Hangolo Choolwe v Consolidated Farming Limited (2022/HPIR/663) [2024] ZMHC 260 (17 October 2024)

l / IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DMSION HOLDEN AT LUSAKA (Ciuil Jurisdiction) BETWEEN: . 2022/HPIR/ 663 HANGOLO CHOOLWE COMPLAINANT AND CONSOLIDATED FARMING LIMITE RESPONDENT Coram: Before Mrs. Justice M. s. Ngoma thJa 17'-" d y of October, 2024. For the Cornpla.irtant For the Respondent Legislation ·referred to: . . . . bt Pi r. cm . NI A. JUDGMENT 1. The Bmpl.oynumt Code Act No. 3 of 2019. 2. The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. 3. The Minimum Wages an.d Conditions of Employment (Genua.q Order, 2011. Case referred to: l. Robert Slmeza & 3 Others v Elisabeth luyece [2011) ZMSC 3. 2. Colgate Palmolive Za.mbia Inc v Chuka and Ors IAppeal 1 Bl of 200S} (2007] ZMSC l S2. 3. Tiger Chicks (T/A Progressive Poultry Ltd} v Tembo and Ors (Ap~al 6 of 2020) (2020} ZMSC 160. J1 CamScanner ' ' ,_, !" 4. Mohamed v Attorney-General (S. C. Z. Judgment 26 of 1982) [1982] ZMSC 17. 5. Joe's Earthworks & Mining Limited v Dennyson Mulenga (APPEAL : ' NO. 107 of 2022) [2024} ZMCA 48. 6. Gilbert Besa v Chimwenda Investments Limited (2023/HN /IR/21) [2024] ZMHC SO. 7. Standard Chartered Bank (Z) Plc v Willard Solomon Nthanga & Ors (Appeal No. 193/2016) [2020} ZMSC 173. 8. Choonga v Zesco Recreation Club, Itezhi Tezhi (Appeal 168 of 2013) [2016] ZMSC 32. 9. Barclays Bank Zambia Limited v Manda Chola and Ignatius Mubanga (1997) S. J. 35 (S. C. J. 10. Kitwe City Council v Ng'uni (S. C. Z. Judgment 12 of 2005) {2003] ZMSC 130. 11. Chilanga Cement PLC v Singogo (SCZ 13 of 2009) [2009} ZMSC 148. Authoritative Text Referred to: 1. Mwenda, W. S and Chungu, C., A Comprehensive Guide to Employment Law in Zambia (UNZA Press, 2021). INTRODUCTION 1. The complainant commenced this action by filing a notice of complaint ·and supporting affidavit seeking the following reliefs: (i) (ii) Payment of leave days; Gratuity; (iii) Salary arrears; (iv) Notice pay allowance; and (v) Costs and any other benefits the court may deem fit. e -·. J2 CamScanner ;OMPLAINANT'S COMPLAINT AND AFFIDAVIT EVIDENCE 2. The complaina.11 t's affid avit evidence is that he was employed by the responden t on 8th December 2008 as a Payroll Clerk on contractual basis. He averred tha t he worked well with the respondent and was given an initial contract and later he was given a second contract whose expiry was the 4th J a nuary 2010 as exhibited in his affidavit as "HC3". However, he continued to work for the respondent after the 4th January 2010 but was not provided with a third contract until 7th June 2014. The complainant further averred that he signed a fourth contract and later a fifth contract on 31 8t August 2016 and later a sixth and seventh contract which were exhibited in his affidavit as "HC7" and "HC8", respectively. The complainant testified that he tendered a *30-day notice of resignation on 10111 May 2022. 3. The complainant exhibited 7 contracts that he entered into during his engagement with the respondent, namely: a. 6-month contract from January 2009 to June 2009 ("1 st Contract") b. 6-month contract from 5th July 2009 to 4th January 2010 ("2nd Contract") c. 9-month contract from· 7th June 2014 to 6th March 2015 ("3rd Contract") d. 9-month contract from 1st April 2015 to 31 st December 2015 (4th Contract") e. 2-year contract from 31 st August 2016 to 30th August 2018 ("5th Contract") f. 2-year contract from 17th November 2018 to 16th November 2020 ("6th Contract") g. 2-year contract from 17th November 2020 to 16th November 2022 ("7th con tract") J3 CamScanner .tESPONDENT"S ANSWER AND AFFIDAVIT IN SUPPORT 4; The respondent filed an answer and supporting affidavit on 17th October 2022. The respondent stated in the answer that the complainant was not entitled to any leave days, gratuity, salary arrears, notice pay or any of the claims made by him. 5. The affidavit was deposed to by Patricia Ponga Mwali, the Human Resource Manager in the respondent company. The respondent averred that the complainant was employed, if at all, on seasonal or fixed term contracts and, therefore, not on permanent and pensionable terms of employment. 6. · The respondent contended that each time the complainant was employed on contract it was a strict term of that contract that no previous contract formed part of the new contract. HEARING 7. Before the trial scheduled for 10th October 2023, the complainant filed a notice to produce on 6th October 2023, which contained various documents including email correspondence between the Human Resource Manager and himself, the schedules attached to the emails showing different computations of his gratuity made by the respondent, a payment voucher and cheques, among other documents. e 8. The trial scheduled on 10th October 2023 did not take place as the respondent applied for an adjournment because counsel seized with conduct of the matter was indisposed. There was no objection from the complainant and the matter was adjourned accordingly. 9. The matter came up for trial on 11th April 2024. The complainant appeared in person while there was no appearance for the respondent. The record showed that the complainant had served the notice of hearing on the J4 CamScanner respondent's advocates and filed an affidavit of service before the court. Having satisfied myself that the respondent was aware of the date of hearing, I proceeded to hear the matter on the basis that the respondent was absent from court without any reason. I was fortified in taking this course by the case of Robert Simeza and 3 Others vs Elizabeth Mzyce 1 in which the Supreme Court guided that no procedural injustice is occasioned when a court proceeds where a party who was aware of proceedings did not appear before court. 10:The complainant gave oral testimony that he was engaged as a payroll clerk and a personal assistant to the Agriculture Manager of the respondent company on 8th December 2008. He was given a written contract on 10th January 2009 which expired on 4th July 2009 when his probation was completed. He was given a contract 2 days later which was set to expire on 4th January 2010. 11. The complainant avers that he was not given a new contract but continued to work for the respondent until 7th June 2014 when he was given a third contract for his execution which contract was supposed to expire on 6th March 2015 but continued to operate up to 31st March 2015. On 1st April 2015, the complainant was provided with another contract which would run up to 31 st December 2015 but the complainant continued to work up to 31st August 2016 when he was given another contract to sign which had an expiry date of 30th August 2018. However, he worked up to 16 November 2018. On 17th November 2018, he was given another contract which went up to 16th November 2020. 12. Thereafter, the complainant contends that he was given his next contract on 24 June 2021 and he was told to acknowledge that the contract was effective on 17 February 2021 and would be binding for the period between 17 November 2020 to 16 November 2022. The complainant testified that he JS I l - CamScanner did .not complete this contract as the General Manager, Mr. Yusuf Aloo . issued a written notice on 2nd December 2021 stating that the payroll would not be handled by him (Complainant) or Patricia until management advised in due course. 13. The complainant testified that on 15th December 2021, Mr. Aloo served him with notice of forced leave of 90 days. Later, on 25th December 2021, he got a call from the Human Resource Manager who advised that his salary for the period 161h November 2021 to 16th December 2021 had been intercepted by . Mr. Aloe. Upon following up with the head office of the respondent, Mr. Aloe wrote a note to the complainant stating that he would only be paid his salary after auditing him. 14. The complainant requested that the said audit be done promptly as he did not have food at his home, however, the respondent did not provide any feedback. Nonetheless, the complainant was paid his January, February and March 2022 salaries. The complainant contended that on 11 th April 2022, he reported for work to the Human Resource Manager and Agriculture Manager who welcomed and congratulated him as he had not been found with any case. They advised, however, that the employer had not said what offence the complainant committed and they could not give him any assignment for fear of compromising the complainant's contract. The complainant was given the office keys but told that he would have to wait for the General Manager to give him his assignment and that if the General Manager did not want him, he would relieve him of his duties and pay him his benefits. 15. From that time, the complainant kept reporting for work and signing in the company register as advised. Two weeks later, on a date he could not recall, the General Manager told him to be working from his office at head office. The complainant reported there for two weeks without being assigned any JG CamScanner work and each day Mr. Aloo would ask him to return the next day. · Thereafter, the complainant contacted his immediate boss who advised him to stop reporting at head office and continue reporting at Kafue Sugar where he had been working. 16. His salary for April 2022 was intercepted by Mr. Aloo who instructed that it be given to him and he would only pay the complainant when he wanted to, which led the complainant to go back to the Human Resources Manager to request for a termination letter. The Human Resources Manager, Patricia Ponga refused to terminate his contract saying she had not received any complaint against him. Instead, she advised the complainant to resign so that she could calculate the terminal benefits which fell due. She then drafted a resignation letter for him. The complainant followed her advice and wrote a letter giving notice of his resignation effective 15th June 2022 and presented it to the Human Resources Manager on 18th May 2022. 17. The complainant testified that after commencement of this action, mediation was attempted but failed. The Human Resources Manager gave him his terminal benefits calculation of K288, 017.23. However, on 11th November 2022, he met Mr. Aloo, at his request, who gave him a cheque of K25, 000.00 out of K288, 017.23. On 17th November 2022, he received a call from the Human Resources Manager, Patricia Ponga, saying that the money calculated as his benefits was too much and she would reduce it. She accordingly sent him a new calculation of benefits amounting to K143, 884.00. After going through it, he discovered that the leave days were calculated at K2, 204.23 for 22 days when his rate was supposed to have been K252.50 multiplied by 22 days. The final figure after the recalculation was K147, 184.99. 18. The complainant made a follow up on the monies on 6th December 2022. On the 7th December 2022, he was given a second cheque of K25, 000.00 in his J7 CamScanner name without his consent. He could only access the cheque aftc,,r 2 weeJr.s. On 29th December 2022, he was informed that the Operations Manager was asking Mr. Aloo why the complainant, referred to as a "young boy", was being given a lot of money. On 3rd January 2023, the complainant was told his file was lost. He made several trips to follow up on his file. Finally, on 11th January 2023, the complainant met with Mr. Yusuf Aloo who informed him that all the cheques were ready and he should meet with Mr. Musa who said he had a calculation of K147, 184.00 and did not know why the complainant was having issues with the General Manager, Mr Aloo. 19. On 13th January 2023, the complainant was called to go and collect a cheque of K24, 340.00 and was given a disclaimer to sign which stated that the said money was the final payment to the complainant. He decided to get the cheque and rejected the disclaimer. On 31 st February 2023, he had a telephone conversation with Mr. Aloo who told him to go to Court and he would pay whatever the court would advise. 20. In October 2023, the complainant called him (Mr. Aloo) over his NAPSA contributions and the same were fully paid up and as such he has no complaint regarding NAPSA contributions. 21. Leave Days: The complainant stated during the trial that the 22 leave days reflected in the calculation attached to the notice to produce is the account balance from January 2016 to 15th June 2022. However, there were 74 leave days from 8th December 2008 to 31 st December 2015. He therefore asked for 96 days as he was accruing 2 days per month and never went on leave. 22 . Salary Arrears: The complainant claims that he was not paid for December 2021, April 2022, May 2022 and the notice pay. The complainant claimed that he was entitled to notice pay because he was forced to give notice as JS CamScanner the Human Resources Manager told him that she needed to calculate his .' . · benefits. ·, ~' · i ·.,· 23. The complainant contended that his salary was K6, . 552.00 and he was working for a limited duration. However, the contracts did not reflect what was happening on the ground hence he requested the court to grant hiin a "permanent employee calculation" and costs. 24. The complainant informed the court that he had been paid K74, 340.0. He further stated that when the calculation of his terminal benefits was reduced to K147, 184.00, the calculation was done in accordance with the collective agreement; however, the said collective agreement was not put on record. 25. He gave testimony that the salary of K6, 552.00 was the basic pay and there were no other allowances as allowances were only paid up to 2016. 26. The complainant did not call any witnesses. At the close of his testimony, he stated that his position was a management position but he was part of the collective agreement and made a unionized employee against his wishes because all Zambian employees were categorized as union members. ISSUES FOR DETERMINATION 27. Analyzing the evidence before me, the issues for determination, in my view, are the following: (i} Whether or not the complainant should be deemed to have been operating under a permanent contract; (ii} Whether or not the complainant is entitled to the reliefs sought, namely payment of leave days, gratuity, salary arrears, notice pay allowance and costs; and J9 CamScanner ;<; ·· • (iii) Whether the complainant is entitled to any other relief that the court may deem fit a. Whether the employee should be deemed to have been operating under a permanent contract? .!-. : : . 28. The complainant has requested that he should be treated as a permanent ·,. . . , ,•· and pensionable employee for the purposes of determining his rights as ' there are periods when he was working for the respondent that are not covered by any written contract. 29. It is a settled principle of law that parties of contractual age have the freedom to enter into contracts which are enforceable before the courts of law. In Colgate Palmolive Zambia Inc v Chuka and Ors2 , the Supreme Court citied Sir George Jessel in Printing and Numerical Registering Company as follows: "If there is one thing more than another which public policy requires, it is that men of full age and competent understanding shall have the utmost liberty in contracting and that their contract when entered into freely and voluntarily shall be enforced by courts of justice. 30. In Tiger Chicks (T/A Progressive Poultry Ltd) v Tembo and Ors3 , the Supreme Court deliberated on the extent to which the freedom of contract applies as follows: e "Our view is that parties to employment contracts are still generally entitled to exercise their freedom to determine their own terms and conditions of employment. Where, however, an employee falls within the protected categories, then that freedom to contract is circumscribed to the extent that the conditions to be agreed upon should not be less favourable than the minimum prescribed in the Orders made pursuant to the Act.,, JlO CamScanner 1 1_ 1. t . i. Freedom of contract is indeed a matter of public policy because it fosters individual autonomy while providing the stability and certainty of legal enforcement necessary for effective business operations. This balance is . essential for both parties to engage confidently in contractual relationships. The parties in this case elected that their employment relationship be governed by fixed term contracts as opposed to a permanent and pensionable contract. The court cannot interfere with the parties' freedom of contract and make a declaration that the complainant was employed under a permanent and pensionable contract. Granted, there are periods during the course of the complainant's employment that are not covered by a written contract such as the period between 2010 and 2014. However, the schedule of the complainant's benefits prepared by the respondent shows that the complainant was constantly in the employ of the respondent from December 2008 to June 2022. Therefore, this court will make a presumption that any periods not covered by a written contract were governed by the terms of the preceding contract. 32. Nonetheless, the limitations stated in Tiger Chicks (T / A Progressive Poultry Ltd) v Tembo and Ors3 are necessary because the relationship between the employer and employee is one of unequal bargaining power. Therefore, the law protects certain categories of employees by prescribing the minimum conditions that should govern their rights and dealings with the employer. The Minimum Wages and Conditions of Employment (General) Order, 2006 which was repealed by the Minimum Wages and Conditions of Employment (General) Order, 2011 was enacted for the aforesaid purpose. The benefits under the said Order are applicable to eligible employees regardless of whether their contracts do not provide for the said benefits. However, the said regulations do not apply to the following classes of employees for the purposes of this case: Jll CamScanner "{/) (Employees] in any occupation where wages and conditions of . ., · employment are regulated through the process of collective , bargaining conducted under the Industrial and Labour Relations ·Cap. 269 Act, or where employee-employer relationships are governed by specific employment contracts attested by a proper officer, and such conditions shall not be less favourable than the provisions of this Order; (e) [Employees] tn management ... " 33. The complainant has stated that he was a unionized employee although not of his own choosing but subject to the company rules that all Zambian workers were part of the union. Additionally, he claimed that he had a management position in the respondent company. The Industrial and Labour Relations Act has defined management, in section 4, as follows: "An employee shall cease to be an eligible employee and become a member of management if the employee- (a) is empowered to make management decisions; (b) is entrusted with personnel management and industrial relations functions; or (c) reports directly to the Chief executive" 34. The job titles that the complainant held over the course of his employment are "Payroll Clerk", "Administration Clerk", and "Administration Assistant". None of the job descriptions in the contracts provided indicate that he was empowered to make management decisions nor entrusted with personnel · and industrial relations functions. Additionally, the first four contracts do not indicate the position the complainant was supposed to report into. However, the last three contracts state that he would report to the Agriculture Manager. Moreover, the Industrial Relations Act makes it clear that a management employee is not an eligible employee under the Act. An eligible employee is defined under section 3 as "a unionized employee other J12 CamScanner than a member of the management of an undertaking." Therefore, a unionized employee cannot serve as a management employee . simultaneously. I, therefore, find that the complainant was not a management employee. 35. Coming to the issue of whether or not he was a unionized employee hence exempted from the minimum wages regulations, the complainant gave oral testimony that he was a unionized employee. However, there was no proof submitted before this court of a collective agreement or such an indication in the separate contracts submitted before this court. I am inclined to make a finding that the complainant was not a unionized worker at the respondent company and as such, he is a protected worker under the Minimum Wages and Conditions (General) Order, 2011. In any case, I am unable to determine whether the complainant is entitled to the allowances under the Minimum Wages Regulations, namely housing allowance, transport allowance and lunch allowance, as I do not have the requisite information to determine the complainant's eligibility for the said allowances, namely: 1. Whether or not he was accommodated by the employer; 11. 111. the distance of his duty station from his area of residence; the provision of wholesome and adequate meals by the employer. 36.1, therefore, find that the complainant is not entitled to hou·sing allowance, transport allowance and lunch allowance. b. Whether or not the complainant is entitled to the reliefs sought, namely, payment of leave days, gratuity, salary arrears and notice E!!!1J. allowance. LEAVE DAYS 37. The complainant has claimed that he is entitled to a total of 96 leave days ._ being 7 4 leave days accumulated from 8th December 2008 to 31 st December J13 , C a m S c a n n e r :. ,r:. -_; __ ·, •.l· .. 2015 and 22 leave days accumulated from January 2016 to 15th June 2022 as calculated by the respondent on the schedule of his benefits . The complainant, in his oral testimony, stated that he never went on leave during his engagement with the respondent. 38. The period from 8th December 2008 to 31 st December 2015 encompasses 7 years which, in terms of leave days, would accrue to 168 days in annual leave. There are four written contracts that cover this period as listed in paragraph 3 above. The Leave Days Program under the 1st contract marked as exhibit "HC2" indicates that the complainant used up all of his leave days accrued during the duration of the 1st contract. The other three contracts contain the following clause regarding leave days: "Employees shall be entitled to leave on full pay at the rate of 2 days for each completed month of service exclusive of Sundays and Public holidays. An employee has the option to either go on leave or commute the accumulated leave days for cash at the end of the contract at the discretion of management." 39. The complainant did not adduce any evidence or provide an explanation of how he arrived at the calculation of 76 leave days that were apparently accrued over the first four contracts. Seeing that the total number of leave days under this period would be 168 leave days, the complainant should have provided evidence of either the leave he took or payment he received for the commutation of part of his leave days which left a remainder of 76 leave days under the stated contracts. The court cannot make a decision in the complainant's favour solely based on his oral testimony that he never took leave during his employment and that he is entitled to 76 leave days. · 40. Additionally, the complainant also claimed for payment of 22 leave days accumulated from January 2016 to 15th June 2022. These 22 leave days were calculated by the respondent and shared with the complainant on the J14 C a m S c a n n e r ,1. ,. •~•I ;.• . I· ·;·,;: ' ·~ ::···'::·:/ .... ~,- _.··. schedule sent by the rcspondenfs Human Resources Manager showing his terminal benefits. The respondent's answer contains 5 bare denials of the complainant's claims by merely stating that the complainant is not entitled to a relief, without providing any explanation or evidence, that is, "the complainant is not entitled to any leave days". I am alive to the Supreme Court's decision in Mohamed v Attorney-Genera14 that a plaintiff should not succeed automatically whenever a defence has failed because a plaintiff must prove his case and if he fails to do so, the mere failure of the opponent's defence does not entitle him to judgment. In this instance, however, the complainant in his oral testimony claimed that he is entitled to 22 leave days in accordance with the respondents' calculation of his benefits in a schedule prepared by the respondent which has been adduced into evidence. If the complainant never went on leave as he contends, then the total leave days accumulated for the period January 2016 to 15th June 2022, at the rate of 2 days per month, would have been in the region of 152. Since the complainant did not dispute the number of days indicated by the respondent, but only challenged the rate at which leave pay was calculated, I am inclined to uphold the respondent's computation that the complainant accumulated 22 leave days and, I, accordingly, grant him leave pay for 22 days. 41. In terms of the calculation of the annual leave, the Employment Code Act provides for the following default calculation in the absence of a more favorable calculation in the employees' contract: Leave benefits (FP x DJ) 26 days where FP = full pay D = number of accrued leave day 42. Where the full pay is K6, 552.00, the leave pay that the respondent is entitled to shall by taxed by the Honorable Registrar. JlS C a m S c a n n e r . - ,\ .... ~· : iRATUITY {~ ~ -- ::'43. The complainant has made a claim for gratuity and adduced into evidence 3 ~ . ' f, l :-- ' schedules where his benefits were computed. The first two were prepared by . .-the respondent and sent to the complainant while the third was sent by · j .. _complainant to the respondent upon verification of the calculation as evidenced by the email correspondence between the complainant and the Human Resource Manager of the respondent. In the first schedule, gratuity { . was calculated at 25% of his annual salary for the entire duration of his employment from December 2008 to June 2022. However, the complainant { . had given oral testimony that the HR Manager informed him that she had to adjust the amount as it was too high and she sent the second schedule in which gratuity is calculated at 8.33% of the complainant's annual salai:y from December 2008 to November 2019, and at 20% from December 2019 to June 2022. The complainant only disputed the calculation of his leave days which were adjusted in the third schedule sent by him to the respondent. 44. In determining whether the complainant is indeed entitled to gratuity and to what extent, it is imperative to consider the law relating to gratuity and its applicability. The Employment Code Act No. 3 of 2019 mandates employers to pay gratuity as follows: "73 (1) An employer shall, at the end of a long-term contract period, pay an employee gratuity at a rate of not less than twenty-five percent of the employee's basic pay earned during the contract period. (2) Where an employee's contract of employment is terminated in accordance with this Code, the employee shall be paid gratuity prorated in accordance with the period of employment." J16 C a m S c a n n e r ,,, ~ "•i •·• r·(• .i,~~ • )(~' :,r•:~:/(. I - • - , , '9 ~,. • !'.r. ,~S;A long-term contract has been defined at section 3 of the Employment Code t ,:.: : • ( ,, · Act as a contract of service either for a period exceeding twelve months, renewable for a further term or for the performance of a spedfic task or . r : , . F°' ·: :/•· ' _f ~ · /-~ t· ,,. ~, · .. project to be undertaken over a specified period of time, and whose · termination is fixed in advance by both parties. 46. It is critical to note that the Employment Code Act came into operation in May 2019 by virtue of the Employment Code Act (Commencement) Order, 2019. Due to the fact that the Employment Code Act does not operate retrospectively, an employee can only be entitled to gratuity under the Employment Code Act after its enactment. This was the view of the Court of Appeal in Joe's Earthworks & Mining Limited v Dennyson Mulenga5, where the court stated that it is an undisputed position that before the enactment of the Employment Code Act, gratuity was only payable if it was an agreed term of the contract of employment. 47. A perusal of the contracts adduced by the complainant reveal two employment contracts that gratuity under the Employment Code Act apply to. I have observed that the complainant was serving on a long-term contract (from 17th November 2018 - 16th November 2020) when the Employment Code Act was enacted. For the purposes of determining the exact date from which the complainant is entitled to gratuity under the Employment Code Act, I am guided by the Court of Appeal's discourse in Joe's Earthworks and Mining Limited v Dennysons where the · court t-. stated thus: "The issue for interrogation, in our considered opinion, centers on the effect of an existing contract of employment which was executed prior to the coming in of the Employment Code Act viz the statutory procedural and substantive requirements ushered in by the Code. It is trite that the Employment Code Act was assented to on l 1th April J17 C a m S c a n n e r , ,,:·k1f~t\t!1•·· :-:~· ~ ·, : 2019 and that the Commencement Order .in relation to the . Act was brought into force on 9th May 2019. Regulation 5 (2) and (3) of the Fourth Schedule embodied all written contracts and also · gave employers a period of one year to ensure that all contracts are materially consistent with the provisions of the Act. This was ' referred to as the grace period or cooling off period ... " For avoidance of doubt and to guide litigants, we reiterate the · guidance of the Supreme Court, that the procedure and practice of a statute take effect immediately. It is thus clear that the procedural and practical elements of the Employment Code Act became applicable immediately, while the cooling-off, or grace period, referred to the substantive aspects of an employment contract. Gratuity is an example of a substantive provision. Having noted that the new Employment Code Act came into existence whilst the Respondent's contract was ongoing, and havi.ng discussed above, the effects of the new legislation viz procedural issues . and substantive issues, we can safely determine that the requirement for the payment of gratuity. is not retrospective and cannot be applied retrospectively. This was a substantive issue and caught within the grace · period of one year and would only have become effective and payable after 9th May 2020. (Emphasis mine) 48. Without diluting the discourse above, I find that the period of gratuity under the Employment"Code Act should be calculated from 10th May 2020 to 15th June 2022. · I therefore find that the complainant is entitled to gratuity at 25% of his basic pay earned during the said period. The complainant stated that his basic pay was K6, 552.00 per month as there were no other allowances after 2016. The respondent did not dispute or provide a contrary figure of the complainant's basic pay. In fact, the C a m S c a n n e r ., ' ••'·•• ,. }\t\\-:<. • '. •,_'·'•I respondent ·· used K6, . 552.00 in its own calculation of his gratuity. · Therefore, I find that K6, 552.00 was the complainant's basic pay for purposes of calculating his gratuity from 10th May 2020 to 15th June 2022, to be taxed by the Honorable Registrar. '49. In. terms of gratuity before the enactment of the Employment Code Act and during the cooling off period, regard . must be had to the findings of the High Court in Gilbert Besa v Chimwenda Investments Limited6 where the learned judge endorsed the views of the learned authors Mwenda and Chungu in their book A Comprehensive Guide to Employment Law in Zambia at page 287as follows: "Prior to the enactment of the Employment Code Act, gratuity was only a statutory entitlement for employees covered by the General and Shop Workers Orders provided they reached the retirement age and had worked for at least ten (10) years. For all other employees, gratuity was only an entitlement if ru:_ovided for in their contracts of employment or given at the discretion of the employer as an ex-gratia payment. This has now changed with the enactment of the Employment Code Act." SO. Clearly, prior to the enactment of the Employment Code Act, gratuity was provided either on contractual basis or as an ex-gratia payment which is given at the discretion of the employer. In Standard Chartered Bank (Z) Plc v Willard Solomon Nthanga & Ors7 , the Supreme Court defined ex-gratia as: "a sum of money paid to an employee in a situation where the employer has no contractual obligation and without admission of liability. In essence, it is a gesture of good will by the employer J19 C a m S c a n n e r .•.' : I! ·" -~·~, ,t'._;"._'Y",t•. ' , ., ,'1:' •• ~ '"i.. P· ,: ·- . :because they acknowledge that they have treated the employee b·adly •. or· that the employee deserves some financial . compensation. It may ·also be a way to avoid the employee trying to sue the employer ... " 51. One of the contracts on record (for the period from 17th November 2018 to16th November 2020) provides that an employee who has successfully completed his or her fixed term contract is entitled to gratuity at 8.3% of the total basic pay for the contract period. This provision therefore entitles the complainant to gratuity from 17 November 2018 to 9th May 2020 as the period after the 9th May 2020 has been captured under the Employment Code Act as earlier stated. 52.ln terms of the period commencing from 8 December 2008 to 16 November 2018, I have taken note that none of the contracts on record provide for gratuity. However, all the schedules of the complainant's benefits prepared by the respondent contain a gratuity payment covering the entire period in which the complainant was employed. Having observed that most of contracts on record do not appear to sufficiently cover the relationship between the parties as some contracts do not even adequately capture the complainant's remuneration, I must rely on the respondent's schedule showing their computation of the complainant's benefit. I therefore find that the complainant was entitled to gratuity for the entire duration of his employment as reflected on the said schedule. The complainant is therefore entitled to gratuity at 8.3% from 8 December 2008 to 16 November 2018 to be taxed by the Hon. Registrar. 53. In summary, therefore, I find that the complainant is entitled to gratuity of 8.3% of his basic pay (K6, 552.00 per month) from 8 December 2008 to 9th May 2020; and 25% of his basic pay (K6, 552.00 per month) from 10th May J20 C a m S c a n n e r JI .. i;rs::r,,r: .•·.·· ··: ··.·.•·•· .. I _ I ·:/.~• •:~ ::•:.•;~I/ /~ .,, · . , Ft··.'· 2020 . fo' 16 ,June 2022. Thr: :u , ;. . .. . '.';/.·, . . H,inorabfi Re(Z)Ulrfir , tot. Ed amoun t due hall be taxed· hy the f, ·· :. ' ' . , :,4,'Mw . complai nant hu.n claimed for Ba lary arrears for 3 months being December 202 :J, AprH 2022 and May 2022. The respondent merely stated, in it!i AJ1swcr, that the complainant is not entitled to any salary arrears and made no reference to this issue in its affidavit. I have duly noted that the r.enpondcnt did in fact grant the complainant salary arrears for 3 months in lhc schedules that were sent to him by the respondent computing his total benefit. CJ. If no salary arrears were due to the complainant, the respondent would not have included this in its computation of amounts payable to the complainant. I am satisfied that the complainant was not paid his salaries for the s tated months. On this premise, I hereby find that the complainant is entitled to salary arrears for December 2021, April 2022 and May 2022, to be taxed by the Honorable Registrar. NOTICE PAY ALLOWANCE 55. The complainant further claimed for what he referred to as "notice pay allowance" which according to him is a payment that he is entitled to because he was forced to resign and give notice by the Human Resource Manager when she advised that she needed him to do so to calculate his benefits. 56. The employment contract in effect at the time of the complainant's resignation provides as follows: "6.2 After probation period, this contract can be terminated by either party giving thirty (30) days' notice to the other or payment of Thirty (30) days' full salary to the other in lieu of notice." J21 C a m S c a n n e r ' I I ( I I 1 ~,1 1~~ -;, ~ .. ;~r:; .~:;. . ~·~: .~ .. ,- .. /·'.·:57. The. res.ignatlon lcttc"r i;ubmittccl before this court Is dated 10th May 2022 .> . and· :provides 30 days' notice of termination with the last working day being - . 15th June 2022. Neverthelctrn, the letter was signed as received on 18th Muy 2022. This date will be taken to be when the notice was served on the respondent und thereby brought to its attention. Therefore, the complainant is entitled to be paid Thirty (30) days' full salary to the extent that he served his notice period which, in essence, shall be his prorated salary for the days he \Vorked in the month of June to be taxed by the Honorable Registrar. c. Whether the complainant is entitled to any other relief that the court may deem fit 58. Under this head, I shall consider whether or not the complainant was constructively dismissed. 59. The complainants claim for "Notice Pay Allowance" which according to him is a payment he must receive for being forced to resign creates a presumption of constructive dismissal. Notwithstanding that the complainant did not plead constructive dismissal, I take cognizance of the fact that he is a lay man and was unrepresented. I am guided by the Supreme Court in Choonga v Zesco Recreation Club, Itezhi Tezhi8 where the apex court stated that flawed pleadings cannot stand in the way of the Industrial Relations Court in its exercise of its powers under Section 85(5) of the Industrial and Labour Relations Act which provides that: "The Court shall not be bound by the rules of evidence in civil or criminal proceedings, but the main object of the Court shall be to do substantial justice between the parties before it." 60. The Supreme Court in the case of Barclays Bank Zambia Limited v Mando . Chola and Ignatius Mubanga9 earlier stated that: J22 C a m S c a n n e r J ' . Jt;t::·· c~---f:~:· l;•:_; :-: · '11n . the process of doing substantial justice, there is nothing in the r-, · (Industrial and Labour Relations Act] to stop the Industrial Relations . Court from delving behind or into reasons given for termination in order to redress any real injustices discovered. While, undoubtedly, it would be desirable that a recognisable cause of action should be manifest in the originating documents including the affidavits in order that the opponent may have reasonable notice of the case to be met and so prepare adequately, nonetheless, it is not wrong for a court of substantial justice to entertain a complaint however inadequately couched-especially by a lay litigant - and to make a decision or give an I award on the merits of the case, once it is heard. The hearing is frequently a summary one and there is no need to depart from such practice. It follows that we do not accept the argument based on the "pleadings" such as they are. (Emphasis mine) 61. Based on the foregoing, I will proceed to consider whether the complainant was constructively dismissed as he repeatedly made reference to having been forced to resign and adduced evidence to this effect. As a court mandated to do substantial justice, it would be an injustice to ignore the complainant's evidence and testimony merely because he may not have known he had an actionable cause for constructive dismissal. 62. In Kitwe City Council v William Nguni, 10 the Supreme Court made a finding that the plaintiff could not have been constructively dismissed from employment as a result of frustration, victimization and harassment because these are not the essentials in law that might render a dismissal to be constructive. The Supreme Court cited the case of Western Excavating Limited -Vs- Sharp (1) where the employee (respondent) was dismissed for taking unauthorized time off work. In reversing the decision of the EAT, the . Court of Appeal stated that_ th_e. test for constructive dismissal was to be J23 C a m S c a n n e r ' . • I •.•.•.'.'' •.~;•. J. {rt,· ;'' I •. ~;~? : ge):ennhi~si hY tb~. contrug.t .tfl~t._tfil\t lllh .. ~Ud..tb.<f !'UllPl~§l.'1§· gondt1ct- ·amoum, ::-· \}: . . ;_. 19 Jr \ll~tl&h _gf pgntr11qt 'IYhi<ill 21llitl(,d the 91nnJ9yee tg 1:eaig11? _ (Emph~sis ,. --: .: .. . ·n-1.ine) · • .. ·. • • • . . ' ';i, ··· ?:·~-- ~:?-~····<.: .. " .' 63. Addi.tional~y-J in Chllnnga Cement PLC v Singogo, 11 the Supreme co•nsidered t1 nu n1ber of nuthorities in arriving at a test _for constructive disn1is sal . as follovvs: '"What st.ands out clearly is that in constructive dismissal, an employee leaves employment promptly or by notice, as a result of the conduct of his~employer. In the case of GILBERT VS GOLDSTONE (11) the Employment Appeal Tribunal came up with a test to be applied in determining whether an employee had been constructively dismissed ... the proper approach was to apply the test in the Trade Union and Labour Relations Act, i.e. having regard to the equity of the case, the employee had acted reasonably in deciding that the circumstances were such that he could no longer work for an employer ... The notion of constructive dismissal is anchored on the concept that an employer must treat his employee fairly and should not act in a manner that will compel the employee to flee his job.,: (Emphasis mine) 64. The court proceeded to opine that: " .... that an employee can claim to have been constructively dismissed : he. resigned or was forced to leave employment as a result of Ii employer's unlawful conduct, which conduct amounts to a fundament breach of the contract of -employment. It is the employee· who · mak, the decision to leave." 65. From the - foregoing cas.es,, the question that must . be answered · Ul(/ affirmative is whether the · evidence before this · court reveals th~i ... C a m S c a n n e r ~ 'i~ ----'"· •. "' ~r~ ~~ . ; .. ~'\-_' \}-;~,: t ·~'¾• ,&(( · l;j,/ .. '· the . employment l'<.'~\.-"tOU(i~nt rontrm~t with the compln.innn.t who was left with no other option but to 'b~r its conduct fundamentally breached t.~n&td~r him~elf d.ischnrged of his duties and flee his job. 66. Fits~\ the con1plain.nnt was placed on forced leave by the General Manager ,_:: . fur 90 days con1n1encing on 15th December 2021 who also withheld his ~,l~ry fur the period of 16th November 2021 to 16th December 2021. This fot~ leave wo.s preceded by a handwritten note issued by the General ~tunt\gtr which was adduced into evidence stating that the complainant and unother en1ployee would no longer be in charge of handling payroll until - . furtlier notice by managen1ent. 67. Secondly, the complainant was not assigned any work upon his reinstaten1ent on 11th April 2022. His immediate supervisor informed him that he could not assign him any work as the General Manager had not indicated. the offence he had committed leading to the forced leave. As such the complainant reported for work for two weeks without being assigned any wurk. The General Manager moved him to the headquarters in Lusaka for a further period of t\vo weeks but did not assign him any work until his immediate supeniisor advised him to return to his duty station at Kafue S~oar. 68. Finally, the complainant was then informed that his salary for the month of April was being withheld by the General Manager. At this point, he approached the Human Resources Manager to terminate his services. However, the Human Resources Manager informed him that she could not do so as she had not received any reports against him and instead advised him to resign in order for her to calculate and pay his benefits. 69. The complainant adduced into evidence his resignation letter submitted to the respondent on the 18th June, 2022 ,vhich reads as follows: J25 C a m S c a n n e r -~, .~ ::,~~~f i:\~?~,\ ' ; :,:~: ,~i ·:•• ~ · (:., ': '"Ref: ·30 days' notice of my resignation" P• ~~•.•-~tf ::•/: : .. ' I'm writing to provide you a · 30 days' notice of my resignation as Consolidated Farming Limited Employee. I'm leaving CFL following my forced leave which was given to me from 15th December, 2021 to 09th A:t>ril, 2022. I reported back from work on 11th April, 2022 and after meeting the GM, he verbally told me to see him from Lusaka on several occasions. I have always been going as per the appointment but nothing has been happening. My last working date of reporting will be on 15th June 2022. I'm kindly requesting your good office to kindly pay me the following arrears as follows: 1) December, 2021 Salary. 2) April, 2022 Salary. 3) May, 2022 Salary 17th April, 2022 to 16 May 2022 4) Notice Pay, 17th May, 2022 to 15th June, 2022 5) During my forced leave I was being paid net instead of gross. Requesting for the difference. Please also calculate my dues from OSth December, 2008 to 15th June, 2022. I have truly enjoyed working for such a wonderful company as administration officer for CFL. I thank you for your understanding in this matter and wish everyone here much success. Please kindly treat this as notice period and I am at your disposal anytime you may need my service up to 15th June 2022. Yours sincerely." 70. This is a clear case of constructive dismissal as the employer's actions did in fact amount to a fundamental breach of the employment contract. Payment and assignment of work are fundamental conditions in any . employment contract as that is the very basis of the relationship between J26 t I C a m S c a n n e r fl\:"t., li·)~::. ~.. - . f,1;,. > ;·- i : employer and employee, that is, the employee performs a ue·rvicc fo:r the employer and the employer remunerates the employee for tht: ncrvic •. ,, .. . . ·,· provided. I, therefore, find that the complainant was ccmotrucdv~ly dis~ssed from his employment with the respondent. ,\ , r: ~~;\· -- 71. The next question that must be considered by this court is regardin~ th. quantum of damages the complainant is entitled to. The compla ina nt stated that he was paid a total of K74, 340.00 in the form of two ch eques of K25,000.00 on 11th November 2022 and 7th December 2022, res pectively, and one cheque of K24, 340.00 on 13th January, 2023. I have duly taken note that all of these payments were issued after he served his notice, Taking this into consideration and in the absence of any aggravating circumstances to warrant an award of damages beyond the normal measure, i.e the notice period in the contract, I find that the complainant is entitled to one month's pay as damages for constructive dismissal. 7 2. The sum of K74, 340.00 should, therefore, be subtracted from the total amount that the complainant is entitled to which will be assessed by the Hon. Registrar. CONCLUSION AND ORDERS 73. The complainant has, on a balance of probabilities, proved his case to the extent shown above and I, accordingly, make the following orders: i) The complainant is entitled to 22 leave days to be taxed by the Hon. Registrar; ii} The complainant is entitled to gratuity of 8.3% of his basic pay (K6, 552.00 per month} from 8 December 2008 to gth May 2020; and 25% of his basic pay (K6, 552.00 per month} from 1 ()th May 2020 to lSth- June 2022 to be assessed by the Hon. Registrar; J27 C a m S c a n n e r ; •' ;,1jf ·:;.•_ ,_ , . ,. ' :. i.·-· ,~r:}· ... , .1-<; -_·-:/;\:- !~/ :.-:~•-' . (!+ lt_~-: l~ f -~·~;{': l -.· ., .. ,. , 1, • ..:;~(-•· t iii) . The complainant is awarded payment of his salary for :' _ the months of December 2021, April 2022 · and . May 2022 to be assessed by the Hon. Registrar; iv) The complainant is awarded payment of his accrued salary for the days he worked in the month of June · 2022 to be assessed by the Hon. Registrar; v) The complainant is awarded one month's full pay a.a damages for constructive dismissal; vi) The total amount he is entitled to will be less K74, 340. 00 being the amount already paid to the complainant by the respondent to be assessed by the Hon. Registrar; vii) The amount awarded shall attract interest at commercial bank deposit rate from the date of the notice of complaint to the date of judgment and thereafter, at current lending rate as determined by the · Bank of Zambia from the date of Judgment until full payment. viii} Each party will bear its own costs. Delivered at Lusaka thi M. S. Ngoma HIGH COURT JUDGE C a m S c a n n e r . 17R