HR Talk with Taurai Musakaruka-Determination of Illegal termination of Employment Contract

HR Talk with Taurai Musakaruka-Determination of Illegal termination of Employment Contract When illegal termination is established, an employee then has the right to sue his former employer for damages.


These include the loss of wage and “fringe” benefits, and, if against “public policy,” additionally, for punitive damages. To bring an illegal termination suit, the discharge of the employee must have been without “good cause”.

The employee must have had an express contract of continued employment or there must have been an “implied” contract based on the circumstances of his hiring or legitimate reasons to believe the employment would be permanent. Also there may be a violation of statutory prohibitions against discrimination due to race, gender, sexual preference or age or the discharge was contrary to “public policy” such as in retribution for exposing dishonest acts of the employer. An employee who believes he is the victim of an illegal termination may bring an action for damages as well as for breach of contract.

An “illegal termination” is one in which an employer has discharged or lay off an employee in violation of a legal rights of the employee. It is not enough for the employee to simply show that he was treated unfairly but the person must show that the firing was “wrongful” meaning one or more legal rights were violated. In short it refers to discharge of an employee for illegal reasons. Illegal termination includes dismissal that violates collective bargaining laws, based on refusal of sexual advances or in retaliation for the employee having filed a complaint against the employer. This area of law applies to terminations, constructive discharge, reductions in force and layoffs as well as to demotions and denial of promotions. If you have been laid off or fired recently, and believe that you may have lost your job for an unlawful reason, you may have a right to bring a claim for illegal termination against your former employer.

When an individual has been terminated from their employment many questions arise. These questions range from whether an employer has a right to terminate the employment to what damages should be paid to you because of the termination of your employment. Many employees have written contracts of employment. These contracts often have provisions regarding the responsibilities of an employer when terminating the employment. The usual issue which arises when an employee who has a written contract of employment is terminated is whether the employer can enforce the terms of the written contract of employment. This is so because generally written contracts of employment will be more advantageous to the employer than the employee with respect to terms detailing responsibilities or duties of employers when terminating employees. Written contracts however are often not enforceable. The enforceability of the contract of employment may be challenged on a number of bases, including the following: failure to comply with the minimum employment standards as prescribed by the Labour Act Chapter 28:01 or relevant Collective Bargaining Agreements, if signed under duress and misunderstanding of the terms of the contract of employment. If the enforceability of the written contract is not successfully challenged the provisions in the contract with respect to termination of employment will govern.

Legal remedies that may be available to you include money damages and, if you haven’t been officially released yet, negotiation for an appropriate severance package that includes adequate compensation. The Labour Act Chapter 28:01, section 89 (2) (c) (iii) states that “should damages be awarded instead of reinstatement or employment as a result of an untenable working relationship arising from unlawful or wrongful dismissal by the employer, punitive damages may be imposed”.

Employers can’t legally terminate you solely on the basis of gender, race, creed, disability and a variety of other discriminatory reasons. Employers can’t rightfully terminate you for reporting their illegal actions to the proper authorities (commonly called whistle blowing). They also can’t axe you in retaliation for something you legally did or they illegally did, or because you refused to do some things that were contrary to public policy and sound morality such as breaking the law. For example, if your boss fires you because you didn’t yield to his or her sexual advances, you probably have a good shot at winning a lawsuit. You may sue for illegal termination if your employer intentionally defamed you to justify terminating you. For example, if your employer falsely accuses you of stealing as an excuse to fire you, you might have a case for wrongful termination.

Breach of Good Faith and Fair Dealing-”Good faith and fair dealing” is an implied covenant that employees deserve to be treated fairly by their employers, especially dedicated, long-term employees. Examples of an employer’s breach of this covenant include firing employees to avoid granting the rewards they’ve earned and manufacturing reasons to fire employees, e.g. long service. If you quit because your employer instituted or allowed a change that made working conditions intolerable and if any reasonable employee would have quit too under the same circumstances, you might have a case for constructive discharge. In other words, your employer might have, in effect wrongfully terminated you by making or allowing a change that forced you to quit, according to the legal concept of constructive discharge. This is clearly laid out in the Labour Act Chapter 28:01, section 12B (3a) where it is stated that “…an employee is deemed to have been unfairly dismissed if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee… ” This means one can resign and still sue for constructive dismissal. However, constructive discharge is not easy to prove.

For many years most employees have had the right not to be sacked unfairly, and to receive compensation from the employer who has dismissed them. With the passage of time, employees’ rights were strengthened, with the qualifying period of employment for complaints to an employment Court(s) halved, and the maximum amount of compensation payable quadrupled.

In an event of you becoming an “ex-employee”, initially you should assess the circumstances of your dismissal to ensure that is was indeed unfair dismissal as defined by employment law. Your contract of or conditions of employment should have information about what circumstances your employer could dismiss you. These circumstances tend to be for gross misconduct, but if you are unsure, consult your HR department if you have one, or ask your employer for clarification. Unfair dismissal will be illegal under employment law if your employer dismisses you without good reason. Once the reasons have been given to you, it can be useful to contact an unfair dismissal solicitor for their advice. In addition, your employer must follow strict procedures when they dismiss anyone. If these procedures have not been followed, this could mean your dismissal is not just unfair but illegal.

It’s advisable first to go through the instrument used for the purposes of dismissing, read and fully understand it. Where you may have difficulties, look for help be it from your Workers Committee, NEC, and Union, Legal Practitioner or your HR department. These instruments may include Company/Organisation or NEC registered Code of Conduct or the National Code of Conduct – Statutory Instrument 15 of 2006. Having a good understanding of the procedures laid down in the relevant instrument will ensure that as you seek legal recourse following unfair dismissal, you will not get it wrong. It is therefore advisable that before you rush to the courts you exhaust all the internal channels as laid in the instrument .Some Codes provide for appeal to the CEO before one goes either to the Ministry of Labour,(for conciliation, mediation or arbitration) or NEC (for the same) or even the Labour Court. There is a bad tendency by some employees who instead of exhausting the internal processes, just rush to file papers with the Courts or relevant NEC. You would do well if you follow procedure rather than adopt the old school, “…I will not appeal to the CEO because obviously he will not listen to my grounds of appeal…” The fact that the Internal appeal Authority will be biased is none of your business because you are merely and simply following procedure. The beauty about this is that your grounds of appeal, if well crafted and presented will be useful part of the record when you appear before our Honorable Courts or Arbitrators.

It is also critical to take note of the time one is allowed by Law to file an appeal. Out of time appeals will usually be thrown out by the courts. It is therefore advisable that you lodge your case within the prescribed time frame as the Courts will not lightly nor automatically condone a late appeal. They will look at the reasons given for the delay and the chances of success of the appeal, before considering condonation. In Ganda v First Mutual Life (SC1/2005), the Court held that an application made for the Court to condone a late appeal must give a reasonable and adequate explanation for the lateness. If not, the appeal will not be allowed, as in this case. Before you move to an employment Court or Appeal Authority about your dismissal, you should attempt to resolve the issue with your employer. In these circumstances the use of an independent third party can be useful. Mediation organisations that offer Advisory, Conciliation and Arbitration Service can help you and your employer come to a mutually agreeable solution. If the court or presiding authority finds that you were unfairly dismissed, you will normally be able to return to your job and also receive a payment of compensation. An unfair dismissal solicitor will be able to advise you further. The Courts or Arbitrators will usually award the following: Reinstatement – getting your job back with no loss of money or security or engagement – getting another job with the same employer or Compensation – a basic award calculated in a similar way to a redundancy plus a compensatory award to compensate the employee for the financial losses incurred as a result of the dismissal.

The Labour Court or the arbitrator must require the employer to reinstate or re-employ the employee unless- the employee does not wish to be reinstated or re-employed; the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable; it is not reasonably practicable for the employer to reinstate or re-employ the employee; or the dismissal is unfair only because the employer did not follow a fair procedure. If you ask for reinstatement or re-engagement, the tribunal will consider whether this is reasonable and practical. Your employer can refuse to reinstate or re-engage you if they believe this would be unreasonable – for example, if trust and confidence between you and your employer have completely broken down. If your employer cannot show it would be unreasonable to take you back, but they still refuse to do so, the court or presiding authority may award you extra compensation. In practice, employment court or presiding authority rarely force employers to reinstate or re-engage people. If you lose your claim for reinstatement or re-engagement, you may still receive compensation.

However it should be noted that re-instatement or reemployment does not operate in perpetuity, in the sense that it precludes the employer from later transferring or altering the working arrangements and conditions of the employee in accordance with its contractual rights. In Jeremiah v National Sorghum Breweries (1999 /20/ILJ/1055/LC), the employee complained that the employer had breached the terms of the re-instatement order by proposing to transfer him to another area of its operation and giving him a different car. The Court observed that an order of re-instatement does not amend his working conditions in accordance with the original contract.

In conclusion, it should be noted that in terms of the Labour Laws of the land no employer is allowed to unfairly dismiss employees and if the employer decides to go against such laws there are remedies in place for employees, which are penalties to the employer on the other end, in the form of payment of compensation, re-instatement or re-employment as well as punitive damages in lieu of re-instatement, when re-instatement ceases to be an option. However employees as highlighted above, they have an obligation to honour their employment contracts and strongly warned from mis-behaving in the hope of getting these remedies via the Courts, because the aforementioned Laws do not just protect employees but all parties to the employment relationship.

Disclaimer I do not accept any liability for any damages or losses suffered as a result of actions taken based on information contained herein. The information contained herein does not serve as alternative to legal advice. Taurai Musakaruka is Human Resources Practitioner. Feedback e-mail to [email protected] or [email protected]

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