Tichawana Nyahuma Correspondent
This instalment discusses the implications of a letter of resignation by an employee as a means of terminating a contract of employment as seen through the spectacles of the law, particularly in circumstances where the resignation is tendered without adhering to the notice period provided for in the relevant employment contract.

That said, before going into the nitty-gritties involved, there is need to discuss in detail and or compare the contract of employment with that of marriage. This is necessary for purposes of clarity.

Both the employment contract and that of marriage are similar in at least one significant respect. They are both mutual in the sense that their existence is directly dependent upon both parties’ preparedness to continue to be bound thereby.

Put in another way, these contracts die if one of the parties conducts himself or herself in a manner that amounts to abandonment of the agreement. Accordingly, as soon as one of the parties signals to the other that he or she shall no longer be shackled to the agreement, then the contract is virtually at an end.

This is because in both instances, the innocent party cannot beat the path to a court of law for relief that is aimed at enforcing the contract as would be the case in say, an agreement of sale or a construction contract, technically called specific performance.

As such, in a marriage situation, the husband or wife who craves for the marriage to continue cannot ask a court to order the other spouse to remain in the marriage.

The same applies to an employment contract.

If the employee no longer wishes to fulfil his contract, then that is the end of the relationship. The employer cannot approach a court for an order that compels the employee to return to work. Such an order would be incompetent because it is impossible to enforce.

A court has no power to cause a person who no longer desires to be employed by a particular employer to continue to work for that employer. Nor does the court have the capacity to direct a wife or husband to remain in a marriage in which love, society, affection and all the other niceties of a marriage are no longer being served.

Similarly, if an employer, for some reason, no longer wishes to continue to have a particular employee under his employ, that employer only has to follow the laid down procedures that lead to the formal termination of the employment relationship, and not to seek specific performance as already said.

It is, therefore, emphasised that the contracts in question only exist when both parties are freely, voluntarily and able to do so; what, on another day, would be called “a willing buyer, willing seller transaction”.

As soon as one of the parties decides that they now want out, the contract is dead. What will only remain is the legal formalisation of the termination of the agreement, which may be likened to its burial, after which parties regain their hard fought independence and can, therefore, now freely go their separate ways.

The formalities necessary to legally terminate a marriage contract are through a divorce action in the High Court or the Magistrates’ Court if the marriage was one that was registered or contracted according to general law. If the marriage was not registered, the so called Unregistered Customary Law Union, then the contract formally comes to an end after certain traditional or cultural rites have been performed.

In either case, it is definite that by the time the parties go to court or summon relatives to perform the cultural rites, they would have long see each other’s back.

Let us now return to the termination of the employment agreement by the employee through a resignation letter, but without having given notice in terms of the contract.

There is an apparent misconception that a resignation has to be accepted by the employer before it takes effect. Nothing can be further from the truth.

A resignation by its nature and even without notice, is a unilateral act which does not require the employer’s blessings or validation for it to have the force of law and, therefore, become operative. It takes effect immediately upon being communicated to the employer.

Once the letter is handed to the employer, the contract perishes at that moment as previously indicated. What is critical is that the resignation must reach the relevant authority within the employer’s establishment.

In fact, the resignation does not have to be by an actual letter, but any act that unequivocally communicates the fact of the resignation suffices. It is not the form of the resignation that matters, but the substance.

The Supreme Court, in the case of Eunice Madondo vs Conquip Zimbabwe (Private) Limited SC25/2016, was presented with a perfect opportunity to set the record straight on the subject matter under discussion, and it did not disappoint.

It said; “The form a notice of resignation should take is not ‘cast in stone’ as it were. One can resign verbally, by a letter or through whatever way may be preferred as long as the communication is transmitted to the correct recipient”.

Per Her Ladyship Gowora JA who wrote the judgment with Malaba DCJ, as he was then, and Patel JA concurring.

But what if the contract required that a notice period of say, three months be given before the employee’s departure from his or her job, but the employee nonetheless leaves abruptly and unceremoniously? What are the remedies if any, would be available to the employer in such a situation? Can the employer lawfully help himself to part of the employee’s terminal benefits that are equivalent to what the employee would have earned for that three months’ period?

Unbelievably, the fact that the employee would have breached the contract by resigning without giving notice per the contract does not render the resignation unlawful or invalid.

The resignation remains good at law and, therefore, effective. However, the employer has no legal right to unilaterally deduct a portion of the employee’s emoluments as “compensation for damages incurred thereby”.

The reason is that our law forbids the expropriation of property without a court order, the so called self-help. This, therefore, means that an employer who feels hard done by a sudden resignation must sue such an employee in the appropriate court of law on a claim that is predicated on the law of damages, but before the court can give such an order, the employer would have to prove the damages sustained.

It is not a matter of just saying because the contract in question directed that the notice period is three months for instance, then the employer is entitled to claim the employee’s three months’ worth of salaries. The employer’s claim would depend on the proof of his loss not just conjecture.

Whatever deductions that the employer may make from a departing employee’s benefits, have to be in accordance with section 12 of the Labour Act and any deduction of wages as “desertion damages” may only be lawful if the relevant contract provided for same in which event the court would not listen to the employee if he or she were to later on protest even with a loud voice.

This is because “courts do not make contracts for the parties”, theirs is merely to interpret and enforce the contract so long the agreement does not offend against good morals or any other law.

So, the only way to circumvent the problem seems to be to make provision for such a deduction in the notice clause of the contract.

Otherwise it is not automatic that if the agreement provided for a three months’ notice period, then the loss suffered by the employer where the employee departs without notice is also equivalent to his or her three months’ worth of salaries.

Then there are situations where the employer makes life so difficult or unbearable for the employee at the workplace leading to the employee’s abrupt “resignation” through frustration.

The labour law textbooks call such a resignation “constructive dismissal”.

What it means is that the resignation would be invalid at the instance of the concerned employee as it would not have been tendered freely and voluntarily.

In such a circumstance, if the affected employee subsequently complains to a court and it is shown that the employer really made the workplace environment intolerable for the employee, then that “resignation” may be set aside.

The result may be that the employer is ordered to reinstate the employee to his or her former position without being disadvantaged financially or otherwise.

In the event reinstatement is no longer possible or ideal owing to the obviously bad weather between the parties, the employer will have to pay damages as may be agreed between the parties or failing agreement, the damages would be quantified by the court.

Tichawana Nyahuma is a lawyer, and he writes in his personal capacity. Feedback:[email protected]