Lwando v Tap Building Products (Appeal 92 of 1998) [1999] ZMSC 123 (18 February 1999)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 92 OF 1998 HOLDEN AT KABWE AND LUSAKA (Civil Jurisdiction) DISMAS MWAPE LWANDO APPELLANT AND TAP BUILDING PRODUCTS RESPONDENTS CORAM: NGULUBE, CJ, CHAILA AND MUZYAMBA, JJS On 4th November, 1998 andl8th Februarty, 1999 For the appellant - In Person For the respondent - Mr. O. Dzekedzeke, of Dzekedzeke and Company JUDGMENT Ngulube, CJ, delivered the judgment of the court. The appellant was employed by the respondent as an Assistant Accountant in January, 1992. His services were terminated on 18th April, 1994, on the ground that his services were no longer required due to the reorganisation of the section in which he was employed. The appellant challenged the termination and launched proceedings before the Industrial Relations Court where he alleged that the termination was due to discrimination. The Court held that no such discrimination was shown and that the termination was indeed due to redundancy following upon the reorganisation and restructuring. Accordingly, the Court declined to order reinstatement or to make any award. The appellant advanced a number of arguments and submissions. Under one ground, he questioned the criteria used to reorganise the Company and to select him for termination. He suspected that his supervisors were victimising him for some earlier case involving some cement and of which he had been cleared. In another ground he made submissions on what could justify summary termination and what should be the consequence of being declared redundant under the relevant clause of the conditions of service. We heard submissions from the appellant as well as from Counsel for the respondent. It emerged from the record and from the submissions that when the appellant was paid three months' salary in lieu of notice, he was only paid housing allowance for 15 days. Quite clearly, an employee entitled to a housing allowance and any other perquisites and who is given notice or a payment in lieu is entitled to receive not just the basic salary but also the fringe benefits over the period of notice. The appellant should have been paid three months housing allowance. The failure by the Court below to make this award was a misdirection on a legal point otherwise the rest of the grounds raised points of fact only in respect of which no right of appeal to this Court is given: See S.97 of the Industrial and Labour Relations Act. In sum, the appeal is unmeritorious and fails, with the exception that the appellant is awarded the three months' housing allowance which ought to have been included in the terminal package. Each side will bear its own costs. M. M. S. W. NGULUBE CHIEF JUSTICE M. S. CHAILA SUPREME COURT JUDGE W. M. MUZYAMBA SUPREME COURT JUDGE