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The Supreme Court has reserved judgment in a case in which two Zuva Petroleum managers are challenging the legality of their employer’s actions of terminating their employment contracts through a mere three months’ notice.

Zuva Petroleum simply gave notice to terminate the contracts for Don Nyamande and Kingstone Donga without any disciplinary hearing, neither was there any retrenchment authority.

The company’s decision was premised on Section 12 (4) of the Labour Act, which it argues, empowers an employer to give three months’ notice for dismissal when he or she feels does not feel like offloading an employee. Section 12(4) reads:

“Except where a longer period of notice has been provided under a contract of employment or in any relevant enactment, and subject to subsections (5), (6) and (7), notice of termination of the contract of employment to be given by either party shall be–

a) Three months in the case of a contract without limit of time or a contract for a period of two years or more

b) Two months in the case of a contract for a period of one year or more but less than two years

c) One month in the case of a contract for a period of six months or more but less one year

d) Two weeks in the case of a contract for a period of three months or more but less than six months

e) One day in the case of a contract for a period of less than three months or in the case of casual work or seasonal work”

Chief Justice Godfrey Chidyausiku, sitting with four other judges, heard arguments from both parties but reserved judgment.

The company’s lawyer, Aocate Thabani Mpofu argued that common law empowers employers to terminate employment through a notice and that there was no other statute that takes away that right.

“There is therefore nothing in statute law, as it stands, which changes the clear position known at common law.

“The employer consequently has the right to terminate on notice. That right is recognised by common law and its exercise is facilitated by statute and that is the effect of Section 12(4).

“The net effect of any argument to the contrary is that Section 12 (4) is useless and there is no doubt that such an argument would itself be useless,” said A Mpofu.

However, Professor Lovemore Madhuku, assisted by Mr Caleb of Matsikidze and Mucheche argued that Section 12(4) only tries to standardise the notice periods and it does not gives the employer a right to hire and fire.

Prof Madhuku submitted that the purpose of the Labour Act is to aance social justice and democracy by giving effect to the workers’ fundamental rights.

He said Section 12(4) should be read together with Section 12(b) of the Act, which indicates that the employees have a right not to be unfairly dismissed.

The intention of the law, according to Prof Madhuku, was to protect employees from the unavoidable powers of the employers.

Source : The Herald

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