Chembo v National Pension Scheme Authority (APPEAL NO. 183/2020) [2023] ZMCA 175 (26 July 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO. 183/2020 BETWEEN: LLOYD CHEMBO AND 1u~llC OF lAME ~~ ti; [ 2 6 JUL 2023 ±' APPELLANT ~ IL 1!EG1Hi<Y ·B~ '.v l'i-t--· -~ i _~.k~ NATIONAL PENSION SCHEME AUTHORITY RESPONDENT CORAM: SIAVWAPA, JP, CHISHIMBA AND BANDA-BOBO, JJA On 16,h May 2023 and 26th July 2023 FOR THE APPELLANT: MR. KELVIN N. HANG'ANDU OF KELVIN HANG'ANDU & CO FOR THE RESPONDENT: MR. S. MAMBWE OF MESSRS MAMBWE SIWILA & LISIMBA ADVOCATES JUDGMENT SIAVWAPA, J. P. delivered the ,Judgment of the Court. Cases referred to: 1. 2. 3. 4. Tolani Zulu and Musa J{amwala v Barclays Bank (2003) ZMSC Zambia Privatization Agency v ,lames Matale (1996) ZMSC 7 Kabwe v B. P. Zambia Limited (1995) ZR 218 /1997/ ZMSC 25 SC National Milling Company Limited v Grace Simataa and Others SCZ Judgm.enl No. 21 o/2000 5. Mutupo v B. P. Zambia Limited (2000) ZMSC 57 SCZ Appeal No. 13/2000 6. Marriot Marriot v Oxford and District Cooperative Society Limited (1969) 3 ALL E. R 1126 John Paul Kasengele v ZANACO Plc (2000) ZR 72 7. Legislation referred to: Employment Act (Cap 268), of the Laws of Zambia 1. 2. National Pension Scheme Authority Act Chapter 256 of the Laws ofZambia 1.0 INTRODUCTION ' ' 1.1 This Appeal is against the Judgement delivered by the Honourable Mr. Justice W. S. Mweemba in the High Court of Zambia on 15th July, 2020 at Lusaka. 1.2 By the said Judgment the learned Judge dismissed all the Appellant's claims against the Respondent for damages for wrongful and unfair dismissal, unlawful declaration of the Appellant redundant, re-instatement, salary arrears from date of dismissal, interest and costs. 2.0 BACKGROUND 2.1 The Appellant was initially employed by the Respondent on 1st July 2001 as Contributions Manager on a permanent and pensionable basis. J2 ► I , I 2.2 Thereafter, he served in various capacities in different departments until 30th May, 2011 when he was appointed to act as Director, Internal Audit. 2.3 This appointment also removed the Appellant from the Permanent and Pensionable terms of employment to a fixed term contract for a period of three years running from 1 si October, 2011 to 30th September, 2014. 2.4 However, the follO'w:ing year, in 2012, the organizational structure of the Respondent was re-aligned with the splitting of its structure into two zones, namely, the south and the north. 2.5 In addition to the splitting of the Respondent, the Audit department was also downgraded to be headed by a Manager instead of a Director. Subsequent to the down grading, the Appellant \Vas re-deployed and re-designated as Regional Director for the South Zone. 2.6 The split was however, short-lived as just a year after the said split of the Respondent into the North and South Zones, the Respondent re-unified into one administrative entity resulting in the termination of the contracts of the Appellant and his counterpart in the North. J3 I • I 2.7 Later, in December 2016, the Audit department \Vas agairi elevated to a Directorate to be headed by a Director. This was upon recommendation by Messrs Delloite and Touche leading to the advertising of the position of Director Internal Audit. 3,0 MATTERS BEFORE THE HIGH COURT 3.1 In 2017, the Appellant filed a Notice of Complaint m the Industrial Relations Division of the High Court as amended by ' Order of the Court on 25th February, 2019. 3.2 By the said Notice of Complaint, the Appellant sought the following reliefs; among others; 1. Damages for wrongful dismissal from employment as Director of Internal Audit. 2. Damages for unfair dismissal 3. Declaration that the Complainant was unlawfully declared redundant, contrary to the law in force in Zambia prescribing the mandatory procedure for so doing and in particular the Employment Act (Cap 268), Laws of Zambia) and thus illegally and/ or unfairly dismissed. 4. Re-instatement 5. KS,703,696.58 arrears of salaries due from August 22, 2012, when he was unfairly dismissed, until December, 31, 2016 when the Defendant re-advertised the job of Director Internal Audit and unequivocally sought to substitute another employee in the said portfolio, J4 ' • • J inclusive of such further kindred compensation as the Court shall find due according to the law. Interest on the said damages Interest on the said arrears and whatsoever other debt 6. 7. shall be found due. 8. Costs, and 9. Further on other reliefs as might be just 3.3 The thrust of the Appellant's arguments is that, having been offered and having accepted a three year fixed term contract to serve as Director Internal Audit with effect from l st October 2011, his contract was to run until 30th September, 2014. 3.4 However, in 2012, the Respondent re-organized its structure resulting in the position of Director Internal Audit being rendered irrelevant as the audit department was now to be headed by a manager. The Appellant was accordingly re deployed to a newly created position of Regional Director, South. 3.5 A further re-organization and streamlining of the Respondent's structure in 2013 led to the abolition of the positon of Regional Director with the consequential effect of having the Appellant's contract terminated by the Director-General via a letter dated 131h August 2013. JS 3.6 In the Appellant's view, the termination of his contract of employment amounted to a declaration of redundancy. This is because he believed that his services were no longer required. 3.7 The Appellant further argued that the act of targeting his position each time there \Vas a re-organization of the Respondent's structure was evidence that he was maliciously targeted and that his termination \Vas not done in compliance with the procedure for redundancy as set out by section 268 of the Employment Act. 3.8 The Appellant viewed the subsequent public advertisement of the position of Director, Internal Audit, by the Respondent on 14th December, 2016, which position he had held before, as testimony that the previous re-organization that led to his re deployment and subsequent termination of his contract \Vas targeted at getting rid of him. 3.9 The Appellant's final argument was that the purported abolition of the positions of Director Internal Audit and Regional Director South as well as the subsequent termination of the Appellant's contract were ultra vires and amounted to wrongful dismissal because there was no Board of Trustees at the time, which alone was empowered to take the said actions. J6 3.10 In its answer to the complaint and claims, the Respondent denied targeting the Appellant as his counter-part in the Northern Region was equally affected. 3.11 On the re-advertisement of the position of Director Internal Audit, the Respondent submitted that it was done on the recommendation of Deloitte and Touche follo\\'l.ng a review of the organization in 2014 and 2015. 3.12 The Respondent also disputed the assertion that the actions taken \11rith regard to the positions of Director Internal Audit and Regional Director in the absence of the Board were ultra-vires and therefore wrongful. 4.0 DECISION OF THE COURT BELOW 4.1 After hearing the parties and considering all the evidence before him, the learned Judge delivered a ,Judgment, the subject of this appeal. 4.2 In the said Judgment the learned Judge composed three issues for his determination as follows: 1. Whether the Director-General had no authority to re designate the Complainant to another position during the tenure of his fixed contract as Director Internal Audit. J7 . ' 2. Whether the actions of the Respondent in the manner they terminated the contract of the Complainant amounted to unfair dismissal. 3. Whether the manner in which the Respondent handled the case of the Complainant amounted to redundancy. 4.3 With regard to the first issue, the learned Judge held that since the Respondent was re-aligned, after ·which the Appellant's position was re-designated and followed by internal consultations, and subsequent approval by the Ministry of Labour, it was inconsequential that there was no Board in place at the time. 4.4 The learned Judge also held that not all the Appellant's conditions of service were varied and that the Appellant consented to the variations that were made, as demonstrated by his conduct by continuing to work under the existing terms • of the contract. 4.5 In addressing the second issue, of ·whether the termination of the Appellant's contract amounted to unfair dismissal, the learned Judge held that the termination was not unfair because it was by Notice as provided for in Clause 10.3 of the Contract of Employment. The learned Judge adverted to the cases of Tolani Zulu and Musa Hamwala v Barclays Bank1 and Zambia Privatization Agency v James Matale2. J8 I • ► • 4.6 With regard to the third issue, whether or not the Appellant's termination amounted to redundancy, the learned Judge was of the view that the termination and other variations to his job title prior to termination did not amount to redundancy. 4.7 The learned Judge based his view on definition of redundancy as set out in the cases of Kabwe v B. P. Zambia Limited3 and National Milling Company Limited v Grace Simataa and Others. 4 The two cases held that when the employer varies (a) basic condition or conditions of employment without the consent of the employee, the contract of employment terminates and the employee is deemed to have been declared redundant or early retired as the case may be. 4.8 Having earlier held that the conditions of employment for the Appellant were varied with the Appellant's consent, the learned Judge held that redundancy did not apply to the Appellant. 5.0 THE APPEAL 5.1 Dissatisfied with the outcome of his complaint, the Appellant filed his Notice and Memorandum of Appeal on 4 th August, 2020. The Memorandum of Appeal contains the following grounds of appeal; 1. The Hon. Mr. Justice William S. Mweemba misdirected himself in law when he held that; "in his considered view" J9 • • the absence of the Respondent's Board of Trustees of necessity gave jurisdiction to the (a) Respondent's Director -General, (b) Permanent Secretary of the Ministry of Labour (c) the Ministry's Directors of (i) Social Security and (ii) Human Resource and Administration to approve and re-align the Appellant's Directorate as well as all others so that the Appellant's said re-deployment and subsequent termination of employment was lawful and not a nullity at all. 2. ' The Hon. Mr. Justice William S. Mweemba misdirected himself in fact when he found that the re-alignment of the National Pension Scheme Authority (NAPSA) directorates had led to the re-designation of the Appellant's job of NAPSA, Director of internal Audit, because that was against the \Veight of the evidence adduced at the trial, since the Appellant's job of Director of Internal Audit had in fact been abolished, as a result of which he was re deployed to the newly created Job of NAPSA Regional Director-South. 3. The Hon. Mr. Justice William S. Mweemba misdirected himself in fact when he held that the Appellant had consented to his purported re-deployment to the newly created job of NAPSA Regional Director-South, following abolition of his substantive job of NAPSA Director of JlO Internal Audit, and that the Appellant was party to the internal "consultations within management'' that were aimed at effecting said re-alignment and had thereby consented, by conduct to his re-deployment. 4. The Hon. Mr. Justice William S. Mweemba misdirected himself in both fact and law when he held that the Appellant's re-deployment, to the altogether newly created job of NAPSA Regional Director -South did not in law amount to a unilateral variation of his principal or basic terms or conditions of service, and thus did not terminate his employment with the Respondent at all; and that said variation ought to have involved the variation of "all the complainant's basic term(s) and conditions of service" in order to be justiciable. 5. The Hon. Mr. Justice William S. M\veemba misdirected himself in both law and fact \vhen he held that since "the only basic term of employment varied was the job title and job description it was not necessary for the parties to enter into a fresh contract of employment" as a consequent thereof, in as much as said holding was against the weight of the evidence adduced at the trial and contravened the principles enunciated by the Supreme Court in Kabwe v B. P. Zambia Limited, per Muzyamba JS; National Milling Co. Limited v Grace Simataa and Others. per Ngulube, CJ Jll .. and Mutupo v B. P. Zambia Limiteds per Sakala Acting Chief Justice. 6. The Hon. Mr. Justice William S. Mweemba misdirected himself in la\v when he held that the Appellant ought to be deemed to have "accepted the position of Regional Director South through his conduct" by continuing to \Vork under: the terms and conditions of that job, between August 27, 2012 and November 13, 2013, in spite of the mandatory statutory stipulation in Section 28(2) of the Employment Act (Cap 268 of the Laws of Zambia) \Vhich unconditionally enjoined the Respondent to explicitly secure the Appellant's signature or the imprint of his thumb in order to evidence his express consent to the aforementioned re deployment. r 7. The Hon. Mr. Justice William S. Mweemba misdirected himself in both fact and la\v when he held that there was no evidence of vindictiveness, maliciousness or caprice in the Respondent's decision to re-deploy the Appellant, and then subsequently abolish the newly created jobs to which he had been re-deployed, without his consent, and that the basis of said re-deployment was in fact "meant to address challenges in the operations of NAPSA and to promote efficiency" and \Vas thus made "in good faith and for good and rational reasons" and J12 ' . . . 8. The Hon. Mr. Justice William S. Mweemba misdirected himself in law when he admitted Mrs. Betty Meleki's hearsay evidence, the Respondent's sole witness to prove that {a) the termination of the Appellant's employment didn't constitute either wrongful or unfair dismissal, nor was it vindictive, malicious, or capricious; and {b) that the Appellant's re-deployment and the subsequent termination of his employment ,vas lawful, despite the fact that the NAPSA Board of Trustees ,vas non-existent at the time when the Respondent re-deployed and therefore terminated the Appellant's employment. 6.0 ARGUMENTS IN SUPPORT 6.1 In the heads of argument filed together with the Record of' Appeal on 2nd October, 2020, the Appellant has argued the eight grounds of appeal in clusters with the first cluster comprising grounds one and two, the second comprising grounds three, four and five, ground six is argued alone ,vhile grounds seven and eight are argued together. 6.2 In arguing the first two grounds, the Appellant has asserted that whereas his appointment as Director Internal Audit was made by the Authority's Board of Trustees, the creation of the position of Regional Director-South and his subsequent re-deployment to the position and termination were done ,..,ithout the Board's authority as there was none at the time. Jl3 . . 6.3 He has further argued, with reference to Sections 3(1}, 6(2}, 8(2} and Regulation 1(2}(3} and (4) of the National Pension Scheme Authority Act Chapter 256 of the Laws of Zambia that, only the Board of Trustees has the authority to re-align and create or abolish directorates as well as terminate Directors' employment. 6.4 To the extent stated above, the Appellant has argued that the variations made to his conditions of employment as Director Internal Audit, re-deployment to the position of Regional Director South and subsequent termination without the Board were ultra vires and amounted to redundancy. 6.5 In grounds three, four and five, the Appellant argues against the learned Judge's holding that the Appellant consented and was party to the decision to re-align the Respondent and his subsequent re-deployment. 6.6 In rejecting the learned Judge's findings, the Appellant has asserted that his position of Director Internal Audit was actually abolished and that he lost some of the allowances that attached to the position of Director Internal Audit following his re deployment to a totally different position of Regional Director, South. 6. 7 The Appellant also disputes the learned Judge's view that the variations were merely to the job title and job description and ' Jl4 .. that the variations should have covered all the conditions of employment. The Appellant cited the case of Kabwe v B. P. Zambia Limited (Supra) as holding to the effect that any unilateral variation of an employee's conditions of service without consent amounts to a termination. 6.8 For the learned Judge's finding that the Appellant consented to_ serving in his new position on the basis that he had continued to serve in that position as set out in ground six, the Appellant has argued the earlier cited case of Kabwe v B. P. Zambia Limited. In that case, and after citing with approval the case of Marriot Marriot v Oxford and District Cooperative Society Limited6 the Supreme Court stated that, " ... .. continued working after his ' salary was reduced cannot be said that he accepted the new conditions and that the contract of employment between the parties tenninated on 9th June, 1994 when the Respondent reduced the Appellant's salary without his consent.» 6.9 In grounds seven and eight, on whether or not, the Respondent ' treated the Appellant with vindictiveness, maliciousness or caprice and the acceptance of the Respondent's sole witness, hearsay evidence, the Appellant has argued that the learned Judge should not have admitted Betty Meleki's evidence as she was not in the employ of the Respondent when the issues in dispute were taking place. J15 6.10 According to the Appellant, the said hearsay evidence is what the learned Judge relied upon to dismiss the Appellant's claims that his treatment by the Respondent was calculated to intentionally hound him out of employment. 7.0 ARGUMENTS IN OPPOSITION 7 .1 The Respondent filed heads of argument on 4th March, 2021 responding to each of the grounds individually and largely agreeing with the position taken by the Learned Judge on each ground and the overall outcome of the matter. 7.2 In agreeing with the decision of the learned trial Judge that in the absence of the Board ofTrustees, the Minister had authority to act on its behalf, the Respondent found solace in the case of John Paul Kasenqele and another v ZANA CO Bank Plc7 in so far as the Supreme Court held that the shareholders of a company have overriding authority over its directors and managers. 7.3 The Respondent took the view that powers of shareholders in a company are analogous with the authority of the Minister in a statutory body like the Respondent in that the Minister appoints the Board and can therefore, act through the Permanent Secretary and the directors in the absence of the Board of Trustees. )16 . ' 7.4 On \Vhether or not the position of Director Internal Audit had been abolished leading to re-deployment to the position of Regional Director, South, the Respondent has answered the same in the negative. This is because according to the minutes of the special meeting at which the structure of the Respondent was changed, there is no mention of the abolition of the Directorate. 7 .5 On \Vhether or not changes were made without the Appellant's consent, the Respondent has argued that the finding by the learned Judge is factual and cannot be overturned unless it is perverse. Further that there is evidence that the Appellant was part of the meeting that approved the changes and his re designation. 7.6 As regards the assertion that the Appellant's basic terms of employment were unilaterally varied, the Respondent argues that no such variation was made as the letter of re-deployment states that he would continue to serve on the already existing contract with all the conditions of service therein. 7. 7 The other arguments deployed are not necessary for the resolution of this appeal so we will not attend to them. J17 8.0. ANALYSIS AND DECISION 8.1 From the grounds of appeal and the arguments proffered by the Appellant, through the eight grounds of Appeal, it seems that the issues in dispute are whether the changes to the organizational and management structure of the Respondent which affected the Appellant and made in the absence of the Board of Trustees (The Authority) were valid. 8.2 The Appellant, in his arguments, has referred us to the provisions of the enabling Act and its attendant regulations which set out the operational structure of the Respondent. 8.3 The starting point is section 3 of the National Pension Authority Scheme Act Chapter 256 of the Laws of Zambia which defines "Authority'' as the "National Pension Scheme Authority established under section 3(1)". 8.4 Then Regulation 1 prescribes the composition of the Authority as follows; (a) Two representatives from such associations of employees as the Minister shall designate. (b) Two representatives from such associations of employers as the Minister shall designate. (c) A representative and an alternate member from the Ministry responsible (for) Finance. J18 (d} A representative and an alternate member from the Ministry responsible for social security. (e} A representative of the Bank of Zambia (f) A representative of the Bankers Association of Zambia and (g) A representative of the Pension Managers Association 8.5 It is clear from the list above that the Authority refers to the collective body of the individuals drawn from different institutions and organizations with only one representative from the Ministry of Labour and Social Security. 8.6 It is also important to note that Regulation 1 provides for the convening of the Authority's Meetings by the Chairman appointed by the Minister or in his absence, the vice Chairman who is elected by the members of the Authority. 8.7 Regulation 1(4) provides that the quorum at any meeting of the Authority shall be the Chairperson or the Vice Chairperson and three other members that is; four members inclusive of the Chairperson or the Vice. This means that no meeting can be convened without the Chairperson or the Vice. 8.8 With regard to the power to appoint officers and staff of the Authority; section 6(2) of the Act vests the power to appoint the Director-General in the Minister of Labour and Social Security. Jl9 t i • • As regards the Secretary and other staff of the Authority; Section 7(2) of the Act vest the power to appoint and conversely to disappoint in the Authority on terms and conditions determined by the Authority. 8.9 It is not in dispute that at the time the two Directorates for the South and the North were created, the Authority had been dissolved. The re-designation of the Appellant as Regional Director, South and the downgrading of the position of Director ' Internal Audit were done in the absence of the Board of Trustees. 8.10 In justifying the above stated changes, the Respondent argued that the Permanent Secretary and Senior officials from the Ministry of Labour played the role of the Board. 8.11 There is however, no provision either in the Parent Act or the Regulations which empowers the Ministry's Senior Management to act as the Board pending the appointment of Board members. The Respondent did not cite any provision of law or policy position that supports that assertion. 8.12 Section 3 of the National Pension Scheme Authority Act, which establishes the Authority provides for only one representative and an alternate from the Ministry responsible for social security. J20 8.13 The record shows that the changes in dispute were conceived ' and driven by the new Director-General Mr. Charles Mpundu:, This is evident from the minutes of the Meeting held on 14th July, 2013, comprising the Permanent Secretary, Ministry of Information, Broadcasting and Labour (as Chairperson) with two Directors and the Respondent's Senior Management led by the Director-General. The minutes are at page 505 Volume twq of the Record of Appeal. 8.14 Looking at the composition of the meeting the same was at best, a management meeting of the Respondent to which the management of the Ministry was called and the Permanent Secretary asked to chair. 8.15 In his opening remarks at page 505 of Volume two of the Record. of Appeal, the Chairman stated that the Director-General had written to him suggesting changes to the Authority's structure. The chairman further informed the meeting that the re alignment of the Authority formed the sole Agenda item for the { meeting. 8.16 Section 6(1) of the Act provides as follows; "There shall be a Director-General who shall be the Chief Executive Officer of the Authority and who shall, subject to the control of the Authority, be responsible for the day to day administration of the Authority." J21 8.17 Sub-section (3) provides as follows; "The Director-General shall attend meetings of the Authority and may address such meetings but shall have no vote". 8.18 From the above provisions of the law, it is clear that the Director-General is merely the Chief Executive Officer of the Authority responsible for its day to day management. The Director-General has no Authority either acting alone or with any other persons to change the structure of the Authority or to ' abolish/ down grade and create new structures of the Authority. 8.19 Even assuming that the Director-General had the authority to effect changes to the structure of the Authority to increase efficiency the same can only be exercised under the control of the Authority. 8.20 Further, the Director-General, is not designated as a member of the Authority but entitled only to attend meetings of the Authority and to address the meeting without the right to vote. 8.21 It is therefore, clear that without a properly constituted ' Authority, the Respondent stands to be managed on an "as is~ basis. No changes can be made to its existing structures. 8.22 It was therefore, misdirection on the part of the learned trial Judge to hold as he did at page 33 of volume one of the Record of Appeal in his Judgment from line 6 to 16 to the effect that; J22 " ........ in the absence of the NAPSA Board of Trustees, the Ministry of Labour which appoints the members of the Board of Trustees and which has oversight powers over the operations of NAPSA has legal mandate or mrisdiction to approve the re-alignment of the NAPSA Directorates and the functions of its Directors ....... » 8.23 The position taken by the learned Judge is not supported by any provision of the law. The law vests the Authority with the power to formulate policy and appoint staff of the Authority r other than the Director-General who . is appointed by the Minister. 8.24 It is therefore, clear that the meeting between the Ministry officials and the Respondent's Senior Management that took place on 14th July, 2012, and purported to make the disputed . changes to the structure of the Respondent did not constitute;· the Board and therefore, had no power to make the said changes. 8.25 The result is that the creation of the two regional directorates and the downgrading of the position of Director Internal Audit was illegal and therefore, null and void. 8.26 Subsequent to the above, the re-deployment of the Appellant to an illegally created position of Regional Director-South was null and void. J23 8.27 In view of the above, the Appellant herein will be deemed to have maintained his position of Director Internal Audit until the termination of his contract by Notice on 13th August, 2013. 8.28 It is noted that the termination of the Appellant's contract was by recommendation of the Staff Affairs Committee of the Authority at its meeting held on 25th July, 2013. This meeting was possible because the Board of Trustees had earlier been inaugurated in January, 2013, by the then Minister of Labour and Social Security, Mr. Fackson Shamenda. 8.29 Considering that the contract of employment which the Appellant signed on 30th September, 2011, upon his, appointment as Director Internal Audit, contains a termination Clause under Clause 10.3, the termination was lawful subject to the giving of three months' notice or payment in lieu of notice. 8.30 There is therefore, no question of redundancy as termination by, notice is a legitimate mode of termination where the Contract s6 provides (see page 490 record of appeal). 8.31 For avoidance of doubt, our view is that the Appellant's contract of employment was properly terminated by notice pursuant to Clause 10.3 of his Contract of employment as Director Internal Audit upon recommendation by the Staff Affairs Committee. J24 8.32 The position we have taken that the Appellant was properly terminated by the Authority, disposes of the claim for unlawful/unfair dismissal as the said claim has no leg to stand on. 8.33 Consequently, his re-deployment to the position of Regional Director, South, cannot be deemed to be a dismissal because he continued to serve on the same contract he had signed in 2011 as Director of Internal Audit on the same conditions of service. This can only be viewed as a lateral transfer and change of duties which did not in effect vary his conditions of service to be construed as a termination of Contract. 8.34 The case of Kabwe v BP Ltd which the Appellant has cited among other authorities lays down the principle that where the employer varies a basic condition of employment without the. consent of the employee, in fact, terminates the contract of employment and the employee is deemed to be redundant. 8.35 The point to note 1s that the condition(s) of employment so varied should be basic. In the Kabwe case, the employer reduced the employee's salary without the employee's consent. In this case, the changes that were made to the Appellant's conditions of employment were, the nature of the job, the place of work and the scope of his jurisdictional area. J25 8.36 There is no evidence that his emoluments were diminished and neither was evidence led to show that he lost some of the allowances he received as Director of Internal Audit. 8.37 There is therefore, no case for termination of Contract by variation of a basic condition(s) of employment without the Appellant's consent when the Appellant was re-designated as Regional Director-South. 8.38 It is therefore our held op1n1on that the other argument& advanced in support of the individual grounds of appeal have been taken care of by the views expressed with regard to the issue in dispute as set out in paragraph 8.1 of this Judgment. 8.39 The net effect is that this appeal has partially succeeded and this being a labour matter, the order is for each party to bear own costs. M. J. SIAVWAPA JUDGE PRESIDENT . . . . . .................................... . F. M. CHISHIMBA COURT OF APPEAL JUDGE ......... ~ ................ .. A. M. BANDA-BOBO COURT OF APPEAL JUDGE J26