Msyali v Malawi Housing Corporation (IRC MATTER 99 of 2024) [2025] MWHC 11 (25 April 2025)

THE MALAWI JUDICIARY IN THE INDUSTRIAL RELATIONS COURT PRINCIPAL REGISTRY MATTER NO. IRC 99 OF 2024 In the dispute between: GLADSON MSYALI…….………………………….….……………………... APPLICANT -AND- MALAWI HOUSING CORPORATION…..……...….…………….…….. RESPONDENT CORAM: TAMANDA C. NYIMBA Mumba Mwantisi R. Msimuko (Mrs) : Deputy Chairperson : Counsel for the Applicant : Counsel for the Respondent : Court Clerk INTRODUCTION RULING 1.1 The applicant’s motion before this Court is for disposal of a case on point of law and is anchored on Section 67 of the Labour Relations Act as read with Rule 16 of the Industrial Relations Court (Procedure) Rules, 1999. In the motion’s support is an affidavit sworn by the applicant himself. It is opposed by the respondent and there is equally filed an affidavit in opposition sworn by Lameck Tchaka, the respondent’s Human Resources Manager. 1.2 Counsel on both sides of the divide filed skeleton arguments. All the aforementioned parties’ papers were duly adopted at the hearing of the motion and the same were bolstered by elaborate oral arguments presented by Counsel. THE FACTUAL MATRIX 2.1 To state the obvious, it is incumbent upon this Court to work with facts not in contention by the parties. These are facts proven, admitted or agreed by the parties. Significantly, the facts ought to be those that are relevant to the disposal of the motion. With this in mind, the facts are as follows. 2.2 The applicant held the position of Director of Technical Services in the respondent organization. He was employed on two fixed term contracts lasting three years each. The two contracts run consecutively from April 2015 to March 20211. Under close 3(d) of the aforesaid contracts of employment, the applicant was entitled to annual leave of 36 days per year made up of three days per month. Therefore, in total he was entitled to 216 days of leave for the entire period of the two contracts. 2.3 Clause 3(d) of the applicant’s contracts of employment reads: “Annual vacation leave of absence shall be granted at the rate of three working days for each completed month of service. This leave shall be taken in the year in which it is earned and may not be accumulated without the written approval of the Employer. All leave days shall be taken in whole or in part only with prior approval of the Employer. When proceeding on leave from duty station to the Employee's home, or any other destination within the country, the Employee is entitled to use the official vehicle. It is mandatory that the Employee goes on leave and no leave days shall be commuted for cash.” [sic]. 2.4 The applicant’s assertion is that during the entire period of the two contracts, he was not granted annual leave due to the exigencies of his work as the respondent was carrying out projects that required the applicant’s continued involvement, attention and supervision. His further assertion is that on termination of his contracts of employment, he was entitled to be paid cash in lieu of the leave days accruing to him. In that regard, he requested the respondent to commute his unused leave days into cash but respondent’s response was that he had forfeited them allegedly because he had not applied for leave2. 2.5 The applicant avers that he is aware that under the Employment Act (in places referred to as “the Act”), he earned his leave such that it cannot be forfeited and he is entitled to have his outstanding leave days commuted to cash at the last salary that he was receiving prior to termination of his employment contract. 1 See exhibits marked “GM1” and “GM2” being copies of the two contracts. 2 See exhibits marked “GM3”, “GM4” and “GM5” copies of correspondences on the matter. 2.6 On the other hand, the respondent claims that it is not correct that the applicant is entitled to a total of 216 days of leave for the entire period of his two contracts because he utilized some of the leave days. That assuming there are some leave days which the applicant did not use, the applicant is disentitled from claiming them pursuant to the terms of clause 3 (d) of the two contracts of employment signed by the parties. That it is incorrect for the applicant to say that he did not proceed on leave due to the exigencies of his work because during the period in question, there was never a lot of work in the applicant’s Technical Services Department. Moreover, it is asserted by the respondent that the applicant was not involved in any projects that could have necessitated him not to proceed on leave. 2.7 This concludes the facts in this matter. 2.8 Nevertheless, in the approach I have taken in dealing with the matter, it will be understood that not all these facts are pertinent to the determination of the instant motion. I am enjoined to only consider facts not in dispute and which are relevant. Thus, for reasons to be amply explained, I shall dutifully steer clear of any facts which seem to be in dispute. I have only gone at length in stating the facts purely to place the parties and the Court in a proper perspective. THE PARTIES’ ARGUMENTS AND SUBMISSIONS 3.1 It must be pointed out that this matter seemingly presented some difficulty to both Counsel and, by extension, to this Court. I say this because, in their oral submissions, learned Counsel Mumba and learned Counsel Mwantisi emphasized that it appears there are no authorities in our jurisdiction on the points of law this Court is being called upon to rule on. 3.2 To his credit, learned Counsel Mwantisi brought to my attention a trio of case authorities with one being local and the remaining two originating from South Africa. But as will be found out, even the said cases are way off the mark. Be that as it may, I should commend both Counsel for the clarity of their arguments which have somewhat aided preparation of this ruling. 3.3 Also, the parties should stand assured that I have taken all their arguments into account albeit that in the interests of some of brevity in expressing my reasons for reaching the conclusions which I have, I shall not refer to them all in the body of this ruling. 4 ISSUES FOR DETERMINATION 4.1 Having carefully gone through the motion and having appreciated the papers in support as well as in opposition, the issues this Court is being called upon to determine are as follows: (a) Whether or not this matter is suitable to be disposed of on a point or question of law; (b) Whether under the Employment Act, the employer has a strict legal obligation to grant annual leave to the employee and whether the employee has a corresponding duty to take leave; (c) Whether under the Employment Act, annual leave earned and accrued by an employee can lawfully be forfeited if not granted by the employer (irrespective of whether or not the employee applies for the leave) before the date of termination of employment; THE APPLICABLE LAW 5.1 This being a civil action, the burden of proof is on the party who asserts the affirmative,3 namely the applicant. As regards the standard of proof in civil cases, the same is on a balance of probabilities. As to meaning of “balance of probabilities”, this is best exemplified by interrogating the difference between succeeding on the balance of probabilities and failing on the balance of probabilities. In Miller v. Minister of Pensions4 Denning J said: "If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged, but if the probabilities are equal it is not." 5.2 To articulate the foregoing statement in simple percentage terms, if a tribunal concludes that it is 50 (fifty) percent likely that the applicant's version is true or right, then the applicant loses. Contrastingly, if the tribunal comes to the conclusion that it is 51 (fifty-one) percent likely that the applicant’s version is true or right, then the applicant carries the day. 3Chipiliro Banda v Southern Bottlers Ltd [2012] MLR 53 (HC). 4[1947] 2 All ER 372. 5.3 Rule 16 of the Industrial Relations Court (Procedure) Rules, 1999 makes provision for the procedure to be followed respecting applications or motions not fully covered by the said rules. 5.4 Section 67(2) of the Labour Relations (Amendment) Act, 2021 grants power to this Court to determine matters of law and fact. Rule 5A (1) (c) of the Industrial Relations Court (Procedure) Rules, 1999 also provides for disposal of a matter on a point of law. 5.5 In Charles Nsaliwa v Malawi Communications Regulatory Authority5, Chirwa J. had this to say regarding matters calling for disposal on a point of law: “It is [……] important to bear in mind at all times that while every question of law or construction may be suitable for determination it is not every such question that can equally be said to be suitable for determination without a full trial of the action. Now, the test of whether the question of law or construction is “suitable” to be determined without a full trial of the action is whether all the necessary and material facts relating to the subject matter of the question have been duly proved or admitted, and this postulates that there is no dispute or no further dispute as to the relevant facts at the time when the Court proceeds to determine the question”. The learned Judge continued to state that6: “It may also be worth mentioning that the question of law or construction which is suitable for determination without a full trial must also have the potential that its determination will finally determine the entire cause or matter or any claim or issue therein, as for example, the issue of liability, leaving the question of damages and interest therein to be assessed subject only to any possible appeal”. 5.6 Tembo J. in Council of the University of Malawi v Benjamin Chirwa and Others7 made similar instructive observations and statements in the following terms: 5 Civil Appeal Number 30 of 2015 [Unreported] at pp. 5-6. 6 As above at p.7. 7 Civil Appeal Number 12 of 2016 (Being IRC Matter No. 195 of 2014) [Unreported]. “[….] the exercise of [jurisdiction by the lower court to determine a matter on a point of law] entails that there is no dispute on fact. Further, that the decision on points of law will determine the matter entirely. The applicable principles are analogous to the procedure under Order 14A procedure in the High Court under the old rules. See Likhusa and others v Reunion Insurance Company Limited and another [2013] MLR 4”. The Judge went on: “[….] under the analogous procedure for determining a matter on a point of law in civil matters before the High Court, there must be no factual dispute. The facts must either be proved or agreed. And all that is required is that there must be a suitable question of law in issue that will lead to determination of the whole matter without the need for a trial. The Court should not make factual findings. The court will only consider legal arguments on the question of law. See Lenner Exports (Pty) Limited v City Motors Ltd [1998] MLR 153”. 5.7 In the interests of brevity, I undertake to cite – where relevant – the rest of the applicable statutory and case law in appropriate places in the “Analysis-and- Disposal” segment of this judgment. ANALYSIS AND DISPOSAL 6.1 It is the practice of this Court not to place parties in what this Court terms “gratuitous suspense” regarding its decision. Consequently, for reasons I shall be setting out hereunder, it is my Court’s determination that the applicant’s motion herein must succeed. This conclusion stems from a careful scrutiny of the questions formulated formerly in the “Issues-for-Determination” section of this ruling and, importantly, in light of the relevant agreed facts and applicable law. 6.2 I now proceed to deploy my reasoning starting with the first issue respecting: (a) Whether or not this matter is suitable to be disposed of on a point or question of law. 6.3 Here, learned Counsel Mwantisi, for the respondent, argued with crusading zeal that this motion ought to be dismissed for being unamenable to the machinery of disposal on a point or question of law. He initially curiously contended that this Court should not entertain the applicant’s motion because the applicant did not come to this Court with clean hands as the applicant allegedly lied that he did not take all the 216 leave days he was entitled to when in truth he utilized some of those days. 6.4 Expressed in that manner, I reject this line of argument for advancing a principle of equity which is inapplicable in this Court8. Indeed, in prosecuting his motion, the applicant has clearly placed reliance on sections 44 and 45 of the Employment Act and not some unwritten law that equity is. 6.5 Nevertheless, the respondent’s significant challenge to the applicant’s motion is that, factually, the parties have entered into controversy on a number of aspects. Observably, the contested factual areas principally pertain to: (a) the number of leave days taken by the applicant; (b) the number of leave days untaken by the applicant; (c) the necessity to probe the reason(s), if any, which compelled the applicant to accumulate leave days since his assertion is that he was unable to take a break owing to pressure of work while the respondent claims that there was practically no reason to justify the applicant’s failure to spend his leave days as there were no projects happening in the applicant’s Technical Services Department that would have stopped him from proceeding on leave. 6.6 I must equally jettison the respondent’s foregoing reasoning. In this connection, this Court concurs with the argument advanced by learned Counsel Mumba for the applicant that what is really central in this motion is the question whether at law (or specifically under the Employment Act) an employee who has earned leave can have the same forfeited. 6.7 In that regard, when one examines the relevant facts as put forward by the parties, it is of no contest that the applicant was employed by the respondent on two fixed term contracts. It is also undisputed that under these two contracts, the applicant was entitled to annual leave. It is further common ground that upon termination of his final contract, the applicant made a claim respecting some days he had not 8 I. Kamwanje & Others -v- Paladin (Africa) Limited, Matter No. IRC (Mz) 25 of 2014 (Unreported). gone on leave. Equally, it is uncontested that the response the applicant got from the respondent is that he had forfeited the purported outstanding annual leave on account of clause 3(d) of the two fixed term contracts of employment entered into by the parties. 6.8 And so, in the circumstances of this matter, the interrogation whether at law (or specifically under the Employment Act) an employee who has earned leave can have the same forfeited plainly turns on construction of the applicant’s two employment contracts particularly clause 3(d) thereof and, crucially, interpretation of sections 44 and 45 of the Act whose subject matter is annual leave. 6.9 Thus, construing clause 3(d) of the two employment contracts entered into by the parties and further looking at the import of sections 44 and 45 of the Act – in light of the relevant agreed facts – shall certainly culminate in disposal of the liability issue in this matter to finality. This state of affairs nicely dovetails with the aggregate statements of law made in the cases of Council of the University of Malawi v Benjamin Chirwa and Others9 and Charles Nsaliwa v Malawi Communications Regulatory Authority10. 6.10 Put another way, if the analysis to be had by this Court leads to a conclusion that it is lawful for an employee who has earned leave to have the same forfeited by the employer (in keeping with clause 3(d) of the applicant’s two employment contracts alongside relevant construction of sections 44 and 45 of the Act), then the applicant’s cause of action herein shall stand instantly extinguished as it would mean that the applicant forfeited whatever number of leave days he accumulated or did not use. Indeed, the case ends there with the respondent triumphing. 6.11 Conversely, if this Court’s finding is to the effect that sections 44 and 45 of the Act prevail or reign supreme over clause 3(d) of the applicant’s two employment contracts and that for that reason it is against the law for an employer to forfeit annual leave of an employee who has earned such leave, then it follows that the thrust of the respondent’s defence (that the applicant is disentitled from claiming 9 As above n.22. 10 As above n.20. payment for his unused leave days because they were forfeited by virtue of clause 3(d) of the applicant’s two employment contracts) collapses and cannot stand. That particular negative finding against the respondent would also conclusively resolve the liability issue. 6.12 So, if the liability question is decided in favour of the applicant, what would follow is simply an assessment trial where the facts entered into controversy by the parties would then be adjudicated upon. Actually, those facts would be the ones Counsel Mwantisi made reference to, namely, the number of leave days taken by the applicant; the number of leave days untaken by the applicant; whether the respondent in fact granted annual leave to the applicant which the applicant did not utilize and; the reason(s) which, permissibly or impermissibly, caused the applicant to accumulate annual leave. 6.13 Consequently, as can now be hopefully appreciated, determination of the points or questions of law this Court must decide on do not depend on the facts the parties are in disagreement but rather on the facts uncontested and agreed by the parties as specifically and clearly captured in paragraph 6.7 above. Then responses to the points or questions of law earlier formulated decide the liability aspect of this matter to finality. 6.14 I must repeat that it is my firm view that the facts in dispute ought to be reserved for an assessment trial (if the applicant succeeds on the liability issue) where the actual number of leave days accruing to the applicant (and perhaps circumstances of their accrual) would be arrived at or determined by examining the parties’ competing evidence. 6.15 These considerations, therefore, prompt me to make an emphatic finding that the facts I shall work with in this ruling are not at all at variance to the extent of their relevance in enabling this Court to determine the specified questions of law in respect of the liability issue. As it turns out, that is all my Court needs to be clothed with authority to dispose of the instant motion by considering the parties’ arguments on the formulated questions of law leading to the determination of the whole matter without the need for a trial on the issue of liability. I so find. 6.16 I turn to the second issue or question, namely: (b) Whether under the Employment Act, the employer has a strict legal obligation to grant annual leave to the employee and whether the employee has a corresponding duty to take leave. 6.17 Preliminarily, there is no question that section 44 of the Employment Act guarantees an employee’s entitlement to annual leave. Section 44 of the Act reads: “(1) Every employee, except where otherwise provided for in this Act, shall be entitled to a period of annual leave with pay of not less than: (a) eighteen working days if he works six days a week; and (b) fifteen working days if he works five days a week, and the leave shall be taken within six months of the entitlement to the leave falling due: Provided that the leave may be deferred and accumulated by mutual agreement. (2) Where an employee's length of service in any one year, including the period prior to the completion of the first year of continuous service, is less than the length of service required for the full entitlement set out in subsection (l), the employee shall be entitled to a period of annual leave with pay proportionate to his length of service during that year. (3) Where an employee is employed on a less than full-time basis, any day on which the employee works shall, in the computation of periods of employment, be counted as one working day.” 6.18 Secondly, as per the terms of section 45(1) of the Act, it is clearly the duty of the employer to grant an employee leave and not the other way around. In fact, it has been unequivocally submitted in the respondent’s skeleton arguments that such is the position11. Actually, it repays to cite the enactment of the entire section 45 of the Act which provides as follows: 11 Para 3.4 of the respondent’s skeleton arguments. “(1) The leave referred to in section 44- (a) shall be granted by the employer, in consultation with the employee, as from a date determined by the employer, but not later than six months after the end of the year in respect of which the leave entitlement arose; (b) shall not be concurrent with any period of— (i) sick leave granted pursuant to section 46; (ii) maternity leave granted pursuant to section 47; or (iii) notice of termination of contract of employment. (c) shall be extended by one working day with full pay for each public holiday which falls within the employee's period of leave and which falls on a day which otherwise would have been an ordinary working day for the employee. (2) Upon termination of an employee's employment, the employer shall pay him the remuneration in respect of any leave which accrued to the employee but was not granted before the date of termination of employment. (3) The amount to be paid to an employee under this section shall be calculated at the rate of at least the wage which the employee was receiving immediately prior to the date upon which his leave commenced or his employment terminated, as the case may be.” 6.19 Clearly, a conscientious construction of sections 45 (1) (a) of the Act leaves this Court in no doubt that it is the employer that is saddled with an obligation to grant an employee annual leave. It is also this Court’s candid conclusion that apart from conferring on employees the right to different durations of annual leave, section 44 of the Act equally obliges employees to take leave and to as well be on hand to be consulted12 by the employer at the time of the employer’s exercise of the duty to grant leave. 12 See section 45(1)(a) of the Employment Act. 6.20 Not surprisingly, the practice in many a workplace is that an employee ordinarily initiates or makes an application for annual leave or suggests a date on which to go on leave. Actually, clause 3(d) of the two contracts of employment signed by the parties herein made it mandatory that employees go on leave. Later in this ruling, I will say more about the implications of clause 3(d). 6.21 Still on the role of the employer under the Employment Act, a reading of section 45(1)(a) indicates that the onus is on the employer not only to grant the annual leave but also to determine the date an employee commences the leave and this, again, ought to be not later than six months after the end of the year in respect of which the leave entitlement arose. 6.22 I am inclined to think that this means it is not improper for the employer to insist on the timing of grant of annual leave or determining the exact date whereon the employee begins his or her annual leave. In any event, the employer as a custodian of employee records is in a better position to know the exact time an employee’s entitlement to annual leave becomes ripe to be exercised. 6.23 Indeed, inside the six months period the employee is supposed to go on leave, the employer may perfectly be at liberty to direct the employee to so take annual leave or, at a minimum, prompt the employee to proceed on leave particularly when the six months period prescribed by sections 44(1) and 45(1)(a) of the Act starts to run or is coming to an end. In fact, it would be in order for the employer to prompt the employee to go on leave especially in cases where the six months period is lapsing as the employee may have forgotten or may not even be aware that the six months period has been activated or is about to finish. 6.24 That said, it must be emphasized that the acts of granting annual leave as well as marking out when such leave is to begin (which according to section 45(1)(a) of the Act are the exclusive remit of the employer) ought to be made in consultation with the employee. 6.25 In sum then, applying the foregoing elucidations to the matter under consideration, the obligation to grant annual leave to the applicant was always on the respondent with a corresponding onus on the applicant to take annual leave. I so find. 6.26 I come to the third and final question of law being this: (c) Whether under the Employment Act, annual leave earned and accrued by an employee can lawfully be forfeited if not granted by the employer (irrespective of whether or not the employee applies for the leave) before the date of termination of employment; 6.27 As stated earlier, annual leave is provided for in sections 44 and 45 of the Employment Act. Mundanely put, an employee has a right to annual leave pursuant to law. Moreover, the fact that that right is earned on account of working is clear from section 44 of the Act. As we have seen, section 44 of the Act goes further to stipulate that the leave shall be taken within six months of the entitlement to the leave falling due. 6.28 There is, then, one further similar and important amplification we have appreciated set out in section 44 as read with section 45(1)(a) of the Act to the effect that the employer shall grant the leave, in consultation with the employee, as from a date determined by the employer but not later than six months after the end of the year in respect of which the leave entitlement arose. 6.29 Pausing there, it seems to me to be very clear from the import of the proviso in section 44 of the Act that the framers thereof crucially and laudably recognized that there would be situations or set of circumstances in which it would be impossible or impracticable for the employer to grant the employee annual leave or the leave is not used during the period entitlement falls due as a result of reasons not imputable to the employee. 6.30 Such set of circumstances could be, for example, where an organization has limited staff to the degree that grant of annual leave is alternated as a matter of course or where an employee who was due to take annual leave (and was, in fact, duly granted the leave) is compelled to postpone the leave to take the place (as well as cover the duties) of another employee who has suddenly fallen ill and is expected to be unavailable for work for an extended period of time. Indeed, one can think of so many reasons which would inhibit the employer from granting leave to an employee or hinder the employee from proceeding on leave properly granted within the prescribed six months of the entitlement to the leave falling due. 6.31 Thus, this Court’s unshakeable belief is that it is in anticipation of such impossibilities or impracticabilities that the framers of the Employment Act situated a proviso in section 44 of the Act providing for deferment and accumulation of annual leave by mutual agreement (obviously such mutual agreement being between the employer and the employee and mostly in the form of provisions in a relevant contract of employment). 6.32 Indeed, an employee may want to negotiate or choose to carry over his or her paid annual leave for different personal reasons such as wanting to spend a long time with relations in the village or visiting friends or relations outside the jurisdiction or taking it together with his or her spouse or to harvest yields or undertake or supervise an involving personal project or coinciding the leave with his or her children’s school holidays. Granted, in the mutual agreement, the employer would be perfectly entitled to mutually agree with the employee on capping the duration of any deferment and accumulation or carry-over period of unused annual leave. 6.33 I may just quickly illustrate one way of operation of annual leave by picturing the following scenario. 6.34 Say an employee works six days a week meaning he or she is entitled to the statutory minimum 18 days annual leave. The employee starts work in January 2024. Come end of December 2024, the employee would have earned all the statutory minimum 18 days annual leave. It means, pursuant to section 44(1) as read together with section 45(1)(a) of the Act, before end of June 2025, the employee would have to apply for leave encompassing any number of days not greater than the earned 18 days annual leave. Correspondingly, the employer would have to grant the employee the chosen number of leave days not later than June 2025. If for whatever reason, the employer is unable to grant the leave or the employee is unable to proceed on leave, the parties could – in conformity with the rider to section 44(1) of the Act – mutually agree to defer and accumulate the leave or may have indeed already reached an agreement to that effect. 6.35 But as I shall soon show, one thing the employer cannot do is to render forfeited or expired the employee’s right to the duly earned leave where the employee is, voluntarily or otherwise, incapable of utilizing the leave within the period from January 2025 to June 2025 (in respect of the example of our fictitious employee conceived above) whereon the 18 days annual leave entitlement became exercisable. 6.36 In terms of clause 3(d) of the two fixed term contracts of employment the respondent entered into with the applicant herein, annual leave was obviously prorated and was to be granted at the rate of three working days for each completed month of service. Observably, this state of affairs presents a quintessential situation where it was certainly apposite and convenient for the applicant to defer and accumulate the leave earned in each calendar month since 3 workings days’ vacation seems to be very much on the lower side. 6.37 Specific to the applicant in the present matter, it will also be demonstrated that the respondent could not declare forfeited or expired the applicant’s right to whatever number of leave days he duly earned if the applicant was incapable, willingly or otherwise, of expending the leave days within the period he performed services vis-à-vis the two fixed term contracts of employment. 6.38 I, once more, pause here to make a significant and far-reaching observation. It is this: 6.39 When one scours the entirety of sections 44 and 45 of the Act, there is absolutely nothing there providing for forfeiture of annual leave not granted to the employee by the employer no matter the reasons for the leave not being applied for by the employee or not being granted by the employer. 6.40 The non-existence of an express provision (in the most important piece of legislation regulating the employment or labour industry) countenancing forfeiture of annual leave leaves this Court with no modicum of doubt that it is a violation of the Act for an employer to forfeit an employee’s unutilized annual leave. 6.41 It is also striking that Parliament did not legislate in section 44 (1) of the Act for what happens in the event that annual leave entitlement falls due but the employer and the employee have not mutually agreed on deferring and accumulating the leave beyond the six months period mentioned in section 44(1) and 45(1)(a) of the Act. To be more explicit, this Court’s understanding is that even where an employee shuns applying for leave, the law in section 44(1) of the Act says nothing about what ensues subsequently. 6.42 Evidently, section 44(1) does not make any provision for forfeiture of annual leave which has been earned or accrued but not taken or expressly deferred and accumulated. What is exclusively permitted is deferment and accumulation of the leave earned. Therefore, it would plainly imply that no portion of annual leave can ever be forfeited by the employer. I will come back to expand on the foregoing reasoning shortly. 6.43 One may argue that while sections 44(1) and 45(1)(a) expressly only allow deferment and accumulation of earned leave, the two sections equally do not expressly proscribe forfeiture of earned but untaken annual leave and employing the maxim expressio unius est exclusio alterius ("the express mention of one thing is the exclusion of another"), then it follows that forfeiture is permissible. 6.44 The argument is certainly nice and beguiling. But for reasons I immediately state, the contention is unconvincing and vain. To start with, Bolt J. eloquently put it in the case of Kamcaca v. Nkhota (No. 2)13 that the maxim expressio unius est exclusio alterius is not of universal application and caution must be used in dealing with it. I think the instant case is one occasion the maxim is not of general sway and it cannot be applied blindly particularly in view of the second significant reason I give which is this: 6.45 A careful consideration of the unambiguous prescriptions of section 45(2) of the Act – that on termination of an employee’s employment, the employer must pay the employee the remuneration respecting any leave which accrued to the employee but was not granted before the date of termination of employment – supports this Court’s thinking that forfeiting an employee’s unused and duly earned annual leave is a blatant breach of the Employment Act. 6.46 In the carefully considered opinion of this Court, what can be inferred from section 45(2) as read with section 44(1) of the Act is that any annual leave which 13 1966-68 ALR Mal.518. has been earned and becomes exercisable but is not exercised remains in abeyance and should count towards accrued leave days for purposes of remuneration under section 45(2) on termination of employment. The leave in abeyance cannot be forfeited by virtue of contractual terms like those in the respondent’s clause 3(d) because the Employment Act is, in my explained view, averse to forfeiture of annual leave. 6.47 It is also apparent that section 45(2) lays down no condition for entitlement to payment of the remuneration in respect of any leave which accrued to the employee but was not granted before the date of termination of employment other than that relating to the fact, first, that the employment relationship has ended and, secondly, that the employee has not taken all the annual leave to which he or she was entitled on the date that that employment relationship ended. 6.48 It follows then that no employer can introduce any additional conditions for the entitlement to payment of accrued leave on termination of employment. Payment of annual leave accruing to the employee but not granted before the date of termination of employment is a self-standing right bestowed upon workers by the Employment Act. 6.49 And so, the simple and unavoidable conclusion this Court makes is that any stipulations in a contract of employment purporting to expressly or impliedly provide for loss or forfeiture of accrued earned annual leave are void and of no legal effect for being inconsistent with the rider in section 44 of the Act which only permits deferment and accumulation of annual leave by mutual agreement and also for falling foul of sections 45(2) and 45(3) of the Act which allow monetisation of leave which accrued to the employee but was not granted before the date of termination of employment. 6.50 While I sincerely acknowledge that contracts of employment are entered into by the parties willingly and, actually, I assume this is what happened in respect of the applicant and the respondent in the instant matter, it must also be conceded (and it is trite) that the terms of employment contracts are subservient to provisions of the law not least the laws duly enacted by the legislature. 6.51 And so, by the like token, respondent’s clause 3(d) as set out in the two fixed term contracts of employment entered into with the applicant herein suffers the exact fate of being legally unenforceable to the extent that the implication of the terms of clause 3(d) is that the applicant forfeited his annual leave in respect of the period he properly earned the leave. 6.52 Simply put, employers and employees may not mutually agree to contract out of the provisions of the Employment Act by disingenuously setting out terms governing the taking of annual leave which, when the right to leave is not exercised, essentially result in forfeiture or expiry of the leave. 6.53 Clause 3(d) of the two fixed contracts in question in this matter has such objectionable terms. Even clause 3(d)’s proscription of commutation of unused leave days to cash cannot prevail over the prescriptions of sections 45(2) and 45(3) of the Act permitting conversion into a sum of money in respect of the leave which (by operation of the law just exposed) accrued to the applicant but was not granted before the date of termination of employment. I so find. 6.54 At the risk of overkill, in my considered view, the only lawful means by which a worker can be stripped of his or her right to remuneration for accrued and duly earned annual leave, is when the individual employee sits on his or her rights too long culminating in the claim for unutilized annual leave being statute barred at the time of termination of employment. In essence, an employee cannot demand to be paid earned annual leave untaken or accumulated beyond six years. 6.55 At this juncture, I must fulfil the undertaking I made formerly to expound on why I find it sensible and reasonable that it is proper that forfeiture of annual leave is not provided for under the Employment Act. 6.56 To start with, it is mundane to posit that, ideally, employees ought to expend their annual leave rather than having it deferred and accumulated or monetising the leave if accrued but not granted before the date of termination of employment. I say this because the deployment in the Employment Act of expressions like “every employee…..shall be entitled to a period of annual leave….”14, “the leave shall be taken”15 and “the leave….shall be granted by the employer”16, is a palpable indication of the fact that the strict purpose of the Act is to ensure that an employee actually takes annual leave. 14 Section 44(1) of the Employment Act. 15 As above. 16 As above n.13. 6.57 Undoubtedly, the Act contemplates that not only will the employer grant annual leave but also that the leave will in fact be taken by the employee. I strongly believe that it is for this reason that the word “forfeit(s)” or “forfeiture” does not appear anywhere in sections 44 and 45 of the Act. 6.58 Also, without a shred of doubt, the purpose of exercising the right to paid annual leave is an enablement of workers to take a truly deserved break from the hustle and bustle of – sometimes extremely stressful – work life and to enjoy some quality time of leisure and relaxation. Certainly, annual leave is a more powerful relaxation opportunity where workers can spend time on valued non-work activities of their choice including pastimes and family activities beyond the usual free evenings and weekends. 6.59 Indeed, there seems to be a common agreement in various organizational literature that respite beyond the daily and weekly rest has beneficial effects on employees’ health and well-being17, not least bearing in mind that the work place is considered a source of strain that causes stress leading to detrimental health effects on employees18. 6.60 Organizational researchers have extensively documented the effects of taking time off from work from both the employee and employer perspectives, and have overwhelming found that annual leave is beneficial for employees and their organizations19. That employees do better when they have the opportunity to “replenish resources” and these benefits carry over to their organizations as well20. 6.61 It is also stated that employees who take little to no time-off work are more likely to have a variety of health-related issues21. That health issues such as high blood pressure and high cholesterol have been tied to job stressors, as well as mental health issues such as anxiety and depression22. In addition, when dealing with job-related stress, employees are also more likely to develop physical ailments 17 KHS AG v. Schulte [2012] ICR D19, ECJ. 18 Hoogendoorn, W. E.; van Poppel, M. N.; Bongers, P. M.; Koes, B. W.; Bouter, L. M. “Systematic review of psychosocial factors at work and private life as risk factors for back pain”. Spine 2000, 25, 2114–2125. 19 Ashley Hurrell & John Keiser “An Exploratory Examination of the Impact of Vacation Policy Structure on Satisfaction, Productivity, and Profitability” The BRC Academy Journal of Business Vol. 10, No. 1. 20 As above. 21 As above n.18. 22 As above n.18. such as a cold or flu23. On the contrary, when employees are able to take an ample amount of time-off, they have a much better work-life balance leading to improved personal relationships, increased job satisfaction, and increased energy and creativity24. 6.62 It has further been empirically established that many of the benefits that an employee receives when they go on leave carry over to the employer25. That an employee with fewer health-related issues costs the company significantly less due to lower employer healthcare costs and worker compensation claims26. 6.63 The organizational researchers have further unearthed that one of the greatest benefits of employees taking time-off work is decreased job burnout27. They contextually define burnout as a psychological strain that occurs when an individual is faced with continuous stressors28. That it becomes more and more difficult for an individual to cope with these stressors as time goes on, which leads to a point of physical, emotional, and mental exhaustion29. That burnout does not just affect individuals, it also affects the entire workplace with deteriorating performance and negative attitudes towards others as well as the individual affected employees30. The research further uncovers correlations between increased employee burnout and other workplace factors, including increased absenteeism, accidents, increased turnover, increased intentions to quit, and decreased job performance31. 6.64 I consider these to be quite serious empirical findings. Findings which cannot be ignored if the ultimate aspiration – from a labour or employment perspective – is to have a workplace that is not a pressure cooker but a happy and thriving environment. 6.65 In that regard, this Court respectfully implores employers to be in the forefront in adopting such measures as would encourage annual leave to be actually taken by workers. As a matter of fact, this would result in killing two birds with one 23 As above n.18. 24 As above n.18. 25 As above n.18. 26 As above n.18. 27 As above n.18. 28 As above n.18. 29 As above n.18. 30 As above n.18. 31 As above n.18. proverbial stone in that encouraging employees to take annual leave would afford employees the chance to unwind and recover their mental and physical energy while at the same time saving the employer huge sums of money by avoiding monetisation of annual leave accruing to the employee but not granted before the date of termination of employment. 6.66 I believe it is on these very considerations that the Employment Act in sections 44(1) and 45(1)(a) legislates that annual leave shall be taken and granted not later than six months after the end of the year in respect of which the leave entitlement arose. It goes without saying that the provisions are couched in those peremptory terms to enable employees some rest to unwind, recharge and return to work fresh and energized. 6.67 And the fact that the Employment Act does not sanction forfeiture of untaken leave is a recognition by the framers of the Act that employees would eventually expend their deserved leave or upon termination of employment receive payment for the leave duly earned. 6.68 It is my further conviction that an employer worth the name or one interested in the welfare of its workforce should be able to keep track of those employees with untaken leave days or, most importantly, endeavour to record in respect of each and every employee when their entitlement to annual leave falls due in the same way that a conscientious employer readily keeps a record of its workers’ dates of retirement or data on when newly recruited staff complete their probationary period or when maternity or paternity leave comes to an end and so on and so forth. 6.69 At any rate, as stated repeatedly, my considered view is that it should be the case that preference must be that employees actually make use of their paid annual leave by actually taking the leave in view of the benefits that time-off brings to their health and performance at work. 6.70 In the end, I should think that the entirety of the foregoing discussion has buttressed this Court’s standpoint that it is unlawful and, in fact, an unfair labour practice for employers to forfeit leave properly earned by employees. 6.71 May I also mention that I think the provisions on annual leave in our Employment Act could be better. In my very rudimentary research, I found the Zambian Employment Code Act No. 3 of 2019 to be very clear on what it provides on the subject of annual leave. The relevant sections read as follows: “36. (1) An employee, other than a temporary or casual employee, who remains in continuous employment with the same employer for a period of twelve consecutive months shall be granted, during each subsequent period of twelve months while the employee remains in continuous employment, annual leave on full pay at a rate of at least two days per month. (2) The leave referred to under subsection (1) is in addition to any public holiday or weekly rest period, whether fixed by any law, agreement or custom. (3) An employer shall in consultation with an employee, at the beginning of each year prepare an annual leave plan specifying when the leave under this section is to be taken by employees in the undertaking. (4) Where an employer does not grant an employee leave, or an employer grants the employee leave less than the total leave due under this section, the employer shall pay the employee wages in respect of the leave still due at the end of the period of twelve consecutive months. (5) Despite subsection (1), an employer may, with the agreement of the employee, pay wages to the employee in lieu of any annual leave due to the employee under that subsection, and if any leave has been accumulated by an employee whose contract of employment has terminated or expired, the employer shall pay wages to the employee for the period of the accumulated leave.” 6.72 Looking at these clear provisions, I do not think any employer or employee for the matter of that would be befuddled in terms of what is expected of them. I can only urge the relevant powers that be to consider bringing changes to our Employment Act that would carry provisions similar or identical to the ones in the Zambian Employment Code Act No. 3 of 2019. 6.73 Before I rest, it is only fair that I make a comment or two in respect of case authorities Counsel for the respondent vehemently relied on in his bid to persuade this Court to find in favour of his client. The case of John Kapyola and Ors v. Nation Publications Limited32 was cited in aid of the propositions that the responsibility to take annual leave lies with the employee. That the employer only wields the duty to grant the leave such that Courts ought to deny granting claims for payment in lieu of untaken annual leave in circumstances where the employee never applied or asked for annual leave. 6.74 I must outrightly dismiss all these propositions on the basis of the fact that the Kapyola case did not engage with or construe sections 44(1) and 45(1)(a) of the Employment Act in the fashion this Court has comprehensively done. Moreover, the Kapyola case did not consider the import of section 45(2) of the Employment Act undergirding this Court’s stance and conviction. Further, the conclusion expressly made by the Kapyola case that “it would be unfair to order payment of leave days by plucking the leave days from thin air”33 says to this Court that the applicants in that matter had no business troubling the Court to hear their claim for they came with no evidence whereon to anchor their cause of action. 6.75 On the two South African cases34, Counsel for the respondent cited them to argue that it would be contrary to the purpose of the law for employees to be allowed to perpetually accumulate leave with a view to monetise the leave upon termination of employment. 6.76 I am similarly unpersuaded by the pronouncements made in the two South African cases and I have no qualms to summarily dismiss the contentions plucked out therefrom by Counsel. It is evident to this Court that the cases were interpreting a piece of legislation styled Basic Conditions of Employment Act, 75 of 1995 (the BCEA) which has quite detailed provisions on the operation of annual leave in that jurisdiction and is, in that regard, dissimilar to our Employment Act. Of note, the BCEA even expressly legislates for lapsing of leave which our Employment Act does not. CONCLUSION 32 IRC Matter No. 40 of 2009 [unreported]. 33 As above at p.2. 34 Ludick v. Rural Maintenance (Pty) Limited [2014] 2 BLLR 178 (LC) and Jooste v. Kohler Packaging Limited [2004] 25 ILJ (LC). 7.1 On an overall conspectus of the relevant facts and the applicable law as well as the discussion conscientiously had, permitting this matter to proceed to trial to resolve the liability issue would be otiose. 7.2 To sum up and to avoid potential confusion, this Court concludes as follows: (a) the motion herein is amenable to disposal on a point of law as the facts put forward by the parties are not at variance to the extent of their relevance in enabling this Court to determine the questions of law in respect of the liability issue. (b) the question whether under the Employment Act, the employer has a strict legal obligation to grant annual leave to the employee is responded to in the affirmative while the interrogation whether the employee has a corresponding duty to take leave is equally answered positively except that in the event that annual leave earned is untaken by the employee, the right to any accrued leave continues to enure. (c) the question whether under the Employment Act annual leave earned and accrued by an employee can lawfully be forfeited if not granted by the employer (irrespective of whether the employee apply or does not apply for the leave) before the date of termination of employment, is answered negatively. Employers and employees may not mutually agree to contract out of the provisions of the Employment Act by providing for expiry or forfeiture of annual leave meaning that whatever number of annual leave days the applicant in this matter earned and accrued under the two contracts of employment (and were not granted before the date of termination of employment) cannot be forfeited. 7.3 Accordingly, the applicant is entitled to be remunerated for all earned and untaken annual leave not granted by the respondent before the date of termination of employment. The actual number of annual leave days which so accrued to be determined in an assessment trial on a date and time to fixed whether by this Court or the Registrar of this Court in the event that the parties are unable to settle the issues out of court. Further, payment of the ascertained accrued leave days shall be based on the rate as provided for in section 45(3) of the Employment Act. 7.4 It bears stating that this having been a bifurcated matter, the liability issue was just the first instalment. In that respect and on the authority of the case of JTI Leaf (Malawi) Limited v Kad Kapachika35, the decision herein is inchoate for appeal purposes. It can only be escalated to the High Court subsequent to this Court or the Registrar of this Court rendering an Order on assessment or the parties settling the issue of the number of leave days accruing to the applicant and subject of payment. For the removal of doubt, I am saying the right of appeal remains and within the dictates of section 65 (2) of the Labour Relations Act but, at this stage, caveated by my sentiments as just conveyed. It is so decided. Pronounced this 25th day of April 2025 at IRC, PRINCIPAL REGISTRY Tamanda Chris Nyimba DEPUTY CHAIRPERSON 35 MSCA Civil Appeal No. 52 of 2016 [unreported]. 25