Pius Chilufya Kasolo v ZCCM Investments Holding Plc (APPEAL NO. 185/2022) [2024] ZMCA 311 (28 November 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 185/2022 HOLDEN AT KABWE (Civil Jurisdiction) BETWEEN: : . ,. <o,r .,,'!. \)..> , ✓. , • \ .. ~;v •e,v,·· f., .... ·~ . - --~ . .:,- ~ o" Af PEAL ., - - - ' PIUS CHILUFYA KASOLO LLANT AND l _, ..... ;- 1::.1 1- , l ,;.;tvL, • ~ ~___.,.. ,. .._,. P,o·-;:;.--:;-;, ",,,'! ~ --., ... ,,t\\" .. .,. ZCCM INVESTMENTS HOLDING PLC RESPONDENT ~ - Coram: Kondolo, S. C, Majula and Banda-Bobo, JJA. On 23rd May, 2024 and 28th November, 2024. For the Appellant: Mr. W. Mubanga, SC and Mr. M. Mubanga, both of Messrs Chilupe and Permanent Chambers, and Mr. C. Chungu of Nsapato and Company For the Respondent: Mr. B. Mbilima - In House Counsel JUDGMENT Banda-Bobo, JA delivered the Judgment of the Court. Cases referred to:- 1. 2. / Tolani Zulu and Musa Hamwala v. Barclays Bank Zambia Limited (SCZ Judgment No. 17 / 2003) Attorney General v. Marcus Kampumbu Achiume (SCZ Judgment No. 2 of 1983) 3. MP Infrastructure Zambia Limited v. Matt Smith and Kenneth Barnes (Appeal 102 / 2020) Albert Mupila v. Yu Wei (2022) ZMIC 2 Supabets Sports Betting v. Batuke Kalimukwa (110 of 2016) (2019) 4. 5. • l 6. 7. 8. 9. Attorney General v. Paul Chilosha (2019) ZMSC 338 Sarah Aliza Vekhnik v. Casa Dei Bambini Montessori Zambia Limited (2018) ZMCA S. A. Clothing and Textile Workers Union and Others v. Discrete - A Division of Trump and Springbok Holdings (1998) 12BLLR 1228 (LAC) Zambia Consolidated Copper Mines v. Matale (SCZ Judgment No. 9 of 1996) 10. Giles Yambayamba v. Attorney General and National Assembly (SCZ/ 26/ 2015) 11. Butler Asimbuyu Sitali v. Energy Regulation Board (Appeal No. 12 / 2017) 12. Christopher Mulenga and 2 Others (Appeal No. 12/ 2015 selected 13. Judgment No. 421 2017) Savenda Management Services v . Staribic Bank (Selected Judgment No. 10 of 2018) 14. Harrison Fwalo Chikasa v. Chantete Mining Services Limited (Comp/ 10/ 2016) (unreported) 15. Chilanga Cement v. Kasote Singogo (SCZ Judgment No. 13 of 2009, 16. National Milling Corporation v. Angela Chileshe Bwembya Silwamba (2018) ZMSC 567 1 7 . Chansa v. Barclays Bank Plc (Appeal 111 / 2011) 18. 19. Suhayl Dudhia v. Citi Bank Zambia Limited Standard Chartered Bank Plc v . Celine Meena Nair (Appeal 14/ 2019) (Comp No. IRC/ 211 / 2013) 20. First Quantum Mining and Operations (Appeal No . 206/ 2015) 21. Zambia Privatisation Agen cy v. James Matale (Appeal No. 96 of 199 5) 22 . Bupe and Another v. Zambia National Commercial Bank (SCZ Appeal No. 27 / 2000) (unreported) 23. Swarp Spinning Mills PLc v. Chileshe and Others (2202) ZR 23 , 24. Zambia State Insurance Corporation and Attorney General v. Singogo (SCZ Appeal No. 2 / 2007) 25. Barclays Bank Zambia Plc v. Weston Luwi and Suzyo Ngulube (SCZ Appeal No. 07/ 2012) Legislation referred to:- • The Employm ent (Amendment) Act No. 15 of 2015 J2 . ! • The South African Labour Relations Act, 1995 • The Employment Act, Cap. 269 • The International Labour Organisation (110) Termination of Employm ent Convention No. 158, 1982 • The Industrial and Labour Relations Act Cap. 269 Other Works referred to:- 1. Mwenda, J, Employm ent Law in Zambia: Cases and Materials 2. Selweyns Law of Employment 1.0 1. 1 2. 0 2.1 Introduction This is an appeal against the Judgment of Hon. Mr. Justice E. Mwansa, delivered in the Industrial Labour Relations Division of the High Court, at Lusaka, on 30th June, 2022. The parties will be referred to as they appear in this Court. Background Briefly, the background to this matter is that the appellant, who had been employed as a Chief Executive Officer (CEO), and was serving his second term of contract for a period of 36 months, had his contract terminated before it expired. This termination was on 1st February, 2019. 2.2 It was his Complaint that in a letter dated 31st January, 2019, the respondent unjustifiably and illegally terminated his employment, in that the termination was effected J3 ' I ' I without giving the complainant valid reasons, connected with his conduct or performance, and neither was he accorded an opportunity to be heard prior to the termination. 2.3 The respondent, 1n its letter of termination advanced a reason for termination, couched thus:- "As you are aware, the company has recently adopted a new strategic plan for the period 2018 to 2023. The company has decided to terminate your services to pave way for a new Chief Executive Officer to run with the new plan." 2.4 The appellant, dissatisfied with the reason, commenced an action in the Industrial Relations Division, High Court, seeking various reliefs and Orders. 2.5 In the affidavit in support of the Complaint, appearing at page 83 of the record of appeal (ROA), Vol. 1, the appellant gave a historical background to his employm ent relationship with the respondent; and the terms embedded in the contract the parties entered into. 2.6 It was the appellant's contention that in the period of his employment, he served the respondent to the best of his J4 • t ability, and turned the company into a World Class Investment Company, by putting in place a five year robust strategic plan. He went on to tabulate the various milestones attained by the respondent in the time he was at the helm. 2 .7 That sometime in 2019, about 28th January, he responded to a journalist from Bloomberg on the effect of a proposed sales tax on the financials of the respondent company. That as a result of his response , some media houses printed articles wherein he was branded, among other things, as a traitor and calling for his removal. 2 .8 That this was later followed by a telephonic conversation, and an in person meeting with the Chairperson of the Board of the respondent. That he was informed by the Chair, that his comments on the sales tax had been blown out of proportion and that he , the Chair, had been instructed to terminate the appellant's employment with immediate effect. 2.9 That on 1st February, 2019, his employment was terminated without prior warning, and by way of an announcement on the Zambia National Broadcasting Corporation Television JS (ZNBC), at a press briefing by the Minister of Mines, and the press aide to the then Republican President. 2.10 He was handed a letter of termination, in which it was stated that he would be paid 3 months' salary in lieu of Notice and requesting him to vacate the company residence by the end of February. 2.11 It was his deposition that the letter did not state the reasons for terminating his contract. 2.12 He claimed that the termination of his employment was unlawful, as the respondent ought to have stated reasons for the said termination, and given him an opportunity to be heard; which was not done. That he believed that the reason given in the letter did not amount to a valid reason as envisaged by the Employment (Amendment) Act, 15 Of 2015. 2.13 He was of the belief that the real reason for termination was premised on the allegations reported by the media in response to the answer he gave on the issue of the proposed tax regime. That he had been advised that his termination had been precipitated by the allegations against him. J6 2.14 That he ought to have been charged so that he could defend and exculpate himself; after which appropriate action could have been taken against him. 2 . 15 That by invoking the notice clause to terminate his contract, the respondent infact summarily dismissed him under the guise of termination by the said notice clause, which notice was a flagrant contravention of the relevant provisions of the Employment (Amendment) Act, No. 15 of 2015. That he had been advised that the use of the Notice Clause in its quest to terminate his services, amounted to abuse in that a Notice Clause should not be used as a substitute to dismiss. 2.16 It was his further averment that, according to relevant provisions of the Employment (Amendment) Act, he was wrongfully removed from the respondent's company and believed his termination was a flagrant breach of the rules of natural justice and the Employment (Amendment) Act. 2 . 17 The respondent filed an answer to the Complaint on 25th March, 2021. In the affidavit in support of the respondent's answer to the complainant, the whole Complaint was J7 ' ' ' traversed thoroughly. Of relevance, was the averment that the employment contract for the appellant provided for the employer to give three (3) months' notice of termination or payment of three (3) months basic pay in lieu of notice. That infact a reason for termination was given, namely to pave way for a new CEO to run with the strategic plan. That the complainant had been advised what he would be paid upon termination, and he was paid prorated gratuity, leave days and three months' pay in lieu of notice, less what he owed the company. 2.18 The Respondent did not dispute terminating the appellant's employment by way of a letter of termination. That all his dues were paid. That therefore the dismissal was neither unlawful nor unfair as it was done in conformity with the provisions of, among others; the Contract of Employment, the Employment Act, Cap 268 of the Laws of Zambia, and the respondent's policies and procedures. That the appellant's claim was incorrect, and an afterthought, in view of Clause 8 of the contract of employment. J8 ' I 2.19 That the appellant was entitled to payment in lieu of notice , his three months' salary, accrued leave days and prorated gratuity up to the date of his dismissal, which were all paid to him in full after his dismissal. 2.20 That in view of the above, the Complaint lacked merit and the Complainant was not entitled to any of the reliefs sought. 3.0 3 . 1 Decision of the Lower Court The learned Judge received evidence from the appellant in support of his case. The testimony for the respondent came from their single witness, a Mr. Patson Banda. 3.2 In coming to his determination, the learned Judge identified two (2) issues for resolution, namely:- (i) Whether the reasons given by the respondent for termination using the notice clause are valid or whether or not the veil can be pierced; (ii) Whether in the circumstances, the termination could be held to be wrongful or unlawful. 3.3 In answering the first issue, the learned Judge asked himself whether the reasons stated in the letter for J9 termination were sufficient. The learned Judge found that it was sufficient to cover operational requirements. That a strategic plan is an operational document. That, that being the case, the reason given by the respondent for termination was an operational one, hence valid and in compliance with the requirement of Section 36(3) of the Employment (Amendment) Act. 3.4 The learned Judge was of the view that it would have been different if no reason had been proffered at all or if he had found the meaning of "operational requirement" to be something else. Further that, the reason given need not satisfy the Employee or Complainant. That it is the court that needs to be satisfied that the reason is valid or not. He found that the reason given fell within the requirement of the law. 4.0 Regarding the second issue, the learned Judge found that there was no wrongful nor unlawful termination. To arrive at his decision, the learned Judge relied on the case of Tolani Zulu and Musa Hamwala v. Barclays Bank Zambia JlO ' ' Limited1 , for the proposition that the respondent used the Notice Clause in the agreement, which was an option to them; besides that of prosecuting the appellants, proffering disciplinary charges or indeed giving him the notice required under the conditions of service or pay the amount in cash in lieu of notice. 4.1 It was the learned Judge's conclusion that all salaries, allowances and prorated gratuity was paid at termination. That there could be no award for the unworked portion of the contract as that would amount to unjust enrichment. 4.2 All in all, he found no merit in the appellant's case, and 5.0 5. 1 dismissed it in its entirety. The Appeal Discomforted by the verdict of the lower court, the appellant now comes to this Court on appeal, fronting seven (7) grounds couched thus:- 1. The Honourable Judge in the court below erred in fact and in law by holding that the termination of the Appellant's contract by the respondent was an operational one and Jll therefore valid and in keeping with the requirement of Section 36(3) of the Employment Act Chapter 268 of the Laws of Zambia (As amended by Act No. 15 of 2015) when there was no such evidence; 2. The Honourable Judge in the court below erred in fact and in law when he made a finding that the letter of termination carried a reason which satisfied the court below as valid and within the requirement of the law when that was not the case; 3. The Honourable Judge in the court below erred both in law and fact by failing to consider the various judicial authorities that have given guidance to the rules as regards doing substantial justice and piercing the veil in search of the real reasons for termination; 4. The Honourable Judge in the court below erred in fact and in law by failing to recognize the fact that the respondent did not give the appellant an opportunity to be heard prior to the termination as regards the operational requirements of the respondent as it ought to have done in accordance with the law. J12 5. The Honourable Judge erred in fact and in law by disregarding all the appellant's evidence for the real reason behind the termination; 6. The Learned Judge in the court below was not on firm ground when he held that the respondent's termination of the appellant's employment was properly done and within the power of the respondent because an employer is at liberty to simply invoke a notice clause even without giving reasons; 7. Such grounds as will be available upon perusal 6.0 6 . 1 of the case record. Arguments in Support The appellant filed his heads of argument on 18th August, 2022. 6.2 In arguing the appeal, grounds 1, 2 , 4, 6 and 7 were argued separately, while grounds 3 and 5 were argued together. 6.3 In ground one, the court was faulted for holding that the termination of the appellant's contract by the respondent was an operational one, and therefore valid as it was in consonant with Section 36(3) of the Employment Act, Cap J13 268 of the Laws of Zambia as amended by Act No. 15 of 2015. 6.4 The contention was that the said holding was made in the absence of evidence to that effect. We were urged to overturn the findings of fact, as the findings were perverse. That in line with the case of Attorney General v. Marcus Kampumbu Achiume2 the court is entitled to overturn perverse findings of fact made by a lower court. 6.5 It was contended that the reason given in casu, for the termination was not tenable as no evidence had been led to back up the respondent's assertion that they needed a new CEO to run with the new plan. In support, we were referred to the case of MP Infrastructure Zambia Limited v. Matt Smith and Kenneth Barnes3 where we held that: - "It has been argued on behalf of the appellant that the reason given was valid as the appellant was not obliged to prove the reason. We however agree with the learned trial Judge that the termination was unlawful as the appellant failed to provide a "valid reason" for the same. This is because there was no notice of any wrongdoing on the part of the J14 2 nd respondent. The appellant alleged that they had reviewed the 2nd respondent's work performance but did not produce the work appraisals in evidence. We therefore find no merit in ground one." 6.6 Counsel adumbrated the reason for the amendment of Section 36(3) and referred to the second Reading of the Employment (Amendment Bill) No. 15 of 2015, where the intention of the Legislature in formulating the law, was inter alia, to address the lack of employment security, eliminate gross abuse of workers' rights and enhance the country's labour administration in line with the International Labour Organisation (ILO) Termination of Employment Convention No. 158, 1982. 6 . 7 Regarding the lower court's consideration of termination based on the operational requirements of the undertaking, counsel submitted that our legislation does not provide a definition of the term "operational requirements". Counsel pointed to the decision of the Industrial Relations Court in the case of Albert Mupila v. Yu Wei4 where the issue of 'operational requirements' was discussed. That the court JlS gave guidance on the basis upon which termination based on the operational requirements of the undertaking should be made; where it held that:- "The distinction between termination for operational requirements and redundancy is that termination for operational requirements is based on a bonafide commercial reason such as inability to financially sustain an employee or due to a restructuring exercise, while redundancy is only triggered when one of the redundancy situations in Section 55(i) of the employment Code Act arises." 6.8 Counsel submitted that termination connected to the operational requirements of the undertaking is one that is based on a banafide commercial reason such as inability to financially sustain an employee or due to a restructuring exercise. Counsel urged us to endorse this. 6.9 It was counsel's submission that what would constitute a bona fide commercial reason would be dependent on the employer; but that however, in order to ensure fairness, an employer ought to substantiate and justify the reason for termination. That the respondent ought to have been clear J16 - I and precise, by indicating in the letter of termination, why it felt that the appellant was incapable of running with the plan or why it required a new CEO to run with the strategic plan. 6.10 Counsel further adverted to the South African jurisdiction; to supplement his argument, which jurisdiction he contended is equally subscribed to the International Labour Organisation's Convention No. 158, having domesticated the same way before Zambia did. Counsel cited Section 213 of the South African Labour Relations Act, 1995 which defines "operational requirements" to mean: "requirements based on the economic, technological, structural or similar needs of an employer" 6.11 It was contended that this definition sits well with the guidance given in the Mupila4 case, and it would assist in formulating an appropriate definition of the term, and would not only add value to our jurisprudence, but bring certainty and clarity on what it entails to terminate an J17 employee's contract based on the "operational requirements" of the undertaking. 6 . 12 Counsel argued that the burden of proving the existence of a valid reason for termination lay upon the employer, since he is the one who initiates the termination. That he is thus under an obligation to provide evidence that the reason for termination is valid, otherwise employers would come up with a myriad of excuses to use, to disguise the real reason for terminating an employee's employment. 6.13 Counsel went on to state that Section 52(2) of the Employment Code Act No. 3 of 2019 has captured what was Section 36(3) of the repealed Employment Act. That the current Act has codified Article 9(2) of the Convention by way of Section 52(5). 6.14 Reverting to the matter at hand, counsel argued that the respondent failed to discharge its burden, despite filing an answer to the complainant, and appearing at trial. That it did not provide evidence to the effect that the termination J18 of the contract of employment was fair and for a valid reason. 7. 0 That in casu, other than the letter of termination, which stated nothing about the respondent's operational requirements, there was no evidence provided by the respondent to substantiate the reason for termination. 7.1 To augment, our attention was called to the case of Supabets Sports Betting v. Batuke Kalimukwa5 where the Supreme Court held that:- "In the case in casu, apart from having been wrongfully dismissed, the respondent was, as correctly found by the trial court, also unfairly dismissed for the charge of sexual harassment, which, according to the evidence on record, was not supported by any relevant substratum of facts. The decision appears to have been prompted by the appellant's predetermined result to find a ground on which to dismiss the respondent ... " 7.2 That in casu, the respondent did not, in its answer, give any such evidence. That there was no evidence in the 2018 to 2023 Strategic Plan appearing from pages 496 to 596, Vol 3 of the record of appeal, produced, pointing to any specific J19 expectation, performance indicator or anything whatsoever showing that a new CEO was better fitted to run with the plan as per the respondent's purported reason for termination. 7.3 It was their submission that the respondent was in clear breach of statute when it terminated the appellant's employment, as it failed to substantiate the reason for terminating. That the finding by the court below was flawed , as there was no basis upon which it could have made this finding. 7.4 In ground 2, the learned Judge in the court below is faulted for finding that the letter of termination carried a reason which satisfied it, as being valid and within the requirements of the law when infact not. 7.5 The submissions on this ground were similar to those proffered in ground one, namely that the termination had to be for a reason, not only a reason, but a valid and justifiable reason. In support, the cases of Attorney General v. Paul Chilosha6 , Sarah Aliza Vekhnik v. Casa J20 Dei Bambini Montessori Zambia Limited7 were adverted to. That the respondent should have given reasons or the instances laid down in arriving at a decision to pave way for a new CEO, as to simply state "to pave way" was grossly insufficient. 7 .6 That the case of S. A. Clothing and Textile Workers Union and Others v. Discreto - A Division of Trump and Springbok Holdings8 is instructive as it summarises the procedure to be followed prior to a termination based on operational requirements of an undertaking. That the events prior to the termination and subsequently the manner of termination suggested political interference, hence suggesting that the reasons advanced for the termination merely disguised the real reason. 8.0 In grounds three and five, it was contended that the reason for the termination was but a smokescreen to hide the real reason for the termination. Counsel tabulated all the events leading up to the termination. That these events and the suddenness of the termination and the J21 r • announcement thereof, on the national television broadcaster by the former Presidential Aid and Minister of Mines, were highly suggestive of mala fides. That Section 85(5) of the Industrial and Labour Relations Act Cap. 269, clothes the court with power unfiltered by technicalities, to carry out substantial justice. That the effect of the said Section was elucidated in the case of Zambia Consolidated Copper Mines v. Matale9 where it was guided that in doing substantial justice, the court could delve into reasons given for termination to redress any real injustices. 8.1 Counsel contended that the lower court glossed over the crucial events as set out by the appellant; and it failed to delve behind the reasons for the termination. That the court failed to critically examine all the circumstances surrounding the termina tion. 8.2 Our attention was also drawn to the cases of Giles Yambayamba v. Attorney General and National Assembly 10 and Butler Asimbuyu Si tali v. Energy Regulation Board11 , to buttress this point. J22 8. 3 Regarding the need to do a thorough analysis of the circumstances surrounding an employee's termination, counsel adverted to our decision in the case of Sarah Aliza Vekhnik7 where we stated, inter alia that:- "... we the ref ore agree with counsel for the appellant that the court below did have power to consider the circumstances leading to the appellant's dismissal." 8.4 We were also ref erred to the cases of Christopher Mulenga and 2 Others 12 and Savenda Management Services v. Stanbic Bank Zambia Limited13 , on principles of judgment writing, which it was averred were not followed, as the learned Judge did not actively interrogate all the issues in the case. 8.5 Under ground four, the learned Judge was faulted for failing to recognize the fact that the respondent did not give the appellant an opportunity to be heard prior to the termination as regards the operational requirements of the respondent. That the failure to afford the appellant an opportunity to be heard prior to the termination amounted J23 to wrongful dismissal. That there had been no procedural fairness in the appellant's dismissal; as the proper procedure was not followed. 8.6 Reference was had to the works of Mwenda, J, Employment Law in Zambia: Cases and Materials 1, where she confirmed that wrongful dismissal looks at the form or procedural errors in effecting a dismissal. That in casu, the dismissal was wrongful because the respondent failed to afford the appellant an opportunity to be heard. Counsel drew our attention to the learned authors of Selweyns Law of Employment2 , and the case of Harrison Fwalo Chikasa v. Chantete Mining Services Limited 14 on the need for an employee, who will be affected by an adverse decision, to be given an opportunity to be heard so as to ensure fairness. 8. 7 That in the context of an employment termination based on the operational requirements of the undertaking, what would amount to procedural fairness would be to subject the employee to a consultation process. Counsel referred to the cases of Chilanga Cement v. Kasote Singogo 15 and J24 National Milling Corporation v. Angela Chileshe Bwembya Silwamba 16 on the need to consult the affected employee to ensure procedural fairness. 8 .8 Counsel adverted to the issue of the principle of natural justice, while relying on the case of Sarah Aliza Vekhnik7 in which we alluded to the requirement for the rules of natural justice to be complied with. 8 .9 In ground six, the learned Judge in the lower court is attacked for holding that the termination of the appellant's employment was properly done and within the power of the respondent, as an employer is at liberty to simply invoke the Notice Clause, even without giving reasons. 8.10 It was submitted that the learned Judge misapplied the principle in the case of Tolani Zulu and Musa Hamwala v. Barclays Bank Zambia Limited 1 , in which the Supreme Court guided that out of all the options open to the respondent, the respondent opted for the last option of paying a month's salary in lieu of Notice. That however, since the enactment of Act No. 15 of 2015, and the decisions J25 of this Court and those of the Supreme Court, an employer can no longer invoke a termination clause without giving reasons. That the Tolani1 case is a 2003 decision, long before the enactment of Act No. 15 of 15, which made it mandatory for the employer to give valid reasons for termination of an employer's contract. 8. 11 That the Tolani 1 case is distinguishable from the matter before this Court and its principles inapplicable, because, in that case, the appellant had been accused of misconduct, which resulted in the termination of his contract, while the appellant in the matter before us was facing a no-fault dismissal. 8.12 The gist of the submissions under ground seven were that the learned Judge in the court below ought to have found that there was evidence of mental torture, embarrassment and anguish suffered by the appellant as a result of the manner in which his contract was terminated. That looking at the manner of termination of the contract at the hands of the respondent and its abruptness, it warranted an award J26 of damages that are beyond the common law measure. To augment, we were referred to the cases of Chansa v. Barclays Bank Plc 17 , Standard Chartered Bank Pie v. Celine Meena Nair 18 , Suhayl Dudhia v. Citi Bank Zambia Limited19 and First Quantum Mining and Operations20 where 36 months salary as damages was awarded. That the courts in those matters rationalized the award by stating that as the global economies deteriorate, the chances of finding employment even by graduates, is dimmer. 8.13 That in casu, the appellant had brought to the court's attention the embarrassment suffered as per pages 61 7 to 625, record of appeal, Vol. 3, which showed that he had been labelled as a western puppet, selfish, traitor, corrupt and so on. That this was proof that he suffered mental torture. 8.14 Counsel went on to consider the factors that a court considers when awarding damages beyond the common law measure. That guidance was given in the Chilanga Cement Pie v. Kasote Singogo 15 and Butler Asimbuyu Sitali11, cases thus:- J27 " ... an award for torture or mental distress should be granted in exceptional cases, and certainly not in a case where more than the normal measure of common law damages have been awarded: the rationale being that the enhanced damages are meant to encompass the inconvenience and any distress suffered by the employee as a result of the loss of the job." 8.15 We were implored to allow the appeal in its entirety. 9. 0 Respondent's Arguments 9.1 There were no heads of argument by the respondent. However, on 3 rd May, 2024, counsel for the respondent made an application for leave to file heads of argument out of time. As the appeal had already been cause listed, we opted to deal with the application during the hearing of the appeal and render our Ruling there and then. 9 .2 Mr. Mbilima, counsel for the respondent, spoke to the application. Needless to say, the application was opposed by Mr. Mubanga, SC, counsel for the appellant. He argued that the respondent was served on 19th August, 2022 , a period of one year nine months. That there was inordinate delay. J28 9.3 In our Ruling, and after considering the application to file out of time, and hearing counsel for each party, we took the view that the delay in making the application was inordinate. Secondly that the reasons advanced for the delay were insufficient. For the aforestated reasons, we declined to grant the application, stating that we would proceed to hear the main appeal. That there being no heads of argument from the respondent, the respondent would not take any further part in the proceedings. Hearing 10.1 In arguing the appeal, Mr. Mubanga SC relied on the Heads of argument filed into court on 18th August, 2022 with brief oral augmentation which we note is but a repeat of the written Heads of argument, therefore we shall not reproduce them here. 11 . 0 Analysis and Decision 11.1 In our view, the major issue for resolution is whether the reason proffered by the respondent to terminate the appellant's contract of employment was in tandem with the law as found by the lower J29 court, namely that the termination was for operational purposes. Further, whether the Appellant is entitled to an award of damages beyond the common law measure. The answers to the above in our view will resolve all grounds. Thus we shall consider all grounds together, except ground 7 which we shall consider separately. 11.2 It is trite that an appellate court will not upset findings of fact by a trial court; unless the same were perverse or made in the absence of any relevant evidence, or on a proper view of the evidence, no trial court, acting correctly could reasonably make. The case of Attorney General v. Achiume2 is pertinent, and we are properly guided. 11.3 The appeal revolves around the termination of a contract of employment. It discusses the issue of the requirement to give a reason for termination of a contract of employment, and whether the reason is just any reason or it should be one that is valid and justifiable. 11.4 The Appellant argues that the reason given by the respondent for terminating his employment was not valid nor was it justifiable. He J30 pointed to other factors and events that took place prior to this termination as the real reason for the termination. 11.5 In the lower court, the Respondent was of the view that the law required them to proffer a reason, and that this they did, as appear at paragraph 2.3 herein, which we reproduce here thus: " ... as you are aware, the company has recently adopted a new strategic plan for the period 2018 - 2023. The company has decided to terminate your services to pave way for the appointment of a new Chief Executive to run with the new strategic plan." 11.6 The Respondent, in the answer to the Complaint, justified the above reason as falling under operational requirements of the entity and in consonant with Section 36(3) of the Employment (Amendment) Act No. 15. 11.5 To answer the question whether the respondent had met the requirements of the Act, the learned Judge sought solace in the Google search engine for the meaning of "operational requirements", and the results are as at page J15 of the Judgment, which is on page 25 of the record of appeal. The learned Judge stated thus: J31 "I accept this as the very basic meaning of operational requirements. And if this is so, then a strategic plan is an operational document, without even defining it here ... " 11.6 The learned Judge went on to state that that being the case, the reason given by the respondent for the termination is therefore an operational one, hence valid and in compliance with the requirement of Section 36(3) of the Employment Act (as amended). 11. 7 We wish to begin by stating that the issue before the learned Judge was not whether or not the strategic plan was an operational document, but rather whether the reason proffered for the termination was based on operational requirements. Further, whether the reason was valid and was substantiated by the employer. 11.8 It is trite that there are several ways of legally terminating a contract of employment. At the time this matter arose , what was prescribed was Section 36, Employment Act (Amendment) Act No. 15 of 2015. What is evident is that the law proscribes termination of employment on impermissible reasons , while disguising them as legitimate. The case of Zambia Privatisation Agency v. James J32 Matale 21 guided on the power of a court to delve into the reason given for a dismissal so as to remedy any injustice caused to an employee where evidence emerges showing an ulterior motive leading to the termination. It was guided that a court can go behind the motive to find out the real reason for the dismissal. 11.9 Section S(a) and (b)(3) of the Employment (Amendment) Act, 2015 guides that: - "Section thirty six of the Principal Act is amended by the insertion - (a) In paragraph (c ) of subsection (i) immediately after the words "otherwise" of the words "except where the termination is at the initiative of the employer, the employer shall give reasons to the employee for the termination of that employee's employment." (b) The contract of service of an employee shall not be terminated unless there is a valid reason for the termination connected with the capacity or conduct of J33 the employee or based on the operational requirements of the undertaking." 11.20 Chanda Chungu and Ernest Beele, authors of Labour Law in Zambia: An Introduction, 2 nd Edition, state at page 103 thereof, that:- "Therefore for the dismissal to be fair, an employer must give a valid reason, prior to the dismissal. For the reason to be valid, it must be related to the conduct or capacity of the employee or operational requirement of the employer." 11.21 The authors submit that this provision, requiring that a valid reason must be given before dismissal, means that the Employment Act is giving effect to Article 9(2) of the International Labour Organisation Convention No. 158 which enjoins an employer to prove the existence of a valid reason for the termination. Suffice to say that the ILO Convention was domesticated in this jurisdiction, and it is thus applicable. 11.22 In the case of Sara Aliza Vekhnik v. Casa Dei Bambini Montessori Zambia 7, this Court h eld that:- J34 "What is of critical importance to note however is that the reason or reasons given must be substantiated ... in other words, we must be satisfied that there were no malafides on the part of the employer." 11 .23 In the case of Mupila v. Yu Wei4 a persuasive High Court matter, the learned Judge made a distinction between termination for operational requirements and redundancy when she held that:- "The distinction between termination for operational requirements and redundancy is that termination for operational requirements is based on a bona fide commercial reason, such as inability to financially sustain an employee or due to a restructuring exercise . " ... (underline for emphasis only) 11.24 We have found no evidence of any of the above. Section 213 of the South African Labour Relations Act, 66 of 1995, and brought to our attention by counsel for the Appellant is equally persuasive, where it defines what operational J35 requirements means, where it states that it means " ... requirements based on the economic, technological, structural or similar needs of an employer" 11.26 When viewed against the cited authorities, it is clear that the learned trial Judge in the lower court was way off the mark as regards the issue of operational requirements. His acceptance of a simple basic google search does not align with the meaning as set out in the cited cases and authorities. 11.27 We find, contrary to what the learned Judge found, that the reasons proffered by the respondent for terminating the appellant's contract were neither valid nor justified. 11.28 The respondent did not lay any evidence before court to justify and substantiate the termination based on operational requirements. We agree with the Appellant that it could never have been the intention of the legislature to have a situation where an employer can terminate its employees contract, using any concocted reasons without any justification whatsoever, as that would result in abuse, and defeat the whole purpose of the J36 Act, which 1s to protect the employee, or provide him with security. 11.29 There was no evidence led, or on record, to show that a new strategic plan had been formulated for the period in issue or why it was felt that the appellant could not run with the 2018 - 2023 Strategic Plan which he himself had crafted. Infact the evidence on record is to the contrary, about his abilities. 11.30 At page 498 of the record of appeal, volume 3, the Chairman of the Board, the same one who signed the termination letter, wrote a Forward to the only strategic plan on record. He heaped praise on the appellant and his management team. An excerpt of the said Forward reads:- "... I wish to offer my earnest recommendations and deepest appreciation to the management of ZCCM - IH PLC for having worked diligently, tussled with language and fashioned a vision, mission statement and plan of action that will thrust us forward with great energy for the period of this strategic plan. I strongly believe that together we can make it and look forward to very productive years ahead ... " J37 11.31 Considering the above, it is not farfetched for us to conclude, as we do, that operational requirements had nothing to do with the termination. 11.32 In any case, we have found that the reason given for the termination was not valid nor was it justifiable. The respondent did not lead any evidence to substantiate that the termination was for a valid commercial reason such as inability to financially sustain the appellant or due to a restructuring exercise. 11 .33 Further, we note the lack of evidence showing that they engaged the appellant and that he failed to operationalize the strategic plan, which he himself crafted, hence the need for another Chief Executive Officer to operationalize it. We hold that the termination was not in conformity with the law as provided in Section 36 of the Employment Act (as amended) which provides that: "A dismissal, which is not automatically unfair is unfair if the employer fails to prove (a) That the reason for dismissal is a fair reason (i) Related the employee's conduct or employers operational to capacity, or the on requirements; and (ii) Based J38 (b) That the dismissal was effected in accordance with a fair procedure" 11.34 We are of the view that the respondent failed to substantiate the reason for terminating the appellant's contract of employment, and was thus in clear breach of the above stated statute. Consequently, we find that the learned Judge 's reliance in the lower court, on go ogle search for the meaning of operational requirements was flawed , as there was infact no basis upon which he made his finding . It is our view, that this is a matter in which we can upset the findings of fact by the learned Judge. 11.35 As regards the issue that the respondent was at liberty to use the Notice Clause in the contract, we revert to the argument that, even in that case, an employer is required to give reasons for invoking that clause. It is now mandatory for the employer to proffer a valid and substantiated reason for termination of employment. The Notice Clause is no longer an escape clause. 11.36 Furthermore, and as stated by the appellant, the appellant was facing a no-fault dismissal in the sense that he had not been charged with any offence. The employer just wrote to him that they wanted a new Chief Executive Officer to run with the new J39 J • strategic plan, without telling him in what way he had failed to operationalize the same strategic plan. 11.37 Having found thus, we are of the view that grounds 1 - 6 have merit, and are upheld. 11.38 Under ground seven, the appellant faults the Judge in the lower court for not awarding the appellant damages for mental torture, embarrassment and anguish suffered as a result of the manner in which his contract was terminated. That the manner of termination warrants an award of damages beyond the common law measure 11.39 In his judgment, at page 26 of the record of appeal, the learned Judge stated thus:- "That said, the separation on the impugned notice of termination is without fault, and there is thus no wrongful or unlawful termination. There will be no damages awarded where the suit fails as this one does." 11.40 It is evident, and as shown in a plethora of cases, some of which were cited by the appellant herein, that the normal measure of damages is an employees' notice period in the contract of employment or as provided by the law. J40 11.41 Section 85A (a) and (d) of the Industrial and Labour Relations Act, provides for awards and provides inter alia that:- "where the court finds that the Complaint or application presented to it is justified and reasonable, the court shall grant such remedy as it considers just and equitable and may:- (a) award the complainant or applicant damages or compensation for loss of employment; ( d) make any other order or award as the court may consider fit in the circumstances of the case." 11.42 In awarding such damages, the court is guided by the need to do substantial justice. The case of Bupe and Another v. Zambia National Commercial Bank22 provides guidance; where it was emphasized that the granting of remedies is done with due regard to the need to do substantial justice. It is thus patent that when awarding damages, the court should award such damages or compensation as it considers fit in the circumstances of each case, while keeping in mind the need to do substantial justice. J41 • . -· ), I 11.43 Further, in deserving cases, courts have departed from awarding the normal measure of damages of the notice period. In Swarp Spinning Mills PLc v. Chileshe and Others23 , the Supreme Court held that:- "The normal measure is departed from where the termination may have been inflicted in a traumatic fashion which causes undue distress or mental suffering." 11.44 Furthermore, in a plethora of cases, our courts have awarded damages beyond the common law measure. This has been done in cases where there has been mental distress, mental torture and inconvenience. In the case of Chilanga Cement v. Kasote Singogo 15 the Supreme Court awarded the complainant 24 months salary as damages for a malicious redundancy, and guided that enhanced damages are awarded to compensate for inconvenience and distress caused, and to also condemn the employer for the malicious and improper manner an employer effects dismissal. The case of Zambia State Insurance J42 ( ' . Corporation and Attorney General v. Singogo24 provides further insight. 11.45 These damages will be available only where it is shown that distress or inconvenience was a direct consequence of the dismissal. Consequently, the burden is on the employee to show that the distress or inconvenience was a result of the dismissal. The employee has to show that the distress or inconvenience is a result of the act or omission on the part of the employer. That that act, occasioned suffering, and which suffering goes beyond the normal circumstances of the wrongful breach. 11.46 In the case of Barclays Bank Zambia Pie v. Weston Luwi and Suzyo Ngulube25 , the Supreme Court guided on when courts can enhance compensatory or exemplary damages, stating that this is dependent on the manner of separation and conduct of the employer, especially if the dismissal or termination was inflicted in a traumatic manner. It was held that:- "... at this stage, we take the liberty to correct Mr. Lukangaba's assertion that mental anguish is the only J43 exception. What we said in that case (Swarp Spinning case) is that the normal measure of damages is departed from where the circumstances and the justice of the case so demands. Therefore termination inflicted in a traumatic fashion, causing undue distress or mental suffering is but one example. Loss of employment opportunity is another ... enhanced damages are meant to encompass the inconvenience and any distress suffered by the employee as a result of the loss of employment ... we held that the trial court was entitled, based on the evidence before it, to award damages to cover distress and inconvenience. An award of 24 months salary as damages does not come to us with a sense of shock, as being excessive to warrant it being set aside." 11.47 Furth er , in the case of Dennis Chansa v. Barclays Bank Zambia Plc 17, th e loss of future employment opportunities was taken into consideration. The Suprem e Court considered cases where damages were progr essively enhanced . They stated that:- " ... The rationale is as the global economies deteriorate, the chances of finding employment even by graduates are dimmer. There should be progressive upward measure in damages as it is J44 bound to take longer to find a job in the current domestic and global economic environment." 11.48 We agree with the appellant that his employment termination was done in a traumatic manner. Further, that the same caused him undue distress and mental suffering. The learned Judge ought to have carefully considered the evidence proffered by the appellant in that regard. It was not enough in the circumstances of the case and in view of the evidence adduced by the appellant, to find as he did. 11.49 We have had sight of social media publications appearing from pages 613 to 633, record of appeal where the Appellant, a Chief Executive Officer, was mercilessly trolled by social media users. A few examples will suffice, just to illustrate how social media reacted to his being fired. 11.50 Page 61 7 - Dr. Chon ya "Well done, lets uproot all white puppets Cozcow Jr: This Kasolo guy was almost becoming another Mujajati, he behaves like he lives in a first world country. Thorn in the flesh "can minds like Page 618 - Kasolo ever run mines again. He is behaving like a corrupt corrupt union leader who eats with J45 • Mr. P Nubian Princess management at the expense of the workers he represents" Page 619 - "Kasolo was the wrong person to hire in the first place, a man with two sets of families is a mess, period" Page 624 - "I hate people who always favour white supremacy like Kasolo. Good that is fired. No need to keep corrupt men like him" Page 625 - "Kasolo, along with his chief investment officer has been cutting a lot of deals by investing in questionable private sector ventures. President Lungu shall set up a task force to ween out corrupt Kasolo." Hoho 11.51 Any of the cited examples are sufficient in our view to cause a person trauma. We are of the view that the Appellant discharged the burden of proof, showing how traumatic his dismissal was to him. His dismissal therefore warrants an award of damages that are beyond the common law measure. 11.52 We find merit in ground seven. 12.0 12.1 Conclusion We find merit in the appeal and it succeeds on all grounds. The decision of the learned Judge in the lower court is set aside. We award the appellant six months' salary as J46 ·. ,•-.. , ,. damages for wrongful dismissal. The same shall attract interest, which interest is to be calculated according to the Judgment Act. 21.2 This being an industrial and labour relations case, each party shall bear their own costs. M. M. Kondolo, SC Court Of Appeal Judge . Majula Court Of Appeal Judge .......... ~-?-: ............... . A. M. Banda-Bobo Court Of Appeal Judge J47