The Impact of Globalisation on Employment Statute Related to Employers in Zimbabwe

Globalisation led to the reduction of barriers between countries and intensified international interdependency such that developments unfolding in a faraway country now affect the rest of the world in economic, political and social aspects (Giddens, 1990). The Zimbabwean labour market and its national labour legislation has not been spared from the impact of globalisation. Zimbabwean labour legislation had had several amendments from its inception in 1985 to date. The amendments done at each epoch had caused serious outcry from both labour and business with the main accusations arising from unions who claimed that the effects of globalisation and government’s desire to lure foreign direct investment (FDI) led to serious bias towards employers. It is against this background that this article’s objective is to interrogate the impact of globalisation on labour legislation for employers. The article adopted a qualitative paradigm and made use of interviews and participants' memoirs to understand this phenomenon. Results were analysed thematically by use of both Nvivo 10 and manual coding. Results showed that globalisation has impact on labour legislation for employers. Foreign direct investment and special economic zones were identified as drivers of globalisation responsible for positive impact on labour legislation for employers by influencing deregulation of unfriendly employment laws, instituting flexible contract of employment, easy termination of contracts of employment and giving immunity from dictates of the labour laws for employers operating in special economic zones. The positives of globalisation for employers resulted in direct negatives for employees. The article recommends that employers need to put into context both globalisation dynamics and dictates of the labour legislation to ensure employee dignity and fair globalisation

BREACH OF THE IMPLIED DUTY TO PRESERVE MUTUAL TRUST AND CONFIDENCE IN AN EMPLOYMENT RELATIONSHIP: A CASE STUDY OF Moyo v Old Mutual Limited (22791/2019) [2019] ZAGPJHC 229 (30 July 2019)

This case note is intended to revisit the contentious aspect of the implied duties of South African labour law in the individual employment relationship. Significantly, the case note intends to remind the reader about the importance of adhering to certain implied duties in the contract of employment. In this regard, the implied duty to preserve mutual trust and confidence is the central theme of this case note. On the one hand, the implied duty to safeguard mutual trust and confidence imposes an obligation upon the employer to conduct itself in a manner not likely to destroy, jeopardise, or seriously damage the trust relationship and confidence in the employment relationship. On the other hand, this implied duty is becoming a significant yardstick used by employers to address contractual labour disputes in South Africa. In order for an employer to invoke this implied duty, it must be expected that the employee would have to conduct him or herself in a manner likely to demonstrate to his employer loyalty, good faith and cooperation.Against this background, the recent case of Moyo v Old Mutual (22791/2019) [2019] ZAGPJHC 229 (30 July 2019) (Moyo) demonstrates the impact of a breach of the implied duty to preserve mutual trust and confidence on the employment relationship. This case note intends to examine the implied obligation that rests upon the employer to safeguard trust and confidence in the relationship. The case note further reflects on the implied duty of employees to safeguard and protect mutual trust and confidence. After all, trust forms the basic fundamental core of the employment relationship, and any breach of this duty is likely to result in an irretrievable breakdown of the employment relationship. Once there is a breakdown of trust and confidence, it remains a mammoth task to restore the relationship.

The work values and professional expectations of the second cohort of Generation Z

Introduction: The people born since the year 2000 (Generation Z) are now dynamically entering the labour market. This presents a range of challenges for employers, such as how to make their workplace attractive to young employees, how to entice talent and above all, how to retain it for longer. The aim of the following work was to identify the primary work values and professional expectations of representatives from Generation Z. Method: The study included 236 final-year students (129 girls and 107 boys) from vocational and comprehensive schools. The most highly-rated work values were identified using the “Moja Kariera” (My Career) questionnaire by Schein (adapted by Paszkowska-Rogacz) together with a free interview, providing a deeper insight into the work values and professional expectations of the group. Results: The predominant values expressed by the study group were associated with security and stability, as well as lifestyle; however, the main expectations regarding the employer comprised a high salary, clear working conditions and clearly-defined professional responsibilities. Conclusion: Our findings indicate that the members of Generation Z regard an attractive employer as one whose organisation cares about work-life balance, ensures secure employment, based on a contract of employment (e.g. on a permanent basis) and stable (constant) earnings.

TEMPORARY EMPLOYMENT SERVICES: CLOSING A LOOPHOLE IN SECTION 198 OF THE LABOUR RELATIONS ACT 66 OF 1995

Section 198 of the Labour Relations Act (hereinafter “LRA”) regulates the employment relationship between a worker (the employee), a labour broker (the employer) and a third party (the client). It also regulates the aspect of liability between the temporary employment service and its client on the one hand in relation to the employee/worker on the other hand. It is with regard to the latter aspect thatthe employee is in a detrimental position as far as the loss of protection against an unfair dismissal as regulated by sections 185 and 186 of the LRA is concerned. The complexity of this kind of relationship is illustrated by means of a case study relating to an unfair dismissal dispute. Legislation regulating the employee’s rights and the employer’s duties upon termination of the contract of employment is also discussed. In conclusion, solutions and recommendations are offered to address the existing areas of concern with regard to section 198(4) and the client’s responsibilities, the interpretation problems within the tripartite employment relationship, as well as the employment contract.

THE CONTRACT OF EMPLOYMENT IN LABOUR LAW: OBSTACLE OR PANACEA?

The disparity of power in the employment relationship has courted argument that this imbalance continues to be perpetuated in the guise of “the contract of employment”, thereby rendering the contract of employment irrelevant and ineffective in advancing labour law rights. This article counters this view by illustrating the changed nature of the traditional foundation of the employment relationship, known as the contract of employment. The advent of a constitution and our courts’ willingness to develop and strengthen rights and obligations arising from the contract of employment are considered. In addition, the impact of legislation, collective bargaining and the recent more purposive interpretation of the statutory definition of “employee” are discussed. The writers conclude that, although the contract of employment is not a panacea to the employment relationship, it is useful and expedient when interpreted and enforced against the backdrop of constitutional imperatives.

THE LEGALITY OF THE AUTOMATIC TERMINATION OF CONTRACTS OF EMPLOYMENT

The Labour Relations Act (66 of 1995) (LRA) protects employees against unfair dismissal. In terms of section 186(1)(a) dismissal means that “an employer terminated a contract of employment with or without notice”. In order to fall within the ambit of this provision and benefit from the protections afforded by the LRA, an employee must prove that an overt act on the part of the employer has resulted in the termination of the employment contract (Ouwehand v Hout Bay Fishing Industries 2004 25 ILJ 731 (LC)). The onus then shifts to the employer to prove that the dismissal is both substantively and procedurally fair, failing which the employee will be entitled to theremedies afforded by section 193 of the LRA. However, not every termination of an employment contract constitutes a dismissal and a number of scenarios exist where an employment contract terminates lawfully by operation of law. The termination of a fixed-term contract by effluxion of time, termination of the contract due to supervening impossibility of performance and the attainment of a contractually agreed or implied retirement age all give rise to the lawful termination of an employment contract. Similarly the statutory “deemed-dismissal” provisions of application to employees in the public sector provide for the automatic termination of employment contracts in circumstances that the employee is absent without authorisation for a designated period of time. The effect of such automatic termination is that the employment contract terminates by operation of law and not by means of an act of the employer, resulting in the dismissal provisions of the LRA being legitimately circumvented. Labour-broking contracts typically include automatic termination clauses that provide for the automatic termination of employment contracts, between labour-brokers and their employees, when the broker’s client no longer requires the services of such employees. Similarly employers have sought to rely upon grounds of supervening impossibility of performance in order to argue that an employment contract has automatically terminated in the instance of absconding and imprisoned employees. This article will be examining the legality of the automatic termination of employment contracts in these contexts and the impact on employees’ rights to protection against unfair dismissal.

LIABILITY OF THE STATE FOR RAPE BY A POLICEMAN: THE SAGA TAKES A NEW DIRECTION Minister of Safety and Security v F 2011 3 SA 487 (SCA)

The locus classicus and trend-setting decision for the vicarious liability of the state for the rape of a woman by a police official, is certainly K v Minister of Safety and Security. Here the plaintiff (K), a young woman, became stranded late at night. Three on-duty police officials, dressed in full uniform, offered to take her home in a police vehicle. On the way she was raped by all three of them. O’Regan J held that the state was vicariously liable for the conduct of the policemen. According to the standard test for vicarious liability, which was formulated in Minister of Police v Rabie, an employer may only escape vicarious liability if the employee, viewed subjectively, has not only exclusively promoted his own interests, but, viewed objectively, has also disengaged himself from the duties of his contract of employment to such an extent that a sufficiently close connection between the employee’s conduct and his employment is absent. Applying this test as informed by the constitutional Bill of Rights, O’Regan J found that although the policemen exclusively promoted their own interests by raping the plaintiff, a “sufficiently close connection” nevertheless existed between the conduct of the police and their work to hold their employer vicariously liable, for the following reasons: there was a constitutional and statutory duty on the state as well as the policemen to prevent crime and to protect members of public; the policemen offered to help the plaintiff and she acted reasonably by accepting the offer and trusting them; and the conduct of the policemen consisted simultaneously of a commissio (the brutal rape) and an omissio (their failure to protect her against the rape).

SHOULD REFUSAL TO WORK FOLLOWING BREACH OF CONTRACT BY THE EMPLOYER REALLY BE A STRIKE? National Union of Mineworkers on behalf of Employees v Commission for Conciliation Mediation and Arbitration (2011) 32 ILJ 2104 (LAC)

The employment relationship is by its very nature premised on the foundation of inherent inequality between the employer and the employee. The employer by virtue of the resources at its disposal is in a stronger position than the employee. One of the strong criticisms levelled against the common law has always been its indifference to this unequal division of power. The common law tends to deal with a contract of employment on the basis that it is an agreement entered into voluntarily and on equal footing bythe employer and the employee. Unsurprisingly, the common law regards terms that regulate the employment relationship as being freely entered into by the contracting parties. This assumption overlooks the inherent inequality that characterizes the employment relationship. It is on account of this assumption that the common law can be mostly associated with unfairness when it comes to the employment relationship. Nowhere is this assumption clearer than in cases of dismissal. In relation to dismissal all that the common law demands is that the dismissal must be lawful. This requirement is easily met if the employer merely provides the employee with a notice of the dismissal. Under the common law there is no mention of fairness as a requirement for a dismissal. In order to address the deficiencies of the common law, the legislature has enacted labour legislation like the Labour Relations Act (66 of 1995, hereinafter “the LRA”) which seeks to bring in some equilibrium in the employment relationship. It must also be said that the LRA provides partiesinvolved in the employment relationship with a framework within which employment issues must be addressed. This has resulted in a situation where in some instances there is a collision between the common law and the LRA. The critical question that emerges is whether the rights and remedies of the employees in the event of a breach of contract must be exclusively determined within the framework of the LRA. If the answer is in the affirmative then it means that the common law has lost some of its relevance in employment issues. This case note seeks to analyse the tension between the common law and the LRA in the context of employees withholding their labour on account of a breach of contract by the employer. It also seeks to analyse the implications of the approach adopted by the Labour Appeal Court in National Union of Mine Workers on behalf of Employees v Commission for Conciliation Mediation and Arbitration ((2011) 32 ILJ 2104 (LAC)).

11. Continuity of employment and TUPE

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses continuous employment and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). An employee’s period of continuous employment begins on the day on which the employee starts work. Although continuity provisions normally apply to employment by one employer, there are situations where a transfer from one employer to another can preserve continuity of employment. One such situation is when there is a relevant transfer under TUPE. TUPE acts to ensure that an individual’s contract of employment is transferred in its entirety when the individual employee experiences a change of employer as a result of a transfer.

8. Variation, breach, and termination of employment

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses variations of terms and conditions of employment. Theoretically, neither employer nor employee can unilaterally alter the terms and conditions of employment. A unilateral variation that is not accepted will constitute a breach and, if serious, could amount to a repudiation of the contract. A repudiation does not automatically terminate a contract of employment. In order to justify summary dismissal, the employee must be in breach of an important express or implied term of the contract.