Andrew Mwape and Anor v Zambia China Economic and Trade Co-operation Zone Development (COMP/IRC/ND/34/2022) [2024] ZMHC 292 (25 October 2024)

IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: ANDREW MWAPE EVANS KONDOWE AND ZAMBIA CHINA ECONOMIC AND TRADE CO-OPERATION ZONE DEVELOPMENT RESPONDENT Before: The Hon. Lady Justice Dr. Winnie Sithole Mwenda at Ndola this 25th day of October, 2024. For the 1st and 2 nd Complainants: Mr. D. K. Mu lenga of Messrs. Caristo Mu konka Legal Practitioners, For the Respondent: Mr. K. Bota & Mrs . S. Kalikeka of Messrs. William Ny ire nda & Company JUDGMENT Cases referred to: 1. Care International Zambia Limited v. Misheck Tembo, SCZ Selected Judgment No. 56 of 2018. 2. Supabets Sports Betting v. Batuke· Kalimukwa, SCZ Selected Judgment No. 27 of 2019. 3. Sarah Aliza Vekhnik v. Casa Dei Bambini Montessori Zambia Limited, CAZ Appeal No. 129/2017. 4. Henry Chiwaya v. Corporate Air Limited, CAZ Appeal No. 229/ 2021. 5. Zambia Telecommunication Company Limited v Eva Banda, CAZ No.2/2017. J2 6. Zambia Airways Corporation v. Gershom B. B Mubanga (1990-1992) Z. R 149 (S. C). 7. Zambia National Building Society v. Ernest Mukwamataba Nayunda 1993 ZMSC 25. 8. The Secretary and/ or The Acting Secretary General of the Zambia Red Cross Society v. Charles Mushitu, SCZ Appeal No. 29/ 2016. 9. Khalid Mohammed v. The Attorney General (1982). Z. R. 49. SC. 10. Wilson Masauso Zulu v. Avondale Housing Project (1982). Z. R. 172. I I . Kuta Chambers (Sued as a firm) v. Simbulo (Suing as Administratrix of the estate of the late Francis Simbulo) 2015 ZMSC 75. Legislation referred to: 1. The Employment Code Act, No. 3 of 2019. 2. The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia, as amended by Act No. 8 of 2008. Texts referred to: 1. Mwenda, Winnie Sithole and Chungu, Chanda A Comprehensive Guide to Employment Law in Zambia (2021) University of Zambia Press. 2. Chungu, Chanda and Beele, Ernest Muketoi Labour Law in Zambia 2 nd Edition, (2020), Juta Publishers, South Africa. 3. Odgers' Principles of Pleadings and Practice, 2 Jst Edition. 1. Introduction 1.1 Andrew Mwape and Evans Kondowe, ("the Complainants"), filed a Notice of Complaint in this Court on 16th May, 2022, against Zambia China Economic and Trade Co-operation Zone Development ("the Respondent"), founded on the following grounds: J3 (i) The Complainants served m the Respondent Company under a contract of service and were subject to the Respondent's Disciplinary Code, Grievance Procedure and Schedule of Offences and Sanctions. (ii) Whilst working for the Respondent with other fellow workers, they chose to form a union to be representing the fellow workers . The Com pla inants herein were chosen by the s aid fellow workers to b e their representatives. (iii) The Complainants and other fellow workers on the 5 th of April, 2022 conducted a peaceful assembly demanding the formation of the Union to be representing the workers of the Respondent. (iv) Accordin g to the Complainants, whilst they were waiting for the response from their employer as to whether the ry Respondent would a llow their workers to form a union or not, to their surp rise, th e Respondent issued the complainants with summary dismissal letters. 1.2 Consequently, the Complainant filed the present su it seeking the following remedies: ... J4 (a) A declaration that the Complainants were wrongfully and unfairly dismissed.; (b) An Order for Damages for wrongful dismissal; (c) An Order compelling the Respondent to pay the Complainants K144,040.00 as their outstanding salary arrears and leave days from the pending 2022 contract which was renewed on 15th April, 2022 in respect of the 1st Complainant; (d) In the alternative, a declaration that they be deemed to have retired under voluntary separation; (e) Payment of their gratuity pursuant to the contract of service; (f) Compensation for instituting legal proceedings against ZCCZ for wrongfully dismissing the Com plain an ts from work; (g) Compensation in excess of Kl 12,800.00 in respect of both complainants; (h) Compensation in excess of K200,000.00 in respect of the 1st and 2nd Complainants for legal proceedings JS against ZCCZ for blocking and denying them a fundamental constitutional right to join a trade union of their choice for 10 years; intimidation, bullying and abuse at the place of work for 10 years; (i) Compensation for extra duties performed by both Complainants; U) Payment of Kl29,600.00 gratuity for the period of 6 years in respect of the 1st Complainant and K201,888.00 gratuity for the period from 2012 to 2020 in respect of the 2 nd Complainant; (k)Interest on the amounts found due; and (1) Any other relief the Court will deem fit. 2. Respondent's Answer 2.1 The Respondent filed an Answer and Affidavit in Support thereof, on 6 th June, 2022. 2.2 According to the Respondent, the Complainants held an illegal strike which was not peaceful at all. After the Complainants conducted an illegal strike, they were charged with an offence of unconstitutional industrial J6 action in accordance with the Respondent's Disciplinary Code. 2.3 The Respondent asserts that the Complainants were accorded the right to be heard before the Respondent made a decision to summarily dismiss them. Further, that the Complainants were aware of the charges they were facing as they attended a hearing prior to receiving their letters of summary dismissal. 2.4 The Respondent contends further, that the Complainants are not entitled to all the reliefs sought in the Notice of Complaint. 3. Summary of Evidence at Trial 3.1 At trial, the Complainants testified on their own behalf. The 1st Complainant shall be referred to as "CWl" and the 2 nd Complainant as "CW2". The two largely recounted the facts outlined in the Affidavit in Support of Complaint. 3.2 CW 1 further testified that he was employed by the Respondent on 28th October, 2014 as a Plumber on a J7 yearly contract. He added that in addition to his duties, the Respondent assigned him other duties . 3.3 He testified that he worked for the Respondent for 8 years and all along he and other employees were not allowed to join a union to represent them. 3.4 It was CW 1 's testimony that on 5 th April, 2022 when he got on the bus to go for work, he found his fellow employees singing and jumping and upon reaching the gate of the work premises, all employees got out of the bus. They demanded for an explanation as to why the Respondent denied them the right to join a union. However, the Respondent refused to address them. 3. 5 He further testified that while at the gate, a Zambia National Broadcasting Corporation crew (hereinafter referred to as "ZNBC" crew), arrived and interviewed them. Later after the interview, the ZNBC crew followed the Respondent's management to Garneton to hear from their end. 3.6 According to CWl, he and his fellow employees followed the Respondent's management to Garneton to be JS addressed over the issue of the Union. Upon arrival at the gate in Garneton, the security guard opened the gate and employees got out of the bus with the view to be addressed by the Respondent. 3. 7 CW 1 testified that Police officers arrived and wondered why employees were outside Moon Hotel because they thought there was some fighting, confusion or rioting. 3.8 Later on, the National Union of Commercial and Industrial Workers (hereinafter referred to as "NUCIW"), also arrived and held a meeting with the Respondent and six employees' representatives in the presence of the Police officers on the issue of when the Respondent and NUCIW would sign a Recognition Agreement. He added that the Agreement was not signed as the Respondent's senior most person in the company was outside the country. 3.9 It was CWl's further testimony that on 14 th April, 2024, he was summoned by the Respondent to explain events of 5 th April, 2022. He was asked to sign a document which J9 he refused to sign and after two days, the Respondent called him again and asked him similar questions. 3 .1 O On 22 nd April, 2022, CW 1 received a letter of dismissal with leave to appeal within two days. When he appealed, the dismissal was upheld. 3.11 It was his testimony that for a period of eight years he was not allowed to affiliate to any union and that he was persecuted, insulted and called names by the Chinese bosses and was not paid gratuity from 2004 to 2017. 3. 12 In cross-examination CW 1 confirmed that he signed the complaint form on which he was charged with the offence of unconstitutional industrial action. He, however, added that he only signed to show that he attended the meeting. 3.13 It was his testimony that the protest was peaceful and characterised by singing in the bus and blocking the entrance into the Respondent's premises. 3.14 CWl admitted to going to Garneton by bus but added that he was not in control of the bus and denied taking the bus keys and the bus driver's phone. He stated that I ,, JlO workers were at the gate and wanted to be addressed by the Respondent's management. He added that the Police came to keep the peace . It was his further evidence that the demonstration was peaceful from the start to the end. 3.15 In further cross-examination, CWl stated that he was employed on a one-year contract subject to renewal and that there was no reflection of gratuity on the payslips except for the April, 2021 pay slip where gratuity and leave days were reflected. 3.16 In Re-examination he stated that he was employed on 14th October, 2014 and the Respondent only started paying gratuity in 2018. 3 .1 7 CW 1 added that he received his letter of dismissal on 25th February, 2022 and it was his last day at work. He further clarified that he had no powers to bully the bus driver and that another person instructed the bus driver to head to Garneton. 3.18 CW2 testified that he was employed in February 2012 as an Electrician but was also assigned other duties. He rose through ranks to the position of Head Supervisor- i. Jll Electrical. Further, that he worked for the Respondent for a period of 10 years and during that time was not allowed to join a union . 3.19 It was CW2's testimony that, prior to 5 th April, 2022 the workers engaged the Respondent through the office of the Kalulushi District Commissioner over the issue of a union, but to no avail. That, on 5th April, 2022 the Respondent's workers conducted a peaceful demonstration. They got on the bus, parked it at the entrance of the Respondent's work premises while singing. However, the Respondent's management did not address the workers but instead drove out to Garneton. 3.20 CW2 testified that he did an interview with the ZNBC crew while at the Respondent's work premises and later he, together with other workers, followed the ZNBC crew to Garneton to hear what management would say in the interview with the ZNBC crew. 3.21 According to CW2, the place they went to in Garneton is not a private residence as half of the workers of the Respondent work there and they are the ones who Jl2 assembled in Garneton and were calm. He added that when Police officers arrived, they were very impressed with the conduct of the workers. 3.22 It was CW2's testimony that he, together with four other workers, were selected to attend a meeting with the Respondent and NUCIW in the presence of the Police officers and all misunderstandings were resolved, but a Union Recognition Agreement was not signed by the Respondent as the Chief Executive Officer was outside the country. 3.23 After the meeting, the Respondent addressed the workers and assured them that matters had been resolved and advised everyone to go back to work. 3.24 It was CW2's further testimony that to the Complainants' consternation, the Respondent engaged a private investigator who randomly interrogated workers. He added that twice the Respondent obtained statements from him. 3.25 According to CW2, he was reporting for work normally but was served with a letter of dismissal for Jl3 unconstitutional industrial unrest. He added that the Respondent did not follow procedure in dismissing him. 3.26 He also testified that at the appeal, he was heard by the same panel that dismissed him and the dismissal was upheld. Further, that he was being paid a monthly salary of Kl0,000.00 plus at the time of dismissal and that the monthly pay was Kl,800 below the minimum wage. 3.27 CW2 alleged that his dismissal was based on hatred, a grudge and was a punishment and the Respondent set him up as an example. 3.28 It was CW2's testimony that he had suffered loss and humiliation and his rights were infringed upon as he was not heard. He added that at the time of his dismissal, he was servicing a loan with Stanbic Bank purely from his salary and he had no other income to meet that obligation. 3.29 In cross-examination, CW2 admitted that his contract was terminated in April, 2022 for his alleged involvement in an unlawful industrial action. He added that there was J14 an accusation that he took a leading role m the work stoppages without permission. 3.30 He admitted that he stopped the bus and demanded to be addressed by the Respondent. He added that Police officers came to Garneton because the Respondent called them and that the happenings were unusual. He however, maintained that the protest was peaceful. 3.31 Under further cross-examination, CW2 admitted that his appeal was heard on 22nd April, 2022 and he signed the copy of the Minutes of the proceedings. He also stated that the Respondent carried out investigations to establish what transpired on 5 th April, 2022 but he was not aware whether the investigations led to his dismissal. He admitted that the dismissal was done after he made a statement in the charge form. 3.32 It was CW2's testimony that all the contracts he signed entitled him to gratuity. He added that in 2019 his gratuity was under paid but in 2021 it was paid in full. 3.33 In further cross-examination CW2 conceded that he had no evidence to show that the Respondent was Jl4 an accusation that he took a leading role in the work stoppages without permission . 3 .30 He admitted that he stopped the bus and demanded to be addressed by the Respondent. He added that Police officers came to Garneton because the Respondent called them and that the happenings were unusual. He however, maintained that the protest was peaceful. 3.31 Under further cross-examination, CW2 admitted that his appeal was heard on 22nd April, 2022 and he signed the copy of the Minutes of the proceedings. He also stated that the Respondent carried out investigations to establish what transpired on 5 th April, 2022 but he was not aware whether the investigations led to his dismissal. He admitted that the dismissal was done after he made a statement in the charge form . 3.32 It was CW2's testimony that all the contracts he signed entitled him to gratuity. He added that in 2019 his gratuity was under paid but in 20 21 it was paid in full. 3.33 In further cross-examination CW2 conceded that he had no evidence to show that the Respondent was . ... J15 discriminating against workers who wanted to join the union. 3.34 In re-examination, CW2 clarified that during the investigation he was told by the Respondent that he was being interrogated to assist the company determine what had transpired on 5 th April, 2022. He added that for the period of 10 years he worked the Respondent never allowed workers to join a union. He further clarified that he had evidence of doing other duties but the evidence was not before Court. 3.35 That marked the close of the Complainants' case. 3.36 The Respondent called three witnesses, namely, Gideon Sitenge, the Respondent's Human Resource Officer; Patrick Lukama, the Respondent's Bus Driver; and Emmanuel Sikanyika the Respondent's Landscaper. They shall be referred to as "RWl", "RW2" and "RW3", respectively. 3.37 RW 1 testified that on 5 th April, 2022 the 1st and 2 nd Complainants (hereinafter referred as "the Complainants"), incited other workers not to report for Jl6 work and blocked the main gate to exclude the Respondent's management and employees from entering the business premises. I 1 3.38 It was his testimony that the Complainants fo rced the bus driver to park the bus at the gate of the work premises and gave an interview with damaging remarks to the ZNBC crew. It was his further testimony that later on, the Complainants instructed the bus driver to go to Garneton with other fellow workers and forced their way into management residences and the hotel section while chanting slogans as they demanded management to address them. 3.39 He testified that the Respondent called the Police and the union officials from NUCIW to calm the situation. He added that the four parties held a meeting wherein the workers representatives and NUCIW wanted to force the Respondent to sign a Union Recognition Agreement but the Police intervened. After a protracted meeting, the Respondent addressed the workers and advised them to go to their respective homes. J17 3.40 RWl testified that thereafter, the Respondent carried out investigations and it was revealed that the Complainants were ring leaders in causing the industrial action and breached the Respondent's Disciplinary Code of Conduct. 3 .41 He explained that the Disciplinary Code of Conduct clearly specifies types of offences, the procedure and the verdict. He added that the Complainants were charged based on the same and that all the necessary company procedures were followed before dismissing the Complainants. 3.42 It was RWl's testimony that after the Complainants were dismissed, their salaries, leave days and gratuity, where provided, were paid. He added that the Complainants were paid salaries for all the works they did. He also said that the contracts of service under which the Complainants served stated that Complainants would be assigned any other duties. 3.43 In cross Examination RW 1 admitted that there was no union at the time the strike took place and that the formation of a union is the right of the employee. That, J18 the workers were demonstrating because they wanted a union. 3.44 He further testified that after investigations, the Complainants were asked to exculpate themselves and accepted committing the offences through the statements they made. He admitted that at the hearing the Complainants were not accompanied by any witness. 3.45 RWl admitted that he did not have the evidence to show that the Complainants were paid gratuity from 2012 to 201 7. He further admitted that on 5 th April, 2022 he was in the bus but denied participating in the industrial action. 3.46 He maintained that the demonstration was not peaceful and there was evidence that there was violence , although there was no Police statement to that effect. It was his testimony that the Complainants were heard by different panels at the initial hearing and at appeal level. He however, confirmed being present at both hearings. I " J19 3.4 7 RW 1 admitted that the Respondent only dismissed the Complainants out of all the employees who participated in the industrial action. 3.48 It was his testimony that the union plays a big role in the relationship between the employer and employee. He added that there is a union now at the Respondent company but denied the suggestion that it was the demonstration by the workers that forced management to allow the formation of a union. 3.49 RW2 testified that on 5 th April, 2022 he picked up the Respondent's workers from various stations. He stated that he heard the 2 nd Complainant making an announcement that workers would not work and everyone was expected to meet the Respondent's management to inquire as to why the Respondent was not increasing the workers' salaries. 3.50 He also stated that the 1st Complainant instructed him to park the bus at the gate but instead he parked it besides the gate of the work place in Chambishi. It was his J21 he had no evidence to prove the allegation. He further admitted that there was no union at the work place. 3.54 It was his testimony that the demonstration was not peaceful but confirmed that there was no violence. He admitted that the Complainants were a go-between for the workers and the Respondent's management. 3.55 Under further cross-examination, RW2 conceded that he could do anything to preserve the integrity of the Respondent. He also admitted being an employee of the Respondent but denied having an interest to serve. 3.56 It was RW3's testimony that on 5 th April, 2022 the Complainants took turns and announced to workers that the workers were going to meet the Respondent's management so that they could explain why they had not allowed the workers to have a union. That, the Complainants further guided that workers should go and wait for management to address them on why their salaries were not being increased. 3.57 RW3 further testified that after observing that management did not come to address them, the workers J22 decided to follow them at their residence in Garneton. According to RW3, the Complainants advised the workers not to destroy any company property but to discuss with management. 3 .58 That, while at Garneton, Police officers arrived and held a meeting with the Respondent in the presence of five workers' representatives. After the meeting, the workers were told to go to their respective homes. 3.59 In cross-examination, RW3 admitted that there was no union at the Respondent company and the Respondent had declined the request by workers to have a union. He added that the Complainants were among those who represented the workers in the meeting at Garneton . 3.60 It was his testimony that all the workers supported the demonstration. He admitted carrying a placard at the demonstration because he wanted better conditions of service at the company. 4. Legal Arguments The Complainants filed written submissions while the Respondent did not. In their submissions, the Complainants J23 drew my attention to a number of authorities which I have taken into consideration in this Judgment. 5. Findings of Fact Undisputed Findings of Fact 5.1 The 1st Complainant was employed by the Respondent on multiple one-year contracts between 2012 and 2022 . 5.2 The 2 nd Complainant was employed by the Respondent on multiple one-year contracts between 2014 and 2022. 5.3 The Complainants were not the only workers involved in a demonstration of 5th April, 2022. 5.4 The Complainants performed extra duties in addition to their regular duties. Disputed Findings of Fact 5.5 Whether the Complainants held a legal and peaceful demonstration on 5th April, 2022. 5.6 Whether the Respondent followed procedure in dismissing the Complainants. 5.7 Whether the Complainants were accorded an opportunity to be heard. J24 5.8 Whether the Respondent paid the Complainants for the extra duties they performed. 6. Issues for Determination 6.1 Having carefully examined the Affidavits and documents filed by the Complainants and the Respondent in support of and defence of their respective cases, and identified the undisputed and disputed facts herein, the issues for determination, as I comprehend them, are the following: (i) Whether or not the Complainants were wrongfully and unfairly dismissed; (ii) Whether or not the Complainants are entitled to damages for wrongful/unfair dismissal; (iii) Whether or not the Complainants are entitled to the sum of K144,040.00 in salary arrears and leave days. (iv) Whether or not the complainants are entitled to any compensation. (v) Whether or not the Complainants are entitled to gratuity. I ! ' I I l j i l i j J25 (vi) Whether or not the Complainants are entitled to the alternative declaration that they be deemed to have retired under voluntary separation . 7. Determination of Issues Whether the Complainants were wrongfully and/or unfairly dismissed. 7. 1 In Care International Zambia Limited v. Misheck Tembo 1 the Supreme Court held that unfair dismissal is dismissal which is contrary to statute. The Supreme Court further clarified unfair dismissal as follows, in the case of Supabets Sports Betting v. Batuke Kalimukwa2 : In a recent decision of this Court, Moses Choonga v. Zesco Recreation Club, Itezhi-tezhi, our holding was that, the dismissal was unfair and unlawful as the reason given was not related to the qualifications or capability of the appellant in the performance of his duties ... In order to determine whether a dismissal was fair or unfair, an employer must show the principal reason for the dismissal. That such reason must also relate to the conduct; capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do; or to operational requirements of the employer's business. J26 We do acknowledge the legal position that unfair dismissal is a creature of statute with its origins in the need to promote fair labour practices by prohibiting employers from terminating employees' contracts of employment, except for valid reasons and on specified grounds. The position is substantially in line with Article 4 of the International Labour Organisation (ILO) standards, Convention 158, Termination of Employment, 1982. 7 .2 In the Supabets Sports Betting case (supra), the Supreme Court also guided that unfair dismissal could also occur where an employee is dismissed on an unsubstantiated ground. This is supported by the learned authors Mwenda and Chungu in their book A Comprehensive Guide to Employment Law where they state at page 241: Unfair dismissal is dismissal that is contrary to the statute or based on an unsubstantiated ground. For unfair dismissal, the courts will look at the reasons for the dismissal for the purpose of determining whether the dismissal was justified or not. In reaching the conclusion that the dismissal is unfair, the court will look at the substance or merits to determine if the dismissal was reasonable and justified. 7 .3 From the above it is clear in cases where unfair dismissal is alleged, that the Court is obliged to consider the merits or substance of the dismissal to determine whether the J27 reason given for the dismissal 1s supported by the relevant facts. 7.4 According to Section 52 (1) and (2) of the Employment Code Act, the Complainants were entitled to a valid reason for the dismissal, that is substantiated, as well an opportunity to be heard before the Respondent could dismiss them. In the seminal decision of Sarah Aliza Vekhnik v . Casa Dei Bambini Montessori Zambia Limited3 the Court of Appeal held that: "Section 36 of the Act has placed a requirement on an employer to give reasons for terminating an employee's employment. Employers are no longer at liberty to invoke a termination clause and give notice without assigning reasons for the termination. What is of critical importance to note, however, is that the reason or reasons given must be substantiated. We recall that our duty as a court is to ensure that the rules of natural iustice were complied with and to examine whether there was a sufficient substratum of facts to support the invocation of disciplinary procedures." (Underlining supplied by the Court for emphasis only) 7.5 Further, in Henry Chiwaya v. Corporate Air Limited,4 the Court of Appeal stated thus: "In the case of African Banking Corporation (Z) Limited v. Lazarous Mutente, we agreed with the learned authors of the book Labour Law in Zambia - An Introduction, by Chanda J28 Chungu and Ernest Beele, 2 nd Edition, Juta and Company (Pty) Ltd at page 103 when in interpreting Section 52 (2) of the Employment Code Act, they stated that as the law stands. the employer is required to give a valid reason for dismissal after giving the party the right to be heard and to substantiate the reason for the dismissal." (Emphasis, the Court's) 7.6 The Court of Appeal emphasised the need for employers to not only give a valid reason , but to substantiate the same and ensure that the rules of natural justice are observed that is, employees are given an opportunity to be heard prior to their termination. The opportunity to be heard must be meaningful and the employer must demonstrate that it took into consideration the employee's submissions before making its decision. 7.7 The substratum of the above authorities is that dismissal or termination will be unfair if effected without a valid reason, is unsubstantiated and/ or carried out without the employee being given a chance to be heard. 7 .8 Where the disciplinary action and decision to dismiss are neither lawful, fair nor a reasonable response to the conduct of the employee and/ or not supported by the J29 evidence, facts and circumstances, the dismissal will be considered unfair. 7.9 Moving to the circumstances herein , the Complainants together with other workers were involved in a peaceful demonstration. However, I have taken note of the fact that it was only the Complainants who were dismissed. I have considered the evidence adduced through the testimonies of the Respondent's witnesses and find that the action of 5 th April, 2022 did not amount to an unconstitutional industrial action to warrant the dismissal of the Complainants. 7.10 Section 5 of the Industrial and Labour Relations Act No 30 of 1997 as amended by Act No.8 of 2008 provides that: (1) Notwithstanding anything to the contrary contained in any other written law, and subject to this Act - (a) every employee shall, as between himself and his employer, have the following rights; (i) the right to take part in the formation of a trade union; (ii) the right to be a member of any trade union of his choice; J30 (b) every eligible employee shall as between himself and his employer, have the following rights - (i) the right, at any appropriate time, to take part in the activities of the trade union including any activities as, or with a view to becoming, an officer of the trade union and the right to seek election or accept appointment and, if elected or appointed, to hold office as such officer; and (ii) the right to absent himself from work without leave of the employer for the sole pwpose of taking part in the activities of the trade uriion, including any activities as, or with a view to becoming an officer of the trade union, and the leave of absence though applied for was unreasonably withheld by the employer. (2) No employer, or any person acting on his behalf shall- (a) prevent, dismiss, penalise or discriminate against or deter an employee from exercising any of the rights conferred on him by subsection (1 ); (b) refuse to engage a person. or dismiss. penalise or discriminate against any employee on the ground that. at the time of applying for an engagement. he was or was not a member of a trade union or of a particular trade union or other organisation of employees... (Emphasis supplied by the Court) 7 .11 It is not in dispute that prior to the 5 th April, 2022 the Respondent's workers did not belong to any union. I therefore find that the peaceful protest by the J31 Complainants was in their quest to join a trade union of their choice. 7 .12 I have carefully considered the Respondent's Code of Conduct and Disciplinary Code for General Employees. At page 9-10 it sta tes as fo llows: "3.5 Unconstitutional Industrial Action 3.5. 1 Strike Action Any concerted action by two or more emp loyees to withdraw their labour, or " go slow " or "work to rule " or otherwise inteifere with the normal operation of the Company in furtherance of a trade dispute or with the object of compelling the management to take or refrain from taking any specific action, where the matter or matters in dispute have not been processed through all the relevant procedures set out in the Recognition A greement and in any law for the time being in force relating to the settlement of industrial disputes and grievances. 3.5.2 Incitement to strike. Any act by an employee to incite, p ersuade or encourage an employee to take any unconstitutional strike action of the nature, and in the circumstance, referred to in 3 . 5.1. 3.5.3 Intimid ation Any act by an employee to intimidate any employee with the object of compelling him to take any action referred to in 3. 5. 1. Intimidation is an offence even if all the procedures fo r the settlement of a dispute contained in the agreement and the law have been exhausted. - J32 3.5.4 Willful damage to property Any act by an employee in damaging any plant, machinery equipment or installation by gross negligence 3.5.5 Sabotage Any act by employee in interrupting any supplies of power, fuel, materials, water or services necessary to the operations. (Underlining by the Court for emphasis only) 7 .13 The Respondent's Code of Conduct and Disciplinary Code for General Employees provides for the workers to adhere to the set-out procedures in the Recognition Agreement in resolving grievances. However, before the workers' action of 5th April, 2022 the Respondent did not have any Recognition Agreement with any Trade Union. I, therefore, wonder what procedures the workers were expected to follow in resolving the disputes. 7.14 Further, the testimonies of the Respondent's witnesses revealed that all the workers resolved to protest and were all desirous to be addressed by the Respondent over the formation of the union, which is within their rights. 7.15 The evidence shows that Mr. Gideon Sitenge, the Respondent's Human Resource Officer (RWl), was J33 present on the 5 th April, 2022 and was among the workers who were keen to be addressed by the Respondent. Further, Mr. Emmanuel Sikanyika, the Landscaper in the employ of the Respondent (RW3) , on the material day carried a placard because he wanted better conditions of service. 7.16 I am, therefore, not convinced that the Bus Driver, Mr. Patrick Lukama, was coerced into driving his fellow workers to Chambishi and later Garneton to protest for better conditions of services and demand for formation of a trade union. 7.17 It is also my observation from the evidence adduced, that the protest by the Respondent's workers was peaceful and no property was damaged. 7.18 Hence, I find that the Complainants' action did not amount to unconstitutional industrial action which would warrant summary dismissal as per the Respondent's Code of Conduct and Disciplinary Code for General Employees. It is my further finding that the Complainants' dismissal was unfair. J34 7 .19 The Compla inants have a lso claimed that t h ey were wrongfully dismissed. What constitutes wrongful dismissal? Wrongful dismissal refers to dismissing an employee in breach of contractual terms, such as non compliance with th e disciplinary procedure a p plicable. 7 .20 In Zambia Telecommunication Company Limited v . - Eva Banda5 the Court held that: "It is trite that wrongful dismissal is dismissal by the employ er in breach of the contract and gives rise to an action for w rongful dismissal at common law " 7 .21 Mwenda and Chunga (supra) made a comment on the foregoing at page 250 of their book as follows: " .. . Therefore, where an employee commits an offence that warrants dismissal, failure to follow the procedure in the contract does not render the dismissal wrongful. However, w here the reason for dismissal does not constitute a serious offence or d oes not immediately warrant dismissal, failure to comply with procedure laid out in the contract would be a ground for w rong ful dismissal. " (Underlining supplied by the Court fo r Emphasis only) 7 .22 They further observe at page 2 51 that: "Where an employee has not committed an offence for which the appropriate punishment is dismissal, and the procedural requirement before disciplinary action are not statutory but merely f orm part of the conditions of service in the contract J35 between the parties, a failure to follow such procedure would be a breach of contract and could possibly give rise to a claim for damages for wrongful dismissal ... " 7 .23 In Zambia Airways Corporation v. Gershom B. B Mubanga6, an employee alleged that the disciplinary code and grievance procedure governing his employment were not correctly followed when disciplinary proceedings were commenced against him. The Supreme Court held that: "The dismissal was wrongful because the employer when terminating the contract of employment did not follow the disciplinary code and grievance procedure that governed the employee's employment." 7.24 In the matter at hand, the Respondent's Employment Code of Conduct and Disciplinary Code for the General Employees at pages 2 and 6 respectively, states that: "2.1.2 employees accused of committing offences should be charged as soon as possible, preferably during the shift in which the offence occurred or come to light but in any event not later than working day immediately following." "2. 9.1 (a) the employee must be charged or told to present himself to the official for the complaint to be heard during or immediately following the shift during which the alleged offence was committed or came to light" 7.25 Although the Complainants were heard, a perusal of the evidence adduced by the Respondent, clearly shows that J36 the Complainants were not charged within the stipulated period. Further, at the hearing the Complainants were not accompanied by any witnesses notwithstanding the fact that the Code of Conduct and Disciplinary Code for General Employees in clause 2.7.2 gives employees the right to be accompanied by their shop stewards who are entitled to make a comment before the final decision is made. Furthermore, at the appeal, the Complainants were heard by a panel on which Mr. Gideon Sitenge, the Respondent's Human Resource Officer (RW 1) sat. RW 1 also sat in the disciplinary committee that heard the matter at first instance. 7.26 For the above reasons, I am inclined to hold that that the Respondent's Code of Conduct and Disciplinary Code for General Employees was not complied with in dismissing the Complainants. 7 .27 As such, I find that the Complainants were wrongfully dismissed. J37 Whether the Complainants are entitled to damages for wrongful/ unfair dismissal 7.28 In Zambia National Building Society v . Ernest Mukwamataba Nayunda7 , the Supreme Court held as follows : The essence of damages has always been that the injured party should be put, as far as monetary compensation can go, in about the same position he would have been had he not been injured. He should not be in a prejudiced position nor be unjustly enriched. 7 .29 Odgers' Principles of Pleadings and Practice, 21 st Edition, states at page 164 that: . . . General damages such as the law presume to be the nature or probable consequence of the Defendant's act need not be specifically pleaded. It arises by inference of law and need not, therefore, be proved by evidence and may be averred generally. 7.30 A claim for damages in employment matters can be sustained where an employee demonstrates breach of contract or unfair and unlawful conduct on the part of his employer. 7.31 Having found that the Complainants were wrongfully and unfairly dismissed, it follows that they are entitled to damages. J 3 8 7.32 In The Secretary and/or The Acting Secretary General of the Zambia Re d Cross Soc iety v . Charles Mus hitu8 the Supreme Court held that: "Since the resp ondent was wrongfully and unfairly dismissed, he is only entitled to an award of damages and nothing more. .. that the award of s eparate damages for wrongful dismissal and unfair dismissal by the trial court was a misdirection. " 7 .33 In light of th e foregoing authorities , the Plaintiff's claim fo r damages for wrongful/unfair dismissal has succeeded. Whether the Complainants are entitled to the sum of K144,040.00 in salary arrears and leave days from the tim e they joined the Respondent and compensation. 7 .34 In the c·ase of Khalid Mohammed v. The Attorney General9 the Court held that: A plaintiff must p rove his case and if he f ails to do so the mere failu re of the opponent's defence does not entitle him to judgment. I would not accep t the proposition that even if a plaintiff's case has collapsed of its inanition or fo r some reason or other, judgment should nevertheless be given to him on· the ground that defence set up by the opponent has also collapsed. Quite clearly a defendant in such circumstances would not even need a defence. J39 7 .35 Further, m Wilson Masauso Zulu v. Avondale Housing Project 10 Ngulube, DCJ , as he then was, stated the following: I think that it is accepted that where a plaintiff alleges... as indeed any other case where he makes any allegations, it is generally for him to prove those allegations. A plaintiff who has failed to prove his case cannot be entitled to judgment, whatever may be said of the opponent's case. 7.36 The Complainants in this case did not adduce any evidence to prove that they were owed salary arrears by the Respondent. If indeed they were owed salary arrears, they should have led evidence to prove their allegations. 7 .37 Therefore, the claim for the payment of salary arrears has no merit. 7.38 As for the Complainants' claim for compensation for commencing this action, the same is not tenable at law as the law does not provide for compensation for commencing a legal action. What it provides is costs which when awarded are given at the court's discretion as was stated in the case of Kuta Chambers (Sued as a firm) v. Simbulo (Suing as Administratrix of the estate of the late Francis Simbulo). 11 J40 7 .39 The Complainants have claimed for compensation from the Respondent for blocking and denying them the fundamental right to join a trade union of their choice for ten years and for suffering intimidation, bullying and abuse at the workplace and payment of compensation in the sum of K200,000 for extra duties. As held in the Khalid and Wilson Masauso cases (supra), he who alleges must prove. The Complainants have not led any evidence to prove that prior to 5 th April, 2022 they attempted to join a trade union and had been stopped from doing so by the Respondent and neither have they adduced any evidence to show that they performed extra duties for which they are entitled to the sum of K200,000.00, a fact admitted to by CW2 in cross examination. For the aforementioned reasons, I find the claim for compensation to lack merit. Whether the Complainants are entitled to gratuity 7.40 In relation to gratuity, prior to the enactment of the Employment Code Act, gratuity was an entitlement that could be claimed by an employee if it was expressly provided for in the contract of employment. The learned authors J41 Chungu and Beele in their book Labour Law m Zambia Second Edition, state as follows at page 98: "Under the previous regime, payment of a gratuity was either at the employer's discretion or a beneflt for certain protected groups of employees under the statutory instruments made pursuant to the Minimum Wages and Conditions of Employment Act. The Employment Code Act makes payment of a gratuity mandatory for all employees on long term contracts, at a rate of not less than twenty-five per cen t of an employee's basic pay." (Emphasis, the Court's) 7 .41 Hence, previously in the absence of any clause on gratuity, employees could not claim this benefit save for employees covered by the General and Shop Workers Orders who served at least ten years and reached retirement age . 7.42 In 20 19, the enactment of the Employment Code Act made the payment of gratuity at the rate not less than 25% of the basic salary earned mandatory for all employee s s erving on fixed / long-term contracts of employment. The entitlement to gratuity begun to accru e on 8 th May, 20 20, one year after the grace period given to employers to comply with the law expired. J42 7.43 In respect of the 1st Complainant, the contract produced was from 27th April, 2019 to 26 th April, 2020 and had provision for gratuity as per exhibit "AE 1 (a)" m the Complainant's Affidavit in Support of Complaint. 7.44 Evidence was led as to the payment of gratuity to the Complainants as follows : 7.45 In respect of the 1st Complainant, Exhibit "GS6(b)" in the Respondent's Affidavit in Opposition shows that he was paid gratuity for the year 2020 in the sum of KS,490.00. In April, 2021 he was paid gratuity as shown in the exhibit marked "GS6(a)" in the sum of KS,490.00. In 2022 gratuity was paid at KS,409.00 as per the 1st Complainant's pay slip for the month of April, 2022 exhibited in the Complainants' Affidavit in Support instead of the K5490.00 that was due to him, leaving a balance of K8 l.00. Therefore , the 1st Complainant is entitled to under payment of gratuity in the sum of K8 l . OO for the 2022 contract. 7.46 In respect of the 2 nd Complainant, evidence marked "GS6(e)" was adduced that he was in June 2020 paid gratuity in the sum of K6,309.00. The evidence marked "GS6(d)" shows J43 that in June, 2021 he was paid K6,309.00. However, m April, 2022, he was paid gratuity in the sum of KS ,257.50 as evidenced by exhibit "AE 4 ". This was an underpayment of Kl ,051 .50 as he was entitled to gratuity in the sum of K6,309.00. Therefore the 2 nd Complainant is entitled to under payment of gratuity in the sum of Kl,051.50 for the 2022 contract and the salaries for the months of May and June, 2022. the Complainants are entitled the alternative Whether declaration that they be deemed to have retired under voluntary separation. to 7.4 7 Having found that the Complainants were _wrongfully and unfairly dismissed from employment, the alternative declaration of retirement under voluntary separation has become irrelevant and drops off. 8. Conclusion and Orders 8.1 In conclusion, I find that the Complainants were unfairly and wrongfully dismissed. Consequently, I award them damages for wrongful dismissal, to be assessed by the Registrar. , , J44 8.2 I also order payment of interest on the sum found due in paragraph 8.1 above at short-term bank deposit rate from the date of the Writ until Judgment and thereafter, at current bank lending rate as determined by the Bank of Zambia until payment. 8.3 The Complainants' claims for salary arrears, leave days and compensation can only but fail and are dismissed. 8.4 Each party t o bear own cost s. Dated at Ndola this 25th day of October, 2024. ~