Amon Sinkala v Northern Consolidators Limited (2023/HPIR/470) [2024] ZMHC 245 (15 November 2024)

IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (CIVIL JURISDICTION) 2023/HPIR/470 BETWEEN: AMON SINK. ALA AND NORTHERN CONSOLIDATORS LIMITED RESPONDENT CORAM: Hon. E. MW ANSA Esq APPEARANCES: For the Complainant JUDGE In Person For the Respondent No Appearance Dates 23rd October, 2024 JUDGMENT Legislation referred to: 1. Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia 2. Employment Code Act No. 3 of 2019 Case referred to: 1. Masauso Zulu -V- Avondale Housing Project [1981] Z. R 172 1.0 INTRODUCTION 1.1 This action was brought by Amon Sinkala, the Complainant, against Northern Consolidators Limited, the Respondent. The Notice of Complaint and Affidavit was filed per section 85(4) rule 9 of the Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia on 9 th May 2023. No response was filed by the Respondent and they did not even appear for the hearing despite being served with process as evidenced by the Affidavit of Service. 1.2 The grounds upon which the Complaint is presented by the Com plain ant are: 1.2.1. That he was employed by the Respondent on 13th August 2012 as an office orderly. 1. 2. 2. That he is still workin g for the Resp on dent. 1.3 The Complainant seeks the following reliefs: i. Leave days ii. Salary arrears from June 2021 to date iii. Costs and any other benefits the court may deem fit 1.4. Inspite of the case having been lodged only in May, 2023, the record was missing at the time of hearing and writing this Judgment. Only a photocopy of the Notice of Complaint is sitting on this Tracing Jacket (TJ). Jl 1.5. I h ave thus relied only on this Notice of Complaint and Supporting Affidavit. I do not even know if the Answer was filed. To t hat extent, I am a lame duck. 2 .0. THE COMPLAINANT'S EVIDENCE 2.1 In his Affidavit, the Complainant averred that he was employed by the Respondent on 13th August 2012 as an office orderly on permanent basis. He stated that he was still working for the Respondent a lthough the latter stopped paying his salary from June 2021. 2 .2 The Complainant further told this court that when he asked the Respondent about his salaries h e did not get any response. He also mentioned that in and around the year 2019 the Respondent went into a partnership with Capital Fisheries. As a result of this partnership the employees were being transferred to Capital Fisheries but they stated that they worked with contracts. 2.3 Due to the foregoing, the Complainant and his co-workers asked for their dues and they were told to calculate what they were owed. The Complainant relied on the contents of the exhibit marked "AM l" in the Affidavit in Support of Notice of Complaint. This document shows that the Complainant's severance benefits from date of engagement J2 to 30th April 2020 amounted to Kl2,075.00. The Complainant's position is that he has still not been paid these dues. 2.4 Furthermore, the Complainant testified that he ought to be paid salary arrears for the period starting June 2021 to June 2023 when he stopped work, at the rate of Kl,200.00 per month. He also asked to be paid leave days from the year 2012 to 2023 as he claimed he never took leave this whole period. 2.5 The letter of offer of probationary employment marked "AM 2" in the Affidavit in Support of Complaint shows that the Complainant started work 1n January 2013. The Complainant stated that he was getting paid from 2013 to 2021 according to the 5 payslips that he availed to this court exhibited and marked "AM 3" in the Affidavit in Support of Complaint. The Complainant told this court that his salary was Kl,205.00 but there were overtime allowances sometimes. 3.0. DECISION OF THE COURT 3 .1 The facts on the record clearly demonstrate that the Complainant was an employee of the Respondent. He worked as an office orderly from 2013 as evidenced by his letter of offer of employment and his pay slips ranging from 2013 to 2021. J3 3.2 The core issues for consideration are whether; First, the Complainant was owed the money he calculated as his sever ance benefits amounting to Kl2,075 .00. Second, whether the Complainant was owed salaries from June 2021 to June 2023 . Third, whether the Complainant did not take any leave from 2012 to 2023. 3.3 Regarding the first issue, the eviden ce adduced by the Complainant seems to suggest that a collation of his basic pay and what is termed as 'service' for the period starting from his date of engagement to 30th April 2020 amounts to severance benefits. No formula regarding how this amount was arrived at has been provided as such it is difficult to appreciate th e veracity of this claim. 3.3.1 Section 54 (1) of the Employment Code Act provides that: An employer shall pay an employee a severance pay, where the employee's contract of employment is terminated or has expired, in the following manner: (c) where a contract of employment of a fixed duration has been terminated, severance pay shall be a gratuity at the rate of not less than twenty-five percent of the employee's basic pay earned during the contract period as at the effective date of termination; J4 3 .3 .2 According to section 54(3) of the Employment Code: The severance pay under this section shall not be paid to a casual employee, a temporary employee, an employee engaged on a long-term contract or an employee serving a period of probation. 3.4 The import of the above two cited p rov1s10ns 1s that an employee, other than one who is serving a period of probation, one who is on a long-term contract, or one who is a casual or temporary employee, is entitled to gratuity at the rate of at least 25 percent of their basis pay. The Complainant avers that he was employed on a permanent and pensionable basis. I find that there was clearly an employment relationship between him and the Respondent which started from January 20 13 and still subsisted as of May 2021 per the record. Also, the fact that he worked for more than 8 years suggests that he was employed on a permanent and pensionable basis. The Complainant 1s therefore entitled to a severance package in the form of gratuity at 25 percent of his basic pay from the date of enactment of the Employment Code Act 2019 until his last day of work, to be determined, as an employee of the Respondent. 3.5 In relation to the claim for salary arrears, I have considered the evidence given by the Complainant. The Complainant JS has not shown any evidence that he was still employed from June 2021 to June 2023 and he has also failed to show proof that he exited the Respondent Company in June 2023. As per the Su preme Court's instructive judgment of Masauso Zulu- -V- Avondale Housing Project, the burden to prove each and every allegation is squarely on the plaintiff. On a balance of probabilities, the Complainant failed to discharge this burden in the present case. 3.6 The Complainant has also advanced a claim for accrued leave days. The record of evidence however does not contain any evidence adduced to show the quantum of accrued leave days that the Complainant seeks to be paid. Since I have already held that he was in employment, I am justified in awarding leave days at 2 days per month from 13th August, 2013 to May, 2021. Especially in the absence of any evidence to the contrary. 4 .0 4.1 CONCLUSION In conclusion, I accordingly hold that the Complainant's claim for salary arrears from June 2021 to June, 2023 has failed and is hereby dismissed. I also dismiss the claim relating to K12,075.00 as severance pay. 4.2 However, I order the Respondent Company to pay the Complainant the statutory mandated severance package in the form of gratuity at 25 percent of his basic pay from the J6 date of enactment of the Employment Code Act up to the date he last worked for the Respondent. The exact quantum of this award shall be ascertained by the Learned Registrar. I make no order as to costs. 4.3. The total award will then be subject to interest at the Bank of Zambia Short Term Deposit Rate from 9 th may, 2023 to date of Judgment and thereafter at 6% to date of complete settlement. I make no Order as to costs. E. MWANSA HIGH COURT JUDGE J7