RE: Your enquiry on the employment law in Zimbabwe

We refer to your enquiry of the 12 th of October 2021 in respect of the above. We confirm it is your
interest to understand the existing labour laws of Zimbabwe generally and we render our summary of
the law as it stands at the moment in relation to employment in the private sector which we believe is
of interest to you.

The Main Sources of Employment Law

Just like many other jurisdictions, the main sources of the Zimbabwe employment laws are the
Constitution of Zimbabwe of 2013, the labour Act [Chapter 28:01], delegated legislation which is
direct or indirect. The direct being the statutory instruments and the indirect being the various
collective Bargaining Agreements entered between the employers and the trade unions or workers
committees of under the auspices of various National Employment Councils in the divers’ sectors and
industries of the economy. Furthermore, sources include judicial precedents, the common law, custom
and practice and texts. Custom as a source of labour law is key especially in the interpretation of a
collective bargaining agreement. In terms of the Act, a collective bargaining agreement attains a legal
and binding effect after registration and publication. It attains the same legal status as any other
delegated legislative instrument with its provisions automatically bind the relevant employers and
employees and render void and unenforceable any contractual stipulations between the employer and
employee inconsistent with it.

Generally, Zimbabwe recognises the existence of international labour instruments from, for example,
the ILO. However, for them to be binding locally they must be domesticated through an Act of
Parliament1.However, these may be referred to as evidence of customary international law, which is
part of the law of Zimbabwe unless it is inconsistent with the Constitution or an Act of Parliament.

The Constitution of Zimbabwe

The most significant provisions are in Chapter 4 (Declaration of Rights) and include freedom from
forced or compulsory labour, equality and non-discrimination, freedom of assembly and association
and freedom of profession, trade or occupation. The constitution of Zimbabwe provides in sector 65
that every person is endowed with a right to fair and safe labour practices and stands to be paid a fair
reasonable wage, the right to form, and join trade unions and employee or employer’s organisations of
one’s own choice and thus participate therein fully. Further, subject to restrictions for those in
essential services employees enjoy the right to participate in industrial/collective job action to strike,
sit-in, labour withdrawal and so on. The section also clothes the employees with the right to a just,
equitable and satisfactory conditions of work to engage in collective bargaining, organise form and
1
Section 327 (2)(b) of the Constitution of Zimbabwe, 2013.
join federations of unions. Every person regardless of gender shall be paid equal pay for similar work
and women have a right to maternity leave for a period of at least three (3) months fully paid.

These are the rights of employees as provided by the Constitution of Zimbabwe with its bias on the
protection of the employee. These are further distilled and codified in the Labour Act (“the Act”) as
the main instrument of employment laws in Zimbabwe.

The Labour Act

The principal Act in the realm of employment is the Labour Act governing all types of employees
and employers save for those in the employee of the public service, disciplined forces and those
established in terms of the Constitution. For all employers and employees covered by the Labour Act,
any other piece of legislation which may apply to them only has validity if it is consistent with the
Labour Act2. Thus, the Act enjoys superiority in matters of employment over any other law.

The Types of employees in Zimbabwe Law

There are essentially types of employees in local law;
(a) Employees on contracts without limit of time (permanent employees)
(b) Employees on fixed term contract and
(c) Casual employees,
and the Act governs all these types albeit differently.

The law has scope fixed-term contracts of less than three months. A fixed-term contract of less than
three months, such as of one month, is not, for the reason of its duration alone, a contract for casual
work. Where an employee continues to work after the expiry of a fixed-term contract, it does not
follow that he or she is then on a contract of indefinite duration. The issue is determined by principles
of law governing implied contracts. Thus, it may be implied that the parties intend renewal of the
fixed-term contract on the same terms as the expired one. While there is no limit as to the number a
fixed contract may be renewed, the Minister of Labour may, however, designated the period after
which if the contract keeps on being renewed the employee would be deemed permanent to guard
against casualisation of labour. This is sector specific.

A casual employee is one engaged by an employer for not more than a total of six weeks in any four
consecutive months. The focus is on the volume of work, and the reference to time is merely to
emphasize that casual work must be work not requiring lots of time to do it. If the work requires lots
of time, it ceases to be casual work. Casual work is work of an occasional or irregular nature that is

2
done in a short time. Where the work exceeds the prescribed period, the employer must engage the
employee on either an indefinite or a fixed-term contract. Section
12(3) states:
“… a casual worker shall be deemed to have become an employee on a contract of employment
without limit of time on the day that his period of engagement with a particular employer exceeds a
total of six weeks in any four consecutive months.”

There is an additional category termed “seasonal worker” whose work is only available in defined
periods of the year such as the summer or Christmas period. The contract automatically lapses at the
end of the season without any action by either party.

The Act is clear that a contract of employment that specifies its duration or date of termination,
including a contract for casual work or seasonal work or for the performance of some specific service,
shall, despite such specification, be deemed to be a contract of employment without limitation of time
upon the expiry of such period of continuous service as is fixed by the appropriate employment
council; or prescribed by the Minister, if there is no employment council for the undertaking
concerned, or where the employment council fixes no such period and thereupon the employee
concerned shall be afforded the same benefits as are in the Act or any collective bargaining agreement
provided for those employees who engaged without limit of time.

Thus, irrespective of the status as to whether permanent, fixed term, casual or seasonal one would be
regarded as an employee per section 2 of the Act if one “performs work or services for another person
for remuneration or reward on such terms and conditions as agreed upon by the parties or as provided
for in this Act, and includes a person performing work or services for another person—
(a) in circumstances where, even if the person performing the work or services supplies his
own tools or works under flexible conditions of service, the hirer provides the substantial
investment in or assumes the substantial risk of the undertaking; or
(b) in any other circumstances that more closely resemble the relationship between an
employee and employer than that between an independent contractor and hirer of services”.

The law also defines what an employer is, and it will be noted that the law has defined this widely and
expansively to include the manager, agent or representative in the employ of what we would
traditionally know as an employer. It provides as follows:-
“employer” means any person whatsoever who employs or provides work for another person
and remunerates or expressly or tacitly undertakes to remunerate him, and includes—
(a) the manager, agent or representative of such person who is in charge or control of
the work upon which such other person is employed; and
 (b) the judicial manager of such person
(c) the liquidator or trustee of the insolvent estate
(d) the executor of the deceased estate of such person
(e) the curator of such person
It is important to note that the Act applies to contracts of employment between international
organizations and their employees because, as a general rule, immunity from suit and legal process
does not extend to an act jure gestionis (of a private law character) such as a contract of employment.
Immunity only extends to an act jure imperii (a sovereign or public act).3

The Contract of employment

The key provision for most employers is perhaps Part IV and in particular section 12 of the Act which
deals with the duration, particulars and termination of employment contract. In dealing with the
contract of employment it is key to note that the contract of employment like any other contract is
governed by the ordinary principles of the law of contract. No specific formalities are required by law,
and the contract need not be in writing. Section 12(1) of the Act provides that:
“Every person who is employed by or working for any other person and receiving or entitled
to receive any remuneration in respect of such employment or work shall be deemed to be
under a contract of employment with that other person, whether such contract is reduced to
writing or not”.

The requirement in section 12(2) for the employer to ‘inform the employee in writing’ of a set of
specified particulars merely imposes an obligation on the employer to supply the information and
does not require the parties to sign a written contract. The statement of particulars is not the contract
itself nor is it even conclusive evidence of the contract. The employer, however, shall, upon
engagement of an employee, inform the employee in writing of the following particulars as a
minimum—
(a) the name and address of the employer;
(b) the period of time, if limited, for which the employee is engaged;
(c) the terms of probation, if any;
(d) the terms of any employment code;
(e) particulars of the employee’s remuneration, its manner of calculation and the intervals at
which it will be paid;
(f) particulars of the benefits receivable in the event of sickness or pregnancy;
(g) hours of work;
(h) particulars of any bonus or incentive production scheme;

3
Madhuku, 2015, see also The International Committee of the Red Cross v Phyllis Sibanda & Munyama
Ngangura SC 48/03.
 (i) particulars of vacation leave and vacation pay;
(j) particulars of any other benefits provided under the contract of employment.

Despite this provision of the law it is perhaps advisable that the contract be in writing. However, note
must be taken of the point that in drawing out the contract there are always terms implied by law if the
contrary is not expressed. Further there are some that cannot be contracted out such as the employer’s
vicarious liability.

There are duties on either side imposed by common law once an employment of contract exists and it
is not intended to state those here.

Rights and Duties of the Parties to the employment Contract

Employees Duties
a) to make his or her service available to the employer during the stipulated hours of work- It is
up to the employer to utilise them. In terms of SI 15/2006, breach of this duty only constitutes
serious misconduct warranting disciplinary action with a view to dismissal in two
circumstances, namely (i) absence from work for a period of five or more working days in a
year without leave or reasonable cause, and (ii) habitual or substantial neglect of his or her
duties. Any breach less than these will not warrant an action for dismissal.
The Act does not generally stipulate the normal hours of work and this is left to the individual
contracts or the CBAs. Once agreed in an industry CBA then these take precedence over the
company level agreed working hours as that CBA enjoys superiority over company agreed
positions. It becomes important that the employer participates fully at industry CBAs,
activities and for a to influence matters.
b) Availability to perform other work- Apart from the work expressly provided for in the
contract of employment, it is an implied term of a contract of employment that an employee
may be asked to perform additional tasks which are closely related to their duties.
c) Duty to be competent-the SI 15/2006 provides that mere incompetence is not sufficient to
trigger disciplinary action with a view to dismissal. There has to be ‘gross incompetence or
inefficiency in the performance of his or her work’. Further, ‘lack of skill which the employee
expressly or impliedly held himself to possess’ is made a separate ground for disciplinary
action with a view to dismissal.
d) The duty of good faith- this implies a duty not to place themselves in a conflict situation and
doing so would amount to a breach.
 e) The duty to be obedient- by not placing themselves in a conflict-of-interest situation with the
employer. This duty also entails that the employer can transfer the employee from one station
to another subject of course to the right to be heard (audi alteram partem principle) before the
decision to transfer is made.

Employer Duties
a) To receive the employee into service
b) Payment of remuneration
c) To provide safe working conditions
d) To provide leave.

Types of Leave
There are four types of leave provided by law as follows:-

i. Vacation leave - Under the Labour Act, an employee is not entitled to paid vacation
leave in the first year of service with an employer.101 Paid vacation leave only
accrues after the completion of the first year of service at the rate of one twelfth of the
period of service starting at the beginning of the second year of service. An employee
is entitled to accumulate paid vacation leave up to a maximum of 90 days. Weekends
and public holidays falling within a period of vacation leave
are counted as part of the vacation leave. The timing of vacation leave is not entirely
at the disposal of the employee.
ii. Sick leave - In terms of the Act, sick leave is available when the employee is ill or
injured or undergoing medical treatment not arising from a failure to take reasonable
precautions. However, sick leave is not automatic. The employee must request it and
the request must be supported by a certificate signed by a registered medical
practitioner. The request by the employee need not be in writing and may be made on
his or her behalf by an authorized agent. If, in any one-year period, the employee has
used up the maximum period of 90 days sick leave on full pay, there is no automatic
entitlement to unpaid sick leave.

The employee must make a request for it which must be accompanied by a signed
certificate in which the medical practitioner expresses the opinion that ‘it is probable
that the employee will be able to resume duty’ after the further period of sick leave. If
the medical practitioner is of the view that the employee will probably not be able to
recover and resume duty after the further period of sick leave, there is no entitlement
to unpaid sick leave. If the employee is granted unpaid sick leave in terms of section
 14(3), the maximum period or aggregate periods of sick leave is 180 days in any one
year. Where the employee is not entitled to unpaid sick leave under section 14(3), the
maximum period or aggregate periods of sick leave is 90 days in any one year.
iii. Special leave - The Act provides section 14B for ‘special leave’, which is 12 days in
in any calendar year designed to accommodate a range of circumstances such as leave
for trade union purpose and compassionate leave. Any weekends and public holidays
falling within a period of special leave are not counted as part of the special leave.
We must emphasise that Compassionate leave is limited to the death of a spouse,
parent, child, or legal dependant.
iv. Maternity Leave – The Constitution provides in section 65(7) states that female
employees have a right to fully paid maternity leave for a period of at least three
months. Maternity leave is therefore a constitutional imperative but further distilled
in section 18 of the Act. The period of maternity leave permitted by the law is 98
days. There is, however, a qualifying period for a female employee to be entitled to
fully paid maternity leave, viz: -
i. that she must have served the employer for at least one year (there is,
however, a proposal in the Labour Act Amendment Bill to remove this
qualifying period).
ii. The paid maternity leave must be spaced at the rate of once every 24 months
and in any event, only three maternity leaves are permissible with any one
employer. Any maternity leave outside this limitation may be unpaid. Sick
leave may not be granted once paid maternity leave has begun or during a
period of unpaid maternity leave unless the sick leave is for medical reasons
other than maternity. This leave cannot be taken more than 45 days before the
expected date of delivery, and it is mandatory for leave to be taken at least 21
days before the birth of the child. Once she comes back to work she is
entitled to one hour of nursing time each day during working hours for a
maximum period of six months. She has a choice on the hour.

Recruiting an Employee
In recruitment it is prohibited by law to discriminate against any employee or prospective employee
on grounds of race, tribe, place of origin, political opinion, colour, creed, gender, pregnancy,
HIV/AIDS status or, subject to the Disabled Persons Act [Chapter 17:01], in relation to—
(a) the advertisement of employment; or
(b) the recruitment for employment; or
(c) the creation, classification, or abolition of jobs or posts; or
 (d) the determination or allocation of wages, salaries, pensions, accommodation, leave or
other such benefits; or
(e) the choice of persons for jobs or posts, training, advancement, apprenticeship, transfer,
promotion or retrenchment; or
(f) the provision of facilities related to or connected with employment; or
(g) any other matter related to employment.

Although many prohibited grounds are specified, the ground with the most far-reaching impact is
gender. It is imperative to highlight the appropriate age limits and the employment areas concerned.
No employer is allowed to recruit and employ anyone between 0-13 years. This prohibition is
absolute. Those between 13-15 years may only be employed (with the assistance of a guardian) as an
apprentice or where the work to be performed forms part of a course of training or technical or
vocational education and between 15 and 18 years the common law principle of contract relating to
the capacity of minors to contract apply.

Termination of Employment
In terms of the Act, in general, an indefinite contract can only be validly terminated
Either by mutual agreement, pursuant to a retrenchment exercise or through a disciplinary process in
terms of a registered Employment Code of Conduct or under the Labour (National Employment Code
of Conduct) Regulations, 2006 (SI 15/2006) otherwise known as the model code. Before its expiry, a
fixed term contract can only be terminated in the same manner as a contract of indefinite duration.
Thus, termination on notice by the employer is outlawed. The employee has an implied contractual
right not to be unfairly dismissed.

The Act also allows for a retrenchment of five or more employees and the process is governed by SI
186/2003. Unless agreed to the law provides for a minimum package payable of not less than one
month’s salary or wages for every two years of service as an employee (or the equivalent lesser
proportion of one month’s salary or wages for a lesser period of service) shall be paid.

The employer may also dismiss an employee for health reasons where the employee has exhausted the
sick leave days.

Regardless of the reasons for termination the law provides for the following terminal benefits, and
these must be paid whenever employment is terminated,
• wages and benefits up to the time of termination;
• outstanding vacation leave;
 • payment in lieu of notice (where applicable); •
outstanding medical aid; and
• any pension (where applicable)
Internal disciplinary processes in terms of the model code must be concluded with 14 days from the
date an employee is notified of the charges they face. If not concluded within 30 days, the employee
has a right to refer the matter to a labour officer for resolution. Any appeals from internal disciplinary
processes in terms of a code, a designated agent from an NEC or those dealt with by a labour officer
lie with the Labour Court.

Prescription of Disputes
All disputes of unfair labour practice prescribe after two (2) years from the date the cause of action
arose unless it is continuing at the time it is referred to or comes to the attention of a labour officer.

Workplace Democracy
Every workplace or station must have a Workers’ Committee to represent employees interests other
than managerial employees. It is to be noted that the Workers Council does not have co-determination
rights but must just be consulted (per s25A). Managers can form or belong to their own managerial
trade union.

Proposed Amendments to the Labour Act.

There are impending amendments to the Act which will significantly change some provisions. In
section 12 the legislature intends to provide that the contract of employment may only be terminated
by the employee by reason of resignation or retirement and by the employer for misconduct, by
mutual agreement, by effluxion of time in the case of a fixed term contract, retrenchment, for reasons
of sickness or for breach of an express or implied term of contract.

Fundamentally, the law will now provide that no fixed term contract shall be for a period less than 12
months save for seasonal contracts or those contracts whose activities last for less than 12 months.
Any contract that purports to be for a period off less than twelve months shall be deemed to be a
contract for an indefinite period.

It is further proposed that if the majority of employees engaged by the same employer are on fixed
term contracts, and at any time when an employee’s employment is terminated on the expiry of his or
her fixed term contract, then the provisions of sections 12C and 12D shall apply to such termination
as if it was retrenchment.
The Amendment Bill also proposes to do away with the limit of the times a woman may take
maternity leave.

The employer will now be prohibited from restraining an employee from being engaged elsewhere
during their free time in circumstances where the employee is employed on an hourly basis.

Employees employed by virtue of a labour brokerage arrangement shall have conditions no less
favourable than— (a) other employees in that grade or occupation employed by the same employer; or
(b) the collective bargaining agreement for the undertaking or industry, where the third party only
employs its employees in terms of a labour brokerage agreement.

We trust you will find this summary of the labour landscape in Zimbabwe useful and remain available
to supplement or expand on any of the points and issues raised herein.

Schedule of Statutory Instruments

1. Labour Court Rules, 2017
2. Labour Relations (Workers Committees) (General) Regulations, 1985
3. Labour (Declaration of Essential Services) Notice, 2003
4. Labour Relations (Domestic Workers) Employment Regulations, 1992
5. Labour Relations (Employment Agencies) Regulations, 1985
6. Labour Relations (Employment Codes of Conduct) Regulations, 1990
6. Labour Relations (Employment of Children and Young Persons) Regulations,
7. Labour Relations (General) Regulations, 1993
8. Labour Relations (HIV and AIDS) Regulations, 1998
9. Labour (National Employment Code of Conduct) Regulations, 2006
11. Labour Relations (Protection Against Any Acts of Interference Between
Workers’ Organisation and Employers’ Organisation) Regulations, 2003

12. Labour Relations (Retrenchment) Regulations, 2003

13. Labour (Settlement of Disputes) Regulations, 2003
14. Labour Relations (Specification of Minimum Wages) Notice, 1996
15. Labour Relations (Terminal Benefits and Entitlements of Agricultural Employees
Affected by Compulsory Acquisition) Regulations, 2002