Dr. Alvert N. Ng'andu v Zambia Center for Accountancy Studies (COMP NO/IRCLK/189 /2018) [2023] ZMHC 48 (23 January 2023)

IN THE HIGH COURT OF ZAMBIA COMP NO/IRCLK/189 /2018 Jl AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: DR. AL VERT N. NG' ANDU AND COMPLAINANT ZAMBIA CENTER FOR ACCOUNTANCY STUDIES RESPONDENT Before the Hon. Mrs. Justice T. S. Musonda For the Complainant For the Respondent : Mr. C. M. Slonondo of Messrs. Malambo & Company : Mr. L. Mwamba, Mr. M. Nkunika, Mr. C. Ngoma & Ms. N Mwila of Messrs. Slmeza Sangwa & Associates JUDGMENT Legislation referred to: 1. The Employment Code Act, No. 3 of 2019 2. The Industrial and Labour Relations Court Rules, Chapter .269 of the Laws of Zambia Cases referred to: 1. Hotel and Tourism Training Institute Trust V Happy Chibesa, SCZ Appeal No. 58 of 2001 2. Levi Chimfwembe and Others V Moolmans Mining (Z) Limited, SCZ Appeal No. 172 of 2013 3. Angel Musonda V Pulse Financial Services, CAZ Appeal No. 132 of 2017 4. Engen Petroleum Zambia Limited V WIiiis Muhanga and Jeromy Lumba, SCZ Appeal No. 117 of 2016 • • . II, J2 5. Photo Production Limited V Securicor Transport Limited, (1980) ALL ER 556 6. Rapid Global Freight Limited V Zambia Railways Limited, CAZ Appeal No. 216 of 2016 7. Holmes Limited V Bulldwell Construction Company Limited, (1973) ZR 97 8. Muluchi Investment Limited V Zesco Ltd, CAZ Appeal No. 85 of 2021 9. Phinate Chona V Zesco Limited, CAZ Appeal No. 66 of 2019 10. Scrutton LJN Reigate V Union Manufacturing Companies Ramsbottom, (1981) 1 K. B 592 11. Edcon Ltd V Commission for Conciliation, Mediation and Arbitration and Others, (2017) 4 BLLR 391 12. Con-sfan Industries of Australia Pty Ltd V Norwich Wlnterthur Insurance (Australia) Ltd 13. Biddel Brothers VE. Clemens Horst Company, (1911) 1 KB 934 14. Hughes and Another V Greenwich London Borough Council, (1993) 4 All ER 15. The MV Prosperous Cobam NV V Angean Petroleum (UK) ltd and Another, (1996) 2 SA 155 (A) 16. William Young V The Canadian Northern Railway Company, (1930} UKPC 94 17. Teresa Carlo Omondi V Transparency~ International Kenya, Cause No. 863 of 2015 (2017) eKLR 18. Dierks V University of South Africa, (1999) 20 I LJ 1227 (LC) 19. Zambia Electronic Clearing House Limited V James Kalengo, CAZ Appeal No. 239 of 2020 20. Dennis Chansa V Barclays Bank Zambia Pie, SCZ Appeal No.111 of 2011 21. Galaunia farms Limited V National Milling Corporation, SCZ Appeal No. of 22. New Zealand Shipping Co. Ltd V Societe des Ateliers et Chantiers de France, (1919) AC 1 23. SOS Children's VHlage Zambia V Chileshe, SCZ Appeal No. 38 of 2016 " K J3 24. Heather Maureen Campbell Musariri V lschool Zambia, Comp. No.391 /2016 25. Moses Choonga V ZESCO Recreation Club ltezhi Tezhi, S. C. Z Appeal No.168 of2013 26. Maikisa Matthew llukena V Patents and Companies Reglsfratton, Comp. No.471 /2021 27. Davis Evans Kasonde V Zambia Revenue Authority, S. C. Z Appeal No. 84 of 28. Kltwe City Council V William Ng'uni, (2005) ZR 178 29. Elvfs Mtonga V Bank of Zambia, SCA Appeal No. 54 of 2018 30. Supabets Sports Betting V Batuke Kalimukwa, SCZ Appeal No. 110 of 2016 31. Norfh Western Energy Co. V Energy Regulation Board, (2011) ZMHC 78 32. Zambia Revenue Authority V Dorothy Mwanza and Others, (201 OJ 2 ZR 181 Other works referred to: 1. Grogan, J. J, 2014 Workplace Law, Juta & Company Limited INTRODUCTION 1. The Complainant, Alverf N. Ng'andu (Dr. Ng'ndu) filed a Notice of Complaint dated 7th June 2018 in which he sought the following reliefs against the Respondent, Zambia Center for Accountancy Studies (ZCAS); (i) An order that it was the practice of the Respondent to appraise an employee in management before arriving at its decision: (ii) An order that the said practice was breached by the Respondent; (iii) An order that the Complainant had a legitimate expectation that his contract of employment would be renewed having been sent on vacation leave; (iv) Damages for breach of contract of employment; d {v) Damages for wrongful and unlawful non-renewal of the Complainant's contract of employment calculated on the basis of full salary and benefits for a full period of a full contractual term of 3 years; {vi) Costs; and (vii) Any other relief that the Court may deem fit. 2. The Notice of Complaint was supported by an Affidavit of even date. 3. The Respondent filed an Answer and a supporting Affidavit dated 28th August 2018. 4. The Dr. Ng'andu filed a Reply to the Respondent's Answer dated 31 st October 2018. 5. During the hearing, Dr. Ng 1andu testified on his own behalf and called no witnesses. 6. The Respondent presented one witness, Mrs. Jacquline Chilombo Machala Chikwamba, its Board Secretary. SUMMARY OF THE EVIDENCE The Complainant's case 7. Dr. Ng'andu was initially engaged on a three-year contract to serve as Executive Director by the Respondent, effective 1st March 2012. The first contract ended on 28th February 2015. The second contract commenced on 1st March 2015 and was due to expire on 28th February 2018. 8. The Respondent registered a University in December 2016 and it commenced operations on 2nd January 2017. 9. Dr. Ng'andu served as the inaugural Vlce Chancellor of the University, whilst performing the role of Executive Director. According to the Affidavit in Support of Notice of Complaint, he received no additional remuneration ... JS and was to serve as interim Vice Chancellor until a decision was taken on whether the Respondent would employ a Vice Chancellor. 10. Following the establishment of the University, the Respondent's Board {ZCAS Board) commenced a review of the organizational structure and the conditions of service of staff. 11. Dr. Ng'andu in November 2017, intimated verbally that he wished to be considered for another contract as Executive Director. The ZCAS Board thereafter constituted an Adhoc Committee, which was chaired by the Board Chairman, Mr. Banda. The Board Chairman then on 5th December 2017 met Dr. Ng'andu in his office and specifically requested him to submit a written request to the Adhoc Committee, for an offer of a new contract as Executive Director. In his evidence in chief, Dr. Ng'andu stated that he was asked to submit an application to be offered a third contract as Executive Director and Vice Chancellor. The Dr. Ng'andu complied and submitted exhibit "ANN5", a letter in which he applied for the said new contract. He further explained that his application was specific to the position of Executive Director since no decision had been made on how the position of Vice Chancellor would be deemed; 12. The conditions of service provided that if Dr. Ng'andu was desirous to continue in employment, he was to serve a written notice to such effect on the Respondent not less than six months before the expiration of the contract term. The Respondent was equally required to respond in writing within a period of three months. This never happened in view of the review organizational structure and uncertainty it created. 13. Further, that he made the application less than six months before the end of his contract because the Board had been working on a new structure for the Respondent and had not yet made a decision on how to treat the position of Executive Director in relation to the position of Vice Chancellor. J6 14. The Board had also not made any communication with regard to the restructuring of the Respondent. 15. There was also no indication from the Board indicating that his application was out of time. 16. Dr. Ng'andu in his application for renewal of contract, brought to the ZCAS Board's attention that contrary to Clause 3.0 of his contract, no assessment of his performance had been done during his current contract. Dr. Ng'andu 1s appraisal was never undertaken until his contract expired on 281h February 2018. 17. The established practice was that the Respondent was required to appraise employees at the end of the contract, especially where there was an application for renewal of contract. 18. Dr. Ng'andu used to appraise all employees, directly reported to him as a matter of practice. He found it odd that he was not appraised considering that he performed the dual role.of Executive Director and Vice Chancellor. He had further performed the dual role for over a year without any extra remuneration as agreed. 19. Dr. Ng'andu's expectation was therefore that a decision whether or not to renewal his contract would have been based on the results of an appraisal. 20. He acknowledged that his contract expired on 28th February 2018 and that he was paid his gratuity. He however felt that the ZCAS Board did not act in good faith by not according him an opportunity to be appraised. He accordingly had no idea about their view was about his performance under the second contract. He acknowledged that he did receive a letter from the Vice Chairperson of the ZCAS University, exhibit "ANN10" in the Affidavit in Reply to the Respondent's Affidavit in Support of Answer, indicating the Respondent's gratitude and satisfaction over his performance as inaugural Vice Chancellor of the University. J7 21. On 14th February 2018, Dr. Ng'andu was called by the Board Chairman who informed him that the Board had resolved not to give him another contract. Further, that the position of Executive Director was going to be combined with that of the University Vice Chancellor and that a new recruitment would be undertaken with clarity on the dual role of the position. Dr. Ng'andu's contract would thus run to its expiry date, but that he would be eligible to apply for the new position if he desired to do so and a formal letter to that effect would be sent. 22. Dr. Ng'andu received the letter, exhibit "ANN6" as was indicated by the Board Chairman. His contract expired without any further communication from the Board Chairman. 23. Dr. Ng'andu 1s position was that he had difficulties in appreciating the information conveyed on the basis that according to the Higher Education Act, the Vice Chancellor was appointed by the Council of the University, whilst the Executive Director was appointed by the Respondent 1s Board. 24. Dr. Ng'andu was aggrieved by the manner in which his case was handled initiated the Grievance Procedure as per Clauses 7.0 and 23.0 of his contract and demanded to be heard by the Staff Committee by letter dated 18th April 2018, exhibit "ANN7". His grievance related to the failure by the Respondent to appraise his performance prior to the consideration of his application for renewal of contract. That the appraisal would have provided a basis for his decision whether or not to apply for the redefined position. He was denied this opportunity by the Respondent's neglect to appraise him. 25. The Board Chairperson by letter dated 23rd April 2018, exhibit HANNS", committed to arrange for a Staff Committee to hear Dr. Ng'andu's grievance and that he would be communicated to in that regard. 26. In the process, the Board Chairperson notified Dr. Ng'andu by letter dated 2l51 May 2018, exhibit "ANN9" that the renewal of his contract was J8 discretionary and the Respondent negated its earlier commitment to arrange for a Staff Committee to hear Dr. Ng 1andu's grievance. 27. Dr. Ng'andu acknowledged that the ZCAS Board had the discretion to decide on whether or not to offer a new contract. However, in his case, the Board's discretion was based on due process that had not been followed, in view of the Respondent's failure to appraise his performance. Further, that according to Clause 12.0 of the contract the renewal of a contract depended on whether or not an employee was given vacation leave. 28. In elaborating further on Clause 12.0, Dr. Ng'andu stated that his understanding was that if he was not going to return for further service, then he would not be granted vacation leave. 29. Dr. Ng' andu had applied for vacation leave as per exhibit "CK4" dated 9th February 2018, in the Respondent's Affidavit in Support of Answer; He applied to take 13 days' vacation leave from 12th to 28th February 2018, the terminal date of his contract. 30. According to Dr. Ng'andu, he would have accrued 28.5 days as at 28th February 2018. Having applied for 13 days, there was a balance of 7.5 days. The application was approved and he accordingly proceeded on vacation leave on 12th February 2018. He considered this to be on indication that he would be returning for further services under a new contract. 31. Dr. Ng'andu reiterated his position that he had legitimate expectation that his contract would be renewed having been given vacation leave, which was an indication that he would be returning for further services under a new contract. 32. In reply to the Respondent's Answer, as regards, the Respondent's contention that a resolution combining the position of Executive Director and Vice Chancellor was done in 2017, it was Dr. Ng'andu's position that no such resolution was made. That Dr. Ng'andu could not have been asked J9 to apply for the position had the resolution been made in 2017. He also would not have had authority to make decisions for the University in 2017. The correct position was that the ZCAS Board made the resolution on 14th February 2018 and communicated the said resolution to Dr. Ng'andu the very day. 33. Dr. Ng'andu reiterated that the requirement for appraisal was contractual and he had been previously appraised and also appraised his subordinates as a basis for recommendations to offer new contracts. 34. He also reiterated that having taken the role of acting Vice Chancellor, such appraisal was necessary and relevant. 35. He also reemphasized that in compliance with Clause 12.0 of his contract of employment, he was given vacation leave. This was a condition precedent to returning for further service under a subsequent contract of service. 36. In summary that he would rely on the contents of his entire Affidavit in Support of the Complaint in reply to the Respondent's contention that the non-renewal of his contract was neither wrongful, unfair nor was there any breach of contract committed by the Respondent. In Dr. Ng'andu's case the legitimate expectation was founded on the contractual clause referred to above. The Respondent's ccse 37. The following is a summary of the Respondent's case as distilled from the Respondent's Affidavit in Support of Answer and oral testimony of its sole witness, Mrs. Jacquline Chilombo Machala Chikwamba, the Board Secretary. 38. The Respondent did not deny that Dr. Ng'andu served as its Executive Director under two contracts of three years' duration. The first which JlO commenced on 1st March 2012 and ended on 28th February 2015. That the second commenced on 1st March 2015 and ended on 28th February 2018. 39. That Clause 1 of Dr. Ng'andu's contract of employment, exhibit "CKl" in its Affidavit in Support of Answer, provided that if Dr. Ng'andu desired to continue in employment, he was required to serve the Respondent written notice to that effect not less than six months before the expiry of the contract term. 40. Further, that the Respondent would respond in writing to Dr. Ng'andu's request for renewal of contract as it deemed fit within a period of three months. 41. It was the Respondent's position that following the establishment of ZCAS University, the Respondent resolved to combine the positions of Executive Director of the Respondent and Vice Chancellor of the University. The two positions would be under the charge of one person. That the Respondent would only implement'its decision after the expiry of Dr. Ng'andu's term of office as Executive Director. 42. The Respondent did establish an Ad hoc Committee to consider the role of Executive Director in light of the establishment of ZCAS University and the need to employ a Vice Chancellor of the said University. 43. On 14th February 2018, the Board of Directors of the Respondent made the decision to formally combine the role of Executive Director with that of Vice Chancellor of ZCAS University as evidenced by exhibit 11CK2", a copy of the minutes of the special board meeting. 44. That the Board Chairman, Mr. Fi delis Banda, accordingly notified Dr. Ng'andu of its decision not to renew his contract on 14th February 2018 and further informed him that he was eligible to apply for the new position, as evidenced by exhibit "CK3", a copy of the letter. The said letter was a response to Dr. Ng'andu's application letter of 5th December 2017, for renewal of contract as Executive Director. ... Jll 45. The Respondent's position on the issue regarding appraisal of Dr. Ng'andu, was that Clause 3.0 of his contact provided that his performance was going to be assessed every year based on set targets or agreed goals. The achievement of the goals would be used in consideration of the revision of the salary in the following year. This clause by itself according the Respondent's witness did not bring out the aspect of renewal of the contract. 46. That there was no standard procedure for appraisal of employees at management level for purposes of renewal of contracts of employment. According to the Respondent's witness, an appraisal was conducted after an indication had made by an employee of their desire to continue with employment. In the context of Dr. Ng'andu's case, an appraisal would have been done six months before the expiration of the contract. 47. The Respondent's case was that in any case, an appraisal was not necessary considering that Dr. Ng'andu's contract of employment would not be considered by the ZCAS Board for renewal due to the change in the roles of Executive Director which position he occupied. This was in light of the change of the role from Executive Director to the combined position of Executive Director and Vice Chancellor. 48. As regards the issue of vacation leave, the Respondent's witness stated that, Clause 12.0 provided that if on the date of termination, the employee was not returning for a new contract, then the employee would not be granted vacation leave, but be paid in lieu of leave earned as part of terminal payment. 49. Dr. Ng'andu applied for vacation leave as stated by himself and the same was granted by the Respondent. The remainder of his 7.5 commuted leave days were paid as part of his terminal benefits following the expiration of his contract of employment on 28th February 2018. That the implication of the ,,__ ... t' J12 commutation was that there were no further leave days accruing to Dr. Ng'andu as at 281h February 2018. SO. The Respondent denied Dr. Ng'andu's position that the non-renewal of his contract was wrongful or unlawful. There was thus no breach of contract which was committed by the Respondent. 51. There could be no legitimate expectation to return to service after the expiry of Dr. Ng'andu's contract as there was nothing the Respondent did or said which formed the basis for such an expectation. 52. In response to the issue of legitimate expectation, the Respondent's witness stated that the vacation leave that was taken by Dr. Ng'andu was taken before the expiry of the contract and not taken on the last day of the contract. 53. Further, that as provided for in Clause 1.0 of the contract, if Dr. Ng'andu intended to have his contract renewed, he should have applied for renewal of contract six months before the expiration of the contract. The Respondent would have also responded within three months before the expiration of the contract. In this case, Dr. Ng'andu applied for renewal of contract as Executive Director on 5th December 2017. 54. The Respondent's position was that Dr. Ng'andu as advised was eligible to apply for the new position of Executive Director and Vice Chancellor of ZCAS University if he so desired. 55.ln conclusion that Dr. Ng'andu was not entitled to any of the reliefs sought under the Notice of Complaint. ISSUES FOR DETERMINATION 56. In my judgment, after considering the parties rival Affidavits, oral testimony and written submissions, it is apparent that the main issue for determination is whether Dr. Ng'andu is entitled to the reliefs claimed. 57. It should be noted that as regards the written submissions, I shall refer to them in the course of my analysis. .. THE LAW, ANALYSIS AND DETERMINATION 58. It is trite that in civil matters, a party who approaches the Court for reliefs bears the burden of proving his entitlement to the reliefs sought. This burden continues to rest on the party claiming reliefs, except in the case of admissions, where the imperative of proof is dispensed with. 59. Further, it is a settled principle of law that in civil actions, the standard of proof is on a balance of probabilities. Case lav1 in this jurisdiction which l need not cite, supports the aforementioned position. 60. Dr. Ng'andu sought seven reliefs in all against the Respondent. It is against the evidence before me that I shall proceed to determine whether Dr. Ng'andu is entitled to the reliefs sought. Whether Dr. Ng'andu is entitled to the reliefs sought 61 . I shall begin with the claims under paragraphs {i) and (ii) which are interrelated and shall thus be dealt with as a whole. Claim for: m an order that it was the practice of the Respondent to appraise an employee in management before arriving at ifs decision and 00 an order that the said practice was breached by the Respondent Dr. Nq'andu's submissions 62. Dr. Ng'andu's case as I understand it is that he had expected the Respondent to appraise his performance under the second contract of 151 March 2012 to 28th February 2018. The said appraisal would have provided a basis for his decision whether or not to apply for the redefined position. He was denied this opportunity by the Respondent's neglect to appraise him. 63. It was submitted in this regard that it had been established on the evidence of RWl, the Respondent's witness, Mrs. Jacquiline Chilombo Machala Chikwamba, under cross-examination that it was the Respondent's .. J14 practice to appraise an employee before a recommendation for renewal of a contract. 64. That the Respondent's witness conceded under cross-examination that there was breach of the established practice. 65. The case of Hotel and Tourism Training Institute Trust V Happy Chlbesa (1), was cited in which it was held that at law if an employer raised the legitimate expectation by the employer's conduct, that employer was estopped from refusing to extend the same treatment to an employee in the similar circumstance. Based on the aforementioned case, it was submitted that if all employees in management were appraised during Dr. Ng'andu's time in employment, it was expected that the same treatment would be extended to Dr. Ng'andu. 66. That the Respondent's failure to appraise Dr. Ng 1andu jeopardized his position and thus the Respondent was to be found liable. That the Respondent's breach further entitled Dr. Ng'andu, to damages. The Respondent's rival submissions 67. It was submitted that Dr. Ng'andu and the Respondent were bound by the terms and conditions contained in Dr. Ng'andu's contract of employment. That the role of a Court was to enforce contracts freely entered into by parties. The cases of Levi Chimfwembe and Others V Moolmans Mining {Zl Limited (2), Angel Musonda V Pulse Ffnanclal Services (3) and Engen Petroleum Zambia Limited V Willis Muhanga and Jeromy Lumba (4) were cited in support of the Respondent's position. 68. That as regards Dr. Ng'andu's second contract whose tenure was l51 March 2015 to 281h February 2018, the same ended by effluxion of time. That it was confirmed by the Respondent's witness, that there was no provision which made an appraisal compulsory for renewal of a contract. Clause 3.0 of the second contract only provided appraisals for purposes of salary revisions. .,, JlS 69. Further, that Respondent's witness under cross-examination, refuted the position that it was the Respondent practice to conduct appraisals. That such a practice would only be enforceable where it was contained in a contract. The absence of a provision either contractually or in a handbook therefore deprived Dr. Ng'andu of any recourse to the same. Dr. Ng'andu therefore had no basis for insisting that the Respondent should have carried out an appraisal in the absence of a contractual provision to that effect. 70. In responding to the argument that the Respondent breached Dr. Ng'andu's contract of employment through its failure to appraise him, reliance was placed on the cases of Photo Production Limited V Securicor Transport Limited (5) and Rapid Global Freight Limited V Zambia Railways Limited (6). That drawing from these cases, any contract is a source of primary obligations which serve the purpose of informing the parties of their mutual promises of acts and or forbearances. The failure to perform a primary obligation was a breach of contract and gave a secondary obligation to pay damages or monetary compensation to the other party for loss sustained as a result of the breach. 71. That the Respondent had no primary obligation to appraise Dr. Ng'andu at the time his second contract terminated. Dr. Ng'andu equally had no corresponding right to demand an appraisal before the renewal of his contract. 72. It was on the basis of the aforesaid that it was submitted in conclusion that the Respondent did not breach its primary obligation under Dr. Ng'andu's contract of employment. Dr. Nq'ondu's submissions in reply 73. lt was submitted in reply citing the cases of Holmes Limited V Buildwell Construction Compcny Limited [71 and Muluchl Investment Limited V Zesco Ltd (8), that notwithstanding that parties were bound their contractual terms, Courts have in some cases allowed the parties to produce evidence J16 which demonstrated that the contract did not encompass their whole agreement. 7 4. That it was thus common for parties to create practices, procedures and policies which may not explicitly form part of the written contract, but are very much part of the contract based on the relationship they may have. 75. Distilling from the aforementioned provision, in this case, the Respondent 1s practice of appraisal towards the end of an employment contract was one that may not have been explicitly provided for in the contract of employment in issue, but was very much a part of the Respondent's policy and practice. The practice therefore formed part of the agreement and placed an obligation on the Respondent to appraise Dr. Ng 1andu towards the end of the contract. The Respondent accordingly breached the terms of Dr. Ng'andu's contract of employment when it failed to appraise him as submitted. Resolution of the rival contentions- The Court's decision 76. In this case, it has not been disputed that Dr. Ng'andu was appraised by the Respondent prior to the grant of his second contract. This fact is evidenced by exhibit "AAN3", in the Affidavit in Support of Notice of Complaint which is a copy of a letter dated 27th February 2015 addressed to Dr. Ng•andu by the ZCAS Board Chairman. 77. Further, contrary to the Respondent's submission, the Respondent's witness stated under cross-examination that there was an established practice by the Respondent to appraise employees before the renewal of a contract. The record discloses that this witness was not re-examined to clarify this position. 78. Further, the Respondent's witness, stated under cross-examination, that according to exhibit "AAN5", Dr. Ng'andu's application letter for a new contract as Executive Director, dated 5th December 2017 addressed to the J17 ZCAS Board Chairman, the Respondent did not carry out an appraisal of Dr. Ng 1andu 1s performance. 79. To be noted also is that, Dr. Ng'.andu conceded under cross-examination that the appraisal process would only be triggered after a notice from an employee to the Respondent of their intention to continue in employment after the expiration of a contract of employment. The relevant questions and responses are reproduced below for avoidance of doubt: Q. In other words you are puffing your employer on notice that you Intend to continue with your employment. A. Yes, I put it that way. Q. Once you indicated this, your employer would move fo actuate The appraisal process? A. I would expect that yes. Q. The employee takes the first step here and alerts the employer he wants a new contract? Correct? A. Yes Q. This is in fact what happened with your first contract, correct? A. Yes Q. Once you gave the notice you triggered the appraisal process, correct? A. Yes 80.1 find as a fact that on the evidence before me, the Respondent did have a practice of appraising an employee before arriving at a decision with .. J18 regard to the renewal of a contract. From this finding, I would not be faulted to conclude that the same practice consequently applied to employees in management. l however, find that such a practice was triggered by an employees' application for renewal of a contract of employment. 81.1 shall now move to the second limb of Dr. Ng'andu's claim. Namely, that the said practice of appraisal was breached by the Respondent in this case. I do acknowledge that the Respondent's witness stated under cross examination that the practice of appraisal before the renewal of a contract was breached by the Respondent as regards Dr. Ng'andu by not appraising him. However, I make findings based on the facts and the law in light of the contentions by Dr. Ng'andu on one hand that the breach constituted a breach of an implied term of the contract, whilst on the other hand, the Respondent contended that the practice of appraisal would only be enforceable if it formed part of the contract. According to the Respondent, the practice was not part of the contract and was therefore not enforceable. 82. It is trite that a contract of employment is generally considered to be like any other contract and should thus be interpreted the same way as any other contract. (See Phinate Chona V ZESCO Limited {9)). 83. It is settled as highlighted in the parties' ubmissions. that Courts are bound to enforce contracts that have been freely and voluntarily entered into by the parties. 84. In Dr. Ng'andu's submissions, it was conceded that the practice of appraisal towards the end of an employment contract may not have been deemed as having been explicitly provided under the parties contract of employment. However, that it was part of the contract of employment, having formed part of the Respondent's policy and practice. ... J19 85.lndeed, a perusal of Dr. Ng'andu's contract of employment, discloses that there was no explicit provision for an appraisal before the renewal of the said contract. For avoidance of doubt, Clause 3.0 of the contract provided as follows: 3.0 EMPLOYEE PERFOMANCE During the tenure of the contract the employee's performance shall be assessed every year based on set/agreed goals. The goals would be set at the beginning of each year. Achievement of set goals would be used in consideration of the revision of the salary in the following year. 86. Clause 3.0 as submitted by the Respondent. provided that the assessment of an employee's performance would be for the purpose of consideration of the revision of the employee 1s salary the following year. 87. ln the British case of Scrutton LJN Reigate V Union Manufacturing Companies Ramsbottom (10l case it was held as follows: A term can only be Implied If It Is necessary In the business sense to give efficacy to the contract; that is, if it is such a term that it can confidently be said that ff at the time contract was then negotiated someone had said to the parties:' What will happen in such a case', They would both have replied: "Of course so and so will happen; we we did not trouble to say that; it is too clear. 88. It is trite that long standing practice may give rise to a tacit contractual term. (see Edcon Ltd V Commission for Concilliation. Mediation end Arbitration and Others ( 11) and Con-sfan Industries of Australia Pty ltd V Norwich Wlnterthur Insurance (Australia) Ltd (12). -.. ,,. J20 89. In the course of my research, I noted that the meaning ascribed to 'business efficacy', has not always been consistent. 90. Older case assigned a rigid application of the term. In Biddel Brothers V Clemens Horst Company (13}, it was stated that a term could only be implied if its absence rendered the contract 'impossible of performance'. 91. In later case of Hughes V Greenwich (14}. if" was held that the court could only imply a term into a contract where there was a compelling reason to do so. Tt:tat in such a case the fact that the implication of the term would be 'conducive to enhanced performance' of duties in terms of the contract was held to be insufficient to imply the term. There was a requirement that such a term should be essential for the performance of the contractual duties. 92. Further, in the South African case of The MV Prosperous Cobam NV V Angen Petroleum (UK) Ltd and Another {15) it was stated: The test to be applied for Implication of such a term .... can ... be summed up as follows: (i) it is not sufficient to show that the term sought to be introduced would be reasonable, as It Is not sufficient for courts to make a contract for the parties; (II) the implication must be as a matter of necessity and be founded on the presumed Intention of the parties; and (iii) the term must be obvious and capable of precise formulation. 93. As can be discerned from the above authorities, 'business efficacy' may be interpreted to mean that the implied term must be necessary or essential for the performance of the contract and be founded on the presumed intention of the parties. Thus in the absence of such a term the contract would be unworkable and its full purpose not achieved. 94. The question whether a long standing practice could be contractually binding was considered in the persuasive South African Edcon Ltd case. .... •. J21 95.1 recognize that the said case arose from a dismissal lawsuit which is different from the case before this Court. However. the principles set out in that case are of assistance to the resolution of the issue under this head. 96. In the Edcon Ltd case, it was held that although there is authority to support the proposition that a long-standing practice can give rise to a tacit term of a contract of employment, the regularity of an occurrence, does not itself constitute or give rise to a contractual term, unless the parties have an intention of creating a contractual right. The issue of the parties' intention was addressed in the The MV Prosperous Cobam NV case as hig_hlighted above. 97.ln the Canadian case of William Young V The Canadian Northern Railway Company (16}. The principle to be distilled is that for a custom or established practice to become a source of an implied contractual term, the parties must be shown to be applying the term because there is a sense of legal obligation to do so. If a practice is adopted because a party does so as a matter of policy rather than out of a sense of legal obligation, then it will not confer contractual rights. 98. In arriving at a decision, I have considered the legal principles cited in the analysis of my decision. It is settled that implying a term is to be done on a case by case basis. I shall make a decision based on the specific circumstances of this case. 99. The crucial question is whether the circumstances of this case support the inference that the established practice of appraising an employee before the renewal of a contract, crystalized into an implied contractual term which placed a legal obligation on the Respondent. The follow up question is whether the Respondenfs conduct could be viewed from an objective lens, as to convey to employees that it had to be so legally bound by the appraisal practice. If these questions are answered in the affirmative, the position will be that the Respondent had a legal obligation to appraise Dr. J23 would run to its expiry date, 28th February 2018. He was further advised that he was eligible to apply for the new position if he desired to do so. I also noted that the Board Chairman thanked Dr. Ng'andu for taking ZCAS to a new level during the tenure of his employment and that his contribution to the development of ZCAS would be indelible. 105. It should be further noted that Dr. Ng1 andu in his evidence in chief highlighted that he received a letter from the Vice Chairperson of the ZCAS Board in which gratitude was expressed for his satisfactory performance during his tenure under the second contract. I therefore have difficulties in appreciating Dr. Ng'andu's contention the failure to appraise him jeopardized his position under the circumstances of this where he received positive feedback from the ZCAS Board. 106. I have found it prudent to reproduce the relevant cross- examination questions and Dr. Ng'andu's responses: Q. So what they are telling you is that they had created a new role and therefore it was Impossible to renew your contract. A. Yes, that's what they are saying. Q. The reasons they gave for not renewing your contract was not performance related correct? A. Yes It was not 107. Clearly, the non-renewal of Dr. Ng'andu's contract as conceded by himself was not performance related. Dr. Ng'andu has no basis of contending as already highlighted the Respondent's failure to appraise his performance affected his decision not to apply for the combined role of Executive Director and University Chancellor. 108. As was held in the William Young case, for a custom or established practice to become a source of an implied contractual term, the parties must be shown to be applying the term because there is a sense .., J25 114. Dr. Ng'andu under this head, anchors his argument of legitimate expectation on Clause 12.0 of his contract which stipulated that if there was no intention of returning for further service under a subsequent contract of service, he would not be granted vacation leave. Dr. Ng'andu was however granted vacation leave and he considered this to be an indication that he would be returning for further services under a new contract. He accordingly proceeded on his end of contract leave on 12th February 2018. 115. He contended that the non-renewal of his contract was accordingly wrongful and unlawful. 116. It was submitted on behalf of Dr. Ng'andu that an employee under a fixed term of contract could indeed have a legitimate expectation that a contract would be renewed based on certain conditions to be met. In Dr. Ng'andu's case, reliance was made on Clause 12.0 of his contract of employment, as already alluded to above. 117. ln arguing Dr. Ng'andu's case, the cases of Teresa Car1o Omondl V Transparency-International Kenya (17), orerks V University of South Africa (18) and Zambia Electronlc House Limited V James Kalengo CJ1l were cited. The cases highlighted factors were legitimate expectation could arise. These were factors such as regular practice; an express promise, representation or undertaking relied on by an employee; availability of a post; purpose of concluding a contract; inconsistent conduct; failure to give reasonable notice and nature of employer's business. 118. It was added that there was a legitimate expectation that Dr. Ng'andu would be appraised before a decision was made and this was a breach which entitled him to damages in the quantum of thirty-six (36) months' salary as guided in the case of Dennis Chansa V Barclays Bank Zambia Pie {20). "' J26 119. It was also submitted that as regards the Respondent's contention that Dr. Ng'andu did not apply for renewal on time, Dr. Ng'andu had explained the reasons why he did not do so. That the Respondent's Board Chairman had invited him to make a written application for renewal. 120. Further, that it had to be noted that the decision to combine the positions of Executive Director and Vice Chancellor was made on 14th February 2018, 14 days before the end of Dr. Ng'andu's second contract. 121. Ta king into account circumstances alluded by Dr. Ng' andu and the Respondent's actions, the Respondent was estopped from raising the contention of delay on the part of Dr. Ng'andu to submit his contract renewal application. 122. The cases of Galaunia Farms Limited V National Milling Corporation (21 l and New Zealand Shipping Co. Ltd V Societe des Ateliers et Chantiers de France (22) were cited in support of this submission. 123. It was also submitted that Dr. Ng'andu raised grievances over the handling of his case pursuant to the Disciplinary Code and Grievance procedure which was part of the contract which bound the parties. The Respondent agreed to address the grievances and later rescinded its decision in breach the contract of employment. 124. Relying on the case of SOS Children's Village Zambia V Chileshe (23), it was submitted that in view of the Respondent's aforesaid breach of the Disciplinary Code and Grievance procedure, Dr. Ng'andu was entitled to damages. The Resp ondent's rival submissions 125. In the Respondent's rival submissions, it was contended that the oral evidence on record demonstrated that Dr. Ng'andu's second contract had a definite tenure running from l st March 2015 to 28th February 2018. J27 l 26. In terms of the law, reliance was placed on the cases of Heather Maureen Campbell Musarlrl V !school Zombie (24), Moses Choonga V ZESCO Recreotion Club ltezhi Tezhl (25), Maikisa Matthew llukena V Patents and Companies Registration (26), in support of the principle that the expectation of a renewal of contract could not be based on the subjective perception of an employee, that there needed to be evidence to demonstrate that there existed circumstances that raised a legitimate expectation on the part of the employee. That for instance where an employee was allowed to continue working after the expiration of a previous contract of employment. That the burden was therefore on an employee to demonstrate on the totality of evidence the existence of reasonable circumstances, which from an objective standpoint served to demonstrate the existence of expectation for continued employment. 127. It was also submitted that the decision to combine the roles of Executive Director and University Chancellor in February 2018, meant that there was no continuity of roles to justify a performance based assessment. 128. In response to Dr. Ng'andu's contention that he relied on the grant of vacation leave to raise his case of legitimate expectation, it was submitted that Dr. Ng'andu's 1legitimate expectation' ought to have arisen from reasonable circumstances, which were justifiable from an objective standpoint. In Dr. Ng'andu's case, the vacation leave which was granted, ended on 28th Fenbruary 2018. He was paid for untaken leave as confirmed by Dr. Ng'andu and the Respondent's witness. There was thus no case for legitimate expectation based on the grant of vacation leave as contended by Dr. Ng'andu. 129. It was also submitted citing the case of Davis Evans Kasonde V Zambia Revenue Authority (27) that an employment contract that was previously renewed was independent from its predecessor and employer had the inherent right to exercise discretion whether or not to renew a .... J28 contract of employment, without giving reasons. That in this case, Dr. Ng'andu's contract of employment did not provide for automatic renewal as the contracts under which he had served were independent of each other. 130. That Dr. Ng'andu did not present any evidence that the Respondent promised to offer him a new contract as Executive Director after the expiration of his second contract. That following the decision to combine the positions of Executive Director and University Vice Chancellor, in the event that Dr. Ng'andu was successful in his application for the new position, he could not raise the issue of renewal of contract as it was going to be a new role or job with a change in the job description. The previous position of Executive Director was going to be non-existent. The new position had its own externalized recruitment process and job description. 131. Jn conclusion, that Dr. Ng'andu had failed to demonstrate the reasonable circumstances which would create a reasonable expectation for renewal in light of terms in the second contract and the absence of an express promise that the contract was going to be renewed. 132. In response to Dr. Ng'andu's claim for compensation for the period of a full contractual term of three years for the non-renewal of contract, it was submitted that such a claim was unlawful and would amount to unjust enrichment. That Dr. Ng'andu could not be awarded a salary for a period not worked for as was held in the cases of Klfwe CJty Council V William Ng'uni (28), Elvis Mtonga V Bank of Zambia (29) and Supabets Sports Betting V Batuke Kalimukwa (30). Dr. Ng'andu's submissions in reply 133. In response to the Respondent's submissions, it was submitted citing the case of North Western Energy Co. V Energy Regulation Board (31 ), that the Respondent being the decision maker, led Dr. Ng'andu to believe that his job would be retained. That this could be discerned from the J29 attitude of the Respondent towards the end of Dr. Ng'andu's contract of employment. l 34. That Dr. Ng' andu never applied for the new combined role as asserted in the Respondent's submissions. The said new job was not in existence at the time, Dr. Ng'andu applied for renewal of his contract. Therefore, the correct position was that he applied for the renewal of his contract. 135. It was reiterated that contrary to the Respondent's submissions, there was in Dr. Ng'andu's case a justifiable belief that he would expect to be retained having been granted vacation leave which ended on 28th February 2018, the last day of the contract of employment. Resolution of the rival contentions-The Court's decision 136. I have had occasion to determine a matter in which the issue of legitimate expectation arose. This was the case of Maikisa Matthew llukena V Patents and Complanies Registration. This case was cited in the Respondent's submissions. J 37. I did note in the aforementioned case that in this jurisdiction, there is no legislation on the principle of legitimate expectation in the renewal of fixed term contracts as is the case in jurisdictions such as South Africa and Zimbabwe. I further observed that in resolving disputes anchored on the principle of legitimate expectation, I would have to rely largely on case law. l shall in this case similarly rely on case law in resolving the issue under this head. 138. As correctly submitted on behalf of the Respondent, decisions in this jurisdiction hold that fixed term contracts of employment, carry no expectation of renewal. (See Zambia Revenue Authority V Dorothy Mwanza and Others {32) and Davies Evans Kasonde V Zambia Revenue Authority). This position has not been disputed in Dr. Ng'andu's submissions in reply. As correctly submitted on behalf of the Respondent and conceded by J30 Dr. Ngandu, an employer has the discretion whether or not to renew a fixed term contract of employment. 139. I pointed out in the Maikisa Matthew llukena case, that this discretion of an employer to renew or not to renew a fixed term contract can however be challenged on limited grounds. One such ground is that of legitimate expectation as I indicated when addressing Dr. Ng 1andu 1s second claim above. 140. As I found in the Maikisa Matthew llukena case, in legitimate expectation claims, the burden of proof is always on the employee. The Respondent correctly submitted so and the position was not disputed in Dr. Ng'andu's submissions in reply. 141. In the Maikisa Matthew llukena case, I adopted the position set out in Grogan's 'Workplace Law' on factors which an employee in discharging the burden must demonstrate as highlighted in the persuasive Heather Musarlrl V lschool Zambia Limited case which was cited in the Respondent's submissions. The said factors were put this way: The notion of reasonable expectation clearly suggests an objective test: fhe employee must prove the existence of facts that.. .. would lead a reasonable person to anticipate renewal. The facts that found a reasonable expectation will clearly differ from case to case but will mostly commonly take the form of some prior promise or past practice ... The conduct of the employer In dealing with the relationship, what the employer said to the employee at the time the Contract was concluded thereafter, and the motive for terminating the relationship has been cited as factors to be considered. 142. These factors were highlighted in the authorities that were cited in the parties' respective submissions on the issue under consideration. .,.., J31 143. A party who relies on legitimate expectation must anchor his or her belief do so on a cogent, rational and objective reason induced by the employer, either expressly or by conduct. That legitimate expectation as highlighted in the parties' submissions, does not encompass factors such as, hope, wishes, desires or anticipation. l 44. In view of the parties rival contentions, the starting poir.t in my view is Clause 1.0 of Dr. Ng'andu's contract of employment, exhibit "ANN4" in the Affidavit in Support of Notice of Complaint. It provided: 1.0 TERM OF EMPLOYMENT ZCAS would employ the Employee and the Employee shall serve as a EXECUTIVE DIRECTOR for the period from 1 MARCH 2015 to 28 FEBRUARY 2018 herein referred to as the term of the contract. Except that if the Employee desire to continue In employment, the Employee shall serve a written notice to such effect on the Employer not Jess than six months before the expiry of the contract term. The Employer shall respond in writing to the request for extension of the contract, as It shall deem fit within a period of three months. 145. This term placed an obligation on Dr. Ng'andu to serve a written notice to the Respondent not less than six months before the expiration of his contract if he desired to continue in the Respondent's service. When cross-examined he did concede that notwithstanding the uncertainty regarding the organizational restructuring, he was still bound by the terms of his contract. 146. The Respondent's witness did also concede under cross- examination that the Respondent did not in its Affidavit in Support of J32 Answer, respond to Dr. Ng'andu's position that the uncertainty regarding employees' positions under the new structure, put Dr. Ng'andu in a precarious position as regards his application for renewal of contract. 147. I however noted from the Affidavit evidence that Dr. Ng'andu averred that he verbally intimated to the Respondent's Board Chairperson that he wished to continue in employment and was requested to formally indicate his position to the Adhoc Committee which had been constituted to consider his application. He accordingly applied for a new contract as Executive Director by letter dated 5th December 2017, exhibit "ANN5", in his Affidavit in Support of Notice of Complaint. 148. The issue can be viewed from another angle, Dr. Ng'andu was still bound by his contract of employment and had the option of applying for renewal of contract pursuant to Clause 1.0 of his contract, notwithstanding the uncertainty surrounding the restructuring of the Respondent. He averred that he verbally intimated to the Board Chairman who was equally stimulated on behalf of the ZCAS Board to request him to apply for renewal of contract. Taken from this angle, in my view, there was a lapse on Dr. Ng'andu's part and cannot rely on the request by the ZCAS Board to request him to apply for renewal of contract in December 2017 as one of the anchors of his legitimate expectation belief. 149. However, notwithstanding the delay in the submission of the application for renewal of contract, as observed above, ZCAS Board did still consider Dr. Ng'andu's application for renewal of contract as demonstrated by the letter dated 23rd February 2018. 150. I shall now turn to what I understand to be the core of his case of legitimate expectation. Dr. Ng'andu's case is anchored on Clause 12.0 of the contract of employment. It provided as follows: J33 12.0 TERMINAL PAYMENT If · on the date of termination of this contract of service the Employee is not returning for further servfce under a subsequent contract of service under Clause 1, he shall not be granted vacation leave but In lleu of the leave he had earned, he shall receive a terminal payment equal to the amount of salary he would have received during such leave if it had been granted to him as leave. 151. The resolution of Dr. Ng 1andu's contention as regards Clause 12.0 is dependent on the interpretation of the said clause. 152. I did examine the said clause. In my view, the first key in unlocking Clause 12.0, lies in the words 'if on the date of termination of this contract'. Clause 12.0 clearly refers to the date of termination of the contract. In the case at hand, the date of termination was '28th February 2018'. Thus, if on 28th February 2018, Dr. Ng'andu would not be returning for 'further service under a subsequent contract of service', he was not to be granted 'vacation leave'. 153. In other words, the Respondent was contractually bound not to grant Dr. Ng'andu vacation leave if on the date of termination of contract, 28th February 2018, he would not be returning for further service under a new contract of employment. l 54. Pursuant to the contract of employment, prior to 28th February 2018, Dr. Ng'andu who was an employee of the Respondent, had the contractual right to apply for vacation leave, which the Respondent was bound to consider. In this case, Dr. Ng'andu applied for vacation leave on 9th February 2018 as per exhibit "CK4" in the Respondent 1s Affidavit in Support of Answer, which was granted. It was effective 12th February 2018 and would end on 28th February 2018, the date of the expiration of the contract. J J34 155. The above position is concretized by from the responses given by Dr. Ng'andu under cross examination, which I have found prudent to reproduce for avoidance of doubt: Q. You could take the leave from commencement of contract ·until expiry? A. Yes. Q. Your leave was starting from 12/02/18 to 28/02/18. A. Yes correct. Q. This was within your contract period? A. Yes correct. Q. The leave you referred to was not given to you on date of Termination? A. Yes, It could not have been given to me on date of termination. 156. Under the circumstances, as noted above the Dr. Ng'andu's vacation leave was not granted on the date of termination of the contract namely, 28th February 2018, but was effective 12th February 2018. 157. It is my finding that Dr. Ng'andu could not invoke Clause 12.0 as a ground for legitimate expectation of renewal of his contract. Clearly, the situation would have been different had the vacation leave been granted on 28th February 2018. 158. To be taken into account also is that Dr. Ng 1andu applied for renewal of a contract for the position of Executive Director. Following the ZCAS Board's resolution to combine the positions of Executive Director and University Chancellor as the evidence demonstrates, a new position which ,,.,_ ,.,. J35 had a new job description would be created. Dr. Ng'andu could not legitimately expect to be granted a contract under a position the ZCAS Board resolved would no longer be in existence. He was as already highlighted, advised that he was eligible to apply for the new position, but opted not to do so. He decided to assert that the Respondent's failure to appraise his performance prevented him from making the decision to apply for the new role. This argument as already observed cannot be sustained on the ground that the ZCAS Board appreciated his contribution to the extent of notifying him that he took the Institution to a new level during the tenure of his employment and that his contribution to the development of the Institution would be indelible. 159. For the reasons given above, I find that Dr. Ng'andu has not made out a case of legitimate expectation on a balance of probabilities. 160. Rather than end here for the purpose of adjudicating on all relevant issues raised by the parties, I shall address Ng'andu's the grievance procedure that was invoked by Dr. Ng'andu pursuant to Clause 1.4 of the Respondent's Disciplinary Code and Grievance Procedure. 161. Port Ill of the Respondent's Disciplinary Code and Grievance Procedure provides for the grievance procedure. As starting point the relevant clause is Clause 7.0. It provided: 7.0 DISCIPLINARY CODE AND GRIEVANCE PROCEDURE The Disclpllnary Code and Grievance Procedure Is annexed to this contract. The Employee is required to ensure understanding and compliance to the Disciplinary and Grievance Procedure. 162. The next relevant clause is Clause 1.1. It provided. -::.... ~ J36 1.0 GRIEVANCE PROCEDURE 1.1 An employee who has ·a grievance as defined by this Code will of his own option take up the matter with his immediate supervisor. The Immediate supervisor shall deal with the matter within five (5) days. The decision arrived at will be communicated to the employee not later than two (2) days after the hearing. Such decision shelf be communicated in writing and copies thereof shall be sent to all parties concerned. 163. Finally, I shall refer to Clause 1.4 which provided: 1.4 For officers reporting dlrectly to the Executive Director they will have a right to bring their appeal against the decision before the Staff Committee of the ZCAS Board. Grievance of the Executive Director would first be heard by the Staff Committee of there after It could be referred to the full ZCAS Board for final resolution. 164. It is clear that Clauses 7.0 and 1.1 applied to an employee serving under the Respondent. Further, Clause 1.4 referred to the grievance by the Executive Director. In my view, this referred to an Executive Director under the Respondent's service. 165. Dr. Ng'andu raised his grievance on 18th April 2018, as per exhibit "ANN7" in the Affidavit in Support of Notice of Complaint. At this point he was no longer an employee of the Respondent. It follows that the Respondent's Disciplinary Code and Grievance Procedure was no longer applicable to him. J37 166. It is recognized nevertheless that the ZCAS Board Chairman by letter dated 23rd April 2018, exhibit HANNS", did respond to Dr. Ng'andu's grievance letter and undertook to make arrangements for the Staff Committee to hear his case as per Clause 1.4 of the Grievance Procedure. The ZCAS Board Chairman by letter dated 21st May 2018, exhibit "ANN9" notified Dr. Ng'andu that the Respondent would not entertain his grievance on the basis that the Respondent had no obligation to automatically renew his contract as such a decision was purely a matter of discretion on the part of ZCAS Board. Further, Dr. Ng'andu was reminded that he was advised by letter dated 23rd February 2018, that he and other eligible persons were at liberty to apply for the role as and when it was advertised. 167. Dr. Ng'andu formed the view that it was too late to raise his grievance at the point he was informed that his contract would not be renewed. Indeed, Dr. Ng'andu's sentiments are understandable and I sympathize with him. Nevertheless, at the time he was notified of the non renewal of his contract, he was still an employee and had the right to invoke the grievance procedure before the expiration of his contract. 168. Notwithstanding its earlier commitment of 2Jrd April 2018, it is certain that after the termination of Dr. Ng'andu's contract of employment by effluxion of time, the Respondent was immediately deprived of jurisdiction to constitute a Staff Committee to hear Dr. Ng'andu's grievance. Such authority is based on the existence of a contract of employment as con be seen from Clauses 7.0, 1.1 and 1.4 above. In short, without a contract, there was no authority. 169. As noted above, Dr. Ng'andu was not an employee after 28th February 2018 and could not invoke the Respondent's grievance procedure and demand to be heard by the Staff Committee. The merits of any adverse decision as felt by himself could be only be challenged under the available mechanisms such as courts of law, and not under a contract J38 of employment that had expired. There thus no value in further discussing this point. l 70. In the final analysis, the non-renewal of Dr. Ng'andu's contract of employment was not wrongful and unlawful. I accordfngly find that his claim for an order that he had a legitimate expectation that his contract of employment would be renewed having been sent on vacation leave is dismissed for the reasons given above. This claim is accordingly dismissed. t 71. Before moving on to the resolution of the rest of Dr. Ng'andu's other claims, I wish to re-echo my sentiments in the Maikisa Mafther lfukena case to the effect that, it would be progressive if the Employment Code Act, No.3 of 2019 were to be amended to incorporate the principle of legitimate expectation, in view of the fact that it is a recurrent cause of employment disputes. Claim for: fivJ Damages for breach of contract of employment 172. Having found that the Respondent did not breach Dr. Ng'andu's contract of employment, it follows that he is not entitled to the claimed damages for breach of contract. This claim is accordingly dismissed. Claim for : (v}Damaqes for wrongful and unlawful non-renewal of the Complainant's contract of employment calculated on the basis of full salary and benefits for a full period of a full contractual term of 3 years 173. I have already found that the non-renewal of Dr. Ng'andu's contract of employment was not wrongful and unlawful. I have also found that his claim for legitimate expectation was not established. lt follows that he is not entitled to damages for wrongful and unlawful non-renewal of contract of employment calculated on the basis of full salary and benefits for a full period of a full contractual term of three years. This claim is accordingly stands dismissed. ... ' Claim for: Any other relief that the Court may deem fit 174. On the evidence before me, there is no basis for a finding that Dr. Ng'andu is entitled to any other relief I may deem fit. CONCLUSION 175. Orders: In conclusion, for avoidance of doubt, I make the following final (I) An order f~af If was the practice of the Respondent to appraise an employ ee in management before arriving at its decision I found that there was a practice that the Respondent would appraise an employee before arriving at its decision. I further found that the same practice consequently applied to employees in management. However, that this practice was triggered by an employees' application for renewal of a contract of employment. (ii) An order that the said practice was breached b y the Respondent I found that the appraisal practice could not be deemed to have been an Implied contractual term, whose breach would entitle Dr. Ng'andu or any other employee to damoges. This claim is accordingly dismissed. (iii) An order that the Complalnant had a leg itimate exp ectation that his contract of emplovment would be renewed having been sent on vacation leave I found that the non-renewal of Dr. Ng'andu's contract of employment was not wrongful and unlawful. I also found ' r J41 I found that Dr. Ng'andu was not entitled to any other reliefs this Court may deem fit. This clalm Is accordingly dismissed. (viii) It is so ordered.