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 contract 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 contract 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 Legislature has also intervened through the Labour Act (Chapter 28:01) and sets out certain minimum compulsory conditions to govern labour relations. Such issues include; PART II of the Labour Act which covers the fundamental rights of Employees; PART III which covers Unfair labour practises and PART IV which covers General Conditions of Employment. All these provisions of the Labour Act directly affects the employment relationship between employers and their employees. In actual fact, Section 2A of the Labour Act clearly states the purpose of the labour Act as to advance social justice and democracy in the workplace by inter alia –
- Giving effect to the fundamental rights of employees provided for under part II– amongst the fundamental rights outlined therein is the employee’s right not to be unfairly dismissed.
- Providing a legal framework within which employees and employers can bargain collectively for the improvement of conditions of employment.
- The promotion of fair labour standards
The law thus goes on to provide for conditions under which a contract of employment would be legally terminated at the instance of the employer. With regards to termination of the contract of employment at the instance of the employee, the Act provides that if the employee terminates the contract because the employer made continued employment intolerable, it will constitute unfair dismissal.
This is normally referred to as ‘constructive dismissal’. Though the Labour Act does not define resignation or constructive dismissal, from common law and a plethora of decided cases, it can be concluded that an employer cannot compel or force an employee to resign, otherwise it ceases to be a resignation but rather constructive dismissal under Section 12B(3)(a) of the Labour Act.
Employers must therefore not compel their employees to resign. Employees have a right under common law to voluntarily resign from employment and they must be at liberty to either or not to exercise that right at any given time.
EMPLOYEE’S PROTECTION AGAINST UNFAIR DISMISSAL
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;
- 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.
- 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’.
- 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 choses 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.
LEGAL TERMINATION OF THE EMPLOYMENT CONTRACT
In terms of Section 12 of the Labour Act (Chapter 28:01), No employer shall terminate a contract of employment ON NOTICE unless;
- The termination is in terms of an employment code or, in the absence of an employment code, in terms of the model code made under section 101(9) of the labour Act.
This is basically termination of employment contract for misconduct. Section 6 of the model code, that is National Employment Code of Conduct S.I 15 of 2006 provides a guide for misconduct which may warrants dismissal.
For a dismissal to be lawful, it has to be in terms of the applicable code of conduct. Where there is a registered employment code of conduct, the employer cannot charge his employees in terms of the National code. In addition, for it to be fair dismissal, the employer must conduct a disciplinary hearing in terms of the applicable code of conduct and the hearing must be fair, respecting both the procedural and substantive rights of the employee concerned, otherwise it may be rendered unfair dismissal.
- The employer and the employee mutually agree in writing to the termination of the contract.
This usually takes one of the two forms, it may either be ‘voluntary retrenchment’ whereby the employer invites the employee to a round table meeting and the parties agree to terminate the contract of employment and agree on an exit package.
Or it can be by way of resignation at the initiative of the employee. This is the main subject matter of discussion herein and will be discussed in detail below.
- The employee was engaged for a period of fixed duration or for the performance of some specific service.
This applies where the employee was engaged on a fixed term contract and at the expiry of such contract the employer does not re-engage the employee. However, if the employer re-engages another person in circumstances where he (the employer) either expressly or by conduct, has made the employee to have a legitimate expectation to be re-engaged, a suite of unfair dismissal may arise.
It must however be noted that the fact that the employer has previously and on numerous accounts renewed the fixed term contract with an employee does not in itself constitute legitimate expectation to be re-engaged on the part of the employee.
- Pursuant to retrenchment, in accordance with section 12C of the Labour Act.
- Where an employee is given notice of termination of contract, and such employee is a permanent employee, the provisions of section 12C of the Labour Act shall apply with regards to compensation of loss of employment. Suffice to mention that Section 12C of the Labour Act deals with ‘Retrenchment and compensation of loss of employment’. Thus, if the employer opts to terminate on notice, then he is bound to pay the employee the minimum prescribed retrenchment package.
RESIGNATION, TERMINATION AT THE INSTANCE OF THE EMPLOYEE – A UNILATERAL ACT THAT DOESN’T REQUIRE ACCEPTANCE BY THE EMPLOYER.
In our jurisdiction, resignation has been defined as a voluntary and deliberate unilateral act by the employee in terms of which he or she brings the contract of employment to an end without the consent of the employer, with or without notice.
Thus notice of intention to resign (if is given) is a unilateral act; whether the employer accepts the notice or rejects it is immaterial. In the same vein, once an employee has resigned, there is no legal basis on which he or she can compel the employer to accept withdrawal of the resignation if the employer is not prepared to do so.
The common law recognizes the right of an employee to terminate a contract of employment on notice (resignation). Section 12 (4) of the Labour Act provides for ‘notice of termination’ of the contract of employment to be given by either party. Thus, if the employee, upon resigning, does not give adequate notice or any notice at all, the employer is entitled to deduct, from the employee’s terminal benefits, an amount equivalent to the notice period.
EFFECTS OF RESIGNATION
It brings the employment contract to an end and the rights and duties which arise from this contract extinguishes.
Resignation also places the employee beyond the reach of the disciplinary arm of the employer. In other words, the employer cannot discipline or dismiss an employee who has resigned. The employment contract no longer exists. A letter of resignation constitutes a final act of termination by an employee.
In Takazi & anor vs Church of the Province of Central Africa and ors the court ruled that, “Resignation is a unilateral voluntary act which takes effect as soon as the resignation has been communicated to the correct person or authority. The first applicant was not dismissed. He resigned voluntarily. Once his resignation letter was received, he automatically ceased to be the employee or member of the church without any further formalities”.
If the employee elects not to render his or her services during the notice period, the employer has no obligation to remunerate the employee, and may still deduct from the employee’s terminal benefits, the amount equivalent to the notice period not served.
However, it is very important to note that in all circumstances, a valid resignation must;
- Be a unilateral act by the employee
- Clear as to what the employee intends
- Must be voluntary.
Thus if a resignation, either written or oral, fails to meet the above requirements, the provisions of section 12B(3)(a) of the LAbour Act which reads, “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” maybe successfully evoked.
For constructive dismissal to stand, it must be established that;
- The employee must have terminated the contract of employment with or without notice through resignation (written or oral) or other forms of repudiation of contract.
- The employee’s decision to terminate must be directly influenced by the employers deliberate actions
- The employer’s actions must be so grossly intolerable, or imposes an immediate danger to the employee such that no reasonable employee would be expected to continue working. However, it must be noted that there are other legal remedies available to employees which are better for employees to take other than resigning. Section 6 and 7 of the Labour Act guarantees protection of employee’s rights at the workplace whilst section 8 prohibits unfair labour practices by the employer. Thus an avenue readily available for employees is to raise a grievance of Unfair Labour practice by the employer with either the National Employment Council for their undertaking or with the Provincial Labour Officer at the Ministry of Labour.
Many employers end up on the wrong side of the law after they ‘forcefully advise’ or ‘compel’ employee(s) to resign and be spared from disciplinary action or from being reported to the police over some serious acts of misconduct which maybe criminal in nature.
If the concerned employee later proves that he or she was forced to resign by the employer due to the employer imposing threats of dismissal or pressing criminal charges, such a resignation may be construed as constructive dismissal.
When a resignation is as a result of force, coercion, duress or undue influence it will amount to constructive dismissal. For instance, in Fonda v Mutare Club an employee who had incurred shortfalls was forced to resign as an alternative to having the matter handed over to the police and be prosecuted.
The court did not hesitate to conclude that the resignation was tainted with duress, thus constituting constructive dismissal. The resignation had been triggered by the employer. However, it will not amount to constructive dismissal if an employee facing disciplinary action is given a choice to resign. In the absence of duress, undue influence or threats, if that employee takes up the alternative of resigning, he or she cannot later allege constructive dismissal.
In Mudakureva v Grain Marketing Board,22 an employee was brought before a disciplinary hearing and was found guilty of committing acts of misconduct but before the penalty of dismissal was imposed he was given an option to resign. He elected to resign and thereafter claimed that he was forced to resign. He challenged the termination.
Though the matter was decided on other grounds, the attitude of the court was clear that there was nothing wrong in an employer giving an employee a reasonable alternative option like resignation. The same position is applicable to employees who resign so as to avoid disciplinary processes. In the absence of undue influence or duress, they cannot cry foul and claim constructive dismissal.
Ramsbottom J set out the requirements of duress as follows in Broodryk v Smuts NO 1942 TPD 47 at 51-52:
- Actual violence or reasonable fear.
- The fear must be caused by the threat of some considerable evil to the party or his family.
- It must be the threat of an imminent or inevitable evil.
- The threat or intimidation must be contra bonos mores.
- The moral pressure used must have caused damage.
It has been demonstrated that a resignation is one of the legally accepted ways to terminate an employment contract. For it to be a valid termination, resignation must be voluntarily given by the employee (whether orally or in writing) to the rightful authority in the employ of the relevant employer.
A resignation that is a result of force, duress or undue influence equals constructive dismissal which falls under unfair dismissals.
Kuda Maseyanyama is a University of Zimbabwe trained lawyer and partner with Gambe Law Chambers. He writes in his own capacity.