Aadil Patel, Head of the Employment practice at Cliffe Dekker Hofmeyr, noted during the seminar that businesses were moving beyond South African borders into the continent of Africa  and were looking for specialist employment law skills in many African jurisdictions, often simultaneously. He said that the demand for legal services had become more sophisticated and wide-reaching and employment law specialists had to offer proactive, pan-African advice and services.

Mozambique faces isuses over terminating employment contracts

Talking about the current issues in employment law issues in Mozambique, Gimina Mahumana Langa, Manager at SAL & Caldeira Advogados Lad said that the termination of employment contracts was a big issue for Mozambican businesses at present.‘According to Mozambican law, a contract of employment can only be terminated by (i) expiry; (ii)agreement to terminate; (iii) the cancellation of contract by either of the parties; and (iv) termination (rescission) of contract by either of the parties based on just cause. Mozambican labour law does not allow summary dismissal,’ she said. She noted that after the probationary period, an employer could only terminate the employment contract based on just cause.

Just cause on the part of the employer includes:  the manifest inaptitude of the employee for the contracted work, discovered after the probationary period; and culpable and material breach of the employment duties of the employee. Also considered just cause for the employer is the rescission of the contract for economic reasons related to the enterprise, which may be technological, structural or market related; and  the arrest or imprisonment, if, due to the nature of the employee’s functions, it would be harmful to the normal course of work.

In Mozambique, termination by manifest inaptitude occurs when, after the probationary period, the employer discovers the inability of the employee to perform his/her duties.  Before terminating the employment contract based on manifest inaptitude, the employer has to: provide a vocational training to the employee; give a reasonable period of adaptation to the employee; and endeavor to place the employee in another position.

Kenya issues over right to strike

In Kenya, William Maema, Partner at IKM, said that the right to strike was a topic under discussion in that country. He said that this right  was guaranteed by the Constitution of Kenya and the Labour Relations Act – Part II (Freedom of Association) and Part X (Strikes and Lock outs).

He said protected strikes were lawful and valid if the dispute related to the terms and conditions of employment or recognition of trade union;  the trade dispute was unresolved after conciliation efforts and if seven days written notice of the strike were served to the employer and Labour Ministry. He noted that procedural compliance was key to avoiding liability in terms of strike action.

According to Thabiso Tafila, Partner at Minchin & Kelly in Botswana, the right to strike in Botswana was also a right protected by the Constitution. The Constitution of Botswana affords all individuals the protection of freedom of assembly  and association including the right to join and belong to a trade union or other association of their choice. 

Tafila said that the Trade & Dispute Act  gave rights to every party to a dispute of interest to have a right to strike  or lockout provided certain procedures have been adhered to. A dispute of interest has been defined as a dispute concerning the creation of new terms and conditions of employment or the variation of existing terms and  conditions of employment. Thus employees only had a right to strike or lockout if the dispute was a dispute of interest and no other.

Uganda labour law 

Moses Segawa, Partner at Sebalu & Lule Advocates in Uganda explained that the Ugandan labour law story was an interesting one.In the years before the passing of new labour laws in 2006, there were some serious ideological battles between the  ILO and World Bank/IMF; and the Ugandan Ministry of Finance and Ministry of Labour. Both of which pursued reforms to the labour laws, but  with conflicting  ideological inclinations. This ideological battle affected the passing of the Labour law bills for decades.

He noted that in 2004, the Uganda Textile, Garment, Leather and Allied Workers Union (UGLAWU), a trade union representing  over 2000 female workers at Tri-Star Apparel Textile Company sought recognition. Tristar refused to give recognition and opted to dismiss all the striking employees. The matter got the attention of the United States Congress and the US Government threatened to take Uganda off the African Growth and Opportunity Act (AGOA) list. Government Officials rushed to Washington to save AGOA and following a US Government ultimatum, the Labour law Bills were passed by Ugandan Parliament in the record time of one week in April 2006, after the Presidential elections.

The 2006 Ugandan Labour Laws comprise the Employment Act 2006; the Labour Unions Act 2006; the Labour Disputes (Arbitration and Settlement) Act 2006 and the Occupational Safety and Health Act 2006.