Phiri v Executive Fit and Tailors (COMP/IRCLK/419/2021) [2022] ZMHC 127 (4 August 2022)

IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (Civil Jurisdiction) COMP/IRCLK/419/2021 BETWEEN: PETER PHIRI AND COMPLAINANT EXECUTIVE FIT AND TAILORS RESPONDENT - CORAM: Hon Lady J ustice Dr. W. S . Mwenda at Lusaka this 4th day of August, 2022. For the Comp lainant: Mrs. J . Lumamba-Hamalike - Legal Aid Counsel, Legal Aid Board For the Respondent: Mr. M. Muyatwa of K. B. F. and Partners JUDGMENT Cases referred to: 1. Khalid Mohamed v. The Atton1ey-General (1982) Z. R.49 (SC). 2. B. J. Poultry Farm Limited v. Nutri Feeds Zambia Limited, SCZ Appeal No.166 of 2015. 3. Richard Sikwebele Mwapela v. Miyutu Chinga, Appeal No. 14 of 2017. 4. Wils on Mas au so Zulu v. Avondale Housing Project Limited, SCZ Judgment No. 31 of 1982. Legislation referred to: 1. The Evidence A ct, Chapter 43 of the Laws of Zambia. 2. Orde r 10, rule 5 of the Cou rt of Appeal Rules, S. I. No. 65 of 2016 (the Court of Appeal Rules). 1 . INTRODUCTION J2 1. 1 This matter was commenced by way of Notice of Complaint, a ccompanied by an Affidavit, both dated 4 th August, 2021, wherein the Complainant seeks the following reliefs: (a ) Leave days; (b)Gratuity; (c) Salary arrears for 4 months (April to July); (d) Underpayment of salary; (e) Transport and Housing Allowance; (f) Overtime on public holidays; and (g) Costs and any other reliefs that the Court may deem fit. 1.2 In response to the Complaint, the Respondent filed an Answer on 11 th February, 2022, in which it is denying having ever verbally employed the Complainant and is refuting the Complainant's claims. Further, the Respondent has denied having ever temporarily suspended the Complainant on 31 st March, 2021. That, the Complainant was never employed by the Respondent, but merely did some p iece work from time to time for one Mr. Mwenya Chama, a director in the Respond ent Company. 1.3 The matter proceeded to trial on 10th July, 2022 and both parties presented th eir respective cases , appearing through Counsel. 2. COMPLAINANT'S CASE J3 2 . 1 The Complainant asserts th at h e was verba lly employed by the Responden t on 20th August, 2018, as a Security Officer and on 31st March , 202 1, the Respondent temporarily s usp end ed h im from work due to Covid-1 9. 2 .2 The Com plainant further asserts that he was advised by the • Re s pondent that they would contact him once the pandemic reduced , but have not done so to date. That, he went to seek a s sistance from the Labour Office, which summoned the Resp ond ent, but all in futility, h en ce the proceedings herein. 3 . RESPONDENT'S CASE 3. 1 The Respondent has denied having ever employed the Com p lainant as Security Guard and has averred that the Respondent's premises have always had a Mr. Kalaba as the Security Guard. 3.2 The Respondent als o denies that it suspended the Complainant temporarily on 3 1st March, 2021 , as the Complainant was never an employee of th e Responde n t. 3.3 It is the Respondent's position that the Complainant 1s a relative of a Mr. Banda, a cobbler who operated outside the J4 Respondent's premis es and would be engaged by the Director of the Respondent (Mr. Mwenya Chama), every now and then to clean h is car and sweep the area where he requested to s tore his tools. That, it was Mr. Mwenya Chama and not the Respondent who would pay Mr. Banda as and when he was required to do such piece work. 3 .4 The Respondent asserts that all its e mployees have formal • contracts of employment. 3.5 It is the Respondent's averme nt that when Mr. Banda had to travel to the village, he introduced Mr. Mwenya Chama to th e Complainant and advised that the Comp laina nt would assist in doing the piece work on behalf of Mr. Banda while Mr. Banda was away. 3 .6 It is the further position of the Respondent that when the Lab our Office summoned the Respondent, Mr. Mwenya Chama h a d travelled out of jurisdiction and thus , was unable to a ttend at the Labour Office. 3 .7 The Respondent has denied the Complainant's entitlement to any of the r eliefs being sought and h a s averred that this is because the Complainant was paid as and when he did som e piece work. That, when the Complainant found an employment opportunity, he went to Mr. Mwenya Chama and JS asked if he could write the Complaina nt a letter of recommendation , as the Complainant was required to show proof of work experience to his pros pective employer. SUMMARY OF EVIDENCE 4 .1 Du ring trial, the Complainant testified that after he started work ing for the Respondent in August, 2018, he worked there • for a period of 2 years and 7 months, when one of the Respondent's directors, Mr. Mwenya Chama, told him to go home and wait until Covid-19 reduced. 4.2 That, after being temporarily suspended for two m on t h s, the Complainant went back to Mr. Mwen ya Chama to ask if the Respondent could consider paying the Compla inan t a salary and Mr. Chama refused. 4 .3 Th at, after Mr. Chama's response , the Complainant went to report the matter at the Labour Office and on two oc casions when Mr. Chama was s ummoned, he never showed up. That, thus, the officers at the Labour Office referred the Complainant to this Cou rt. 4.4 The Complain ant stated th at what he wanted this Court to do is to direct the Respondent to pay h im h is leave days, transport allowance, underpaymen t of salary by K.2 5 0.00. J6 4 .5 The Complainant testified that he was being paid K800 .00 plus K20 0.00 for not going on off duty. He testified that h e is seekin g lea ve days pay because he had never gone on leave d uring the course of employm ent. 4 .6 Th e Complainant stated that his employer was the Respondent and as proof of the employment, the Complainant referred the Court to a letter of referen ce written by the Respondent. • 4 .7 During cross-examination, the Complaina n t con ced ed th at he had not produced any d ocument before Court to prove that he was employed by the Re spondent. 4.8 The Complainant further conceded that he h ad also not produced any document before Court to prove his assertion that he used to be paid the sum of K800 .00 as his monthly s alary or to prove any of the reliefs he is seeking. 4 . 9 The Complainant als o stated that there was no one present when he and the Respondent allegedly entered into the verbal contract of employment. 4 .10 The Complainant also conced ed tha t a Mr. Kalaba is th e guard of the premis es from wh ich th e Respondent op erates . J7 4.11 The Complainant also confirmed that he had been introduced to Mr. Mwenya Chama by Mr. Banda and that he was not going to call Mr. Banda as his witness. 4.12 In re-examination, the Complainant stated that Mr. Kalaba was one of the guards at the Respondent company. 4 .13 For the Respondent's case, the witness testifying was Mr. • Mwenya Chama, a Director in the Respondent Company whose testimony was that the Complainant n ever worked for the Respondent Company. 4 . 14 Mr. Mwenya Chama further testified that he and three others were the directors of the Respondent and to this end, referred the Court to a Patents and Companies Registration Agency (PACRA) print out, exhibited at page 15 of the Respondent's Bundle of Documents. 4.15 Mr. Chama testified that the Respondent was incorporated in 2012 and has a total of 5 employees, whose positions had been advertised and proceeded by interviews prior to being filled up. He testified that after interviews, the practice is that the company draws up a contract for a particular employee. 4.16 Mr. Chama further testified that the Complainant was never hired or temporarily suspended by the Respondent and that no employee of the Respondent was ever suspended. J8 4 • 1 7 Mr. Chama also testified that when the documents from the Labour Office arrived, he was not around as he had gone to America to visit his children. That, the documents were addressed to the Respondent. 4.18 It was Mr. Chama's further testimony that he had a personal relationship with the Complainant and once in a while he would engage him for different types of piece work , such as cleaning around, sending him , offloading and cleaning his car. That, h e engaged the Complainant in his personal capacity. 4.19 Mr. Chama stated that there are six blocks of flats where the Respondent operates from and one entry point. That, the flats have one communal guard by the name of Mr. Kalaba and the Respondent's premises are well secured. He testified that the Respondent's premises have an alarm system and burglar bars all around the building. In this regard, Mr. Chama referred the Court to pages 1- 6 of the Respondent's Bundle. 4 .20 In cross-examination, Mr. Chama confirmed that he is the Chief Executive Officer of the Respondent and has been with the Respondent since 2012. 4.21 Mr. Chama clarified that the procedure of the Respondent when hiring employees is that they advertise the position, J9 online · or through other networks. He conceded that he had no advert to show that they advertise positions. 4.22 Mr. Chama clarified that Mr. Kalaba is the security guard for the whole premises and the Respondent has no specific security guard. That, the Respondent's landlord pays for the security guard. 4 .23 Mr. Chama further clarified that Mr. Banda was trading outside the Respondent's wall fence and on ce in a while, he would engage Mr, Chama to give him som e piece work. That, he would pay him each time he did the piece work 4.24 Mr. Chama also clarified that Mr. Banda introduced the Complainant to Mr. Chama as his brother-in-law who had no job and needed some assistance with work. 4.25 Mr. Chama confirmed that he wrote a letter of recommendation, m his name, as a favour to the Complainant. 4.26 In re-examination, Mr. Chama clarified that the letter of recommendation was in his name. 4 .27 This marked the close of the Respondent's case. SUBMISSIONS JlO 5 . 1 At the close of the trial, both parties indicated that they would not file any submissions. 5 .2 The matter was thus reserved for the judgment herein. 6 DETERMINATION OF MATTER 6.1 I have carefully considered the parties' cases, as well as the evidence tendered in aid, thereof. 6.2 The Complainant is alleging that he was employed by the Respondent Company, under a verbal contract as a Security Officer. That, during the tenure of his employment Covid- 19 hit and he was temporarily suspended until th e pandemic had reduced. In this regard, the Complainant is claiming the following reliefs: (a) (b) (c) (d) (e) (f) (g) Leave days; Gratuity; Salary arrears for 4 months (April to July); Underpayment of salary; Transport and Housing Allowance; Overtime on public holidays; and Costs and any other reliefs that the Court may deem fit 6.3 The Respondent on the other hand, has completely denied having ever employed the Complainant or temporarily suspending him during the peak of Covid-19 . The witness Jll called by the Respondent, Mr. Mwenya Chama, one of the directors of the Respondent, has maintained that he used to engage the Complainant in various piece work as and when needed. That, he did so in his own capacity and not as the Respondent. 6.4 Before I proceed to address the reliefs that the Complainant is seeking herein, it is of great importance to resolve a primary issue that, in m y view, will d etermine wh e ther or not to entertain the substance of the Compla inant's claims. This issue is that of whether or not th e Complainant was employed by the Respondent. 6.5 The Respondent has maintained that it h as n ever employed the Complainant and that the practice in the company is that when a position needs to be filled up , the company advertises such position, conducts interviews and hires successful candidates by drawing up a contract of employment which the candidate signs. 6 .6 The Complainant insists that his contract of employment with the Respondent was made orally and the only parties present at the time of making the contract were himself and one Mr. Mwenya Chama. During cross-examination of the Complainant, a question was put to him as to whether he J12 had produced any documentation to prove any of his allegations and his response that he had nothing before Court. 6. 7 It is trite law that a plaintiff or complainant bears the burden to prove his assertions on a balance of probabilities, regardless of the defendant's or respondent's defence, see Khalid Mohamed v. The Attorney-General 1 and B. J. Poultry Farm Limited v. Nutri Feeds Zambia Limited2 . 6.8 I am further guided by Section 5 of the Evidence Act, Chapter 43 of the Laws of Zambia, which provides as follows on the weight to be attached to evidence : "5. (1) In estimating the weight, if any, to be atrached to a statement admissible as evidence by virtue of this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the person who supplied information contained or the recorded in the statement did so contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not that person, or any person concenied with making or keeping the record containing the s tatement, had any incentive to conceal or misrepresent the facts. (2) For the purpose of any rule of law or practice requinng evidence to be corroborated or regulating the manner in which uncorroborated evidence is treated, a statement rendered admissible as evidence by this Act shall not be treated as corroboration of evidence given by the maker of the statement." to be • J13 6 .9 I have considered the Complainant's testimony and in the light of him producing no document before this Court, to substantiate his assertions, there is simply not enough · evidence to persuade this Court to make a finding that the Complainant was the Respondent's employee on a verbal contract. 6.10 From my observation, which is further corroborated by Mr. Mwenya Chama's own testimony, what seemed to come out of the Complainant's narration of the facts is that he was dealing personally with Mr. Mwenya Chama and doing some work for the latter from time to time. The Complainant seems to have only dealt with Mr. Chama and no other personnel of the Respondent Company. Therefore, considering the Complainant's testimony in totality and in relation to the reliefs he is seeking, it would mean that Mr. Chama who is director, singularly hired the Complainant on behalf of the Respondent, processed the Complainant's salary and personally handed it to the Complainant, and singularly handed all human resource affairs concerning the Complainant. This does not seem tenable in a setting such as an incorporated company which is its own legal person. 6.11 The Respondent had produced a contract of employment J14 between itself and one Alifonso Chimaga (at page 7 of the Respondent's Bundle of Documents) as a way of demonstrating the practice adopted by the Respondent 1n hiring its employees. I have observed from the exhibit that the execution of the contract on the part of the employer bears the Respondent's stamp, to signify that the employer is the Respondent and none other. Unfortunately for the Complainant, his testimony is that he and Mr. Mwenya Chama were the only two people when he wa s being orally engaged by the Respondent. 6 .1 2 In view of the foregoing, I am inclined to find that the Complainant was never employed by the Respondent. He has simply not demonstrated to this Court that the Respondent, - which is an incorporated company limited by shares and a person at law, actually engaged him as its employee. What is apparent, however, is that t h e Complainant was dealing with Mr. Mwenya Chama in his individual capa city and who would, from time to time , give him some work. This fact , Mr. Mwenya Chama has personally admitted. 6 . 13 There is no evidence on the Complainant's part to prove that he ever was an employee of the Respondent company. I find .. J15 no 'employer and employee' relationship between the Complainant and the Respondent to warrant the consider a t ion of the reliefs being sought by the Complainant herein. I am guided, in this regard , by the Constitutional Court which stated the following in the case of Richard Sikwebele Mwapela v . Miy utu Ch inga3 : "It is settled law that a trial court is entitled to make findings of fact where the parties advance directly conflicting stories and the court must make those findings based on the evidence before it, having seen and heard the witnesses giving the evidence as was held in the case of Attomey General v. Ka/coma." 6.14 In light of the above, there is simply no basis upon which I am to proceed to address the reliefs that are being sought by the Complainant herein as the same can only be considered in respect of a person who is undoubtedly an employee, which the Complainant herein is not. On the strength of the case of Wilson Masauso Zulu v . Avondale Housing Project Limited4, therefore, it goes without saying that a plaintiff or com p lainant who fails to prove his case cannot be entitled to j udgmen t, whatever may be said of the opponent's case. ORDERS 7 . 1 In view of the foregoing, it is h ereby ordered as follows: . ,. e (i) The Complaint's cla im s for leave days; gratuity; salary arrears for 4 months (April to July); und erpayment of salary; transport and housing allowance; and overtime on public holidays, wholly fail and are accordingly dismissed; (ii) Each party to bear own legal costs. 7.2 Leave to appeal is denied . I am fortified, in this regard, by Order 10, rule 4 (1) of the Court of Appeal Rules, Statutory Instrument No. 65 of 2016 (the Court of Appeal Rules), which states as follows: leave to appeal "The High Court or a quasi-judicial body may grant or refuse the Court without fonnal application at the time when judgment is given, and in that event the judgment shall record that leave has been granted or refused accordingly. " to Delivered at Lusaka t his 4 th day of August, 2 022 Dr. Winnie i - l --~wenda \ I O 4 AUG ~ •- • ....... UDGt -lN-C