Chronicle Editor
Davies Ndumiso Sibanda, Labour Matters
TERMINATION of employment contracts is one of the most misunderstood labour matters as wrongful termination of employment contracts has cost many employers a lot of money as they compensate employees for wrongful dismissal.
Employment contract termination law, while it looks simple, has many complex areas that need to be understood by human resources practitioners, heads of department and chief executives.
A major problem is that many chief executives and owners of businesses think they are law unto themselves and can do whatever they like about employees and others wrongly think their human resources practitioners can perform miracles to side-step the law when it comes to employment termination.
The starting point is for employers to understand that the Labour Act Chapter 28:01 is superior to all other legislation when it comes to matters of labour.
Simply put, as read with the Constitution of Zimbabwe (mainly section 65) the Labour Act is the supreme law when it comes to employment matters and the employer cannot refer to any other legislation for employment termination.
Termination of employment is expressly provided for in our laws and includes termination through death, retirement, resignation, dismissal for misconduct, incapacity, mutual separation and retrenchment.
Each of the termination methods follow specific processes and if the processes are not followed, then the termination will be unlawful and can come back to haunt the organisation and the cost of resolving it is huge.
I recall a case of an employee who had been on fixed term contract for several years and in August 2018 the employer stopped giving the employee fixed term contracts.
The employee continued working and at law it meant that the employee was then on permanent employment.
In December 2021 the employer tried to terminate the employee using the contract that had expired in August 2018. The employee claimed permanence or having a contract without limit of time.
The employer terminated the contract anyway. The matter went to the NEC and the employee was successful with the employer ordered to reinstate the employee without loss of pay and benefits and if reinstatement was no longer possible parties were to approach the designated agent for quantification of damages but payment for wrongful dismissal to date of determination remain unnegotiable.
Termination of employment contracts through dismissal is the most difficult where all who are responsible for administering discipline are not trained. This is so because administering discipline is a technical legal process which starts at the workplace and ends at the Supreme Court and in rare cases it ends up at the Constitutional Court.
Simply put, it starts with non-legal hands on the deck and ends with top legal minds adjudicating thus the need to do it right the first time.
With the above background, there is a need for chief executives and all managerial employees including workers’ committee representatives to be trained in discipline law basics such as code of conduct procedures, principles of natural justice and other legal requirements of labour justice systems.
Common mistakes by employers include unilateral termination of employees’ contract without following routes specifically given in the code of conduct. In some cases, employers adulterate the process where a matter is pre-judged and decisions are made before hearing the other side or facts of the matter are ignored and record is of proceedings is tampered with.
I have also handled cases where dismissal is driven by internal politics and not misconduct. There are cases where top management is “angry” or “hates” a particular manager and looks for “mistakes” and use them to dismiss. In the majority of cases such approach to discipline comes back to bite the employer if the employee takes the matter outside and gets justice.
In worse cases where organisations are unethical, I have seen good men and women being dismissed to create jobs for friends and relatives.
In the majority of cases mistakes are made along the way as the employer hurries to get rid of an employee resulting in unfriendly comebacks.
In conclusion, employers should not assume managers know but should invest time and money in discipline law training as it relates to the appropriate code of conduct.
All managers are specialists in their fields of training but discipline law training was not part of their training thus the need to have them trained.
Davies Ndumiso Sibanda can be contacted on:
Email: [email protected]
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