Elizabeth Chitiga v National Social Security Authority

The applicant was employed as General Manager of the respondent (NSSA) under a 3-year fixed term contract signed on 23 June 2016, effective from 1 July 2016 to 30 June 2019. On 6 April 2018, the respondent's Acting Board Chairperson terminated the contract without notice by letter, citing 'current issues' and offering to pay the balance of 15 months' salary and benefits (the remainder of the contract term). The applicant was barred from entering the workplace by security guards. She did not accept the unilateral termination and launched an application for a declaratory order that the employment contract remained extant until lawfully terminated. The applicant argued the termination was unlawful as it was done without consultation, without following due process, and violated principles of administrative fairness under the Administrative Justice Act.

• Whether the respondent was entitled to unilaterally accelerate the expiry of a fixed-term employment contract by paying out the balance of the contract
• Whether termination of a fixed-term contract without cause required procedural fairness and consultation
• Whether this was a proper case for the exercise of the court's discretion to grant a declaratory order under section 14 of the High Court Act
• Whether an employer has an obligation to provide actual work to an employee or merely to remunerate the employee
• Whether reinstatement could be granted where the employment contract was about to expire by effluxion of time

The application was dismissed with costs awarded to the respondent.

The binding legal principles established are: (1) An employer is not obliged to provide actual work to an employee but is generally only obliged to remunerate the employee; (2) An employer is entitled to buy out a fixed-term employment contract by paying the balance of remuneration and benefits that would have accrued for the remaining contract period; (3) A declaratory order under section 14 of the High Court Act will not be granted where the result would be of merely academic interest and no tangible and justifiable advantage would flow from the grant of the order; (4) Employment contracts can be terminated in no-fault situations, and an employer cannot be compelled to continue an employment relationship against its will; (5) The appropriate remedy for unlawful termination is damages (in lieu of notice or reinstatement), which should be pursued in the Labour Court, not reinstatement through declaratory relief.

The court made several non-binding observations: (1) That 'employment is not a marriage' and 'is not an engagement in perpetuity' - neither party can be tied to the relationship forever against their will; (2) The court acknowledged there may be exceptional cases where performance of work is a prerequisite, but this was not one of them; (3) The court noted that the law recognizes instances where the employment relationship deteriorates to untenable levels through no fault of either party, justifying termination; (4) The court observed that even if it were wrong in concluding the employer had a right to accelerate termination, it would still not exercise discretion in favor of the applicant because no prejudice was established and the contract was about to expire naturally; (5) The court noted that while the applicant argued she had a legitimate expectation based on a Cabinet decision to rationalize CEO tenure to 5 years, this argument was not developed or properly substantiated.

This case is significant in Zimbabwean labour law as it confirms and reinforces several important principles: (1) an employer's right to terminate a fixed-term employment contract by buying it out through payment of the remaining contract value, even in the absence of fault; (2) the principle that employers are not obliged to provide actual work to employees, only remuneration; (3) the limited scope of declaratory relief under section 14 of the High Court Act in employment matters, particularly where the matter has become academic or where no tangible advantage would flow from the relief; (4) that employees aggrieved by termination should seek damages in lieu of reinstatement through the Labour Court rather than declaratory orders; and (5) courts will not compel continuation of an employment relationship against an employer's will, recognizing that employment is not an engagement in perpetuity.