ZIMBABWE Law and Practice Contributed by: Ruvimbo T L Matsika and Tatenda Nyamayaro, Wintertons
A retrenchment exercise that does not follow the stip - ulated procedure – or one carried out in the absence of duly recognised causes of redundancy – may be treated as an unfair dismissal, thereby rendering it susceptible to being set aside. An employer’s failure to pay the retrenchment package on time or at all constitutes an unfair labour practice. 7.2 Notice Periods A contract of employment may only be terminated on notice where: • the termination is by mutual consent; • the contract is terminated pursuant to a retrench - ment exercise; or • the termination is through the resignation or retire - ment of the employee. The procedure relating to termination pursuant to a retrenchment exercise has been discussed in 7.1 Grounds for Termination . In the case of termination by mutual consent, there are no stipulated formali - ties, except that the termination agreement must be in writing. The applicable notice periods in relation to all the forms of termination listed under Termination on Notice are stipulated in Section 12 (4) of the Labour Act as follows: • three months for contracts for a period of two years or more; • two months in the case of a contract for a period of one year or more but less than two years; • one month in the case of a contract for a period of six months or more but less than one year; • two weeks in the case of a contract for a period of three months or more but less than six months; and • one day in the case of a contract for a period of less than three months or in the case of casual or seasonal work. An employer may elect to pay the employee cash in lieu of notice, rather than requiring them to serve the stipulated notice.
In addition, an employee whose permanent contract is terminated on notice through a mutual termination agreement is entitled to a severance package. This is calculated in accordance with Section 12C of the Labour Act, which provides for the compensation of retrenched employees. The parties are, however, enti - tled to negotiate a severance package that surpasses the stipulated minimum. No external advice or authorisation is required in order to effect a termination on notice unless the termination is by reason of redundancy or retirement – in which case, respectively: • the retrenchment board must be notified of the retrenchment; and • the National Social Security Authority and the applicable pension fund must be informed of the retirement. 7.3 Dismissal for (Serious) Cause Summary dismissal occurs when an employee is dis - missed from employment without notice as a conse - quence of a grave act of misconduct. The dismissal will be preceded by disciplinary proceedings under the applicable code of conduct. The applicable proce - dure has been outlined in 7.1 Grounds for Termination and, while it differs according to the applicable code of conduct, the procedure can generally be summa - rised as follows: • the employer identifies the offence as defined by the code of conduct; • the employee is notified of the commencement of investigations; • the employee may also be suspended with or without pay; • a charge sheet is issued informing the employee of the charge that they are facing; • a disciplinary hearing will be held at which the employee is entitled to be present with their wit - nesses and representative; and • a determination will be made and a penalty imposed in line with the penalty that is stipulated in the code of conduct.
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