Milupi Libi v Zesco Limited (COMP/2024/HN/IR/03) [2025] ZMHC 75 (19 September 2025)

IN THE HIGH COURT FORZAMBIA P/2024/HN/IR/03 I N DUSTRIAL/LABOUR DIVISION HOLDEN A T NDOLA (LABOUR JIJRISDICT/011) BETWEEN: MILUPI LIBI AND PLAINANT 1 9 SEP 2025 ZESCO LIM ITED SPONDENT Before: The Honourable Mr. Justice D. Mul September, 2025. a this 19thday of For the Complaina nt M r. K. Tembo of Advoca tes sr s. K. Tembo& Co For the Respondent Mr. W. Sakutadik , Ms. M. Mayondi and Ms. S . Mwanza (I - ouse Counsel) JUDGMENT Cases referred to: 1. Wilson Masauso Zulu v Avondale Housi Project Limited ( 1982) ZR 172. 2 . Western Excavating (ECC) Limited v Sh r [1978) I. R. L. R. 3 . Kitwe City Council v William Ng'uni(20 Z. R. 57 (S. C.) 4. Chilanga Cement Pie v Kasote Singogo 09) Z. R. 122. 5. Derek Mukokanwa v Development Bank o mbia SCZ Appeal No. 120 of 2014. 1.0 INTRODUCTION 1.1 Mr. Milupi Libi the Complainan~ erein presented his Notice of Complaint and Affidai! in Support of the same on 25th April, 2024 on th~ ground that he was constructively dismissed from e 1.2 The Complainant therefore seek E following relief: loyment. (a) An order and declaration t the Respondent's action was unlawful and t t ount to breach of contract of employment. (b)Damages for constructive dism ssal. (c) Compensation for emotional d mental anguish (d)Retirement package to puted on the Chief Accountant's position. (e} Interest (f) Costs (g) Any other relief the court ma eem fit. 1.3 The complaint is opposed, consequently, the I Affidavit in Support Respondent filed an Answer on 28th May, 2024. J2 2.0 THE COMPLAINANT'S CASE 2.1 The Complainant's case as he via his affidavit and oral evidence is t t he was initially employed by the Respondent as ~e urity Constable on 10th January, 2019. He subsequeh ly rose through t he ranks which included Accounts lerk, Stores Clerk, Accounts Assistant, Credit/Debi antral Supervisor, Customer Service Accounts Assistant, Area Accountant, Projects Account1 t and Management Accountant. I 2.2 On 1s t June, 2023 while s e rving 1n his substantive position of Management Accounta nf , he was promoted to the position of Acting Chief AcccaL n tant-Distribution and Customer Service North ( & CS-N) as per appointment letter marked "LMl". 2.3 As per conditions of service, he wa supposed to act in that position for 3 months an~ 1.is supervisor was suppose d to make a recommen dafon for promotion or extension of the probation period. 2 .4 To his surprise on 18th August, 2!023 he received an invitation email from Ms. Patricia a bweLungu Senior Human Capital Development Mam ger inviting him for a confirmation assessment meeti in Lusaka on 23rd August, 2023. According to the Co p lainant, the same J3 has never been part of the conditions at the Respondent Company. The con i mation assessment meeting email stated that it was ing to be a chat and that was a bit confusing. 2.5 The email contained names of I irectors and Senior Managers from other departme but his immediate supervisor was not among t , when she was 2.6 There was Director Human pital Development, Director Transmission, Dire Audit, Director Finance and Senior Manager uman Capital. His immediate supervisor Seniot Manager Finance Distribution Operations was n ot copied in the email. He phoned her to inquire why th assessment process had changed and why she was ~r part of the panel. 2.7 Her response was that she wt s not aware of the meeting, encouraged him to ju :t attend the m eeting and update her. He attended the meeting on the scheduled date. The Managin Director who was presiding was asking questions from directories such as 1ss10n where the Complainant did not operate fro . His directorate was distribution and supply. At th e nd of the meeting he was informed that he would e given feedback the following week. I I I 2.8 It was the Complainant's testimo. that when he went for the confirmation meeting · th the Managing Director, it came to his attenti that on 8 th June, 2023 all acting Chief Accountant attended a meeting to acquaint themselves the forthcoming confirmation meeting, and he was the only one left out of that meeting. 2 .9 The Complainant testified that cp trary to paragraph 6 of Respondent's affidavit, his s er visor was not part of the confirmation assessment p · el. "DNl" does not show that his immediate Contrary to paragraph 8 of present. affidavit clause 5.14 states that employee on probation are to be assessed by the immediate s pervisor who should recommend for confirmation ot. If the supervisor does not produce any poor ormance report, the employee 1s deemed been confirmed. In relation to "DN2" the contrary to paragraph 10, the co firmation assessment related to his acting position a s hief Accountant and not Management Accountant. 2 . 10 According to the Complainant, n 31 st August, 2023 his functional supervisor Mrs r ipili Kalumba Banda working as Senior Manager Distribution Finance Operations called him and him to see the I I I administrative supervisor Mr H ey Habeene Deputy Director Distribution and North for a performance assessment. 2.11 The assessment was done onli and the real time processing results came out. JfI got a performance score of 84% as per page 1 of t! e notice to produce. ance and means 84% 1s above average consistently meets perform criteria/ exceeds performance in some areas. 2 .12 At the end of the process, Mr. H beene thanked him, informed him that he enjoye working with him because of his vast experience I d wished him well in his role as Chief Accountant. q 1st September, 2023 he received a letter informing going to be confirmed as Chief A countant due to poor performance during the proba i n period. His acting appointment as Chief Accouh ant was terminated forthwith as per exhibit "LM2" He was traumatised by the state of affairs. 2.13 According to the Complainap , he contacted his immediate supervisor to find ut why his job was terminated immediately. Her r es I onse was that she did not agree that his t erminat~ was due to poor performance as her recomme was that his if that were the case, performance was exemplary an I I I they should have at least ex e ded his probation period and also explained wha performance in a poor perfor ce report as per clause 5.14 of unrepresented e loyees' conditions of service. 2.14 He then phoned Mr. Habeene ho met him on 4 th September, 2023. According to tt e Complainant, Mr. Habeene stated that he was d"1s t ppointed with what had transpired as his r f ommendation was disregarded. Mr. Habeene advi e him to respond to the letter written by the Managi Director. He wrote a letter marked "LM4"to th j Managing Director complaining of unfair treatmef as the termination was done without any justificat/ol}:1, was malicious and not based on any facts as his I rformance appraisal was very good. 2 .15 Further there was no notic about change of confirmation process which as conditions of service was to be done by the superv r and not Managing Director as was the case. He so stated that if his service s were no longer needed the Respondent, the best would have been to r 1 ase him instead of traumatising him. 2.16 He did not receive any respons but was called for a m eeting on 6 th September , 2 2 by Musiyani Siwela I J7 Senior Manager Employee Relati s who was with Ms Tina Sampa. In that meeting h was told that his action of addressing his letter It Managing Director was not in order. He should have · stead written to his immediate supervisor. His resp immediate supervisor was not a performance on his part. that his any poor 2 . 17 The Complainant wrote to his im ediate supervisor on 12th September, 2023 informing p r about the fact that inated as guided by his acting appointment was ter Musiyani. Mrs. Banda phoned h · and stated that she did not know anything about at termination but would arrange to meet him. oh 4 th October, 2023 a meeting was convened in Ndol as promised by his immediate supervisor. He asked or clarification on the alleged poor performance and M s Banda categorically stated that she did not have y poor performance report. 2 .18 According to the Complainant, r Foster Chalimbana Senior Manager Corporate Fin ce Operations who was chairing the meeting told · m that there was no poor performance on his p art, h e only problem was that the Managing Director 1/i d specific people he wanted to work with and th~ omplainant was not among them. He agreed with C Managing Director handled th e confirmation process I I I without delegating to others f, j integrity of the process. transparency and 2 .19 The Complainant then ed that since it appeared as though he was ot wanted in the organisation where his relations p with management is based on mutual trust f- d confidence, he considered himself as being out If employment as the environment had become toxic. ,I-fe proposed to go on early retirement as his su antive position of Management Accountant was dvertised. He was advised to put that proposal i , iting and give the same to Augustine Phiri to chec1f. 2 .20 The Complainant explained tha the exhibit "LM3" dated 25th April, 2024 is the do ument showing that his position was advertised and nterviews conducted. The letter terminating his acting appointment did not state anything about his fu ture tay in the company. At the time his acting appoin ent was terminated, Mrs Christabel Katongo was al eady working in his substantive position of managerh n t accountant. 2.21 On 5 th October, 2023, he requested for early retirement. On 19th October, 2023 management accepted his request and he w~s retired as per exhibits "LMS" and "LM6". I I I I 2 .22 The Complainant testified that age 1 of Notice of Produce of 11 th March, 2025 sh s that he was paid his terminal benefits as per m al payslip. Page 2 is the computation of terminal be its which he agrees with. It is based on his pos Y n as Management Accountant. 2 .23 In cross-examination, the Comp ·nant confirmed that he was appointed as acting C i f Accountant on 6 th June, 2023. He was on probatio or three months and acted in that capacity. He conf ed that his issue is that his immediate supervisor 1 i not assess him. He also confirmed that his ·, mediate supervisor recommended him for ap as Chief Accountant. 2 .24 The Complainant insisted that is recommendation is not the probation report. H confirmed that the probation ement as per clause 5.14. He denied that mana on his 2.25 The Complainant confirmed that the Managing Director and directors are p however maintained that claus f .14 was breached. He of management. He denied that he was commu i ated to within three months about his perform c . He confirmed that JlO "LM2'' is non-confirmation of st and the same was communication from ZESCO the · spondent herein. 2.26 He insisted that when the ting position was terminated, he did not have job and was not communicated to about what h is next position would be. He denied that by the letter s a ting that his terms and conditions remained unchan ed, the same means he still had a job. 2 .27 The Complainant maintained that he did not understand the email inviting h · for the confirmation assessment in Lusaka. He confirk ed that he travelled to Lusaka regardless. He deni1e! that his failure to understand a basic email border J on his incompetence which led to him not being cd firmed for a major position of Chief Accountant. 2 .28 He confirmed that management a d contractual power to confirm him or not. He lod d in a complaint to management when h e was confirmed and management heard his complai t. He confirmed that the process of the grievance he ing was adhered to and thereafter he wrote to man gement requesting to be retired. 2.29 The Complainant confirmed that management accepted his request and the s paration was mutual. Jl 1 I I I He confirmed that he never re i ned and was paid K4.9 million. He confirmed that 3/ more money. He insisted that h e as appraised on the is now claiming for position of Chief Accountant. He confirmed that the document shows grade as MLS Management Accountant, not Chief Account t which was his acting position . He insisted that ·h e appraisal is not wrong. 2.30 He confirmed that appraisal is one twice. The first one is called mid-year from J to June and the second one from July to Dece1 er. He insisted that the same is not mid-year. Chie f Accountant position was given to him in June. H confirmed that the important appraisal in this m er is from July to December. He denied that the p praisal is for the period he was not acting as Chief !Accountant and is of no consequence to this matter. 2 .31 The Complainant insisted I tq. the performance appraisal and probation assess ent are the same thing. Clause 5 .16 talks about performance assessment management. H confirmed that employees do not undergo pro8a ion every after three months. He confirmed that the t o clauses are not the same. J12 2.32 In re-examination Mr. Libi clari if d that he wrote to management to be retired beca T mutual trust and confidence had broken down. H larified that he had no job despite the letter that his conditions remained unchanged. 3.0 THE RESPONDENT'S CASE 3.1 In its Answer and Affidavit in uJpport sworn by one Derrick Ngubai the Principal dfr cer-Human Capital I Employment Relation, the Resb ndent's position is that the Complainant was not co tructively dismissed from employment. 3 .2 According to the Respondent, n 23rd April, 2023 management convened a m ee i g chaired by the Managing Director for all the R on d en t's Chartered Accountants. The meeting wa s open discussion forum where the Director shared management's expectations of tho e aspiring to fill the vacant positions of Chief Accou n ant. 3.3 During the meeting, it was emJD a sized that only the best candidates would be p ie ed. Thereafter, an internal advert was put up for h e position of Chief Accountant. 3.4 The Complainant was the shortlisted candidates who were en tly invited for interviews on 31st May, 2023. 'F e Complainant and other successful candidates were t en appointed to act in the position of Chief Account with effect from 1st June, 2023. The Complainant' appointment was subject to three months' to ascertain suitability. During the said pen d the Complainant was still drawing a basic pay on management salary grade MLS with an acting allowa. JJ1 e on ML4. 3.5 On 23rd August, 2023 an invi~a ion was sent to all appointees serving on probat' as Acting Chief Accountant to travel to a meeting whose subject reference was ation assessment panel". The appointees were su~s quently assessed by a panel chaired by the Managin g irector to determine suitability of confirmation. 3.6 The panel found the ant unsuitable for confirmation due to his unsab factory performance during the probation period . Consequently, the appointment as Chief Accountan wa s terminated with immediate effect. 3.7 On 4 th September, 2023 the Com lainant wrote a letter to the Managing Director F allenging his non confirmation. In response, m ah gement engaged the Complainant and guided him <I> the procedure for airing his grievance. The first vel hearing of the grievance procedure was held in ola in the presence of his immediate supervisor. 3.8 On 5 th October, 2023, the Co plainant requested management to separate from employment through early retirement and request was approved on 19t h October, 2023. 3.9 The first witness for the ent was Mr. Foster Chalimbana Deputy Director Aoc unting Services. Mr. Chalimbana testified that on 3 th August, 2022 he received a call from his colleaguk r. Milupi Libi to the effect that Mr. Libi had been n vited to appear at Mulungushi Conference Center f r a meeting with the Managing Director. The purposJ f the meeting was to discuss the exit for employees who had applied to separate with the Respondent. 3.10 Mr. Libi was among those empl yees who were about 50 in total. The reason the Co1 plainant phoned him was that Mr. Chalimbana Senior Manager Distribution- Financial Oper ati the Complainant and other senior accountant s in the distribution directorate fell under him. Du ·ng the call, Mr. Libi indicated that he had applied to separate with the Respondent sometime back and a s seeking advice on I I I whether there was room for gro in the Respondent company. 3.11 Mr. Chalimbana appealed to e Complainant to rescind his decision as there wa till room for growth. Subsequently, on 1st Sei t mber, the Complainant phoned him again i forming him that he had submitted during the m ting at Mulungushi Conference Center chaired by tji ector Human Capital and Development that he was h longer interested to that separate with the Responden on account circumstances that existed at t e time he made the request had changed. 3.12 Further that the Director Capital and Development heard his submir ion and allowed the Complainant to leave the meet in . He was delighted to hear the news from the Complcµ ant and assured him that there was room for growth . e asked what caused him to initially request for separation and the Complainant's response was th t the view was that once separated from the Respon ent he was hoping to be engaged as Chief Executive O ficer of ZESCO United Football Club. However, this wa untenable as he had resigned as acting Chief Execu ive Officer of ZESCO United Football Club, following the withdrawal of the J16 personal to holder vehicle a igned to the said position. 3 .13 According to Mr. Chalimb811Jl the vehicle was withdrawn in response to goverh ent circular on the ban of personal to holder vehic e . In April, 2023 the Respondent's Managing Director called for a meeting of chartered accountants and gr a uate accountants at Mulungushi Conference Center. The purpose of the meeting was for the Managing Director to address prudence in financial manage ent. He was briefed that concerns were raised respect to acting positions. 3 .14 Following the concerns, he s informed that the Managing Director informed t e accountants that interviews would be called to low for placement of suitable candidates. In May, 2023 an internal advertisement was processed requesting suitably qualified accountants to apply fo the vacant positions. 3.15 Following the shortlisting of c didates, an interview panel was constituted comprisin of the Director Power Generation, Director Director Investment and Finance, Manager Human Capital Operations, Human Capital Development, Senior Corporate Financial Operations and that is the posit i n he held at the time. Jl 7 I I I 3.16 Eleven candidates were invited to h e interview. Two of the candidates performed except· nally well and were given outright appointments as Chief Accountants. Some candidates underperforme during the interview and he had to lobby for two to b reconsidered. These were the Complainant and Ms. ~ wila Mfula. I 3.17 According to Mr. Chalimbana, at the end of the interview session he raised his 9 d to the chairperson of the panel requesting the p anel to reconsider the two candidates. His basis of a ppeal as that even though the duo did not perform factorily during the interview, they had acted as hief Accountant on administrative convenience some time. He requested the panel to give them an opportunity to act and be observed as the appoint ents were subject to probationary period. 3. 18 The Chairperson of the comny ee responded that if the duo failed to perform, thei failure would be on Chalimbana's head. He was gra t ful to the chairperson and assured the panel that he w uld work closely with the duo. 3.19 At the end of the probation per·o , another assessment for confirmation of the acting hief Accountants was called. He was not part of e final assessment, J18 however his line director of finaj e informed him that of the two he had pleaded for Ms Namwila Mfula performed exceptionally well dµ ing the assessment I and was given immediate co] ation. Two other candidates had their probatio period extended for another three months. Two oth .r candidates including the Complainant could not pro e d to confirmation or extended acting as they were nable to satisfy the panellists. 3.20 The Complainant phoned hi and expressed his disappointment. The Complain 's position is that he could not revert to the Manage nt Accountant role in Ndola as he would be ridicule There was an advert for Management Accountant ii uly, 2023 and there were a number of opening1 including those for Regional Accountants on t e same grade as Management Accountant. 3 .21 When the Complainant indic d that he was not desirous to remain in Ndola, M . Chalimbana proposed to transfer him to Lusaka d assured him that manager positions would still r se, thereby giving him future opportunities for grot h. The Complainant rejected his proposal to be trf ferred to Lusaka and indicated that he had actually itten to the managing director responding to the let r of feedback on his confirmation assessment. Jl9 3.22 The Complainant stated that h's desire was to leave the Respondent company and th' he had travelled to Lusaka for a meeting with m an Capital. Mr. Chalimbana asked the Complai~ t for an alternative as he believed there was still r om for growth. The Complainant proposed to be tra. Jil ferred to Livingstone and he agreed to the proposal. I h ile looking into the transfer proposal, a grievance letter was received through Senior Manager Financial Operations where the Complain t was functionally reporting. 3.23 It was the testimony of Mr. Ch imbana that in line with the grievance procedure, he Director Human Capital and Development a committee to hear the Complainant's gn el ce. The grievance hearing was held in October, 29 3 and the committee the chairperb n Senior Manager comprised of Corporate Financial Operatio~s Senior Manager Distribution Finanoi Operations, Chief Engineer Maintenance Ndola rb ion, Manager Human Capital Development Copperb elt and Principal Human Capital Operations Officer as sec etary. 3 .24 The Complainant submitted i1t he grievance meeting tha t he did not appreciate · hy his confirmation assessment was chaired by the anaging director. The I I I Complainant requested that m gement retires him from the Respondent to facilita~ him be paid Local Authorities Superannuation Fund (LASF) contributions from the Respondent as he was a LASF member to avoid him joining th e eue of pens10ners awaiting payments. The Compl had less than two years to his retirement age. 3.25 The panel tried to convince the C m plainant to rescind his decision as there was room £ r growth. Further, it was explained in the meeting I pnnc1p appointments from . . accountant level to director lev~l I the managing director. There ore, at promotions and or management ere a prerogative of the managing director chairing the assessme:p panel was in order. The Complainant maintained is stance that he wanted to leave the Respond t and appealed to management to facilitate benefi r and LASF payments. 3.26 The committee advised the Co p lainant to write to management about his propos~ o separate, as it was not management's plan or intt separate him from employment. The m eetil g was closed. The Complainant wrote a letter requ sting to separate from the Respondent and the Resrr dent has since paid him his retirement benefits. J21 3.27 According to Mr. Chalimbana, if the course of his duties as Deputy Director Ac~ unting Services, in 2024 the Senior Manager P~ s1ons phoned him 1nqu1nng on the Complainant' separation as LASF indicated that they were proce 1 ing with issues that the Complainant should have J ealt with to access LASF benefits. 3.28 According to Mr. Chalimbana, no point did he tell the Complainant that he wa wanted by the managing director or mana ge nt. The reason for interviews was to give every qu Ii ied accountant equal opportunity to rise. In relatio to the confirmation assessment, the line produces an assessment r eport detailing the strengths and weaknesses identified during th e probation period. The assessment is submitted to thG! irector for a further recommendation based on the p rformance, identified strength and weaknesse s. Th. recommendation is submitted to the managing ector as he is the appointing au t hority. 3 .29 Mr. Chalimbana explained that management comprise s of the managing din ~ tor and directors with regard to staff appointments. e managing director can delegate to line director if he so wishes. J22 3.30 In cross-examination, Mr. Chali' ana confirmed that no call records between him an he Complainant had been produced. He maintaine that there was an advert in 2023 which culminatecji to an interview and the Complainant did not pert rtn well. He however confirmed that there is no proof b f the Complainant's poor performance. 3.31 Mr. Chalimbana confirmed that at no time was the Complainant charged with poor work culture during his acting appointment as Chief ccountant and there is no proof of poor work culture. e confirmed that h e was the Complainant's line su ervisor from March, 2022 to March, 2023 and that th , re is no proof that he vouched for the Complainant or y other person. 3.32 Mr. Chalimbana stated that at the time the Complainant received the let r to act as Chief Accountant with a view of a pro otion, he was already acting for administrative conve · n ee but has no proof of the same. When ref erred tp pages 1 to 5 of the Complainant's notice to produt , he insisted that the same do not relate to the firmation assessment criteria. 3.33 He confirmed that as of July, 023 the Complainant was acting chief accountant d someone else was acting in his position of m anag ment accountant but for administrative convenience or y . He confirmed that during the period the ComplainH t was acting as chief accountant, the advertised the Respondeh I Complainant's substantive po i ion of management accountant. 3.34 He insisted that the position w s advertised because the Complainant was acting as c ief accountant with a view of being confirmed, howev~r the position was still available by 24th July, 2023. H maintained that the managing director has power t o confirm officers from principal to director level. 3 .35 When referred to clause of page 10 in the Respondent's bundle of docume ts, he stated that in this case the probationary p r ormance assessment was done by the line sup rvisor detailing the weaknesses and strengths of t~ Complainant. It was then taken to the line director or ratification before final approval by the managing irector. He confirmed that there 1s no probationary ssessment report on record. 3 .36 When referred to exhibit "LMS ' e confirmed that the Complainant requested for ear retirement and not redundancy. When referred tb t he document dated 11 th March, 2025 in the Re pondent's notice to produce, Mr. Chalimbana exp ained that the same refers to a redundancy p . because the Complainant was guided that i1 rder to access LASF benefits before retirement age, should have opted for redundancy. 3.37 In re-examination, Mr. ChalimlD a clarified that the Complainant was paid a r1t ement package as redundancy was not going to hp beneficial to him. He clarified that the position of m agement accountant was still vacant in August, 2043 and an appointment was not made until 18th April, 2 0 1 4. 3.38 The second respondent Ms Chipili Kalumba Banda the Senior Distribution Financial Operations. Accordin 9 o Ms. Banda in 2023, advertised positions of Chief the Respondent Accountant and seven succes ful candidates were appointed to act in the said p o itions. Three of those fell under her directorate 1.d these were the Complainant, Ms. Namwila MfJ I and Ms. Jane Tembo Banda. 3.39 Towards the end of the three 3 ) months' probation period in August, 2023 assess1r nt forms were sent to her and she completed the s 1 ·ti forms for the three acting Chief Accountants i her directorate. She forwarded the forms to Capital for further processing. 3.40 She explained that she asses the three as the Respondent conducts performaJ[l e appraisal and the document with scores relates It the Complainant's substantive position of Man/a ement accountant. Probationary appraisal and perfo mance appraisal are two different things. 3.41 The three were invited for pro~ tionary assessment. Ms. Mfula's probation was extetfed for three months, Ms. Jane Banda was confirme r d the Complainant was reverted to his sub antive position of management accountant. 3.42 The Complainant was displease the managing director expressin his displeasure but there was no response. She a d sed the Complainant to direct his letter to her office . s per procedure. The Complainant heeded her a dvice d appointment was set up as per conditions of s ervic 3.43 In October, 2023 she travellb to Ndola with her supervisor Mr. Chalimbana who chaired the grievance meeting. Others in e were the Human Capital Manager Mr. Phiri, an engineer Mr. Munde and Ms. Liness. The Complr ·nant presented his grievance and requested to be separated from employment, paid his package d LASF benefits. 3.44 In cross-examination, Ms. explained that the performance assessment 1s all management employees. At the beginnin I of the year key performance indicators are itemi ed based on the job description and this is review/ twice a year from January to June, then from Jun o December. 3.45 She stated that probationary a s ssment is specific to an appointment to a new po!s ion. The 80% plus scored by the Complainant re tes to performance assessment and not the proba ~i n ary period of chief accountant. She insisted the performance assessment was on the m gement accountant position. She denied that the Complainant started acting as chief accountant a s ar back as January, 2023. She however confirm d that when the Complainant was assessed in June, 2023 he was acting as Chief Accountant for administrative convenience. She confirmed that she was not invited to the Complainant's probation referred to clause 5.14 s e I assessment. When stated that the Complainant was written to and the expected outcome was whether probation was b ei g extended, whether he was being confirmed or reve ed to his substantive position. 3 .46 Ms. Banda confirmed that in Ju 2023 the position of management accountant was a ~ ertised and someone was acting in that position, b wever, no one was appointe d in that position. She t nfirmed that there is no proof to show that someo was acting in the position of management accourit l t for administrative convenience only. 3.4 7 When referred to exhibit "LM2' s. Banda stated that the Complainant was confirmed due to unsatisfactory performance, was not charged with any disciplinary o1fi nee. 4.0 THE PARTIES SUBMISSIONS 4.1 Learned Counsel for the Co lainant filed written submissions on 31st July, 202 for the Respondent filed writte submissions on 14th August, 2025. I am highly indeb ed to both parties and may refer to the submissions 09-l when necessary. 5.0 ANALYSIS AND DECISION 5.1 From the outset, I must hast n t o stat e here tha t emphasis on th e burden of proo h as been given by the Suprem e Court in a number of cases one of which is Wilson Masauso Zulu v Avon ale Housing Project Limited1, where it was held tha - "Where a plaintiff allegf~ that he has been wrongly or unfairly disiJn ssed, as indeed in I any other case where he akes an allegation, it is for him to prove ose allegations. A Plaintiff who has failed to prove his case cannot be entitled to J judgment whatever may be said of the opponb t's case." 5.2 The import of the above _ _!cedent is that the Complainant has a duty to p tl e on the balance of probabilities his complaint agai t the Respondent. 5.3 It 1s uncontroverted that t Complainant was employed by the Respondent in 991 and rose through the ranks. At the time of 1s separation from employment on 19th 2 3 the Complainant was holding a substantive Management Accountant and had acted in :the position of Chief Accountant. 5.4 According to the Com plain his request for separation from employment by ay of early retirement was due to a hostile working environment and the same was constructive dismi al. The Respondent's position on the other hand is was not constructively dismis Complainant employment. Clearly, the issues for the dete ination of this court are whether the Complainan was constructively dismissed and whether his retir ent package should be computed on the Chief Acco n tant position. The said legal issues will be addresse as follows: i. Constructive Dismissal 5.5 By letter dated 6 th June, 2023 ot erwise exhibit "LMl" the Complainant was appointe4 o act in the position of Chief Accountant for Distdb tion and Customer Services North with effect from l s June 2023. The said letter reads in part as follows: "We are pleased to inform you that management has decide to appoint you to the position of Accountant for Distribution and Custa er Services North with effect from 01 June The position of Chief Accountant is on management level, salary rade ML4. However, you will act on this pb ition for an initial period of three (03) mon s to ascertain your suitability for confirmat~o " I 5.6 According to the Complainant his supervisor was suppose d to make a recomme:A ation for probation or extension of probation per~od:l . The Complainant referred to clause 5.14 of the R spondent's Conditions of Service for Non-Representeq mployees. The said I clause is couched in part as foll~ "5.14 Probationary perio(i The probationary period ti staff shall be three (3) months. During this eriod, either party may give twenty~four notice to terminate employment. owever, the period can be extended for a f~ rlther period of three (3) months and the resutf of the probationary performance assessment hall be made known to the employee befor the expiry of the period. The decision to confirm or not confirm an employee shall be made on the basis of a probation report, which hall be prepared by the supervisor of the em loyee and confirmed by management ... " 5.7 The Complainant's argument is that clause 5.14 was breached as his immediate pervisor the Senior Manager Finance Distribution perations Ms Chipili Banda was not part of the co firmation assessment panel. Contrary to the condition of service he received an email on 18th August, 2023 hich was not so clear and invited him to a casual disc ssion, only for him to Bl realise that it was actually a co I being chaired by the managing ch ector. irmation a ssessment 5.8 I have carefully analysed th e aid email otherwise exhibit "MLl" in the Complai t 's affidavit in reply the same reads in part as follow "Kindly note that your 3 onths acting period is elapsing on 31st Augus 2023. To facilitate for your confirmation i to your respective positions, you shall before a confirmation assessment anel on Wednesday 23rd August 2023 comme cing at 09:00 hours in the main boardroom on the 4 th floor. 5. 9 Clearly the said email wa an invitation to a confirmation assessment and t e same cannot be a mere chat as interpreted by the omplainant. 5.10 The Complainant also that Respondent breached clause 5. 14 as the m aging director chaired the confirmation assessment p el and his supervisor was not part of the proce ss. Th evidence a s adduced by the Complainant's immedia e supervisor Ms. Chipili Banda is that she assessed aip assessment forms for the Com ain ant and the oth er completed probation two people in her directorate. r e then forwarded the same to Human Capital for fur tJ er processing. 5.11 It is the considered view of this c urt that arising from the said probation report by . Chipli Banda, the Complainant was invited J r a confirmation assessment via email by Ms Patr · ia Kabwe Lungu, the Senior Human Capital Developm nt Manager. 5.12 A clear r eading of clause 5.14 of the conditions of service does not entail that thb supervisor has to be present during the confirmat on assessment but simply that the supervisor has t prepare a probation report which will be the basis of whether or not to confirm an employee by management. The Complainant has not led any evi ence to show that the conditions of service preclude e managing director from spearheading the confir tion assessment. In any case, the managing 1s part of management. 5.13 In compliance with clause 5. 14 the Complainant was written to on 24th August, 2028 as per exhibit "LM2" and informed that he would n ot be confirmed as Chief Accountant due to unsatisfactb y performance during the probation period. 5.14 The Complainant has argued a t when his mid-year perfor~ance assessment was onducted he scored 84% a s p er p age 1 of the N otiJe to Produce dat ed 27 th September, 2024. The said sc~ of 84% means his performance was above average. 5 . 15 I have carefully analysed th said performance assessment and noted that de6 ite the Complainant having been appointed to act as hief Accountant from 1s t June, 2023 the performanc ssessment relates to the Complainant's substantive sition of management accountant in grade MLS. Clear'l , this was not related to the Complainant's probatio period but was a performance assessment undet clause 5.16.9 of the conditions of service which te ated to performance assessment as properly argued b the Respondent. 5 .16 The Complainant also raised I issue that when his acting appointment was term( ated with immediate effect, he had no job to retur to as his substantive position of management accou t had been filled up by someone else. 5.17 The letter of non-confirmation f staff, written to the Complainant on 24th August, 20 3 "LM2" states that "All other terms and nditions of service under which you ~ rve shall remain unchanged." J34 5.18 I have observed that as pel exhibit "LM3", the Respondent put up an inter:p advertisement for vanous positions including Complainant's substantive position of manag ent accountant. The said advert does not show the d ~ e when it was put up but the closing date for submit ing applications was 19th July, 2023. 5 .19 This court's understanding of the letter of non- confirmation lainants terms and conditions under which he serv d in his substantive position as management remained unchanged. This resonates \fi h the Respondent 's explanation that someone a cting 1n the Complainant's position of m ana em ent accountant for administrative convenience only and the said position was only filled up in 2024. 5.20 The Complainant's position 1s at the happening of events which have been aql essed herein above prompted him to request for e . ly retirement, h en ce his request was not and he was constructively dismissed. ed Counsel for the Complainant in his written bmissions submitted that the Respondent's condu t including irregular performance assessment, unilat ral advertisement and replacement of the Complainan 's position constitutes breach of contract hence t e Complainant was constructively dismissed. Refer e was made to the cases of Western Excavating (Eff ) Limited v Sharp2 and Kitwe City Council v w·'l am Ng'uni3 among others. 5.21 I must say that what amo ts to constructive dismissal has aptly been put in e case of Chilanga Cement Plc v Kasote Singog 4 where the Supreme Court held that: "In constructive dism·s al, an employee leaves employment prompti y or by notice, as a result of the conduct of h f5 employer. I An employee can constructively dismissed r he resigned or was to have been cla!I. forced to leave employmj t as a result of his employer's unlawful cond ct, which conduct amounts to a fundament! breach of contract of employment. It is the e ployee who makes the decision to leave." I 5.22 The Complainant herein wrot a letter to the Respondent as per exhibit "L+ • " requesting to be The said request was granted ! the Respondent on separated from employment thro gh early retirement. 19th October, 2023 after his grieJ ces were heard and the Complainant was paid early retirement package. Clearly, the Complai t herein did not resign, neither was he forced to le ve employment as a result of unlawful conduct amou ting to fundamental breach of contract on the part of h e Respondent. The claim for constructive dismissal c n ot therefore stand and is accordingly dismissed for i ck of merit. 5 .23 The Complainant's claim for co structive dismissal having been dismissed, the claim or compensation for emotional and mental anguish is ii Com utation of retirement on Chief Accountant position 5.24 Turning to the Complainant's c1a m for his retirement package to be computed on t e Chief Accountant Position, I have already found a · fact that at the time the Complainant proceeded on arly retirement, his substantive position was of management accountant as his acting a p ointment of Chief Accountant had not been confirm d . 5.25 The manual payslip for termin8il enefits at page 1 of the Respondent's notice to prod ce dated 11th March, 2025 shows that the Complain an was paid an amount of K4,944,420.21 as benefits. The Complainant in his testimony s ated that he agrees with the said computation wh ic was based on his management accountant position . 5 .26 Guidance was given in the case o Derek Mukokanwa v Development Bank of Zambia, where the Supreme Court at page J41 had this to s ay: "We also take judicial not ce that all terminal benefits are based on the xisting salary of an employee and not the sa ary he would have wished to receive." 5.27 The Complainant cannot ore claim that his retirement benefits should B computed on the position of Chief Accountant, h en his substantive position was that of Management Accountant. The said I claim is accordingly dismissed fo lack of substance at law. 5.28 For the avoidance of d ou bt,. the Complainant's complaint has failed in its entif ty and is accordingly dismissed. 5 .29 Each party shall bear their own osts. Informed of Right of appeal to the Court f Appeal within thirty (30) days from the date hereof. Delivered at Ndola this 19th day of Septem r, 2025 . • • • • • • • • • • • • • • • • • ■ • • Hon. Justi D. Mulen HIGH COURT JUDG 139