Kamangula Wa'chata v Road Transpot and Safety Agency (Appeal No. 253/2022) [2024] ZMCA 223 (22 August 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA Ap peal No. 253/2022 (Civil Jurisdiction) BETWEEN: KAMANGULA WA'CHATA APPELLANT · AND ROAD TRANSPORT AND SAFETY AGENCY RESPONDENT Kondolo SC, Majula and Banda-Bobo JJA On 15th August, 2024 and 22nd August 2024 For the Appellant Mr. S. Mulengeshi of Messrs. Mulengeshi & Co. For the Respondent Ms. R. Mwambi Mweemba - In House Counsel, Road Transport and Safety Agency J UD GMENT MAJULA J A, d eliver ed the Judgm ent of th e C ou rt Cases referred to: 1. Contract Haulage Limited v Mumbuwa Kamayoyo (1982) ZR.13 (SC) 2. Alistair Logistics (Z) Limited v Albert Matanda Mwape Appeal No. 154/2020. 3. Barclays Bank Zambia Plc v Weston Luwi & Suzgo Ngulube - SCZ Appeal No .07/2012 4. Joseph Chitomfwa v Ndola Lime Company Ltd (1999) Z. R. 172. 5. Chilanga Cement Plc v Kasote Singogo - SCZ Judgment No. 13/ 2009 6. Bank of Zambia v Kasonde - SCZ J udgment No. 14 of 1997) J2 7. Swarp Spinning Mills PLC v Chileshe & Others - SCZ Judgment No 6/2002 8. Addis v Gramophone Company Limited (1909) AC 488 9. Cox v Phillips Industries Limited (1976) 1 WL. R. 638 10. Edwards v Society of Graphical and Allied Trades (1970) EWCA Civ J0730 -1 11. National Airports Corporation Limited v Reggie Ephraim Zimba and Savior Konie (SCZ Judgment No 34 of 2000) 12. Zambia State Insurance and Attorney General v Alisand Singogo SCZ Appeal No. 02/2006 13. Martin Mbangu and Others v Attorney General, Road Transport & Safety Agency (2014/HP/ 1400) 14. Zamtel v. Joshua Mukwaila - CAZ Appeal 131/ 2021 15. Maxwell Phiri v. Rural Electrification Authority - CAZ Appeal 108/ 2021 16. Sarah Aliza Vekhnik v. Casa Dei Bambini Montessori Zambia Limited CAZ Appeal 127/2017 17. Zamtel v. Eva Banda CAZ Appeal No. 2 of 2017 18. Kitwe City Council v. William Nguni (2005) ZR 57 19. ZESCO Limited vs Alexis Mabuku Matale - SCZ Appeal No. 22 7 of 2013 20. African Banking Corporation (Zambia} Limited vs Lazarous Muntete - CAZ Appeal 51/2021. Legislation Referred to: 1. Employment Code Act, No. 3 of 2019 Authoritative texts 1. Gwyneth Pitt, Employment Law, (1995) 2 nd Edition, London: Sweet and Maxwell. J3 1.0 Introduction 1.1 This appeal emanates from a decision rendered by Hon. Mrs. Justice M. M. Bah Matandala delivered on 1st July 2022 after the Appellant had instituted legal action against the Respondent. In this appeal, we are being called upon to review the decision of the court below regarding damages for unfair termination as well as inconvenience, anxiety and stress. In addition, the Appellant takes issue with the court indicating that he had already been paid beyond the normal measure after he had been paid gratuity. 1.2 We will thus address the applicable principles on damages as well as when there may be a deviation from the normal measure of damages. 2.0 Background 2.1 The Appellant was employed as the Head of Human Resources and Administration by the Respondent under a three-year fixed-term contract starting from January 30, 2018. 2.2 On November 30, 2019, with 14 months remaining on the contract, the Appellant's employment was terminated by the Respondent. The Appellant then approached the court below seeking the following reliefs: (a) Damages for unfair dismissal (b) Damages for wrongful dismissal J4 (c) Damages for unlawful dismissal (d) Damages for loss of income for the remainder of the contract, totaling K753,200.00 (basic salary) and all allowances. (e) (f) Payment of all due salaries and allowances for the remainder of the contract Payment in lieu of notice, gratuity, leave pay, and other accrued benefits (g) Damages for mental anguish, inconvenience, stress, and anxiety (h) Interest on the amount found to be due (i) U) Any other relief the Court may deem fit Costs. 2.3 The lower court found that the Appellant's contract was terminated without reason but noted that the Appellant received full gratuity as though the contract had been fully served. 3.0 The Appeal 3 .1 The Appellant, Kamang'ula Wa'chata, is appealing to this Court the judgment of the High Court. The appeal is based on the fallowing grounds: 1. Error in Law and Fact Regarding Unfair Termination: The Appellant argues that the lower court erred by not awarding damages for unfair termination of employment, J5 despite the Respondent admitting to the termination being unfair and unlawful. 2. Error in Compensation Beyond Normal Measure: The Appellant contends that the lower court incorrectly concluded that he was already paid damages beyond the normal measure. The Appellant argues that no damages were awarded for the unfair and unlawful termination, indicating a failure by the court to recognize the need for additional compensation. 3. Failure to Award Damages for Emotional Distress: The Appellant asserts that the lower court erred by not awarding damages for loss of income, inconvenience, anxiety, and mental stress. This claim is based on the acknowledgment that the Appellant's employment was terminated unfairly and unlawfully by the Respondent. 3.2 Counsel for the Appellant in his submissions discusses the legal argument regarding the termination of employment and references the relevant legal provisions. The key points that he has drawn to our attention are the following: 3.3 Section 52 of the Employment Code Act: This section mandates an employer to provide reasons when terminating an employee's contract. Failure to do so constitutes a breach of the law. J6 3.4 The Respondent admitted to terminating the Appellant's employment without giving reasons, which is contrary to Section 52. This is considered an unfair termination. We have been referred to the case of Contract Haulage Limited v. Mumbuwa Kamayoyo, 1 where the Supreme Court guided on the implications of unfair termination. According to the Kamayoyo 1 case, an employer must pay damages if they terminate a contract in a manner not warranted by the contract. This is relevant to the appeal as it establishes the principle that the Respondent must compensate for wrongful termination. 3.5 The Appellant's argument is based on the Respondent's failure to provide reasons for the termination of employment, which is a legal requirement under Section 52 of the Employment Code Act. This omission is considered an unfair termination, as supported by the referenced case law. The Appellant contends that the Respondent's failure to provide reasons for termination, as required by Section 52, constitutes a wrongful act. They argue that this breach necessitates the awarding of damages. 4.0 Lower Court's Decision and Appellant's Grievance 4.1 The lower court acknowledged the wrongful termination but held that the Appellant was already compensated, which he disputes. The Appellant asserts that they received no damages for the unfair and unlawful termination, despite the J7 court's findings. The Appellant continues to critique the lower court's handling of the case: 4.2 The lower court acknowledged in paragraph 3.4 (found on page J21) of the judgment that the Appellant should receive damages exceeding the normal measure because the Respondent did not provide a reason for the termination, as required by law. 4. 3 That despite recognizing the need for protection under the law, the lower court did not grant any damages to the Appellant. This contradiction is highlighted as perplexing and a significant error, as it leaves the Appellant without compensation for the unlawful termination. 4.4 The Appellant argues that the court's failure to award damages sets a dangerous precedent, potentially allowing employers to terminate employees without reason, as long as they comply with the notice clause. This, they assert, could lead to undesirable consequences by allowing employers to evade accountability for unlawful termination. 4 .5 In furtherance of the argument, specific legal principles and contractual terms have been highlighted. 4.6 Counsel cites the case of Alistair Logistics (Z) Limited v. Albert Matanda Mwape, 2 where it was established that an appellate court can interfere with the quantum of awarded damages only if there was an error in law or principle by the J8 lower court. The Appellant argues that the lower court's decision was erroneous in this respect. 4.7 The Appellant contends that the lower court wrongly concluded that the Appellant was compensated beyond the normal measure of damages by including the gratuity payment, which was an entitlement under the contract and not an additional compensation. This error, according to the Appellant, led to a failure to award proper damages for unfair termination. 4.8 The Appellant refers to clause 18.1 . 1 of the Contract of Service, which specifies that the Road Transport and Safety Agency can only terminate employment on grounds related to conduct and/ or performance. The Appellant argues that this clause was violated, further justifying the need for proper damages. This clause specifies that if the Agency terminates the contract on grounds other than those stated in clause 18.1.1, the employee is entitled to full gratuity as if the contract term had been completed, excluding monthly salaries and allowances. The clause emphasizes that this does not apply to employees on probation. 4.10 The Appellant claims that he had 14 months remaining on his contract when it was unfairly terminated by the Respondent. The Appellant argues that he suffered loss of employment and benefits without adequate compensation. The court's failure to award damages for the unfair termination is highlighted as a significant oversight. J9 4.11 The Appellant criticizes the court for merely awarding what he was already entitled to under the contract, rather than additional damages for the unfair termination. The Appellant insists that he was never adequately compensated for the loss incurred due to the Respondent's actions. 4.12 The Appellant cites the authors of Employment Law by Gwyneth Pitt 1 , highlighting the general principle that damages in employment law aim to place the innocent party in the position they would have been in if the contractual obligations had been fulfilled. This principle supports the Appellant's argument for adequate compensation beyond the normal measure. 5.1 Citing Barclays Bank Zambia Plc vs Weston Luwi & Suzyo Ngulube3 , the Appellant refers to this Supreme Court case to emphasize that while the general rule for damages is the equivalent salary for the notice period, there are exceptions. That the cited case outlines these exceptions, suggesting that the Appellant's situation warrants additional damages beyond the usual measure. 5.3 Counsel concludes the Appellant's argument by emphasizing the need for enhanced damages due to the specific circumstances of the case. 5.4 The Appellant refers to the case of Joseph Chitomfwa v Ndola Lime Company Limited4 , where 24 months' salary was awarded for loss of employment opportunities. Reference JlO is also made to Chilanga Cement Plc v Kasote Singogo5 , highlighting that enhanced damages are intended to cover the inconvenience and distress suffered due to the loss of employment. 5 .5 The Appellant submits that the lower court failed to properly consider these factors when determining the quantum of damages. He argues that this failure led to a wholly erroneous estimate of damages, not adequately compensating for the Appellant's loss. In the submission, counsel continues to build on the Appellant's argument regarding the inadequacy of the lower court's decision. 5 .6 The Appellant argues that the lower court failed to account for the loss of employment opportunities resulting from the Respondent's unlawful termination. This oversight is highlighted as a grave misdirection, particularly since the Respondent did not provide reasons for the termination. 5.7 The Appellant has called in aid the case of Bank of Zambia v Kasonde6 , to emphasize that public institutions, like the defendant, must adhere to fair play principles, and dismissals must be based on proven grounds. The case also underscores the serious stigma attached to dismissals for alleged misconduct, making it difficult for the plaintiff to find new employment. 6.1 The Appellant suggests that due to the circumstances, the only equitable remedy might be reinstatement or appropriate Jl 1 damages, as the stigma associated with wrongful dismissal cannot be atoned for by any other means. 6.2 The Appellant argues that the lack of reasons provided for the termination has led to an unjustified stigma, making potential employers hesitant to hire the Appellant. This stigma arises from the possibility that the termination could be perceived as being related to dishonesty or misconduct, thus damaging the Appellant's future employment opportunities. 6.3 Counsel has sought refuge in the Bank of Zambia v Kasonde6 (supra) case to underline the severity of the stigma associated with unfair termination. The cited case notes that such stigma can m ake it difficult for the victim to find new employment, thereby necessitating adequate compensation or other remedies. 6 . 4 The case of Swarp Spinning Mills PLC v Chileshe & Others7 has been adverted to where the Supreme Court stated that the normal measure of damages can be departed from in circumstances involving undue distress or mental suffering caused by the termination. This supports the Appellant's claim for enhanced damages beyond the typical measures. 6.5 Further arguments supporting the Appellant's claim for damages beyond the normal measure have been advanced: The Appellant references Addis v Gramophone Company Jl2 Limited8 and Cox v Phillips Industries Limited9 which was cited in the case of Swarp Spinning 7 case (supra) to highlight that while non-pecuniary damages for injured feelings are generally not awarded, there are exceptions. In Edwards v Society of Graphical and Allied Trades,10 damages included compensation for the difficulty in obtaining new employment, demonstrating that the impact of wrongful dismissal can be considered in awarding damages. 6.7 The Appellant in winding up has asserted that the lower court erred in not awarding damages for the psychological and emotional impact. He contends that the court should have considered the court should consider the exceptional circumstances as emphasized in the Swarp Spinning Mills Plc7 case where the justice of the case demanded a departure from the normal measure of damages. 7.0 Respondent's Arguments 7.1 The Respondent, on 15th December 2023, reacted by filing in their heads of argument and a list of authorities. The following are their legal submissions. 7 .2 That the Appellant has argued that the lower court's failure to award damages for unfair and unlawful termination was an error. The Respondent is arguing that the Appellant's compensation, including full gratuity, was appropriate. Jl3 7.3 Counsel has acknowledged the settled position of the law as articulated in Swarp Spinning PLC v Sebastian Chileshe and Others7) stating that: (i) The normal measure of damages usually relates to the contractual notice period or a notional reasonable notice if not specified in the contract. (ii) The measure may depart from the norm if the termination caused undue distress or mental suffering. 7.4 It is acknowledged that the Appellant received three months' salary in lieu of notice, which aligns with the contractual provisions. However, the Appellant argues that this does not fully address the damages owed due to the circumstances of the termination. 7.5 The Respondent discusses the Appellant's compensation and the interpretation of contractual terms related to termination. The Respondent asserts that the Appellant received three months' salary in lieu of notice and full gratuity, as though the contract had been completed, despite having 14 months remaining. According to the Respondent, this amounted to an excess gratuity payment of ZMW 265,440.00. 7.6 Reference has been made to clause 18.1.2 of the contract which stipulates that if the Agency terminates the contract on grounds other t han those stated in clause 18. 1. 1, the J14 employee is entitled to full gratuity as if the contract term had been completed. 7.7 The Respondent argues that the excess gratuity should be considered an award of damages beyond the normal measure of common law damages, rather than a payment fulfilling all compensation requirements. They cite the case of National Airports Corporation Limited v Reggie Ephraim Zimba and Savior Konie11 , where similar contract provisions led to full payment of benefits as if the contract had run its full term, and the phrase "as if the contract had run its full term" was used to determine the scope of compensation. That, however, the Supreme Court guided as follows: «The phrase invoked so as to pay damages as if the contract had run its full course offends the rules which were first propounded as propositions by Lord Dunedin in Dunlop Pneumatic Tyre Company vs New Garage And Motor Company Limited, especially that the resulting sum stipulated for is in effect bound to be extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have been followed from the breach." 7 .8 To fortify their position regarding the treatment of gratuity and damages , the Respondent references the case of Zambia State Insurance and Attorney General v Alisand Singogo12 where the Supreme Court dealt with the quantum of damages in employment termination cases. The Court J15 emphasized caution in awarding damages to avoid excessive compensation that could be seen as "near vengeance." 7 .9 Regarding the Pro-Rata Gratuity Payment, the Respondent argues that, according to the decision in National Airports Corporation Limited v Reggie Ephraim Zimba and Savior Konie 11 and the provisions of Section 73(2) of the Employment Code Act, gratuity should have been paid on a pro-rata basis rather than as if the full contract term had been completed. This aligns with the principle that gratuity should correspond to the actual period of employment. 7.10 Further arguments regarding the damages sought by the Appellant, particularly focusing on mental anguish and related claims have been advanced. 7 .11 The Respondent argues that the Appellate Court should find that the payment of three months' salary in lieu of notice, along with the excess gratuity, should suffice as damages for unfair dismissal. 7.13 The Respondent contends that damages for emotional distress and inconvenience should only be awarded if the claimant can specifically prove these conditions resulted from the termination. Reliance has been placed on Chilanga Cement Plc v Kasote Singogo5 , to illustrate that simply pleading distress and mental anguish is not sufficient. That there needs to be a clear demonstration of how the J16 termination was traumatic and caused the need for these specific damages. 7.15 Based on the arguments, the Respondent urges the court to dismiss the Appellant's claims for additional damages. They contend that the Appellant is not entitled to further compensation beyond what has already been awarded. 8.0 Hearing of the Appeal 8.1 At the hearing of the appeal on 15th August 2024, Counsel for the Appellant Mr. Mulengeshi entirely relied on the record of appeal as well as the heads of argument that had been filed . 8.2 On behalf of the Respondent, Ms. Mweemba equally placed reliance on the heads of argument filed but also made oral submissions. The core of her submission was that since the appeal was filed in 2022, this Court has delivered two judgments which she invited the Court to consider when determining the appeal. In this regard she called in aid the cases of Zamtel v. Joshua Mukwaila14 which was delivered on 1st November, 2023, and the case of Maxwell Phiri v. Rural Electrification Authority15 delivered on 6 th April, 2023. Her position was that in the cited cases this Court guided that the provisions in the con tract were penal in nature and were therefore not enforceable at law. 8.3 In sum, Ms. Mweemba submitted that the award given by the lower court was correct and the Appellants have failed to J17 demonstrate why this Court should depart from the normal measure of damages. 9.0 Consideration and decision of the Court 9.1 We have scrupulously scrutinized the record, grounds of appeal and submissions by Counsel for the respective parties. We shall deal with the first and second grounds together. The Appellant 1s greatly displeased with the fact that notwithstanding the finding by the court that he had been terminated in a manner not warranted by the contract he was not awarded damages on the basis that he had already been paid damages beyond the normal measure. 9.2 The Appellant argues that the Respondent's failure to follow legal requirements for termination justifies the awarding of damages. He disagrees with the lower court's decision, which he claims did not properly address the lack of compensation for the wrongful termination. The Kamayoyo case is cited to support the principle of awarding damages in such situations. 9.3 The Appellant argues that the lower court's decision not to award damages contradicts its own acknowledgment of the need for protection due to the unlawful termination. The Appellant stresses that this creates a problematic precedent, potentially allowing employers to terminate contracts without providing reasons, thus undermining legal protections for employees. J18 9.4 We immediately turn to the provisions of the Employment Code Act in Section 52 which states as follows: "52. (1) A contract of employment terminates in the manner stated in the contract of employment or in any other manner in which a contract of employment is deemed to terminate under this Act or any other law, except that where an employer terminates the contract, the employer shall give reasons to the employee for the termination of the employee's contract of employment; and (2). An employer shall not terminate a contract of employment of an employee without a valid reason for the termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking ... " (Underlining ours) 9.5 It is clear from the above provision that reasons ought to be given whenever an employer seeks to terminate the services of an employee. On this aspect we expressed ourselves in no uncertain terms in the case of Sarah Aliza Vekhnik v. Casa Dei Bambini Montessori Zambia Limited16 when we said the following: "Section 36 of the Act has placed a requirement on an employer to give reasons for terminating an employee's employment. Employers are no longer at liberty to invoke a termination clause and give notice without assigning reasons for the termination. What is of critical importance J19 to note however is that the reason or reasons given must be substantiated." 9.6 Therefore the court rightly found that the Respondent had breached the provisions of Section 52. However, the lower Court took the view that the Appellant had been sufficiently compensated for the wrongful termination. 9. 7 In relation to the law on damages in an instance where there has been a breach of contract, the Supreme Court guided in the case of Contract Haulage Limited vs Mumbuwa Kamayoyo 1 as follows: "(i) In a pure master and servant relationship there cannot be specific performance of contract of service and the master can terminate the contract with his servant at any time and for any reason or for none; if he does so in a manner not warranted by the contract be must pay damages for breach of contract." (Underlining ours). 9.8 It is trite that where a party is in breach of a contractual provision, the remedy is an infliction of damages. We have also examined the provisions of the contract in particular clause 18.1.1 which provides as follows: "18.1.1. The Road Transport and Safety Agency shall not terminate the employee's employment unless on ground related to conduct and/ or performance subject to the Disciplinary and Grievance Procedure Code. J20 18.1.2. ( 1) Where, however, the Agency terminates the contract on other grounds than those stated in clause 18.1.1, the Agency shall pay the employee the full gratuity excluding monthly salaries and allowances as if the full term of the contract has been dully served; Except that this clause does not apply to an employee who is on probation." (Underlining ours). 9.9 The Appellant argues that the lower court made a legal error by incorrectly including gratuity payments as part of damages, leading to inadequate compensation for unfair termination. They cite a relevant appellate court principle and a specific contractual clause to support their argument for proper damages, asserting that the Respondent's actions were not in line with the contractual terms regarding termination. 9 .10 The Respondent on the other hand contends that the gratuity paid, notwithstanding the fact that he had not completed the contract term should be considered as excess gratuity. They strongly refute the assertion that a further award of damages should be given in light of the foregoing. 9.11 From where we stand, clause 18.1.1 of the contract provides for gratuity. Our interpretation of this provision is that the parties had agreed that if the contract was terminated prematurely on grounds other than those stipulated in the J21 aforecited clause, the employee would be entitled to full payment of the contract. 9.12 We have exercised our minds regarding the question as to whether this particular clause is tenable and enforceable. We recall that we laboriously dealt with a comparable clause in Zamte l v. Eva Banda17 where we took the view that such a clause was penal in nature and unenforceable. We expressed ourselves in the fallowing manner: "We are of the view that the impugned Clause 9.1 (b) is penal in nature and the amount payable under the clause was imposed in terrorem. In addition, it does not constitute a genuine pre-estimate of the loss. The Clause is a deterrent to breaching the contract and is in our view unenforceable. The Appellant's argument that because the clause was applicable to both parties, it is not unjust enrichment is untenable. It is immaterial that the clause was applicable to both parties as it was deterrent on both the employer and employee. We have perused a number of Supreme Court decisions which has settled the position of the law where an employee seeks payment of salaries or benefits for the remainder of the period not worked. In the cited case of National Airports Corporation Limited and Reggie Ephraim Zimba and Another11 the contract of employment provided for three months' notice and further had a clause that stipulated that; "If the employer terminated the contract prematurely for reasons other than incompetence or unlawful neglect of J22 duty, all the benefits under the contract shall be paid as if the contract had run the full term." The Supreme Court held that damages; "should relate to the period of three months of salary and perquisites and any other benefits such as gratuity over that period. " As the notice clause in the above case was not invoked, the Supreme Court went on to state as follows; "We find and hold that the phrase invoked so as to damages as if the contract had run its full course offends the rules which were first propounded as proposition by Lord Dunedin in Dunlop Pneumatic Tyre Company Limited Vs New Garage and Motor Company Limited (8), especially that the resulting sum stipulated for is in effect bound to be extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach. This part of the appeal has to succeed and the damages directed to be assessed as we have indicated and not as ordered below." In the case of Kitwe City Council Vs Williams Ng'uni3 the Supreme Court held that: "We are, therefore, dismayed by the order to award terminal benefits equivalent to retirement benefits the Plaintiff would have earned if he had reached retirement age had he not been constructively dismissed. Apart from the issue of constructive dismissal, which we have already dealt with, we have said in several of our J23 decisions that you cannot award a salary or pension benefits, for that matter, for a period not worked for because such an award has not been earned and might be properly termed as unjust enrichment." 9.13 We maintained the same position in the case of Maxwell Zefftnati Phiri v. Rural Electrification Authority16 which had a similar clause and we held that: «we are equally of the same view in the present case that the impugned Clause 11 is penal in nature and the amount payable under the clause was imposed in terrorem. It does not constitute a genuine pre-estimate of the loss. The Clause is a deterrent to breaching the contract and is in our view unenforceable." 9.14Equally in the case of Zamtel v. Joshua Mukwaila14 when confronted with a clause akin to the one in the case at hand, we reiterated that the clause was penal in nature and that the amount payable under the clause was imposed in terrorem. 9.15 In light of the foregoing, we are of the considered view that clause 18.1.1 in casu, is penal in nature and unenforceable and therefore untenable. 9.16 Turning to the gratuity that was paid under this provision, our view is that it violates the numerous decisions by the apex court that to award terminal benefits the remainder of the period not worked for would amount to unjust J24 enrichment. Fortification for this is to be found in a plethora of cases just to name a few National Airports Corporation Limited v Reggie Ephraim Zimba and Savior Konie, 11 Kitwe City Council v. William Nguni18 and ZESCO Limited vs Alexis Mabuku Matale19. 9.17 In the view that we have taken, we believe that the Appellant was adequately compensated for breach of the contract. The trial Judge cannot be faulted for her refusal to award damages on account of the fact that the appellant had already been paid beyond the normal measure. 9. 18 We accordingly find the first two grounds to be bereft of merit and dismiss them. 9. 19 The grievance in the third ground emanates from the failure by the trial court to award damages for mental anguish, inconvenience, stress and anxiety due to unfair termination of employment. 9 .20 The Appellant argues for the consideration of enhanced damages due to the specific circumstances of their case, such as mental suffering and loss of employment opportunities. It has been asserted that the lower court's failure to apply the relevant legal principles and considerations resulted in an inadequate award, which they seek to correct through the appeal. J25 9 .21 It is the Appellant's contention that the lower court failed to consider the loss of employment opportunities and the stigma associated with wrongful dismissal. 9.22 In addition, that the traumatic nature of the termination, combined with the lack of reasons provided, caused undue stress and mental suffering. They assert that the lower court made a significant error by not awarding damages beyond the normal measure. 9.23 Furthermore, that the unjustified stigma resulting from the lack of reasons for termination has negatively impacted their future employment prospects. They argue for either reinstatement or adequate damages, citing relevant case law to support their claim. The emphasis is on the necessity of compensating for the wrongful termination and the resultant stigma, which the lower court allegedly failed to consider adequate. The Respondent challenges the need for such damages, requiring clear proof of the alleged emotional impacts. 9.24 We have reflected on the arguments advanced and we are alive to the law as to when damages can be enhanced beyond the normal measure. There is an abundance of case law to support the need for compensation beyond the normal measure in exceptional circumstances. The cases that spring to mind are Barclays Bank and Swarp Spinning8 . In Chilanga Cem.ent Plc v. Kasote Singogo5 the Supreme Court held that: J26 "We are of the view, however, that such an award for torture or mental distress should be granted in exceptional cases, and certainly, not in a case where more than the normal measure of common law damages have been awarded; the rationale being that the enhanced damages are meant to encompass the inconvenience and nay distress suffered by the employee as a result of the loss of the job." 9.25 We recall the celebrated case of Swarp Spinning which spelt out what damages may be awarded where the termination of an employee has been inflicted in a traumatic fashion which causes undue distress or mental suffering. It was held in that case that the normal measure of damages may be departed from. The normal measure in this regard refers to the contractual notice and in its absence, it is reasonable notice. 9 . 26 It is trite that in order to be granted the said relief, the requirement is that evidence to that effect must be led. We had occasion to thoroughly examine the wealth of authorities regarding the award of damages being the notice period and when there may be a deviation from the same in special and deserving cases in the case of African Banking Corporation (Zambia) Limited vs Lazarous Muntete. 20 We recalled the cases of Swarp Spinning v Sebastian Chileshe, Barclays Bank v Weston Luwi & Suzyo Ngulube, Dennis Chansa v Barclays Bank (supra). We took the view that: J27 "It is evident from a plethora of cases, that our courts have awarded enhanced compensatory damages or exemplary damages far and above the notice period. This has been done in cases where there has been mental distress, mental torture and inconvenience or severe distress and hardship and any other distress. These damages will be granted only where it is shown that the distress or inconvenience was a direct consequence of the dismissal. Therefore an employee has to show that the distress or inconvenience results from some act or omission on the part of the employer, which does occasion suffering which goes beyond the normal consequences of the wrongful breach." Our courts have also enhanced compensatory damages or exemplary damages based on the manner of separation and the conduct of the employer, especially where the termination or dismissal was inflicted in a traumatic fashion." 9.27 Turning to the considerations of the loss of future employment opportunities, we took into account the guidance in Dennis Chansa where the Court of last resort upheld an award of six (6) months. In concluding our take on the enhancement of an award of damages in the case of African Banking Corporation20, we stated: "It must be emphasized to the Industrial and labour relations practitioners that if a party is seeking enhanced J28 or exemplary damages, such party must adduce evidence and explain any special circumstances to take his case out of the realm of the ordinary award of the notice period, rather than leaving it to the contemplation of the court. It would even be prudent to plead the same and thereafter lead evidence to prove that the party claiming is entitled thereto. Therefore, the court will only grant enhanced damages if an employee can prove that the manner of the dismissal caused distress that was contemplated." 9.28 We maintain the same position. 9.29 In casu, we have been unable to find evidence to support the deviation from the normal measure of damages which is the notice period and for reasons advanced earlier regarding the excess gratuity wrongly paid, we are inclined not to award any further damages. 9.30 In light of the foregoing we find no merit in the third ground of appeal and dismiss it. 10.0 Conclusion 10. 1 In a nutshell, the following are our findings: 1. The Respondent did not comply with the legal requirement to furnish the Appellant a valid reason for the termination and therefore they violated Section 52(2) of the Employment Code Act. \ J29 2. Where there has been a breach of Section 52 or the contract of service, an employee is entitled to an award of damages. In casu, the Appellant was paid 3 months' notice period and gratuity for the remainder of the contract which was considered adequate compensation. 3 . The payment of the gratuity pursuant to clause 18.1.1 of the contract was erroneous. This clause is penal in nature and the amount payable under the clause was imposed in terrorem. 4. Consequently, the plea for additional payment as damages cannot be sustained as the Respondent had paid the Appellant excess gratuity which we consider would amount to adequate compensation in damages. 5 . Equally, the claim for damages for mental torture, inconvenience, stress and anxiety is unsupportable. 11 .0 Costs 11.1 The Appellant is condemned in costs in this court and in the court below, to be taxed in default of agreement. ~ ~ .. .... ~ ..... . ......... . .. . ..... . M. M. Kondolo, SC COURT OF APPEAL JUDGE ········~ ···· · ········ · · B. M. Majula COURT OF APPEAL JUDGE ··········· ~ ······ ····· ···· · A. M. Banda-Bobo COURT OF APPEAL JUDGE