INTRODUCTION
In Zambia, the law that regulates the termination of employment without providing reasons has undergone a profound transformation, particularly with the enactment of the Employment Code Act No. 3 of 2019 (ECA). Prior to the ECA, Zambian employment law, influenced by common law principles and statutes such as the Employment Act, Cap. 268 (as amended), generally allowed employers substantial latitude to terminate contracts without substantive justification, provided procedural requirements like notice were met. This article explores the pre ECA treatment of such terminations, contrasts it with the current prevailing law, and incorporates case law and statutory provisions.
Termination Without Reasons
Before the Employment Code Act, Zambian employment law drew heavily from English common law, which viewed the employment relationship as a master servant contract. An employer could terminate employment for any reason or no reason at all, as long as the contractual or statutory notice period was observed or payment in lieu was made. Remedies for wrongful termination were typically limited to damages equivalent to the notice period wages, rather than reinstatement or broader compensation for unfairness.
The Employment Act, Cap. 268 (prior to significant amendments) did not mandate valid reasons for most terminations. Employers enjoyed wide discretion in ordinary terminations, with summary dismissal reserved for serious misconduct without notice. A key illustration of common law principles appears in Zambia Privatisation Agency v Matale , where the Supreme Court addressed termination under a fixed-term contract. Although the case focused on notice and contract duration, it reflected the era’s approach: absent specific provisions, reasonable notice sufficed, and justification beyond notice was not strictly required.
However, the landscape began shifting with amendments to the Employment Act in 2015 (via the Employment (Amendment) Act). Section 36(1)c and (3) introduced a requirement for employers to provide valid reasons connected to the employee’s capacity, conduct, or the undertaking’s operational requirements. This marked a departure from pure common law discretion.
Mark Tink and Others v Lumwana Mining Company Limited exemplifies this transitional period. The appellants’ fixed-term contracts were terminated without explicit valid reasons in the termination notices, despite verbal references to localization (replacing expatriates with locals). The Court of Appeal held that failure to furnish valid reasons violated the amended Employment Act provisions (Section 36). The terminations were deemed unlawful and unfair, as reasons must be stated and linked to permissible grounds. The court rejected post-hoc justifications and awarded damages.
Other pre-employment code Act cases reinforced procedural protections but not always substantive ones. In cases involving unfair dismissal under the Industrial and Labour Relations Act (prior to consolidation), courts scrutinized process more than absence of reasons alone, though post 2015 amendments strengthened substantive requirements.
The Employment Code Act No. 3 of 2019 consolidated Zambian labour laws and explicitly curtailed arbitrary terminations. Key provisions include:
Section 52(1): Where an employer terminates a contract, the employer shall give reasons to the employee. Section 52(2): An employer shall not terminate without a valid reason connected to the employee’s capacity or conduct, or based on operational requirements. Section 52(3): For conduct or performance related terminations, the employee must have an opportunity to be heard. Section 85(5): The employer bears the burden of proving the termination was fair. Invalid reasons are prohibited under Section 52(4) (e.g., union activities, discrimination, maternity leave). Summary dismissal is limited to gross misconduct under Section 50, with due process required.
In light of the Aforecited provisions providing a reason before termination is mandatory by the employers and thus failure to comply renders the termination unfair, with remedies including compensation, reinstatement, or damages exceeding mere notice pay.
Post the employment code Act cases, such as those involving probation terminations for instance in the case of Saviours Mundia v Consolidated Farming Limited emphasize mandatory assessments and communication of reasons, aligning with the stricter regime.
Conclusion
Prior to the Employment Code Act No. 3 of 2019, Zambian law was heavily rooted in common law and the Employment Act, Cap. 268 permitted terminations without reasons in many instances, provided notice was given, with limited employee recourse or remedies beyond contractual damages. Cases like Zambia Privatisation Agency v Matale illustrated this flexibility, while the 2015 amendments and decisions such as Mark Tink and Others v Lumwana Mining Company Limited signaled growing protections thus the employment code Act represents a decisive shift toward substantive fairness, requiring valid reasons, procedural justice, and employer accountability under Sections 52 and related provisions. This evolution enhances job security, aligns with international standards, and balances employer operational needs with employee rights.
About author: COMFORT LUNGU IS A THIRD YEAR LAW STUDENT AT THE COPPERBELT UNIVERSITY, HE WRITES IN HIS OWN PERSONAL CAPACITY
Bibliography
STATUTES
Employment Code Act No. 3 of 2019 (available at parliament.gov.zm).
Employment Act, Cap. 268 of the Laws of Zambia (as amended).
CASES
Mark Tink and Others v Lumwana Mining Company Limited CAZ Appeal No. 41/2021; [2022] ZMCA 82 (Court of Appeal judgment).
Zambia Privatisation Agency v Matale [1996] ZMSC 7 (Supreme Court).
Saviours Mundia v Consolidated Farming Limited Comp/IRCLK/442/2019 (High Court/Industrial Relations Division).