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Davies Ndumiso Sibanda, Labour Matters                                                                                                                             

MANY employers struggle with termination of employment contracts because of ignorance of the law and end up paying employees who were unprocedurally terminated huge amounts of money.

The foundation of employment contract termination is the Constitution of Zimbabwe. From 22 May 2013 all contracts terminations must be fair.

Any method of contract termination that fails the fairness test is a nullity.

The Labour Act Chapter 28:01 and related regulations provide for specific methods of terminating an employment contract.

The main guidelines are housed in Statutory Instrument 15 of 2006 section 5 which reads, “No employer shall terminate a contract of employment with
an employee unless —

(a) the termination is in terms of an employment code which is registered in terms of section 101(l)of the Act; or

(b) in the absence of the registered code of conduct men­tioned in (a), the termination in terms of the National Employment Code of Conduct provided for under these regulations; or

(c) the employer and employee mutually agree in writing to the termination of the contract; or

(d) the employee has been engaged for a period of fixed duration or for the performance of a specific task and the contract of employment is terminated on the expiry of such period or on the performance of such task.

While these provisions should be housed in the Labour Act, they remain applicable to all contracts in Zimbabwe. For misconduct cases, the employer has to use the applicable Code of Conduct without fail.

These provisions require first the employer to select the appropriate Code of Conduct from the applicable NEC Code of Conduct, National Code of Conduct or inhouse Code of Conduct.

The employers’ dilemma arises where a Fixed Term Contract worker or probationer commits acts of misconduct. The employer gets tempted to let the Fixed Term Contract lapse or probation come to an end.

That is wrong as the methods will fail the fairness test. The employee must be taken through a disciplinary process and if dismissal is the fair decision, then so be it.

So many legal battles have been fought around such termination and many have been lost by employers due to failure to satisfy the fairness test.

Termination related to Fixed Term Contracts was dealt with at length in my last article and as such will not be covered here.

Termination on notice was dealt with by the Supreme Court and while it remains available, imposed limitations such as fairness in the eyes of a reasonable person.

Further, there could be a thin line between termination on notice and retrenchment.

Probation terminations after 2013 amendment of the Constitution should be done fairly and a fair guide is to ensure a written probation programme with performance targets, review milestones, support and training to be provided to the new employee clearly spelt.

Justice Nare in Musinami vs Zimra clearly spelt out the need not to leave a new employee alone without providing the necessary support and supervision.

On retrenchment, the employer should have a valid legally appropriate reason for retrenchment. It is illegal to retrench an employee over misconduct issues.

Another popular method of extinguishing employment contracts is mutual separation.

It must not be driven by threats of dismissal but parties must mutually agree they can no longer work together and agree on mutual separation terms.

There are cases where employee deserts, in such cases, the employee should be charged and hearing conducted to extinguish the contract.

However, principles of natural justice such as sending notification of hearing to the employee’s last known address and holding a formal hearing even if employee does not come must be done.

In the event the employee resurfaces with whatever reason for disappearing he or she can apply for condonation of late appeal, which will be dealt with as guided by the law.

There are other contract termination methods such as retirement or death. Each of these follows set legal processes and employers have to seek legal guidance.

While Zimbabwe does not subscribe to the internationally accepted rule that an employment contract is between two equal-unequal parties and as such where a court inquires into a contractual dispute, it must not rely entirely on what parties have written down but go further to look at how the contract has been lived. (See Autoclenz vs Belcher and others UK SC 2009/0198).

It is advisable that employers voluntarily take into consideration how the contract has been lived.

In conclusion, termination of employment contracts can be source of legal disputes and as such before terminating contracts, employers need to be certain they are on the correct side of the law.
Davies Ndumiso Sibanda can be contacted on: Email: [email protected]