Dalisto Mwanza v ZESCO Limited (2023/HPPIR/612) [2025] ZMHC 118 (23 June 2025)

IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: DALISTO MWANZA AND ZESCO LIMITED 2023/HPIR/612 COMPLAINANT RESPONDENT Coram: Before Mrs. Justice M. S . Ngoma this 23rd day of June, 2025 For the Complainant: M rs. K. M K abalata, Miss M Seketi Ms. Nkobali Chibeleka, all of Chalwe and K a balata Legal Practitioners. For the Respond en t: Ms. J. Ku nda, In-hou se Counsel. JUDGMENT Legislation referred to: 1. The Employment Code Act No. 3 of 2019. 2. Law Reform (Miscellaneous Provisions) Act, Chapter 74 of the Laws of Zambia. 3 . Rule 44 of the Industrial Relations Rules, Chapter 269 of the Laws of Zambia. Cases referred to: 1. Care International Zambia Limited vs Misheck Tembo Selected Judgment No. 56 of 2018. 2. Gilbert Himbayi Hamalambo vs Zambia National Building SCZ 8/050/2013. Lukama and Others V Lint Company of Zambia Limited SCZ No. 8 of 1998. J1 3. Ignitious Muleba Sule V ZESCO Limited 170/2002 4. Nketani Vs Workers Compensation Control Board: Selected Judgment No. 2 of 2003. 5. Roy Jere Vs ZESCO Limited 2019 /HK/148. 6. Margaret Simeza and 52 Others vs Society Family Health Appeal No. 155 of 2011. 7. Salimu Banda vs Zesco Limited Appeal No. 211 of 2023/SCZ/8/276. 8. Kasumpa Kabalaka and 3 Others vs Zesco Limited Complaint No. IRCLK 87 of 2019. 9. Chilanga Cement V Kasote Singogo 2009 ZR 122. 10. Zesco Limited V Patricia Kabwe Lungu SCZ Appeal No. 236/2013. 11. 12. 13. 14. 15. Swarp Spinning Mills Pie v Chileshe and Others (2002) ZR 23. Barclays Bank Zambia PLC V Weston Luwi & Suzgo Ngulube SCZ Appeal No. 07.2012. Joseph Chitomfwa v Ndola Lime Company Limited. ZESCO Vs Edward Angel Kahale Appeal No. 37.2020. Sarah Aliza Vekhnik V Casa Dei Bambini Montessori Zambia CAZ APPEAL NO. 129 OF 2017. 16. Afrope Zambia Limited vs Authority Chate and 5 Others SCZ Appeal No. 160/2013. 17. 18. Kitwe City Council Vs William Ng'uni (2005) ZR 57. ZESCO Limited Vs Alexis Mabuku Mutate SCZ Appeal No. 184.2004. 19. Indeni Petroleum Refinery Company Limited V VG Limited (2009) 197. 20. BP Zambia PLC V Expendito Chipasha Chipalo scz Judgment No. 12 of 2014. 21. Zambia National Commercial Bank PLC V Geofrey Muyamwa and 88 Others. J2 Other authoritative text 1. Mwenda, W. S and Chungu, C, A Comprehensive Guide to Employment Law in Zambia, LexisNexis, Second Edition. BACKGROUND 1. This matter was commenced by way of notice of complaint accompanied by an affidavit both dated 14th June, 2023. The complainant subsequently amended his notice of complaint and supporting affidavit on 29th August 2023 after obtaining leave to amend cour t process. 2. The complainant was employed by the respondent from March, 2016 until March, 2023 when, according to him, he took the option offered to him by the respondent to be declared redundant, and to his chagrin, the respondent treated him as though he was the one wh o unilaterally instigated or requested to be declared redundant, and as a consequence, d enied him notice pay of three (3) months' basic pay which he should have been paid had the respondent considered that it instigated the redundancy. In view of this, the complainant instituted this action in which he sought the following reliefs: a) An Order that the complainant is and was, at the date of separation, entitled to payment of notice pay amounting to three (3) months' basic pay, repatriation pay and any other legal entitlement; b) Damages for breach of contract in the sum of 12 months' salary; c) Salaries for all the months in which the payment referred to in paragraph (a) above have not been paid to the complainant until the time he shall be paid in full; d) An Order for payment of 6 months' salary as damages for mental stress and anguish; J3 e) Damages for wrongful redundancy and failure to offer the complainant the job before re-advertising; J] Interest at the Bank of Zambia Policy rate from the date of issue of Court process until Judgment and current bank lending rate from the date of Judgment until payment; and g) Costs and any other relief the court may deem fit. 3. The respondent filed an answer and accompanying affidavit on 14th September, 2023, in which it disputed all the complainant's claims. COMPLAINANT'S AFFIDAVIT EVIDENCE 4. It was the complainant's affidavit testimony that he was employed by the respondent on 1st March, 2016 as an IT Technologist under unionised conditions of service and was elevated to grade M8, upon confirmation, to serve as Graduate Public Relations Officer on permanent and pensionable conditions of service for non-represented staff. The copies of the letter of appointment to the position of Graduate Public Relations Officer and conditions of service for non-represented staff are produced in the affidavit and marked "DM l" and "DM2", respectively. 5. It was the complainant's further affidavit testimony that in early March, 2023, he was called to a meeting addressed by the respondent's Director Human Resources, which meeting was attended by two senior managers and other employees from the marketing department where he and the other employees were informed that they had been surrendered to the Human Capital Department ("Human Capital") because of the restructuring being undertaken in the respondent company, and they were given three options, as follows: i. ii. To be redeployed within the respondent company; To remain in the department; J4 iii. To be separated from the respondent by way of redundancy. 6. The complainant deposed that upon further inquiry, they were informed that there was no possibility of being retained in the same departments they were in as they had already been surrendered to Human Capital, but that there was a possibility of being deployed into one of the Special Purpose Vehicles (SPV) set up by the respondent. 7. The complainant further stated that when it became evident to him that the meeting would not generate minutes, he generated an email summarising what was discussed in the meeting. The email was not responded to by the respondent. A copy of the email was produced and marked "DM3". 8. The complainant further asserted that he requested to be re-deployed to Fibrecom, one of the SPVs, but was told that it was not possible as there was no public relations department at Fibrecom. He inquired further on where he could be deployed to and he was advised that he could not be told there and then but that the respondent would find "something" for him to do. 9. It was the complainant's testimony that being faced with the prospect of not knowing where he would be deployed, he elected to be declared redundant and wrote a letter accepting the invitation by the respondent to be declared redundant. The letter is exhibited in the affidavit in support of complaint and marked "DM4". To his surprise, the letter from the respondent declaring him redundant under Clause 5.25.10 of the conditions of service was couched as though he was the one who had instigated the redundancy and yet it was the respondent which called JS upon him to do so. The respondent's letter is marked "DMS" in the affidavit. 10 . The complainant further stated that true to its letter, the respondent did not pay him notice pay and repatriation which would have been payable had the respondent considered that it instigated the redundancy. He added that as an employee he could not even have instigated redundancy following the amendment of the conditions of service effected in August, 2021 which removed such option as evidenced by the memorandum marked "DM6". 11. The complainant further asserted that since his benefits had not been paid in full, he was entitled to payment of salaries until his repatriation and notice pay were paid in full. 12. It was the complainant's further testimony that the manner in which the respondent had treated him had caused him to suffer humiliation, mental distress and economic hardship as a result of which he underwent therapy as evidenced by a medical report exhibited as "DM8". 13. The complainant also averred that sometime in June, 2023 the respondent re-advertised the responsibilities he held less than 3 months after he was declared redundant and that this was done without offering him the job. That this demonstrated that the respondent wrongfully declared him redundant when there was no need to do so. A copy of the internal advertisement was exhibited as "DM9". JG RESPONDENT'S ANSWER AND AFFIDAVIT EVIDENCE 14. In its amended answer filed on 14th September, 2023, the respondent stated that the complainant requested to be separated among the options that were available to him and that it merely accepted his request for separation. That since the complainant initiated the separation, he was not entitled to notice or payment in lieu of notice or repatriation payment. 15. The respondent denies advertising the position previously held by the complainant as the position and responsibilities that were advertised were different from the one held by the complainant prior to his separation. 16. In the affidavit in support of answer deposed to by Siwelwa Musyani, the Senior Manager-Employee Relations, it was averred that the complainant was informed that the respondent was undergoing a restructuring exercise by hiving off non-essential positions for operational efficiency. 17. The deponent admitted giving the complainant the options listed by him in his affidavit in support of complaint, which options are also listed in paragraph 5 of this judgment, except the option to remain in the same department he was in because his position was no longer required. He further averred that the complainant was given an option to mutually separate based on the redundancy package, which was a superior package in the conditions of service, to avoid him separating with only leave pay and no other terminal benefits as would have been the case had he resigned. J7 18. The deponent further deposed that there was excess staff in the public relations department and the complainant's position was no longer required. Thus, Management wanted to re-deploy the complainant to a different department within the respondent corporation. 19. He averred, further, that there was no possibility of employees being re deployed to any SPV as alleged by the complainant because the said SPVs were separate legal entities. In addition, that the complainant was a very important member of the organisation, hence the respondent still needed his services and was still trying to see where he could be placed within the respondent company. 20.lt was further averred that according to clause 5.25.10 of the conditions of service for non-represented employees, an employee who requests for redundancy is not entitled to notice, payment in lieu of notice or repatriation allowances. 21. With regard to the amendment to the conditions of service, the deponent averred that the amendment does not apply to the complainant because his contract of employment was terminated before the said amendment took effect. That the amendment only became effective upon being approved by the respondent's Board of Directors at a meeting held on 21st March 2023. The board resolution was said to be exhibited in the affidavit and marked "SM4". However, the record shoes that the exhibit marked "SM4" is the 2021 amendment. 22. The deponent also averred that the complainant did not suffer any mental anguish because he initiated the separation and had mentally prepared himself for any hardships which might have occurred after the said separation. J8 23. With regard to the complainant's contention that the respondent advertised the position he previously held without offering him the job, the deponent stated that the advertisement had different job titles and responsibilities from the position previously held by the complainant. The internal advertisement was exhibited in the respondent's affidavit and marked "SM5" . COMPLAINANT'S REPLY 24 . In his amended reply filed on 21st September, 2023, the complainant reiterated that the job advertisement actually re-advertised the responsibilities he previously held under the disguise of a different job title. 25 . The complainant maintained that he was wrongfully declared redundant by the respondent. HEARING 26. At the hearing of this matter, the complainant testified that he was employed by the respondent on 1st March, 2016 as an IT Technologist and was promoted to Graduate Public Relations Officer in May, 2020. His employment with the respondent ended on 20th March, 2023. 27. The circumstances surrounding his exit from the respondent a re well summarised in his affidavit in support of complaint and, hence, are captured under paragraphs 4 to 13 in this Judgment above. For the sake of brevity, I shall not repeat every detail here, save to state that the complainant averred that on the 9 th March 2023 he was called to a meeting with the Director - Human Capital, Mr. Maxwell Saya and two other Senior Managers, Mrs Patricia Lungu - Human Capital Operations and Mr. Musyani - Senior Manger Employee Relations. Other colleagues from different departments were also in attendance, of which 4 were from J9 the same department with him. They were informed that the respondent was undergoing restructuring and, as such, were given three (3) options as stated above, that is, firstly, to be redeployed within the respondent company; secondly, to remain in the same department; and thirdly, to be separated from the respondent by way of redundancy. They were requested to give their feedback in writing by 17th March, 2023. 28. The following week, the complainant met with the senior managers who were in the meeting and he asked them the following: i. ii. If there was an option for him to go on paid study leave; A calculation of his package should he opt to be separated; iii. Whether he could choose to separate if he was not happy with the contract; and iv. Who would approve his local leave as he was to go and nurse his mother who was to undergo surgery? 29. He testified that as there were no minutes taken, he indicated that he would write an email to the Senior Manager, which he did, but it was not responded to. He identified the email on page 84 of the complainant's bundle of documents as the email he sent following the meeting. 30. He further testified that he communicated to Mrs. Patricia Lungu over the prospect of joining FibreCom but she said there was no position for public relations there. At that stage, he felt he had reached a dead end because he had been hoping to join FibreCom because he could have carried on with what he was doing and he did not want to leave the respondent company. Having felt like he had reached a dead end, and since there was no help from the respondent to assist him decide where he could be redeployed, and after being told that he needed to communicate his chosen option in writing by 17th March 2023, he wrote JlO to the respondent accepting to be separated by way of being declared redundant as evidenced by his letter shown on page 85 of his bundle of documents. That the respondent responded to this letter stating that as he had self-initiated the redundancy, part of his benefits would not be paid. 31. The complainant further testified that his job was still there because a little more than 3 months after he was declared redundant, the respondent advertised his position. That the advert had his accountabilities and additional ones he was given by his supervisor. He added that the purpose for this role was to create and produce content for the respondent's digital media platforms as well as marketing material. To support his testimony, he drew the court's attention to page 20 of his bundle of documents, which showed a request from one of his supervisors from marketing for him to design an advertisement, and to page 31 containing sample designs he had submitted to the respondent. 32.lt was the complainant's further testimony that in 2019, he was appointed as a member of the integrated reporting committee as evidenced by the letter on page 58 of his bundle of documents which added responsibilities that he needed to prepare, design and publish integrated reports. 33. On the loss of his employment, the complainant testified that he had faced psychological and financial hardships. That he was supposed to be given more than three months' notice of the redundancy, but all this happened within a week. He consequently sought psychological help and underwent therapy after the redundancy as evidenced by the psychological referral form from Chainama Hills Hospital shown on page 90 of his bundle of documents. Jll 34. He added that after leaving the respondent, it had been hard to find employment as a result of which he and his family had gone through financial hardships. 35. In cross examination, the complainant told the court that he was familiar with the respondent's Bulletins and he was part of the team that issued the Bulletins. He compiled and issued the Zesco-e Bulletin; hence, he was familiar with the Bulletin that was issued in January 2023 by the respondent's human resource department. 36. When asked if the email codified the 5 strategic pillars for the respondent that included the human optimization program, the complainant responded that he was aware of the email and that it codified the 5 strategic pillars for the respondent and that it included the human resource optimisation program. 37. In further cross examination, the complainant told the court that he was redesignated four times since he joined the respondent and he was familiar that one could be moved from one department to another. 38. In continued cross examination, the complainant testified that he was aware that there were other employees within his department and other departments who were separated before him. He confirmed that he did not ask to be redeployed and that the respondent did not stop him from reporting for work. 39. The complainant admitted that employees were not given diaries and hampers in 2021 and 2022 as the respondent had implemented austerity measures due to financial constraints. J12 40.lt was his further testimony, in cross examination, that a culture did exist in the respondent corporation where an employee could request to be separated in accordance with the redundancy clause and that where the employer instigated the separation, an employee was given 3 months' notice pay whereas an employee who requested to be separated would forfeit the notice pay. 41.ln further cross examination, he admitted that he was aware of what was going on in the respondent before he was separated, but he was taken by surprise as he was not ready. 42.ln re-examination, the complainant reiterated his earlier testimony that the first time human resource reached out to him was when he was called for a meeting on 9 th March 2023 and that he was given options and told to choose one and put his choice in writing by 17th March, 2023 before close of business. The complainant admitted stated that the option of remaining in the department was not available because he had already been surrendered to Human Capital. 43. The complainant then closed his case and did not call any other witness. RESPONDENT'S ORAL EVIDENCE 44. The respondent's sole witness was Siwelwa Musyani, Senior Manager Human Capital and Development (RW). It was his testimony that the complainant's separation was as a result of the restructuring the respondent corporation had been undertaking with a view to optimizing human capital. 45. RW further told the court that in December 2021, a cost-of-service study was done with the view to examining the cost of doing business. The J13 j study revealed that the cost of doing business was very high and unsustainable and that it was on that basis that the respondent's Board and Management came up with a 10-year strategic plan to enable the respondent come out of such a predicament. One of the strategic objectives of the plan was to optimise human capital. Arising from that, in 2022, a document was shared with all employees in which they were all made aware of the plan to optimise human capital through various initiatives which included redeployment, retraining and for staff who wanted to separate, an opportunity was made available to them. 46. RW added that the need for the respondent to optimise its human capital if it was going to survive was emphasised by the Energy Regulation Board (ERB), its regulator, as a result of which the respondent then embarked on a 10-year program to restructure in order to optimise human capital from 2022 to 2031. 4 7. It was RW's further testimony that departments in the respondent corporation were directed to streamline their operations which included optimising staff; combining departments; and transferring staff from one department to another. He stated that it was in this process that the public relations department had streamlined its structure and identified staff that could be surrendered to other departments, of which the complainant was amongst those identified and surrendered to Human Capital for redeployment. About 6 or 7 employees were then surrendered to Human Capital for redeployment about the same time as the complainant. 48. RW stated that the role of Human Capital was to ensure the affected employees were well informed as to where they could be redeployed going by their skills and qualifications and also to make sure that the process J14 was comfortable and smooth for the employees and the respondent as well. 49. RW testified that in the event that an employee did not want to be redeployed, such an employee was given an option of possible separation from the company and paid a package that was superior to the package provided for in the Employment Code Act. 50. He further testified that affected employees were allowed to choose or give an indication as to which department they would want to be redeployed to while the respondent was also looking at possible places where the affected employees could be redeployed to depending on the respondent's needs. 51.lt was RW's further testimony that during the days that followed, the complainant did engage the respondent by asking for 1 or 2 places where he could be redeployed. Unfortunately, those places were not available at the time. He stated that Human Capital did continue looking for a place where the complainant could be redeployed to, going by his qualifications. In that process, the complainant wrote to the respondent requesting to be separated, which request the respondent granted. He was then separated. A few months later, the complainant served the respondent with court process for this action. 52. RW denied that the complainant's position was advertised after he was separated. He stated that the complainant's accountabilities in his appointment letter prove that none of the jobs the respondent had advertised matched the complainant's accountabilities. That the complainant's responsibilities were to do with the respondent's internal JlS .. activities whereas those advertised had to do with external activities for the respondent. 53.lt was RW's further testimony that payment in lieu of notice and repatriation are paid when the employer decides to separate the employee without the employee·s consent for that separation. In the complainant's case, he was made aware and he actually wrote a letter requesting for separation. Going by the applicable conditions of service, this does not warrant payment in lieu of notice and repatriation. RW told the court that this condition was amended but it took effect after the separation of the complainant had happened. This was by a Board resolution of 21 st March 2023 exhibited as "SM4" in the affidavit verifying answer filed on 12th July, 2023. He stated that the one in the affidavit dated 14th September 2022 and marked "SM4" is the one that introduced the amendment. 54.lt was RW's further testimony that the restructuring of the respondent corporation was still going on and that a number of employees had been re-deployed where their skills and qualifications could be utilised adequately. 55. RW urged me to dismiss the compla inant's case for lack of merit. 56.ln cross examination, RW told the court that when the compla inant was surrendered to Human Capital, it meant that he needed to be placed elsewhere and his department no longer needed him. J16 ,. 57.ln further cross examination, RW confirmed that employees were given the option to choose where they could be redeployed whilst Human Capital was also looking for something for the employees to do, and would implement the redeployment. 58. RW told the court that the primary objective of the meeting called on the 9 th March, 2023 was to explain the restructuring since there was excess staff and to redeploy staff and to explain to them that if they did not want to be redeployed, they had the option to separate. 59. RW further stated that those to be separated were to be paid a superior package than what was provided for in the law and that the said package fell under redundancy. This did not mean that the separated employees were to be declared redundant. 60.ln continued cross examination, RW confirmed that the addendum to the conditions of service shown on page 87 of the complainant's bundle of documents was sent to all employees, however, the amendment required Board approval before it could take effect. As such, it only became effective after the Board resolution approving the same. Further, that the requirement for Board resolutions prior to implementation of amendments to conditions of service was contained in the Board Charter. He admitted that the Charter was not produced before the court but could be availed upon request. 61. In continued cross examination, RW told the court th at the respondent still needed the complainant and that this was communicated to him during the meeting. He stated that he himself also communicated this to him days after the meeting but before the complainant requested to be separated. He stated that he told the complainant to hold on and wait for J17 the redeployment. That he assured the complainant that looking at his skills, age and qualifications, there was a future for him in the respondent company. RW added that in the previous one year, about 50 employees had been redeployed across the corporation. 62. Under continued cross-examination, it was RW's testimony that the work that the complainant was doing was still being done in the respondent company by other employees in the department the complainant was working in and that no new people had been employed to do the complainant's former job. 63. RW asserted that the job accountabilities shown in the advert appearing at pages 96-97 of the complainant's bundle of documents were different from what the complainant was doing. He, however, conceded that perhaps one or two graphic design activities were being done by the complainant but said the rest were being done by somebody else. 64. RW ended his testimony, under cross examination, by restating the respondent's position that the complainant was not entitled to repatriation because he instigated the separation, albeit this was after he was given that choice by the respondent. 65.ln re-examination, RW told the court that the advert exhibited by the complainant was for a marketing position while the complainant was a public relations officer. 66. He further testified that employees could instigate their own redundancy under the redundancy clause until the amendment to remove the option by employees was approved by the Board. 67. That was all in re-examination and it marked the close of the respondent's case. J18 LEGAL ARGUMENTS 68. Both parties filed written submissions, for which I am grateful. I have taken into consideration the legal arguments so ably presented by both Counsel in writing this Judgment. FINDINGS OF FACT 69. The undisputed facts of this case are straightforward. The complainant was employed by the respondent on 1s t March 2016 as an IT Technologist under conditions of service for unionised staff and was later elevated to the position of Graduate Public Relations Officer on permanent and pensionable conditions of service for non-represented staff. 70. On or about 9 th March 2023, the complainant was called to a meeting addressed by the Director Human Resources, attended by two senior managers and other employees from the marketing department. At that meeting, the complainant and the others were informed that the respondent company was undergoing a restructuring exercise by hiving off non-essential positions in order to achieve operational efficiency. Consequently, the complainant and the other employees called to the meeting were surrendered to Human Capital for possible redeployment. They were told that those among them who were not willing to be redeployed to other departments could opt to be separated from the respondent company. They were given 8 days to decide and communicate their preferred option. 71. The complainant was not redeployed to another department. By letter dated 17th March 2023, he informed the respondent that he accepted to be declared redundant. In response to this letter, the respondent, in its letter dated 20th March 2023, stated that its Management had J19 considered the complainant's request and had decided to separate him from employment in accordance with clause 5.25.10 of the Non Represented Staff Conditions of Service under which he served, with immediate effect. The respondent further stated that the complainant would not be paid three (3) months' pay in lieu of notice as this was a self-initiated redundancy. 72. The complainant was aggrieved by the respondent's action and commenced this action seeking the reliefs itemized in this Judgment above. ISSUES FOR DETERMINATION 73. After analysing the pleadings, the evidence before court and the legal arguments made by Counsel on both sides, the issues for determination, in my view, are the following: i. Whether or not the termination of the complainant's employment was by way of mutual separation or redundancy; ii. Whether or not the termination of the complainant's employment was wrongful, unfair or unlawful. iii. Whether or not the complainant is entitled to an award of twelve months' salary as damages for wrongfu lfunfair termination; iv. Whether or not the complainant is entitled to payment of notice pay amounting to 3 months' pay and repatriation; v. Whether or not the complainant is entitled to payment of salaries from the date of his separation until his redundancy benefits are paid in full; J20 vi. Whether the complainant is entitled to an award of six months' salary as damages for mental stress and anguish; vii. Whether or not the complainant is entitled to interest, costs and any other relief that the court may deemfit. DETERMINATION OF ISSUES i. Whether or not the termination of the complainant's employment was by way of mutual separation or redundancy 74. Counsel for the compla ina n t opened her legal arguments by submitting that it is crucial to determine the manner of termination at the outset because it is th e manner of termination that determines a n employee's entitlement. I am indeed, alive to the principle of law set in the case of Care International Zambia Limited vs Misheck Tembo 1 where it was articulated that the mode of an employee's exit from employment d etermines the relief he will be entitled to and the nature of his benefits. Hence, I consider it expedient to start by answering this question. 75. Counsel on both sides of the divide drew my attention to section 52(1) and (2) of the Employment Code Act which provides for the manner of termination of employment as follows: "52 (1) 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 J21 (2) An employer shall not terminate a contract of employment of an employee without a valid reason for the termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking." 76.0n the basis of th e above section, it was submitted on behalf of the complainant that a contract of employment can only be terminated based on terms of a contract and any other manner as prescribed by the Employment Code Act or any other law. It was submitted that the means of termination of employment as provided in the complainant's conditions of service are: resignation; summary dismissal; discharge; normal retirement; early retirement; late retirement; retirement on medical grounds and redundan cy. The complainant's argument was that since mutual separation is not included on the list of the agreed means of termination, the complainant's employmen t could not be properly terminated by mutual consent, contrary to the respondent's submission that the complainant was mutually separated. 77. Clearly, section 52(1) of the Employment Code Act, reproduced above, provides that a contract may be terminated in the manner stated in the con tract of employment or as provided by the Employment Code Act or any other law. It cannot, however, be argued that parties are precluded from agreeing to terminate their relationship in a way not previously agreed. This was acknowledged in the Halsburg passage quoted in the case of Gilbert Himbayi Hamalambo vs Zambia National Building Society2 where it was stated that: "As a matter of ordinary contract law, the parties to a contract of employment having made it are equally capable of agreeing to terminate it." J22 , .. \. 78. Additionally, in the case of Lukama and Others V Lint Company of Zambia Limited SCZ No. 8 of 1998, the Supreme Court opined that: "We are also alive to the possibility of employers and employees entering into agreements to terminate by mutual consensus." 79. On the basis of the above authorities, clearly, the argument advanced by the complainant that termination of his employment by mutual consent was not tenable because his contract of employment or applicable conditions of service did not provide for it is unfounded. The real question, in my view, is whether the parties did enter into a mutual agreement to terminate the employment. 80. The respondent's position is that the complainant's employment was ended by mutual separation. That the complainant requested to be separated and the respondent accepted the request. This amounted to a mutual sepa ration and not a redundancy as suggested by the complainant. To support this proposition the respondent referred this court to the Gilbert Himbayi case2 where the Supreme Court quoted the Halsbury's Laws of England Vol 16 1 4 th Edition paragraph 285 1 at page 296 1 to distinguish redundancy from mutual separation as follows: "iii. Mutual Consent 285. In general. As a matter of ordinary contract law, the parties to a contract of employment having made it are equally capable of agreeing to terminate it. This may however, materially prejudice an employee's statutory rights because, if an employment terminates by mutual consent, there is no dismissal as required in order to bring actions for mutual dismissal or redundancy payment.... Mutual termination may, however, properly apply where the employee agrees, without compulsion to accept voluntary early retirement, offered by the employer on terms more J23 generous than under the ordinary redundancy payments scheme and where understood that the normal statutory rights are not to apply in addition." 81 . Supported by this authority, the respondent submitted that the manner in which the complainant was separated from the respondent does not fall within the ambit of a redundancy but amounts to a mutual separation and that the respondent merely elected to pay out the complainant's terminal benefits under the redundancy clause 5.25.10 of the conditions of service which offers the complainant a more generous package. 82.lndeed, reference to a redundancy clause, by itself, does not turn a termination on other grounds into a redundancy. This is because an employer and an employee may agree to separate under an agreed package, which could even be a redundancy package. I am fortified by the authors of A Comprehensive Guide to Employment Law in Zambia at page 338, Mwenda, W. S, & Chungu, C, who state that: - "In relation to the termination package under termination by mutual agreement, it is up to the parties to expressly outline what will be paid to the employee." 83.ln coming back to the Gilbert Himbayi case, I note counsel's submission on behalf of complainant that the Gilbert Himbayi2 case was distinguishable from this case as, firstly, the complainant's conditions of service did not provide for mutual separation; secondly, clause 5.25.10 which was used to terminate the complainant's employment was a redundancy clause; thirdly, that the requirement set out in the Himbayi case that to hold that the separation is mutual, there must be no compulsion and that the terms must be more generous than the J24 ,} l ord in ary redu n dancy paym en ts were not fulfilled . In casu, according to th e complain ant, h e was not availed with information regarding the option s available to h im a n d h e feared th at h e would be tran sferred out of town agains t his career path. 84 . It was submitted th at with regard to th e package that must be m ore gen erous th a n th e ordinary redundancy paym en ts, th e r espond en t wron gly compared wh at was perta inin g in the con dition s of service with wh at is obtaining in th e Employmen t Code Act. 8 5.1 h ave con sidered th e Gilbert Himbayi case 2 qu oted exten sively by both parties. In my opinion, a lthough th e cour t in that case dealt with voluntary early retirem ent, the followin g in gredients of mu tual term in ation d iscu ssed therein can equally assist this court to determine the existence of consen sus in th is case at the tim e of the separation : i. The employee must agree, without compulsion, to accept voluntary early retirement, (in this case, mutual separation); ii. The terms offered must be more generous than under the ordinary redundancy payments scheme; and; iii. It must be understood that the normal statutory rights are not to apply in addition." 86.1 sh all n ow examine the above in gredien ts on e by one. i . The employee must agree, without compulsion, to accept voluntary early retirement, (in our case mutual separation} .8 7.lt was not dis puted that the complainant did try to fin d a n alternative position with in the respon den t company. He stated that he requ ested to be re-d eployed to Fibrecom , one of th e respon dent's SPVs, bu t was told t h at it was n ot possible as there was no public relations d epartmen t at J25 Fibrecom. The complainant argued that as a result, he found himself between a rock and a hard place as he only had 8 days to make a decision. According to him, the separation was not freely and voluntarily made as the options available to him were not fully explained and carried the threat that he could be sent to any place within the country which was not favourable to his career path. Fearing the unknown, he elected to take the option of being separated. 88. The respondent denied that it had any such intention to post the complainant to far flung areas which would be detrimental to his career path. Indeed, the complainant admitted that this fear was based on rumours. He did not state whether he made any effort to substantiate the rumours. Neither did he give any evidence of any of his colleagues being sent to far flung areas. In my view, the fear of being sent to a far flung area where his career progression would be jeopardized was unfounded. 89. The respondent did not deny telling the complainant that he had until 17th March, 2023 to communicate his preferred option. It was not stated what the consequence of failing to find a place for his redeployment by the said date would be. In my view, any right thinking employee would take it that there was an unspecified threat, or, at the very least, some risk or jeopardy hanging over his head if he did not communicate his preferred option by 17th March, 2023. I hold this view because the email sent by the complainant to the respondent on 15th March, 2023 shows that the complainant was apprehensive as to what would happen after he had communicated his decision to Human Capital. He asked whether he would be allowed to continue working in his current department during the process and after the decision had been made. He also requested to be provided with more information regarding the package that would be offered to him if he chose the option to be separated from J26 the respondent; and, finally, he asked if it was possible to request for separation if he was not satisfied with the redeployment options presented to him. The respondent did not respond. 90. RW told the court that he personally told he complainant not to separate as he would eventually be redeployed, considering his age and skills. He, however, did not say if he told the complainant what consequence would befall him if he was not redeployed by the deadline given. 91. RW also told the court that the complainant had been redeployed about four times before this. What he did not say is whether the circumstances of the complainant's redeployment those four times were similar to the final one leading to the separation. 92. The complainant's letter to separate having been made in the absence of full information as requested by him makes it hard for me to believe that his choice to separate was freely and voluntarily made, particularly that no evidence was led that the respondent, which in my view was better placed to find an alternative position for the complainant by the given deadline, had suggested any such alternative positions for the com plain ant's consideration. 93. The consequence of the complainant not finding an alternative place for his redeployment not being made by the given deadline was not indicated. Reference is made to the Supreme Court decision in the case of Ignitious Muleba Sule V ZESCO Limited3 wher e it was held that an option or choice which was punctuated with threats was not a free choice and cannot be said to have been made freely and voluntarily. In a similar vein, I am of the view that an option made without the necessary J27 information to enable one consider th e pitfalls of each option cannot be said to have been freely and voluntarily made. ii. The terms offered must be more generous than under the ordinary redundancy payments scheme 94 .lt is not in dispute that the terms offered to the complainant were equ a l to a nd not more gener ous that the ordinary redundancy payment scheme provided for in clause 5 .25.10 of the conditions of service. I agree with the complainant's submission that the comparison is not to be made with the redunda n cy package in the Employment Code Act, but with the one contained in the complainant's conditions of service. iii. It must be understood that the normal statutory rights are not to apply in addition 95. No evidence was led that any discussion was had that the normal statutory rights would not apply in addition to the package agreed upon. In fact, the complainant was just told about the separation p ackage in the respondent's letter purportedly accepting his request to end his employment. Surely, the complainant was not given enough time to consider whether the separation offered was detrimental to him or not. 96. As the three ingredients m the Gilbert Himbayi2 case have not been satisfied, I find that the complainant's employment was not ended by mutual separation. In my considered opinion, th e respondent initiated the separation of the complainant. 97. With regard to the question whether the complainant was declared redundant, it was argued, spiritedly, on behalf of the the complainant that his letter dated 17th March 2023 could not have been a request to be J28 ,.,. \. declared redundant when it clearly stated that he had accepted to be declared redundant. 98. Counsel argued that, furthermore, an employee could not request to be declared redundant because the option to request to be declared r edundant was removed by th e 2021 addendum shown on exhibit "DM6' of the affidavit in support of complaint. Reference was made to the cases of Nketani Vs Workers Compensation Control Board4 and Roy Jere Vs ZESCO Limited5 which established th e principle than an employee cannot declare himself redundant. 99. In response, the respondent averred that the amendment did not apply to the complainant because his contract of employment was terminated before the said am endmen t took effect as the amendment only became effective upon being a pproved by the respondent's Board of Directors at a m eeting held on 21st March 2023. As such, under the prevailing conditions, an employee could still instigate a redundancy, which is what the complainant did. 100. I have noted that the addendum in question states that it is effective 1st August, 2021 a nd is s ilen t on whether it is subject to Board approval. I agree with the complainant's counsel that the respondent's contention that the amendment did not take effect until approved by the Board of Directors and further that the Board only approved it on 21st March, 2023, a day after the complainant's exit is not supported by evidence. 101. Clause 5.25 .10 of the conditions of service states as follows: 'Redundancy or retrenchment occurs when the need to rationalize labour or business units arises." J29 ... 102. It was the respondent's evidence that it was reorganizing or restructuring as a result of which it had embarked on a 10-year program to rationalize labour. It, therefore, seems to me that since the need for the respondent to rationalize labour had arisen, by the respondent's own submission, the respondent must have held the view that redundancy or retrenchment had occurred on the basis of clause .5.25.10 of the conditions of service. The respondent wanted some employees out, for its own survival. This is also in line with the testimony of its own witness, RW. 103. I find the respondent's argument that it still needed the complainant unconvincing. In my view, if it truly did, it would have known exactly where to place him after he was surrendered to Human Capital. Further, the respondent would not have indicated to the complainant that he could choose to be separated if, indeed, he was one of its prized employees as it would want me to believe. As observed by the learned counsel for the complainant, the complainant's letter communicating his acceptance to be separated was written on Friday the 17th March, 2023, and on Monday the 20th March, 2023, practically the next working day, the respondent communicated its acceptance of the complainant's request to be separated. While the respondent's efficiency is, on one hand, admirable, on another hand, the almost instantaneous response accepting the complainant's request to be separated hardly supports its claim that it still needed the complainant and was still searching for a suitable position for him. 104. After analyzing the evidence before me, and the legal arguments by counsel, I find that the respondent terminated the complainant's employment by way of redundancy. What makes me even more certain is the respondent's insistence that the complainant, could, J30 under the then existing conditions of service, instigate his own redundancy. I have no doubt that the respondent actually intended to get rid of the complainant by way of redundancy. The argument that he instigated his own redundancy was an afterthought intended to minimize the cost of the redundancy. 105. I am mindful of the respondent's submission that the manner of the complainant's exit could not be a redundancy because the respondent, as employer, did not cease or intend to cease to carry on the business for which the complainant was employed and, as such, the termination does not fall within the ambit of section 55 (1) of the Employment Code Act. This submission, in my view, does not shield the respondent from the question that it terminated the complainant's employment by way of redundancy. Instead, it helps answer the question whether the redundancy was properly done in line with the law. It is to this question that I now turn. Whether the termination of the complainant's employment by way of redundancy was wrongful, unfair and unlawful 106. The question as to when a dismissal or termination becomes wrongful or unfair has been enunciated in a plethora of authorities. In the case of Care International Zambia Limited v Misheck Tembo1 , the Supreme Court distinguished unfair dismissal from wrongful dismissal and endorsed Hon lady judge Mwenda, W. S and learned counsel Chungu, C. who state in their book, A Comprehensive Guide to Employment Law in Zambia that: "Unlike wrongful dismissal, unfair dismissal is a creation of statute ... " J31 . ··-__ , ______________________ _ 107. The Supreme Court also cited Sprack John, an employment law jurist, who has stated in his book Employment Law and Practice, 1st 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 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." 108. Guided by the above authority, to determine whether the termination of the termination of the complainant's employment by redundancy was wrongful, I must consider whether it was done contrary to the contract. Here, I have considered the complainant's argument that the respondent did not substantiate the assertion that there was a restructuring going on in its corporation which was motivated or anchored on the ERB decision on its application to adjust electricity tariffs for retail customers for 10 years. While I agree with the complainant that the respondent did not adduce any evidence to prove that it was ordered by ERB, its regulator, to rationalize labour, I am of the view that the complainant has not shown the actual contractual provisions which were breached in the manner the termination was done. As such I am of the considered opinion that the termination was not wrongful as it was not done contrary to the contract of employment between the complainant and the respondent. 109. However, with regard to the question whether the termination was unfair and unlawful, which are synonymous terms, I have to consider whether or not the respondent carried out the J32 redundancy in accordance with the law, particularly sections 55 and 57 of the Employment Code Act. Section 55 provides as follows: "55. (1) An employer is considered to have terminated a contract of employment of an employee by reason of redundancy if the termination is wholly or in part due to- (a) the employer ceasing or intending to cease to carry on the business by virtue of which the employees were engaged; (b) the business ceasing or diminishing or expected ceasing or diminishing the requirement for the employees to carry out work of a particular kind in the place where the employees were engaged; or (c) an adverse alteration of the employee's conditions of service which the employee has not consented to." 110. It is interesting to note that both parties submitted that the termination of the complainant's employment did not come under the ambit of this section. According to the complainant, the consequence of this was that the purported redundancy of the complainant was wrongful as it was not supported by law a nd, as such, a true situation of redundancy did not exist at the respondent company. 111. The case of Margaret Simeza and 52 Others vs Society Family Health6 was cited to buttress the argument that redundancy arises when there is closure of business and reduction of the size of the workforce, unlike in casu where the respondent had not adduced any evidence to show that there was such a situation. J33 112. A plethora of cases was cited to demonstrate that the respondent had a track record of using th e redundancy clause to get rid of employees in bad faith . Among the cases cited was the case of Salimu Banda vs Zesco Limited7 where the Supreme Court upheld the High Court's decision to award the former employees damages for breach of contract because the former employees wer e not given an opportunity to prepare themselves for the exit by way of redundancy and the redundancy was used as a way of getting rid of them. 113. The case of Kasumpa Kabalaka and 3 Others vs Zesco Limited8 was also cited as an example of cases where the High Court found that the respondent had breached the law when it terminated the employment of the complainants on a false allegation of redundancy. 114. The respondent, on its part, took the view that since the separation of the complainant did not come under the ambit of section 55 of the Employment Code Act, it could not be taken as a redundancy as a redundancy can only arise if any of the situations alluded to in section 55 of the Employment Code Act a re triggered, which was not the case in casu. To buttress this assertion, the respondent drew my attention to the learned authors of A Comprehensive Guide to Employment Law in Zambia at pages 301 to 302, Mwenda, W. S, & Chungu, C, who adopt the definition as encapsulated under section 55 of the Employment Code that: " ... a redundancy is only triggered if it is conducted in terms of section 55 of the Employment Code Act. Redundancy, being an innovation created by declaring an employee redundant, J34 the employer announces to the world that he does not need or require the employee to do that job." 115. In addition, the respondent argued that a redundancy proper is at the instance of the employer and not the employee. 116. I shall not rehash the spirited arguments made on behalf of the respondent that the complainant instigated the separation as I have a lready made a finding that the separation was at the instance of the respondent. 117. I have examined the arguments of the parties. Indeed, redundancy is triggered by section 55 of the Employment Code Act. As the record shows, neither party adduced eviden ce to the effect that the respondent ceased or intended to cease to carry on the business by virtue of which the complainant was employed. It was also not argued that there was an adverse unilateral variation of the complainant's conditions of service to which he did not consent. 118. In the light of the above, I agree with both parties that there was no true redundancy situation at the respondent company at the time of the complainant's separation. Unlike the respondent's submission that this means redundancy did not arise, in my considered opinion, it actually means the redundancy was effected in total disregard of the law, in bad faith, as argued by the complainant. 119. It is indisputable that when effecting a redundancy, the procedure as laid out in section 55(2) of the Employment Code Act is mandatory. This section requires an employer to inform the Labour Commissioner of the impending redundancies, conduct J35 consultations with the affected employees and give at least thirty (30) days' notice. 120. All these mandatory steps were not followed possibly because the respondent convinced itself that it was dealing with a case of mutual separation as opposed to a redundancy. It was fatal for the respondent to fail to abide by the mandatory procedure in its entirety. This rendered the complainant's redundancy unfair. The Supreme Court in Chilanga Cement V Kasote Singogo9 aptly guided that: "Fairness and good faith demand that an employee should not be ambushed in a redundancy exercise because such an ambush would not mitigate the negative impact of a loss of a job." 121. The above holding makes it clear that it is imperative for an employer who contemplates a redundancy exercise to consult the affected employee(s) on how to minimize or avert the redundancy, or mitigate its effects. The consultation is intended to afford the employee a chance to discuss any measures to remain in employment or reduce the impact of the employment. In casu, the complainant was only given 8 days within which to make known his chosen option. 122. It has been alleged by the complainant that in breach of section 57 of the Employment Code, the respondent re-advertised the responsibilities he held less than 3 months after he was declared redundant and that this was done without first offering him the job. This, it was submitted, demonstrates that the respondent wrongfully declared him redundant when there was no need to do so. J36 123. In support of this assertion, the complainant told this court at the hearing that the purpose of his role was to create and produce content for the respondent's digital media platform as well as marketing material. To exemplify this, he referred me to the email shown on page 20 of the complainant's bundle of documents from one of his supervisors from marketing requesting him to design an advert. He also referred to page 31 of the same bundle of documents containing sample designs he had submitted to IT Department after the department requested him, through his supervisor, to design the respondent's wall paper. Finally, he referred to page 58 of the bundle of documents which was a letter appointing him to the integrated reporting committee whose accountabilities included preparation, design and publication of the integrated report annually. 124. In response to this allegation, the respondent maintained that the complainant was mutually separated and not declared redundant; hence the argument that he should have been offered the job prior to advertising it does not suffice and is legally flawed. 125. The respondent further submitted that, in any event, the jobs advertised were different from the job title and description that the complainant held. That the complainant held the position of public relations officer whose primary responsibilities were to manage the respondent's website and digital platform while the jobs advertised were for marketing officers whose job description was different from the complainant's then job description. 126. In his submissions in reply, the complainant argued that the respondent's action of re-advertising his position barely three months after he was declared redundant and told that his position J37 was no longer required p roves th at it was n ot even in the process of reducing la bou r, as it had claimed , p ar ticularly that h e was a highflier and n ot a non -performer as th e record will show. I was refer red to th e case of Salimu Banda V ZESCO Limited7 wh ere the Sup reme Court, at page J15 and J 16 stated th e following: "However, it is clear from the evidence that the Respondent were not declared redundant. This is because they were replaced almost immediately. This was against the provisions of section 28 of the Local Authorities Superannuation Fund Act Chapter 284 of the Laws of Zambia and clause 11 of the Conditions of service which required certain conditions to be met before a person is dee lared redundant. As the lower court correctly stated, redundancies are planned activities. An employee is supposed to be prepared for such an eventuality. The Respondents were not given that opportunity." 127. On the basis of this qu ote, the complainant reiterated his argument that there was no true redundancy and th at as the job advertised fit s quarely within the work the complainan t was doing, in com pliance with the law, h e sh ould h ave been offered th e job because the accoun tabilities were the same. 128. Section 57 of the Em ployment Code stipulates as follows: "57. Where, within nine months from the date when the notice of termination of employment under section 55 takes effect, the circumstances leading to the redundancy of an employee have changed and an employer wishes to fill a vacancy occasioned by that redundancy, the employer shall offer a contract of employment, in respect of the vacancy, to J38 the employee previously declared redundant, before considering any other applicant." 129. The provisions of section 57 are clear. A redundancy abolishes the position held by an employee and the need for his or her services as held in the case of Zesco Limited V Patricia Kabwe Lungu10• Hence, a redundancy cannot be said to have been carried out in good faith if an employer is allowed to employ another person to replace the employee declared redundant. Therefore, based on section 57 above, an employer cannot appoint another employee to the position that a redundant employee held within 9 months of the termin ation prior to offering the job to the employee who was declared redundant. 130. I have considered the submissions made by both parties on this point. I have noted that the positions of marketing officer which the respondent advertised were infact three. The complainant did not specify which one of them included marketing accountabilities which he was doing when he was in the employ of the respondent as he contended were demonstrated by the assignments he was given as shown on pages 20, 31 and 58 of the complainant's bundle of documents. The burden of proof lay on the complainant to show that the although the job titles were different, the complainant having been a public relations officer and the advertised position being marketing officer, the accountabilities were actually the same. It is not enough that he made general claims. He needed to have pointed out the specific accountabilities in the adverts which were being done by him. Therefore, I am not persuaded that the respondent did advertise the complainant's position with the view to filling it without first offering the job to J39 the complainant as required by section 57 of th e Employment Code. 131. This notwithstanding, on the totality of the evidence, I find that the termination of th e complainant's employment by way of redundancy was unfair a s section 55(2) of the Employment Code Act was n ot complied with. That is, the respondent did not inform the Labour Commissioner of the impending redundancy; the complainant was not consulted with the view to reduce the adverse effects of the termin ation on him, to n ame but some. Whether the complainant is entitled to an award of damages for wrongful and unfair termination of his contract of employment 132. The complainant claims twelve months' salaries in respect of damages for wrongful termination of his employment. Since I found that the complainant failed to prove that the termination of his employment was wrongful, I find no basis for awarding damages in this respect. 133. Having established that the complainant was unfairly and unlawfully terminated by redundancy, damages are due to him. Hence the next step is to determine the quantum of damages to award to him. 134. The payment of salary equivalent to the notice period h as for a long time been understood to be the normal measure of damages to be paid to an employee who has been unlawfully, unfairly or wrongfully dismissed or terminated. J40 135. In the case of Swarp Spinning Mills Pie v Chileshe and Others11 cited by the complainant, the Supreme Court gave the following guidance regarding awards for damages beyond the nominal measure: "In assessing the damages to be paid and which are appropriate in each case, the court does not forget the general rule which applies. This is that the normal measure of damages applies and will usually relate to the applicable contractual length of notice or the notional reasonable notice, where the contract is silent. However, the normal measure is departed from where the circumstances and the justice of the case so demand. For instance, the termination may have been inflicted in a traumatic fashion which causes undue distress or mental suffering ... In this country, we too have recognized this kind of additional damages in cases like The Attorney-General v Mpundu (6) And Miyanda v The Attorney-General (7). In the case at hand, the learned trial Judge was right to consider the summary fashion of terminating at a meeting called on a Sunday, without any notice at all, and in circumstances making it difficult to explain the loss of employment for the purpose of obtaining alternative similar work. This Justified the departure from the normal measure of damages." 136. The Supreme Court in Barclays Bank Zambia PLC V Weston Luwi & Suzgo Ngulube 12 considered the following authorities when upholding an award of 24 months' salary as damages for wrongful termination: J41 •"' "The case of Swarp Spinning Mills Limited v Sebastian Chileshe and Others11 , which Mr Lukangaba cited, clearly sets out what some of the exceptions to the normal measure of damages are... . Therefore termination inflicted in a traumatic fashion causing undue distress or mental suffering is, but one example. Loss of employment opportunities is another. In Joseph Chitomfwa v Ndola Lime Company Limitedl3, 24 months' salary was awarded to compensate for loss of employment opportunities. We went further to hold in Chilanga Cement Plc v Kasote Singogo9 , that enhanced damages are meant to encompass the inconvenience and distress suffered by the employee as a result of the loss of employment. In Farley v Skinner, the House of Lords held that a trial Court can, on the evidence before it, award damages for inconvenience and discomfort or distress and that such award must be a modest sum. The learned authors of Halsbury's Laws of England state at paragraph 959 that: "Where mental suffering is directly related to some physical discomfort or inconvenience caused to the innocent party by the breach, the damages awarded can include a sum to reflect the suffering. Similarly, we hold that the trial Court was entitled, based on the evidence before it, to award damages, [to] cover distress and inconvenience. An award of 24 months' salary as damages, therefore, does not come to us with a sense of shock, as being excessive, to warrant being set aside." 137. Evidence was led to p rove th e nature a nd exten t of the men tal stress th at th e com plain ant endured due to the loss of employment. The loss of his employmen t was abrupt, the J42 complainant having been given only eigh t days to ch oose from options that the responden t knew would n ot happen as only it, th e respondent, was better placed to place the complainant where he would be better suited because the goal of the purported re organisation had not been shared with the complainant. This put the complainant in a stressful situation of frantically seeking a suita ble alternative position, while time was fast running out, to no avail. It was his testimony that the loss of his employment had a toll on his h ealth as evidenced by th e psychological referral form that shows that the complainant underwent treatment for agitated depression. The form was exhibited in h is affidavit in support of complaint a nd marked 'DM8'. 138. I have con sidered the respondent's submission that th e medical evidence adduced by the complain ant does not indicate as to wh eth er the depression h e had was as a result of the separation from the respondent company. 139. I agree that a loss of a job in the circumstances in which th e complainant lost his empoymen t is not the only way to get depression. However, considering that the complainant's evidence was not sufficiently challenged in cross examination, I accept that the medical report does, indeed, relate to the a b rupt loss of employment. I find that th e complain ant has proved, on a ba lance of probability, that he was treated for agitated depression brought on by mental stress as a result of the a brupt loss of his job. 140. Therefore, on the strength of the case of Swarp Spinning Mills Limited v Sebastian Chileshe and Others11 and Joseph Chitomfwa v Ndola Lime Company Limited13, I am of the view that this is a proper case in wh ich the circumstances and justice of J43 this case demand that damages of the normal measure be departed from. In taking this view, I am not oblivious to the fact that the complainant was already paid a package of two years for each of the years he worked for the respondent. I am also n ot oblivious to th e fact that some semblan ce of consultation was made with the complainant when he was called to a meeting on the 9 th March, 2023 an~ given options, among them to be separated. I am a lso n ot oblivious to the fact th at the complainant admitted receiving an email in which employees were informed of the on-going optimization of labou r. It must be noted that neither of the parties availed the court with this em ail. I am, nevertheless, satisfied th at th e circumstances of this case require enhanced damages for substantial justice to b e done. Consequently, I award the complainant twelve (12) m on ths' salary as damages for unfair termination of contract. Whether the complainant is entitled to an award of damages for mental stress and anguish 141. The complainant seeks 6 months' salary in respect of damages for mental stress and anguish. In the case of Chilanga Cement PLC V Kasote Singogo9, it was held as follows: "We are of the view ... that an award for torture or mental distress should be granted in exceptional cases and certainly not in a case where more than the normal measure of common law damages have been awarded." 142 . Since I have departed from the normal measure of common law damages, I shall be guided by the holding in the Kasote Singogo9 case above and not award any damages for mental distress, particularly so because due consideration was made to the mental J44 • • stress in awarding the damages awarded under paragraph 140 above. Whether the complainant is entitled to 3 months' pay in lieu of notice as well as Repatriation a. Three (3) months' pay in Lieu of notice 143 . It was the complainant's submission that since the respondent terminated his employment using clause 5.25.10 of the Non Represented Staff Conditions of Service, this clause should be used to interpret whether the notice pay is payable or not. 144. The complainant submitted that the respondent engineered him into accepting to be declared redundant and then indicated that it was accepting his request to be separated when, in fact, he did not request to be separated but accepted to be separated as offered by th e respondent. That being the case, the complainant argued, the respondent's failure to pay the benefits as contained in Clause 5 .25.10 (a) and (b) of the conditions of service, was a breach of contract. He, thus, implored me to award him 3 months' salary in lieu of notice. 145. In opposing this claim, the respondent argued that the complainant instigated his own separation from the company, hence he is not entitled to payment in lieu of notice. It was argued that the complainant's letter to the respondent formed the formal foundation of the separation and th at the respondent simply accepted the complainant's r equest to be declared redundant. This being the case, he should have prepared for the loss of his job and payment in lieu of notice does not arise. J45 146. The respondent's counsel went on to argue that even assuming that this was a redundancy, the complainant could not claim three (3) months' pay as an entitlement because under the revised conditions of service exhibited on page 87 of the complainant's bundle of documents, this payment was "A Preserve of the Employer". I was, thus, beseeched to enforce the agreement of the parties. To buttress this plea, reliance was placed on the case of ZESCO Vs Edward Angel Kahale 14 where the Court of Appeal upheld the general principle that parties are bound by whatever terms and conditions they have set for themselves. 147. Clause 5.25.10 (b) (a) of the conditions of service, which is the basis of the claim under this head, provides as follows: "b Notice of Redundancy The company shall give: a) Three (3) months' notice period, or payment of three (3) months' basic pay in lieu of notice to an employee to be declared redundant. Similarly, where the employee has requested for the redundancy with the consent of Management, he/ she shall forego three (3) months' basic pay in lieu of notice. " 148. It was the complainant's evidence that the above condition was amended so that an employee who requested for the redundancy could still be paid three months' salary in lieu of notice. An extract of the amendment reads as follows: "NEW/ AMENDED The company shall give: a) Three (3) months' notice period, or payment of three (3) months' basic pay in lieu of notice to an employee to be declared redundant. This is a preserve of the employer." J46 .. . I 149. The respondent's submission was that the amendment does not apply to the complainant because his contract of service was terminated before the said amendment took effect as the amendment only became effective upon being approved by the respondent's Board of Directors at a meeting held on 21st March 2023. 150. I earlier made a finding that the addendum having come into effect on 1st August, 2021, is applicable to the complainant. 151. The respondent's interpretation of this amendment is that an employee who has been declared redundant cannot claim three months' salary in lieu of notice as a right because the same is paid at the discretion of the employer. I must state that I find the words "this is the preserve of the employer'' in this amendment quite ambiguous. The words could mean the respondent, as employer, will decide whether to give an affected employee three months' notice or pay him three months' salary in lieu of notice. They could also mean that the employer will decide whether or not to even give notice or pay in lieu of notice at all. It is this latter interpretation that the respondent tried to push in its final submissions. 152. I hasten to state that if the latter interpretation is what was intended by the amendment, it flies in the teeth of section 55 (2)(a) of the Employment Code Act which requires an employer who intends to terminate an employee's employment by reason of redundancy to give notice of not less than thirty days. This section provides as follows: "2. Where an employer intends to terminate a contract of employment by reason of redundancy, the employer shall (a) give notice of not less than thirty days to the employee or J47 a representative of the employee of the impending redundancy and inform the representative on the number of employees, if more than one to be affected and the period within which the termination is intended to be carried out." (Emphasis mine) 153. Granted, this section does not provide for three months' notice but n otice of not less than thirty days. Consequently, th e parties' agreement that a redundancy could be carried out without any notice at all, a s I understand the respondent to be contending, would not be enforceable as it is in contradiction of the law and it is not possible to oust th e provisions of the law in a n agreement. I am fortified by the case of Sarah Aliza Vekhnik V Casa Dei Bambini Montessori Zambia15, where the Court of Appeal guided that it is not possible for parties to contract out of mandatory provisions of any statute. 154. I am, therefore, satisfied that the complainant has proved his claim for three months' salary in lieu of notice. 155. In any case, having earlier held th at the complainant's separation was instigated by the responden t, I am of the view that th e amendment is not of any consequence to the compla inant's claim for this r elief. REPATRIATION 156. The complainant's claim for repatriation is premised on clause 5.25.10 (b) of the conditions of service which provides as follows: "b) where the employer instigates redundancy, the employee shall be entitled to repatriation expenses as stipulated below: i. M2 TO Ml -K1 8, 000 J48 u. M2 to M3 -Kl S,000 m. M9 to M6-Kl2, 000" 157. In opposition, the respond ent submitted that there was no evidence that the complainan t was recruited from outside Lusaka and that he needed to be repatriated by the respondent. The r espondent called to its aid the case of Afrope Zambia Limited vs Authority Chate and 5 Others16 wh ere the court held that the employees could not be awarded r epatriation as they had not adduced evidence showing that they were employed from a place outside their place of employment, which in that case was Kitwe. 158. The respondent further drew m y attention to section 33 of the Employment Code Act which provides that repatriation is only payable where an employee is brought by an employer from another place to a place of his employment. It was submitted th at the complainant was at Head Office, in Lusaka, and has not d emonstrated that repatriation is payable or that he h as suffered any loss as a result of not being p aid. 159. Clause 5.25.10 (b) a ppears to provide for repatriation expenses for a ll employees regardless of their place of employment. This is because the only qualification indicated is that the employer instigated the redundancy. In my view, this clause does not contrave section 33 of th e Employment Code Act which provides for payment of repatriation expenses where an employee is brough t by an employer from another place to the place of employment because this section provides the barest minimum. The parties in this case agreed to expand the entitlem en t to repatriation by offering it to every employee who is declared redundant at the instigation of the employer. In this regard, this case can be J49 distinguished from the Agrope Zambia Limited 16 case which did not have a seemingly 'across the board provision'. In this case, the clause does not have any reference to employees working outside the place of their employment as the respondent argued. I have already made reference to the case of ZESCO Vs Edward Angel Kahalel4 where the Court of Appeal upheld the general principle that parties are bound by whatever terms and conditions they have set for themselves·. The respondent is, therefore, bound by the repatriation clause as it was crafted. 162. In view of the foregoing, I am satisfied that the complainant's claim for repatriation expenses is meritorious. Whether the complainant is entitled to remain on payroll until full payment of his terminal benefits 163. The complainant claims salaries from the date he left employment until the payment, in full, of the notice pay, repatriation expenses and any other legal entitlement. This claim is anchored on clause 5.25. lO(c) of the conditions of service which provides as follows: "All employees who are declared redundant shall remain on the payroll until they have been paid all their terminal benefits in line with their employment." 164. In opposing the complainant's claim under this head, the respondent argued that it is trite law that a person shall not be paid for a period not worked for. Reference was made to the case of Kitwe City Council Vs William Ng'uni17 where the Supreme Court underscored this position when it held that it is unlawful to award a salary or terminal benefits for a period not worked for JSO because such an award has not been earned and might be properly termed as unjust enrichment. 165. Reference was also made to the case of ZESCO Limited Vs Alexis Mabuku Mutalels where the Supreme Court reaffirmed this position when it stated that: "We have held, in a number of cases, that an employee cannot be paid salaries or allowances for a period he or she has not worked." 166. I have considered this provision and the arguments of both counsel. In my view, the cases cited by the respondent can be distinguished from this case because whereas th e courts in those cases dealt with claims for salaries and allowances up to the end of the contract, that is, including the periods the employees did not work for, in casu, th ere is a clear provision that all employees s h all remain on payroll until they have been paid all their terminal benefits in line with th eir employm ent. This clause is similar to section 55(3)(b) of the Employment Code which obligates an employer who is unable to pay an employee declared redundant on the last day of duty to continue to pay the employee full wages until the redundancy package is paid. In my view, the cases on unjust enrichment do not apply here. 167. Clause 5.25.10 of the conditions of service shows how a redundancy package is supposed to be calculated. It states, in paragraph (a), under the h eading 'compensation' that employees declared redundant shall be paid 24 months' gross pay plus two (2) months' pay for each completed year of service. In the second paragraph, it provides that: JSl "For purposes of calculating benefits, a month's pay shall mean a basic pay and the following allowances being paid to the employee on a monthly basis if they appear on the last pay slip; Services Allowance at 75% of the monthly basic pay, Housing Allowance at 40% of the monthly basic pay; and Commuted Car Allowance or Car Allowance at 30% of the monthly basic pay (where applicable). No other allowances, paid to an employee including an acting allowance shall be included." (Underlining for emphasis only) 168. As held by the Supreme Court in the Salim Banda7 case when it had occasion to interpret a similar clause, the use of the words "and the following'' means that the a llowances are specified. The Apex Court added that: "An allowance may appear on an employee's last pay slip but if it is not one of the ones listed above, then it cannot be included when calculating the redundancy package." 169. In this case, neither notice pay nor repatriation expenses are included in the list for calculating benefits. As such, they cannot be included when calculating the redundancy package. That being the case, the answer to the question whether the complainant should be paid salaries from the date of termination of his employment until full payment of three months' pay in lieu of notice and repatriation is pretty obvious. 170. In the light of the foregoing, the claim to remain on payroll on account of unpaid salaries in lieu of notice and repatriation expenses is untenable for reasons discussed above. The claim is accordingly dismissed for lack of merit. J52 Whether or not the complainant is entitled to interest on amounts found due 1 71. It was the complainant's prayer that interest be awarded using the Bank of Zambia policy rate from the date the complainant came to court until date of judgment and current bank lending rate from the date of judgment until payment. This court was urged to take note that it does have the requisite authority to award interest on debts and damages as shown in section 4 of the Law Reform (Miscellaneous Provisions) Act, Chapter 7 4 of the Laws of Zambia, the relevant portion of which provides as follows: "4. In any proceedings tried in any court of record for the recovery of any debt or damages, the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment." 172. This court was also referred to the Supreme Court decision in Indeni Petroleum Refinery Company Limited V VG Limited19 wh ere the Supreme Court stated that: "We wish to add that the underlying principle and the basis for an award of interest is that the Defendant has had the use of it himself so he ought to compensate the Plaintiff accordingly." 173. On the basis of this case, I was beseeched to award the complainant interest on all sums found due having been deprived of the use of the fu nds rightly due to him. Reliance was further placed on the Supreme Court case of BP Zambia PLC V Expendito Chipasha Chipalo20 in which the court awarded 40% J53 interest from the date of separation to date of judgment and thereafter 25% up to date of payment having set aside an award of penal interest, which, according to the complainant's counsel was on account of the conduct of the employer. I was equally invited to take note of the respondent's conduct in inciting the complainant to end his employment and thereafter depriving him of his full benefits leading to the commencement of this action. 174. I have considered the authorities cited by the learned counsel for the complainant with regard to the claim for interest. There is no doubt that the respondent has had th e use of amounts awarded to the complainant. As guided by the decision of th e Supreme Court in the Indeni Refinery19 case above, I am satisfied that the complainant has proved his claim for interest as he has been deprived of the use of all funds found to be due to him. 175. I decline the invitation to consider the conduct of the respondent in inciting the complainant to separate from the respondent for the purposes of enh ancing the interest awarded to the complainant as this would amount to penal interest, which the Supreme Court, in the Expendito Chipasha Chipa1o20 case, reiterated was not legal. COSTS 176. The Complainan t contends that this is a matter which is suitable for an award of costs because the respondent has in numerous cases been condemned for its conduct but it never relents in invoking the redundancy clause unnecessarily. Reference was made to Rule 44 of the Industrial Relations Rules, Chapter 269 of the Laws of Zambia which provides as follows: J54 "44. (1) Where it appears to the Court that any person has been guilty of unreasonable delay, or of taking improper, vexations or unnecessary steps in any proceedings, or of other unreasonable conduct, the Court may make an order for costs or expenses against him." 177. The complainant further argued that this matter was adjourned unnecessarily due to the respondent's unexplained absence or lack of readiness. One occasion was on 11 th August 2023 . Again, when the matter was listed for hearing on 12th October, 2023 the respondent applied to adjourn the matter. 178. I have perused the record. Indeed, the respondent absented itself on the 11th August, 2023 when the matter came up for a statu s conference and no explanation was proffered for its absence. However, on that occasion, the court proceeded to set the matter for trial. As such, I do not consider that the respondent's absence on that day resulted in unreasonable delay of this matter deserving of it being condemned in costs. 179. The record further shows that when the matter came up for trial on 12th October, 2023, trial commenced and the complainant's case was heard. The respondent could not open its case as its witness was not in court as he had travelled out of town. This court adjourned the matter and noted that it was in the interest of justice to do so, particularly that it was the first adjournment occasioned by the respondent. Therefore, I do not consider this one adjournment worthy of condemnation in costs. 180. I have also considered the complainant's submission that the respondent should be condemned in costs because it never JSS relents in invoking the redundancy clause unnecessarily. The question I have asked myself is whether the former employees in th e other cases referred to were s imilarly circumstanced with the complainant in casu. In the case of Zambia National Commercial Bank PLC V Geofrey Muyamwa and 88 Others21 , the Supreme Court gave guidance on who similarly circumstanced employees were when it said the following: "Cases where the affected person's service was terminated at the same time and in the same manner." 181. The complainant has not demonstrated that his case falls within the ambit of th e definition of similarly circumstanced cases. Hence, in my opinion, it is inappropriate to condemn the respondent in costs in this action on account of those other cases whose s imilarity with this matter has not been well-established. Conclusion and Orders 182. In conclusion, the complainant has succeeded in his claim for three (3) months basic pay, Repatriation, damages for u nfair redundancy, and interest. The rest of the claims have failed. I, accordingly, award the complainant the following: i. Three (3) months' basic pay in respect of notice pay; ii. Twelve (12) months' salary as damages for unfair termination of employment by way of redundancy; iii. Repatriation expenses of Kl2,000; J56 iv. The total amount awarded shall attract interest at commercial bank deposit rate from the date of filing of the Notice of Complaint until Judgment, and thereafter at current bank lending rate as determined by the bank of Zambia until full payment. v. Each party shall bear its own costs. Delivered at Lusaka this 23rd June day of June, 2025. M. HIGHC J57