Ilukena v Patents and Companies Registration (COMP/IRC/LK 471 of 2021) [2022] ZMIC 4 (24 August 2022)

J1 IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION ect aa HOLDEN AT LUSAKA BETWEEN : w ud CoMP/IRCLK/471/2021 MAIKISA MATTHEW ILUKENA AND PATENTS AND COMPANIES REGISTRATION COMPLAINANT RESPONDENT Before The Hon. Mrs. Justice T. S. Musonda. For the Complainant Mr. M. M. Liweleya & Mr. T. B. Munalula From Messrs. M. L. L Legal Practitioners For the Respondent -: Mrs. Belinda L. Musopelo & Mr Dennis Kamfwa, In House Counsel JUDGMENT Legislation referred to: 1. The Employment Code Act, No.3 of 2019 2. Industrial and Labour Relations Act, 3. The Labour Act, Chapter 28:01 4. The Labour Relations Act No. of 1995 CAP 269 J2 Cases referred to: 1) Kitwe City Council V William Ng’uni, 2) Western Excavating (ECC) Limited V Sharpe, (2005) 2. R 97 (1978) ICR 221 3) Heather Maureen Campbell Musariri V Ischool Zambia Ltd, Comp. No.391/2016 4) Edward Mwango and Two Others ZESCO Ltd, 2010/HN/120 5) Attorney General V Martha Mwiinde, 6) Davis Evans Kasonde V Zambia Revenue Authority, $. C.2 Appeal Z. R 71 (1987) (S. C) No. of 2015 7) Jacques Chisha Mwewa V Attorney General, 8) Moses Choonga V ZESCO Recreation Club, $. C. Z Appeal No.168 of | Comp No.95/08 9) Zambia Revenue Authority V Dorothy Mwanza and Others (2010) Z2R 181 10) East The Registered Trustees of Presbyterian Africa, The the Presbyterian Church of Gathoni Foundation Ruth V Ngotho-Kariuki Other works referred to: 1. Selwyn’s Law of Employment, 14*® Edition 2. Halsbury’s Laws of England (4th Edition) 3. Grogan, 2014 Workplace Law, J. J, Juta & Company Limited INTRODUCTION 1. The Complainant, proceedings against Maikisa Matthew Ilukena herein instituted Company Registration and Patents the J3 by way of Complaint dated Agency, Complaint was supported by an affidavit of Complainant sought the following reliefs: declaration that the 7% A i. September, 2021. The even date. The. Complainant was constructively dismissed; ii. 60 months’ salary with all allowances as Payment of damages for constructive dismissal; iii. In the alternative a declaration that Complainant unfair termination of his employment; dismissed was maliciously and the for iv. Vv. vi. Damages for loss of earnings; Damages for emotional stress; Damages for loss of expectation for continued employment; vii. General damages for breach of contract;and Costs and any other relief the Court may deem viii. £L4 THE EVIDENCE The Complainant’s case 2. The Complainant averred that he was employed by the Respondent a for Manager aa, Resources Human as continuous period of about fourteen (14) employment five of contracts of and years. Administration years on renewable His contract of of employment was accordingly renewed over his period (5) service. The contract was years and scheduled to run up five evidenced by the copy of the contract, exhibit, exhibit, 2021, February, 4th dated letter . By renewed for a further period of to 30* April,2021 as “MMT1”. “MMI2", the Respondent’s Registrar and Chief Executive Officer notified 30% the expiration of the Complainant of contract his on April, 2021 and requested him in line with the Conditions of J4 Service, to indicate whether he wished to be considered for a new contract. . The Complainant by letter dated 10th February, 2021, exhibit intention to he notified “WMI3", considered for a new Contract of Employment. 30th April, 2021, Respondent the dated, letter of his exhibit, “MMI4", the not be renewed. . By Respondent notified the Complainant that his contract would The Complainant by letter dated 30t8 April, responded through his Advocates that to 2021, the belated notification of the Respondent’s decision not renew his contract was a breach of his conditions of service. the . The Respondent notified exhibit, exhibit, “MMI6”, letter, “MMI5”, by Complainant’s Advocates that lieu salary month’s in the Complainant would be paid of non-renewal notice of of one contract and requested for bank details through which the be paid. The Complainant through his Advocates, money was to notified the Respondent that the payment of one month’s salary of conditions not provided for his notice was of lieu in service, exhibit, “MMMI8". The Respondent nevertheless, proceeded to deposit the -one month’s salary into the Complainant’s bank account. The Complainant refunded the © back money collectively, exhibited as, to the “MMI7" . Respondent as evidenced by documents _It was the Complainant’s position that him his to inform that Respondent renewed within the period of not less than one month amounted be to a breach of and was his to contract would not be the failure by the Contract of Employment his renewal of contract for a construed as further period of five years. automatic an his . The Complainant further averred that contract was unlawfully and maliciously terminated was based on the following grounds: his position that J5 the Respondent to failed That inform him of its decision not to renew his contract. 31** when the Respondent was mandated to neglected and by or do so March, 2021. ii. That the Respondent, as an afterthought by letter his expiry of the after days (10) ten issued contract, purported to pay him a salary of one month in lieu of notice not to renew his contract. give That Responderit’s failure the the to 318+ March, 2021, Complainant notice of the non-renewal of contract the gave by reasonable expectation that his contract would be renewed or had been renewed for another five years. — the That Respondent’ s Complainant belatedly notifying the the Complainant of the decision not to renew his shattered his reasonable expectation of contract continued employment. iii. iv. 9. It was on the basis of the sought. the Complainant Complaint and its supporting affidavit. reliefs set aforesaid averments that the out in the Notice of When cross-examined, the Complainant acknowledged that the he was referring to by breach of conditions of service, Respondent’s breach of the notice period. to clarify whether asked When 10. di terminated or came to that it was terminated. an end, da « The Complainant acknowledged his contract was the Complainant’s position was . that the contract of employment expired on the discretion of the Respondent. 30th April, 2021 and its renewal was at 13% The Complainant also acknowledged that under clause 12.2 of the conditions of service, there was no provision for the — 16. J6 automatic renewal of the contract for another period of five years. 14. The Complainant month's salary in lieu of notice was not in the conditions of reiterated that the payment of one service. The Respondent’s case 15. on Muyanje Kalumba Kawana 4 Human Resource Officer in the Respondent Agency, Was the witness called to testify on behalf Ete of the Respondent. It was the testimony of the witness that the Complainant correct position was not constructively, dismissed. Complainant contract would only be entitled to claim for constructive dismissal if was subjected to working under a hostile environment and Complainant’s expired. that was The The the nm he forced to resign under duress. Complainant the Further, 17. would be entitled to claim 18. been had not company dismissal policies where malicious an ulterior motive. Unfair termination followed or there was would arise were reasons given for termination were unfair or no reasons were given for termination. The Complainant was not entitled to loss of earnings on the ground that he was on a fixed term contract which had a For the same reasons, he was not entitled start an end date. to damages for loss of expectation continued employment. The witness conceded that there was a breach of contract The Complainant should period. respect to a the notice instead given was notice but a month's given 19. with have been shorter period. J7 20. To rectify the breach, following legal advice rendered oe the Respondent’ s the Complainant was paid a legal team, lieu of notice as per the common practice by month’s salary in in cases of termination. 21. When cross-examined, Respondent ought to before the expiration of renew it. have: written to the witness acknowledged that the the Complainant a month to the Contract if they wished not 22. The witness took the position that although there was 4 of the Conditions violation by the Respondent of Clause 12.2 of Service in not giving 4 month’ s notice. This did not amount to malicious dismissal. : 23. The event that witness acknowledged that an employee would not by Clause 12.2, in the be engaged, the employee would be notified prior to the expiration of the contract. The witness denied the assertion that the Complainant’s Contract was terminated without giving valid reasons. 24. was however acknowledged that there was nowhere in the effect that a contract would attract one month’s payment a provision to the contract where there was the violation of in lieu of notice. Bais It The witness acknowledged the it would mean that the contract was renewed and in order for the writing that not by to It would be Respondent, a new contract would be signed. Complainant to expect his contract to witness. took the Re-examined, Complainant’s contract came to be renewed. the position that the’ an end through expiration. With reference to the suggestion that by Clause 12.2 and the contract, an automatic renewal arose, was of contract always was it the in that renewal of 27. 28. witness’ position writing. J8 29. The witness also took the position that one month’s salary in Tieu of notice was illegal as not provided for in the contract. there was a renewal of contract. It was also confirmed that breach of contract on the notice period for non- The witness also acknowledged that have written to the payment of was it the it true was Complainant within the stipulated one month. the Respondent. ought that to SUBMISSIONS 30. Following the filed wr parties both respective cases. submissions which T I d am indebte have considered in of, the Respondent’s close itten submissions in support of their the detailed to Counsel for case, the my analysis of the evidence. 31. From the consideration of and submissions before me, evidence main issues framed for determination: the oral and affidavit the following are the (i) (ii) (iii) (iv) Whether the dismissed. Complainant was constructively there Whether the contract would be renewed. was legitimate expectation that Complainant the Whether dismissed or unfairly terminated. Whether the Complainant is entitled to reliefs was maliciously sought. J9 ANALYSIS AND DETERMINATION Whether the Complainant was constructively dismissed 32. In resolving this issue, the position of the law on dismissal. the starting point is stating constructive amounts to what 33. The position of the law in this jurisdiction was settled in the case of Kitwe City Council V William Ng’uni (1) where the Supreme Court adopted the test for constructive dismissal as set out in the case of Western Excavating Limited V Sharpe the Court of Appeal stated that the (2). In be determined by the test for constructive dismissal was the later case, to contract test, that is, a breach of contract which entitled the employee to resign. ‘did the employer's conduct amount to 34. Further, according to Selwyn’s Law of Employment, 14% Edition at page 399, following situation: © constructive dismissal arises in the terminates himself employee the “Where contract, with or without notice, in circumstances where he is entiried to terminate it without notice by reason of the employer’s conduct: this is known the dismissal,’ although ‘constructive for the as employee which constitutes a repudiation of resigns, it is the employer’s conduct the contract, the employee accepts and resigning. The employee must clearly indicate that been he repudiated by the employer... and if he fails to treating contract having the do is as repudiation the by by word or by conduct, he so, Claim that he has been constructively dismissed. is not entitled to J10 > '35. ° It is thus evident from the must his employee dismissal employment because of. frustration by the employer, terminate that an meaning of constructive" or her either by employment the employer breaking contract or making the thus forcing employee, contract. terms fundamental work environment unbearable to terminate employee to the of the the 36. Termination by an employee contract by dismissal. the employer I therefore find’ that is what as a result of breach of constitutes constructive the circumstances of this themselves to any interpretation of case do not lend constructive dismissal as the Complainant never resigned, but at the expiration of his contract of employment left employment on 30t? April, 2021. Having determined that constructive dismissal does in this issues arise for determination are interrelated, as such I will deal with my view that the next case, two it is not - Bin them as a whole. the contract Whether there was legitimate expectation that would be renewed and Whether the Complainant was maliciously dismissed or unfairly terminated 38. The parties are in agreement that there existed a binding for brevity) which was of Employment Contract signed by the Complainant on 29th April, “MMI1" Complainant’s the in (Contract Complaint. It is not for a fixed period of in dispute that a duration of 2021, affidavit the five dispute from the position of both part ies Contract was due to expire on 30th April, 2021. in as per exhibit, of support said Contract was not years. Tt is that the said JUL 39. The parties are is -to be read together in agreement that the subject Contract Companies Patents with the and Registration Agency Conditions of Service (Conditions of Service for brevity), exhibit, “MMI4” in the Complainant’s affidavit in support of Complainant. This fact is evident from Clause 7 of the subject Contract which stated as follows: “OTHER TERMS AND CONDITIONS Other terms and conditions contained in the Patents of and Companies Registration Agency Conditions Service, edition of 2012, the Grievance and Disciplinary ‘Procedures Code and other policy documents shall apply to form part of this Agreement.” the employee and shall 4Q. The parties are also in agreement that the Complainant by the Registrar and Chief Executive Officer was written to of the Respondent as per exhibit, "MMI2”,in the Complainant’s In the said letter dated Affidavit in Support of Complaint. his that advised Complainant was February,2021, the 4th Contract would be coming to in further that on line with Clause 12.1 the Complainant was to indicate if end an and 30t8 April, of the Conditions of be he wished to Service, considered for a new Contract. Clause 12.1 states as follows: “An employee may, three (3) months before the expiration of the contract inform the Human and Administration Manager Resource whether the employee intends to or does not intend to have the contract renewed. ” in writing Ji2 41. Pursuant to the aforesaid letter, the Complainant wrote as to the Respondent, .per back Complainant’s affidavit in Support. expressed his desire t the same capacity, pursuant t of Service. o exhibit, "MMI3" in the In the said letter, he be re-engaged by the Respondent in o Clause 12.1 of the Conditions 42. The Respondent that the agreement are in parties to the Complainant’s expression of inter er dated 23*¢ April, responded engagement by lett in the Complainant's Affidavit in Support of Complainant. The Respondent’s Registrar | and Chief Executive Officer, notified the Complainant that his contract would not be renewed in the following terms: exhibit, “MMI 4” 2021, est re- in PACRA. 0089 2374 April,2021 Mr. Maikisa M. Ilukena C/O Patents and Companies 5 Registration Agency P. O. Box 32020 LUSAKA Dear Mr. Ilukena END OF CONTRACT The above subject refers. Further to your letter dated 10t February, 2021 in which u expressed a desire to have your contract renewed as 2021, I regret to advise that yo it expires on 30™ April, the contract will not be renewed. On behalf of the Board and Management, I wish to thank you most sincerely for. the invaluable service you J13 - rendered to the Agency during period of your employment — and wish you the very best in your future endeavours. Yours Faithfully, Anthony Bwembya REGISTRAR & CEO Ce Board Chairperson £3 The parties are also in agreement that the Complainant should have at least given the Complainant one-month notice to renew the Complainants contract of the Conditions of Service its intention not of of per Clause 12.2 employment as which states as follows: "12.0 RENEWAL OF LONG TERM CONTRACT 12.2 Where the Agency has received communication from an employee of the intention to be re-engaged but the employee’s 'Agency contract, the Agency shail inform the employee at least (1) month before the subsisting contract expires. one intend to renew does that not 44. Reference was made in the Complainant’s submissions to Clause 2.2 of the Contract which states: the employer may terminate “Wotwithstanding clause 2.1, the contract without notice upon payment to the employee (3) months salary in lieu of notice.” of three 45. Further reference Conditions of Service which states: was made to Clause 61.1.1 of the J14 “76.1.1 The Agency may terminate employment by giving an employee a contract of | three (3) months by paying or notice written month’s salary in lieu of notice, except that the Agency . an contract terminate a shall employee without a valid reason.” of employment not of the employee three (3) 46. It was on the strength of the aforesaid, that it was argued that Clause 16.1.1 was drawn from the Employment Code of 2019, which gave an employer a mandate or duty Act, No. to terminate employment for no good reason. It was further argued that considering that Clause 1232 and clearly LONG-TERM CONTRACT” “RENEWAL OF not 47. titled was mandated the Respondent to give one renewal of Contract, there was (1) month notice of non- the 4 breach of contract by Respondent. 48. Further, it was the Complainant’ s a legitimate expectation of a renewal argument that he had on based contract several factors. 49. The Complainant) had served the Respondent for of about period continuous Resources and Administration Manager. He had had his requests as demonstrated by for renewal approved by urse of his long-dedicated the evidence on record during the co the Respondent, fourteen (14) years as Human 50 . service. subject Contract, Following the Complainant’s request for renewal of the Respondent only had one option which to notify the Complainant within thirty days before the, the non-renewal of nditions of the subsisting Contract of of expiration of the Contract pursuant to Clause 12.2 the was Co the . Service. Ji5 Sil. Therefore, in view of the fact that the Respondent failed plainant’s Contract to communicate its non-renewal of the Com in compliance with expiry its before Conditions of Service, the Complainant formed the reasonable a further expectation that his contract would be extended by five years effective the 15¢ May, 2021. Clause 12.2 the of D2 Reliance on this argument was made to the case of Heather Maureen Campbell Musariri V Ischool Zambia Ltd (3) where the Court decided as follows: that and taking was before it, the evidence expectation "By into account all the circumstances of the case, it found that the conduct of the Respondent created a Complainant’s reasonable contract would be renewed. A dismissal, therefore, occurred when the Respondent purportedly terminated the Complainant’s Contract of Employment as she had acquired a reasonable expectation that it would be renewed. It was the Court’s finding that reasonable this expectation and renewal or re-employment in that the case was as far as it relates unfair labour practices.” 5S* It was further argued that although Clause 12.2 of Conditions of Service did not provide for payment in lieu of therefore the was notice months’ payment of the and notice illegal. gave a clear intention to maintain the Complainant on The legitimate expectation that arose in this case a new contract on the case of Edward Mwango and Two Others ZESCO Ltd (4) same terms and conditions as the was guided in ,where the Court stated: J16 _the Defendant having continued to employ the. ~~ - the same terms and conditions when Plaintiffs on their contracts expired, the Defendant is deemed to have renewed ' the Plaintiff’s temporary contracts the ones that had expired by for a like period to effluxion of time and this period renewal is deemed were until terminated. This view is fortified by the fact that the Plaintiffs continued to work on the same terms temporary stated and conditions contracts continued their have the in as to contracts... The Complainant was in salary months’ therefore entitled to lieu of notice and payment of damages for 54. three of It for was the and loss expectation further argued that legitimately legitimate expected remuneration and all other damages as set out in the Notice of Complaint and Affidavit in Support of Complainant. the Complainant was entitled to exemplary damages on the ground that the Respondent had acted in contumelious failed to comply with the Terms and Conditions of service and further performed other illegalities by further violating the Contract by paying a months’ salary in the Complainant’s rights when of notice. regard of lieu The it. (5) was cited in of Attorney General V Martha Mwiinde case support of this position. ; The Respondent in its submissions counter argued that the Complainant’s argument on breach of contract suggested that when the Respondent failed to inform the Complainant one the Contract of Employment, 30t2 April, month before the expiry of Contract was automatically, renewed, before (1) the 2021, for on the fact that a further period of This was premised the Complainant sought remedies that were five years. Bl. J17 to termination of an available referred to Clause 16.1.1 of the Conditions of Service which also applied to subsisting contracts. that Complainant implied that the the existing contract Further, and had 56. Respondent’s letter dated 23%¢ April, 2021, amounted to or unfair termination unlawful subsisting Contract that had automatically been renewed, no reasons the termination were given. three months’ notice was given and not of the as for Complainant’s 57. (7) The Respondent in response made reference to section 54 of the Employment Code Act which provides as follows: (a) “A contract of employment expires- (a) At the end of the term for which it is expressed to made;” 58 . Clause 16.4 of the Conditions of Service was also called in aid. It states: "16.4 Termination by Expiry of Contract of — Employment A short-term or long-term contract of employment shall terminate by lapse of the term of the contract and the employee shall be entitled to the benefits set out in clause 16.1.3” 52 x It was thus, the Respondent’s position that Clause 2.1 of the Employment Code Act (7) of the Contract, section 54 and Clause 16.4 of the Conditions of Service were binding on (a) the parties. 60. It was further argued that as held in Davis Evans Kasonde V Zambia Revenue Authority (6), Clause 12.2 of the Conditions J18 not provide for automatic Contract. Clause The said of the Employment Code Act of provisions The Contract. did Service of Complainant’s section 54 (7) (a) and 3.0 of renewal of the did- not override... and Clauses 2.1 the Contract, relied on by Conditions of Service and the Employment Code, the Respondent were binding on force the parties and remained in 30t? April, of of the Employment Code Act as well as 2021. Section 54 Clause 16.4 of the Conditions of Service were also binding on the parties. the Complainant's on the expiry until (7) (a) Also on the strength of the Davis Evans Kasonde V Zambia fixed term a the expiry of law, Revenue Authority case, contract required no notice to at be given to an employee. the Complainant had the position that legitimate expectation that the Contract would be renewed for In response to reasons for the further five-year term the Respondent made Revenue a Davis Evans submissions, Appellant Kasonde advanced a similar argument. The Appellant in that case argued had a legitimate expectation of renewal of Contract previous reference where Authority that he Zambia the to V stated in the on two peen renewed Contract) had occasions. The Supreme Court however, rejected that argument and held as follows: because the 6l. 62. into of . Our perusal contracts entered all between the parties to this appeal show that, were all independent of each other and offered at the sole discretion of management without any input whatsoever subsequent contracts, in any way, referred to previous Appellant... and stand-alone meaning from were they none they one, the the the of J1i9 contracts, each with its own independent terms and conditions.” 63. Based on the aforementioned authority, the Respondent's position was that the Complainant’s fourteen years of service did not create legitimate expectation of renewal of contract because each contract was independent from each other and had contract the date a remained at the discretion of the Respondent. specific renewal expiry each and of 64. Further, that the facts in the case of Heather Maureen Campbell Musariri V Ischool Zambia Limited ,that was relied on by the Complainant were very different and distinguishable the from the facts in this case. In the aforementioned case, the Complainant was Court working beyond the expiry of the contract and thus held: found -that allowed to continue ‘... An employee who continues to work, and is after expiry dismissed contract now has a right to sue based on legitimate or reasonable expectation that the contract would the of the fixed term be renewed...” 65. Respondent the It was the position of conclusions were reached in the cases of Jacques Chisha Mwewa Edward Mwango and Two Others V ZESCO V Attorney General (7) (8) where Limited and Moses Choonga V_ Z2ESCO Recreation Club that the common thread was continue working after the expiry of their contracts. employees were allowed to the that similar 66. . It was on the basis of the aforesaid authorities that it as submitted current was regards legitimate expectation of renewal of contract is that the employer may only recognise legitimate expectation where jurisprudence Zambian that the g ae J20 the employer allowed the employee to continue working after the basis the expiry of This was on the previous contract. of expiry the contract, the relationship after that between the employer and employee terminates. the OTs In the case at hand, Respondent's intention the Complainant was informed of the before Contract the renew to not 68. by the allowed was not Complainant the Further, to 2021. 30% April, expiry. Respondent to continue working beyond the expiry date of the Contract, a new Further, that the Complainant was never assured of Contract by the Respondent and neither did the last Contract be refer Contract subject would promise. that the any The Complainant was_ on ‘tite contrary aware from the renewed. outset that the decision to renew the Contract could go either way in that he could have been or could not have been awarded sole discretion. The circumstances of the Complainant’s case did thus not lend a legitimate expectation of themselves renewal of contract. the Respondent's the creation of new Contract as was to it a 69. It was Respondent entitled to any of on the basis of the aforesaid arguments that the not the formed the the remedies sought which remedies were Complainant's misapprehension Complainant that view that the was the on premised Contract was automatically renewed for five years before 30% April, belated communication 2021. of The 70. a further period of the non-renewal of the Complainant’s Contract did not amount to termination of Contract which came to April, 2021 in line with section 54 end by effluxion of time, (a) (7) n a the on 30* of the Employment the Contract, of Code Act Clauses 16.0 and 16.4 of the Conditions of Service. read together with Clause 2.1 as J21 Mkeas is Turning to the resolution of issues under this head, evident the Complainant’s submissions from that it the Complainant's position that he unfairly terminated is based was maliciously dismissed or the argument that the on Respondent Complainant's Contract one failed to communicate the non-renewal of the (1) month before its expiry. V2 Further, as submitted by the Respondent, the non-renewal from the Complainant’s perspective which had been letter of 234 April, 2021, the Contract, deemed as termination of renewed based on the Complainant’ s legitimate expectation. was Has the Complainant established a case of malicious dismissal and unfair termination? is Complainant’s case The clearly anchored on the principle of legitimate expectation of renewal of term Contract of Employment. In this jurisdiction, the there principle of legitimate expectation in the renewal of fixed in resolving the disputes between term contracts. Therefore, this Court will have to rely largely on decided the parties, no legislation on is the fixed 73% 74. 7S. cases. 76. In other jurisdictions, legislation. Tt through the principle has been clarified the progressive would be if incorporate the Employment principle of legitimate expectation, in view of the fact that amended ‘could Code Act, be to it is 77. (3) (b) a recurrent cause of employment disputes. In our neighbouring jurisdiction, Zimbabwe, section 12B Chapter 28:01 Laws the of of Labour Act, the of provides that Zimbabwe, been unfairly dismissed if fixed duration, contract of an employee will be deemed. to have on termination of an employment legitimate had employee a the and another person was expectation engaged instead of the employee. of being re-engaged J22 78. section 186 in South Africa, Similarly, defines dismissal from Labour Relations Act employment to include, where-an Employee reasonably expected the Employer to renew a fixed term contract of employment on put the employer offered to renew the same or similar terms, No. 65 1995, of (1) (b) of the on less favourable terms or did not renew it that hold jurisdiction this in Decisions it 79. carry no expectation at all. fixed term of renewal. contracts of employment, This position was well set out in its Respondent Authority V Dorothy Mwanza and Others Kasonde V Zambia Revenue Authority. submissions, in the cases cited by the namely, Zambia Revenue Davies Evans (9) and In Zambia Revenue Authority V Dorothy Mwanza and Others Supreme the renewal of Court fixed this had say on to 80. the term Contracts: “1. Each employee was to hold office for a period of five years with effect from jst February, 2001. Thus, at the end of the five-year period, there was no contract of employment. The condition of service relating to for contract” does provide not The offer of a new contract automatic Noffer of 2. new renewal of contracts. in the Appellant’s discretion.” is 8l. The Supreme Court in Davis Evans Kasonde V Zambia Revenue Authority, found that the fixed contracts in that independent of each other and offered at the sole discretion ment without any input whatsoever required from the case were of manage stand-alone fixed contracts and ~ here was nothing that suggeste expired by d that Appellant. effluxion of time The J23 ‘sutomatically’ as a mere formality be the Appellant would granted a new contract. The discretion of ea. an Employer to renew or not to renew a fixed term contract can however be challenged on limited grounds. Of relevance to this case is the ground of legitimate expectation. 83 « The resolution of the Complainant’s position that he was maliciously dismissed and unfairly terminated, lies in first have determining reasonable or legitimate expectation that his contract would - be renewed. Complainant whether fact did the in 84. is It he on liés trite of proof that the burden who asserts the existence of facts. In civil matters, the standard a burden of probabilities. As indicated in is satisfied on the Halsbury’s Laws of England (4% Edition) at paragraph 19. (1) ‘satisfy ‘a party bearing the legal burden of proof must a Judge of the likelihood of the truth of his case by adducing a greater weight of evidence than his opponent, and (2) adduce evidence sufficient to satisfy them to the required standard of degree of proof.’ 85. in legitimate Accordingly, the burden of proof is always on the employee. The employee must demonstrate the existence of factors as set-out in Grogan’s ‘Workplace Law’, which was rélied on by the Court in Heather The expectation claims, Zambia Limited . Maureen Campbell Masariri position of the law was set-out as follows: v Ischool of clearly expectation reasonable notion existence “The suggests an objective test: the employee must prove a the reasonable person to anticipate renewal. The facts that found a’ reasonable expectation will clearly differ from case to case but will mostly commonly that...would facts lead of J24 promise prior some form of the of conduct take practice... The to what with the employee at the time the Contract was concluded thereafter, employer in dealing - the employer said the relationship, terminating the .motive the and for the or past factors to be relationship considered. ” has been cited as 86. 87. It does or anticipation. It follows therefore that legitimate expectation must be rational and objective reason induced by by conduct. such based on the employer either expressly. or not encompass a cogent, factors hope, as, this jurisdiction, in Further, desires demonstrated in the Supreme Court decisions of Zambia Revenue Authority V Dorothy Mwanza and Others and Davis Zvans Kasonde repeated past renewals of fixed V Zambia Revenue Authority, a claim based on legitimate contracts cannot be expectation. a basis for wishes, as 88. Further, it is clear that proved, our in where jurisdiction, of termination is after occurs permitted expectation is an employee legitimate employment beyond the expiration date of’ a past contract. Maureen Campbell Musariri V ‘Ischool Zambia Limited, Chisha Mwewa V Attorney General, Edward Mwango and Two Others V ZESCO Limited) Turning to I found the case of Davis Evans Kasonde V Zambia Revenue Authority to the issue at hand, the resolution of (See Heather Jacques work to the main principles set Although, of assistance. am of the consideration be this case, have been referred to above, I brief , facts a demonstrating why I form that the said authority will assist this Court to resolve issues under this head. the company on specific fixed term contracts for of Respondent the a total period The Appellants past of the view that in relevant be Appellant fifteen served month. years case, will this (15) and one In out in 89. 90. J25 91. 92. 93: contracts had been renewed: upon request and the Respondent at its discretion renewed the contracts as provided for in terms of each Contract. on contract The Appellant three months before the expiration of application contract in last: renewal notice of contract which required him to intention to renew contract. The contract was expiring on 30% September, 2015. give three months’ compliance clause with tyme i made 18% his the for in of an a : The Respondent only sat to consider the application for 2021, which was three days before The Respondent notified the letter of the contract. the non-renewal 27th September, contract the by renewal on the expiration of Complainant issued on of 27*8 September. 2021. he and had that Further, The Respondent argued that the two consecutive contracts had been habitually renewed and he had served the Respondent a legitimate expectation diligently. that his contract would be renewed based on his service and He had also argued that the decision of non- past renewals. the. renewal was not communicated to him before the expiry of the Respondent’s own Human Resources contract, regular, established Policies or activity as process consistent and predictable conduct, regards the procedures, to ‘be followed by the Respondent when the reasonable renewing contracts. expectation which was legitimate, logical and valid. This formed the basis of in breach of Procedures: which other awarded The Supreme Court as noted above, found that they all contracts entered into by: the Appellant were independent of the each Respondent. On the facts of the case, ‘the Complainant never demonstrated the that Respondent and that none of the previous contracts in any way stand-alone one, referred discretion by -anyone previous assured behalf acting each sole and the was the was at of he to as on of a a4 94, contract. J26 ~ + 95 5 96. The Supreme Court further observed that the Appellant was aware that he was. serving a Fixed term contract and. must © award him have been aware that the Respondent’s decision to in that he could or could not a contract could go either way. be awarded a new contract in the Respondent’s sole discretion. With regard to the Appellant’s grievance that he was not the the Respondent's notified of expiry of his contract, the Supreme Court noted that even if it were to accept that argument, it would not alter the fact that he was never dismissed because his contract of employment simply ran its course and was no longer in existence. by way decision on before time, of hand, Turning to the facts of just like the the that note I in the aforementioned comparison, his. past Appellant the Complainant, just like that Contracts renewed. the non-renewal of Appellant received late. communication of The Complainant and the Appellant both formed the Contract. the view that that their Contracts had been renewed based on their the communication ‘of -the non-renewal Further, belated case had had of the at case Complainant Contracts. the of in view therefore, of On the this facts case, fact that the Contract which thé personally agreed upon and it was incumbent upon the signed expired on 30% April, 2021, Complainant to demonstrate on a balance of probabilities that after he indicated his intention to have his contract renewed the Respondent through by letter dated 10% February, its conduct either by words or action held itself out that it was going to renew the Contract of employment. 2021, My first observation is that the Complainant’s Contract did not provide an automatic the of Employment as per Clause 3, the Contract. The decision to renewal of sole discretion of the Respondent and the Complainant was not given any leeway to have a say in the renewal of the Contract. on 28 April, The Complainant by appending his signature renew was at J27 2021, agreed to be by bound by Clause 3. This fact is further, when cross~- , the Complainant's acknowledgment, supported by examined that renewal is not automatic but at the discretion of the Respondent. 100. Turning to the law on long-term or (7) very section instructive that a contract of employment expires at the end of the terms which it was expressed to Employment be made. Code Act the of (a) is whilst renewal of the Contract on the facts 101. Therefore, fixed contracts, on the other hand of this case was not automatic, what was was the demonstrates, (7) (a) section as of to of ‘on was The the «30th 12.2 duty 2021. Clause April, Contract automatic expiration the | pursuant Respondent’s Conditions of Service, to inform the Complainant at least a its non-renewal. month before the expiry of That is that the contractual relationship of the parties was coming to an end on the appointed date. It should be noted that there is need to be careful in the use of word/jargon under the Employment Code Act. A long- it does not terminate. term contract expires on a fixed date, is for this reason that the Employment Code, provides and the Contract of (1) section under It termination a contract of for 102. 103. expiration of a contract under section 54 104. A contract whilst it (7). is in existence or extant may be be contract current can the terms of the contract or py either party as provided for The Act. Employment Code the be terminated whilst it an existing or Thus, terminated. terminated either according to in accordance with the (1) law of section under Complainant's contract was liable to was extant and not after expiration. 105 s Indeed, the non-renewal of a fixed term or long-term contract cannot amount to termination of contract because J28 upon effluxion of time no contract exists. According section (a) of the Employment Code Act, no notice to is Revenue required Kasonde Zambia Evans Davis (See V Authority) . 106. was did The that view maliciously was his belief that Complainant’s he dismissed and unfairly terminated based on not Respondent the pursuant the Conditions of Service respond to his expression of interest 2021, to be re-engaged on time and only did so the (7) which considering that the Complainant’s past the Respondent renewed, . the had been the weneonable expectation that the Contract had 23rd April, expiration Contract. contracts Further, silence before Clause seven days 12.3 was the to on of of of him gave been renewed. . 107. The Complainant relied on the case of Heather Maureen Campbell Musarari V Ischool Zambia Limited to buttress his point. - 108. In light of the ‘Davis Evans Kasonde V Zambia Revenue a had he that the Complainants Authority decision, legitimate expectation of renewal of. contract merely on before notify Respondent’s failure to month him one claims the the of the and 30th April, Contract past on expiration renewals did not meet the threshold required at law. The facts in the Heather Musariri case as submitted are distinguishable case the from continued to work beyond the expiration date of the Contract, the in whilst Complainant worked beyond, 30** April, no evidence Complainant present there 2021. hand that case that case the the at as in is this present case, The Complainant in was required to adduce cogent evidence that he was induced to belief that his no other evidence that There contract had been renewed. the. can this its assessment of point to in whether Court is _ 109. J29°. 110. by other conduct induce Respondent did either expressly or the Complainant to believe that his contract had been renewed. of I further, refer to the Kenyan Court of Appeal case The Registered Trustees of the Presbyterian Church of East The Presbyterian Foundation V Ruth Gathoni Ngotho- whether dealt question the Court the where (10) Africa, Kariuki give notice failure to amounted to renewal. on this Court, but it it for additional assistance. The Court of Appeal stated: fixed term contract of am aware this decision is not binding I of persuasive value and I shall turn to expiry of a to of inform Respondent “ We concur with the trial Judge to the extent that as per the contract of service the Appellants’ were their the required intention of whether they would renew her contract same. the three months _prioz However, we respectfully disagree that the failure Why do so amounted to an automatic renewal. to we say so? It is clear from the wording of the above the hospital’s human resource clauses as well as the mutual manual that the renewal was subject to consent of the Respondent as the employee and the expiry of the do to hold To as the employer. Appellant’s would be tantamount to holding at servitude a party who wishes to exercise his/her right of termination in terms of the contract as observed by this Court words BH ccscesee Further Court this own its otherwise ‘we have carefully considered the law in......held: and the facts surrounding this case, suffice to say not envisage a on employment does law the that situation where employer (and vice versa) an employee is “forced” upon an and case law is rife on J32 I acknowledge that Rule 44 of the Industrial Relations ... 120. des Court provi of | unreasonable -delay, for payment of costs where a party has been improper, guilty vexatious or unnecessary steps in any proceedings, or of other unreasonable conduct. Having considered the circumstances of I find nothing that justifies an order for payment the case, of costs. Each party shall accordingly, bear their own costs. taking of of 121. Leave to appeal is hereby granted. DATED THIS 29%". . DAY OF AUGUST, 2022 Jao 110. by other conduct induce Respondent did either expressly or the Complainant to believe that his contract had been renewed. case of I further, refer to the Kenyan Court of Appeal The Registered Trustees of the. Presbyterian Church The Presbyterian Foundation V Ruth Gathoni question Africa, the dealt Court the where (10) Kariuki of East Ngotho- whether failure to give notice of expiry of amounted to renewal. I on this Court, but it a fixed term contract am aware this decision is not binding of persuasive value and I shall turn to it for additional assistance. The Court of Appeal stated: to of inform Respondent “ We concur with the trial Judge to the extent that as per the contract of service the Appellants’ were their the required intention of whether they would renew her contract same. the three months prior to However, we respectfully disagree that the failure an automatic renewal. Why do to we say so? It is clear from the wording of the above clauses as well as the hospital’s human resource the mutual manual that the renewal was subject to so amounted to expiry of the do consent of the Respondent as the employee and the To as the hold otherwise employer. Appellant’s would be tantamount to holding at servitude a party who wishes to exercise his/her right of termination in terms of the contract as observed by this Court words DMs + in......held: ‘we have carefully considered the law and the facts surrounding this case, suffice to say not envisage a on employment does Further Court this its own law the that situation where an employee is “forced” upon an employer (and vice versa) and case law is rife on J31 ‘Le. It follows therefore that the Complainant is not entitled to the following reliefs claimed: i) A Declaration that the Complainant was constructively dismissed; ii) Payment of 60 months’ salary with all allowances as damages for constructive dismissal; iii) In the alternative a declaration that Complainant was dismissed maliciously and the for unfair termination of his employment; iv) Vv) Damages for loss of earnings; Damages for emotional stress; vi) Damages tiie loss of expectation for continued employment; — vii) General damages for breach of contract. L117. “118. The aforementioned claims are accordingly DISMISSED. I however, find that the Complainant under the circumstances of this case, is entitled to a relief under section 85A (d) of the Industrial and Labour Relations Act, Chapter 269 of the Laws of zambia. This provision empowers Court to grant any remedy that it considers to be just and equitable in the circumstances of the case. Pursuant to section 85A (d) of the Industrial and Labour Relations Act, I find that an award of. one months’ salary as damages would > be adequate compensation Respondent’s for the breach of Clause 12.2 of the Conditions of Service. 119. The sum due shall attract interest at short term bank deposit rate from the date of 7th September, 2021 to the date of Judgment and thereafter at the current lending rate as determined by the Bank of Zambia until full payment. the notice of complaint, J32 Costs 120. I acknowledge tha & Rule Court provides for payment of guilty unreasonable of delay, of the Industrial Relations .. costs where a party has been or of taking improper, ecessary steps in any proceedings, or of other g considered the circumstances of find nothing that justifies an order for payment bear their own costs. vexatious or unn unreasonable conduct. Havin the case, of costs. Each party shall accordingly, Leave to appeal is hereby granted. I 121. DATED THIS 29*®. DAY. OF AUGUST, 2022 ye