Introduction
Labour law generally refers to rules and regulations that govern the employment relationship between the employer(s) on the other hand and the employee(s) of the other including their associations, trade unions and federations thereof. The main purpose of labour law is to protect and safeguard the rights of parties in the employment relationship. Because of its very nature, labour law falls under civil law where the main aim is to compensate the victim as opposed to punishing the wrongdoer.
Criminal law on the other hand is that branch of public law which relates to offences or wrongs that may be subject to criminal proceedings or prosecution instituted to punish the offender. Crimes therefore are wrongs against the State not the wronged individual and are punishable by the State.
Ordinarily violations of the provisions of the Labour Act constitute unfair labour practices or misconduct and the aggrieved party normally pursues recourse through various fora specifically created to deal with such unfair labour practices and disputes. These include disciplinary authorities and committee, Labour Officers, Designated Agents, National Employment Councils, Labour Court and the Supreme Court. In the normal course of the employment relationship, seldom does a dispute over employment find way into the criminal law jurisdiction.
Although labour law is not ordinarily criminal law, there exist sections in the Labour Act where the legislature created crimes arising from violations of that Act. Those offences so created thus are punishable by the State and not the employer or the employee. In essence the perpetrator will be arrested and subjected to criminal proceedings through the criminal law courts and liable to payment of fines or imprisonment or both. This paper thus runs through the various sections of the Act where labour law intersects with criminal law. It covers Part I to Part V of the Act. The remaining parts will be covered in a separate paper.
Crimes from the Labour Act
Generally, the criminalisation of certain labour violations is an indication of the grave nature of those violations. It shows how the law makers perceive those violations as being serious and go beyond the employer and employee relationship to become wrongs against the State.
Forced Labour
S. 4A(3) of the Act makes it a criminal offence for any person to make another perform forced labour prohibited in terms of s. 4A(1) of the Act. Forced labour is prohibited in terms of s. 55 of the Constitution of Zimbabwe Amendment (No. 20) Act, 2013. A person found guilty of such an offence under the Act is liable to a fine of up to level 12 (which is currently set at USD2 000). Such offender may also be imprisoned for a period of up to ten years or to both the payment of the fine and the imprisonment.
Prohibited discrimination
S. 5(3) of the Act makes it a crime for an employer or any other person to discriminate on prohibited grounds mentioned in s. 5(1) and (2) of same. The prohibited grounds include race, tribe, place of origin, political opinion, colour, creed, sex and gender, pregnancy, HIV/AIDS status and disability. Discrimination is prohibited in such areas as advertisement of employment, recruitment for employment, determination or allocation of wages, salaries, pensions, accommodation, leave or other such benefits, choice of persons for jobs or posts, training, advancement, apprenticeships, transfer, promotion or retrenchment or the provision of facilities related to or connected with employment and any other matter related to employment.
Unfair discrimination is prohibited in terms of s. 56(3) of the Constitution and as regards to equal remuneration between men and women it is provided for under s. 65(6) of same.
A person found guilty of discrimination in terms of s. 5(1) and (2) will be liable to a fine up to level eight (currently USD 500) or to imprisonment up to a period of two years. The person may also be sentenced to payment of the fine and the imprisonment.
Unfair labour standards
The Constitution guarantees the right to fair labour standards and practices and to be paid a fair and reasonable wage. S. 6(1) of the Act protects employees' rights to fair labour standards. These fair labour standards include; right to fair remuneration stipulated by law or agreement; adherence to prescribed working hours and conditions of work; protection of the employees' occupational health and safety and the protection of the employees' right to equal protection and benefit of the law.
In terms of s. 6(2) of the Act, any person found guilty of the offence of violation of the stated labour standards will be fined up to level seven (currently USD400) or sentenced to imprisonment up to a period of two years. The person may also be sentenced to such fine and the imprisonment.
Violence and Harassment
S. 6(3) of the Act prohibits direct or indirect violence and harassment of any person whether the employer or the employee. The nature of violence and harassment is defined in s. 2 of the Act as; "violence and harassment" in the context of section 6(3) and section 8 refers to a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment.
Violence and harassment is prohibited in the workplace, employer provided accommodation, commuting to and from work, work related travels, training, workshops and social activities, as well as work-related communication. This right has its roots in s. 53 of the Constitution which protects all persons from physical or psychological torture or cruel, inhuman or degrading treatment or punishment.
In terms of s. 6(4), a person found guilty of violence and harassment as defined in section 6(3) of the Act will be fined up to a level twelve (currently USD 2000) or to imprisonment for a period of up to ten years. They may also be sentenced to such fine together with the imprisonment.
Democracy in the workplace
S. 7(1) of the Act protects employee's right to democracy in the workplace including forming or conducting any workers committee to air their grievances and negotiate any matters affecting their rights and interests. The section also protects employees from being victimised for taking any lawful actions or procedures to protect their rights. In terms of this section, no person is permitted to hinder, obstruct, prevent or victimise any employee for exercising their rights protected in terms of that section.
Further, in terms of s.7(2) employers are mandated to allow labour officers and trade union representatives to have reasonable access to the employees during working hours. The access should be allowed for the purposes of allowing the labour officer or the trade union representative to advise or assist employees on employment laws, protecting their rights and interests as well as formation of workers committees. Employers are duty bound to provide reasonable access and facilities to the said labour officers or trade union representatives.
In terms of s. 7(3), a violation of those provisions amounts to a crime wherein if the employer is found guilty will be liable to a fine of up to level seven (currently USD400) of to a prison term of up to two years or to both the fine and the imprisonment.
Employment of young persons
In terms of s.11(1) of the Act, all employers are prohibited from employing as apprentices or employees, persons who are below the age of sixteen years. Further, s.11(4) prohibits employers from causing employees who are below the age of eighteen to undertake work that will be detrimental to their health, safety or morals. The section also resonates with the dictates of s. 81(1)(e) of the Constitution which guarantees the children's rights against economic and sexual exploitation, from child labour and maltreatment.
Employment of young persons or exposing them to work which is detrimental to their health, safety and morals is a criminal offence which attracts a fine of up to level twelve (currently USD2 000) or to a prison term of up to ten years or both the fine and the imprisonment.
Unlawful retrenchment
In terms of s. 12C(5) of the Act, an employer who has retrenched must notify the Retrenchment Board of such retrenchment. Where there is an agreed retrenchment package, the employer must notify the Board of such agreed package. Where there is no agreed package, the employer is duty bound to notify the Board that the minimum retrenchment package is to be paid or has already been paid together with the details of the retrenched employees.
Failure to notify the Retrenchment Board of the retrenchment constitutes a criminal offence under s12C(12) of the Act. The section states that an employer who purports to retrench any employee without giving notice of retrenchment to the Retrenchment Board in accordance with subsection (5) shall be guilty of an offence and liable to a fine not exceeding level twelve (currently USD2 000) or to imprisonment for failure to pay the fine in full within six months. In terms of that section, the reference to an employer for the purpose of imprisonment shall be a reference to any member of the governing body of a corporate employer.
Withholding or delaying payment of terminal benefits
In terms of s. 13 (1) of the Act, an employee who would have been dismissed or whose employment would have been terminated or resigns or is incapacitated or dies (his or her estate) is entitled to terminal benefits including wages and benefits due to him /her, outstanding vacation and notice period, medical aid, social security and any pension. These terminal benefits must be paid within a reasonable time. If an employer desires to withhold the terminal benefits or wishes to delay paying same must do so with the approval of the Minister of Public Service Labour and Social Welfare.
In terms of s. 13(2) of the Act, it is a criminal offence for an employer to withhold terminal benefits or to unreasonably delay payment of same without the Minister's permission. A conviction on that offence will attract a fine not exceeding level seven (currently USD400) or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.
In terms of s. 13(3) the criminal court convicting an employer of an offence of withholding or unreasonably delaying payment of terminal benefits may in addition to the criminal sentence, order the employer to pay to the employee concerned; or to any person specified by it for the benefit of the employee concerned, an amount which, in its opinion, will adequately compensate the employee concerned for any prejudice or loss he/ she would have suffered as a result of the withholding or unreasonable delay. The compensation must be paid within such period and in such instalments as may be fixed by such court.
Conclusion
Although most of the labour law violations constitute unfair labour practices, disputes and grievances, an aggrieved party may also pursue criminal prosecution against the perpetrator where the relevant provision of the Act says so. The pursuing of labour remedies does not preclude a party from pursuing the criminal route or vice versa.
Edzai Edson Matika & Yvonne Chiratidzo Bamu
Harare, 4 July 2025