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Taurai Musakaruka HR Issues
Terminal benefits are final entitlements of an employee upon termination of an employment contract. Employees leave companies on a daily basis, yet few people understand the scope and complexities involved with processing a termination. Whenever an employee’s employment terminates, the employer must pay all wages at the next regular designated pay period for which the work was performed.

This payment includes compensation owed by an employer to an employee for labour or services rendered, including salaries, holiday and vacation pay, overtime pay, severance or bonus or other similar advantages, agreed upon between the employer and the employee, which are earned and due, or provided by the employer to his employees in an established policy, whether the amount is determined on a time, task, piece, commission or other basis of calculation.

For some reason, many employers try not to give workers their final pay. Taking pay that you already earned is theft. You can fight for your pay.
Sometime an employer will not honour the terms of an employment contract or employee handbook and not pay an employee the proper wages or benefits (i.e. sick time, vacation time) that were promised before termination.

If you feel your rights to lawful or agreed-upon payments or other terms of employment are being violated or you simply need a lawyer to review a proposed severance or separation agreement, it is a good idea to speak with an experienced employment contract lawyer in order to protect your rights.
Naturally every employee is entitled to whatever is legally due to them. They should be paid for every cent they worked for.

Withholding terminal benefits as a form of punishment, may work in the short term but it’s costly in the long term.
There are serious consequences to this and in countries with solid judiciary system like ours; you will eventually pay the price.
Here in Zimbabwe our Labour Act Chapter 28:02 criminalises such practices, so be warned.

Subject to Labour Act Chapter 28:01 Section 13 (1-6),or any regulations made in terms of this Act, whether any person:
(a) Is dismissed from his employment or his employment; is otherwise terminated; or
(b) Resigns from his employment; or
(c) Is incapacitated from performing his work; or
(d) Dies; he or his estate, as the case may be, shall be entitled to the wages and benefits due to him up to the time of such dismissal, termination, resignation, incapacitation or death, as the case may be, including benefits with respect to any outstanding vacation and notice period, medical aid, social security and any pension.

The employer concerned shall pay such entitlements to such person or his estate, as the case may be, as soon as reasonably practicable after such event, and failure to do so shall constitute an unfair labour practice.

Wages and benefits payable to any person or to his or her estate in terms of this section shall not form part of or be construed as a retrenchment package which an employee is entitled to where his or her employment has been terminated as a result of retrenchment in terms of Section 12C of the aforementioned Act.

In terms of Section 13(2) of the aforementioned Act, any employer who without the Minister’s (“Minister” means, subject to Section 83 of the Labour Act , the Minister of Labour and Social Welfare or any other Minister to whom the President may, from time to time, assign the administration of this Act;) permission withholds or unreasonably delays the payment of any wages or benefits owed shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.

The court convicting an employer of an offence referred to above, may order him to pay:
(a) To the employee concerned; or
(b) To any person specified by it for the benefit of the employee concerned, in addition to any other penalty which it may impose, an amount which, in its opinion, will adequately compensate the employee concerned for any prejudice or loss he has suffered as a result of the contravention concerned, within such period and in such instalments as may be fixed by such court.

The court may at any time on the application of the employer, employee or specified person concerned, for good cause shown, vary an order made as mentioned above.

Sections 348 and 349 of the Criminal Procedure and Evidence Act (Chapter 9:07) shall apply in relation to the amount specified in an order made in terms of Section 13 (3) of the Labour Act as if such amount were a fine referred to in those sections.

Nothing contained in Section 13 of the Act shall be construed as precluding any person or his representative or the executor of his estate, as the case may be, from claiming over and above any wages or benefits to which he or his estate is entitled, damages for any prejudice or loss suffered in connection with such dismissal, termination, resignation, incapacitation or death, as the case may be.

However, it should be noted that this does not imply that if one breaks the rules and regulations governing the workplace, they are just entitled to everything.
If you owe the employer any loans and other advances, again the employer is legally correct in recovering those monies and then pays off the balance.
The employer has the right to deduct from one’s terminal benefits subject to fulfilment of certain conditions laid down in the Labour Act, Chapter 28:01 (the Act).

In terms of Section 13 (1) (1a) and (2) of the Act, in the event of death, resignation, dismissal or incapacitation, the employer is not entitled to withhold or unreasonably delay payment of what is due to the employee without the approval of the responsible minister.
Failure to comply with this may result in prosecution of the employer.

Therefore in the absence of ministerial approval such withholding or deductions may create problems for the employer as they are illegal.
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 are personal and does not serve as alternative to legal advice.

Taurai Musakaruka is a Human Resources Practitioner. Feedback e-mail: [email protected] or [email protected]