Lupiya Peter Sakala And Ors v Zambia National Commercial Bank Plc (2021/HP/0787) [2024] ZMHC 288 (26 December 2024)

IN THE HIGH COURT OF ZAMi:>Ln. ..... 1 1 AT THE PRINCIPAL REGIST Y ja HOLDEN AT LUSAKA (Ci vil Jurisdiction) B ETWEEN: J1 sue OF z I I COURT or, l.4; PRINCIPAL REGIS7RY -2 2021/HP/0787 LUPIYA PETER SAKALA AND 117 OTHERS (as per attached list) PLAINTIFFS AND ZAMBIA NATIONAL COMMERCIAL BANK PLC DEFENDANT BEFORE HON MRS JUSTICE S. KAUNDA NEWA IN CHAMBERS THIS 26th DAY OF DECEMBER, 2024 For the Plaintiffs : Mr. M. Lisimba Messrs Mambwe Siwila & Lisimba Advocates For the Defe1,1,dant Mr. M. Nchito SC, Mr. C. Hamwela & Ms. N. Chibuye, Messrs Nchito & Nchito and Mr. N. Siamondo -in house Counsel JUDGMENT CASES REFERRED TO: 1 . Printing and Numerical Registering Company v Simpson 1875 LR 19 EQ462 2. Khalid Mohammed v The Attorney General 1982 ZR 49 3 . Christopher Lubasi Mundia v Sentor Motors Limited 1982 ZR 66 4 . Wilson Masauso Zulu v Avondale Housing Project 1982 ZR 172 5. William David Carlisle Wise v E . F. Hervey Limited 1985 ZRl 79 6 . Mike Musonda Kabwe v BP Zambia SCZ Appeal No 115 of 1996. 7. Association of Copper Mining Employees and the Attorney General v Mine Workers Union of Zambia Appeal No 129 of 1998 8. Farrant v The Woodroffe School 1998 1 WLR 176 EAT 9 . Jacob Nyoni v The Attorney General 2001 ZR 65 10. Lawrence Muyunda Mwalye v Bank of Zambia SCZ No 22 of 2001 11 . National Drug Company Limited and Zambia Privatisation Agency v Mary Katongo Appeal No 79/ 2001 12. Association of British Travel Agents Limited v British Airways Plc 2002 2 ALL ER 204 J2 13. Galaunia Farms Limited v National Milling Corporation Limited 2004 ZR 1 14. Toll (Fgct) Pty Ltd v Alphapharm Pty Ltd 2004 219 CLR 15. Colgate Palmolive Zambia Inc v Abel Shemu Chuka and 10 others SCZ No 181 of 2005 16. Violet Nkwanjiwa Nkonjera v Chilanga Cement Appeal No 33 of 17. Dickson Zulu & others v Zambia State Insurance Corporation SCZ No 203/2008 18. Indo Zambia Bank Limited v Mushaukwa Muhanga 2009 ZR 266 19. Attorney General v Nachizi Phiri and others SCZ Appeal No 68 of 20. Zambia Telecommunications Company Limited v Newtone Mweetwa and Ninety-Three others SCZ Appeal No 195/2010 21. Damales Mwansa v Ndola Lime Company Limited SCZ Appeal No 201/2012 22. Stanbic Bank Zambia Limited v Andrew Muyaba SCZ No 203/2012 23. Mwamba v Nthenge and 2 others SCZ No 5 of 2013 24. Zambia National Commercial Bank Plc v Misheck Chanda SCZ Judgment No 104/2014 25. Charles Nyambe & 82 others v Buks Haulage SCZ Appeal No 202/2014 26. Hambali M . Hantotola v the Council of the University of Zambia SCZ Appeal No 215/2014 27. Richard Musenyesa v Indo Zambia Bank Limited SCZ Appeal No 214 of 20~ 6 28. Zambia National Commercial Bank Plc v Geoffrey Muyamwa and 88 otherJ SCZ/8/262/2016 29. Finah ce Bank Zambia Limited and Rajan Mahtani v Simataa Simataa Selected Judgment No 21 of 2017 30. Barclays Bank (Z) Plc v Mutambo and another Appeal No 8 of 2019 31 . Zambia National Commercial Bank Plc v Ernestina Sakala and others SCZ Appeal No 13 of 2022 OTHER woJ KS REFERRED TO: 1. A Comprehensive Guide to Employment Law in Zambia, by Winnie Sithole Mwenda and Chanda Chungu, the University of Zambia Press, 2021 1. INTRODUCTION 1.1 Lupiya Peter Sakala and Eighty (80) other Plaintiffs, initia lly sued Zambia National Commercial Bank Plc on 12th July, 2021, by Writ of summons which was accompanied by a J3 statement of claim and the other requisite documents. Then by a Ruling dated 2 nd November, 2022, I granted leave to amend the said Writ of Summons and the statement of claim, which amended documents were filed on 8 th November, 2022, and saw the number of Plaintiffs increase to One Hundred and Eighteen (118). 1.2 Lupiya Peter Sakala and the others, by virtue of the amended Writ of Summons claim: z. Payment of the sum of K2, 081, 999.36 in respect of Lupiya Peter Sakala being his total outstanding underpayment on his separation package at the time of exit from the company; ll. Payment of the sum of K9, 215, 771. 74 in respect of Clement Kapila being his total outstanding underpayment on his separation package at the time of exit from the company; iii. Payment of the sum of K4, 166, 875. 71 in respect of Jen if er Siyumba being her total outstanding underpayment on her separation package at the time of exit from the company; iv. Payment of the sum of K2, 579, 357. 00 in respect of Josephine Mwape being her total outstanding underpayment on her separation package at the time of exit from the company; v. Payment of the sum of K3, 821, 364.58 in respect of Gladys Sokoni being her total outstanding J4 underpayment on her separation package at the time of exit from the company; vi. Payment of the sum of K3} 611} 049. 60 in respect of Gloria Imasiku being her total outstanding underpayment on her separation package at the time of exit from the company; vii. Payment of the sum of K2} 780} 065.12 in respect of Namkando Mashekwa being his total outstanding underpayment on his separation package at the time of exit from the company}· viii. Payment of the sum of K2} 224} 001.28 in respect of Moses Willima being his total outstanding underpayment on his separation package at the time of exit from the company}· ix. Payment of the sum of K2} 224} 001.28 in respect of Josephine Chileshe being her total outstanding underpayment on her separation package at the time of exit from the company; Payment of the sum of K2} 224} 001.28 in respect of Ireene Musariri being her total outstanding underpayment on her separation package at the time of exit from the company; xi. Payment of the sum of K2} 835} 120.00 in respect of Brian Mapani being his total outstanding underpayment on his separation package at the time of exit from the company}· JS xii. Payment of the sum of K2, 574, 783.36 in respect of Abel Ndemena being his total outstanding underpayment on his separation package at the time of exit from the company; xiii. Payment of the sum of K2, 091, 084.48 in respect of Christine Malunga being her total outstanding underpayment on her separation package at the time of exit from the company; xiv. Payment of the sum of K2, 295, 832. 68 in respect of Felix Mutale being his total outstanding underpayment on his separation package at the time of exit from the company; xv. Payment of the sum of K41 000, 953.48 in respect of Matildah Ngona being her total outstanding underpayment on her separation package at the time of exit from the company; xvi. Payment of the sum of K2, 324, 293. 44 in respect of Brian Mankoya being his total outstanding underpayment on his separation package at the time of 1 exit from the company; xvii. Payment of the sum of K2, 610, 333.12 in respect of Patricia Mwambazi being her total outstanding underpayment on her separation package at the time of exit from the company; xviii. Payment of the sum of K21 301, 226.56 in respect of Muyembe Nkhoma being his total outstanding J6 underpayment on his separation package at the time of exit from the company; xix. Payment of the sum of K4, 052, 956.45 in respect of Edna Sichalwe being her total outstanding underpayment on her separation package at the time of exit from the company; xx. Payment of the sum of K4, 970, 529. 74 in respect of Cox Siakakole being his total outstanding underpayment on his separation package at the time of exit from the company; xxi. Payment of the sum of KS, 188, 665.15 in respect of Boyd Sichone being his total outstanding underpayment on his separation package at the time of exit from the company; xxii. Payment of the sum of K2, 749, 418.00 in respect of George Chashele being his total outstanding underpayment on his separation package at the time of exit from the company; xxiii. Payment of the sum of Kl, 748, 208. 00 in respect of Josphat Ngombe being his total outstanding underpayment on his separation package at the time of exit from the company; mu. Payment of the sum of K2, 034, 561.12 in respect of Denis Nchindo being his total outstanding underpayment on his separation package at the time of exit from the company; J7 xxv. Payment of the sum of K2, 815, 446.21 in respect of Albert Mweetwa being his total outstanding underpayment on his separation package at the time of exit from the company; xxvi. Payment of the sum of Kl, 745, 786.08 in respect of Kingsley Namusenga being his total outstanding underpayment on his separation package at the time of exit from the company; xxvii. Payment of the sum of K2, 497, 994.26 in respect of Patrick Simukwanya being his total outstanding underpayment on his separation package at the time of exit from the company; xxviii. Payment of the sum of K2, 836, 828.26 in respect of Steven Kangomu being his total outstanding underpayment on his separation package at the time of exit from the company; xxix. Payment of the sum of K3, 876, 482.22 in respect of Frederick Mako.ft being his total outstanding underpayment on his separation package at the time of exit from the company; XXX. Payment of the sum of Kl, 600, 447. 74 in respect of I Hellen Mukupa outstanding being total her underpayment on her separation package at the time of exit from the company; xx.xi. Payment of the sum of K4, 302, 949.98 in respect of Sylvester Ngoma being his total outstanding J8 underpayment on his separation package at the time of exit from the company; xxxii. Payment of the sum of K2, 896, 535. 94 in respect of Florence Kaluba being her total outstanding underpayment on her separation package at the time of exit from the company; xxxiii. Payment of the sum of K2, 544, 786. 94 in respect of Kaoma Chola being his total outstanding underpayment on his separation package at the time of exit from the company; xxxiv. Payment of the sum of K2, 544, 786.94 in respect of Maliro Mwanza being his total outstanding underpayment on his separation package at the time of exit from the company; xx.xv. Payment of the sum of K2, 481, 491. 71 in respect of Edward Chungu being his total outstanding underpayment on his separation package at the time of exit from the company; xx.xvi. Payment of the sum of K2, 689, 392.38 in respect of Justine Lukwesa being his total outstanding underpayment on his separation package at the time of exit from the company; xx.xvii. Payment of the sum of K2, 481,491.71 in respect of Viola Mukobela being her total outstanding underpayment on her separation package at the time of exit from the company; J9 xx.xviii. Payment of the sum of K2, 689, 392.38 in respect of Paul Kabwe being his total outstanding underpayment on his separation package at the time of exit from the company; xxxix. Payment of the sum of Kl, 401, 354.43 in respect of Fidelis Lubonga being his total outstanding underpayment on his separation package at the time of exit from the company; xl. Payment of the sum of Kl, 54 7, 724. 67 in respect of Tebby Muyaba being his total outstanding underpayment on his separation package at the time of exit from the company; xli. Payment of the sum of K3, 737, 922.57 in respect of Gertrude Chileshe being her total outstanding underpayment on her separation package at the time of exit from the company; xlii. Payment of the sum of K2, 617, 913.95 in respect of Kennedy Malama being his total outstanding underpayment on his separation package at the time of exit from the company; xliii. Payment of the sum of K3, 038, 476.32 in respect of Raphael Khoza being his total outstanding underpayment on his separation package at the time of exit from the company; xliv. Payment of the sum of Kl, 720, 294.85 in respect of George Weleki being his total outstanding JlO underpayment on his separation package at the time of exit from the company; xiv. Payment of the sum of K4, 217, 657.65 in respect of Mukumbuta Kazembe being his total outstanding underpayment on his separation package at the time of exit from the company; xlvi. Payment of the sum of K3, 873, 406. 00 in respect of Jessie Chakufyali being her total outstanding underpayment on her separation package at the time of exit from the company; xlvii. Payment of the sum of K3, 685, 965.50 in respect of Dolly Chambwa being her total outstanding underpayment on her separation package at the time of exit from the company; xlviii. Payment of the sum of Kl, 900, 109.12 in respect of Frederick Sinkala being his total outstanding underpayment on his separation package at the time of exit from the company; 1xlix. Payment of the sum of K4, 558, 195. 06 in respect of Mary Mukosha being her total outstanding underpayment on her separation package at the time of exit from the company; l. Payment of the sum of K2, 400, 874.91 in respect of Florence Mulenga being her total outstanding underpayment on her separation package at the time of exit from the company; Jll li. Payment of the sum of K2, 989, 150. 53 in respect of Lillian Banda being her total outstanding underpayment on her separation package at the time of exit from the company; lii. Payment of the sum of Kl, 644, 708.42 in respect of Evaristo Mwiinga being his total outstanding underpayment on his separation package at the time of exit from the company; liii. Payment of the sum of K3, 719, 488.32 in respect of Caristos Mainza being his total outstanding underpayment on his separation package at the time of exit from the company; Ziv. Payment of the sum of K3, 609, 650.19 in respect of Liberator Nyirenda being her total outstanding underpayment on her separation package at the time of exit from the company; lv. Payment of the sum of Kl, 318, 713. 79 in respect of Rex Lwesha being his total outstanding underpayment on his separation package at the time of exit from the \ company; I lvi. Payment of the sum of Kl, 713. 862.92 in respect of Joseph Kaselenge being his total outstanding 1 underpayment on his separation package at the time of exit from the company; [vii. Payment of the sum of Kl, 741, 756.34 in respect of Sellah Mtonga being her total outstanding J12 underpayment on her separation package at the time of exit from the company; lviii. Payment of the sum of Kl, 708, 017. 34 in respect of Sydney Sinyangwe being his total outstanding underpayment on his separation package at the time of exit from the company; lix. Payment of the sum of K2, 564, 110. 91 in respect of Saboi Munyinda being his total outstanding underpayment on his separation package at the time of exit from the company; lx. Payment of the sum of Kl, 354, 995.14 in respect of Marlyn Sitali being her total outstanding underpayment on her separation package at the time of exit from the company; lxi. Payment of the sum of K3, 002, 100. 50 in respect of Judith Banda being her total outstanding underpayment on her separation package at the time of exit from the company; lxii.,Payment of the sum of K2, 741, 941.44 in respect of I 1!3rigid Subulwa being her total outstanding underpayment on her separation package at the time of eh t from the company; I lxiii. 1Payment of the sum of Kl, 868, 778.24 in respect of I Margaret Tembo being her total outstanding underpayment on her separation package at the time of exit from the company; J13 lxiv. Payment of the sum of K2) 129) 697.82 in respect of Agness Mkamanga being her total outstanding underpayment on her separation package at the time of exi,t from the company; lxv. Payment of the sum of Kl) 680) 464.64 in respect of Watson Chilenga being his total outstanding underpayment on his separation package at the time of exit from the company; lxvi. Payment of the sum of K824) 199.84 in respect of Rachael Shankwaya being her total outstanding underpayment on her separation package at the time of exit from the company; lxvii. Payment of the sum of Kl) 831) 309.92 in respect of Florence Ayeni being her total outstanding underpayment on her separation package at the time of exit from the company; lxuiii. Payment of the sum of K2) 463) 838.40 in respect of ,.,1Ylumba Mulolo being his total outstanding underpayment on his separation package at the time of I exit from the company; lxix. Payment of the sum of K680) 131 .61 in respect of Esaya Lupunga (now deceased) being his I total oJ tstanding underpayment on his separation package at the time of exit from the company; lxx. Payment of the sum of K931) 671.22 in respect of Ernest Phiri being his total outstanding underpayment on his separation package at the time of exit from the company; lxxi. Payment of the sum of K696, 159. 98 in respect of Chingana Kachemba being his total outstanding underpayment on his separation package at the time of exit from the company; Ix.xii. Payment of the sum of Kl, 407, 782.46 in respect of Justine Sampa being his total outstanding underpayment on his separation package at the time of exit from the company; lxxi.ii. Payment of the sum of K2, 991, 870.14 in respect of Sylvester Mayo being his total outstanding underpayment on his separation package at the time of exit from the company; lx.xiv. Payment of the sum of Kl, 043, 998.37 in respect of Chomba Mwanshya being her total outstanding underpayment on her separation package at the time of exit from the company; lxxv. Payment of the sum of K987, 434.11 in respect of Lyamba Keeba being his total outstanding underpayment on his separation package at the time of exit from the company; [xx.vi. Payment of the sum of K3, 266, 772.10 in respect of Christopher Tembo being his total outstanding underpayment on his separation package at the time of exit from the company; JlS lxxvii. Payment of the sum of Kl, 901, 350.08 in respect of Chola Nampemba being her total outstanding underpayment on her separation package at the time of exit from the company; lxxviii. Payment of the sum of K919, 017. 72 in respect of Mildred Chilufya being her total outstanding underpayment on her separation package at the time of exit from the company; lxxix. Payment of the sum of K4, 501, 270.99 in respect of Charity Phiri being her total outstanding underpayment on her separation package at the time of exit from the company; lxxx. Payment of the sum of K2, 018, 666.62 in respect of Kamelon Mbewe being his total outstanding underpayment on his separation package at the time of exit from the company; lxxxi. Payment of the sum of Kl, 690, 758.24 in respect of Harrison Harazi being his total outstanding underpayment on his separation package at the time of exit from the company; lxxxii. Payment of the sum of K2, 508, 820.13 in respect of Kashell Kombe being his total outstanding underpayment on his separation package at the time of exit from the company; lxxxiii. Payment of the sum of K3, 766, 326. 98 in respect of Chisha Mumba being her total outstanding J16 underpayment on her separation package at the time of exit from the company; lxxxiv. Payment of the sum of K2, 210, 857. 79 in respect of Christopher Kambole being his total outstanding underpayment on his separation package at the time of exit from the company; lxxxv. Payment of the sum of K2, 762, 772.19 in respect of Victor Hakale being his total outstanding underpayment on his separation package at the time of exit from the company; lxxxvi. Payment of the sum of K2, 141, 046.34 in respect of Julius Bulembo being his total outstanding underpayment on his separation package at the time of exit from the company; lxxxvii. Payment of the sum of Kl, 841, 898. 11 in respect of Phinius Musuute being his total outstanding underpayment on his separation package at the time of exit from the company; lxxxviii. Payment of the sum of K4, 170, 682.00 in respect of Abner Chenda being his total outstanding underpayment on his separation package at the time of exit from the company; lxxxix. Payment of the sum of K2, 681, 270.85 in respect of Mbonabi Mbonabi being his total outstanding underpayment on his separation package at the time of exit from the company; J17 xc. Payment of the sum of K3, 437, 760.18 in respect of Makanda Katundu being her total outstanding underpayment on her separation package at the time of exit from the company; xci. Payment of the sum of K4, 748, 030.24 in respect of Levis Mgawa Zulu being his total outstanding underpayment on his separation package at the time of exit from the company; xcii. Payment of the sum of K4, 413, 183.81 in respect of Sarah Kamoto being her total outstanding underpayment on her separation package at the time of exit from the company; xciii. Payment of the sum of K997, 930.23 in respect of Ngosa Chellah being her total outstanding underpayment on her separation package at the time of exit from the company; xciv. Payment of the sum of Kl, 911, 960.96 in respect of Pouldrieck Haamayi being his total outstanding underpayment on his separation package at the time of exit from the company; xcv. Payment of the sum of Kl, 864, 176.38 in respect of Denny Shakabaza being his total outstanding underpayment on his separation package at the time of exit from the company; xcvi. Payment of the sum of K703, 487. 93 zn respect of Owen Kamungu being his total outstanding J18 underpayment on his separation package at the time of exit from the company; xcvii. Payment of the sum of K2, 844, 778.50 in respect of George Kamanga being his total outstanding underpayment on his separation package at the time of exit from the company; xcviii. Payment of the sum of K972, 938.36 in respect of Beauty Moala Sanene being her total outstanding underpayment on her separation package at the time of exit from the company; xcix. Payment of the sum of Kl, 125, 938.36 in respect of Mubita flukena being her total outstanding underpayment on her separation package at the time of exit from the company; c. Payment of the sum of Kl, 538, 451.55 in respect of Elishon Chakulunta being his total outstanding underpayment on his separation package at the time of exit from the company; ci. Payment of the sum of Kl, 581, 552.58 in respect of I Mwangala Mbangweta being her total outstanding underpayment on her separation package at the time of exit from the company; cii. Payment of the sum of Kl, 334, 073.14 in respect of Florence Songiso being her total outstanding underpayment on her separation package at the time of exit from the company; J19 eiii. Payment of the sum of K610, 911.90 in respect of James Mukangwa being his total outstanding underpayment on his separation package at the time of exit from the company,· eiv. Payment of the sum of Kl, 382, 918.51 in respect of Charity Masebo being her total outstanding underpayment on her separation package at the time of exit from the company; cu. Payment of the sum of Kl 85, 077. 15 in respect of Abel Chama being his total outstanding underpayment on his separation package at the time of exit from the company; cvi. Payment of the sum of K861, 991.34 in respect of Grace Musinga being her total outstanding underpayment on her separation package at the time of exit from the company; cvii. Payment of the sum of K989, 534. 84 in respect of Lewis Kafula being his total outstanding underpayment on his separation package at the time of exit from the company; cviii. Payment of the sum of Kl , 657, 289. 84 in respect of Veronica Katalilo being her total outstanding underpayment on her separation package at the time of exit from the company; eix. Payment of the sum of Kl, 420, 741.24 in respect of Roydah Tembo being her total outstanding underpayment on her separation package at the time of exit from the company; J20 ex. Payment of the sum of K937, 507.12 in respect of Frank Chilufya being his total outstanding underpayment on his separation package at the time of exit from the company; cxi.. Payment of the sum of Kl, 418, 763.34 in respect of Sharon Siakalima being her total outstanding underpayment on her separation package at the time of exit from the company; cxi.i. Payment of the sum of Kl, 107, 246. 68 in respect of Gift Nawa being her total outstanding underpayment on her separation package at the time of exit from the company; cxiii. Payment of the sum of Kl, 395, 257.11 in respect of Jessie Mwale being her total outstanding underpayment on her separation package at the time of exit from the company; I cxiv. Payment of the sum of Kl, 233, 734.11 in respect of Nelly Lisimba being her total outstanding underpayment on her separation package at the time of exit from the company; cxv. Payment of the sum of Kl, 329, 058. 69 in respect of Berry Mwansa being his total outstanding underpayment on his separation package at the time of exit from the company; cxvi. Payment of the sum of K963, 627. 08 in respect of Peter Muyobe being his total outstanding underpayment on J21 his separation package at the time of exi.t from the company; cxvii. Payment of the sum of K607, 434. 72 in respect of Eugene Kasofu being his total outstanding underpayment on his separation package at the time of exi.t from the company; cxviii. Payment of the sum of Kl , 039, 873.09 in respect of Stephen Chinua being his total outstanding underpayment on his separation package at the time of exi.t from the company; cxix. In summary of (i} to (cvxi.ii}, payment of the sum of K283, 172, 667.36 being the total outstanding severance and housing allowance packages and the same be divided in their respective portions; cxx. Interest on all the sums found due thereon; ex.xi. Costs of and incidental to the proceedings; 1 ex.xii. Any other relief that the Court may deem fit to award in the circumstances. 2. STATEMENT OF CLAIM 2 .1 In the amended statement of claim, Lupiya Peter Sakala and th e others contended that they are former employees of Zambia National Commercial Bank Plc, a company that is incorporated under the Companies Act of the Laws of Zambia, and continues to exist as such under the Companies Act No 10 of 2017 and the Banking and Financial Services Act. J22 2.2 Further averment was made, that Zambia National Commercial Bank Plc, is in the business of providing banking financial services. 2.3 Lupiya Peter Sakala and the others contended that their contracts of employment were terminated by separation which was purported to be early retirement and redundancy on diverse dates. 2.4 In respect of Lupiya Peter Sakala, it was stated that he was employed on 9 th September, 1991, and he held various positions. Then, at the time of his separation on 31 st May, 2020 , he held a management position, and he had served for a period of Twenty-Eight (28) years. 2.5 The contention was that Clement Kapila was employed on 13th September, 1982, and he had also held various positions including at management level. At the time of his separation on 31 st August, 2020, he had worked for over Thirty-Seven (37) years. 2.6 Jennifer Siyumbwa was stated as having been employed on 5lh August, 1985, and that she had served in various positions. At the time of her separation on 26th February, 2019, she was serving in management, and she had worked for over Thirty-Four (34) years. 2.7 It was also averred, that Josephine Mwape was employed on I 2nd April, 1985, and she had served in various positions, including at management level, when she separated from employment on 31 st March, 2020, having served for Thirty Four (34) years. J23 2.8 Gladys Sokoni was said to have been employed on 15th July, 1985, and that she had served in various positions, and was in management at the time of her separation on 31st March, 2019, after having served for over Thirty-Three (33) years. 2.9 As for Gloria Imasiku, the assertion was that she was employed on 4 th December, 1985, and that she had served for over Thirty-Four (34) years at the time of her separation on 31st May, 2020, and she was in management at the time. 2.10 It was stated that Namakando Mashekwa was employed on 25th September, 1989 and separated on 31st March, 2020 whilst holding a management position, and had worked for over Thirty (30) years. 2. 11 Moses Willima was stated as having been employed on 20th April, 1988, and had worked for more than Thirty-One (31) years, when he separated on 30th June, 2019. 2.12 Further averment was made, that Josephine Chileshe was employed on 8 th December, 1987, and that at the time of her separation on 30th June, 2019, she had served for more than Thirty-One (31) years. 2.13 Ireene Musariri was said to have been employed on 5 th September, 1988, and was serving in management at the time of her separation on 31st March, 2019, having worked for over Thirty-One (31) years. 2. 14 Brian Mapani who was stated as having been employed on 20th October, 1989, had worked in various positions, and he separated on 30th May, 2020, after having worked for more than Thirty (30) years. J24 2.15 The assertion was further that, Abel Ndemana was employed on 7 th October, 1989, and he worked in various positions. He had served for over Thirty (30) years at the time of his separation on 31 st March, 2020. 2.16 The contention was also that Christine Malunga was employed on 24th July 1989, and when she separated on 31st May, 2020, she had served for more Thirty (30) years. 2 . 17 It was stated that Felix Mutale had worked from 25th October, 1989 to 31st March, 2020, and at the time of his separation, he had served for more than Thirty (30) years. I 2.1 8 On the hand, Matilda Ngona was stated as having been employed on 20th June, 1989, and that she had worked in various positions at the time of her termination on 31st March, 2020, having worked for more than Thirty (30) years. 2.19 The averment was that Brian Mankoya was employed on 24th November, 1989, and when he separated on 31 st March, 2020, he had served in various positions for over Thirty (30) years. 2 .20 It was further contended that Patricia Mwambazi was employed on 2nd January, 1990, and that she worked in various positions for more than Thirty (30) years, until her separation on 31 st May, 2020. 2.21 Muyembe Nkhoma was said to have been employed on 1st August, 1989, and that he held various positions until 31st March, 2020, when he separated, having worked for over Thirty (30) years. J25 2.22 It was also stated that Edna Sichalwe was employed on 29th January, 1991, and that she worked for over Twenty-Nine (29) years at the time of her separation on 31st March, 2020, having held various positions. 2.23 Cox Siakole was employed on 28th August, 1990, and he held various positions until 31 st March, 2020, when he separated after having worked for over Twenty-Nine (29) years. 2.24 Boyd Sichone was stated as having been employed on 27th November, 1990, and he served for over Twenty -Nine (29) years when he separated on 31 st May, 2020, having held various positions. 2.25 On the hand, George Chashele was said to have been employed on 26th October, 1990, and that he worked in various positions for Twenty-Nine (29) years, when he separated on 31st May, 2020. 2.26 Also averred, was that Josephat Ngombe was employed on 17th July, 1990, and he served in various position until 31 st May, 1990, when he separated having worked for more than Twenty-Eight (28) years. 2.27 Dennis Nchindo was employed on 18th February, 1991 and he served for more than Twenty-Nine years at the time of his separation on 31 st March, 2020, having held various positions. 2.28 Albert Mweemba was also employed in 1991, but on 24th May, and he worked in various positions for more than Twenty -Nine (29) years, when he separated on 31 st May, 2020. J26 2.29 As for Kingsley Namusenga, he was employed on 27th November, 1990, and he also served in various positions for more than Twenty-Nine (29) years when he separated on 31 st March, 2020. 2.30 Patrick Simukwanya was employed on 15th April, 1991, and he held various positions until 31 st May, 2020 when he separated, having worked for over Twenty-Nine (29) years. 2.31 Also employed in 1991, on 15th July, was Stephen Kangomu who worked in various positions until 31 st August, 2020, after also having served for Twenty-Nine (29) years. 2.32 Another person who was employed in 1991, on 22nd August, was Fredrick Makofi, who worked for over Twenty-Eight (28) years in various positions, when he separated on 31st May, 2020. 2.33 Helen Mukupa was also employed in 1991, on 26th August. She worked in various positions for more than Twenty-Eight (28) years until her separation on 31st May, 2020. 2.34 It was contended that Sylvester Ngoma was employed on 1st February, 1992, and he served for over Twenty-Eight (28) years, having held various positions. He separated on 31st March, 2020 . 2.35 Florence Kaluba was employed on 8 th July, 1991, and she separated on 31st May, 2020 after she held various positions for more than Thirty (30) years. 2.36 Chola Kaoma was employed on 3 rd September, 1991 and after having worked for over Twenty-Eight (28) years, he separated, having held various positions . J27 2.37 It was stated that Maliro Mwanza was employed on 3 rd September, 1991, and at the time of his separation on 31 st March, 2020, he had worked in various positions for over Twenty-Eight (28) years. 2.38 Edward Chungu was employed in 1991 on 9 th December. He served in various positions until 31 st March, 2020, when he separated, and he had worked for over Twenty-Eight (28) years. 2.39 Justine Lukwesa on the other hand, was said to have been employed on 2 nd Oct ober, 1991. When he separated on 31 st March, 2020, he had worked in various positions for over Twenty-Eight (28) years. 2.40 It was stated that Viola Mukobeko was employed on 19th March, 1992. She worked in various positions for over Thirty (30) years when she separated on 31 st March, 2020. 2.41 Paul Kabwe was employed on 3rd April, 1992, and a t the time of his separation on 31 st May, 2020, he had served for more th8in Thirty (30) years in various positions. 2 .42 Fidelis Lubonga who separated on 31 st May, 2020, had ■ I seryed for more than Twenty-Seven (27) years at the time. He was employed on 1st June, 1993, and had served in various positions. 2.43 Averment was made, that Teddy Muyaba served in various positions from 8 th June, 1992 when he was employed, and at the time of his separation on 30th June, 2019, he had served for over Twenty-Seven (27) years. J28 2.44 Getrude Chileshe who was employed on 15th January, 1993, served for more than Twenty-Seven (27) years, in various positions at the time of her separation on 31 st March, 2020. 2.45 Kennedy Malama was stated as having been employed on 21st May, 1993. He served in various positions for more than Tw enty-Seven (27) years, when he separated on 30th June, 2019. 2.46 Raphael Khoza who was employed on 12th December, 1991 worked for over Twenty-Seven (27) years in various positions until 30th June, 2019, when he separated. 2.47 It was averred that George Weleki was employed on 8 th June, 1992, and he also served in various positions until he separated on 30th June, 2019, after having worked for over Twenty-Seven (27) years . 2 .48 Mukumbuta Kazembe, was said to have been employed on I 3rd May, 1993. He worked in various positions for over Twenty-Seven (27) years until 31st May, 2020, when he separated on 31 st May, 2020. 2.49 It was stated that Jessie Chakufyali was employed on 26 th April, 1993, and she worked for over Twenty-Six (26) years in va rious positions until her separation on 30th June, 2019. 2. 50 Dolly Wabei Chaambwa was contended as having been employed on 9 th May, 1994. It was averred that she worked in var ious positions for more t han Twenty-Six (26) years, when she separated on 31st May, 2020. 2 .51 The continued assertion was that Frederick Sinkala was employed on 14th June, 1993, and that he worked in various J29 positions for a period of over Twenty-Six (26) years, when he separated on 31 s t May, 2020. 2.52 Mary Mukosha was employed on 25th August, 1994, and after she worked for over Twenty-Six (26) years in various positions, she separated on 31st May, 2021. 2.53 It was stated that Florence Mulenga was employed on 22nd October, 1993. After she worked in various positions for more than Twenty-Six (26) years, she separated on 31st May, 2 020. 2.54 Lillian Banda was employed on 18th May, 1992. When she separated on 31 st March, 2019, she held a management position after having worked for over Twenty-Six (26) years. 2.55 It was contended that Evaristo Mwiinga was employed on 15 th November, 1993, and that he worked in vanous positions including management, at the time of his separation on 31 st March, 2020, having worked for over Twenty-Six (26) years. 2 .56 Caristus Mainza was said to have been employed on 25th I October, 1 994. He was serving in management on 31st March, 2020 when he separated, having worked for over Twenty-Six (26) years. 2.57 Liberator Mainza was employed on 25th November, 1994, and at the time of his separation on 31 st March, 2020, he had worked for over Twenty-Five (25) years and was in management. 2.58 It was further averred that Rex Lwesha had s erved for over Twenty-Two (22) years at the time of his separation on 31st BO March, 2020. He was employed on 16th June, 1997, and he was in management when he separated from employment. 2.59 Joseph Kaselenge who was said to have been employed on 14th May, 1997 had worked for over Twenty-Three (23) years at the time of his separation on 31st May, 2020, when he held a management position. 2.60 As for Stella Mtonga, she was employed on 16th June, 1997, and she separated on 31 st March, 2020, whilst she was serving in management, and she had worked for over Twenty-Three (23) years. 2.61 Sydney Sinyangwe on the other hand, was said to have been employed on 12th February, 1998, and when he separated on 31st March, 2020, he had served for over Twenty-Two (22) years. 2.62 It was stated that Saboi Munyinda was employed on 13th October, 1997, and at the time of his separation on 31 st March, 2020, he was in management, and he had worked for over Twenty-Two (22) years . 2.63 Maryln Sitali who separated on 31 s t May, 2020 was stated as having been employed on 4 th September, 1997, and at the time of her separation, she was in management, and had worked for over Twenty-Two (22) years. 2.64 Judith Banda, on the other hand, was employed on 1s t April, 1999, and she was in management at the time of her separation, having worked for over Twenty-One (21) years. 2.65 The averment was that Brigid Subulwa was employed on 5 th January, 1998, and s h e was in management at the time of J31 her separation on 31 st March, 2019, having worked for over Twenty-One (21) years. 2.66 Further assertion was made, that Margaret Tembo was employed on 13t h October, 1997, and that at the time of her early separation on 30th June, 2019, she was serving in management, and she had worked for over Twenty-One (21) years. 2.67 Agness Mkamanga who was employed on 31 st June, 2019, was in management when she separated early on 31 st June, 2019, after she had served for over Twenty-Nine (29) years. 2.68 It was stated that Watson Chilenga was employed on 13 th April, 1999, and he was a lso in management when he separated early on 30th June, 2019, after he had worked for over Twenty (20) years. 2 .69 Rachel Shankwaya who said to have been employed on 17th November, 1999, was in management when she separated early on 31 st March, 2020, after having worked for over Twenty (20) years. 2 .70 Florence Ayeni was stated as having worked over Twenty (20) years, having been employed on 2 nd May, 2000, and when she separated early on 31st May, 2020, she was in management. 2. 71 It j as also averred that Mumba Mulolo separated early on 31 st May, 2020 when he was in management. He worked for over Eighteen (18) years from 13th March, 2002, when he was employed. J32 2. 72 Kawenje Zulu is the Administrator of the estate of the late Esaya Lupunga, who was employed on 20th March, 2006, and had served for over Thirteen (13) years at the time of his early separation, on 30th June, 2019. 2.73 Ernest Phiri was also employed in 2006, but on 2nd March. At the time of his early separation on 31 st March, 2020, he was in management, and had served for over Fourteen (14) years. 2 .74 Also employed in 2006, was Chingana Kachemba but on 4th September. He was serving in management at the time of his early separation on 31st March, 2020, after having worked for over Thirteen (13) years. 2.75 Justine Sampa who also separated early on 30th June, 2019, was employed on 13th March, 1997, and he was in management at the time. He worked for over Twenty-Two (22) years. 2.76 Sylvester Moyo was stated as having been employed on 27th I Jan-pary, 1992, and was serving in management at the time of his early separation on 31 st May, 2021, having worked for a period of over Twenty-Nine (29) years. 2.77 The contention was also that Chomba Alice Mwashya was employed on 2 nd February, 1998, and she was in management when she went on early separation on 31 st March, 2019, having worked for over Twenty-One (21) years. 2.78 Lyamba Keeba was employed on 14th February, 2006, and when he separated early 31 st August, 2020, he was in J33 management, and he had served for over Fourteen (14) years. 2.79 It was stated that Christopher Tembo was employed on 1s t March, 1993, and that he also went on early separation on 3 1st March, 2021, whilst he was serving in management, and he had worked for over Twenty-Eight (28) years. 2.80 Chola Nampemba who was said to have been employed on 13th June, 1990 was in management, when she went on early separation on 31 st March, 2020, having worked for over Thirty (30) years. 2.81 Mildred Chilufya was employed on 14 th February, 2005. She too went on early separation on 31 st August, 2020, when she was serving in management, and she had worked for a period of over Fifteen (15) years. I I 2 .82 Charity Phiri was stated as having been employed on 3 rd February, 1989, and she went on early separation on 30th September, 2020, after having worked for over Thirty-One (31) years, when she was in management. 2.83 Kamelon Mbewe was employed on 8 th June, 1992, and he was also in management when he went on early separation on 31 st March, 2019, after having served for over Twenty-Six (26) years. 2.84 Harrison Harazi who also went on early separation, was employed on 7 t h February, 2000 . He was in management at the time of his separation on 31 s t March, 2020, and he had worked for over Twenty (20) years. J34 2.85 Kashell Kombe went on early retirement on 30th June, 2021 after having been employed on 23rd May, 1994. He was in management at the time, and he had served for over Twenty Seven (27) years. 2.86 Also employed in 1994, but on 24 th May, was Chisha Mumba. She served until 31 st May, 2020, when she went on early retirement after having worked for over Twenty-Six (26) years. 2.87 Christopher Kambole who was employed on 1st July, 1992 was in management when he went on early retirement on 31 st March, 2019, and he had worked for over Twenty-Six (26) years. 2.88 Having served for over Twenty-Seven (27) years when he was in management, and he went on early retirement on 30th June, 2019, Victor Hakale was employed on 1s t June, 1991. 2.89 Julius Bulembo was also in management when he went on early retirement on 31 s t March, 2020. He was employed on 12th \December, 1990, and worked for over Twenty-Nine (29) years. 2.90 It was stated that Phinias Musuute was employed on 11 th March, 1991. At the time he went on early retirement on 31 s t March, 2020, he was working in management, and he had served for over Twenty-Nine (29) years. 2.91 Abner Chenda was also employed in 1991, but on 10th March. He was in management when he went on early retirement on 31st December, 2020, after having served for over Twenty-Nine (29) years. J35 2.92 Mbonabi Mbonabi who was employed on 10th March, 1989 was in management when he went on early retirement on 31 st May, 2020, after having worked for Thirty-One (31) years. 2.93 Averment was further made, that Makando Katundu was employed on 11 th May, 1990. She was also in management when she went on early separation on 31 s t May, 2020 after having worked for over Twenty-One (21) years. 2.94 Lewis Mgawa Zulu was employed on 16th May, 1990, and at the time that he went on early retirement on 31st March, 2020, he was in management, and he had served for over Thirty (30) years. 2 .95 It was contended that Sarah Kamoto was employed on 13t h June, 1997. She was also in management when she went on early retirement on 30th June, 2019, after having served for Twe1tty-Two (22) years. 2.96 Ngosa Chella who also went on early retirement on 8 t h June, 2020\ was employed on 8 th June, 2010. She was in I • management at the time of the early retirement having served for over Ten (10) years. 2.97 Pouldreick Haamayi was said t o have been employed on 3 rd October, 1989. When he went on early retirement on 31s t March, 2020, he had served for over Thirty (30) years, and he was in management. 2 .98 Denny Sakabaza was employed on 23rd December, 2002. He was in management when h e went on early retirement on \ l J36 31st March, 2019, having worked for a period of over Sixteen (16) years. 2.99 It was also stated that Owen Kangumu was employed on 5th December, 2005, and at the time he went on early retirement on 30th June, 201 9, he was in management, and he had served for over Thirteen (13) years. 2.100 George Kamanga who also went on early retirement on 31st May, 2020, was employed on 12th February, 1992. He was in management, and he had served for over Twenty-Eight (28) years. 2.101 Having been employed on 20th December, 2007, Beauty Moola Sanene was in management when she separated via redundancy on 31st October, 2020, having served for over Twelve (12) years. 2.102 Mubita Ilukena was employed on 8 th September, 1989 and held a management position when she separated via redundancy on 30th June, 2018 when she had worked for over Eighteen (18) years. 2.103 It was stated that Elishon Chakulunta was employed on 22nd August, 1991 and he was in management on 31st December, 2020, when he went on separation through redundancy. He served for a period of over Twenty-Eight (28) years. 2.104 1 wangala Mbangweta also separated through redundancy on 31st December, 2020. She was in management at the time, and she was employed on 1st March, 1994. She worked I for over Twenty-Six (26) years. J37 2.105 It was averred that Florence Songiso was employed on 12th May, 1983 and she separated by way of redundancy on 30th June, 2018, and she had served for over Thirty-Five (35) years. She was also in management. 2.106James Mukangwa who was employed on 1st February, 2012 also separated through redundancy on 30th September, 2020. He was in management at the time, and had served for a period of over Eight (8) years. 2.107 Then Charity Musebo who was said to have been employed on 28th May, 1991 was in management, when she also separated through redundancy on 31 st December, 2020. She worked for over Twenty-Nine (29) years. 2.108Another management employee, Abel Chama separated through resignation on 31st May, 2018. He was employed on 12th February, 2018, and at the time of his resignation, he had worked for over Six (6) years. 2.109 Grace Musinga on the other hand was employed on 24th January, 1994. She was in management when she separated on 31 st December, 2020 by way of redundancy, having worked for over Twenty-Five (25) years. 2.110 Lewis Kafula also a management employee at the time of his separation by way of redundancy on 30th June, 2018, was employed on 8th August, 1991 . He served for over Twenty Six (26) years. 2.111 Veronica Katalilo was employed on 4th June, 1990 and was in management on 31st December, 2020 when she separated J38 by way of redundancy, having worked for over Thirty (30) years. 2.112 The averment was that Roydah Tembo was employed on 17th July, 1992. She was also in management on 3 1st December, 2020, when she separated by way of redundancy having worked for a period of over Twenty-Eight (28) years. 2.113 Frank Chilufya who was in management on 30th June, 2018 when he separated by way of redundancy, was employed on 23rd June, 1997. At the time of his separation by way of redundancy, he had served for over Twenty-One (21) years. 2.114It was said that Sharon Siakalima was employed on 1st May, 1998. When she separated on 31 st December, 2020 through redundancy, she was in management, and she had worked for over Twenty-Two (22) years. 2.115 Also employed in 1998, but on 5 th March, was Gift Nawa who was 1n management when she separated through redundancy on 31 s t December, 2020. She served for over Tweraty-Two (22) years. 2.116Jess1e Mwale also separated through redundancy on 31 s t December, 2020, having been in management, and she was employed on 7 th March, 1994. She worked for over Twenty- I Six (26) years. 2.117 Nelly Lisimba who was employed on 27th March, 1992 was also a management employee when she separated through redundancy on 31 st December, 2020, having worked for over Twenty-Eight (28) years. J39 2. 118 Berry M wans a separated through redundancy on 31 s t December, 2020, having served for over Twenty-Six (26) years. He was in management at the time, and was employed on 11 th September, 1 994. 2.119 It was stated that Peter Muyobe was employed on 5 lh August, 2008 and when he separated on 3Qlh September, 2020 through redundancy, he was in management and he served for a period of over Twelve ( 12) years. 2.120 Also serving in management, was Eugene Kasofu who separated through redundancy on 30th June, 2018. He was employed on 2 nd January, 2001, and at the time of his separation, he was in management. 2.121 As for Steven Chirwa, he was employed on 24th November, 2008, and when he separated on 31 st October, 2021 through redundancy, he had served for over Twelve ( 12) years. 2.122 It was averred that when Lupiya Peter Sakala and the others were employed, they were given copies of the conditions of service and the Disciplinary Code DHR/ 12/96, while all those who were promoted and migrated from the Union were accorded the same as being applicable to them. 2.123 The t ontention was that at the time of separation, Lupiya Peter Sakala and the others, were all in management and the conditions of service that were applicable to them, were the Conditions of Service/ Grievances and Disciplinary Procedures Code DHR/ 12/96 for non-represented staff. 2.124 It was stated that under Clause 13.1 of the said Code, provision was made for normal retirement at the pensionable J40 age of Fifty-Five (55) years or upon the attainment of Twenty Five (25) years of continuous service, and payment of benefits was in accordance with the conditions of service. 2 .125 Then Clause 13.3 was stated as having provided for the Voluntary Severance Scheme (VSS) whose compensation was stated in Appendix H as follows: 1. 1- 10 years- 2.5 months' pay for each completed year of service 11 . 11-20 years- 3.5 months' pay for each completed year of service; iii. 21-30 years- 4.5 months' pay for each completed year of service. 2. 126 Contention was made that there was no provision for Early Retirement under DHR/ 12/96 conditions. 2.127 The further assertion was that around the year 2000, the prevailing labour practices changed for all terminal benefits to include all allowances in calculating the terminal benefits. Thus, Zambia National Commercial Bank Plc implemented the changes that had been made in the labour practice by incot porating them in the conditions of service. Accordingly, Lupiya Peter Sakala and the others became entitled on I separ ation, to payment, calculated at the gross monthly pay. 2. 128 Then by virtue of Statutory Instrument No 63 of 2014, the Public Service (Retirement Age) (Amendment) Regulations, Statutory Instrument No 24 of 2015 and the National Pension Scheme (Amendment) Act No 7 of 2015, the retirement age was revised upwards, being Fifty-Five (55) years for early \ J41 retiremen t, Sixty (60) years for nor mal retirement and Sixty Five (65) years for late retirement. 2.129 Contention was made that prior to 12th November, 2018, there was a memorandum which provided for voluntary separation, and which allowed employees to apply for severance over a specified period upon the opening of the window. 2.130 It was stated that when Zambia National Commercial Bank Plc introduced the new conditions of employment in 2014, there was protest by Lupiya Peter Sakala and the others which was led by Davis Chibeka, as the changes were unilaterally made, and a memorandum was written to Zambia National Commercial Bank Plc in which the grievances were tabled. However, those gr ievances were never addressed. 2.131 The assertion was t h at on 22nd October, 2015, Zambia National Commercial Bank Plc issued the memorandum MD/ CC/ in which Lupiya Peter Sakala and the others were informed that there would be Early Retirement pursuant to thb National Pension Scheme (Amendment) Act No 7 of 2 q 15, and that the condition that was applicable, was for an employee to give Twelve (12) months' notice, if they were to I apply for either early or late retirement, before attaining the I age of Fifty-Five (55) years. It was stated that this was to domesticate the amendments within the organisation. 2.132 Then without the consent of Lupiya Peter Sakala and the others, Zambia National Commercial Bank Plc in 2018, J42 further revised the conditions of service by introducing under Appendix C, a provision for Early Retirement benefits whose computation was: (i) 1-10 years-0.70 x monthly gross pay for each completed year of service; (ii) 11-20 years- 1.1 x monthly gross pay for each completed year of service; (iii) 21-30 years-1.30 x monthly gross pay for each completed year of service. 2.133 Addition was made that in the memorandum, it was stated that retirement was in accordance with t h e law. The averment was also that while the memorandum gave a window period of Twelve (12) months, within which applications for Early Retirement had to be made before one could exit, there was no such requirement for those who wished to separate on severance. 2.134 It was contended that the despite the protest, those who l wished to go on Early Retirement were not allowed, unless they gave consent by signing an Attestation Form. 2.135 Assertion was further made, that those Plaintiffs who separated on severance were paid separation packages which were calculated at a multiplier factor 1.3 on the gross l for those who had served for 20 years and above, and at a factor of 1. 1 on the gross, for those who had served between 11-20 years, while a factor of 0.7 on the gross was used for those who had served between 1-10 years. J43 2.136 Further allegation was made, that the conditions of service provided that those in management were entitled to be paid housing allowance, and that this applied t o those who migrated from the Union into Management. 2.137 Therefore, the Plaintiffs, Matildah Ngona, Edna Sichalwe, Cox Siakakole, Patrick Simukwanya, Fredrick Makofi, Sylvester Ngoma, Getrude Chileshe, Mukumbuta Kazembe, Mary Mukosha, Florence Mulenga, Lillian Banda, Caristos Mainza, Liberator Nyirenda, Joseph Kaselenge, Judith Banda, Mumba Mulolo, Charity Phiri, Chisha Mumba, Abner Chenda, Namakando Katundu, Lewis Mgawa Zulu, Ngosa Chella, Beauty Moola Sanene, Mubita Ilukena, Elishon Chakulunta, Mwangala Mbangweta, Florence Songiso, James Mukwangwa, Charity Masebo, Abel Chama, Grace Musinga, Lewis Kafula, Veronica Katalilo, Roydah Tembo, Frank Chilufya, Sharon Siakalima, Gift Nawa, Jessie Mwale, Nelly Lisimba, Berry Mwansa, Peter Muyobe, Eugene Kasofu and Stephen Chirwa were not paid their housing allowances frojffi the time that they migrated from the Union to Management. 2.138 With regard to the severance packages, it was alleged the I they did not include housing allowance in the calculation of I the retirement benefits for the following Plaintiffs; Matildah Ngona, Edna Sichalwe, Cox Siakakole, Patrick Simukwanya, Fredrick Makofi, Sylvester Ngoma, Getrude Chileshe, Mukumbuta Kazembe, Mary Mukosha, Florence Mulenga, Lillian Banda, Caristos Mainza, Liberator Nyirenda, Joseph J44 Kaselenge, J udith Band a, Mumba Mulolo, Charity Phiri, Chisha Mumba, Abner Chenda, Namakando Katundu, Lewis Mgawa Zulu, and Ngosa Chella. 2 .139 It was also alleged that for the Plaintiffs, Beauty Moola Sanene, Mubita Ilukena, Elishon Chakulu nta, Mwangala Mbangweta, Florence Songiso, James Mukwangwa, Charity Masebo, Abel Chama, Grace Musinga, Lewis Kafula, Veronica Katalilo, Roydah Tembo, Frank Chilufya, Sharon Siakalima, Gift Nawa, Jessie Mwale, Nelly Lisimba, Berry Mwansa, Peter Muyobe, Eugene Kasofu and Stephen Chirwa housing allowance was not included in the calculation of their redundancy packages. 2.140 Further assertion was made that Peter Lupiya Sakala and the others were all underpaid their severance and redundancy packages, and that for those who separated on severance, the retirement benefits ought to have been calculated at multiplier factors of 4.5 and 2.5 respectively multiplied by the gross months' salary per each completed f year o service. . I 3. DEFENCE 3.1 The amended defence which was filed on 1s t December, 202'.z, admitted that Lupiya Peter Sakala and the others, were~ all employed by Zambia National Commercial Bank Plc. Further admission was made that some Plaintiffs separated by way of retirement and redundancy. It was denied that some Plaintiffs separated by way of early separation, the defence being that it was Early Retirement. J45 3.2 Denial was made, that Patricia Mwambazi, the 17th Plaintiff was employed on 24th July, 1989, stating that it was on 2nd January, 1990. Further denial was made that the 20th Plaintiff, Cox Siakakole, was employed on 28th August, 1990, the contention being that it was on 24th August, 2020. 3.3 The 22nd Plaintiff, George Chashele was said to have been employed on 26th October, 1990, and not on 2nd October, 1990 as alleged. It was denied that the 27th Plaintiff, Patrick Samukwanya was employed on 25th April, 1991, as alleged but rather, it was on 15th April, 1991. 3.4 Further averment was made in defence that Stephen Kangomu was employed on 15th July, 1991, and not 24th July, 1991 as contended. As for Kaoma Chola and Maliro Mwanza they were both stated as having been employed on 3 rd September, 1991, and not on 24t h July, 1989 as alleged. 3.5 Teddy Muyaba was said to have separated on 30th June, 2019, and not 30th June, 2020 as asserted. It was also stated that Getrude Chileshe separated on 31st May, 2020, and not 30th June, 2020 as alleged. 3.6 Raphael Khoza was said to have been employed on 12th December, 1991, and not 24th July, 1989 as contended. Further, the defence was that he separated on 30th June, 2019, and not the alleged date of 31 st May, 2020. It was also contended that George Weleki was employed on 8 th June, 1992, and not on 24th July, 1989. 3 .7 Jessie Chakufyali was said to have separated on 30th June, 2019, and not 31 st March, 2019. The assertion was that J46 Florence Mulenga was employed on 22nd October, 1993, and not on 27th October, 1993. The defence was further that Rex Lwesha was employed on 16th June, 1997, and not on 1st February, 1994 as alleged. 3.8 Saboi Mu yunda was said to have been employed on 13th October, 1997, and not on 1st February, 1997 as alleged. It was also stated that he left by way of Early Retirement on 31st March, 2020, and not by way of redundancy on 15th July, 2020 as contended. 3. 9 The defence was further that Rachel Shankwaya was employed on 17th November, 1999, and not on 12th November, 1999 as asserted. It was averred that the late Esaya Lupanga who had sued through the Administrator, Kamwenje Zulu, was employed on 20th March, 2006, and not the alleged date of 20th March, 2003 . 3.10 The assertion was also that Ernest Phiri, the 70th Plaintiff was employed on 2nd March, 2006, and not 2nd May, 2006 as alleged. Justine Sampa was said to have been employed on 13th March, 1997, and not on 5th January, 1997 as alleged. Harrison Harazi was further stated as having been employed on 7 th February, 2000, and not eleven (11) years earlier on 7 th February, 1989 as contended. 3.11 The allegations relating to assertions which had been made by 82nd Plaintiff Kashell Kombe all the way through to the 118th Plaintiff, Stephen Chirwa regarding when they were employed and their manner was separation was denied, and the defence was that they were paid. J47 3.12 The defence was further that only some of t h e Plaintiffs were in employment prior to 1996, at which point DHR/ 12/96 was not yet in existence, and it was stated that at any rate, all the Plaintiffs were paid their terminal benefits in accordance with the terms and conditions which were applicable to them at the time of exit. 3.13 It was also contended that DHR/ 12/96 only applied to those who were in management, and the majority of the Plaintiffs were not in management at the time. The defence was further that in any event, DHR/ 12/96 was adjusted in 1999 and I 2011 by Management Circulars in accordance with its' prov1s10ns. 3.14 Zambia National Commercial Bank Plc alleged that DHR/ 12/96 did not take into account allowances, and that if it was applicable to the Plaintiffs, which it was contended that it did not, the component of the allowances would have to be removed from the salary that was used when calculating the terminal benefits. 3 . 15 It was agreed that t h ere was no provision that was made for early retirement in DHR/ 12/96. Thus, the defence was that as it was not provided for in DHR/ 12/96, the Early Retirement package could not be claimed under DHR/112/96. 3.16 The assertion contending that in around the year 2000, the prevailing labour practices were changed to include all allowances in the calculation of terminal benefits, and that J48 Zambia National Commercial Bank Plc incorporated the same when paying terminal benefits was denied. 3 .17 It was conten ded that Statutory lnstntment No 63 of 2014 did not apply to Lupiya Peter Sakala and the others. Denial was made that prior to 2018, there was a memorandum that made provision for the Voluntary Separation Scheme, under which employees were allowed to apply within a specific window. The defence was that Early Retirement could not be equated to Voluntary Separation Scheme, and that I separation on Early Retirement had its' own formula. 3.18 It was stated that the assertions that had been made by Lupiya Peter Sakala and the others that Zambia National Commercial Bank Plc on 22nd October, 2015 issued memorandum MD/ CC/, despite protests, wherein they were informed that there would be early retirement pursuant to the National Pension Scheme (Amendment) Act No 7 of 2015, with the condition being that for it to be applicable, an employee had to give twelve ( 12) months' notice before attaining the age of Fifty-Five (55) years, to go on early or late retirement, were to be proved strictly by Lupiya Peter Sakala and the others. 3.19 The contention that without the consent of Lupiya Peter k akala and the others, Zambia National Commercial Bank Plc in October, 2018 revised the conditions of further to introduce a formula for the payment on Early Retirement as alleged was denied. J49 3.20 The defence was that Zambia National Commercial Bank Plc in the 2018 Conditions of Employment, introduced Early Retirement, and provided a formula for the computation of the same. 3.21 Lupiya Peter Sakala and the others were put to strict proof on the allegation that Zambia National Commercial Bank Plc issued a memorandum on 22nd October, 2015, which indicated that retirement was as per the law, and that the memorandum of 15th November, 2015, provided a window of twelve (12) months, for an employee to apply for Early Retirement prior to exiting, and that despite the protests, those who wished to go on Early Retirement had to give their consent by signing an Attestation Form. 3.22 The defence was that the Plaintiffs who went on Early Retirement were paid their Early Retirement dues in accordance with the 2018 conditions. It was thus, denied that the Early Retirement dues were underpaid, stating that those who were paid, were paid according to the conditions of employment that applied to them, and they consented. 3.23 As for the contention that those in management were entitled to the payment of housing allowance, which was also applicable to those who migrated from the Union to Management, and the Plaintiffs who claimed t he same, and also claimed the inclusion of housing allowance 1n the computation of the benefits in the calculation of the retirement and redundancy benefits as alleged, this was d enied. JSO 3 .24 The defence was that in accordance with the 1995 Collective Agreement and the 2013 Remuneration and Benefits Policy, the Plaintiffs in question, were paid a merged salary which catered for housing allowance. 3. 25 Assertion was further made, that even if the housing allowance was due to the Plaintiffs as alleged, which it was not, the Plaintiffs, being the 84th Plaintiff, Christopher Kambole, Julius Bulembo, the 86th Plaintiff, Ilukena Mubita Kanunga, the 100th Plaintiff, Elishon Chakulunta, the 108th Plaintiff, Veronica Katalalilo, the 109th Plaintiff, Roydah Tembo, the 112th Plaintiff, Sharon Siakalima and Peter Muyobe the 116th Plaintiff, could not claim housing allowance, as more than Six (6) years had elapsed since they were promoted into Management, at which point their housing allowances were merged into their basic pay, and they ceased to receive stand-alone housing allowances, and their claim was statute barred. 3.26 The claims of underpayment, and the claims made by each Plaintiff was denied. 4. EVIDENCE LED AT TRIAL 4 . 1 At trial, the Plaintiffs, Mumba Mulolo, Edward Chungu, and Lupiya Peter Sakala testified on behalf of the other Plaintiffs. Zambia National Commercial Bank Plc did not call any witnesses. JSl PWl-MUMBA MULOLO 4.2 This witness produced his witness statement after the paragraphs 24 and 26 of his witness statement, were expunged from the said witness statement. 4.3 In his witness statement, Mumba Mulolo testified that himself and the other plaintiffs were employed by Zambia National Commercial Bank Plc, and they served in Management positions after they were promoted from the Union ranks. He added that the appointments into Management occurred between 1st February, 2013 up to the time they exited employment from Zambia National Commercial Bank Plc on 31 st May, 2020. 4.4 Further testimony was given, that Zambia National Commercial Bank Plc employed Management staff from two sources, being those who were employed from outside Zambia National Commercial Bank Plc directly into Management positions, and those who are employed from the Unionized ranks within Zambia National Commercial Bank Plc into Management positions. 4.5 It was stated that on being appointed into Management positions, one was entitled to Management conditions of service. Roy Mulolo's evidence was that one of those conditions that were enjoyed by Management staff who were promoted from the Union ranks was housing allowance, which Forty-Two (42) of the Plaintiffs were claiming. 4 .6 He stated that the said housing allowance was being claimed from the time that they were promoted to Management J52 positions, as well as a recalculation of the terminal benefits t o include housing allowance, interest, costs and any other r elief that the Court may deem fit. 4.7 Roy Mulolo testified that they acknowledged the changes that were made to the conditions of service for Management, but they needed to clarify a perception that had been peddled. Thus, they sought to draw a dividing line between the changes in the conditions of service, and how they were implemented, that is whether fairly or not. 4 .8 His evidence therefore, as regards housing allowance, was t h at until 31 s t January, 2013, everyone in Management was entitled to be paid housing allowance, regardless of whether they were employed from outside Zambia National Commercial Bank Plc, or they were promoted from within the Union ranks, in the said Zambia National Commercial Bank Plc. 4.9 He referred to Clause 6 .5.1 at page 216 of Lupiya Peter Sakala and the ot hers bundle of documents, s t ating that it provided that the Bank would not provide resident ial accommodat ion to its' employees, but would instead provide housing allowance at Sixty (60) percent of the monthly basic salary to all employees. 4 . 10 Roy Mulolo added that the provision of housing of housing allowance was reiterated at point number 2 in the Circular which was at page 56 of Lupiya Peter Sakala and the others supplementary bundle of documents, although there was a process of rationalization of allowances for management staff JS3 1n 1999, which stated that housing allowance remained the same at 60% of the annual basic salary. 4.11 The continued testimony was that of interest was page 58 of Lupiya Peter Sakala and the others supplementary bundle of documents, which was an appointment letter for Sydney Sinyangwe who was appointed from the Union ranks into Management in 2012 prior to the conditions of service of 2013. 4 .12 The contention was that paragraph 3 of that letter, referred to the document, DHR/ 12/96 which was at page 216 of Lupiya Peter Sakala and the others bundle of documents, which in Clause 6.5.1, which had been seen above, provided for the payment of housing allowance. 4 . 13 Premised on that, Roy Mulolo testified that housing allowance was being paid to all staff who were 1n management. 4. 14 He went on to further testify that there was amendment to the entitlement to housing allowance in 2013, effective 1st February 2013. In that regard, page 67 of Lupiya Peter Sakala and the others supplementary bundle of documents was referred in Part 8.9.2, stating that it r ead that in case of Unionized employees, housing allowance was consolidated in the basic salary. 4.15 Therefore, on being promoted into Management, this category of employees would not be eligible to additional housing allowance of Sixty (60) percent of the basic salary as defined in 8.9.1. J54 4.16 With regard to when the changes took place, Roy Mulolo testified that page 61 of Lupiya Peter Sakala and the other supplementary bundle of documents, in Part 1.3 specified the effective date of the changes, as 1s t February, 20 13. It was also his evidence, that page 79 of Lupiya Peter Sakala and the others supplementary bundle of documents was a letter of appointment for Levis Zulu, which was dated 19th February, 2014, and which letter emphasized that housing allowance was inherent in the basic salary. 4. 17 In his continued testimony, Roy Mulolo stated that at page 80 of Lupiya Peter Sakala and the others bundle of documents, was a letter dated 7 th February, 2013 for Minyoi Mwiya who was promoted from the Union ranks into Management and she was paid housing a llowance. It was Roy Mulolo's testimony, that in paragraph 3 of the letter, reference was made to the document DHR/ 12/96, and not the 2013 revised conditions of service, which stated that employees who were promoted into Management from the u J ion would not be paid housing allowance . 4.18 Roy Mulolo testified that the letter to Minyoi Mwiya was written after the amendment to the clause on housin g allbwance, which took effect on 1st February, 2013 . He added that by referring to DHR/ 12/96, it removed the notion which was created by some management staff, that only those in I Management then, that is at 1996, were entitled to the 1996 conditions of service. JSS 4.19 The Managing Director/ Chief Executive Officer and the Director Human Resources were named as the appointing authorities. 4 .20 Roy Mulolo testified that the attributes of a good policy included guidance, consistency, accountability, efficiency, clarity and fairness . Thus, by the Managing Director signing the appointment letter for Minyoi Mwiya and the others, he gave a policy direction that everyone who held a Management position was entitled to the payment of housing allowance at Sixty (60) percent. 4 .21 Accordingly, Roy Mulolo and the others were entitled to have the Sixty (60) percent housing allowance included in the computation of their leave benefits and terminal benefits. 4.22 His evidence was also that at page 81 of Lupiya Peter Sakala and the others supplementary bundle of documents, was a letter for a former Unionized staff member, Yangwase Mkwananzi, which showed that on 3rd April, 2013, she was ■ I appointed into Management from a Unionized position and t her gross salary moved from K7, 804.88 to K9, 895.61. tha The assertion was that the said letter noted that she not eligible to be paid housing allowance, as it was inherent in her basic salary, which was consolidated in 1995. 4 .23 Thep at page 83 of Lupiya Peter Sakala and the others supplementary bundle of documents was a second letter of appointment for Yangwase Mkwananzi which was dated 10th May, 2013. J56 4.24 That letter n ow back dated the appointment to 1st January, 2013 and stated that her housing allowance was not inherent in her basic salary, but that she would be paid housing allowance at Sixty (60) percent. 4.25 Roy Mulolo noted that the second letter of appointment for Y angwase Mkwananzi did not make any reference to her first appointment letter which was dated 3rd April, 2013 to explain the change. It was further observed that Y angwase Mkwananzi's basic salary moved from K9, 89.61 to Kl2, 381.63 and due to the said housing allowance, her basic salary increased by K2, 486. 02. 4.26 The testimony that Roy Mulolo also gave, was that when Yangwase Mkwananzi exited the employment of Zambia National Commercial Bank Plc, the computation of her benefits included housing allowance. 4.27 Page 67 of Lupiya Peter Sakala and the others supplementary bundle of documents in Part 8 .9.2, was stating as having advanced the reason for amending the conditions of service on housing allowance for those who were promoted from the Unionized ranks into Management, as being because it was consolidated into the basic salary, and t herefore on promotion into Management, they would not be eligible for additional housing allowance at Sixty (60) percent, as defined in 8. 9.1. 4.28 He contended that back dating the letter for Yangwase Mkwananzi did not cure the discrepancy, but it was intended to discriminate and prejudice some members of staff. To I JS7 support that position, Roy Mulolo testified that as seen in the letter which was at page 83 of Lupiya Peter Sakala and the others bundle of documents, Frank Chilufya was also appointed into Management from the Union on 10th May, 2013, and his letter of appointment was on the same date as Yangwase Mkwananzi. 4.29 However, Frank Chilufya was not awarded housing allowance at Sixty (60) percent, but was instead informed that he was not eligible to housing allowance, as it was already inherent in his basic salary, which was consolidated in 1995. 4.30 Note was made, that both Yangwase Mkwananzi and Frank Chilufya were promoted into Management from Unionized positions on the same day on 10th May, 2013, but under different sets of conditions of service, despite the fact that they, as well as Minyoi Mwiya, had basic salaries that had origin from the Union. 4.31 Roy Mulolo still in his testimony, stated that the emails which were at pages 1-1 7 of Lupiya Peter Sakala and the others second supplementary bundle of documents, were exchanged between the Director/ Chief Human Resources Officer and the group, with a view to resolve the impasse. Then at pages 12 and 25, the Chief Human Resources Officer agreed that there was a problem with Zambia National Commercial Bank Plc's compensation. 4.32 Therefore, the Chief Human Resources Officer undertook to involve consultation for the resolution of the housing J58 allowance problem, as shown at page 12, to engage the services of the Legal Department for Zambia National Commercial Bank Plc, as evidenced at pages 16 and 32, to consult with the management board as seen at page 15, and to task Mr. Israel Shimonze for resolution of the problem, as seen at page 5. 4.33 Further, that she would ensure that a solution to the problem of housing allowance was found, as stated at pages 5, 13 and 15. 4.34 However, no solution was found at the time, Roy Mulolo and the others exited Zambia National Commercial Bank Plc. 4.35 Roy Mulolo's testimony also touched on the definition of basic pay, and in doing so, he referred to page 67 of Lupiya Peter Sakala and the others bundle of documents in Part 8.9.2 which has been seen above. The letter for Levis Zulu which was at page 79 of Lupiya Peter Sakala and the others supplementary bundle of documents in paragraph 2, which has already been seen, was again referred to . 4.36 The testimony that was also given, was that the letter which was written to Levis Zulu on his basic salary was a direct contradiction with the definition of basic salary as indicated bt the conditions of service. 4.37 Roy Mulolo testified that the Union conditions of service fall under a different contract of employment, and is represented by the Union called ZUFIAW. He went on to state that Management conditions of service fall under a different JS9 contract of employment, and that the two sets of conditions have nothing in common. 4 .38 Thus, any attempts to emend conditions under the Union, calls for the involvement of the Union representative organ who are the custodians of the terms, conditions and exceptions of the contract of employment. 4.39 He referred to page 84 of Lu piya Peter Sakala and the others supplementary bundle of documents, as being the Memorandum of Agreement between Zambia National Commercial Bank Plc and ZOFIA W for the Unionized staff. 4.40 Roy Mulolo told the Court, that the said document was what governed and contained the conditions of service prior to them being appointed into Management positions. He stated that under Item 2 at page 85, basic salary was defined as an employee's basic salary, excluding allowances and any other cash benefits. 4.41 Thus, the basic salary for any Zambia National Commercial Bank Plc's employee did not have housing allowance inherent in it. 4.42 Also, in his testimony, Roy Mulolo stated that among the conditions, which were contained in the conditions of service ii I was Clause 13.3 at page 220, which provided for benefits under the Bank's Severance Scheme in Appendix H, and I stated that: 1-10 years of service 1-10 years of service 2.5* monthly gross salary for each completed year of service J60 11-20 years of service 11 -20 years of service 3.5* monthly gross salary for each completed year of service 21 and above years of service 21 and above ye ars of service 4.5 * monthly gross salary for each completed year of s ervice 4.43 Roy Mulolo testified that the letter at page 16 of Lupiya Peter Sakala and the others supplem.entary bundle of documents, was a response from Management which showed that he was not considered for the Voluntary Severance Scheme in 2016. It was his evidence, that this was confirmation that the scheme was one of his conditions of service, which was embedded in his contract of employment, and that it was a condition that he was entitled to. 4.44 He alleged that through a memorandum dated 12th I November, Management unilaterally and instantly dropped the Severance Scheme, without due consideration that some me:tn bers of staff were already under permanent and perisionable conditions of service, and were entitled to the Voluntary Severance Scheme. 4.45 That in its' place, an Early Retirement Scheme which had inferior retirement multipliers, as seen at page 187 of Lupiya Peter Sakala and the others bundle of documents were introduced. 4.46 He stated that the multipliers that were introduced were: J61 1- 10 Years of service 1-10 years of service 0.70* monthly gross salary for each completed year of service 1 1-20 years of service 11 -20 years of service 1.1 * monthly gross salary for each completed year of service 21 years and above years of 21 and above years of service service 1.3* monthly gross salary for each completed year of service 4.47 Roy Mulolo's averment was that after the Voluntary Severance Scheme was dropped, there was no other scheme which was introduced for those who were already on the Voluntary Severance Scheme. He explained that 1n the Memorandum, which was dated 12th November, 2018, it was stressed that every member of staff was required to sign the Attestation, and that any member of staff who opted not to sign the Attestation, was required to give reasons in writing to the head-Human Resources Operations Compensation and Industrial Relations . 4.48 Then on 12 th November, 2018, Roy Mulolo submitted an application, to go on Early Retirement, but he did not sign the Attestation, as directed at page 186. Nevertheless, the said application was invalidated through an email which was dated 19th November, 2018, by Ilwange Sitali of the Human Resources Department, on the grounds that Roy Mulolo did not sign the Attestation form. Therefore, the signing of the Attestation was a forced procedure. J62 4.49 He added that the letter at page 186 indicated that he needed to re-submit his application, and to amend the date to the latest date. Roy Mulolo further testified, that he engaged Ilwange Sitali on why his application for Early Retirement was not considered on the old terms, and he was advised that Ilwange Sitali was under instructions to ensure that no application for retirement was to be considered, unless the Attestation form was signed. CROSS EXAMINATION OF ROY MULOLO 4 .50 In cross examination, Roy Mulolo testified that while he did sign the 2018 conditions of service, it was under duress. When referred to the Conditions of Service Attestation Form, which was at 390 of Volume 2 of Zambia National Commercial Bank Plc's bundle of documents, his evidence was that the document had his name, and that he signed it. It was further his testimony, that on that document, Kaoma Chola signed as his witness, and that it was dated 15th November, 2018. 4.51 Roy1 Mulolo could not recall having written a letter to Zambia National Commercial Bank Plc prior to leaving employment. His 'testimony, when he was referred to page 391 of Zambia National Commercial Bank Plc's bundle of documents was that it was a letter that he wrote on 6 th November, 2018 requesting to go on Early Retirement following the circulation through an email. He agreed that he signed the letter. J63 4.52 Roy Mulolo agreed that at page 392, Zambia National Commercial Bank Plc wrote back, granting him the separation on Early Retirement . Further admission was made, that Roy Mulolo signed the acknowledgment at the bottom of the page, which indicated that he had read and accepted the formula, as well as the computation on 4 th May, 2020, and he signed. 4.53 He also acknowledged that page 90 of Lupiya Peter Sakala and the others bundle of documents, was the Zambia National Commercial Bank Plc's conditions of service, which were dated October, 2018. His evidence was that those conditions, introduced Early Retirement in Clause 25 at page 203. Still in cross examination, Roy Mulolo stated that Early Retirement was approved at Management's discretion, and was effective 1st January, 20 19. 4.54 It was also Roy Mulolo's testimony, that prior to 2018, there I was no Early Retirement, and that it was introduced in 2018 as evidenced at page 221 of Lupiya Peter Sakala and the ot hers bundle of documents. 4.55 Agreement was made, that Roy Mulolo was promoted from I the Union ranks into Management, together with the other Plaintiffs such as Sylvester Ngoma, Levis Zulu and Eugene Kasoka. He agreed that all the Plaintiffs were in Management I when they left the employment of Zambia National Commercial Bank Plc. 4 .56 Roy Mulolo also agreed that Forty-Two (42) of the Plaintiffs, claimed housing allowance, and that they left employment at J64 different times, and they were employed at different times. He stated that at the time they left employment, they were not getting the exact amount of money as salaries. 4.57 When referred to the Zambia National Commercial Bank Plc's Conditions of Service for Non-Represented Staff for 2013, which were at page 59 of Lupiya Peter Sakala and the others supplementary bundle of documents, Roy Mulolo responded that he was promoted to Management in 2015, and that his first position in Management, was Assistant Management Officer. 4.58 He agreed that the letter appointing him into that position was at page 1 7 of Lupiya Peter Sakala's bundle of documents, and that it was dated 27th July, 2015. He added that his appointment was subject to the conditions of service for non-represented staff of 2013 . He stated that those conditions were at page 59 of Lupiya Peter Sakala and the others supplementary bundle of documents. 4.59 Roy Mulolo's evidence was that at page 67, in paragraph 8.9 was provision for housing allowance, and that he was in Band 7. Agreement was made that paragraph 8.9.2 stated that in the case of Unionized staff, the housing allowance was consolidated into the basic salary. Thus, on promotion into Management, that category of staff would not be eligible for the payment of housing allowance at Sixty (60) percent of the basic salary, as defined in paragraph 8. 9 .1. 4.60 The evidence that Roy Mulolo gave, when he was referred to page 103 of Zambia National Commercial Bank Plc's J65 supplementary bundle of documents, was that it was a Memorandum of Collective Agreement between Zambia Bankers (Employees) Association and the Zambia Union of Financial Institutions and Allied Workers, which dated 23rd May, 1997. He agreed that at page 108, it stated that housing allowance was incorporated in to the basic salary effective 31 st August, 1996. 4.61 Roy Mulolo agreed that bank staff obtained loans to buy houses. It was also his testimony, when he was referred to page 207 of Lupiya Peter Sakala and the others bundle of documents, that Appendix C provided for early retirement. He stated that he fell in the category 11-20 years of service and that the factor which was used to calculate the benefits was 1.1 x monthly gross salary for each completed year of service. RE-EXAMINATION OF ROY MULOLO 4.62 In re-examination, Roy Mulolo stated that he did not sign t he Attestation clause and that he had to resubmit the application with the signed attestation. PW2-EDWARD CHUNGU 4.63 This witness also produced his witness statement as his testimony, after note was made that paragraphs 1.12-1.18, 2.1 -2.5, 3.1-3.6 and 4.1-4.20 of his witness statement related to matters which had not been pleaded, and Counsel for Lupiya Peter Sakala and the others conceded. 4 .64 In that witness statement, Edward Chungu stated that he was employed by Zambia National Commercial Bank Plc on J66 9th December, 1991, as a Management Trainee after he completed his studies at the University of Zambia 1n Economics/Business Studies. 4.65 His evidence was that he was employed on permanent and pensionable conditions for non-represented staff. It was further his testimony, that he separated from the employment of Zambia National Commercial Bank Plc on 31st March, 2020, having served for Twenty-Eight (28) years, after management approved his application for Early Retirement. 4 .66 Edward Chungu also in his testimony, stated that he attended various trainings in Management, during his employment, which included human r esources management. He explained that he learnt that there are two fundamental issues in human resources, in relation to an employee, being pension and retirement. 4.67 It was stated that Zambia National Commercial Bank Plc's initial conditions of service were introduced in 1996, which were commonly known as the 1996 Conditions of Service or simply DHR/ 12/96. Edward Chungu's evidence was that when Management gave out the booklet which contained the conditions of service for non-represented staff DHR/ 12/96, !his attention was drawn to Clause 11 (Appendix G) which provided for pension, and Clause 13 (Appendix H) which provided for retirement. He stated that in this regard, page 209 referred. J67 4.68 In respect of retirement, it was his testimony that Clause 13 listed, the following: 1. Normal Retirement; 2. Retirement on Medical Grounds; 3. Severance Scheme. 4 .69 The definition of Severance Scheme was given as: "Termination of an employment contract other than on disciplinary grounds at the will of the Bank before the attainment of the stipulated retirement age or service provided that the employee concerned has continuously served for a minimum of 20 years or has attained the age of 50 years. Notwithstanding the foregoing, the Bank may at its' sole discretion, terminate an employee's contract of service before completion of the minimum period of 20 years continuous service or attainment of the age of 50 years and the benefits shall be computed in accordance with the Bank's severance scheme." 4.70 He testified that the Severance Scheme was provided for in Appendix H, with the following benefits: No of Years of service Factor 1-1 0 years 2.5 months' pay for each completed year of service 11-20 years 3.5 months' pay for each completed year of service J68 21-30 years 4.5 months' pay for each completed year of service 4.71 He further testified that the letter, which was at page 80 of Lupiya Peter Sakala and the others supplementary bundle of documents, was a letter which was written to Minyoi Mwiya, and was signed by the Bank's Managing Director, Mr Martin Schouten and the Director Human Resources and Training Mrs Chimango Chikwanda then, on 13th February, 2013, which affirmed that position. 4.72 Thus, his contention was that the amendments which were made in 2011 to DHR/ 12/96 Conditions of Service, could not stand, as the appointment letter dated 13th February, 2013 which was two years after the said amendment only quoted DHR/ 12/96 as the only conditions t hat were applicable. 4.73 He alleged that when one compared the computations of the benefits, as per Appendix H (DHR/ 12/96) to the ones that w ere unilaterally given in the 2018 Staff Conditions of Service, which were at page 180 of Lupiya Peter Sakala and the others bundle of documents, Edward Chungu and his I colleagues suffered underpayment, as the calculations were based on reduced factors, as per the Circular dated 15th November, 2018, which was at page 187 of Lupiya Peter I Sakala and the others bundle of documents. 4.74 The assertion was that Zambia National Commercial Bank Plc had over the years reduced the multiplier, while the cost ofliving had gone up. However, as seen at page 221 of Lupiya J69 Peter Sakala and the others bundle of documents, funeral grant had been increased. 4.75 The allegation was that the obtaining of consent from employees at the point of separation, was not consent at all. Further coercing or forcing employees into consenting did not constitute consent. 4.76 It was also stated that remaining silent when it came to the downgrading of the conditions of service did not amount to consent, as did briefing employees that management had revised the conditions of service, and immediately requesting the employees to attest that they had read, fully understood and accepted the new conditions of service, as that was coercion, and it did not constitute consent. 4.77 The testimony was further that there was lack of consistency on the effective date for the Staff Conditions of Service which was signed by the Director-Human Resources & Training and the Chief Executive Officer /Managing Director and was at page 191 of Lupiya Peter Sakala and the other's bundle of documents on 22nd October, 2018. This was because it st~ted that it was dated 1st September, 2018. 4.78 However, the Circular which was issued on 12th November, 2018, to all non-represented staff, stated it was effective 1st October, 2018. Page 221 of Lupiya Peter Sakala and the others bundle of documents was referred to, in that regard. CROSS EXAMINATION OF EDWARD CHUNGU 4.79 It was Edward Chungu's evidence in cross examination, that he left the employment of Zambia National Commercial Bank J70 Plc through early retirement. He agreed that at page 208 of Volume 1 of Zambia National Commercial Bank Plc's bundle of documents, Victor Haakale signed the letter dated 14th November, 2018, as his witness . It was also admitted that t he next page, was 209 and that it was dated 2nd October, 2019 . Edward Chungu agreed that the letter referred to the Staff Conditions which were dated October, 2018, and that p age 1 90 of Lupiya Peter Sakala and the others bundle of documents had the date October, 2018. RE-EXAMINATION OF EDWARD CHUNGU 4.80 It was clarified in re-examination, that page 209 of Zambia National Commercial Bank Plc's bundle of documents referred to the October, 2018 conditions, and not the 1996 document. PW3-LUPIYA PETER SAKALA 4.81 The last witness was Lupiya Peter Sakala. He produced his witness statement as his evidence, after paragraphs 10, 14, 151 16, 17, 18, 19, 20a and 20(c) were expunged, as they related to matters which were not pleaded. 4.82 The evidence as given in the witness statement, was that Lu~iya Peter Sakala served Zambia National Commercial Bank Plc for Twenty-Eight (28) years, having been employed in September, 1991 as a Unionized employee. Then from there, he pursued his studies under the Distance Education Directorate at the University of Zambia. 4 .83 His continued evidence was that in 2009, he applied to leave employment under the Voluntary Severance Scheme, but the J71 said application was rejected on 1s t April, 2010, as seen at page 3 of Lupiya Peter Sakala and the others supplementary bundle of documents. Nevertheless, Lupiya Peter Sakala applied, and he was successfully interviewed for the position of Relationship Assistant Officer under the Agency Banking Unit at Head Office on 21 st April, 2011. 4.84 He referred in that regard, to page 2 of Lupiya Peter Sakala and the others supplementary bundle of documents. He went on to narrate how his frustrations in employment grew, testifying that after he was promoted to the position of Senior Officer in the said department, in 2015, as seen at page 1 of Lupiya Peter Sakala and the others supplementary bundle of documents, thereafter, there was a job evaluation implementation programme that was done. 4.85 Lupiya Peter Sakala testified that the said exercise resulted in his technical demotion, as h e was prior to the evaluation, reporting to a manager who was a Band above him. It was I hi~ testimony that after the job evaluation, the gap between them widened. That was how, as shown at page 6, he had asJ ed for a lateral transfer in July, 2018 to the Retail Division. 4.86 Then, when the Severance Scheme Window called Early Retirement was opened, he applied for consideration on 30th November, 2018. Lupiya Peter Sakala testified that in the letter, which was at page 182 of Lupiya Peter Sakala and the others supplementary bundle of documents, he indicated his reasons for the application, as being due to frustrations at J72 the hands of the Bank, and his burning desire to leave employment. 4.87 However, as seen from the letter which was at page 5 of Lupiya Peter Sakala and the others bundle of documents, his application was rejected on 25th February, 2019. It was also Lupiya Peter Sakala's testimony, that finally by the letter, which was at page 6 of Lupiya Peter Sakala and the others bundle of documents, he applied t o leave employment on 21 s t October, 2019, under the Early Retirement Scheme. 4.88 The evidence that was given, was that approval was given on 27th April, 2020, and Lupi ya Peter Sakala's last working day was 31 st May , 2020. He stated that the factor that was used to calculate his benefits was 1.3 x monthly gross salary for each completed year of service. 4.89 Still in his testimony, Lupiya Peter Sakala stated that he and the others had sued, as they were underpaid their separation packages. In relation to himself, his evidence was that the applicable terms for the separation was DHR/ 12/96 Non Represented Conditions of Service, under the Severance Scheme. Therefore, the factor that ought to have been applied was 4.5 x monthly gross salary for each completed year of service. 4 .90 Lupiya Peter Sakala added that the 1996 exit factors applied to all his colleagues against their respective years of service. It was testified that the issue of housing allowance also applied, as ably testified by Roy Mulolo. J73 4 .91 Lupiya Peter Sakala also gave evidence, like Edward Chungu, as regards the Severance Scheme under DHR/ 12/96, in relation to the factor that applied when computing the benefits. He added that the Director of Human Resources, issued a Circular on 5 th August, 1999, DHR/MEN/RCM, whose subject was Review of Conditions of Service, which was at pages 56-57 of Lupiya Peter Sakala and the others supplementary bundle of documents. 4 .92 It was his testimony, that by that memorandum, the Severance Scheme was adjusted downwards as follows: No of years in service Factor 1- 10 years 10-20 years 1.5 monthly basic salary for each completed year of service 2.0 monthly basic salary for each completed year of service Over 20 years 2.5 monthly basic salary for each completed year of service 4 .93 Lupiya Peter Sakala stated that on 25th February, 2011, the Acting Director Human Resources and Training issued a Circular HRTD/03/2011, which was at pages 18 and 19 of Lupiya Peter Sakala and the others supplementary bundle of documents, in which it was stated that the demotion of the factors stemmed from the Human Resources Committee of the Board, which approved the review of the Voluntary Severance Scheme for all staff, which for the non - represented staff was: J74 No of years of Factor Multiplier service 1-10 years 0.83 Over 10-20 years 1.1 Over 20 years 1.40 monthly gross pay for each completed year of service monthly gross pay for each completed year of service monthly gross pay for each completed year of service 4.94 Then on 15th November, 2018, the Acting Chief Human Resources & Training Officer, issued a memorandum which saw the introduction of the Early Retirement Scheme whose severance pay was further relegated as below: of years of No I service Factor Multiplier 1-10 years 0.7 I Over 10-20 years 1.1 I I Over 20 years I 1.3 monthly gross pay for each completed year of service monthly gross pay for each completed year of service monthly gross pay for each completed year of service J75 4.95 It was stated that the separation scheme that saw Lupiya Peter Sakala and the others exit Zambia National Commercial Bank Plc, was introduced in the 2018 Conditions of Service for Non-Represented Staff, as seen at page 22 1 of Lupiya Peter Sakala and the others bundle of documents. 4.96 The testimony was that while Zambia National Commercial Bank Plc had decided to call this Severance Scheme as Early Retirement Scheme, it had domesticated the National Pension Scheme {Amendment) Act No 7 of 2015 through the memorandum which was authored by the Managing Director, and was at page 188. 4.97 It was testified that the amendment was given effect, and the Staff Loan Policy was amended accordingly, and it impacted the house loan applications, as older members of s t aff like Lupiya Peter Sakala, had the repayment period extended by Five (5) years. Therefore, he found it mind boggling, that the Acting Chief Human Resources & Training Officer would on 12th November, 2018, announce through a memorandum, a review of the conditions of service, as seen at page 20 1 and I a follow up memorandum of a policy that was already ruj ning. I 4 .98 He noted that the memorandum dated 12th November, 2018, dro~ ped the Voluntary Severance Scheme (VSS) with no reason being advanced for the change. Notable however, was that funeral grant was enhanced, while responsibility J76 allowance was reintroduced, and a medical retirement package was introduced. 4.99 Lupiya Peter Sakala repeated Edward Chungu's testimony that the memorandum indicated October, 2018 as the effective date of the conditions of service, yet the signed conditions of service indicated that it was 1st September, 2018. He added that the signatures for the Chief Human Resources & Training Officer, and the Managing Director were only appended on 22nd October, 2018. 4.l00Then on 15th November, 2018, a memorandum was issued which gave a fuller explanation of the scheme, which was at page 187 of Lupiya Peter Sakala and the others bundle of documents. 4.101 It was further repeated that the memorandum indicated that staff were required to acknowledge acceptance of the conditions of service, by signing the Attestation Form which was attached, and that those who did not sign had to give reasons 1n writing to the Head-Human Resources Operations-Compensation & Industrial Relations. 4.102 The testimony that was also given, was that when Mumba Mulolo and Chola Kaoma applied for Early Retirement, their applications could not be considered, as they did not sign the attestation clause. Thus, they had to redo their applications indicating the later date. CROSS EXAMINATION OF LUPIYA PETER SAKALA 4.103 When cross examined, Lupiya Peter Sakala agreed that he signed the letter which was at page 23 of Volume 1 of Zambia J77 National Commercial Bank Plc's bundle of documents and that it was dated 28th November, 2018 . His testimony was t hat only one set of conditions of service was introduced in 2018. 4.104Further admission was made, that at page 24, Lupiya Peter Sakala wrote the third application, requesting to go on Early Retirement, and that at page 25, Zambia National Commercial Bank Plc approved the application. He testified that the formula that was used to calculate his benefits was based on the 2018 Early Retirement conditions, which conditions he had signed for at the bottom, accepting them as well as the computations on 5th May, 2020. 4.105 Lupiya Peter Sakala's evidence was that no one forced him to apply for Early Retirement. He agreed that page 190 of Lupiya Peter Sakala and the others bundle of documents was the 2018 conditions of service, and that the formula was at page 207. 4. 106 When cross examined further, Lupiya Peter Sakala stated that he wanted to be paid under the 1996 conditions which were before Court. He testified that the 1996 conditions did not provide for Early Retirement, but made provision for a Severance Scheme, under Appendix H, which was not before Court. 4.107 That marked the close of the case for Lupiya Peter Sakala and the others. 5. DECISION OF THIS COURT 5.1 I have considered the evidence and the submissions. J78 FACTS NOT IN DISPUTE 5.2 It is not in contention, that Lupiya Peter Sakala and the others are former employees of Zambia National Commercial Bank Plc, who exited their employment on various dates due to Early Retirement, Redundancy and Resignation. It is further common cause that Lupiya Peter Sakala and the others claim that they were underpaid their packages on exit from employment. 5.3 It is not in dispute that some Plaintiffs, among Lupiya Peter Sakala and the others, claim payment of housing allowance, and that it should be included in the computation of their packages. FACTS IN DISPUTE 5.4 It is in contention whether Lupiya Peter Sakala and the others were underpaid their packages, and that the said packages should include the component of housing allowance for some of the Plaintiffs. ANALYSIS 5.5 The gist of the contention by Lupiya Peter Sakala and the 1others, is that they were Management employees, who were promoted from Unionized ranks. Their submission was that the conditions of service in DHR/ 12/96 also applied to employees who were promoted from Unionized positions other than those who were employed straight into Management positions. 5 .6 Submission was also made, that around the year 2000, labour law practices changed, which saw the inclusion of J79 allowances in the payment of terminal benefits, and that Zambia National Commercial Bank Plc implemented these changes. Therefore, Lupiya Peter Sakala and the others were entitled to the inclusion of housing allowance in the computation of their benefits. 5.7 Note was made, t hat Zambia National Commercial Bank Plc had denied that Lupiya Peter Sakala and the others, were entitled to have their terminal benefits calculated, with the inclusion of h ousing allowance, stating that Lupiya Peter Sakala and the others were paid in accordance with the 2018 conditions of service. 5.8 It was further submitted that the Plaintiffs who claim payment of housing allowance, and the inclusion of the same in the terminal benefits, were paid in accordance with the 1995 collective agreement, as read with t he 2013 Remuneration and Benefits Policy, which was a merged salary that catered for housing allowance. 5.9 ,Also submitted, was that Zambia National Commercial Bank Plc contended that the Plaintiffs who were listed in paragraph 57 of the defence, were not entitled to the payment of housing allowance, as their claim was statute barred. 5.10 Still in submission, it was stated that Lupiya Peter Sakala and the others claims are founded on the principle of accrued benefits, when they moved from Unionized positions into Management. Reliance was placed on the case of Stanbic Bank Zambia Limited v Andrew Muyaba f22J J80 which held that once a benefit is accrued, there is legitimate expectation that the same will be paid as an entitlement to an employee. 5 .11 Th e case of Association of Copper Mining Employees and the Attorney General v Mine Workers Union of Zambia (7J was said to have reiterated this position. 5.12 Further reliance was placed on the case of Jacob Nyoni v The Attorney General (9J, stating that it held that conditions of service cannot be altered to an employee's disadvantage. 5.13 In respect of housing allowance, r eliance was placed on the 1996 Conditions of Service, which were at page 216 of Lupiya Peter Sakala and the others bundle of documents, stating in Clause 6.5.1 it provided that: "The Bank shall not provide residential accommodation to its' employees. Instead, a housing allowance of 60% of monthly basic salary shall be paid to all employees. " 5.14 Argument was made, that this position was reiterated in the August, 1999 Review of Conditions of service, as shown by the memoranda which were at pages 56 and 57 of Lupiya Peter Sak.ala and the others supplementary bundle of !documents, despite the rationalization of allowances for management staff in 1999. 5.15 The appointment letter for Sydney Sinyangwe which was at page 58 of Lupiya Peter Sak.ala and the others supplementary bundle of documents, and was dated 24th July, 2012, was stated as having provided that he would be J81 paid housing allowance at Sixty (60) percent of his basic salary. 5.16 The definition of basic salary, at page 61 of the said supplementary bundle of documents, was stated as being: "Basic salary means employees salary less all allowances before tax." 5.17 In response to Zambia National Commercial Bank Plc's contention that the conditions of service were altered, pursuant to the 2013 Conditions of Service, which were at pages 59-78 of Lupiya Peter Sakala and the others bundle of documents, and were effective 1st February, 2013, and which provided that housing allowance would not be payable to staff who were promoted from the Union, as the basic salary for Unionized employees was consolidated with housing allowance in 1995, u nder an agreement with the Zambia Union of Financial and Allied Workers Union, the response was that this agreement had a life span of Two (2) years. 5.18 r eferring to the Collective Agreement between Zambia National Commercial Bank Plc and the Zambia Union of financial and Allied Workers, which was at page 84 of Lupiya Peter Sakala and the others supplementary bundle of documents, the submission was that the conditions of service for Unionized workers had no bearing on the conditions of service for Management employees. 5.19 It was stated that in any case, the position that was taken by Zambia National Commercial Bank Plc was contrary to the evidence that was on record. This was because, Minyoi J82 Mwiya wh o was pr omoted from the Unionized positions on 7 th February, 2013, as seen at p age 80 of Lupiya Peter Sakala and the others supplementary bundle of documents, was awarded housing allowance at Sixty (6 0) percent of her m on thly basic salary. 5.20 Th e submission was that this was t h e same for Yangwase Mkwananzi who was appoin ted on 3rd April, 20 13, as evidenced by t h e lett er, which was at page 81 of Lupiya Peter Sakala and the oth er s supplem entary bundle of docu ments, in which she was n ot awarded h ou sin g a llowance. However, that position was reversed by t h e letter, which was at page 82 of t he said bundle of d ocuments. 5.21 Then in contrast, Frank Chilufya, whose a ppointment letter was dated 10 th May, 2013, and was at page 83 of the said bu n d le of d ocumen ts, was denied housing allowance on being promoted into Management from the Un ion . 5.22 The case of Violet Nkwanjiwa Nkonjera v Chilanga Cement (l OJwas cited, stating that the Supr eme Court in that matter held that: "Employers cannot be allowed to treat one employee favourably because he has obeyed an instruction to withdraw from a Court case, while treat those who have exercised their constitutional right to seek redress in a Court of law less favourably." 5.23 Reliance was furth er p laced on the cases of Association of British Travel Agents Limited v British Airways Plc (1 2 J J83 and Inda Zambia Bank Limited v Mushaukwa Muhanga f18J, which cases held that words of documents are to be taken strongly against the one who puts them. 5.24 With reference to pages 1-17 of Lupiya Peter Sakala and the others supplementary bundles of documents, submission was made that all the aggrieved staff who were denied housing allowance, engaged management in discussion which culminated in meetings and email correspondence with the then Chief Human Resources Officer, Mrs Mumbi Mwila starting from April, 2017. 5.25 The engagements were noted as, management having admitted the discrepancies in compensation practices upon obtaining a legal opinion from the Head Legal-Sandra Wamulume, and management promising to resolve the issue after sensitizing the Management Board, and the direction on the same, that management would involve a consultant, and that Israel Shimonze would be tasked to work on this. 5.26 Note was made, that none of the observations that were made, were fulfilled at the time that Lupiya Peter Sakala and the others separated from employment. 5.27 Submission was also made, that it is trite law that where the f onsent of an employee is not obtained, acquiescence cannot be gleaned from the facts, even if an employee remains in employment. The authority that was cited in support of that position was the case of Attorney General v Nachizi Phiri and others fl9J. J84 5.28 It was added t h at the Supreme Court in that matter, stated that failure by employees to parade and protest against the con ditions of service should not amount to consent by conduct. 5 .29 Observation was made that the Supreme Court in the case of Zambia National Commercial Bank Plc v Ernestina Sakala and 62 others f3 1J approved the decision in the above case, but for different reasons. However, in that case, the employees had remained in employment after the Bank revised the formula for computation of benefits under the Voluntary Separation Scheme, which entailed reduction of the multip lier which was used to calculate the benefits. 5.30 Notwithstanding, the gross salary was used to calculate the benefits as opposed to the basic pay, and the change having been unilateral, it was an adverse variation of the conditions of service. It was noted that none of t he employees were notified of the ch ange, and thereafter, several other unilateral changes were made to the formula, which the ~mployees did not dispute. 5 .31 Then when the employees left employment by virtue of Early Retirement, under the Voluntary Separation Scheme, their benefits were based on the revised formula, even though they did not assent to the change. 5.32 It was submitted that the High Court and the Court of Appeal ordered recalculation of the terminal benefits on the basis that the employees did not consent to the change in the formula. However, the Supreme Court took the view that the J85 conduct of the employees s h owed that they had accepted the revised formula, and therefore, it was unnecessary t o consider what the effect of the revision was. 5.33 The submission was that in this case, the affected employees engaged Managem ent on the issue of housing allowance, which supported the claim that Lupiya Peter Sakala and the others protest ed against the unilateral variation of their conditions of service. It was contended that this was unlike in the case of Zambia National Commercial Bank Plc v Erne stina Sakala and 62 others f3 1J. 5.34 To support that position, the submission was that in 2014, Davis Chibeka Kafwimbi, as seen at pages 45-46 and 4 7-52 of Lupiya Peter Sakala and the others supplementary bundle of documents, led the protest. Then Zambia National Commercial Bank Plc accepted the same at page 44 of the said bundle of documents. 5 .35 It was a lso stated that in 2018, there was refusal to sign the 1 ttestation Forms, which subsequently invalidated the Early Retirement Applications by Human Resources, as evidenced at page 43 of the said bundle of documents. 5.36 Further submission was made, that pages 1- 17 of said supplementary bundle of documents evidenced the 2013 housing allowance grievance. 5.37 In respect of the multiplier which was used for the purported Early Retirement for the Seventy-Six (76) Plaintiffs, hence their underpayment, using the 2018 conditions instead of the 1996 conditions of Service, DHR/ 12/96 was submitted J86 as having been the applicable conditions of service that applied to the computation. 5.38 It was observed that DHR/ 12/96 did not provide for Early Retirement, but as seen from Minyoi Mwiya's appointment letter dated 13th February, 2013, which was at page 80 of Lupiya Peter Sakala and the others supplementary bundle of documents, it referred to the 1996 conditions of service. The contention was that this was also the position in the letter for Sydney Sinyangwe, which was at page 58 of the said bundle of documents. 5.39 It was submitted that the 1996 conditions remained in force until November 2018, as seen at page 221 of Lupiya Peter Sakala and the others bundle of documents, which stated that the Voluntary Severance Scheme was dropped from the conditions of service. Therefore, the clause acknowledged that the 1996 conditions remained in force until that date, and confirmed that the severance benefits were accrued under the conditions. 5.40 RJferring to the Policy Circular dated 28th June, 2013, which was at page 55 of Lupiya Peter Sakala, and the others supplementary bundle of documents, the submission was I that Zambia National Commercial Bank Plc advised that Ex Gratia benefits would cease to apply to new employees who joined after July 1s t , 2013, while the existing permanent and pensionable employees would remain eligible. 5.41 It was stated that this was extended to the pension schemes as evidenced by the Circular dated 12Lh February, 2018, J87 which was at pages 53-54 of the said bundle of documents and Clause 22.2 of the October, 2018 Conditions. Then page 26 differentiated between employees who joined before 1st June, 2019 enjoying Thirty (30) days, and those who joined after 31 s t May, 2019, having Twenty-Four (24) days. 5.42 The contention was that the Early Retirement Scheme which was introduced in the October, 2018 conditions was invalid, as it was introduced without Lupiya Peter Sakala and the others' consent. Coercion in obtaining the consent, signing of the Attestation Forms were stated as being the basis of the lack of consent. 5.43 It was further submitted that this extended to the signing of the Attestation Forms, with regard to Early Retirement, bad faith, as there was discrepancy in the effective date of the 2018 revised conditions, intimidation and instilling fear, mandated compliance, arm-twisting tactics and mixing of variables, fear of sanctions, fear of job loss and compliance as a key performance indicator, which were all a basis for lack of compliance. 5.44 In response, Zambia National Commercial Bank Plc submitted that all the Plaintiffs were employed on various dates beginning 1980 going onwards. It was further stated that the initial conditions of service at Zambia National I Commercial Bank Plc, known as DHR/ 12/96 were introduced in 1996. 5.45 The following Thirteen (13) Plaintiffs were named as being those to whom DHR/ 12/96 applied being, Clement Kapila i J88 the 2 nd Plaintiff, Jenipher Siyumbwa, the 3 rd Plaintiff, Josephine Chileshe the 9 th Plaintiff, Muyembe Nkhoma the 18th Plaintiff, Josephat Ngombe, the 23rd Plaintiff, Justine Lukwesa, the 36th Plaintiff, Edward Chungu, the 35th Plaintiff, Raphael Khoza, the 43rd Plaintiff and George \Vekelezi the 44th Plaintiff. 5.46 Others were Jessie Chakufyali, the 46 th Plaintiff, Dolly Chambwa the 47th Plaintiff, Agness Kamanga, the 64th Plaintiff and Christopher Tembo, the 76t h Plaintiff. 5.47 The submission was that for the rest of the Plaintiffs, they had not yet been employed, or were in employment in the Unionized ranks. 5.48 It was contended that DHR/ 12/96 was amended by Circulars which were issued in 1991 and 2011, and which were at pages 469-471 of Zambia National Commercial Bank Plc's bundle of documents. Further, in 2018, there was another revision to the said conditions of service, which introduced Early Retirement, and that document was at pages 1-19 of Zambia National Commercial Bank Plc's bundle of documents. 5 .49 Pages 121-141 of Zambia National Commercial Bank Plc's supplementary bundle of documents was stated as being the 2020 Conditions of Service. It was submitted that those co1;1.ditions of service were attested and consented to, as seen at pages 23, 28, 33, 40, 45, 52, 57 , 64, 71, 7 6, 83, 88, 93 , 98, 103, 108, 113, 118, 123, 128, 133, 144, 149, 154, 159, 164,169,175,181,186,191 , 197,202, 208,213,218,223, J89 228,233,242,247,252,258,263,268,275,280,296,303, 308,313,318,324,329,335,340,345,350,355,360,367, 372,379,384,394,400,405,411,418,423,430,435,441, 447, 452, 457 and 462 of Zambia National Commercial Bank Plc's bundle of documents. 5.50 Others were said to be at pages 1, 6, 8, 12, 16, 17, 18-19, 20-21, 23, 25, 27, 32, 33, 35, 38, 41, 44-45, 49-50 , 51, 57, 60, 65, 71, 74, 83, 86, 88, 89-90, 91, 94-95 and 99 of Zambia National Commercial Bank Plc's supplementary bundle of documents. 5.5 1 It was submitted that following the attesting and consenting to the 2018 or 2020 conditions of service, the 1st to 97th Plaintiffs applied for Early Retirement under the new conditions. 5.52 Their applications were stated as being at pages 24, 29, 34, 41, 46, 53, 58, 65, 72, 77, 84, 89, 99, 104, 109, 114, 119, 124, 129, 134, 139, 145, 150, 155, 160, 165, 170, 176, 182, 187,192,198,203,209,214,219,224,229,234,248,253, 259,264,269,276,281,287, 292,297,304, 309,314,319, 325, 436, 442, 448, 453, 458 and 463 of Zambia National Commercial Bank Plc's bundle of documents, and pages 2 - of Zambia National Commercial Bank Plc's supplementary bundle of documents. 5.53 Further submission was made, that the said Plaintiffs were retired, and were paid in accordance with either the 2018 or 2020 conditions. Then Beauty Moala Sanene, the 98th Plaintiff, Mubita Ilukena the 99 th Plaintiff, Elishon J90 Chakulunta, the 100th Plaintiff, Mwangala Mbangweta, the 101st Plaintiff, Florence Songiso, the 102nd Plaintiff, James Mukwangwa the 103rd Plaintiff and Charity Masebo, the 104th Plaintiff left employment by way of redundancy. 5.54 Also submitted, was that Grace Musinga, the 106th Plaintiff, Lewis Kafula, Veronica Katalilo, Roydah Tembo, Frank Chilufya, Sharon Siakalima, Gift Nawa, Jessie Mwale, Nelly Lisimba, Berry Mwansa, Peter Muyobe, Eugene Kasofu and Stephen Chirwa, the 107th to 118th Plaintiffs, also left by way of redundancy, having accepted the conditions, and they were all paid their benefits. 5.55 Pages 44-62, as well as 65-102 of Zambia National Commercial Bank Plc's bundle of documents were referred to, in t hat regard. 5.56 The submission was also that Abel Chama, the 105th Plaintiff resigned on 2nd May, 2018, and that Zambia National Commercial Bank Plc accepted his resignation as evidenced at page 63-64 of its' supplementary bundle of documents. 5 .57 Note was made that DHR/ 12/96 did not provide for Early Retirement, with the submission that it was only introduced under the 2018 Conditions of Service. It was also stated that this action was commenced on 12th July, 2021, and by the amended Writ of Summons, which was dated 8 th November, 2022, Thirty-Six (36) Plaintiffs were joined to these proceedings. 5.58 The submission was that the Plaintiffs claim that they should have been paid under DHR/ 12/96 Conditions of J91 Service, and not under the 2018 or 2020 conditions. Further, that their packages should have included housing allowance in the computation. 5.59 The cases of Wilson Masauso Zulu v Avondale Housing Project f4J and Khalid Mohammed v The Attorney General f2J were cited, as having h eld that a party who alleges must prove their case. It was further submitted that in the case of Galaunia Farms Limited v National Milling Corporation Limited f13J the Court held that failure of one party's case, does not automatically entitle the other party to a Judgment. 5 .60 The contention was that DHR/ 12/96 Conditions of Service were not before Court. However, the submission was that the said conditions of service only applied to non-represented staff who were in Management at the relevant time. 5.61 Still in submission, it was stated that the Supreme Court had in a number of cases observed that the 1996 Conditions of Service were amended, with the recent case being Zambia National Commercial Bank Plc v Ernestina Sakala and 62 others (31J. 5 .62 It was submitted that in that matter, the Plaintiffs were dealt with in accordance with th e 2018 and 2020 Conditions of Service, and that the Supreme Court, held that terminal b enefits could only be paid in line with the conditions of service which were applicable at the time. 5.63 Contention was made, that this was also the position that the Supreme Court took in the case of Zambia National Commercial Bank Plc v Geoffrey Muyamwa and 88 J92 others f28J where the Plaintiffs conditions of service were initially governed by the ZIMCO Conditions of Service, under which the computation of terminal benefits was done, based on t h e basic salary and allowances. 5.64 Thereafter the Appellant, who was Zambia National Commercial Bank Plc, introduced its' own terms and conditions of service, which did not include allowances in the computation of the terminal benefits. The Respondents contracts of employment were thereafter terminated for reasons which included voluntary separation, and in line with the prevailing terms and conditions of service. 5.65 It was stated that the Supreme Court in that matter, held that the Respondents plight upon migration to the ZANACO conditions of service, which they did so freely and willingly saw them lose the right to benefit from the Penza letter, and heir terminal benefits were to be computed in accordance with their conditions of service, at the point that they exited employment, which did not provide for the inclusion of allowances in computing their terminal benefits. 5.66 Submission was made, that Lupiya Peter Sakala and the others were made aware, when the conditions of service were changed by virtue of the memorandum which was at page 221 of Lupiya Peter Sakala and the others supplementary bundle of documents. It was stated that the said memorandum introduced Early Retirement which did not exist in the 1996 Conditions of Service. J93 5.67 Then in the memorandum which was at page 20 of Volume 1 of Zambia National Commercial Bank Plc's bundle of documents, Early Retirement was explained, as well as who could apply for it, and how, and what would happen when the application was accepted, among things. 5 .68 It was contended that Lupiya Peter Sakala and the others attested to and consented to the 2018 or 2020 Conditions which introduced Early Retirement, and the said attestation stated that the person attesting, fully understood and accepted the new terms and conditions of their employment, without u ndue influence, and they signed. 5.69 Then for those that applied for Early Retirement like Lupiya Peter Sakala, as seen at page 25 of Zambia National Commercial Bank Plc's bundle of documents, he signed that he had read and understood its' contents, and he accepted the terms and conditions of his separation, as regards the formula and the principal that was applied towards the computation of his final terminal benefits. 5.70 Further, that arising from there, he had no further claims whatsoever against Zambia National Commercial Bank Plc out of the payment of h is terminal benefits whatsoever. 5 . 71 With reliance being placed on the case of Toll (Fgct) pty Ltd v Alphapharm pty Ltd f1 4J, it was submitted that it is trite, that a signature is a declaration that one agrees to the t erms stated therein, and to affect legal relations, and is bound by those terms. J94 5 .72 Also relied on, was the learned authors, Winnie Sithole Mwenda and Chanda Chungu 1n the book, A Comprehensive Guide to Employment Law in Zambia, Lusaka, University of Zambia Press, 2021 at page 141 stating they state as follows: "Thus, under Zambian law, all that is required is that changes to the terms and conditions of service in the employment contract must be lawful and consented to by the employer and employee. A contract of employment, like any ordinary contract, is the outcome of consent of both parties and cannot be varied without the consent of each party." 5.73 The case of Zambia National Commercial Bank Plc v Ernestina Saka la and 62 others <311 was said to have dealt with a matter which was similar to this case. It was noted that the Supreme Court in that matter, found that the Appellants made the applications to go on Early Retirement on the strength of the amended statutes which provided for Early Retirement, and not on the strength of their conditions of service. 5 .74 It was further submitted that the Supreme Court found that the amended statutes could not be applied retrospectively to the Respondents, and by retiring at the age of Fifty-Five (55) years, which was normal r etirement in terms of their conditions of service, they received their full benefits. However, their colleagues who left on the Voluntary J95 Separation Scheme received a package under that scheme, and not the full pension benefits. 5.75 Further note was made, that the ex-gratia payment was only an additional benefit to employees who left under the Voluntary Separation Scheme, and that the only employees who were eligible or qualified to go using the Voluntary Separation Scheme were those who were aged Fifty-One (51) years and below, and those who retired had already exceeded the maximum age. 5.76 On the question of acquiescence by an employee to the variation of their conditions of service, the case of R ichard Muse nye sa v Indo Zambia Bank Li mite d (27Jwas relied on. It was submitted that in that matter, the Supreme Court held that where the evidence reveals that there was clear notice by an employer on the variation of the conditions of service, and the employee with full knowledge of the said variations, opted to continue in employment, notwithstanding that their terminal benefits would be at a reduced package in the event of exiting employment, such as redundancy or retirement, then they would have acquiesced to the variation of the conditions of employment. 5.77 It was stated that Richard Musenyesa was successful, in that case, as the Respondent did not communicate the variation to the conditions of service. However, in this case, Lupiya Peter Sakala and the others were made aware of the changes to their conditions of service, and they even acknowledged J96 and accepted the same before they applied under the same conditions. 5.78 Thus, as there was no provision for Early Retirement under DHR/ 12/96, Lupiya Peter Sakala and the others could not claim payment under the same. 5.79 It was also submitted that the 1995 Collective Agreement, which was at pages 106- 114 of Zambia National Commercial Bank Plc's bundle of documents, and the 2013 Conditions of service did not provide for housing allowance to be included in the computation of separation packages. The contention was that Clause 8. 9.2 at page 67 of Lupiya Peter Sakala and the others bundle of documents, provided that Unionized employees would not be paid additional housing allowance, as it was included in their basic salary. 5.80 The submission was also that Clause 6.11 of the Remuneration and Benefits Policy, which was at page 1 17 of Zambia National Commercial Bank Plc's bundle of documents, provided that staff who were promoted from the Union to Management, would be awarded a 20% increase on the gross salary, and that those employees who were promoted from Band 5 to 4 would be awarded a 10% salary increase on their gross salary. 5. 81 The case of Lawrence Muyunda Mwalye v Bank of Zambia r10J was quoted as having held that: "The 1994 Collective Agreement was by law provided for in the Industrial and Labour Relations Act, meant to benefit the unionized \ \ J97 employees of the Defendant Bank, and could not by any stretch of imagination be extended to a non unionized employee of the Defendant ..... At this stage, we would caution that it is too late for a non-unionized employee to condemn the lack of or inadequate conditions of service on severance. While in employment, it is important for non-unionized employees to work hand in hand with their employers to ensure that the conditions of service which they work under are properly formulated for their mutual benefit so that on severance of employment, they are not made to grop in the dark for their entitlement .... The redundancy was initiated by the Plaintiffs and all the Defendants did was to formalize it." 5.82 The contention was th a t in this m atter, Lupiya Peter Sakala and the others left em p loyment under various modes, and t h at some of them were already in Managemen t, w hile some of them wer e appointed from the Union into Man agement at some p oint. It was stated that for those who wer e promoted from t h e Union into Management, they were not entitled to be p aid h ousing allowance on b eing p romoted into managem ent. 5.83 Further , t h ose who left via Early Ret irement applied and in itiated the process on t h eir own volition. 5.84 It was accordingly sub m itted that th e claims by Felix Mutale, the 15th Plaintiff, Muyembe Nkhoma, the 19th Plaintiff, E dna \ J98 Sichalwe, the 20th Plaintiff, Patrick Simukwanya, the 27th Plaintiff, Frederick Makofi, the 29th Plaintiff, Sylvester Ngoma, the 31 st Plaintiff, Getrude Chileshe, the 41 st Plaintiff, Mary Mukosha, the 49th Plaintiff, Florence Mulenga, the 50th Plaintiff, Caristus Mainza, the 53rd Plaintiff, Liberator Nyirenda, the 54th Plaintiff, Joseph Kaselenge, the 56lh Plaintiff, Judith Banda, the 61 st Plaintiff, Mumba Mulolo, the 68th Plaintiff, Judith Phiri, the 79lh Plaintiff, Chisha Mumba, the 83rd Plaintiff, Abner Chenda the 88th Plaintiff, Makanda Katundu, the 90th Plaintiff, Levis Mgawa Zulu, the 91st Plaintiff and Ngosa Chella, the 93rd Plaintiffs could not stand. 5.85 It was stated that this extended to Beauty Moola Sanene, the 98th Plaintiff, Mubita Ilukena the 99th Plaintiff, Elishon Chakulunta, the 100th Plaintiff, Mwangala Mbangweta, the 101st Plaintiff, Florence Songiso, the 102nd Plaintiff, James MJ kwangwa the 103rd Plaintiff, Charity Masebo, the 104th Plaintiff, Grace Musinga, the 106th Plaintiff, Lewis Kafula, Vei;onica Katalilo, Roydah Tembo, Frank Chilufya, Sharon Siakalima, Gift Nawa, Jessie Mwale, Nelly Lisimba, Berry Mwansa, Peter Muyobe, Eugene Kasofu and Stephen Chirwa, the 107th to 118th Plaintiffs respectively. 5.86 Thi n for the 84th , 86th, 99th, 100th, 108th, 109th, 111th, and 119th Plaintiffs, their claims for the payment of housing allowance were statute barred, as more than Six (6) years had elapsed since they were promoted into management. In J99 this regard, Section 2 (a) of the Limitation Act 1939 was r elied on. 5 .87 The cases of Printing and Numerical Registering Company v Simpson (1J and National Drug Company Limited and Zambia Privatisation Agency v Mary Katongo (l l J were cited as auth ority where the Courts held t hat where the parties have freely and voluntarily entered into con tracts, t hey s h a ll b e enfor ced by the Courts. 5.88 Further su bmission was m ade that the Supreme Court in the case of Finance Bank Zambia Limited and Rajan Mahtani v Simataa Simataa t2 9Jwith regard to s ettlement agreements h eld t h at: "A settlement agreement, like any other agreement, is amenable to the core principle of English law applicable in this country, namely the need to preserve the value and sanctity of contracts .... We have already stated that the voluntary settlement of civil disputes finds high judicial favour. This Court, as should all other Courts faced with civil litigation of a purely private nature, strives assiduously to promote amicable settlement of disputes for the most wholesale of reasons, and in the process to preserve the sanctity of contracts, which as we have already stated, is a cardinal principle of English law." JlOO 5 .89 It was also stated, relying on the cases of Mwamba v Nthenge and 2 others (23) and Colgate Palmolive Zambia Inc v Abel Shemu Chuka and 10 others (15) that in the absence of undue influence, parties who contract freely and voluntarily, are bound by the terms of t he contr act, and it is the duty of the Court t o enforce them. 5.90 Th erefore, as t he Supreme Court in the case of Zambia National Commercial Bank Plc v Ernestina Sakala and 62 others (31) held t h at the Appellants were estopped by their conduct of acqu iescence, to the change to their conditions of service, it equally followed that the same applied to Lupiya Peter Sakala and the others in this case. 5. 91 The case of Barclays Bank (Z) Plc v Mutambo and another (30 ) was s t ated, as where the Court of Appeal held that evidence on matters which are not pleaded can only be cohsidered by the Cou rt, wh ere there is an amen dment to I l the pleadings or if raised in the evidence wher e there is no objection to such evidence being led. Further, that where mat ters are objected to, th e Court can still use it in its' discret ion, if it considers it useful for the r esolution of t he issues in contention. 5.92 Thus, the argumen t was t h at submissions should not be use1d as an avenue to r aise issues which were n ot pleaded , but that they s h ould only serve to outline the evidence which a litigant believes the Court should con sider, for the ends of justice to be met. J101 CONDITIONS OF SERVICE WHICH WERE APPLICABLE TO LUPIYA PETER SAKALA AND THE OTHERS 5 .93 From the pleadings and the submissions in this matter, it can be seen that the claims that have been made by Lupiya Peter Sakala and the others, s tem from what conditions of service were applicable to them. 5. 94 Lupiya Peter Sak a la and the others have agreed that those who were employed straight into Management were en titled to be paid housing allowance at Sixty (60) percent of their basic salary. Then for those who were promoted from the Union into Management, they were not paid the housing allowance at Sixty (60) percent of their basic salary, as it was consolidated into their basic salaries. 5. 95 Lupi ya Peter Sakala and the others however argued that while this was the position, this policy was applied d~fferently, as Minyoi Mwiya who was promoted from the Urion into Management in Band 6, as per her letter dated 7 th February, 2013, which was at page 79 of Lupiya Peter Sakala and the others bundle of documents, was informed ij that letter, that her conditions of service would also be gJ verned by DHR/ 12/96, and that she would be paid h busing allowance at Sixty (60) percent of her basic salary. 5.96 It \was further argued that Yangwase Mkwananzi who was given a letter of promotion from the Union into Management, which was dated 3rd April, 20 13, as seen at page 81 of Lupi ya Peter Sakala and the others supplementary bundle of documents, was in that letter, notified that her appointment J102 was in Band 6, and therefore she was not eligible to be paid housing allowance, as it was consolidated into her basic salary. 5.97 Then as seen at page 82, Yangwase Mkwananzi was on 10th May, 2013 given another letter of appointment into Management, which backdated her appointment to 1st January, 2013, and she was informed that she would get housing allowance at Sixty (60) percent of her basic salary. 5.98 Frank Chilufya whose appointment letter is at page 83 of the said bundle of documents, and is also dated 10th May, 2013, was informed that he was not entitled to the payment of housing allowance, as it was consolidated in his basic salary. His appoint ment was in Band 5. 5.99 Levis Zulu whose appointment letter is at page 79 of t he said bundle of documents, and is dated 19th February, 2014, was informed in that letter, that his appointment into management was in Band 7, and that he was not eligible to be paid housing allowance, as it inherent in his basic salary. 5. l OOThe defence by Zambia National Commercial Bank Plc is that DHR/ 12/96 was amended over the years, and further there was a 2013 Remuneration and Benefits Policy, under which staff who were promoted from the Union into Management were not eligible to be paid housing allowance, as it was consolidated into their basic salaries as Unionized employees. 5.101 I note that Zambia National Commercial Bank Plc submitted that the DHR/ 12/96 Conditions of Service were not before J103 Court, but the witness Lupiya Peter Sakala in cross examination stated that the said conditions of service were before Court, but not Appendix H. At pages 209-220 of Lupiya Peter Sakala and the others bundle of documents is DHR/ 12/96 for Non-Represented Staff. 5.102 Under that document, basic salary was defined as: "Means an employee's basic salary not including allowances of any kind." 5.103 It also defined allowance as: "Means any payment other than the basic salary made to an employee or an institution on his/her behalf as part of his/her entitlement." 5.104 Then retirement was defined as: "Means termination of an employment contract on attainment of the stipulated retirement age or twenty-five (25) years continuous service before the normal retirement age at the discretion of management." 5 .105 Severance Scheme was defined as: "means termination of an employment contract other than on disciplinary grounds at the will of the Bank before attainment of the stipulated retirement age or service provided that the employee concerned has continuously served for a minimum of twenty (20) years continuous service or the attainment of the age of 50 years and the J104 benefits shall be computed in accordance with the Bank's severance scheme." 5. 106 ln respect of housing allowance, Clause 6. 5 provided as follows: "6.5 HOUSING ALLOWANCE 6. 5.1 The Bank shall not provide residential accommodation to its' employees. Instead, a housing allowance of 60% of monthly basic salary shall be paid to all employees. 6. 5.2 However, in the case of employees transferred at management's discretion from one town to another, the Bank may provide accommodation for a maximum period of three (3) months, after which time they will be required to pay economic rent." 5 . 107 For retirement, Clause 13 stated that: "13. RETIREMENT 13. 1 NORMAL RETIREMENT An employee may be retired on attaining the pensionable age which shall be fifty-five (55) years or on attainment of twenty-five (25) years continuous service with the Bank. The retirement benefits shall be paid in accordance with the Bank's pension scheme." 5.108 Then Clause 13.3 provided for the Severance Scheme which stated that: nos "Where an employee is placed under the Bank's severance scheme, benefits will be indicated in Appendix H." 5.109 Appendix H was not pr oduced. 5. 110 As for redundancy, it stated that: "When undertaking a redundancy exercise, the Bank shall take into account the prevailing labour laws, the employees age, experience, qualifications, length of service, disciplinary record, efficiency, etc. Employees declared redundant shall be entitled to three (3) months' notice or in lieu thereof and redundancy benefits of two months' basic salary for each completed year of service." 5.111 Zam bia National Commercia l Bank Plc submitted that t hese con ditions in DHR/ 12/96 were revised over time by the Circu lars which were issued in 1999 and 20 11. Then in 2018 and 2020 the Conditions of Service were further revised. 5.112 f t p age 4 69 of Zambia National Commercial Bank Plc's bundle of documen ts is the 1999 Circular. It read as follows: CIRCULAR TO FROM ALL NON-REPRESENTED STAFF DIRECTOR-HUMAN RESOURCES SUBJECT REVIEW OF CONDITIONS OF SERVICE DATE REF AUGUST, 1999 DHR/MEN/RCM Subsequent to the adjustment of Monthly Basic Salaries for non-represented staff which were effected 1 st J106 February, 1999, and the recent restructuring of the pay slip which has seen the rationalization of allowances, it has been found necessary to review some Conditions of Service as follows: 1. Your monthly basic salary has been adjusted by loading 36% of the current allowances 2 . Housing allowance remains the same at 60% of monthly basic salary 3 . Personal loan entitlement has been adjusted to 25% of annual basic salary 4. Car loan entitlement remains at the same lX Annual Basic Salary 5 . House Loan entitlement has been adjusted to 3 X Annual Basic Salary 6 . Group Life Assurance has been adjusted to 2 X Annual Basic Salary 7. Severance Scheme Number of years . 1-10 - 1.5 X Monthly basic s alary for each completed year of service . Over 10-20 - 2 X Monthly basic salary for each completed year of service . Over 20 - 2. 5 monthly gross salary for each completed year of service The re view is effective from 1 st August, 1999 and is in line with Clause number 1.2 of the Conditions of Service Document Number DHR/12/ 96. The other conditions of service remain the same." M. B NYATHANDO J107 5 . 113 Then the 2011 Circular read as follows: CIRCULAR HRTD / 03/2011 TO FROM ALL MEMBERS OF STAFF ACTING DIRECTOR-HUMAN RESOURCE AND TRAINING DATE FEBRUARY 25, 2011 SUBJECT NEW VOLUNTARY SEVERANCE SCHEME AMENDING CIRCULAR NUMBER HRTD / 07 /2009 At the meeting held on 26th October, 2010, the Human Resources Committee of the Board approved a review of the Voluntary Severance Scheme for both Represented and Non-Represented Staff. The formula for computation of the Voluntary Severance benefits has been reviewed from Monthly Basic Salary to Monthly Gross pay i.e Basic Salary plus housing and fuel allowance for Managerial Staff and upkeep allowance for Represented Staff (Recurrent/Regular Allowances paid through the payroll) with immediate effect. NEW VSS COMPUTATIONS FORMULAE The formula for VSS computations which will be on Monthly Gross Pay will be as follows: (a) Represented Staff (Unionized) I I BAND 1-10 years FACTOR 2.0 MULTIPLIER Monthly Gross Pay for eac h completed year of service. Excess service of s ix (6) months and above J108 20 + years 2.4 will be computed on a pro-rata basis Monthly Gross Pay for each completed y ear of service. Excess service of six (6) months and above will be computed on a pro-rata basis This being a negotiable item enshrined in the Collective Agreement, we engaged with the Union on the amendments and agreement was reached w ith the Union as approved by the Board. (b)Non-Represented Staff (Management) BAND 10 years FACTOR 0 . 83 MULTIPLIER Monthly gross Pay for each completed year of service Over 10 y e ars up 1. 11 Monthly gross Pay to 20 years for each completed year of service Over 20 years 1.40 Monthly gross Pay for each completed year of service I Eligibility For staff to be eligible for separation under the Scheme, the following criteria will apply: J109 (a) Qualifying Period The qualifying period for separation will be 10 years for both Represented (Unionized) and Non Represented (Management Stafj} (b) Maximum Age Limit Applicants must be Fifty-one (51) years of age and below (c) Disciplinary Record All applicants must not have a valid disciplinary record Please note that separation under the Voluntary Severance Scheme is at the sole discretion of Management. PRE-RETIREMENT TRAINING Staff whose applications will be approved for separation under the scheme will be provided with pre-retirement training through workshops to equip them with skills to manage their affairs after service with the Bank for their future settlement. IMPLEMENTATION The VSS application window opens on Monday 28th February, 2011 , and closes on Friday 4 t h March, 2011 . Staff who wish to be separated under the Scheme need to apply to Human<Resources through their respective Divisional Heads. Appropriate communication will be sent to all applicants following an assessment of each individual's application. Kindly be guided accordingly. DAVID NDUMBA --- JllO 5 .114 At pages 103-11 1 of Zambia National Commercial Bank Plc 's supplementary bundle of documents, is t he Collective Agr eement between the Zambia Bankers (Employers) Association and the Zambia Union of Financial Institutions and Allied Workers, dated 23rd May, 1997, which was effective 1st August, 1995. 5.115 Clause 15 of that Agreement provided for Housing Allowance by stating that: "HOUSING ALLOWANCE Housing Allowance shall be incorporated into the basic salary from 31s t August, 1996. This means therefore that housing allowance will henceforth become part of the basic salary." 5.116 Then at pages 112 of Zambia National Commercial Bank Plc's supplementary bundle of documents, is the HRT Policy-07 Remuneration and Benefits Revision Document. Clause 2 of that agreement, provided that it applied to all non-unionized employees, and that Unionized employees' salaries review was as per the Collective Bargaining Agreement. 5 . 117 In Clause 6.11, it provided for promotions from the Union to I Management which has been seen above. 5.118 At pages 1-20 of Zambia National Commercial Bank Plc's second supplementary bundle of documents, is the Staff Conditions of Service 2013 for Non-Represented Staff. In Clause 8.2, there was provision for the payment of housing allowance as follows: Jlll 8.2.1 The Bank shall not provide residential accommodation to its' employees. Instead, a housing allowance of 60% of monthly basic salary shall be paid to all employees. 8.2.2 In the case of Unionized employees, housing allowance is consolidated into the basic salary. therefore, on promotion into management, this category of employees will not be eligible to an additional housing allowance of 60% of the basic salary as defined in 8. 9.1." 5. 119The 20 18 Conditions of Service are at pages 190-208 of Lupiya Peter Sakala a nd th e others bundle of documents. It defined allowance and basic salary as in DHR/ 12/96 and retirement as termin ation of the employment contract upon an employee reachin g t he s tatutory retirement age. 5 . 120 In Cla use 24, the following were the provisions as regards retirement: "24.0 RETIREMENT 24.1 NORMAL RETIREMENT An employee may be retired on attaining the pensionable age which shall be sixty (60) years. Employees who were in employment as at 5 th January, 2016 may retire at 55 years preserved by giving at least 12 months' notice. The retirement benefits shall be paid in accordance with the Bank's pension scheme. The Bank shall further pay, upon J112 normal retirement an ex-gratia benefit as set out in Appendix B to all permanent and pensionable employees who joined the Bank before 1st July, 2013. 24.1 . lAny contract employees in Grades 10 and 11 who may have been converted into permanent and pensionable shall upon retirement be paid ex-gratia for the years of service from the date of conversion to retirement." 5.121 Appendix Estated that: "Appendix E Ex-Gratia Payment The Higher of: . Monthly Gross Salary X number of years served x factor of 0 .58 . Monthly Basic Salary x number of years served 5.122 Then Clause 25.0 provided for the Early Retirement Scheme as follows: "Subject to the Bank Pension Scheme Rules, the NAPSA rules and other prevailing legislation on pension and terminal benefits, an employee on attainment of the age of 50 or having served the Bank for a period of not less than 10 continuous years may apply for early retirement from employment of the Bank which may be approved at management's discretion." J113 5.123 The payment under the Early Retirement Scheme has been tabulated in paragraphs 4.45 and 4.91 above. 5.124 Then at page 187 of Lupiya Peter Sakala and the others bundle of documents is a memorandum dated 15th November, 2018, which advised that the window for applications for Early Retirement had opened on that date, and would close on 30th November, 2018, for those who were to exit in 2019. It also advised on the criteria and the package for Early Retirement. 5.125 It is also noteworthy, that at page 188 of the said bundle of documents, is a memorandum dated 22 nd October, 2015, which advised all staff on the amendment to the National Pension Scheme Act, and that as a result of the adjustment to the normal retirement age, from Fifty-Five (55) to Sixty (60), Fifty-Five (55) years would be early retirement while Sixty-Five (65) years would be late retirement. 5.126 The Circular further advised that in light of the adjustment to the retirement age, the Staff Loans Policy had been amended, with staff mortgages now being calculated at the I lower of 20 years or years to 60 years, and that the other conditions of service which may be impacted would be cothmunicated following a meeting of the ZANACO Pension Scheme Board of Trustees. 5.127The 2020 conditions of service which are at pages 121-141 of Zambia National Commercial Bank Plc's supplementary bundle of documents, were effective 1st January, 2020 , and was applicable to Non-Represented Staff, Permanent and J114 Pensionable Grades 6-11, including contract non-Zambians. It defined basic salary, monthly gross salary and retirement as in the 2018 conditions. 5 .128 Under Clause 9. 1, provision was made for housing allowance and under Clause 9.1.2, it stated that employees would be provided with housing allowance or mortgage to purchase or construct a house. Further, that housing allowance would not be paid to employees who were on a consolidated package. 5. 129 Early Retirement was provided in Clause 16. 1, as stated in the 2018 conditions, while Clause 18.1 stated the redundancy package as provided in the 2018 conditions of service. The Early Retirement package was stated in Appendix C as follows: 1-10 years of service 0.70 x monthly gross salary for each completed year of service 11-20 years of service 1.1 x monthly gross salary for • i each completed year of service 21-30 years of service 1.3 monthly gross salary for I each completed year of service I 5.130 What is clear from the evidence, is that Lupiya Peter Sakala and the others were promoted from the Union into Management. The contention by Zambia National Commercial Bank Plc is that the following Plaintiffs, being Clement Kapila, the 2nd Plaintiff, Jenipher Siyumbwa, the 3 rd Plaintiff, Josephine Chileshe the 9 th Plaintiff, Muyembe Nkhoma the 18th Plaintiff, Josephat Ngombe, the 23 rd JllS Plaintiff, Justine Lukwesa, the 35th Plaintiff, Edward Chungu, the 36th Plaintiff, Raphael Khoza, the 43rct Plaintiff, George Wekelezi, the 44th Plaintiff, Jessie Chakufyali, the 46th Plaintiff, Dolly Chambwa the 4 7 th Plaintiff, Agness Kamanga, the 64th Plaintiff and Christopher Tembo, the 76th Plaintiff are the only ones to whom DHR/ 12/96 applied, as they were in management at the time that those conditions of service were introduced. 5.131 The contention was that for the rest of the Plaintiffs, it is the amended conditions that applied to them, as they were not in Management when DHR/ 12/96 came into force. 5.132 As the evidence shows that DHR/ 12/96 was amended and the 2013, 2018 and 2020 conditions were introduced, the question that arises, is whether those amendments and conditions of service are applicable to the Plaintiffs who were not initially in management when DHR/ 12/26 came into force in 1996, as well as to those Plaintiffs who were 1n management when DHR/ 12/96 was introduced? 5.133 It is trite that a contract of employment sets out the terms and conditions of the employment relationship. They can be oral or in writing. It is also true, that legislation which regulates employment is by default applicable to all contracts of employment. Where employees are unionized, the terms of collective agreements are also binding as terms of their employment contracts. 5.134 When it comes to variation of a contract of employment, the employer may only do so with the consent of the employee. Jl16 Thus, in the case of Dickson Zulu & others v Zambia State Insurance Corporation f1 7J the Supreme Court held t hat where the employer alters or changes the conditions of service, and the employee does not protest or raise any issues about the application of the conditions, they cannot subsequently complain of the new conditions of service which are drafted to their disadvantage. 5 .135 This position was reiterated in the case of Charles Nyambe & 82 others v Buks Haulage f2SJ. Accordingly, where an employee does not protest against a unilateral variation of the terms and conditions of employment, they are deemed to have acquiesced to the variation, as was held in the case of Richard Musenyesa v Indo Bank Zambia Limited f27J. 5.1 36 It will further be seen that this position was reiterated in the case of Zambia National Commercial Bank Plc v Ernestina Sakala and 62 others f31J. 5 .137 The learned authors Winnie Sithole Mwenda and Chanda Chungu in the book, A Comprehensive Guide to Employment Law in Zambia, the University of Zambia Press, 2021 at page 141 ref er to the case of Farrant v The Woodroffe School f8J, stating that it laid down the following guidelines for obtaining the consent of employees before varying t heir conditions of employment: (a) Cons ult fully with the employee; (b) Give reasonable and due consideration to any object ions; and (c) Obtain the consent of the employee. Jl17 5.138 Thu s, 1n the case of Zambia Telecommunications Company Limited v Newtone Mweetwa and Ninety-Three others f2 0J the Supreme Court found that while two circulars were issued which had the effect of altering a Clause in the collective agreement which related to car allowance, there should have been dialogue between Management and the Union, so that the Union could have explained the change to its' members. 5.139 Therefore, as Management did not take steps to consult with the employees, it was found that t here was unilateral variation of the conditions of service, which was adverse, and which amounted to a redundancy. This was the position that was taken in the case of Mike Musonda Kabwe v BP Zambia f6J. 5 .140 However, the Supreme Court in a number of cases, among them, Hambali M. Hantotola v the Council of the University of Zambia f26J and Zambia National Commercial Bank Plc v Misheck Chanda f2 4Jwith the latter case, being where the employees continued to work for years after their conditions of service were varied to exclude allowances from the computation of their terminal benefits, and they did not object t o the changes after being notified, held that the employees had acquiesced to the change to their conditions of service. 5.141 In this case, Lupiya Peter Sakala and the others argued that that did protest against the changes that were made to their conditions of service, and the lack of uniformity in the J118 payment of housing allowance for staff who were promoted from the Union into Management. 5.142 With regard to the protest to the changes to their conditions of service, pages 45-46 and 4 7-52 of Lupiya Peter Sakala and the others supplementary bundle of documents were referred to. 5.143 In relation to the payment of housing allowance in a discriminatory manner, example was given that Minyoi Mwiya was paid housing allowance on being promoted into Management from the Union, while Lupiya Peter Sakala and the others were not. 5.144 Pages 45-46 of Lupiya Peter Sakala and the others supplementary bundle of documents is a letter dated 18th May, 2015, to the Director Human Resources & Training Division of Zambia National Commercial Bank Plc which was an appeal by Management staff over the revised conditions of service with regard to Ex-gratia, Debt Ratio and Transport Policy. It was noted that the Director Industrial Relations and the Director Human Resources & Training had either neglected or refused to attend to the petition. 5.145At pages 47-48 of the same bundle of documents, 1s a memorandum dated 15th April, 2015, to the Managing Director of Zambia National Commercial Bank Plc from concerned staff, over the revised conditions of service relating to the loan debt ratio, car scheme loan, and ex-gratia application. J119 5.146 Then t h e em ail corresponden ce at pages 1- 17 of Lu piya Peter Sakala and the other s second supplem ent ary bu ndle of documents, shows that the Hu m an Resources department was engaged, as late as December, 2 0 17 over the non paym ent of h ousing allowance t o those employees who were promoted from the Union into Management. 5.14 7 There is nothin g else on the recor d to s h ow that when the Conditions of Service to DHR/ 12/96 were amended which saw t h e in troduction of the 2 0 18 and 2020 condit ions of service, there was any protest by Lup iya Peter Sakala and th e others. 5.148 Therefore, while ther e was protest to th e con d itions of service prior to the introduction of the 2018 and 2020 conditions of service, those con d it ions of service were not protested to. 5.149 In the case of Zambia National Commercial Bank Plc v Ernestina Sakala and 62 others f31J, t h e Supreme Court stated as follows: "At this point, we wish to begin by quoting a passage from the work titled Selwyn's Law of Employment, 14th edition. There, the learned author, N. M. Selwyn, writes: "C. Variation of contractual terms 3.92 The terms of the contract of employment may only be varied with the consent of both parties, and there is no power which enables one side to act unilaterally, unless the contract unambiguously provides for a J120 unilateral variation. It follows that a unilateral variation which is not accepted amounts to the repudiation of the contract. Thus, if an employee is demoted, this will be repudiatory conduct by the employer, and a consequent resignation by the employee will be an acceptance of the repudiation and hence, in law, a dismissal by the employer (see Marriott v Oxford and District Co Operative Society /No. 2]). But if, subsequent to the variation, the employee stays on with the firm for a considerable length of time, it is likely that he will be regarded as having accepted the change, and the modified contract will be in existence. Where an employee protests about the change, but continues with the employment, it is a question of fact in each case as to whether or not he has accepted it (albeit under protest). If an employee continues to work under revised terms and conditions, albeit under protest, for a considerable length of time, it will be extremely difficult to conclude other than that he has accepted the revised terms". HOUSING ALLOWANCE 5 .150 Lu piya Peter Sak ala a n d th e oth ers are on recor d in this m atter, as h aving con tin ued in employment a fter they J121 protested against the non-payment of housing allowance. They thereafter exited employment using various modes and have now contended that they did not agree to be paid housing a llowance which was consolidated in the basic salary, and not as a separate allowance. 5.151 Further their contention is that they have accrued rights under DHR/ 12/96 such that they are entitled to be paid according to the Conditions of Service as set out therein. The Circulars which I have referred to above, for 1999 and 2011 are clear that DHR/ 12/96 conditions of service were being varied. 5.152 Therefore, it is immaterial that the appointment letter for Minyoi Mwiya which is dated 7 th February, 20 13 , did not refer to the amendments to DHR/ 12/96. 5.153 Zambia National Commercial Bank Plc referred to the remuneration policy of 2013, stating that it provided that s taff who were promoted from the Union into Management were not eligible to be paid housing allowance, as it was inherent in their basic salaries, pursuant to the 1995 Collective Agreement. 5.154However, the argument by Lupiya Peter Sakala and the others, is that the said Collective Agreement had a life span of Two (2) years. That Collective Agreement which is at pages 103-114 of Zambia National Commercial Bank Plc's supplementary bundle of documents is dated 16 t h October, 2004, and was entered into on 23rd May, 1997. J122 5.155It was for a period of Twenty-Four (24) months commencing 1st Au gust, 1995. Clause 15 of that agreement, provided that housing allowance was incorporated into the basic salary v.rith effect from 31 st August, 1996. 5.156The Remuneration Policy for Non-Unionised staff is at pages 112-120, with Clause 6 . 1 providing for promotions from the Union into Management. 5.157 At page 85 of Lupiya Peter Sakala and the others supplementary b u n d le of documents, is the Collective Agreement which was signed on 28th February, 2014. Under that collective agreement, basic salary was defined as: "An employee's monthly basic salary excluding allowances and any other cash benefits." 5.158 That collective agreement was for a duration of Twenty-Four (24) months effective 1s t January, 2014 . Noteworthy is that under that collective agreement, there was no provision for the payment of housing allowance. 5.159Therefore, while the remuneration policy of 2013 was that staff who were promoted from the Union into Management were not entitled to be paid housing allowance as it was incorporated into or inherent in their basic pay, the Collective Agreement which was effective 1st January, 2014, did not provide for the payment of housing allowance, which was incorporated into the basic salary for Unionized staff effective that date. 5.160 It consequently follows, that those Unionized staff who were promoted from the Union into Management after that date, J123 ordinarily were receiving a basic salary which did not have housing allowance consolidated into it. 5.161 The letter of appointment for Minyoi Mwiya, which is at page 80 of Lupiya Peter Sakala and the others supplementary bundle of documents is dated 7 t h February, 2013 . Then the two letters for Yangwase Mkwananzi which are at pages 81 and 82 of the said bundle of documents, are dated 3 rd April, 2013 and 10th May, 2013, respectively, while the one at page 83 for Frank Chilufya is dated May, 10, 2013. The one for Levis Zulu at page 79, is dated 19th February, 2014 . 5.162 These letters of appointment were written at a time when the 2014 Collective Agreement for Unionized staff had not yet been signed on 28th February, 2014, and was effective 1st January, 2014. Therefore, when the said letters of appointment were written, the basic salary for Unionized employees had incorporated housing allowance. 5.163 lt has been seen that both Minyoi Mwiya and Yangwase Mkwananzi were awarded housing allowance at Sixty (60) I percent of their basic salaries, despite the Collective Agreement of 1995 having been place. Noteworthy is that the other collective agreement which was signed on 4 th April, 2007 and which was effective 4 th February, 1998, which was referred to in the 20 14 collective agreement is not before Court. 5.164 Therefore, it is not known what it provided as regards housing allowance for Unionized employees. J124 5.165 Frank Chilufya and Levis Zulu were denied the payment of housing allowance despite having also been promoted from the Union into Management, like Minyoi Mwiya and Yangwase Mkwananzi. Therefore, there was discrimination in the manner that housing allowance was being paid to staff who were promoted from the Union into Management, even though contracts of employment are between individuals and the em ploy er. 5.166The 2013 Conditions of Service, in Clause 8.2.2, stated that those who were promoted into Management from the Union were not entitled to be paid housing allowance, as it was consolidated into their basic salary. 5.167 Those conditions of service were signed on 19th December, 2014, and were effective 1st February, 2013. Thus, at the time that the letters promoting Minyoi Mwiya, Yangwase Mkwananzi, Frank Chilufya and Levis Zulu were written, the 2013 conditions of service for non-represented staff had not yet come into effect as they were signed on 19th December, 2014. 5.168 There having been an alteration to the conditions of service for Unionized Staff by virtue of the 2014 Conditions of Service which were signed on 28th February, 2014, and were I effective 1st January, 2014, as these categories of employees were no longer paid housing allowance, it naturally follows that all the staff who were promoted from the Union into Management no longer had their housing allowance incorporated into their basic salaries. J125 5.169 On promotion into Management, between 1st January, 2013 and 19th December, 2014 when the 2013 conditions of service for non-represented staff were signed, ordinarily, they would have been entitled to the payment of housing allowance. 5.170 However, the 2013 conditions of service for non-represented staff were effective 1st February, 2013, en tailing that they would not be entitled to be paid the said housing allowance at Sixty (60) percent). 5.17 1 In this matter, the claim is by Plaintiffs who were promoted into Management from Unionized positions from 2013 onwards. It is true that conditions of service for Unionized workers have nothing to do with those who are in Management, as those conditions of service for Unionized employees are negotiated by their Union with management. 5.172 In this case however, Zambia National Commercial Bank Plc in its' conditions of service for Management employees who were promoted from the Union, with regard to housing allowance applied that condition as if they were Unionized staff. 5.173 Consequently, for those Plaintiffs who were promoted from the Unionized ranks into Management between 1s t January, 2013 to 1s t February, 2013, on the basis of the 2014 Collective Agreement, and the 2013 conditions of service for Management or non-represented staff, they were eligible to be paid housing allowance. J126 5 .174 Accordingly, any of the Plaintiffs who claim the payment of housing allowance and were promoted from the Unionized ranks into Management, between 1st January, 20 13 and 1st February, 2013, succeed on their claim for the payment of housing allowance. 5.175 The argument was that the Plaintiffs, Christopher Kambole, the 84th Plaintiff, Julius Bulembo, t h e 86th Plaintiff, Ilukena Mubita Kanunga, the 99th Plaintiff, Elishon Chakulunta the 100th Plaintiff, Ver onica Katalalilo, the 108th Plaintiff, Roydah Tembo, the 109th Plaintiff, Sharon Siakalima, the 1 11 th Plain tiff and Peter M uyo be, the 116 th Plain tiff are not entitled to be paid housing allowance, as their claims are statute barred, as they were promoted into Management more than Six (6) years before they sued. 5 . 176 There is no evidence on record to show when these Plaintiffs were promoted into management, but Lupiya Peter Sakala and the others did not deny the assertion that those Plaintiffs were promoted into Management more than Six (6) years before this action was commenced. 5.177 In the case of William David Carlisle Wise v E. F. Hervey Limited f5J, it was held as follows, with regard to when a cause of action is said to exist: "A cause of action is disclosed only when a factual situation is alleged which contains facts upon which a party can attach liability to the other or upon which he can establish a right or entitlement to a judgment in his favour against the other." 5.178 Further, a con tract of employment, being one that is founded on simple contract, by virtue of Section 2 of the Limitation Act 1939, any rights u nder such a contract should be enforced within a period of Six (6) years after they accrue. 5.179 Therefore, Lupiya Peter Sakala and the others, on being pr omoted into Management, accrued the right to commence an action, to enforce the payment of housing allowance after the 2014 Collective Agreement for Unionized Staff removed the payment of housing allowance which was inherent in the employees' basic salaries. 5.180 The correspondence which is at pages 1-1 7 of Lupiya Peter Sakala and the others bundle of documents, shows that Management was engaged over the non-payment of housing allowance as late as 201 7, after Lupiya Peter Sakala and the others were promoted into Management. They only seek to enforce the payment in these proceedings. 5.181 Therefore, for the Plaintiffs, Christopher Kambole, the 84th Plaintiff, Julius Bulembo, the 86th Plaintiff, Ilukena Mubita Kanunga, the 99th Plaintiff, Elishon Chakulunta the 100th Pll ntiff, Veronica Katalalilo, the 108th Plaintiff, Roydah Tembo the 109th Plaintiff, Sharon Siakalima, the 111 th Plaintiff a nd Peter Muyobe, the 116th Plaintiff, their claims for the payment of housing allowance, if they are among those who were promoted into Management from the Union between 1st J anuary, 2013 and 1st February, 2013, are statute barred, and they are dismissed. J128 I 5.1821'he amounts due to the successful Plaintiffs for the payment of housing allowance if not agreed by the parties, shall be assessed by the Registrar, and shall carry interest at the average short-term deposit rate from the date of issue of the Writ of Summons until Judgment, and thereafter, at t he Bank of Zambia lending rate u ntil payment. PAYMENT OF EARLY RETIREMENT AND REDUNDANCY PAY 5.183 There is no evidence on record to show that Lupiya Peter Sakala and the others protested the unilateral variation of the conditions of service for 2018 and 2020. 5.184 They did sign the Attestation Forms which are on record and pursuant to which they applied for Early Retirement and some of them were declared redundant. 5.185 The evidence further shows that the Voluntary Separation Scneme was removed when the 2018 Conditions of Service we e introduced. 5.186 In the case of Zambia National Commercial Bank Plc v Geofrrey Muyamwa and 88 others f28J the Supreme Court helq that: "The effect of these decisions in light of the Respondent's plight is that upon migration t o the ZANACO conditions of service, which they did so f reely and willingly, they lost the right to the benefit of the Penza letter on termination. Their t e rminal benefits are to be computed in accordance with their conditions of service a t t he I J129 point of exiting which are the ZANACO conditions of service, which did not provide for the inclusion of allowances in computing terminal benefits." 5.187 Therefore, with regard to those Plaintiffs who were 1n management when DHR/ 12/96 conditions came into force and who naturally accrued rights under the same, they however did not protest against the variation of those conditions of service subsequently. 5 . 188 Then for those who were employed after DHR/ 12/96 came into force, they only accrued rights under the same in accordance with the amendments that had been made to it, which as the record shows, they did not protest against with regard to the 20 18 and 2020 conditions of service. 5 .189 What is on record, is that there was protest against the variation to DHR/ 12/96 by its' amendments in 2013 . The letter which is at page 44 of Lupiya Peter Sakala and the others supplementary bundle of documents, was authored by Chimango Chikwanda, the Director Human Resources & I Training Division on 20th April, 2015, to Felix Mutale. 5.190 Chirllango Chikwanda advised Felix Mutale that she was in receip t of the petition regarding the revised conditions of servke. It was noted that those conditions of service were madJ by Management to which Felix Mutale belonged. He was further advised that he entered into an individual contract of employment with Zambia National Commercial Bank Plc and not a collective contract. Thus, he was J130 prevented from negotiating conditions of service collectively as there was no such framework. 5.19 1 It has been seen that Lupiya Peter Sakala and the others continued working without resolution of the grievances. When the 2018 and 2020 Conditions of Service were introduced, Lupiya Peter Sakala and the others did not protest the introduction of those conditions of service. 5.192 Taking the case ofLupiya Peter Sakala, at page 23 of Zambia National Commercial Bank Plc's bundle of documents, he signed the Attestation Form on 28th November, 2018 after the 2018 Conditions of Service were introduced on 22nd October, 2018. 5.193 The memorandum at page 187 of Lupiya Peter Sakala and I the others bundle of documents, which is dated 15th November, 2018 was addressed to all staff. It explained Early Retirement, and how to apply for it and employees were invited to apply for the same. 5.1 94Further, the memorandum which is at page 188 of the same bundle of documents, and is dated 22nd October, 2015, which was also addressed to all staff, explained the change in statute to the retirement age, and how that had impacted on the Staff Loans Policy. The memorandum also advised that implications on the retirement age on the pension scheme and other conditions of service would be communicated once a meeting with the ZANACO Pension Scheme Board of Trustees was held. J131 5.195 After Lupiya Peter Sakala signed the Attestation Form on 28th November, 2018, he applied for Early Retirement on 21 s t October, 2019, Eleven (11) months later. 5 .196 The learned authors Winnie Sithole Mwenda and Chanda Chungu 1n the book, A Comprehensive Guide to Employment Law, University of Zambia Press at page 145 refer to the case of Hambali M. Hatontola v The Council of the University of Zambia f2 6J stating that the Supreme Court in that matter, held that where an employer unilaterally varies a fu ndamental term of the contract, the employee has two options, either to treat the variation as a breach of the contract, and thereby terminate it, or to consent to the variations, and accept to continue working on the contract as varied. 5.197 In the submissions, allegations were made that Lupiya Peter Sakala and the others were coerced into signing the Attestation Forms by intimidation, threats or otherwise overbearing behaviour by Zambia National Commercial Bank Plc. 5.198 In my ruling dated 4 th June, 2024, I expunged paragraphs 24 and 26 of Mumba Mulolo's witn ess statement on the basis that it was evidence which related to matters which were not pleaded. Further objection was raised to some portions of Edward Chungu and Lupiya Peter Sakala's witness statements, on the basis that they too, contained evidence in respect of matters which were not pleaded. Counsel for J132 Lupiya Peter Sak a la and the other conceded to the obj ections. 5.199 It is trite t h at a p arty is bound by th eir p leadings. In the case of Christopher Lubasi Mundia v Sentor Motors Limited f3J it was s tated as follows : "The function of pleadings is to give fair notice of the case which has to be met and to define the issues on which the court will have to adjudicate in order to determine the matters in dispute between the parties. Where the pleadings are at variance with the evidence adduced in court, the case fails since the Plaintiffs case is completely re-cast without actual amendment of the statement of claim, and not only will the court record be incorrect as a reference thereafter but the other party will be unable to meet the case having had no correct notice." 5.200 Therefore, Lupiya Peter Sakala and the others not having amended t h eir pleadings, a n d there h aving been obj ection to evidence being led in relation to matters which were not p leaded, the submissions cannot a llege coercion or other involuntariness on t h e part of Lupiya Peter Sakala and t h e others, in h aving s igned the Attestation Forms, in which they indicated, that they had understood the chan ges to their Conditions of Service, and they did not protest. J133 5 .201 Further, almost a year later, Lupiya Peter Sakala and the others, applied for Early Retirement which had replaced the Voluntary Severance Package, and they cannot claim that they should be paid under DHR/ 12/96, which was varied by the 2018 and 2020 conditions of service. 5 .202 The learned authors Winnie Sithole Mwenda and Chanda Chungu in the book, A Comprehensive Guide to Employment Law in Zambia at page 285 with regard to accrued rights, refer to the case of Damales Mwansa v Ndola Lime Company Limited f21J where the Supreme Court noted that there is a difference between accrued rights which cannot be taken away by statute or any other act, with unpaid leave days, when a contract of employment is terminated, being such accrued rights. 5.203 Thus, it cannot be successfully argued in this matter, that Lupiya Peter Sakala and the others accrued the right to separate through the Voluntary Separation Scheme and not Early Retirement, and they should accordingly be paid the separation package which was provided for under DHR/ 12/96. 5 .204 This is because while some of the Plaintiffs were in management when DHR/ 12/96 was introduced, they acquiesced to its' amendment by virtue of the 1999 and 2011 Circulars. Further, the conditions of service were varied in 2013, 2018 and 2020 and they did not protest against 2018 and 2020 variations. While they did protest the 2013 variation, they did not leave employment. J134 5 .205 In t he case of Zambi a National Comme rcial Bank v Ernest ina Sakala and 6 2 others f3 1J the Supreme Court held that where an employee stays on for a considerable amount of time after a unilateral variation of the terms of employment, they will be deemed to have acquiesced to the variation. 5.206 It is on record, that Lupiya Peter Sakala and the others signed the Attestation Forms which indicated that they had fully understood the changes to their conditions of service which introduced Early Retirement and removed the Voluntary Separation Scheme. 5.207 Further, the formula for computation of the benefits for Early Retirement and Redundancy was accepted by them. Accordingly, their claim to be paid under DHR/ 12/96 and that the factor for calculation of the packages should be as per that provision fails, and it is dismissed. 6 . CONCLUSION 6.1 However, as the formula for the payment for Early Retirement and Redundancy was on the gross pay, those Plaintiffs who have succeeded on their claim for payment of housing allowance shall have their packages recalculated to include housing allowance. 6.2 For the Plaintiffs who I have earlier found that their claims for the payment of housing allowance are statute barred as they did not enforce the payment within Six (6) years after they were promoted into Management, they do however, succeed on the claim that computation of their packages J135 should include housing allowance as the claim for payment of their packages to include housing allowance accrued on their termination, which is a period of less than Six (6) years ago . 6 .3 I have also found that the Plaintiffs who were promoted into Management after the 2014 Collective Agreement for Unionized employees was signed, which saw the removal of housing allowance as being inherent in their basic salary other than those whose claim I have found to be statute barred succeed on the claim for payment housing allowance. 6.4 The amounts if not agreed, shall be assessed by the Registrar. Further, those Plaintiffs succeed in having their packages recalculated to include housing allowance in the computations, together with those Plaintiffs whose claim for the payment of housing allowance is statute barred. 6.5 The amounts found due shall carry interest at the average short-term deposit rate from the date of issue of the writ of Summons until payment and thereafter, at the Bank of Zambia lending rate until payment. The Plaintiffs who have succeeded on their claims, are awarded costs, which shall be taxed in default of agreement. Leave to appeal is granted. DATED AT LUSAKA THE 26th DAY OF DECEMBER, 2024