Termination and Dismissal Flashcards
What is the law relating to termination
S52 provides that a contract may terminate by the manner stated in the contract or as provided for by the act
When can an employer terminate a contract of employment
An employer can only terminate an employee on issues to do with conduct or capacity or operational requirements (S52(2))
How are the ways in which a contract of employment may be terminated?
- By notice or payment in lieu of notice (ZCCM v James Matale and Zambezi Portland v Kelvin Kalidos) S53 ECA
- By mutual agreement (Lukama and others v Lint Company and others)
- Expiration of the contract. (ZZCM v Matale recognized this as a valid way of termination)
- Death
- Retirement age in a permanent contract
What are the requirements for termination?
i) There must be a valid reason for the termination (Sarah Aliza Vekink v Casa Dei Bambini Montessori) & (Zambezi Portland cement)
ii) There must be a fair procedure followed allowing the employee to be heard if based on the employees conduct or capacity. (Z
AMTEL v Mudenda) & S52(3)
What is dismissal??
Termination arising from a displinary action( Redrizila v Nkazi)
What are the types of dismissals?
- Unfair dismissal
- Wrongful dismissal
- Summary dismissal
- Constructive dismissal
What is unfair dismissal
it is dismissal contrary to statue or on an unsubstantiated ground. (KCM v Hendrix Mulenga Chileshe differentiated it from wrongful dismissal)
What amounts to unfair dismissal?
- Dismissal based on one of the grounds in S52(4)
- Dismissal on a charge not supported by evidence
- Not giving the employee opportunity to be heard. (Supabets Sporting Betting v Kalimukwa- Onus is on the employer to show the reason and it must relate to the conduct, capacity or operational requirements.) also affirmed in (Sarah Aliza)
What is wrongful dismissal
This when the employee does not follow the procedure of how the contract should end. It is dismissal contrary to the contract of employment. (Care international v Mischeck Tembo) & (KCM v Hendrix Chileshe Mulenga)
When is a dismissal wrongful?
A dismissal will be wrongful if the laid down displinary or grievance procedure is not followed ( Zambia Airways Corp v Gershom Mubanga)
What happens when the employee commits an apparent offence and the procedure is not followed.
the decision in Zambia National Provident fund v Yekweniya Chirwa will apply. If an employee is dismissed for an apperent offence failure to follow procedure will not negate the dismissal.) also affirmed in Philip mwenya v Zambian Breweries
What is summary dismissal
This when an employee is dismissed without notice based on the grounds in S50.
What are the grounds for Summary dismissal?
i) Gross misconduct
ii) Wilful disobedience of a lawful order. (Musonda Charles Saini v Amazon Secure Services)
iii) Lack of skill
iv) Absence of work (Humphrey Kombe Musonda v ZAFICO)
v) Misconduct awarding summary dismissal under the disciplinary rules
What are the requirements for a summary dismissal?
Macha Makala v RTSA, held that the authenticity of the charge be proved.
Zamtel v Chipowe, held that the employer must investigate the authenticity of the charge.
What happens to the accured benefits when an employee is dismissed?
Based on Humphrey Kombe Musonda v ZAFICO, dismissal does not affect the accured rights and benefits. They are a matter of right and cannot be taken away.
