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Contract of Employment

< REPUBLIC OF ZAMBIA EMPLOYMENT CODE ACT No. 3 OF 2019

14. Prioritisation of employment for citizen

Subject to the other provisions of this Act relating to the employment of an expatriate, an employer shall, in filling an employment vacancy, employ a citizen except where a citizen does not posses the skills required for that job or a citizen does not apply for that job.

15. Governing law of contract of employment

A person shall not be employed under a contract of employment, except in accordance with the provisions of this Act

16. Minimum contractual age

(1) Subject to subsection (3), a person shall not, except under prescribed conditions, employ or cause to be employed, a person under the age of fifteen years.

(2) A person who contravenes subsection (1), commits an offence and is liable, on conviction, to a fine not exceeding five hundred thousand penalty units or to imprisonment for a term not exceeding five years, or to both.

(3) Subsection (1) does not apply to a person who has—

(a) been formally exempted from compulsory school attendance in terms of the Education Act, 2011; and

(b) failed to secure admission to a suitable school or whose enrolment has been cancelled or terminated by the school authorities or for good cause by a parent, except that in either case, the person shall only be employed on —

(i) prescribed terms and conditions; and

(ii) approval, by an authorised officer, of the nature of the person’s employment. 

17. Medical examination

(1) Subject to subsection (3), 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.

(2) A medical doctor shall, on medically examining a person under subsection (1)—

(a) prepare a duly signed medical certificate in respect of the medical examination; and

(b) send the duly signed medical certificate to both the prospective employer and employee.

(3) An employer shall keep a confidential file containing the medical information of an employee in respect of a medical examination carried out under subsection (1).

(4) An employer shall not disclose to any person, information contained in a confidential file under subsection (3), unless the employee to whom the information relates consents to that disclosure.

(5) An employer that contravenes subsection (4), commits an offence and is liable, on conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a term not exceeding two years, or to both.

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18. Record of oral contract of employment

An employer shall ensure that a record of the contract of employment is prepared and maintained for each employee under an oral contract of employment as set out in the First Schedule.

19. Types of contracts

(1) A contract of employment may take one of the following forms:

(a) a permanent contract;

(b) a contract for a long-term;

(c) a contract for a specific task;

(d) a contract for a probationary period not exceeding 3 months.

(2) Subject to sections 52 and 53, a permanent contract may be terminated by either party.

(3) A contract for a specified period of time shall automatically expire on the date specified for its expiration and notice shall not be required for its expiration at that time, except that expiration before the specified period shall be done in accordance with the provisions of this Act.

(4) A contract to perform a specific task shall terminate on the completion of the task required without the requirement for a notice of termination by either party.

(5) A contract of employment may provide for a probationary period in accordance with this Act.

20. Presumption as to period of oral contract of employment

In the absence of any agreement to the contrary, an oral contract of employment shall be a contract for the period by reference to which wages are calculated, except that where wages are calculated by reference to any period of less than a day, then, in the absence of any agreement to the contrary, the oral contract shall be a daily contract.

21. Presumption as to new contract of employment

 (1) A party to an oral contract of employment for a period not exceeding one month shall, where that person continues in employment after the expiry of the term of the contract, be presumed to have entered into a new oral contract for a further period of one month and be subject to the same terms and conditions as those of the expired contract.

(2) This section does not apply to a —

(a) contract expressed to be terminable without notice;

(b) contract specifically expressed to be a long-term contract and not renewable; and

(c) daily contract where the wages are paid daily.

22. Contract of employment required to be in writing(1) Where an employer engages an employee for a period of six months or more or for a number of working days equivalent to six months or more within a year, the contract of employment shall be in writing.

(2) An employer shall, on engaging an employee, read and explain the terms of the contract of employment to the employee and the employee shall enter into the contract voluntarily and with full understanding of the terms of that contract.

(3) An employee who consents to entering into a contract of employment may indicate consent by either signing the contract or affixing, on the contract, a thumb or finger print in the presence of a person other than the employer.

(5) Where an employee is illiterate or cannot understand the language in which the contract is written, or the provisions of the contract of employment, the employer shall have the contract attested in accordance with thisAct and explained to the employee in a language that the employee understands.

(6) An employer who is a party to a contract of employment under subsection (1) shall notify the Labour Commissioner, in writing within thirty days of the engagement of the employee.

(7) A person who contravenes the provisions of this section is liable to an administrative penalty.

23. Contents of written contract of employment

(1) An employer shall prepare a written contract of employment specifying the rights and obligations of the parties to the contract and include the minimum particulars of the contract as set out in the Second Schedule.

(2) Where the terms of a written contract of employment change, the employer shall, with the consent of the employee, revise the contract to reflect the change and provide the employee with a copy of the revised contract of employment.

(3) An employer shall, where the employer terminates a written contract of employment, keep the contract for a period of five years after the termination.

24. Contract of employment not binding on family of employee

A contract of employment shall not bind the family of an employee except where it makes a separate provision for a family member.

25. Attestation

(1) An employer shall, within thirty days of entering into a written contract of employment under section 22 (5) submit three copies of the contract to an authorised officer for the purpose of attestation.

(2) An employer who contravenes subsection (1) commits an offence and is liable, on conviction, to a fine of one hundred penalty units for each day that the offence continues.

26. Duty of authorised officer in attesting written contract of employment

(1) An authorised officer shall, on receipt of a written contract of employment for attestation under section 25, ensure that—

(a) the employee fully understands and freely consents to the written contract of employment and that the employee’s consent is not obtained by coercion or undue influence or as a result of misrepresentation or mistake;

(b) the terms of the written contract of employment are not in conflict with this Act or any other written law;

(c) where applicable, the provisions relating to a medical examination under section 17 is complied with;

(d) the employee makes a declaration that the employee is not bound by any previous written contract of employment; and

(e)the written contract of employment is, in all circumstances, equitable.

(2) An authorised officer shall, within thirty days of receipt of a written contract of employment under section 25—

(a) attest the written contract of employment; or

(b) refuse to attest the written contract of employment where the requirements of subsection (1) are not met and give reasons for the refusal.

(3) An authorised officer shall, after attesting a written contract of employment under subsection (2)—

(a) return two copies to the employer, one of which shall be given to the employee; and

(b) retain one copy.

(4) Where an authorised officer refuses to attest a written contract of employment under subsection (2)(b), the contract is void and the authorised officer shall give an employer an opportunity to rectify the written contract of employment and re-submit that written contract for attestation within a period specified by the authorised officer.

27. Probation

(1) An employee may be employed for a probationary period, not exceeding three months, for the purpose of determining that employee’s suitability for appointment.

(2) An assessment of an employee shall be taken by the employer during the probationary period and the result of the assessment shall be communicated to the employee before the end of the probationary period.

(3) Where, during the probation period, an employer determines after an assessment that an employee is not suitable for the job, the employer shall terminate the contract of employment by giving the employee at least twenty-four hours’ notice of the termination.

(4) An employer who is satisfied with the performance of an employee after a probation period shall notify the employee, in writing, of the confirmation of employment, except that where the employer does not notify the employee, in writing, of the confirmation, the employee shall be confirmed in the position from the date of the expiry of the probation period.

(5) A probationary period under subsection (1) may be extended for a further period not exceeding three months.

(6) An employee shall, unless the contract of employment or collective agreement provides otherwise, have the same rights and obligations during the probation period as an employee who has successfully completed the probation period.

(7) An employee on probation may terminate the contract of employment by giving the employer at least twenty-four hours’ notice of the termination.

(8) An employee who is re-employed by the same employer for the same job within a period of two years from the date of termination of the contract of employment with that employer shall not be subject to probation, where the termination was not performance related.

28. Transfer of contract of employment

(1) An employer shall not transfer any rights arising under a contract of employment to another employer without—

(a) the written consent of the employee;

(b) notifying the employee’s representative of the proposed transfer; and

(c) the endorsement by an authorised officer of the particulars of the transfer on the contract.

(2) A transfer of rights made in contravention of subsection (1) is void.

(3) An authorised officer shall, before endorsing any particulars of transfer on a contract of employment, ensure that—

(a)the employee fully understands the nature of the transaction and freely consents to the transfer without coercion, undue influence or as the result of misrepresentation or mistake;

(b) the employee’s representatives are notified by the employer of the employer’s intention to transfer the employee;

(c) where there is any change in the nature of the work to be performed, or in the place where that work is to be performed, and a medical examination of the employee is desirable, that the employee has been medically examined in accordance with section 17; and

(d) the employer and employee have entered into an agreement to carry forward the liabilities of the employee to an undertaking, or to pay any outstanding liabilities due to the employee before the transfer of the employee.

29. Refusal to consent to transfer to other employer

Where an employee refuses to be transferred to another employer under section 28, the contract of employment of the employee shall terminate and the employee shall be entitled to a severance pay.

30. Security in certain contracts of employment

(1) An authorised officer may, before attesting a contract of employment outside the Republic, require an employer or an employment Agency to give security by bond, and provide a surety resident within the Republic as approved by an authorised officer.

(2) The bond provided for under subsection (1) shall provide for the due performance of the contract by the employer on the terms that an authorised officer may consider reasonable, or in lieu of that bond, an authorised officer may require the employer to deposit in cash the sum that the officer may consider necessary toguarantee the performance.

(3) A bond entered into for the purposes of this section is enforceable by an authorised officer according to its purpose without any assignment and is binding as a deed without being sealed.

(4) The money recovered under a bond shall be applied by an authorised officer in or towards satisfaction of a claim of an employee employed under that contract of employment and any balance remaining after the satisfaction of that claim shall be paid to the employer.

31. Contract of employment outside Republic

(1) Subject to the other provisions of this Act, where a contract of employment made within the Republic relates to employment in another country—

(a) a person who has not attained the minimum age of capacity for entering into contracts as prescribed by the law of that foreign country shall not be capable of entering into the contract;

(b) the conditions for termination of the contract of employment shall be determined by the law of that foreign country; and

(c) the Labour Commissioner shall cooperate with the appropriate authority of that foreign country to ensure the enforcement of section 30.

(2) Where a contract of employment made in a foreign country relates to employment in the Republic, the provisions of this Act apply to that contract.

32. Inducing person to proceed abroad without a contract of employment

(1) A person shall not—

(a) induce or attempt to induce another person to proceed outside the Republic for the purpose of employment in contravention of this Act; or

(b) knowingly aid a person to proceed outside the Republic for the purposes of employment or transfer that person induced under paragraph (a).

(2) A person who contravenes subsection (1), commits an offence and liable, on conviction, to a fine not exceeding five hundred thousand penalty units or to imprisonment for a term not exceeding five years, or to both.

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