1. The document discusses the effects of employment contracts and termination of employment contracts under South Sudanese law. It outlines the key obligations and rights that stem from a contract of employment, such as payment of wages and defining the scope of work. 2. Methods of terminating employment contracts are described, including termination by notice or payment in lieu of notice. Procedures for termination due to gross misconduct are also provided. Unfair dismissal and available remedies like reinstatement, re-engagement, and compensation awards are explained. 3. Dispute resolution processes for contested terminations are summarized, including reporting disputes to the labor commission and applying to the labor court. The burden of proof in such proceedings is also covered.

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Dr John Garang Memorial University of Science and Technology
Jonglei State- Bor
College of Management Sciences
Notes Part Two (2) Date: March 7, 2022
Effects of Employment Contract
The major effect of a contract of service is that from the date of the commencement of the
contract which is usually expressly stated in the letters of appointment given to the employee, the
employee is bound by the terms and conditions of service consented to by him. By this he is
subject to the whims and caprices of the employer provided the exercise of control by the said
employer is not in violation of any existing law and if the orders and directions are not illegal.
The contents of a contract of employment which forms the basis of the rights, duties and
obligations of the parties under the contract usually varies from one organization to another. But
generally, there are certain elements which are common in most categories of employment.
Some of Payment of wages
One of the major effects of a contract of employment is that an obligation as to payment of
wages is imputed on the employer and this is usually affected in the forms of remuneration.
By the provision of Section 1 (1) - (3) of the labour act the issues relating to the basic salary of
the employee is adequately protected. This also covers housing or housing allowance, leave
allowance, end of year bonus, overtime and sick-pay. The statute makes it a duty for the
employer to ensure that these issues are adequately taken care of and by that it implies that from
the date of the commencement of the contract of employment the employer is answerable to the
welfare of the employee.
2) Area of services
It is the usual practice for the contractor letter of employment to define the area of operation of
the employers work. Therefore, it will be tantamount to a breach of contract and a dismissible
offence for the employee to refuse a reasonable request for a transfer to another location, having
consented to work for his employers in any part of the country where it operate.

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In BOVZOVRU V OTTOMAN BANK [1930] A.C. 271 DC, the appellant, a bank employee
of 22 years standing refused to accept a transfer to a branch in Turkey on the grounds of his lack
of knowledge of Turkish language and the hostile attitude of the civil authority he would have to
deal with there. He also maintained that he was not contractually oblige to accept such move but
the court held that the respondent were giving a reasonable and lawful order, which the appellant
was bound to obey, that is disobedience was justifiably treated by the respondents as faute grave
under article 5 of the regulations, and that his dismissal was justified.
On the contrary, in OTTOMAN BANK V CHAKARION [1930] A.C.277, an employee of the
same bank who had variously escaped execution at the hands of the Turkish forces was held
entitled to leave Constantinople, which was under Turkish control, despite being ordered by his
employer to remain. The effect of a contract of employment as implied by these decisions is that
where the order is lawful, the employee is bound to obey while an unlawful order will not be
enforced even though the employee consented to it at the time of taking up the employment.
The overall effect of contracts of employment on the parties is that they are bound by the content
of the agreement provided the mode or ways by which such obligations are to be executed are
not unlawful.
TERMINATION OF CONTRACT OF EMPLOYMENT
Termination or dismissal is the bringing to an end of the employment relationship. Since a
contract of employment is like any other commercial contract, in determining whether a
cessation of employment has occurred, one has to look into the contract from which the
relationship emanates.
The three possible types of contracts of employment are:
(1) contract determinable by notice;
(2) contract for a fixed term ;
(3) contract which expires by performance or at the happening of a specified event.
Methods of Termination of contracts of employment
By the agreement of the parties, namely:
(a) By notice or payment in lieu of notice- Termination by employer should be by giving
notice – the period of notice will be in the contract. In law Labour Act 2017 and at common
law the employer is bound to give reasonable notice. For instance, section 72 of the
Labour Act, 2017:
TERMINATION OF EMPLOYMENT CONTRACT
Section 72 of the Labour Act 2017: Notice of Termination :

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(1) An employment contract may be terminated by either party:
a) after continuous service by the employee for one year or more, one month notice to
the other party;
b) after continuous service by the employee for six months or more, but less than one
year on two weeks notice to the other party;
c) After continuous service by the employee for less than six months, one week notice
to the other party.
Contract can end before end of notice period if pay in lieu of notice accepted – or summary
dismissal is justified.
(2) Subject to sub-section (3) (d) an employment contract for a definite period or for a
specified task shall come to an end upon expiry of the defined period or completion of the
specified task without either party giving notice to the other party.
(3) Notwithstanding the provisions of this section nothing shall prevent:
(a) The parties agreeing to a longer period of notice of termination;
(b) The employer waiving the right to receive notice of termination upon the request of an
employee;
(c) The employee accepting payment, instead of notice of termination, equivalent to the total
wages/salaries and other entitlements to which the employee shall have been entitled for the
period of notice required;
(d) Termination without notice for gross misconduct in accordance with section 76 of this Act.
Reasons/Grounds for which an employer cannot terminate an employee’s employment contract:
Section 73 (2), Labour Act 2017 provides that an employment contract shall not be terminated
for the following reasons:
a) If an employee is a member of or participant in any activity of trade union outside
working hours or with the consent of the employer within working hours;
b) If an employee is seeking office as or acting or having acted as representative of other
employees at workplace of the employer;
c) If employees are filing a complaint or grievance or participating in proceedings against
the employer involving an alleged violation of this Act, other laws or regulations or the
terms of a Collective Agreement or award;
d) any of the grounds of discrimination prohibited by section 6 of this Act;
e) absence of an employee from work for reasons acceptable according to the provisions of
this Act or authorization by the employer or
f) Failure by the employer to provide an employee with any entitlements provided for under
this Act or any other applicable law, Collective Agreement or arbitration award.

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(3) An employer shall provide an employee with a written statement of the reason for
termination:
(a) at the time of giving notice of termination to an employee; or
(b) in circumstances where no notice can be served at the time of termination of the employment
contract.
Procedures an employer should follow in Termination of an employee for gross misconduct
The law requires that an employer should not terminate the employment of an employee for
reasons relating to employment of employee at work unless;
a) The employee misconduct constitutes gross misconduct;
b) The employer has previously notified an employee of the possibility of termination in the
event of gross misconduct by the employee; and
c) The employer has established that the employee has committed an act of gross
misconduct, having first:
(i) explained the grounds on which an employee is alleged to have committed an act of gross
misconduct;
(ii) provided the employee with the evidence on which the allegation is made;
(iii) allowed the employee an opportunity to consider and respond to the allegation and
evidence on which the allegation is based;
(iv) Given due consideration to all circumstances and available evidence relevant to the
allegation, including any response given by an employee under clause (iii) of paragraph
(c) above.
(2) Employee misconduct shall constitute gross misconduct where it is of such gravity as to
make it impossible to continue or to resume the necessary relationship of mutual trust between:
a) The employee and the employer or
b) The employee and other employees.
The law requires the employer that an employee shall be entitled to have a representative like his
lawyer or member of his trade union present during any discussions regarding an allegation of
gross misconduct.
Where the employer has established the gross misconduct of an employee in accordance with
this section, the employer may terminate the employment contract without giving notice as
required by section 72 of this Act.
The general rule is that termination of employee’s contract of employment must follow
prescribed procedures laid down by law.
The general rule since the decision of the Nigerian Supreme Court in SHITTA BAY V F.P.S.C.
(1981) N.S.C.C. VOL. 12, 19, is that when a statute, or a subsidiary instrument, provides the

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procedure to be followed in the determination of a contract of employment, a statutory body
must comply with it otherwise, the termination will be declared null and void.
Dismissal
1. An employee can class himself/herself as dismissed if:
(a) contract terminated by employer with or without notice;
(b) (She/he is employed on a fixed-term contract which expires without being renewed,
if for genuine fixed term – now to be treated no less favorably than permanent
employees by Fixed Term Employees.
2. A constructive dismissal is one where the employee resigns his/ her position and claims it
as an effective dismissal resulting from the conduct of the employer:
a) question for tribunal is what conduct by the employer justifies the employee claiming
constructive dismissal;
b) must be conduct representing breach going to root of contract (Western Excavating v
Sharp (1978);
c) but the fact that there is a constructive dismissal does not necessarily mean that the
dismissal is unfair – that must still be proved;
d) Generally such conduct is unilateral changes in terms of employment or breach of
duties towards employee e.g. failing to protect from harassment.
3. Summary (instant) dismissal occurs where the employer dismisses without notice for
disciplinary breach.
4. Only possible where justified by the employee’s conduct:
a) so usually based only on gross misconduct;
b) originally gross insubordination was sufficient (Wilson v Racher (1974));
c) Acts of dishonesty also justify summary dismissal (Sinclair v Neighbour (1967));
d) as can acts of drunkenness (Hadden v Van den Bergh’s Foods (1999)); or
e) acts of violence.
Section 79 (3) of the Labour Act, 2017 provides that “An employer is entitled to dismiss summarily
an employee and the dismissal shall be termed justified, where the employee has, by his or her conduct
indicated that he or she has fundamentally broken his or her obligations arising under the employment
contract.”
Summary Termination
Summary Termination occurs in the following circumstances:
1) If an employee leaves employment because the conduct of the employer made it no
longer reasonable to continue in employment, the employer is taken, in the absence of
proof to the contrary, to have terminated an employee’s employment contract.

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2) Summary termination shall take place when an employer terminates the service of an
employee without notice or with less notice than that to which the employee is entitled by
any statutory provision or contractual term. (See section 79 of the Labour Act, 2017).
Unfair Dismissal
Automatically unfair dismissals
a) for legitimate trade union activities membership or non-membership or recognition (For
legitimate Trade Union activities) or
b) industrial action if unequal treatment; or
c) unfair selection for redundancy;
d) dismissal related to pregnancy or parental leave or dependent care leave (Any reason
connected to pregnancy);
e) the dismissal relates to making a protected disclosure (‘whistle blowing’);
f) For asserting any statutory right e.g., discriminatory dismissal or remuneration etc.;
g) the dismissal is for a refusal to work hours in excess of those required under the Working
Time Regulations or Labour Act 2017;
h) Dismissals for industrial action where there is unequal treatment.
Determining whether dismissal is fair:
Tribunal can consider numerous factors in determining the fairness of a dismissal:
1) duty to consult employee at all stages;
2) existence/effect of express or implied terms;
3) breaches of mutual trust and confidence;
4) introductions of new rules or procedures;
5) procedural faults for example, natural justice or the right to a fair hearing, investigations,
informing labour office etc.;
6) instances of gross misconduct;
7) blanket dismissals;
8) selection criteria in redundancy (Redundancy means the loss of employment, occupation, job or
career by voluntary means through no fault of any employee, involving termination of employment at the
initiation of the employer, where the services of an employee are superfluous and the practice commonly
known as abolition of office, job or occupation and loss of employment). The employees to be terminated
for redundancy should not be less than 10. (See section 77, Labour Act 2017.
9) breaches of duty of fidelity;
10) internal hearings and appeals procedure;
11) nature of sickness;
12) .Tribunal will use a statutory test to determine whether the dismissal is fair taking into
account:
a) circumstances of case;
b) behaviour of employee;
c) proper use of disciplinary or grievance procedures;
d) Consistency of treatment.

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1. Employer must act reasonably (British Home Stores v Burchill (1978)) – and base decision to
dismiss on genuine belief, based on reasonable grounds, following reasonable investigation
that there were grounds to justify dismissal (the range of reasonable responses test).
Cancellation of Termination:
If, after the day on which a notice of termination expires, the employer requests an employee to
remain in employment, or an employee continues working without the express dissent of the
employer, the notice of termination shall be deemed to be null and void and the employment
contract shall still be valid.
Similarly, when an employer allows an employee to keep working after notice period has ended,
the law deems employment contract to have been renewed on similar terms and conditions.
Disputes regarding Termination of Employment Contract:
If there arises any dispute about termination of employment contract, employee may report the
dispute in writing to the Commission for conciliation in accordance with Section102 of this Act;
A dispute under this section shall be reported to the Commission within thirty days from the date
of the termination or, if it is a later date, within thirty days of the employer making a final
decision to overturn or uphold the termination.
If the dispute remains unresolved following conciliation, an employee may apply to the Labour
Court.
An application to the Labour Court shall be made within 30days from the date on which the
Labour Commissioner issues a certificate under section103 of this Act.
The reporting of a dispute to the Commission shall be free of charge.
This section shall not apply to employees serving under probationary period.
Burden of Proof in Disputed Termination Proceedings:
In proceedings before the Labour Court concerning a dispute in which an employee alleges that
the termination was for an invalid reason, the employee shall establish the existence of a
termination.
If the existence of the termination is established, the employer shall prove that the termination
was effected:
a) in accordance with the requirements of the Labour Act 2017, or

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b) for a valid reason and in accordance with fair procedure, taking into account all relevant
circumstances.
Where the employer fails to satisfy the requirements of the Labour Act for termination of
employment contract, the employee may apply to the Labour Court.
In other cases, the Labour Court shall make decision of unfair termination if:
a) an employee establishes that a termination was effected other than in accordance with
the requirements of this Chapter; and
b) The employer fails to prove that the termination was otherwise effected for a valid
reason and in accordance with fair procedure.
Remedies for Unfair Termination/Dismissal from employment
There are three available remedies for an unfair dismissal:
1) reinstatement;
2) re-engagement;
3) a compensatory award.
In fact the first two would rarely be granted because of difficulty of administering them or
breakdown in relations. Test for tribunal is ‘practicability’ not ‘possibility’.
1. Reinstatement:
Reinstatement means that the employer must take the employee back in the same job.
The effect is as if the employee has not been dismissed. So continuity of employment is
protected; and
The employee is eligible for back pay, and any improvement in terms sh/he would have received
if still in work. That means the employee will be paid all the benefits he would have received had
the employer not unfairly terminated or dismissed him from his employment.
Re-engagement:
 means that the employee must be taken back on by the employer or an associated
employer on terms comparable with those sh/he enjoyed when dismissed;
 the employer only has to do what is reasonably practicable to achieve this end;
 again employee should be entitled to back pay etc;
 continuity of employment is again protected.
Compensatory award:
 broken down into two parts: a basic award, and a compensatory award;
 the basic award is calculated in a similar way to that in redundancy – according to years’
service x a week’s pay or £400 (in 2011) (whichever is the lower);
 amount of compensatory award is what tribunal thinks is ‘just and equitable in all the
circumstances,’ and

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 in any case the statutory maximum for an unfair dismissal award is currently £65,300 in
UK;
 there are special calculations for discrimination claims which include injury to feelings;
Remedies for Unfair Termination of Employment Contract under the Labour Act, 2017
section 85:
(1) Where the Labour Court makes a decision on unfair termination, the Court may order the
Employer:
(a) to reinstate an employee in the position held by an employee or relocate an employee in a
reasonably comparable position and on the same terms and conditions enjoyed by an employee
prior to the termination;
(b) to treat the employment contract as having continued without interruption on an employee
period of continuous service, where reinstatement or re-engagement is ordered;
(c) to pay an employee an amount equivalent to any wages/salaries lost by such employee as a
result of the termination, where reinstatement or re-engagement is ordered;
(d) to pay an employee an amount by way of compensation as determined by the Labour Court in
accordance with sub-section (3) below.
(2) The Labour Court shall order reinstatement or re-location under paragraph (a) of subsection
(1) above, unless the employer proves that:
(a) It is not possible to resume the necessary relationship of mutual trust and confidence between
the:
(i) employee and the employer; or
(ii) employee and other employees of the employer.
(b) The organization of work in the enterprise has so substantially changed that:
(i) the position held by an employee prior to the termination no longer exists;
(ii) There is no reasonably comparable position available for the employee.
(3) For the purposes of determining the amount of an order for compensation under paragraph
(d) of sub-section (1) above, the Commissioner or Labour Court shall determine, a fair and
equitable amount taking into account:

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(a) the circumstances in which the termination took place, including the extent to which an
employee caused or contributed to the termination;
(b) the length of service by an employee with the employer;
(c) the reasonable expectation of an employee as to the length of time for which employment
might have continued but for termination;
(d) any opportunity available to an employee for securing comparable or suitable employment
with another employer;
(e) any reasonable expense incurred by an employee as a consequence of the termination;
(f) any failure by an employee to mitigate the losses attributable to the unfair termination and
abscondment;
(g) Any compensation, including ex-gratia payment, in respect of termination paid by the
employer and received by an employee.
(4) No order shall be made for the recovery of costs incurred by a party to an unfair termination
arbitration or adjudication, unless the Labour Court is satisfied that the dispute was reported,
pursued or defended by the other party in a manner that was frivolous or vexatious.
Rights of an employee after termination of employment Contract:
A) Severance Pay
1. According to section 80 of the Labour Act 2017, an employer shall pay severance allowance
where an employee has been in his or her continuous service for a period of six months or
more and where any of the following situations apply:
a) the employee is unfairly dismissed by the employer;
b) the employee dies in the service of his or her employer;
c) the employee terminates his or her contract because of physical incapacity;
d) the contract is terminated by reason of the death or insolvency of the employer.
2. No severance allowance shall be paid in circumstances where an employee:
a) is summarily dismissed with justification;
b) abandons his or her employment, or absconds from his or her place of work without leave
for a period of more than seven days without any explanation being provided to the
employer; and
c) contract which is terminated is a probationary contract.
Calculation of severance pay shall be negotiable between the employer and the employees or the
trade union that represents them.

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Section 77 (3), Labour Act, 2017: “an employee whose employment is terminated on account of
redundancy, after continuous service of one year or more, shall be entitled to receive, in addition
to any other entitlements due to such employee upon termination, severance pay equal to two
week wages/salaries for each completed year of continuous service with the employer.
B) Gratuity
C) Gratuity: this is an appreciation that an employer pays to the employee for every year of
continuous service completed with the employer. Gratuity is equivalent to last month gross
salary of an employee.
a) An employee who completes a period of not less than one year of continuous service
shall be entitled to a gratuity pay to be calculated as follows;
b) if he or she has completed a period of not less than one year, and not more than ten years,
he or she shall be entitled to one month gross salary in respect of each year of service;
c) if he or she has completed more than ten years, he or she shall be entitled to one and a
half of month’s gross salary in respect of each year; and
d) if he or she has completed more than fifteen years, he or she shall be entitled to one and
three quarters of a month’s gross salary in respect of each additional year of service,
provided that the gratuity shall not exceed 36 months gross salary.
e) Notwithstanding sub-section (1) above, gratuities shall be calculated on the basis of the
last month gross salary.
For instance, if an employee works for an employer for a duration of 3 years with his last month
gross salary as $2,000. His gratuity would be $2,000×3= $6,000.
D) Overtime:
1. Where an employee works beyond the maximum normal working hours, the extra
working hours shall be considered overtime.
2. Overtime shall not apply to employees employed in position classified by an employer as
senior management position.
3. In case of employees subject to the Civil Service Act, 2011, in position classified as
Leadership or Super Grade Category position.
4. an employee may be granted leave in lieu of overtime.
5. An employer shall pay an employee for overtime on the date of the payment of wages
and not later than a month from the date on which the overtime work was performed, at
the rate of at least:
a) one and one-halftimes an employee regular hourly rate, if the overtime work was
performed on an ordinary working day; and
b) two times an employee regular hourly rate, if the overtime work was performed on a
weekly holiday.
E) Untaken Annual Leave:

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1. An employee shall receive financial compensation for any annual leave not taken by or
paid out to an employee upon termination of employment, irrespective of the cause of
such termination. For instance, if an employee had accrued 26 untaken annual leave days
and his monthly salary was $3,300 his financial compensation shall be calculated as
follows:
$3,300/20×26= $4,290.
F) National Social Insurance (NSIF) Contributions):
Employer contributes 17% and employee contributes 8% of the employee’s monthly salary.
Therefore, if an employee’s monthly gross salary is $3,300 and worked for 3 years. His NSIF
would 25/100×3,300×3= $2,475.
NSIF is not subject to Personal Income Tax (PIT). It is not a taxable income within the meanin
of the Taxation Act 2009.
Child Labour
Child Labour, according to section 5 of the Child Act 2008 means, “Child labour” is work
undertaken by a child that in some way harms or exploits him or her, whether physically,
mentally, morally, or by preventing him or her from education.
Every child has the right to be protected from exposure to economic exploitation and child
labour.
(2) For the purposes of this section, “child labour” includes—
a) work and activities related to mining and quarrying;
b) portage of heavy loads and storage;
c) heavy agricultural labour;
d) construction work;
e) work in industrial undertakings;
f) work in places where heavy machines are used;
g) work in places such as bars, hotels and places of entertainment, where a person may be
exposed to immoral behaviour;
h) work in electricity, gas, sanitary and water works;
i) service with the police, prison or military forces;
j) night work which constitutes work between the hours of six o’clock in the evening to six
o’clock in the morning;
k) driving or touting in vehicles;
l) herding which jeopardizes the interest of the child;
m) any type of sexual work; and
n) tobacco production and trafficking.
(3) Subject to the provisions of section 25 (2), the minimum age for the admission of a child to a
paid employment shall be fourteen years.

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(4) The minimum age for the engagement of a child in light work shall be twelve years which
constitutes work that is not likely to be harmful to the health or development of the child and
does not affect the child’s attendance at school or the capacity of the child to benefit from school.
(5) A child engaged in a paid employment, has the right to be paid fairly, work reasonable hours
in accordance with their age and capabilities, have at least 24 hours weekly mandatory leave,
annual leave and to take regular recreational breaks.
(6) No employer shall engage a child in employment without satisfactory proof of the child’s
age.
(7) The Government shall undertake to provide for an appropriate regulation of hours and
conditions of employment for a child and penalties or other sanctions to ensure the effective
enforcement of this section.
(8) The Government shall undertake to ensure that employers of a child strictly adhere to the
following requirements—
(a) maintain registers containing the names of children employed, ages, salaries, commencement
dates of employment, assigned duties, working hours, duration of breaks and annual leave;
(b) display in a highly visible place, the terms and conditions of the employment;
(c) inform employees who are children of all professional hazards and precautionary measures to
protect them from accidents and profession-induced illness.
(9) Any person or organization which has a reasonable suspicion that a child is engaged in an
industrial undertaking, shall report such an activity to the Ministry of Labour, Public Service and
Human Resource Development.
(10)The Ministry of Labour, Public Service and Human Resource Development shall investigate
cases of a child engaged in industrial undertakings and take appropriate action. (11)The Ministry
of Labour, Public Service and Human Resource Development shall in the course of investigation
of cases under subsection
(9), above, request medical officers, Social Workers and other professionals to provide any
expert information necessary.
Prepared by:
Matiop Wuoi Kuai
LLM (University of Dar es Salaam School of Law, LLB (University of Juba)
Lecturer, Dr. John Garang Memorial University of Science & Technology
Member of South Sudan Bar Association, Member of Legal Aid Centre, University of Dar es Salaam
Head of Criminal Litigation, Advocate & Legal Consultant- Awatkeer Law Chambers
Opposite London Cafeteria-Tombura road, Tombura House off University of Juba Road, Juba
E-mail Address: kuaiwuoi2014@gmail.com
Website: www.awatkeerlaw.com, info@awatkeerlaw.com