The ManicaPost
Trust Maanda
Post Correspondent
AN employer and an employee can terminate an employment contract between them by giving notice to the other.
This is whether the contract is of no fixed duration or of fixed duration.
The period of notice may be as agreed by the parties in their contract, but in its absence, the Labour Act (Chapter 28:01) (the Act) provides the periods of notice, depending on the type of employment period.
Section 12 (4) of the Act governs the time periods that apply when employment is being terminated on notice.
The notice periods do not apply when an employee is dismissed because in instances of dismissal, no notice is required.
The periods of notice referred to in Section 12 (4) of the Act only apply where there is termination of employment by the giving of notice provided for in a contract of employment.
Section 12 (4) of the Act and a termination on notice clause in a fixed term contract allow for the termination of a contract before its termination by expiration of time.
In the case of Nyamande&Anor v Zuva Petroleum (Pvt) Ltd &Anor 2015(2) ZLR 186 (S), the Supreme Court accepted that the common law position that the employer has a right to terminate an employment contract on notice, other than by dismissal for misconduct, is part of our law.
The Court further held that all that s 12(4) of the Act does is to prescribe the notice periods applicable, in the various durations of employment contract.
An employer can terminate a fixed term contract by allowing the same to run its course.
The same result can be achieved by the employer making a payment in respect of the unexpired term of the fixed contract.
Termination on notice is not a dismissal. Section 12B of the Act, is what deals with dismissal and the procedures to be followed in dismissal following misconduct proceedings.
Dismissal is one of the methods, but not the only one, of termination of an employment relationship.
It is only one of several methods of terminating employment.
Section 12B of the Labour Act does not deal with the general concept of termination of employment.
It concerns itself with termination of employment by way of dismissal on disciplinary grounds.
It does not deal with termination of employment on other grounds than dismissal.
An employer who wishes to terminate a fixed term contract early may give notice of termination.
An employment contract can be terminated on notice even where there is no fault on the part of either party.
Sometimes the relationship may break down to levels where trust between the employer and employee is broken down.
In that situation, either party may terminate on notice because the relationship would be untenable.
The employer can buy the employee out by giving him or her the full benefits of the outstanding period of employment of a fixed duration.
The employer may terminate the employment contract by offering full payment and benefits the employee would have received if the contract ran its full duration.
The employer is not obliged to give the employee actual work, but is obliged to remunerate the employee.
An employer who sends his or her employee home on fully pay does not break the law, unless it is an exceptional situation where performance of work is a prerequisite.
This is why an employee can receive damages in lieu of reinstatement.
The damages are to put the employee in the same situation as he or she would have been it was not for the premature termination of employment.
The employer can buy the employee out by giving him or her the full benefits which would have been due to the employee for the outstanding period of employment of a fixed duration.
On the other hand, an employee can terminate employment by giving notice.
The employee can also terminate without giving notice but if the contract stipulated the period of notice, the employer may sue for damages or seek an order compelling the employee to serve the period of notice or remaining on the duration of the contract.
The employee can also terminate the contract by resignation. Resignation can be with immediate effect.
Resignation is a unilateral act, meaning that the employer does not have to agree with or accept the resignation.
Once resignation is given, it terminates an employment relationship, without more.
An employer, just like the employee, can terminate an employment relationship by giving the requisite notice, as long as it is done in accordance with the contract of employment or the Labour Act.
Termination on notice is one of the many legally recognised ways, by which an employment relationship can be terminated.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646
