G & H Transport Limited v Author Lukumba and Ors (APPEAL NO. 158/2023) [2025] ZMCA 172 (21 August 2025)

,. IN THE COURT OF APPEAL HOLDEN AT NDOLA ( Civil Jurisdiction) BETWEEN: APPEAL NO. 158/2023 G & H TRANSPORT LIMITED APPELLANT AND t AUTHOR LUKUMBA ERNEST SOOPU JOHN KATOWA 2 1 AUG 202 REGJS7RY 2 1 ST RESPONDENT 2ND RESPONDENT JRD RESPONDENT CORAM: KONDOLO SC, MAKUNGU AND CHEMBE JJA On 13th and 21st August, 2025 For the Appellant: Mr. S. Mutembo of Messrs Magubbwi & Company For the 1st Respondent: Mr. S. Nsomboshi of Messrs Mulenga For the 2nd & 3 rd R espondents: Mr. K. Tembo of Messrs K. Tembo Nsomboshi & Associates Advocates JUDGMENT KONDOLO, SC JA delivered th e Judgm ent of t h e Court . J2 of 33 CASE S RE FE RRE D TO: 1. Emporium Fresh Foods Limited (T / A Food Lovers Market) & Another v Kapya Chisanga CAZ/44/2021 2. Time Trucking Limited v Kelvin Kipimpi CAZ/25/2016 3. Gibb v United steel Companies Limited (1957) 2 All ER 4. G4S Secure Solutions Zambia Limited v Anthony Kampemba SCZ/181/2014 5. Zulu v Avondale Housing Project ( 1882) ZR 172 6. Charles Mfula v Zambia Breweries PLC SCZ/134/2009 7. Williams David Carlisle Wise v E. F. Harvey Limited (1985) ZR 179 8. Mazoka & Others v L. P. Mwanawasa & Attorney General (2005) ZR 13 9 . National Breweries Ltd v Philip Mwenya SCZ/200/2002 10. Chilanga Cement Pie v Kasote Singogo SCZ/ 13/2009 11. AB Bank Zambia v Benjamin Nyirenda CAZ/58/2020 12. Charles Phiri Ntanda v Kansanshi Mining Pie SCZ/151/2009 13. Nkhata & 4 Others v The Attorney General (1966) ZR 14. Zinka v Attorney General (1984) ZR 44 15. Eston Banda v The Attorney General 16. Zambia Medicines Regulatory Authority v Brian Muwanei CAZ/100/2023 1 7. Standard Chartered Bank PLC v Celine Meene N aiL Caz/14/2019 LEGISLATION AND PUBLICATIONS CITED: 1. Employment Code Act No. 3 of 2019. 2 . Industrial Relations Act Chapter 269 3. Industrial and Labour Relations Rules 4. Court of Appeal Rules, J3 of 33 5 . W. S. Mwenda & Chanda Chungu, A Comprehensive Guide to Employment Law in Zambia, UNZA Press Lusaka, 2005 1.0 INTRODUCTION 1.1 This is an appeal against the Judgment of the High Court by D. C. Mumba J delivered on 10th February, 2023. The Appellant was the Respondent and the Respondents were the Complainants in the Court below. I shall refer to the parties as the Appellant and Respondents respectively. 2 .0 BACKGROUND 2.1 The Respondents were employees of the Appellant who dismissed them from employment an d after which the trio sued the Appellant seeking the following reliefs ; 1. Damages for wrongful and unlawful dismissal 2. Damages for constructive dismissal, in the alternative. 3. Payment of salary arrears from April, 2019 to February, 2021. 4. Interest. 5 . Costs 6. Any other relief the Court deems fit J4 of 33 2.2 PROCEEDINGS IN THE LOWER COURT 2.3 Complainants' Case 2.4 The Affidavit in support of the Complaint stated that sometime in April or May 2019, the Appellant reported the Complainants to Zambia Police accusing them of theft by servant. They were consequently charged with the offence and placed in custody. 2.5 They were later released on police bond and reported for work where the Appellant verbally informed them that they had been suspended from employment until the criminal case was concluded. 2.6 That the Appellant stopped paying them their monthly salaries except for a payment of salaries in October 2019. 2.7 The 1st and 2 nd Respondent were eventually acquitted and reported for work on 9 th February, 2021 and resumed work until the end of the month when the Fleet Manager dismissed them after verbally informing them that their services were no longer needed and they were not paid salary arrears. 2.8 That they do not know why they were dismissed from employment as they were not charged with any disciplinary JS of 33 offence nor given the opportunity to be heard , hence their decision to commence legal proceedings. 2.9 At the trial the 2 nd Respondent CWl , testified on behalf of the three Respondents and he explained that the Appellant employed them as truck drivers in South Africa. 2.10 That sometime in 2019 the Respondents were each tasked to deliver various goods to different destinations. He told the Court that on his way back, he was arrested and detained by the police and his Co-Respondents later joined him. The two had been granted police bond and he was granted bail by the Court. 2.11 The trial took two years and he and the 1st Respondent were acquitted after which they reported for work and RWl informed them that they were no longer needed as the Appellant had employed new drivers. The 3 rd Respondent wa s not with them as he had been convicted. 2.12 They were not given letters terminating their employment. 2.13 CWl produced the 1st Respondent's pay slip which showed that his salary was being pa id by the Appellan t and tha t the 3 Respondents used to report to the same person and all drove the Appellant's trucks. J6 of 33 2.14 In Cross-examination, CWl conceded that the Respondents had failed to produce contracts of employment but insisted that they were employed by G & H South Africa under the Appellant which was its subsidiary. That he signed other contracts with the Appellant in 2018. 2 .15 CW 1 admitted knowing a company called I Tre Cugini Logistics and stated that it had the same owners as the Appellant and the two companies parked their trucks in the same yard. 3 .0 Respondents' Case 3.1 The Appellant filed an answer stating as follows; I. The 1st Respondent was not its employee but an employee of I Tre Cugini Logistics as a driver on a contractual basis from 23 rd July, 20 18. 2 . The 2 nd Respondent was employed on three months' probation. 3 . The 3 rd Respondent had been its employee for 11 months up to May 2019. 3.2 That the complaint to the police was only lodged against the 2nd and 3 rd Respondents and even if the complaint had been made against the 1st Respondent, that's what any responsible company would have done . A J7 of 33 3.3 That the Appellant did not dismiss the Respondents but they had deserted their employment and hence they were not charged with any disciplinary offence. None of them returned for work and the Appellant accordingly notified the 1st Respondent's employers. 3.4 That the trio surfaced after 1 year and 6 months except the 3 rd Respondent who was convicted and serving a sentence. 3.5 Prince Morapa RWl testified on behalf of the Appellant and told the Court that he knew the Respondents in 2015 and they were working for I Tre Cugini Logistics which was sub contracted by G & H South Africa. 3.6 He stated that the Respondents had signed the G & H South Africa conditions of service which provided for the offence desertion of duties and therefore, having deserted, the Respondents were not wrongfully or unlawfully dismissed. 3.7 In cross examination RWl accepted that the Respondents were employed by the Appellant company. 3.8 He conceded that the Respondents were neither charged with the offence of desertion nor invited to a disciplinary hearing nor issued with dismissal letters. I - JS of 33 3.9 When pressed further, RWl agreed that the Respondents were still employees of the company because they had not been dismissed. 3.10 In re-examination RWl stated that the reason the Respondents were not charged and disciplinary hearing convened was because the Respondents never availed themselves. 4 .0 JUDGMENT OF THE HIGH COURT 4 .1 The learned trial Judge determined that the following were the issues for determination; 1. Whether the Complainants' were employees of the respondent. 2. Whether the Complainants' dismissal from employment was wrongful and unfair entitling them to the payment damages. 3. Whether in the alternative, the Complainants were constructively dismissed by the respondent and thereby entitling them to the payment of damages. 4. Whether the Complainants are entitled to the payment of salaries from April 2019 to February 2021. 5 . Whether the Complainants are entitled to th e payment of costs of this action. J9 of 33 4.2 After inter alia considering the documents adduced by the parties written on the Appellant's letterhead and bearing its official stamp, the lower Court determined that the Respondents were the Appellants employees. 4.3 After considering the testimony of the witnesses the lower Court believed the Respondents and found that they had not deserted from employment but were dismissed . 4.4 The trial Court held that by not charging the Respondents and providing them with an opportunity to be heard, the Appellant had breached the Employment Code Act No . 3 of 2019 (The Act) . 4. 5 Further on this point, the lower Court ref erred to the case of Emporium Fresh Foods Limited (T / A Food Lovers Market) & Another v Kapya Chisanga (l) where this Court emphasized the requirement to provide employees with an opportunity to be heard. 4.6 Citing the book by W. S . Mwenda & Chanda Chungu, A Comprehensive Guide to Employment Law in Zambia, UNZA Press Lusaka, 2005 the learned trial Judge stated that unfair dismissal covers both where dismissal contravenes a specific • JlO of 33 statute and at whether th e dismissal was reasonable and j u stified. That section 52 (5) of the Act places the bu rden of proof on the employer. 4 .7 The Cou rt fou nd the Appellant liable for both wrongful and unfair dismissal. 4 .8 The learned trial Judge further decided that considering the circumstances of the case, particularly the manner in which the Respondents were dismissed from employment, h e was compelled to award damages beyond the normal measure which is an amount equivalent to the notice period. He therefore awarded each of the Respondents 24 months of their last basic salaries plus allowances with interest at the short-term commercial deposit rate, as determined by the Bank of Zambia, from the date of the notice of complaint to the date of the Judgment and thereafter at 10 % per annum until full settlement. Th e amount to be assessed by the Deputy Registrar in the event of disagreement by the parties. 4.9 The learned trial Judge determined that having succeeded in the foregoing claims, the alternative claim for damages for constructive dismissal h ad been overtaken by events. Jll of 33 4. 10 The claim for salary arrears was dismissed because the Respondents failed to prove that their conditions of service provided for payment of salaries whilst suspended from employment and the case of Time Trucking Limited v Kelvin Kipimpi !2l. Further that in the absence of such proof, th ey could not be paid salaries for a period during which they had not worked. 4.11 The trial Court awarded the Respondents costs on account of the Appellants behavior for waiting well over a year before taking disciplinary action against the Respondents and for blatantly breaching statutory provisions and for taking vexatious and unnecessary steps in defending the proceedings. 5. 0 THE APPEAL 5.1 Dissatisfied with the decision of the Lower Court, the Appellant appealed to this Court on the following grounds: 1. The learned trial Judge erred in law and in fact when he held that the Complainants were employees of the Respondent Company when there was evidence at trial that the Complainants were employed by G & H Transport Limited South Africa and I Tre Cugini Logistics. J12 of 33 2. The trial Judge erred in law and in fact when he held that the Complainants did not desert work despite having observed at page J25 that the Complainants returned for work after over a year. 3. The Honorable Court erred in law and in fact when it observed at page J24 that; "I am satisfied that the Respondent by not charging the Complainants with the alleged offence of desertion, denied them an opportunity to be defend or exculpate themselves" when there was evidence at trial that the complainants did not avail themselves and the 3 rd Complainant is currently serving a sentence. 4 . The learned trial Judge erred in law and fact when he held that the Complainants dismissal was unfair despite having observed at page J25 that the Complainants were absent from work for over a year. 5 . The learned trial Judge erred in law and fact when he found that the Respondent wrongly and unfairly dismissed the Complainants and proceeded to award the complainants 24 months damages thereof when the Respondent did not J13 of 33 breach any statutory provision to warrant the Courts finding. 6. The learned trial Judge erred in law and fact when he observed that the Complainants should have been given an opportunity to exculpate themselves when the complainants reported for work which was not the case as the Complainants were absent for over a year. 7. The learned trial Judge erred in law and fact when he observed at page J29 that; "I have found that the Respondent's conduct of only taking disciplinary action against the Complainants upon the conclusion of their criminal trial which took over one year amounted to unreasonable delay" when there was no evidence at trial that the Respondent took disciplinary action against the Complainants. 8 . The learned trial Judge erred in law and fact when he awarded the Complainants costs contrary to the jurisprudence that costs are only awarded where a party is guilty of unreasonably delaying the matter and/ or there is malafides in their conduct which is not the case for the Respondent. J14 of 33 5.2 Appellant's Heads of Argument 5.3 Ground 1 5.4 In Ground one, the Appellant submitted that the "control test" is utilized to determine an employee employer relationship. Reliance was placed on the case of Gibb v United Steel Companies Limited l3l where it was held that where an employer has the right of control over a person, such a person will likely be seen as an employee. Further reliance was placed on the case of G4S Secure Solutions Zambia Limited v Anthony Kampemba !4 l where the Supreme Court h eld that an employee who had been transferred from Zambia to a foreign branch was no longer an employee of the Zambian branch . 5.5 That the Respondents had failed to lead evidence to show that the Appellant was their employer. That the 1st Respondents contract of employmen t at p ages 92 to 95 of the record of a ppeal (ROA) shows that the 1st Respondents contract of employment was governed by South African law and pages 76 to 87 as well as page 90 ROA show that h is salaries were paid by I Tre Cugini Logistics and G & H Transport South Africa. J15 of 33 5.6 The case of Zulu v Avondale Housing Project 151 was cited where it was held that A Plaintiff who h as failed to prove his case cannot be entitled to Judgement, wh a tever may be said of th e opponent's case . 5.7 Ground 2 5.8 Ground 2 was argued in the alternative and the Appellant submitted that the evidence on record sh owed th at apart from asking for transport money, th e Respondents were on police bond but deserted work and r eappeared after 1 year and 6 months. 5. 9 The Appellant relied on the case of Charles Mfula v Zambia Breweries 16l where it was held that the desertion must be sufficiently long to warrant an inference that the employee does not wish to return to work. That the Respondents h ad stayed away for a long period and had thus terminated their own contracts. 5. 10 Grounds 3 , 4 and 6 5.11 In these 3 grounds, the basic argument is that the learned trial Judge had accepted that the Respondents were absent from J16 of 33 work for over a year and one was even serving a sentence. That it therefore followed that they were not available to be invited to exculpate themselves their dismissal could not h ave been unfair. 5 .12 That in any event, the offence of unfair dismissal was n ot pleaded and the trial Court erred to award relief that was not sought. The cases of Williams David Carlisle Wise v E. F. Harvey Limited 171 and Mazoka & Others v L. P. Mwanawasa & Attorney General 1s1 were cited in that regard. 5.13 Ground 5 5.14 The essence of the Appellant's arguments in ground 5 is t h at th e lower Court erred in awarding damages beyond the n otice period because the Respondents h ad deserted their jobs for over a year. 5.15 That the Respondents did not produce any evidence that they were unlawfully, unfairly and wrongfully dismissed by the Appellant. They failed to prove their allegation that they were dismissed orally. J17 of 33 5.16 That in any event, t h e Respondents committed the dismissible offence of desertion and saying that the Appellant failed to follow the disciplinary procedure will not help them. The case of National Breweries Ltd v Philip Mwenya (9 l was cited wh ere it was held that no injustice arises from failing to follow procedure where an employee has committed a dismissible offence. 5.17 That according to the case of Chilanga Cement Plc v Kasote Singogo (lo) enhanced damages are meant to encompass the inconvenience and any distress suffered by the employee as a result of the loss of employment. That the Respondents suffered no such distress. 5.18 Grounds 7 and 8 5.19 Under these two grounds it was argued that the lower Court erred in awarding costs to the Respondents. The case of AB Bank Zambia v Benjamin Nyirenda (lOl was cited where it held that a party could only be condemned in costs under Rule 44( 1) of the Industrial and Labour Relations Rules where it appears to the Court that a party has litigated the matter in an improper or vexatious manner and took unnecessary steps leading to the matter being delayed. It was submitted th at the Appellant had J18 of 33 done no such thing. 5.20 It was prayed that the a ppeal be allowed. 6.0 1st RESPONDENTS' ARGUMENTS 6.1 The Respondents open ed their arguments by citin g Section 97 of the Industrial Relations Act Chapter 269 which provides t hat a ppeals must be on points of law or mixed law and facts. In addition, the case of Charles Phiri Ntanda v Kansanshi Mining ' 12 l was cited where grounds of a ppeal were dismissed because they attacked the lower Court's fin dings of fact contrary to Section 97 of th e act. 6.2 It was submitted that grounds 1, 2, 3, 4 and 7 m erely attacked the lower Court's findings of fact and no a rguments had been led to cau se this Court to interfere with th e lower Court's findings of fact as provided in the case of Nkhata & 4 Others v The Attorney General (13l, 6.3 We were urged to dismiss the said groun ds and the followin g arguments were advanced; J19 of 33 6.4 Ground 1 6.5 It was submitted that as evidenced by the copy of company regulations at pages 92 to 95 of the ROA the Respondents were employees of the Appellant Company as the document had the Appellants name and logo printed on it. 6.6 That the Appellant could not escape from the document as the 1st Respondent was even assigned to report to and was supervised by the Appellants Fleet Coordinator who testified as RWl on behalf of the Appellant. 6.7 That in cross examination RWl agreed that h e had provided no proof that the 1st Respondent worked for I Tre Cugini Logistics as the fact that they paid his salaries did not necessarily mean that he was their employee. 6.8 Ground 2 6. 9 On the question of the Respondents having deserted their employment, the 1st Respondent referred to pages 179 , 180 and 190 of the ROA where CW 1 told the Court that when the Respondents reported for work RWl told them that they were no longer n eeded as the Appellant had employed new drivers. J20 of 33 6.10 That the respondents were dismissed from employment without charge or having been officially suspended. 6.11 That RWl did not challenge th e evidence at trial and s h owed no proof that any effort had been made to contact the Respondents. 6. 12 That the learned trial Judge was on firm ground when h e found as a fact that the Respondents had not deserted their employment. 6.13 Ground 3 , 4 and 6 6.14 It was argued under th ese grounds that the Appellant did n ot controvert the Respondents ' allegation that they were dismissed without having b een charged and were not given an opportunity to exculpate themselves. 6. 15 That under the circums tan ces, there had been a clear breach of section 52 (2) and (3) of the Employment Code Act which forbid termin a ting a contract of employm ent without providing a reason and with out allowing th e employee to be h eard. 6.16 That RWl confirmed at pages 202 and 203 ROA that the Respondents were n either charged with desertion n or heard at J21 of 33 a disciplinary hearing. 6.17 Ground 4 6.18 It was argued in ground 4 that the lower Court correctly found that the dismissals were unfair because the evidence showed that wh en the Respondents reported for work after being acquitted they found that the Appellant had already employed other drivers in their place and they were simply told that their services were no longer required 6.19 Ground 6 6.20 It was a rgued in ground 6 th at the trial Judge correctly found that th e Respondents wer e not given an opportunity to exculpate themselves. That RW 1 confirmed at pages 202 and 20 3 ROA that the Respondents were never invited for disciplinary action and were never served letter of dismissal. 6.21 It was opined that no disciplinary hearing was h a d becau se the respondents h a d not deserted a nd the Appellant had failed to J22 of 33 discharge the burden of proving desertion as required by section 52 (5) of the Act. 6.22 That the lower Court was therefore correct in its conclusion. 6.23 Ground 5 6.24 In ground 5 it was argued that the lower Court m ade a correct finding of u nfair dismissal and correctly awarded damages beyond the usual measure because the Appellant was in flagrant breach of the statutory provisions, namely Section 52 (1) to (3) of the Act. 6.25 The Appellant reinforced the argument by citing the case of Zinka v Attorney Genera '14l on the primacy of the right to be heard. 6.26 Ground 7 6.27 We sh all not reproduce the Respondents arguments on ground 7 because as shall be explained later in the judgement ground 7 was expunged from the record. J23 of 33 6.28 Ground 8 6.29 It was submitted that the learned trial Court correctly awarded Costs because Rule 44 ( 1) was not only concerned with conduct and malafides occasioned during the trial. 7.0 2 nd & 3 rd RESPONDENTS ARGUMENTS 7.1 We have considered the heads of argument filed by the 2 nd & 3 rd Appellant but shall not reproduce them because they are quite similar to the arguments advanced by the 1st Respondent . 8 .0 HEARING 8.1 At the hearing counsel for the 2 nd & 3 rd Respondents applied on behalf of his clients to file their heads of argument out of time and there was no objection from the Appellant. 8.2 Having observed that grounds 3 and 7 basically comprised of narrative and thus offending Order 10 Rule 9 (2) of the Court of Appeal Rules, we asked counsel for the Appellant why the two grounds should not be expunged from the record. Mr. Mutembo conceded that the two grounds had been presented in a manner that breached the rules and we consequently ordered that they be expunged. 8.3 The parties thereafter proceeded to rely on their respective heads of argument. J24 of 33 9.0 ANALYSIS AND DECISION OF THE COURT 9 .1 We have considered the Record of Appeal and Heads of Argument filed by both parties. The Appellant has raised 8 grounds of appeal including wh at the Respondent in its heads of argument styled as "Preliminary Arguments Against Grounds 1, 2 , 3 , 4 and 7 " seeking to h ave the said grounds expunged . 9.2 We shall begin by addressing this issue and thereafter consider the remaining grounds. 9 .3 The Responden t raises a compelling question because this entire case rests on the lower Court's finding of fact that the Respondents did not desert their employment. If the said finding is preserved, the a ppeal will implod e because the en tire rationale of the appeal relies on a finding that the Respond en ts actually deserted their employment. J25 of 33 9.4 We have studiously examined the language in the alleged offending grounds of appeal. They all attack the learned trial Judge's findings on t he basis of how he a ssessed the evidence. 9.5 We h ave had occasion to read the case of Charles Phiri Nthanda supra cited by the 1st Respondent and in particular , the language used by the Appellant in that case, whose grounds of a ppeal were thrown out. 9.6 For ease of understanding, we sh all reproduce ground 1 in that case which appears similar in language to the alleged offending grounds of appeal in casu. It reads as follows; 1. That the Court below erred in law and inf act, in arriving at the conclusion that the R espondent complied with the laid down procedure, when there was evidence to the contrary showing that the Respondent failed to comply with its own disciplinary procedure code under clause 2.1, 2.2 and 2.5 (Disciplinary, Grievance and Appeals Procedure) The Suprem e Court held as follows; "It has been argued by the Respondents that the appeal before this Court is an attack on the .findings off acts and as such contrary to section 97 Cap 269. We hold that • J26 of 33 grounds one and two contain attacks on the findings of facts as such the appeal relating to these two grounds of appeal is misconceived and therefore dismissed." 9. 7 In casu grounds 1 and 2 read as follows; l. The Learned Trial Judge erred in law and in fact when he held that the Complainants were employees of the Respondent Company when there was evidence at trial that the Complainants were employed by G & H Transport Limited South Africa and I Tre Cugini Logistics. 2. The Trial Judge erred in law and in fact when he held that the Complainants did not des ert w ork despite having observed at page J25 that the Complainants returned for work after over a y ear. 9.8 It is quite undeniable that the tone of ground 1 in casu and ground 1 in the cited case are in tandem and we would be hard pressed to see any difference between the two and would be even further hard pressed , to treat them differently. We consequently dismiss grounds 1 and 2 for off ending Section 97 of the Industrial Relations Act. • J27 of 33 9.9 Grounds 3, 4 , 6 and 7 9.10 We must state from the onset that the uncontroverted evidence at page 179 of the ROA shows that the 3 rd Respondent was convicted and jailed on account of the allegations made against him by the Appellant. This in effect means that he was in n o position to carry on working. 9.11 It is therefore clear t o us that despite the exubera nt submissions filed by his counsel, there are no circumstances in which we can award any kind of d a mages to t he 3 rd Respondent. 9 .12 We now revert t o the a ppeal a s it applies to the 1st and 2 nd Respondents. 9 .1 3 As earlier indicated, ground 7 was expunged. Secondly , h avin g struck out grounds 1 and 2 for attacking the trial Judge's findin g of fact that the Respondents did not desert th eir employment, a fa tal b low was dealt to grounds 3, 4, and 6 which a re totally dependent on a finding t h at the Respondents had deserted work. 9. 14 The Appella nt doe s however raise a counter a rgument 1n gr ound 4 that the learned trial Judge should not h ave found • • J28 of 33 that the Respondents were unfairly dismissed because the relief was not pleaded by the Respondents. The Respondents heads of argument did not address this issu e but argued that the trial Court was on firm ground to award the relief because the evidence adduced by the Respondents disclosed unfair dismissa l. 9. 15 The amended notice of complaint at page 64 ROA shows that the Respondents sought damages for wrongful and unlawful dismissal. 9.16 The case of Eston Banda v The Attorney General (161 outlined that there are only two broad categories for dismissal by an employer one of which is 'wrongful' and which refers to a breach of the employment contract and 'unfair' which relates to a breach of statutory provisions. The Respondents pleaded 'unlawful' dismissal which the Supreme Court in the cited Judgment warned against interchanging with the word 'unfair' because it could cause confusion. The question then arises as to wheth er using the word unlawfu l instead of the word unfair should be fatal to one's case. J29 of 33 9.17 A perusal of the affidavit in support of the complaint at page 67 of the ROA shows that paragraphs 13 and 14 read as follows; 13. There were neither any charges against the complainant nor was there any disciplinary hearing before such dismissal. 14. That we were never notified of any further proceedings or actions from the Respondent nor were we ever informed of the status of our employment with the Respondent other than that, verbally, we had been dismissed. 9.18 Even though affidavits are not pleadings, they a re eviden ce that speak to the pleadings and section 35A (d) of the Industrial and Labour Relations Act frees the Industrial Relations Division of the High Court from being bound by the strict rules of eviden ce and empowers the Court to make any award that it feels suits the circumstances of the case. J30 of 33 9 .19 In the case of Zambia Medicines Regulatory Authority v Brian Muwanei l3l we allowed an award that had not been specifically pleaded because it was apparent in the evidence. 9.20 Paragraphs 13 and 14 of the Respondents affidavit in support of the complaint speak directly to Section 52 of the Employment Code Act which requires that employees be provided an opportunity to be heard on any allegations against them. Dismissing an employee contrary to statutory requirements amounts to unfair dismissal. The learned trial Judge did not overreach by granting the said remedy. 9.21 We therefore dismiss this particular argument and ground 4 consequently fails. 9.22 Ground 5 9.23 Ground 5 1s 1n relation to the trial Judges finding that the Respondents were unfairly dismissed and the award of damages beyond the usual measure. 9.24 The learned trial Judge explained that the circumstances of the case warranted that damages be awarded beyond the usual measure. These were that the Respondents were informed that J31 of 33 they should come back for work after their criminal case was conclu ded. The two who were acquitted came back, only to be verbally informed that their services were no longer required in breach of section 52 of the Act . This was over a year later. 9.25 Breaching a statutory provision is an aggravating element that usually results in an award of damages beyond the notice period. We further agree with the learned trial judge that waiting for over a year to inform the Respondents that they had lost their jobs further aggravates the circumstances. 9.26 The award of 24 months' salary plus interest is in tandem with recent awards given by this Court and we see no reason to interfere with it. Ground 5 therefore fails. 9 .27 Ground 8 9.28 Ground 8 is on the award of costs which the learned trial judge awarded on the basis of what he described as an unreasonable delay of over one year before taking disciplinary action against the Respondents. 9.29 Rule 44(1) of the Industrial and Labour Relations Rules Chapter 269, Laws of Zambia reads as follows; .. • J32 of 33 "Where it appears to the Court that any person has been guilty of unreasonable delay, or of taking improper. vexatious or unnecessary steps in any proceedings, or of other reasonable conduct, the Court may make an order for costs or expenses against him. " 9.30 We have explained time and again that the infractions and conduct which result in costs being inflicted on a party in the Industrial Relations Division of the High Court are those committed during the course and conduct of proceedings. The provision does not relate to the conduct of the parties leading up to the proceedings . 9.31 In the case of Standard Chartered Bank PLC v Celine Meene Nail (l 7 l cited by the Appellant, we articulated this point at length where we explained that the provision is designed to discourage unreasonable delays and unnecessary or vexatious applications by ordering costs against parties engaging in such conduct. 9.32 In casu there was no evidence of such conduct by the Appellant and therefore the costs granted to the Respondents by the lower Court are set aside. Ground 8 therefore succeeds. 9.33 We therefore order as follows; J33 of 33 1. The damages of 24 months' salary plus interest awarded by the lower Court to the Respondents is upheld in respect of the 1st and 2 nd Respondents. 2. The appeal against the 3 rd Respondent succeeds. 3 . Each party to bear their own costs. M. M. KONDOLO SC COURT OF APPEAL JUDGE C. K. MAKUNGU COURT OF APPEAL JUDGE ............ _f/.y;_~:!.k. ............. . Y. CHEMBE COURT OF APPEAL JUDGE