Retrospective application of the law on the Zuva Judgment
THE long legal battle regarding employees who were terminated on notice and the subsequent decision by Parliament to grant such terminated employees a retrenchment package was brought to an end in the Constitutional Court Judgment of Greatermans Stores (1979) (PRIVATE) LIMITED t/a Thomas Meikles Hospitality (Private) Limited vs The Minister of Public Service, Labour and Social Welfare and the Attorney General.
The press projected the picture that all employees who were terminated on notice following the Zuva Judgment of 17 July 2015 were going to be paid retrenchment packages, a picture that is not accurate.
In my view, only those employees whose cases have not prescribed in terms of section 94 of the Labour Act would qualify for the retrenchment package and those who had not taken their cases to the courts do not qualify unless they successfully lodge application for condonation of late noting of their appeals.
Further, there are many workers who have since passed on and it might not be easy for their estates to chase the claims for compensation.
There are also cases where some employees will find that the businesses that terminated them on notice are no longer in business and there will be nobody to put their claim to. The second last paragraph of the Judgment allows employers who cannot afford to pay the minimum retrenchment packages to approach the NEC or the Labour Court in order to be exempt from paying the minimum retrenchment package.
The Constitutional Court said: “The employer may even not pay the money if he or she successfully pleads financial incapacity and consequent inability to pay the minimum retrenchment package to the employment council established for the undertaking or, if there is no employment council for the undertaking concerned, the Retrenchment Board and gets an exemption from the obligation to pay the full minimum retrenchment package or any part of it”.
This clearly shows that the Constitutional Court looked at the interests of both the employers and the employees by ruling that the retrospective application of the law is legal and workers have to be paid retrenchment packages if they qualify in terms of Labour Act Amendment No 5 of 2015. At the same time the Constitutional Court points out that the legislature was alive to the fact that there are employers who are financially embarrassed who qualify to be exempt from paying the minimum retrenchment package. All they need to do is to demonstrate they are financially embarrassed and follow set procedures to apply for exemptions.
In conclusion, this judgment brings an end to a long running dispute and allows both employers and employees to exercise legal rights that have been clarified and does not necessarily mean all workers will be compensated and neither does it mean all employers who terminated workers on notice will qualify to be exempted from paying the minimum retrenchment package.
Davies Ndumiso Sibanda can be contacted on:
Email: stratwaysmail@yahoo.com