the synonyms: “unjust, inequitable, partial, dishonest, dishonourable, disingenuous, one-sided, unequal, insincere, uncandid, false, hypocritical, faithless, oblique, truthless”.

Certain of these terms such as dishonest and faithless can relate to unfairness in specific contexts but do not assist us in our search for the meaning of “unfair” in the area of labour law.

However, in my view, terms such as “onesided” and “unequal” contain strong elements of what “unfair” means in labour law. That is, the concept of imbalance plays a significant part in my own interpretation of the term “unfair”.

The Collins concise Dictionary defines “unfair” as “characterized by inequality or injustice. Dishonest or unethical”. Again the concept of inequality plays a role in defining what is unfair.

However, inequality or one-sidedness do

not fully explain the concept of unfairness in labour law because there are many examples of one-sidedness that are not seen in labour law as unfair.

For example, giving company cars to mangers and not to lower level staff is one-sided but is not per-se unfair. On the other hand, it is hard to find an example of unfairness that does not have an element of one-sidedness.

STATUTORY TERMS Section 65 of the Constitution of Zimbabwe states that “everyperson has the right to fair labour practices and standards.” The word “right” in this legal provision is useful because infringing the rights of an employee is likely to be seen as unfair in labour law.

The Labour Relations Act (LRA), born from the Constitution, provides that “every employee has the right not to be(a) unfairly dismissed; and (b) subjected to unfair labour practice.”

Section 12B of the LRA provides that a dismissal is automatically unfair if it has an unfair reason. The section then lists the reasons for dismissal that would be unfair.

For example, if the employee was fired because he/she had exercised his right to take action against the employer in terms of the LRA, this retaliatory dismissal would be automatically unfair. Again, we have an example of the employer’s interference with an employee’s right being defined as “unfair”.

Section 12B of the LRA deems a dismissal to be unfair, even if it is not automatically unfair, if the employer fails to prove(a) that the reason for the dismissal is a fair reason; and (b) that the dismissal was effected in accordance with a fair procedure.

This section explains neither what is meant by “a fair reason” nor what a “fair procedure” is.

However, common law has established guidelines in these regards For example, any person deciding whether a misconduct dismissal was fair must, amongst other things determine whether the dismissal was an appropriate sanction for the

“... The word ‘appropriate’ in a labour law context implies that if the employer’s decision is ‘inappropriate’ it could be deemed unfair..” contravention of the rule that was contravened by the employee.

The word “appropriate” here again gives us a clue to what is “unfair”. That is, if the employer’s decision or action is inappropriate it could be unfair in labour law. The word “appropriate” in a labour law context implies that the employer’s action must be appropriate in the context of the specific situation in which the action was taken.

Another way of putting this is that ‘the punishment must fit the crime’. If the employee is fired for a minor infringement or where circumstances reduce his/her liability a dismissal would usually be inappropriate and therefore unfair.

The challenge is then to decide what penalty is appropriate in each circumstance. This is not a simple matter but the general rule of thumb is that to consider dismissal for an offence that has had a most serious consequence would not be unfair unless relevant extenuating circumstances exist.

In summary, the act of an employer would be seen to be unfair if it infringes the employee’s rights, is one-sided, unnecessary and/or inappropriate under the circumstances.

Ivan Israelstam is Chief Executive of Labour Law Management Consulting in South Africa and has presented at NCS Labour Relations Seminars.Our thanks to Ivan and The Star newspaper for allowing us to reproduce their info.

Jan 2018. LABOUR FORUM. Page 8

L AB OU R L AW

UNDERSTANDING CONSTRUCTIVE DISMISSAL (Part 2)?

by Wiriranai Mateveke

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t has come to my notice that there has been an upsurge of reported cases of Constructive Dismissal brought to my attention for conciliation and subsequent ruling. In the majority of the cases the arguments cited by the claimants would not be credible or sufficient to qualify the complaints as outright constructive dismissal. In view of the foregoing, the influx of cases of this nature prompted me to focus on the subject to guide those who strongly believe that their cases are relevant to the claim as well as employers who are battling allegations of the same nature.

In Astra Holdings (pvt) Ltd (Appellant) vs Peggy Kahwa (Respondent), SC 97/04, it was held that constructive dismissal takes effect when an employee terminates employment following ill treatment by the employer. In advancing such a claim, the employee is ordinarily expected to prove that resignation was in response to a fundamental breach of contract in response to issues like isolation, humiliation in front of others or falsely being accused of misconduct.

Further, it was held in the same case above that for constructive dismissal to succeed, the employee must prove a fundamental breach, than just a minor one.

In employment law, constructive dismissal occurs when an employee resigns as a result of the employer creating a hostile work environment. Since the resignation was not truly voluntary, it is, in effect, a termination. Other circumstances that constitute constructive dismissal include such scenarios where an employer places extra ordinary and unreasonable

“...When an employee quits work because the employer was hostile..” work demands on an employee to obtain their resignation; this is tantamount to constructive dismissal. Some employers create a toxic work environment, this is classically defined as unjustified criticism as well as vague and unfounded accusations of poor performance, especially where authority and respect with co worker has been seriously undermined and compromised. The fundamental breach of contract highlighted earlier on should be significant and traced to the root of the employment contract.

All contracts of employment have both the expressed and implied terms which parties should not contravene. Breach of mutual trust and confidence that is implied into all contracts of employment can be distasteful to parties to an employment contract.

An employee must sufficiently justify that his resignation following a perceived constructive dismissal was motivated by these or related reasons:  Humiliation, degrading or discriminatory treatment,  Re-assigning of duties to a colleague or their dramatic change thereof,

 Reduction of pay without misconduct or consensus,  Being bullied, belittled or psychologically harassed,  The act of the employer ignoring complaints,  Criticism in front of subordinates,  Disproportionate disciplinary penalty on an employee,  Demotion or change of responsibilities or position, such change should be significant enough to have fundamentally altered the terms of the employee’s terms of the contract.

Employees have to prove that their decision to terminate employment was in response to a perceived breach, not, for example, that one got alternate employment. In deciding cases of this nature, the court or tribunal would satisfy itself that the employee did not delay too long in resigning otherwise he would lose his justification for the constructive dismissal claim.

The courts also consider the significance of the variation of the terms of contract. Often, conditions of service provide for a grievance procedure in which case the employee would be expected to have made a prior attempt to resolve the complaint through that route before jumping ship.

It is my sincere hope that where employees have to advance a constructive dismissal claim, it must be a justifiable one in order to avoid a situation where one quits employment with the hope that the courts would uphold his viewpoint only to lose both sides.

Page 9. LABOUR FORUM. Jan 2018

EVENTS EVENTS TO LOOK FORWARD TO 1. LABOUR COURT RULES & RETRENCHMENT PROCEDURES SEMINAR 2018 There are new Labour Court Rules that came out in December 2017.

The Court Rules have been revamped so that they are aligned to the Amendment Act No 5 of 2015. It’s therefore imperative to appraise HR Practitioners, Industrial Relations Practitioners, NEC Officials and all those that deal with labour matters. This is a must attend. The new rules are now operative. You have to understand the technical details of the revised preocedures and rules.

2 February 2018. Sethule Lodge Bulawayo, Zimbabwe. Registration: +263-9-77405, +263-71-261-7383, +263-71-271-7708

# Q u o t e s 4 S u c c c e s s 1.Don’t chase people. Be yourself, do your own thing and work hard. The right people- the ones who really belong in your lifewill come yo you and stay - Will Smith 2.The greatest accomplishment is in never falling, but in rising again after you fallVince Lombardi

3.Put your slippers way under your bed so when you get up in the morning, you have to get on your knees to find them.

And while you’re there, start your day with prayer - Denzel Washington 4.New Year’s Day. A fresh start. A new chapter in life waiting to be written. New questions to be asked, embraced, and loved. Answers to be discovered and then lived in this trans-formative year of delight and self-discovery. Today carve out a quiet interlude for yourself in which to dream, pen in hand. Only dreams give birth to change - Sarah Ban Breathnach

Register and pay to attend upcoming events from the comfort of your office or mobile phone. Simply visit the NCS Events page online. www.ncslabour.co.zw/events

Jan 2018. LABOUR FORUM. Page 10

PROFILE

Meet Steve Lea, the Lucky Fella

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onsa Spar along Cecil avenue in Hillside is almost always open.

On some days, the parking lot is jammed and aisles are teeming with busy people, searching for a couple of things to spend money on.

Customers from all walks life wander about, some from the Hillside area and others from elsewhere in the country or even abroad, just passing by.

Sitting in an enclosed and elevated cubicle on the front right corner of the shop is one lucky gentleman, Steve Lea, the General Manager.

Whilst most managers in the retail business have to deal with endless cases of employee dishonesty or malcontent, these issues are few and far between for Lea in his supermarket.

In simple math, their tally sums up to just one in every 3 years.

“I have virtually had no chaos with employees here, only two retrenchment issues ever since I joined Bonsa,” said Lea. “I’ve been with Bonsa Spar for seven years and it’s close to two years now as General Manager.”

Lea’s work day starts at 7 a.m.

As General Manager, literally, of people and merchandise at Bonsa Spar, Lea does everything humanly possible to keep the supermarket running smoothly.

Sometimes, it takes up to ten hours per day to do this job.

It has even cost him his favourite past time, a coaching post with the Women’s and Juniors Bank Angling Team of the country.

Still, Lea does not complain.

by Tam’sanqa Mhepoh

“...I have virtually had no chaos with employees here, only two retrenchment issues ever since I joined Bonsa...”

The ups and downs fascinate him.

“We’ve been riding a wave for the past number of years, different challenges and different approach to business, it’s been exciting, moving from one chaos to the other,” remarks Lea as he speaks about the current situation in retail management.

The retail industry in Zimbabwe has been dogged by one crisis after another. From lack of stock to lack of cash, and then difficulty sourcing stock.

But still, Lea calls retail management “…a way of life.”

Surely it is. He’s been on this road for the past 40 years.

Lea worked as a cashier at a Spar shop in the 70’s as a young man, then ran his own Spar franchise between 1982 and 2009 in Fourwinds, Bulawayo.

In fact, he regards himself as one of the oldest Spar members in the country.

However, for a life given to retail, you would think it’s been nothing but lousy.

Between 1978 and 1982, Lea switched trade and joined the police force. Then for ten years in a row (1990 -2000) Lea represented Zimbabwe in the USA in the BASF fishing tourna-

ment. In the new millennium, he has had time to coach Women’s and Juniors team in Bank Angling.

Going into the new year, Lea hopes to leverage on the new dispensation in the country and the support of his directors to grow the Bonsa Group and build more rapport with customers of the Spar shop.

“I work closely with my directors like Posh [real name Himashu Parshotham] and rely on them for advice,” said the former Bank Angler and Fisherman extraordinaire. “They are one of the most passionate retailers I have ever seen.”

Furthermore, he added that NCS Labour Consultancy is always on call to solve labour issues fairly when they arise.

Lea calls retail management “…a way of life.”

Isn’t Steve Lea a lucky fella?

He’s a man in pursuit of passion and it pays him, He always finds an upside even in circumstances that others would dread, He’s got a team of directors and employees who are just as passionate about the job, and NCS Labour Consultancy is always on call to solve labour issues fairly when they arise.

Page 11. LABOUR FORUM. Jan 2018

FAQ S Welcome to the Frequently Asked Questions section or FAQ! In this section we hope to post brief Articles describing many of the issues that most frequently affect NCS clients. We will also include full manuals and information on trainings that we can provide on an as-needed basis.We have done our best to provide detailed information that you will likely need to use in your endeavour to achieve good relations with employees in your organisation. However, contact us for assistantance implementing the recommendations in this section. We will continue to develop this section as new questions and/or solutions arise. You may want to bookmark this page and check back whenever you run into problems.

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an hearings be held collectively even for similar cases?

Each employee has an individual contract of employment with the employer therefore its termination should be individually done.

Disciplinary hearings should be conducted separately for each employee. This also assists with assessment of both mitigating and aggravating circumstances.

Refer: Cargo Carriers Vs. Zambezi and another SC 82/96.

Mangosho vs. UDC HC 91272/1993.

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t internal company disciplinary proceedings, can one person act as both prosecutor and presiding officer?

It is a fundamental rule of law that the role of the judge and prosecutor be clearly separated. However it is quite permissible in quasi-judicial proceedings where the code of conduct expressly makes provision for it, for an employer’s representative to conduct both the investigation and the hearing.

Refer: Section 6 of S.I. 15 of 2006 ZFC Ltd vs. Eunice Geza SC 14/1998.

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f an employee does not attend a disciplinary hearing, can the proceedings still continue?

Although an employee with misconduct has a right to be heard at a disciplinary hearing, he may waive that right and the hearing may proceed in his absence. There is no compulsion upon the employee to attend the hearing.

Non attendance is not a disciplinary offence unless specified in the pertaining Code of Conduct. If the employee does not attend, he abandons his right to be present and the hearing may proceed in absentia.

Refer: Munyuki vs. The State SC 20/1998.

termination, the employer would still have to pay at the rate applicable at the time of termination with interest to make up the for the delay in payment unless if the other party negotiates for a better rate to be used for the delayed calculation or where the collective bargaining agreement specifically relates to calculation at current rates.

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Section 12D of the Labour Act provides that an employer may agree with the employees concerned or with any workers committee, works council or employment council to have recourse to short time. Should there be no agreement at workplace level, the employer may approach the National Employment Council for the particular Industry. If the NEC is not forthcoming with the required assistance, the Retrenchment Board should be approached as short time is a measure to avoid retrenchment and would fall within their jurisdiction. The approach to the Retrenchment Board can be made through the Local Labour Office.

The Courts hold that it is permissible to seek discharge of the employee on the basis of non–disclosure. This would be considered an act inconsistent with an implied condition of his contract of employment. There is need for properly recorded selection procedures from the time of a written application to the interview up to the time of engagement so that if something material is not disclosed, it can be proved.

f employee representatives or employees refuse to agree on short time,what recourse does the employer have?

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ow do we calculate gratuity that has been delayed to be paid? Do we pay on current rates of pay or on the rate of pay at the time of termination?

In most collective bargaining agreements, there is a section on gratuities and the way it is calculated. Generally, gratuity is calculated at the rate of pay at the time of termination because that is when it is applicable. Should there be an oversight to pay it at the time of

f an employee does not disclose certain information at interview and the employer gets to know about it later, can the contract be terminated?

Also, fraud committed in order to secure employment may render the employment contract invalid in which case an employee who has been dismissed will have no basis for any complaint against the employer.

The effect of a misrepresentation, whether innocent or fraudulent, may be to induce in the mind of the innocent party a mistake of so fundamental a nature that his apparent assent to the contract is in truth not assent at all. In such a case, for lack of assent there is no agreement and therefore no contract Refer: Mirirai Zata and Others vs. Harare City Council SC 74/99

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Jan 2018. LABOUR FORUM. Page 12

THE PULSE

Your Story Matters ...

At NCS Labour Relations and Training Consultants, clients are our number one priority. We are proud to work with some of Zimbabwe’s best known brands.

Have a look at some of the organisations we work with and hear what they have to say about our services.

M

orven Mine is a small to medium sized mine and has been a going concern for some 40 years. The majority of our labour was permanent, long service employees.

A few years back, due to the lack of production and escalating costs we found it necessary to retrench some of our employees.

We found that the information that we were being given was very confusing, along with the impossible task of trying to decipher the Labour Acts, with the addition of Bargaining Agreements and many other legal documents being thrown into the mix.

Also, the Unions, who can often be very intimidating to the employer who is not fully versed in the complete labour law system, were quite difficult to handle. This is when we first engaged NCS to facilitate the retrenchments on our behalf.

Once again, this year, we found ourselves in a similar if not worse position. We did not hesitate to contact Gladys Mpemba of NCS Labour Consultants. She dealt with all negotiations with the Workers Committee, the NEC officials, the Unions and all other interested parties, to facilitate the retrenchment of the whole of our labour compliment.

This was achieved with utmost integrity and efficiency.

On every occasion that we have dealt with NCS we have found Mrs Mpemba and Lucia to be most professional, and their knowledge on labour issues is vast.

They are pleasantly accommodating and have always been available to meet to discuss the smallest issues that may arise. It is a pleasure to deal with expert knowledge like this, on the very often, confusing intricacies of our labour laws.

It is our experience, that with the assistance of NCS, a fair outcome for both the employer and the employee is always the result.

- J.E. HARRIS t/a MORVEN MINE PROPRIETOR

Our Landline Number +263-9-75237 is now on WhatsApp. Save it and reach out to NCS Labour. Yes Landline Number! Call or WhatsApp +263-9-75237