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Davies Ndumiso Sibanda

WHILE many argue that at common law an employer has no obligation to give reasons for terminating employees’ contract on notice, a lot of legal questions remain leaving the matter clouded.

With many employees having exhausted their notice pay and having not received their retrenchment packages in terms of the Labour Amendment Act provisions, we are likely to see more cases of labour disputes related to non-payment of retrenchment packages.

While there are many problems related to the payment of retrenchment packages, workers should prepare themselves for the fact that not all of them will get retrenchment packages related to termination on notice.

Many workers are likely to go home empty handed if employers’ application for exemption are successful.

There is, however, a possibility of litigation by some workers on whether the termination on notice without giving the employee reason is fair. This argument has never been raised in our courts other than the fact that the courts have said to allow the employer to summarily dismiss an employee is unfair.

Employment contracts are different from other business contracts in that they have an implied covenant of good faith and fair dealing and I am of the view that as part of this covenant the employer has no obligation to give an employee the reason for termination more so given the fact that the employee is almost entirely dependent on the employer for his livelihood and this is not the case with the employer who is likely to have other employees who can easily fill the gap left by the employee.

It can also be argued that disclosure of reason for termination on notice is part of “good faith and fair dealing” and as such failure to give reason for termination on notice violates that common notion.

This is more so given the fact that the employment contract is not limited by the written terms of the contracts but that courts have to go further and inquire into how the parties have lived the terms of the contract.

On scrutinising the way the contract has been lived by the parties the court can possibly find that there was a reasonable expectation for the employer to give reasons. This will largely depend on how the matter is argued.

Further, the Constitution of Zimbabwe is section 65(1) requires fairness. From a public interest perspective I think the employer as part of fairness is required to give reasons for termination on notice. The argument that the worker who is an inferior (equal partner) has to also give reasons for leaving might be asking for too much from the worker given that the employer could easily frustrate the workers’ plans in cases such as moving to a competitor or setting up a competing business. These are my thoughts that the courts could rule differently.

There is also the question of whether giving reasons when terminating an employee’s contract on notice is not an implied condition of employment more so if the worker has to decide on his rights in relation to various forms of termination. Again on this argument the answer could depend on how the matter is argued in court. I, however, believe it is possible to put together a brilliant argument in support of that it was an implied condition that on termination the worker should be given reasons.

The courts can also inquire into the real reasons for the termination given the facts presented by parties as was the case in the matters Mabhena vs PG Industries as well as Mkandla and another vs Canape Investments where the court ruled that what the employer had done was retrenchment even in the case of Mkandla and another where the employer had terminated the contract on notice and was arguing he had no obligation to give reasons.

There are also possible arguments related to the nature of a permanent contract or contract without limit of time in that the worker has an expectation of working until retirement, resignation, dismissal, or retrenchment. The expectation of termination on notice without giving reasons is not part of the expectations mix. We also do not know what the courts will say if such an argument is raised.

It is also a general accepted principle that an employee’s contract should be terminated for a legitimate reason. If this principle is accepted then all termination on notice should carry reasons.

In conclusion, this argument can only be settled in a court of law and as things stand, not many workers will have the appetite to litigate as whether one is given a reason or not given the reason for termination the legal implications in terms of retrenchment packages are the same except the fact that in the event terminations on notice without giving reason are declared unlawful by the courts many workers will come back to haunt employers.

Davies Ndumiso Sibanda can be contacted on: email: [email protected] Or cell No: 0772 375 235