Debunking Attestation Concept in Zambia

Somewhere in June this year, I welcomed a horde of various government inspectors who made an impromptu visit on us. These included those coming from labour office, immigration, engineering institute and Board, OP, ZP etc., the bottom case was that they had come for inspections.

We welcomed them with both hands and without more ado, they made several requests of certain documents. The went through them noting down what they thought was not in the right place or missing links. I was called back into the board room where they had remained.

Among many questions I was asked, was one on the attestation of contracts. We had casual employees as well as long term in our employ. They quizzed me on why the contracts where not attested by the proper officer as espoused by the law. I explained and tried to put them into the perspective of the law, but the horde seemed to be steadfast on their stance of how they understood the law. I never wanted to be seen like I was underrating them, I obliged and promised to visit labour office to which I did. I was impressed with the level of knowledge the Labour Officer I had found in the labour office at BOMA possessed unlike the senior officers who visited me. There was something peculiar I found in him which is for another article to quench.

The question that begs answers now is, what is the position of the law in regard to attestation in Zambia. This can be answered with an obvious extract from our ECA 2019 under s25 as below

1.      An employer shall, within thirty days of entering into a written contract of employment under section 22 (5) submit three copies of the contract to an authorized officer for the purpose of attestation.

2.      An employer who contravenes subsection (1) commits an offence and is liable, on conviction, to a fine of one hundred penalty units for each day that the offence continues

Now, subsection 1 above has referred to s22 (5) and this is what is says

5.      Where an employee is illiterate or cannot understand the language in which the contract is written, or the provisions of the contract of employment, the employer shall have the contract attested in accordance with this Act and explained to the employee in a language that the employee understands. Underline for my emphasis

This is now very interesting, given the position of the law on attestation as above. Lets now turn to case law and buttress it up with the case in Kenny Sililo v Mend-A-Bath Zambia Limited and Spencon Zambia Limited 2014 Appeal No. 168 SCZ. This is what the supreme court had to say and reason thereof;

“The respondents' argument on the issue of non-attestation of the contract of employment was simply that this was overtaken by the directive from the Labour Officer which observed that since the contract was unattested, the appellant could be treated as a permanent worker and be paid notice pay as well as travelling, lunch and housing allowances in the termination which the respondent fully complied with.

We have carefully considered the issue of non-attestation of the contract, which is the substantive issue raised under ground four of the appeal. The appellant suggests in his arguments that the omission to have the contract attested deprives the employer of any right under it. This claim can, of course, not be a correct interpretation of section 32(2) of the Employment Act. Section 29 of the Employment Act provides as follows:

“Subject to the provisions of subsection (3) of section thirty-two, a written contract of service made under the provisions of this Subject to the provisions of subsection (3) of section thirty-two, a written contract of service made under the provisions of this Provided that where the parties to a contract of service which has not been attested in accordance with the provisions of this section are literate and entered into the contract in good faith, such contract shall be enforceable as if it had been attested under this section”

The appellant prides himself as an Accountant who was being paid under a lower scale. He is no doubt literate. In our view, his contract of employment with the respondents falls within the proviso to section 29 of the Employment Act. He understood the contract of employment he entered into and thus did not require the protective intervention of a proper officer as envisioned in section 29 of the Employment Act.

Even assuming that the contract of employment required attestation, we have serious reservations as to whether failure to present a contract of employment for attestation could divest only one party of his rights under the contract of employment against the other party. The mutuality of the obligations assumed by the parties, which in effect create the contractual bond, would be lost were the interpretation ascribed to section 32 by the appellant to be correct. In fact, there would be no contract to talk about.

See the underline, the court has touched on the doctrine of Mutuality of Obligation which is concept that bounds both parties to a contract an obligation to perform their obligations or the law will treat the agreement as if neither party is bound to perform. When an employer and employee exchange promise to perform, one party may not be given the absolute and unlimited right to cancel the contract. Such arrangements attempt to allow one party to perform at her leisure, while ostensibly not relieving the other party of his obligations to perform.

Thus, in nutshell, the premise of the attestation concept and that of the role of the proper officer as the case may be, can be found still in the act when you look at s26 under subsection below

1.      An authorised officer shall, on receipt of a written contract of employment for attestation under section 25, ensure that—

a.      the employee fully understands and freely consents to the written contract of employment and that the employee’s consent is not obtained by coercion or undue influence or as a result of misrepresentation or mistake;

b.     the terms of the written contract of employment are not in conflict with this Act or any other written law;

c.      where applicable, the provisions relating to a medical examination under section 17 is complied with;

d.     the employee makes a declaration that the employee is not bound by any previous written contract of employment; and

e.      the written contract of employment is, in all circumstances, equitable.

The last part of the obligation under the proper officer is one in subsection 4 below

Where an authorized officer refuses to attest a written contract of employment under subsection (2)(b), the contract is void and the authorized officer shall give an employer an opportunity to rectify the written contract of employment and re-submit that written contract for attestation within a period specified by  the authorized officer.

Subsection (2)(b) states

An authorized officer shall, within thirty days of receipt of a written contract of employment under section 25

a.      attest the written contract of employment; or

b.     refuse to attest the written contract of employment where the requirements of subsection (1) are not met and give reasons for the refusal.

By and large, if only we can have proper/authorized officers who understands and are well vested to interpret the law than basing much of the arguments on what they have been taught through experience or heard. We really need a lot of those with basic foundation of the tenets of labour management in these offices so that they are able to provide the much-needed guidance on the labour law to both parties. Remember, the office of labour is both meant to help the employer as well as employees in giving accordance in light of the law. My suggestion is to have minimum prescribed specifications for this office for it to be effective.

 Author Peter Chishika | MZIHRM

HR Practitioner and Labour Law Consultant