Lecture 7-Notes

4th January, 2025

Kalangilile Samson. M
kalangilile@gmail.com

Room 2 Next to the Dean’s Office SHSS-for consultation come dressed appropriately.

Remember (1): You can always be better than your current academic performance

UNIT 4: TERMINATION OF EMPLOYMENT

Learning outcomes

By the end of this unit you should be able to:

• Identify and explain the different methods by which a

contract of employment can be terminated.

• Discuss the legal effect of the methods of termination.

• Discuss the remedies available in cases of termination of employment.

Learning outcomes

By the end of this unit you should be able to:

 Identify and explain the different methods by which a contract of employment
can be terminated.
 Discuss the legal effect of the methods of termination.
 Discuss the remedies available in cases of termination of employment.

4.1 Methods of Termination of Employment

Remember (2): Use your ECA, 2019- read and know what the current law says on
termination.

Termination of employment refers to the end of an employee's contract or the ending of

an employment relationship. Both the employer may terminate the employment
relationship at will with or without reasons and in a manner prescribed by law. The
employer may terminate the employment contract subsequent to a prescribed or agreed
termination notice period, if there is a valid reason, i.e. if there is no longer the need for
a certain type of work due to economic, technical or organisational reasons (notice due
to business reasons); if the employee is not capable of fulfilling his duties established
by the contract regularly due to certain permanent characteristic or capabilities (notice
due to personal reasons); or if the employee breaches the obligations from the work
contract (notice due to employee’s misconduct); or if the employee does not meet
obligations from the trial work (notice due to inadequacy on trial work). An employee
can terminate the employment contract within the prescribed or agreed notice period,
without specifying a reason for it.

Notices due to business and personal reasons are allowed only if the employer cannot
engage the employee to do some other job. In case of notice due to business reasons,
the employer is not allowed to hire another worker to do the same job for at least six
months. Before the regular notice due to employee’s misconduct, the employer is
obliged to warn the employee in writing about the obligations steaming from the
employment contract and to present him/her with the possibility of the termination of
the employment contract in case of continuing breach of those obligations, unless there
are circumstances because of which it is not reasonable to expect that the employer
should do this. Prior to regular or exceptional termination due to the employee’s
misconduct, the employer must allow the employee to present his/hers defence, unless
there are circumstances because of which it is not reasonable to expect the employer to
do so.

Employers and employees have just cause to terminate the employment contract
concluded for an indefinite or definite period of time, without obligation to comply
with the prescribed or agreed notice period, if due to a serious breach of an
employment relationship or other highly important fact, and taking into account all
circumstances and interests of both parties, continuation of an employment relationship
is not possible. These methods are discussed below.

4.1.1 Termination by notice-Look at the Employment Code Act No.3 of 2019

The above entails a termination of the employment relationship at the instance of either
party to the contract. This usually occurs by giving notice as stipulated by the contract.
Notice is a pre-determined date or period whereby the contract is to run or expected to
end, as agreed by the parties. Termination by notice thus involves the invocation of a
predetermined date or period in order to bring an end to the contract. This may be
contractual, based on the agreement of the parties, or statutory. It may also be
determined by the length of employment and it is defined by law (it varies between two
weeks for employees who were employed for less than one year to three months).
Notice period starts on the date of delivery of notice of the termination of employment.
Under common law, an employer could terminate a contract without giving reasons and
without applying the rules of natural justice. Thus, notice is an integral requirement of
termination but the justification for it is not.

NB PRINCIPLE UNDER CASE LAW BELOW: Where no collective agreement or

contract makes provisions for the termination by notice, reasonable notice is expected.

In Zambia Privatisation Agency v Matale (SC) (NULL) [1996] ZMSC 7 (14 March
1996), the respondent had been employed by the appellant as a director on a contract
period of three years. Before the expiry of the three-year period (after a period of less
than two years) he was given notice that his services were terminated with immediate
effect. The termination letter did not make any reference to the termination being made
under any contract of service but that it was following the adoption of Price Waterhouse
restructuring report of the Zambia Privatisation Board.

The respondent claimed unfair dismissal under section 108 of the Industrial and
Labour Relations Act CAP 269 that the termination was discriminatory on the grounds
of status, unlawful, malicious and contrary to the conditions of service and without
reason or merit. The Industrial Relations Court held that the termination was unlawful
and unjustified. It was unlawful because the meeting at which the decision to terminate
the services of the respondent was made did not comply with statutory provisions in
relation to proceedings of the agency. Thus, the court ordered that the respondent be
paid for the remaining period of the contract.

The Supreme Court however, held that it was common cause that the contract of
employment in the instant case did not provide for termination of employment by notice
or payment in lieu of notice. Therefore, payment in lieu of notice was a proper and
lawful way of terminating the respondents on the basis that in the absence of express
stipulation every contract of employment is determinable by reasonable notice.
Compare the above to NFC Africa Mining PLC v John Mubanga and Others (Appeal
No. 68 of 2011) [2012] ZMSC 22 (13 March 2012) where there was a Collective
Agreement that appeared to be in conflict with the respondent’s individual contract.

The collective agreement NEGOTIATED BETWEEN THE APPELLANTS AND THE

UNION STATED THAT THE EMPLOYMENT MAY BE TERMINATED BY
EITHER PARTY GIVING TO THE OTHER AT LEAST ONE MONTH’S NOTICE
IN WRITING OR PAYING TO THE OTHER PARTY ONE MONTH’S SALARY IN
LIEU OF NOTICE. The company may terminate the contract without NOTICE OR
PAYMENT IN LIEU FOR LAWFUL CAUSE INCLUDING ANY BREACH BY THE
EMPLOYEE OF THESE REGULATIONS OR THE CONDITIONS.

4.1.2 Termination by agreement

This may happen by mutual agreement of the parties normally involving a financial
settlement. The agreement extinguishes all obligations under the contract and sets the
parties free. Such agreements are normally mutual and may be used where parties wish
to separate without undue publicity and seek to maintain confidentiality or peace.

4.1.3 Termination by Dismissal

At common law, dismissal is when the employer terminates the employment contract
with or without notice. An employer is entitled to opt for the dismissal of its
employee’s contract, where the conduct of its employee is of some grave and weighty
character that it undermines the relationship of confidence which must exist between a
master and a servant. Therefore, it is the exclusion of the employee from further
employment with the intention of severing the relationship of employer and employee.

Examples of conduct which could be considered to be of a grave and weighty nature

will include:

• cases of stealing,

• fraud, bribery,
• corruption,

• falsification of records,

• gross insubordination,

• dereliction of duty,

• sleeping at work,

• verbal or physical violence,

• fighting,

• assault and battery,

• working under the influence of illegal drugs,

• conflict of interest,

• competition with the employer’s business,

• conversion of company’s property for private use without the employer’s permission
or consent, assault and battery, etc. This is a departure from the old standard which
prevented the employer from automatically dismissing his employee without notice
where such employee has committed an offence that have a criminal element(s) which
criminal offence requires the proof in a court of law, of proof beyond all reasonable
doubt.

There is no statutory regime relating to the definition of dismissal and our fall-back
position is the common law, doctrines of equity and case law.

See Redrilza v Nkazi (SCZ 7 of 2011) [2011] ZMSC 9 (8 April 2011) (7 April 2011)
where the Supreme Court distinguished between Termination and Dismissal:

-Dismissal involves loss of employment arising from disciplinary action.

- While termination allows the employer to end the contract of employment without
invoking disciplinary action.
The above entails that termination means ending. Dismissal is an action led by the
employer which results in termination of employment. Thus, dismissal is a means to an
end. Therefore terms “dismissal” and “termination,” should not be used
interchangeably.

THE RULES OF NATURAL JUSTICE

Note that this action has to be performed in a lawful and fair manner.

The rules of natural justice establish principles that regulate this.

They act as a hedge serving against blatant discrimination of the rights of individuals.
The words ‘natural justice’ are derived from the Roman word ‘Jus Naturale’, which
means PRINCIPLES OF NATURAL LAW, JUSTICE, EQUITY, AND GOOD
CONSCIENCE.

These principles did not originate from any divine power, but are the outcome of the
necessity of judicial thinking, as well as the necessity to evolve the norms of fair play.

These are the principles which every disciplinary authority should follow while taking
any decision, which may adversely affect the rights of individuals.

It is to be seen that rules of natural justice are not codified anywhere; they are
procedural in nature and their aim is to ensure delivery of justice to the parties.

Adherence to rules of natural justice, as recognised by all civilised States, is of

supreme importance, when a quasi-judicial body embarks on determining disputes
between the parties or any administrative or disciplinary action is in question. Rules of
natural justice serve as hedge against any blatant discrimination against rights of
individuals. These rules are intended to prevent such authority from doing injustice.
While the term natural justice is often retained as a general concept, it has largely been
replaced and extended by the general "duty to act fairly".

In English law, natural justice is technical terminology for the rule against bias (nemo
iudex in causa sua) and the right to a fair hearing (audi alteram partem). Reasoned
decision is also now included. Consequently, the principles of natural justice include:
A. RULE AGAINST BIAS

Rule against bias may include:

(i) Personal Bias;

(ii) Pecuniary Bias;

(iii) Subject-matter Bias;

(iv) Departmental Bias;

(v) Preconceived notion bias.

‘Bias’ means an operative prejudice, whether conscious or unconscious, in relation to a

party or issue. This is the idea that the judge may well have “strong views" or
“preconceived ideas" concerning the case before them.

THE BASIS FOR THE RULE AGAINST BIAS IS THE NEED TO MAINTAIN
PUBLIC CONFIDENCE IN THE LEGAL SYSTEM. Bias can take the form of actual
bias, imputed bias or apparent bias.

Actual bias is very difficult to prove in practice while imputed bias, once shown, will
result in a decision being void without the need for any investigation into the
likelihood or suspicion of bias. Cases from different jurisdictions currently apply two
tests for apparent bias: the "reasonable suspicion of bias" test and the "real likelihood
of bias" test. One view that has been taken is that the differences between these two
tests are largely semantic and that they operate similarly.

B. THE RIGHT TO FAIR HEARING

The right to fair hearing includes:

(i) Right to know adverse evidence;

(ii) Right to present case;

(iii) Right to rebut evidence;

(iv) Right to cross-examination and legal re-presentation;

(v) Right to reasoned decision, etc.

The right to a fair hearing requires that individuals should not be penalized by
decisions affecting their rights or legitimate expectations unless they have been given
prior notice of the case, a fair opportunity to answer it, and the opportunity to present
their own case. The mere fact that a decision affects rights or interests is sufficient to
subject the decision to the procedures required by natural justice.

C. REASONED DECISION

The above entails "reasonableness" or the requirement that there be a "just cause" for
dismissal. Some of the justifiable reasons are as follows:

• a reason related to an employee's conduct

• a reason related to an employee's capability or qualifications for the job

• because of a redundancy

• because a statutory duty or restriction prohibited the employment being continued

• some other substantial reason of a kind which justifies the dismissal.

The Zambian jurisdiction considers a dismissal as termination of employment on

disciplinary grounds. Statutory modification of the law has also recognized two other
instances of dismissal which are constructive and unfair dismissal. The statutory
dismissal regime is subject to the employee meeting the requisite continuity period set
in the statute. The dismissal types and their legal consequences are explained below:

4.1.5.1 Summary Dismissal

The employer terminates the contract of employment summarily without giving notice
because of gross misconduct, negligence or incompetence by the employee (Read the
case of Agholor v Cheese brough Pond's (Zambia) Limited). Summary dismissal in
Zambian takes place only after the employee has been given an opportunity to be heard
and found was guilty. The dismissal can then be effected without giving the employee
notice of termination of employment. The notion of “instant dismissal” which is held in
some cases assumes a situation where the employer is at liberty to dismiss the
employee without being heard. Section 50 of the Employment Code states as follows:

(1) An employer shall not dismiss an employee summarily except in the following
circumstances:

(a) where an employee is guilty of gross misconduct inconsistent with the express or
implied conditions of the contract of employment;

(b) for wilful disobedience to a lawful order given by the employer;

(c) for lack of skill which the employee, expressly or impliedly, is warranted to
possess;

(d) for habitual or substantial neglect of the employee’s duties;

(e) for continual absence from work without the permission of the employer or a
reasonable excuse; or

(f) for a misconduct under the employer’s disciplinary rules where the punishment is
summary dismissal.

(2) Where an employer summarily dismisses an employee without due notice or

payment of wages in lieu of notice, the employer shall, within four days of the
dismissal, submit to a labour officer in the district in which the employee was working,
a written report of the circumstances leading to, and the reasons for, the dismissal.

(3) A report under subsection (2), may be submitted through registered or electronic
mail.

(4) Where a report is submitted through registered mail, the report shall be considered
to have been submitted to a labour officer within four days of the dismissal if the
envelope within which it is

contained bears a postmark dated not later than three days following the dismissal.

(5) A labour officer shall record the details of a report submitted under subsection (2),
in a register maintained for that purpose.
(6) A person who fails to comply with the provisions of subsection (2), is liable to an
administrative penalty.

In terms of section 51(1) An employer who summarily dismisses an employee under

section 50 shall pay the employee, on dismissal, the wages.

Section 50(2) of the Employment Code Act No. 3 of 2019 provides where an employer
summarily dismisses an employee without due notice or payment of wages in lieu of
notice, the employer shall, within four days of the dismissal, submit to a labour officer
in the district in which the employee was working, a written report of the
circumstances leading to, and the reasons for, the dismissal.

The above provision requires the employer to send reports on any summary dismissals
it effects to the Labour Officer within four days of the dismissal. This can be done via
either registered or electronic mail. Jameson Hapeeza v Zambia Oxygen Limited, 1 the
Supreme Court refused to hold that a dismissal was null and void where the employer
dismissed an employee who was accused of fraud but failed to inform the proper
officer in compliance with Regulation 4(1) of the Employment (Special Provisions)
Regulations. The court held that the failure to inform the proper officer after a
justifiable dismissal based on fraud renders the employer liable only to a penalty, but
does not affect the validity of the dismissal.

4.1.5.2 Wrongful dismissal (common law)

Occurs when the employer dismisses an employee without giving notice of termination
or in violation of a contractual provision, that is, in breach of contract. Wrongful
dismissal is based on the common law. To determine whether a dismissal is wrongful
or not the key issues to be considered are whether the contract has been terminated
without notice or in violation of some contractual provision such as procedure.
Wrongful dismissal hence can happen even where the employer is justified in
terminating the employment; that is, the employer’s case has merit. This is because
wrongful dismissal is concerned with the ‘form ‘or ‘manner’ of the dismissal as
opposed to the reasons for the dismissal. The dismissed employee is only entitled to
damages where wrongful dismissal is proved. The Common law is set on the footing

1
(1988–1989) ZR 200 (SC).
that an employment contract is personal in nature and therefore not subject to the
equitable remedies of specific performance or injunction.

4.1.5.3 Constructive dismissal

Constructive dismissal occurs when the employer by his/her conduct or behaviour
forces the employee to resign.

Elements of constructive dismissal, according to Chilanga Cement v Singogo 2009 are

as follows:

1. The employee leaves promptly or by notice.

2. The employee must have been entitled to leave without notice because of the
unlawful conduct of the employer.

3. Even though the employee is the one who leaves, the employer’s conduct is the
cause for this.

4. The conduct of the employer, according to the court in Western Excavating

Limited v Sharpe (1978) IRLR, entitles the employee to discharge himself/herself.

5. Thus, the employer is the one who terminates the relationship.

THE TEST

The Courts in Western Excavating Limited v Sharpe and Kitwe City Council v William
Ng’uni (2005) Z.R. 57 (S.C.) laid down the test for constructive dismissal and stated
that the test for constructive dismissal is whether or not the employer’s conduct
amounts to a breach of contract which entitles an employee to resign. The employee as
the injured party is entitled to treat the contract as repudiated and claim damages for
breach of contract. The standard approach is having regard to the equity of the case.
This aspect determines the reasonability of the act by the employee to leave.

Examples of constructive dismissal include unilateral reduction in salary or status:

Marriot v Oxford and District Co-operative Society Limited (1970)1 QB 186,
workplace hostility: Walker v Josiah Wedgwood and Sons Limited (1978) ICR 744,
EAT, sexual harassment etc. Ultimately, the employee must prove, victimisation,
harassment and frustration.
WHERE NO CLAIM IS AVAILABLE

The employee, on the other hand, cannot claim constructive dismissal in order to escape
disciplinary proceedings initiated by the employer.

The Court in Kitwe City Council v William Ng’uni (2005) Z.R. 57 (S.C.) found that
the plaintiff tendered his resignation, through his lawyers while disciplinary charges
were pending against him. It also found that the reason for resigning from the defendant
could not have been frustration, victimization and harassment. Therefore, there was no
constructive dismissal.

In the case of Western Excavating Limited v Sharpe, the Court of Appeal dismissed the
'unreasonable conduct' theory as leading to a finding of constructive dismissal on the
most whimsical grounds. Since there had been no breach of contract in Sharp's case,
there was no dismissal, constructive or otherwise. The plaintiff resigned to avoid a
dismissal because the charges he was facing were serious and were likely to lead to
his dismissal (taking unauthorised time off of work). By laying charges against the
plaintiff, the defendant's conduct cannot be said to amount to a breach of contract,
which entitled the plaintiff to resign. In fact, it was conduct in furtherance of the
performance of a contract of employment, because the employer was entitled to
discipline any erring officer under its conditions of service.”

Similarly, an employee who is given an alternative position where reorganization has

taken place and accepts the new arrangement cannot claim constructive dismissal on
grounds of victimization or harassment. The Court declined to uphold such a claim in
the case of Faidecy Mithi Lungu v Lonhro Zambia Limited Appeal No.182 of 2000
(Unreported) wherein a senior secretary was relegated to a typist role without loss of
salary following an order for reinstatement against the company. The company had
abolished her old position. The employee was uncooperative and combative and wished
to be treated like she still held the old position. She resigned and claimed constructive
dismissal. Her claim was unsuccessful.

Remedies for constructive dismissal include the following:

a. Damages

These can be claimed at common law. However, there is no claim for specific
performance at common law due to the fact that the parties cannot be forced to remain
in the relationship.

ZPA V Matale- read on the court’s ratio on damages.

Mubanga v Zambia Airways- The purpose of damages is to assist an individual in

mitigating losses why seeking alternative employment.

b. Special damages

Un-liquidated damages for issues such as mental torture and other incidental losses.

c. Specific performance

The court may order an injunction or reinstatement- see Miyanda v Att-General (1985)

d. Re-employment

This is the concluding of a new contract. A different position can be given.

4.1.5.4 Unfair dismissal (Statutory)

Arises from a failure to follow statutory procedures or requirements in dismissing an
employee. It creates a protected proprietary right in a job and is concerned with the
merits of the case. It is not based on a contractual claim. In Moses Choonga v ZESCO
Recreation Club, Itezhi Tezhi2 the court held that unfair dismissal occurs when an
employee’s contract is terminated in breach of any statutory provision linked to the
protection of the right of employment and the promotion of fair labour practices that
require employers to terminate contracts of employment only on valid, specified and
reasonable grounds. Unfair dismissal focuses on the substance of the dismissal: it is for
an employer to deduce whether the reasons for dismissal are justified in terms of the
statute.

Sections (5) and (108) of the ILRA prohibits termination of employment on grounds
of participation in trade union activities and discrimination, respectively. An employee

2
SCZ Appeal No 168/2013.
who can prove a termination in violation of statute will be reinstated as the unfair
dismissal seeks to limit the employer’s capacity to terminate the employment
relationship in an arbitrary manner (Read the case of Henry Million Mulenga v
Refined Oils Products. (Do you think the Court took a lenient view of the matter when
it accepted the employee’s explanation for his absence from duty?). Remedies for
unfair dismissal include re-instatement, re-engagement, and financial compensation.
These remedies are not available under the common law where the only the remedy of
damages.

It will also be unfair if an employee is dismissed based on one of the unfair

discrimination grounds in section 52:

• trade union membership or participation in union activities outside working

hours or, with the consent of the employer, during working hours;

4.1.5.5 Redundancy

Termination of the employment contract is in essence an example of termination by

operation of law. It is discussed here for purposes of adding detail to the subject. It
occurs when the employee is dismissed because the employer has ceased to conduct
the business or part of it and it is not possible to continue with the contract.
Redundancy provisions (statutory) only cover employees; employees with requisite
continuity of service, who have been declared redundant, for reasons of redundancy
[cessation of operations].

Section 55 of the Employment Code defines redundancy and the conditions which
apply in a redundancy situation, as where an employer:

 Ceases or intends to cease to carry on the business, or

 Ceases or reduces the requirement for the employees to carry out work of a
particular kind in the place where the employee was engaged and the business
continues to operate.

4.1.5.1 Obligations of the employer in a redundancy situation

  Notify employee representatives about the redundancy, numbers affected, and
period for carrying out the redundancies.

 Allow the employee representatives to consult on the redundancy

 Mitigation measures, to reduce terminations and adverse effects

 Mitigation measures reduce adverse effects on employees including finding

alternative employment.

 Notify a proper officer (e.g. Labour Commissioner, Labour Officer etc.) at least
sixty days before effecting redundancies giving, reasons, numbers of categories,
period and nature of redundancy package.

 Pay a redundancy package as agreed or as determined by the Minister.

 Pay redundancy package not later than the last day of duty.

Redundancy provisions do not apply to other employment situations which include

bankruptcy or compulsory liquidation, casual employees, employees on probation,
employees on fixed term

Contract sand the redundancy coincides with the expiration of that term or employees who
have been offered alternative employment have unreasonably refused such offer.

Orders have been issued under the Minimum Wages and Conditions of Employment Act CAP
276 to provide for redundancy benefits for certain occupations.

The Minimum Wages and Conditions of Employment (General) Order, (Statutory Instrument,
No. 2 of 2011) (General Order) provides that

1. where an employee's contract of service is terminated by reason of redundancy,

2. the employee shall be entitled to at least one month's notice and redundancy benefits
of not less than two months' basic pay. However, the application of the General Order
is limited to the following occupations:

 general worker;
  cleaner;

 handy person;

 office orderly;

 guard;

 driver;

 typist;

 receptionist;

 telephonist; and

 qualified clerk.

The scope of the General Order is further limited by the exclusion of employees of the
Republic of Zambia, employees of local authorities, employees in management positions,
employees engaged in domestic service and employees in any occupation where wages and
conditions of employment are regulated by collective bargaining.

The Minimum Wages and Conditions of Employment (Shop Workers) Order, (Statutory
Instrument, No. 1 of 2011, as amended by Statutory Instrument, No 47 of 2012) (Shop
Workers' Order) provides that employees in other specified occupations are entitled to at least
one month's notice and redundancy benefits of not less than two months' basic pay. The list of
included occupations is too long to list in this article; however, most of the included
occupations pertain to the retail sector and the Shop Worker's Order, like the General Order,
contains a long list of excluded occupations.

Employees with written contracts have no general entitlement to redundancy benefits, but
certain occupations qualify for redundancy benefits under the General Order and the Shop
Workers' Order. Employers are advised to consult the two Orders for guidance on whether
their employees fall within protected occupations.

Read the cases of:

Chilanga Cement, Plc v Kasote Singogo (2009) S.C.Z Judgment No.13 of 2009.
The brief facts of the case, which were not in dispute, were that the respondent was employed
by the appellant company in March, 1988, as a Credit Controller. On 17th December, 1999,
he received a letter from the appellant, advising him that he had been declared redundant with
effect from that date. The said letter which appears on page 51 of the record of appeal, states
in part that the redundancy was due to the company’s decision to rationalize its manning
(125) levels. The respondent was to be paid one-month salary in lieu of notice, and would be
entitled to a redundancy package comprising two months basic salary for each completed
year of service; gratuity, transport or in lieu repatriation expenses to his registered home
district, and, pension benefits to which the respondent would be entitled under the rules of the
pension scheme.

On how redundancies should be handled, the Court listed three ways:

(a) Consideration of alternatives: a reasonable employer considers whether it is necessary to

act on redundancy or whether there is some other way of dealing with the problem.

(b) Lack of consultation: to dismiss without warning or proper consultation or without

considering the recommendations of any terms and conditions relating to redundancies may
also result in a finding that a dismissal is unfair. Consultation must be fair and genuine.

(c) Proper selection procedures.

1. Redundancies are planned activities. Being a planned activity, the employee needs to
be prepared for the loss of a job. Reasonable measures which should be taken will
inevitably include notices, and consultations which are so vital to the planning
process.

2. Fairness and good faith demands that an employee should not be ambushed in a
redundancy exercise because such an ambush would not mitigate the negative impact
of a loss of a job.

3. Ordinary termination of contract of service by notice cannot be equated to a notice of

redundancy. Redundancy, is a planned, clear, and transparent selection procedure. To
accept that payment in lieu of notice would suffice in a redundancy would be to
negate the whole process of planning and consultation, which an employer has to
engage in, in order to effect redundancies.
NOTE: It is highly imperative that you read the following cases:

Hewitt Chola and Others v Dunlop Zambia Limited, SCZ Appeal No. 108 of 2001
(Unreported)

Appellant and others were declared redundant.

Read:

Kabwe v BP (Zambia) Limited [1995-1997] ZR 218 (SC)

Zesco Limited v Banda and Others (Appeal No. 211/2013) [2017] ZMSC 3 (18 January
2017):

Nsama and Others v Zambia Telecommunications Company Limited (Appeal No. 21/2012)
[2014] ZMSC 68 (23 July 2014);

4.1.5.2 Retirement

Section 58 of Employment Code. An employee’s contract of employment shall

expire by reason of retirement, where the employee attains the age of retirement under
a written law.

Summary:

This lecture dealt with modes and methods of termination of an employment contract. The
modes discussed include: termination by notice, termination by agreement, termination by
dismissal, termination by redundancy, and termination by retirement. All these modes have
been discussed in detail using the law, that is to say statutory provisions and case-law.

SELF ASSESSMENT QUESTIONS

1. Explain the modes by which termination of the contract of employment may be

effected.
 2. Discuss the various remedies that apply in the context of termination of the contract
of employment.

3. How does the common law conception of dismissal differ from Zambian
jurisprudence? Is it a necessary distinction?

4. Read the case of Chilanga Cement, Plc v Kasote Singogo (2009) S.C.Z Judgment
No.13 of 2009.

5. The Court dealt with the requirements that must be in place for constructive
dismissal to be established. Discuss these requirements.

6. Explain the Court’s rationale that ‘constructive dismissal must be narrowly

construed’.

4.2 OBLIGATIONS OF THE EMPLOYER IN A REDUNDANCY SITUATION

• Notify employee representatives about the redundancy, numbers affected,

and period for carrying out the redundancies.

• Allow the employee representatives to consult on the redundancy

• Mitigation measures, to reduce terminations and adverse effects

• Mitigation measures, reduce adverse effects on employees including finding

alternative employment.

• Notify a proper officer (e.g. Labour Commissioner, Labour Officer etc.) at

least sixty days before effecting redundancies giving, reasons, numbers of
categories, period and nature of redundancy package.

• Pay a redundancy package as agreed or as determined by the Minister.

• Pay redundancy package not later than the last day of duty.

Redundancy provisions do not apply to other employment situations which include

bankruptcy or compulsory liquidation, employees on probation, employees on fixed
term contracts and the redundancy coincides with the expiration of that term or
employees who have been offered alternative employment have unreasonably
refused such offer.

Activity 4.0

Read the case of Chilanga Cement, Plc v Kasote Singogo (2009) S.C.Z Judgment
No.13 of 2009.

1. The Court dealt with the requirements that must be in place for constructive
dismissal to be established. Discuss these requirements.

2. Explain the Court’s rationale that ‘constructive dismissal must be narrowly

construed’.

SELF ASSESSMENT QUESTIONS

1. Explain the modes by which termination of the contract of employment may be

effected.
2. Discuss the various remedies that apply in the context of termination of the
contract of employment.

3. How does the common law conception of dismissal differ from Zambian
jurisprudence? Is it a necessary distinction?