Amos Kalela & 46 Others v Chimwenda Investments Limited (IRC/ND/17 /2022) [2022] ZMHC 82 (8 December 2022)

IR~/ND/17 /2022 IN THE HIGH COURT FOR ZAMBIA AT THE DISTRICT REGISTRY HOLDEN AT NDOLA (Industrial Relations Division) BETWEEN: AMOS KALELA & 46 OTHERS AND CHIMWENDA INVESTMENTS LIMITED RESPONDENT Before the Hon. Mr. Ju stice Davies C. Mumba in chambers on the 8 th day of December, 2022. For the Complainant : For the Respondent: Mr. H. Chinene, Messrs Lumangwe Chambers. Mr. T. Chabu, Messrs Terrence Chabu & Co. JUDGMENT Cases referred to: 1. Eston Banda and another v The Attorney-General, Appeal No. 4 2 of 2016 . 2. Redrilza Limite d v Abuid Nkaz i and Others, SCZ Judgment o. 7 of 2011. 3. National Drug Company Limited and Zambia Privatisation Agency v Mary Katongo, Appeal No. 71 of 2009 (S . S). 4. Kawangu Kayombo a nd Others v Quattro Company Limited, Appeal No, 23/20 18. Le islation referred to: 1. The Emp loyment Code Ac t No . 3 of 2019 . Other works referred to: J2 1. Winnie Sithole Mwend a a nd Ch a nd a Chun g u· A Compreh t E o mp oyment Law m Zambia : UN ZA Pres s . 20 21. . · · G ·d ens1ve m e By notice of complaint filed into Court on 11 th April, 2022 , the complainants comn1enced this action against the respondent seeking the following reliefs: (i) Damages for unfair dismissal, wrongful dismissal and unlawful dismissal from employment. (ii) Payment in lieu of Notice (iii) Payment of Redundancy package and other Statutory accrued benefits. (iv) Interest on sums due. (v) Costs. (vi) Any other order the Court may deem fit. In support of the notice of complaint, the complainants relied on their combined affidavit in support of the notice of complaint and summons for leave to file complaint out of time, filed into Court on 30 th March, 2020, sworn by the l51 complainant herein, Amos Kalela. It was deposed that the 1s t complainant was employed by the respondent on 17t h Septemb er, 2009 as a Boiler Maker while the other complainan ts were employe d on diverse dates and in different capacities. To that effe ct, the 1s t complainant produced their contracts of em ployment, exh ibits "AK l" to "AK48 ". That J3 the complainants of them were given written contracts of employment whilst on1 of th m w r working without written contracts. That th ir ontra ls of mploym nt were terminated ct· t s b way of r dundancy and the respondent on diver calculat ct th tr du hown by th ir letter of termination, pay lip and r ord of rvic mark d "AK49" to "AK81 " . That, however, the re pondent backtracked and wrote to notify them that it would not pay their redundancy packages, as shown by son1e of the letters, "AK82" to "AK85", contrary to the Laws of Zambia. That they had suffered damage and loss for which they were seeking payments from the respondent. On 2yct May, 2022, the respondent filed an answer and an affidavit in support of their answer sworn by Charles Chikwelete , Managing Director in the respondent company. He deposed that the complainants were singularly employed by the respondent on diverse dates on contracts, with specific terms of contract. That, therefore, their conditions of employment and termination from employment were governed by their specific contracts. To that effect, the deponent produced the complainants' contracts of employment, collectively marked as "CC l". That under clause 12 of the said contracts, it was an express t rm that their contracts of employment would be terminat d if th Principal, Mopani Copper Mines Plc. cane 1 d the main ontr ct between the respondent and itself. That th Mopani opp r Mines terminated the contract sometime on 12 1h July, 2019 as hown by the notice J4 of termination "CC2". That as a r sult of the cancellation of the contract by the Principal, th mployees' contracts were terminated as shown by the m mo and the notices of termination collectively marked , 'CC3'. That by the le tter dated 27 th August, 2019 the respondent 's Human Resource Personnel erroneously informed the complainants that they were entitled to a redundancy package when in fact not. That on the 1st November, 2019 the complainants interned that they were not entitled to any redundancy package at all. Further, that the complainants are not entitled to any redundancy payment because the contract of employment was terminated by the operation of clause 12 of their contracts. At the trial, the 1st complainant testified on behalf of the other 45 complainants. He testified that he started working for the respondent on l T h December, 2009 and the other complainants started working for the respondent on different dates and in various positions. He testified that between 11 th August and 3l51 October, 2019 , he and the other complainants received letters of termination of employment from the respondent . That after issuing them with the termination letters, the respondent started preparing their redundancy packages at the rate of two months' salary per each completed year of servic e. That, however, the respondent did not JS pay them the said money. The l5 1 complainant also informed the Court that he was relying on the v riou documents, 'AKI' to 'AK85' exhibited to the affidavit in upport of the notice of complaint. He informed the Court that the complainants were requesting the Court to order the respondent to pay them their redundancy packages and the reliefs sought in their notice of complaint. He testified that the respondent had given them the letters where it had declined to pay them their redundancy packages. He referred the Court to the letter, exhibit 'AK76' and stated that in the said letter, the respondent stated that it was not supposed to pay him his redundancy package. That all the other complainants received similar letters. He also testified that so much time had elapsed from 2019 and asked the Court to take that time into consideration. He also prayed for costs. During cross-examination, the 1st complainant confirmed that their employment was governed by specific contract . That his contract was the one exhibited as 'AK l' in the ffid vit in support of the notice of complaint. That the said contra t wa for the period 1s t April, 2012 to 3l51 December, 2012. That under the said contract, the noti period for t rmination was 10 d y . He confirmed that the contract expired on 3 is 1 D c mb r, 2012 and that he was not dismiss ct by th r pond nt during the period of that contract. That there was no oth r contract that he signed J6 with the respondent . He stated that he was not aware that some of the complainant had si n d ontra t tating that their employment could b t nninat d jn thr way . Wh n referred to Mr. Mashisha ' contract, the !5 1 complainant tated that Mr. Mashisha had not inform d him that h had signed a contract. He stated that he was aware of the contracts the other complainants had signed which were exhibited as 'CC l '. When ref erred to paragraph 3 of one of the contracts, the 1s t complainant stated that he was not aware of that clause. When further referred to clause 10 of the contract, the pt complainant admitted that it provided for three ways 111 which their contracts could be terminated , that is, by notice; upon termination of the contract between the respondent and its customer, Mopani Copper Mines ; and summary dismissal. That their contracts were terminated because of the termination of the contract between the respondent and Mopani Copper Mines. He stated that they used to work from the Mopani Copper Mines premises. That Mopani Copper Mines terminated its contract with the respondent as show by notice of termination, 'CC2'. That as a result, the respondent was not able to carry on with the complainants ' contracts . He stated that there wa s no provision for redundancy in their contracts . That the 1 tter, 'AK76' was written b the respondent after a recommendation from the Labour office I Kitwe. That the said 1 tt r, 'AK 7 ' wa imilar to the letter, 'AK85'. That he under stood the content of the letter and that was why they brought the matter to Cour t. He confirmed that the J7 letter, 'AK56' was his letter of termination. That according to the said letter, he was giv n on month' notic . He confirmed that the letter did not indicat tha t th y were going to be paid redundancy packag . H l t d that the letter, 'AKS 7' tated the reason why they re not entitled to redundancy payment. He stated that they were not disn1issed but they were given notices of termination of their employment. In re -examination, when referred to his contract, 'AK l' which was for the period pt April, 2012 to 3 pt December, 2012 , the l5 complainant stated that the reason why he stated that he was employed on 17th September, 2009 was because sometimes they used to sign one year contracts and other times they never used to sign. That from 2009 to 2019, they signed contracts which varied in terms of duration such as three months , six months, one year and sometimes they never even used to sign contracts . When the matter came up for defence on· 8 th November, 2022, the respondent and their Counsel did not appear before Court despite being fully aware of the hearing date, having been present on the date the matter was adjourn d for defence . I, therefore, to adjourned the matter for judgment. I have considered the affidavit eviden e from both parties and the viva voce evidence by the complainants. I have also considered the final written submissions filed by both parties. J8 The facts which were comm n aus re that the complainants were employed by th r pond nl on diver e dates and in different cap iti s. The complai ants w re deployed to work at Mopani Copp r Min s whi h had a contract with the respondent. It "'as a tenn of the co1nplainants' contracts that their en1ployment was subject to the continuity of the contract between the re pondent and Mopani Copper Mines; and that their contracts would be terminated upon the termination of the said contract. Between 11th August and 3 pt October, 2019 , the respondent terminated the complainants' contracts of employment based on the reason that Mopani Copper Mines had terminated the respondent's contract. Upon termination of the complainants' contracts , the respondent wrote to them that their redundancy package s had been calculated at two months ' pay for each complete year served and that they were to be paid their packages upon receipt of compensation from Mopani Copper Mines. Before they could be paid, the respondent again wrote to the complainants and informed them that upon p ru al of their contracts of employment, the complainants w re not entitled to redundancy payment s. From the evidenc e on r cord, th e following ar the issues for determination: J9 1. Whether the termina tion of the complainants ' contracts of emplo yment was wro ngful and unfair thereby entitling them to damages. 2. Whether the complainant s are entitled to the payment redundancy packages ; other statutory bene fi ts; and one month 's pay in lieu of notice. I will start with the fir st issue, whether the termination of the co mplainants' contracts of employment was wr ongful and unfair thereb y entitling them to damages . The complainants have claime d that the ir d ismissal from employment was unfair, wrongful and unlawful. In th e case of Eston Banda and Another v the Attorney GeneraP, the Supreme Court h as gu ided that: "There are only two broad categories for dismissal by an employer of an employee, it is either wrongful or unfair. 'Wrongfu l' refers to a dismissal in breach of a relevant term embodied in a contract of employment, which relates to the expiration of a term for which the employee is engaged; whils t 'unfair refers to a dismissal in breach of a statutory provis ion where an employee has a statutory right not to be dismissed. A loose reference to the term 'unlawful' to mean in employment parlance, 'unfair' incorrect and is bound to cau e confusion. The learned author, Judge W. . Mwenda, clarifies on the two broad categories , in her book Employment Law in Zambia: Cases and Materials , (201 1), revis ed edition UNZA Pres s, Zambia at page 136 . She opines that, in our jurisdiction, a dismis sal is either wrongful or unfair, and that wrongful dismiss al looks at the form of the dismissal whilst unfair dismis sal is a creature of statute." speaking , strictly is JlO Further , 111 th C , e of R dnlz t · . t d V Abuid Nkazi and , uprcn1c Courl gu ided t ha I th re L dHference th Others 2 , b tween ' er s Ill i s s al ' and It n tl e lo , of n plo nt i l c l i ()] '. Th t di s mj s'"'al involves ising from di s i inary tion while ter e11pl a tion ·111 nt without th n1ployer to t rmjnat th on tract of invoking disciplinary action . Tha , therefore , tl e tern1s 'termination' and 'dismissal' cannot and hould not be used interchangeably. In he present case, I have noted that the complainants were no dismi sect from employment as no disciplinary action was taken against them. Therefore, their claim does not border on dismissal bu should be anchored on the termination of their employment. Whereas the distinction in the case of Banda 1 was about dismissal , I believe the same also applies to termination. Therefore, I am of the view that the relief that the complainant are seeking is that the termination of their employment v wrongful and unfair, and I will proceed to determine their cl in1 as such. The I arn d authors , Judg W .. Mw n a and h n hungu, in their book en ill ct : A Comprehensive Guide to Employment Law in Zambia, ta at pi::l J' 2 ' a · follows : "Where a termination is not arried out in line with the law, or where the employer terminates employment without Jll giving a rea on , u h t rmination will b referr d to as unfair tennination and fo r t rmina ion ontr ry to th contract of employ111 nt a wron g ful t rmin t on." On th abo ut h rit , fo th clain1 th t t h t n1in n t to , u d in their f mp] oym n was fr ntr un fair , th , 11u t h tl t th r p ond nt br a hed a pecific tat u t r pro i ion or th t th res pondent did not give a vali d ea n for the termination of their contract s. With regard to h eir clairn fo r wrongful termination , it must be shown that he re pondent breached the terms of their contracts of employmen when it terminated their contracts . In casu , it is not in dispute that the reason the complainant s ' contract s were terminated was because Mopani Copper Mines , under wh ich they were working had terminated the contr act i h ad with the respondent. Therefore, I find that the action that was taken by the respondent was in compliance with on e of the terms of the complainants' contracts of employment which wa to th e effect that once the contract between Mopani Copp r Min es and t he resp ondent came to an end , it au tom ti follo we d tha t the complainant s' contracts with th r P n would also b e terminated . Thi m nt th t th con tract of m pl ym nt w d p nd nt n th nt n t I of the contra t b w n th r nd nt nd M p ni p r fines . On the evid n in , I m u it ti fi d th t the complainant s kn w fr · h out t th t th ir mploymen t was J12 directly linked t o the continuou s existenc e of the contract betw een the respondent and Mopani Copper Mines . They had also free ly and voluntarily cons nted to such a term with the full knowledge of its ran1ifications. It is settled that parties to an agreen1ent are bound by the terms and conditions emb odied in their contract. In the case of National Drug Company Limited and Zambia Privatisation Agency v Mary Katongo 3 , it was held t hat ; "It is trite law that once parties have voluntarily and free ly entered into a legal contract, they become bound to abide by the terms of the contract and that the role of the Court is to give efficacy to the contract when one party has breached it by respecting, upholding and endorsing the contract. Further, in t h e case of Kawangu Kayombo and Others v Quattro Company Limited4, the Court of Appeal held that: "In terms of the doctrine of freedom of contract, each party is b ound by the terms of the contract they have entered into voluntarily to the extent that the same do not offend against statute and not tainted by illegality." On the above authoritie s, I find that the complainants were bound by th.e aforesta te d t er m of their contrac t s as the same did not offend against any statu te and was not tainted b y legality. Therefore, the respondent had properly terminated the complainants' contracts of employment since it had com plied wit h the terms of the complainants' contracts of employment. As a r e sult , the complainants' claim that th e termina tion of their J13 employment was wrongful has dismissed. failed and 1s accordingly Further, I an1 satisfied that the reason given by the respondent for the tennination of the co1nplainants' contracts was valid. In this regard, therefore, the complainants' claim that the tennination of their employment was unfair has failed and is accordingly dismissed. Having found that the termination of the complainants' employment was not wrongful and was not unfair, it has become otiose to determine whether the mode of separation of the complainants from the respondent's employment was by reason of redundancy. Suffice it to say that the decision by the respondent not to pay the redundancy packages to the complainants was well founded. Therefore, their claim for the payment of redundancy packages has failed and is accordingly dismissed. Regarding the claim for the payment of 'any accrued statutory benefits', the complainant did not lead any evidence to show the type of statutory benefits that they had intended to claim. It is noteworthy that there are a variety of statutory benefits that may accrue to an employee during the employment relationship. It is, therefore, the duty of th e claim ant to lead cogent evidence in proving t hose cla ims. ln t hi s re gard, in the absence of the Jl4 con1plainant's evidence proving their claim, the claim has failed an d is accordingly di 1ni d . I ow v r, th ir ntitlement to leave days, being an ac ru d right , annot b ignor d. h erefore, I h old that the con1plainant ar ntitled to the payment for accrued leave da , if any. There being no evidence as to the number of leave days that could have accrued to the complainants at the end of their employment, I refer this matter to the learned Deputy Registrar for assessment of accrued leave days if any, and the amount payab le to the complainan t in r e spect of the accrued leave d ays. With regard to the complainants' claim for one month ' s pay in lieu of notice , I note that it was a term of their contr ac t s that the contracts would be terminated upon the termination of the contract b etween the respondent and its customer , Mopani Copper Mine s. I am satisfied that their contracts were terminated because of the termination of the contract between the respondent a nd Mopani Copper Mines. Therefore, when Mopani Copper Mines term inated its contr act with the r e spondent, it automatically followe d t hat the com plainants' contracts with the respondent were also to b e terminated. Under those circumstances, I find that t he complainants were not entitled to one month's notice or one month's pay in lieu of notice and their claim is accordingly dismi s d. I make no or der fo r costs. JlS Leave to app al i r ant d . Deliv red at Ndola thi 8 11 ' day of D mb r, 2022 . Davies C. umba HIGH COURT JUDGE