Displinary process and termination of contracts of employment: critical review of the Zambian jurisprudence

Abstract

An essential attribute of a successful labour regime demands that the law, as an instrument of social balance, must seek to provide protection to the parties to a contract of employment, more particularly an employee who stands the risk of being arbitrarily dismissed at the whims of his superior master. Such protection is essential for purposes of safeguarding the vital economic interests that derive from a contract of employment. It is in view of this background that this research has endeavored to review the procedural requirements that the employer is required to follow prior to terminating an employee's contract of employment by way of dismissal. This study has observed that although the law of dismissal in Zambia has attempted to stipulateB instances in which an employee's contract of employment may not be terminated by way of dismissal without affording the employee an opportunity to be heard, there remains an urgent need for the labour regime to clearly stipulate the principles to be taken into account by the Courts when faced with a question of fairness or justification of dismissal from employment. The Bpaper has thus thoroughly reviewed the varying approaches that have previously been adopted by the Courts in addressing the question of justification of dismissal from employment. The author has undertaken a thorough review of a wide range of case law on the subject, noting in particular that while the law of dismissal has overtime significantly evolved in a bid to provide adequate safeguards to vulnerable employees, there still remains an urgent need for the labour regime to clearly stipulate the principles to be taken into account by the Courts when faced with this important question of justification of dismissal. The author has observed that there is need for urgent legislative intervention aimed at defining the extent to which an employer must satisfy himself regarding the employee's culpability of the alleged misconduct prior to reaching a decision to terminate such employee's contract of employment.In concluding the research has highlighted a number of vital recommendations aimed at addressing the foregoing concerns. Notable among these include the need for the legislature in Zambia to prescribe the burden to be discharged by the employer for purposes of justifying termination of employment by dismissal; and the need for the Supreme Court of Zambia to deliver consistent Judgments so as to ensure certainty in the law of dismissal and thus enhance the level of employment security in Zambia. The research has also noted that the Zambian Courts must recognise the need to exercise caution in importing foreign principles into the Zambian labour regime so as not to allow external legislative proclamations, unsupported by adequate internal safeguards, to indirectly manifest their force and influence the development of the law of dismissal in Zambia. Further, the procedural requirement to observe rules of natural justice must be strengthened by requiring that all contracts of employment, whether oral or in writing, shall not be terminated on grounds of misconduct without affording an employee an opportunity to be heard. Addressing these concerns would undoubtedly go a long way in fostering positive development of the law of dismissal, and would ultimately enhance the levels of protection conferred on vulnerable employees in Zambia.