Rose Tembo v Ballore Transport and Logistics Zambia Limited (2022/HP/0644) [2025] ZMHC 58 (19 June 2025)

• IN THE HIGH COURT FOR ZAMBIA 2022/HP/0644 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: ROSETEMBO AND PRINICIPAL I 9 JUN 2025 PLAINTIFF BALLORE TRANSPORT AND LOGISTICS ZAMBIA LIMITED DEFENDANT Before the Honourable Lady Justice S . Chocho, on the 19t h day of June, 2025. For the Plaintiff Mr. J Tembo of Messers Linus and Partners. For the Defendant: Mr. M Kasofu of Messers Tembo Ngulube and Associates. JUDGMENT Cases referred to: 1. African Banking Corporation v Lazarous Muntete Appeal 51 of 2021. 2 . Sarah Aliza Vekni v Casa Dei Bambini Montessori Zambia Limited Appel No. 129 of 2017. 3 . Contract Haulage Limited v Mumbuwa Kamayoyo (1982) Z. R. 13. 4. Redrilza Limited V Abuid Nkazi and Others SCZ Judgment No. 7 of 2011. 5 . Tolani Zulu and Another v Barclays Bank Zambia Limited (2003) ZR 127. J2 6. Masauso Zulu v Avondale Housing Prqject (1982) ZR 172. 7. Victoria Chileshe Sakala v Spectra Oil Corporation Limited Appeal No.2 of 2016. 8. Mofya Mfungo and Others v Local Authorities Superannuation Fund Appeal No. 225 2021. 9. Albert Mupila v. Yu-Wei COMP/ IRCLK/222/2022. 10. Pius Chilufya Kasolo v ZCCM Investments Holding Plc Appeal No. 18 of 2022. 11. Citibank Zambia Limited v Suhayl Dudhia Appeal No.16/ 2020. Legislation and other authorities referred to: 1. Section 36(3) of the Employment Act Chapter 268 of the Laws of Zambia. 2. Employment (Amendment) Act No. 15 of 2015. 3. Section 52(2) of the Employment Code Act, 2019. 1. INTRODUCTION 1.1. This Judgment is in r espect of the Pla intiff's claim against the Defend ant. The Plaintiff by way of Writ of Summons a nd Statement of Claim dated April 27th , 2022 claimed the following: i) An Order that th e purported termination was wrongful and unlawful as it breached the provisions of th e Employment Act Chapter 268 of the Laws of Zambia in that, n o valid reason was given to the Pla intiff for the termination of h er contract of J3 employment and she was not given an opportunity to be heard in relation to her conduct; ii} An order for payment of all amounts lawfully due to the Plaintiff; iii} Damages for wrongful, and unlawful termination of employment; iv) Damages for mental anguish suffered by the Plaintiff on account of t h e sudden termination or employment for unknown reasons and without adherence to the rules of natural justice; v) Interest on all sums found due and payable; vi) Costs; vii) Any other relief the Court may deem fit. 1.2. The Defendant entered Appearance and filed a Defence on May 18th , 2022. 2. EVIDENCE/TES TIMONY 2.1. Trial was scheduled and heard on August 23rd , 2024 and November 26th, 2024 respectively. r. 2.2. The Plaintiff called one witness in aid of her case. PW was the Plaintiff herself who filed a Witness Statement dated August 29111 , 2022. 2.3. PW testified that on July 1st, 2010, she was offered a job in the Defendant Company as Forwarding Officer. 2.4. PW testified tha t the contract in question was for a period of 1 year and she was reporting to the Forwarding Manager. JS 2 . 13. PW testified that she was not charged at any point on any alleged conduct and she was never at any time subjected to any disciplinary h earing relating to the a lleged conduct and that she was not aware of any operation a l requirements such as downsizing or redundancy. 2.14. PW further testified that according to the contract of employment, clause 12 provided for termination of the contract of employment upon payment of one month in lieu of notice or giving one-month notice. 2 . 15. PW testified that the same clause 12 also provided that in case of any serious offence on the part of the Plaintiff, the Defendant was at liber ty to terminate the contract but subject to the dictates of the Disciplinary Code Book. 2. 16. PW testified that although the Defendant terminated her contract by giving her one month pay in lieu of notice as per the requirement of clause 12 of the contract, the Defendant did not furnish her with a n y specific reason for her termination. 2.17 . PW testified that she is entitled to be furnished with the reasons for termina tion of the contract of employment apart from the one-month notice and if the reason had anything to do with her performance or violation of company policy, she was to be subjected to the procedure in the Disciplinary Code which requires a charge and a hearing. 2. 18. PW testified that the Disciplinary Code was not followed when the Defendant handled her case. J6 2.19. PW testified th at the termination of her employm ent was done in a very harsh manner as she was not accorded an opportunity to collect h er personal belongings as the Human Resource Manager instructed the Huma n Resource Officer to promptly see her out of the building. 2 .20. PW testified that the Defendant has not proved the allegations such as delay in sending documents for the clearance of the cargo which a llegation s cannot be a ttributed to h er n egligen ce or capacity. 2 .21 . PW testified under cross examination that her contract was terminated based on th e reasons of conduct and operational requirem ents. 2.22. PW testified under cross examination that some of h er duties included handling customers that needed to use containers to ship their goods outside Zambia and that the clients were given 60 days in which to load and ship out the containers. 2.23 . PW testified under cross examination that she had to make sure th e container s were shipped within 60 days and the consequence of the container not leaving with 60 days is that demurrage charges would accru e. 2.24 . PW testified under cross examination that if a n entity lost a container, that customer would be requested to pay the value of th e container. 2.25. PW testified under cross examination that she gave contain ers to Lipco which did not exit Zambia and that she is not aware if the said container s were recovered. J7 2.26. PW testified under cross examination that she did show the Defendant the location of the said containers and the said containers were within industrial area. 2.27. PW testified u n der cross examination that she sen t the Documents requested for two weeks after they were sent to her via email, on December 27th , 2025. 2.28. PW testified that under the Defendants operations, the documents ought to have been sent the day they were requested for. 2.29. PW testified that when she told Mr. Kaplan that the vessels were ready, she was not being truth ful. 2 .30. PW conceded under cross exam ination that she did not send the docum ents because she needed to attend a party. 2.3 1. PW testified under cross examination that she was called by the Defendant's Managing Director over th e issue of transmission of the docum ents . 2.32. PW testified that in light of h er claim that the termination made her unwell, she did not go to the hospital. 2 .33. PW testified under cross examination that the contract could be terminated by the Defendant paying her in lieu of notice. 2.34. PW testified in re--examination that sh e said th e vessels were in order becau se th e files were open for ship m ent. JS 2.35. The Defendant called two witnesses in aid of its case, DWI was one Kapembwa Chipungu who filed a Witness Statement on October 6th, 2022 . and testified in chief that the Plaintiff was employed by the Defendant as Forwarding Officer on July 1st, 2010 and her duties included all duties delegated by the Defendant. 2.36. DWI testified that the Defendant renewed the Plaintiff's contract of employment by a letter dated June 13th, 2012 for a period of 1 year. 2.37. DWI testified that by a letter dated July 11th, 2013, the Defendant changed the Plaintiff's contract to permanent and pensionable. 2.38. DWI testified that on July 26th, 2017, the Plaintiff was promoted to the position of PIL Zambia Agency- Documentation Agent Front Desk. 2.39. DWI further testified that the events leading to the termination of the Plaintiff's contract happened between December 14th , 2018 to December 28th, 2018 and that the reason for the termination is that she failed and neglected to send scanned original Bill of Lading, Packing List, and Container Load to PIL Tanzania for their use to clear and forward goods on behalf of the Defendant's client. 2.40. DWI testified that the Plaintiff delayed to send the aforementioned documents and she only sent them 13 days from the date she received the documents. J9 2.41. DWl testified that according to the operational requirements, the documents were supposed to ·be sent as soon as possible to avoid incurring storage charges and demurrage. 2.42. DWl testified tha t the documents were given to the Plaintiff on December 14th , 2018 and she ought to have sent them the same day. 2.43. DWl testified that the Plaintiff actually acknowledged her omission/failure to send the documents when she said that she did not know that the said documents were left out. 2 .44. DWl testified that the Plaintiff's failure to adhere to opera tional requirements of the Defendant was communicated to her by one Germain Kablan and one Anita Rweyemamu that storage charges would be incurred . 2.45 . DWl further testified that the Plaintiff failed to a dhere to the Defenda nt's operational requirements and duties when she failed and neglected to ensure that s!-ie invoiced the Defenda nt's customers who had retained possession of the PIL Containers beyond the a llowed free 30 days. 2.46 . DWl testified that the Plaintiff failed to adhere to the Defendant's operational requirements and duties when she failed and neglected to ensure that sh e recovered possession of the PIL Containers which h ad b eing retained by th e Defendant's beyond the a llowed free 30 days. 2.47. DWl testified that the Plaintiff's failed to a dhere to the Defenda nt's operation a l requirements and instructions to provid e th e Defendant's JlO Credit Control Team with the outstanding monies for the overstayed PIL Containers a nd the balance due for payment. 2.48 . DWl further testified that the Defendant through its Managing Director complained of how the Plaintiff's omissions were costing the Defendant money, a nd how sh e lacked interest in the Defendant's business and how the Plaintiff had no place in the Defendant company. 2.49. DWl testified that the Defendant elected to terminate the Plaintiff's contract on January 07th January, 2019 and the reasons given were the Plaintiff's conduct and her failure to meet the operational requirements. 2.50 . DWl testified that there is no obligation on the part of the Defendant to spell out th e conduct of the Plaintiff even if it was the position that the Defendant needed to spell out; the Defendant did spell out the Plaintiff's poor work attitude, delay to send the clearing documents and failure to obey instructions. · 2.5 1. DWl testified under cross examination that the contract was signed in 20 10 and a fter 2015, the Defendant was required to give valid reason s for termination of the contract apart from payment in lieu. 2.52. OW 1 testified under cross examination that for the reasons to be valid, it h a d to be connected to the conduct of the employee, capacity of the employee or operational requirements of the company. Jll 2 .53. DWI testified under cross examination that Clause 12 of the contract states that failure to perform tasks by an employee would be subjected to dictates of the Disciplinary Code Book. 2.54. DWI testified under cross examination that there is no reason connected to the Plaintiffs conduct in the letter of termination. 2 .55. DWI further testified under cross examination that there are no specific operational requirements contained in the letter of termination. 2.56. DWI testified under cross examination that Clause 41.0 of the contract states that it is manda~ory that all violation of company policy should be subjected to the Disciplinary Code Book and the penalty contained therein for the unsatisfactory work and negligence is unrecorded warning and repetition of the offence is recorded warning. 2 .57. DWI testified that when an employee commits a serious offence, the n ext step is to ch a rge the employee a nd the employee must excu lpate him/her self at a formal hearing. 2 .58. DWI testified under cross examination that the Plaintiff was n ever ch a rged with the offence of unsatisfactory work performance or negligence. 2 .59 . DWI testified under cross examina tion that the Plaintiff was in vited to answer to the charge but there is no document before Court to show that the Plaintiff was asked to exculpate h erself. 2 .60. There was no re-examination. Jl.2 2.61. DW2 was one Boniface Wambua who filed a Witness Statement dated October 6th, 2022 and testified on oath that the Plaintiff was employed as a Front Desk Officer to deal with exchange of Original Bill of Lading and coordination of boarder clearance and delivery of goods imported in PIL. 2.62. DW2 testified that on December 14th , 2018, the Plaintiff was instructed to contact an importer of goods to be delivered to Lusaka and the name of the Ship or Vessel and Bill of Lading were availed to the Plaintiff through email. 2.63. DW2 testified that the Plaintiff was instructed to collect the requisite documents from the importer of goods and send scanned copies of the documents to PIL Tanzania in order to clear and forward the goods. 2.64. DW2 testified that Lhe Plaintiff did not ~end the documents upon request but only sent the documents on December 27th , 2018 when she was reminded by PIL Tanzania that the documents had not been received by them. 2 .65. DW2 testified that PIL Tanzania would not be responsible for the charges on account of the delay by the Plaintiff. 2 .66. DW2 further testified that when the Plaintiff was asked why she delayed to send the documents, her response was that she did not know that she left out the said documents. I Jl3 2 .67. DW2 testified that the Ma naging Director told the Plaintiff that he needed her explanations on the late issue of sending the documents. 2 .68 . DW2 testified that the Plaintiff had a duty to invoice customers who had kept the PIL containers for over the free 30 days a llowance allowed by t he Defenda nt. 2.69. DW2 testified that the imported goods would be brought into Zambia using PIL containers and once the goods had been delivered, the empty containers h a d to be returned to Dar es Salaam to be shipped back to Asia. 2 . 70. DW2 testified that the Defendant made the PIL containers available for use to a n y per son of entity to transport their goods using the container free of charge within 30 days and have the container reach Dar es Salaam within the free of charge 30 days period. 2. 71. DW2 testified that the Defend ant would only charge such entity or person in the event th at the Container does not reach Dar es Salaam within the a llowed 30 days period. 2 . 72 . DW2 testified that th e Plaintiff on December 27t11 was advised to invoice a nd reconcile a ll outstanding PIL Container Customers before end of the year 2018. 2.73. DW2 further testified th a t the Defendant's Finance Ma n ager advised the Plaintiff that the Defendant's Credit Control Team wanted to know the J14 outstanding payments from customers and when the balances would be paid to the Defendant. 2.74. DW2 testified tha t the Plaintiff emailed the Finance Manager the she had discussed with a colleague named Esnart and that she would work on the invoices on December 27th , 2018 and on the subsequent Saturday. 2 .75 . DW2 testified that by December 28th , 2 018, the Plaintiff had not m et with the said Esnart and the Finance Manager told the Plaintiff that her behavior was unacceptable and that she needed to work a s a team. 2 . 76. DW2 testified th at the operational requirem en ts of the Defendant require that persons occupying the position of Front Desk Officer at Lusaka understands and executes h er duties timeously without d elays so that the Defenda nt does not incur storage and demurrage ch a rges. 2 .77. DW2 testified under cross examination that conduct is one of the reasons the Plaintiff terminated but there is no specific conduct indicated in the letter of termi nation. 2.78. DW2 testified under cross examina tion that the Plaintiff was never subjected to the dictates of th e Disciplinary Code Book and that she was never charged relating to breach of compa n y policies. 2 .79 . DW2 testified under cross exan1ination that the Pla intiff did not receive any written notice. 2.80. DW2 testified in re-examination that the Plaintiff did not b reach any policy. J15 3. LAW AND SUBMISSIONS. 3.1. All Parties filed their written submissions. The Plaintiff filed on December 17th 2024, and Defendanl filed on January 31 st, 2025. 3 .2 . The Plaintiff submits that it is not in dispute that the Plaintiff was serving under a written contract of employment and at the time the Plaintiff's contract was terminated, the law applicable was the Employment Act Chapter 268 of the Laws of Zambia as amended by Act No. 15 of 2015 a nd relied on Section 36 (3) which provides as follows: "The contract of service of an employee shall not be terminated unless th.e1'e is a valid reason for the termination connected with the capacity, conduct of the employee 01· based on the operational requirements of the undertaking". 3.3 . The Plaintiff submits that Section 36(3) of the Employment Code Act is worded in the s ame way as-Section 52(2) of the Employment code Act, 2019 and placed reliance on the case of African Banking Corporation v Lazarous IVIuntete Appeal 51 of 2021 1 • 3.4. The Plaintiff submits th a t before termination can be legal, the employer must give the employee a valid reason for the termina tion which reason must b e connected with the capacity of th e employee, conduct of the employee or operalion al requirements of the company and that a n employee must be accorded an opportunity to be heard in re lation to the said conduct; capacity or operational requirements. In making this J16 submission, the Pla intiff relied on the case of Sarah Aliza Vekni v Casa Dei Bambini Montessori Zambia Limited Appel No. 129 of 20172 • 3 .5. The Plaintiff further submitted that the termination of the Plaintiff's employment was wrongful on the basis that sh e was never ch arged of a ny offence or given the right to be heard. 3 .6. The Plaintiff submits that employment law in Zambia now dictates that the giving of notice or payment in lieu of notice only, is not sufficient to justify termination. The employer must in addition to giving notice or payment in lieu of notice give th e reasons for termination as observed in the Sara Aliza2 case. 3.7. The Pla intiff submits that although the letter of termination which a ppears on page 9 of the Bundle of Documents indicates that th e contract of employment was terminated in consideration of her conduct, th e operational requirements of th e Defendan t a nd in pursuance of th e Defendant's rights 'under t h e contract of employment. But the letter does not indicate what conduct was in issue or what operational requirements necessitated the termin ation. 3.8. The Plaintiff submits that the termination of th e Plaintiff's employment was wron gful as the procedure was not followed. 3.9. The Plaintiff submits that the evidential bu rden of proof is on the Defendant to prove th at there was a valid reason for the termination and t h a t the Defendant h as failed to discharge this burden . 3 .10 . The Plaintiff submits that Section 36(3) of the Employment Act Chapter 268 of the Laws of Zambia was not complied with a nd th e • J17 Plaintiff was not accorded an opportunity to be heard. The Plaintiff relied on the case of Contract Haulage Limited v Mumbuwa Kamayoyo (1982) Z. R. 133 in which it was held that the failure to give an employee an opportunity to a n swer charges against him is contrary to natural justice. 3.11. The Plaintiff submits that the manner in which the Plaintiffs contract was terminated was against the rules of natural justice and thus warranting the Plaintiff her claims . . 3.12. The Plaintiff submits that her contract was terminated instantly thereby causing her inconveni~nce and that the economic conditions have detoriated thereby ~ntitling her to an award of more damages. 3.13. In response, the Defendant submits that the Plaintiff has failed to prove her case as she has failed to produce evidence proving her case. 3.14. The Defendant submits that there is a difference between termination and dismissal and·· placed relia nce on the case of Redrilza Limited V Abuid Nkazi and Others SCZ Judgment No. 7 of2011 4 in which it was stated as follows: "There is a difference between dismissal and termination. Dismissal involves loss of employment arising from disciplinary action. While termination allows the employer to terminate the contract of employment without invoking disciplinary action". 3. 15. The Defendant submits that the Defendant was on firm ground in opting to invoke clause 12 of the contract to terminate the Plaintiff's contract of employment. • 3 . 16. The Defendant submits that the Defendant has a n option of whether to J18 dismiss or terminate the employment of an employee a n d incasu, the Defendant decided to terminate the contract of employment. The Defendant placed reliance on the case of Tolani Zulu and Another v Barclays Bank Zambia Limited (2003) ZR 1275 which I have taken note of. 3.17. The Defendant further submits that payment in lieu was invoked and that it was within Section 36(1)(c) of the Employment Act (as Amended by Act No. 15 of 2015) and that they were in compliance with Section 36(3) as the termination letter gave reasons of conduct and operational requirements. 3 . 18. The Defendant submits that Section 36(3) only requires that reasons are given to the employee and does not provide that the Defendant substantiates the reasons in the termination letter. 3.19. The Defendant submits that the Defendant is a live to the holding in the Sarah Aliza Vekhnik2 case and that the Defendant has substantiated the reasons for conduct and operational requirements as the Plaintiff prioritised to go to a Christmas party than to send documentation to Tanzania and that the Plaintiff was untruthful when she was asked if the vessels were okay for clearing. 3.20. The Defendant further submits th at the Pla intiff never attended meetings meant to assist h er to improve on her work and that the Plaintiff cost the Defendant money as she did not know who she was giving the containers and their location . Jl9 3.21. The Defendant submits that Section 36(3) does not state what form a hearing should take and thus the hearing before the Managing Director and Human Resources Manager of the Defendant was sufficient to accord the Plaintiff natural justice. 3 .22. The Defendant submits that the Plaintfff has failed to lead evidence of h aving sought attention for mental anguish and has conceded that she did not go lo the hospital to seek attention for mental anguish. In making this submission, the Plaintiff placed reliance on the case of Masauso Zulu v Avondale Housing Project (1982) ZR 1726 in which it was held as follows: "where a Complainant alleges that he has been wrongfully or unlawfully dismissed as in any other cases where he makes any allegation, _ it is generally for him to prove those allegations, a Complai_nant who has failed to prove his case cannot be entitled to Judgment, _whatsoever may be said of the opponent's case". 4. COURTS ANALYSIS/DECISION 4.1. I have had occasion to consider the parties arguments for which I am grateful. 4.2. The following are the main issues for determination. i) Whether the termination of the Plaintiff's employment by the Defendan l was wrongful and unlawful; ii) Whether the Plaintiff is entitled to damages for wrongful and unlawful termination; an<l iii) Whether the Plaintiff is entitled to damages for mental anguish. , J21 "That position notwithstanding, we are alive to the fact. That since the coming into effect of the Employment (Amendment) Act No. 15 of 2015, which amends Section 36 of the Employment Act, Cap 268, an employer is now required to give a valid reason for termination of an employment contract. " 4.6. The requi rement for an employer to give reason(s) for termination 1s provided for in Section 36 (3) of the Employment Act which states as fo llows: "The contract of service of an employee shall not be terminated unless there is a valid reason for the t ermination connected with the capacity, conduct of the employee or based on the operational requirements of the undertaking". 4.7. This provision mirrors Lhe Section 52 (2) of the Employment Code Act which provides as follows: "An employer shall not terminate a contract of employment of an employee without a valid reason for the termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking". 4.8. The Court in the case of Mofya Mfungo and Others v Local Authorities Superannuation Fund Appeal No. 225 2021 8 took note of this development in the law as relates to termin ation of employm ent contracts when it held as follows : "In our view, where the reasons advanced by the employer have been called into question, the employe r must show that it has a valid reason that it canjustify. Contrary to the Respondent's argument, it is not enough for the employer to merely give a . I J22 reason. In the case of African Banking Corporation Limited v Lazarus Muntete, we had an opportunity to consider section 36(3) of The Act and in that case, we concluded as regards Section 36 (3) of The Act, that the law now places an evidential burden on the employer to establish and prove on the balance of probabilities that there was a valid reason for terminating or dismissing an employee". 4.9. In answering whether the termination of the Pla intiffs contract of employment was unlawful and/ or wrongful, the question I am now faced with is; has the Defendant sh own /proved that there was a valid reason for termination of the Plaintiff's <?Ontract of employment as relates to conduct and operati_orial requirements of the company? I shall first deal with the issue of operational requirements. 4.10. The term operational requirements has not been defined by statute. For persuasive authority, I shall rely on the High Court decision in the case of Albert Mupila· v. Yu-Wei COMP/ IRCLK/222/20229 in which the ' ' Court held as follows: "The distinction between termination for operational require ments 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 . . . . " 4.11. The position in the Mupila9 case was upheld in Court of Appeal decision of Pius Chilufya Kasolo v ZCCM Investments Holding Pie Appeal No. 18 of 2022 10 when the Court stated as follows: J ,123 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. The Court in the Pius Kasolo 10 case went on to state as follows: The respondent did not lay any evidence before court to justVy and subs tantiate 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 Act, which is to protect the employee, or provide him with security. There was no evidence led, or on record, to show that a new strategic plan had been formulated for the period i~ issue or why it was felt that the appellant could not run with the 2018 - 2023 Strategic Plan which he himself had crafted. Inf act the evidence on record is to the contrary, about his abilities". 4 .12. In light of the above cited authorities, I am of the considered view that the Defendant is misguided as to what is meant by operational requirements. DW2 gave testimony that the operational requirements of the Defendant require that persons occupying the position of Front Desk Officer al Lusaka understands and executes her duties timeously without delays so that the Defendant does not incur storage and demurrage charges. This in my view does not fall under the definition of the term operational requirements. The Defendant misinterprets the j meaning of the phrase operational requirements' this in no way m eans J24 it denotes standard operational procedures. 4.13. I find solace in the Pius Kasolo 10 case and hold tha t the Defendant ha s not proved or substantiated its reason for the termination as relates to operational requirements. The Defendant h as not shown any bonafide commercial reason as per the guidance in the Mupila v Yu Wei9 case. 4. l 4. The Defendant a lso stated condu ct as a reason for the termination of the Plaintiff's contract of employment. The law n ow requires employers to give reaso ns for termination of contracts of employm ent, notice a lone or payment in lieu does no t s1,1ffice. The question now is, was the Defendant merely stating condµct as a reason for termina tion sufficient and valid? 4.15. I am of the considered view that the Defendan t merely staling conduct in the letter of te rininatlon does not satisfy the requirements of Sect ion 36(3) of the Employment Act. The De fendant ought to have substantia ted the conduct of the employee which lead to the termination of the of the Plaintifrs contract of employment at th e time of termination of the contract. In my opinion, merely stating 'conduct' is insufficient. 4.16. The import of Section 36 (3) of the Employment Act is that a termination will only be considered lawful if th ere is valid reason for termination connected to the capacity or conduct of the employee and operational requirements of the company. 4.17. In light of th e foregoing, I find that the Defenda nt did not give valid reasons for the termination of the Pla intiffs contract of employment • • J25 connected to her capacity or conduct. The termination of the Plaintiff's contract of employment by the Defendant was therefore unlawful. 4.18 . The reasons stated by the Defendant in the pleadings and testimony reveal that wh at the Defendant intended to do is dismiss the Plaintiff under the guise of termination in order to avoid following the laid down procedures. The reasons given a p pear to speak to failure to perform tasks to th e expectations and satisfaction of management, an offence which ought to have subjected the Plain~iff to the dictates of the Disciplinary Code Book. 4 . 19. The Plain tiff also has a claim for damages, the case of Citibank Zambia Limited v Suhayl Dudhia Appeal No. 16/ 2020 11 is instructive on the considerations a ·court should address its mind to in determining the quantum of damages to be a~arded. The Court stated as follows : "The Jacob Nyoni v The Attorney-General establishes the normal measure of damages in wrongful termination cases, ranging from · the notice period to two years' salary. Chintomfwa v Ndola Lime Limited acknowledges that damages can exceed the standard measure when job prospects are grim. Further drawing guidance from Chilanga Cement Plc v Kasote Singogo which reiterates that, in deserving cases, courts may award more than common law damages for loss of employment and Dennis Chansa v Barclays Banlc Zambia Plc where it was noted that as global economics worsen, damages should increase due to longer job search periods. We too, added our voice to the principle of departing from the normal measure of damages if the dismissal was traumatic. In the case of African Banking Corporation v Benard Fungamwanga we upheld an award of 36 months' salary, considering the banking sect or's • .. J26 employment d ifficulties. These cases collectively show how courts have evolved in awarding damages beyond traditional limits, taking into account economic conditions, employment opportunities, and the circumstances of termination. We will faithfully adhere to the views expressed in the fore going cases in this regard. We do not find that the damages awarded (38 months') were ex cessive gfoen the position the Respondent held and the grim job prospects". 4.20. In light of the above authority and having taken into consideration the manner in which the Plaintiffs contract of employmen t was termina.ted and the economic conditions, I award the Plaintiff 24 months salary as damages. 4.21. The Plaintiff a lso claims damages for mental anguish, as the Court record will show, the Plaintiff has not adduced any evidence to prove that she suffered m enta l an~ish. The Pla intiff also a dmitted under c ross examina tion thatshe did not go to the hospital and has not adduced any evidence before this Court prove that indeed s he suffered m etal anguish. I therefore, find that the Plaintiffs claim for damages for mental anguish fails. • .. • J27 5. CONCLUSION 5.1. In light of the foregoing, I find that the termination of the Plaintiffs contract of employment was unlawfully. 5 .2. I award the Plaintiff 24 months' salary as damages. 5.3. Interest to be paid on the damages at the short-term deposit rate from the date of the Writ to the date of Judgment and thereafter the lending rate determined by the Bank of Zambia up to the date of payment. 5.4 . Costs to the Plaintiff to be taxed in default of agreement. 5.5. Leave to appeal is granted. Delivered at Lusaka on the 19th June, 2025 . S. CHOCHO HIGH COURT JUDGE . , Rr Pl . (- r-1 (. .' -- Ls Ju1J r _j ,, , ...... f P. 0. BCr :>'Jv67, LUSAKA --------- ...