It is understood that termination of the employment contract is the means by which the parties to an employment relationship can terminate the employment contract, and for all intents and purposes it must comply with the formalities and procedures laid down in the Labor Law. Failure to comply with the legal formalities can be detrimental to the counterparty, especially to the worker who, as a result of losing his job, simultaneously loses his source of income.
Therefore, in view of this inconvenience, this article aims to address some aspects that should be taken into consideration during the process of terminating an employment contract.
Let’s take a look:
Article 85(3) of the Constitution of the Republic of Mozambique states that “a worker may only be dismissed in the cases and under the terms provided for by law”. In this respect, the first thing to do after receiving notice of termination of employment is to check that the dismissal and/or the reasons for it are in fact covered by law.
Considering that the law that regulates the employment relationship between the employee and the employer is the Labor Law (Law 23/2007 of August 1), it is in this instrument that we can find such provisions for the proper framework.
Once we get to the Labor Law, it’s important to identify which article actually deals with the termination of the employment contract. The article in question is 124/1, al.d), which states that “the employment contract may be terminated by either of the contracting parties with just cause”. What interests us in this article is the part referring to the subjects who can invoke the termination of the contract and the need for the existence of just cause. Therefore, it can be concluded that only the employee and the employer (either directly or through the person who represents them in the company) can speak of termination when there are grounds for it, in compliance with the Constitution.
Having said that, it’s important to check which situations can be considered just cause. Article 127(1) of the Labor Law states that: “In general, just cause for termination of the employment contract is considered to be serious facts or circumstances that make it morally or materially impossible to maintain the established contractual relationship.” Also in this article, in n⁰.4, the legislator describes, in an exemplary manner, the situations he considers to be just cause, namely:
a) Manifest unfitness of the worker for the adjusted service, verified after the probationary period;
b) Culpable and serious breach of employment duties by the employee;
c) Detention or imprisonment if, due to the nature of the employee’s duties, it jeopardizes the normal functioning of the services;
d) Termination of the contract for economic reasons of the company, which may be technological, structural or market, as provided for in article 130 of this Labor Law;
Article 130 of the Labor Law The above-mentioned Article 130 of the Labor Law also contains a number of situations which are considered to be objective causes [1] for terminating the employment contract: structural reasons (those relating to the reorganization or restructuring of production, a change in activity or a lack of economic and financial resources which may result in an excess of jobs), technological reasons (those relating to the introduction of new technology, new processes or working methods or the computerization of services which may require a reduction in staff), or market reasons (those having to do with difficulties in placing goods or services on the market or a reduction in the company’s activity) and is essential to the company’s competitiveness, economic reorganization, administrative or productive reorganization.
If you conclude that none of the above conditions apply, you can challenge the just cause for termination invoked by the employer within six months of the date of notification.
However, if any of the above conditions are met, that’s not the end of it. It is now important to understand whether certain essential formalities have been observed, such as written notice addressed to you (of the termination and the planned date of termination), written notice to the trade union body (in the absence of such a body, to the workers’ committee) and written notice to the employer (in the absence of such a body, to the workers’ committee).
However, if any of the above conditions are met, that’s not the end of it. It is now important to see whether certain essential formalities have been observed, such as written notice addressed to you (of the termination and the planned date of termination), written notice to the trade union body (failing that, to the workers’ committee or representative trade union association) and to the Ministry of Labor, no less than thirty days in advance.
If the above conditions have not been met, you have the right to raise these situations with the competent authorities.
However, if the termination complies with the law, the employer must compensate you based on the following criteria:
a) Open-ended contracts – remuneration (including seniority bonus) expressed in multiples of national minimum wages and the length of service provided;
b) Fixed-term contracts – the remuneration due between the date of termination and the date agreed for the end of the contract.
In short, although terminating an employment contract can be a difficult experience, it can be overcome with determination, patience and proactivity. By understanding the contours of the notice of termination, it’s up to you to check for certain situations that could result in the termination in question not being successful, thus keeping your job.
In conclusion, it can be said that when you are in a situation of termination, it is always good to observe the law, but also to obtain legal assistance. If the termination is in fact verified, we can turn this moment of transition into an opportunity for professional growth and development.
Brief Profile:
Lúcia Macuácua, Lawyer, Entrepreneur and Vice-President of the City Provincial Council of the Mozambique Bar Association.
