Tembo v Zambia Information and Communications Technology Authority (Appeal 226 of 2013) [2016] ZMSC 279 (15 July 2016)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) APPEAL NO. 226/2013 SCZ/8/163/2013 BETWEEN: JUDITH MUKAYA CHINYANTA TEMBO APPELLANT AND ZAMBIA INFORMATION & COMMUNICATIONS TECHNOLOGY AUTHORITY RESPONDENT CORAM: Mambilima, CJ, Kaoma and Mutuna, JJS On: 10th May, 2016 and 15th July, 2016. For the Appellant: Mr. B. Gondwe of Buta Gondwe & Associates For the Respondent: Mr. M. Lungu and Mr. B. Mpenda - In-House Counsel JUDGMENT KAOMA, JS, delivered the Judgment of the Court. Cases referred to: 1. Audrey Wafwa Gondwe v Supa Baking Company Limited (2001) Z. R. 57 2. Development Bank of Zambia v Maambo (1995-1997) Z. R. 89 3. Zambia Oxygen Limited and another v Chisakula and others (2000) Z. R. 27 4. James Mankwa Zulu and others v Chilanga Cement Limited - Appeal No. 12 of 2004 5. Sam Amos Mumba v Zambia Fisheries and Fish Marketing Limited (1980) Z. R. 135 6. Siamutwa v Southern Province Cooperative Marketing Union Limited and another- Appeal No. 114 of 2000 (unreported) 7. Chola Chama v Zambia Electricity Supply Corporation Limited (2008) Z. R. 222, Volume 1 8. Henry Nsama and others v Zambia Telecommunications Company - Appeal No. 21 of 2012 Works referred to: J2 1. Chitty on Contract, 27th Edition, Volume 1, paragraphs 12-103 and 12-104 This is an appeal against a judgment of the Industrial Relations Court (IRC) delivered at Lusaka on 29th May, 2013. The background to the matter is that the appellant, who was a former employee, filed a complaint in the IRC against the respondent claiming the following relief: 1. Payment of salary arrears which were underpaid at salary scale effective 1st April, 2011; 2. Payment of three (3) month’s salary in lieu of notice as per law should include allowances and at salary scale effective 1st April, 2010; 3. Payment of terminal benefits based on the new salary as per increment effective April, 2010; 4. Payment of the element of the complainant’s terminal benefits which was supposed to be paid at the DeputyDirector-General’s scale that is for two years two months from 12th May, 2008 to 30th June, 2010; 5. Payment of acting allowance for the period 1st April, 2010 applicable to the Deputy Director-General; 6. Payment of fuel allowance for the period 12th May, 2008 to 30th June, 2010 at the scale applicable to the Deputy Director-General; 7. Payment of retention allowance for the duration of the appellant’s service to the respondent at 20% of her basic salary at termination; 8. Refund of tax deducted from the appellant’s terminal benefits; 9. Refund of salary deducted from the appellant’s benefits for the period of 24th November, 2010 to 30th November, 2010; 10. Payment of Christmas bonus; 11. Sale of laptop to the appellant in keeping with company practice; 12. Interest at the current bank rate from the date of purported termination to date of payment; 13. Damages for dismissal; and costs. At the trial, the appellant testified that she was employed by the respondent from 2nd April, 1999 up to 23rd November, 2010. She held the position of DirectorLegal and Enforcement and was in senior management. During the period in question she also acted for administrative convenience J3 as Director-General, Deputy Director-General, and Director-Licensing and Consumer Affairs. She also executed several renewable fixed term contracts. The last contract was for a period of three years from 1st April, 2008 to 31st March, 2011. On 23rd November, 2010 four months before the expiry of the contract, the appellant received a letter from the board chairperson of the respondent terminating her employment. The letter was initially dated 8th October, 2010 but that date was crossed-out and a new date of 8th November, 2010 inserted. The termination was with immediate effect and the appellant was required to hand over company property within 14 days. The termination letter also stated that her benefits would be paid including sale of her personal-to-holder vehicle. However, no reasons were given for the termination of the contract of employment. It was the appellant’s evidence that she was entitled to three (3) months’ salary, that is, basic salary and allowances in lieu of notice, salary arrears which she said were effected on 1st April, 2010, gratuity at 25% of her gross pay for the entire contract period, tax on gratuity which the respondent should have borne, leave pay, repatriation allowance, retention allowance, acting allowance, and fuel allowance, Christmas bonus, and purchase of the laptop she had been using. J4 According to the appellant, the termination of employment was done in bad faith and wrongly because of some legal guidance she gave regarding composition of the board of the respondent. Further the termination letter was signed by the board chairperson instead of the Director General; and furthermore, the termination was effected by the Ministry of Transport and Communication which was not her employer. The respondent called three witnesses. RW1, the Manager Human Capital and Development confirmed that the appellant was employed as Director Legal and in 2008 she was appointed to act as Deputy Director General. She held that position for slightly more than two years as the incumbent was acting Director General. In July, 2010 a Director General was recruited and the appellant reverted to her substantive position. Further, according to RW1, the appellant’s employment was terminated in accordance with clause 2 of her contract of employment and she was paid three months’ salary in lieu of notice. And the letter terminating the appellant’s employment was signed by the board chairperson, while the Ministry of Transport and Communication provides overall guidance, direction and oversight to the respondent and the Minister of Transport and Communication appoints the board, which in turn appoints other members of staff of the respondent. J5 It was also RWTs evidence that the appellant was paid terminal benefits based on her substantive position; and that retention allowance was payable to professional staff from managers going down whilst those in senior management from Director General and Directors and employees on contract never received the allowance as it was embedded in their salaries.lt was also his testimony that while there was no written policy excluding senior management from retention allowance, no senior management staff claimed for the allowance during the 10 years the appellant was in employment. And according to RW2, the respondent’s Manager - Finance, the salary adjustments were made in 1998 and only permanent staff and technical staff were eligible for retention allowance. RW3, the respondent’s Payroll and Staff Affairs Officer, testified that he calculated the appellant’s benefits; that tax was paid by the respondent as per institutional policy; and the appellant was paid acting allowance for the whole period she acted. The lower court considered the evidence and the various claims made by the appellant and held, in brief, as follows: 1. There was no wrongful and unfair termination of employment as the appellant’s contract of employment provided for termination and there was no evidence to prove that the advice the appellant gave triggered the termination. J6 2. There was no underpayment of terminal benefits because at the time of termination of employment, the substantive appointment of the appellant was that of Director - Legal and she was paid based on the substantive position; and she could not be paid benefits at the scale of the Deputy Director when she was no longer holding that position. 3. The appellant was paid three months’ salary in lieu of notice based on her substantive post. She had not justified why allowances should be included when paying notice pay and which allowances. 4. The appellant was not entitled to retention allowance because the evidence showed that she was in senior management and senior management staff were not entitled to the allowance as it was embedded in their salaries, and her contract of employment did not provide for retention allowance. 5. It was the respondent’s practice that when an employee was leaving employment; the laptop assigned to them is sold to the employee. 6. The appellant was not in employment when the Christmas bonus fell due, and so she was not entitled to it. 7. There was no justification for the appellant to seek salary arrears effective from 1st April, 2011 when she was no longer in employment. 8. Acting allowance for the period 1st April, 2010 to 30th June, 2010 should be paid if not yet paid and if the period covered the days the appellant acted as Deputy Director General. 9. Fuel allowance for the period of 12th May, 2008 to 30th June, 2010 at the scale applicable to Deputy Director General be paid, if she acted in the office of Deputy Director General and she was not paid the allowance 10. There was evidence from RW3 that no tax was deducted from the appellant’s terminal benefits because tax was paid by the respondent. 11. There was no justification for claiming a deduction of salary (if it was deducted) for the days the appellant never worked because her last date was 23rd November, 2010 when the termination letter was handed to her. 12. Terminal benefits (if not already paid) be paid to the appellant at the substantive scale she held effective April, 2010 or on pro rata basis. 13. Interest to be paid at the Bank of Zambia rate from date of complaint until full payment on all monies payable. J7 Dissatisfied with parts of the decision of the lower court, the appellant appealed to this Court advancing the following four grounds: 1. The court erred in law and in fact by failing to determine the issue of the fact that the payment of the appellant’s terminal benefits did not include in the computation of the same the element of allowances and the acting allowance as per the respondent’s own Board resolution. 2. The court erred in law and fact by failing to order that payment in lieu of notice was also to include all allowances that the appellant was entitled to in her employment. 3. The court erred in law by failing to order that the appellant be paid retention allowance. 4. The court erred in law and in fact by not awarding the appellant the salary increment which was effective the period before the termination of the appellant’s contract of employment. Both the appellant and the respondent filed written heads of argument on which they relied. In support of ground one of the appeal; Mr. Gondwe submitted that it is not in doubt that the appellant was serving in the capacity of Acting Director General at termination of her contract but her benefits were calculated at a lower scale of Director-Legal, her substantive position. That the respondent did not deny this fact but justified the calculation by saying though the board of directors approved this condition of service, the Minister responsible had not given his sanction. We were invited to note that it was the duty of the respondent, and not of the appellant, to obtain the relevant sanction of the Minister. J8 It was also argued that a party cannot rely on its own default as was held by this Court in the case of Audrey Wafwa Gondwe v Supa Baking Company Limited1; and that the appellant should not therefore be prejudiced in her entitlement as she faithfully performed her part of the contract according to the mandate given to her. It was further submitted that the board resolved on 8th November, 2002 that acting appointments should be for a specific period and should not be for more than a period of six months; and that where one acted beyond the stipulated period, then retirement gratuity should be paid for the applicable period at the rate applying to the vacant position at the time of reverting the employee to the employee’s substantive position. Whilst Mr. Gondwe conceded that a person can only be paid terminal benefits on the basis of their substantive position, he argued that terminal benefits are governed by conditions of service founded on a contract between the employer and employee and that courts must seek to enforce them as far as possible. He cited the case of Development Bank of Zambia v Maambo2 where he argued the court held that even in contracts relating to employment in institutions, we should not lose sight of the fact that employees work for consideration of what is in conditions of service. J9 Mr. Gondwe further submitted that since the appellant’s employment was terminated after she had acted for more than two years without being reverted to her substantive position, only her gratuity for the first six months should be calculated at the rate of her substantive position while the rest of the months should have been at the scale of the position in which she was acting. The case of Zambia Oxygen Limited and Zambia Privatization Agency v Paul Chisakula and others3 was cited for the proposition that parties should not have their terms of contract varied to their detriment without their consent. Mr. Gondwe argued grounds two and four together. He contended that at the time of termination of the appellant’s contract, the respondent undertook to pay her three months’ salary in lieu of notice but this was paid at her substantive rate and excluded all her allowances despite having acted for over two years as Deputy Director General. We were referred to the case of James Mankwa Zulu and others v Chilanga Cement Limited4, where this Court put the matteras follows: “Now there is no debate as to the meaning of ‘salary’. The word salary includes allowances that are paid together with the salary on periodical basis by an employer to his employees.” In support of ground three, Mr. Gondwe argued that clause 2.67a of the respondent’s conditions of service at page 87 of the record of appeal provide for a retention allowance at 20% of basic salary for staff that qualify J10 for it; and that the appellant was in such category but the allowance was never paid to her during the period of her service. It was argued that the respondent, in the lower court, alleged that the allowance was ‘embedded’ in the salaries for senior staff in 2002 but when the appellant executed her contract of employment in 2008 the allowance was one condition that was specifically communicated to her as accruing to her when she was availed the conditions of service relating to her position. To buttress this argument, Mr. Gondwe cited the case of Sam Amos Mumba v Zambia Fisheries and Fish Marketing Limited5 where it was held that where the parties have embodied the terms of contract into a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written document. Mr. Gondwe further quoted Chitty on Contract, 27th Edition, Volume 1 at paragraph 12-103 where the learned authors state that: “Where the word of a written instrument are free from ambiguity in themselves.....and contract is always to be confirmed according to the strict, plain common meaning of the words themselves ... and that in such a case evidence dehors the instrument, for the purpose of explaining it according to the surmised or alleged instruction of the parties to the instrument, is utterly inadmissible....” Counsel further quoted paragraph 12-104 where the learned authors put the matter as follows: A Jll “Where the words of a written contract have a clear and fixed meaning not susceptible to explanation, extrinsic evidence is not admissible to show that the parties meant something from what they have written.” We were urged to overturn the judgment of the lower court and to allow the appeal. In response to ground one, Mr. Lungu submitted that there is irrefutable evidence that the appellant was paid her contract gratuity in accordance with her conditions of service and the law and as per her substantive position. That she was employed on 2nd April, 1999 up to 23rd November, 2010 when her contract was terminated, five months after having been reverted to her substantive position of Director Legal and Enforcement; and the lower court correctly observed that a person can only be paid terminal benefits on the basis of his or her substantive post. It was also Mr. Lungu’s argument that the Board Resolution referred to by the appellant only applied if an employee was acting in a higher position at the time of employment termination and did not apply where an officer had already been reverted to his or her substantive position long before employment termination. In response to ground two, Mr. Lungu argued that the computations at page 46 of the record show that an amount of K67, 081,480.14 was paid J12 as three months’ salary in lieu of notice; and that the appellant failed to justify the basis of her claims and the lower court accepted RW3’s testimony that he included allowances in the calculation of the benefits. On ground three, Mr. Lungu submitted that the lower court correctly applied its mind to the circumstances surrounding the payment of retention allowance and rejected the appellant’s claim on the following sound reasons: firstly, the court rightly accepted the incontrovertible testimony of RW1 that the appellant was in senior management and that employees in that category were not entitled to retention allowance as it had been imbedded in their salaries, which testimony was confirmed by RW2. Secondly, the appellant’s contract of employment did not provide for retention allowance and; thirdly, the merging of retention allowance with the salary for senior management staff in 1999 amounted to a revision of conditions of service which cannot be treated as extrinsic evidence. It was further Mr. Lungu’s contention that the appellant never received the retention allowance with her full knowledge and or approval as principal legal advisor to the respondent for over eleven years, and was also in charge of the Human Resources section for over a period of two years, and when she observed that the allowance was not being paid, she »• J13 was entitled to abrogate the contract and failure to do so for over a decade meant that she had waived her right. Regarding ground four, it was Mr. Lungu’s contention that it is undisputed that the revised salaries were approved on 3rd December, 2010 and at that time; the appellant was no longer an employee of the respondent, the contract having been terminated on 23rd November, 2010. Therefore, the appellant’s terminal benefits could not be computed on the basis of the revised salary for want of consideration. For the foregoing position, Mr. Lungu cited the case of Siamutwa v Southern Province Cooperative Marketing Union Limited and Finance Bank (Z) Limited6, where the Court said that: “The appellant never rendered any services to the first respondent from the time that his services were terminated on 20thMay, 1999 up to the date of judgment in May, 2002. There would, therefore, be no consideration for the money which could be paid to the appellant.... In our view, this would amount to unjust enrichment”. Mr. Lungu also relied on the case of Chola Chama v Zambia Electricity Supply Corporation Limited7 where again the court said that: “...during the period an employee is on termination, there is no consideration to justify paying the employee; it would be unjust enrichment”. Furthermore, Mr. Lungu quoted the case of Development Bank of Zambia v Maambo2 wherein this Court held, inter alia, that the respondent's notice pay had to be calculated on the old salary scale J14 because he received his notice on 6th November, 1992 and whatever happened to other employees who continued in employment could not affect the completed obligations between the parties as there was no consideration and no continuing contract between them. Mr. Lungu also urged us to order a refund of salary arrears which were allegedly wrongly paid to the appellant and part of her gratuity which was overpaid by wrongly computing it on the basis of the revised salary. In his heads of argument in reply, Mr. Gondwe argued on ground one, that the Board Resolution at page 97 of the record of appeal is unambiguous and that the submissions by the respondent fly in the teeth of this resolution. He again quoted the case of Sam Amos Mumba5 and the case of Henry Nsama and others v Zambia Telecommunications Company8 where this Court stated, inter alia, that if express terms are perfectly clear and free from ambiguity, there is no choice to be made between different possible meanings; the clear terms must be applied even if the court thinks some other terms would have been more suitable. On grounds two and three, Mr. Gondwe repeated his arguments in the main. And on ground four, he argued that the appellant was entitled to the December, 2010 salary increment which though effected after she had left was backdated to 1st April, 2010. J15 We have considered with a lot of care the judgment appealed against, the arguments of counsel on both sides as well as the authorities cited. It is not in dispute that the appellant worked for the respondent, on fixed term contracts, from 1999 up to 23rd November, 2010 when her last contract of employment was terminated. What is in dispute is whether or not she was properly paid what was due to her as terminal benefits. We propose to deal with the grounds of appeal individually. The kernel of ground one of the appeal, is that the computation of the appellant’s terminal benefits did not include the element of allowances, including the acting allowance as per board resolution. On the other hand, the substance of Mr. Gondwe’s argument is that the appellant was serving in the capacity of Acting Director General at termination of her contract but her benefits were calculated at a lower scale of Director-Legal. On his part, Mr. Lungu contended that the appellant was paid all her dues. First and foremost, there was undisputed evidence, before the lower court that the appellant was reverted to her substantive position of Director Legal and Enforcement in July, 2010, five months before termination of her contract of employment. Therefore, it cannot be correct; as argued by Mr. Gondwe, that the appellant was serving in the capacity of Acting Director General at the time of termination of her contract. J16 Moreover, the evidence shows that the appellant acted as Deputy Director General from 12th May, 2008 to 30th June, 2010 pending the recruitment of a Director General and the Deputy Director General was the one acting Director General. Therefore, there was no basis whatsoever for the appellant’s contract gratuity to be paid at the scale of Director General. However, as to the Board Resolution, the appellant’s argument was that her gratuity should have been paid at two levels, regarding the higher position of Deputy Director General over the period 12th May, 2008 to 30th June, 2010 and at her substantive position for the months that she was in office. Conversely, the respondent argued that the computation could have been based on the scale of Deputy Director General if the appellant was acting in that position at the time of termination of her contract. For ease of reference, the Board Resolution reads in part as follows: “The Communications Authority Board of Regulators met on the 8th day of November, 2002, and resolved as follows: 1. That appointments for staff acting in vacant positions be restricted to the period stipulated in the Authority’s Conditions of Service; 2. In the absence of a stipulated period, that a maximum period of six months in line with Government practice be used; 3. That retirement or gratuity as applicable, to an employee acting for a period more than the stipulated period be paid for the applicable period at the rate applying to the vacant position at the time of reverting an employee to the employee’s substantive position (underlining ours for emphasis only); 4. ...” J17 In the judgment appealed against, the lower court held that there was no underpayment of terminal benefits because at the time of termination of employment, the substantive appointment of the appellant was that of Director - Legal; that she was paid based on the substantive position; and that she could not be paid benefits at the scale of the Deputy Director when she was no longer holding that position. The view we take is that the interpretation of the Board Resolution which the respondent advocated for and which the lower court seems to have accepted, was not supported by the Board Resolution itself and as we see it, the lower court did not at all consider the import of the Board Resolution. Contrary to the respondent’s argument that the computation could have been based on the scale of Deputy Director General if the appellant was acting in that position at the time of termination of her contract, the Board Resolution does not say so. Although the letter appointing the appellant to act as Deputy Director General is not on record, to enable us determine for how long she was appointed to act in the vacant position of Deputy Director General, as the incumbent was acting Director General, clause 6.10 of the respondent’s 2005 Conditions of Service at page 129 of the record of appeal, and particularly at page 139 stipulates, in part, that all acting appointments shall J18 be made in writing and shall specify post, period of not more than six (6) months (underlining provided) and nature of appointments.lt is not without significance that both the Board Resolution and the Conditions of Service restrict the staff acting appointments to a maximum period of six months. We are inclined to agree with Mr. Gondwe’s argument that the Board Resolution is unambiguous and does not need any additions to be understood. In short, the appellant is right that her gratuity should have been paid at two levels, in respect of the higher position of Deputy Director General over the period 12th May, 2008 to 30th June, 2010 when she acted in that position, at the rate applying to the position of Deputy Director General at the time she was reverted to her substantive position and at her substantive position for the other months that she was in office. Our conclusion is that the lower court misdirected itself when it held that the appellant could not be paid benefits at the scale of the Deputy Director General when she was no longer holding that position. Coming now to the appellant’s argument that the computation of her benefits did not include allowances, we again agree with Mr. Gondwe’s submission that the word “salary” includes allowances that are paid together with the salary on periodical basis by an employer to the J19 employees unless the conditions of service stipulate otherwise. This was the holding of this Court in the case of James Mankwa Zulu and others v Chilanga Cement Limited4. Besides, clause 6 of the appellant’s contract of employment clearly provided that she would be entitled to contract gratuity on completion of the contract at the rate of 25% of basic pay and allowances earned during the period of the contract. We have perused the appellant’s contract and the pay slips at pages 205 to 207 of the record, for the months of April, May and June, 2010 which show the allowances the appellant was getting with her basic salary. The allowances on the pay slips include acting allowance and housing, education, security guard, fuel and telephone allowances. Although the last two allowances do not appear in the contract, the appellant was getting them, meaning that she was entitled to them or had earned them. With regard to acting allowance, there would be no basis on which this should have been included in the calculation of the appellant’s benefits since at the time of termination she had been reverted to her substantive position and there was clear evidence that she was being paid an acting allowance of K13,554,404.85 per month. In any case, we have already held that she should have been paid in respect of the position of Deputy Director J20 General over the period she acted in that position, at the rate applying to that position at the time she was reverted to her substantive position. Concerning the other allowances appearing on the pay slips, the document at page 211 of the record of appeal shows how the respondent arrived at the gross pay of K39,002,833.38 which was used to compute the appellant’s gratuity benefits appearing at pages 46, 99 or 210 of the record. The allowances included were housing, education and security guard allowances. Plainly, the fuel and telephone allowances were omitted from the calculation and Mr. Lungu admitted this fact before us. The end result is that the omission of the fuel and telephone allowances from the calculation of the appellant’s monthly gross pay resulted in an underpayment of the appellant’s gratuity benefits. Accordingly, we find partial merit in ground one of the appeal. In ground two, the appellant faulted the lower court for failing to order that payment in lieu of notice should include all the allowances. It is again quite clear from page 46 of the record that the three months’ salary in lieu of notice was based on the appellant’s monthly basic pay of K22,360,493.38 which is shown at page 211 as revised salary. The payment of K67,081,480.14 excluded all the allowances the appellant was J21 getting with her basic pay. Once more, Mr. Lungu admitted this fact before us. Therefore, we find merit in ground two of the appeal. With respect to ground three, the appellant’s contention was that she was entitled to retention allowance. It is not in dispute that the appellant’s contract did not provide for retention allowance. However, this allowance was provided for in clause 2.67a of the respondent’s 1996 Conditions of Service at page 86 of the record. A 20% of basic salary was to be paid as retention allowance to all Technical Staff and Graduates. In the 2005 Conditions of Service,which we referred to elsewhere in the judgment and particularly at page 148, clause 12.9 states that: “A 20% of monthly basic salary will be paid as retention allowance to Technical Staff and Graduates. To qualify for retention allowance an officer must have: (a) a first degree plus two (2) to three (3) years post - degree work experience in the field of occupation; and (b) been registered or licenced after obtaining the degree by appropriate professional body or in the case of Accountancy after obtaining a professional (c) qualification such as ACCA, CIMA or the equivalent.” The appellant’s argument was that although the respondent claimed that the allowance was ‘embedded’ in the salaries for senior staff in 2002, the allowance was one of the conditions that was specifically communicated to her as accruing to her when she was availed the conditions of service when she executed her contract in 2008. On the other hand, the respondent’s testimony was that the appellant was in senior » J22 management and that retention allowance was not applicable to employees on contracts and those in senior management asit was embedded in their salaries in 1998. The appellant is right that where parties have embodied the terms of contract into a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written document (Sam Amos Mumba v Zambia Fisheries and Fish Marketing Limited5) and that where the words of a written contract have a clear and fixed meaning not susceptible to explanation, extrinsic evidence is not admissible to show that the parties meant something from what they have written. However, we are of the view that the lower court was on firm ground when it accepted the respondent’s evidence that the appellant was not entitled to retention allowance because she was in senior management and that senior management staff were not entitled to the allowance as it was embedded in their salaries. Evidently, the staff administration manual provides for retention allowance and clause 12 of the appellant’s contract provided that other terms and conditions contained in the staff administration manual and the grievance and disciplinary procedure code as applicable to contract staff J23 of the respondent would mutatis mutandis, apply to the appellant and shall form part of the agreement (emphasis ours). Of course, the appellant’s payslips do not show that she was getting retention allowance and the evidence which the lower court accepted and was entitled to accept, was that retention allowance did not apply to the appellant because it was embedded in her salary. In our view, clause 12 of the appellant’s contract of employment allowed the respondent to make changes to the conditions of service, hence the use of the phrase mutatis mutandis (meaning ‘the necessary changes having been made’). In addition, the fact that the appellant never received retention allowance during the entire period that she worked for the respondent confirmed the respondent’s position that all the senior management staff and employees on contract were not entitled to the allowance, as the said allowance was embedded in their salaries. Consequently, we find no merit in ground three of the appeal. The gist of ground four of the appeal is that the appellant was entitled to the December, 2010 salary increment which though effected after she had left was backdated to 1st April, 2010, the period before the termination of her contract of employment. We find the cases cited by Mr. Lungu to be V J24 very instructive on this point. For instance, in the case of Development Bank of Zambia v Maambo2, the respondent was employed by the appellant but was given 3 months’ notice on 6th November, 1992 that his services were to be terminated with effect from 1st November, 1992. He was paid his three months' salary based on his then current salary. On 1st February, 1993, the appellant restructured its salary scales with retrospective effect to 1st November, 1992. The respondent claimed that since he only received notice on 6th November, 1992 his three months' notice pay was to be calculated at the new revised rate. It was held that: “When the respondent received his notice on 6th November, the only way of calculating his entitlement was to use his then existing salary scale: whatever happened to other employees who continued in employment could not affect the completed obligations between the parties. There was no consideration and no continuing contract between the parties. Accordingly, that the respondent's notice pay had to be calculated on the old salary scale.” It is quite evident that this case is on all fours with the case in casu. Definitely, the salary scale which became effective in December, 2010 which the appellant is advocating for, could not be used to compute her gratuity benefits because by then she had left employment, meaning that, there was no consideration and no continuing contract between the parties. Hence, we find no merit in ground four of this appeal. J25 There was also an argument made by Mr. Gondwe on behalf of the appellant for refund of tax, but which we have realised is not included in any of the grounds of appeal. Therefore, we decline to discuss the issue in any detail. Suffice to say that there was evidence that the respondent bore the tax on the gratuity benefits except that the respondent had to show the tax component in the calculations because that was a requirement by Zambia Revenue Authority. Mr. Lungu also invited us to order a refund of salary arrears wrongly paid to the appellant, and part of the gratuity which was overpaid by wrongly computing it on the basis of the revised salary which became effective in December, 2010. Sadly for the respondent, whilst this claim was made in its amended answer at page 222 of the record of appeal, no evidence was led to substantiate the claim and the lower court did not deal with the issue. Moreover, there is no cross-appeal by the respondent on that issue on the basis of which we could have granted the order sought by the respondent. For this reason,we decline to order refund of the monies wrongly paid to the appellant. In a nutshell, this appeal partially succeeds. We order the respondent to recalculate the appellant’s gratuity benefits to include the fuel and telephone allowances which were omitted and to recalculate the three J26 months’ pay in lieu of notice to include all the allowances the appellant was getting with her basic pay. We also direct the respondent to re-compute the appellant’s gratuity benefits at the position of Deputy Director General over 'the period she acted in that position, at the rate applying to that position at the time she was reverted to her substantive position and at her substantive position for the other months that she was in office. We further order the respondent to pay the appellant the difference between the recalculated amount and the amount already paid to her. Because the appellant has substantially succeeded, we award her costs of this appeal to be taxed in default of agreement. I. C. Mambilima CHIEF JUSTICE Kaoma SUPREME COURT JUDGE N/K. IVfutuna SUPREME CQURTxrtJDGE