Of constructive, unfair dismissal

09 Jul, 2014 - 21:07 0 Views

The Herald

John Manzongo At the Workplace
There are various issues unfolding at the workplace. In many cases both employers and employees do not know something is wrong until someone visits the Labour Court for redress.  I felt it might help both sides if the issue is discussed or highlighted. Such issues include constructive dismissal, termination of contract, casualisation of labour and unfair dismissal, among others.

A good example is the case of labour lawyer and arbitrator Caleb Mucheche in his book, ‘A Practical Guide to Labour Law in Zimbabwe’.
He says constructive dismissal is the termination of an employment contract by an employee or a worker with or without notice because the employer has made continued employment intolerable for the worker.

Thus the worker surrenders due to pressure or unspecified unfavourable conditions.
This is also found where a worker resigns because he or she is left with no option but to do so by the employer.
The most appropriate word to use here is coerced resignation.

The Zimbabwe Labour Act says constructive dismissal is when “an employee/worker is deemed to have been unfairly dismissed — if he or she terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable.

The Act does not, however, state the exact circumstances that give rise to intolerable conditions of employment which culminate in constructive dismissal.

It sometimes becomes difficult for both parties to prove that constructive dismissal actually took place but there are a few tips that can point to the cause.

Workers have to prove that the employer or agent committed the act, prove the action was unlawful as it was outside the scope of the contract of employment and that there was an element of duress, coercion or undue influence taking into account the subjective factors pertaining to that employee.

Some examples of constructive dismissal include an offer for an inferior position when in the first place the worker occupied a higher grade.
If the worker does not accept the inferior position and decides to part ways or to resign, that can constitute constructive dismissal.

In trying to understand this issue it must be noted that certain positions or grades at work come with certain benefits and privileges.
As such, if one is given an inferior position somehow things will change and this can affect the worker differently depending on how one takes it.
We take for instance a demoted worker now doing the same work as those he or she used to command or assign tasks to.

It is natural that some will start mocking the downgraded worker in different forms such that he or she will just decide to part ways with the employer.

To some it might be an issue of their well-being in society.
Neighbours would have known him or her to be the boss at so and so company, driving the trump cars and his children going to the best schools and all of a sudden they see him or her in an inferior position; that will certainly affect the worker.

Termination of employment is in two ways which are by the employee’s choice through resignation or by the employer through termination of employment on notice.

It must be noted that termination of employment must be done not only verbally but in writing. Some may wonder why but in many cases some parties, especially employees will later claim they were unfairly dismissed or their contracts were terminated illegally.

The codes of conduct that must be found at all workplaces ensure that for dismissal of a worker to be effected fairly it must be done in sync with four corners of the same code of conduct.

Mr Mucheche further says the essence of employment codes of conduct was to bring workplace democracy where employees and employers jointly coin rules and regulations to govern industrial relations, disciplinary procedure and grievances handling procedure at the workplace.

In essence, codes of conduct empower both the worker and the employer, for no one can unilaterally terminate the employment contract without following laid down procedure.

It then goes to say serious workers who are concerned about their welfare at work must familiarise themselves with their workplace codes of conduct.

Labour Court president Justice Kachambwa says: “When we talk of casualisation we are not referring to an employee being on casual employment as such. The issue is that of not placing employees on permanent employment when the work of permanent employment is available.”

In this scenario the employer deliberately places worker on short fixed term contracts or on casual contract. In this process the employer avoids responsibilities of permanent employment at the expense of the employee.

Mr Mucheche says if employer habitually makes employees sign employment contracts of less than six weeks for a reasonably long period of time, the inference is that such employees cease to be casual and assume the status of employees on contracts without limit of time or permanent employees.

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