NAME: KABWE MUKUKA

STUDENT NUMBER: 201701666

COURSE: EMPLOYEMENT AND LABOUR LAW
COURSE CODE: LIR 431

PROGRAMME :BACHELOR OF LAWS

INTRODUCTION

Employment is often times governed by contracts and all employees are expected to act within
the spectrum of their employment .but when an employee of a goes against what he /she has been
employed to do or acts in a manner that does not please the employers there are often times
disciplinary measures that are taken against such an employee .

Discipline is a system of rules intended to guide both management and employees in dealing
with employment matters at all levels. When someone agrees to be an employee of a company it
can be assumed that employees shall thereby agree to work in a responsible, loyal, disciplined,
harmonious and productive manner and to act in a manner conducive to the organization’s
values. All employees will agree to abide by the rules and regulations of the organisation and by
any other lawful, reasonable instructions, written or verbal, given by the authorized officers of
the organisation. Any act of misconduct will be dealt with according to the laid down
disciplinary guidelines. In Zambia there is no statutory prescribed disciplinary actions or steps
which are to b followed by law in terms of disciplinary actions against employees. Zambia has
no prescribed guidelines on discipline and as such leaves it to the company to have their own
methods, codes and procedures of handling disciplinary matters within their companies.
Application of discipline with firmness and equity in matters of industrial/employee relations is
therefore just as important to the employee as it is to the organization if set goals have to be
achieved. The purpose of discipline is to obtain compliance with established rules of conduct to
correct improper conduct. A sound disciplinary code can therefore be effective only if employees
are aware of their rights, obligations, responsibilities and procedures. Awareness of the extent of
penalties and identification of appropriate officers to deal with offences help in avoiding
irregular channels and abuse of authority and would generally help all concerned. It is important
that in Pursuant to the any organization objective which would recognize the need for disciplined
behavior in the organization, it is important to have a disciplinary code as the main reference for
all disciplinary proceedings in the organization. This is to ensure that the framework within
which self-discipline can evolve is made available to all for the purpose of uniformity and
prompt action when the need arises. Disciplinary action may consist of one or more of the
following: Instant dismissal for gross negligence, serious misconduct or conviction for a criminal
offence. Recorded verbal warning followed by written warning for less serious offences or
indiscipline or poor performance. Dismissal may follow for persistent offences or unsatisfactory
performance, but not until the problems have been raised with the employee through at least two
written warnings. Every written warning shall have a clear final date of expiry of the warning
stated on it and copies of all disciplinary documentation shall be kept on personal files.

For example with the WR-CRB Association it has the following disciplinary policy .It is the
policy of the organization that if disciplinary action has to be taken against an employee it
should: be undertaken only in cases where good reason and clear evidence exists; be appropriate
to the magnitude of the offence; and allow employees the right to be represented by union
official in case of unionize employees or colleague in case of non-represented during any formal
proceedings, and allow employees the right of appeal against any disciplinary action;
Disciplinary Procedure Objectives The main objective of the disciplinary procedures is to obtain
compliance with established rules of conduct and to correct conduct that does not conform to
these rules. A well-established procedure will achieve the following: develop in the organisation
a climate where employees willingly conform to established rules and regulations;

1. A framework within which natural discipline can evolve and operate. All employees should
maintain self-discipline; fairness, justice and equity in the treatment of employees; peaceful and
orderly conduct of labour relations; promotion of stability and increased productivity at the work
place.

2. To enable officials responsible for administering discipline to take prompt action against any
offender;

3. To ensure overall uniformity within the organization on all disciplinary matters.

Procedure of Administering Discipline

(i) When an offence is deemed to have been committed, the supervisor or other senior
official will undertake preliminary investigations and charge the employee with the
offence and inform him accordingly;
(ii) (ii) The charge will then be passed on to the appropriate person to undertake the
necessary investigations. Statements should be recorded from both the accused and
any witness that may be identified by the employee or the official who laid the
 charge. Once investigations are completed, an arrangement should be made for a
hearing within 3 working days.

The employees will attend the hearing, the officer laying the complaint and the officer who
undertook the investigation. At the hearing the employee should be given a chance to defend
himself/herself. The hearing official will pass judgement, taking into account all the evidence.
Such judgement will be notified to the employee in writing, and where the employee is found
guilty, the sentence passed will be in line with the schedule of offences given below. Where the
sentence passed results in dismissal, the employee will have the right to appeal against the
decision to the Project Executant or to a more senior official where the employee charged reports
directly to the Project Executant. The appeal should be made within 3 working days. An appeal
hearing will be arranged within 2 working days and the decision made at this hearing will be
final. The decision will be communicated to the employee in writing. Finally it is important to
note that laying off is the last resort, Where the offence committed is of a serious nature, which
might result in dismissal or if it is considered that it is in the best interests of the WR-CRB
Association for the employee not to continue working pending investigations, then the employee
may be laid off with immediate effect. Such lay off should not exceed 7 days.

Dismissal is the terminations of employment by an employer against the will of the employee. It
is vital when it comes to termination of employment to determine whether or not the dismissal is
valid , fair and reasonable .there are situations in which in accordance with the terms of contract
of employment or in accordance with the relevant statutory provisions .it is appreciate to dismiss
the employee but it doesn’t make the dismissal valid ,fair and reasonable .

In a contract of employment valid means that the disciplinary reason for the dismissal is accurate
authoritative ,executed with provision of the law conclusive and enforceable .when it comes to
whether or not the dismissal will be considered valid the court would try to find out whether the
action taken by the employer was lawful.it constitutes a breach either express or implied term of
a contract . ab breach of collective agreement ,breach of statutory provision , breach factory rules
or notice or disciplinary code and finally a breach of common law principles . the courts will
assesses the validity of the reason on the basis of the relationship that is between the employer
and employee .some instances such as in Forback S.E v Dhanodharee (1968) MR 159nthe court
stated that the fundamental principle of the termination of contracts of service ordinance as
expounded in section 7 thereof, is that termination of employment should only take place where
this is a valid reason. the court always tries to find the reason actually motivating the employer at
the time of the dismissal as can be seen in the case of Abernethy v Mott, Hay and Anderson
(1974) ICR 325 in which Cairns stated a reason for the dismissal of an employee is a set of facts
known to the employer or it may of beliefs held by him which cause him to dismiss the
employee. This can be seen in the case of Mautrius Agricultural and industrial Co. Ltd v
Auckloo (1974) MR 34 where the plaintiff was absent from work and gave no notice of his
illness and produced no medical certificate as per the requirements laid in section (6) 5 of the
Employment and Labour Ordinance which provided that absence from work coupled with failure
to notify absence within five days the court found that there was a breach of agreement which
entitles the employer to terminate the contract. According to the Employment Code ACT a
termination if employment is valid if

52. (1) A contract of employment terminates in the manner stated in the contract of employment
or in any other manner in which a contract of employment is deemed to terminate under this Act
or any other law, except that where an employer terminates the contract, the employer shall give
reasons to the employee for the termination of the employee’s contract of employment; and

(2) An employer shall not terminate a contract of employment of an employee without a valid
reason for the termination connected

Right to wages on dismissal for lawful cause with the capacity or conduct of the employee or
based on the operational requirements of the undertaking.

(3) An employer shall not terminate the contract of employment of an employee for reasons
related to an employee’s conduct or performance, before the employee is accorded an
opportunity to be heard.

(4) An employer shall not terminate a contract of employment of an employee based on reasons
relating to—

(a) Union membership or participation in union activities outside working hours or, with the
consent of the employer, within working hours;

(b) Seeking office as, acting or having acted in the capacity of, an employee’s representative;
(C) The filing of a complaint or the participation in proceedings against an employer involving
alleged violation of laws or recourse to administrative authorities;

(d) A discriminatory ground under section 5;

(e) family responsibilities relating to taking care of a member an employee’s immediate family;

(f) Absence from work during maternity or paternity leave; or

(g) Temporary absence from work during sick leave or injury.

(5) An employer shall bear the burden of proof that the termination of a contract of employment
was fair and for a valid reason.

53. (1) An employee whose contract of employment is intended to be terminated is entitled to a

period of notice, or compensation in lieu of notice, unless the employee is guilty of misconduct
of a nature that it would be unreasonable to require the employer to continue the employment
relationship.

(2) An employer shall, where the contract of employment does not provide for a period of notice,
give—

(a) twenty-four hours for a contract of employment not exceeding one month;

(b) fourteen days for a contract of employment of more than one month but not exceeding three
months; and

(c) thirty days for a contract of employment of more than three months, except that notice to
terminate a contract of employment of more than six months shall be in writing.

(3) An employer shall not give a notice of termination—

(a) During a period of leave taken under this Act; or

(b) to run concurrently with any period of leave taken under this Act.

(4) An employer who does not give notice to an employee shall pay the employee the wages that
the employee would have received if the employee had worked during the notice period.
(5) Where an employee refuses to work during the notice period under subsection (2), an
employer may deduct, from any money due to the employee on termination, the amount that
would have been due to the employee if the employee had worked during the notice period.

(6) Where an employer terminates a long-term contract of employment under this section, the
employer shall pay the employee gratuity which is prorated according to the period of
employment.

(3) The severance pay under this section shall not be paid to a casual employee, a temporary
employee, an employee engaged on a long-term contract or an employee serving a period of
probation.

55. (1) an employer is considered to have terminated a contract of employment of an employee

by reason of redundancy if the termination is wholly or in part due to —

(a) the employer ceasing or intending to cease to carry on the business by virtue of which the
employees were engaged;

(b) the business ceasing or diminishing or expected ceasing or diminishing the requirement for
the employees to carry out work of a particular kind in the place where the employees were
engaged; or

(c) an adverse alteration of the employee’s conditions of service which the employee has not
consented to.

(2) Where an employer intends to terminate a contract of employment by reason of redundancy,

the employer shall—

(a) give notice of not less than thirty days to the employee or a representative of the employee of
the impending redundancy and inform the representative on the number of employees, if more
than one to be affected and the period within which the termination is intended to be carried out;

Cap. 59

Cap. 60

Termination by redundancy
(b) Afford the employee or representative of the employees An opportunity to consult on the
measures to be taken to minimize the termination and the adverse effects on the employee; and

(c) not less than sixty days prior to effecting the termination, notify an authorised officer of the
impending termination by reason of redundancy and submit to that authorised officer information
on—

(i) the reasons for the termination by redundancy;

(ii) the number of categories of employees likely to be affected;

(iii) the period within which the redundancy is to be

effected; and

(iv) the nature of the redundancy package.

(3) Subject to section 57, an employee whose contract of

Employment has been terminated by reason of redundancy shall—

(a) unless better terms are agreed between the employer and the employee concerned or the
employee’s representatives, be entitled to a minimum redundancy payment of not less than two
months’ pay for every year served and other benefits the employee is entitled to as compensation
for loss of employment; and

(b) be paid the redundancy payment not later than the last day of duty of the employee, except
that where an employer is unable to pay the redundancy payment on the last day of duty of the
employee, the employer shall continue to pay the employee full wages until the redundancy
package is paid

Fairness of dismissal

It is important to know what is deemed as fair ,when it comes to dismissal .According to Burtons
legal Thesarus being fair in dismissal means being fair minded , impartial ,unbiased
,unprejudiced equitable and honest and good faith .one might also include just cause ,justifiable
cause or proper cause to qualify a fair dismissal . The criteria of determining fairness involves a
two enquiry.