SIGNIFICANCE
Redundancy, Unilateral Alteration or Adverse Variation, Job Description
Facts
This case was an appeal from the Industrial Relations
Court where an employee was employed on a permanent and pensionable term by the
appellant as an Administrative Officer and then 6 months later promoted to
Office Manager. The employer changed its
employment policy to employ on fixed-term contracts and started restructuring
its organisation structure with its employee fully aware accordingly. The
position of Office Manager was phased out from the organisational structure.
However, two new positions were created out of it, one of them being that of
Finance Manager. The respondent demanded that he was redundant, and sought a
redundancy package from the appellant who, however, declined and offered him
this position. The Respondent declined this offer because he contended that he
was not qualified for the position and that the employer might performance
manage him out of the organization to avoid paying a redundancy package. Later
on, he accepted the position, and not too long after doing this the respondent
in his new position was subjected to disciplinary charges and was suspended. In
reaction, the respondent consequently resigned from his position and commenced
proceedings.
Issues
1. Whether section 26B of the Employment Act cap. 268 of the laws of the Republic of Zambia can be applied to this case to the facts of this case
2. Whether the respondent can determine the conditions of employment
3. Whether the respondent is entitled to redundancy
Held
On the first issue, the court held that the Employment Act sets out the provisions relating to termination of employment by way of redundancy however the provision only applies to oral contracts. In Casu, the evidence suggests that the contract was a written contract and it had a redundancy provision in Clause 21 which governed the respondent’s redundancy questions if they became relevant.
On the second issue, the court held that the respondent cannot determine the conditions of employment which are the qualification and job description for particular job positions. This solely lies with the appellant as the employer, they have an inherent right to regulate their affairs. Qualifications for a Finance Manager can vary depending on an organisation.
On the third issue, the court held that the respondent was not entitled to redundancy. Redundancy takes place when an employer decides that the employee’s position and or services are no longer required and, therefore, the position must be abolished. Firstly, the respondent was offered an alternative position which he did qualify for, and his services were still needed by the employer, Secondly, the respondent’s acceptance of the new position was not under coercion. Thus, they was no redundancy.
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