The COVID-19 global pandemic has almost brought the world to a halt. Employers and the employees world over have been hit harder by this untimely disaster. In Zimbabwe, on the 27th of March 2020, President Mnangagwa announced that the country would be on lock down for 21 days starting from Monday 30 March 2020. This essentially meant that all citizens were required to stay at home except, for when there is need to make essential movements such as to buy food, for health emergencies or for other vital movements. This meant that all workers, save for those who are engaged in essential services, were not able to render services to the employers as required in terms of their contracts of employment especially were the employee’s service requires that they be physically at the workplace. This scenario brings with it legal headaches on how to handle the employee’s salaries and leave days.
It must be stated that the Labour Act (Chapter 28:01) does not specifically deal with a situation where an a employee fails to tender services because of a vis major, simply put an act of God which is beyond anyone’s control like in the case the coronavirus.
Usually under common law the “no work, no pay” principle applies where an employee is absent from work other than on public holidays or lawful leave. This means that an employee who does not render any service to the employer is not entitled to receive any remuneration for the respective period of absence. See Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988 (1) ZLR 143 (S). It submitted that the “no work no pay principle” does not apply in the coronavirus induced absence because the failure to render services is not the employee’s fault. To hold otherwise would be contrary to the objectives of the Labour Act which is to advance social justice and democracy in the workplace by the promotion of fair labour standards. (Section 2A (d).)
Most employers, as a cost cutting measure, have resorted to sending their employees on forced unpaid leave. Regrettably our law does not recognize forced unpaid leave at the instance of the employer. In terms of Section 14A(5) of the Labour Act the employer may grant vacation leave without pay where an employee has no vacation leave accrued but wants to go on leave. Hence unpaid leave can only be granted at the instance of the employee not vice versa.
As a lawful measure to cut costs, the employer can ask employees who have accrued vacation leave days to proceed on leave and exhaust leave days as provided in terms of Section 14A(2) of the Labour Act. It must be emphasized that the employer has discretion to determine when the employee shall proceed on vacation leave hence, it is submitted that employees have no legal basis to resist an order that they proceed on vacation leave during the COVID-19 lockdown. In this instance the employee on vacation leave will be entitled to receive their remuneration in full.
In the instance where the employer cannot afford to pay its wage bill due to the COVID-19 induced effects, the employer can make use of Part X of the Labour Act which deals with Collective Bargaining Agreements (CBAs) negotiated by and between employers and employees. Collective Bargaining Agreement (CBA) refers to a written contract negotiated through collective bargaining for employees by one or more trade unions or workers’ committee with the management of a company or employers organization in a particular industry, that regulates the terms and conditions of employees at work. A CBA may lawfully make provision for the affordable rates of remuneration during the lockdown period. They may agree to forego certain benefits or agree to defer payments until production resumesn. It should be stated that this route may not be easy to follow due to bickering between parties because of competing interests and they may be need for a neutral arbiter which brings us to the next option.
Another viable option is for the employer to apply for an exemption (total or partial) from paying wages for a particular period. The application is addressed to the National Employment Council (NEC) in the industry’s respective sector. The NECs are established in terms of Part VIII of the Labour Act. In terms of Section 62(1) (a) of the Labour Act, an employment council is charged with the duty to assist its members in the conclusion of CBAs or prevent disputes from arising and to settle disputes that may have arisen between employers or employers’ organizations on the one hand and employees, workers committee or trade unions on the other hand.
It is submitted that works councils and the national employment councils (NEC) remain effective engagement platforms for workers and employers to engage and agree on measures that take into consideration respective peculiarities of establishments to craft workplace measures to mitigate the effects of COVID-19.
The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.
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