DISCIPLINE AND LOSS OF

EMPLOYMENT
Session 7 DISPLINE AND LOSS OF EMPLOYMENT
Objectives

• 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.
Disciplinary 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 organization. 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.
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
concentrate 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. 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.
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 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 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.

• 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 t 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.
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.
• 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 two weeks, this often called a two-week
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. May be terminated by notice or without notice, by
agreement, effusion of time, frustration, and death, dissolution of
partnership or compulsory winding up of a company. Specific rules
of law apply to each of these fact situations.
• Termination with Notice – Lord Averstone 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 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 respondent’s 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. 38
• 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
• 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 depending on the nature
and status of employees. Notice periods are also commonly provided in
collective agreements.
• Termination 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 Zambia39
• Agreement – 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.
• 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 may 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.
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
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.
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
form rather than the merits of the dismissal must be examined.
The question is not WHY but HOW the dismissal was effected. e.g
If an employee has dismissed the employee without following the
terms of employment , where the employer fails to give 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 copy wrote a letter to him notifying him that on the 14th 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 procedure 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:-
• 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
Unfair Dismissal

• 40 W.S. Mwenda, Employment Law in Zambia, Cases and

Materials, University of Zambia.
• 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 an
order is a order 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.
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 Mfune. 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
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 employment 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 5th
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 where as Redundancy takes place
when an employer decides that the Employees service are no longer needed. Once an
Employer declares an Employee redundant, his ricks cannot action. If he replaces the
employer declares redundant because the action of declaring an employer redundant is an
announcement to the world that he does not need anybody for the job.
• - On the other hand an Employer who refreshes some employers can replace the women 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 conducting of service permit it, on employee
can go as early retirement. Retirement benefits are payable in
accordance with the conditions of service.
Case on Redundancy/Retirement

• Kabwe Vs Bp9zambia 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 9th June,
1994 when the Redundancy reduced cannot be said that the accepted the new conditions. The
contract of Employment was terminated on the 9th 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.
• 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.41
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 primitive
measure as such you may not be given all your benefits
• 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.
• 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 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.42
• 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 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.
• 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.43
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.
• a) Discuss the following under with the aid of case law ;
• - Summary dismissal
• - Retrenchment
• - Redundancy
• - Retirement
•