Perry Mapani v Zambia Development Agency (COMP/IRCLK/129/2019) [2020] ZMHC 483 (31 December 2020)

IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS COURT DIVISION HOLDEN AT LUSAKA (Civil Jurisdiction} COMP/IRCLK/ 129/2019 BETWEEN: PERRY MAPANI AND COMPLAINANT ZAMBIA DEVELOPMENT AGENCY RESPONDENT Before the Honourable Mr. Justice W. S. Mweemba in Open Court at Lusaka. For the Complainant: Mr. S. Mulengeshi - Messrs Mulengeshi & Company For the Respondent: Mr. C. Salati & Ms E. L Sitali - Messrs Mulenga Mundashi & Associates JUDGMENT CASES REFERRED TO: l. Kenny Sililo v Mend -A - Bath Zambia Limited and Spencon Zambia Limited Appeal No. 168 of 2014. 2. Atlas Copco (Zambia) Limited v Andrew Mambwe SCZ Appeal No, 137 of 2001, 3, Zinka v the Attorney General (1991) ZR 73 (SC). 4, Kajimanga v Chilemya (2016) ZMSC 189. 5. Eley v Positive Government Security Life Assurance Co, Limited (1876) 1 ExD 88. 6, Redrilza Limited v Abuid Nkazi (2011) Vol 1 ZR 394. 7. Zambia Telecommunications Co. Limited v Eva Banda CAZ Appeal No. 2 of 2017. 8. Chilanga Cement PLC v Venus Kasito SCZ Appeal No. 86/2015. 9. Zambia Privatization Agency v James Matale (1995 - 1997) Z. R 157. (S. C). 10. David Ross v G4s Secure Solution (Z) Limited (2016/CAZ/08/12). 11. Chilanga Cement Plc v Kasote Singogo (2009) ZR 12. 12. National Airports v Reggie Zimba & Saviour Konnie (SCZ Judgment No. 34 of 2000) [2000] ZMSC 48. 13. Mambepa v Zambia Postal Services Corporation (Complaint No. 440/ 2016 (2017) ZMHC 34. 14. Sarah Aliza Vekhnik v Casa Dei Bambini Montessori Zambia Limited Appeal No, 129/2017. 2018 ZMCA 312. 15, Motor Industry Staff Association v Silverton Spraypainter and Panel Beaters (2013) 34 ILJ 1440. J1 16. Zambia State Insurance Corporation Limited and the Attorney General v Alisand Singogo Appeal No. 2 of 2007. 17. ICitwe City Council v Nguni (2005) ZR 57. 18. Tebuho Yeta v African Banking Corporation Zambia Limited SCZ Appeal No. 117/2013. LEGISLATION REFERRED TO: 1. The Employment Act, Cap 268 of the Laws of Zambia. 2. The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. WORKS REFERRED TO: 1. Selwyan's Law of Employment, Text and Materials in Commercial Law. London Butterworths. 2. Mwenda W. S., Employment Law in Zambia: Cases and Materials: (2004) (UNZA Press, Lusaka), Introduction Mr. Perry Mapani (the Complainant) filed a Notice of Complaint on 27th June, 2019, against Zambia Development Agency (the Respondent) seeking the following reliefs: a. Damages for Breach of Contract b. Damages for Unfair Dismissal c. Damages for wrongful dismissal d. Damages for unlawful dismissal e. Damages for Loss of income for the remainder of the duration of the contract in the sum of ZMW 1,254,792.00 basic and all allowances due to the Complainant. f. Payment in lieu of notice, gratuity, leave pay and other accrued benefits. g. Damages for mental anguish, inconvenience, stress and anxiety. h. Interest on the amounts found to be due. i. Any other relief the Court may deem fit; j. Costs. J2 Nature of the Complainant's Claim The Complainant's claim is that he was employed by the Respondent on a fixed term contract in January, 2018 which was terminated on 12th April, 2019 on unfounded allegations not prescribed in the Disciplinary Code and without a fair hearing. That the said termination amounted to a breach of contract, unlawful dismissal, wrongful dismissal and unfair dismissal. Nature of the Respondent's Defence The Respondent filed an Answer on 1st Aµgust, 2019 and contended that the Complainants dismissal was lawful and in accordance with all applicable procedures and there was no breach of contract. It is further stated that the Complainant had been paid his gratuity, leave pay, payment in lieu of notice and other accrued benefits. Thus, the Complainant is not entitled to any of the claims set out in the Notice of Complaint. The Respondent prays that the Complaint be dismissed with costs, Complainants Evidence During trial on 27th February, 2020, the Complainant gave evidence on his own behalf and he relied on the Notice of Complaint dated 27th June, 2019 and the Affidavit in Support filed into Court on the same day. He testified that he was employed as Director General of the Respondent on 15th January, 2018 and his Contract of Employment had 3 parts as follows: - (i) (ii) The Contract The Disciplinary Code (iii) Conditions of Service It was also his testimony that the Contract of Service had 5 performance Benchworks which the Board was concerned about as follows:- (i) Restructure of the Organization into a nimble and effective organization. J3 (ii) Enhanced Management of finances and financial forecast. Under this benchmark, the Board tasked management to review the motor vehicle policy and the schemes under the Public Service Micro Finance Company, (iii) Monitoring and Evaluation for Results The Board requested that this be enhanced in order to track the performance results. (iv) Performance Management and Skills Training for Specific Job Requirements (v) Relevance to the stakeholders Under the last two benchmarks the DG was required to reach out to key stakeholders, government in particular, entrepreneurs and investors. It was his evidence that during the time he was Director General, the Board constituted a Committee that was tasked to look into the proposal on restructuring. The Committee sat and passed this to the main Board and both bodies decided that the Director position within the Respondent be streamlined and reduced. It was also decided that his office reduce the staff numbers slowly due to lack of funding by not renewing their contracts when they ended. That between January and June, 2018 a number of events occurred such as the implementation of control 99 which was a system where all funds held by institutions such as the Respondent would be taken back to treasury. However, this negatively impacted the financial standing of the Respondent which had been dependent on a Privatization Fund Account and the interest it generated. After this, most of the Privatization Fund were utilized on Court fees amongst other things and that this occurred at a time when the Ministry of Finance delayed to distribute the funds and he had to ask them to lend ZDA some of the funds. J4 The Board also noted that there was a funding cns1s throughout government which did not only affect the Respondent but affected its operations. Thus, in order to t~nlock these funding problems, the Board tasked its Chairperson and Vice to meet the Ministers of Finance and Commerce. Mr Mapani also testified that the banking system under the benchmark of enhanced management of finances and financial forecast was changed so that the motor vehicle loan scheme facilitation and the motor vehicle policy would be less onerous to the organization. In line v.rith this target, an agreement was made with the Public Service Micro Finance. The review of Motor Vehicle Policy was implemented and management changed its leasing financing from Investrust Bank to ZANACO and these decisions were made with the approval of the Board. The witness further stated that under the third performance benchmark of monitoring and evaluation, management put together a robust system of analysis that was presented to the Policy Implementation Committee of the Board and after another presentation to the main Board it was approved. In order to meet the last two performance benchmarks, he addressed the members of the European Union, key parties in government such as the Secretary to the Cabinet and the Secretary to the Treasury on how the agency would be of relevance to them. A number of parties came forward to render financial assistance to the Respondent for example, the International Trade Center (ITC) provided training, the Finish Embassy funded a number of Trade Missions, the World Trade Organization, UNECA supported the development of the ZDA Website whilst the ITC assisted with the website enhancement and training of the Board. JS The Ministry of Finance teamed up with ZDA to see what needed to be done regarding funding and support was obtained from the International Trade Center. However, between January and June, 2018 he became uncomfortable due to the micromanagement of the Agency from the Non - Executive Chair Persons office as there was direct correspondence between that office and his staff which bypassed him. There was no input from the Board Chairperson when he had to get permission to travel with 110 to Northwestern province for instance. Due to this, he felt as though he was being stifled from making partnerships. Another example was when there was a state visit to China which was meant to include a ZDA forum. After receiving approval from the Ministry of Commerce and the Secretary to the Cabinet, the Board Chairperson said that there was no funding for him to lead this endeavor. Although 9 Cabinet Ministers accompanied the Head of State, CWl was not given immediate permission to travel to Beijing, thus he was almost denied the chance to show relevance to the Head of State. In making frantic efforts to travel, he copied correspondence to the whole Board and indicated that he was willing to travel economy class instead of business class as set out in his conditions of service. He finally travelled to China after the Secretary to the Cabinet authorized him. In June, 2018 he was informed by the Board Chairperson through an email that a new appraisal process had been put in place. However, he became uncomfortable with it after he realized that it had included 3 performance indicators and had materially varied how he should have performed the 5 initial ones. He was further informed that the Directors who had been affected by restructuring would conduct a 360 degrees review of his performance which he thought would not be conducted impartially, J6 On 6 th Octa ber, 2018 the Board Chairperson sent him an email asking him to sign off the performance management evaluation and he did so on 8 th October, 2018. He also had a meeting with the Board Chair and Vice between June and 6 th October, 2018. In November and December> 2018 he went about his business as Director General and travelled to Japan and Egypt, whilst in 2019 the tenure of the Board except that of its Chairperson ended. There was no Board at ZDA from 17th January, 2019 to April, 2019 and he was dismissed on 12th April, 2019 and received the letter on 15th April, 2019 and asked to leave the office, 2 days later. According to CWl, there was no one to turn to as there was no Board and he had not been given a hearing. He only learnt that the decision to terminate his contract was made in October, 2018. The Complainant also testified that he was not paid the 3months salary in lieu of notice until 10th July, 2019 after he commenced this matter and even then, the emoluments he received were lower than his entitlement. That the deductions he could not understand were a withheld amount of ZMW600, imprest recovery of ZMWB,637 and an airticket upgrade of ZMW19,570. That although he had been receiving his monthly emoluments prior to the receipt of his benefits, they were slightly less than what he used to earn. The witness also added that he did not understand why he and the Company Secretary were asked to leave the meeting when his performance appraisal was discussed by the Board on 5 th October, 2018. He stated that there was no Board at the time the decision was made so it appeared to have come in through the Chairperson. He lastly stated that he prayed that what was contained in his Complaint be granted to him since he was given a 3-year Contract and he was Managing Director for J7 another institution before he joined the Respondent and in order to take up that role, he took a pay cut which ZDA was aware of. During cross examination he testified that he was Managing Director for Afgri before he became Director General of the Respondent. That he was well versed with corporate governance and he previously applied for the job of Director - Investments. That as Director General he fell in category ZDA 1 of the Conditions of Service and the payments in Clause 4.2.3 mirrored the ones made to him. He was paid 3 months' salary in lieu of notice and a portion of his remuneration. He was being paid less than he was getting before being terminated and he wanted both notice for termination or payment in lieu of notice as well as disciplinary proceedings. That he achieved a11 the 5 benchmarks and the Board Chair and Vice reviewed his performance through Performance Management Evaluation. He went on to add that the key performance indicators at page 167 were correct and he signed off on the Performance Management Evaluation. That his contract was terminated on the basis of clauses 3.0,3.1 and 3.2 of the Board Minutes of the meeting held on 5 th October, 2018 and he was seeking damages for mental anguish, inconvenience, stress and anxiety although he had no documentary evidence or formal report to show that he had suffered any of these. It was his evidence that the appraisal ought to have been done after 3 months. He lastly stated that instead of using the Kl 1,000.00 to go to North Western Province he was directed to use the money to pay PAYE as there was no funding. In reexamination he stated that he did not consider that making payments after one was terminated was being given an opportunity to be heard. The Respondents Evidence J8 The Respondent's first witness was CHAMA CHILAMBWE (RWl) the Finance and Administration Manager of the Respondent. He stated that the Complain an ts Con tract for Service was terminated in April, 2019 under Clause 4.2.1 of the Terms and Conditions of Service. He stated that after his termination they calculated his terminal benefits based on Clause 24 of his Contract of Service which was consistent with the ZDA Terms and Conditions of Service. However, that despite the computation he was maintained on the payroll because they did not have enough money to pay his benefits. He lastly stated that the decision to terminate his contract was made by the Board. During cross examination, he testified that part of his job was administration and the reason for his termination was unsatisfactory performance which were provided for under the Board Charter; Terms and Conditions of Service and harmonized Disciplinary Code and Grievance Procedure in Section 110. That the Board is the one that handled matters of assessment of the performance of the Director General. The witness also stated that he was unsure whether he had been given a warning or charge prior to his termination. The Complainant was paid his terminal benefits in July, 2019 and the Notice of Complainant was filed into Court on 27th June, 2019. Thus, from April to July 2019 he was being paid his salary. There was no re-examination. The second witness of the Respondent was MARY THANDIWE NCUBE (RW2) the Chairperson of the Respondent. It was her evidence in examination in chief that the Respondent had sued the Complainant after his employment was terminated for unsatisfactory performance. She added that the performance appraisal commenced in June, 2018 but the Complainant refused to complete the self-assessment form and the main reason he gave was that there was a requirement that his direct reports J9 made a 360degrees appraisal too, He also indicated that the performance be based on the 5 key performance indicators on the addendum to the Contract. Following his refusal, it was agreed that the Complainant submit the self assessment form from ZDA which the Board thought was inadequate for a chief executive because it was not broken down into specific areas that were measurable and what the Board required to assess. The Board appointed a Board Committee whose task was to break down the key result areas and other key duties of a chief executive which formed part of his Contract into measurable targets which could be reviewed and measured. After the Complainant completed the self-assessment form the Chairperson was supposed to sit down with him on a one-on-one appraisal review and in order to allow objectivity, she elicited the views of the other Board members. Thereafter she and the Vice Chairperson sat with him and shared how the Board felt about his performance on or about 26th July, 2018. Thereafter, they prepared the Performance Management Evaluation and gave it to him for his comments between 24th July and mid-August 2018. A review of the DG's performance was an agenda item for the 5 th October 2018 Board meeting. Despite making several requests the Complainant refused to give them a soft copy of his self-assessment and the Board concluded that his performance was below expectation and his Contract was to be terminated. Following the Board meeting it was resolved that he be asked to sign off on the Appraisal which he did on 8 th October, 2018. It was agreed that the Director General would be informed of the Board decision in a scheduled Board meeting of 29th November, 2018. However, the proxy members were not available and the Board did not sit to communicate its decision of 5 th October, 2018. Another Board meeting was to be held in December, 2018 but there was no money to facilitate it. JlO There was deterioration in the management of ZDA between December, 2018 to March, 2019 and a determination was made to communicate the decision. The tenure of other Board members expired on 17th January, 2019 except that of the Chairperson whose tenure is 5 years. The Minister had not appointed new Board members and the termination was effected on 12th April, 2019. According to RW2, the Board drew the mandate from the following : 1. The Board Charter 2. The ZDA Terms and Conditions of Service and 3. Contract of Service between ZDA and the Complainant. The Disciplinary Code and Grievance Procedure was not used, The Board elected to use a provision for termination under the ZDA Terms and Conditions of Service. During Cross examination the witness stated that the Performance Evaluation developed by the Adhoc Committee which the Complainant refused to complete was exhibited. The performance evaluation process was as follows : 1. Individuals own assessment 2. Supervisor 3. One on One If the assessment was not signed by one party it was invalid and incomplete. Moreover, that the Complainant was terminated for poor performance on 5 th October, 2018. RW2 then added that the minutes exhibited on page 184 were not signed at a sitting Board meeting. During reexamination she stated that the appraisal by the Board had been done by the Chairperson and Vice by 5 th October, 2018. Facts not in Dispute Jll From the evidence led by both the Complainant and the Respondent's witnesses as well as the documentary evidence before me, I find that the following facts are not in dispute: 1. The Complainant was employed by the Respondent on 15th January, 2018 as Director General on a 3-year contract. 2. That the documents that were binding the parties were the Contract of Employment, the Harmonized Disciplinary Code and Grievance Procedure (the Disciplinary Code) as well as the Conditions of Service. 3. That the Complainant was terminated for unsatisfactory work performance on 17th April, 2019. 4. That the Complainant was not given any warning, charge or disciplinary hearing or right to exculpate himself before being terminated. 5. That the Complainant was maintained on the payroll until he was paid his final emoluments. Submissions from the Complainant Counsel for the Complainant filed in his submissions into Court on 19th March, 2020. He contended that at the time of termination of his employment the Complainant was not given any notice or payment in lieu of notice. It was only 3 months after commencing these proceedings that he received an incorrectly calculated underpayment without justification from the Respondent. It is also contended that even RWl confirmed that the money the Complainant received was deducted and that the claim for full payment without deductions was not challenged so he was entitled to full payment. It is further argued that at the beginning of his employment he was given five performance benchmarks against which his performance was to be assessed. However, in June, 2018 when the Respondent was about to carry out an appraisal, a new and different appraisal form with three additional elements was given to him. Moreover, that in the new form, a different weighting and order of priority among the 5 benchmarks was given to the Complainant. Thus, this introduction equated to adding new terms to the Complainants contract and was a unilateral decision by the Respondent without the consent of the Complainant and amounted to wrongful termination based on the case of KENNY SILILO V MEND - A - BATH ZAMBIA LIMITED AND SPENCON ZAMBIA LIMITED (1) where the Supreme Court of Zambia stated: "We have in a number of cases held that an employer is not at liberty to alter an employee's terms and conditions of employment to the employee's detriment without the agreement or concurrence of the employee. Such unilateral alteration of the conditions of service, which negatively impacts on the employee, amounts to a wrongful termination of the contract of employment which, in appropriate circumstances, may result in liability by the employer to pay damages to the employee" Counsel also pointed out that Clause 26 of the Complainant's Contract provided that the entire agreement between the parties consisted of the Harmonized Disciplinary Code and Grievance Procedure (Disciplinary Code) and the Terms and Conditions of Service. That this Disciplinary Code for statutory institutions under the Ministry of Commerce Trade and Industry clearly gave guidance on what procedure the Respondent should follow when an employees' performance was not satisfactory. Moreover, that during trial it was stated that the Complainant was never given any warning expressing unsatisfactory performance and yet the letter of termination clearly indicated that the reason for termination was performance related. Jl3 It is argued that this reason of unsatisfactory performance was a grievance against the Complainant thus recourse to the Disciplinary Code should have been made by the Respondent, particularly the procedure under "Unsatisfactory Work Performance." It is also argued that the Disciplinary Code defined grievance as "dissatisfaction with any condition of work" and this Code applied to everyone including CEOs' of the institutions concerned as provided in Clause 3 of the Code. Moreover, that the Code allowed an employee to complain whenever aggrieved under Clause 4 to RW2 the Board Chairperson and this amounted to a grievance as per email dated 18th June, 2018. The Respondent ought to have resolved the Complainants concerns in the email fairly. Thus, failure by the Respondent to follow the laid dov.rn procedures when terminating the Complainant's employment amounted to unfair termination of his employment. The Terms and Conditions of Service gave 3 months' probation to all employees from the date of engagement according to Clause 3.6.3 of the Terms and Conditions of service. Thus, the Respondents breached Clause 3.6.3 in dealing with the Complainants issue of unsatisfactory performance as the Complainants employment was terminated before the conclusion of his performance appraisal. This was evident from the extract of the Board Resolution. This was confirmed by RW2 during trial when she stated that the conclusion of the appraisal was done on 10th October, 2018. The Complainant handed in the appraisal form on 8th October, 2018 but the decision to terminate had already been made on 5 th October, 2018. It was clear that the decision to terminate the Complainant's employment on Jl4 the ground of unsatisfactory performance was made without the Complainant being accorded an opportunity to be heard whether in form of something written or otherwise. This amounted to unfair termination. It is also stated that unfair termination of employment occurs when an employer terminates an employees' contract without following the rules of natural justice, such as the employees right to be heard. In the case of ATLAS COPCO (ZAMBIA) LIMITED V ANDREW MAMBWE (2) the Supreme Court stated interalia that the Appellant having decided to terminate the Respondents employment on grounds of incompetence, the Appellant was obliged by the law and the rules of natural justice to afford the Respondent an opportunity to be heard on the charges of incompetence. It was contended that the Complainant had the right to be heard, Moreover, that it was not known whether the Board indeed or truly resolved to terminate the employment of the Complainant in the Board meeting of 5 th October, 2018 because the Minutes of the said Board meeting were only signed on 9 th August, 2019 when this case was already in Court. The extract of the resolution was also signed on the same date of 9 th August, 2019 which was a breach of Clause 16 ( e) (ii) of the Board Charter by the Respondent which stated that the Minutes were to be discussed, corrected at the ensuing Board meeting and signed off by the Chairperson and Board Secretary. Interestingly this was not adhered to and the said Minutes stated that the Board Secretary was not present in the meeting at the time of the purported resolution of the Board to terminate the Complainant's employment. This was unfair to the Complainant and a violation of Clause 11 (b) (ii) of the Board Charter. It is also contended that the Minutes at page 186 were not a proper and correct record of the Board meeting of 5 th October, 2018 since it was no J15 record and the same was confirmed by RW2 the Chairperson that currently the Respondent had no Board. As at the time of executing or endorsing the Minutes and the Resolution there was no Board to administer the affairs of the Respondent or indeed discuss and correct the Minutes of the Board meeting of 5 th October, 2018 to enable the Board Chairperson and Secretary to sign them off as provided under Clause 16 (e)(ii) of the Board Charter. Thus, the termination was wrongful and unfair. Moreover, that there was evidence of a meeting held between him and the Board Chairperson and the Vice Chairperson sometime before October, 2018 however there was no record of this meeting in form of Minutes in order to determine whether this was part of the appraisal system or partly as an appraisal of the Complainants performance as alleged by RW2. According to the Complainant this meeting was a push on him by the Board Chair, RW2 and her Vice to sign the new appraisal form with the new benchmarks. It was argued that on 5th October, 2018 when the decision to terminate the Complainants Contract of Employment was made there was no formal appraisal done on him to assess his performance. Further that when the decision to terminate his Contract was made on the ground of unsatisfactory performance the principle of audi aleterm partem under natural justice was breached. This was because the Complainant was not given the opportunity to clarify himself on the allegation of unsatisfactory performance. In support of this line of argument Counsel relied on the case of ZINK. AV THE ATTORNEY GENERAL (3) which outlined that: "The principles of natural justice were implicit in the concept of fair adjudication and that an adjudicator shall be disinterested and unbiased (nemo judex in causa sua); and that no man shall J16 be condemned unheard, that is, parties shall be given adequate notice and opportunity to be heard (audi alteram partem)," It is contended that RW2 stated that the authority to terminate the Complainant's employment on the basis of unsatisfactory performance was drawn from Clause 15 of the Complainant's Contract of Employment which dealt with the Annual review of the Contract, It is argued that it was on record through RW2's testimony that the performance appraisal that was conducted on the Complainants performance was not an annual review of the contract. Therefore, the application of that Clause when conducting the Complainants performance appraisal was a breach of the contract, as the said Clause did not apply to the Complainant's appraisal. The moment the Respondent predicated the termination with the reason of unsatisfactory performance, was declaring a grievance within the meaning of the Disciplinary Code. Counsel cited Selwyan's Law of Employment, which states that no disciplinary action should be taken in advance of proper investigations by an employer. He also relied on Mwenda W. S' book Employment Law in Zambia: Cases and Materials, which echoed that unlike wrongful dismissal which looks at form, unfair dismissal looks at the merits or substance of the case and looking at this case it is clear that the Complainant was unfairly dismissed. Counsel also relied on the Halsbury's Laws of England Vol 16, 4th Edition at Paragraph 335 which states that the key consideration in cases of unfair dismissal was the reasonableness of the employer's decision to dismiss an employee. Counsel also cited Section 36 (1)(1) of the Employment Act Cap 268 of the Laws of Zambia where an employer is empowered to terminate a contract of employment. Jl7 Based on the foregoing authorities, it is argued that the termination of the contract of employment in the case in casu was wrongful, 1mfair and unlawful as foresaicl. Counsel went further to submit that it is a settled legal position that unfair dismissal is a creature of statutes with its origins in the need to promote fair labour practices by prohibiting employers from terminating employees' contracts of employment except with valid reasons and on specified grounds. It is submitted that it is evident that in this matter the Complainant was ill treated at his former place of work and was gotten rid to satisfy the Board Chairperson who unliteral1y changed the terms of the Contract by adding new benchmarks which were never agreed upon at the start of the Contract. It is lastly argued that on a balance of probability and the preponderance of evidence both viva voce and documentary this Court should decide in favor of the Complainant and find that his termination was wrongful, unfair and unlawful. There are also submissions filed in opposition on 14th April, 2020 by Counsel for the Respondent who argued that the applicable law in this matter was the Employment Act 1 Cap 268 of the Laws of Zambia. On the aspect of admissibility and reliance of the parties on the Minutes of the Board meeting held on 5th October, 2018 Counsel submitted as follows: - That it was asserted that the Minutes were not the proper and correct record of the Board meeting of 5 th October, 2018 but since the Complainant participated in discovery and inspection and filed Agreed Bundles of Documents, they could not question the content, form and legitimacy of any document contained in the said Bundles. Jl8 He also added that the Supreme Court pronounced itself on the iss1.1e of raising objections to documents that have been filed as evidence before Court in the case of KAJIMANGA V CHILEMYA (4), where it was stated as follows: - "It is clear that in a civil matter, a party is provided with an opportunity to object to any document intended to be brought before the Court by the opposing party. An objection to a document must be made timely to allow the opposing party to respond and, if possible, to make any relevant application. In our opinion, the objection cannot be validly made after the trial of the matter has closed." Based on the above, this Court was urged to dismiss the Complainants submission that the Minutes at page 186 of the Bundle were not the proper and correct record of the Board Meeting of 5th October, 2018 and instead take it that they were. Regarding the Complainants submissions alleging that the actions of the Respondent were in breach of Clause 16(e)(ii) of the Board Charter because it is not known whether the Board resolved to terminate the Complainants' employment at the meeting of 5 th October, 2018 whose minutes were only signed on 9 th August, 2019 and the absence of the Board Secretary at the time of the resolution, it is contended that Clause 2(b) of the Board Charter provides that the Charter binds the Board members and the composition of the Board is set out in Clause 8(b) and did not include the Complainant. Thus, the Complainant had no locus standi with respect to matters pertaining to the Board and could not maintain an action of breach of contract regarding the Board Charter, For this submission Counsel relied on the case of ELEY V POSITIVE GOVERNMENT SECURITY LIFE ASSURANCE CO. LIMITED (5) where the articles of the company provided that Mr. Eley would be a solicitor for life but the company decided to dismiss him. When he sued the company for J19 breach of contract his action could not stand since he had no contract with the company like the shareholders did as he was just a solicitor.' Thus, based on this case it is contended that the Complainant was not a member of the Board and therefore had no right under the Board Charter and couldn't maintain any claim of breach. Further that Clause 16(e)(ii) permitted the Minutes of a Board meeting to be discussed and corrected at an ensuing Board meeting and to be signed off at that point. It states thus:- "Minutes of the meeting of the Board shall be discussed and corrected at the ensuing Board meeting and signed off by the Chairperson and Board Secretary." Regarding the claim of ill treatment of the Complainant at the Respondents workplace: It is argued that the Complainant did not plead i1l treatment in his Notice of Complainant or Affidavit in Support of Complainant. Neither was it addressed at trial. Thus, it is surprising that it had been raised in the Complainants submissions. That the Complainant is bound by his pleadings and once an issue was settled in the pleadings the Court would accept it as having been pleaded. Conversely, since the issue was not raised in the pleadings the Complainant should not be allowed to take the Respondents by surprise by raising the issue in his submissions. The Complainants raised no evidence of il1 treatment and the Respondents had no opportunity to present evidence and challenge this pleading. Thus, this Court was urged to dismiss the submissions on ill - treatment. The Respondent also made submissions regarding the distinction and applicability of the concepts of "dismissal" and ((termination" from J20 employment. It is argued that the Con1plainant had 1.1sed the terms interchangeably in his pleadings and was at sea with respect to the claim that he had before Court as there is a clear and settled distinction between the two which was acknowle(].ged in the case of REDRILZA LIMITED V ABUID NKAZI (6) where the Court held: - "Indeed, there is a difference between dismissal and termination and quite obviously the considerations required to be taken into account vary. Simply put dismissal involves loss of employment arising from disciplinary action, while termination allows the employer to terminate the contract of employment without invoking disciplinary action." Further that a dismissal is unfair if no valid reason is given by an employer for terminating the employee or if the employee is dismissed based on one of the unfair disciplinary grounds in Section 34 (4) (d) of the Employment Act and Section 108 (1) of the Industrial and Labour Relations Act which states that: - "(1) No employer shall terminate the services of an employee or impose any other penalty or disadvantage on any employee, on grounds of race, sex, marital status, religion, political opinion or affiliation, tribal extraction or status of the employee." It is argued that the Complainant had not adduced any evidence to show that he was unfairly dismissed based on the grounds in Section 34(4)(d) of the Employment Act and Section 108 (1) of the Industrial and Labour Relations Act Cap 269. It is further stated that the undisputed evidence before Court in the Complainants Affidavit in Support of Complaint, testimony at trial and in his submissions shows that the employees' contract of employment was terminated as could be seen from the letter of termination. J21 According to this letter, the Complainant was paid 3 months in lieu of Notice which was lawful and determined any relief he would be entitled to. As regards he Complainants contention that his termination was wrongful because the Respondent introduced a new weighting and 3 new benchmarks which amounted to the introduction of new terms to the Contract, it is submitted that the Complainant was not wrongfully dismissed. For in this submission Counsel relied on the case of ZAMBIA TELECOMMUNICATIONS co. LIMITED V EVA BANDA (7) where the Court of Appeal defined wrongful dismissal as follows: - "It is trite that wrongful dismissal is dismissal by the employer in breach of contract and gives rise to an action for wrongful dismissal at common law ... A dismissal in breach of the relevant provision in the contract of employment relating to the expiration of the term for which the employee was engaged." Whilst the Supreme Court in the case of CHILANGA CEMENT PLC V VENUS KA. SITO SCZ (8) guided that where a dismissal was carried out in a manner contrary to the procedure for dismissal in the Contract of Employment, such conduct would constitute wrongful dismissal. Based on these authorities, Counsel argued that wrongful dismissal was therefore procedural and dependent on the terms of the Contract. It is submitted that the Complainant's assertion that the different appraisal form that was given to him amounted to wrongful dismissal was misguided because the Complainant's Contract of Employment which governed the relationship between the parties did not provide that before termination of the Contract, a performance appraisal was to be carried out. According to RW2, the performance appraisal was not a procedure for termination/ dismissal but merely a tool used by the Respondent to assess J22 the performance of employees. Thus, the termination of the Complainants employment was not wrongful. Regarding the Complainants contention that he was unfairly or unlawfully dismissed because no warning was given to him for unsatisfactory performance and recourse was not had to the Disciplinary Code, it is submitted that the Complainant was terminated not dismissed. That Clause 15 of the Code allowed the Respondent after annual review, to terminate the Contract in accordance with Clause 24.1 if the Complainant's performance was found to be unsatisfactory. Moreover that in the case of ZAMBIA PRIVATIZATION AGENCY V JAMES MATALE (9) it was held that payment in lieu of notice was a proper and lawful way of terminating the Respondents Contract. The only modification to this rule came by way of Section 36(3) of the Employment Act, Cap 268 which provides that an employer must give valid reasons when they initiate termination. It is argued that the valid reason herein was the unsatisfactory work performance. Thus, the termination was not unfair. Further that in the case of DAVID ROSS V G4S SECURE SOLUTION tZ) LIMITED (10) the Court stated thus: - "It is trite law that unlawful dismissal occurs when a statute affecting the employment contract is breached." In this case, the Complainant was not dismissed but his contract of employment was terminated. It is argued by Counsel for the Respondent that the termination was neither unfair nor unlawful as the Respondent complied with Section 36(3) of the Employment Act, Cap 268 of the Laws of Zambia. J23 On the claim for damages for loss of income it is argued that our law did not permit such relief. That payment in lieu of notice, gratuity, leave pay and all other accrued benefits were all duly paid to the Complainant as could be seen from the proof of payment. Regarding damages for breach of Contract, that this claim is founded on the argument that applying Clause 15 when conducting the Complainants appraisal was a breach of Contract as the performance appraisal that was being conducted was not an annual review. It is submitted that Clause 15 allowed the Respondent to terminate the contract in accordance with Clause 24.1 if the Complainants performance was found unsatisfactory. According to RW2, the annual review of the Complainants Performance was conducted at the 4 7 th Ordinary Board Meeting after which it was unanimously found to be unsatisfactory by the members. It was also resolved that the Complainant's contract be terminated as shown by the Board Resolution. Thus, the termination was in accordance with the Contract. It is further submitted that according to Treitel, a breach of contract occurs when a party to a contract without lawful excuse fails/neglects to perform what is due from him under the Contract. It is argued that the Complainant has failed to show that the Respondent without lawful excuse failed to perform under the Contract of Employment. On the claim for damages for mental anguish, inconvenience, stress and anxiety Counsel cited the case of CHILANGA CEMENT PLC V KASOTE SINGOGO 111) where it was held as follows: "We held in AG v Mpundu (1984) ZR 6 that damages for mental distress and inconvenience may be recovered in an action for breach of contract." J24 It is however contended that the complainant did not suffer any inconvenience or stress as he continued to receive remuneration throughout up until his final pay out from the Respondent. Thus, this claim had no merit. Counsel went on to argue that in the unlikely event that this Court was to hold that the termination was wrongful/ unfair as provided earlier, the practice in the Courts has been to award damages equivalent to reasonable notice period as compensation. This was clear from the case of NATIONAL AIRPORTS CORPORATION LIMITED V REGGIE ZIMBA & SAVIOUR KONNIE (12). On the claim for costs, it is contended that they could only be awarded by this Court in specific instances and in this case the Respondent had not been guilty of improper conduct at any stage of the proceedings and therefore this was not a proper case for an award of costs to the Complainant. The Complainant also filed submissions in Reply into Court on the 28th of May, 2020. It is argued that the legislative law applicable in this matter was at no point falling under the Employment Code Act so it was of no consequence for them to argue on the matter. On the issue of Admissibility and reliance of the parties on the Minutes it was argued that the Minutes were not being refuted. However, what was asserted is how the Board managed to resolve to terminate the employment of an employee whose performance appraisal was not yet conducted. This was because the Meeting that resolved to terminate his employment sat on 5 th October, 2018 whilst the letter of termination indicating that the termination was based on an appraisal which was concluded on 10th October, 2018. It is argued that even if these dates made sense, the Complainant was not accorded a right to be heard and no warning letter was given to that effect. J25 The next issue submitted on was that the breach of the Board Charter was not serving as a claim for breach of contract as indicated in paragraph 5.3 in the Defendants submissions, the Charter was brought to show that the procedure was not followed in terms of the employment. Counsel also submitted on the aspect of the distinction and applicability of the two terms dismissal and termination of employment. According to Counsel, dismissal was an action led by the employer which led to termination and was involuntary on the part of the employer. According to Counsel, termination and dismissal were not the same but were related as termination appeared to be an umbrella of dismissal which was one of the ways in which one's employment came to an end. On the aspect of wrongful dismissal, it is argued as follows: According to Counsel for the Complainant, the Complainant was wrongfully dismissed based on the following reasons. First, the 3 months' notice only applied where the reason for termination was not related to performance. Since the Respondent used unsatisfactory work performance as the reason for dismissal it ought to have used the harmonized disciplinary procedure. It is argued that the failure to follow the laid down procedure was a clear breach of contract and procedure. The Disciplinary and Grievance Procedure Code explained the disciplinary policy, laid down procedures, sanctions and definitions which regulated the maintenance of discipline amongst the Respondent's employees. Counsel then pointed this Court to the case of MAMBEPA V ZAMBIA POSTAL SERVICES CORPORATION (13) where it was held that for a claim of wrongful dismissal to succeed, the Complainant must adduce evidence and prove that the provisions of the Contract of Employment and Disciplinary Code of Conduct to which the Complainant was a party was breached by the Respondent when the Complainant was dismissed. J26 Legal issues Despite the many reliefs sought by the Complainant, it is my considered view that the only relevant issue is to determine the manner in which the employment relationship between the parties herein ceased as this will invariably determine the reliefs, if any, that the Complainant will be entitled to. Determining the Issues The overriding duty for this Court, therefore is to ascertain whether the Complainant has proved his case on a balance of probabilities. From the outset I wish to state that the law governing the relationship of the parties is the Employment Act Chapter 268 of the Laws of Zambia and also the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. The Employment Code Act No. 3 of 2019 which came into operation on 9 th May 201 9 does not apply to the matter herein. I note form the pleadings and the written submissions that learned Counsel for the Complainant was using the terms 'dismissal) and 'termination 1 interchangeably when in fact they do not mean the same thing. This position adopted by the Complainant and his Counsel is misconceived. It is trite that there are diverse ways in which a contract of employment may come to an end. That two broad categories by which the employment relationship comes to an end are termination and dismissal. As guided by the Supreme Court in the case of REDRILZA LIMITED V ABUID NKAZI (6) cited by the Respondent's Counsel the terms 'dismissal' and 'termination' should not be used interchangeably. This is so because dismissal involves loss of employment arising from disciplinary action while termination allows the employer to terminate the contract of employment without invoking disciplinary action. J27 What emerges from consideration of the cases cited by the Respondent is in my opinion this: 1. A dismissal with proper notice is a lawful way of terminating a contract of employment. 2. While an employer can terminate the contract of employment by giving notice, the employer must specify a valid reason related to the employee's conduct or capacity or employer's operational requirements for the termination to be valid [SARAH ALIZA VEKHNIK V CASE DEI BAMBINI MONTESSORI ZAMBIA LIMITED ( 14)]. 3. Payment in lieu of notice is where either the employee or employer terminates the contract with immediate effect by paying the wages due over the notice period. Payment in lieu of notice is a proper and lawful way of terminating the contract of employment on the basis that in the absence of express stipulation every contract is determinable by reasonable notice. 4. Because of Section 36(2) and 36(3) of the Employment Act, Cap 268 of the Laws of Zambia payment in lieu of notice is permitted in Zambia provided that when it is invoked by the employer, a valid reason related to the employee's conduct, capacity or employer's operational requirements is given. 5. A dismissal is usually preceded by disciplinary action. Being penal in nature, the law has provided that a reason or disciplinary cause must always support a dismissal and the employee given the right to exculpate himself. 6. Unfair dismissal is dismissal that is contrary to the statute or based on an unsubstantiated ground. For unfair dismissal, the Courts will look at the reasons for the dismissal for the purpose of determining whether the dismissal was justified or not. In reaching the conclusion that the J28 dismissal is unfair, the Court will look at substance or merits to determine if the dismissal was reasonable and justified. It is a creation of statute which is concerned with the merits or substance of the dismissal and form is only supportive of the whole merits of the dismissal. Apart from a dismissal contrary to statute, unfair dismissal can also occur where the employee is dismissed on unsubstantiated or unreasonable grounds. 7. Wrongful dismissal is dismissal contrary to the contract of employment. It is a product of the common law and one at the instance of the employer that is contrary to the terms of the employment. When considering whether a dismissal is wrongful or not, the form, rather than the merits of the dismissal, must be scrutinized. It is dismissal by the employer in breach of contract. Wrongful dismissal is procedural and dependent on the terms of contract. Where a dismissal is carried out in a manner contrary to the procedure for dismissal in the contract of employment such would constitute wrongful dismissal. Another issue that I must rule on relates to the admissibility and reliance of the parties on the Minutes of the Board Meeting held on 5 th October, 2018 which are at pages 184 to 186 of the Agreed Bundle of Documents. It is clear that the Complainant participated in discovery and inspection and in fact filed the Agreed Bundle of Documents and he cannot therefore validly question the content, form and legitimacy of the Minutes or any other document contained in the said Agreed Bundle of Documents. I find that all the documents in the Agreed Bundle of Documents are admissible as evidence of their contents. I therefore make the conclusion that the said Minutes are a true, correct and proper reflection of the events of the Board meeting held on 5 th October, 2018. J29 As regards the Complainants submission that the actions of the Respondent were in breach of Clause 16 (e)(ii) of the Board Charter, I find that the Complainant was not a member of the Board and as such he cannot maintain an action of breach of contract anchored on the Board Charter. The Complainant in the "Written Submissions stated that he was ill treated at his former place of work and was gotten rid of to the satisfaction of the Board Chairperson. The Record shows that the Complainant did not plead ill treatment in his Notice of Complaint or Affidavit in Support of Complaint. The issue of ill treatment was also not addressed at trial. In light of this I accept the Submission by the Respondent that the Complainant is bound by his pleadings and he should not be allowed to raise the issue of ill treatment in his submissions. I therefore find that the parties herein are bound by their pleadings and as such the Complainants submissions as regards to ill treatment are dismissed. Evidence on record shows that the Complainant was employed on a 3-year contract by the Respondent from 15th January, 2018 and the relationship of the parties was governed by the Contract of Employment, the Terms and Conditions of Service as well as the Harmonized Disciplinary Code and Grievance Procedure (the Disciplinary Code). However, on 12th April, 2019 the Complainant received a letter from the Respondent terminating his contract by payment in lieu of notice pursuant to Clause 4.2.1 of his Conditions of Service, The reason asserted for the termination was unsatisfactory performance and the Complainant was later paid 3 months salary in lieu of notice, pro-rated gratuity @35% and his leave days. Although this payment was made after the commencement of this trial it is not in dispute that it was paid. What remains disputable is the amount as the Complainant claimed that he was underpaid. J30 Counsel for the Complainant contended that the termination herein amounted to wrongful dismissal, unlawful dismissal as well as unfair dismissal. Whilst Counsel for the Respondent maintained that what happened in this case was a termination and not a dismissal, which termination was carried out under Clause 24 of the Contract that governed the relationship between the parties. It is common cause that no disciplinary action was taken by the Respondent against the Complainant and such the Complainant was not given the right to exculpate himself. The Complainant did not adduce any evidence to show that the termination of his employment was contrary to statute or based on an unsubstantiated ground. To prove that he was unfairly dismissed the Complainant needed to adduce evidence based on any of the grounds in Section 34 (4)(d) of the employment Act and / or in Section 108(1) of the Industrial and Labour Relations Act. He was therefore not unfairly dismissed and he is not entitled to damages for unfair dismissal. Regarding the Complainants contention that the termination of his employment was wrongful it is submitted that this is because the Respondent introduced new weighting and three new benchmarks to the Performance Appraisal which amounted to the introduction of new terms to the Complainant's Contract of Employment. In opposition the Respondent submitted that the Contract of employment did not provide that the Performance Appraisal List would be an exhaustive list to assess the employee. That the introduction of the new criteria to assess the Complainant was permitted because employers have discretion to assess their employees. I do not agree that the proposed introduction of a new weighting and three new benchmarks in the Performance Appraisal of the Complainant J31 amounted to wrongful dismissal or wrongful termination of the employment contract. I find that the Respondent had the latitude or discretion to reasonably alter work practices and this includes changing Performance Appraisal criteria, on the authority of the case of MOTOR INDUSTRY STAFF ASSOCIATION V SILVERTON SPRAYPAINTER AND PANEL BEATERS (15). I find that the change in Performance Appraisal criteria attaching to the job of Director General was reasonable and lawful because it was linked to the Complainants contractual duties. The termination of the Complainants employment was not in breach of the Contract of Employment and as such it was not wrongful. It was not carried out in a manner contrary to the procedure for termination in the contract of employment and therefore no damages for wrongful dismissal are payable to the Complainant. The Complainant also demanded for damages for loss of income for the remainder of the duration of the contract. It is trite that Zambian law does not permit such relief. The Supreme Court has in a number of cases guided that the law does not allow payment of benefits such as salary or pension for a period not worked for because such an award has not been earned and would constitute unjust enrichment to the employee. The cases of ZAMBIA STATE INSURANCE CORPORATION LIMITED AND THE ATTORNEY GENERAL V ALISAND SINGOGO (16); ZAMBIA TELECOMMUNICATIONS COMPANY V EVA BANDA (7) AND KITWE CITY COUNCIL v NG'UNI (17) are instructive on this issue. A perusal of the Contract of Employment shows that Clause 24.1 gave the Respondent the right to terminate the contract between the parties by way of three months written notice or payment of three months' salary in lieu of notice. The Respondent also cited the reason for terminating the contract as unsatisfactory performance in compliance with Section 36(3) of the J32 Employment Act, Cap 268 of the Laws of Zambia as amended by Act N0. 15 of 2015 which expressly states that an employer should give reasons for terminating an employee's contract. It is trite that although an employer is required to give a valid reason for terminating an employee's contract which reason must be connected with the capacity or conduct of the employee or operational requirements of the employer there is no requirement that the employee must be accorded an opportunity to be heard. The requirement that an employee must be heard applied only to employees on oral contracts (Section 26A of Cap 268). I find therefore that the Complainants submission that the Respondent breached the rules of natural justice particularly the principle of audi alteram partem when it did not give the Complainant an opportunity to clarify himself on the allegation of unsatisfactory performance to be misconceived. I also considered the case of REDRILZA LIMITED V ABUID NKAZI (8) already alluded to above, where the Complainants commenced an action and asked the court to examine the real reason for the termination of their contracts by notice. Although the lower court pierced the veil and stated that the real reason for their termination was because they were the ring leaders of the group that had submitted their grievances against the Respondent, the Supreme Court allowed the appeal and stated that while the Industrial Relations Court is empowered to pierce the veil, the power must be exercised judiciously, and in specific cases where it is apparent that the employer is invoking the termination clause out of malice. The Court further found that there was no evidence of malice on the part of the appellants and allowed the appeal. Based on this case, I note that a Court can only examine the real reason for termination by notice where there is evidence of malice on the part of the employer. In this case, the Complainant has not adduced sufficient evidence for this Court to determine on a balance of probabilities that there was malice on the part of the Respondent. The evidence on the record shows that the Complainant delayed the review of his Probationary Performance Appraisal by not submitting the completed self-assessment Performance Appraisal form by close of business on 14th June 1 2018 but only doing so after he was reminded on 6th October, 2018. Having a relationship which is not cordial with a supervisor does not prove malice or bad faith. I find therefore that there was neither malice nor bad faith on the part of the Respondent or the Board's Chairperson or Vice Chairperson. I am guided by the case of TEBUHO YETA V AFRICAN BANKING CORPORATION ZAMBIA LIMITED (18) which is authority for the proposition that a probation period is a work test period for the benefit of both parties: the employer to assess whether the employee is suitable for the position and the employee has the opportunity to decide whether to take up the job permanently. In casu, the employer assessed the employee's suitability for the position of Director General, and found that he was not suitable due to his performance during the probation period. I find neither malice nor bad faith in the assessment carried out by the Respondent. Based on the foregoing and the evidence before me, I find and hold that the termination was not invoked out of malice. The Complainant contends that the Respondent breached the Contract of Employment by (a) not following Clause 3.6.3 of the Terms and Conditions and (b) applying Clause 15 of the Contract when conducting the Complainant's appraisal which was not an annual review. The letter of offer of employment which the Complainant accepted stated that the probationary period would be for four months. It follows therefore J34 that the probationary period of three (3) months contained in Clause 3.6.3 of the Terms and Conditions was varied by consent of both parties to four (4) months. Apart from that Clause 3.6.3 of the Terms and Conditions gives the Respondent the discretion whether or not to extend the probationary period for a further and final three (3) months where performance or conduct is found to be unsatisfactory. The Record shows that the Complainants Contract was with effect from 15th January, 2018 and that the Board ( decided) resolved to terminate the employment on 5th October, 2018. This means that the probationary period of four (4) was in effect extended by another four (4) months and as such the Complainants contention that the Respondent never applied or followed the aforesaid provision is in my view a red herring. I have perused Clause 15 of the Contract of Service and note that it makes reference to an annual review. As the Complainants appointment letter indicated four (4) month probationary period within which specific key performance indicators were to be achieved, I find that the Performance Appraisal which had to be conducted before he could be confirmed in his appointment had to be conducted under Clause 15 aforesaid. I find that the Complainants performance during the extended probationary period was conducted at the 4 7 th Ordinary Board Meeting held on 5 th October, 2018. I accept RW2's testimony that upon the review of the Complainants Performance based on the Performance Benchmarks the Complainant's Performance was found unsatisfactory by the members. That the decision was unanimous and it was further resolved to terminate the Complainants Contract as evidenced by the Resolution on page 187 of the Agreed Bundle of Documents. I find that termination of the Complainants employment was in accordance with the Contract of Service. It is settled law that invoking the Notice Clause is one lawful way of terminating a Contract of Employment. It is J35 evident, in the instant case that invoking the Notice Clause by the employer was an agreed mode of termination of the employment relationship. The Termination Letter dated 12th April, 2019 addressed to the Complainant outlines the reason for termination i.e unsatisfactory performance and the terminal benefits payable to the Complainant. It is common cause that payment in lieu of notice was made. In the circumstances, I find that the Respondent was well within its contractual rights when it invoked the termination clause and paid the Complainant 3 months in lieu of notice and also gave reasons for termination. The record shows that the Complainant was being paid his monthly salary up until he was paid the terminal benefits and gratuity. As such he did not suffer any inconvenience or stress and he cannot therefore be paid damages for mental distress and inconvenience. I however note that the Complainant adduced evidence that he was underpaid by the Respondent and in this regard I order that the amount still due to him, if any, be assessed by the Registrar. All of the claims by the Complainant against the Respondent fail. I accordingly dismiss them. Each party will bear his or its own costs. DELIVERED THIS 31ST DAY OF DECEMBER 2020. WUliam S. Mweemba HIGH COURT JUDGE J36