Unfair dismissal and the law

Davies Ndumiso Sibanda on Labour matters
MANY employees allege unfair dismissal when they are dismissed from employment but fail to back their allegations with facts and the law. Section 12B of the Labour Act Chapter 28:01 protects employees from unfair dismissal, it reads: (1) every employee has the right not to be unfairly dismissed. (2) An employee is unfairly dismissed— (a) if, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or (b) in the absence of an employment code, the employer shall comply with the model code made in terms of section 101(9).

(3) An employee is deemed to have been unfairly dismissed—(a) if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment in tolerable for the employee; (b) if, on termination of an employment contract of fixed duration, the employee— (i) had a legitimate expectation of being re-engaged; and (ii) another person was engaged instead of the employee.

(4) In any proceedings before a labour officer, designated agent or the Labour Court where the fairness of the dismissal of an employee is in issue, the adjudicating authority shall, in addition to considering the nature or gravity of any misconduct on the part of the dismissed employee, consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal, including the length of the employee’s service, the employee’s previous disciplinary record, the nature of the employment and any special personal circumstances of the employee.

Section 12B (2) makes it mandatory for all dismissals of employees to be in terms of a legal code of conduct and there are only three types of codes of conduct that can be used to terminate an employee’s contract of employment. These are the in-house codes of conduct, the NEC codes of conduct and National Employment code of conduct. However one has to know which code of conduct to use.

Many employers have found themselves on the wrong side of the law after dismissing employees unilaterally using unregistered codes of conduct and in worse cases using the wrong code of conduct.

When these breaches of the law occur, courts are likely to order reinstatement of dismissed employees or order payment of damages. Employers have wrongly thought failure to follow procedure in labour matters is not fatal, this is misreading of the law as in cases where failure to follow procedure prejudices the employee, courts will order reinstatement.

Subsection 3 deals with termination of employees where the employer makes continued employment intolerable for the employee.

The Act says that if the employee leaves even if it’s through resignation, then the resignation shall be treated as constructive dismissal. As covered in one of my earlier articles, constructive dismissal only arises in cases where the conduct of the employer, viewed in totality is so unreasonable that no employee can be expected to put up with it. The employee must, however, have solid evidence against the employer and must leave immediately when the unfair labour practice occurs.

Subsection 3 deals with cases where an employee had a legitimate expectation of being re-engaged and was terminated and someone else was employed in place of the employee. When this happens the employee will have been unfairly dismissed. Employees must, however, provide evidence of expectation of being re-engaged, which can be in many forms.

Subsection 4 provides for mitigation and it would be unfair labour practice for a worker to be dismissed without considering mitigation. However, the Act recognises that not all cases qualify for recognition of mitigation. In conclusion, where the employer fails to apply the appropriate provisions of section 12B when terminating a contract, then the dismissal will be unfair.

-Davies Ndumiso Sibanda can be contacted on: Email: [email protected]

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