Africa’s employment law issues discussed at Cliffe Dekker Hofmeyr conference

DLA Piper’s Africa partner firms from Mozambique, Botswana, Kenya and Uganda were represented at Cliffe Dekker Hofmeyr’s Employment seminar in Johannesburg this month. Chris Ewing, Chairman of DLA Piper Africa explained the rationale behind the seminar by explaining that a big difficulty that businesses face when doing deals in Africa is that they have not built relationships with law firms in Africa.

“We spend a lot of time building these relationships to ensure we have the solution for businesses looking to invest on the continent. A seminar such as this is an opportunity for our clients to connect personally with our partners in the rest of Africa and to hear from them first-hand what issues they might face in terms of legislative requirements in countries where they are looking to invest. It was clear at this seminar that although there are some similarities in our employment law, each country has its own set of challenges and a specialist on the laws in each jurisdiction is a necessity.”

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.

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.

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.

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.

Brent Williams, CEO of Cliffe Dekker Hofmeyr adds, “From a law firm perspective, our relationship with our colleagues in Africa is always on the basis that that relationship has to be mutually respectful, and mutually beneficial so that, together, are able to render services across the continent that do not come at the cost of a particular country or the development of a particular country’s professionals. Our relationship with our partner firms is collaborationist. We work with them in a way that works well for our respective firms and its lawyers, our clients and Africa too. It is always a fascinating and rewarding experience to get together to discuss these issues.”

At the end of the year, DLA Piper Africa will jointly issue a research report comparing employment legislation (from recruitment to retirement) in multiple African countries.