National Milling Corporation v Silwamba (Appeal 171 of 2015) [2018] ZMSC 567 (13 June 2018)

.1 IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 171/2015 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: NATIONAL MILLING CORPORATION APPELLANT AND ANGELA CHILESHE BWEMBYA SILWAMBA RESPONDENT CORAM: Hamaundu, Kaoma, Kabuka, JJS. On 5th June, 2018 and 13th June, 2018. FOR THE APPELLANT: Mr. N. Nchito SC, Messrs. Nchito & Nchito FOR THE RESPONDENT: N/A JUDGMENT KABUKA, JS, delivered the Judgment of the Court. Cases referred to: 1. Yonnah Shimonde & Freight Liners v Meridian BIAO Bank (Z) Limited, S. C. Z. Judgment No. 7 of 1999. 2. Wilson Masauso Zulu v Avondale Housing Project Ltd. (1982) ZR 172 (SC). J2 3. Chilanga Cement Plc v Kasote Singogo (2009) ZR 122 (SC). 4. ZCCM Investment Holdings Limited v Woodgate Holdings Limited, 2008/HK/01. 5. Lawrence Muyunda Mwalye v Bank of Zambia (2010) 2 ZR 387. 6. Chartbrook Limited v Persimmon Homes Limited (2009) IAC 1101 7. Printing and Numerical Registering Company v Simpson [1875] L. R. 19 E. Q.462. 8. Colgate Palmolive (Z) Inc. v Chuka and Others, SCZ Appeal No. 181 of 2005 (unreported). 9. Swarp Spinning Mills Plc v Sebastian Chileshe and Others, SCZ Judgment No. 6 of 2002. Legislation and Other Works referred to: 1. The Constitution of Zambia, Article 23. 2. The Employment Act, Cap 268, S. 15A. 3. Statutory Instrument No. 2 of 2011, Minimum Wages and Conditions of Employment (General) Order, 2011. 4. The Interpretation and General Provisions Act, Cap 2, Section 20 (4). 5. The Industrial and Labour Relations Act, Cap 269, Section 108 (i). 6. Halsbury’s Law of England, 5th Edition, Volume 41, 2014, paragraph 870. 7. Black’s Law Dictionary, 8th Edition. By a judgment of the Industrial Relations Court dated 3rd October, 2014 the appellant was found to have unlawfully and wrongfully declared the respondent redundant and was ordered to pay her damages. The court also granted the respondent’s further J3 claims for payment of acting allowance, refund of transport allowance and payment for 30 days commuted maternity leave days. It is against those findings that the appellant has now appealed to this Court. The facts of the case leading to that decision are that the respondent was employed as an Administrative Officer of the appellant for its Livingstone Branch Office, with effect from 1st April, 2008. The offer letter, which constituted the entire agreement between the parties stated that her monthly entitlements were, basic pay ZMKl,300.00, housing allowance ZMK400.00, transport allowance ZMK250.00 and medical allowance at ZMK75.00. The letter did not provide for any other allowances such as subsistence allowance or acting allowance, nor did the contract provide for termination by way of redundancy. What the contract did however state was that, any other terms, conditions, amendments or modifications to the agreement would only be binding if made in writing and signed by both parties. The following year, in 2009, the respondent was also assigned duties of a Human Resources Officer and she reported to the J4 Human Resources and Corporate Affairs Manager (‘HR Manager’), Mrs Annie Mwiinga. This was in addition to her role of Administrative Officer. Her duties as stated in the letter of offer and job description document on record were that she was responsible for all administrative activities, including the handling of all human resource matters. On 7th October, 2009 the HR Manager, Mrs Annie Mwiinga, circulated an email to all branch Human Resource officers, including the respondent, informing them of the appellant’s policy on Acting Appointments. The said email made it clear that any member of staff taking up an acting appointment would require prior written authorisation from her office, without which no claim for payment of acting allowance would be entertained. Sometime in 2010, about two years after taking up her position of Administrative Officer, the respondent married a man based in Ndola. She subsequently, fell pregnant and became prone to ill health on account of her said condition. In April, 2011 she was given a 21 days sick note by a doctor and went to her husband’s home in Ndola to recuperate. Whilst there, she gave birth on 17th J5 July, 2011 and applied for 90 days maternity leave, as provided in section 15A of the Employment Act, Cap 267. The leave was approved from 17th July, 2011 up to 17th October, 2011. Towards the end of her maternity leave, a colleague, Ms. Kaunda, who was due to take her annual leave, requested the respondent to stand in for her during her absence. As this arrangement suited the respondent’s wish to spend more time with her husband and their child, the two concluded their agreement and Ms. Kaunda proceeded to inform the Kitwe Branch Manager, Mr. Pikiti, for management’s approval. Mr. Pikiti endorsed the arrangement, subject to the respondent accepting that she would be paid transport and lunch allowances only, for the period. When the respondent requested for payment of a subsistence allowance instead, the HR Manager ordered her to report back at her base in Livingstone. That is how the respondent accepted the terms of the arrangement and proceeded to work from the Kitwe Branch, whilst she continued to stay with her husband in Ndola. The arrangement continued for about two months from 17th October, 2011 to 26th December, 2011. J6 Whilst still in Ndola, the respondent put in a claim for payment of subsistence allowance for the two months period that she had worked there, but her claim was rejected on the basis that she was not entitled. Shortly thereafter, the respondent received a letter accusing her of unsatisfactory work performance, over her negligent handling of a human resource matter. The respondent was alleged to have failed to act to ensure removal from the payroll of a dismissed employee as a result of which the said employee was inadvertently paid his salary. Following this incident, the respondent was ordered back to her station in Livingstone. Upon her return, the respondent was requested to meet the 48 hours per week work obligation by working on Saturdays to which she protested in writing. The record shows her said reaction was not well received by her supervisors who considered it insubordination. In the meantime, during the same month of December, 2011 the appellant had advertised various vacancies in the national press. One of the vacancies was for the position of Human Resource Assistant. This position was said to be an upgrade which J7 combined the duties of the abolished roles of Human Resource Officer and Administrative Officer and required a Degree holder. On 22nd December, 2011 a Ms. Mwila Nkonde applied for the position. After interviews on the 20th April, 2012 she took up the job. The respondent who had taken annual leave during this period although aware of the advertisements did not apply for the post and was in fact unqualified, being a holder of a Diploma in Public Relations. After returning from her annual leave on 7th March, 2012 the respondent went and lodged a complaint with the Department of Labour in Livingstone. The claim was over the refusal to pay her subsistence allowance for the period worked in Kitwe. She also claimed that she was entitled to a transport refund for her return trip from Kitwe to Livingstone. Acting on the respondent’s complaint, the Senior Labour Officer wrote to the appellant the same day, 7th March, 2012 seeking its cooperation in resolving the respondent’s complaint. In its response to the letter, the appellant stated that the respondent had not provided any basis for her claims, as she had J8 freely agreed to the arrangement with her colleague, Ms. Kaunda in Kitwe. The appellant also explained that the respondent had not, at the material time, produced an official letter appointing her to act and had not objected to being paid transport and lunch allowances only. Further, that she was residing at her husband’s home in Ndola and not spending nights in Kitwe and was thus not entitled to subsistence allowance. On the claim for transport refund, the appellant asserted that, the trip was not sanctioned by itself and the appellant had never requested the respondent to travel from Kitwe to Livingstone on official business. In its reply of 29th March, 2012 the Department of Labour expressed the view that, on the basis of the emails agreeing to her sitting in for Ms. Kaunda, the respondent was entitled to acting allowance and that she also qualified for payment of subsistence allowance as she was working on authorised company duty in Kitwe, away from her station in Livingstone. After this exchange, the respondent was shocked to receive a letter the following month, dated 30th April, 2012 notifying her of her immediate termination of employment by way of redundancy, J9 due to a change in operational requirements of the appellant company. The respondent was informed that she would be paid two months’ basic pay for each year served, plus one month’s pay in lieu of notice and allowances separately. It is these events that led to the respondent filing a complaint in which she cited, victimisation and abuse on the part of the appellant. That her maternity leave was cut short; she was denied subsistence and acting allowances when she was transferred from Livingstone to Kitwe; and that her benefits were underpaid as her allowances were not incorporated in the basic salary for purposes of computation. The respondent accordingly claimed: (i) damages for unlawful redundancy and being discriminated against, (ii) three month’s pay in lieu of notice; (iii) an order for payment of subsistence and acting allowances; (iv) one month’s pay for her maternity leave days denied; (v) transport refund from Ndola to Livingstone; (vi) an order that the respondent’s benefits and damages be paid on the basis of her salary and allowances calculated together; (vii) interest and costs of the suit. In its Answer, the appellant denied the respondent’s claims and averred that the respondent was only entitled to 90 days J10 maternity leave and not 120 days, as alleged. That the respondent was not transferred to Kitwe in an acting capacity but merely served in an administrative capacity for convenience, as she was already on the Copperbelt for a personal visit with her family. The appellant further averred, that the respondent’s conditions of service did stipulate 48 working hours per week as the norm. That there was no basis for the respondent’s claim for acting and subsistence allowances; and that the appellant had embarked on a redundancy exercise in full compliance with the law, as restructuring was necessary for its operational requirements. That several other employees were affected and the respondent had not been singled out by the appellant. After considering the evidence before it, the trial court found that the respondent’s letter of offer did not contain any redundancy clause. That it was therefore unlawful for the appellant to invoke a non-existent provision to terminate the respondent’s employment. Regarding the shortened maternity leave, the court found that Statutory Instrument No. 2, Minimum Wages and Conditions of Employment (General) Order, 2011 (hereinafter “S. I. No.2 of JI 1 2011”), applied to the respondent by virtue of the proviso to section 29 of the Employment Act which allows for a written contract entered into by the parties to be enforceable as if attested to under the said section. The court reasoned that, since redundancy was not agreed upon by the parties, it could not be enforced and accordingly awarded the respondent damages amounting to 12 months’ salary inclusive of housing, transport and medical allowances, less what the respondent had already received in redundancy benefits and in lieu of notice. The respondent’s claim on the basis of discrimination was dismissed for failure to allege the grounds upon which she had been discriminated. On the claims for underpayment of the subsistence and acting allowances, the court found that the respondent was not entitled to subsistence allowance as she was living at her husband’s house, but that she was however entitled to acting allowance, as she had indeed acted in a position higher to her substantive position. In respect of the claim for 120 days maternity leave, the trial court found that S. I. No. 2 of 2011 being a latter law took precedence over the Employment Act, Section 15A in terms of * J12 regulating maternity leave and that the respondent was thus entitled to 120 days fully paid maternity leave. Lastly, on the claim for a refund for the trips from Kitwe to Livingstone, the court found that the respondent was entitled to these monies as she had worked away from her usual work station and thus the appellant was obliged to meet her transportation costs back to Livingstone. The respondent thus substantially succeeded in her claims. Unhappy with the findings, the appellant has appealed to this court on three grounds couched in the following terms: 1. The court below erred in law and fact when it found that the termination of the respondent’s employment by way of redundancy was unlawful because it was a mode of termination that was not provided for in the contract of employment between the parties when redundancy occurs by operation of law; 2. The court below erred in law and fact when it found that the provisions of the Minimum Wages and Conditions of Employment (General) S. I. No. 2 of 2011 regarding maternity leave take precedence over the provisions of the Employment Act which is an Act of Parliament. 3. The court below erred in law and fact when it held that the respondent was entitled to transport and acting allowances i J13 when, the same were not provided for in the terms and conditions of her employment. Heads of argument were filed by counsel representing both parties in support of their respective client’s cases. On ground one, counsel for the appellant referred to Employment Law in Zambia at page 77, which states that, retrenchment, redundancy and retirement arise by operation of law. It was argued that, redundancy occurs as a result of external factors usually beyond the contemplation of the employer that would require the employer to downsize or streamline its operations to remain effective and profitable and this is the reason redundancy goes beyond contractual contemplation. It was further argued that, the right of an employer to declare an employee redundant exists at common law and can be invoked whether provided for expressly in conditions of service or not. We were urged to reverse the findings of the trial court, that the redundancy in issue was unlawful, for reasons that it was not a condition of the contract of employment. On ground two, the appellant further argued that, since the respondent was not a protected employee as defined in S. I. No. 2 of 2011, the Order did not apply to her and that, an Act of Parliament J14 could not be overridden by a Statutory Instrument. The case of Yonnah Shimonde & Freight Liners v Meridian BIAO Bank (Z) Limited1 to that effect was relied upon. The argument was that, the respondent had applied for 90 days maternity leave in accordance with the Employment Act, which she was granted. That the fact of the Statutory Instrument being of a later date than the Act, did not mean it took precedence over the Act. There was therefore, according to counsel, no basis for the trial court’s finding that the respondent was entitled to 120 days maternity leave, and the court misapplied S. I. No. 2 of 2011. Lastly, on ground three, on the award of acting allowance, it was argued that, despite the trial court acknowledging the fact that acting allowance was not expressly provided for in the respondent’s terms and conditions of employment, it still went ahead to imply the term into the respondent’s contract. The submission was that, additional terms may only be implied into a contract where it is just and reasonable to do so, and necessary to reflect the intention of the parties. And, that, the record shows acting allowance was only available to unionised workers and not management employees J15 such as the respondent. The appellant further referred to the evidence on record showing that the respondent was not acting in a higher position but merely sitting in for someone who was on leave. On the claim for transport allowance, counsel for the appellant observed that, the trial court had taken note of the fact that the respondent had left her duty station at her own cost and that after her maternity leave she was to return to her duty station at her own cost. The submission was that, the claim for transport refund by the respondent was an afterthought and that her time in Kitwe was adequately compensated for by her monthly salary, lunch allowance and transport allowance to cover the expenses relating to her commuting from Ndola to Kitwe. We were thus urged to reverse the trial court’s finding that the respondent was entitled to transport and acting allowances and counsel cited as authority, the case of Wilson Masauso Zulu v Avondale Housing Project2. In their heads of argument in response to ground one, whilst conceding that, redundancies do happen by operation of law, learned counsel for the respondent nonetheless argued that this must be agreed upon and all necessary notices given. The case of J16 Chilanga Cement PLC v Kasote Singogo3 was relied on in this regard as held that, redundancies are planned activities. Counsel submitted that, the respondent’s redundancy in fact amounted to a summary dismissal and was an absurdity considering that it was not provided for in her conditions of service. As such, the lacuna should be resolved in favour of the party not responsible for it. The case of ZCCM Investment Holdings Limited v Woodgate Holdings Limited4 was cited as authority for the submission. It was Counsel’s submission that, in resolving this lacuna, regard should be had to the Minimum Wages and Conditions of Employment for non-unionised workers, as found by the trial court. The case of Lawrence Muyunda Mwalye v BOZ5 was cited in support of the said submission. It was also submitted that, even if the court were to be faulted in its findings, the redundancy should still be found to be unlawful for having been effected in the same manner as an instant dismissal and another person was employed to take up the respondent’s position. Counsel stressed that, the required steps in the Singogo3 case were not followed which equally rendered the redundancy unlawful, as even at common law, redundancy had to be agreed between the parties and all necessary J17 notices given. On ground two, the respondent supported the trial court’s finding that the respondent was entitled to 120 days maternity leave provided for under S. I. No.2 of 2011 as the provision is couched in mandatory terms. It also refers to ‘any’ female employee and not only those female employees as defined in the schedule to the Order. It was contended that, to adopt the appellant’s approach would amount to an absurdity and would be discriminatory to other women, and that in any event, the Minimum Wages and Conditions of Employment Act which was amended by S. I. No. 2 of 2011, is itself an Act. The appellant further cited section 108 (i) of the Industrial and Labour Relations Act, Cap 269 and Article 23 of the Constitution of Zambia in contending that, an employer shall not discriminate against any employee on grounds of social status. Several cases were cited in advancing the argument that, the court may depart from the literal meaning of words if the reading leads to an absurdity, particularly so, in a matter that J18 originates from the IRC which is mandated to render substantial justice to the parties. On ground three, the argument was that, the appellant had made a U-turn on its position that conditions like redundancy need not be in the conditions of service because they happen by operation of law, yet when it came to transport and acting allowances, it was still argued that they could not be granted because they were not in the conditions of service. The case of Chartbrook Limited v Persimmon Homes Limited6, was relied upon in submitting that, there was no limit to verbal re­ arrangement that the court could deploy in giving a commercial sensible meaning when construing a contract in its bargaining context. Counsel for the respondent argued that, it was factual that the respondent acted in the position of her colleague in Kitwe as Human Resources Assistant and was paid both transport and lunch allowance as found by the trial court. The respondent was thus not on a frolic of her own. The case of Mwalye5, was again relied on for its stance on minimum wages and conditions of employment applying where there are no clear guidelines on certain aspects of J19 employment. Black’s Law Dictionary, 8th Edition was referred to as defines ‘acting’ to mean “holding an interim position or serving temporarily.” The respondent argued that, it was wrong for the appellant to contend that the respondent’s stint in Kitwe was compensated for by her monthly salary as her salary was a separate entitlement that cannot be equated to allowances. It was submitted that, the respondent was acting in a more senior position than her substantive one. Hence, the need for her to be paid acting allowance and to be transported back to her station in Livingstone and the court could not be faulted for reading words into the contract in order to do substantial justice to the parties before it. That the court was equally fortified in resorting to the minimum wages and conditions in curing the lacuna in the respondent’s conditions of service. At the hearing of the appeal, only Counsel for the appellant was in attendance. The gist of his oral argument to augment the issue of acting allowance was to the effect that, notwithstanding J20 that the respondent did cover for a colleague at a higher grade than hers, the respondent was never appointed to act by management and could not have appointed herself to act. Counsel maintained his written submissions, that the arrangement was made between the two employees with the appellant merely giving the go ahead. We have considered the heads of argument and submissions by Counsel on the three grounds of appeal. We have also considered the case law to which we were referred and the legislation cited. For convenience, we propose to deal with the grounds of appeal in reverse and will start with ground three, then deal with ground two and conclude with ground one. In ground three, we have been asked to reverse the findings of the trial court that the respondent was entitled to transport and acting allowances, when the same were not provided for in her conditions of service and are not supported by the evidence on record. In our view, the question raised in respect of the transport allowance claim is whether the respondent left her station where she was based in Livingstone purely on the business of the J21 appellant. On the claim for acting allowance, the question is whether, in claiming entitlement to acting allowance, the respondent produced evidence that she had prior written authority to so act and was formally appointed to act in the position, in line with the appellant’s policy on acting appointments, as earlier outlined in this judgment. On the first question, evidence on record shows that the respondent did not travel from Livingstone to Ndola at the appellant’s behest as she contends. She travelled for her own personal issues and at her own expense. The record also shows that, whilst she was already in Ndola, the opportunity arose for her to sit in for her colleague in Kitwe. The employer’s obligation was thus, only to facilitate her transport between Ndola and Kitwe, to and from. The evidence further shows, that the respondent maintained her base in Ndola and it is from there, that she had to get back to her station in Livingstone at the end of her maternity leave, which again, had nothing to do with the employer’s business. This evidence which is on record does not support the finding that I J22 she was entitled to transport allowance from Kitwe to Livingstone made by the trial court and we reverse it. On the claim for acting allowance, the respondent contended that, she was not paid her acting allowance contrary to her conditions of service. Her contract of employment on record, being the offer letter as earlier alluded to in the judgment, clearly shows that an acting allowance was not one of the respondent’s conditions of service. Further, and in any event, as already established, there was no prior written notice from the Human Resources Manager appointing her to act in Kitwe on the basis on which that claim could be sustained. The arrangement was purely one made by the respondent and her colleague, Ms. Kaunda, and management was then requested to ‘rubber stamp’ it and provide transport to and from Kitwe. This only goes to fortify the position that, had the respondent not been asked to sit in for her colleague, she would have returned to her work station in Livingstone at her own cost as her leaving Livingstone in the first instance was purely for personal reasons. J23 We have often cited the principle in the case of Printing and Numerical Registering Company v Simpson7, as quoted at page 8 in the unreported case of Colgate Palmolive (Z) Inc. v and Chuka and Others8 that: “If there is one thing more than another which public policy requires, it is that men of full age and competent understanding shall have the utmost liberty in contracting and that their contract when entered into freely and voluntarily shall be enforced by Courts of justice.” We therefore cannot sustain the respondent’s argument that where there is a lacuna in one’s condition of service, it must be resolved in favour of the innocent party. This would be tantamount to the court renegotiating the contract on behalf of the parties which we are not mandated to do. Counsel for the respondent has clearly misapplied the ZCCM Investment Holdings Limited4 case which was alluding to a lacuna in evidence being resolved in favour of a party not responsible for such lacuna. A failure to negotiate a condition of service cannot be deemed to be a lacuna. The appellant thus cannot be faulted for a failure by the respondent to negotiate for an acting allowance. « J24 In any event, the respondent cannot rely on the provisions of S. I. No. 2 of 2011 as she was specifically excluded by the same, for the reason that, her employment was governed by a specific employment contract, and by her own admission during cross examination, she was not an employee as defined within the schedule to the order which applied to general workers, cleaner, handy person, office orderly, a guard, driver, typist or receptionist. Ground three of the appeal faulting the trial court for having granted the claims relating to transport and acting allowances succeeds. Coming to ground two, the appellant argued that the provisions of the S. I. No.2 of 2011 as the latter enactment, regarding maternity leave, takes precedence over the provisions of the Employment Act providing for 90 days maternity leave and pointed us to our decision in Shimonde1. We there stated that, the provisions of an Act of Parliament could not be ignored nor be overridden by a mere Statutory Instrument. We find that, that is indeed still the position that is supported by section 20 (4) of the ' * < Interpretation and General Provision Act, Cap 2 which provides J25 that: “ Any provision of a statutory instrument which is inconsistent with any provision of an Act, Applied Act or Ordinance shall be void to the extent of the inconsistency.” The respondent was thus, only entitled to the 90 maternity leave days stipulated in the Employment Act which she in fact applied for and was paid. Ground two of the appeal also succeeds. Lastly on ground one, which is the crux of this appeal, the trial court found that since the respondent’s contract of employment did not contain any term allowing for termination of the respondent’s contract of employment by way of redundancy, she was unlawfully and wrongly declared redundant. The argument by State counsel on behalf of the appellant is that, the right of an employer to declare an employee redundant exists at common law and can be invoked even where it is not provided for in the contract of Employment between the parties. J26 We have considered this argument and the common law position as stated in Halsbury’s Law of England, 5th Edition, Volume 41, 2014, paragraph 870, that, an employee who is to be taken as dismissed by reason of redundancy is so dismissed if the dismissal is wholly or mainly attributable to: (1) the fact that his employer has ceased or intends to cease: (a) to carry on the business for the purposes of which the employee was employed by him; (b) to carry on that business in the place where the employee was so employed; or (2) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was employed by the employer have ceased or diminished. A reading of the above quote confirms that, the principle of the common law on redundancy is the same as that provided for in our Employment Act, Cap 268, save for the fact that section 26B of the said Act only applies to oral contracts. As correctly pointed out by counsel for the appellant, redundancy does indeed arise by operation of law, and is one of the ways in which an employment > k J27 contract may be terminated. In as much as this is true and even if we accepted that the respondent’s redundancy was valid as it is supported by the evidence on record, this evidence shows that the respondent’s position was abolished during a long standing restructuring of the appellant’s operations. Thereafter, the newly created position required higher qualifications than those held by the respondent. That does not still justify the manner in which the redundancy was effected. There are procedures on how redundancies ought to be effected, amongst them the requirement for consultation with the person to be affected. In the case of Singogo3, we did say that: "... redundancies are planned activities, and the appellant has an obligation to minimise the impact that such redundancies may have on employees. Being a planned activity, the employee needs to be prepared for the loss of a job. Reasonable measures which should be taken will inevitably include notices and consultations which are so vital to the planning process. Fairness and good faith demands that an employee should not be ambushed in a redundancy exercise because such an ambush would not mitigate the negative impact of a loss of a job. Instant loss of a job should be relegated to the realm of instant dismissal for erring employees or those who have misconducted themselves, but even then, the grievance code is involved and usually, the employee is put on notice through the grievance procedure, (underlining for emphasis) A J28 We agree in principle with the appellant in the present appeal that, an employee can be declared redundant at common law, and the employer has the right to declare an employee redundant for operational or other valid reasons. On the particular facts of this case, the manner in which the redundancy was carried out, did not comply with the standard practice, at all. In the Singogo3 case, we further said that: “..... To accept that a payment in lieu of notice would suffice in a redundancy would be to negate the whole process of planning and consultation which an employer has to engage in, in order to take effect redundancies. The conditions of service in this case do not make provision for a redundancy to be effected through payment in lieu of notice when there has been no consultation.” We thus find that the lack of notice and consultation with the respondent on her impending redundancy was done in bad faith, considering the background given where the respondent had challenged the appellant’s decisions not to pay her certain entitlements that she, rightly or wrongly, felt were due to her. Evidence on record suggests the relationship with her superiors was far from being harmonious. The employing of another person in an upgraded position that incorporated all functions previously J29 discharged by the respondent, just a week before she was declared redundant suggests malafid.es. It is for the foregoing reasons that we are unable to wholly sustain ground one of the appeal. We uphold the trial court’s finding that the redundancy although valid, was wrongfully effected summarily. In considering what would be an appropriate measure of damages, we had the following to say in the case of Swarp Spinning Mills Plc v Sebastian Chileshe and Others8: “In assessing the damages to be paid and which are appropriate in each case, the court does not forget the general rule which applies. This is that the normal measure of damages applies and will usually relate to the applicable contractual length of notice or the notional reasonable notice, where the contract is silent. However, the normal measure is departed from where the circumstances and the justice of the case so demand. For instance, the termination may have been inflicted in a traumatic fashion which causes undue distress or mental suffering; or in any other situation where it is permissible to depart from the rule in Addiss v Gramaphone Company Limited (2) which generally precludes the award of non pecuniary damages like exemplary damages for injured feelings... It is now settled that the Court can give damages for the mental upset and distress caused by the defendant’s conduct in breach of contract.” J30 In the circumstances, we find the justice of the case demands an award of damages for the abrupt manner the redundancy was effected on the respondent. We consider six months’ salary, adequate recompose in this case. The amount will be paid less any payment that may have already been made in respect of the one month’s notice that was ordered by the trial court. To that extent, ground one of the appeal partially fails. On the facts of this case, we find an appropriate order on costs is for each party to bear their own costs of the appeal. ..... . ■ ............... ......................... E. M. HAMAUNDU SUPREME COURT JUDGE R. M. C. KAOMA SUPREME COURT JUDGE J. K. KABUKA SUPREME COURT JUDGE