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Labour Law: Employee's Protection Against Unfair Dismissal

A contract of employment is the legal document that governs the employment relationship between an employee and his/her employer.  Genera...

A contract of employment is the legal document that governs the employment relationship between an employee and his/her employer. 

Generally, when entering into a contact of employment, the employee agrees to render his services to the employer on agreed conditions of service and the employer undertakes to pay the employee a wage. 

In certain undertakings, the contact of employment is subjected to a Collective Bargaining Agreement which by and large governs the general conditions of service for specific employees and may include the code of conduct to be applicable.

The Labour Act (Chapter 28:01) makes it very clear that every employee has the right not to be unfairly dismissed. It goes further to state the circumstances upon which a dismissal of an employee will be held to be unfair and these are; 
Employee's Protection Against Unfair Dismissal 

a. If the employer fails to show that he dismissed the employee in terms of an applicable employment code of conduct, or where there is no such employment code of conduct, in terms of the National code of conduct, that is Statutory Instrument 15 of 2006.

b. If the employee terminate the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee. This is normally referred to as ‘constructive dismissal’.

c. If the employee was on a fixed term contract, the employer terminates the contract when the employee had legitimate expectation of being re-engaged but the employer chooses to engage another person.

For the purposes of this paper, I will zero in on constructive dismissal as a form of unfair dismissal since this is the only instance upon which the termination of the contract of employment is at the instance of the employee and yet may still be construed as unfair dismissal. 

Suffice to mention that the primary remedy for unfair dismissal is reinstatement. It therefore implies that an employee who terminates his contract of employment but later succeed in proving constructive dismissal can find themselves back in the same employment. 

However, before going further, it is imperative to explore all the all the legal methods for termination of contract of employment, whether fixed term contract or contract without limit of time.

Authored by Kudakwashe Masiyenyama (LLBs (Hons) (Zim), Gambe Law Group; Contacts: +263 776 828 788 

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