Termination without notice or summary dismissal is often referred to as instant dismissal. This is the most serious kind of dismissal because it is often affected where the employee has committed a fundamental breach of his contract or the employee by his conduct commits a serious offense that undermines his duty to the employer.
Examples that warrant summary dismissal are dishonesty, sleeping on duty, gross disobedience, inefficiency that causes financial loss to the employer, dereliction of duty, theft, not devoting enough time to the employer’s affairs, or making inappropriate sexual advances towards other employees.
However, these examples are but a few examples. There are many others. Thus, to identify what conduct warrants summary dismissal, the Zambian court in 1967 developed an excellent test. The seminal case of Stockdale v. The Woodpecker Inn Limited and Spooner developed the test to be used by business and employers when contemplating summary dismissal. The court held that if the conduct of the employee undermined their loyalty to their employer or amounted to unfaithful discharge of the duties, they could be fired immediately. Crucially, the law as it stood was that there is no fixed rule of law defining the degree of misconduct which will justify summary dismissal, but will depend on the circumstances and if the conduct caused irreparable damage to the trust and confidence between the employer and employee that makes it difficult for an employment relationship to continue
However, in 2019, the Zambian Parliament passed the Employment Code Act and section 50 of the Act provides that summary dismissal can only occur in certain instances, namely:
- where an employee is guilty of gross misconduct inconsistent with the express or implied conditions of the contract of employment;
- for wilful disobedience to a lawful order given by the employer;
- for lack of skill which the employee, expressly or impliedly, is warranted to possess;
- for habitual or substantial neglect of the employee’s duties;
- for continual absence from work without the permission of the employer or a reasonable excuse; or
- for misconduct under the employer’s disciplinary rules where the punishment is summary dismissal.
Legally, the new law provides only six (6) instances where summary dismissal can be used by businesses and employers in Zambia namely breach of contract, disobedience, neglect of duties, lack of skill absence from work and misconduct under the disciplinary rules. It is submitted this was unnecessary. The legislators should not have laid down a closed list of circumstances that warrant summary dismissal because it is not always easy to determine what conduct warrants this drastic action or not.
The Employment Code Act should rather have left it to the common law to continue to regulate this area of law based on the test developed in Stockdale – an old test from 1967, but one which has been very effective. The justification for this is that whether or not conduct in question is serious enough to warrant summary dismissal is a question that needs to be evaluated separately in each case, considering the circumstances to deduce if the employee’s conduct led to a breakdown of trust or breach of his duties.
The test that existed before, namely did the conduct cause a breakdown of trust and confidence was brilliant because it left discretion up to employers to gauge the situation and decide if this action was necessary. This is so because there is no predetermined rule or formula defining the degree of misconduct which will justify dismissal. Placing a limit on this to six instances only may have the undesired effect of causing some employees who commit serious offenses to escape without summary dismissal merely because the conduct did not fit into the circumstances in the new Act.
However, to protect employers given the change in the law, it is advisable that for employers to maintain the liberty to get rid of workers who commit serious offenses, they must ensure that they place these in the contract of employment or their disciplinary rules. If the conduct is in these documents then they will be protected from employees who may act badly, incorrectly or negligently during their employment and maintain the right to summarily dismiss them.
