By Dr Chilao Mutesa | Fellow of the Zambia Institute Of Human Resource Management
Zambia has various law sources, including but not limited to laws enacted by the National Assembly, Common Law inherited from the English common law system due to our colonial history and Judicial precedent, where decisions made by higher courts serve as binding authority for lower courts. This helps in interpreting and applying laws consistently throughout the country. The principal legislation governing the employer–employee relationship in Zambia is Employment Code #3 of 2019, supported by court judgements that have provided further interpretation to guide the employee–employer relationship. One key aspect of this relationship is when employees are separated through termination or dismissal. These two terms are sometimes used interchangeably but are different forms of separation. Knowing the difference is important to have a workplace that complies with the law and treats employees fairly.
In the case ofRedrilza v Nkazi (S.C.Z. Judgment No. 7 of 2011), the Supreme Court held that there is a difference between dismissal and termination. Dismissal involves loss of employment arising from disciplinary action. At the same time, termination allows the employer to terminate the contract of employment without invoking disciplinary action. The terms "dismissal" and "termination" should not be used interchangeably. Dismissal is punitive and an outcome of a disciplinary process.
In the case ofCare International Zambia Limited v Misheck Tembo (Appeal 57 of 2016) [2018] ZMSC 378 (10 December 2018), it was held that dismissal could be wrongful and unfair. Wrongful dismissal questionshowthe dismissal was effected. The concept has been widely accepted to mean that in considering whether the dismissal is wrongful or not, it is the form to be considered rather than the substance. Human resource practitioners should, therefore, ensure that proper guidance is given to management so that dismissals are done according to the prescribed procedure in their Disciplinary Code and Grievance Procedure.
There are many situations in which employers may be accused of wrongful dismissal, and the courts will examine whether, when terminating the contract of employment, the employer did not follow their human resource policies, such as the disciplinary code and grievance procedure. This may vary from not giving the required contractual notice, as was the case withAlbert Mwanaumo and others v NFC Africa Mining Plc, to the case ofBank of Zambia v Joseph Kasonde (1996) S.J. (S.C.), where the Supreme Court held that the respondent was wrongfully dismissed because the disciplinary code was not followed in dismissing the Respondent. Similarly, in the case of Zambia Airways Corporation Limited v Gershom B.B Mubanga (S.C.Z. Judgment 5 of 1992) [1992] ZMSC 4 (3 March 1992),the Supreme Court held that the employee's dismissal was wrongful because the employer did not follow the disciplinary code and grievance procedure when terminating the contract. It is worth noting that the courts did not seek to examine the reasons behind the termination but were more concerned with the procedural error when handling the termination.
On the other hand, unfair dismissal focuses onwhythe dismissal was effected. This arises where the dismissal is contrary to legislation. Section 52 (4) of Employment Code #3 of 2019 provides reasons that give rise to unfair dismissal, including union membership, absence from work during maternity or paternity leave, filing a complaint or participating in proceedings against an employer, amongst other reasons.
Section 52(1) of Employment Code #3 of 2019 stipulates that when an employer terminates a contract of employment, valid reasons must be provided to the employee, ensuring transparency and accountability. It is worth noting that just because employers are required to give a reason when terminating a contract does not mean that any reason will be accepted. There is a need to ensure that the employee, who is considered the weaker party in employment relationships, is not mistreated. A case in point isSupabets Sports Betting v Kalimukwa (110 of 2016) [2019] ZMSC 27 (8 October 2019), where the Supreme Court held that if a valid reason is given but unsubstantiated, such a dismissal or termination would be unfair.
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As many organisations strive to drive their performance, especially in an increasingly competitive environment, there may be the temptation to terminate the employment of employees who fail to meet performance targets. However, Section 52(2) of Employment Code #3 of 2019 mandates that termination must be based on valid reasons connected with the employee's capacity, conduct, or operational requirements. A company may offer employees voluntary separation as a method to terminate the employment relationship. This does not constitute dismissal. In the case ofSarah Aliza Vekhnik v Casa Del Bambini Montesorri (Appeal 129 of 2017) [2018], ZMSC 583 (22 August 2018)held that an employer must give reasons for terminating an employee's employment by way of notice. Employers should avoid the pitfall of just relying on a notice clause in a written contract and also provide reasons as required by Section 52(2) of the Employment Code #3 of 2019.
Additionally, Section 52(3) emphasizes the right of employees to be heard before termination, especially concerning conduct or performance-related issues. Grievance procedures play a crucial role in providing employees with a platform to voice their concerns and defend themselves against unfair allegations.
Understanding the difference between termination and dismissal and the implications arising from the wrong separation of employees, managers, and human resource practitioners will help prevent costly court action. In conclusion, understanding these two terms will ensure:
1. Legal Compliance: Understanding the nuanced difference between termination and dismissal ensures that managers are compliant with labour laws and regulations. Misclassifying an employee's departure could result in legal repercussions for the organization, including potential fines or lawsuits.
2. Fairness and Equity: Knowing the distinction between termination and dismissal enables managers to make informed and equitable decisions when separating employees. This ensures that individuals are treated fairly according to the circ*mstances surrounding their departure, fostering a positive organizational culture of fairness and transparency.
3. Employee Relations: Clear communication about the reasons for an employee's departure is crucial for maintaining positive employee relations. Managers who understand the difference between termination and dismissal can effectively communicate with both the departing employee and the remaining team members, mitigating potential misunderstandings or morale issues.
4. Reputation Management: Mishandling employee separations can damage an organization's reputation both internally and externally. By accurately categorizing departures as termination or dismissal, managers can uphold the company's reputation as a fair and respectful employer, which is vital for attracting and retaining top talent.
5. Risk Mitigation: Terminations and dismissals carry different levels of risk for the organization, including potential legal risks, reputational risks, and impacts on team morale and productivity. Managers who understand these distinctions can assess and mitigate risks more effectively, ensuring smoother transitions and minimizing potential negative consequences for the business.
