< REPUBLIC OF ZAMBIA EMPLOYMENT CODE ACT No. 3 OF 2019
49. Suspension of employee
Where an employer reasonably believes that an employee has breached the employer’s disciplinary rules and the employer decides to suspend the employee, the suspension shall be done in accordance with the disciplinary rules applicable to the employee.
50. Summary dismissal
(1) An employer shall not dismiss an employee summarily except in the following circumstances:
(a) where an employee is guilty of gross misconduct inconsistent with the express or implied conditions of the contract of employment;
(b) for wilful disobedience to a lawful order given by the employer;
(c)for lack of skill which the employee, expressly or impliedly, is warranted to possess;
(d) for habitual or substantial neglect of the employee’s duties;
(e) for continual absence from work without the permission of the employer or a reasonable excuse; or
(f) for a misconduct under the employer’s disciplinary rules where the punishment is summary dismissal.
(2) Where an employer summarily dismisses an employee without due notice or payment of wages in lieu of notice, the employer shall, within four days of the dismissal, submit to a labour officer in the district in which the employee was working, a written report of the circumstances leading to, and the reasons for, the dismissal.
(3) A report under subsection (2), may be submitted through registered or electronic mail.
(4) Where a report is submitted through registered mail, the report shall be considered to have been submitted to a labour officer within four days of the dismissal if the envelope within which it is contained bears a postmark dated not later than three days following the dismissal.
(5) A labour officer shall record the details of a report submitted under subsection (2), in a register maintained for that purpose.
(6) A person who fails to comply with the provisions of subsection (2), is liable to an administrative penalty.
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51. Right to wages on dismissal for lawful cause
(1) An employer who summarily dismisses an employee under section 50 shall pay the employee, on dismissal, the wages and other accrued benefits due to the employee up to the date of the dismissal.
(2) An employer who fails to comply with Subsection (1), is liable to an administrative penalty.
52. Termination and expiration of contract of employment
(1) A contract of employment terminates in the manner stated in the contract of employment or in any other manner in which a contract of employment is deemed to terminate under this Act or any other law, except that where an employer terminates the contract, the employer shall give reasons to the employee for the termination of the employee’s contract of employment; and
(2) An employer shall not terminate a contract of employment of an employee without a valid reason for the termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking.
(3) An employer shall not terminate the contract of employment of an employee for reasons related to an employee’s conduct or performance, before the employee is accorded an opportunity to be heard.
(4) An employer shall not terminate a contract of employment of an employee based on reasons relating to—
(a) union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours;
(b) seeking office as, acting or having acted in the capacity of, an employee’s representative;
(c)the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or recourse to administrative authorities;
(d) a discriminatory ground under section 5;
(e) family responsibilities relating to taking care of a member of an employee’s immediate family;
(f) absence from work during maternity or paternity leave; or
(g) temporary absence from work during sick leave or injury.
(5) An employer shall bear the burden of proof that the termination of a contract of employment was fair and for a valid reason.
(6) An employee who has reasonable cause to believe that the employee’s services have been terminated contrary to this section may report the matter to an authorised officer under section 121 or, within thirty days of the termination lay a complaint before the court.
(7) A contract of employment expires—
(a) at the end of the term for which it is expressed to be made;
(b) on the death of the employee before the end of the term specified in the contract;
(c) on the employee attaining the applicable retirement age, where the contract of employment is permanent in nature; or
(d) in any other manner in which a contract of employment lawfully expires or is deemed to expire, under this Act or any other law.
53. Notice for termination of contract of employment
(1) An employee whose contract of employment is intended to be terminated is entitled to a period of notice, or compensation in lieu of notice, unless the employee is guilty of misconduct of a nature that it would be unreasonable to require the employer to continue the employment relationship.
(2) An employer shall, where the contract of employment does not provide for a period of notice, give—
(a) twenty-four hours for a contract of employment not exceeding one month;
(b) fourteen days for a contract of employment of more than one month but not exceeding three months; and
(c) thirty days for a contract of employment of more than three months, except that notice to terminate a contract of employment of more than six months shall be in writing.
(3) An employer shall not give a notice of termination—
(a) during a period of leave taken under this Act; or
(b) to run concurrently with any period of leave taken under this Act.
(4) An employer who does not give notice to an employee shall pay the employee the wages that the employee would have received if the employee had worked during the notice period.
(5) Where an employee refuses to work during the notice period under subsection (2), an employer may deduct, from any money due to the employee on termination, the amount that would have been due to the employee if the employee had worked during the notice period.
(6) Where an employer terminates a long-term contract of employment under this section, the employer shall pay the employee gratuity which is prorated according to the period of employment.
54. Severance pay
(1) An employer shall pay an employee a severance pay, where the employee’s contract of employment is terminated or has expired, in the following manner:
(a) where an employee has been medically discharged from employment, in accordance with section 38(5);
(b) where a contract of employment is for a fixed duration, severance pay shall either be a gratuity at the rate of not less that twenty-five percent of the employee’s basic pay earned during the contract period or the retirement benefits provided by the relevant social security scheme that the employee is a member of, as the case may be;
(c) where a contract of employment of a fixed duration has been terminated, severance pay shall be a gratuity at the rate of not less than twenty-five percent of the employee’s basic pay earned during the contract period as at the effective date of termination;
(d) where a contract of employment has been terminated by redundancy in accordance with section 55, the severance pay shall be a lumpsum of two months’ basic pay for each year served under the contract of employment; or
(e) where an employee dies in service, the severance pay shall be two months’ basic pay for each year served under the contract of employement.
(2) Where an employee dies before receiving the severance pay, the employer shall pay the severance pay to the employee’s estate in accordance with the Intestate Succession Act or the Wills and Testate Estates Act.
(3) The severance pay under this section shall not be paid to a casual employee, a temporary employee, an employee engaged on a long-term contract or an employee serving a period of probation.
(4) The Minister shall prescribe the formula for the minimum computation of severance pay.
55. Termination by redundancy
(1) An employer is considered to have terminated a contract of employment of an employee by reason of redundancy if the termination is wholly or in part due to —
(a) the employer ceasing or intending to cease to carry on the business by virtue of which the employees were engaged;
(b) the business ceasing or diminishing or expected ceasing or diminishing the requirement for the employees to carry out work of a particular kind in the place where the employees were engaged; or
(c) an adverse alteration of the employee’s conditions of service which the employee has not consented to.
(2) Where an employer intends to terminate a contract of employment by reason of redundancy, the employer shall—
(a) give notice of not less than thirty days to the employee or a representative of the employee of the impending redundancy and inform the representative on the number of employees, if more than one to be affected and the period within which the termination is intended to be carried out;
(b) afford the employee or representative of the employees an opportunity to consult on the measures to be taken to minimise the termination and the adverse effects on the employee; and
(c) not less than sixty days prior to effecting the termination, notify an authorised officer of the impending termination by reason of redundancy and submit to that authorised officer information on—
(i) the reasons for the termination by redundancy;
(ii) the number of categories of employees likely to be affected;
(iii) the period within which the redundancy is to be effected; and
(iv) the nature of the redundancy package.
(3) Subject to section 57, an employee whose contract of employment has been terminated by reason of redundancy shall—
(a) unless better terms are agreed between the employer and the employee concerned or the employee’s representatives, be entitled to a minimum redundancy payment of not less than two months’ pay for every year served and other benefits the employee is entitled to as compensation for loss of employment; and
(b) be paid the redundancy payment not later than the last day of duty of the employee, except that where an employer is unable to pay the redundancy payment on the last day of duty of the employee, the employer shall continue to pay the employee full wages until the redundancy package is paid.
56. Exemption from paying redundancy package
Cap. 1(1) Subject to the Constitution, an employer who is unable to pay an employee a redundancy payment in accordance with section 55 due to the employer’s financial incapacity, may apply to the Labour Commissioner for exemption from paying the redundancy payment—
(a) as a lumpsum; or
(b) on or before the date of expiry of the notice of redundancy.
(2) An application under subsection (1) shall be accompanied with—
(a) proof of the employer’s financial incapacity to pay the redundancy payment as a lumpsum or not later than the date of the expiry of the notice of redundancy; and
(b) where the employer is unable to pay the redundancy payment as a lumpsum, the employer’s proposed payment plan specifying the proposed instalments of the redundancy payment and dates of payment.
(3) Where the Labour Commissioner considers that the employer’s proposed payment plan under subsection (2), is not reasonable, the Labour Commissioner shall propose an alternative payment plan.
(4) The Labour Commissioner shall, within thirty days of receipt of an application under subsection (1)—
(a) grant the exemption, with or without conditions; or
(b) refuse to grant the exemption, and give reasons for the refusal.
(5) The Labour Commissioner may revoke an exemption granted under subsection (4) if—
(a) the exemption was granted on materially incorrect or misleading information;
(b) there has been a material change of circumstances since the exemption was granted; or
(c) the employer exempted fails to comply with any condition on which the exemption was granted.
(6) The Labour Commissioner shall, where the Labour Commissioner proposes to revoke an exemption granted under subsection (4) give notice, in writing, of the proposed action to the employer to which the exemption was granted and request the employer to submit to the Labour Commissioner, within seven days of the notice, any representation which the employer may wish to make on the proposed revocation.
(7) An employer who fails to comply with a condition of exemption is liable to an administrative penalty; and
(8) An employer shall, where the employer pays an employee a redundancy package in accordance with this section, submit proof of the payment to the Labour Commissioner, within seven days of the payment.
(9) This section does not apply to—
(a) an employer who ceases to carry on business by reason of bankruptcy or compulsory liquidation;
(b) a casual employee;
(c) a temporary employee;
(d) an employee engaged for a long-term and the redundancy coincides with the expiration of that term; or
(e) an employee on probation.
57. Re- engagement of redundant employees
Where, within nine months from the date when the notice of termination of employment under section 55 takes effect, the circumstances leading to the redundancy of an employee have changed and an employer wishes to fill a vacancy occasioned by that redundancy, the employer shall offer a contract of employment, in respect of the vacancy, to the employee previously declared redundant, before considering any other applicant.
58. Expiration by retirement
An employee’s contract of employment shall expire by reason of retirement, where the employee attains the age of retirement under a written law.
59. Certificate of service, testimonial or reference
(1) Despite the provisions of subsection (2) an employer shall, on the termination of a contract of employment, give an employee a certificate of service indicating—
(a) the name of the employer;
(b) the name of the employee;
(c) the date of engagement;
(d) the date of discharge;
(e) the nature of employment;
(f) the employer’s account number with any fund or scheme under which statutory contributions have been or will be remitted to the fund or scheme on behalf of the employee;
(g) the employee’s national registration number and membership number in the fund or scheme during the course of the contract; and
(h) a statement of the amount of statutory and any supplementary contributions paid by the employer to the fund or scheme during the course of the contract.
(2) An employer may give a testimonial, reference or certificate of character to an employee at the termination of the employee’s service.
(3) Despite subsection (2), an employer who knowingly gives a false testimonial, reference or certificate of character to an employee is liable for any loss or damage caused to a third person who, by reason of the false testimonial, reference or certificate of character, has been induced to take the employee into the employer’s service.
(4) A person who fails to give a certificate of service under subsection (1), is liable to an administrative penalty
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