Twaambo Chooka v Absa Life Zambia Limited (COMP/ IRCLK/ 531 / 2021) [2023] ZMHC 85 (29 August 2023)

IN THE HIGH COURT FOR ZAM BIA COMP/ IRCLK/ 531 / 2021 AT THE PRINCIPAL REGISTRY INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA BETWEEN: TWAAMBO CHOOKA1 ( 7t: LUSAKA COMPLAINANT AND \ ~ 2 9 AUG 2023 SE/! L 1H· l ATlt ABSA LIFE ZAMBIA LIMITED RESPONDENT Coram: Chigali Mikalile, J. t h is 29t h day of August, 202 3 For the Complainant: Mr. N. Ng'andu - Messrs Shamwana & Company For the Respondent: Mr. G. Milezhyi & Mr. C. Malambo - Messr s Malambo & Company JUI>G:JW F:NT Legisl ation referred to 1. The Employment Code Act No .3 of 2019 2. The National Pension Scheme Act No. 40 of 1996 3 . The Industrial Relations Court Rules, Cap 269 Cases referred t o : 1. Mike Kabwe v. BP Zambia Limited (1995-1997) ZR 218 2 . National Milling Company v . Grace Simaata and Others SCZ Judgment No 21 of 2000 3 . Richard Musenyesa v. Inda Zambia Bank, Appeal No. 214/20 16 4. Friday Mwamba v. Sylvester Nthenge and Others Appeal, No . 174/2010 J1 5. Krige and Another v. Christian Council of Zambia (1975) ZR 162 6 . Chilanga Cement Plc v. Kasote Singogo (2009) ZR 122 7. Celine Nair v. Standard Chartered Bank Plc, Appeal No. 14/2019 8. Kaur v. Leeds Teaching Hospitals NHS Trust (2018) 4 All ER 238 9 . Chansa Ng'onga v. Alfred Knight (Z) Limited, SCZ No. 26/2019 10. Attorney General v. Mpundu (1984) ZR 6 11. Michael Kahula v. Finance Bank Zambia Limited, Appeal No. 96/2012 12. Collier v . Sunday Referee Publishing Company (1940) 2 KB 647 13. IMA Zambia Limited v. Jean Marc Darmon, Appeal No. 159/2013 14. Lewis Mosho v . Matildah Phiri 2010/HP/183 15. Justine Mbita Silumbwe v. Barclays Bank Zambia Limited, SCZ Judgment No.41/2 017 16. Nitrogen Chemicals of Zambia Limited v. Boyd Choma Mutambo and Others, SCZ 75/ 14 Texts referred to: 1. Winnie Sithole Mwenda and Chanda Chungu, A Comprehensive Guide to Employment Law in Zambia (2021) UNZA Press 2. Gwyneth Pitt, Employment Law 3. Garner. B lack's Law Dictionary (8t h Edition): Thompson West, 2004, USA Introduction 1. The employment relationship 1s governed by employment contracts which vary in nature and complexity from simple contracts which lay out basic terms and are oral in nature to detailed contracts outlining a wide range of terms and conditions and are written in nature. The employment agreement in this case falls in th e latter spectrum of agreements. J2 2. The employment relationship between the parties herein determined on 30th June, 2021 and on 29 th September, 2021, the complainant filed her Notice of Complaint. The gravamen of the complaint is that the respondent adversely altered her conditions of service without her consent or breached fundamental terms of the contract of employment. Thus, the following reliefs are sought: a) A declaration that the respondent deemed the complainant redundant b) An order for payment of redundancy benefits c) An order for the payment of housing allowance for the period May 2020 to June 2021 d) A declaration that the respondent constructively dismissed the complainant e) An order directing the respondent to pay the National Pension Scheme Authority employer contributions for the period November 2016 to March 2019 j) Damages for constructive dismissal g) Damages for mental anguish h) Interest on sums found due i) Any other relief the court may deem.fit j) Costs Affidavit in support 3. The complainant deposed that she was employed on 9 th July, 2007 as a Processor-Account Maintenance by Barclays Bank Plc on a permanent and pensionable contract of employment in the BAl entry grade. The contract is exhibited to the affidavit as "TC 1". The J3 complainant went on to work in various capacities and finally as a Corporate Services Executive. 4. She attested that on 22 nd May 2013, she was offered the role of Finance Officer by Barclays Life Zambia Limited with effect from 1st June, 2013. The start date for continuous employment was 10th July, 2007 as expressed in clause 3.1 of the contract which was exhibited as "TC2". 5. She then wrote to Barclays Bank Zambia Plc to give notice of resignation which notice was rejected on the guidance that she was moving within the Barclays Africa Group Limited and her movement was a transfer. 6. On 28th June, 2013, she concluded the exit process from Barclays Bank Zambia Plc and the transfer of employment and the effect of the exit agreement (marked "TC3") was back dated to 24th June, 2013. 7. On 13t h February, 2015, she was promoted to grade BA4. The promotion letter is exhibited as "TC4". On 6 th December, 2016 she was given a long-term assignment to Absa Bank Limited, South Africa on promotion basis as Finance Manager in the Assistant Vice President grade but she was to remain an employee of Barclays Life Zambia Limited. In addition, pension arrangements including National Pension Scheme Authority (NAPSA) were to remain as per contract exhibited as "TCS". 8. The complainant averred that during the period of her long-term assignment, the respondent failed or omitted to remit employer J4 NAPSA contributions for the months November, 2016 to March 2019 as revealed by exhibit "TC6" . 9. On 1st January, 2019, she returned from her long-term assignment and was offered the role of Financial Controller with conditions of service that had in clause 1.1 the start date for continuous employment as 1st June, 2013 which she refused to accept. She exhibited the said employment agreement as "TC7". 10. On 10th February, 2020, Barclays Life Zambia Limited changed its name to Absa Life Zambia Limited. Prior to 1st May 2020, employees of Absa Life Zambia Limited enjoyed favourable conditions of service (exhibit marked "TC8") . On 1st May, 2020, the respondent introduced new conditions of service (exhibited as "TC9") which were adverse to the conditions which were enjoyed prior to that date. According to the complainant, she refused to consent to the adverse alterations to the conditions of service as evidenced by the exhibit marked "TCl0". 11. Further 1n May 2020, the respondent altered without her consent, the composition of salary as seen from the pay slips exhibited as "TCl l" and "TC12". 12. Consequently, on 19th September, 2020 the complainant and three other employees of the respondent complained to the Ministry of Labour and Social Security over the adverse alteration of their conditions of service without their consent. The complaint letter is exhibited as "TC 13". JS 13. On 2 nd November, 2020, the Labour Inspector called for a meeting with the respondent which took place on 18th November, 2020 as evidenced by the exhibit "TC 14". She added that the employees later wrote a letter ("TC15") to the labour commissioner summarizing the details of the meeting held on 18th November, 2020 . Since efforts to resolve the issue amicably proved futile, the labour commissioner referred the dispute to the court as per exhibit marked "TC 16". 14. On 12 th January, 2021, the respondent offered voluntary separation at a rate of pay of two (2) months basic pay for each year served contrary to the 2 .5 months' pay for each year served which was applicable to the complainant. The email offering voluntary separation is exhibited as "TC 17". 15. Subsequently, on 19 th February, 2021 , the complainant raised a grievance (exhibit "TC18") over being made to do random tasks away from her appointed role and being denied a separation when she was not allowed to work as Financial Controller which was her substantive role. The respondent failed or omitted to address her grievance. 16. Towards the end of February, 2021, the complainant noticed that the respondent had adversely amended her continuous service date from 9 th July, 2007 to 21 st July, 2012 without her consent. The system printout evidencing this is exhibited as "TC 19". 17. The complainant further averred that the respondent, on 4 th March, 2021, unilaterally and without her consent and contrary to her skills and training, changed her role of Financial Controller to a J6 fundamentally different role of Governance and Control Manager as indicated in the appointment letter ("TC20"). The Complainant elaborated that qualifications for the role of Finance Controller were a Bachelors of Accounts or professional qualification such as ACCA or CIMA plus 5 years' experience in management while the role of Governance and Control Manager required a degree in Business Management or Finance and 5 years relevant working experience which qualifications she did not have. She added that the two roles have different responsibilities and she exhibited the role profile for both positions as "TC2 l" and "TC22" respectively. 18. As a consequence thereof, the complainant refused the role of Governance Manager and did not sign the agreement. Nevertheless, the Managing Director insisted that the role of Governance Manager was the only role available in the organisation. 19. The complainant deposed that she reminded the respondent of her grievance of 19th February but by 1st June, 2021 there was no response. This left her with no choice but to give notice of resignation (''TC23"). She left the service of the respondent on 30th June, 2021. According to the complainant, the respondent frustrated her to resignation and she was thereby constructively dismissed. 20. She further testified that she has been injured and suffered mental anguish on account of the respondent's actions. 21. On 21 st July, 2022, the complainant filed a further affidavit in which she deposed that during her employment, she was bound by the Barclays Management Terms and Conditions of Service issued in July, 2017. A copy is exhibited as "TCl". J7 Respondent's Answer and affidavit 22. The respondent filed an amended answer on 16th August, 2022 in which it was stated that the complainant had a discussion with the line manager where all issues relating to her employment were explained. It was explained to her that the changes made to her duties and roles were in accordance with her terms of engagement and conditions of service under which she served. 23. The complainant was n ever put at any junior level and there was no agreement of remaining in one position. The respondent was entitled at any time to require the complainant to carry out such duties at its discretion. It was at the discretion of the respondent to place an employee where it was felt that it would get the most benefit. 24. According to the respondent, there was no arbitrary change of roles from Financial Controller to Governance Manager as the complainant was competent to work in both roles going by her qualifications and experience. The complainant wanted to dictate where to work and ignored the respondent's discretion . Further, the respondent complied with all the terms of the conditions of service. There was no variation save that the continuous date was an error which could have been corrected had it been brought to the respondent's attention. 25. It was further stated that the complainant gave her notice of termination of employment, thus she was not declared redundant. She was neither deemed redundant nor constructively dismissed. The complainant, is therefore, not entit led to the reliefs sought. J8 26 . The affidavit in opposition to the affidavit in support of complaint and in opposition of further affidavit was sworn by Rita Kabinga, the respondent's Chief Financial Officer. 27. She deposed that the respondent was entitled at any time to require the complainant to carry out such duties at its absolute discretion. As part of the exit formalities , the complainant was required to resign other offices in the Barclays Group of Companies or organisation. 28. During her long term assignment, the conditions which were applicable to the complainant were not of the responden t as she was not regarded as an employee of the respondent. As one of the terms of the long-term assignment, the complainant was responsible for the payment of taxes including NAPSA. 29 . Thus, the payment of NAPSA or any other tax would only arise when the complainant was drawing a salary from the respondent which would be 5% from the employee and 5 % from the employer. It was emphasized that the complainant was not drawing any salary from the respondent, consequently, the respondent was not required to make NAPSA contributions during the said period . 30. Ms. Kabinga deposed that contrary to the complainant's assertion, the complainant worked from January, 2019 on the same conditions until around May and June of 2021, which was more than one year with out protest. As such, she acquiesced and accepte d the conditions of service. J9 31. Ms. Kabinga maintained that apart from the terminology used, there was no change to the complainant's pay as alleged. 32. On the averments relating to Ministry of Labour, Ms. Kabinga simply stated that the labour commissioner is not possessed of power to refer any matter to Court. 33. In response to the voluntary separation issue, it was averre d that the scheme was at the discretion of the respondent and there was no obligation to offer it at a rate acceptable to an employee in the position of the complainant. 34. Regarding the roles of Financial Controller and Governance Manager, it was Ms. Kabinga's assertion that the roles were not vastly d ifferent. This is owing to the fact that the position of Financial Controller requires a degree m Accounting and/ or Professional Accounting qualification such as CIMA and ACCA which include knowledge in finance which is also required in the role of Governance and Control. Profiles for both roles as well as the complainant's results and curriculum vitae were exhibited to the affidavit and marked "RKl (a) (b) (c) (d). 35. The respondent's position is that the complainant was qualified for both roles. The deponent added that it was the respondent's discretion to place an employee in a position in which the respondent was of the view that it could get the benefit from the employee. 36. It was emphasized that the complainant was informed that the changes made to her duties and role s were in accordance with her ter ms of engagement and conditions of service . JlO 37. Ms. Kabinga denied the assertions that the respondent frustrated her into resignation. The complainant in fact gave one month's notice and no frustration was exerted on her. She indicated in her letter that she had different career goals. Further, having given notice of termination, the complainant cannot be deemed to have been declared redundant and neither was she constructively dismissed. 38. It was also deposed that the allegation that the respondent caused mental anguish to the complainant was unfounded and any mental anguish was self-induced and was not on account of the respondent's actions. Hearing course 39. The complainant testified on her own behalf and did not call any other witnesses . The respondent called two witnesses. Complainant's case 40. The complainant testified in line with her affidavit evidence . She added that Barclays Life advertised for the position of Finance Officer which she applied for and was given . She was then transferred from Barclays Bank to Barclays Life Zambia Limited which was in the same group. She worked in that capacity until 2015 when she was promoted to Finance Manager. At the end of 2015 she was offered an opportunity to go to Johannesburg on a short term assignment. 41. In December, 2016, she was offered a long term assignment for 2 years. The terms of the assignment were that she was to take up Jll the position of Finance Manager -Assistant Vice President which was a promotion from the job she held at Barclays Life Zambia. While on the assignment, she would remain an employee of Barclays Life Zambia and her salary would be around R 540,000.00 as indicated on the contract exhibited as "TCS". 42. While in South Africa, K280,064.00 was the notional salary used to compute her benefits with Saturnia Regna Pension Fund. She added that she was not paying pension because pens10n was supposed to be paid by Barclays Life Zambia. 43. The complainant returned to Zambia on 1st January, 2019 and was offered the position of Financial Controller reporting to the Chief Financial Officer. Her letter for the job offer stated that for purposes of continuous employment, her employment date would be 1s t January, 2019. According to the complainant, she declined to sign the letter on that account. This is because she was only on assignment. Consequently, she engaged the Managing Director and was given another letter with the employment date of June 2013 for continuous purposes. She also refused to sign this letter ("TC7"). 44. According to the complainant, she had a meeting with h er line manager to discuss her job during which she was advised that there were no responsibilities for her in the finance department. She was, therefore, assigned to manage the separation project preceding the change of Barclays to Absa. She was not given a letter for this role but she continued to manage the project as project manager. Occasionally, she was called to carry out duties as Financial Controller. J12 45. She further testified that in February, 2020, the project for separation was successfully completed and she took on various responsibilities. According to the complainant, during that period, she was the only person at the grade of Assistant Vice President who had no department to look after. As Financial Controller, she was not involved in the operations of the finance department except on ad hoc basis. 46. In May 2020, Absa Life introduced new conditions of service ("TC9"). According to the complainant, these conditions of service were not favourable and as a result, she refused to sign them. In a nutshell these new conditions meant that Absa Life would not pay her housing allowance which was incorporated in the base pay. She also highlighted that under the previous conditions, the employees enjoyed interest subsidies on loans where they were required to pay interest of 8 % on loans and the difference between 8 % and the commercial rate would be paid by Absa life. This clause was completely removed in the new terms and conditions. Another change was study leave entitlement which was cut from 4 days per subject per sitting to 10 days study leave per year. 47. The complainant and her three colleagues engaged sen10r management. Nevertheless, the May, 2020 pay slip showed the changes. For instance basic salary had changed to base pay. Hence, she and her colleagues decided to lodge a complaint with the Ministry of Labour. Management denied having changed the conditions of service . J13 48. It was the complainant's evidence that whilst she was still consulting on this matter, on 12 th January, 2021, Absa life called for voluntary separation. She applied in view of the hostility from management following the engagement with Ministry of Labour and also because from the time she returned from South Africa, she had no role as Financial controller. On 19th February, 2021 she received a response declining her application to voluntarily separate. 49. According to the complainant, she again raised her grievance with the Chief Financial Officer and copied the Managing Director about the fact that she was not being given responsibilities as a Financial Controller which was frustrating. She referred to exhibit "TC 18" which is the grievance letter she wrote. The letter was not replied to. She proceeded on leave. 50. Whilst on leave, she was informed by her line manager that she had been transferred to the compliance department under operations as Governance and Control Manager. The gist of the complainant's testimony regarding this new role was that she was dissatisfied and struggled in it. She said she was frustrated, depressed and sometimes failed to report for work. It dawned on her that it was just a way to make her leave voluntarily. And so on 31 st May, 2021, she resigned and her resignation was accepted. 51. The complainant drew Court's attention to her Curriculum Vitae produced by the respondent ("RKlc) and testified that that was her CV in 2012 which she used to apply for the position of Finance Officer. She had just completed ACCA and had no work experience. According to the complainant, the CV was appropriate for the role of Governance Controller. She emphasized that her aspiration was to be a Chief Fin ancial Officer in line with her qualifications and over 10 years related experience. As her new role did not further her career aspirations, she was left with no option but to leave. 52. In cross examination, the complainant confirmed that she was employed as Chief Financial Officer at Zambia Electronic and Clearing house . She conceded that her salary was not better than her salary with the respondent but she did not regret leaving the respondent. 53. The complainant was then referred to exhibit "TC5" and she acknowledged that "the firm" ref erred to was Barclays Bank and that the letter indicated that she would remain an employee of the firm . 54. In further cross examination, the complainant acknowledged that Absa life and Absa bank are separate legal entities but stated that they are managed by the same Human Resource . 55. The complainant also acknowledged that when she returned from her appointment in South Africa, she was in a managerial position. Sh e clarified that the terms and conditions (exhibit "TC8") were non-managerial conditions of service and that the conditions of service applicable to her were the Barclays Bank conditions. 56. When referred to exhibit "TC9", the complainant stated that these conditions of service did come into effe ct. She conceded that there was no signed copy before court indicating that the said conditions of service were signed by Absa life. J15 57. With respect to voluntary separation, the complainant stated that the respondent had the discretion to accept or reject the application . She confirmed that the respondent offered a severance pay of 2 months basic pay across the board. 58. Cross examination then centered on the complainant's qualifications in relation to the new role she was assigned. She admitted that she was trained and skilled in risk management, conducting audits as well as detailed risk and control assessment of bank facilities. She further confirmed that she did study governance, risk management and ethics but that she never practiced it. 59. Further in cross, the complainant stated that her aspiration was to be a Chief Financial Officer and that the new role would not have allowed her to pursue her desired career path. 60. In re-examination, the complainant insisted that the conditions of service ("TC9") came into effect because in May 2020, there was a change in the salary definition from basic to base. Respondent's case 61. The first witness for the respondent was Rita Kabinga Chisela, the respondent's Chief Financial Officer. She began her testimony with the complainant's long term assignment to South Africa. It was her evidence that the complainant was more or less removed from Absa life Zambia's payroll and became an employee of Absa Bank, the firm. The only thing that Absa Life was still obliged to do was to pay and contribute its share of the pension. J16 62. Ms. Chisela explained that the complainant's salary of K 280,064.00 helped to determine what percentage of pension was to be paid to Saturnia Regna. Other allowances and everything else was being paid in South Africa and this included NAPSA contributions. She was after all not sitting on the respondent's payroll. Further, the letter ("TCS") did specify that social security and all taxes would be paid by the complainant. 63. On the conditions of service, it was Ms. Chisela's evidence that there was no change. She narrated that the conditions of service that the complainant was alluding to were only proposed and every employee was given to review. Employees continued to be paid based on the old conditions of service. The change in the terminology on the complainant's pay slip did not mean that the conditions of service had changed. The salary and allowances including housing allowance remained the same. 64. On the ad-hoc roles complained about, Ms. Chisela told court that the complainant was competent to perform and was able to discharge those roles. As regards the role of Governance control, it was her evidence that the complainant was qualified to handle the role and it was not significantly different from what she was already doing as financial controller. The two positions were at the same level so it was a lateral move. 65. Ms. Chisela further testified that the role of Chief Financial Officer that the complainant wanted was not available at that time, hence the respondent placed her in a role in which it felt it could benefit the most. She added that the respondent did not frustrate the J17 complainant. She left at her own discretion based on the fact that she had different aspirations from the respondent. 66. In cross examination, Ms. Chisela confirmed that Absa Life is an insurance company to which complainant was an employee. When referred to exhibit "TC5" . She confirmed that the law governing the complainant's employment contract was Zambian law. 67. Ms . Chisela maintained that the managerial conditions of service ("TC9") were never put into effect. She confirmed that the complainant refused to accept these conditions. She disputed the assertion that the respondent changed basic salary to base salary without the complainant's consent. 68. Regarding the complainant's continuous start date of employment, Ms. Chisela conceded that there was an error as the employment date was 2007 . 69. In re-examination, Ms. Chisela reiterated that the respondent does pay both NAPSA and pension for its employees but when the employee is not on its payroll, the respondent does not pay NAPSA. She further reiterated that the only change on the complainant's pay slip was the terminology from basic to base pay, otherwise she was not disadvantaged in anyway as she was still receiving the same pay . 70. The respondent's second witness was Chali Njobvu , the Human Resource Business Partner. 71. He explained that an aggrieved employee can escalate a complaint to the highest level if action is not taken by the previous recipient of the complaint. Further, the respondent has an anonymous whistle blowing platform which employees can also resort to. 72. When cross examined, Mr. Njobvu stated that there was a distinction between non-managerial and managerial terms and conditions of service. He also stated that the conditions of service that preceded "TC9" were not before Court. 73. Mr. Njobvu further stated that both the line manager and the Managing Director were aware of the complainant's complaint but there was nothing on record to show that they responded to the complaint. Submissions 74. The complainant filed final submissions on 14th November, 2022. Mr. Ngandu on behalf of the complainant begun by dealing with unilateral variation of contracts. He relied on the case of Mike Kabwe v. BP Zambia Limited(1l. where the Supreme Court observed that: If an employer varies a basic or basic conditions of employment without the consent of their employee then the contract of employment terminates. The employee is deemed to have been declared redundant on the date of such variation and must get a redundancy payment if the conditions of service do provide for such payment. 75. Counsel also referred Court to the case of National Milling Company Limited v. Simaata and Other(2 J which reaffirmed the above position. He added that this position has been codified in section 55(l)(C) of the Employment Code No. 3 of 2019. J19 76. It was submitted that the respondent herein adversely unilaterally varied the complainant's conditions of service particularly her earnings without her consent and to her detriment. Clause 29 in exhibit "TC9" provides definitions for basic salary and base salary. Basic salary excludes all allowances while base salary is defined as an amount paid to an employee comprising basic salary and housing allowance. The housing allowance forms 30% of the base salary. 77. According to counsel, this altered the complainant's earnings. If the K 35,040 .00 base pay is broken down as per definition, basic salary (70%) was K 24,528.00 and housing allowance (30%) was K 10,512.00. 78. Concerning the assertion by the respondent that the complainant acquiesced to the unilateral change, Mr. Ngandu relied on the case of Richard Musenyesa v. Indo Zambia Bank Limited(3l- Premised on this authority, it was submitted that the respondent had failed to support the allegations of acquiescence by conduct with credible evidence. It was emphasized that in an email dated 11 th May, 2020, ("TClO"), the complainant unequivocally declined to sign the new conditions of service that the respondent intended to introduce. Nevertheless, the respondent 1n to total disregard of the complainant's rights, implemented changes to the conditions of service. 79 . The mere fact that the complainant continued to work after the respondent altered the earnings cannot be said to be acquiescence. As such, the respondent deemed the complainant redundant and she is entitled to redundancy benefits. J20 80. Counsel also submitted that the redundancy should be paid at the rate of 2.5 months' salary for each completed year of service in tandem with the conditions of service in exhibit "TCl" in the further affidavit which were not challenged by the respondent. Alternatively, if the Court is of the view that the conditions of service do not apply for purposes of redundancy payment, the provisions of section 55(3)(a) of the Employment Code Act should apply which entitles an employee to a minimum redundancy payment of not less than two months' pay for ever year served. 81. With regard to the complainant's entitlement to housing allowance, reliance was placed on section 92 of the Employment Code which provides as follows:- An employer shall provide an employee housing, a loan or an advance towards the purchase or construction of a house, a guarantee facility for a mortgage or house loan on behalf of the employee or pay the employee housing allowance under- a) a collective agreement registered under the Industrial and Labour Relations Act b) a contract of employment; or c) the general conditions of service of the undertaking. 82. Counsel submitted that the respondent had clearly opted to pay the complainant housing allowance at 30% of her base salary. This means, she should have been receiving K 10,512.00 above and beyond the basic salary of K 35,040.00. However, that was not the case as the complainant continued to receive K 35,040.00. J21 83. Counsel further submitted that the respondent had one year to comply with the Employment Code which came into effect on 9 th May, 2019. He added that the purported housing allowance included in the complainant's base salary was a sham deployed by the respondent to show compliance with the law in disregard to the complainant's rights. This was therefore a proper case for the Court to award the complainant housing allowance. 84. The submissions then addressed whether the respondent was required to pay NAPSA employer contributions. Mr. Ngandu highlighted that the complainant's contract of employment was to be governed by the laws of Zambia. Reference was made to the Supreme Court case of Friday Mwamba v. Sylvester Nthenge & Othersf4 l to the effect that parties are bound by the contracts which they enter into and such agreements should be enforced by the Courts of law. 85. It was submitted that under Zambian law, an employer is required to pay statutory pensions contribution. This is as provided for in section 14(1) of the National Pension Scheme Act No. 40 of 1996 which stipulates that: A contributing employer shall pay to the scheme a contribution in respect of an employee in his employment consisting of the employer's contribution and the employee's contribution at the prescribed percentage. 86. Despite the law being explicit, it was apparent from exhibit "TC6" that no contribution was paid to NAPSA for the period November, 2016 to March, 2019. 87. Mr. Ngan du contended that he was mindful that it was stated in the assignment letter ("TC5"), that the complainant's salary would be paid through the South African payroll. He submitted that the letter does not state that the salary would be paid by Absa Bank of South Africa. Consequently the respondent was not excused from paying NAPSA contributions. 88. Counsel quoted from the letter which states that the complainant would be responsible for payment of all income and other taxes including social security /provident fund contributions, if applicable, arising from the assignment. Be that as it may and on the strength of the case of Krige & Another v Christian Council of Zambia(51, it was submitted that there can be no estoppel against statute which places obligation to pay employer contribution on the employer. 89. Mr. Ngandu acknowledged that the complainant's assignment letter did not originate from the respondent itself but an entity within the group of companies within which the respondent operates. He nevertheless contended that the said letter did not terminate the complainant's employment with the respondent, contrary to the respondent's assertions . 90. It was submitted that although the respondent sought to distance itself from the assignment letter, the respondent made payments to the private pension Saturnia. This is because the respondent is a local firm responsible for local obligations as employer. The respondent was therefore not precluded from paying NAPSA contributions. 91. Court's attention was also drawn to the fact that the complainant begun her assignment in South Africa on 1s t April, 2017 and returned from her assignment on 1st January, 2019. Despite this, the J23 respondent did not remit NAPSA Contributions from November 2016 to March 2017 and the from January 2019 to March 2019. It was thus argued that if the Court was of the view that the respondent should not pay for the period claimed, the respondent should nonetheless be ordered to pay contributions for the period November 2016 to March 2017 and January 2019 to March 2019. 92. Turning to the issue of whether the complainant was constructively dismissed, counsel highlighted that constructive dismissal occurs where an employer has committed a serious breach of contract such that an employee is entitled to treat the contract as at an end for instance by resigning. The case of Chilanga Cement Pie v. Kasote Singogo(6 l was called in aid. 93. Mr. Ngandu contended that the respondent committed a senous breach of contract by unilaterally altering the complainants earnings to her detriment which damaged the trust and confidence of the complainant. Reference was made to the case of Celine Nair v. Standard Chartered Bank Plc(7) in which the Court of Appeal recognized that there was an implied term of trust and confidence in contracts of employment requiring both parties to the contract not to act in a way to undermine the employment relationship. 94. It was further submitted that although the complainant was engaged as financial controller, following her return from her assignment in south Africa in January, 2019, she did not discharge her duties in that role. Instead the complainant was assigned to perform several duties outside the role of financial controller. The complainant's contract of employment and conditions of service show that there was J24 no provision which allowed the respondent to assign the complainant duties outside the role of financial controller. 95. In conducting itself as it did, the respondent breached the contract of employment with the complainant. Further, the appointment to another position required the complainant's consent which the respondent undeniably failed to obtain. 96. It was submitted that the said transfer was the last straw. Under the 'last straw' doctrine, an employee can resign in response to a series of breaches of contract or a course of conduct by the employer which when considered cumulatively, amounts to a breach of the implied terms of trust and confidence. Counsel added that though insubstantial, the final incident in the chain may be sufficient to render the whole series of incidents a breach of the implied term. Recourse was had to the case of Kaur v. Leeds Teaching Hospitals NHS Trust(8 l reproduced in the Celin Nair case . 97 . Succinctly put, the unilateral variation of the complainant's salary and the failure to give her work fit for a financial controller amounted to a breach of contract. As such, the complainant was entitled to damages for constructive dismissal. The case of Chansa Ng'onga v. Alfred H. Knight (Z) Limited(9 l was relied on which is to the effect that the measure of damages for constructive dismissal was the notice period pay unless there were other compelling circumstances. 98. It was contended that the circumstance of this case warrant the award of damages beyond the notice period as the respondent's conduct was nocuous. As a result, the respondent should be condemned to pay 36 months as damages. J25 99. On damages for mental anguish, counsel referred to the case of Attorney General v. Mpundu(10J in which the Supreme Court guided that damages for mental distress may be considered in an action for breach of contract. 100. In conclusion, counsel asked that the complainant be granted her claims against the respondent in their entirety . He also prayed that the respondent be condemned in costs pursuant to rule 44 of the Industrial Relations Court Rules for delaying the hearing of this matter as evidenced by the record. 101. The respondent filed its final submission on 29 th November, 2022. 102. In response to the assertion that the respondent deemed the complainant redundant, Counsel for the respondent, Mr. Milezhyi, firstly drew attention to the case of National Milling Corporation Limited v. Grace Simaata & Others(2l and argued that the complainant did not provided evidence illustrating that the respondent unilaterally and adversely altered a basic condition in her contract of employment. 103 . It was argued that the Managerial Terms and Conditions of Service exhibited by the complainant were a mere proposal given to the employees, including the complainant to get their views and had not been effected. Mr. Milezhyi referred to the complainant's exhibit "TC15" which shows the respondent's response to the effect that no changes had been made to the conditions of service. Even with this knowledge, the complainant continued to argue t hat her conditions of service were altered. J26 104. It was also submitted that the conditions of service ("TC8") being Ba rclays Life Zambia Limited's Non-Managerial terms and conditions were not applicable to the complainant as she was in a managerial position. With regard to "TCl", Barclays Bank Zambia Plc's Management terms and conditions, Mr. Milezhyi's submission was that the said conditions were not applicable to the complainant as she was under the employ of the then Barclays Life Zambia Limited and not the bank. 105. It was submitted that the unilateral variation m ust be one that adversely alters a b asic condition as guided by the case of National Milling Company v. Grace Simataa and Others(2l thus: It is thus necessary to look at the nature of the condition breached and the consequences of such a breach in order to determine whether a condition is basic or one that is relatively minor and not crucial to the contract. Variations to non-basic conditions of even if unilateral and disadvantageous would not affect the essential viability of the contract and would in all probability not discharge it or justify the innocent party to treat the breach as effecting a termination by repudiation or rescission or otherwise". 106. The change complained of, it was submitted, was the use of "base pay" from "basic pay". As testified by the first witness, the complainant's salary remained at K35,040 .00. The change in terminology, therefore, does n ot in itself lead to an inference that there was an a lter ation in the complainant's conditions of service more so that the conditions of service ("TC9") were not effected. 107. It was submitted that in the event that the Court finds that t h e change in terminology from "basic pay" to "base pay", was an alteration of the complainant's condition s of service, this variation should not be considered adverse nor regarded as an alteration to a basic condition because the complainant's salary remained at K35,040.00. 108. Mr. Milezhyi submitted that the alleged reduction 1n the complainants basic pay to K24,528.00 in accordance with the definition of base pay was a figment of the complainant's imagination and was not supported by the evidence on record. According to exhibit "TC7", under the heading term sheet, the complainant was not entitled to housing allowance. Therefore, the change in nomenclature from basic to base did not affect the complainant's earnings 1n any way. 109. In the circumstances, it was argued, the complainant is not entitled to redundancy benefits and Court was urged to dismiss this claim. 110. The submissions then focused on whether the complainant is entitled to housing allowance for the period May 2020 to June, 2021. Counsel drew attention to section 92 of the Employment Code cited earlier. Predicated on this provision, counsel argued that the law gives the employer options with respect to employees' housing. 111. In this instance, the pay slips, "TCl l" and "TC12", under deductions have a clause indicated as Loan 2. It was argued that the said loan was a mortgage facility granted to the complainant to secure her housing. Thus, the respondent had fulfilled the requirement of the law. As a result, the complainant was not entitled to housing allowance for the period of May 2020 to June 2021. J28 112. As regards the issue of NAPSA employer contributions, Mr. Milezhyi referred to exhibit "TCS" under the heading tax, which clearly states that the complainant would be responsible for payment of all income and other taxes. 113. It was also counsel's contention that although section 14 of the National Pension Scheme Act does require an employer to pay employee contribution, the complainant during her long term assignment was to remain an employee of "the firm" which in this instance is Barclays Bank Limited and not the respondent. 114. It was further argued that exhibit "TCS" shows that the complainants salary was not being paid by the respondent as it reads as follows: Your salary will amount to R540, 000. 00 gross per annum. Your salary will be paid through the South African Payroll and reviewed annually in line with staff in South Africa. 115. It was argued that because the complainant was not on the respondent's payroll during the long term assignment , it was not possible to deduct her NAPSA contributions from a non-existent salary. 116. In response to the assertion that the complainant was constructively dismissed, reliance was placed on the Chilanga Cement Pie v. Kasote Singogo(6l case. Counsel submitted that there was no evidence of unlawful behavior or conduct on the part of the respondent which could be considered a fundamental breach of the contract of employment warranting resignation by the complainant. J29 117. It was argued that the complainant resigned because her career goals were different from the opportunities she was receiving in her position. Her aspiration was to rise to the position of Chief Financial Officer. It was submitted that the lateral transfer from the position of Financial Controller to Manager Control and Governance was not a breach of contract warranting resignation. The general position of the law was that an employer can transfer an employee at its discretion. 118. In augmenting his position on this issue, Mr. Milezhyi relied on the case of Michael Kahula v. Finance Bank Zambia Ltd(I l) in which the Supreme Court found that there was no constructive dismissal as the respondent in that matter had contractual powers to transfer the appellant to any department even in the absence of a transfer request from him. 119. It was submitted that the respondent was not obliged to provide specific work to the complainant provided the employee was getting a remuneration for the work for which they were employed. Counsel referred to the case of Collier v. Sunday Referee Publishing Company(12l and the case of IMA Zambia Limited v. Jean Marc Darmon(13l, authorities to the effect that an employer is not obliged to provide the servant with work but is nevertheless obliged to pay him in accordance with the contract. 120. Predicated on these authorities, counsel submitted that the claim that the complainant was constructively dismissed should be dismissed as it was devoid of merit. J30 121. On the claim for damages for mental anguish, recourse was had to the case of Lewis Mosho v. Matildah Phiri(14l which enunciated that liability arises in extreme cir cumstances where the distress 1s so severe that no reasonable man could be expected to endure it. 122. Further reliance was placed on the cases of Justine Mbita Silumbwe v. Barclays Bank Zambia LimitedP5l and Chilanga Cement Pie v. Kasote Singogo(6 l in which the Supreme Court guided that the general standard of how a 'reasonable man' would react when their employment is terminated is m easured by the m ethod of how the termination is executed. If the termination was done wantonly in total disregard of the complainant's rights, then it is expected that the complainant could have suffered severe mental stress beyond the normal reaction of a reasonable man. 123. It was contended that the complainant had not shown the extreme circumstances which could have caused her distress so severe that no reasonable man would be expected to endure it. 124. In conclusion, counsel praye d that the complaint be dismissed in its entirety and that consequently, t h e complainant is not entitled to any costs . There was, after all, no unreasonable conduct or unreasonable delay caused by t he respondent as envisaged by Rule 44. Analysis and Decision 125. I have considered and reflected on the pleadings, the oral evidence and the submissions by counsel on both sides for which I am indebted. J31 126. From the evidence, it is not in dispute that the complainant was employed by Barclays Bank Zambia Plc on 9 th June, 2007. She was transferred to Barclays Life Zambia Limited with effect from 1st June, 2013 in the position of Finance Officer. She was promoted in February, 2015. 127. It is also not in dispute that on 6 th December, 2016, the complainant was given a long term assignment to Absa Bank Limited, South Africa on promotion basis as Finance Manager in assistant vice president grade. However, she was to remain an employee of Barclays Bank Limited. She returned to Zambia on 1st January, 2019 . 128. Upon her return, she was offered the role of Financial Controller. In February, 2020, Barclays Life Zambia Limited changed its name to Absa Life Zambia Limited. She resigned on 30th June, 2021. 129. It is contended by the complainant that the respondent deemed her redundant by adversely altering her conditions of service which alteration she did not consent to and/ or in the alternative, constructively dismissed her through conduct in breach of the fundamental terms of the contract of employment, thereby frustrating her into resigning. 130. The complainant also contends that the respondent neglected to remit NAPSA employer contributions while she was away on the long term assignment and further that the respondent did not pay her housing allowance a s per law provided, for the period May , 2020 to June, 2021. J32 131. The respondent denies the assertions and contends that the respondent had the discretion to place the complainant where it could get the most benefit. The respondent denied there being arbitrary change of roles and proffered that the complainant could not dictate where to work. The respondent further denied the assertion that it varied the conditions of service. It was contended that the complainant resigned and was neither declared redundant nor constructively dismissed. The r e spondent denied all claims by the complainant. 132. Thus, the issues which fall for determination are: 1. Whether the respondent deemed the complainant redundant. 2. Whether or not the complainant was constructively dismissed. 3. Whether the complainant is entitled to housing allowance for the period May, 2020 to June, 2021 4. Whether the respondent was obligated to pay NAPSA employer contributions for the period November, 2016 to March 201 9. 5. Whether the complainant is entitled to damages for mental anguish Whether the respondent deemed the complainant redundant 133. The complainant's contention is that th e respondent unilaterally altered her conditions of service by changing her hiring date, salary composition, hours of service without corresponding increase in pay and variation of r e dundancy rate of pay. The respondent maintained that no changes were made to the complainant's conditions of service. It was argued that the conditions of service relied on to J3 3 reach the conclusion of alteration were not effected by the respondent. 134. The respondent did, however, admit that the hiring date was 9th July, 2007 and not 21st July, 2012 as indicated on the job details printout ("TC 19"). The respondent's witness proffered that this issue could have been rectified had it been brought to the responde nt's attention. 135. I must mention that the complainant did not lead evidence to show that indeed the conditions of service ("TC9") were brought to life. The exhibited copy on record is not signed by the respondent's representatives. The only change that was proved was through the pay slips for the months of April and May, 2020 which show that the salary was no longer referred to as basic salary but was now termed base salary. 136. Further when one looks at the definition of base salary as supplied by the conditions of service which had not come into effect, one sees that this is made up of basic salary and housing allowance and that housing allowance forms 30% of the base salary. 137. It is to be noted that initially, the complainant was not entitled to housing allowance. However, when the Employment Code Act came into being, it mandated employers to provide housing for their employees. One need not be rocket scientist to deduce that the change in terminology on the pay slip was to align the respondent with the law. Thus, it is safe to conclude that the salary composition aspect of the the conditions of service ("TC9") was effected in May, 2020. Housing allowance was introduced. Which means the basic J34 salary which was previously K 35,040.00 was now K 24,528.00, that is, 70% of the base salary. 138. According to section 55(l)(c) of the Employment Code: {l) An employer is considered to have terminated a contract of employment of an employee by reason of redundancy if the termination is wholly or in part due to - (c) an adverse alteration of the employee's conditions of service which the employee has not consented to. 139. Further, Gwyneth Pitt's Employment Law states as follows at page 103: The employer has a further obligation to inform employees of any changes in their terms and conditions ... Any variation must be agreed between the parties as with any other contract. This is normally done as part of the general round of negotiations. Should the employer insist on unilateral variation, it will be a breach of contract, usually a fundamental breach. 140. The foregoing establish that where an employee's conditions of service are altered to their detriment and without their consent, the employer is said to be in breach and ultimately considered to have terminated the contract of employment. 141 . From the above analysis it is clear that the reduction of the basic salary and the adjusting of the employment start date were an alteration to the complainant's terms and conditions of service. Further , it is undeniable that the complainant did not consent to these alterations. This was expressed directly by the complainant through the laying of a complaint to her superiors, refusal to sign the J35 employment agreement dated 1st January, 2019 and also through lodging a complaint with the labour office. 142. As righ tly submitted by the respondent, it is not every alteration in the terms and conditions that will render the contract of employmen t as at an end . This was explained by the Supreme Court in the case of National Milling Company v. Grace Simaata and Othersl2l relied on by both parties as follows: In the first place, the reference to basic condition must surely be to a fundamental or essential term, one affecting the essential character of the bargain and the breach of which would justify the innocent party to treat the contract as repudiated or rescinded by the party in breach. The alteration of a basic condition if consensual and probably beneficial would result in bringing about a replacement contract, different from the former. It is thus necessary to look at the nature of the condition breached and the consequences of such a breach in order to determine whether a condition is basic or one that is relatively minor and not crucial to the contract. Variations to non-basic conditions even if unilateral and disadvantageous would not affect the essential viability of the contract and would in all probability not discharge it or justify the innocent party to treat the breach as effecting a termination by repudiation or rescission or otherwise. 143. From the foregoing decision, it is clear to see that altering the basic salary and start date are issues th at are crucial to the contract as they affect the benefits th at one may be entitled to such as severance pay calculated on one's basic salary and the number of years served. Clearly, therefore, the terms in issue were fundamental to the contract justifying the complainant to treat the contract as repudiated . J36 144. It was argued on behalf of the respondent that the complainant acquiesced to the changes since she continued in employment. However, in the case of Richard Musenyesa v . Indo Zambia Limited(3l the Supreme Court cautioned against finding implied consent or acquiescence too readily, even in s ituations where an employee does not protest the changes. The court h eld: In the case of Grace Simataa, relied upon by the appellant, we further held that where unilateral changes are made to basic conditions of employment which are adverse and unacceptable to the employee, such employee becomes entitled to treat the variation as a breach by the employer which terminates the contract from the date of variation . That the payment of redundancy or other terminal benefits in those circumstances would be appropriate recompense. We however hastened to clarify that, different considerations would apply, if the evidence revealed that clear notice by the employer had been given of the variations and that the employee, with full knowledge of the said variations, had opted to contin u e in employment, ... 145. My understanding of t he foregoing is that an employee who is clearly notified of the changes in the basic conditions of employment has the option to treat the variation as a breach which terminates the contract or to continue in employment without protest. In the latter instance, t he employee will be taken to have consented to the variation. 146. The evidence 1n the case 1n casu has establish e d th at th e complainant was not clearly notified of the changes and as found, s he did not consent to the changes . Thus, the fact that she continued J37 working cannot be termed as acquiescence. In any case, it has been proved that her grievances were not addressed . There is no document on record explaining why the respondent changed the employment start date or that base salary had the same meaning as basic salary and did not include housing allowance. 14 7. In light of the foregoing, I am satisfied that the respondent deemed the complainant redundant and as such she 1s entitled to redundancy benefits as claimed. As established, the respondent conceded that the start date is 9 th July, 2007. 148. This brings me to the determination of the applicable conditions of service. This is necessary to determine the rate to apply in calculating the redundancy benefits. 149. The complainant, during cross examination conceded that she was in a managerial position at the time of termination of the contract. Quite clearly, the non-managerial terms and conditions exhibited by her are not applicable. As for the conditions of service exhibited as "TC9", as already found, these had not come into effect therefore cannot be relied on. 150. Further, the complainant exhibited management terms and conditions of service (BA4 management to director) to her further affidavit in support of complaint. On behalf of the respondent, it was submitted that these are not applicable to the complainant as they are terms and conditions for Barclays Bank Zambia's management. The complainant was under the employ of Barclays Life Zambia, the insurance company. 151. I have perused the said conditions of service and clause 1.0 states that these are terms and conditions for individuals in management positions in the Bank. (underlining mine for emphasis) . As such, I agree with the respondent that these conditions are inapplicable to the complainant. The complainant ought to have produced conditions of service specific to the respondent or at least prove that the bank conditions were applicable to the respondent's management employees as well. 152. In the circumstances, section 55(3)(a) of the Employment Code Act shall apply. Whether or not the complainant was constructively dismissed. 153. The complainant is seeking this claim in the alternative. It was contended on her behalf that the respondent committed a serious breach of contract by unilaterally altering her earnings to her detriment which damaged her trust and confidence. It was also contended that the complainant was not discharging duties of a financial controller. Further, it was argued that the complainant's appointment to another position required the complainant's consent. 154. The respondent on its part denied unlawful behavior amounting to a breach of contract to warrant resignation by the complainant. It was argued that the complainant resigned because her career goals were different from the opportunities she was receiving. 155. The learned authors of a Comprehensive Guide to Employment Law in Zambia have this to say about constructive dismissal at page 269: J39 Constructive dismissal occurs when an employee, seemingly on his own volition terminates his contract of employment by resigning, while the real reason fo r that action is that he is protesting against management conduct. For constructive dismissal to be claimed the employer's conduct must be so serious that it amounts to a repudiation of the contract and the employee must clearly indicate that he is resigning or being forced to leave employment due to such conduct. 156. Further in t h e case of Nitrogen Chemicals of Zambia Limited v. Boyd Choma Mutambo and Others(16l the Supreme Court guided on the elements of constructive dismissal when it stated as follows: It is also plain, there are three basic requirement for a constructive dismissal claim(l)) the employee must resign (2) the resignation must be in response to a fundamental breach of contract(3) the employee must act promptly and in response to the breach, so that he or she is not taken to have implicitly agreed to continue with the contract. 157. What can be d eciphered from these authoritie s is th at an employee only succeeds in an action for constructive dismissal if h e proves that he was forced to resign as a result of t h e employer's conduct amounting to a fundamental breach of the employment contract. Further, the employee must act swiftly. 158. As already establishe d , the respondent breached fundamental terms of the contr act when it changed th e employmen t start date and the salary composition. This occurred in January, 2019 and May, 2020 resp ectively. The complainant only wrote h er resignation letter on 31st May, 202 1 and it reads: J40 RE: NOTICE OF RESIGNATION I am writing to tender my resignation from my position as Governance and Control Manager at Absa Life Zambia after 14 years of service with Absa/ Barclays Group. My last day of employment will be 30th June, 2021 in accordance with the one month notice period in my employment contract. I value the time that I have spent with Absa Life and the friends I have made. I do feel however that my anticipated career goals are very different from the opportunities I am currently receiving in my current position. Thank you for your continued support and guidance . I will be happy to do whatever I can do to make this transition as easy as possible. Yours Sincerely Twaambo Chooka 159. The complainant, quite clearly, did not act promptly in response to the breach and she did not mention that she was resigning because she was unhappy with the respondent's conduct. As seen from the above authorities, these are important elements in a claim for constructive dismissal. 160. I have not overlooked the assertion that the complainant was not discharging duties of a financial controller and that she was appointed to a position she was not qualified for. 161. I agree with the respondent that it was not obliged to provide specific work to the complainant. The important thing was that she was getting paid as per her contract of employment. I am fortified by the case of IMA Zambia Limited v. Darmon(13l. In any case , there is no evidence that the work given to the complainant was outrageously outside the scope of her role as financial controller. J41 162. As for the new appointment of Manager Control and Governance, I have carefully examined the appointment letter as well as the complainant's Curriculum Vitae and qualifications produced by the respondent. The appointment letter shows that the role required one to have a degree in business management or finance with key accountabilities in risk management, audit management, risk metric/ dashboard management, control issue management and combined assurance model. 163. Meanwhile, the CV shows that the complainant was pursuing a Master's degree in finance with the London School of Business and Finance. Further the certificate obtained by the complainant showed that she had completed a professional level of the ACCA examinations having passed governance, risk and ethics, corporate reporting, business analysis, advanced financial management and advance audit and assurance. 164. From the foregoing, I am satisfied that the complainant was qualified for the role and had the relevant experience. 165. In the circumstances, I do not agree that it was unlawful for the respondent to assign the complainant duties as required and to transfer her to another department. The respondent had the contractual powers to act as it did. 166. All in all, I am disinclined to find that there was constructive dismissal. J42 Whether the complainant was entitled to housing allowance 167. It was contended by the complainant that for the period May, 2020 to June, 2021, she ought to have been getting 30% of the base salary of K 35,040.00, which is a sum of K 10,512 .00, as housing allowance in addition to the salary. 168. The respondent contended that section 92 of the Employment Code Act gives an employer options to implement the provision of housing for the employees. The respondent in this instance , had opted to give the complainant a mortgage facility which was indicated as loan 2 on the pay slips before court. 169. Indeed, section 92 does not limit the prov1s10n of housing to an allowance. The employer can also provide a house to the employee, a loan or an advance towards the purchase or construction of a house, a guarantee facility for a mortgage or a house loan. 170. What is interesting is that no evidence was led by the respondent to show that the loan referred to as loan 2 was indeed a house loan or mortgage facility for the complainant to secure housing. This arose only in the respondent's submissions. This means, this could have been any other loan. For this reason, I am disinclined to accept that the complainant was given a loan to secure her housing. 171 . This still leaves the question whether or not the complainant was entitled to the sum of K 10,512.00 per month as housing allowance over and above her base salary. 172. I am of the view that the complainant was indeed entitled to housing allowance in the absence of a house or a loan or an advance to secure J43 housing. However, it is the respondent's inability to secure housing for the complainant that rendered the complainant redundant. As held in the Mike Kabwe(1l case cited by the complainant, the complainant was deemed to have been declared redundant on the date of the alteration of her salary composition. 173. In light of the finding that the complainant was deemed to have been declared redundant, awarding housing allowance would amount to double penalty against the respondent. As such, this claim fails. Whether the respondent was obligated to pay NAPSA employer contributions for the period November, 2016 to March 2019 174. The complainant urged this court to order the respondent to pay NAPSA contributions for the period cited . The respondent on the contrary, argued that it was not responsible for the complainant's contributions as she was not on the respondent's payroll during her long term assignment. As a result, this claim was baseless. 175. A perusal of the NAPSA member statement on record reveals that the respondent indeed did not make contributions in the period November, 2016 to March, 2019. Meanwhile, section 14(1) of the National Pension Scheme Act is clear that the employer ought to pay to the scheme a contribution in respect of an employee in his employment. 176. It is common cause that the complainant was assigned to Absa Bank Ltd, South Africa. The long term assignment letter dated 6 th December, 2016 states that the complainant would remain an employee of Barclays Bank Ltd during the assignment period. J44 However, the fact is that the respondent was not responsible for the complainant's remuneration while she was with Absa Bank Ltd, South Africa. Thus, I do agree with the respondent that it had no obligation to remit NAPSA contributions during the period the complainant was not on its payroll. 177. I note that the assignment letter states that the two-year assignment would commence on 1st April, 2017. As established, the complainant returned to Zambia and was appointed as financial controller with effect from 1st January, 2019. Quite clearly, therefore, the respondent was under an obligation to remit NAPSA contributions up to March, 2017 before the complainant left for South Africa and from January, 2019 when she returned to Zambia. 178. Thus, the claim directing the respondent to remit NAPSA employer contributions partially succeeds . The respondent is obliged to remit contributions for the period November, 2016 to March, 2017 and January, 2019 to March, 2019. Whether the complainant is entitled to damages for mental anguish 179. It was argued on behalf of the complainant that damages for mental distress may be considered in an action for breach of con tract as held in the Attorney General v. Mpundu case. The respondent on its part relied on the Lewis Mosho case which held that liability for the claim of mental anguish arises in extreme circumstances where the distress is so severe. 180. I have considered the opposing views on the claim. Indeed it is settled law that damages of this nature are to be awarded in exceptional J45 circumstances. Black's Law Dictionary 8 th Edition, 2007 defines mental anguish as: A highly unpleasant mental reaction such as anguish, grief, fright, humiliation or fury that results from another person's conduct, emotional pain and suffering. 181. Thus, while the respondent did not act fairly when it unilaterally altered the complainant's salary composition and employment start date, the fact is that no evidence was led by the complainant to show that she was under severe distress or emotional pain and suffering. The respondent was desirous to retain the complainant's services but she opted to resign . The evidence has established that she quite easily moved on and is in gainful employment. 182 . In the result, I find no exceptional circumstances to merit the award of such damages. This claim therefore is also unsuccessful. Conclusion and orders 183. The complainant has, on a balance of probabilities, proved her case to the extent shown above. She has proved that the respondent deemed her redundant and is therefore entitled to redundancy benefits . She has also proved to the Court's satisfaction that the respondent omitted to pay NAPSA employer contributions in specific months of her employment tenure . The claims for housing allowance, constructive dismissal and damages have failed and are accordingly dismissed. J46 184. For the avoidance doubt, I make the following orders: (i) I declare that the respondent deemed the complainant redundant. (ii) The respondent shall pay redundancy benefits at the rate of two months' pay for every year served, that is, from 9 th July, 2007 to 31 s t May, 2020 . (iii) The respondent shall remit to the National Pension Scheme Authority employer contributions for the period November, 2016 to March , 2017 and the period January, 2019 to March, 2019. (iv) The sum due in (ii) shall carry interest at short-term bank deposit rate from the date of notice of complaint to the date of judgment and thereafter, at current bank lending rate as determined by the Bank of Zambia until full settlement. (v) Each party shall bear own costs. Parties are informed of their right to appeal. Dated at Lusaka this 29 th day of August, 2023 ............... ...... ~ ........... : .... Mwaaka Chigali Mikalile HIGH COURT JUDGE J47