Moono Sintubungu v Children Christian Fund (Appeal 8 of 1999) [2001] ZMSC 106 (27 September 2001)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO.8/99 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: MOONO SINTUBUNGU APPELLANT AND CHILDREN CHRISTIAN FUND RESPONDENT CORAM: CHAILA, CHIRWA , LEWANIKA JJS On 29th March, 2001 and 27th September, 2001 For the Appellant: For the Respondent: K. HANGANDU of Central Chambers Mrs. N. MUTTI of Lukona Chambers JUDGMENT LEWANIKA JS, delivered the judgment of the court. The Appellant was employed as Administrative Manager by the Respondent till 22nd June, 1995 when her position was abolished. This appeal only relates to the amounts due to the Appellant as gratuity and long service bonus under Clause 20 of the Conditions of Service. Clause 20 of the Appellant's conditions of service provides as follows:- 20.1 employees will be entitled to a long service bonus which will be calculated on the basis of one month's salary for every year served. - J2 - 20.2 A gratuity of 25 per cent of gross salary will be paid in addition. In the court below the learned trial Judge held that the Appellant was entitled to K927,224.90 gratuity with interest at 40% per annum from 3rd April, 1996. Counsel for the Appellant contends that his computation was erroneous as it did not take into account the number of years that the Appellant had served the Respondent. He said that the proper computation would be to multiply K927,224.90 by the number of years that the Appellant had served. That the correct amount would be K927,224.90 x 12.75 = KI 1,949,611.48. On the other hand, counsel for the Respondent submitted that the Appellant was only entitled to 25% of her annual gross salary as gratuity in addition to the retirement benefits of three months salary for each year served, repatriation allowance, two months pay in lieu of notice and a long service bonus of one month's salary for each year served. We have considered the arguments advanced by counsel for the Appellant and for the Respondent as well as evidence on record. We note that the retirement benefits and long service bonus are computed by taking - J3 - into account the number of years that an employee has served. In particular the long service bonus and the gratuity are both contained in Clause 20 of the conditions of service and that the gratuity is specifically stated to be in addition to the long service bonus. It would not make sense, in our view, to restrict the gratuity to 25% of the employee's gross annual salary without taking into account the number of years that an employee has served. We would agree with the submission by counsel for the Appellant that the learned trial judge fell into error when he held that the Appellant was only entitled to 25% of her annual gross salary as gratuity. The other ground relates to the computation of the long service bonus. The Judge in the court below held that the term "salary" in Clause 20.1 of the conditions of service meant basic salary exclusive of allowances. Counsel for the Appellant has submitted that this finding was erroneous and that the term "salary" should have included allowances. In support of his argument counsel for the Appellant has referred us to Clause 1.1 of the Conditions of Service and Section 3 of the Employment Act and the definition of "wages" or "earnings". We have no hesitation in rejecting this argument for the simple reason that the conditions of service on which the - J4 - learned counsel relies on speak for themselves. Clause 20.1 which deals with the long service bonus uses the term "salary" and whereas Clause 20.2 which deals with gratuity uses the term "gross salary". Quite clearly a distinction has been drawn between salary and gross salary and we are satisfied that the learned trial Judge was on firm ground when he held that the term salary in Clause 20.1 meant basic salary and that the Appellant's long service bonus is to be computed on the basis of her basic salary. Thus the appeal will have succeeded to the extent that we find that the Appellant is entitled to gratuity of 25% of her gross annual salary for the whole period that she served the Respondent. As the appeal has only succeeded in part, we make no order as to costs. D. M. Lewanika ACTING DEPUTY CHIEF JUSTICE M. S. Chaila SUPREME COURT JUDGE - J5 - D. K. Chirwa SUPREME COURT JUDGE