S v JOVNER 1982 (2) ZLR 252 (S)

Flynote

Criminal law — statutes — Employment Act, 1980 (No. 13 of 1980) — section 5 (2) (a) — regulations made under Act — inconsistent with industrial agreement made in terms of Industrial Conciliation Act [Chapter 267] — terms of latter prevail — common law right to give notice incorporated in Agreement not restricted by regulations.

Headnote

In terms of section 5 of the Employment Act, No. 13 of 1980, the Minister of Labour and Social Services may make regulations relating to or connected with the employment of employees. Subsection (2) (a) provides that in the event of any inconsistency between such regulations and the provision of any agreement given effect to in terms of any enactment the terms of the latter shall prevail. The Minister had, in terms of the section, made the Employment (Conditions of Service) Regulations, 1981 (S.I. 894 of 1981), section 4 (1) (b) of which prohibits the laying off or dismissal of employees without the prior written approval of the Minister.

The appellant, the owner of a bottle store, employed a driver whose conditions of service were governed by an industrial agreement made binding in terms of the Industrial Conciliation Act [Chapter 267]. In terms of this agreement, the common-law right to dismiss on due notice was preserved. The appellant exercised this right in respect of the driver referred to and was charged with a contravention of section 4 (1) (b) of the Regulations.

Held, that in view of the provisions of section 5 (2) (a) of the Employment Act, the provisions of the industrial agreement prevailed over those of the Regulations and the common law right of dismissal was not affected. It was not correct to say that the Regulations merely required a further step to be taken before employment could be terminated; the Regulations limited the right of an employer to terminate employment on notice.