Murowa in unfair employee contract termination

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By Perseverance Javangwe

RZM Murowa (Pvt) Limited has allegedly been accused of unfairly terminating contracts of some employees without clear clarification despite the contracts of employment still binding while allegedly claiming mutual agreement.

A source which spoke on condition of anonymity told this publication that Murowa recently dismissed five workers who were still under contracts. Some of the employees refused to sign the termination of employment contract but were, however, told that their contracts have been terminated as of February 28, 2021.

In an audio received by this reporter Keith Mashinga who is the Human Resource Superintendent at RZM Murowa is heard confirming to one of the employees who had his contract terminated that working at the company had ceased, without both parties agreeing to sign the mutual termination contract

“…the effective date is 28 February as the letter says…that’s the termination date,” said Mashinga in the audio.

This is despite the fact that RZM Murowa Mutual Termination Of Employment Contract addressed to one of the employees, stipulates in article V on Entire agreement, that the mutual agreement can however become valid if both the employer and the employee have signed the document.

“This agreement constitutes the entire agreements between the employer and employee. The agreement shall become a binding document upon both parties signing this document. No variation of this agreement shall be binding unless and to the extent that the same is recorded in a written document executed by both parties.

Speaking to this publication another employee who was dismissed, Selestina (not his real name) stated that he was unfairly treated when he was let go without valid reasons for his dismissal. He also stated that there was no consultation from the other party on the dismissal hence the decision was unilateral and lacks legal impetus.

“These people take us as fools. They have in their termination letter stated that myself and Murowa have agreed to this termination when in actual fact they are the ones who drafted an agreement without affording me my right in terms of the Labour Act to be consulted on this issue which affects my life and future. Life is tough in the country especially during this covid-19 period. What surprises me is that they have put forth an agreement to me as a final document and it comes without any basis on how the employer arrived at this decision and the underlying causes.

“It all started when I was transferred for no clear reasons some few months back when they moved me from a department that was highly intact to a lower rated one with no clear reasons as to why they were doing it. I don’t even understand the criteria they used to pick me as a candidate for the change in department. At first I didn’t get a clear view of what was happening, only to realise later on that it was a calculated move to terminate me from employment,” says Selestina.

Selestina further stated that if there is need for a trial to assess his performance in accordance with the laws of the companies he is ready to stand and be tried and if found guilty be dismissed according to the law other than being unfairly dismissed.

“If you look at all this, it seems the other Party is wielding an axe and wants to make me assume that i have agreed to this termination when I haven’t. I suspect this has been made in pursuit of some arrangement to summarily dismiss me from employment. But if my termination is in terms of the Code of Conduct, i therefore stand ready to be tried under the correct Code of Conduct,” he said.

However, Mashinga referred this reporter to the Vice President Human Resources Administrator. “Issues to do with media correspondents are being handled by the Vice President Human Admin,” he said.

Called for comment on the matter, the Vice President Human Resources Administration for Murowa Islam Chipango could neither confirm nor unconfirm the illegal impace between the employer and employee but chose to be evasive. However, his statement implicitly confirmed that there is a legal impace between the parties.

“We are speaking to them and also through their lawyers. I think to them it will not be fair, and also to us it will not be fair. So I will not make any further comments regarding to that issue. They are still our employees, they were not dismissed, we are still with them, we are talking to them, through their lawyers, and us we actually had a meeting with them on Friday. They might not be necessarily becoming for work whilst we are still discussing, but they are still our employees.

“We let the matter be manged properly through legal moves following the provisions of the Labor Act, which is what we are doing. Let’s allow the process to go through before concluding. In any case before concluding that this is fair or not fair I think we have not yet reached a stage whereby we can say an employee was fairly or unfairly dismissed or removed, no one was removed from work, those are our employees we still have them, we are still talking to them through their lawyers and us here,” he said.

Selestina and his other co-workers who have been dismissed have since involved lawyers to intervene since they feel that the company is abusing their rights. They have engaged Caleb Mucheche and Partners Law Chambers, to help them. In a letter that Caleb Mucheche and Partners Law Chambers drafted and signed addressing RZM Murowa and was seen by this reporter, it is a violation of the constitutional labour rights for the company to dismiss employees in the name of mutual agreement when both parties have not agreed on signing.

“The employer party purported to unilaterally terminate their employment contracts under the guise of alleged mutual termination of employment in terms of Statutory Instrument 15 of 2006 section 5 (c) but as a matter of fact and law there was no “mutual” termination as alleged at all. For the avoidance of doubt, the law requires that any mutual termination of employment be in writing, agreed upon by the employer and employee parties and bear both signatures of the aforesaid consenting parties and not one party foisting it on another.”

“Suffice to underscore that our clients’ legal rights and jobs are jealously guarded from any illegal termination by Section 12B (1) of the Labour Act (Chapter 28:01) which categorically and equivocally provides in an instructive way that “Every employee has the right not to be unfairly dismissed”

“In the same vein arbitrary termination of an employees contract of employment by an employer outside the four corners of the law is expressly prohibited in terms of the mandatory/peremptory provisions of Section 12 (4a) of the Labour Act. Needless to reiterate that any unfair or unlawful termination of our clients, contracts of employment is a gross violation of their constitutional labour rights embedded in terms of Section 65 of the constitution of Zimbabwe,” read the letter.

Meanwhile Legal Practitioner Lazarus Maposa stated that the termination effected by Murowa failed to take into cognicent the basic rights and obligations of both parties in a contractual relationship.

“Termination on mutual agreement by any parties in an employment relationship is by no doubt one of safest forms of separation, primarily because of the mutual effect that brings the contractual protagonists at the core cause of the action. Whilst the instant circumstances do not necessarily require the details of the contractual agreements that were subsisting at the time of termination, a basic understanding of the law is relatively sufficient enough to conclude on balance of probabilities that the termination that was effected by RZM Murowa (Pvt) Limited herein referred to as the employer failed to take regard of the basic rights and obligations of parties in a contractual relationship.

“It is common cause that the procedure for mutual termination is provided for under section 12(4a)(b) of the Labour Act, Chapter 28:01. It being a consented exercise, the law gives the parties an opportunity to exercise a collective and amicable role to discontinue with the employment relationship and to the separation packages accompanying thereof. Whilst the law confers these rights to parties, due regard must be paid to the underlying principles that satisfy or qualifies a separation that culminates from a mutual route, and two following precautions are necessary; firstly the parties involved must be fully aware of the nature, form and legal consequences underlined thereto and secondly in doing so, the process would have been born out of meeting of minds by the parties, each one of them committing to the termination voluntarily.

“Once a termination that has been effected in the name of a mutual route fails to take due regard to the aforementioned precautionary steps, the termination becomes a unilateral decision by a single party and will not be accorded recognition as one that is born out of meeting of minds. The termination thus becomes unfair in all material respects. Having given that insight, the present circumstances swiftly draw my attention to the Supreme court case of Magodora and Others v Care International SC/91/13. Although I acknowledge that the circumstances in the cited case are distinguishable, there are pertinent remarks made by the court then and can hardly be left untold for purposes of emphasis. The court had this to say: ‘…It is not open to rewrite a contract entered into between the parties or to excuse any of them from the consequences of a contract that they entered into freely and voluntarily accepted, even if they are shown to be onerous or oppressive…’

“The underlying principles of contract law are pertinent in the preceding remarks from the court. A binding contract is one that indicates the meeting of minds by two capacitated parties and this is often expressed through the appending of signatures . One party thus cannot unilaterally vary an agreement to the consequence of unceremoniously rendering the other redundant without having to follow the due process that made the same come into being. In short, none of the parties will be excused for either the foreseen or the unforeseen consequences of the contracts and any form of variation should certify the tenets of our law failure for which the legal consequences will be far reaching,” said Maposa.

Maposa stated that the termination contract also lacks legal basis and that it draws the attention of Section 12B of the Labour Act which deals with unfairness in terms of dismissal.

“I am of stern understanding that the terminations that were effected by the employer in the guise of a mutual agreement are a legal nullity, they lack the qualifications due, they suffer from legal barrenness and cannot sustain any valid argument before any competent court or tribunal of this land. Consequently the results born out of such barrenness are akin to putting nothing on something and then expect such to stand. The cause of action, the action itself together with its consequences are void ab-initio.

“I will not seek to pre-empt the legal fatalities that will obviously be suffered by the employer in this case, apparently the employer is likely to suffer the allegation of unfair dismissal, the fate for which follows the rules of the thumb. It is common cause that the consequences of unfair dismissal are far reaching and will take the two remedies one being the major and the other being the alternative. At the conclusion of the case, the court is more likely than not to order reinstatement or payment of damages in the alternative and on condition that the employer is able to prove the supervening impossibility of the major.

“To sum up this I can say that a claim of unfair dismissal is bound to draw the attention of the court to Section 12B of the Labour Act, Chapter 28:01. Section 12B which deals with unfairness with regards to a dismissal will test the claim from three dimensions and them being; firstly the question of procedural or substantive defects arising from a dismissal that either does not adhere to the relevant code or chooses not to use one at all and is given in terms of section 12B (2), secondly the question of constructive dismissal given in terms of section 12B (3)(a), & lastly the question of legitimate expectation given in terms of section 12B(3)(b),” he said.

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