In a Herald article published on February 27, 2019, we discussed labour rights with a specific focus on the contract of employment and what a legally sound contract should contain.
To continue this conversation, we shall take a look at the function of labour law upon termination and suspension of contract.
Before examining this law it is worthy of note that every employee has full rights which cater to all aspects of employment from recruitment, employment and termination.
Central to these rights is the right to fair labour practices entails that there must be mutual respect between the employer and the employee.
Previously, the Zimbabwean labour law made specific reference to what is known as ‘fair notice.’
This can be defined as proper notice, adequate at law, given within sufficient time to likely reach the intended recipient.
The current position in this regard is that no employer shall terminate a contract of employment on notice unless:
The termination is in terms of an employment code or, in the absence of an employment code, in terms of the model code
The employer and employee mutually agree in writing to the termination of the contract or
The employee was engaged for a period of fixed duration or for the performance of some specific service; or
Pursuant to retrenchment
There may arise a situation where an employee is placed on probation due to various reasons by the employer. This probation period must not exceed a week for casual work and for three months for longer contractual periods. In the event that an employee is facing dismissal the first point to note is that every employee has a right not to be unfairly dismissed.
Unfair dismissal includes;
If the employee terminates a contract without giving due notice to the employee on the basis of intolerable working conditions by the employer for example, terminating a contract due to continued sexual harassment or prolonged periods of working without receiving salary or wages.
Upon termination of a fixed term contract, the employee had a legitimate expectation of being re-engaged for example where the culture of the workplace involves short term contracts which are renewable throughout the year.
Based off the example given above, if another person is engaged instead of the contract employee who has a legitimate expectation to be re-engaged, unfair dismissal may be pleaded.
The employee who finds themselves in such circumstances must prove that there was indeed unfair dismissal for them to have a remedy at law.
Where an employer wishes to retrench one or more employees, a notice must be given stating the intention; the employer must provide the relevant authorities such as the employment council, the works council or the Retrenchment Board with details pertaining to each and every employee who they deem liable for retrenchment and the reasons for such an action.
In all the different scenarios expressed throughout this article, it is necessary to remember that due process must be followed to avoid conflict and possible law suits.
If an employee is dismissed, their contract is terminated, resigns, is incapacitated or dies; they are still entitled to their wages and benefits due up until the time when the employer — employee contract ended.
This includes circumstances where the employee dies, whereas these wages and benefits will form part of the deceased’s estate.
Even at the time when the contract lapses or is terminated, employees should still be protected from unfair labour standards and practices.