TERMINATING AN EMPLOYEE: WHY THE REAL REASON AND THE MANNER OF DISMISSAL BOTH MATTER
Employment contracts commonly contain termination clauses.
An employer may therefore look at the contract and conclude:
“We are entitled to terminate on notice. We will pay the required notice and end the relationship.”
But what if the real reason for termination is alleged poor performance? Can an employer avoid dealing with the performance issue fairly simply by relying upon a contractual notice clause? And if an unlawful termination is carried out in a manner that causes genuine mental anguish and distress, can that affect the damages recoverable? These were among the important issues considered by the Supreme Court of Zambia in Harris v Mopani Copper Mines PLC [2016] ZMSC 274.
The case contains valuable lessons for employers, employees, HR practitioners and lawyers.
Its central message is:
In employment law, the Court may look beyond the mechanism used to terminate employment and examine what was really happening.
The Dispute
Mr Harris was employed as a Senior Rock Mechanics Engineer at Mopani Copper Mines. Mopani relied upon a contractual notice provision when terminating his employment. However, the Industrial Relations Court found that the real reason underlying the termination was alleged poor performance. That created an important problem. Harris had not been properly assessed or given an adequate opportunity to respond to the concerns about his performance. He successfully challenged the termination.
A Notice Clause Should Not Become a Shortcut Around the Real Problem
Suppose an employment contract allows either party to terminate on one month’s notice.
Management believes an employee is performing badly.
But instead of:
- identifying the performance concerns;
- communicating them;
- assessing the employee;
- giving the employee an opportunity to respond;
management simply says:
“We are exercising the notice clause.”
The legal question may not necessarily end there.
Where the evidence shows that performance was in fact the reason behind the decision, the Court may have to consider whether the employee was treated fairly in relation to that issue.
The original DAC article puts the lesson particularly well:
“Employers: don’t hide a performance problem behind a notice clause. Deal with the real issue fairly.”
Poor Performance Should Be Managed
A well-run organisation should not wait until the day of termination to tell an employee:
“You have not been performing.”
Performance management should be a process.
Depending upon the applicable legal and contractual framework, good practice may involve:
- Clear expectations — What was the employee required to achieve?
- Assessment — How was performance measured?
- Communication — Were concerns raised with the employee?
- Opportunity to respond — Was the employee allowed to explain?
- Improvement — Was an appropriate opportunity given to address shortcomings where required?
- Documentation — Can the employer demonstrate what occurred?
Good performance management is not simply an HR exercise. It is part of legal risk management.
The Manner of Termination Can Also Matter
Harris’s case did not end with the finding concerning his termination. He also sought compensation for mental anguish and distress arising from the circumstances in which his employment ended. The Supreme Court recognised that mental anguish and distress can, in appropriate circumstances, constitute a separate head of damages. On the facts, Harris received an additional one month’s salary under that head.
This provides employers with another important lesson: How an employee is terminated can matter.
This Does Not Mean Every Unhappy Employee Gets Additional Damages
The qualification is important. Losing employment is naturally distressing. That does not mean every employee who is upset about termination automatically receives additional damages. The claim must have a proper legal and evidential foundation. Your source article expressly cautions against interpreting the decision in that way.
A lawyer claiming additional damages should therefore consider:
- Was this head of damage properly pleaded?
- What conduct caused the alleged distress?
- What evidence supports it?
- Is there a sufficient connection between the wrongful conduct and the claimed harm?
The fact that a claim sounds emotionally compelling does not eliminate the need for evidence.
Dignity in the Workplace
There is also a broader management lesson. An employer may eventually have perfectly legitimate reasons for ending an employment relationship. But termination should still be handled professionally. An organisation’s values are tested not only by how it recruits people, but also by how it allows people to leave.
Employees who are departing should, where circumstances permit, be treated with:
- clarity;
- professionalism;
- procedural fairness;
- dignity.
This is not merely kindness.
Poorly handled exits can create:
- litigation;
- reputational damage;
- employee distrust;
- unnecessary workplace disruption.
There Was Also an Important Lesson for Lawyers
Harris v Mopani Copper Mines was not only an employment-law case. It also contained an appellate-advocacy lesson. Harris raised several grounds of appeal. The Supreme Court dismissed two of them because they were improperly drafted: they contained too much argument and narrative instead of concisely identifying the alleged errors.
That gives appellate practitioners a simple rule:
A ground of appeal identifies the error. The submissions explain why it was an error.
Those are different functions.
Why Concise Grounds Matter
Suppose a lawyer drafts a ground of appeal that runs for two pages.
It contains:
- evidence;
- argument;
- quotations;
- criticism of witnesses;
- legal submissions.
The lawyer may believe this demonstrates thoroughness. It may instead obscure the actual error being alleged. A properly drafted ground should allow the appellate Court to understand quickly:
What exactly is said to have gone wrong below?
The detailed argument belongs in the heads of argument or submissions. Good advocacy is not measured by the number of words used. Sometimes precision is more persuasive than volume.
The Case Therefore Speaks to Three Different Audiences
Employers
If poor performance is the issue, manage poor performance properly. Do not assume a notice clause necessarily eliminates every question about the true reason and process.
Employees
If claiming additional harm from the manner of termination, establish the necessary evidence and legal basis.
Lawyers
Draft grounds of appeal with discipline.
The original DAC article captures all three lessons neatly:
“Employers: don’t hide a performance problem behind a notice clause. Deal with the real issue fairly. Employees: if you claim additional harm from the manner of termination, be prepared to prove it. Lawyers: good advocacy begins with good drafting.”
The DAC View
At Dzekedzeke and Company, we believe Harris v Mopani Copper Mines PLC illustrates something fundamental about employment relationships. A contract matters.
But so do:
- the real reason for the employer’s decision,
- the procedure used, and
- the manner in which the employee is treated.
For employers, the best defence to an employment dispute often begins long before termination—with proper management, communication and documentation.
For employees, identifying a wrong is only the beginning; the loss and additional harm claimed must be properly established.
And for lawyers, the case reminds us that the same discipline we expect from employers should appear in our advocacy:
Identify the real issue. State it clearly. Prove what needs to be proved.
Employment disputes are about contracts and compensation. But they are also about procedure, professional judgment and human dignity.
For legal advice on employment disputes, termination, workplace procedures and appellate litigation, contact Dzekedzeke and Company.
Based on Harris v Mopani Copper Mines PLC (Appeal No. 167 of 2013) [2016] ZMSC 274 (29 November 2016).
