Davies Ndumiso Sibanda
WHEN there is a contractual dispute, many employers and workers think that the dispute will be resolved using their contracts of employment and written conditions of service only.

An employment contract goes beyond what the parties have written down but the express terms of the employment agreement are supplemented by implied obligations for both parties. It is thus implied obligations that breathe life to an employment contract, creating detailed working arrangements and are consistent with common law.

These unwritten obligations of parties might be static and might change with time given that the employment contract is the only contract that does not remain static, but adjusts and responds to changed circumstances of the business in areas such as technology and business model rendering parts of the contract obsolete and bring in new contractual obligations. This explains the modern legal thinking that when courts deal with employment contractual disputes, they have to go beyond written terms but also look at how the contract has been lived.

The employer has an implied obligation to take reasonable care of health and safety of workers. This is even more important this period of Covid-19 where employers push workers to work without adequate protection, use sub-standard sanitisers and many others. Failure to provide reasonable safety and health environment is not only illegal but also affects productivity negatively.

Another implied obligation of the employer is not to act in a manner that is likely to collapse the mutual trust and confidence. Workers can easily bring a case of unfair labour practice against the employer.

There are employers who treat workers as sub-humans in an arbitrary manner and act unreasonably in matters of remuneration whereby they deny workers the minimum wage, dismiss them before pay day and not pay them. Such conduct by employers is inconsistent with implied conditions of an employment contract.

Workers on their part have an implied obligation to obey lawful orders of the employer and any breach of these could lead to loss of employment. There are many cases that have gone before the courts where workers have been dismissed for failure to obey lawful orders. One such case is Mpumela versus Berger Paints SC133/99 where Mpumela was ordered to dress properly for work and he refused and was dismissed.

Further, workers have to take reasonable care in performance of their duties, act loyally towards the interests of the employer and serve the employer faithfully as guided by both express and implied terms of the contract.

In conclusion, there are many implied terms of contracts that originate from what I have covered and others are created by the conduct of the employer and employee in their relationship, thus conduct of parties is an important contractual issue.