Separated and Smiling: Guidelines for Lawful Employee-Employer Separation

Reasons for employee-employer separations are as numerous are as they are stars. They range from resignation to non-renewal of contracts to termination. Whatever the reason for the separation, they are several guidelines that ought to be adhered to ensure that an organisation does not end up in the dreaded Industrial Relations Court.

The Relationship

For separation to occur, it entails that a relationship existed. This relationship can inferred through several artifacts such as an offer letter, but the most common form of inference is the employment contract, be it oral or written. These then serve to determine the conditions and limits of the relationship, including the circumstances under which separation can occur . The employee-employer relationship is also defined by an organisations policy, expressed in documents such as;

  1. The Staff Handbook
  2. Disciplinary and Grievance Procedures
  3. The Personnel Code

For example, an organisations Disciplinary Procedure may state that absenteeism by an employee will result in a first warning letter on the first breach, second warning letter on the second breach, final warning letter on the third breach and dismissal on the forth breach. Thus, expressing the limitations of the relationship and instances under which it may lead to separation.

Furthermore, every employer-employee relationship is also subject to the Laws of Zambia. Thus, offers, employment contracts and organisational policy should abide by the following;

  1. The Employment Act.
  2. Industrial Relations Act.
  3. Minimum Wages and Conditions of Employment.
  4. Contract Law.

Defective Separations

The following separations should be avoided. In most cases they are unlawful and will more often than not, lead an organisation to being queried by the labor office.

Wrongful Dismissal  

Wrongful dismissal occurs when an employers dismissal of an employee is in breach of contract (or policy). To establish this, the following questions should be asked;

  1. How was the contract terminated?
  2. How should the contract have been terminated?

If the answers to these two questions are not the same, chances are that wrongful dismissal has occurred.

Dismissing an employee without the stated notice time and not paying them the stipulated benefits in lieu of notice, is a classic case of wrongful dismissal.

If found guilty of wrongful dismissal, an organisation is usually asked to pay damages limited to the notice period, thus, if an employees notice period is one month, then damages will be limited to one month remuneration.

Unfair Dismissal

According to Fair Work, an unfair dismissal occurs when an employee is dismissed from their job in a harsh, unjust or unreasonable manner. Basically, an employee is dismissed without good reason or contrary to the country’s legislation. According to the Employment (Amendment) Act No. 15 of 2015, where the termination is at the initiative of the employer, the employer shall give reasons to the employee for the termination of that employee’s employment. The contract of service of an employee shall not be terminated unless there is a valid reason for the termination connected with the;

  1. Capacity of the employee
  2. Conduct of the employee
  3. Operational requirements of the undertaking

Reasons that are not valid for termination and constitute unfair dismissal include:
(a) Union membership or participation in union activities outside working hours or,with
the consent of the employer, within working hours;
(b) The filing of a complaint, against an employer involving alleged violation of laws or recourse to administrative authorities;
(c) Race, color, sex, marital status, family responsibilities, pregnancy, religion, political opinion or affiliation, ethnicity, tribal affiliation or social status of the employee; or
(d) Absence from work during leave or a rest period in accordance with a written law.

When in doubt, the rules of Natural Justice also serve as a good guide. The rules of natural justice are the minimum standards of fair decision-making  imposed on persons or bodies acting in a judicial capacity (whatishumanresource.com).

  1. The Hearing Rule (The right to a fair hearing)
    This rule requires that a person must be allowed an adequate opportunity to present their case. To ensure that these rights are respected, the deciding authority must give an employee the opportunity to prepare and present evidence and to respond to arguments presented by the opposite side.
  2. The Bias Rule (The rule against bias) A decision-maker must be impartial and must make a decision based on a balanced and considered assessment of the information and evidence before him or her without favoring one party over another. Decision-makers should ensure that there is no conflict of interest which would make it inappropriate for them to conduct the investigation.
  3. The Evidence Rule 
    The third rule is that a decision must be based upon logical proof or evidence material. Evidence (arguments, allegations, documents, photos, etc..) presented by one party must be disclosed to the other party, who may then subject it to scrutiny.

The rules of Natural Justice can be applied during a disciplinary hearing or they can serve as a checklist to be utilized before an employee is dismissed to determine the presence or the absence of unfair dismissal.

Unlike the consequences of wrongful dismissal which are somewhat predictive, being found guilty of unfair dismissal may lead to a range of consequences for an organisation. These include but are not limited to;

  1. The dismissal being declared null and void and the employee being reinstated.
  2. Issuing an order that the employee should be re-employed.
  3. Compensation for losses caused by unfair dismissal.
  4. An employee being declared as retired (early-retirement) with their full package.

Constructive Dismissal 

This occurs when an employee resigns because the employer has created an antagonistic work environment, thus in effect it is considered a termination as the employee was left with no option but to resign. Generally a constructive dismissal leads to the employee’s obligations ending and the employee acquiring the right to make claims against the employer. It should be noted that for a case of constructive dismissal to be considered legitimate an employee should resign after the constructive act and the breach should be fundamental to relationship.

Examples of constructive dismissal include unilateral contract changes by the employer such as:

  • Cuts in pay
  • Persistent delayed wages
  • Refusal of holiday
  • Dramatic changes to duties, hours or location of work.

 

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