Baby Nzali v Pick n Pay Zambia Limited (2023/HN/IR/47) [2025] ZMHC 43 (14 May 2025)

IN THE HIGH COURT FOR ZAMBIA AT THE DISTRICT REGISTRY HOLDEN AT NDOLA (Industrial Relations Divi · 2023/HN/IR/47 BETWEEN: BABY NZALI AND COMPLAINANT PICK N PAY ZAMBIA LIMITED RESPONDENT Before the Honourable Mr. Justice Davies C. Mumba in Chambers on the 14th day of May, 202 5. For the Complainant: For the Respondent: Mrs. Linda K. Zimba, Messrs AD Gray & Partners. Ms. D. Nalishuwa with Mr. E. Mutale both of Messrs Musa Dudhia & Co. JUDGMENT Cases referred to: 1. Elizabeth Sokoni Mwenya v CFB Medical Centre Limited, SCZ Appeal No. 009 of 2015. 2. Fridah Kabaso Phiri (sued as Country Director of Voluntary Services Overseas Zambia) v Davies Tembo, SCZ Appeal No. 4 of 2012. 3. Redrilza Limited v Abuid Nkazi and Others, SCZ Judgment No. 7 of 2011. 4. Eston Banda and another v The Attorney-General, Appeal No. 42 of 2016. 5. Josephat Lupemba v First Quantum Mining Operations Limited, Appeal No. 20 of 2017. 6. Chilanga Cement Plc v Kasote Singogo (2009) Z. R. 122 (S. C). 7. Barclays Bank of Zambia Pk v Weston Lyuni and Suzyo Ngulube, SCZ Appeal No. 07 /2012. Legislation referred to: J2 1. The Employment Code Act No.3 of 2019. 2. The Industrial Relations Court Rules, Chapter 269 of the Laws of Zambia. Other works referred to: 1. Winnie Sithole Mwenda and Chanda Chungu: A Comprehensive Guide to Employment Law in Zambia: UNZA Press. Lusaka, 2021. 1.0. INTRODUCTION 1.1. By notice of complaint supported by an affidavit filed into court on 30t h June, 2023, the complainant commenced this action against the respondent seeking damages for unfair dismissal; damages for redundancy; damages for mental stress; payment of monies being the contributions towards the Staff pension scheme from the date of his employment on l5t September, 2011 to the last day that he reported for work on 19 th day of November, 2021; interest on all monies due to him; any other relief that the court may deem fit; and costs. 1.2. The respondent opposed the complainant's claims and in doing so, filed into court an answer and an affidavit in support thereof sworn to by Natalie Kinghorn, the Head of Human Resources in the respondent company on 13tti November, 2023. The respondent filed a further affidavit in support of the answer on 10th June, 2024. 1.3 . It was contended that the complainant was given reasons J3 for the termination of his employment. That the complainant's employment was not terminated by reason of redundancy but due to operational requirements owing to the fact that there were Zambian employees who had acquired the necessary skills to take over the position the complainant, who was an expatriate, held. Further, that the complainant's employment was premised on holding an employment permit but owing to several occurrences of alleged breaches of his employment permit; and formal and informal warnings to the complainant from the department of Immigration, it became clear to the respondent that the department of Immigration was unlikely to renew the complainant's employment permit which was set to expire on 5th May, 2022. 2.0. THE COMPLAINANT'S CASE 2.1. At the trial, the complainant entirely placed reliance on his affidavit in support of the notice of complaint filed into court on 30th June, 2023 and his affidavit in reply filed intq court on 13 th June, 2024. 2.2 . In his affidavit in support of the notice of complaint, the complainant stated that he was employed by the respondent as Store Manager-Makeni on 1st September, J4 2011 as shown by his contract of employment, "BNl,, . That going by clause 2 of the said contract, he automatically became a permanent and pensionable employee of the respondent on l51 January, 2012, having successfully completed his probation. That sometime in August, 2012 he was promoted to the position of Regional Manager (Copperbelt Stores) and Store Manager, Kitwe as shown by the letter, ''BN2". That by the letter, "BN3 " dated 24th July, 2021 the respondent offered him the position of Training Manager which he accepted on 26 th July, 2021. In addition to being a Training Manager, he was also to double as a Regional Manager of the respondent wherein he was to nurture and up skill the respondent's existing Managers. That the said letter, "BN3" also directed him to report to the respondent's new General Manager, Dave Ramsden. 2.3 . The complainant testified that on 19th November, 2021, the respondent's General Manager, Dave Ramsden informed him of the respondent's intention to terminate his employment contract. That the said intention to terminate his employment came to him as shock as he had given the respondent his long and diligent service without any problems. That later that same day whilst in shock, the respondent served him with the letter, BN4", terminating his employment based on two reasons. Firstly, that the country had suffered adverse headwinds and JS several extraordinary circumstances which had impacted the respondent's performance negatively over the past three years; and secondly, that the respondent was of the view that it was extremely likely that the complainant's work permit which was expiring in May, 2022 was likely to be denied. That the termination letter shocked him more as the reasons advanced in the said letter were ambiguous to warrant his termination. That the said letter, "BN4" provided that 30 days ' notice period would apply after exhausting his leave days being on 31st January, 2022. That the same day, the respondent put him on forced leave to avoid settling his accrued leave days as per clause 8 of the contract of employment. 2.4. He stated that the respondent's reasons for terminating his employment were baseless as the General Manager, a South African National, employed five other South African expatriates soon after his appointment was terminated. These were Jannie Potgieter, Gareth O'Connell, Jimmy Reddy, Ricardo Franco and Nicolas Catling who were employed in various positions of the respondent company although he believed t hat Nicolas Catling and Gareth O'Connell had since left employment with the respondent. That as such, the reasons stated for the termination of his employment were unfounded. Further, that the alleged reason that his work permit which was expiring in May, J6 2022 was likely to be denied was merely speculative. He argued that the respondent terminated his employment services purely as a way of getting rid of him. 2. 5. That he believed that the termination of his employment, though not mentioned in the termination letter, was clothed in the respondent declaring him redundant. That contrary to what was stated in his letter of appointment as Training Manager, 'BN3' dated 24th July, 2021, he did not nurture and/or up skill any of the respondent's then existing Managers. 2.6. The complainant averred that on 3rd December, 2021, his Advocates wrote the letter of demand, 'BNS' to the respondent in which they brought to the attention of the respondent his disagreement with the reasons for terminating his employment as the same offended the labour laws; and that he had not accepted the severance package that was offered to him. That the respondent through the letter dated 17th December, 2021 replied to his Advocates ' letter. That on 24th December, 2021, his advocates wrote to the respondent the letter, 'BN6' disputing the contents of the said letter dated 17th December, 2021 and made an appeal to have the matter resolved amicably. J7 2.7. That by the letter, 'BN7' dated on 9th February, 2022, the respondent, through its Advocates responded to the letter justifying its termination of the complainant's employment contract. 2.8. Further, the complainant stated that the respondent did not settle his terminal benefits which included, among others, the respondent' s contribution towards the Staff Pension Scheme plus interest as he worked for the Respondent for over five years as provided in the respondent's HR Policy, 'BN8.' 2.9 . The complainant concluded his evidence by asking the court to grant him all the reliefs he was seeking in this action. 2.10. In his affidavit in reply to the respondent'·s affidavits in support of its answer, the complainant contended that the respondent may have perceived him as being suitable to train and transfer skills to Zambian employees based on his training and experience but that was never communicated to him and it was not a term of his employment. That as far as he was concerned, he was employed as Stores Manager as shown by the letter, "BNl" and the email at page 1 of the complainant's bundle of J8 documents. That the issue of training and upskilling Zambian employees was only made known to him when he was promoted to the position Training Manager in July, 2021. 2 .11. The complainant averred that his employment did not have any condition precedent attached to it save for the fact that he was aware that if he did not have an employment permit, which permit was obtained and issued to the employer, he would not have been able to work in Zambia. That at the time he was given the notice of termination, his employment permit was still valid. 2.12. The complainant averred that when the employment permit was issued reflecting his occupation as Training Manager, he approached the then General Manager whom he used to report to about the error and he was assured that the same would be rectified. That after two years, it came to his attention that the position had not been rectified, he went to see the then General Manager again who explained to him that the reason it was not changed was because of the planned training centre for which he was earmarked to be responsible for in the Democratic Republic of Congo which was to be based in Zambia. That, the then General Manager advised him not to worry about the same as it was his contract of employment which regulated the relationship between the parties. 2.13. That, however, that statement was an assumption and not J9 a fact as the contract of employment which regulated the relationship between the parties did not oblige him to train and upskill Zambian employees. That the position of Training Manager was given to him on 24th July, 2021 and that was the only time training became a term of his contract. That despite his appointment as Training Manager, the complainant neither reported on the said position nor discharged his duties as Training Manager as the respondent kept postponing the facilitation of his movement from the Copperbelt to Lusaka. That both the appointment letter and termination notice were given to him whilst s.erving on the Copperbelt. 2.14. He averred that the respondent did not produce any evidence to show that his employment permit was denied or not renewed. He stated that the respondent was the one responsible for applying for and obtaining his employment permit, therefore, the alleged breach of his duties was on account of the respondent. That, as his employer, the respondent used to position him and to assign work to him. That he was not in a position to assign work to himself and to suggest that he did was preposterous. 2.15. He also stated that that the respondent was summoned by the department of Immigration relating to the concern that JlO he was a foreign national performing duties that could be performed by a Zambian citizen and, therefore, in breach of his employment permit. That the respondent admitted that it dealt with the breach by assigning proper duties and understudies he had never trained during his employment with the respondent. That the meeting in respect of the letter, 'PMK2' was done in the presence of both the complainant and the respondent; and the Immigration department warned the respondent about allocating him managerial duties. Further, after the meeting, the respondent assured him that same would be rectified hence its admission that his position was subsequently adjusted to Training Manager to align it with the permit. 2.16. The complainant deposed that it was a notorious fact that employment permits were v alid for two years and the respondent attended to the renewal of the same for the complainant during the whole time that he worked for the respondent. That the assumption that the Immigration department was unlikely to renew his employment permit was not factual as there was no evidence showing that the respondent had actually applied for his employment permit which was denied thereby warranting the notice of termination. He stated that the most he did in his role was to supervise Store Managers and not to train them. That the respondent did not produce a list of employees JU endorsed by himself by way of signature to confirm that he had actually trained them as a requirement for training officer by the respondent. 2 .17. The complainant further deposed that the contract of employment showed that the pension scheme was compulsory for all employees without exceptions. He stated that it was shocking that the respondent could at that late hour of the proceedings purport to produce the letter, "PMK4" to the contrary. That the responsibility of remitting to the pension scheme was the respondent's and, therefore , it could not change its position as if it did, it was in breach of his terms of employment. That the then General Manager, one Andy Roberts confirmed his eligibility to the pension scheme as shown by the document at page 1 of the complainant's bundle of documents. 2.18. During cross-examination, the complainant admitted that he was an expatriate employee. That an expatriate employee did not need specialised qualifications to work in another country. When referred to paragraph 2 of the letter, 'PMKl' of the respondent's further affidavit, the complainant denied having worked for the respondent's head office in South Africa. He confirmed that from the reading of the said paragraph, the respondent required a specialised employee. He stated that he had vast J12 experience in the management of retail stores. That whilst he worked as a Store Manager and Regional Manager, he had Zambian employees working under him. He stated that on 24th July, 2021, he was offered the position of Training Manager and he accepted the position on 26th July, 2021. When referred to paragraph 7 of his affidavit in support of the notice of complaint, the complainant admitted that he was also Regional Manager engaged to train existing Managers. When referred to paragraph 9 of his affidavit in reply, the complainant stated that his appointment as Training Manager was in error but he had no issue with the said appointment. When referred to paragraph 11 of his affidavit in reply, the complainant stated that his contract did not speak to training and up skilling Zambian employees. When referred to clause 1 of his contract of employment exhibited at page 3 of his bundle of documents, the complainant stated that he had agreed to carry out duties similar or related to his principal position of appointment. He confirmed that he was in a managerial position. That up skilling or training other Managers who were below him was related to the position he held. That the Managers that worked with him learnt from him whilst under his supervision. When referred to paragraphs 16 and 17 of his affidavit in reply, the complainant confirmed that he had been summoned by the Immigration department on several occasions but J13 he was never detained. He stated that the termination of his contract on the basis that his employment permit would unlikely be renewed was shocking to him. He admitted that employment permits were valid for two years. That the respondent attended to the renewal of his employment permits during the whole period of his employment with the respondent. He stated that he was aware that before 2019, there were no rules which stipulated how long an expatriate could be employed in Zambia. That after 2019, an expatriate employee was allowed to be employed for only two years. That he was not aware that expatriate employees were obligated to train Zambian employees within two years. He stated that in the 10 years that he had worked for the respondent, there were Zambian employees who acquired the knowledge to perform the roles and duties he was performing. That his last role with the respondent was Regional Manager in addition to being Training Manager. That if the position of Regional Manager was declared redundant, it would mean that no other person would take up such a position. He recognised the names of the staff listed on the document 'NKl' titled "staff trained by Babi Nzali". He stated that Ray Litana worked closely with him and served as Regional Manager after the termination of his employment. He admitted that the position of Regional Manager was not declared redundant. He stated that when Jl4 he joined the respondent, there were other expatriates who joined at the same time with him but no one was still working with the respondent. 2.19. He also stated that he was claiming for the payment of pension benefits from the staff pension scheme. That he was not aware that expatriate employees were not part of the staff pension scheme. He stated that he did not sign the application form for the staff pension scheme and that he did not make any contributions to the scheme. He vehemently disagreed that the staff pension scheme did not apply to him. 2.20. Still under cross-examination, the complainant stated that he was claiming for the payment of damages equivalent to 36 months' basic pay because the termination of his employment was unlawful. He stated that his contract of employment had a termination clause and that being employed on permanent basis did not mean that his contract could not be terminated. He stated that he was also claiming for the payment of damages for mental distress. 2 .21. Further, the complainant stated that he was aware that his position was still in existence and it was occupied by someone else. He denied that he had under studies in every position he worked for the respondent. When referred to paragraph 3 of the notice of termination JlS exhibited at page 9 of his bundle of documents, the complainant stated that the termination of his contract was partly because of the numerous investigations into his migration status by the department of Immigration. When referred to paragraph 12 of his affidavit in support of the notice of complaint, the complainant maintained that the reasons for the termination of his employment were ambiguous. He stated that his employment in Zambia depended on holding a valid work permit. He denied that his employment was subject to immigration laws governing employment in Zambia. He stated that the employment permit was issued in his name . When referred to paragraphs 14 and 16 of his affidavit in reply, the complainant stated that he had no knowledge about the application for his work permit. That, however, the respondent was not best placed to assess the likelihood of his employment permit being granted to him or not. When referred to paragraph 9 of his affidavit in reply, he stated that he did not approach the Immigration department over the error that he discovered. He stated that the letter, 'PMK2 ' was addressed to him and not the respondent and he was the one who was warned and cautioned of punitive measures. 2.22. When referred to clause 8 of his letter of appointment exhibited at pages 3-6 of the complainant's bundle of documents, the complainant stated that he was mandated Jl6 to take leave before the end of each year. That payment in lieu of leave could only be made at the termination of the contract of employment. He admitted that he was paid iri lieu of notice upon the termination of his contract. 2.23. In re-examination, the complainant stated that upon noticing that his work permit indicated the title 'Training Manager' , he went to see the General Manager, Andy Robert to whom he submitted the permit arid his contract of employment. That Andy Robert told him that they would rectify it as it was an error; and told him that he should continue handling stores. 3 .0. THE RESPONDENT'S CASE 3.1. In it s affidavit in support of the answer, it was stated that the respondent was in the retail business of fast-moving consumer goods and had several stores around the country. That the respondent opened its first store in Zambia in 2010. That at the time the respondent entered the Zambian Market, there was operational need for specialised skills in, inter alia, retail management and skills training. That the respondent, therefore engaged expatriate employees to meet its operational needs in the Zambian market and upskill local Zambia employees who were subsequently to take over the positions held by the expatriate employees. 3.2. It was stated that on !51 September, 2011, the complainant J17 was employed by the respondent as an expatriate in the position of Store Manager of the Makeni store in Lusaka. That he was subsequently appointed to the positions of Store Manager for the Copperhill store in Kitwe; and later Regional and Training Manager. That as · an expatriate employee with specialised managerial skills, the complainant was employed to carry out skills transfer by training Zambian understudies who would subsequently take up positions held by expatriates. That because it was unclear how much time was needed for the complainant to transfer his knowledge and skills to Zambian employees engaged by the respondent, the complainant was employed under a permanent contract subject to him continuing to hold an employment permit. That, however, employment under a permanent contract did not mean that the complainant's contract could not be terminated. 3.3. That as an expatriate employee, the complainant knew or ought to have known that the peculiar nature of expatriate employment was that when skills had been transferred and enough Zambians had been trained, the expatriate role would terminate. That during his period of service, the complainant trained not less than 2 6 Zambians in similar roles as shown by the list of the pool of Zambian talent trained by the complainant, 'NKl '. J18 3.4. That with the coming into force of the Employment Code Act No.3 of 2019, expatriate employees were required to improve the skills and knowledge of understudies within a period of two years or within a period that might be prescribed by the Labour Commissioner. With the new law in place, it meant that the complainant could only serve in his role as Regional and Training Manager for a period of two years or a period as may have been prescribed by the Labour Commissioner. That because no period was prescribed by the Labour Commissioner, the respondent had to adhere to the two-year period. That the complainant, having completed his role, specifically to transfer skills to Zambian employees, was on 19th November, 2021 served with a notice of termination of his employment, 1'NK2 ". That this was based on the respondent's operational requirement owing to the fact that there were Zambian employees who had acquired the necessary skills to take over the positions that the complainant held. 3.5. It was averred that during the time that the complainant served as Store Manager for the Makeni store, he trained and transferred managerial skills to Ray Litana, a Zambian citizen, who was since serving as Regional Manager for the Copperbelt Province. That he also trained and transferred J19 managerial skills to Kamona Mooto, a Zambian citizen, who was since serving as Regional Manager for Lusaka. 3.6. The respondent averred that as the two year prescribed period expired and considering that there were Zambian employees capable of taking over the regional managerial roles, on 19th November, 2021, the complainant was notified that his employment with the respondent would be terminated. It was stated that the complainant's employment was not terminated by reason of redundancy as the role that the complainant used to perform was still in existence and being performed by a Zambian employee, Ray Litana. That the respondent never showed any intention of trying to get rid of the complainant but it was in fact grateful for the complainant's service such that the respondent offered and paid the complainant three months' salary over and above the contractual 30-day notice period as stated in the notice of termination, 'NK2 ', 3. 7. That contrary to the impression that the complainant was trying to create that his employment was terminated with no justifiable reasons given to him, the complainant was in fact given reasons for the termination of his employment. That the complainant's employment was terminated for operational reasons as the respondent was required to comply with the Labour laws considering that J20 the complainant had successfully imparted the requisite knowledge required of a Regional and Training Manager to a Zambian employed by the respondent. That even though the complainant was given 30 days' notice, he did not serve the notice period and was accordingly paid three months salaries in lieu of notice. Further, that the complainant was never placed on forced leave to avoid settling any alleged accrued leave days. That in addition, the complainant was paid the sum of K62 5,280.40 being his entitlement under his contract of employment as shown his payslip, 'NK3 ' for the month of January, 2022. 3.8. It was further averred that the complainant's employment having come to an end, the respondent was under an obligation to inform the Director General of the department of Immigration of the termination of the complainant's employment; and to surrender his work permit on 24th January, 2022 as shown by the letter, 'NK4' addressed to the Director General. It was further stated that there was no requirement under the law for an employer to hold off surrendering a former foreign employee's work permit because a dispute relating to the termination of that employee was pending. That the complainant was paid all his dues under his contract of employment and was not entitled to anything more. 3.9. In its further affidavit in support of the answer, it was J21 averred that the complainant's employment was as a result of being identified as an asset in the respondent's parent company in South Africa; and that he was perceived as being suitable to train and transfer skills to Zambian employees, based on his training and experience, who would subsequently take over. That his role was never to permanently deprive Zambian nationals of employment and promotion by his continued employment. That the complainant knew or ought to have known that bis employment with the respondent would terminate once he had trained enough Zambian employees to perform his functions. 3.10. Further, that the complainant's employment was also subject to the immigration laws, regulations and guidelines in Zambia that were to be overseen by the department of Immigration. That at the time of applying for his employment permit, the department of Immigration was particularly informed of the complainant's duties to train and upskill Zambian employees and that it would take some time for him to complete the duties he was engaged for as shown by the letter, 'PMKl '. 3.11. It was averred that the complainant's employment by the J22 respondent was at all material times premised on holding an employment permit. That the complainant, therefore , knew or ought to have known that the expiry and/or non renewal of the employment permit meant that his employment would automatically terminate. That during the time of his employment with the respondent, it was noted by the department of Immigration that the complainant had breached the conditions of his employment permit on multiple occasions as such the deponent was summoned to appear at the department of Immigration on three occasions as stated below: 3.11.1. In or around November, 2017, Precious Mundi Kalwa was summoned by the department of Immigration relating to its concern that the complainant was a foreign national performing du ties that could be performed by a Zambian citizen and, therefore, in breach of his employment permit. That upon their request, the respondent provided information on the complainant's exact duties and the understudies that were being trained by him. 3 .11.2. In or around May/April, 2020, she received a call from the Immigration office in Ndola asking her to confirm if the statement she had given them earlier J23 concerning the complainant's duties was accurate. That they informed her that they had received reports from other employees of the respondent that the complainant had been abusing his authority and oppressing his subordinates by conducting unfair disciplinary hearings which were not within the scope of his duties. That she confirmed her earlier submission and referred the matter to the Lusaka Support Office. 3. 11.3 . That in or around May/June, 2021 , she was again summoned by the department of Immigration to clarify the complainant's role in the respondent company as it appeared that the complainant was performing functions that Zambian citizens could perform. That the Department of Immigration was again informed of the complainant's role and she provided documentation to that effect except they insisted that they will conduct their own investigations. That after her visit to the Immigration department office, a few weeks or month later, the complainant was detained by the departn1ent of Immigration in Ndola and had his passport and employment permit confiscated on the basis that they wanted to conduct their own investigations. That his original employment J24 permit was not even returned to the complainant after this incident and this led to the complainant's title being adjusted to read as "Training Manager" effective l51 August, 2021. 3.12. It was stated that on 26t h June, 2020, the department of Immigration formally cautioned and warned the complainant of contravening his employment permit and informed him that there would be punitive measures taken against him if he continued to breach his employment permit as shown by the letter "PMK2". That the complainant's last employment permit, "PMK3 " was renewed on 5th May, 2020 and was valid until 5th May, 2022 . . That owing to the several occurrences of alleged breaches of his employment permit and the department of Imn1igration's formal and informal warnings to the complainant, it became clear to the respondent that the department of Immigration was unlikely to renew his employment permit which was set to expire on 5th May, 2022. That this was also given the fact that the complainant had trained and upskilled more than 10 Zambian citizens and his role could now be performed by Zambian citizens who had been trained and to whom skills had been transferred. J25 3 .13. It was averred that at the time of the termination of his employment, the complainant was informed that it was the respondent's view that owing to numerous immigration investigations into his employment permit conditions, the department of Immigration was unlikely to renew his employment permit and his employment with the respondent could no longer continue. 3. 14. Further, the respondent averred that the complainant was not entitled to any pay-out from the respondent' s staff pension fund. That the respondent's staff pension fund was originally put in place for the benefit of local employees. That its operations involved a two-step contribution system whereby firstly, the employee was to remit a contribution and thereafter, the respondent would also remit an equal contribution for that employee. That the employee would then be paid whatever contributions were made during the course of his employment by the Pension Administrator and not the respondent. That the complainant did not at any point remit any contribution to the staff pension fund to trigger remittance by the respondent, and could not, therefore, be paid out at the time of termination of his contract of employment. To that effect, the respondent produced the letter, "PMK4'', from the respondent's Staff Pension Administrator confirming J26 that the complainant had not made any contribution and was not part of the staff pension scheme. 3 .15. It was averred that the complainant was paid all his dues under his contract of employment and was not entitled to anything more payments. 3.16. At the trial, the respondent called t wo witnesses. 3.17. RWl was Natalie Hlazo, Head of Human Resource department of the respondent. 3 .18. She testified that when the respondent set up its first store in 2010, there were scarce individuals with retail skills and talent. That as a result, a number of expatriates with retail background and experience were brought in to assist to set up and run the retail stores alongside Zambian staff and management who were to be trained and up-skilled to facilitate for opening more stores in the expansion of the business in Zambia. 3.19. She stated that during the complainant's employment, a minimum of 26 employees worked with and were supervised by the complainant. 3.20. The witness testified that the complainant had filed ~ claim before this court concerning the termination letter J27 that he received from the respondent in relation to the reasons for the termination which were related to the Employment Code Act No. 3 of 20 19, and the new regulations that were surrounding the employment of expatriates. She stated that the complainant's contract of employment was terminated because of the reasons concerning the renewal of his employment permit; and it was believed that he had trained and up-skilled Zambian employees. 3.21. That the reasons concerning the renewal of the work permit were that the complainant was on numerous occasions summoned to the department of immigration which led to the respondent to terminate his contract as it had the right to terminate the contract. 3.22. That in response to the termination of his contract, the complainant wrote the letter of demand exhibited at page 10-11 of his bundle of documents. That the respondent, however, maintained that it was within its right to terminate the contract of employment. 3.2 3. In reference to paragraph 15 of the complainant's affidavit in support of his notice of complaint, the witness stated that the five expatriates in question joined on different dates after August, 2021 and held different portfolios which were mainly commercial in nature and that these J28 were different from the operations portfolio that was held by the complainant. That at the time of the hearing, only two expatriates were still working for the respondent, that is, Jimmy Reddy and Yannie Potgieter who was holding the position of General Manager. That the other three were no longer with the respondent because they completed their assignments in training and up-skilling the Zambian staff. 3.24. That currently, the person holding the position of Regional Manager for Copperbelt was Rasford Mwansa, a Zambian national. 3.25. She testified that on termination of his contract, the complainant was paid his salary for the month of January, 2022; his repatriation dues; and a severance package. To support her evidence, she referred the court to the complainant's last pay slip, 'NK3 ' in the respondent's affidavit in support of the answer. 3.26. In cross-examination, when referred to paragraph 1.3 of the respondent's answer, the witness admitted having stated that the complainant was employed for a limited purpose but that the contract did not show that the complainant was employed for a limited purpose. When referred to paragraph 9 of the respondent's affidavit in support of the answer, the witness confirmed that the complainant was employed on permanent basis. When J29 referred to paragraph 10 of the same affidavit, she confirmed that the complainant ought to have known that when skills had been transferred, his role would end. She stated that clause 15 of the complainant's contract of employment provided for termination of the contract but did not give details of the manner in which the contract would terminate. That it simply spoke to the terms of either party being able to terminate the contract by one month's notice. She confirmed that the complainant's contract did not state that his employment would terminate upon transferring skills to the Zambian employees. 3.27. When referred to the notice of termination exhibited at page 9 of the complainant's bundle of documents, the witness stated that the reason given for the termination was the business having suffered adverse headwinds. When referred to paragraph 13 of the respondent's affidavit in support of the answer, the witness stated that the reason cited for the termination of the complainant's contract was "the respondent's operational requirements. '' And when referred to paragraph 14 of the respondent's affidavit in support of the answer, she stated that paragraph 14 spoke of the termination letter twice and the phrase 'operational requirements' was by law one of the reasons for termination of employment. The witness BO admitted that the reasons given in paragraph 14 and in the notice of termination did not correlate. She stated that she could not agree that there was no other document that spoke to the termination of the complainant's employment apart from the notice of termination because there was a contract that spoke about termination. She admitted that the notice of termination did not indicate that the complainant's employment was terminated because he had trained enough Zambians. 3.28. The witness stated that the complainant used to report directly to the General Manager. That it was the General Manager that used to assign duties to him. That even the complainant's managerial duties were assigned to him by the General Manager. 3.29. The witness admitted that the responsibility to apply for the complainant's work permit was for the respondent. She stated that there were issues surrounding the complainant's work permit. When referred to the letter of caution, 'PMK2', the witness confirmed t hat t he letter referred to the complainant performing managerial duties outside the parameters of the permit. That it was the respondent's responsibility to correct that conduct. 3.30. When referred to paragraph 13 of the affidavit in support of the answer, she confirmed that the complainant could J31 only serve as Regional Manager and Training Manager for two years in line with the new Employment Code Act No. 3 of 2019. 3.31. When referred to the letter at page 8 of the complainant's bundle of documents, the witness confirmed that it was a letter of appointment of the complainant as Training Manager with effect from is1 August, 2021. She confirmed that the complainant only held the position of Training Manager for three months and not two years. She stated that she was not aware that the complainant never took up the role as Training Manager because it was not facilitated for but she was aware that he was Regional Manager for the Copperbelt Province when he received the said letter of appointment. 3.32. When referred to the notice of termination at page 9 of the complainant's bundle of documents, the witness denied that the respondent made assumptions that the employment permit was not likely to be renewed. When asked to read paragraph 3 of the said letter, the witness still denied that the respondent made assumptions that the employment permit was not likely to be renewed. She admitted that at the point of writing the aforestated letter, the complainant had a valid employment permit and the respondent had not then made an application for the renewal of the complainant's work permit. That at that J32 stage, she could not know whether or not the renewal of the permit would be denied. She denied that giving the reason that the permit was not likely to be renewed was unfounded. She also denied that it was an assumption. 3.33. When referred to the document marked, ' NKl ', she confirmed that those were Zambians who were trained by the complainant. That it was not a training report. She admitted that she did not produce any training report before court or any documents to show the training programs that were undertaken. She stated that she wa~ aware that the Employment Code Act of 2019 required coming up with management succession of understudies. That she did not produce the management succession reports before court. She stated that they had been submitted to the labour Office. That she had no record of the management succession understudies in-respect of the complainant having been submitted to the Labour office during his tenure because she was not with the respondent at the material time. That retail business relied mostly on job training. 3.34. She stated that she knew about the Manager's Trainee system of blue file. That nothing had been submitted with regard to the complainant's training of Managers. When referred to paragraph 9 of the affidavit in support of the respondent's answer, the witness stated that they were not J33 aware about how long the training was going to take and that was why the complainant was employed on permanent basis. She stated that the complainant was employed for 10 years and he served in different portfolios during the said 10 years. That there was expansion and opening of stores during those 10 years . When referred to paragraph 13 of the affidavit in support of the answer, the witness stated that what was being referred to was the permit period for his stay in Zambia. That his stay in Zambia was tied to the period of each permit issued. That ordinarily, the complainant should only have served for a period of two years as it was attached to the period of the employment permit. She stated that when the new Employment Code Act came into effect, the respondent did not give the complainant a new contract to reflect the changes as he already had a valid permit. That the terms of the contract were not varied to indicate that his tenure was going to be for two years and not permanent basis. 3.35. When referred to clause 12 of the complainant's contract of employment exhibited at page 5 of the complainant's bundle of documents , the witness admitted that it was a mandatory requirement for all employees to be registered under the respondent's retirement scheme. When referred to the letter, 'PMK4' in the respondent's further affidavit in support of the answer, the witness confirmed that J34 according to the letter, the complainant was not a member of the pension scheme. She conceded that it was the respondent's responsibility to register all employees to its retirement scheme, excluding expatriates. However, when pressed, she back peddled and stated that clause 12 of the contract did not provide that expatriates were excluded. That the clause provided that all employees had to be registered including expatriates. She denied that clause 12 was an abrogation of the complainant's contract of employment because it provided that the complainant was not eligible to register for the pension scheme. She explained that a pension scheme such as the private pension scheme, Saturnia allowed the employees and the respondent to contribute money on a monthly basis towards the pension scheme. That the pension scheme was not provided for in the contract. 3.36. She admitted that the respondent decided to terminate the complainant's contract because of the numerous summonses to the complainant from the Immigration department. That she did not have any records of the said summonses to the respondent. She also admitted that she was aware that the respondent was summoned by the Immigration department on three times with regard to the complainant's employment p·ermit. That she was not aware J35 that the only time the complainant was summoned by the Immigration department was in 2020. 3.37. When referred to the job descripHon for a Store Manager at pages 1 and 2 of respondent's notice for production of documents filed into .court on 19th June, 2024, the witness admitted that it was the job description for the complainant when he was Store Manager. She stated that the job description was not supposed to be signed by the complainant but later admitted that it was a requirement that the job description had to be signed by an employee. She admitted that if the job description was for the complainant, it would have been signed by him. 3.38. RW2 was Precious Mundi Kalwa, Human Resource Manager in the respondent company. 3.39. She informed the court that she had worked for the respondent for 13 years . That her duties included recruitment, administering of discipline and ensuring that the labours laws, policies and procedures to do with Human Resource practices were complied with. 3.40. She explained that the complainant was hired by the respondent to train staff as at the time he joined the respondent, it had just opened the second store. That he was hired to help establish the business. That the second J36 reason he was hired was because the respondent had embarked on a project to expand its business into Congo and Malawi. That at the time, there was need for people that could speak French and Portuguese that needed an exposure to an African market which in this case was Zambia. That the complainant was recommended because he had 12 years' experience as he had been working with the respondent's franchise store in South Africa. 3.41. The witness stated that the complainant was not employed on permanent and pensionable basis because according to the company principles and procedures, expatriates could not be employed on permanent and pensionable basis. That she would not know why the complainant's contract provided that it was a permanent contract because at that time, she was not in the office that used to do contracts for the respondent. 3.42. She also explained that the respondent had a system of a blue file which was a set of documents that guided the respondent's training programs. That for instance, what was found in that file was a stipulated period that a person nominated for training would spend in a department. It would also contain manuals that a trainee needed to know and for the supervisor's use. That the training duties assigned to a supervisor were to monitor the progress of the person under training, to coach and to guide and most J37 importantly to pass on the company's culture to the person under training. That the duties of the complainant included to train, to coach and to guide, to discipline and mostly to pass on the company's culture to the staff that were under him. 3.43. The witness referred the court to the job description at page l of the respondent's notice for production of documents filed into court on 19th June, 2024. She stated that the document, together with the appointment letter was given to any new person that joined the company. That it was for the purposes of guiding the holder of a position of the duties they were required to perform whilst working for the respondent. That the aforesaid job description related to the position the complainant was holding at the time when he joined the respondent. 3 .44. The witness testified that trainings were conducted as follows: first , they administered aptitude tests to people who expressed interest in training. That once the tests were concluded, those that were successful were placed under an experienced Store Manager for training. 3.45. She explained that the complainant's contract did not provide for training because usually such factors were not provided for in the contract but in the job description and job profile. That the job description described the job J38 itself, that is, the level of authority and the grade at which the position was and the people that were to be reporting into that job. That on the other hand, the job profile covered the key responsibilities of the holder of the position. That the job description was for administrative purposes only and was placed on a new employee's file while the job profile was given to the holder of the position. 3.46. The witness also explained that the requirements by the Immigration department that were needed to hire an expatriate were that: the company had to prove that the position or duties could not be performed by a Zambian; provide atleast three people that had been selected to be trained by the expatriates; and provide the skills the expatriate possessed that they were going to be transferred to Zambians. 3 ..4 7. The witness referred the court to the letter, 'PMK 1' in the respondent's further affidavit in support of answer dated 10th June, 2024 and stated that it was an application for a work permit for the complainant. That the complainant was granted the permit on a renewable basis. That the conditions that were attached to the permit were that the person had to be of good behaviour, abide by Zambian Laws and that they had to perform and stick to the duties indicated by the respondent. J39 3.48. The witness stated that the complainant began having runnings with Immigration department in 2017. That she received a call from the Immigration department in relation to a case in their store involving one of the respondent's Store Managers. That the case was about deviation from the standard procedures. That she was summoned to go to the Immigration department and asked whether the complainant was performing the duties that the respondent had indicated he would be performing and she answered in the affirmative. That they then informed her that they had received reports from the respondent's staff that the complainant was abusing his authority; and that he was performing duties that could be performed by a Zambian. That in her response, she referred them to the case the respondent just had and told them that deviation from operating standards was part of his jurisdiction because he was a Trainer and it was not an abuse of authority. 3.49. That in 2020, she again received a phone call from the Immigration department and was informed that they had received reports that the complainant was performing duties like he was a Zambian. That at that point, the respondent had put in an application for the renewal of the complainant's work permit. That the Immigration department informed her that based on the years the J40 complainant had been in the country, they believed that he had trained enough people to take over from him. That her response was that that was not the respondent's feel and that was why the respondent had put in an application for renewal of the work permit. That in response, they informed her that they would take it up with their Lusaka office. The witness referred the court to the letter, ' PMK2 ' in the respondent's further affidavit in support of answer and stated that the reason the complainant was cautioned by the Immigration department was because of investigations that the Immigration had carried out. 3.50. That she was again summoned by the Immigration department in 2021 on the same allegations that the complainant was performing managerial duties that could be performed by a Zambian. That she was informed that they were going to discipline the respondent because they had already cautioned the complainant. That the complainant was detained at the Immigration department and his work permit confiscated. That she tried to engage the then Regional Immigration Officer in charge of Copperbelt who told her that they were going to do their own investigations and that the case was in Lusaka. That the complainant was later released. That at that point, the respondent's support office in Lusaka took over the case J41 and that was the last time she handled the complainant's case. 3.51. The witness explained that during her encounter with the Immigration department, they told her that the duties that the complainant was performing could be performed by Zambians, especially the fact that the respondent had appointed one of the understudies it had provided as Regional Manager, the position the complainant was also holding at the time. That they were advised to let Zambians perform such duties. 3.52. She testified that the complainant' s last permit was obtained in 2020 and was set to expire in May, 2022. That the complainant's contract was terminated before the expiry of his permit because at the time, the respondent was in talks with the Labour Office in Lusaka concerning the complainant and two others who were the longest serving expatriates with the respondent. That the respondent was asked to provide a list of people that had been supervised or trained by the complainant and the two others. That after the meeting, the Ministry of Labour and the Immigration department strongly advised that the duties that the complainant was performing were not duties to be performed b y an expatriate. That the respondent was cautioned that the applications for the permits that they had put in may not be approved. That J42 management, in its strategy session, submitted that it was not going to renew the contract for t he complainant and two others. That steps were taken to inform the complainant and the two others of the decisions taken. She stated that the reasons for the termination of the complainant's contract were communicated to him as she drafted the document that was to be issued to the complainant by the General Manager. 3.53. The witness referred the court to the letter at page 14 of the complainant's bundle of documents and explained that it was written by the respondent's Advocates in response to the demand that the complainant had issued to the respondent. 3.54. Further, with regard to the complainant's claim for refund of contributions made to the pension scheme, the witness testified that the conditions to belong to the respondent's pension scheme were that one had to be employed on permanent basis and only applied to local staff and not expatriates. That the complainant was remunerated as an expatriate. That that meant that his salary was inclusive of all allowances. That it was the reason why expatriates' salaries were higher than those of the local staff. That the complainant's salary was more than KlS0,000 .00 per month which was a salary five or six times more than what J43 a local Manager would get. That in her conversation with the complainant whic h was largely about Saturnia, the respondent's pension scheme, they discussed that the complainant was not entitled to the Saturnia pension benefits because he was an expatriate and his salary was an all-inclusive salary. 3. 5 5. During cross-examination, the witness admitted that the complainant was hired to train the local staff. When referred to the complainant's contract on pages 3-6 of the complainant's bundle of documents, the witness stated that the contract did not state that he was hired to train local staff. When referred to the letter at page 8 of the complainant's bundle of documents, the witness stated that the training position was with effect from 1st august, 2021. She denied that the training position was almost 10 years after his engagement. She stated that the complainant was hired in 2010 or 2011. When referred to the contract at page 3 of t he complainant's bundle of documents, the witness stated that she was not sure if it was the complainant's initial contract of employment. That the training position was offered 10 years after his initial contract. 3.56. When referred to paragraph 7 in the respondent's further affidavit in support of the answer, the witness admitted that the complainant ought to have known that his J44 employment would terminate once he had trained enough Zambians although it was not captured in his contract. When referred to paragraph 9 of the same affidavit, the witness confirmed that at the time of applying for the complainant's employment permit, the Immigration department was informed of the complainant's duty to train and up skill Zambians. She admitted that in 20 11 , the complainant was employed as a Store Manager. That in 2012, the respondent wrote the letter, 'PMKl' to the Immigration d epartment that the complainant would be training locals. That the complainant's contract was not amended after the respondent wrote to the Immigration department in 2012. That at the point of writing the letter, the complainant was still employed in the capacity of Store Manager. She admitted that t he respondent was the one which used to make the applications for employment permits for the complainant. She denied that the letter to the Immigration, 'PMK l' was the suppression of t he truth. She stated that the position of Store Manager was what would allow the complainant to train the locals because they were based in the store. That the letter was not talking about two distinct positions. When referred to the same letter, 'PMKl ', the witness stated that the letter was referring to the work permit for the complainant as a Training Manager. She admitted that the position was different from the position in the contract of employment J45 exhibited on pages 3-6 of the complainant's bundle of documents which stated that the appointment was that of Store Manager. She explained that the two positions were the same in principle. That at that time, Store Manager and Training Manager were one and the same position in relation to the complainant' s situation because the store was where the people he was training were at stationed. She stated that the document marked exhibit 'PNK3' in the respondent's further affidavit was the complainant's employment permit. That the position on the work permit was Training Manager, and it was valid from 5th May, 2020 to 5 th May, 2022. 3. 5 7. When referred to the notice of termination on page 9 of the complainant's bundle of documents, the witness stated that the notice did not indicate that the complainant had trained enough Zambians to warrant the termination of his employment. When referred to paragraph 2 of the said notice of termination, the witness admitted that it was during that period when several of the respondent's stores were closed. That it was one of the reasons for the termination of the complainant's contract. When referred to paragraph 3 of the said notice, the witness stated that the Immigration department had not yet denied the complainant a permit. The witness argued that the second reason for the termination was not based on an J46 assumption. However, she admitted that the reason was based on something that had not yet materialized. When referred to the letter, 'PMK2' of the respondent's further affidavit in support of the answer, she stated that it was a letter of caution to' the complainant but the department of Immigration did not indicate that it was not going to renew the complainant's employment permit. When referred to paragraph 11 of the said further affidavit, she stated that the complainant's employment was premised on him holding an employment permit although such issues were not covered it the contract. When referred to paragraph 12 of the same further affidavit, she stated that the Immigration department had summoned the respondent on three occasions. That they were summoned because they were the ones responsible for assigning duties to the complainant. She denied that the summons from the Department of Immigration in 2021 was what led the respondent to change the complainant's position to Training Manager. That the complainant had a valid employment permit in 2021 and the occupation on the permit was Training Manager. 3.58. When referred to the letter, 'PMK2' exhibited to the further affidavit, the witness stated that she had not produced the letter that was written to the respondent on the same date, J47 22 nd June, 2020 but confirmed that the respondent was also written to . 3.59. When referred to the respondent's notice of production of documents filed into court on 17th September, 2024, the witness admitted that the document was the Human Resource policy that was in place during the complainant's tenure of employment. That it was also applicable to the complainant. When referred to paragraph 17 of the respondent's further affidavit in support of the answer filed into court on 10th June, 2024, the witness stated that the complainant was not entitled to the staff pension fund. The letter, 'PMK4' was produced in support of that position. When she was referred to clause 12 of the complainant's contract exhibited on pages 3-4 of his bundle of documents, the witness confirmed that membership to the pension scheme was compulsory and it was the respondent's responsibility to register all employees. That the respondent was not at fault for not registering the complainant because according to the Human Resource policy, the complainant was not eligible to be registered to the pension scheme. She admitted that the Human Resource policy and the complainant's contract were at variance. She maintained that the complainant was not entitled to be registered to a staff pension fund . When again referred to clause 12 of the complainant's contract J48 of employment, the witness still maintained that the complainant was not entitled to a staff pension fund . She stressed that clause 12 was not supposed to be read in isolation but was supposed to be read together with clause 14. That the complainant was supposed to ask the General Manager, Andy Roberts to whom he used to report about certain issues. She stated that the complainant's 2011 contract of employment was amended by the letter of his appointment as Training Manager exhibited on page 8 of the complainant's bundle of documents. The witness, however, agreed that the letter did not indicate that the complainant's contract of employment was amended. 3.60. She stated that the blue file was not produced before court. That it contained the names of the Managers who were trained and a set of other documents pertaining to such trainings . That it would not have shown the people that the complainant trained because it belonged to the person who had been trained. That the Trainer gave recommendations to the Human Resource department. That the recommendations were sent through mail. That she did not produce any mails where the complainant had made such recommendations. 3.61. The witness confirmed that every respond ent's employee was given a job description. When referred to page 1 of the J49 respondent's notice of production filed into court on 19 th June, 2024, she admitted that it was a job description of a Store Manager. That the Store Manager was supposed to sign the document but it was not signed. She disagreed that it could have been for anybody else. That it was the respondent's policy that job descriptions had to be signed by the person taking up the position. The witness stated that a job profile covered the key responsibilities of a position but it was not used to assess an employee's performance. That what was used to assess an employee's performance was the job description and the agreed key performance indicators (KPis). That the KPis were in the job description. 4.0. FINAL WRITTEN SUBMISSIONS 4.1 . While both counsel for the complainant and Counsel for the respondent made an undertaking to file final written submissions, only counsel for the complainant did so. I will not reproduce the complainant's submissions but I will make reference to whenever necessary and r elevant. 5 .0. ANALYSIS AND DECISION OF THE COURT 5.1. I have considered the parties' affidavit and viva voce evidence. I have also considered the final written JSO submissions filed by the learned Counsel for both parties and the authorities cited therein. 5.2. The facts which were common cause are that the complainant was employed by the respondent as an expatriate Store Manager on 1st September, 2021 as shown by his letter of appointment, 'BN l '. He served in various positions the last one being that of Training Manager with effect from 1st August, 2021 as shown by the letter, 'BN3 '. During the course of his employment, the complainant and the respondent were on various occasions either summoned or written to by the Immigration department on allegations that the complainant had breached the condition of his employment permit, by performing duties that could be performed by Zambians. 5.3. On 19th November, 2021, the respondent served the complainant with the notice of termination of service, 'BN4'. The said notice read in part: "Business in this country has suffered adverse headwinds and several extra ordinary circumstances which have impacted performance negatively over the last three years. Additionally, you are aware of the numerous Immigration and Labour department investigations into your permit conditions which is due to expire in May, 2022. This is after it has been renewed on multiple occasions over the last 10 years. It is extremely likely that this renewal will be denied." JSl 5 .4. Upon the termination of his contract, the complainant wa~ paid three months' salary in lieu of notice and for other entitlements in line with his contract. The last pay statement for the month of January, 2022, 'NK3' included payment for terminal passage, repatriation and severance package. 5.5. From the evidence on this matter, the questions for determination are as follows: 5.5.1. Whether the termination of the complainant's contract of employment was by reason of redundancy. 5.5.2. Whether the complainant's contract of employment was unfairly terminated thereby entitling him to the payment of damages for unfair termination of his contract of employment. 5.5.3. Whether the complainant is entitled to the payment of damages for mental distress. 5.5.4. Whether the complainant is entitled to the payment of pension contributions towards the Staff pension scheme. 5. 5. 5. Whether the circumstances of this case qualifies the complainant to the payment of costs. 5.6. It is trite that the burden to prove any claim made rests solely on the complainant regardless of what may be said of the respondent's case. This was the holding in the case of Elizabeth Sokoni Mwenya v CFB Medical Centre Ltd1 where the Supreme Court held that: "A claimant always bears the burden of establishing his or her case. This requires that the complainant proves any allegation made, by adducing evidence the required to support -such allegation, standard." to 5. 7. Therefore, the onus is upon the complainant to prove his claims. The standard of proof is on a balance of probabilities. 6.0. WHETHER THE TERMINATION OF THE COMPLAINANT'S EMPLOYMENT WAS BY REASON OF REDUNDANCY. 6.1. A redundancy is considered to have occurred when the termination is due, wholly or in part, to one of the reasons provided for in section 5 5(1) of the Employment Code Act No. 3 of 2019. The said section 55(1) provides as follows: "(1) 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." JS3 6.2. The import of the above s tatutory provision is that a redundancy is only triggered by the occurrence of one of the circumstances stipulated under section 55(1) of the Employment Code Act. Other than that, a redundancy cannot be said to have occurred. 6.3. Further, the Supreme Court in the case of Fridah Kabaso Phiri (sued as Country Director of Voluntary Services Overseas Zambia) v Davies Tembo2 held that: "A redundancy takes place when an employer decides that the employee's position and/or services are no longer required, and, therefore, the position must be abolished." 6.4 . In casu, the complainant contended that even though not expressly stated in the notice of termination, 'BN4', the respondent had declared him redundant. It was submitted that the respondent should be considered to have terminated the complainant 's employment in accordance with the provisions of section 55(1) (b) of the Employment Code Act No. 3 of 2019. To support such a position, two reasons were advanced. lt was contended that the first reason given in the letter, 'BN4' for the termination of the complainant's contract of employment that the respondent's business had suffered adverse headwinds and several extra ordinary circumstances which impacted its performance negatively; and the respondent's own JS4 evidence that it had closed five of its stores during the period in question was proof enough that the respondent's business was diminishing and as such, the complainant should be considered to have been declared redundant. 6. 5. On the other hand, the respondent argued that the complainant was not declared redundant but the termination of his employment was based on the respondent's operational requirements which was by law, one of the reasons for termination of employment. It was contended that the complainant was employed as an expatriate to specifically transfer skills to Zambian employees. That the complainant had completed his role as there were Zambian employees who had acquired the necessary skills to take over the position that the complainant had held. It was argued that the complainant ought to have known that once skills had been transferred to Zambians, his role ended. 6.6 . I have considered the arguments from both sides. 6. 7. The first reason advanced by the respondent for terminating the complainant's contract of employment is not in issue. It is also not in dispute that the respondent had closed about five of its stores during the period in question. Despite having closed five of its stores, the JSS respondent's did not cease to carry on the business in which the complainant was employed neither d id it abolish the complainant's position. 1n fact, there was evidence, which the complainant confirmed, to the effect that at the time his contract of employment was terminated, his position was still in existence and there was someone else, a Zambian national who took over the position. 6.8. From the evidence, the respondent remained in the business of the same kind for which the complainant was employed. According to the respondent, after assessing th at the complainant had trained enough Zambians, the respondent terminated the employment of the complainant whom they had employed as an expatriate an d replaced him with a Zambian employee. This meant that the respondent's business was still a going concern; and that the complainant's position and/or services were still needed by the respondent. In short, the position which was held by the complainant was not abolished. 6.9. It is clear to me that the circumstances of the present case sit well with the decision in the case of Fridah Kabaso Phiri2 cited above. Therefore, the respondent cannot be deemed to have declared the complainant redundant. In the result, the complainants' claim for damages for J56 redundancy has no leg to stand on and is accordingly dismissed. 7.0. WHETHER THE COMPLAINANT'S CONTRACT OF EMPLOYMENT WAS UNFAIRLY TERMINATED 7 .1. The complainant also claimed for damages for unfair dismissal. 7.2. From the outset, I must state that with regard to the complainant's claim for damages for unfair dismissal, the complainant was not dismissed from employment but his contract of employment was terminated. 7.3 . In the case of Redrilza Limited v Abuid Nkazi and Others3 , the Supreme Court guided that there is a difference between 'dismissal' and ' termination'. That dismissal involves the loss of employment arising from disciplinary action while termination allows the employer to terminate the contract of employment without invoking disciplinary action. That, therefore, the terms 'termination' and 'dismissal' cannot and should not be used interchangeably. 7.4. I have analysed the evidence in this case and I am quite satisfied that the complainant was not dismissed from his employment as no dis.ciplinary proceedings had been JS7 instituted against him. The respondent merely terminated his employment as shown by the notice of termination, ' BN4'. Therefore, I have come to the conclusion that the claim by the complainant is for the payment of damages for the unfair termination of his contract of employment. 7. 5. I will now proceed to determine whether the complainant' s contract of employment was unfairly terminated. 7.6. The learned authors, Judge W. S. Mwenda and Chanda Chungu, in their book entitled: A Comprehensive Guide to Employment Law in Zambia, state at page 2 2 8 as follows: law, or where "Where a termination is not carried out in line with terminates the employment without giving such to as unfair termination will be termination ... " a referred the employer reason, 7. 7. Fur ther, section 5 2 (1) and (2) of the Employ ment Code Act No. 3 of 2019 provides that: "(1) 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, except that where an employer terminates the contract, the employer shall give reasons to the employee for the termination of the employee's contract of employment; and (2) An employer shall not terminate a contract of employment of an employee without a valid reason for the termination connected with the capacity or JS8 conduct of the employee or based on the operational requirements of the undertaking." 7.8. Pursuant to subsection 52(5) of the Employment Code Act No. 3 of 2019, the employer bears the evidential burden of proving that the termination of a contract of employment was fair and for a valid reason. The aforestated section provides as follows: "An employer shall bear the bu_rden of proof that the termination of a contract of employment was fair and for a valid reason." 7.9. The complainant contended that the termination of his contract of employment was unfair, as the reasons given for the termination were not valid. 7.10. On the other hand, it was the respondent's contention that the complainant was given valid reasons for the termination of his employment. That the termination of the complainant's contract of employment was within the respondent's rights which it exercised. 7. l 1. 1 have perused the notice of termination of service, 'BN4' dated 19th November, 2021. I have paid special attention to the reasons given for the termination .of the complainant's contract of employment. Firstly, that business in this country had suffered adverse headwinds and several extra ordinary circumstances which impacted J59 performance negatively over the past three years. Secondly, that there were numerous Immigration and Labour department investigations into the complainant's work permit conditions which was due to expire in May, 2022, and that it was extremely likely that the renewal of the permit would be denied. 7.12 . The respondent did not explain to justify in any way, either in the letter or in its evidence how the circumstances that had negatively impacted its business performance also adversely affected the complainant's employment. In fact, the evidence on record has revealed that the complainant's position was never abolished and/or the services of that position not required. It is in evidence that after the termination of the complainant's employment, the respondent employed another person in the position that was occupied by the complainant. 7 .13. Further, in both its affidavits and viva voce evidence, the respondent explained several instances when either the complainant or respondent was summoned to appear at the Immigration department or wrote letters in connection with the duties the complainant was employed to perform. That this led to respondent's conclusion that the Immigration department was highly unlike to renew the complainant's employment permit. In my view, that was J60 faulty reasoning on the part of the respondent. The respondent was fully aware that at the time it terminated the complainant's contract of employment, his employment permit was still valid. Additionally, there was no application that had been made by the respondent for the renewal of the complainant's wor1< permit. Therefore, stating that it was extremely likely that the renewal of the complainant's employment permit would be denied was mere speculation and an utter illusion. It follows , therefore, that the reasons which were given by the respondent for the termination of the complainant's contract of employment were not fair and valid. Section 52(5) of the Employment Code Act No. 3 of 2019 is explicitly and candidly enacted to the effect that reasons to be given for termination of employment at the instance of the employer have to be valid. 7 .144 In the present case, I find that the respondent has failed to prove that the termination of the complainant's contract of employment was fair and for valid reasons. I firmly hold that the termination of the complainant's contract of employment was, therefore, unfair thereby entitling him to the payment of damages. J61 7 .15. I now turn to the assessment of the quantum of damages that should be awarded to the complainant for the unfair termination of his contract of employment. 7.16. In the case of Eston Banda and Another v The Attorney General, 4 the Supreme Court guided that the general measure of damages where there is nothing extra ordinary is an amount equivalent to the notice period provided in the contract or in the absence of such provision, a reasonable period. From the foregoing, it is settled that the normal measure of damages that applies is the contractual length of notice or the notional reasonable notice where the contract is silent. 7 .17. In discussing the factors that warrant departure from the common law measure of damages in the case of Josephat Lupemba v First Quantum Mining and Operations Limiteds, the Court of Appeal referred to two leading cases of Chilanga Cement Pie v Kasote Singogo6, and Barclays Bank (Z) PLC v Weston Lyuni and Suzyo Ngulube7, decided by the Supreme Court. The Court of Appeal observed at page JS of the judgment that: "We note that in the two cases, the Supreme Court guided on the factors to be taken into consideration to award damages beyond the common law practice of notice period. Some of the considerations are future job prospects, inconvenience, stress and abruptness of termination. In so guiding, the emphasis was that J62 the trial Court should consider all the circumstances of each case and where it considers that a particular case is deserving, it should go beyond the common law measure of damages." 7 .18. On the facts of this case, I have decided to depart from awarding the complainant damages equivalent to the notice period having considered the fact that the termination of his contract of employment was unwarranted and so abrupt. Therefore, I award the complainant damages equivalent to six (6) months of his full pay for the unfair termination of his employment. The quantum is to be agreed by the parties and in default of such agreement, the same to be assessed by the learned District Registrar. The total sum due and payable to the complainant shall attract interest at the short-term commercial deposit rate, as determined by the Bank of Zambia, from the date of the notice of complaint to the date of the judgment and, thereafter, at 10% per annum until full settlement. 8.0. WHETHER THE COMPLAINANT IS ENTILED TO DAMAGES FOR MENTAL DISTRESS. 8.1. The complainant had claimed for damages for mental distress but he did not lead any evidence to support the claim. Therefore, the claim cannot stand and is accordingly dismissed J63 9.0. WHETHER THE COMPLAINANT IS ENTITLED TO THE PAYMENT OF PENSION CONTRIBUTIONS TOWARDS THE STAFF PENSION SCHEME. 9.1. Regarding this claim, the complainant contended that the respondent did not pay him his terminal benefits which included the respondent's contribution towards the Staff Pension Scheme for the period he worked for the respondent. He stated that clause 12 of his letter of appointment, 'BN4'; and the provision on the pension fund in the respondent's Human Resource Policy Manual showed that the pension scheme were compulsory for all employees without exceptions. That the responsibility of remitting to the pension scheme was the respondent's. Further, that the then General Manager, one Andy Roberts confirmed his eligibility to the pension scheme as shown by the document exhibited at page 1 of his bundle of documents. Naive 9. 2. On the other hand, the respondent argued that the complainant was not entitled to any pay-out from the respondent's staff pension fund. That the respondent's staff pension fund was originally put in place for the benefit of local employees. That its operations involved a two-step contribution system whereby firstly, the J64 employee was to remit a contribution and, thereafter, the respondent would also remit an equal contribution for that employee. That the employee would then be paid whatever contributions were made during the course of his employment by the pension administrator and not th~ respondent. That the complainant did not at any point remit any contribution to the staff pension fund to trigger remittance by the respondent, and could not, therefore, be paid out at the time of termination of his contract of employment. To that effect, the respondent produced the letter, "PMK4", from the respondent's Staff Pension Administrator confirming that the complainant had not made any contribution and was not part of the staff pension scheme. 9.3. The respondent further argued that the conditions to belong to the respondent's pension scheme were that one had to be employed on permanent basis and only applied to local staff and not expatriates. That the complainant was remunerated as an expatriate which meant that his salary was inclusive of all allowances. That that was the reason why expatriates' salaries were higher than those of the local staff. That the complainant's salary was more than KIS0,000.00 per month which was a salary five or six times more than what a local Manager would get. That they had discussed with the complainant that he was not J65 entitled to the Saturnia pension benefits because he was an expatriate and his salary was an all-inclusive salary. 9.4. I have considered the arguments from both sides. 9.5. I acknowledge that the complainant's letter of appointment, 'BN4' and the respondent's Human Resource Policy Manual exhibited in the complainant's notice to produce provided that it was compulsory for all employees of the respondent to join the pension scheme. However, it is in evidence that the complainant did not sign the application form for the pension scheme which meant that he did not join the pension scheme. The complainant did not also make any contributions towards the said scheme. Therefore, he cannot claim for the payment of pension contribution when he made no contribution. In this regard, the complainant's claim for the payment of contributions towards the staff pension scheme is bereft of merit and is accordingly dismissed. 10.0. WHETHER THE CIRCUMSTANCES OF THIS CASE QUALIFIES THE COMPLAINANT TO THE PAYMENT OF COSTS. I 0. I. Lastly, the complainant has prayed for the award of costs of these proceedings. Costs in this Division can only be awarded in accordance with Rule 44 of the Industrial J66 Relations Court Rules, Chapter 269 of the Laws of Zambia. The said Rule 44 provides: "Where it appears to the Court that any person has been guilty of unreasonable delay, or of taking improper, vexatious or unnecessary steps in any proceedings, or of other unreasonable conduct, the Court may make an order for costs or expenses against him." 10.2. In the present case, I find that none of the circumstances listed under Rule 44 of the Industrial Relations Court Rules which could have persuaded me to award costs to the complainant had arisen. Therefore, I make no order for costs. 10.3 . Leave to appeal is granted. Delivered at Ndola this 14th day of May, 2025. ~- ..... ,... . . . . . . . . . . . . . . ................ . · Davies C. Mumba HIGH COURT JUDGE