Zimpapers Logo

WHEN an employer fires an employee without good cause it constitutes an illegal termination and the employees concerned has the right to sue their employer for damages.
These include the loss of wage and “fringe” benefits and if it is against “public policy” for punitive damages.
To bring an illegal termination suit, the employee must have had an express contract of continued employment or there must have been an “implied” contract based on the circumstances upon which they were hired 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 laid 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 they 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 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 is fired, 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 the contracts of employees.
Written contracts, however, are often not enforceable. The enforceability of the contract of employment may be challenged on a number of bases.
The include 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 have not 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 cannot legally terminate an employment contract solely on the basis of gender, race, creed, disability and a variety of other discriminatory reasons.
Employers cannot rightfully terminate the contract of an employee who has reported their illegal actions to the proper authorities (commonly called whistle-blowing).
They also cannot axe any employee in retaliation for something they legally did or they illegally did, or because the employee refused to do some things that were contrary to public policy and sound morality such as breaking the law.
For example, if a boss fires a subordinate because they did not yield to his or her sexual advances, you probably have a good shot at winning a lawsuit.
The employee may sue for illegal termination if your employer intentionally defamed them to justify terminating employment.
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 have 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 your employment 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). The Act states 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.
Essentially the remedies that will be available to an employee who successfully concludes a lawsuit in their favour against a former employer for illegal termination are injunctive relief and monetary damages.
The aggrieved employee whose job was wrongfully terminated will likely be awarded damages that will put him or her in as good a position as if the other party, the employer, had fully performed the contract.
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.
l Taurai Musakaruka is Human Resources Practitioner. Feedback e-mail to [email protected] or tauraimusakaruka