Walter Anderson v ASF Zambia Hotel Holding Ltd (COMP NO. IRCLK/642/2020) [2024] ZMHC 234 (21 October 2024)

- IN THE HIGH COURT OF ZAMBIA COMP NO. IRCLK/642/2020 AT THE PRINCIPAL REGISTRY INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA BETWEEN: (cid:9) COURT t1 ( OCT WALTER ANDERSON (cid:9) ELATIOO COMPLAINANT AND ASF ZAMBIA HOTEL HOLDING LIMITED RESPONDENT (Trading as InterContinental Hotel Lusaka) Coram: Chigali Mikalile, Jthis 21s' day of October, 2024 For the Complainant: Mr. P. Chulu - Messrs Patrick Chulu Legal Practitioners For the Respondent: Mr. H. Mulenga - Messrs Philsong & Partners civzr Legjlation referred to: 1. The Public Interest Disclosure (Protection of Whistle Blowers) Act No. 4 of 2010 2. The Employment Code Act No. 3 of 2019 3. The Industrial and Labour Relations Act Chapter 269 Cases referred to: 1. Nitrogen Chemicals of Zambia Limited v. Boyd Chomba Mutambo & Others SCZ 75/2014 2. Chilanga Cement Plc. v. Kasote Singogo (2009) ZR 122 3. Joseph Gereta Chikuta v. Chipata Rural Council (1983) Z. R. 26 (S. C.) 4. Chansa Ng'onga v. Alfred H. Knight (Z) Limited, SCZ/8/ 167/2016 5. Attorney General v. Mpundu (1984) ZR 6 6. Lewis Mosho v . Matildah Phiri 2010/HP! 183 Texts referred to: 1. Mwenda, W. S. & Chungu, C. A Comprehensive Guide to Employment Law in Zambia, 2021, UNZA Press 2. Garner. Black's Law Dictionary (81h Edition): Thompson West, 2004, USA 3. Chungu, C. & Beele, E. Labour Law in Zambia: An Introduction (2nd Edition) (2020), Juta & company (Pty) Ltd Introduction 1 The complainant resigned from his employment some months into his two-year contract. The events leading to the resignation were that the respondent's directors were impelled to conduct an internal investigation on an issue that was reported to the immigration office. The complainant was asked to submit a report on the matter and he alleges that what followed were threats from the director of operations. This prompted him to resign. However, he was forced to continue working against his wishes and the threats continued. J2 2. The complainant also alleges that the terminal benefits he was paid were not properly calculated hence commencing action on 13th October, 2020 seeking the following reliefs: (i) Damages for constructive dismissal equivalent to total salaries payable for the remaining period of his contract of employment; (ii) Damages for unfair treatment and for being forced to work during the notice period against his wishes; (iii) Damages for mental anguish and inconvenience; (iv) Payment of statutory gratuity at 25% of the total salaries earned on pro rata basis; (v) Payment of contractual gratuity at 10% of the total salaries earned on pro rata basis; (vi) Payment of legal costs; (vii) Interest on the amounts found due; (viii) Costs (ix) Any other relief the Court deems fit. 3. The respondent's answer is that the complainant's report was received in the respondent's endeavor to establish the truth of the facts leading to the complaint at immigration and the complainant ought to have known that he would be required to substantiate the information he provided. (cid:9) Hence, the respondent's probing of the complainant cannot be deemed to be threats. The complainant, it was asserted, resigned of his own volition. J3 4. The respondent denied having forced the complainant to continue working but that it merely asked him to do a proper handover. It also denied issuing threats. 5. On the reliefs sought, it was asserted that the complainant is entitled to 25% gratuity and the respondent was willing to pay the difference from the amount already paid. The other claims namely damages, leave pay and performance bonus are denied. Affidavit in support of complaint 6 The complainant deposed that he was employed by the respondent as a Project Accountant on 18th November, 2019 for a contract period of 2 years. Exhibited to the affidavit as "WA1" is the contract of employment dated 12th November, 2019. 7. In or around June, 2020, the respondent's building contractors of foreign nationality were reported to the immigration office for verbal abuse against the respondent's local employees. The respondent's directors conducted an internal investigation into the incident to ascertain the truth. Employees were requested to submit reports on the matter. 8. According to the complainant, he took the brave initiative of reporting on other incidents which included mismanagement, misuse of funds and property, negligence, theft, racism and harassment of local Zambian employees by the respondent's managers of foreign nationality. The report (exhibited as "WA2") J4 was submitted to Mr. Jurgen Hautmann, the director of operations in confidence since the report was sensitive and implicating senior members of staff. 9. The complainant averred that he expected assurance of high level confidentiality of the contents of his report during the investigations as seen from the email ("WA3") sent emphasizing confidentiality of the report. Despite this, Mr. Hautmann shared the report with one of the managers, Mr. Ewan Cameron. 10. Further, on 130 July, 2020, the complainant was shocked when Mr. Hautmann threatened him with facing and justifying his report to the same people he implicated in the report. The email with the threats is exhibited as "WA4". As a result of the threats, he resigned for fear of being chastised by the people implicated in his report. Further, he opted to exercise his statutory and contractual right to pay the respondent in lieu of one month notice. 11. Mr. Ewan Cameron, however, declined the complainant's request and threatened to report him to professional bodies to which he subscribes if he chose to pay in lieu of notice. The emails to that effect are exhibited as "WAS" collectively. As a consequence thereof, he was forced to work under duress and against his wishes. J5 12. The complainant also averred that the respondent wrongly calculated both his statutory and contractual gratuity. For the statutory, only the period of May, 2020 to 17th August, 2020 was covered as opposed to the period 18th November, 2019 when he was employed to 17th August, 2020, his last day of work. As for the contractual gratuity, the respondent only covered the period 18th November, 2019 to 30th April, 2020 instead of up to 171h August, 2020. 13. According to the complainant, in addition to the statutory gratuity which is at 25% of the basic salary earned over a contractual period, he was entitled to contractual gratuity at 10% of the basic salary earned over a contractual period. 14. On leave pay, the complainant averred that the respondent made wrong computation ("WA6") by using his basic pay as opposed to his full pay. On performance bonus, he deposed that no matrix was provided for calculating the same. The respondent ignored his demands for information on the bonus. According to the complainant, performance bonus is an accrued right and he is entitled to a reasonable figure. 15. A letter of demand ("WA7") was written to the respondent in an effort to settle the matter ex curia but the letter was ignored. J6 Affidavit in support of answer 16. The respondent filed its affidavit on 1st July, 2022 deposed to by Given Tanyaradzwa Nyamvura, the Commercial and Business Support Director. 17. He deposed that contrary to the complainant's assertions, the Operations Director, Mr. Hautmann received the complainant's report with the clear understanding that the complainant was aware that the internal investigations were meant to establish the truth and not mere speculations; that the truth needed to be exposed for the respondent to know what actually transpired and not for the complainant to provide information he was not willing and/or afraid to substantiate. 18. It was impossible for Mr. Hautmann to utilize the information provided by the complainant without probing the truth in it. The complainant was merely asked to see if he could verify the information he provided. According to the deponent, the complainant could not be threatened by the mere request to provide more information and asking him if was available to attest to the truth of the information he had provided. Suggesting to the complainant to face the alleged wrong doers could not put fear in him. 19. It was also averred that contrary to the complainant's assertion, the respondent never threatened him but that he J7 resigned on his own as no steps were taken to even actualize the need for him to meet the people he implicated. 20. On the complainant's assertion that the respondent's manager declined his request to resign with immediate effect and threatened to report him to professional bodies, it was averred that the complainant was merely requested to do a proper handover. In any case, he was paid for the period he worked. 21. According to the deponent, there was nothing for the complainant to fear in the conversation he had with the manager regarding the handover. (cid:9) If fear arose, the same was unreasonable and self-inflicted more so that the complainant had a contract of employment and understood its terms. Furthermore, the complainant was not asked to train any person but to merely properly handover. 22. On gratuity, it was acknowledged that the complainant is entitled to the correct gratuity for the period he was in employment and that it is a matter of reconciling figures from what had already been paid to him. (cid:9) He is entitled to 25% statutory gratuity and not 35% as alleged. In addition to the 10% provided for in the contract, the respondent shall add 15% to enable the complainant receive the statutory gratuity of 25%. 23. On leave days, it was averred that the complainant was paid based on his full pay in accordance with the contract. J8 24. On the performance bonus, it was asserted that at the time the complainant was resigning, the said bonus had not yet been actualized as admitted by the complainant and that no bonus had accrued to him. Affidavit in reply 25. The complainant deposed that in addition to his submissions on the incident reported at immigration, he reported on mismanagement, misuse of funds, negligence and theft by the respondent's senior managers. His additional report on wrong doing by the senior managers was sensitive information, highly confidential and protected by law. 26. The respondent's director did not ask him to verify the report implicating the senior managers but threatened him by saying that the senior managers would have a right to face their accuser. According to the complainant, he gave the report in the strictest confidence and at the very least, expected the respondent to investigate the truthfulness of the report without disclosing his identity. 27. The people implicated were senior managers whom he was reporting to and he did not see how he could continue working with them after they knew that he was behind the report. Worse still, the director as per email "WA4" was taking their side instead of protecting the complainant's interest as a whistle blower. 28. The complainant also avers that resigning and paying in lieu of notice was his statutory and contractual right and it was therefore wrong for the respondent to block him from exercising that right for whatever reason. In any case, the handovers were ready at the time of resignation but the respondent wanted him to train a non-technical person on issues of construction cost management. As a result of the threat of being reported to professional bodies, he was forced to work under duress and he was not paid. 29. The complainant further averred that the contractual gratuity should be distinguished from the statutory gratuity. The contractual gratuity, even though titled as 'gratuity' in the contract, is a pension scheme under the Saturnia Pension Gratuity Scheme which stood at 10%. By law, he is entitled to 25% gratuity of his basic pay 30. On leave pay, he averred that contrary to the respondent's assertion, he was not paid. As for the performance bonus, this was an accrued right which he is entitled to. Hearing course 31. Counsel for the complainant applied for an order that court dispenses with the complainant's attendance and proceeds on documentary evidence as the complainant works in Dubai and was denied leave to travel. The application was granted pursuant to rules 62, 64 and 55 of the Industrial Relations Court Rules and the complainant's case was deemed closed. The respondent put one witness to the stand. 32. The respondent's witness was Given Tanyaradzwa Nyamvura, the Commercial and Business Support Director. He relied on his affidavit evidence and added that the complainant approached him and informed him that he had found green pastures in the UAE hence wanted to resign. Little did he know that there was an issue that the complainant had created from which he was running away. Apparently, the complainant had written a report citing wrong doing by management. Management wanted to verify the report as opposed to act on speculations. 33. On the reliefs sought, the witness told court that the complainant's last working day was 171h August, 2020 and he was paid a salary up to that date. He was paid for the 21.5 leave days he had accrued. The payment was based on an S. I from the labor office which provided for computation using basic pay and not gross pay. 34. On gratuity, it was his evidence that to his knowledge, it was made compulsory in May, 2020. Before then, the complainant was receiving 10% gratuity But, the respondent has since aligned with the law and is now paying 25%. According to the witness, on his final pay, the complainant was paid the 15% that was outstanding. 10% was paid to Saturnia on a monthly basis and it was up to the complainant to collect it therefrom. He 1 11 emphasized that the payment to Saturnia was not a pension payment. Even the contract states that its gratuity. The statutory payment is to NAPSA. 35. On the performance bonus, the witness testified that it was linked to the rebuilding of the hotel and the complainant left when construction was still under way. It was his evidence that no one had received a bonus because of Covid-19 which extended the project by over a year. 36. On the claim for damages for being forced to work, the witness told court that the complainant worked up to 17 August, 2020 and was paid for the time he worked. 37. When cross examined, the witness stated that he was not aware that the complainant was not given the option to testify to the issues he raised in his report or that he was forced to face the people implicated in the report. 38. The witness confirmed that the complainant was paid for his leave days using basic pay and not full pay. This contradicted the averment in his affidavit that calculation was based on full pay. Submissions 39. Both parties filed written submissions for which I am most grateful. I shall make reference as and when necessary. J 12 Analysis and decision 40. I have carefully considered all of the evidence and the written submissions from both parties. I find as a fact that the complainant was employed as a Project Accountant on 1811 November, 2019 on a two-year contract. Following a complaint of verbal abuse against the respondent's contractors at the immigration office, the respondent requested employees to submit reports on the issue. The complainant, in addition to reporting on the issue also reported on misuse of funds, theft and racism, among other things, by the respondent's managers. It is not in dispute that the director, to whom the complainant submitted his report, shared the report with one of the respondent's managers. 41. The complainant contends that the director threatened him with facing the people he implicated in his report and this brought about fear in him prompting him to resign. The respondent, however, denied him the right to leave immediately and used threats to compel him to continue working post his resignation. The complainant further claims that he was not paid his terminal dues including gratuity, leave pay and performance bonus. 42. The respondent, on its part, contends that the complainant left employment out of fear of facing the people he implicated and not because the respondent J 13 breached the contract of employment. (cid:9) Further, the complainant was only requested to make a proper hand over and he was paid for his time. 43. Arising from the foregoing, the issues for determination as I see them are as follows: (i) (cid:9) Whether the complainant's resignation was justified to warrant an award of damages for constructive dismissal; Whether the complainant was unfairly treated by being asked to work during his notice period; Whether the complainant was entitled to two gratuities (1) at 25% of his earnings and (2) at 10% of his earnings during the period of employment. Whether or not leave days were paid for and whether or not the correct rate was applied; Whether he is entitled to a performance bonus at 10% of the total earnings Whether the resignation was justified to warrant an award of damages for constructive dismissal 44. It was submitted on behalf of the complainant that the report submitted by the complainant implicating senior managers was supposed to be treated with strict J 14 confidence as requested by the complainant but the respondent's director shared it with one of the senior managers. (cid:9) Further, the director threatened the complainant with facing and justifying the report to the people implicated. The complainant feared being chastised at the place of work hence his resignation. 45. Reliance was placed on sections 22 and 38 of The Public Interest Disclosure (Protection of Whistle Blowers) Act No. 4 of 2010. Section 22(a) (1) (i) states that: A disclosure is a protected disclosure if it is made in good faith by an employee who reasonably believes that the information disclosed, and any allegation contained in it, are substantially true. Section 38(1) (a) states: Any disclosure made in good faith and substantially in accordance with any procedure prescribed, or authorized by the employee's employer for reporting or otherwise remedying the impropriety is a protected disclosure. 46. It was submitted by complainant's counsel that the complainant made the disclosure believing the allegation to be true and the report was made in response to the request from the respondent. As such, the disclosure is a protected disclosure. J 15 47. Also relied on were sections 10 and 2. Section 10 prohibits the employer from subjecting an employee to any occupational detriment on account of a protected disclosure made and section 2 defines occupational detriment as, among other things, being adversely affected in respect of employment, profession or office including employment opportunities and work security. 48. Further reliance was placed on section 49(2)(b) which provides that any occupational detriment in breach of section 10 is deemed to be unfair labour practice. 49. Stemming from the above, counsel submitted that the complainant was subjected to occupational detriment as he received threats of being made to face the people he implicated in the report and justify the allegations in their presence. Further, the director's demands were an unfair labor practice, as such, the complainant was justified to resign. 50. The respondent's counsel submitted that the complainant resigned out of fear and not because the respondent breached the contract of employment. The complainant took a brave initiative as such he ought not to have developed fear. Court was invited to notice that the meeting that the complainant was afraid of did not take place and that it was a future event which has never taken place even after the complainant's resignation. J 16 51. 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. 52. In the case of Nitrogen Chemicals of Zambia Limited v. Boyd Chomba Mutambo and Others(1) 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 aqreed to continue with the contract. (underlined for emphasis) 53. 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 the employer's J 17 unlawful conduct amounting to a fundamental breach of the contract of employment. 54. The question I pose at this stage is - do the circumstances of this case point to the fact that what occurred was in fact constructive dismissal at law? 55. It is common cause that the complainant resigned sometime in July, 2020. The evidence is not clear on the actual date of resignation but the emails on record suggest that 31st July, 2020 was the date he had indicated as his last day of work. 56. Can the resignation be said to have been in response to a fundamental breach of the contract? 57. The complainant disclosed information which was not solicited for by the employer. In his own words, he took a brave initiative of reporting on mismanagement, negligence, theft, racism and harassment of local Zambian employees by the managers of foreign nationality. In his reaction, the director told the complainant that in the event of an enquiry, the complainant would face the people he had accused. The exact wording is quoted below: In order for us to now clear up the accusations made we are left with no choice but to confront those mentioned and with the data in the event of an enquiry they will have the right to face their accuser. (sic) J 18 58. I have no qualms with the submission that the tone of the email was threatening. (cid:9) However, as submitted by the respondent, the complainant acted on an issue that was merely suggested, that is, that he would be required to stand before the people he had implicated in his report in the event of an enquiry. I agree with the respondent that the complainant cannot rely on a future event to justify his resignation. 59. Something ought to have happened following the director's threat, for example, the managers implicated in the report making the complainant's work environment toxic or making it impossible for him to perform his duties. There is, however, no evidence of such a happening or related happening. 60. According to the complainant, the director shared his report with a manager called Ewan Cameron, however, Mr Cameron is not mentioned in the report. 61. Thus, while the complainant may be said to have made a protected disclosure in accordance with Act No. 4 of 2010, I am not satisfied that the respondent's director subjected the complainant to occupational detriment. There is no evidence to suggest that the managers implicated had a say on the complainant's stay in his position. 62. All in all, I have failed to appreciate that there was unlawful behavior by the respondent amounting to breach of contract to J 19 warrant resignation by the complainant. The complainant resigned due to fear of an event that was yet to occur. As such, the claim for constructive dismissal must fail. Whether the complainant was unfairly treated bL/ being asked to work during his notice period 63. The evidence on record shows that the complainant was ordered to continue working after his resignation. According to the respondent, this was for purposes of a proper hand over. As stated earlier, the date of resignation is not clear but 31st July, 2020 was supposed to the complainant's last day of work. It is common cause that the complainant continued working up to 17th August, 2020. 64. The unchallenged evidence by the complainant is that he continued working because he was threatened of being reported to the professional bodies he subscribed to if he did not complete the hand over. 65. Counsel for the complainant cited section 52(1) of the Employment Code Act, 2019 which provides that: A contract of employment terminates in the manner stated in the contract of employment or in any other manner in which a contract of employment is deemed to terminate under this Act or any other law,... 66. Also relied on was the case of Chilanga Cement Plc v. Kasote Singogo(2) where the Supreme Court held that payment in J 20 lieu of notice is a proper and lawful way of terminating employment, since every contract of service is terminable by reasonable notice. 67. I have carefully considered the evidence and arguments on this issue. The complainant's contract of employment at clause 13 provides that the complainant was at liberty to leave the respondent's employ at any time but he had to give a minimum of one month's notice or pay the employer one month's salary in lieu of notice. 68. As already established, the complainant opted to resign with immediate effect and pay the respondent in lieu of notice, a request which was denied forcing him to work for over two weeks following his resignation. 69. As seen from the authorities cited above, the complainant was within his rights to resign as he did and the respondent had no contractual right to force him to continue working past his resignation date. I am fortified in my resolve by the case of Joseph Gereta Chikuta v. Chipata Rural Council(3) wherein the Supreme Court held that a resignation was the unilateral free choice of an employee in a contract of personal service to terminate the contract at any stage either contractually or even in breach of contract. The Court went on to make the following observation: J 21 • . we do not believe that there is any law which confers right in effect to force an employee to remain in the employer's service. In our opinion, the appellant had every right to resign and, leaving doing so, such resignation effectively terminated the contract of service. 70. In light of the foregoing, I agree with the submission that the respondent treated the complainant unfairly by forcing him to work after 31st July, 2020 more so that intimidation was used. There was a need for voluntary mutual agreement to extend the working period post resignation. The respondent acted in breach of contract and as such, the complainant is entitled to damages. 71. As regards the quantum of damages, a plethora of cases have decided that the award should be equivalent to the contractual period of notice. In the case of Chansa Ng'onga v. Alfred H. Knight (Z) Limited(4) the Supreme Court confirmed that the normal measure of damages is an employee's notice period or as it is provided for in the law and can only be departed from when the employee proves that he is deserving of more and the conduct of the employer was so serious that it warrants a higher award of damages. 72. In light of the foregoing, I ask myself if the facts warrant the grant of more than the normal damages, which in this case is one month salary. J 22 73. The respondent's unchallenged evidence was that at the commencement of the complainant's employment, the respondent retained a person to help him settle and in the same vein, the complainant was asked to do a proper handover to the new person. 74. I am of the considered view that asking the complainant to do a proper handover was reasonable. As a professional, the complainant ought to do a handover. It was the use of intimidating tactics by the employer that was unreasonable. 75. The record does not reveal any other factors for the court to consider. There was no loss of an employment opportunity elsewhere during the extended work period. (cid:9) Further, the complainant was not subjected to the payment of a month's salary in lieu of notice. He was in fact compensated for the extra days he put in. 76. In the circumstances, I am not swayed to award more than the normal measure of damages. 77. This brings me to the claim for damages for mental anguish and inconvenience. 78. The complainant did not necessarily lead evidence on this issue. The claim was more or less mentioned in passing. The respondent of course asserts that the complainant is not entitled to J 23 82. In the circumstances, I am not swayed to make an award for damages for mental anguish and inconvenience. Gratuity 83. The complainant is claiming statutory gratuity at 25% as well as contractual gratuity at 10% of the total salaries earned on pro rata basis. In his notice of complaint, he stated that the respondent wrongly calculated his contractual gratuity by counting the basic salary earned from 18th November, 2019 to 30th April, 2020 instead of the period 181h November, to 17th August, 2017. In addition, he is entitled to statutory gratuity at 25% of basic salary earned during the contractual period. The complainant argues that contractual gratuity and statutory gratuity are different and ought to be treated differently and that he was entitled to both. In his affidavit in reply, the complainant averred that he never received any gratuity payment. 84. On the other hand, the respondent argues that it initially provided gratuity at 10% and following the amendment in the law, it added 15% to comply with the law. It was also submitted that the complainant was paid the gratuity in full at 25% as provided by the law. 85. I have considered the opposing arguments. In determining the issue, I have considered both the contract and the law. 86. Clause 5 of the contract states: J 25 Gratuity The company will contribute 10% of your basic pay towards the Saturnia Pension Gratuity Scheme monthly, which is claimed at separation with the company. 87. Clause 2 of the contract provides that the commencement date of the contract was 20th November, 2019. This was of course after the coming into existence of the Employment Code Act of 2019 which made gratuity mandatory for certain categories of employees at 25% of basic pay. 88. The learned authors of Labour Law in Zambia, An Introduction state as follows at page 84: Under the previous regime, payment of a gratuity was either at the employer's discretion or a benefit for certain protected groups of employees under the statutory instruments made pursuant to the Minimum Wages and Conditions of Employment Act. The Employment Code Act makes payment of a gratuity mandatory for all employees on long term contracts,... 89. Section 73 of the Code Act provides as follows: (1) An employer shall, at the end of a long-term contract period, pay an employee gratuity at a rate of not less than twenty-five percent of the employee's basic pay earned during the contract period. (2) Where an employee's contract of employment is terminated in accordance with this Code, the employee shall be paid gratuity prorated in accordance with the period of employment. J 26 90. Clearly, therefore, an employee was only entitled to gratuity prior to the coming into force of the Employment Code Act if his conditions of service provided for such a payment or if he was a protected worker. Further, it is trite that employers were given a transition period of one year. This means that they were all obligated to become compliant by 9th May, 2020. 91. Thus, before 9th May, 2020, the complainant was entitled to gratuity as provided for by his contract, that is, at 10%. From 9th May, 2020, he was entitled to gratuity at 25% of basic pay earned during the contractual period. 92. I have considered the suggestion that the 10% basic pay under clause 5 of the contract was in fact a pension scheme provided for by the respondent and not gratuity hence is a separate entitlement from the statutory 25% gratuity. In support of this argument, complainant's counsel called in aid the text A Comprehensive Guide to Employment Law in Zambia where the authors, at page 545 state: Where an employer sets up a private pension scheme, that scheme is a separate legal entity that the employee contributes to and should claim from when he reaches retirement age" 93. Quite clearly, this does not advance the complainant's argument for the reasons that firstly, clause 5 did not require the complainant to contribute to the scheme and secondly, the clause did not state that the complainant could only claim the funds upon attaining the age of retirement. The clause clearly stated that the J 27 complainant could claim the funds upon separating from the respondent. 94. I am, therefore, satisfied that what was provided for by the contract was gratuity at 10% and not a pension fund. This was proper until 9th May, 2020 when the respondent was mandated to make an upward adjustment to 25%. Thus, from 20th November, 2019 to 9th May, 2020, the complainant's entitlement was at 10% of his basic pay earned in that period. From 9th May, 2020 to 17th August, 2020, he was entitled to gratuity at 25% of the total basic pay earned in that period. The suggestion that the complainant was entitled to 35% from date of commencement until his last day of work is neither supported by his contract nor the law. 95. I will now focus on whether the respondent did make any payment towards gratuity. 96. There is conflicting evidence on the issue. In the notice of complaint, the complainant stated that the respondent made wrong calculations on his gratuity. This to me suggests that he was actually paid something only that the wrong formula was used. The deponent of the respondent's affidavit at paragraph 16 states that: "the complainant is entitled to 25% statutory gratuity and not 35% as alleged and that in addition to the 10% provided for in the contract of employment, the respondent shall add 15% to enable the complainant to receive the statutory gratuity of 25%" J 28 97. From the foregoing, it appears that what the respondent paid was just 10% towards the scheme and there is a possibility that the amount was not paid to the complainant but to the scheme. In the circumstances, the matter shall be referred to the Registrar for assessment of the amount due, that is, total gratuity as prescribed in paragraph 94 less what has already been paid. 98. As such, the claim for gratuity succeeds to the extent shown above. Leave pay 99. The complainant's evidence is that the respondent wrongly calculated his leave benefits as basic pay was used instead of full pay as required by the law. The respondent's evidence was that payment was made based on full pay. 100. I have considered the email produced in evidence by the complainant from Given Nyamvura dated 24th August, 2020 showing that leave days were calculated as 9 months x 2.5 minus 1 day taken/26 days multiplied by basic salary. This email opens with the statement "Please find attached our final pay calculation." The email, in my view, was merely letting the complainant know that computations had been made. It does not in any way suggest that the payment was made. J 29 101. The respondent did not produce any document in support of the assertion that payment was made. It is settled at law that he who alleges must prove, thus, the burden shifted to the respondent to prove that it made the payment. In the absence of proof of payment, I find that there was no leave days payment made be it payment calculated on basic pay or full pay. 102. Section 37 of the Employment Code Act provides that leave benefits are to be paid as per the formula in the 5th schedule. This formula is full pay multiplied by days accrued and divided by 26 days. There is clearly a dispute as to what amounted to the complainant's full pay. Clause 4 of the contract of employment states that "Your commencing basic salary which will be subject to all statutory deductions and taxes is K 84,000.00". 103. The Employment Code Act under section 3 defines both basic pay and full pay. Basic pay is defined as "the standard rate of pay before additional payments such as allowances and bonuses for a period not exceeding one month." Full pay is defined as "basic pay, allowances and the cash equivalent of any allowances in kind applicable for a period not exceeding one month, but does not include payments in respect of any bonus." 104. The complainant's contract did not provide for any allowances. It is, therefore, safe to conclude that the basic pay of K 84,000.00 J 30 witness' unchallenged testimony was that the project delayed by a year because of the Covid- 19 pandemic and as such, no one received a performance bonus. A delayed project obviously raises costs. Most importantly, the complainant did not produce evidence to show that the project or at least a major portion of it was completed at a cost below the budget while he was in employment. 109. In the circumstances, I find no merit in the claim and accordingly dismiss it. Costs 110. Costs in this division are only slapped on a party in accordance with rule 44 of the Industrial Relations Court Rules, Cap 269. According to this provision, a party may bear costs or expenses if he is guilty of unreasonable delay, or of taking improper or vexatious or unnecessary steps in the proceedings or indeed if he is guilty of other unreasonable conduct. 111. I am not satisfied that the respondent herein is guilty of conduct outlined in rule 44 to warrant an order of costs against it. Conclusion and orders 112. The complainant has proved on a balance of probabilities that the respondent breached the contract of employment by J 32 forcing him to work post his resignation. He has also proved to my satisfaction that he is entitled to gratuity and leave benefits as per his contract and as per law provided. All other claims have failed for want of merit. 113. (cid:9) For the avoidance of doubt, I make the following orders: (i) The respondent shall pay the complainant one month's salary as damages for breach of contract. (ii) The respondent shall pay the complainant gratuity at 10% of basic pay (K 84,000.00) for the period 2001 November, 2019 to 8th May 2020 and at 25% of basic pay for the period 9th May, 2020 to 17th August, 2020 less the amount already paid. (iii) The respondent shall pay the complainant leave benefits for 18 days at full pay of K 84,000.00. (iv) The total sum due shall be computed by the learned Registrar and shall attract 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. (iii) Each party shall bear own costs. J 33 A OR Parties are informed of the right to appeal. Delivered at Lusaka this 21St day of October, 2024 - HIGH COURT JUDGE J 34