Matthias Ruziwa HR Issues
Our Labour Act does not in any way restrict the right to enter into a contract. Section 12 (3) of the Labour Amendment Act, No 5 of 2015 protects fixed term contract workers in that continuous renewal leads to permanency by operation of law.
The Zimbabwean labour law recognises various types of employment relationships namely casual employment, contract employment, permanent employment and independent contractors.
In this article, the writer will examine the various types of employment relationships and make an attempt to look at the advantages and disadvantages of each option.
Casual employment
Casual employees refer to employees who work for no more than six weeks in any four — month period. The four — month period was brought into effect by the 2003 amendments to the Labour Act.
Put in simple terms, the six weeks is a total amount in four months and need not be made up of consecutive days. In keeping track of casual employees, it is important that line managers and a senior member of the HR department does monitor the hours or days worked so that you are not caught up on the wrong side of the law.
Failure to monitor casual employment normally results in situations where the company end unwittingly up with a permanent employee that you never desired to have. From my experience, companies employ casuals on an informal basis but this often leads to disputes as to how and when they were employed.
This option is limited by duration of time as it cannot go beyond six weeks. It’s appropriate where the company is convinced that it won`t need the persons for more than six weeks.
However, in various sectors, the main disadvantage is that a casual employee needs to be paid at a higher rate of pay as compared to either a contract or permanent employee. The rates for casuals are often prescribed by the respective sector’s Collective Bargaining Agreement.
Contract Employment
Contract employment are those employees employed for a fixed term or a fixed job, at the close of which their services are either terminated or the employer offers a further fixed – term or fixed job contract.
Our Labour Act does not in any way restrict the right to enter into a contract. Section 12 (3) of the Labour Amendment Act No 5 of 2015 protects fixed term contract workers in that continuous renewal leads to permanency by operation of law.
Thresholds beyond which continuous renewals are prescribed shall be set by the employment councils or where there is no employment council or the employment council does not so fix, by the Minister of Labour.
Once an employee is deemed permanent the same benefits as permanent workers apply (for example, those provided for in the Act or collective bargaining agreement)
This provision extends the protection accorded to casual workers whose fixed term contracts become contracts without limit of time if the casual workers continue working beyond 6 weeks in any 4 consecutive months as explained above.
The provision protects all fixed term contract employees including, seasonal workers. In other words, contract workers may not continue to sign contracts forever. Section 12B (3) (b) of the Labour Act also promotes retention of the contract worker.
Generally the Collective Bargaining Agreements for most employment councils in Zimbabwe do not prevent fixed term contracts, but all of them are now required to restrict the duration one can enter into with a given employee.
Contract labour must be employed in full compliance with the minimum conditions of employment set in the Labour Act and in the relevant Collective Bargaining Agreement.
Unless if it has been specifically mentioned in the fixed term employment contract that there is no room for the creation of legitimate expectation of continued employment at the end of a particular contract, there is possibility that a contract employee whose contract has been renewed time and time again may claim that these renewals have created reasonable expectation of continued employment.
Permanent Employment
The simple understanding from the law is that as the name clearly indicates, any employee whose employment is not restricted by time is a permanent employee.
An employee usually enters into a permanent contract by accepting this status right at the time of initial appointment to a job or after successfully serving a probationary period of three months which is single and non-renewable.
As highlighted above, not adhering to the legal conditions governing employment of casual employees or fixed term contracts can lead to permanent employee status for employees an employer had no intention of making permanent.
Permanent employment in areas where retention of skills is not a major factor has proven to be unpopular in many sectors because of the high levels of retrenchment payments an employer was expected to make upon termination of such an employee, e.g. due to downsizing.
The 2015 amendments to the Labour Act have redressed the issue by putting in place a specific minimum retrenchment package of not less than one month’s salary or wages for every two years of service and an equivalent lesser proportion of one month’s salary or wages for a lesser period of service applies.
For purely financial reasons, employers have been trying wherever possible to keep numbers of long service permanent employees down to a minimum as witnessed from recent media reports where a record of more than 20000 workers were terminated by employers following a Supreme Court judgement SC43/15 issued out on 17th July 2015.
Independent Contractors
An independent contractor is not an employee at all. The amendments to section 2 of the Labour Act in 2003 specifically addressed this issue by tightening the definition of employee so as to prevent persons who were clearly employees of an organisation from being employed as so called “independent contractors”.
An independent contractor works for himself and the organisation that uses such contractor pays him a fee for his services.
Unlike what happens in the case of an employee, an independent contractor is not under the company`s direct management or supervision. Issues such as deduction of PAYE, NSSA, leave accrual; pension medical aid etc. does not apply in the case of an independent contractor.
Matthias Ruziwa is an experienced and progressing Strategic Human Resource Practitioner practicing in the Midlands Province, City of Kwekwe. Opinions expressed herein are solely those of the author. You can contact Matthias at the following email address: mruziwa@gmail.com/whatsapp 0773 470 368.