Imagine Source: Here
By Teddy Musonda
Employment Law - Rights and Duties under the Contract of Employment
INTRODUCTION
Just
like any other relationship, the employer-employee relationship is one that
invites duties and responsibilities that one is obliged to observe for the
other. Duties are vital for the effectiveness of the relationship, the
employer’ business will not thrive if the employee does not observe his/her
duties and correspondingly, the employee will not work effectively if the
employer does not oblige to his/her duties. Both parties rely on each other to
function effectively. It must be
mentioned that these duties are implied from the common law and apply to every
contract of employment even where it is not expressly stated, and a breach of
such a duty will constitute a breach of the contract of employment.
Overriding Term of Mutual Trust and
Respect
There
is a mutual implied duty of trust and respect which applies to every employment
contract. The employment relationship is based on the overriding and mutual duty
of mutual trust and respect. This is to say, both the employer and employee
must act towards each other in mutual trust and respect, it is this overriding
duty that every specific duty of both the employer and employee has stems from.
It must go both ways; this position was confirmed in Standard Chartered Bank v Celine
Nair[1]
wherein the Court of Appeal held that any acts that amount to disrespect of an
employee is a breach of the employer’ duty to show the employee respect. The
employee relatively loses their trust in the employer. Without mutual trust and
respect the employment relationship cannot work.
Fundamentally,
it follows that neither the employer nor the employer should do anything that
undermines the trust and respect, nothing should be done to seriously taint the
trust and respect. Below are specific duties of the employee and employer.
DUTIES OF THE EMPLOYEE
1. Willingness
to work
An
employee must be ready and willing to work. this duty involves four things (i)
punctuality (ii) non-absenteeism (iii) being a serious responsible employee and
(iv) non-dereliction of duty.
(i)
Punctuality: in Ross v Aquascutum Limited[2]
it was held that an employee breaches the duty to be willing to work if
they exhibit unpunctuality, the employee can be fined for unpunctuality and
continued unpunctuality may lead to dismissal.
(ii)
Non-absenteeism: the employee must always
be available to work. in Zambian Breweries v Whiskey Kawisha[3] the employee was given
22 days sick leave but the employee returned to work 6 months later. The
Supreme Court upholding the employer’s decision to dismiss the employee held
that an employer is not obliged to keep employees who are not willing to work.
(iii)
Being a serious and responsible employee:
an employee must take their job seriously and must be a responsible employee,
they must not act dubiously or crafty to avoid work. In Humphrey Musonda v Zambia
Forestry Corporation[4],
the employee missed work for 10 days and said sickness was the reason for the
absenteeism, however, the employee provided a fake sick note. The Court held
that the employee’ acted indicative and dubiously by furnishing a fake sick
note, the employee could be dismissed because they were not ready and willing
to work. the dismal could be invoked on account of the breach of the duty to
willing to work.
(iv)
Non-dereliction of duty:
this means that an employee must do every single thing that is incidental to
their job. In Charles Kangwa v Shade Control[5]
the employee, a security guard, ran away from their station upon seeing
men who were armed. His excuse was that he ran away for fear of his life. The
Supreme Court held that being a security guard whose job is to provide security
to the establishment they are employed by, the employee abandoned his duty by
running away thus breaching the duty to be willing to work at all times.
2. The
Duty to Exercise Reasonable Care and Skill
An
employee has a duty to display a reasonable standard of care and skill as the
discharge their responsibilities and tasks as assigned by their contract. An employee must exercise a level of skill and
care expected of an employee with their purported qualification i.e. an
engineer must discharge their duties in manner expected of an engineer of
his/her qualification. In the case of Hammer
v Cornelius[6],
it was stated that:
"employees impliedly
undertake to possess
the reasonable care and skill when they are carrying out their duties."
An
employee in a specific field professes to have the prerequisite skills of that
field. This means, an employee who is a lawyer professes to the world that they
possess expert knowledge and skill of a lawyer therefore, that employee is
expected to conduct and perform their duties with the standard of care and
skill expected of a lawyer. The employee can be dismissed (fired) if they fall
below such standard expected of them. This position is fortified by Employment Code Act[7]
Section 50(1)(c) which provides that:
"an employee can be
summarily dismissed for not having the skills which he either expressly or
impliedly warrants to possess."
Suffice
to note that it is no defence that the employee lacks adequate skill and
training for the particular job. What the law is concerned with is that an
employee under a certain position is presumed to possess the expected knowledge
and must have underwent the needed training for the occupation. This was the position taken in Chaikatisha
v Stambic Bank Zambia[8]
Additionally,
the duty to exercise reasonable care and skill also entails the obligation to
take proper care of the employer's property. In Charles Mushela v Lumwana Mining
co ltd[9],
the employee attempted to sell his employer's property. It was held that this
justified summary dismissal because he was not exercising reasonable skill and
care. The employee must take care of the employer’ tools, equipment etc.
3. To
Obey Lawful and Reasonable Orders
The
undeniable fact is that the employer is the boss and the employee is the worker
(the author says this very carefully with all due cognisance and respect to the
employee) in the relationship. therefore, it follows that the employee is by
law obliged to obey instructions given by the employer and carry them out
exactly as instructed. In the case of Musonda Saini v Amazon Securities ltd[10]
it was held that employees failure to obey employer’ lawful and
reasonable orders amounts to insubordination hence justifying summary
dismissal.
However,
as an exception to this rule, the employee is not obliged to obey unlawful
orders given by the employer. In Morris v Henlys Limited[11]
the employee was summarily dismissed for failure to obey instructions
to falsify accounting records. The court held that such an instruction was
unlawful and the employee was not obliged to follow through, therefore, the
employee did nothing wrong by refusing to obey unlawful orders. It is worth
noting that as held in the case of Kenny
Sililo v Mend-A-Bath,[12]
questioning, disagreeing, inquiring on information does not amount to
disobedience and an employee cannot be held to be disobedient in such an
instance.
4. The
Duty to Adapt to New Rules and Methods that are Reasonable
As
the employment relationship evolves, duties, circumstances and work practices
tend to change. To adapt to such changes, an employer is permitted to make
changes to the work practices to make the work more efficient. The position of
the law is that the employee must adapt to these new methods.[13] In Musonda Saini v Amazon Securities
Limited (supra) it was held that the employee’ failure to accept to be
a stationed guard from his previous role as escort guard amounted to a breach
of the duty to adapt to new rules and circumstances. Further, in Creswell
v Board of England Revenue[14] it was held that the
changes or new rules must be reasonable and connected to one’s employment. In
the case, the new changes of using computerized system was one that improved
the employer’ business and reasonable.
An
employee is however not obliged to adapt to new rules or methods that do not
relate to their contractual duties. In Smith v London Metropolitan University[15],
a theatre studies lecturer was asked to start teaching English. the court stated
that this duty to adapt to new changes only applies where the adaptation
required is related to the employee's contractual duties. The court held that the lecturer did not have
to adapt (become an English teacher) because that is not the job he was given. To
contextualize this further, an office Secretary is not obliged to adapt to
being a cleaner because the work of the two jobs mentioned are very distinct.
5. Duty
of Good faith, loyalty and fidelity
These
collective duties are broken down in three (3) duties as follows.
(i)
The Duty of Confidentiality: This means
the employee has a duty not to disclose the confidential information of the
employer. Therefore, in order to determine whether the employee is assumed with
a duty of confidentiality with regards to particular information, the case of Thomas
Marshall v Guinly[16]
provided a test constituting of five (5) questions that if answered in
the positive will ascertain that the employee assumed the duty of
confidentiality. (I) would the information if disclosed act to the detriment of
the employee? (ii) what is the practice of trade in the field the employee is
engaged in? (iii) does the quality of information retain levels of
confidentiality? (iv) was the manner or circumstances in which the employee
received the information import confidentiality? (v) would it cause harm to the
employer if used in an unauthorized means?
It
must be stressed that the duty of confidentiality applies even after employment
but within limited degrees as espoused in Faccanda Chicken v Fowler[17]
the court provided 4 (four) rules in determining whether information must
be kept confidential even after employment.
The Court must look at (i) the
nature of employment (ii) nature of information; whether the information retain
levels of confidentiality. (iii) whether the employer stress the need for
confidentiality to the employee. (iv) whether the information in question be
separated from ordinary general information.
(ii)
The Duty to Avoid Conflict of Interest:
This entails that the employee must avoid working in conflict with the
employer’ business interests[18]. In Stockdale v Woodpecker[19]
the employee was selling his privately owned liquor at the business of
the employer. The court held that the employee was conflicting with the
employer’ business interest. Such actions warranted summary dismal because it
was grave breach of the duty to avoid acting in conflict wot the employer’
interests. Further, in the case of Martin Villain Landman v Nemchem,[20]
the employee was providing COVID 19 masks and other COVID 19 material to the
same client that the employer was supplying to. The Court found that this was
contrary to the duty to avoid a conflict of interest.
(iii)
The Duty to Avoid Soliciting Customers of
the Employer: This duty is linked to the one above because when an employee
solicits a customer, the create a conflict of interest. Hence, the employee
ought not to get the employer's customers for himself as was held in Landman
v Nemchem (supra). In Rob v Green[21]
it was held that equivalent to disloyalty to steal an employer’
customers, which in turn is breach to
avoids soliciting customers of the employer.
6. The
Duty to Indemnify the Employer
In
the course of one's duty if they cause loss or damage to the
employer's property through negligence or misconduct, the position of the law is
that the employee is under the duty to indemnify/reimburse the employer for the
damage cause.
DUTIES ON THE EMPLOYER
1. To
Pay Salaries/wages
In
Charles
Mushitu v Christabel Kaumba,[22] the Supreme Court held that the underpinning
duty of the an employer to an employee is payment of remunerations in return of
the employees services. Monies for services provided is the main reason
why people get into employment so it follows that the employer's duty to
remunerate is primary.
Section 66 of the Employment Code Act provides
that wages must be paid in the last day of the month. Section 66(2) provides an employer with an allowance to pay the
employee their wages after they are due i.e a 5-day grace period.
2. Duty
to Provide Work
Generally
speaking, the employer has no duty to provide work for the employee. This was
confirmed in the case Collier v Sunday Referee Publishing Company[23],
where the court stated: “provided I pay
my chef; she cannot complain if I choose to take out the whole meal”
What
is meant by this is that, the employer provided the pay the employee their
wages cannot be faulted if there is no more work to do. To exemplify this
point, imagine a restaurant receives no customers, would the waiters
(employees) who have no work to do at that particular time successfully sue the
employer (owner of the restaurant) for not providing work? certainly not!
Exceptions: (a)
where employee’ wages depend on attendance:
(b)
where employee’ livelihood depends on publicity: in Clayton and Jack limited v Oliver[24]
it was held that an actor depends on publicity to attract further
employment that keeps their livelihood flourishing, therefore, where a theatre
contracts an actor as an employee, it becomes the employer’s duty to provide
work for the actor (employee).
(c)
skilled employees: in Langston v Amalgamated Union of Engineers,[25]
it was held that where an employer employs skilled employees such as ones in casu (Engineers) they employer has the
duty to provide them with work because they need the work to develop and
further their skill
duty
to Take Reasonable Care of Employees. Section
93 (1) of the Employment Code Act provides that the employer must provide
proper and clean water and good sanitary facilities for the employees at the
workplace.
3. Duty
to Take Reasonable Care of Employees.
Section 93 (1) of the
Employment Code Act provides that the employer must provide
proper and clean water and good sanitary facilities for the employees at the
workplace.
4. Duty
to Provide a Safe Working Environment and a Safe System of Work
This
means that the employer must do everything that is reasonable to provide the
employees with an environment that is safe for working in. The environment must
be one that is physically safety, promotes mental safe and psychologically.
This encompasses safe working premises, safe equipment, safe working practices
and a safe system of work where the health of the employees will not be
jeopardized. The employer must eliminate any physical hazards, potential risks,
discourage bullying at the undertaking, discourage abusive language and an
abusive environment.
5. To
Provide the Necessary Tools for the Employee to Carry Out Their Duties:
The
employer is obliged by law to provide tools to support the employee in their
discharge of their duties. There must be an adequate support system. In Whitebread
v Gullyes[26]
it was stated support also includes people. In the case, it was found
that the employee could not properly discharge their duties because of inadequate
stuff members to support the undertaking of several tasks.
6. Duty
to Exercise Discretion in a Fair Manner and in Good Faith
It
follows that the Employer being the boss has wide powers to exercise discretion
on many things e.g. awarding of bonuses, approving leave, renewal of contract
etc. Taking this into account, this duty demands that the employer uses their
discretion without exploitation of the employee. It demands that the employer
must treat similar circumstanced employees in the same way and different circumstanced
employees differently.
In
Hotel
and Tourism Inatitute v Happy Chibesa[27]
it was held that where an employer rises a legitimate expectation, they
are estopped from according different treatment to an employee who meets such
expectation. To exemplify this point, where for instance an employer tells
their employees that the best employee of the month will receive extra pay and
in the first few months the employer honours his/her promise, in that case the
employer cannot hold back the extra pay subsequently to an employee who becomes
the employee of the month, without reasonable and a justified excuse. This is
because the employer raised a legitimate expectation (the employee of the month
gets extra pay) therefore, suddenly holding back from such promise will be
exercising one’s discretion in bad faith and unfairly.
7. Duty
to Make Reasonable Changes to Work Practice
The
employer has a duty/right to make reasonable changes to practice provided such
changes are within the employee's duties. In Cresswell v Board of England
Revenue (supra), the employees were asked to transition from the use of
typewriters and start using a computerized system. The court found that this
change was within their duties and the employer had the right to make this change.
It was found to be reasonable and permitted.
CONCLUSION
The
article has discussed several rights and duties of the employee and employer respectively,
this must not however serve as an exhaustive list of duties of both the
employee and employer but constitute the major and highlighting duties.
[1] (2019)
ZMCA 221
[2] [1973]
IRLR 107
[3] [1993]
ZMSC 13
[4] (2015)
Z.R 79 vol. 3.
[5] (2013)
ZMSC 42
[6] 141
E.R. 94
[7] No.
3 of 2019
[8] [2017]
ZMSC 155
[9] Unreported
[10] 2015
ZR 3 P. 176
[11] [1973]
EW Misc 1
[12] [2017]
ZMSC 54
[13] W,
S. Mwenda. C, Chungu, A Comprehensive Guide to Employment Law In Zambia. (UNZA
press, University of Zambia, 2021)
[14] [1984]
ICR 508
[15] [2011]
IRLR 884
[16] (1979)
1 Ch 227
[17] [1987]
Ch 117
[18] W,
S. Mwenda. C, Chungu, A Comprehensive Guide to Employment Law In Zambia. (UNZA
press, University of Zambia, 2021)
[19] [1967]
ZMHC 25
[20] (2021)
ZMHC 111
[21] [1895]
2 QB 1
[22] (2015)
No. 122
[23] (1940)
KB 647
[24] [1930]
UKHL J0210-1
[25] [1973]
EWCA Civ 773
[26] [1996]
UKEAT 478
[27] [2003]
ZMSC 30
This Article is Brought to you by:
LEGAL AID INITIATIVE
(Access to Knowledge )
About the Author:
