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UNIT 3 DISPLINE AND LOSS OF EMPLOYMENT

The contract of employment may come to an end through termination of the contract,

dismissal, resignation, redundancy, retrenchment, retirement, frustration or the death of

the employee and medical discharge.

3.1DISCIPLINARY ACTION

Disciplinary actions shall be considered as constructive procedures for the purpose of correcting inappropriate work behavior. Therefore, in most instances, disciplinary actions should consist of the least severe action to accomplish this purpose.

Disciplinary actions, consisting of oral and written reprimands, suspensions, demotions, reassignments and terminations, may be imposed on employees by their supervisors/managers in as direct proportion as possible to specific offenses.

Disciplinary actions will be administered on a uniform basis throughout the organisation. However, each offense must be judged on a case-by-case basis and consideration given to the employee's past record.

While disciplinary actions are being considered, a temporary suspension may be imposed for charges such as stealing, insubordination, sexual harassment, falsifying records, gross negligence of patients, reporting to work under the influence of drugs or intoxicants, consuming drugs or intoxicants while on duty (excluding prescribed medications), fighting, and criminal charges

3.1.1 POWERS OF AN EMPLOYER TO TERMINATE A CONTRACT OF EMPLOYMENT:-An employer has the right to terminate a contract of employment for any reason or for

none in accordance with common law. Whereas at common law, no reason need to be

given by the employer for the terminating the services of the employee provided he pays

him a salary commensurate with the period of notice, the Employment Act requires that

whenever terminated is based on the misconduct or performance of the employee, the

employee must be given an opportunity to be heard on the charges against him. If an

employee whose contract has been terminated may challenge such termination on the

ground that the reason for such termination was his conduct or performance and that

therefore the rules of natural justice should have been applied.

3.1.2 RULES OF NATURAL JUSTICE

The Constitution of Zambia entrenches the principles of natural justice, specifically the right to be heard. Although constitutional law is strictly enforceable only against the State

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and not individual private employers, the principles of natural justice, in particular the right to a fair hearing, have been embraced in private employment law in Zambia and given effect under collective agreements. It can now be viewed as a labour law custom or norm in that country and could consequently take effect, even where legal provisions under a collective agreement are not in place. The right to be heard would apply where an employee is being dismissed in relation to some charge of misconduct or wrongdoing and would also incorporate the opportunity to defend oneself. In Zambia, this is translated into the right to be informed of the specific charge and the ancillary right to the services of the trade union representative or a lawyer to defend such a charge (sec. 91, ILRA). Further, where the governmental labour authority gives effect to his or her investigatory powers in relation to dismissal matters, the rules of natural justice will be followed.

Before proceedings for dismissal may commence, an employee is entitled to three warnings about conduct considered to be wrongful, thus giving him or her the opportunity to reform.

In the case of written contracts, as described under the EA, an employer may only

terminate the contract of employment on medical grounds in a situation where the

employee is unable to fulfill his or her obligations, with the written consent of a

governmental labour officer. The officer is also empowered to impose such conditions as

he or she thinks fit for the purposes of safeguarding the right of the employee to any

outstanding wages or deferred pay, any compensation in respect to any accident or

disease, and any repatriation rights (if the employee is covered by a contract of foreign

service) or other benefits (sec. 36).

THE PRINCIPLES OF NATURAL JUSTICE

Individual should know the standards of performance they are expected to meet

and the rules to which they are expected to conform.

They should be given a clear indication of where they are failing or what rules

they have broken.

Expect in cases of gross misconduct, they should be given an opportunity to

improve before disciplinary action is taken.

STAGES IN A DISCIPLINARY PROCEDURE

1. An informal discussion on the problem.

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2. A first written warning.

3. A final written warning.

4. Dismissal or action short of dismissal such as loss of pay or demotion.

If an employee faces serious disciplinary action such as dismissal the minimum statutory

procedure should be followed, which involves:

Step 1: A written note to the employee setting out the allegation and the basis for it.

Step 2: A meeting to consider and discuss the situation.

Step 3: A right of appeal including an appeal meeting.

Employees should be reminded of their right to be accompanied by a colleague or

employee representative in disciplinary hearings.

Managers and team leaders should be made aware of the procedure and told what

authority they have to take action. It is advisable to have all written warnings and any

final action approved by a higher authority. In cases of gross misconduct, managers and

team leaders should be given the right to suspend if higher authority is not available, but

not to dismiss. The importance of obtaining and recording the facts should be

emphasized. Managers should always have a colleague with them when issuing a final

warning and should make a note to file of what was said on the spot.

3.2 FORMS OF TERMINATION OF THE EMPLOYMENT CONTRACT

Termination of employment is the end of an employee's duration with an employer. Depending on the case, the decision may be made by the employee, the employer, or mutually agreed upon by both.

Voluntary termination

Voluntary termination is a decision made by the employee to leave the job. Such a decision is commonly known as "resignation," "quitting," "leaving," or "giving notice." Some common reasons for voluntary termination include:

Personal dissatisfaction with job, employer, hours, or working conditions, or in more severe cases, burnout.

Factors in employee's personal life not related to the job that make holding or performing the job impossible or more difficult. These may include family obligations, education, health, or moving to a new location.

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Hire at a new job. Reasons for wanting a different job may be better working conditions, better hours, a shorter distance to work, better pay, graduation, career progression or preparation for entry into a new career, or a career change.

Feared or anticipated involuntary termination. The employee may wish to take matters into his/her own hands in order to leave more honorably. This is also known as mutual consent in some parts.

Retirement. This may be as a result of the employee's age (which may vary, depending on job type and benefits available following retirement) or else an injury, disability, or other medical condition forcing early retirement.

Depending on the employee's reason, comfort with the employer, and dedication to the job, voluntary termination may be sudden and abrupt without warning to the employer, or with a certain amount of notice given. Generally, employers prefer that a departing employee provide at least some notice to the employer, often at least three months, this often called a three months notice. Those in compliance with this requirement are more likely to be rehired by the same employer in the future, to receive their full benefits from the employer, and to get a better reference for future employers.

Involuntary termination

Involuntary termination is the employee's departure at the hands of the employer. There are two basic types of involuntary termination, known often as being "fired" and "laid off." To be fired, as opposed to being laid off, is generally thought of to be the employee's fault, and therefore is considered in most cases to be dishonorable and a sign of failure. Often, it may hinder the new job-seeker's chances of finding new employment, particularly if he/she has been fired from earlier jobs. Job-seekers sometimes do not mention jobs which they were fired from on their résumés; accordingly, unexplained gaps in employment, and refusal to contact previous employers are often regarded as red flags.

TERMINATION OF CONTRACT OF CONTRACT OF EMPLOYMENT

At common law a contract of employment may be terminated in several ways. This may

be terminated by notice or without notice, by agreement, effusion of time, frustrate on,

death, dissolution of partnership or compulsory winding up of a company. Specific rules

of law apply to each of these fact situations.

1.2.1Termination with Notice – Lord Aver Stone CJ wrote in Re African Associations Ltd and

Allan stated that “the general principle applicable to contracts of service is that in the absence

of misconduct or of grounds specified in the contract, the engagement can only be terminated

after reasonable notice. This means that any attempt to terminate a contract of employment

without notice would constitute a breach of contract, for which the employee could bring action

for damages. Similarly, there can be no cause of action that can be put against an employer

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who has lawfully terminated a contract. These principles received approval in the Supreme

Court of Zambia in the case of ZAMBIA PRIVATISATION AGENCY VS. MATALE

(1995 – 1997) ZR 157

On 11th November 1992, the respondent was employed as first director of the appellant

on contract period of three years. On 8th September 1994, before the expiry of the three

year period he was given notice that his services were terminated with immediate effect.

The respondent was paid three months salary in lieu of notice and was given an

additional three months salary ex gratia. The respondent brought action in the industrial

relation court. The appellant appealed against the judgment in the I.R.C. holding that the

termination of the respondents employment by the appellant was unlawful and unjustified

and ordering that the respondent be deemed to have completed his three years contract

and be paid his salary and allowances he was entitled to for the remaining term of the

contract.

It was held that the termination was lawful and that the measure of damaging in absence

of any express term must be reasonable notice period. The respondent was entitled to six

months salary and all allowances he was entitled to in lieu of notice less the three months

in lieu of notice that has already been paid.

The measure of damages would be the wages which an employee would have earned if

proper notice was given. Consequently, employers in practice would pay wages in lieu

of notice in order to terminate a relationship that has broken down.

Secs. 20 and 21 of the Employment Act make provision for termination of employment by way of notice or payment in lieu of notice. Parties to the contract of employment may agree as to the requisite period of such notice but the statute sets minimum standards consisting of:

24 hours where the contract is for a period of less than a week;

14 days where the contract is a daily contract under which, by agreement or custom, wages are payable not at the end of the day, but at intervals not exceeding one month; and

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30 days where the contract is for a period of one week or more.

Such notice is not required to be in writing. It should be noted, however, that parties to a contract of employment may contract out of their minimum rights to notice under the EA, as sec. 19 explicitly recognizes “contracts expressed to be terminable without notice”. This implies that the legislation does not, in fact, provide for minimum standards of protection from dismissal in the form of notice.

Where a worker is to be dismissed summarily, his or her employer must, within four days of such dismissal, deliver to the appropriate government labour officer a written report of the circumstances leading to, and the reasons for, such dismissal. The labour officer is then required to register the details of the report in a specific register maintained for this purpose (sec. 25, EA) and to supervise an investigation into the alleged misconduct.

There is no law limiting the number of workers who may be retrenched at any particular time and no requirement for prior authorization or even regulation of redundancies as these requirements have now been repealed (previously under the Employment (Special Provisions) Regulations, 1989). However, regulatory provisions on termination of employment on the grounds of redundancy are commonly found in collective agreements. The usual practice is that where redundancy is contemplated, the employer and the trade union concerned must negotiate the terms of the proposed redundancy at least one month prior to carrying out the redundancy. For such negotiation to take place, the trade union and employees must be given appropriate information in relation to the proposed termination, including a statement of the reason for such termination, the number and categories of employees likely to be affected, the period over which the terminations are likely to be carried out and the redundancy package proposed.

The Minimum Wage Act requires that where employees employed in shops or shop-related businesses are to be dismissed for reason of redundancy, negotiations between the employer and the trade union concerned must take place and the employer must give notice three months in advance of the intention to dismiss (sec. 14).

The principle point of law in this case is to determine what reasonable notice would be in

order to satisfy the standard of the law. Many contracts of employment now provide

notice periods as standard terms, usually one month, three months or six months

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depending on the nature and status of employees. Notice periods are also commonly

provided in collective agreements.

1.2.3Termination without notice – Termination without notice, also known as summary

dismissal, will occur where the employee has committed a fundamental breach of his or

her contract. Such are cases where the employee by his or her conduct has shown that he

or she is no longer willing to be bound by the contract of employment. In the language of

contract law, the employee has committed a repudiator breach. Examples are, theft of

company property, fighting a supervisor, drunkenness on duty, desertion or gross

disobedience. All these are likely to attract summary dismissal in the rules of many

employing organizations in Zambia

1.2.4Agreement – like all other agreements, a contract of employment can be terminated

by another agreement which may or may not be in writing. This simply releases the

parties from their obligations in the contract. It is a matter of evidence whether or not the

parties agreed to terminate their relationship and the terms thereof.

Effusion of Time – a fixed contract will be terminated at the end of the period fixed for

the contract. This would be so even when the contract has a notice period. If the parties

continue in a relationship well after the original contract has ended, it will be presumed

that the parties have entered a new contract on similar terms.

By Frustration – A contract of employment, again like all other contracts, can be

discharged by frustration. The destruction of the subject matter of a contract of

employment, incapacity owing to severe or prolonged sickness, imprisonment, death of

either employer or employee would amount to frustration of a contract of employment.

Dissolution of Partnership and Company Liquidation – Dissolution of a partnership

constitute a dismissal of employees. But since dissolution is a technical term connoting a

changed relationship among partners, damages will be nominal if the partnership

continues in business and offers the employer or employees continued employment.

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As regards liquidated companies, the position of employees will depend on whether the

liquidation is compulsory or voluntary and also whether or not the business continues in

operation. In compulsory winding-up, employees will be considered as dismissed if the

company’s business ceases. If on the other hand, the liquidator continues with the

business, the liquidator may be regarded as an agent of the company for purposes of

continuing the employment relationships. The alternative is for employees to regard

themselves as dismissed because the company has ceased to employ them, the new

contract being with the liquidator. A voluntary winding-up will constitute a dismissal of

employees from the date of resolution by members of a company if the company ceases

business. If the company’s business continues, the position is analogous to what has been

stated in relation to compulsory winding-up.

At a different level, we may note by way of passing that bankruptcy of either the

employer or employee will not discharge the contract of employment automatically

unless there is a term to that effect in the agreement. However, though the employment

relationship may survive bankruptcy, it ,ay not be possible to meet salary commitments.

Bankruptcy legislation has helped to tide the common law situation by providing for

employees in the event of bankruptcy.

1.2.5 Termination by mutual agreement

Some terminations occur as a result of mutual agreement between the employer and employee. When this happens, it is sometimes debatable if the termination was truly mutual. In many of these cases, it was originally the employer's wish for the employee to depart, but the employer offered the mutual termination agreement in order to soften the firing (as in a forced resignation). But there are also times when a termination date is agreed upon before the employment starts (as in an employment contract).

Some types of termination by mutual agreement include:

The end of an employment contract for a specified period of time (such as an internship )

Mandatory retirement. Some occupations, such as commercial airline pilots, face mandatory retirement at a certain age.

Forced resignation

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1.3 DISMISSAL

Dismissal is the employer's choice to let the employee leave, generally for a reason which is the fault of the employee. The most common colloquial term for dismissal in America is being fired whereas in Britain the term 'getting the sack' is used.

Dismissal takes place when an employer terminates the employment of someone with or without notice. Dismissals should be handled in accordance with the principles of natural justice. These principles should form the basis of a disciplinary procedure.

There are four types of dismissals and these are:

(i) SUMMARY DISMISSAL

An employer has the right to summary dismissals an employee who has misconduct

himself or is guilty of a fragrant breach of his contract of employment. He must follow

the procedure outlined in section 25 of the Employment Act.

PAMODZI HOTEL VS. GODWIN MBEWE (1987)ZR 56 (SC)

The appellant, a hotel, employed the respondent as a waiter and coffee shop supervisor.

The terms and conditions of the Employment were set out in a document known as

collective agreement. On the 23rd March 1982 the Prime Ministers cocktail party was held

at the hotel at which it was alleged of that respondent was found drunk on duty and on

29th March 1982 the respondent was summarily dismissed. He sued for unlawful

dismissal. The high court ruled in his favour. On appeal to the Supreme Court it was held

that instant dismissal was justifiable as the Employees was found drunk on duty. The

action of the Employer was justifiable.

(ii) WRONGFUL DISMISSAL

This is a product of common law. When considering whether a dismissal is wrongful or

not, the form rather the merits of the dismissal must be examined. The question is not

WHY but HOW the dismissal was effected. e.g If an employer has dismissed the

employee without following the terms of employment , where the employer fails to give

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the required notice. Another form of wrongful dismissal is one involves procedural error.

This is where the right procedure in effecting a dismissal has not been followed.

The remedy for wrongful dismissal is damages and at times reinstatement. The

declaration of procedural nullify does not prevent an employer from commencing the

procedural of dismissal all over again and ensuring that this time around the dismissal is

properly done and thus avoid further challenge.

CONTRACT HAULAGE VS. MUMBUWA KAMAYOYO (1982) ZR 13

The respondent was clerk in the employment of the appellant a road haulage contractor.

In June 1976, the respondent having been granted twenty four days leave was arrested by

the police in connection with a charge of murder. When he did not return from leave, the

appellant company wrote a letter to him notifying him that on the 14 th September 1976

his services were terminated. The judge in the High court made the declaration that the

dismissal was null and void.

In deciding the case the supreme looked at the argument that the appellant did not follow

the procedure in dismissing the respondent as he was not given an opportunity to answer

charges against him, that he had a reasonable excuse for being absent and being denied

natural justice made his dismissal null and void.

The court held that while there is a statutory authentry for certain procedure relating to

dismissal, failure to give an employee on opportunity to answer charges against him or

indeed any other unfairness may be said to be contrary natural justice to the extent that a

dismissal under such circumstances would be null and void.

Any breach of the terms of the contract between the appellant and the respondent as to

the mode of termination to give rise only to damages.

Other cases are:-

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1. ZAMBIA AIRWAYS CORPORATION LIMITED VS. GERSHOM

MUMBWA(1990-1992)ZR149

2. RAINWARD MUBANGA VS. ZAMBIA TANZANIA ROAD SERVICES

LIMITED(1987)ZR43

3. NYAMBE LUYWA VS. THE COUNCIL OF UNIVERSITY OF ZAMBIA(1995-

1997)ZR 58

(iii)UNFAIR DISMISSAL

Unlike unlawful dismissal which looks at form and the procedure followed unfair

dismissal looks at the merits of the dismissal and form is only supportive of the whole

merits for the dismissal, the courts will look at the reason for the dismissal to determine

whether the dismissal was justified or not. Any dismissal which fall with the Ambit of

108 of the industrial and labour relation Act is deemed to be unfair dismissal.

The remedy is reinstatement, re employment and compensation for the loss of a job. Re-

Employment can be distinguished from reinstatement in that the Employer takes the

employee back in different capacity and under a new contract of employment, whereas

reinstatement entails taking back the employee in the same capacity and under the same

contract. The employee simply carries on from where he left. In other words, there is no

break in the contract of employment.

HENRY MILLION MULENGA VS. REFINED OILS PRODUCTS(1972)LTD

COMPLAINT No 40 of 1983

The complainant brought an action to the industrial relations court under section

114(2).The complaint was that the decision by the respondent to terminate his services as

technician was discriminating as it was done because of his social status. For redress he

asked the court to nullify the respondent’s decision and reinstate him to his former post.

In considering the case the courts question was whether on the evidence before it the

complainant was inhumanly treated for refusing to grant him leave to attend a funeral.

The court agreed that he was unfairly treated. The complaint had merit and on order for

re-employment was made.

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CONSTRUCTIVE DISMISSAL

Constructive dismissal, also called constructive discharge, occurs when employees resign because their employer's behavoiur has become so heinous or made life so difficult that they may consider themselves to have been fired. The employee must prove that the behaviour was unlawful — that the employer's actions amounted to a fundamental breach of contract, also known as a repudiatory breach of contract.

The exact legal consequences differ between different countries, but generally a constructive dismissal leads to the employee's obligations ending and the employee acquiring the right to make claims against the employer..

The employee may resign over a single serious incident or over a pattern of incidents. Generally, the employee must have resigned soon after the incident.

The notion of constructive dismissal comes from the concept "An employer must not, without reasonable or proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee." Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84, EAT.

This arises out of the situation whereby the employer through his behavior makes the

working environment so uncomfortable for the employee that it is impossible for the

employee to continue working. The Employee is left with no alternative but to tender his

Resignation in such a situation the employee’s resignation is obviously brought about by

the employer’s behavior.

This occurs when an employee on his own volition terminates his contract by resigning

while the reason for that action is that he is protesting against management’s behavior.

FAIDECY MITHI LUNGU VS. LOHRHO ZAMBIA LIMITED APPEAL No.182 of

2000

The appellant was employed in a secretarial position in the respondent copy in 1982

being executive secretary to the executive chairman, then one Mr. Tom Mtine. A new

board dismissed her whereupon She sued the company in the High court. She was

reinstated and directed that there be no loss of status.

Her position and that of her boss had since been abolished. She was offered a lower

position of secretarial job but without loss of salary. She was finally transferred to a

subsidiary company where she ended up being typist work. She finally resigned and

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launched proceeding for constructive dismissals. The lower court found that there was no

constructive dismissal on facts. She appealed to the Supreme Court.

The Supreme court held that the appellant was not humiliated or victimized. Instead it

was found that her attitude which was reminiscent of bad behavior. She knew that her

position was abolished as such it was not possible to get the same job. The appeal was

dismissed.

RESIGNATION

This may be defined as voluntary termination of contract of employment by the employee

by either giving the required notice or payment of money to the employer in lieu of

notice.

JOSEPH GERETA CHIKUTA VS. CHIPATA RURAL COUNCIL (1983) ZR 26

The respondent council employed the appellant as secretary before he was charged with

and convicted of forgery of a local purchase order. Subsequently he resigned giving three

months notice. The respondent considered and declined to accept the resignation

recommending to Eastern Province local government service board that the suspension

should and the appellant be reinstated. The Board declined and purported to dismiss him

which dismissal was later declared null and void by the High court.

The appellant sought declaration that the respondents resolution passed on 5 th October

1973 dismissing from employment was null and void and of no effect.

It was held that there is no law which confers the right in effect to force an employee to

remain in the employer’s service. The appellant had every right to resign and having done

so, such resignation effectively terminated the contract of service. The respondent should

have dismissed the appellant during the period of notice give by him.

RETRENCHMENT, REDUNDANCY AND RETIREMENT.

Retirement, Redundancy and Retrenchment all arise buy operate of Law

RETRENCHMENT

- Retrenchment takes place when a company that is going through financial difficulties

decided to reduce its work force as a cost saving measures. whereas Redundancy

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takes place when an employer decides that the Employees service are no longer

needed. Once an Employer declares an Employee redundant, he risks a legal action If

he replaces the employee he declares redundant because the action of declaring an

employee redundant is an announcement to the world that he does not need anybody

for the job.

- On the other hand an Employer can replace some employee when his financial

position improves.

- The procedure to be followed in redundancy is provided for in section 26 B of the

Employment Act.

- Retirement age in Zambia is fifty five years for female/male workers.

However where the conctract of service permit it, on employee can go as early

retirement. Retirement benefits are payable in accordance with the conditions of service.

REDUNDANCY

Redundancy takes place when the organization as a whole is going through a downsizing

exercise, when structural changes are being made, following mergers and acquisitions

and when individual jobs are no longer needed. If, unfortunately, redundancy has to take

place, it is necessary to plan ahead – seeking and implementing methods of avoiding

redundancy as far as possible, making arrangements for voluntary redundancy and

helping people to find jobs (outplacement). HR usually has the onerous responsibility of

handling the redundancy itself if all else fails.

CASE ON REDUNDANCY/RETIREMENT

KABWE VS BP ZAMBIA LTD (1995 – 1997)ZR 218(SC)

This is an appeal against a High court decision to declare that the appellant was entitled

to terminal benefits based on the increased salary of K42, 262, 488 per annum and to

purchase his personal to holder car at book value.

The Court held that the contracting of Employment between the parities terminated on 9 th

June, 1994 when the Redundancy reduced cannot be said that the accepted the new

conditions. The contract of Employment was terminated on the 9 th June 1994 when the

redundancy reduced the appellant’s salary without his consent. His benefit ought to have

been calculated on increased salary applicable to him.

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This case lies during the laws as it presently is a universal variation of contracts of

employment by employers. The Supreme Court was categorical in the fact that in the

event of an employer verging the contract of employment without the consent of the

employee, the employee is deemed to have been declared redundant on that date of such

variation. The unilateral variation of a contract of employment by an employer buys the

contract to end.

CASE OF HERWITT CHOLA AND 154 OTHERS VS DUNLOP ZAMBIA

LIMITED SCZ APPEAL No 108 of 2001

The appellants and 154 other people were Employees of the respondent declaring

company. They were served with letters declaring them redundant on 2nd September

1997. They filed a complaint in the I. R. C against their former Employer stating that the

deciding to declare them redundant was wrong as the procedure was not collective

agreement.

The other forms of Dismissals involves

(1) Retirement in national interest which is a polite way of getting rid of those you do not

require. The person who is not refused on national interest should be paid all the

benefits due to him.

(2) Retired on public interest is a disciplinary measure, it is a punitive measure as such

you may not be given all your benefits.

PLANNING AHEAD

Planning ahead means that future reductions in people needs are anticipated and steps are

taken to minimize compulsory redundancies. This can be done by allowing the normal

flow of leavers (natural wastage) to reduce or even eliminate the need for redundancy,

calling in outsourced work, reducing or eliminating overtime, reducing the number of

part-timers and temporary staff, work-sharing (two people splitting one job between

them), or more reluctantly, temporary layoffs.

VOLUNTARY REDUNDANCY

Asking for volunteers – with a suitable payoff - is another way of reducing compulsory

redundancies. The disadvantage is that the wrong people might go, i.e. the good workers

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who find it easy to get other work. If it is sometimes necessary to go into reverse and

offer such people a special loyalty bonus if they stay on.

RETIREMENT

Retirement is a major change and should be prepared for Retirement Policies need to

specify:

When people are due to retire;

The circumstances, if any, in which they can work beyond their normal retirement

date;

The provision of pre-retirement training on such matters as finance, insurance,

state pension rights and other benefits, health, working either for money or for a

voluntary organization and sources of advice and help;

The provision of advice to people about to retire.

RETIREMENT POLICIES

Retirement policies need to specify:

When people are due to retire;

The circumstances, if any, in which they can work beyond their normal retirement

date;

The provision of pre-retirement training on such matters as finance, insurance,

state pension rights and other benefits, health, working either for money or for a

voluntary organization and sources of advice and help;

The provision of advice to people about to retire.

A less severe form of involuntary termination is often referred to as a layoff (also redundancy or being made redundant in British English). A layoff is usually not strictly related to personal performance, but instead due to economic cycles or the company's need to restructure itself, the firm itself is going out of business, or due to a change in the function of the employer (for example, a certain type of product or service is no longer offered by the company, and therefore jobs related to that product or service are no longer needed). One type of layoff is the aggressive layoff. In such a situation, the employee is laid off for a just cause, but not replaced as the job is eliminated.

In a postmodern risk economy, such as that of the Zambia, a large proportion of workers may be laid off at some time in their life, and often for reasons unrelated to performance or ethics. However, employment termination can also result from a probational period, in

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which both the employee and the employer reach an agreement that the employer is allowed to lay off the employee if the probational period is not satisfied.

Often, layoffs occur as a result of "downsizing", "reduction in force" or "redundancy". These are not technically classified as firings; laid-off employees' positions are terminated and not re-filled, because either the company wishes to reduce its size or operations, or otherwise lacks the economic stability to retain the position. In some cases, a laid-off employee may be offered a re-hire by his/her respective company, though by this time, s/he may have found a new job.

Some companies resort to attrition (voluntary redundancy ) as a means to reduce their workforce. Under such a plan, no employees are forced to leave their jobs. However, those who do depart voluntarily are not replaced. Additionally, employees are given the option to resign in exchange for a fixed amount of money, frequently a few years of their salary. However layoff may be specifically addressed and defined differently in the articles of a contract in the case of union work.

Severance pay

Non-civil service employees of the Government are entitled as part of their conditions of service to a long-service bonus after four years’ service upon termination of employment. The MWG makes provision for employees whose services have been terminated to obtain severance pay benefits. Such employees are also entitled to draw any pension entitlements from the Zambia National Provident Fund (a national fund), or any occupational pension schemes arranged by individual employers for the benefit of their employees. Where workers in the private sector not covered by collective agreements are dismissed for operational reasons, under clause 7 of the MWG, they are entitled to two weeks’ pay for each complete year of service. Workers employed in any shop or business or connected with the business of any shop, who are declared redundant after having served a minimum period of six months, are entitled to at least two months’ notice and redundancy benefits of two months’ pay for each completed year of service (clause 14, MWS).

Under the EAA, 1989, an employer who terminates the services of an employee by reason of redundancy is required to pay to the employee a redundancy payment calculated in a manner prescribed by the Minister.

Various collective agreements provide for payment of long-service bonuses upon attainment of at least five years’ continuous service in cases of termination of employment for reasons other than serious misconduct or redundancy.

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Under sec. 26 of the EA, a worker, when summarily dismissed for lawful cause, is entitled to wages due up to the date of the cause of dismissal. Where the employee is dismissed other than summarily, or for reason other than redundancy, he or she is entitled to any overtime pay or other allowances accruing at the date of dismissal, including any wages owed at that date, in addition to the long-service bonus.

Avenues for redress

An employee having reasonable cause to believe that his or her services have been terminated on discriminatory grounds as listed under sec. 108 (ILRA) may make a complaint before the Industrial Relations Court within 30 days of the termination. However, the court has discretion to extend this 30-day time limit for a further three months after the date on which the complainant has exhausted any available administrative channels (sec. 108).

The Industrial Relations Court has original and exclusive jurisdiction to hear and determine any industrial relations matters or proceedings under the ILRA. In relation to termination matters, the court has jurisdiction to determine matters specified under the ILRA, such as termination on the grounds of trade union membership or activity and on discriminatory grounds. An important point to note is that the court also has jurisdiction to “hear and determine any dispute between any employer and an employee notwithstanding that such dispute is not connected with a collective agreement or other trade union matter”. It is clear that the jurisdiction is not confined to collective agreements and does not solely depend on the complaint being taken up as a collective dispute. Rather, an individual will have standing to take a matter to the Industrial Relations Court (sec. 85(4), ILRA). Complaints must be made within 30 days of the event complained of, unless leave is obtained (sec. 85, ILRA as amended).

Where the Industrial Relations Court finds in favour of the complainant, it has the discretion to grant damages, compensation for loss of employment, re-employment or reinstatement or to deem the applicant to be retired, retrenched or redundant, or make any other order or award if the Court sees fit (sec. 85(A), ILRA). In making an award, the Court will consider the gravity of the discriminatory action under secs. 5 and 108 (ILRA) or other wrongful termination.

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