Victor Chimuka Siamuzyulu v Computicket Zambia Ltd & Another (COMP NO. IRCLK/608/2021) [2024] ZMHC 236 (1 October 2024)

t IN THE HIGH COURT OF ZAMBIA COMP NO. IRCLK/608/2021 AT THE PRINCIPAL REGISTRY INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA BETWEEN: VICTOR CHIMUKA SIAMUZYUL AND OURTo LPSAKA - -10;~ SEAL ELATION COMPLAINANT COMPUTICKET ZAMBIA LIMITED 1 ST RESPONDENT SHOPRITE (AFRICA SUPERMARKETS LIMITED) 2ND RESPONDENT Coram: Chigali Mikalile, J this 1st day of October, 2024 For the Complainant: Mr. S. M. Lungwebungu - Messrs SCPM Legal Practitioners & Mr. Y. Daka - Messrs Lusitu Chambers For the 2rtd Respondent: Mr. S. Mambwe - Messrs Mambwe Siwila & Lisimba Advocates JUX>Gl. VIENT Legislation refrred to: 1. The Employment Code Act No. 3 of 2019 2 . The Industrial and Labour Relations Act Chapter 269 Cases referred to: 1. Frida Kabao Phiri (Sued as Country Director of Voluntary Services Overseas Zambia) v. Davies Tembo, SCZ Apeela No. 04/2020 J 1 , I 2. Ka halu v. Finance Bank Zambia Limited Appeal No. 96 / 2012 3. Nitrogen Chemicals of Zambia Limited v. Boyd Chomba Mutambo & Others SCZ 75 / 2014 4. Chilanga Cement Plc. v. Kasote Singogo (2009) ZR 122 Texts referred to: 1. Mwenda, W. S. & Chungu, C. A Comprehensive Guide to Employment La w in Za mbia, 20 2 1, UNZA Press Introduction 1. The complainant alleges that either a redundancy situation took place or he was constructively dismissed. He premised his allegation on the fact that he was redeployed to work as Regional Human Resources Manager under the 2 nd respondent from the position of Sales Manager under the 1s t respondent. Apparently, the 1st respondent's operations and business diminished following the outbreak of the Covid-19 pandemic. According to the complainant, he has no qualifications for the position of Regional HR Manager. 2. It is against this background the he commenced action on 10th November, 2021. By an amended Complaint dated 25th April, 2022, he seeks the following reliefs: (i) A declaration that by the letter dated 2Jth August, 202 1 and by a further letter dated 4th October, 2 021 and further by the complainant's le tter dated 9th October, 202 1, a redundancy took place. J 2 .. J • (ii) An order for payment of a redundancy package/ pay calculated in accordance with the law (iii) In the alternative, a declaration that by the letter dated 27th August, 2021 and by a further letter dated 4 th October, 2021 and further by the complainant's letter dated 9th October, 2021, the complainant was constructively dismissed (iv) An order for damages for constructive dismissal (v) Damages or compensation for loss of employment on account of discrimination (vi) Payment of severance pay in accordance with the law (vii) Interest on all sums found due (viii) Any other relief the Court may deem fit (ix) Costs of and incidental to these proeceedings 3. In answer to the complaint, the respondent stated that the 1st respondent was voluntarily wound up in 2017 and remained a division/ d epartment of the 2 nd respondent. Even b efore being wound up, it was not the complainant's employer. 4. Following a reduction in the activities of the 2 nd respondent's computicket department, the complainant was required to transfer to another position within the 2 nd respondent's business. He refused to take up the position and absconded from work. He terminated his own employment by desertion. 5. The 2 nd respondent's position was that the complainant 1s not entitled to a redundancy package because the company that employed him is still in existence and had given him other duties which he refused to perform. He is not entitled to damages for J 3 .. constructive dismissal either because his conditions of service were not altered. Affidavit evidence 6. In the affidavit in support of complaint dated 10th November, 2021, the complainant deposed that he was employed by the respondent as Data Clerk in 1997 and rose through the ranks. In 2014 , he was appointed Sales Manager for Computicket Zambia Ltd. The offer of employment letter dated 3 0 th April, 2014 and the contract of employment are exhibited to the affidavit as "VCSl" and "VCS2" respectively. In line with his contract, his employment was to terminate upon attaining the age of 55. 7. On 27th August, 202 1, he was served with a letter ("VCS3") advising him of the respondent's decision to redeploy him to the position of Admin Manager Designate at Shoprite with new conditions of service. According to the complainant, the position and th e conditions of service that were being offered to him were lower than what he was currently entitled to . 8. Prior to giving him the letter, the respondent explained that there would be some changes due to the impact of th e Covid-19. He was also asked to hand in the personal to holder motor vehicle that he was using for work. He averred that neither was he consulted nor did he agree with management over the change in his conditions of service. According to the complainant, he felt that the change was actually a termination of his employment J 4 thus sought guidance from the Labour office. Exhibited as "VCS4" collectively are his letter and the Labour office's response. 9. He availed the letter to the respondent and asked them to pay him the appropriate dues before offering him another job but they went silent. Instead, they appointed him to the position of Regional Human Resource Manager as indicated in the letter marked "VCSS" knowing very well that the position requires a particular skills set and qualifications that he does not possess. 10. The r espondent has refused or neglected to do anything to clarify their position hence this action. 11. The r espondent's affidavit in support of Answer filed on 25th November, 2021, was deposed by Andrew Mutangambelwa Mwala, the 2 n d respondent's Human Resources Manager. 12. He averred that the complainant was employed by the 2 nd respondent as Sales Manager under a written contract. Clause 10.1 of the contract was categorical on the fact that the complainant was employed by the company as a whole and therefore may b e required to accept a transfer to another branch within the company. Clause 3 complemented clause 10.1 and provided that the complainant could also be required to transfer to another position on a permanent basis. J 5 13. Pursuant to those contractual prov1s1ons, and when the need arose , the complainant was redeployed as Regional Human Resources Manager by letter dated 27th August, 2021 . Prior to this, the complainant had been redeployed as Admin Manager Designate but this was withdrawn and replaced by the letter of 27th August. However, the complainant refused to take up the redeployment and stop ped reporting for work . He even returned his October, 2021 salary. The complainant continued absenting himself despite the chances given to him to return to work, resulting into desertion of work. 14. Mr. Mwala further dep osed th at t h e 1st respondent is not in existence, having been voluntarily wound up in 2017. Its assets were bought by the 2 n d respondent as majority shareholder. Hearing 15. The complainant testified on his own behalf and called one other witness. The respondent called one witness. Complainant's case 16. The complainant testified in line with his affidavit evidence. He added t hat when he received the letter of 27 th August and realized that h is salary and bonus would be reduced and that h is company vehicle was going to be taken away, he approached the HR Manager for him to interpret the letter which appeared to be demotion . The complainant was informed that his options were either to take up the position or resign as that was what they J 6 could offer at that moment. He sought an interpretation from the Labour office and the Labour Commissioner wrote to him explaining that wh at had happened was either a constructive dismissal or a redundancy situation. The commissioner invited the respondent for an amicable resolution of the matter but the respondent declined the invitation. 17. According to the complainant, he began reporting at head office as he could not function in his old office. He wrote various emails seeking feedback but there was no response. He produced the emails and they were admitted in evidence marked Pl. Subsequently, he was given a new position of Regional Human Resources Manager which he could not take up because he was not qualified. His fear was that he would end up being dismissed for non-performance. His qualifications are in IT and accounts. 18. He explained that back in 1997 when Shoprite was computerizing its business, it needed an IT personnel and he was asked to enter data in computers. He said this did not mean that he worked in H. R. 19. He asked for other options but was told there was none. The letter of appointment did not specify where his office would be. He then started feeling insecure as he slowly realized that h e may not be in employment. He sought assurance from the General Manager but received none. J 7 20. On 9 th October, 2021, he asked the respondent if he had been declared redundant in light of the fact that there was nothing else to offer him. Subsequently, he handed over company property to H. R and left. At the month end of October, 2021, the respondent sent him a salary which he was uncomfortable to receive as he had not worked the full month. He returned the money and asked the respondent to calculate the actual days. 21. The respondent then wrote a letter of desertion and dismissed him in November alleging that he had terminated his services by desertion. 22. In concluding, the complainant told court that he was unfairly treated. He ought to have been declared redundant and paid his dues as was the case with his colleagues in South Africa, Botswana, Namibia and Mozambique. He also told court that Computicket is still operational and his then assistant is now the manager. 23. In cross examination, the complainant stated that he has been in the employ of Zambian Potato Company since 1st November, 2021. He interviewed for the job on or about 30th October, 2021. He denied the assertion that he left the respondent's employment because he was offered his current job. J 8 -I 24 . The complainant admitted that he moved to Lusaka HR in 1997 as a pay roll clerk and was promoted to payroll supervisor. He worked until 2000 then moved to accounts department. 25. On his journey with Computicket, the complainant stated that 1n the new contract, Computicket was his employer. Computicket was under Africa Supermarket. He admitted that his offer letter was not from Computicket and that his contract of employment was with Africa Supermarkets Ltd. It does not mention Computicket. The contract also says that he would be reporting to the General Manager for Africa Supermarkets; that he could be moved to another position on permanent basis. 26 . When referred to clauses 10.1 and 10.2 of the contract, the complainant stated that the company being referred to was Computicket and this is despite the fact that it is not mentioned anywhere in the contract. He also stated that he only learnt that computicket was wound up in 2017 and became a division of Africa Supermarkets when he read the respondent's Answer. When referred to pages 18 to 22 of the respondent's bundle of documents, the complainant accepted that Africa Supermarkets absorbed the assets for Computick et. 27 . On the position of regional HR Manager , the complainant stated that h e refused the offer because h e was not qualified and is not a member of the institution to which HR practition ers belong. He also stated that the letter of offer for regional HR J 9 manager offered training for his n ew position but there were no details. According to the complainant, the offer was reactive and without any discussion. Thus, he did not see any good will. 28. He a dmitted that the company used clause 3 of the contract to redeploy him and according to the offer letter, his remuneration would remain the same. 29. In re-examination, the complainant told court that he n ever a pplied for his current job but that h e m et a colleague who sympathized with him and asked him if he was interested in joining Zambian Potatoes. 30. CW2 was Lambe Mulenga whose t estimony was that he moved to Computicket from Shoprite in 201 7 in the position of Country Supervisor under the complainant. He, however, moved back to Shoprite in 2018 due to disciplinary issues. During a discussion with the complainant after Covid struck, the complainant informed him that Computicket was going to close and that he had been offered a regional HR position. Computicket was a n events company and all events were cancelled during Covid. The complainant however d eclined the position and was ultimately dismissed. 31. To his knowledge, Computick et 1s a company under Shoprite and is still running in Zambia. The same cannot b e said J 10 about other countries like South Africa, Botswana, Namibia and Mozambique. 32. The witness was not cross examined. Respondent's case 33. The 2 nd respondent's sole witness was Andrew Mwala, the Human Resources Manager. It was his testimony that the 1s t respondent does not exist. Following the down turn of business on account of Covid, the complainant was offered another role within the Shoprite group in line with clause 3 of his contract of employment . His redeployment was not in any way going to affect his conditions of service and this was made clear to him. 34. The complainant wrote back indicating that he was not willing to take up the new role. The respondent reminded him of his contractual obligations and further warned him that failure to report to his work station would attract disciplinary action. The complainant opted to defy management's instructions and stayed away for more than 10 days which, according to the company's disciplinary code, amounted to desertion. His contract was terminated for desertion. 35. According to the witness, the respondent does not appreciate why the complainant is of the view that a redundancy situation occurred. The position he held has since been filled up by another person J 11 j the contract that allowed Africa Supermarkets to transfer an employee from one subsidiary to another. Clause 10.1 speaks to a branch within the same company. 40. Still in cross, the witness stated that when looking for an HR person, they look for qualifications and experience in HR and membership to the institute. He acknowledged that the complainant does not have a qualification in HR management and is not a member of the Human Resource Institute and that the respondent gave him the position despite these shortcomings. 41. The witness further acknowledged that the complainant wrote a letter of resignation ("VCSS") and a response was written in which the complainant's concerns were addressed. 42. In re-examination, Mr. Mwala corrected that Computicket did not wind up as a result of Covid. The notice to wind up was as per board resolution in 2017. He also emphasized that the complainant was not an employee of Computicket but Africa Supermarkets engaged to perform specific tasks relating to Computicket activities. Submissions 43. Both parties filed written submissions for which I am most grateful. J 13 ../ Analy sis and decision 44. I have carefully considered all of the evidence and the written submissions from each party. I find as a fact that the complainant was employed as a Sales Manager on 1s t May, 2014 on permanent and pensionable terms. On 27 th August, 2021, the complainant was redeployed to the position of Admin Manager Designate but t h is was withdrawn and replaced by redeployment to the position of Regional HR Manager on 4 th October, 2021 . He, howeve r, refused to take up t h e position and ultimately the employment relationship ended. 45. On the one hand, the compla inant submits that his employer in 2014 was the 1st respondent company, a subsidiary of the 2 nd r e spondent. The complainant as an empl oyee was not informed or put on notice of the voluntary wind up of the 1 st respondent 1n 201 7. According to the complainant, the wind up did not culminate in the complainant having a new contract with the 2 nd respondent. 46. On the other hand, the 2 n d respondent submits that the complainant was employed by the 2 nd respondent and was later given duties to manage the business of Computicket which business later closed. When he was ultimately redeployed as Regional HR Manager by the letter J 14 . J I / ' ' of 4 th October, 2021, he was informed that his remuneration package would r emain the same. 4 7. I have considered the opposing views as regards which company employed the complainant 1n 2014. In determining the issue, I have examined the offer of employment letter dated 30 th April, 2014 and the contract of employment with the commencement date of 1s t May , 2014. 48. The offer letter , while stating that the complainant was being employed as Sales Manager for Computicket Zambia Ltd, is on a le tter head for Africa Supermarkets Ltd. The contract of employment indicates that it is between Africa Supermarke ts Limited and Victor Chimuka Siamuzyulu. The combined effect of the two documents, in my understanding, is that the complainant was employed to be manager for Computicket in 2 014 but was not e mployed by Computicket. I , therefor e, find that he was employed by the 2 n d respondent and remained its e mployee until he left employment. Thus, that he was not informed of the winding up of the 1s t respondent is inconsequential. 49. In any case, had he been employed by the 1st respondent, he would have been out of employment as soon as the 1 st respondent was wound up. I, therefore, have no qualms accepting the respondent's evidence that what used J 15 . J to be the 1 st respondent company remained a division or department of the 2 nd respondent. 50. Having established who the employer was, I will proceed to determine the main issue in contention , that is, whether or not the employment contract ended by way of redundancy or constructive dismissal. Whether or not a redundancy situation occurred 51. It was submitted on behalf of the complainant that the 2 nd respondent decided to move the complainant to another position due to reduced or diminished activities of Cumputicket as a result of the impact of Covid - 19 pandemic. In doing so , the 2 nd respondent did not s e ek the consent of the complainant and simply wanted to alter the terms by force. It was argued that the complainant was set up to fail as h e was given a position that he was not qualified or trained for. 52. It was further submitted that the letters dated 27 th August , 2021 and 4 Lh October, 2021 terminated the contract of employment by way of redundancy. 53. On the other hand, counsel for the 2 nd respondent submitted that the r e deployment was done in line with clause 3 of the contract of employment which provided that duties could change and the complainant could be J 16 transferred to another position . Counsel also submitted that the 2 nd respondent offered to continue employing the complainant but the complainant refused and subsequently left employment. 54. It was further argued that the 2 nd respondent has not ceased to carry on business by which the complainant was engaged. As such, there was no redundancy as provided for under the Employment Code Act, 2019. 55. I have considered the foregoing arguments. Indeed redundancy is provided for under section 55(1) of the Code Act which state s as follows: 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 - (a.) the employer ceasing or intending to cease to carry on the business by virtue of which the employees were engaged; (b) the business ceasing or diminishing or expected ceasing or diminishing the requirement for the employees to carry out work of a particular kind in the place where the employees were engaged; or (c) an adverse alteration of the employee's conditions of service which the employee has not consented to. 56. As for the situation under paragraph (a), it is a fact that the 2 nd respondent did not cease to carry on the business by virtue of J 17 J which employees were engaged. The 2 nd respondent did not close down its operations and business. 57. Paragraph (b) of section 55(1) provides that the diminished role of employees to carry out work is a valid ground for redundancy. Thus, where there is reduction in the requirement for employee to perform work of a particular kind or where there is less work for existing employees, a redundancy situation occurs. 58. As established, the complainant was employed as a Sales Manager in the 2 nd respondent's Computicket department and as the evidence has shown, the activities of this department reduced due to the Covid-19 pandemic. On the face of it, a redundancy situation occurred. However, before a conclusion can be made if indeed there was a redundancy, it is important to consider the fact that the complainant was given another role in line with his contract of employment which contract provided that he could be transferred to another department. The new role he was offered was that of HR manager. 59. It is not in dispute that the complainant had no known HR qualifications and was not affiliated to the Human Resources Institute as is a requirement for human resource practitioners. It is also not in dispute that the complainant refused to take up this role because he did not deem hi1nself competent for the role. J 18 60. In light of the foregoing, I ask myself if it can still be said that there was no redundancy. 61. To help me determine this issue, I have had recourse to the case of Frida Kabaso Phiri v. Davies Tembo(1l where the employee's position was phased out and r emoved following a restructuring process but a n ew position was created. The Supreme Court opined that by accepting the n ew position, the employee was not entitled to claim redundancy, given that he was still needed by the employer and a position was made available to him. His n eed in the employer 's organization was n either terminated nor diminished . In essen ce, the fact t hat the employee did not dernonstrate that the alternative employment was not suitable led to the conclusion that he could n ot claim redundancy. 62. In light of the above reasoning, I agree with the complainant's submission that where t h e employee proves that th e alternative position offered him is not suitable and he declines to tal<:e it up , a r edundancy situation occurs. It boils down to the fact that the e1nployee's position is surplus to requirements. 63. I, therefore, find that a redundancy situation did occur h erein and the complainant is entitled to a r edundancy p ackage . A perusal of th e con tract of employment reveals t h at t h ere is no clause on redundancy and as su ch recourse is to the Employment Code Act. Section 55(3) provides for a payment of J 19 not less than two rnonths ' pay for every year served and other benefits the employee is entitled to as compensation for loss of employment. 64. I now turn to the effective date of redundancy . The complainant holds the view that the letters dated 27th August, 2021 and 4 th October, 2021 terminated the contract of employment by way of redundancy. However, the evidence has shown that th e letter of 2 7 th August, 2 021 was actually withdrawn as the 2 nd r espondent recognised its error of varying the conditions of service to the complainant's detriment without his consen t . This is the reason why paragraph (c) of section 55(1) is , in my view, inapplica ble to this situation. Had that letter not been withdrawn, 27 th August, 2021 would have been th e effective date . 65 . l ·opine that 9 th October, 202 1 is th e date a redundancy occurred as this is the date the complainant out rightly d eclined to take up the position of Regional HR Manager (offered in the letter of 4 th October, 20 2 1) for which h e was not qualified. Whether or not the complainant was constructively dismissed 66. The complainant is seeking this claim in the alternative. contended on his behalf that the letter dated 9 th October 202 ' a 1nounted to constructive d ismissal since the complainant did n accept the respondent's repudiatory conduct. J 20 • 67. The 2 nd 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 opted to stop reporting for work and eventually left employment. 68. I have carefully considered the opposing views. The learned authors of 'A Comprehensive Guide to Employment Law in Zambia' have this to say about constructive dismissal at page 269: Constructive dismissal occurs when an employee, seemingly on his own volition terminates his contract of employment by resigning, while the real reason for that action is that he is protesting against management's 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. 69. In the case of Kahula v. Finance Bank Zambia Limited(2l the Supreme Court quoted Lord Denning in the case of Western Excavating Ltd v. Sharp(l 978) I. R. L. R where he stated that: If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. He is constructively dismissed. The employee is entitled in these circumstances to leave at the instant without giving any notice at all or alternatively, he may give notice and say that he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. J 21 • 70. Further in the case of Nitrogen Chemicals of Zambia Limited v . Boyd Chantha Mutambo and Others(3l cited by the complainant, the Supreme Court outlined the elements of constructive dismissal when it stated as follows: It is also plain there are three basic requirements for a constructive dismissal claim (1) 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. (underlined for emphas is) 71. What can be gleaned from these authorities is that an employee can properly claim to have been constructively dismissed if he is forced to resign as a result of employer's unlawful conduct amounting to a fundamental breach of the contract of employment. 72. I will now consider the circumstances of this case to determ.ine if what occurred was in fact constructive dismissal at law. 73. It is common cause that the complainant resigned on 9 th October, 2021. 74. In relation to the 2 nd element, the respondent argued, and rightly so, that the contract of employment between the parties allowed the e1nployer to deploy the employee to any position in the company. J 22 75. I, therefore, agree that by transferring the complainant to the HR department, the respondent acted within the terms of the contract. Contrary to the complainant's argument, he was not transferred to another subsidiary but a department within his employer's organization. In the case of Michael Kahula v . Finance Bank Zambia Ltd (supra) , the Supreme Court found that there was no constructive dismissal as the respondent had contractual powers to transfer the appellant to any department even in the absence of a transfer request from him. 76. However, I have considered what was stated by the Supreme Court in the case of Chilanga Cement Plc. v . Kasote Sin gogo(4l cited by the respondent. The Court at page 137 h eld: "The notion of constructive dismissal is anchored on the concept that an employer must treat his employee fairly and should not act in a manner that will compel the employee to flee his job". 77. Premised on this authority, it can be resolved that an employer acted unlawfully if it is found that the employer unfairly treated the employee. 78. As found, the complainant was offered a job for which he was not qualified and I tend to agree with his argument that he was being set up for failure . One wonders how he was expected to practice more so that he was not a m ember of the Human Resource Institute. J 23