eBusiness Weekly
Arthur Marara
The area of termination of contracts of employment remains one that is topical among Human Capital Practitioners, and employees.
Just like any other contract, a contract of employment can be terminated.
The law is there to guarantee and regulate the right to terminate the contract and the manner in which a particular contract is to be terminated. The area of Labour law was heavily dominated by common law, and the legislature had to intervene many times in order to protect the employees from the effects of a master-servant setup.
Each particular form of termination is connected to some form of cause if you were to look at it except termination on notice which is termed, “no fault termination”. The termination itself though termed “no fault” is often actuated by some cause just that there is no legal obligation in terms of the law to disclose the cause.
There are quite a number of ways in which a contract of employment comes to an end. This article is just going to give an overview of each of the methods, and then we shall look into greater detail into each of the methods of termination, and what the law says about it in the next articles.
Some of the termination methods will need a stand-alone article due to the detail of what is involved while and below are some of them;
1. Termination for cause — this is connected to Section 12B of the Labour Act. You ill recall that I did an article on unfair dismissal. The other term for termination for cause is termination for misconduct. Before a contract can be terminated for cause, a disciplinary hearing has to be conducted. The hearing must comply with procedural and substantive fairness, otherwise it can be impeached for not being fair.
Dismissal refers to the termination of a contract for an employee for breach of the employment contract.
The Labour Act (Chapter 28:01), provides that every employee has the right not to be unfairly dismissed.
There are two requirements for a dismissal to be valid in terms of the Labour Act; the dismissal must satisfy;
a) procedural fairness, and
b) substantive fairness
Section 12B (2) of the Labour Act sets out the instances in which unfair dismissal arises. 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).”
If the dismissal is not done in terms of employment code it means it is unfair. The employment code refers to a registered code of conduct that applies to a particular undertaking. Many organisations have developed employment codes to govern disciplinary issues.
2. Termination for Incapacity — this is connected to sick leave and happens if a person fails to recover after exhausting the days allowed in terms of the Act. The Act also speaks to the specifics on this aspect.
There are times some people even get injured at work, and are no longer able to continue working. The question of liability is separate at this stage, but the law permits termination for incapacity. You are no longer able to meet your contractual duties in terms of the law and consequently a termination follows.
3. Termination on Notice — this is quite an interesting one but will be changing significantly with the Labour Amendment Bill that brings in a raft of interventions. Many of us will remember termination on Notice from the famous Zuva judgment which affirmed the employer’s common law right to terminate a contract of employment on notice.
4. Termination by effluxion of time — This applies to fixed term contracts. The position of the law is that these come to an end when the date written on the contract comes to an end.
The law also recognises that these contracts can be renewed even repeatedly. In UZ-UCSF Collaborative Research Programme in Women’s Health v Shamuyarira 2010 (1) ZLR 127 (S) the Supreme Court held that the continued renewal of fixed term contracts over a period of time does not create a legitimate expectation of re-employment or permanent employment
This position of the law was repeated in the case of Magodora & Ors v Care International Zimbabwe SC 24/14 where the court held that the plain meaning of Section 12B (3) (b) is that the employee on a contract of fixed duration must have had a legitimate expectation of being re-engaged upon its termination and that he or she was replaced by another person who was engaged in his stead. There had been complaints about contracts that are repeatedly renewed, and the argument from employee circles was that this amounted to casualisation of labour.
5. Unilateral termination — often done by an employee when they terminate their contract of employment through what is called “resignation”. You cannot force an employee to continue working for you if they no longer want to. The issue that often arises is when the employee does not give adequate notice before terminating their contract.
6. Retirement — This usually arises due to pension regulations that speaks to the retirement age. What many companies do, is to remind employees through their pay slips of their retirement ages, so that they can prepare for their retirement.
7. Termination for operational reasons — This brings to the law on retrenchment. Once the Labour Amendment Bill becomes law this area of law is going to change radically. We shall look at the law as is in the next coming articles.
8. Termination for repudiation — This arises when a party to a contract evinces an intention not to be bound by a contract. This is seen through conduct. We will also deal with this in the next instalments.
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 is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, commercial law, family law and 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]
