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Davies Ndumiso Sibanda Labour Matters
MANY employers particularly those in the informal sector are in trouble with the law due to hiring workers informally with no written contract that can guide parties when there is a contractual dispute. With the economic hardship we’re facing many people are running small businesses at home or in town but the workers they employ have no written contracts resulting in disputes at contract termination.

Lessons from cases that have gone before the courts have shown that it is very difficult to tell who is telling the truth between the employer and employee and it is very common for workers to claim permanence even in cases where the relationship started as assisting a friend or a neighbour and the hours worked were very few.

The moment such relationships transform to be a daily routine and there is remuneration involved, then a written contract must be made and signed by both parties.

The most important thing is to ensure the duration and nature of the contract is made clear to the worker. Employers need to know that the law allows for time based contract and task based contracts such as a contract to grow maize and ends after harvesting or a contract to herd cattle during the cropping season only or a contract to look after school children during the term only or a contract to sell second hand clothing during the next 3 weeks.

While such contracts might look clumsy, they are specific and clear of any confusion.

Further, what the employee should be paid in basic salary commission or allowance must be clearly stated and the contract should clearly state that the salary has been mutually agreed by the parties and shall not be subject to intervention by any voluntary National Employment Council (NEC) but shall be guided by the national minimum wages and any statutory NEC directive.

Another golden rule is that employers should not use their hearts when contracting. I have heard many cases of employers saying I was helping this individual and I’m surprised he is now turning against me. Such defence does not help in such a dispute, the answer lies in having a documented contract.

The sad thing is when there is a problem, many employers panic on being dragged to NEC and Ministry of Labour and in worse cases they are threatened by dubious worker representatives into parting with huge sums of money they would not have lost had they submitted to litigation.

In conclusion, employers need to seek guidance on crafting of the contracts to avoid the cost of litigation and falling foul of the law.

l Davies Ndumiso Sibanda can be contacted on: [email protected] or 0772 375 235