Contracts and Dismissals
Written Employment Particulars
In accordance with the Employment Code Act 2019, there are two types of contracts only, i.e., oral and written contracts. Employment Act does not require contracts to be in writing unless required by this Act or some other law. Even in the case of oral contracts, the law requires preparation of a "record of service" in duplicate to be handed over to an employee within one month of commencement of contract. The record of contract must contain the following: the name and sex of the employee and his nationality; the name, address and occupation of the employer; the date of the employee's engagement and the capacity in which he is to be employed; the type of contract; the place of engagement; the rate of wages and any additional payments in kind; and the intervals of payment.
The written contract is required in the case of contracts of six months or longer duration or contracts of Foreign Service or for some specific tasks which is expected not to be completed within six months. A written contract of service will include all particulars of an employee, employer, wages, place of work, etc. Employers are required to read and explain the terms of employment contract of employment to the employee. Employees enter into the contract voluntarily and with full understanding of the terms of that contract. The written contract must be signed by the employee or he/she puts the thumb/finger impression to indicate his/her consent and agreement to the terms and conditions specified in it. This contract is enforceable after attestation in triplicate under the relevant office, one copy for each party and third copy for the relevant government office. A written contract of service should not be binding on the family of an employee.
An employer may, prior to entering into a contract of employment with an employee, require the employee to be medically examined by a medical doctor for purposes of determining the fitness of the employee to undertake the work for which the employee is proposed to be employed.
Source: §14-24 of the Employment Code Act, 2019 (first and second schedules under law)
Fixed Term Contracts
A contract of employment may take one of the following forms:
- Permanent contract (expires on retirement unless terminated);
- Long term contract (contract of more than 12 months, renewable for a further term);
- Task specific contract (terminates on completion of task);
- Probationary contract (3 months)
Zambian labour Law prohibits casualization. Casualization is defined as an “employment practice where an employer, without permissible reason, engages or reengages an employee on a temporary or fixed basis, to perform work which is permanent in nature that results, without justifiable reason, in the different treatment of an employee compared to a full-time or other category of employees of the employer; or which has the effect of enabling the employer to avoid any obligations, or depriving an employee of any rights under this Act.
The permissible reasons include the following:
- engagement under a contract of apprenticeship;
- engagement for a probationary period;
- temporary employment;
- seasonal employment;
- flexibilisation;
- employment due to a temporary increase in the volumes of work which is expected to last for less than 12 months;
- employment of a person who is not a citizen and is to work, subject to a work permit for a defined period;
- the position of the employee is funded by an external source for a limited period;
- the employee is retained by the employer past the normal or agreed retirement age;
- the terms of employment of the employee are regulated by a written law or public policy; or
- engagement of a management employee, with the consent of that employee.
A short-term contract is the contract with duration of less than 12 months. There is no clear provision on the length of a single fixed term contract including renewals.
Source: §7 & 19 of the Employment Code Act, 2019
Probation Period
While the earlier law had no clear provision on probationary periods, the Employment Code Act of 2019 allows a probationary period for a maximum term of 3 months in order to determine a worker’s suitability for appointment. The probationary period can be extended for a further period of 3 months, making the total duration 6 months.
Either party may terminate the employment contract after serving a 24-hour notice. Employment is confirmed after successful completion of the probationary period. Assessment of a probationary worker must be completed and conveyed to the worker before completion of probation. Where the employer is satisfied with the worker’s performance, he must notify the worker of employment confirmation in writing. A worker who is reemployed by the same employer for the same job within 2 years from the date of contract termination is not required to go through probation again, provided that the termination was not performance related.
Source: §27 of the Employment Code Act, 2019
Termination of Employment
A contract of employment terminates in the manner stated in the contract of employment or in any other manner (as stated in the Employment Code Act), except that where an employer terminates the contract, the employer must give reasons to the employee for the termination of the employee’s contract of employment. Contract termination without a valid reason is not allowed. Valid reasons include those connected with the capacity or conduct of an employee or based on the operational requirements of an undertaking. A worker‘s contract may not be terminated on account of conduct or performance without giving the employee an opportunity to be heard.
Employment of an employee can also be terminated due to misconduct, poor performance, redundancy, medical incapacity, end of contract, resignation, operational, technological, or economic reasons. In case of gross misconduct, an employer may dismiss an employee without notice.
A contract of employment expires: at the end of the term for which it is expressed to be made; on the death of the employee before the end of the term specified in the contract; on the employee attaining the applicable retirement age, where the contract of employment is permanent in nature; or in any other manner in which a contract of employment lawfully expires or is deemed to expire.
An employment contract may not be terminated based on the following reasons:
- union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours;
- seeking office as, acting or having acted in the capacity of, an employee’s representative;
- the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or recourse to administrative authorities;
- a discriminatory ground under Employment Code Act (refer to the topic on non-discrimination);
- family responsibilities relating to taking care of a member of an employee’s immediate family;
- absence from work during maternity or paternity leave; or
- temporary absence from work during sick leave or injury.
Source: §49-52 of the Employment Code Act, 2019
Regulations on Employment Security
- Employment Code Act, 2019
- Minimum Wages and Conditions of Employment (General) Order, 2011 (amended in 2012)
- Minimum Wages and Conditions of Employment (Shop Workers) Order, 2011 (amended in 2012)
- Minimum Wages and Conditions of Employment (Domestic Workers) Order, 2011 (amended in 2012)
