• Can an employee unilaterally absent himself/herself from work?

An employee cannot unilaterally absent himself/herself from work. The Employee has to get prior approval from the employer or apply for a leave of absence in terms of the relevant code of conduct. In fact, if an employee absents himself/herself for more than 5 days without leave or reasonable cause it is an offence than an employee can actually be dismissed for.[1]

However, if the employee is not in any of the essential services sectors such as hospital services; certain transport services; supply and distribution of electricity/water/sewerage/sanitary services; production, supply, delivery, distribution of food/fuel/coal; banking; fire brigade/ambulance services; coal mining; communications/telecoms including Internet; State security services; licensed private security services; Government Printer/Printflow (for the Government Gazette), then they can physically absent themselves in compliance with SI 83 of 2020 i.e. the Public Health (COVID-19 Prevention, Containment & Treatment) (National Lockdown Order), 2020.

  • Are any preventive health measures taken by any employer adequate?

COVID-19 is a novel, formidable epidemic respiratory disease[2] which is highly contagious. Therefore, there is no guarantee to be given to the employee that they are completely safe. For example, when the employees travel to and from work, when they interact with fellow employees and/or clients amongst other potentially infectious situations.

Be that as it may, the employer must guarantee protection of employees’ right to fair labour standards[3] by practising social distancing within the workplace, provision of necessary protective gear. It would be an unfair labour practice in terms of section 6 (d) of the Labour Act. The section stipulates that, “No employee shall require any employee to work under any conditions or situations which are below those prescribed by law or by the conventional practice…for the protection of employees”. Further, section 65 of the Constitution of Zimbabwe provides that every person has a right to fair and safe labour practices. This is also provided for under international legal instruments such as Occupational Safety and Health Convention of 1981 to which Zimbabwe is a signatory.

  • Is an employee entitled to receive their full remuneration even if they are not going to work?

If the employment contract still exists, an employee is entitled to receive his/her full remuneration provided they are ready to tender their services to their employer.[4]

However, if the absence is continued the employer is entitled to invoke the common law principle of “no work no pay” since the employee will no longer be rendering any meaningful service to the employer.

  • When is no work no pay principle applicable?

This principle is applicable where there is failure by the employee to render services at all for a protracted period and not where the employee can work from home. The no work no pay principle is subject to the defence of supervening impossibility being raised by the employee. It has been held that for supervening impossibility to be raised, it must be shown that the duties under the contract has become finally and completely impossible to perform. If the situation continues for a period beyond the initial 21 days of lockdown, then the no work no pay principle may be invoked. However, retrenchment (on the basis that the employer can no longer afford to pay the employee) is the safest avenue for the employer as opposed to withholding salary.

  • Can an employer unilaterally terminate the employment relationship?

An employer can no longer unilaterally terminate an employment contract since the enactment of Labour Amendment Act 12 of 2015. The employer has 2 options at law; Firstly, the employer may agree with the employee to mutually terminate the employment relationship.[5] Secondly, the employer may retrench the said employee(s)[6] provided that the employer has attempted to take special measures to avoid retrenchment first,[7] such as, allowing employees to work from home in so far as it is possible or allowing employees to take shifts. However, the nature of some jobs do not allow employees to work from home as they have to be physically present.

  • How can employee who still wants his/her job keep their job and be safe at the same time?

As it stands, the best way to prevent oneself from being exposed to the deadly COVID-19 is to work from home and practice social distancing amongst other things. Given the prospect of massive unemployment which is likely to result, it is incumbent upon the employee to approach the employer with innovative ways of how the employee can still render their service whilst being safe at home. As an employer cannot continue paying for a service it is not receiving for a prolonged period of time.

  • What can the government do to stop potentially large scale job losses?

The government can declare the lockdown period as a public holiday thus entitling employees to continue to receive remuneration.[8] However, after the 21 day lockdown period, there is need of legislative intervention in trying to prevent a potential job genocide. This reality will be felt greatest within primary and secondary sectors of the economy.

The Minister of Public Service, Labour and Social Welfare is called upon to utilise his powers in terms the Labour Act in order to align labour legislation with the COVID-19 developments.

  • What should an employee do when he/she is infected by COVID – 19?

The employee should immediately notify the health authorities and notify his/her employer through non-personal communication channels.

Thereafter, the employee is entitled to apply for sick leave which is supported by a certificate signed by a registered medical practitioner.[9] An employee is entitled up to 3 months sick leave on full pay. If an employee has used up these 3 months in any one-year period, the employee may apply again for a sick leave of up to 3 months again but on half pay.[10] However, at the end of each sick leave period, the employer is entitled to terminate the employment contract.[11]

  • What should the employer do when an employee is infected by COVID – 19?

The employer should also independently notify the health authorities of the development. The employer must then direct anyone who was in contact with the infected employee to be put under self-isolation at home so as not to affect others. After such reported incident, the employer must have the premises and surfaces thoroughly sanitised.

  • Will the employer be held liable if an employee is infected by COVID-19?

Due to the nature of how COVID-19 spreads, it may be quite difficult for one to hold, let alone, prove that they contracted the virus whilst at work. The evidential burden is quite substantial.

However, employers are generally reminded of their statutory and common law duty of making the work environment safe so that employee can render their labour safely.

  • What should businesses do after the 21 days lockdown?

The business community is strongly urged to find innovative ways with which they can continue operating safely and profitably after the end of the lockdown period imposed by the Minister of Health in consultation with the President. The employer has to provide a safe environment for the employee and also for the survival of their business as well.

The use of technology is a start. This can be achieved by way of accelerating use of technological tools such as tele-presence, video – conferencing and the computerisation of the companies, deeds and judicial registries will guarantee that the elementary pillars of commerce are not destroyed in Zimbabwe.

Our Employment Law team is available to provide you with the legal support you need. Contact us.

[1] Section 4 (e) of the Labour (National Employment Code of Conduct) Regulations, 2006

[2] Section 3 (1) of the Public Health (COVID-19 Prevention and Containment) Regulations, 2020

[3] Section 6 (1) (d) of the Labour Act [Chapter 28:01]

[4] Commercial Careers College (1980) (Private) Limited v Jarvis 1989 (1) ZLR 344 (S) at 351A-B

[5] Section 12 (4a) (b) of the Labour Act [Chapter 28:01]

[6] Section 12 (4a) (d) of the Labour Act [Chapter 28:01]

[7] Section 12D of the Labour Act [Chapter 28:01] as read with the Labour Relations (Retrenchment) Regulations, 2003

[8] Section 14C (2) of the Labour Act [Chapter 28:01]

[9] Section 14 (2) of the Labour Act [Chapter 28:01]

[10] Section 14 (3) of the Labour Act [Chapter 28:01]

[11] Section 14 (4) of the Labour Act [Chapter 28:01]

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