Zimpapers Logo

Matthias Ruziwa HR Issues
“In principle, it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive.”

In this article, I will make an attempt to make both employers and employees understand what a contract of employment entails looking at express and implied terms and whether or not employment contracts can be varied.

A contract of employment is an agreement between an employer and employee which is legally binding. Regardless of the type, all employment contracts that I have come across do consist of a mixture of express and implied terms. Express terms are those which are actually stated in writing or given verbally and are not restricted to written employment contracts but can include a number of other documents e.g. a company policy document but must meet any minimum legal standards. On the other hand, there are terms which are implied into contracts which may be due to works council agreements, collective bargaining agreements or by assumption that the term seems to have been agreed over a period of time, e.g. a duty of mutual trust and confidence between the employer and employee and the employer’s duty to provide a safe workplace.

It is very important for terms and conditions of employment to be clearly spelt out between the parties to a contract of employment in writing. Failure to do so brings a lot of uncertainty and most of the disputes that I have dealt with between employers and employees do relate to unclear terms. An employment contract is a creature that is governed by contract law. Section 12 of the Zimbabwe Labour Act Cap 28:01; clearly sets out the elements of what a contract of employment should contain as follows;

(1) Every person who is employed by or working for any other person and receiving or entitled to receive any remuneration in respect of such employment or work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.

(2) An employer shall, upon engagement of an employee, inform the employee in writing of the following particulars:

(a) the name and address of the employer;

(b) the period of time, if limited, for which the employee is engaged;

(c) the terms of probation, if any;

(d) the terms of any employment code;

(e) particulars of the employee’s remuneration, its manner of calculation and the intervals at which it will be paid;

(f) particulars of the benefits receivable in the event of sickness or pregnancy;

(g) hours of work;

(h) particulars of any bonus or incentive production scheme;

(i) particulars of vacation leave and vacation pay;

(j) particulars of any other benefits provided under the contract of employment.

Once a contract of employment is signed by the parties, it becomes legally binding. For example, in Kundai Magodora and Others v Care International Zimbabwe SC 24/14, the Supreme Court held that: “In principle, it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive.” This remark was made after the court found that the opening paragraph of each of the contracts for applicants stated that “This contract shall in no way whatsoever lead to a legitimate expectation of further employment beyond the contract’s date of termination.”

Can an employment contract be varied?

There is a principle of law to the effect that employment conditions do not remain static. Contracts of employment will respond to the changes in the fortunes of business. Chirasasa v Nhamo N.O. & Anor 2003(2) ZLR 206(S) at 220B-C. If parties do appreciate why there is need for the changes and freely act in accordance with demands, there can be no scope for a court to interfere with their conduct. What’s important is for parties to consult each other and then agree on the changes. Most companies are severely affected by economic challenges and as a result, it is more likely that contracts of employment are to be altered to respond to changes in the fortunes of business.

It is, however, pertinent in my view that some incentives be offered to encourage acceptance of changes by employees when changes to employment contracts become inevitable. If an employer make any changes unilaterally even where there is a pressing business need to impose the changes, this may be risky. There are clear lessons from the matter between Agricultural Bank of Zimbabwe Limited t/a Agribank v (1) Celemio Machingaifa (2) Chenjerai Mutambisi SC 61/07 where Garwe JA stated that “I do not accept that on the basis of para 11 of the contract of employment, the appellant was empowered to remove, without reference to the respondents, such a fundamental right as the entitlement to payment of a monthly mileage allowance. I do not accept that the bank in amending its policies and procedures was empowered to alter clearly defined contractual rights to payment of a salary and allowances.

“Such an entitlement could not be changed, altered or amended at whim on the basis that the appellant was entitled to change its policies and procedures from time to time. A party to a contract cannot unilaterally alter the terms and conditions of the contract in these circumstances”.

In some circumstances the employer may assume acceptance if the employee continues to work without objection. However, the employee may choose to continue to work, but do so under protest and bring an action for breach of contract in future. I have experienced cases where the employee resign and bring a claim for unfair dismissal as per provisions of Section 12B of the Labour Act Cap 28:01.

Some matters can be changed without the agreement of the employee, e.g. non-contractual policies where these have been carefully drafted and where they clearly state that there is no intention for them to be incorporated into the contract.

However, organisations should treat variations of the contractual terms cautiously as some changes may be considered to be a fundamental breach of contract that would allow an employee to claim breach of contract.

In conclusion, I encourage that organisations follow the law, but it is also good practice to ensure that both employers and employees understand the basis on which employment has been agreed and allow for changes to suit business fortunes. Having a well drafted contract should enable this to happen.

Disclaimer: Opinions expressed herein are solely those of the author.

• Matthias Ruziwa is an experienced and progressing Strategic Human Resource Practitioner. He is also an independent arbitrator practising in the City of Kwekwe, Midlands Province. You can contact Matthias at the following email address: [email protected] <mailto:[email protected]>/WhatsApp 0773470368