Kosamu Siwale (Suing as an Administrator of the Estate of the late Agippa Siwale) v Lusaka Water Supply and Sanitation Company Limited (2023/HP/1865) [2025] ZMHC 134 (30 December 2025)

Jl e IN THE HIGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil J u risdiction) 2023/HP/1865 BETWEEN: KOSAMU SIWALE (Suing as A dministrator of the Es Siwale) 0 DEC 2025 e ~~U!2~~~ PLAINTIFF AND LUSAKA WATER SUPPLY AND SANITATION COMPANY LIMITED DEFENDANT BEFORE HON MRS JUSTICE S. KAUNDA NEWA THE 30th DAY OF DECEMBER, 2025 For the Plai ntiff For the Defendant M r . J. Tembo & Ms. C. Zulu, Messrs. Linus and Partners M rs. C. B. Sikazwe, In - house Counsel JUDGMENT CASES REFERRED TO: 1. Printing and Numerical Registering Company v Simpson 1875 LR 19 EQ462 2. Council of Civil Service Union v Minister for the Civil Service 1985 AC374 3. Colgate Palmolive (Z) Inc. Judgment No 15 of 2001 v Able Shemu and 110 others SCZ 4. Friday Mwamba v Slyvester Ntenge and others SCZ Appeal No. 174 of 2010 5. Stanbic Bank Zambia Limited v Natasha Patel Appeal No. 274 of 6. King/red Phiri v Life Master Limited Appeal No. 24 of 2023 7 . Lusaka Water Supply and Sanitation Company Limited v Zambia Water and S a nitation Engineering and Allied Worker' Union (APP/02/2024) LEGISLATION REFERRED TO: 1. The Employment Code Act No 3 of 2019 :: J2 OTHERS WORKS REFERRED TO: 1. A Comprehensive Guide to Employment Law in Zambia, by Winnie Sithole Mwenda and Chanda Chungu, University of Zambia Press, 1. INTRODUCTION 1.1 The Plaintiff, Kosamu Siwale, 1n his capacity as the Administrator for the estate of the late Agrippa Siwale, commenced this matter on 23rd October 2023 by way of Writ of summons which was accompanied by a statement of claim and the other documents, and which documents were amended on 13th November 2023. 1.2 The reliefs sought are: z. An Order directing Lusaka Water Supply and Sanitation Company Limited to make payment to Kosamu Siwale on all accrued benefits to be calculated as 3 months basic pay per year x the number of years served; Interest on any sums found due; Costs; and n. m. 1v. Any other relief that the Court deems fit. 2. STATEMENT OF CLAIM 2 .1 In the statement of claim, it was stated that sometime in January 2003, through a contract of employment, Lusaka Water Supply and Sanitation Company Limited engaged Agrippa Siwale on a long term contract as a Plant Operator. 2.2 The averment was that Agrippa Siwale remained in the employment of Lusaka Water Supply and Sanitation J3 Company Limited until he was summarily dismissed. Further assertion was made, that following the summary dismissal procedure, Lusaka Water Supply and Sanitation Company Limited proceeded to terminate Agrippa Siwale's employment on 23rd February 2022, and it was agreed that Agrippa Siwale would be paid his terminal benefits in full. 2.3 In still contending, it was stated that upon termination of Agrippa Siwale's employment, Lusaka Water Supply and Sanitation Company Limited issued a memorandum to the effect that Agrippa Siwale was to be paid his accrued benefits up to the time of his dismissal, which were to be calculated at three (3) months basic pay multiplied by the number of years served. 2.4 Thus, following the termination of employment in 2022, Agrippa Siwale made a number of follow-ups with Lusaka Water Supply and Sanitation Company Limited, who in response, denied its indebtedness to him . It was stated that in that process, Agrippa Siwale discovered that other persons who had been dismissed from employment had been paid their full benefits. 2.5 Averment was made, that to date, Lusaka Water Supply and Sanitation Company Limited had not paid any of the benefits that were owed, following the termination of Agrippa Siwale's employment. As a result, Agrippa Siwale had suffered damages for loss of use of money and mental anguish. .. 3. DEFENCE J4 3.1 In defence, Lusaka Water Supply and Sanitation Company Limited admitted that Agrippa Siwale was engaged by itself as a Plant Operator, sometime in January 2003. It however stated that the engagement was on a permanent and pensionable contract and not on long term basis. 3.2 The averment was that Agrippa Siwale's summary dismissal was with effect from 9th February 2022, and after the dismissal, Lusaka Water Supply and Sanitation Company Limited communicated to Agrippa Siwale that he would be paid his benefits up to 9 th February 2022, less any monies that he owed to Lusaka Water Supply and Sanitation Company Limited and loans from banks. 3.3 The defence was also that the benefits that were payable to Agrippa Siwale, were the full salary plus leave pay accrued up to the date of the dismissal, and commutation of leave days in the sum of ZMW7, 986.95, which was paid to him sometime in March 2022, less monies that were owing. 3.4 Lusaka Water Supply and Sanitation Company Limited denied having issued a memorandum to the effect that Agrippa Siwale was to be paid his accrued benefits up to the time of his dismissal, which were to be calculated at three (3) months basic pay, multiplied by the number of years served. 3. 5 This was on the basis that the same were only payable to retired, discharged or employees who were declared redundant, but not employees who had been dismissed. JS 3.6 It was denied that Lusaka Water Supply and Sanitation Company Limited was indebted to Agrippa Siwale, as it paid him all that it owed him at the time of his dismissal. 4. REPLY 4.1 In reply, Kosamu Siwale joined issue with Lusaka Water Supply and Sanitation Company Limited on its' defence, save to state that he admitted that Agrippa Siwale was engaged on a permanent and pensionable contract. 4.2 Kosamu Siwale also admitted that he received the sum of ZMW7,986.95 , but he disputed the calculation that was used to arrive at that sum. 4.3 It was stated that summarily dismissed and discharged employees, alike were entitled to full benefits at termination of employment. 5. EVIDENCE LED AT TRIAL 5.1 At trial, Kosamu Siwale testified, and called one subpoenaed witness, while the Lusaka Water Supply and Sanitation Company Limited called one witness in support of its' case. PWl - KOSAMU SIWALE 5.2 Kosamu Siwale produced his witness statement as his testimony . 5.3 In that witness statement, he testified that he was appointed Administrator of the estate of the late Agrippa Siwale who died on 27th March 2024. 5.4 His evidence was that Agrippa Siwale was an employee of Lusaka Water Supply and Sanitation Company Limited, as a J6 Plant Operator from January 2003 up to the time that he was summarily dismissed on 9 th February 2022 . 5.5 Further in his statement, Kosamu Siwale stated that Agrippa Siwale worked for Lusaka Water Supply and Sanitation Company Limited for a period of nineteen ( 19) years, and he was covered by the Collective Agreement that was signed between Lusaka Water Supply and Sanitation Company Limited and Zambia Water and Sanitation Engineering and Allied Workers' Union for 2021 and 2022, which was at pages 1 to 57 of Kosamu Siwale's bundle of documents. 5.6 He testified that upon being summarily dismissed and according to the collective agreement, Agrippa Siwale was entitled to his full terminal benefits as per the Collective Agreement. 5.7 Further testimony was given, that Agrippa Siwale made several attempts in order for Lusaka Water Supply and Sanitation Company Limited to make the payments, but to no avail resulting in this cause of action. CROSS EXAMINATION OF KOSAMU SIWALE 5.8 When cross examined, and referred to paragraph 5 of his witness statement, Kosamu Siwale testified that Agrippa Siwale was entitled to full terminal benefits following his dismissal. His position was that this was agreed in the Collective Agreement that he signed with his employer. 5.9 Kosamu Siwale, however, stated that he was not privy to the calculations that were done. .. J7 5.10 When further referred to the letter dated 24t h May, 2022, that the Director of Human Resources and Administration at Lusaka Water Supply and Sanitation Company Limited wrote to Agrippa Siwale, which was at page 59 of Kosamu Siwale's bundle of documents, he testified that there was a difference between accrued benefits and full benefits. His evidence was that he claimed full benefits. 5.11 Still in cross examination, Kosamu Siwale's testimony was that in the Collective Agreement which was at page 13 of his bundle of documents, it stated that on summary dismissal, service was terminated with full benefits up to the last day of employment. 5 .12 It was his evidence, when he was referred to the said Collective Agreement, at page 44 of his bundle of documents in Clause 54.0, that the clause was clearly described at page 13. 5.13 His evidence was that at page 39 of Kosamu Siwale's bundle of documents, the Collective Agreement in Clauses 44.44 and 45.2, 48.0, 52.2, 53.1.1 provided for the benefits that were payable, according to the modes of separation. 5 . 14 Kosamu Siwale further testified that Clause 54.0 on summary dismissal was silent on the benefits payable, but Clause 53.1 stated that an employees' indebtedness would be deducted from the total sum of benefits payable, where applicable . .. J8 5.15 He concluded the cross examination, by stating that benefits payable on discharge were also those that were payable on summary dismissal. RE-EXAMINATION OF KOSAMU SIWALE 5.16 There was no re-examination. PW2 - RODNEY MUSUNGA KAPUWE 5 . 17 Rodney Musunga Kapu we, the subpoenaed witness stated that he had documents relating to payment that was made to him. His testimony in that regard, was that ther e was a bank money transfer from Lusaka Water Supply and Sanitation Company Limited's account to his account. He also testified that the second document was a payment voucher from Lusaka Water Supply and Sanitation Company Limited's accounts department. It was also his evidence, that lastly, there was the benefits calculation document. 5.18 Rodney Musunga Kapuwe produced copies of the documents after he stated that he could not find the originals because of the d elay of the case. 5.19 The Stanbic Bank pay instruction was produced as 'Pl', the payment vou cher as 'P2 and the Lusaka Water Supply and Sanitation Company Limited's terminal b enefits calculation as 'P3'. 5.20 His testimony was that Lusaka Water Supply and Sanitation Company Limited was his employer from 12th June 200 1 to September or October 2021 when he was dismissed. 5.21 He stated that after his dismissal, h e was paid as per the documents that h e had produced, being the full terminal J9 benefits, which were calculated on the basis of three (3) months multiplied by the years that he served, less the loan th at he had. CROSS EXAMINATION OF RODNEY MUSUNGA KAPUWE 5.22 In cross examination, Rodney Musunga Kapuwe's testimony was that he was dismissed in 2021. 5.23 When referred to the Collective Agreement which was between Lusaka Water Supply and Sanitation Limited and the Zambia Water and Sanitation Engineering and Allied Workers Union, which was at page 1 of Kosamu Siwale's bundle of documents, Rodney Musunga Kapuwe testified that it stated that it was for the period 1st January 2022 to 31st December 2023. 5.24 He told the Cour t that at the time of his dismissal, he was in salary Grade 5, which was a management position. 5.25 Further in cross examination, Rodney Musunga Kapuwe testified that the Collective Agreement would not have applied to him or other prior collective agreements, as long as he was a GS employee. 5.26 It was also his evidence that h e had not brought the conditions of service that applied to him. 5.27 That marked the close of Kosamu Siwale's case. DWl - IRENE WAKUNYAMBO TEMBO 5.28 Irene Wakunyambo Tembo produced h er witness statement as h er testimony. She testified in that witness statement, that Agrippa Siwale was employed on 27th January 2003, by Lusaka Water Supply and Sanitation Company Limited as a .. JlO Pump Attendant, as evidenced by the Contract of Service, which was at pages 1-2 of Lusaka Water Supply and Sanitation Company Limited 's bundle of documents. 5.29 She stated that the position of Pump Attendant fell within salary Grade 9, and as per Lusaka Water Supply and Sanitation Company Limited's employment structure. Irene Wakunyambo Tembo's evidence was that all employees in that salary grade scale, were unionised, permanent and pensionable staff, and that their contracts ran until retirement age. 5.30 It was also her testimony, that on 9th February 2022, Agrippa Siwale appeared before the Disciplinary Committee for the offence of dishonest conduct, after having been charged and given an opportunity to exculpate himself. She added that he was heard before the Committee, and he was found guilty of the offence. 5.31 Irene Wakunyambo Tembo further testified that by a letter dated 23rd February 2022, which was at page 3 of Lusaka Water Supply and Sanitation Company Limited's bundle of documents, Agrippa Siwale was summarily dismissed from employment with effect from 9 th February 2022. 5.32 She stated that following Agrippa Siwale's summary dismissal, Lusaka Water Supply and Sanitation Company Limited proceeded to pay Agrippa Siwale his terminal benefits, which for summary dismissal of permanent and pensionable staff, constituted the full pay and leave pay accrued up to the date of dismissal. Jl 1 5.33 It was her evidence that Agrippa Siwale belonged to the Zambia Water and Sanitation Engineering and Allied Workers' Union, and therefore, his conditions of service were further stipulated in the Collective Agreement. She referred to pages 8 to 62 of Lusaka Water Supply and Sanitation Company Limited's bundle of documents, as being the Collective Agreement. 5 .34 Ireen Wakunyambo Tembo stated that Section V of the Collective Agreement at pages 45 to 50 of Lusaka Water Supply and Sanitation Company Limited's bundle of documents, provided for the various types of separation. She told the Court that under each type of separation, the benefits payable to an employee were prescribed except for summary dismissal. 5.35 Her evidence was that by way of illustration, Clause 44.4 of the Collective Agreement, provided that the benefits payable to a person that separated by way of normal retirement, were three (3) months full pay for each year served. Then the benefits payable to employees that separated by early separation, redundancy, resignation or discharge were equally prescribed in Clauses 45.2, 48.0, 52.2 and 53.1.1 respectively. 5 .36 Ireen Wakunyambo Tembo, however stated that when one turned to Clause 54.0 of the Collective Agreement which made provision for summary dismissal, the clause was silent and it did not prescribe what benefits wer e payable to an employee who had been summarily dismissed. J12 5.37 She explained that the silence in the Collective Agreement stemmed from the Union's refusal at the time of bargaining, to prescribe what would be payable to an employee on dismissal. 5.38 In support of that position, Ireen Wakunyambo Tembo referred to the minutes from the collective bargaining, which were at pages 69 to 77 of Lusaka Water Supply and Sanitation Company Limited's bundle of documents. 5.39 Her evidence was that the Collective Agreement defined 'summary dismissal' as 'termination of service with full benefits up to the last day in employment', but the term full benefits or how it was computed was not defined in the Collective Agreement. 5.40 Reference in that respect, was made to page 19 of Lusaka Water Supply and Sanitation Company Limited's bundle of documents. 5.41 It was Ireen Wakunyambo Tembo's testimony that since the Bargaining Unit did not agree to clarify the ambiguity on payment of benefits on summary dismissal, the clauses on summary dismissal were not amended, and the Lusaka Water Supply and Sanitation Company Limited through management, guided that it would maintain the status quo of paying dismissed employees their full pay or salary plus leave days accrued up to the date of dismissal. 5.42 She referred to page 73, in lines 6 to 9 and lines 19 to 21 and page 77 lines 4 to 7 of Lusaka Water Supply and Sanitation Company Limited's bundle of documents. J13 5.43 Ireen Wakunyambo Tembo's evidence was that paying dismissed employees that were serving on permanent and pensionable contracts terminal benefits similar to a retirement package would be the equivalent of rewarding unacceptable behaviour, considering that permanent and pensionable employees who resigned were only paid commutation of leave days as their terminal benefits. 5.44 She added that this would make dismissal a preferable rneans of separation to resignation. 5.45 Therefore, Agrippa Siwale was rightfully paid the sum of ZMW7,286.95 following his summary dismissal, being the amount of leave days that had accrued to him, as there was no outstanding salary owed to him at the time of his dismissal. Ireen Wakunyambo Tembo referred to Agrippa Siwale's pay statement, which was at page 4 of Lusaka Water Supply and Sanitation Company Limited's bundle of documents. 5.46 She testified that Lusaka Water Supply arid Sanitation Company Limited, therefore did not owe Agrippa Siwale any terminal benefits as the same were paid to him in full. 5.47 Ireen Wakunyambo Tembo also gave viva voce evidence that Rodney Musunga Kapuwe was paid after the enactment of the Employment Code Act 2019. She testified that the Zambia Federation of Employees and the Ministry of Labour embarked on a sensitization programme , and as Lusaka Water Supply and Sanitation Company Limited, they were guided that employees who were dismissed, should be paid J14 their terminal benefits as though they had retired from employment. 5.48 She testified that Rodney Musunga Kapuwe was paid his benefits in 2021, and a few employees were paid before him. However, he was the last employee to be paid terminal benefits on dismissal, and thereafter, no other employees had been paid as such. 5.49 Ireen Wamkunyambo Tembo stated that they had a Judgment from the Industrial Relations Division of the High Court, which had clarified what should be due to an employee who had been dismissed from employment, being accrued leave days and any outstanding wages. CROSS EXAMINATION OF IREEN WAKUNYAMBO TEMBO 5.50 In cross examination, Ireen Wakunyambo Tembo's evidence was that Agrippa Siwale was employed by Lusal<:a Water Supply and Sanitation Company Limited, and there was a collective agreement that was in place. When referred to the Contract of Service which was pages 1 and 2, and the Collective Agreement which was at pages 10 to 61 of Lusaka Water Supply and Sanitation Company Limited's bundle of documents, her testimony was that Lusaka Water Supply and Sanitation Company Limited agreed to be bound by the Collective Agreement, and to honour the terms of that agreement. 5.51 Ireen Wakunyambo Tembo also stated that the contract of employment was summarily determined on 23 rd February J15 2022 after Agrippa Siwale was summarily dismissed on 9th February 2022. 5.52 Her evidence was that the Collective Agreement did not provide that on being summarily dismissed, an employee would be paid full benefits. 5.53 When referred to part of the Collective Agreement, at page 19 of Lusaka Water Supply and Sanitation Company Limited's bundle of documents at paragraph 17 on Summary Dismissal, Ireen Wakunyambo Tembo stated that according to the paragraph, an employee who was summarily dismissed, was entitled to full benefits up to the last day of employment. 5.54 Her testimony was that when Agrippa Siwale was summarily dismissed, the Collective Agreement was in effect, and it was applicable to him. 5.55 She testified that full terminal benefits were accrued leave days, and any outstanding wages on dismissal. Ireen Wakunyambo Tembo's testimony was that Section 54 at page 50, did not give a clear definition of full terminal benefits as it was not there. 5 .56 She, however, stated that the minutes referred to it, and Lusaka Water Supply and Sanitation Company Limited paid some employees full terminal benefits. 5.57 On being referred to page 73 of Lusaka Water Supply and Sanitation Company Limited's bundle of documents in the last paragraph, Ireen Wakunyambo Tembo testified that they were minutes of a meeting that was held in 2023, on J16 amendment of the Collective Agreement which was before Court. 5.58 She testified that one of the issues that was raised, was payment of full terminal benefits to which a dismissed employee was entitled. 5.59 It was also Ireen Wakunyambo Tembo's testimony that from the paragraph, terminal benefits were being paid in accordance with Clause 44.4 for dismissed employees prior to the meeting. 5.60 She was further referred to page 45 of Lusaka Water Supply and Sanitation Company Limited's bundle of documents, and in particular to Clause 44.4. Ireen Wakunyambo Tembo told the Court that the benefits payable, were three (3) full months for each year served for those who had served one year and above. Therefore, a dismissed employee was entitled to benefits under that clause. 5.61 Still in cross examination, Ireen Wakunyambo Tembo's evidence was that during the period of the Collective Agreement, Agrippa Siwale on being dismissed, was entitled to be paid benefits, which in Clause 44.4, referred to unionized staff, and did not differentiate between unionized and management staff. 5.62 She stated that only unionized workers were entitled to benefits under Clause 44.4, and that Agrippa Siwale was not paid in accordance with the clause. 5.63 When cross examined further, Ireen Wakunyambo Tembo stated that she had been an HR Practitioner for over ten (10) J17 years, and that employers and employees could agree on conditions which are better than those that were provided for by statute. 5.64 She however took the position, that where there was conflict between the contract and tpe law, it was an HP practice to follow the conditions which are more favorable. Ireen Wakunyambo Tembo testified that conditions of service could be varied by agreement, and if not agreed, they could go to Court. 5.65 Her testimony was that the Collective Agreement, which was at pages 1 to 57 of Kosamu Siwale's bundle of documents was agreed to after the Employment Code Act was in existence. 5.66 She stated that only employees who resigned would lose their terminal benefits under the Collective Agreement, under clause 18, at page 13 of Kosamu Siwale's bundle of documents. Ireen Wakunyambo Tembo testified that Clause 17 on summary dismissal was not the case. 5.67 When referred to page 63 of Lusaka Water Supply and Sanitation Company Limited's bundle of documents, her evidence was that the minutes were for a me.eting to revise the Collective Agreement in March 2023. She testified that Agrippa Siwale left on 9 th February 2022, and that as Agrippa Siwale left the discussions, they did not affect him. RE-EXAMINATION OF IREEN WAKUNYAMBO SIWALE 5.68 There was no re-examination. J18 5.69 That marked the close of the case for Lusaka Water Supply and Sanitation Company Lim.ited. 6. DECISION OF THIS COURT 6.1 I have considered the evidence and submissions which were filed b y the parties. FACTS NOT IN DISPUTE 6.2 It is common cause that Agrippa Siwale was employed by Lusaka Water Supply and Sanitation Company Limited on 27th January 2 003, on a p ermanent and pensionable basis. 6.3 The facts which are also not in dispute, are that Agrippa Siwale was a unionized employee, having belonged to the Zambia Water and Sanitation Engineering and Allied Workers' Union. 6.4 It is not in contention that Agrippa Siwale was summarily dismissed on 9 th February 2 022. 6 .5 What is further not in dispute, 1s th at, asid e from the contract of employment, there was a Collective Agreement that governed Agrippa Siwale's conditions of service when h e was dismissed. 6.6 It is further not in contention that Lusaka Water Supply and Sanitation Company Limited made payment to Agrippa Siwa le in the sum of ZMW7,986.95, being for accrued leave days after he was summarily dismissed from employment . ISSUES IN DISPUTE 6.7 It is in dispute whether Agrippa Siwale was entitled to p ayment of termina l benefits, which were to be calculated at three (3) months' b asic pay per each year served, when he J19 was dismissed by Lusaka Water Supply and Sanitation Company Limited. 6 .8 Also, in contention, is whether Lusaka Water Supply and Sanitation Company Limited discharged its' obligations towards Agrippa Siwale. ANALYSIS 6. 9 Agrippa Si wale alleged that upon him being summarily dismissed, and according to the Collective ·Agreement, he was entitled to be paid full terminal benefits. 6.10 When referred to Clause 54.0 of the Collective Agreement, which provides for summary dismissal, Kosamu Siwale in cross examination, testified that the Clause was clearly described at page 13 of the Collective Agreement. His evidence was further that the said Clause 54.0, was silent on the benefits that were payable to an employee who was summarily dismissed. 6.11 He however stated that Clause 53.1 which provided for discharge, stated that employees' indebtedness would be deducted from the total sum of benefits payable where applicable. 6.12 Kosamu Siwale further testified that benefits which were payable on discharge were also those that were payable on summary dismissal. 6 . 13 Lusaka Water Supply and Sanitation Company Limited's witness, Iren e Wakunyambo Tembo's evidence was that following Agrippa Siwale's summary dismissal, Lusaka Water Supply and Sanitation Company Limited proceeded to J20 pay Agrippa Siwale his terminal benefits, which for the summary dismissal of permanent and pensionable staff, constituted the full pay and leave pay accrued up to the date of dismissal. 6.14 She also stated that Agrippa Siwale was a unionised employee, whose conditions of service were governed by a Collective Agreement, which did not specify the benefits that were payable on summary dismissal. 6.15 Ireen Wakunyambo Tembo explained that the silence resulted from the Union's refusal, during the negotiations, to define such benefits. She further stated that although summary dismissal was defined as termination with full benefits, the term was not quantified. 6.16 Therefore, management maintained the practice of paying dismissed employees accrued salaries and leave pay up to the date of dismissal. 6.17 It was Ireen Wakunyambo Tembo's evidence in cross examination, that although summary dismissal entitled an employee to full benefits, and that the Collective Agreement was applicable to Agrippa Siwale at the time, it did not clearly define what full terminal benefits meant. 6.18 Accordingly, Lusaka Water Supply and Sanitation Company Limited treated such benefits as accrued leave pay and outstanding wages. 6.19 Ireen Wakunyambo Tembo, however, acknowledged that the minutes of meetings, that were held during the collective bargaining, indicated that dismissed employees had J21 previously b een paid terminal benefits under Clause 44.4, which provided for three (3) months' pay p er each year served for unionised employees. 6.20 She stated that Agrippa Siwale, being unionised, he was entitled to such benefits, but he was not paid in accordance with that clause. 6.21 Ireen Wakunyambo Tembo added that the minutes of the March 2023 meeting, related to r evision of the Collective Agreement, and they did not apply to Agrippa Siwale, who left employment in February 2022. 6 .22 In the submissions on behalf of Kosamu Siwale, it was stated that it was clear from Ireen Wakunyambo Tembo's evidence, that prior to the negotiations for a new Collective Agreement which was held on 9 t h March 20 23, summarily dismissed employees, were paid full benefits in accordance with Clause 44.4 of the Collective Agreement. 6.23 Therefore, there was a binding Collective Agreement when Agrippa Siwale was dismissed which bound Lusaka Water Supply and Sanitation Company Limited. 6.24 In support of the submission, reliance was placed on the case of Printing and Numerical Registering Company v Simpson f 1J which was quoted in the case of Colgate Palmolive (Z) Inc. v Able Shemu and 110 others f3J, where it was stated as follows: "If there is one thing more than another which public policy requires, it is that men of full age and competent understanding shall have the utmost J22 liberty in contracting and that their contract when entered into freely and voluntarily shall be enforced by courts of justice." 6.25 In light of that authority, it was submitted that Agrippa Siwale and Lusaka Water Supply and Sanitation Company Limited freely and voluntarily executed the Collective Agreement with intention to honour and uphold its' terms. 6.26 It was also submitted that Agrippa Siwale had a legitimate expectation to receive full benefits because Lusaka Water Supply and Sanitation Company Limited was paying summarily dismissed employees' full benefits, under Clause 44.4 of the Collective Agreement. 6.27 Reliance was placed on the case of Council of Civil Service Union v Minister for the Civil Service f2J. 6.28 It was further submitted that the sensitization seminars that were attended by Lusaka Water Supply and Sanitation Company Limited could not affect Agrippa Si wale's legitimate expectation, because Agrippa Siwale was not in employment at the time of the said sensitization programs and negotiations. 6.29 Therefore, Lusaka Water Supply and Sanitation Company Limited was obliged under the principle of estoppel to pay Agrippa Sh.vale full benefits under the Collective Agreement. 6 .30 In the submissions which were filed by Lusaka Water Supply and Sanitation Company Limited, it was stated that full benefits according to Lusaka Water Supply and Sanitation Company Limited, entailed outstanding wages and accrued leave days' p ay only. 6.31 The submission was however, that this was temporarily interfered with sometime between the coming into effect of the Employment Code Act. 6.32 It was stated that Irene Wel{unyarnbo Tembo's unchallenged evidence, wa8 that Lusaka Water Supply and Sanitation Company Lin1ited only paid a few of its' disrnissed employees' terminal benefits, which were calculated at three (3) months' basic pay by the nurnber of years served, at the directive of the Ministry of Labour and Social Security, and the Zan1bia Federation of Employees, following a sensitization program which -was undertaken by the two institutions on the Employment Code Act. 6.33 Further subn1ission was 1nade, that i:be dire·ctive was found to· be erroneous, and Lusaka \1/ater Supply and Sanitation CcJmpany Lim.ited departed ·fron1 ·it within the shortest possible time, vvith the last person having b een p aid as such being Rodney l\1U:sunga Kapuwe in 2021. 6.34 It was also submitted that the word 'accrued· benefits' in Section s1 ·= o/· tit~ ·Employ1ne11t Code Act which was payable to di-s1nissed employees crea t·ed confusicn amongst employers or .employees, but it was· stated that the Cou1~t of Appeal clai"ified the· 3airlc in the case •:)f Stanbic Ban.le Zambia Lfrnited v Natasha Patel f5J when they held that a dismissed employee {s only entjtled to accrued leave days and salary uiJ to the date of dismissal: · , : • , •. 1 l • J24 6.35 The further submission was that Lusaka vVater Supply and Sanitation Company Limited, in taking note of how the Union was attempting to give the clause on summary dismissal a different meaning, resolved to clarify it, as shown at pages 69 to 77 of Lusaka Water Supply and Sanitation Company Limited's bundle of documents. 6.36 It was submitted that the Union insisted on carrying over the clause in its ambiguity in the next Collective Agreement, and this led Lusaka Water Supply and Sanitation Company Limited having the Clause interpreted by this Honourable Court. 6.37 In support of the submission, Lusaka Water Supply and Sanitation Company Limited relied on the cases of Lusaka Water Supply· and Sanitation Company Limited v Zambia Water and Sanitation Engineering and Allied Worker' Union f7J and Friday Mwamba v Slyvester Ntenge and others (4J. DECISION 6.38 The evidence on record shows that Agrippa Siwale was employed by Lusaka Water Supply and Sanitation Company Limited on· 27th January 2003, as evidenced by the contract of employrnerit, which is at pages 1 and 2 of Lusaka Water Supply and Sanitation · Company Limited's bundle of documents. 6.39 Agrippa Siwale was summarily dismissed from employment on 9th February 2022. As evidenced by the letter which was addressed to him by Lusaka Water Supply and Sanitation J25 Company Limited, which 1s at page 3 of Lusaka Water Supply and Sanitation Company Limited's bundle of documents, he was dismissed after being found guilty of an offence by the Disciplinary Committee. 6.40 The Pay Statement dated 31 s t March 2022, which is at page 4 of Lusaka Water Supply and Sanitation Company Limited's bundle of documents, shows that Agrippa Siwale was paid ZMW7,286 .95 as his total earnings, a document which has not been challenged in any way. 6.41 Kosamu Siwale has, however, alleged that Agrippa Siwale was entitled to be paid accrued benefits, which were to be calculated at three (3) months' basic pay per year, by the number of years served. Reliance was placed on the Collective Agreement, which was effective 1st January 2022 to 31 s t December 2023. 6.42 It is worth noting, that it has not been disputed that the Collective Agreement was effective during the period that Agrippa Siwale was summarily dismissed from employment. 6.43 In cross examination, Kosamu Siwale stated that Clause 54.0 which provided for summary dismissal in the Collective Agreement was clearly described at p age 13, to mean termination with full benefits up to the last day of employment. 6.44 Irene Wakunyambo Tembo testified that the term full benefits or how it was con1puted was not defined in the Collective Agreement. J26 6.45 She admitted that at the time that Agrippa Siwale was dismissed, h e was entitled to benefits under Clause 44.0 under normal retirement, but he was not paid in accordance with the clause. 6.46 Irene Wakunyambo Tembo, stated that paying dismissed permanent and pensionable employees terminal benefits equ ivalent to retired employees would unjustly reward misconduct, especially since employees who resigned only received commuted leave days, making dismissal more a dvantageous than resignation. 6.47 In discussing summary dismissal, the learned authors Winnie Sithole Mwenda and Chanda Chungu in the book, A Comprehensive Guide to Employment Law in Zambia, University of Zambia Press, 2021 at page 251 state that: "Termination without notice is also referred to as summary dismissal. Summary dismissal or instant dismissal, is appropriate where the employee has committed a fundamental breach of his contract or the employee by his conduct ·commits a serious offence that undermines his mutual duty of trust and respect of the employer. When an employee commits a serious offence or breaches his contract, the employee is deemed to hci.ve ·repudiated his employment contract and summary dismissal is viewed as acceptance of the employees's repudiated." J27 6.48 As rightly submitted by Lusaka Water Supply and Sanitation Company Lim ited, Section 51 of the Employment Code Act guides on what is due to a dismissed employee. It provides as follows: "51. (1) An employer who summarily dismisses an employee under section 50 shall pay the employee, on dismissal, the wages and other accrued benefits due to the employee up to the date of the dismissal." 6.49 Section 54 of the Employment Code Act states that: "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 perc·ent 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 J28 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) where a contract of employment has been terminated by redundancy in accordance with section 55, the severance pay shall be a lumpsum of two months' basic pay for each year served under the contract of employment; or (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." 6. 50 In the case of Stanbic Bank Zambia Limited v Natasha Patel rsJ the Court of Appeal h eld as follows: "We have pondered over the above provisions and take the view that Section 51 is applicable to an employee who has been dismissed and it does not refer to severance pay under Section 54. We agree with the solidity of the arguments advanced by the Appellants that Sections 51 and 54 are 1nutually exclusive, and an employee dismissed under Section 51 of the Act cannot claim severance pay under Section 54." 6. 51 Further in the case of Kingfred Phiri v Life Master Limited f6J the Court of Appeal held that: J29 "For avoidance of doubt, employees dismissed from employment for disciplinary reasons and those terminated otherwise from permanent and pensionable contracts of employment are not entitled to a severance pay under Section 54 (1) of the Act." 6.52 The authorities cited above, show that the position of the law is that a dismissed employee is entitled to wages and other accrued benefits due to the employee up to the date of the dismissal, which the Lusaka Water Supply and Sanitation Company Limited stated that it paid Agrippa Siwale. 6.53 This can be seen from the Payment Statement which is at page 4 of the Lusaka Water Supply and Sanitation Company Limited's bundle of documents. 6.54 What has not been disputed in this matter, is that the parties had a Collective Agreement, and which it was agreed, was applicable to Agrippa Siwale, as he was a Unionised employee at the time of his dismissal. 6.55 Irene Wakunyambo Tembo testified that Agrippa Siwale was entitled to payment in accordance Clause 44.0, which is what he has claimed in this ·rnatter. She, however, stated that only a few employees were paid under that Clause, before the practice was corrected with Rodney Musunga Kapuwe being the last of such employees. 6.56 Thereafter, dismissed employees were now being paid 1n accordance with the Employment Code Act. J30 6.57 A perusal of the Collective Agreem ent shows that Clause 54 provided as follows with regard to summary dismissal of employees: "Management may dismiss an Employee summarily if the Employee is guilty of misconduct. However, such action will only be taken after considering the Disciplinary and Grievance Policies and Procedures." 6.58 Under Part V of the Collective Agreement, th e modes of separation from Lusaka Water Supply and Sanitation Company Limited were listed, with Clause 44 providing for normal retirement and the benefits payable thereunder. Clause 45 · provided for early separation with benefits being paid as provided in Clause 4 7. 5. · 6 .59 Clause 46 provided for redundancy, and Clause 48 provided for r edundancy payments, while Clause 49 provided for the severance pay which was payable. 6.60 Clause 52 provided for resignation and the benefits payable thereunder, while Clause 53 provided for discharge and the benefits payable thereunder. 6 . 6 1 What · can be seen · from the prov1s10ns 1n the Collective Agreement are that a ll the modes of separation other than dismissal spelt out the benefits that were .payable. 6 .62 Kosamu Siwale relied on paragraph 17 under Clause 1 of th e Collective Agreement under which terms were defined. That paragr aph defined summary disrnissal as: J31 "Shall mean termination of service with full benefits up to the last day in employment." 6.63 The word 'full benefits', was not defined in that Clause. 6.64 However, full pay was defined in paragraph 6 of the said Clause 1 at page 18 of Lusaka Water Supply and Sanitation Company Limited's bundle of documents as : "shall mean the basic salary applicable to the post inclusive of housing allowance and transport allowance." 6.65 Irene Wakunyambo Tembo testified that for employees who were summarily dismissed from employment , the practice was to pay of three (3) months full p ay for each year served as provided in Clause 44. 4 on guidance being given by the Ministry of Labour and the Zambia Federation of Employers. 6 .66 She stated that when it was discovered that the said advise was erroneous, Lusaka Water Supply and Sanitation Company Limited reverted to paying accrued leave days and any salaries due to be paid for dismissed employees. Irene Wakunyambo Tembo's evidence was that Rodney Musunga Kapuwe was the last employee to be paid benefits in line with Clause 44 of the Collective Agreement in 2021 after he was summarily dismissed from employment. 6.67 This position was not rebutted by Kosamu Siwale. 6.68 Irene Wakunyambo Tembo admitted that the Collective Agreement was entered into after the enactment of the Employment Code Act. She further admitted that Agrippa Siwale was not affected by the efforts to revise the Collective J32 Agreement in March 2023, as h e had already been dismissed at t he time. 6.69 Therefore, the evidence on record shows that there was variance with regard to benefits that were payable to employees who were summarily under the Collective Agreem ent which provided that they were entitled to full b enefits, and wh at is stated in the Employment Code Act, which is wages and other accrued benefits · due to the employee up to the date of the dismissal. 6.70 Section 127 of the Employment Code Act provides a s follows: "127. Where a contract of employment, collective agreement or other written law provides conditions more favourable to the employee, the contract, agreement or other written law shall prevail to the extent of the favourable conditions." 6.71 The provision therefore guides that the Collective Agreement will prevail if it is more favora ble to the employee. The Collective Agreement in this matter provided for full b enefits for an employee who was summarily dismissed. 6 .72 As already noted, 'full benefits' was not defined 1n the Collective Agreement. However, the testimony that was given on behalf of Lusaka Water Supply a nd Sanitation Company Limited, was that it paid employees three (3) months' basic pay per year by the number of years served for an employee who was summarily dismissed but that it stopp ed doing so on establishing that the practice was erroneous. • J33 6.73 I have already noted that Ireen Wakunyambo Tembo in her viva voce testimony, told the Court that Rodney Musunga Kapuwe was paid benefits after he was summarily dismissed in 2021, after the Employment Code Act was enacted, and Lusaka Water Supply and Sanitation Company Limited was guided by the Zambia Federation of Employers and the Ministry of Labour that employees who were summarily dismissed were to be paid benefits as though they had retired from employment. 6 .74 Summary dismissal anses as a result of an employee's contract of employment being terminated on disciplinary grounds. As such, and as Clause 54 of the Collective Agreement did not spell out what benefits were payable to an employee who was summarily dismissed, the definition of full benefits in paragraph 17 of Clause 1 of the said Collective Agreement applied. 6.75 In line with that definition, full benefits, meant full salary as per paragraph 6 of the said Clause 1 and accrued leave days, and not benefits at three (3) months for each year served in line with Clause 44.4 of the said Collective Agreement. 7. CONCLUSION 7 .1 Therefore, Agrippa Si wale having been paid as evidenced at page 4 of Lusaka Water Supply and Sanitation Company Limited's bundle of documents, as an employee who was summarily dismissed from employment, his claim that his estate should be paid accrued benefits at three (3) months' J34 pay for each year served by the number of years served fails, and it is dismissed. 7.2 This matter being one which was based on interpretation on provisions of the Employment Code Act on benefits due to an employee that is summarily dismissed vis a vis a Collective Agreement, I Order that each party shall bear their own costs of the action. Leave to appeal is granted. DATED AT LUSAKA THE 30th DAY OF DECEMBER, 2025 S. KAUNDA NEWA HIGH COURT JUDGE