Introduction

Employment relationships often begin with a simple agreement: one party promises to provide services, and the other agrees to pay for them. While many of these agreements are formalized in writing, some are made verbally. Verbal employment contracts are legally binding, but they come with unique challenges, especially when disputes arise. This article examines the legal standing of verbal contracts, the difficulties in proving and enforcing them, and practical steps both employers and employees can take to protect their interests.

What Is a Verbal Employment Contract?

A verbal employment contract is an agreement between an employer and an employee that is spoken rather than written. Like written contracts, verbal agreements set out the terms of employment, including duties, remuneration, and other conditions. Legally, a verbal contract is just as binding as a written one, provided it meets the essential elements of a valid contract:

  • Offer and acceptance
  • Consideration (something of value exchanged)
  • Capacity (both parties able to contract)
  • Intention to create legal relations

If any of these elements are missing, courts will not uphold the agreement, whether it is written or verbal.

Zimbabwean law recognizes verbal contracts, including those for employment. Courts will enforce these contracts if the essential elements are present and can be proven. However, the lack of written evidence makes enforcement more complex. The burden of proof lies with the person alleging the existence of the contract. This means that if you claim a verbal contract exists, you must provide evidence to support your claim.

Challenges in Enforcing Verbal Employment Contracts

1. Difficulty of Proof

The most significant challenge with verbal contracts is proving their existence and terms. In court, the principle “he who alleges must prove” applies. With a written contract, the document itself serves as evidence. With a verbal contract, it often comes down to one person’s word against another’s, making it difficult to convince a judge of the contract’s existence and specifics1.

2. Unclear Terms and Misunderstandings

Verbal agreements can lead to misunderstandings about the terms of employment. Without a written record, parties may remember the agreement differently, leading to disputes over pay, duties, or duration of employment.

3. Lack of Evidence

In the absence of a written contract, parties must rely on indirect evidence, such as:

  • Emails or text messages referencing the agreement
  • Witnesses who heard the agreement being made
  • Records of performance, such as payslips or bank statements
  • Notes or correspondence created at the time of the agreement

The court will consider this evidence to determine if a contract existed and what its terms were.

4. Burden of Proof

The onus is on the party seeking to enforce the contract to prove its existence. This is a heavy burden, especially when the other party denies the agreement or disputes its terms.

Risks Associated with Verbal Employment Contracts

  • Uncertainty: Without written terms, both parties may have different understandings of their rights and obligations.
  • Disputes: Verbal contracts are more likely to result in disputes, as there is no clear record of what was agreed.
  • Difficulty Enforcing Rights: Employees may struggle to claim unpaid wages or benefits, and employers may find it hard to discipline or dismiss employees for breach of contract.
  • Limited Legal Protection: Courts may be reluctant to enforce vague or incomplete verbal agreements.

How to Prove a Verbal Employment Contract

If you need to enforce a verbal contract, consider the following types of evidence:

  • Written Correspondence: Emails, text messages, or letters that reference the agreement or its terms.
  • Witness Testimony: Statements from people who were present when the agreement was made.
  • Performance Evidence: Records showing that work was performed and payments were made, such as payslips, invoices, or bank statements.
  • Contemporaneous Notes: Notes made at the time of the agreement can support your claim.
  • Subsequent Conduct: Evidence that both parties acted as if a contract existed, such as regular work attendance and payment.

Courts will look at the totality of the evidence to decide whether a contract existed and what its terms were.

Practical Steps to Protect Your Interests

For Employers

  • Always Reduce Agreements to Writing: Whenever possible, provide written contracts to employees, even if the employment is temporary or informal.
  • Keep Records: Maintain records of all communications with employees, including job offers, discussions about terms, and performance reviews.
  • Confirm Verbal Agreements in Writing: After a verbal agreement, follow up with an email or letter summarizing the terms.

For Employees

  • Request a Written Contract: Ask your employer to provide a written agreement outlining your duties, pay, and other terms.
  • Keep Your Own Records: Save any emails, messages, or notes about your employment terms.
  • Document Your Work: Keep records of hours worked, payments received, and any communications with your employer.

Alternatives to Verbal Contracts

While verbal contracts are sometimes unavoidable, written contracts offer greater protection for both parties. Written agreements:

  • Clearly set out the rights and obligations of each party
  • Provide a reference point in case of disputes
  • Make it easier to prove the existence and terms of the contract in court

Whenever possible, insist on a written contract, even for short-term or casual employment.

Frequently Asked Questions

Are verbal contracts legal in Zimbabwe? Yes, verbal contracts are legal and enforceable if they meet the essential elements of a valid contract.

What happens if there is a dispute over a verbal contract? The party alleging the contract must provide evidence of its existence and terms. Courts will consider all relevant evidence, including correspondence, performance, and witness testimony.

Can I be dismissed without a written contract? Yes, but your rights and obligations may be harder to prove without written terms. Both parties are still bound by the terms of the verbal agreement, as far as they can be established.

Conclusion

Verbal employment contracts are legally binding but present significant challenges in terms of proof and enforcement. The lack of written evidence can lead to disputes, misunderstandings, and difficulties in asserting your rights. Both employers and employees are advised to reduce agreements to writing whenever possible. If a verbal contract is unavoidable, keep thorough records and seek legal advice if a dispute arises. In Zimbabwe, as elsewhere, the best protection is a clear, written contract that leaves no room for doubt.