Astone Mwansa v Kokura Trading Ltd (2022/HPIR/1014) [2024] ZMHC 259 (30 September 2024)

-~ . ,- . ' .. ·. I . . ~ / . / IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DMSION 2022/HPIR/ 1014 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ASTONE MWANSA AND QURT OF ?,q LIISAKA ,-----..... JU SEP 2024 , \,. SEAL RELATIONS COMPLAINANT KOKURA TRADING LTD RESPONDENT Coram: Before Mrs. Justice M. S. Ngoma this 30th day of September, 2024. For the Complainant For the Respondent Ms. A. Boso of Legal Resources Chambers NIA JUDGMENT Legislation referred to: 1. The Employment Code Act No. 3 of 2019. 2. Minimum Wages and Conditions of Employment (Truck and Bus Drivers) Order 2020. Case referred to: 1. Robert Simeza & 3 Others v Elizabeth Mzyece (2011] ZMSC 3. 2. Care International Zambia Limited vs Mischeck Tembo (2018] ZMSC 378. 3. Supabets Sports Betting v Kalimukwa (2019] ZMSC 27. 4. Clive Mumba v Mabiza Resources Limited [2024] ZMHC 79. 5. Albert Mupila v. Yu-Wei COMP/ IRCLK/222/2022 [2022] ZMIC 7. Jl CamScanner 6. Shilling Bob Zinka v Attorney General (1990/ 1992) ZR 73. 7. Vekhnik v Casa Dei Bambini Montessori Zambia Ltd Appeal No. 129/2017. 8. Ng'onga v Alfred H. Knight Zambia Ltd [2019] ZMSC 359. 9. Stanbic Bank Zambia Limited v Natasha Patel [2024] ZMCA 190. Authoritative Texts Referred to: 1. Mwenda, W. S and Chungu, C., A Comprehensive Guide to Employment Law in Zambia (UNZA Press, 2021). INTRODUCTION 1. The complainant commenced this action by filing a notice of complaint and supporting affidavit seeking the following reliefs: i) ii) iii) iv) v) vi) Payment of leave days Gratuity Transport allowance Housing allowance Local and cross border subsistence allowance Risk allowance vii) Interest on the amounts due calculated at the Bank of Zambia commercial lending rate; and viii) Costs incidental to this action. COMPLAINANT·s AFFIDAVIT EVIDENCE 2. The complainant's affidavit evidence is that he was employed by the respondent as a Truck Driver on 23rd October, 2020. The contract of employment was exhibited as "AM 1" in the affidavit in support of the complaint. J2 CamScanner Y(,. ~-!' - . . . ;. · .. ··3. : The complainant stated that he was paid a monthly basic pay of K3, / 535.00. Pay slips for the months of February 2021 to April 2021 were exhibited as "AM2" in his affidavit. 4. It was the complainant's testimony that on 8th December, 2021, at around 10:00hours, along Chirundu-Lusaka Road, near Kafue area, 32 x 50kg bags of fertilizer were stolen from the truck that he was driving in a slow moving zone. 5. The complainant averred that he reported the theft to the police and later reported it to the respondent on the very day of the incident. The police issued a report exhibited as "AM3." 6. The complainant also averred that on 13th December, 2021 the respondent summarily dismissed him from employment without giving him an opportunity to be heard and defend himself. The letter of termination was exhibited as "AM4." 7. The complainant contended that the respondent stated in the dismissal letter that his dues would be paid to him in addition to one month's pay in lieu of notice. However, the respondent only paid him one month's pay in lieu of notice and did not pay his other dues. The complainant exhibited his Bank Statement as "AM5" in his affidavit to show the amount transferred to him. 8. The complainant further contended that the respondent threatened him with police action and forced him to sign a document stating that he had no further claim against the respondent. The said statement was exhibited as "AM6." J3 CamScanner ! · . ,, f_', ;,· ,, ,: { I - ' . / _, ·;r·· :·· .. ~·- /,: •. ~- It was the complainant's further testimony that he was .never paid risk . allowance. He exhibited a delivery note dated 14 June 2021 relating to a consignment of Urea Granular, exhibited as . "AM.7'' in his affidavit. 10. The complainant gave further testimony that he was not paid . subsistence allowance and exhibited a copy of paper work and expenses per trip as "AMS." The complainant then proceeded to provide a breakdown of the amounts claimed in respect of each relief sought as follows: i) ii) iii) iv) v) vi) Leave days - K3,535.00 Transport allowance - Kl,989.00 Gratuity- Kl0, 605.00 Subsistence allowance - K63, 280.00 (Total was K132, 580.00 less the subsistence allowance already paid by the respondent of K69,300.00) Risk allowance - K62, 892.95 Housing allowance - Kl3, 786.50 12. The complainant concluded by claiming for a total of K156, 088.45 from the respondent. RESPONDENT·s ANSWER AND AFFIDAVIT IN SUPPORT 13. The respondent filed an answer and supporting affidavit on 24th February 2023. The affidavit was deposed to by Mr. Henry Starosta, a manager in the respondent company. The respondent averred that the complainant was indeed employed as a Truck Driver by the respondent. However, the respondent denied the theft of the 32 x 50kg bags of fertilizer as reported by the complainant. J4 CamScanner The respondent contended that the complainant sold the bags of fertilizer thereby making the respondent pay the client for the missing bags due to the complainant·s dishonesty. 15. The respondent further averred that the complainant·s report at Kafue police station was meant to conceal his dishonesty as there were police stations that the complainant could have reported to but he by-passed these to make a report at Kafue where he had acquaintances. 16. The respondent averred that the complainant was dismissed on account of his dishonesty which caused the respondent to incur losses. 17. The respondent, therefore, contended that the complainant was not entitled to any claims for the following reasons: a) In relation to the leave days, the complainant had accumulated less than 24 days; b) The complainant was not entitled to gratuity as he had not completed his contract; c) Transport and housing allowance were at all times paid together with the salary; d) Local and cross border subsistence allowance were paid each time the complainant undertook a trip e) The complainant was not entitled to risk allowance because he did not carry dangerous goods. 18. The respondent thereby made a counterclaim seeking the following reliefs: JS CamScanner ! ,f ' \' 1;·: ·.· •. :\ ' '" ,, a) Restitution of a cooker, fire extinguisher, and other property that the complainant failed to return after his · dismissal; ~ b) Damages for loss of use c) Costs; d) further or other reliefs. HEARING 19. The complainant was represented by Ms. A. M Boso of Legal Resources Chambers while there was no appearance on behalf of the respondent. The complainant's counsel informed the court that a notice of hearing was served on the respondent's counsel as exhibited in the Affidavit of Service filed into court. Having satisfied myself that the respondent was aware of the date of hearing, I proceeded to hear the matter on the basis that the respondent was absent from court without any reason. I was fortified in talcing this course by the case of Robert Simeza and 3 Others vs Elizabeth Mzyce 1 in which the Supreme Court guided that no procedural injustice is occasioned when a court proceeds where a party who was aware of proceedings did not appear before court. 20. The complainant proceeded to testify on his own behalf and did not call any witnesses. 21. It was the complainant's oral testimony that he was employed as a cross-border truck driver by the respondent on 23rd October 2020. He stated that he was given a contract when he was employed and his salary was K3, 300.00 per month. He worked for the respondent for 1 year and 2 months in total. J6 CamScanner _He further testified that he was coming from Mozambique when thieves attacked him and stole 32 x 50kg bags of fertilizer. He _ proceeded to the nearest police station to report the incident and obtained a police report. He also reported the theft to the respondent and went to offload the remainder of the bags of fertilizer where he was assigned to take them. The complainant testified that the total number of bags of fertilizer that he had was 680, and upon offloading the bags, it was discovered that 32 bags were missing. He then returned to the respondent and submitted the proof of delivery. He received a dismissal letter from the respondent 3 days later, on 13th December 2021, stating that his negligence was unacceptable. The letter also stated that any dues would be transferred to his account together with one month's salary in lieu of notice. 23. The complainant testified that the negligence referred to by the respondent was the loss of 32 bags of fertilizer and that this was the second time he was attacked by thieves although no losses were incurred the first time. Upon receiving the termination letter, the complainant presented the matter to the SADC Truck Driver Association which advised him to report the matter to the Labour Commissioner and computed his dues for presentation. The complainant proceeded as advised and a meeting was called by the Labour Commissioner, however, the respondent did not attend the said meeting. 24. The complainant claimed that he was only paid one month's salary in lieu of notice. However, he was entitled to his accrued salary, housing allowance, transport allowance, risk allowance and leave pay. He further claimed that he was entitled to USDI00 per trip for food for 3 weeks or a lesser period of time on the trip. The J7 CamScanner . . --- .- complainant stated that he had presented evidence before the Court to · show how the USD 100 was paid. 25. At the close of the trial, counsel for the complainant requested to file written submissions within one week and the request was granted accordingly. SUBMISSIONS 26. The complainant's counsel opened their submissions by providing a summary of facts as already produced in the complainant·s affidavit evidence. Counsel then summarized the complainant's claims being risk allowance, subsistence allowance for both local and cross border trips, transport allowance, gratuity and housing allowance, which in total amount to ZMW 156,088.45. 27. Counsel proceeded to summarize the law applicable to the case by reproducing verbatim the provisions of the Employment Code Act No. 3 of 2019, namely section 36 and section 73 on annual leave and payment of gratuity, respectively. 28. Counsel also reproduced verbatim the provisions of the Minimum Wages and Conditions of Employment (Truck and Bus Drivers) Order, 2020, namely, regulations 7, 9, 10, 11, 14 and 15 on annual leave, transport allowance, lunch allowance, subsistence allowance for local trips, risk allowance and cross border subsistence allowance, respectively. Counsel further highlighted that the complainant was entitled to housing allowance as per the terms of the employment contract, being 30% of his basic pay. JS CamScanner . -· /~ .. ,~ ..... ' !/-: ,. ,. t -. ," · Counsel proceeded to make submissions in relation to unfair and wrongful dismissal, citing the case of Care International Zambia Limited vs Mischeck Tembo2 and Supabets Sports Betting vs Batuke Kalimukwa3 in which the Supreme Court made a distinction between unfair dismissal and wrongful dismissal . Counsel also cited authors Mwenda and Chungu in their book, A Comprehensive Guide to Employment law in Zambia, who define unfair dismissal as dismissal that is contrary to statute or based on an unsubstantial ground. Counsel further cited Selwyn's Law of Employment, 17th Edition at page 429 where the author states that one way in which wrongful dismissal may occur is when an employer terminates the employment of an employee without carrying out the disciplinary procedure which was incorporated into the employee's contract of employment. 30. Counsel thus submitted that the complainant was unfairly and wrongfully dismissed by the respondent because the respondent did not follow its termination procedure provided in the contract of employment and the Employment Code Act by not giving the complainant time to exculpate himself and by not subjecting him to an investigation or disciplinary hearing. 31. Counsel concluded the submissions by stating that the complainant is entitled to the reliefs claimed in accordance with the Minimum Wages and Conditions of Employment (Bus and Truck Drivers) Order, 2020. J9 CamScanner , ... ,--.. " ' .,.,,- ,· · -. ,._-<\ 1/··_.-, --~·-: "(:7.:.~?:·-7~:~~ .. . ' ;~:::::~" .. _ 32 . . Analyzing the evidence before me and the legal arguments and submissions by the complainant, the issues for determination in my view are the following: (i) whether or not the termination of the complainant's employment was unfair and/or wrongful; (ii) whether the complainant is entitled to damages for the unfair and/or wrongful termination of employment; (iii) whether or not the complainant is entitled to the reliefs sought, namely gratuity, leave days, transport allowance, lunch allowance, housing allowance, local and cross border subsistence allowances and risk allowance. a) Whether or not the termination of the complainant's employment was unfair and/ or wrongful. 33. In Care International Zambia Limited v Misheck Tembo2 , the Supreme Court distinguished unfair dismissal from wrongful dismissal. The court endorsed Winnie Sithole Mwenda and Chanda Chungu, who state in their book A Comprehensive Guide to Employment Law in Zambia: "Unlike wrongful dismissal, unfair dismissal is a creation of statute ... " 34. The Supreme Court also cited Sprack John, an employment law jurist, who has stated in his book Employment Law and Practice, 1 •t Edition at page 11 7 that: "Wrongful dismissal ... essentially is a dismissal which is contrary to · the contract and its roots lie in the common J10 CamScanner .lf \"~ ·? ":.; · .f :· ,1· -.·· · i law ... [In contrast] unfair dismissal is dismissal contrary to . statute ... Unfair dismissal is, therefore, usually a much more substantial right for the employee and the consequences for the employer of dismissing unfairly are usually much more serious than those which attend a wrongful dismissal" 35. In order to make a determination of whether the complainant was j-· employment contract must be considered so as to arrive at a wrongfully terminated, the termination procedure under the conclusion of whether the termination was made contrary to the contract. The respondent in this matter terminated the complainant's contract with immediate effect, citing performance and gross negligence as the reasons for the termination. Additionally, the respondent advised that the complainant would be paid K3, 300.00 being one month's pay in lieu of notice of termination. The complainant's contract submitted before this court is entitled "Fixed Term Temporary Employment 3 Months' Probation." It provides for termination by either party to the contract by providing one day's notice or payment of one day's basic pay in lieu of notice. 36. This court has taken note of the duration of this contract being from 23rd October 2020 to 23rd January 2021. However, the complainant continued in employment with the respondent up to the 13th December 2021 when his contract was terminated as evidenced by the termination of contract letter adduced by the complainant. The complainant did not adduce any contract in respect of the period after the expiration of the probationary contract, as such, there is no evidence of the written confirmation of the complainant's probationary contract as required by the Employment Code Act at section 27 (4). However, the very section 27 (4) provides that: Jll CamScanner i 'l:I' ,,·n,1 -il ;: ·;;:_'.~Jr:) ",,, w'luJre ths empl.og• r doe• not nottfg the e.mplogee tn writing , · ·_ ·· .. of th'4 conftrmatton, the e mp1.ogee • hall be conftrmed:. tn -the po• ttton from tlw dau of tlul exptrg of the probation period.,, . . . . ·'.' . ' ' , ;,- . · . '• ,. ' ' . ' ::· ,,f',· .:_ ···:. :_ 7. On the baaio of th io uection., the compla inant is, therefore1 deemed to have been a confirmed employee of the respondent. 38, 'fhe next issue t hat arises is th e type of employment the complainant hould be categorized u nder. It has been noted that the Employment Code Act is silent on the na ture or type of contract an employee is deemed to be opera ting under upon the presumption of confirmation a fter a proba tiona ry contra ct in terms of section 27 (4). 39, The High Court in Clive Mumba v Mabiza Resources Limited4 made the following finding: "Therefore, the default type of contract ts a permanent one. However, where the contract contains a clause fixing the duration and stating a pre-determined end date, this would change the characterization of the contract. Put differently, a contract is presumed to be permanent in nature, unless the contrary is proven." 40. Additionally, in Albert Mupila vs Yu- Wei5 , the High Court made a finding that: "Where a contract does not fix a date for expiry, it is presumed to be a permanent contract that expires at retirement age unless terminated tn terms of the law. J12 -.:· ~ -_:~. ~- C a m S c a n n e r ,' -.. . ;~-~·:,.:·~ :-::\7t''· ..... ;~~--~~·s ~--:~·- ·9 • •• • : · :(~•r~ . 41. . The above stated positions by the learned Judges of the High Court are in harmony with the views of the learned authors Mwenda and Chungu in their book, A Comprehensive Guide to Employment Law in Zambia, at page 23 where permanent employment is defined as follows: "In Secretary of State for Employment v Globe Elastic Thread Company Limited [(1979) 2 ALL ER 1077] the court held that a person's employment during any period should be presumed to have been continuous unless the contrary is proved. Hence it is always assumed that an employee is infull-time employment unless there is evidence to the contrary such as the inclusion of a.fixed term in the contract of employment. 42. I am, therefore, inclined to make a finding that, in the absence of a written contract posts the probationary period, as neither party adduced one into evidence; and in the absence of any indication of a fixed duration or pre-determined end of the contract, the complainant will be deemed to have been employed under a permanent and pensionable contract. Additionally, the conditions or terms of employment will be deemed to be those provided by the Employment Code Act being default provisions and minimum standards of employment as established by the said Act. 43. I shall now turn my attention to determining the main issue which is whether or not the complainant was wrongfully or unfairly dismissed. The complainant, in his submissions, cited failure by the respondent to follow the termination procedure in the contract of employment and in the Employment Code Act as amounting .to unfair and wrongful termination. C a m S c a n n e r J13 -:::J!lf ,: t •. ••;~~-· '-,~. . ' ... ,' ._-:-~: '; , 1·. ' :J; ·, ·· •' 44. .,. Having tmrlier .mnda the distinotkm btl tWo(m wrongful r·cn·mlno tlnn und unfnir torminntion, it IR 1ny llndinM lhnl Lhc clnlm of wrongful termination lucks meri t nn there IR no cvldonco to lndlco.tc thut Ltn provision of the employrncnt. controcl rognrdln g th e tc rmlnnUon procedure wns breached. Tho pro butlonory con tmct o.dduced In evidence does not provide for any proccdur·oB or proceuRcH to bt followed when terminating a contract of employmen t, rt merely provides for the mode of termination being tha t either par ty may terminate the contract giving one day's no tice period or one day' basic pay in lieu of notice, except for summary di smissal where termination is with immediate effect wi thout payment in Heu of notice. Therefore, seeing as the respondent paid the complainant one month's pay in lieu of notice, there is no basis for a cla im of wrongful termination. 45. Additionally, the assertion that the complainant was summarily dismissed equally lacks merit due to the payment made in lieu of notice. A summary dismissal in terms of section 50( 1) and (2) of the Employment Code Act allows an employer to dismiss an employee without the provision of notice or payment in lieu of notice provided that the reasons for the termination are as provided under section 50(1). Bearing in mind that the respondent made a payment in lieu of notice, the termination, although effective immediately, cannot be classified as summary due to the payment in lieu of notice. Nevertheless, the absence of a disciplinary hearing as alleged by the complainant does raise a presumption of unfair termination, which I shall now consider. C a m S c a n n e r J14 •~ • •··, '", ;. . j..· •c~, -~ f-p ;-i:. . .;,,.._ ·- •- ' ~•'r ., .. 46 • .1~ .. . ' . As stated earlier, unfair dismissal is dismissal contrary to statute, the governing statute being the Employment Code Act. Similarly, unfair termination is termination contrary to statute. The procedure in terms of termination by the employer is outlined at section 52 of the Employment Code Act thus: "52 (l) A contract of employment terminates in the manner stated in the contract of employment or in any other manner in which a contract of employment is deemed to terminate under this Act or any other law, except that where an employer terminates the contract, the employer shall give reasons to the employee for the termination of the employee's contract of employment; and (2) An employer shall not terminate a contract of employment of an employee without valid reasons for the termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking. (3) an employer shall not terminate the contract of employment of an employee for reasons related to an employee's conduct or performance, before the employee is accorded an opportunity to be heard." (Emphasis added). 4 7. The above stated provision outlines one of the principles of natural justice referred to as "audi alterem partem" which means that a party should not be condemned unheard. The Supreme Court, in Shilling Bob Zinka vs The Attomey6 held that: "Principles of natural justice - an English law legacy, are implicit in the concept of fair adjudication. These principles are substantive principles and are two-fold, namely, that no man shall be ajudge on his own cause, that is, an adjudicator must be disinterested and unbiased (nemo judex in causa swa} and that no man shall be condemned unheard, that is, parties JlS C a m S c a n n e r ~t;~~?'?~" ~tI,,.~{'.'I: ,I. shall be given adequate notice and opportunity to be heard. (audi alteram partem)". (Emphasis added) 48. · In the case ofVekhnik vs Casa Dei Bambini Montesssi Zambia Limited, 7 the Court of Appeal delved into the issue of what constitutes the right to be heard and stated thus: "The right to a fair hearing requires that individuals should not be penalized by decisions affecting their rights of legitimate expectation unless they have been given R,rior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case' (emphasis added) 49. Additionally, the Court of Appeal made a consideration of what the role of the court is when hearing employment matters as follows: " .... Courts are not required to sit as appellate tribunals against the decision of employers' internal tribunals and review what others have- done. The duty of the court is to examine whether the employer possessed the necessary disciplinary powers and if the same powers were exercised in due form." 50. In light of the authorities stated above, I have considered the circumstances that transpired between the complainant and the respondent. The respondent suspected the complainant of dishonesty and claimed that the complainant had in fact sold the bags of fertilizer that the complainant alleged had been stolen. 51. The complainant tendered a letter whereby the respondent cited performance and gross negligence as the reason for the termination. However, there was no evidence tendered by either party indicating that the complainant was given a charge letter or prior notification J16 C a m S c a n n e r . "> '~~~~}!1 ,. ' ,. ,~ . .. ~\, ; :-:~ ... 111H'I 1u1 npporb1 tnl ty 1,0 mrnu lpnt.c hlmoelf or t)e of tin ofl'enot-1 t1ul:1Jeoltid 10 n hr:i11l'IIH~, 'l'ho1•nroro, ln ~hr, ubM~rwe of nny rnbllttal nr 0tlVlclfmou b,v ll w l'Oll)JUfldtJ ll l , Ll w (J()lflplnl.nflnl.' tt tcRLlmony that he ,wccptcd . The Wijt1 not. 11,lvr, 11 mi or. JJ)Ol'lUnlty reuponcl tJ1\t, 1.hci1·ofbro 1 did not cxorolnc, I. Lfl pcJwcr·n In due form and it t. Jhoukl hnvo nllowod Che comploJno.n t n fnl.r hearin g to allow him to xculpulo hlmttt,11', therufm•e, find the complainant's rn1:)loymonl wno unlh lrly tcrmlnntcd by the reRpondent due to the l:Jt, bJHll'd t;hnt ltJ I,() I, rCBJ}Ondcnt'H fn.lh.u·o LcJ give the cmnplalnant a chance to be heard on the ullegutlt)nA before termh1'\tlng h IR co.ntract. fill complginqnt «• entitled to damages for unfair termination of amploymant 52. Having found that the termination was unfair, I must now address the issue of damages. In the case of Chansa Ng-onga v Alfred H. Knight (Z) Llmlted8, the Supreme Court has stated that the normal measure of damages in wrongful/unlawful termination cases is the payment of money equivalent to, or in lieu of the notice, that would otherwise lawfully terminate the employment contract. This should only be departed from in cases where there are other compelling circumstances to warrant an award in excess of that determinable with reference to the notice period. 53. The Supreme Court further stated that the mere fact of being dismissed is damage or loss in itself. However, to compensate this loss beyond the normal common law compensation determinable by reference to the termination notice period provision, · the complainant must do more to prove further loss. C a m S c a n n e r J17 ,'Jyr;rc·.' .; • ' J • JI ', .. _ •·"f]?~i[~~- _) ·_c . 52 Therefore, in the absence of any proof that the complainant has . ,f , ·: '. · ~~r, . ·: . normal quantum of damages is awarded to him, being one month's . salary. suffered more loss than the mere fact of being terminated, the ~- -i' . : ,\''r · ; ! l ! I !- ~ I . iii} Whether or not the complainant is entitled to the reliefs sought. a) Gratuity 55. The complainant has claimed for gratuity in the sum of KlO, 605. The respondent, in its answer, stated that the complainant is not entitled to gratuity because he did not complete his contract. 56. Section 73 of the Employment Code Act provides that gratuity is paid at the end of a long-term contract. A long-term contract has been defined under section 3 as a contract of service either for a period exceeding twelve months, renewable for a further term or for the performance of a specific task or project to be undertaken over a specified period of time, and whose termination is fixed in advance by both parties. 57. However, having earlier made a finding that the complainant is deemed to be a permanent employee, the complainant is not entitled to gratuity and I find that this claim lacks merit. 58. In considering an alternative claim of severance pay, I am guided by . the recent Court of Appeal decision in Stanbic Bank Zambia Limited vs Natasha Patel9 where the Court of Appeal went to great lengths to address the hitherto contentious issue regarding whether permanent and pensionable employees are entitled to severance pay. The decision of the Court of Appeal was that an employee on J18 C a m S c a n n e r ' . •• ... ·· . ' ' ·,7;;-,-~? 'fo/:~'''~ I~?,l! .· ... ; /Ai \.''\~Y.\\\f\\\l"'H\: t\\\t\ r\\"\\¥\~\,\W\hh~ \\l\'·\\\~ h, \\H\ \\HH\\~~, ,n ;W\1~\1\\\\'t) \'f\-Y n~ \\ ,w\1\\\t\\Wm t\n,, \W\\t'\nHn\\hl \1nnw1w1 hi m,t ~, ,H)IH \\ W\ \,I'~~-~"' h\\'t\\hm \n ,~~\'-\\\~ ,w ~w,,\hm n,,\, )h'h On \\w h1\U\i\ 1,1' , hh~ \:\,\~,h \ fim\ \lHl\ th~ \~\\\\\\)h\\nt\\" hi \\x\l ~nHt\~(, h\ ~P\1r:r+,,w~1 rnw hiwln\l hf,m \\t!l\\\w,\ h) \\iw" b~rn, \_,\\\\l)h\\1m\ "" \W\'mi,,wm I\\\\\ \Wn~hmt,hl~ b\)~\~1 ,: b) Jajl\\ttL~V& 59, o. i\'h~ \mmp\nlrn\nt '-'\n\m~ nw t\w \)f-~inwnt nt' hi~ h,1w\l rhw~ f\'nm ~~''' t)elub\H' ~m~t) "' ' ~\II n,\et'mhm' ~O!J \ whlrh l\\'t'nt, Hn~ lo him ~mount tn lxn, nAft,00, 'l'lw \'Ntponcl~nt h~,~ ,m~,, s\fft~d Hmt t-h~ oompln\mmt .w,1,mmlnt ~,l \t1~:, Ihm, Q,t h'miij ctrw~ ln both tht) \1)1 th~ r~~pouctont'R m\~lH\®l\ 1"'ht t\l\8W~,, nnd nt'1thwll t\WO\' I\ t'et'pOntltm\, tlw1>t,I\Wt\ hnf\ nnt Ot:)\\ ltid t lw romph, tnfm t ls cluhu \'o801'fllnR hltl lt11we diWS1 tmt hn~ merely (1\\t'~lionect the nl\mber Qf loo.vo cit\)'ti lho cmnplnlmmt IR entJl\(l{\ tt)1 wlth,mt p1't'posinB the ncclu·oto numht,r nl' the ~nk\ leovQ doy~. The Minhnum Wo_ROS ond Condition of l~mt)loyment rt'ruck ~nd Bus Dl'ivet's) Order, 2t)20 pro"ldes thnt on cmployur shnll si-u.nt leave of obscncc: on t\,1l1 pny to n driver who hns completed si~ montl,s continuou8 sc:rvice ut the rute of two cloys per month. 61. 'l'hese provisions apply to on employee m.\tomuticnlly despite the absence of such provisions in their employment contract. Therefore, the comploinunt, hnving been nn employee from 23rd October 2020 to 13111 December 2021, remained in continuous employment with the respondent for 13 months thereby satisfying the threshold under the Minimum Wages and Conditions of Employment (Truck and Bus Drivers) order, 2020. The complainant is therefore entitled to leave J19 C a m S c a n n e r f/F'.£"~,, :\ pay in respect of his accrued leave d ~ whfoh amount is to be taxed -b-'i' the Re~rar. ., • •r.-- c) Transport Allowance 6 2. The complainant claimed for transport allor11ance of K153.00 per month. The respondent did not deny or traverse this point in either its answer or supporting affidavit filed herein. However, the complainant· s contract submitted before this court contains a provision for transport allowance of K153.00 as part of his remuneration. The complainant did not adduce any evidence before the court demonstrating that transport allowance was not paid despite the allowance being reflected in his contract. Therefore, this court cannot arrive at a finding that the complainant is entitled to transport allowance. Hence this claim fails. dJ' Subsistence Allowance 63. The complainant has made a claim for subsistence allowance for local and cross border trips ofK63, 280.00 in total after subtracting a sum of K69, 300.00 which he claims has already been paid by the respondent.. Subsistence allowance for truck drivers is provided under the Minimum Wages and Conditions of Employment (Truck and Bus Drivers) Order, 2020. An employer has an obligation to pay a subsistence allowance of a minimum of K390.00 per night for local trips and USD25.00 per night for cross-border trips to a driver who spends a night away from home to attend to any business of the emp10yer. C a m S c a n n e r J20 7, •• ,•no-• \, ;·: .. :·64.· ·. While the respondent did not deny or traverse this claim in its answer and supporting affidavit, the onus is on the complainant to prove his claim and justify the amounts provided by adducing evidence of the trips taken and how many nights were spent on the said trips. The complainant only adduced into evidence a document called Paperwork and Expenses for Truck per Trip dated 12th November 2021 to demonstrate that the money he was given when he had a trip outside Zambia did not include subsistence allowance. This document is insufficient to prove the complainant's claim for subsistence allowance in respect of the trips he undertook for the respondent as it does not indicate the number of trips he undertook and the days involved. Therefore, there is no evidence before this court to make a consideration, let alone make an award, for unpaid subsistence allowance for both local and foreign trips. e) Risk Allowance 65. The complainant made a claim for risk allowance for the duration of his contract with the respondent. The respondent denied this claim for the reason that the complainant had never carried dangerous goods. 56. The Minimum Wages and Conditions of Employment (Truck and Bus Drivers) Order, 2020 provides for risk allowance for carrying of abnormal loads or dangerous goods. Dangerous goods have been defined, at Regulation 2, as "substances or articles that pose a risk to people, property or the environment, due to their chemical or physical properties." C a m S c a n n e r J21 (~~_.::·~•~ _:: ..... ' ' [" "° ""'." ~' • l " ". A ~:~ : 67. The complainant did not adduce any evidence to prove that he carried abnormal loads or dangerous goods at any point during the duration of _his employment with the respondent. Therefore, this · court has no basis to make a finding of whether the complainant was entitled to a risk allowance at any point during his engagement by the respondent. Therefore, this claim equally fails. f) Housing Allowance 68. The complainant has claimed for housing allowance of K13, 786.5 for the duration of his contract. I have taken note that the complainant's probationary contract has provided for housing allowance of 30% of the basic pay which amounts to K835.20. The other amounts contained in the probationary contract are a basic pay of K2, 784.00, lunch allowance of K363.00 and transport allowance of K153.00. An addition of the basic pay and all allowances inclusive of the housing allowance amounts to K4, 135.2 while an addition of the basic pay and all allowances in exclusion to the housing allowance amounts to K3, 300.00. This K3, 300.00 is the amount the respondent stated was payable as one month's salary in lieu of the notice of termination, indicating that housing allowance of K835.20 was not paid to the complainant. 69. Additionally, the pay slips of February 2021 to April 2021 in the complainant's affidavit indicate that the gross pay is K3, 535.00, hence there is an increase of K235 from K3, 300.00 stated above. However, I have observed that the Minimum Wages Order, 2020 which came into effect on 14 December 2020 created a statutory minimum basic pay of K3, 000.00 for truck drivers. Therefore, the basic pay of K2, 784.00 on the probationary contract fell below the minimum standard as at January 2021. This difference of K235.00 J22 C a m S c a n n e r ;JiW:P,·· if~i·:./{_:'.:~;-· ·· ·. 1· · ,. -, :- •:.'· ~{J'.'.'' t-:.-:;:· - when -add~d to the basic pay bringo the banic pa.y to 3, 019.00 . . ' ·:= thereby complying with the minimum baaic wage au provided, . ,, ,, ' "'?t~'1fi~ r e n n a c S m a C 70. Moreover, regulation 5 of the Minimum Wages prohibits th,. reduction of the wages and any benefits enjoyed by a driver bcfor'* the enactment of the Order. Therefore, the increase of K235,00 is deemed to be an increase to the basic pay as the other allowances · were in compliance with the Minimum Wages Order, 2020 and allowances above the minimum regulation cannot be reduced. 1 therefore find that the respondent did not pay the housing allowance to the complainant as alleged, I accordingly find that the complainant is entitled to housing allowance for the entire duration of his contract. The amount shall be assessed by the Registrar. g) Accrued Salary 71. This court has taken note of the payment made on 25th January, 2022 to the complainant of K3, 324.00 as shown on the bank statement adduced in evidence by affidavit. The complainant has stated that he was not paid his accrued salary for the month of December 2021 and the only amount that was transferred to him was the sum of K3, 324.00 being payment in lieu of notice. The respondent did not address or deny this allegation nor dispute the bank statement contained in the complainant· s supporting affidavit. Therefore, the complainant's evidence being undisputed shall be taken as a fact. The complainant is therefore entitled to be paid his accrued salary in the month of December 2021 up to the point of the termination of contract, being 13 days in total, to be assessed by the Hon. Registrar. J23 ' ,.~ ; r e n n a c S m a C _ _ _, :,< . . . . . , . - : - · , . . . . . / i '{ ·- < -· . ~ . - - ~ - , . . . . . . : - j ' ,- . ; t , : ~ . _ . ~ . . . j ul ' the date of the termination on 13 December, 2021 and · the said amount is to be assessed by the Hon. Registrar. iv) The complainant is awarded 26 (Twenty-six) leave days to be assessed by the Hon. Registrar. v) The complainant is awarded housing allowance of 30% of his basic pay for the entire duration of his employment being 30% of K2, 784.00 from October 2020 to December 2020 and 30% of K3, 019.00 from January 2021 to December 2021 to be assessed by the Hon. Registrar. vi) The amounts found due after the assessment shall attract interest at the commercial bank deposit rate from the date of the notice of complaint to the date of judgment and thereafter at the current lending rate as determined by the Bank of Zambia from the date of judgment until full payment. vii) The respondent's counterclaim is dismissed in its entirety for lack merit. viii) Each party will bear their own costs. Delivered at Lusaka this 30th day 9f September, 2024 . . ~ . ~ i ~ .• r--.. ,.r ~,;.--. - ~. ~-C OF '.;-s..._ :',;- ~ ~-. ,: , (_ ,_:l, - -~ . ,',,.·<_· , I ' --....... . , - J i •. . , .. "" " ...... M:s.;ro~~~t' l--·' O S[p 2029 · HIGH COURT JUD'Gls'.:~, ----. . ; \ \ \ •J J - J, / - j ; / - ""- , .. .., - . .....,_·~ ~ ~jl'• .,-~r~·r . · C, ,. ~ /J,. 'L/1-,·~ ... ....... I . - ---- . ,,i,vo7, 1. Us;,K,; C a m S c a n n e r J25