Kandela v Sikale Wood Manufacturer Limited (COMP/IRCLK/35/2022) [2022] ZMHC 123 (2 August 2022)

IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (Civil Jurisdiction) COMP NO./IRCLK/35/2022 BETWEEN: AUSTINE KANDELA AND COMPLAINANT SIKALE WOOD MANUFACTURER LIMITED RESPONDENT CORAM: Hon Lady Justice Dr. W. S . Mwenda at Lusaka t his 2 nd day of August, 2022. For the Complainant: In person For the Respondent: Mr. Lubasi Sipalo - Human Resource Manager JUDGMENT Cases referred to: 1. Care Inten1ational Zambia Limited v. Misheclc Tembo, S. C. Z. Se lected Judgment No. 56 of 2 018. 2 . Supabets Sports Betting v. Batuke Kalimukwa, Selected Judgme nt No. 2 7 of 2019. 3 . Swarp Spinning Millis Plc. v. Sebastian Chileshe and Others (2 002) Z. R. 23 (S. C.) . 4. Charles Ng'onga v. Alfred H . Knight (Z) Limited, S CZ Selected Judgment No. 26 of 2019. • Legislation and other works referred to: 1. The Employment Code Act No. 3 of 2019. 2 . The l\1inimum Wages and General Conditions of Employment (General) Order, 2011. 3 . The Minimum Wages and General Cond itions of Employment (General) Order, 2 0 12. 4. The Minimum Wages an d General Conditions of Emp loyment (Genera l) (Amendment) Order, 2018. 5. Order 10, rule 5 of the Court of Appeal Rules, S. I. No. 65 of 2016 (the Court of J2 Appeal Rules). Publications referred to: 1. Hodge M. Malek, Phipson on Evidence, 1 7th Edition, (Sweet & Maxwell, United Kingdom, 2011 ). 2. Mwenda W. S. and Chungu C., A Comprehensive Guide to Employment Law in Zambia, (University oJZambia Press, 2021). 1. INTRODUCTION 1.1 This matter was commenced by way of Notice of Complaint accompanied by an Affidavit (sworn by the Complainant), both dated 21 st January, 2022. The Notice of Complaint reveals that the Complainant is seeking the following remedies: (i) Damages for unfair and wrongful dismissal; (ii) Benefits for the years worked; (iii) Leave days; (iv) Costs and any other benefits that the Court may deem fit. 1.2 In response to the Complaint, the Respondent filed an Answer i. and supporting Affidavit. The Affidavit in Support of Respondent's Answer was S\\7orn by one Lubasi Sipalo, the Human Resource Manager in the employ of the Respondent. The Respondent denies the Complainant's claim in its entirety and argues, instead, that the Complainant was rightfully dismissed upon being found guilty of the offence of desertion that he had been charged with, following a disciplinary hearing. J3 1.3 The matter proceeded to trial on 6 th July, 2022 and both parties were in attendance, the Complainant appearing 1n person and the Respondent through its Human Resource Manager. The Complainant was the only witness for his case and the Resp ond ent's Human Resource Manager was the Respondent's • only witnes s. 1.4 The judgment herein, thus. 2 . COMPLAINANT'S CASE 2.1 The Complainant asserts that he was employed as a Truck Driver on permanent and p ensionable basis on 1s t January, 2 006 . He worked for the Respondent from 2 006 until his con tract was terminated on 16th December, 2 01 9 , on allegations that he had particip ated in a strike. 2 .2 The Complainant further asserts that afterwards, he went to the Lab our Office where his dues were calculated but all efforts to recover the same from the Respondent have proved futile as the Respond ent has neglected or refused to give the Complainant his dues. The Complainant, thus, comm enced the proceedings herein. • 3 . RESPONDENT'S CASE J4 3 .1 It is t h e Respondent's assertion that the Complainant was employed on a two-year contract of employment in 2006, which contra ct had an implied renewal term; thus, the Complainant and Respondent continued renewing the contract over the years. The Complainant's last contract was to run from 1s t February, 2019 to 31 s t January, 2021. 3.2 The Respondent states that by letter dated 3 rd November, 201 9, the Complainant informed the Respondent that he had retire d from employment forthwith and consequently demanded that he be paid his terminal benefits. After perusing the Complainant's letter, the Respondent informed him that ther e was no s u ch term in his contract and advised him to seek further guidance on the methods available to him within the contract , in order to separate from the Resp on dent. 3.3 After that, the Complainant suddenly stopped reporting for work, wit h ou t p ermission or reasonable cause and all efforts to contact h im p roved futile. In the week s thereafter, the Complainant was charged with the offence of desertion. 3 .4 The Respondent wrote to th e Complainant, requesting him to exculpate himself and in the same letter n otified th e Complain ant that a disciplinary hearing was scheduled for him in respect of JS said charge. The Complainant neither exculpated himself nor attended the disciplinary hearing, which proceeded in his absence. 3.5 Following the disciplinary hearing, the Complainant was recommended for dismissal and consequently dismissed on 16th December, 2019, and a report of the Complainant's dismissal was delivered to the Labour Office. 3.6 That, therefore, the Complainant's dismissal was lawful and fair. 4. SUMMARY OF EVIDENCE 4.1 During trial, the Complainant who was his own witness testified that he was employed in January, 2006. 4.2 That, he was on a trip sometime in 2019 when he returned and found that the workers had gone on strike. The Respondent then dismissed everyone and the Complainant went to the Labour Office, which gave him a letter to take to the Respondent. The Complainant and the Respondent had a meeting at the Labour Office and the Labour Office recommended some action to the Respondent, which it did not follow. 4.3 The Complainant stated that among the reliefs he is seeking are benefits for the years worked and leave days. JG · · 4 .4 It was the Complainant's testimony that his salary was Kl ,500.00 and sometimes, if the Respondent included other allowances, he would get from K3,000.00 to K3,500.00 per month. 4.5 He also stated that sometimes he would be given leave days, while other times he would not. Further, that he was not sure how many leave days he was entitled to in a month as the one in the position to explain was the Human Resource Manager. 4.6 It was the Complainant's evidence that he did not belong to any union and that he was handed a letter of termination at the point • of being dismissed. 4. 7 The Complainant testified that before he was handed the letter of dismissal, he was chased and the director said he did not want to see him. 4.8 In cross-examination, the Complainant confirmed that when he stopped work, he had written a letter requesting for retirement, but the same was denied and he was advised to use other means as opposed to being declared retired. 4 . 9 When asked whether he stopped reporting for work after that, the Complainant stated that he did not stop, but the Respondent's director started giving out new contracts and told the workers • J7 that those who wanted to go back to work would have to lose their benefits so far worked for. 4.10 The Complainant denied that the Respondent had communicated with him that he was to attend a disciplinary hearing or that he was aware of a charge sheet prepared against him for being away from work for three weeks. He stated that when his dismissal letter was written, he was called and asked to pick it up. 4.11 The Complainant stated that he was not going on leave. When asked whether or not he was paid leave days at the end of the year, the Complainant was unable to confirm as he stated that he would have to look at his pay slip since the workers used to be paid through the bank. 4.12 There was nothing in re-examination and this marked the close of the Complainant's case. • 4.13 For the Respondent's case, the witness testifying on behalf of the Respondent was one Lubasi Sipalo (RW), the Human Resource Manager of the Respondent. It was RW's testimony that the Complainant was employed on contract basis and the last contract that he signed with the company was a two-year contract from 2017 to 2019. That, in November, 2019 the Complainant wrote a letter to the Human Resource Manager at the time, requesting to be retired. That, on 25th November, 2019, JS the Human Resource responded and indicated that the Complainant was not eligible for retirement and that if he wanted to end his employment, he needed to use other means. RW referred the Court to exhibits "1S4" and "LSS" in the Affidavit in Support of Answer in this regard. 4.14 That, following the Respondent's response, the Complainant stopped reporting for work and efforts were made to find out why he had stopped reporting for work, until he was charged with desertion. The Complainant was requested to exculpate himself but he did not provide any feedback, which led to the disciplinary hearing happening in his absence. 4.15 RW testified that the disciplinary hearing was held on 13th December, 2019 and a decision was made to dismiss the Complainant. RW referred the Court to exhibit "1S7" and "1S8" in the Affidavit in Support of Answer, being the minutes of the hearing and dismissal letter, respectively. • 4.16 That, the Respondent further wrote and delivered a report to the Labour Office, on 17th December, 2019 concerning the Complainant's dismissal. 4.17 In cross-examination, RW was asked when the Respondent had called the Complainant for a meeting so that they could discuss and his response was that the Complainant was not responding. J9 4 . 18 In re-examination, RW stated that at the time of the disciplinary process, the Complainant was given the opportunity to explain himself, but he did not take the opportunity. 5. DETERMINATION OF MATTER 5.1 I have carefully considered the parties' cases, as well as the evidence tendered in aid, thereof. 5.2 It is not in dispute that the Complainant was employed on 1st e January, 2006 by the Respondent as a Truck Driver and was dismissed on 16th December, 2016. 5.3 While the Complainant is claiming that he was employed on permanent and pensionable basis and dismissed on the basis of having participated in a strike, the Respondent is claiming that the Complainant was employed on a two-year renewable contract in January, 2006 and sometime in November, 2019, attempted to • retire, but was advised by the Respondent that he did not qualify for retirement and ought to utilise other means of leaving employment. That, having been told that, the Complainant stopped reporting for work and after three weeks of absence he was charged and summoned for a disciplinary hearing and asked to exculpate himself. The Complaint neither exculpated himself nor turned up for the disciplinary hearing which proceeded in his JlO absence and resulted in a recommendation to dismiss him. The Complainant was subsequently dismissed on 16th December, 201 9 . 5.4 Th e Complainant is now seeking the following reliefs: (i) Damages for unfair and wrongful dismissal; (ii) Benefits for the years worked; (iii) Leave days; (iv) Costs and any other benefits that the Court may deem fit. e 5 .5 It is settled law that a person who commences a civil action must prove his case against the defendant/ respondent in order to succeed in his claim. To this end, the learned authors of Phipson on Evidence, 17th Edition, state as follows, in paragraph 6 -06: So Jar as the persuasive burden is concerned, the burden of proof lies upon the party who substantially asserts the affirmative of the issues, when all the evidence is adduced by all the parties, the party who has this burden has not discharged it, the decision must be made against him. founded on considerations of good sense and should not be departed fro m without strong reasons . is an ancient rule It • 5 .6 Th erefore, pertinent in this matter is the question whether or not th e Complainant has proved his claims against the Respondent on a b alance of probabilities. I shall now address the Complainant 's individual claims herein. However, before I address the r eliefs being s ought by the Complainant , I wish to settle one issue arising from th e letter from the Labour Office as Jll well as from the testimon y of both p arties. That is the issue of whether the Complainant was employed on a permanent and pensionable basis . 5. 7 The Complainant testified that after he was dismissed on 16th December, 2019, he caused the Respondent to be summoned before th e Labour Office and the resolution of their dispute was as follows, in a letter written by the Labour Office on 23 rd • • November, 2020: 2 3rd Novem ber, 2 020 The Clerk Industrial and Labour Relations Court LUSAKA Dear Sir/ Madam, RE: REFERAL OF CASE: AUSTINE KANDELA Reference is made to the above subject matter. I write to y our honourable court seeking intervention in the m atter of Mr. Austine Kandela (hereinafter called the complainant) and Sikale Wood Manufacturing Limited (hereinafter called the e mployer). The complainant was on a permanent contract. The Ministry s ummoned both parties f or the deliberations and in the meeting the e mployer was instructed to p ay him the leave days amounting to K9,937.00 and severance pay amounting to K39,000.00 for the p eriod of 13 years . The employer refuted the claims and it is f or this reason w hy the matter has to be ref erred to your honourable court. Yours faithfully, Emma T. Mugala (Mrs.) J12 Labour Inspector FOR/ LABOUR COMMISSIONER 5.8 The Complainant has asserted that he was in permanent and pensionable employment, while the Respondent has asserted that the Respondent was on a two-year renewable contract. The Employment Code Act, No. 3 of 2019, defines a permanent contract as: - A contract of employment, if not tenninated in accordance with this Act, expires on the employee's attainment of the retirement age specified under a written law. 5 . 9 The Employment Code further defines a long-term contract as: A contract of service for- (a) a period exceeding twelve months, renewable for a further term; 5 . 10 While it is the position of the Respondent that the Complainant was engaged on a two-year renewable contract, exhibits "LS 1" to "LS3" in the Respondent's affidavit, being contracts of service of the Complainant say something different. The first exhibit shows a contract period of one year, while the second exhibit reveals a contract period of three years and the third exhibit shows a • contract period of two years. Clearly the number of years for the contracts varied, but what is certain is that the contracts were for a term of one year and above. In my view, therefore, the nature of contracts of service that the Complainant was being given are best captured by the definition of a long-term contract, rather J13 than a permanent contra ct. I therefore make a finding of fact that the Com p lainant was under a long-term contract and not a permanent and pensionable contract. 5.11 It appears that upon establishing that the Complainant was in permanent and pensionable employment, the Labour Office proceeded to advise that the Complainant should be paid severance pay amounting to K39,000.00, for the period of 13 years. The Employment Code defines severance pay as: The wages and benefits paid to an employee whose contract of employment is terminated in accordance with section 54. 5.12 Section 54 of the Code, in turn, provides as follows: 54. (1) An employer shall pay an employee a severance pay, where the employee's contract of employment is terminated or has expired, in the following manner: (a) where an employee has been medically discharged from employment, in accordance with section 38(5); (b) where a contract of employment is for a fixed duration, severance pay shall either be a gratuity at the rate of not less that twenty-five percent of the employee's basic pay earned during the contract period or the retirement benefits provided by the relevant social security scheme that the employee is a member of, as the case may be; (c) where a contract of employment of a fixed duration has been terminated, severance pay shall be a gratuity at the rate of not less than twenty-five percent of the employee's basic pay earned during the contract period as at the effective date of termination; (d) (d) w here a contract of employment has been terminated by redundancy in accordance with section 55, the severance pay J14 shall be a lumpsum of two months' basic pay for each year served under the contract of employment; or (e) (e) where an employee dies in service, the severance pay shall be two months' basic pay for each year served under the contract of employment. (2) Where an employee dies before receiving the severance pay, the employer shall pay the severance pay to the employee's estate in accordance with the Intestate Succession Act or the Wills and Testate Estates Act. (3) The severance pay under this section shall not be paid to a casual employee, a temporary employee, an employee engaged on a long-term contract or an employee serving a period of probation. (Emphasis mine) 5.13 Subsection 3 of Section 54 of the Employment expressly excludes employees engaged on a long-term contract from being entitled to severance pay. With this, I would like to dispel the findings of the Labour Office that the Complainant was employed on a permanent and pensionable basis and entitled to severance pay. Thus, to the extent that the Complainant adduced the letter from the Labour Office as evidence that he was in permanent and pensionable employment, the same fails. The position expressed by the Labour Office was, in my view, a misconception of the facts. 5.14 I now turn to address the reliefs as sought by the Complainant. The Complainant is primarily relying on the letter from the Labour Office reproduced above, for the reliefs he is seeking. He JlS did not produce any other documents before Court, but fortunately the Respondent's Affidavit 1n Support of Respondent's Answer does contain documents that may help in determining the Complainant's case. Damages for unfair and wrongful dismissal 5.15 The Complainant is claiming for damages for unfair and unlawful dismissal. He claims that he was dismissed after he had participated in a strike. On the contrary, the Respondent has disputed this claim and to this end, it has contended that the Complainant was rightfully dismissed upon being found guilty of the offence of desertion, following a disciplinary hearing. The Respondent has asserted that the Complainant stopped reporting for work after had tried to retire and was advised that he did not qualify for retirement and if he desired to leave his employment e he ought to have used other means. 5.16 It is opportune to ask at this point, 'what amounts to unfair dismissal'? According to the authors Mwenda and Chungu in A Guide to Employment Law in Zambia, unfair dismissal is dismissal that is contrary to the statute or based on an unsubstantiated ground. It is a creation of statute. In the case of Care International Zambia Limited v. Misheck Tembo1, the J16 Supreme Court was of the view that unfair dismissal is dismissal which is contrary to statute and that it is usually a much more substantial right for the employee and the consequences for the employer of dismissing unfairly are usually much more serious than those which attend to a wrongful dismissal, which is a dismissal contrary to the contract of employment. The Supreme Court further clarified unfair dismissal as follows, in the case of Supabets Sports Betting v. Batuke Kalimukwa2 : In a recent decision of this Court, Moses Choonga v. Zesco Recreation Club, Itezhi-tezhi, our holding was that, the dismissal was unfair and unlawful as the reason given was not related to the qualifications or capability of the appellant in the performance of his duties ... in order to determine whether a dismissal was fair or unfair, an employer must show the principal reason for the dismissal. That such reason must also relate to the conduct: capability or quali{i.cations of the employee for performing work of the kind which he was employed by the employer to do; or to operational requirements of the employer's business. We do acknowledge the legal position that unfair dismissal is a creature of statute with its origins in the need to promote fair labour practices by prohibiting employers from terminating employees' contracts of employment, except for valid reasons and on specified grounds. The position is substantially in line with Article 4 of the International Labour Organisation (!LO) standards, Convention 158, Termination of Employment, 1982. (Emphasis mine) 5. 1 7 The Complainant has alleged that he was dismissed because he had participated in a strike and other than this allegation, the Complainant has not adduced any evidence to support his position. The Respondent has refuted the allegation and in J17 support thereof, has exhibited documents intended to demonstrate what transpired until the Complainant was dismissed. The Respondent has alleged that the Complainant sought to leave employment by way of retirement, which was rejected by the Respondent and the Respondent redirected the Complainant to seek other means as he had not yet reached retirement age. I have perused exhibit "LS4" in the Respondent's Affidavit, which is letter written as follows : C/0 Mike L. Kwanga Every Home for Christ P. O. Box 55032 Lusaka, Zambia 3rd November, 2019 To The Human Resource Sikale Wood Lusaka, Zambia RE: APPLICATION FOR RETIREMENT To the above-mentioned subject, I hereby apply to retire from my services at Sikale Wood after working with the mentioned company for fourteen years. I have no problem with the company as to why I have taken this decision. I have only personal reasons for this decision. I request to be set free from my duties effective 4th December, 2019, November being a prior notice month. I would like to thank the management of Sikale Wood for your kind consideration. Yours faithfully, Austine Kandela Jl8 5.18 During cross-examination, the Complainant confirmed that he wrote the above letter and also confirmed that he was advised that the retirement was not possible and if he wanted to end his employment he ought to have gone by other means. The letter in question is exhibited as LS5 and is couched as follows: 25th November, 2019 Austin Kandela Sikale Wood Lusaka Dear Austin RETIREMENT Reference is made to your letter dated 3 rd November, 2019. Following our meeting we had on 22nd November, 201 9, you were advised that you are not eligible for retirement as the Laws of Zambia have set early retirement at age 55. Accordingly, you are advised to seek further guidance on other avenues of ending your employment if you so wish. Yours sincerely, Chango Kamwinshi Human Resource Manager 5 . 19 It was testified on behalf of the Respondent that following the Respondent's letter above, the Complainant stopped reporting for work and efforts to contact him proved futile. That, in the weeks that followed the Respondent charged the Complainant with the offence of desertion and caused to be communicated to him, the J19 request to exculpate himself for the offence. Further, that the Complainant was informed that the disciplinary hearing was scheduled for him in respect of the charge. In claiming that efforts had been made to contact the Complainant and inform him of the impending charge and hearing, the Respondent has exhibited "LS6", being the Charge Sheet, "LS7" , being the minutes of the disciplinary h earing, "LS8", being the letter of summary dismissal for desertion and "LS9", being a report of the summary dismissal, to the Labour Office. The Respondent has called into aid the exhibits referred to above to demonstrate that the Complainant was fairly and lawfully dismissed. 5 .20 I have perused the exhibits and observed the following: {i) The Charge sheet was not duly r eceived and/ or signed by the Complainant. RW had testified in this regard during trial that the Respondent had tried to call the Complainant, but the phone calls went unanswered. Howeve r , exhibit "LS3" of the Respondent's own Affidavit, being a contract of service executed by the Complainant on 30 th January, 2017 clearly shows the Complainant's primary contact number and an alternative number, and nothing was said regarding the same 1n the Respondent's testimony. Further, the Complainant's letter of 3 rd November, 2019 {"LS4") also J20 clearly shows a postal address under the care of one Mike L. Kwanga, to which the Respondent could have addressed their communication to the Complainant. Unfortunately, the Respondent clearly did not make any such effort as there is nothing on the record to show that the Respondent after failing to get through to the Complainant via telephone tried to reach him through the postal address which he had provided; and (ii) Exhibit "LS7", being the minutes of the disciplinary hearing have no signature or company stamp of any sort. In the light of this, the assertion as to a disciplinary hearing having been convened for the Complainant in his absence could or could not be true. The Court has no way of verifying the same from the minutes exhibited . Who is to say that the purported minutes were not just written by someone sitting under some tree? Hence, the minutes in their form are simply of no value to the Respondent herein. • 5. 21 The observations above clearly show that there leaves much to be desired in the process adopted by the Respondent to summarily dismiss the Complainant. Section 50 (1) of the Employment Code provides the only instances where summary dismissal is permitted. It provides as follows: J21 An employer shall not dismis s an employee summarily except in the following circumstances: (a) where an employee is guilty of gross misconduct inconsistent the express or implied conditions of the contract of with e mployment; (b) f or willful disobedience to a lawful order given by the employer; (c) f or lack of skill which the employee, expressly or impliedly warranted to possess; (d) for habitual or substantial neglect of the employee's duties; (e) for continual absence from work without permission of the employer or a reasonable excuse; or (f) for misconduct under the e mployer's disciplinary rules where the punishment is summary dismissal. 5 .22 In view of the provisions above and to the extent that the decision of the Respondent to dismiss the Complainant is hinged on the purported disciplinary h earing purportedly held on 13th December, 2019, which, in my view is tainted with irregularities, I am inclined to find that the Complainant's dismissal was unlawful and unfair. 5.23 Having found that the dismissal of the Complainant by the Respondent was unfair and unlawful, the next issue to be determined is that of quantum of damages. 5.24 It is trite that the normal measure of damages for unfair, unlawful or wrongful dismissal is the applicable contractual length of notice or the notional reasonable notice where the contra ct is silent (s ee the case of Swarp Spinning Millis Pie. v . Sebastian Chileshe and Others3 ). In that cas e the Su p reme Court stated, however, that t h e n or m al mea sure is dep arted from J22 where the termination may have been inflicted in a traumatic fashion which caused undue s tress or m ental suffering. In Charles Ng'onga v . Alfred H. Knight (Z) Limited4 , the Supreme Court confirmed th at the normal measure of damages is an employee's notice period or as it is provided for in the law and can only be departed from when the employee proves that he is des erving of more and the conduct of the employer was so serious that it warrants a higher award of damages. In casu, the Complainant has not provided any evidence to show that his dismissal was inflicted in a traumatic fashion which caused undue stres s or mental suffering; therefore, he is only entitled to the normal measure of damages, being one (1) month 's salary. e Benefits for the years worked 5.25 I have taken note of the fact that the Complainant was employed as a Driver. He testified that he did not belong to any union and h is testimon y was u nchallenged by the Respondent. Thus, he was a vulner a b le employee covered by the Minimum Wages and Conditions of Employment (General) Order, 2011, as read with the Minimum Wages and Con d itions of Emp loyment (General) (Amendment) Order, 20 12 and the Minimum Wages and Conditions of Employment (General) (Amendment) Order, 2018. J23 Three contracts of service have b een exhibited m the Respondent's Affidavit. The first one ran from 16th October, 2008 to 16 th Oct ober, 2009, while the second contract ran from 2nd November, 20 09 to 2 nd November, 2012 and the third one ran from 31st January, 2017 to 31 st January, 2019. I am cognizant of the fact that the Minimum Wages Orders espoused above were enacted sometime after the second exhibited contract had already been executed. There is no evidence that any addendum had been executed between the Respondent and the Complainant to ensure that the remainder of the contract terms were in conformity with the General Orders of 2011 and 2012. In the absence of any document to that effect, I cannot proceed to speculate on the issue and as such I will say no more concerning the terms of the second contract. 5.26 Similarly for the third exhibited contract, the same was executed on 30th January, 2017, which was before the enactment of the 2018 Gen eral Order and no addendum if any has been produced befor e this Court to show that any changes h a d been made to the contra ct in ord er for it to m eet the minimum standards set after the 2018 amendments . This n otwithst anding, the third contract was until the 2018 General Order, subject to the minimum J24 standards set by the 2012 General Order. Under that Order the Complainant was entitled as a matter of right to the following: (i) a minimum basic pay of Kl ,002.39 per month; (ii) housing allowance of K300.72 per month, unless the Employer provided accommodation; (iii) transport allowance of K102.40 per month, unless the Employer provided transport; and (iv) lunch allowance of K120.00 per month, unless the Employer provided lunch. 5.27 I have perused the third contract exhibited as "LS3" and it clearly indicates that his gross pay per month came to K3,500.00, being Kl ,500.00 attributed to the basic salary, Kl ,000.00 attributed to transport allowance and Kl ,000.00 attributed to housing allowance. Lunch was provided. A simple addition of the minimum benefits as established by the General Order of 2012 and which the Respondent was obligated to comply with comes to Kl,525.50, while the Respondent paid the Complainant a monthly remuneration of K3 ,500.00, which was way over the minimum conditions. 5 .28 In view of the above, I find that the Respondent having exceeded the statutory minimum conditions does not owe the Complainant the claimed benefits in that regard. Leave days J25 5 .29 During cross-examination of the Complainant, it was put to him whether or not he was paid leave days at the end of each particular year and his response was that he did not know, unless he checked his pay slip. The Complainant was also asked whether he used to go on leave and his response was that he never used to go on leave and emphasised that the one who would know best know whether the Complainant was getting paid for leave was Mr. Lubasi Sipalo himself. What can be deduced from this line of questioning is a concess10n that the Complainant never went on leave. It seems that even in his questioning, Mr. Sipalo's focus was whether or not the Complainant was paid leave days and not whether or not he took leave. 5.30 There 1s on the record two pay slips for the Complainant for February, 2019 and July, 2019, which I have carefully examined. Under the February pay slip, leave days are indicated to be 29.50, while under the July pay slip, the leave days are indicated as 16.00. Further, under both pay slips, the leave value is indicated as 0. 00 and the leave days taken is also indicated as 0 .00 . 5.31 Furthermore, both pay slips have indicated incomes paid to the J26 Complainant as basic pay (Kl ,599.52), housing allowance (Kl ,000.00), bonus (Kl00.00), and transport (Kl ,000.00), totaling to a gross income of K3,699.90, under the February pay slip; and basic pay (Kl ,600.00), housing allowance (Kl ,000.00) and transport (Kl ,000.00), totaling to a gross income of K3,600.46 , under the July pay slip. Leave days allowance has not been indicated under the list of incomes in either pay slips. 5.32 From the foregoing details, it is apparent that the Complainant was not paid his leave days and the Respondent has failed to provide evidence in rebuttal. In this regard, I find merit in the Complainant's claim for payment for leave days for the years served. 6. ORDERS e 6 . 1 In view of the foregoing, I make the following orders: 6.1.1 the Complainant's claim for damages for unfair dismissal succeeds. The Complainant shall be paid 1 month's salary in damages. The sum payable shall attract interest at short term deposit rate from the date of Complaint to the date of Judgment and thereafter, at current lending rate as determined by the Bank of Zambia until full payment; J27 6 . 1.2 the Complainant's claim for benefits for the years served fails and is here by dismissed; 6. l.3the Complainant's claim for payment for leave days for the years served hereby succeeds. The computation of the leave pay shall be done in consultation with the Minimum Wages and General Conditions of Employment (General) Orders and their amendments applicable during the subsistence of the Complainant's employment. For avoidance of doubt, the Orders applicable shall be the now repealed Statutory Instrument No. 57 of 2006 and the General Orders listed in paragraph 5 .25 above. To facilitate the necessary computations, the matter is referred to the Registrar for assessment. 6.1.4 The resultant figure shall attract interest at short term deposit rate from the date of Complaint to the date of Judgment and thereafter, at current lending rate as determined by the Bank of Zambia until full payment; 6.1.5 Each party shall bear its own costs. 6.2 Leave to appeal is denied. I am fortified, in this regard, by Order 10, rule 4 (1) of the Court of Appeal Rules, Statutory Instrument No. 65 of 2016 (the Court of Appeal Rules) , which states as follows: I • J28 "The High Court or a quasi-judicial body may grant or refuse leave to appeal to the Court without formal application at the time when judgment is given, and in that event the judgment shall record that leave has been granted or refused accordingly." Delivered at Lusaka this 2 nd day of August, 2022. Dr. Winnie Sithole Mwenda JUDGE