Chiwenga suffers a crashing legal defeat

VICE-PRESIDENT Constantino Chiwenga and Health and Child Care minister has suffered a crashing legal defeat after the High Court barred him from forcing nurses to return to full-time shift work.

Nurses in public hospitals and clinics early this month approached the High Court through the Zimbabwe Nurses Association (Zina) seeking an interdict against Chiwenga's directive for the removal of their flexible working hours, commonly referred to as flexitime.

Flexitime was introduced as a result of a collective bargaining agreement in January 2019 to allow nurses and doctors to report for duty two or three times per week in view of their low remuneration, but Chiwenga, upon assuming the position of Health minister, scrapped the arrangement, prompting the nurses to seek legal recourse.

High Court judge Justice Martin Mafusire yesterday agreed that the nurses had raised valid concerns relating to incapacitation and lack of personal protective equipment for COVID-19.

The judge hit out at Chiwenga saying he acted against the spirit of fair negotiation by unilaterally ordering an end to flexitime.

Justice Mafusire, however, said the ruling did not serve as a final solution to the impasse and stressed that dialogue was the way to go.

In arriving at the ruling, Justice Mafusire noted that government had not made any significant improvements in the working conditions of nurses to warrant the removal of flexitime.

Flexitime would have ordinarily lapsed in April 2019 had government reviewed upwardly the nurses' salaries.

"It is common cause that no review of remuneration was carried out in April 2019 as had been envisioned or at any time thereafter," part of Justice Mafusire's ruling read.

"Instead, in August 2019, government made a cost of living adjustment on nurses' basic salaries and an allowance of between 50% and 76% on a sliding scale effective August 1, 2019. There was another BNP [Bipartite Negotiating Panel] agreement 28 August 2019. On flexitime, the agreement was inconclusive."

After these developments, the court noted that there were two other attempts by government to end flexitime which ended in deadlocks, only for Chiwenga to thereafter issue a unilateral order bringing an end to the arrangement.

In the court's eyes, this was unfair.

"The next development (after the two deadlocked attempts) was a directive by the third respondent (Chiwenga).

"It is one development that sparked the legal confrontation. The spirit of negotiation and compromise only seemed broken by the third respondent's directive on October 19 2020.

"That directive seemed incongruous to what had prevailed before. The applicant (Zina) cannot be accused of inaction. It called for dialogue. That seemed quite in line with precedent.

"It was in line with the spirit and letter of the law. Only after a deadlock or an impasse had manifested did the applicant come to court. Any reasonable person can see that it was time to act," the judge noted, adding that after assessing the merits of the case, he was left with no choice but to grant the applicants the relief they sought.

"In casu, respondents undoubtedly find themselves between a hard place and a rock. They are in an invidious position.

"Having analysed the BNP agreements at length, as I have done above, I come to the conclusion that applicant's main case is not without merit. The application succeeds. An order is hereby granted in in terms of the draft," Justice Mafusire ruled.

He, however, urged the disputants to go back to the drawing board and solve their problems through dialogue.

"An urgent chamber application is generally an unsatisfactory method of solving disputes. It is disruptive," the judge said.