eBusiness Weekly
Arthur Marara
Termination on notice refers to the process of ending an employment or contractual relationship between an employer and an employee by providing advance notice.
The notice period that is given is governed in terms of the law, in our case the Labour Act (Chapter 28:01).
In this type of termination, the party initiating the termination (usually the employer or the party seeking to terminate the contract) is required to provide a specified period of notice to the other party. It is a method of termination that allows both parties to prepare for the end of the relationship and make necessary arrangements.
During the notice period, the employee or the party being terminated is usually expected to continue working and fulfilling their obligations until the termination becomes effective.
This allows for a smooth transition and gives the affected party time to find alternative employment or make other arrangements. In other instances, employers usually prefer that the employee finishes their notice period at home. The approaches differ depending with the nature of the parties involved.
Termination on notice is often considered a fair and reasonable approach as it provides both parties with an opportunity to plan for the future and minimise any potential disruptions caused by the termination.
This method of termination has often been viewed with serious worry amongst the working populace in light of the past experiences with the Zuva Judgment.
Can an employer terminate a Contract of employment on Notice under the Labour Amendment Act?
This remains one of the topical issues from the amendment.
If you got time to read the Labour Amendment Bill and what we finally got you will notice that there are several provisions that did not make it into the Amendment Act. This also includes provisions that sought to address the issues to with Termination on Notice.
I would argue that it is legally possible to terminate a contract of employment on notice. In this article I will explain why I think termination on notice is alive in terms of the Labour Act as amended.
Remember: Don Nyamande v Zuva Petroleum?
The Zimbabwe Congress of Trade Union (ZCTU) estimated that about 50 000 employees were terminated on notice in a space of two weeks ever since the Zuva Judgment. Employers who were struggling to retrench employees proceeded to use the door which had been “opened” by the Supreme Court. The Don Nyamande v Zuva Petroleum (Private) Limited SC43/15 in reality simply confirmed an employer’s right to terminate a contract of employment on Notice.
There was tremendous pressure on the Legislature to plug the hole that had been created that saw several employees losing their jobs. This brought into existence Act No. 5 of 2015 which saw the Labour Act being amended. The 2015 Amendment came and introduced Section 12(4a) which provides that;
“(4a) No employer shall terminate a contract of employment on notice unless—
(a) the termination is in terms of an employment code or, in the absence of an employment code, in terms of the model code made under section 101(9); or
(b) the employer and employee mutually agree in writing to the termination of the contract; or
(c) the employee was engaged for a period of fixed duration or for the performance of some specific service; or
(d) pursuant to retrenchment, in accordance with section 12C.” (emphasis added)
The reading of the 2015 will also demonstrate that Termination on Notice was still permissible. If the intention was to outlaw it completely the Subsection should have stated that, “‘(4a) No employer shall terminate a contract of employment on notice…’”
Section 8 of the Labour Amendment Act repeals subsection (4a) and the substitutes that subsection with the following;
“(4a) A contract of employment may be terminated only, on the part of an employee, by his or her resignation or retirement, and in the following cases on the part of an employer—
(a) by mutual agreement in writing;
(b) for the breach of an express or implied term of contract, upon such breach being verified after due inquiry under an applicable employment code or in any other manner agreed in advance by the employer and employee concerned.”
Perhaps the interesting part in terms of that section is, “A contract of employment may be terminated only . . .” That particular subsection cannot be interpreted to mean that the listed cases are the only instance when a contract of employment can be terminated by an employer. Section 12(4a) is not exhaustive.
There are several forms of termination of contract that are not listed in terms of that section that are provided for elsewhere in terms of the Labour Act.
Termination on Notice on the other hand arises by virtue of the common law, and not the Labour Act.
It is common cause that both the employer and the employee have a common law right to terminate an employment relationship on notice.
“That common law right in respect of both the employer and the employee can only be limited, abolished or regulated by an Act of Parliament or a statutory instrument that is clearly intra vires an Act of Parliament”. (Zuva Judgment).
Section 12B of the Labour Act was interpreted in the Zuva Judgment as not abolishing the employer’s common law right to terminate employment on notice in terms of an employment contract.
This means no argument can arise from that section to impeach termination on notice. Even the very same subsection 4a introduced by the amendment cannot be a legal basis to argue that termination on notice was abolished.
To be continued next week . . .
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara
Arthur Marara is a practising Attorney, bestselling author, human capital trainer, business speaker, thought leader, law lecturer, consultant, coach, legal proctor (UZ). He has vast experience in employment law and has worked with several corporates, and organisations. He is also a notary public and conveyancer. He is passionate about promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]
