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Section 12(4a) (b) under Act 11 of 2023
Section 12(4a) (b) of the Act provides that an employer can terminate a contract of employment in the following circumstances:
“For the breach of an express or implied term of contract, upon such breach being verified after due inquiry under an applicable employment code or in any other manner agreed in advance by the employer and employee concerned.” (Own Emphasis).
This section is subject to controversy as some practitioners are of the view that it gives the employer the right to terminate a contract on notice. The assumption by these practitioners is that the words “in any other manner agreed in advance by the employer and employee concerned” applies to the parties generally agreeing to a method of termination not provided under the whole section 12(4a). The argument goes on to suggest that the provision allows an employer and an employee to choose to terminate a contract on notice.
In our respectful view, section 12(4a) (b) must be construed as a whole. We submit that the employer and employee may agree to a different method of inquiring into the alleged breach other than a method in the code of conduct. The word “inquiry” means “a request for information or a systematic investigation often of a matter of public interest or examination into facts or principles.” The wording of the provision thus suggests that upon an employee being accused of breaching workplace rules, there must be an inquiry to verify this breach. There are two ways of verifying the breach. An investigation can be done as per the specifics of a code of conduct. The parties may also agree in advance on how they will conduct this investigation or inquiry.
We submit that it is only after the investigation has been carried out and a subsequent hearing has been done that an employee can be deemed to have been fairly dismissed in terms of section 12(4a) (b) of the Labour Act. The same section cannot be used to propagate the view that the termination on notice was introduced in the Labour Act via the back door. Such an interpretation will fly in the face of section 12(4a) which has expressly excluded the termination of a contract on notice.
Besides the above, we also submit that jurists must interpret legislation to protect the legislature’s intention. There is no doubt that after the infamous Zuva Petroleum judgment, and the enactment of Act 5 of 2015, the intention has been to curtail the termination of a permanent contract on notice. By expressly proving for the strict ways a contract can be terminated the legislature intended to make it clear that termination of a permanent contract on notice must be removed from our law. If one is to peruse the parliamentary debates on this issue, the clear message that was sent out was that the common law rule of terminating a contract on notice must not be available in the Labour Act. This was the intention of the legislature, and this is how section 12(4a) of the Labour Act must be interpreted.
The interpretation that perpetuates the termination of permanent contracts on notice does not save and protect the legislative intention to preclude the termination on notice. The section must not be used to revive the ghost of 2015 which saw thousands of employees losing their jobs after the Zuva Petroleum judgement.
 https://www.merriam-webster.com/dictionary/inquiry <Accessed on 14 July 2023>.