Keno Mwamba Sangwa v Mary Begg Memorial Clinic Ltd (2024/HN/IR/74) [2025] ZMHC 115 (1 September 2025)

, IN THE HIGH COURT FOR ZAMBIA AT THE DISTRICT REGISTRY HOLDEN AT NDOLA (Industrial Relations Division) BETWEEN: 2024/HN/IR/7 4 KENO MWAMBA SANGWA OMPLAINANT AND MARY BEGG MEMORIAL CLINIC LTD RESPONDENT Before the Honourable Mr. Justice Davies C. Mumba in Chambers on the 1st day of September, 2025. For the Complainant: Mr. M. Benwa, Messers Mike Benwa Legal For the Respondent: Mr. K. Wishimanga and Ms. Kate Nalondwa, Messers AMW and Co. Legal Practitioners. Practitioners. JUDGMENT Cases referred to: 1. Elizabeth Sokoni Mwenya v CFB Medical Centre Limited, SCZ Appeal No. 009 of 2015. 2. Redrilza Limited v Abuid Nkazi and Others, SCZ Judgment No . 7 of 2011. 3. Eston Banda and another v The Attorney-General, Appeal No. 42 of 2016. 4. Chilanga Cement v Venus Kasito, Appeal No. 86 of 2015. 5. Attorney-General v Phiri (1988-1989) Z. R. 121 (S. C). 6. Josephat Lupemba v First Quantum Mining Operations Limited, Appeal No. 20 of 2017. 7. Chilanga Cement Pk v Kasote Singogo (2009) Z. R. 122 (S. C). 8. Barclays Bank of Zambia Pk v Weston Lyuni and Suzyo Ngulube, SCZ Appeal No. 07 /2012. 9. Dennis Chansa v Barclays Bank Zambia PLC, Appeal No.111 / 2011. 10. Kitwe City Council v William Ng'uni (2005) Z. R. 57 (SC). J2 11. Chola Chama v Zambia Electricity Supply Corporation Limited (2 008) Z. R. 222. Legislation referred to: 1. The Employment Code Act No.3 of 2019. 2. the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. 3. The Industrial Relations Court Rules, Chapter 269 of the Laws of Zambia. Other works referred to: 1. W. S Mwenda, Employment Law in Zambia: Cases and Materials: UNZA Press , Lusaka, 2004. 2. Winnie Sithole Mwenda and Chanda Chungu: A Comprehensive Guide to Employment Law in Zambia: UNZA Press. Lusaka, 2021. 1.0. INTRODUCTION 1.1. By notice of complaint supported by an affidavit filed into court on 21 st October, 2024, the complainant commenced this action against the respondent seeking an order that he was unfairly, unlawfully and/ or wrongfully terminated by the respondent; 42 months ' salary or such higher amount as the court may deem fit as damages for unfair, and/ or unlawful and/ or wrongful termination and loss of employment; damages for unfair, wrongful and discriminatory dismissal; damages for loss of future earnings in salaries, allowances and pension benefits; interest on all sums due; any other relief the court may deem fit; and costs of and incidental to this action. J3 1.2 . The respondent opposed the complainant's claims and in doing so, filed into court an answer and an affidavit in support thereof on 13 th December, 2024 sworn to by Margaret Mulenga, Human Resource Manager in the respondent company. 1.3. It was the respondent's contention that the complainant abrogated its disciplinary code thereby warranting the institution of the disciplinary process against him which ultimately led to his dismissal. That the complainant was fairly treated at all times in the course of his dismissal and as such, he was not entitled to any of the reliefs he was seeking. 2.0. THE COMPLAINANT'S CASE 2 .1. In his affidavit in support of the notice of complaint, the complainant deposed that he was employed by the respondent in 2017 as a Medical Doctor on a fixed term contract for two years and he was assigned to work at the respondent's clinic in Solwezi. That he worked diligently and the respondent renewed his contract three times, his last contract, "KMSl " having been renewed on 27 th March, 2023. That his duties included attending to patients, supervising nurses , creating and administering a duty roster. J4 2.2 . The complainant averred that according to clause 4.0 of his contract, he was required to work for 42 hours per week and 168 hours per month. That by clause 7 of the said contract, he was entitled to 24 days annual leave . That clause 9.0 of his contract provided that he was subject to the respondent's Disciplinary Code of Conduct and Grievance Procedure, "KMS2." 2. 3. That according to clause 4 of the aforesaid Disciplinary Code and Grievance Procedure, "KSM2" the role of the Human Resources department was to provide guidance to the investigating and disciplinary committee. That the Human Resources department could not have any influence on the outcome of the disciplinary process but only advise on the law, process and procedure. That clause 7.0 of the Disciplinary Code and Grievance Procedure, "KSM2 " gave him the right to a fair hearing including being given an opportunity to exculpate himself, ensuring that his rights and interests were protected and that dignity was preserved at all times. That under clauses 9.0 and 10.0, the respondent was required to conduct initial preliminary investigations into an alleged offence so as to begin a formal investigation. That where a formal investigation was initiated, the respondent's charging officer had to report the matter to the Human Resource department who would then arrange for a formal investigation to take place . That under clause 11.0, JS the complainant's supervisor was supposed to ensure that the charge was formulated verbatim using the respondent's charge form in accordance with the schedule of offences along with specific factual information relating to the alleged offence . That under clause 11.4, there were no exceptions to the charging process no matter how obvious the alleged offence might be. Further, that according to clauses 11.10 and 12 .4, the members of the disciplinary committee, the accused employee, the charging officer and Human Resource officer had to attend the hearing and give the accused employee an opportunity to present and defend his case. 2.4. The complainant explained that during his work with the respondent, they had a process called 'triage' which involved the sorting of patients so as to determine the order in which the patients were to be treated by assigning precedence according to the urgency of the illness or injury. 2.5. That in September, 2023 while already attending to green or stable patients, a locum Nurse presented to him two patients she had triaged and placed on fast track basis. That following an examination of the first patient and his vitals, the complainant established that the first patient was infact a stable patient that did not need to be placed on fast track and the second patient was the one who needed to be fast tracked. That he then consulted the Nurse who had taken the two J6 patients and advised her to use her common sense in conducting the triaging process so as to avoid the mistake of placing patients that were stable on fast track, leaving out patients who needed to be fast tracked. That he believed that telling someone to use their common sense meant telling him/her to use his/her good sense and good judgment in practical terms. 2.6. That a few days later, he was surprised to see a charge form stating that he was charged with the offences of use of abusive language towards staff or patients under part X(b) of the respondent's Disciplinary Code; the offence of indiscipline or disorderly behavior under part VII; and discourteous or inappropriate conduct, conduct unbecoming, insolence and/ or use of language or remarks that are insulting, abusive and/ or obscene to fellow employees or patients under part X(c). That the said charge form was not accompanied by the complainant's detailed statement nor was it given to him along with specific factual information relating to the alleged offence he had committed but he was left to guess what exactly he had done. 2. 7. That on 8th November, 2023, he was called into a room where he was asked about what had happened and to give a statement and he narrated what had happened. That he was not allowed to hear the specific and factual information J7 about the alleged complaint against him nor did they explain to him anything. That they also did not give him an opportunity to present and defend his case or to cross examine or challenge the facts of his alleged accuser as he was asked to leave before the alleged accuser was called to give her facts. 2 .8. He stated that on 21st November, 202 3, he received the letter, "KMS3, " by which he was informed that he was found culpable of the offence of discourteous or inappropriate conduct, conduct unbecoming, insolence and/ or use of language or remarks that are insulting, abusive and/ or obscene to fellow employees or patients. That he appealed to the General Manager, Peter Kanaganyagam who requested for more evidence and informed him he would call for a meeting or hearing but never did so. 2. 9. The complainant also averred that one of his duties was to prepare and administer the duty rosters which involved posting Doctors on the work schedules and placing them on shifts. That he performed the said duty for three years and it was agreed that every Doctor that went on leave should report back in the afternoon shift on their return from leave. That that was in order to avoid the confusion of finding already set appointments that the returning Doctor would not be aware of and would need ample time to catch up with. He J8 stated that the Chief Medical Officer, Dr. Mulan1ba was aware of the rostering exercise and had supervisory, approving and administrative powers over it as well. That he used to prepare the rosters on the 14th day of every month and they would run from the 15 th day of the month to the 14th day of the next month. That he used to submit the rosters to Dr. Mulamba for approval and they would only become effective upori approval. The complainant stated that he prepared duty rosters for the periods 15 th March to 14th April, 2024; and 15 th April to 14th May, 2024 which were accordingly approved. 2.10. That on 12 th April, 2024, having accumulated 29.7 days of annual leave, he informed Dr. Mulamba about his intention to apply for leave. That Dr. Mulamba then advised him to indicate on the white board in his office and told him that he should report back on 17 th May, 2024 on which date another Doctor was starting her leave. That he applied for leave using the respondent's software system called Bamboo-HR and the leave was approved as evidenced by an excerpt from the said system, "KMS4". That he also indicated the same on the white board and requested to take 12 days annual leave from 29 th April to 16 th May, 2024 meaning that he was to return to work on 1 T h May, 2024. 2.11. He deposed that whilst he was on leave, the Doctors continued to use the duty roster for the period 15 th April to J9 14 th May, 2024 that he had left until 8th May, 2024 when Doctor Mulamba assigned the task to other Doctors. That having been on leave, he stayed away from work activities unless it was urgent for him to conduct work. That at the date of making the next time table for the period 14th May to 15 th June, 2024 , he was no longer assigned the role of working on the time table and he did not work on it. That as at 17th May, 2024, no roster was prepared by the other Doctors nor did the said Doctors avail him any such roster for the period 15 th May to 14th June, 2024. 2.12. He averred that he reported back for work on 17th May, 2024 in the afternoon shift as that was the usual practice amongst Doctors when returning for work from annual leave or changing from night shift. He stated that it was during the afternoon shift that the supervisor would brief the Doctor on the on-goings of the hospital and give the directives on how, as a returning Doctor, he was supposed to operate and the shift to get into in order to have a smooth transition. He stated that upon reporting, he attended to three patients as shown by the General Practice Examination Reports collectively marked "KMS5. " That whilst conducting his duties, DR. Mulamba called him to his office and to his surprise, Dr. Mulamba instructed him to leave and go home instead of giving him the way forward and the shift he was supposed to work in. That he was allowed to return to work JlO on Monday, 20th May, 2024 and he proceeded with his normal duties. 2.13. That on 28 th June, 2024, he was surprised to receive the charge form, "KMS6 " which stated that he had been charged with the offences of poor time keeping and absenteeism, unsatisfactory work performance and indiscipline or disorderly behaviour. The complainant stated that the said charge form was not accompanied by a detailed statement and he was not given the specific factual information relating to the offences he had allegedly committed. That after trying to guess what the charge form was about, he gave his statement, "KMS? ," denying the allegations and stating that he did not understand what the charge was all about. 2.14. That on 16th July, 2024, he met Dr. Lyon Chipandwe, the Chief Medical Officer, who told him that his case was bad, that he was going to lose his job and that no one was willing to help him. That he felt so disturbed and immediately told his wife about what Dr. Chipandwe had told him. 2 .15. He deposed that on 9 th July, 2 024, he was called to attend what was called a disciplinary hearing which was chaired by Dr. Lyon Chipandwe. He stated that the Committee Chairperson and every other member of the said committee were totally malicious and biased against him. Further, that Jll they had a pre-determined decision of dismissing him from his employment such that they did not allow him to hear the evidence of the charging officer, Dr. Mulamba despite having told them that he did not understand what the charges were all about as the factual information was not given to him to allow him to properly defend himself. That he was made to wait outside whilst Dr. Mulamba was giving his account of events . That when he was called in, Dr. Mulamba was asked to leave, making it impossible for him to hear his account of events or to challenge the said account of events. 2.16. That as at the date of the hearing, the respondent had failed, refused and/or neglected to give him the investigations report as required by the Disciplinary Code of Conduct. Further, that at the end of the disciplinary hearing, the committee Chairperson and members also refused, failed and intentionally avoided to give him the minutes of the disciplinary case hearing of 9 th July, 2024 for him to sign and confirm the contents of the said case hearing. 2.17. He averred that on 23 rd July, 2024, following a frivolous disciplinary hearing, the respondent summarily dismissed him from employment as shown by the letter, "KMS8." He stated that he appealed against the dismissal to the General Manager on the grounds that the procedure was not followed and that he did not commit any of the alleged offences. J12 However, the appeal was unsuccessful as shown by the letter, "KMS9." 2.18 . He contended that his dismissal from employment was illegal, unfair and wrongful as there was no substratum of facts to support any reasonable finding of guilt on his part because he undertook all orders and instructions Dr. Mulamba gave him. That is, he applied for leave from 29 th April to 16 th May, 2024 as instructed and reported back for work on 17 th May, 2024. 2 .19. The complainant also averred that the respondent discriminated against him and refused, failed and/ or neglected to treat him in a similar manner as his colleagues that all reported back in the afternoon shift when returning from leave among them, Dr. Elizabeth Kambiwili who went on leave and resumed work on 2 l5t December, 2023 at 15.00 hours; Dr. Gabriel Mbwanga who went on leave and resumed work on 1st February, 2024 at 15 .00 hours; Dr. Mus owe Muto who went on leave and resumed work on 7th March, 2024 at 15.00 hours; and Dr. Gregory Maluwa who went on leave and resumed work on 11 th June, 2024 at 15.00 hours. To that effect, the complainant produced an excerpt from a roster, "KMSl0." That, therefore, the respondent did not have any valid reason as to why he was treated with disparity and in a discriminatory manner. J13 2 .20. The complainant further averred that it was extremely difficult for him to find alternative employment considering the prevailing economic circumstances in the country. That there being no valid reason given by the respondent for terminating his employment suggested unbefitting conduct and created distrust which would prejudice his future prospects of employment. That he was employed on contracts that were always renewed and as such, he had a settled hope of working for the respondent and getting respective earnings until retirement. That he expected to earn future earnings in form of his salaries, allowances and his pension benefits. 2 .21. Furthermore, it was his averment that he was not prepared for the shocking loss of employment. That his livelihood was wholly dependent on his employment with the respondent. That the behaviour of the respondent had caused him undue distress, mental suffering, financial difficulties, mental anguish to his family and great loss of his future earnings as it came as a result of a deliberate disregard of the law and the Disciplinary Code of Conduct on the part of the respondent .. 2.22. At the trial, the complainant testified that on 6th July, 2024 whilst on duty at Kansanshi Mine hospital in Solwezi, he met with Dr. Lyon Chipandwe who told him that he was there for J14 a hematology session. That Dr. Chipandwe also told him that he was asked to be the Chairperson in his disciplinary hearing and that his case was bad and no one was willing to save him. That Dr. Chipandwe advised him to apologise to his supervisor during the hearing. 2.23 . That the second point concerned the duty roster for Doctors at Kansanshi Mine. That he was tasked to make the duty roster for all the Doctors by the Chief Medical Doctor, Dr. Seraphim Mwamba Mulamba. That the duty roster used to run from the 15 th of each month to the 14th of the next month. That before coming into effect, the duty roster was discussed with either the Chief Medical Officer or one of the Senior Medical Officers . That the last roster he made was from 15 th April to 14th May, 2024 and it was discussed and approved by the Chief Medical Officer. 2.24.lt was the complainant's testimony that he went on leave from 29 th April to 16 th May, 2024. That whilst on leave, the responsibility of preparing the duty roster was taken away from him and given to another Doctor. However, before going on leave, he had left a draft duty roster which was supposed to run from 15 th May to 14t h June, 2024 which had not been discussed or approved by the Chief Medical Officer. JlS 2. 2 5 . Further, the complainant referred the court to exhibit 'MM 11' in the respondent's affidavit in support of the answer and stated that Allan Mambwe who was mentioned as a patient was an ambulance Driver in the triage room. He stated that at the Kansanshi Mine hospital, Doctors always supervised the work of the nurses although they worked as a team. 2.26. During cross-examination, when referred to paragraph 15 of the affidavit in support of the notice of complaint, the complainant confirmed that he was on duty on the material date. That a Nurse presented to him two patients, but he was not happy with the manner in which the Nurse categorised the patients that she presented to him. That the Nurse did not screen the patient properly. He stated that he went to see the Nurse after examining the patients but he did not express his displeasure to the nurse about the way she triaged the patients. He denied shouting at the Nurse. 2.27. When referred to paragraphs 16 and 17 of his affidavit in support of his notice of complaint, he admitted that he told the Nurse to use her common sense when triaging patients but that did not make her unhappy. He stated that he could not confirm if the Nurse had reported him about the way he spoke to her but he was asked to write an incident report of what had happened with the Nurse on triage on 12 th September, 2023. That he did not know if there was any J16 complaint by the Nurse at that time but that he later learnt that there was in fact a complaint from the Nurse about the incidents. He denied that the only time they wrote incident reports was when they were to be subjected to the disciplinary process. That it was not possible to be told to write an incident report where there were no issues. He admitted that what happened in the triage room culminated into him being charged with some offences. 2.28 . When referred to the charge form, "MM?", the complainant confirmed that the charge arose from of what transpired between him and the Nurse. 2. 2 9. When referred to paragraph 19 of his affidavit in support of the notice of complaint, the complainant confirmed that his complaint was that the charge was not accompanied by the complainant's detailed statement of what had transpired. He admitted that he was subject to the respondent's Disciplinary Code, 'KMS2' during his employment. When referred to clauses 11.1 and appendix 'A' of the said Disciplinary Code and the charge form, 'MM?', the witness denied that appendix 'A' was the same document that the respondent used to charge him. 2. 30. When referred to page 12 of the Disciplinary Code, 'KSM2 ', he admitted that the offence he was charged with was derived J17 from the said code under paragraph vii(c) of the schedule of offences and it was cited verbatim as required: That if found guilty, the penalty was final written warning on first breach and dismissal on second breach. The complainant admitted that the respondent gave him a chance to exculpate himself. When referred to exhibits "MM8 " and " MM9" , the complainant confirmed that exhibit "MM8" was a request for him to explain what had happened and exhibit "MM9" was his statement in response thereto. When referred to paragraph 20 of the affidavit in support of the notice of complaint, he confirmed that he was called to a room where he was asked about what had happened and he gave a statement about what had transpired. He stated that he was not aware of the meeting that was held on gth November, 2023. When referred to the letter, 'MMl0', he admitted that it was a notification of his disciplinary case hearing but stated that he had never seen the said document before . He , however, admitted that he was subjected to a disciplinary hearing after which he was found guilty and was he given a final written warning as a first offender as shown by the letter, "KMS3. " That the final written warning was in force from 8th November, 2023 to T h August, 2024. He admitted that if he repeated the same offence within the said period, the penalty would be dismissal. He admitted that he was informed of his right to appeal and he exercised it. When referred to paragraph 2 2 of the affidavit in support of the notice of complaint, he J18 admitted having appealed to the General Manager via the email, "MM12. " That according to the second page of the said email, the General Manager did not promise him any hearing. He stated that he never received the outcome of the appeal spoken of by the General Manager in the said email. 2. 31. Still under cross-examination, the complainant confirmed that one of his duties was to prepare a duty roster. That before going on his annual leave, he prepared a duty roster for the period 15 th April to 14 th May, 2024. That he alsd prepared a draft duty roster for the period 15 th May to 14 th June, 2024. That his annual leave was from 29 th April, 2024 to 16th May, 2024. When referred to an extract of his approved leave, "MM14", he stated that he was supposed to report for work on 17th May, 2024 but his leave form showed that he was supposed to be on leave on l T h May, 2024. He stated that his leave was for 10 days. He stated that according to the draft duty roster, he was supposed to report back for work on 20 th May, 2024 but in actual fact he was supposed to report back on 17th May, 2024. He denied that he was trying to mislead the respondent. He stated that he reported for work on l T h May, 2024 at 15 .00 hours. That it was a policy that Doctors returning from leave had to report at 15.00 hours but he had no documentation to that effect. That it was a local policy of the respondent as every hospital under the respondent had its own policy relating to duty rosters. J19 2.32. He confirmed that whilst he was on leave, the responsibility to make a duty roster was given to Dr. Muto. He disagreed that he was not happy with the change. When referred to paragraph 63 the minutes of the investigation inquiry, 'MM20', he admitted that according to the investigator, he (the complainant) was not happy about removing him from preparing the duty roster. He stated that when he reported for duty on 17th May, 2020 at 15.00 hours, the Chief Medical Officer called him to his office and asked him why he had given himself three extra days of leave on the duty roster. That after the discussion, he left the office to go and continue seeing his patients but he was chased from work by the Chief Medical Officer. That, thereafter, he was charged for reporting for work at 15 .00 hours as shown by the charge form, 'KMS6'. That he was given an opportunity to exculpate myself. He stated that a disciplinary hearing was conducted in respect to that charge. That the Chairperson of the disciplinary committee was Dr. Lyon Chipandwe, the same man who had told him that no one was going to save him. He stated that he did not object to Dr. Chipandwe being part of the disciplinary hearing panel. That he spoke to Dr. Patrick Mufinga and Thabo Nkhoma and his wife about Dr: Chipandwe being part of the disciplinary committee. That he did not complain about Dr. Chipandwe being part of the disciplinary committee as he had no issues with it. He stated J20 that there was nothing on record showing what Dr. Chipandwe had told him. 2.33. He stated that after the hearing, he was found guilty and dismissed from employment because, according to the respondent, he had repeated the offence whilst serving a final warning. That he appealed against the dismissal but his appeal was unsuccessful. He confirmed that the respondent paid him what was due to him after being dismissed. 2 .34. In re-examination, the complainant referred the court to the charge form, 'KMS6 ', and stated that he was not given a chance to exculpate himself against the charges that were leveled against him. 3.0. THE RESPONDENT'S CASE 3 .1. In its affidavit in support of the answer and through the viva voce evidence of Kennedy Munkondya (RWl), Senior Human Resource Officer, the respondent confirmed that the complainant was employed by the respondent in 2017 as a Medical Doctor on a fixed term contract for two years and he was based at the respondent's clinic in Solwezi. 3.2. That while the respondent renewed the complainant's contracts of employment on three occasions, the J21 complainant did not serve the respondent diligently during the tenure of his employment under the various contracts. That during the course of his employment, the complainant was constantly in conflict with the rules and regulations of the respondent. That the respondent kept on hoping that the complainant would eventually change his behaviour and conduct especially towards his fellow employees, his supervisors and patients. 3.3. It was the respondent's evidence that on 21 st May, 2019, the witness had his first encounter with the complainant when he committed an offence. That the complainant was charged by his supervisor for an offence relating to sexual harassment. That the complainant was called for a disciplinary hearing regarding the said charge as shown by the notification of a disciplinary case hearing, "MM 1. " Tha~ the complainant was found guilty and given a nine months final written warning as evidenced by the letter, "MM2." in accordance with clause 16.4 of the Disciplinary Code of Conduct and Grievance Procedure, "MM 13" . 3.4. That on another occasion on 13 th May, 2021, the complainant was again charged with the offence of indiscipline and disorderly behaviour as shown by the charge form, "MM3 " fo r use of verbal abuse against a patient. That the complainant J22 was heard and found guilty as charged. That he was given a written warning, "MM4". 3. 5. It was stated that during the course of his service with the respondent, the complainant displayed repeated arrogance and abrogation of the respondent's established rules and code of conduct. As a result, on 28 th February, 2023 during the performance review of the complainant, the respondent made recommendations that the complainant improves his communication skills, team work and general relations with members of staff as shown by the performance review sheet, "MMS." 3.6. It was stated that the complainant's last contract, "MM6" was for a duration of two years from 13 th March, 2023 to 12 th March, 202 5. That under the said contract, the complainant had various duties as a Medical Doctor but none of which included the supervision of Nurses employed by the respondent. 3.7. That on 12 th September, 2023, the complainant behaved in an inappropriate manner by using remarks that were abusive and disparaging to a Nurse named Agness Kapesa who had seen a patient she triaged a yellow for fast track as per the triage decision guide. That she then handed over the patient to the complainant who was managing the outpatient J23 department fast track for the day. That upon seeing the patient, the complainant proceeded to question the Nurse , in a manner that was inappropriate, disrespectful and embarrassing to the Nurse , as regards why the patient was triaged fast track, prompting the Nurse to report him. That the incident happened in the presence of other Nurses and a patient who witnessed the incident attested to the disparaging nature of the approach invoked by the complainant. 3.8. It was stated that the complainant's behaviour and/ or conduct as well as the inappropriate language towards the Nurse was below the standard of the respondent which the complainant was aware of at all times. That the respondent investigated the matter which culminated into the complainant being charged in accordance with section X(b) of the respondent's Disciplinary Code of Conduct and Grievance Procedure, 'MM13,' with the offence of 'use of abusive language towards staff or patients' and under section VII with the offence of 'indiscipline or disorderly behaviour as show~ by the charge sheet, "MM?." That the complainant was asked to exculpate himself by the supervisor as evidence by the form, "MM8". In response, the complainant provided his account of the events that had transpired via his statement, "MM9." Thereafter, the respondent convened a disciplinary hearing where the complainant was given an opportunity to J24 be heard and call any witnesses as shown by the summary of the disciplinary hearing, "MM 11." 3.9. That the above case resulted in the complainant being given a final written warning in November, 2023. That the written warning was in force for nine months from 8th November, 2023 to 7th August, 2024. That the complainant lodged an appeal against the final warning to the General Manager through the email, "MM12 " but the said appeal did not bring out any grounds of appeal set out under section 17.3 of the respondent's Discipline Code, "MM13." It was contended that while the complainant was serving the final written warning, he committed another offence in 2024 to do with absenteeism and poor time keeping as well as insubordination. 3.10. It was the respondent's further evidence that the respondent had a human resource management system called Bamboo HR which was the platform on which all employees were required to apply for leave. 3.11. That in addition to having the Bamboo-HR system for leave application, there was also a duty roster which used to be prepared by a Doctor assigned to do so by the Chief Medical Officer. That the duty roster which was designed to allocate Doctors' shifts ran from the 15 th of every month to the 14th of • J25 the next month. That the said duty roster showed when each, Doctor was supposed to go for work and if anyone was going on leave. That the duty roster acted as a guide to the Doctors . That it was a live Google document that was accessible to all the Doctors as viewers and also to the reception unit leader for their respective ease of access. That any alteration to the duty roster was immediately seen by all users in real time without any prior approvals. That contrary to the complainant's assertions, the role of the Chief Medical Officer in relation to the duty roster was not to approve it but to provide guidance as to the allocation of the shifts on the duty roster. 3.12.lt was the respondent's evidence that in April, 2024, the complainant had applied for leave which was to run from 29 th April to 16 th May, 2014. That he applied for leave using Bamboo-HR and the leave was approved by his immediate supervisor and the Human Resource Officer as· shown by the excerpt, "MM14" from the said system. That during the period the complainant applied for leave and before he proceeded on leave, he had been given the responsibility to prepare a duty roster, which responsibility he had carried out for a period of three years. That, however, many other Medical Doctors had been accorded the duty of making the time table before the complainant. 3.13. That when the complainant took his leave, it was agreed, J26 between the complainant and his immediate supervisor, the Chief Medical Officer, that the complainant was to report back for work on 17t h May, 2024. That the reason he was instructed to report on that date was that another Doctor, Dr. Kapula was commencing her leave on that same day. That Dr. Kapula was allocated to work in OPD 1 in the morning shift. That upon his return from leave, the complainant was supposed to take over OPD 1 since his colleague was proceeding on leave on that day. That it was the respondent's practice that in every event where another Doctor was starting leave, the one returning from leave had to report in the morning so as to ensure enough cover at the hospital. The respondent disputed that Doctors who went on leave were supposed to report back in the afternoon shift and stated that Doctors were supposed to follow the shift as stated in the duty roster. 3.14. The respondent contended that even though the duty to prepare the duty roster was subsequently allocated to Dr: Muto in place of the complainant whilst he was on leave, the change was effective from the cycle starting 15 th June onwards. That the duty roster which was prepared by the complainant before he commenced his leave was unaffected. That it was done in order to avoid altering the duty roster, "MM 15 "prepared by the complainant before he went on leave • J27 which also covered his leave period. That the complainant remained in charge of the duty roster during that cycle to the extent that he accessed the live roster and calculated the overtime for each Doctor so as to submit it for payroll inputs. 3.15. That having been given the responsibility to prepare the duty roster, the complainant was supposed to indicate, on the said duty roster, the period of his leave according to what was agreed between him and his supervisor. That contrary to what was agreed with the Chief Medical Officer and approved that he should return on 17th May, 2024 in the morning shift as shown by the excerpt from the Bamboo-HR,"MM14," the complainant deliberately altered the duty roster to mislead the respondent and the Doctors that his leave would run from 29 th April to 17th May, 2024 which meant that he was supposed to return to work on 20 th May, 2024 instead of 1 T h May, 2024, as evidenced by the duty roster extract, "MM16 ." 3.16. It was stated that whilst the complainant reported for duty on 17th May, 2024 in the afternoon shift, it was in total defiance of the duty roster and the need to return to his duty on time. That all Doctors returning to duty from leave were under an obligation to return during the shift allocated to them in the duty roster. That it was never the practice at the respondent's hospital to report in the afternoon shift when returning from leave; and also that it was never a requirement " J28 by the respondent for a Doctor returning from duty to meet with their supervisor regarding shifts. 3 .17. That because the complainant did not report for duty in the morning as required and he did not follow the instructions as given to him by his supervisor, he was charged with the offences of poor time keeping; unsatisfactory work performance; and indiscipline or disorderly behaviour as shown by the charge form, "MM 17". That the complainant was asked to exculpate himself within 48 hours and he did so through his exculpatory statement, "MM18." That Dr. Mulamba gave a detailed account of the events leading to the charges through the incident report, "MMl 9". Further, the respondent conducted an investigation which gave a detailed account of the events leading to the charge as shown by the investigation report, "MM20." That the complainant was then notified to appear before the disciplinary committee through the letter, "MM2 l ". 3.18. The respondent averred that whilst it was true that Dr. Chipandwe was the Chairperson of the disciplinary committee, it was not true that he had told the complainant that his case was bad, that he was going to lose his job and that no one was willing to help him prior to the hearing. J29 3.19. It was stated that during the disciplinary hearing, the complainant was given an opportunity to be heard on the charges that were leveled against him, he had an opportunity to call his witnesses and ask questions as shown by the minutes of the hearing, "MM22 ". After the hearing, the committee found the complainant guilty as charged. That because he was serving a final written warning, and as provided for in clause 16.4 of the Disciplinary Code of Conduct and Grievance Procedure, "MM 13" the complainant was dismissed from employment as shown by the letter, "MM23. " That the complainant was informed of his right to appeal to the General Manager within 5 days and he did so but his appeal was unsuccessful as shown by the letters, "MM25 " and "MM26. " 3.20. The respondent denied that the complainant's dismissal from employment was illegal, unfair and wrongful. It was argued that the complainant was dismissed due to his conduct during the course of his various contracts with the respondent and in accordance with the law, the disciplinary code and the rules of natural justice. 3.21. It was the respondent's further evidence that the complainant suffered no discrimination during the process leading to his dismissal. That all his allegations were tainted with malice. That Dr. Elizabeth Kambwili was scheduled to J30 report back for work at 07 .00 hours while Dr. Gabriel Mbwanga resumed work in the afternoon at 15 .00 hours as per the duty roster. That Dr. Musowe Muto resumed work at 07.00 hours as per the duty roster; and that Dr. Gregory Maluwa was still on leave as at 11 th June, 2024. To that effect, the respondent produced the duty roster, "MM27." 3.22. It was the respondent's evidence that the respondent dismissed the complainant because he did not serve diligently and his fate was as a result of his actions . 3.23. That following his dismissal from employment, the respondent cleared the complainant of all his terminal benefits and he acknowledged by way of signing the final release and acknowledgment of terminal benefits, "MM28 " as well as the pay slip and proof of payment from the bank showing how much the complainant was paid. 3.24. The respondent argued that the complainant's case was frivolous and lacked merit. It urged the court to deny him the reliefs sought. 3.25. It was the respondent's further evidence that while the disciplinary process was going on, the complainant's employment permit had expired and as per policy, the respondent renewed the employment permit during the same J31 time. The witness stated that the complainant contacted him as he was the one responsible for the renewal of the permit. 3 .26. During cross-examination, the witness confirmed that the complainant's work permit had not been renewed by 17th May, 2024. He admitted that they did not allow people to work without a work permit but stated that the complainant was still supposed to report for work on 17th May, 2024 . That there was a special procedure that applied to employees without work permits although he did not explain it in the respondent's affidavit in support of the answer or in his evidence in chief. He confirmed that the complainant was only issued with a work permit sometime in August, 2024. The witness confirmed that it was the duty of the respondent to obtain the work permit for the complainant. He denied that the respondent was only trying to cover up its failure to obtain the complainant's work and resident permit through the disciplinary process. 3.27 . When referred to the charge form, "MM17," the witness stated that the complainant was charged on 28 th June, 2024. He admitted that it was a requirement that the charge form had to be accompanied by a statement of facts by the charging officer but there was no statement of facts attached to it. He stated that the facts were presented to the complainant when he was being given the charge form although such facts were J32 not before court. He stated that he was not there at the time the charge form was being issued. 3.28. When referred to the respondent's Disciplinary Code of Conduct and Grievance Procedure, "MM13," the witness admitted that under clause 9, it was a requirement that preliminary investigations had to be conducted by obtaining statements from people involved. That under clause 10, it was also a requirement that a formal investigation had to be conducted by obtaining statements . That, thereafter, the charge could be raised where the need arose. That after raising the charge, it was a sacrosanct rule that the employee had to exculpate himself. He confirmed that the exculpation had to come after the charge and not during preliminary investigations as per clauses 11 .1 and 11.4 of the respondent's Disciplinary Code of Conduct and Grievance Procedure, "MM 13 ." The witness insisted that the complainant was given an opportunity to be heard and referred the court to the complainant's exculpatory statement, "MM18". He stated that the statement was taken on 22 nd May, 2024 before the charge was raised. That there was no exculpatory statement that was obtained from the complainant after the charge was raised. He admitted that there was no factual information that was given to the complainant to understand the charges against him. J33 3.29. The witness stated that the notification for the disciplinary hearing, "MM2 l" was issued before the hearing. He confirmed that the complainant's disciplinary hearing was held on 9th July, 2024 as shown by the minutes of the hearing, "MM22, " the same day the notification of the hearing, "MM2 l " was delivered to the complainant. He explained that the practice was that the notification used to be sent via email and the hard copy later. That the date on the hard copy letter was not the actual date that the notification was sent. He stated that the email of the notification was not before the court and he did not tell the court that the notification was sent via email in his evidence in chief. 3.30. When referred to the minutes of the hearing, "MM22, " the witness stated that he was not in the disciplinary hearing but his junior was assigned to attend the hearing. When referred to page 2 of the said minutes, he confirmed that the charging officer was called and he gave an account of the charges. When referred to page 9, the witness confirmed that the complainant was only called into the hearing after the charging officer had given an account of the charges that were leveled against him. When referred to clause 1.3 on page 2 of the respondent 's Disciplinary Code of Conduct and Grievance Procedure, "MM13, " the witness admitted that the code required overall uniformity and consistency in dealing with disciplinary matters within the company. He stated that J34 it was not wrong for the disciplinary committee to keep the complainant outside when the charging officer was giving evidence. 3.31. The witness stated that he was aware of the rules of natural justice. When referred to page 10 of the minutes of the hearing, "MM2 2, " the witness stated that the complainant was not brought in the hearing when the charging officer was giving his evidence. He admitted that the information on pages 2 to 9 showed that the complainant was not yet in the hearing. He denied that pages 9 and 10 showed that shortly after the complainant was asked to go in, the charging officer was asked to leave the case hearing. That the charging officer explained the details of the case before he was allowed to leave. He conceded that the complainant was not present when the charging officer was explaining the details of the case to the disciplinary committee. He denied that pages 9 to 21 showed that the complainant was not allowed to examine the information that was given by the charging officer. He stated that at no point was the charging officer called back into the hearing. 3.32. When referred to the details of the incident report, "MM19 " and the minutes of the investigation inquiry, "MM20," the witness admitted that there was no evidence showing that the documents were given to the complainant. When referred to J35 page 33 of the Disciplinary Code of Conduct and Grievance Procedure, "MM13" and the complainant's statement, "MM18,"the witness stated that the two documents were different documents . That there was one disciplinary statement form and the other one was a staff statement. 3.33 . The witness stated that he was not aware that the duty roster that the complainant shared was just a draft. When referred to the duty roster, "MM16, " the witness stated that it indicated 'false' for Dr. Remy because it was an excel document and the system was not complete. He admitted that according to paragraphs 30 to 32 of the affidavit in support of the notice of complaint, the duty roster was in its draft stage and it was done whilst the complainant was on leave. He stated that he was aware that Dr. Muto was given the assignment of preparing the duty roster before the complainant returned from leave. That the duty roster that was prepared by Dr. Muto was not before court. When referred to the excerpt from Bamboo-HR, "MM14, " the witness stated that the complainant respected his supervisor's instructions and indicated that his leave would end on l 6c~ May, 2024 and would return to work on 17th May, 2024. 3.34. He stated that all of the respondent's rules governing its employees were written down. That complainant's contract of employment did not indicate that the complainant only J36 had to work in the morning shifts. That the excerpt from the Bamboo-HR system, "MM14" did not show that the complainant could not return to work in the afternoon shift on 17th May, 2024. He confirmed that the complainant reported for work on l Th May, 2024 and he worked. He also confirmed that the respondent's institution was a 24-hour service hospital and patients could walk in at any time. 3.35. When referred to the letter, "MM26" for the outcome of the complainant's appeal, "MM26," the witness stated that he had not brought the appeal outcome of the offence for which the complainant was given the final written warning. He admitted that the final written warning of 2019 and the written warning of 2020 lapsed due to passage of time and the issuance of a new contract of employment to the complainant in March, 2023 . 3.36. He stated that the complainant's working hours were 42· hours per week. When referred to clause 4 of the complainant's contract of employment, "MM6", the witness stated that all that was indicated was that the complainant was to work for 42 hours in a week and it did not state the actual times at which he was supposed to work. 3.37. In re-examination, the witness stated that it was not wrong for the complainant to report for work despite his J37 employment permit having expired because an application for the renewal had already been lodged with the department of Immigration. 4.0. FINAL WRITTEN SUBMISSIONS 4.1. Learned Counsel for the respondent filed final written submissions. I will not reproduce them but I will make reference to them where relevant. 5.0. CONSIDERATON OF THE EVIDENCE AND THE DECISION OF THE COURT 5 .1. The facts which were common cause are that the complainan~ was employed by the respondent as a Medical Doctor in the year 2017 on a fixed term contract for a period of two years and he was based at the respondent's clinic in Solwezi. The contract was renewed twice, the last one being the contract, "KMS l " for another fixed term of two years from 13 th March, 2023 to 12 th March, 2025. 5.2. During the course of his employment, the complainant was assigned the duty of preparing duty rosters for Doctors at the respondent's hospital which used to run from the 15 th of every month to the 14 th of the next month. The last duty J38 roster the complainant prepared was for the period 15 th May to 14 t h June, 2024. 5.3. On 12 th April, 2024, the complainant indicated to the Chief Medical Officer his intention to apply for his annual leave starting from 29 th April, 2024. It was agreed between them that his leave was to end on 16th May, 2024 and that he was to report back for work on 17th May, 2024. The complainant formally applied for the annual leave from 29 t h April to 16 th May, 2024 using the respondent's Bamboo-HR system and it was approved accordingly as shown by an excerpt from the said system, 'MM14'. 5.4. The complainant proceeded on his annual leave on 29 th April, 2024 and reported back for work on 17th May, 2024 in the afternoon shift at 15 .00 hours. He attended to some patients but he was later called by the Chief Medical Officer who asked him to go back to his home. He resumed duties on 20 t h May, 2024. 5.5. On 28 th June, 2024, the complainant was charged with the offences of poor time keeping and absenteeism; unsatisfactory work performance; and indiscipline or disorderly conduct, contrary to clauses 19 (III), (V) and (VII) of the respondent's Discipline Code of Conduct and J39 Grievance Procedure, "MM13" respectively, as shown by the charge form, 'KMS6.' 5.6. With regard to the offence of poor time keeping and absenteeism, the particulars of the offence read that: 'e. Absence from duty without demonstrating proper cause or without reporting to the appropriate supervisor in a timely manner for one day.' The particulars of the offence of unsatisfactory performance read that: 'a . Failure or delay in carrying out orders, directions, assignments, instructions, etc., given by a supervisor. e. Refusal to carry out lawful orders, directions, assignments, instructions, etc., given by a supervisor or line manager.' As for the offence of indiscipline or disorderly behavior, the particulars of the offence read that: 'a. insubordination.' On the said charge form, 'KMS6', the complainant was instructed to submit a written exculpatory statement within 48 hours. He submitted his statement, 'KMS7' on 4th July, 2024 denying all the three charges. 5. 7. On 9 th July, 2024, a disciplinary hearing was held after which the charge of unsatisfactory work performance was dismissed whilst the complainant was found guilty of the offences of poor time keeping and absenteeism; and indiscipline or disorderly behaviour. According the respondent's Disciplinary Code of Conduct and Grievance J40 Procedure, 'MM 13,' the offence of poor time keeping and absenteeism carried the penalties of counseling on first breach, written warning on second breach, and final written warning on third breach. The offence of indiscipline or disorderly behavior carried the penalties of written warning on first breach, final written warning on second breach and dismissal on third breach. However, despite being his first breach on both offences, the complainant was dismissed from employment on 23 rd July, 2024 in accordance with clause 16.4 of the respondent's Disciplinary Code of Conduct and Grievance Procedure, 'MM 13' based on the fact that he was serving a nine month's final written warning imposed on him on 8th November, 2023. The said clause provided that committing an offence whilst serving a final written warning would lead to dismissal. The complainant appealed against his dismissal but his appeal was unsuccessful. 5.8. Dissatisfied with the respondent's decision, the complainant commenced this action against the respondent seeking a number of reliefs. 5.9. From the evidence in this matter, the following are the issues for determination: 5.9.1. Whether the complainant's dismissal from employment was wrongful and/ or unfair thereby entitling him to the payment of damages. r . J41 5.9.2. Whether the complainant is entitled to the payment damages for loss of future earnings in salaries, allowances and pensions benefits. 5.9.3. Whether the complainant is entitled to costs of or incidental to these proceedings. 5.10. It is trite that the burden to prove any claim made rests solely on the complainant regardless of what may be said of the respondent's case. This was the holding in the case of Elizabeth Sokoni Mwenya v CFB Medical Centre Ltd 1 where the Supreme Court held that: "A claimant always bears the burden of establishing his or her case. This requires that the complainant proves any allegation made, by adducing evidence to support such allegation, to the required standard." 5 .11. Therefore, the onus is upon the complainant to prove his claims. The standard of proof is on a balance of probabilities. 6.0. WHETHER THE COMPLAINANT'S DISMISSAL FROM EMPLOYMENT WAS WRONGFUL AND/OR UNFAIR THEREBY ENTITLING HIM TO THE PAYMENT OF DAMAGES. 6.1. First and foremost, the complainant has claimed for an order that he was unfairly, unlawfully and/ or wrongfully terminated by the respondent. J42 6.2. As rightly submitted by learned Counsel for the respondent in the final written submissions, the terms 'termination' and 'dismissal' are not synonymous. 6.3. In the case of Redrilza Limited v Abuid Nkazi and Others2, to which I have been referred by the respondent, the Supreme Court guided that there is a difference between 'dismissal' and 'termination'. That dismissal involves the loss of employment arising from disciplinary action while termination allows the employer to terminate the contract of employment without invoking disciplinary action. That, therefore, the terms 'termination' and 'dismissal' cannot and should not be used interchangeably. 6.4. I have analysed the evidence in this case and I am quite satisfied that the complainant's loss of employment arose after the respondent invoked disciplinary action against him. Therefore, the complainant's contract of employment was not terminated but he was dismissed from employment. 6. 5. Further, in the case of Es ton Banda and Another v the Attorney GeneraP, the Supreme Court has guided that: "There are only two broad categories for dismissal by an employer of an employee, it is either wrongful or unfair. 'Wrongful' refers to a dismissal in breach of a relevant term embodied in a contract of employment, which relates to the expiration of a term for which the employee is engaged; whilst 'unfair refers to a dismissal in breach of a statutory provision where an employee has a statutory right not to be dismissed. A loose reference to J43 the term 'unlawful' to mean 'unfair' is strictly speaking, in employment parlance, incorrect and is bound to cause confusion. The learned author, Judge W. S. Mwenda, clarifies on the two broad categories, in her book Employment Law in Zambia: Cases and Materials, (2011), revised edition UNZA Press, Zambia at page 136. She opines that, in our jurisdiction, a dismissal is either wrongful or unfair, and that wrongful dismissal looks at the form of the dismissal whilst unfair dismissal is a creature of statute." 6.6. The above notwithstanding, it is my firm view that the complainant's claim cannot fail simply because he had wrongly framed his claim for 'an order that he was unfairly, unlawfully and/or wrongfully terminated by the respondent' when his claim arose from a dismissal and not a termination. I am satisfied that the relief that the complainant is seeking is that his dismissal from employn1ent was wrongful and/ or unfair, and I, therefore, will proceed to determine his claim as such. 7 .0. WHETHER THE COMPLAINANT'S DISMISSAL FROM EMPLOYMENT WAS WRONGFUL 7 .1. The scope of the concept of wrongful dismissal has been settled by a plethora of authorities. 7.2. Hon. Judge Dr. W. S. Mwenda, learned author of the book entitled 'Employment Law in Zambia: Cases and Materials' states at page 18 that: J44 "The concept of wrongful dismissal is the product of common law. When considering whether a dismissal is wrongful or not, the form, rather than the merits of the dismissal must be examined. The question is not why, but how the dismissal was effected." 7.3 . Further, in the case of Chilanga Cement v Venus Kasito4, the Supreme Court held that: "The concept of wrongful dismissal is essentially procedural and is largely dependent upon the actual terms of the contract in question." 7.4. On the above authorities, for the complainant to succeed in his claim for wrongful dismissal, he has to prove, on a balance of probabilities, that the respondent breached the disciplinary procedure outlined in his conditions of service or the rules of natural justice and/ or the disciplinary procedure stipulated in the Employment Code Act No. 3 of 7. 5. The complainant argued that his dismissal from employment was wrongful because the respondent flouted the procedure outlined in its disciplinary code . That when the respondent charged him with the subject offences, the charging officer did not attach a detailed statement containing specific factual information about the offences to the charge form, as was provided for under the disciplinary code. Further, that he was not availed an investigations report. That because of J45 the same, he did not understand the charges he was given and this made it difficult for him to defend himself. 7 .6. On the other hand, the respondent argued that because the complainant did not report for duty as required; and that because he did not follow the instructions given to him by his supervisor, he was charged with the offences of poor time keeping; unsatisfactory work performance ; and indiscipline or disorderly behaviour as shown by the charge form, "MMl 7 ." That the complainant was asked to exculpate himself within 48 hours and he did so through his exculpatory statement, "MM18 ." Thereafter, the respondent conducted an investigation which gave a detailed account of the events leading to the charges as shown by the investigation report, "MM20. " That the complainant was then notified to appear before the disciplinary committee through the letter, "MM2 l " . That a disciplinary hearing was held on 9 th July, 2024 during which the complainant was given an opportunity to be heard on the charges that were leveled against him and he had an opportunity to call his witnesses and ask questions as shown by the minutes of the disciplinary hearing, "MM2 2". After the hearing, the committee found the complainant guilty of the offences of poor time keeping and absenteeism; and indiscipline or disorderly behaviour. That because he was serving a final J46 written warning, and as provided for in clause 16.4 of the Disciplinary Code of Conduct and Grievance Procedure , "MM13, " the complainant was dismissed from employment as shown by the letter, "MM23. " That the complainant was informed of his right to appeal to the General Manager within 5 days and he did so but his appeal was unsuccessful as shown by the letters, "MM25 " and "MM26. " 7.8. I have considered the parties' arguments . 7.9. The evidence on record has revealed that prior to his dismissal, the complainant was on 28 th June, 2024 charged with the offences of poor time keeping and absenteeism; unsatisfactory work performance; and indiscipline or disorderly conduct, contrary to clause 19(III), (V) and (VII) of the respondent's Disciplinary Code of Conduct, respectively, as shown by the charge form, "KMS6. " He was then advised to submit an exculpatory statement. The complainant submitted his exculpatory statement, "KMS7" denying all the charges. He was later invited to attend the disciplinary hearing which was held on 9th July, 2024 . After appearing before the disciplinary hearing and being heard on the three offences, the charge of unsatisfactory work performance was dismissed whilst he was found guilty of the offences of poor time keeping and absenteeism; and indiscipline or disorderly J47 behaviour for which he was summarily dismissed from employment. He appealed against his dismissal but the appeal was unsuccessful. 7.10. From the above sequence of events, it is evident that the complainant was accorded all his rights to a fair hearing. 7 .1 l. With regard to his contention that the charge form had no detailed and specific factual information relating to the offences he was charged with and that he was not given an investigations report thereby making it difficult to understand what the charges were about, I find that the failure by the respondent to give the complainant the investigations report and to include specific factual information relating to the offences did not prejudice the complainant in any way. There is sufficient evidence on record which has revealed that the complainant knew or ought to have known that the offences were in connection with his reporting from leave on 17t h May, 2024 in the afternoon shift instead of in the morning shift. This is evidenced by his exculpatory statement, "KMS7" where, in answer to the charges, he denied being absent on l T h May, 2024 and stated that he had reported for work on that day and that he had attended to three patients before he was asked to go home by the Chief Medical Officer. He also denied J48 the offence of insubordination and stated that he had not refused to obey the Chief Medical Officer's instructions because he had his leave application approved for the period 29 t h April to 16 th May, 2024, as agreed. That he reported back to work on 17th May, 2024 as instructed by Dr. Mulamba. 7 .12. Further, the minutes of the disciplinary hearing, "MM2 2" have revealed that when asked whether he understood the charges that were leveled against him during the hearing, the complainant indicated that he did not understand and asked for clarifications of the charges. The charging officer was then asked to explain the charges to the complainant by the Chairperson. He then explained each charge to the complainant and what they meant, after which the complainant indicated that he now understood the charges. 7 .13. On the totality of the evidence in this case, I am satisfied that the respondent had complied with the rules of natural justice when dealing with the complainant's case. In this regard, the complainant has, on a balance of probabilities, failed to prove that he was wrongfully dismissed from employment and his claim is accordingly dismissed. 8.0. WHETHER THE COMPLAINANT'S DISMISSAL FROM EMPLOYEMNT WAS UNFAIR J49 8.1. It is on record that the complainant was dismissed for the offences of poor time keeping and absenteeism; and indiscipline or disorderly behaviour. The complainant denied having committed the said offences . 8 .2. He contended that there was no substratum of facts to support his dismissal from the respondent's employment because he had carried out all the orders and instructions that were given to him by Dr. Mulamba, his supervisor. That is, that he had applied for leave from 29 th April to 16 th May , 2024 as instructed and reported back for work on 17th May , 2024 at 1 S .00 hours in the afternoon. He argued t hat he reported back for work in the afternoon shift because that was the respondent's practice that every Doctor who went on leav e should report back in the afternoon shift on their return from leave. That upon reporting back from his leav e, he attended to three patients as shown by the General Practice Examination Reports collectively marked "KMSS." Howev er, whilst conducting his duties, DR. Mulamba called him to his office and to his surprise, Dr. Mulamba instructed him to leave and go back to his home . That he resumed work on Monday , 20 th May, 2024 . JSO 8.3. With regard to the allegations involving the duty roster for the period 15 th May to 14th June, 2024 which he was alleged to have altered to indicate that he was supposed to report back for work on 20 th May, 2024 instead of 17t h May, 2024, the complainant stated that it was merely a draft and it had not been approved by the Chief Medical Officer hence it was not in force. That he prepared the said draft before he went on leave and forgot to change the date of reporting back from 20 th May to 17th May 2014 after agreeing with the Chief Medical Officer to report back on 17th May, 2024. He further argued that the duty of preparing the duty roster had been assigned to Dr. Muto during his leave . 8.4. It was the complainant's further contention that the respondent discriminated against him and refused, failed and/or neglected to treat him in a similar manner as his colleagues that all reported back in the afternoon shift when returning from leave among them, Dr. Elizabeth Kambiwili who went on leave and resumed work on 21st December, 2023 at 15 .00 hours; Dr. Gabriel Mbwanga who went on leave and resumed work on 1st February, 2024 at 15.00 hours; Dr. Musowe Muto who went on leave and resumed work on 7th March, 2024 at 15 .00 hours; and Dr. Gregory Maluwa who went on leave and resumed work on 11th June, 2024 at 15.00 hours . To that effect, the complainant produced an excerpt from a duty roster, "KMSl0." According to him, it was the JSl respondent's practice that Doctors returning from leave had to report in the afternoon shift. That the respondent did not have any valid reason as to why he was treated with disparity and in a discriminatory manner. 8.5. On the other hand, it was the respondent's argument that the complainant did not report for duty as required by the respondent and did not follow the instructions that were given to him by his supervisor. 8.6. The respondent argued that when the complainant decided to apply for his annual leave which was to start on 29 th April, it was agreed, between him and his immediate supervisor, the Chief Medical Officer that he should report back for work on 17th May, 2024 in the morning shift. That the reason he was instructed to report on that date in the morning shift was that another Doctor, Dr. Kapula who was allocated to work in OPD 1 in the morning shift was commencing her leave on that day and the complainant was supposed to take over OPD 1. 8. 7. The respondent contended that whilst the complainant reported for duty on 17th May, 2024 in the afternoon shift, it was in total defiance of the duty roster and the need to return to his duty on time . That all Doctors returning on duty from leave were under an obligation to return during the shift allocated to them in the duty roster. That it was never the JS2 practice at the respondent's hospital to report in the afternoon shift when returning from leave. 8.8. Further, the respondent argued that the complainant had been given the responsibility to prepare duty rosters for Doctors . That having been given such a responsibility, the complainant was supposed to indicate the period of his leave on the duty roster according to what was agreed between him and his supervisor, the Chief Medical Officer. The respondent contended that contrary to what was agreed with and approved by the Chief Medical Officer that he should return on 17t h May, 2024 in the morning shift, the complainant deliberately altered the duty roster to show that his leave would run from 29 th April to l Th May, 2024, which meant that he was supposed to return to work on 20th May, 2024 instead of 17th May, 2024. 8.9. Furthermore, the respondent denied that the complainant suffered discrimination during the process leading to his dismissal. It was contended that all his allegations were tainted with malice. That Dr. Elizabeth Kambwili was scheduled to report back for work at 07.00 hours while Dr. Gabriel Mbwanga resumed work in the afternoon at 15 .00 hours as per the duty roster. That Dr. Musowe Muto resumed work at 07.00 hours as per the duty roster; and that Dr. Gregory Maluwa was still on leave as at 11 th June, 2024. To J53 that effect, the respondent produced the duty roster, "MM2 7. " 8.10. I have considered the parties' opposing arguments. 8.1 l. In the case of The Attorney-General v Phiri5, it was held that: "Once the correct procedures have been followed, the only question which can arise for the consideration of the Court, based on the facts of the case, would be whether there were in fact facts established to support the disciplinary measures since it is obvious that any exercise of powers will be regarded as bad if there is no substratum of facts to support the same. Quite clearly, if there is no evidence to sustain charges levelled in disciplinary proceedings, injustice would be visited upon the party concerned if the court could not then review the validity of the exercise of such powers simply because the disciplinary authority went through the proper motions and followed the correct procedures." 8.12. Further, the learned authors, Judge Dr. W. S. Mwenda and Chanda Chungu in their book entitled: A Comprehensive Guide to Employment Law in Zambia, state at page 241 as follows: "Unfair dismissal is dismissal that is contrary to the statute or based on unsubstantiated ground. For unfair dismissal, the Courts will look at the reasons for the dismissal for the purpose of determining whether the dismissal was justified or not. In reaching the conclusion that the dismissal is unfair, the Court will look at the substance or merits to determine if the dismissal was reasonable and justified." 8.13. Furthermore, the learned authors, Judge Dr. W. S. Mwenda and Chanda Chungu in their book entitled: A Comprehensive J54 Guide to Employment Law in Zambia, state at page 3 54 that dismissal based on any discriminatory grounds as enacted in section 108(1) of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia and section 5(2) of the Employment Code Act No. 3 of 2019 would amount to unfair dismissal. 8.14. On the above authorities, it follows that unfair dismissal is one where a specific statutory provision has been breached by an employer when dismissing an employee or one where a dismissal has been based on unsubstantiated reasons. In addition, unfair dismissal would arise where a dismissal is based on any discriminatory grounds as enacted in section 108(1) of the Industrial and Labour Relations Act, Cap. 269 of the Laws of Zambia. 8.15. Pursuant to section 52(5) of the Employment Code Act No . 3 of 2019, the employer bears the evidential burden of proving that the dismissal of an employee from employment was fair and for a valid reason. 8.16. Firstly , I will determine whether the complainant was discriminated against. 8.17. Section 108(1) of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia provides that: JSS "No employer shall terminate the services of an impose any other penalty or employee or disadvantage on any employee, on grounds of race, sex, marital status, religion, political opinion or affiliation, tribal extraction or status of the employee." 8.18. Further, section 5 (2) of the Employment Code Act No. 19 of 2019 provides that: "An employer shall not, in any employment policy or practice discriminate, directly or indirectly, against an employee or a prospective employee- (a) on grounds of colour, nationality, tribe or place of origin, language, race, social origin, religion, belief, conscience political or other opinion, sex, gender, pregnancy, marital family responsibility, disability, status, health, culture or economic grounds; and (b) in respect of recruitment, training, promotion, terms and termination of employment or other matters arising out of the employment." conditions of employment, ethnicity, status, 8.19. In the present case, the complainant merely argued that he was discriminated against because there were other Doctors who had reported for duties in the afternoon shift upon their return from leave as it was the respondent's practice that Doctors returning from leave had to report in the afternoon shift. He did not raise any of the grounds stated in the aforementioned provisions of the Industrial and Labour Relations Act and the Employment Code Act. Therefore, his claim is bereft of merit and is accordingly dismissed. J56 8.20.1 now turn to determine whether the dismissal of the complainant was based on unsubstantiated grounds so as to amount to unfair dismissal. 8.21. As alluded to above, the complainant was found guilty of the offences of poor time keeping and absenteeism; and indiscipline or disorderly behaviour. As a result, he was summarily dismissed from his employment by the respondent. 8.22.1 will begin with the offence of poor time keeping and absenteeism. 8. 2 3. It is not in issue that the complainant reported back to work from his annual leave on l T h May, 2024 in the afternoon shift, the day on which he was scheduled to resume his duties. The respondent charged him and found him guilty of the offence of poor time keeping and absenteeism stating that according to the time table, he was supposed to report back in the morning shift. 8.24.1 have perused the minutes of the investigation inquiry, "MM20" and the minutes of the complainant's disciplinary hearing, "MM22." The minutes of the investigation inquiry, "MM20" reveal at pages 5 and 6 that when the investigator interviewed three of the respondent's Doctors namely, Dr. J57 Kapula, Dr. Musowe and Dr. Gabriel as regards the time of reporting back for duty on return from leave, they all stated that it all depended on the time table and the shift in which the Doctor had been allocated. 8.25 . None of the Doctors said every Doctor reporting back from leave had to report in the morning shift. 8.26 . Further, I note from pages 4 and 5 of the said minutes of the disciplinary hearing, "MM22", that a committee member by the name of Dr. Tshunza had asked the charging officer whether it had been specified on the time table that the complainant was supposed to report back for work in the morning on 17th May, 2024. In response , the charging officer had explained that the time at which the complainant was supposed to report back had not be necessarily indicated on the time table but that it was the duty of the complainant to create the time table and he decided whether to report in the morning or afternoon depending on the requirements of the day. 8.27. The above clearly confirms that the time at which the complainant was supposed to report back for work on the day in question was not indicated on the time table. The evidence on record has revealed that it was not wrong or strange for a Doctor returning back to work from leave to report in the J58 afternoon shift at 15 .00 hours as the time of reporting depended on the time indicated on the time table and requirements of that particular day. Further, there is no evidence on record showing that prior to 17th May, 2024, the complainant had been informed that he was required to report in the morning shift. 8.28. From the foregoing, I find that the offence of poor time keeping and absenteeism was not substantiated as there was evidence before the disciplinary committee to the effect that the complainant had reported for work on 17th May, 2024 and had actually carried out his duties. 8. 2 9. With regard to the offence of indiscipline or disorderly behavior, it was the respondent's contention that contrary to the agreement with the Chief Medical Officer and his approved annual leave on the Bamboo-HR system that he should report for work on l Th May, 2024, the complainant, who had been tasked with the duty of preparing the duty roster for Doctors altered the said duty roster and indicated that his leave was ending on 17th May, 2024 and not 16 th May, 2024 meaning that he was supposed to report back on 20 th May, 2024 and not 17 th May, 2024. That the complainant's action amounted to insubordination. J59 8.30. The complainant argued that the last duty roster he made, "MM16 " for the period 15 th May to 14t h June, 2024 was made before he went on his leave and that it was a mere a draft as it had not been discussed and approved by the Chef Medical Officer who had advisory, approving and administrative powers over the duty rosters for Doctors . He argued that whilst on his leave, he did not carry out any of his duties unless in case of emergencies and that the duty of preparing the duty roster was assigned to Dr. Muto . He stated that he had omitted to amend the duty roster after being told that another Doctor was going on leave on 17t h May, 2024 hence he had to report back for work on that day. 8.31. The respondent on the other hand argued that the said duty roster which the complainant had prepared before going for leave was unaffected despite the task of preparing duty rosters having been assigned to another Doctor. That the other Doctor only began preparing the duty roster for the period starting 15 t h June, 2024. The respondent denied that the Chief Medical Officer had to approve a duty roster before it came into effect. It was also the respondent's argument that the complainant had deliberately altered the duty roster to mislead the respondent and the Doctors. 8.32.1 have considered the parties' arguments. ,. J60 8.33. I note from the minutes of the investigations inquiry, "MM20" and the minutes of the complainant's disciplinary hearing, "MM22 " that the Chief Medical Officer had expressed great displeasure with the manner in which the complainant was preparing the duty roster as a result of which he assigned the duty to another Doctor. This lends credence to the complainant's evidence that the Chief Medical Officer had advisory and supervisory powers over the duty rosters for Doctors and it only came into effect upon approval by the Chief Medical Officer. 8 .34. It is on record that the duty roster in question was for the period 15 th May, 2024 to 14 th June, 2024 during which period the complainant was on his annual leave. A perusal of the minutes of the disciplinary hearing has revealed that after the discussion with the Chief Medical Officer as regards when he should report back for work, the complainant agreed to returning back to work on 17th May, 2024 as advised by the Chief Medical Officer. Therefore, on the white board and in his application for annual leave on the respondent's Bamboo HR, he indicated the period of his leave as 29 th April to 16 th May, 2024 as shown by the excerpt from the Bamboo-HR system , "MM14 ." He accordingly reported back for work on 17th May, 2024 as instructed by his supervisor, the Chief Medical Officer. J61 8.3 5 . From the foregoing, it is my firm view that the complainant's action of indicating on the duty roster that he was supposeq to report back for work on 20 th May, 2024 instead of 17th May, 2024 could not have been deliberate or in disregard of his supervisor's instructions. This is so because the complainant actually followed his supervisor's instruction and reported back to work on l Th May, 2024. 8.36 .0n the whole evidence in this case, I find that the respondent has failed to show that the dismissal of the complainant was based on substantiated grounds and was for a valid reason. I am satisfied that there was insufficient evidence before the disciplinary committee to support the charges that were leveled against the complainant. In the circumstances of this case, I firmly hold that the complainant's dismissal from employment was unfair thereby entitling him to the payment of damages. 8. 3 7. I now turn to the assessment of the quantum of damages that should be awarded to the complainant for unfair dismissal from employment. 8.38. The complainant has claimed for damages equivalent to 42 months' or such higher amount as the court may deem fit. J62 8.39. In the Eston Banda3 case the Supreme Court guided that the general measure of damages where there is nothing extra ordinary is an amount equivalent to the notice period provided in the contract or in the absence of such provision, a reasonable period. From the foregoing, it is settled that the normal measure of damages that applies is the contractual length of notice or the notional reasonable notice where the contract is silent. 8.40. In discussing the factors that warrant departure from the common law measure of damages in the case of Josephat Lupemba v First Quantum Mining and Operations Limited6 , the Court of Appeal referred to two leading cases of Chilanga Cement Pie v Kasote Singogo 7 , and Barclays Bank (Z) Pie v Weston Lyuni and Suzyo Ngulube 8 , decided by the Supreme Court. The Court of Appeal observed at page JS of the judgment that: "We note that in the two cases, the Supreme Court guided on the factors to be taken into consideration to award damages beyond the common law practice of notice period. Some of the considerations are future job prospects, inconvenience, stress and abruptness of termination. In so guiding, the emphasis was that the trial Court should consider all the circumstances of each case and where it considers that a particular case is deserving, it should go beyond the common law measure of damages." 8 .41. In the case of Dennis Chansa v Barclays Bank Zambia Pie 9, the Supreme Court upheld the lower courts award of 36 J63 months salaries as damages on the ground that as global economies deteriorate, the chances of finding employment even by graduates are dimmer. 8.42. On the facts of this case, I have decided to depart from awarding the complainant damages equivalent to the notice period having considered the fact that it is bound to take longer for the complainant to find a job in the current domestic and global economic environment. Further, his dismissal from employment was unjustified and unwarranted. However, I am of the firm view that the complainant's claim for damages equivalent to 42 months' salary is too excessive. Therefore, I award the complainant damages equivalent to eighteen (18) months of his basic salary plus allowances for his unfair dismissal from employment. 8.43. According to the complainant's last contract of employment, "KSM l ", the complainant was in receipt of an all-inclusive salary of K65,209 .98 per month. That amount multiplied by eighteen months gives Kl, 173,779 .64 being the damages I award to the complainant. The said amount shall attract interest at the short-term commercial deposit rate, as determined by the Bank of Zambia, from the date of the notice of complaint to the date of the judgment and thereafter, at 10% per annum until full settlement. .. • • J64 9.0. WHETHER THE COMPLAINANT IS ENTITLED TO THE PAYMENT DAMAGES FOR LOSS OF FUTURE EARNINGS IN SALARIES, ALLOWANCES AND PENSIONS BENEFITS 9.1. With regard to this claim, it was the complainant's submission that having been employed on contract basis and his contracts always being renewed, he had a settled hope of working for the respondent and getting his respective earnings until retirement. That he expected future earnings in form of salaries, allowances and his pension benefits hence his claim. 9.2 . On the other hand, the respondent argued that upon his dismissal from employment, the complainant was paid all his dues as shown by the document titled final release and acknowledgement of terminal benefits, "MM28 " as well as the pay statement attached to the said document. 9.3. I have considered the arguments from both sides. 9.4. In the case of Kitwe City Council v William Ng'uni1°, it was held 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." • J65 9.6. Further, in the case of Chola Chama v Zambia Electricity Supply Corporation Limited 11 , the Supreme Court guided that during the period an employee is on termination, there is no consideration to justify paying the employee . That paying such an employee would amount to unjust enrichment for the employee. 9. 7. In the present case, I find no justification for payment to the complainant of any future salaries, allowances or pension benefits for the period that he will not bhave w·orked for . Any such payment would amount to unjust enrichment. In this regard, therefore, the complainant's claim cannot stand and is accordingly dismissed. 10.0. WHETHER THE COMPLAINANT IS ENTITLED TO COSTS OF OR INCIDENTAL TO THESE PROCEEDINGS 10.1. Lastly, the complainant has prayed for the award of costs of these proceedings. Costs in this Division can only be awarded in accordance with Rule 44 of the Industrial Relations Court Rules, Chapter 269 of the Laws of Zambia. The said Rule 44 provides: "Where it appears to the Court that any person has been guilty of unreasonable delay, or of taking improper, vexatious or unnecessary steps in any proceedings, or of other unreasonable conduct, the Court may make an order for costs or expenses against him." I J66 10.2 . In the present case, I find that none of the circumstances listed under Rule 44 of the Industrial Relations Court Rules which could have persuaded me to award costs to the complainant had arisen. Therefore, I make no order for costs. 1 LO. Leave to appeal is granted. Delivered at Ndola this !51 day of September, 2025. Davies C. Mumba HIGH COURT JUDGE