Clementina Simwanza v Zambia Forestry and Forest Industries Corporation (COMP/IRCLK/348/2020) [2023] ZMHC 95 (11 December 2023)

lN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA BETWEEN CLEMETINA SIMWANZA AND COMP/IRCLK/348/2020 --. oURT OF l UJSAKA _ I I OtC 2025 SEAL IAL IIELA-CtOi MPLAINANT ZAMBIA FORESTRY AND FOREST INDUSTRIES RESPONDENT CORPORATION Coram: Chigali Mfkalile, J this 11 th day of December, 2025 For the complainant: Ms. N. Simachela & Ms. M. Nachula -Messrs Nchito & Nchito For the respondenl - Mr. M. Mwaba & Mr. J. Lubinga - In House Counsel ·-----------=--=-=-- JUDG1.::M::ENT Legislation referred to: 1. The Employment Code Act, No. 3 of2019 2. The Employment Act, Chapter 268 3. The Industrial Relations Court Rules, Chapter 269 Cases referred to: I. Holmes Limited v. Buildwell Construction Limited (1973) Z. R. 97 Jl 2. Sarah Aliza Vekhnik v. Casa Dei Bambini Montessori Zambia, Appeal No 129/2017 3. Victoria Daka v. Petauke District Council, Appeal No. 108/2011 4. Zambia Railways Limited & Attorney General v. Professor Clive Chinva 5. Swarp Spinning Mills Pie v. Chileshe & Others (2002) Z. R. 23 6. African Banking Corporation (Zambia) Limited v. Lazarus Muntete, Appeal No. 51 /2021. 7. Chilanga Cement Pl<;. v. Kasote Singogo, SCZ Judgment No. 13/2009 8. Wilson Masauso Zulu v. Avondale Housing Project Limited ( 1982) Z. R. 172 9. Luckfell Mambepa Services Corporation, COMP/440/2016 Zambia Postal v. 10. Maggie Chishimba and Others v. Mpulungu Habour Corporation Limited, COMP/24/2015 11. Zambia National Provident Fund v. Chinva, SCZ Judgment No. 18/ 1986 12. Tebuho Veta v. African Banking Corporation (ABC) Limited, SCZ Appeal No.117/2013 13. Siamutwa v. Southern Province Cooperative Marketing Union and Finance Bank (Z) Limited, Appeal No. 14 /2002 14. Zambia Railways Limited v. Pauline S. Mundia & Another (2008) Z. R. 287 15. Lewis Moshov. Matildah Phiri, 2010/HP/183 16. Mhango v. Ngulube & Others (1983) Z. R. 61 17. Zambia Telecommunication Company Limited v. Eva Banda, Appeal No. 02/2017 18. Zambia Consolidated Copper Mines v. Jackson Siame, SCZ Appeal No. 21/2004 19. First Quantum Mining and Operations v. Obby Yendamoh SCZ/8/307 /2015 20. Zubao Harry Juma v. First Quantum Mining and Operations - Road Division, Appeal No. 102/ 2022 [2024] ZMCA 232 21. The Attorney General v. John Tembo, SCZJudgment No. 1/2012 22. Zambia China Mulungushi Textile (Joint Venture) Limited v. Gabriel Mwami (2004) Z. R. 244 (S. C) 23. Colgate Palmolive (Z) Inc v. Abel Shemu Chika & 110 Others, SCZ Judgment No. 11 / 2005 Texts referred to: I. Mwenda, W. S. and Chungu, C. A Comprehensive Guide to Employment Law in Zambia (UNZA) Press, 2001 2 . Garner. Black's Law Dictionary (8111 Edition): Thompson West, 2004, USA J2 Introduction 1. The complainant commenced this action on 30th June, 2020 via notice of complaint on the grounds that her employment was terminated by a letter purporting that she was on probation and thus only entitled to 24 hours' notice when in fact not. Further, the respondent did not state any reason for the termination and refused to pay gratuity. She thus seeks the following reliefs: (a)Damages for wrongful and unlawful termination of her employment contract; (b}Payment of full gratuity for the full duration of the contract at the rate of 35%; (c) Damages for mental anguish, inconvenience and loss suffered and occasioned by the respondent's actions; (d)Any other relief the Court may deem fit; (e) Interest; (j) Costs. 2. In reacting to the complaint, the respondent stated that the complainant underwent a performance assessment during her probationary period and the assessment showed that she was unable to meet her targets. As a result, the letter of termination was issued in which she was given 7 days' notice. According to the respondent, the complainant's employment was terminated in accordance with her conditions of service and, therefore, she is not entitled to the reliefs sought. J3 Affidavit evidence 3. The affidavit supporting the notice discloses that on 28th October 2019, the complainant was offered a four-year fixed term contract as Director of Finance. The letter of offer is exhibited to the affidavit as "CSL" Her employment was governed by the contract ("CS2") and the respondent's StaiT Standard Conditions of Service for non-unionized staff ("CS3"). 4. On 23rd April 2020, she received a termination letter ("CS4") alleging that she was on probation, and \i\l'as given only 24 hours' notice. She contends that her contract of employment made no mention of probation and the conditions of service specified that probation applied only to permanent and pensionable employees. The complainant asserts that the respondent failed to comply with the terms of her employment contract and further neglected to state the reason for the termination and afford her a hearing as required by law. The complainant also asserts that the clause on gratuity in her contract was overlooked. 5. On 11 rh May, 2020, a demand letter ("CSS") was written for payment of damages for unlawful termination but the respondent's position was that it found no merit in her claim. According to the complainant, the abrupt manner in which the respondent terminated her contract without giving her a reason caused her mental torture and distress. 6. The affidavit in support of answer to complaint was deposed to by Wilbroad Katema the respondent's Director of Human Resources. He confirmed that J4 the complainant was given a contract of employment which was to run from 1st November, 2019 to 31 st October, 2023 ( exhibited as "WK!"). The contract was supplemented by conditions of service for non-unionised staff ("WK2") which the complainant acknowledged and received on 31 s t October, 2019. 7. On 31 st March, 2020, the respondent conducted a performance assessment on the complainant for the period of 1st November, 2019 to 31 st March, 2020. The assessment revealed that she was unable to meet her targets and perform to the expectations and standard of the respondent. The performance assessment is exhibited as "WK3". Based on failure to pass the performance assessment test, on 23rd April, 2020, the respondent wrote to the complainant informing her that her contract was being terminated in accordance with clauses 3.2 and 4.0 of the standard conditions of employment {"WK4"). She was given 7 days' notice. 8. According to the deponent, the complainant was employed under Grade ZlO of the conditions of service which provided for 6 months' mandatory probation. Trial course 9. The complainant testified on her own behalf and called no other witness. the respondent also called one witness. 10. The complainant told Court that she was a practicing accountant who had predominantly served as Director of Finance in various government institutions. She testified along the lines of her affidavit and added that JS she was shocked to receive the letter terminating her contract of employment on 23rd April, 2020 as she was only given 24 hours' notice on the ground that she was still on probation. However, her letter of offer did not allude to the issue of probation. According to the complainant, clause 3.2 of the conditions of service provided that only permanent staff ,vere subject to probation. She testified that as an employee in the grade ZIO, clause 5.3 of her contract of service provided that the respondent would still pay full gratuity at the rate of 35% if the termination was not related to misconduct. 11. The complainant expressed dissatisfaction with the respondent's decision as she was not given the reason for her termination, neither was she subjected to any disciplinary procedure. She also stated that apart from her April salary, she did not get any further remuneration from the respondent. 12. On the performance assessment alluded to by the respondent, it was the complainant's evidence that there was no such system at the respondent corporation for contract staff during her tenure. She testified that on 31 s t March 2020, the interim Managing Director called her into his office and informed her of her errors. He also asked her to sign the list of errors. She asked for time to counter the issues on the list but he insisted as that was his last day of work. She reluctantly signed the list. 13. The complainant contrasted her employment letter with that of the Managing Director, Mr. Bwalya, whose effective date of employment was JG isl May, 2020. His letter explicitly stipulated a probationary period of three months whereas hers did not. 14. The complainant told Court that her termination was wrongful, as it was based on the incorrect assertion that she was on probation when in fact not. The termination was unlawful because no reasons were provided and she was not subjected to any disciplinary procedure. She maintained that she was entitled to full gratuity as per clause 5.3 of the conditions of service as her termination was not related to misconduct. 1 S. She testified that due to the abruptness of the termination and loss of income, she suffered a lot of anguish and life had not been the same. She also incurred unexpected expenses as she had relocated to Ndola. It was her further testimony that there was gender bias in the work place and she had never dealt with such an issue in her entire career. 16. Under cross examination, the complainant acknowledged that the contract was subject to other terms and conditions which she signed. She also accepted that clause 3.2 of the contract used the term permanent establishment posts while clause 2.0 uses the term permanent and pensionable. She, however, maintained her argument against probation. 17. Further in cross examination, the complainant conceded that although she had testified on experiencing gender bias, this issue was not specifically pleaded in her claims. She also acknowledged that she had not raised the matter \\11th any individual or authority during her employment. The complainant admitted that the Managing Director's J7 contract she had referred to (included in her bundle of documents) was drafted after her departure. 18. During re-examination, the complainant stated that her understanding of the conditions of service was that employees on contract were never subjected to probation. She clarified that permanent establishment posts referred to positions that led to permanent and pensionable employment. She firmly asserted that there was no confusion or overlap between permanent positions and those held on contract. 19. The respondent's \Vitness (RW) was Terrance Musa, the Human Resources Manager who testified that the standard conditions of service for non unionised workers covered staff serving in grades Z4 to Zl 1 and this range includes the position of Director of Finance held by the complainant, which was grade 210. As regards clause 3.2 on probation and the organisation structure in the supplementary bundle of documents, RW explained that the complainant's position formed part of the permanent established posts in the organization's structure. RW made reference to clause 26 of the complainant's contract of employment and elaborated that the contract shall be read together with the standard conditions of employment and service. Consequently clause 3.2 on probation applied to the complainant's position. 20. Under cross examination, RW conceded that not all conditions of service applied to all grades of employees. RW also acknowledged that employees in grades Z4 to Z7 are the ones to receive confirmation upon successful completion of probation. He further acknowledged that the complainant's JS contract had no provision for probation while the former managing director's contract did provide for probation. 21. In continued cross examination RW stated that the contract's termination bordered on performance but conceded that the complainant's termination letter did not give reasons for the complainant's termination. He accepted that in this case where there \¥as an issue of misconduct, the employee was supposed to be charged. He also conceded that no misconduct was alleged on the part of the complainant, therefore, there was no reason why gratuity should not be paid. He however, reiterated that the complainant was under probation as clause 3.3 applied to her and therefore not entitled to gratuity. Submissions 22. Ms. Simachela submitted on the complainant's behalf that the complainant's contract of employment was a contract for a fixed duration and had no provision for probation. The complainant was not on permanent establishment as provided by clause 3.2 and therefore this clause did not apply to her. It was further emphasised that under clause 2.0, only three categories of employees existed, permanent and pensionable, contract 2ambian(C2) and Contract non-Zambia (CNZ). The respondent's conditions of service also provided that employees in grades 28 to Z 11 served on fixed term contracts and according to clause 3.3, probation only applied to employees between grades Z.4 and Z.7. Consequentially, probation did not apply to the position of Director Finance which \¥as grade 210. J9 23. Counsel called in aid the case of Holmes Limited v. Buildwell Construction Limitedl 1l to underscore that where the parties have embodied the terms of their contract in a written document, the general rule is that extrinsic evidence is not admissible. In this regard, the provisions of the contract were clear and if it was the intention of the parties, the contract would have specifically provided for probation. 24. Concerning termination of contract, counsel's submission was that the use of the clauses 3.2, 4.0(a} and 26.1 was unlawful and wrongful as these provisions did not apply to the complainant. The respondent did not comply with the provisions of section 52 of the Employment Code Act which require an erring employee to be given reasons for termination and an opportunity to be heard. To reinforce her argument, counsel relied on the learned authors Winnie Sithole Mwenda and Chanda Chungu in their book A Comprehensive Guide to Employment Law in Zambia and the case of Sarah Aliza Vekhnik v. Casa Dei Bambini Montessori Zambiat2l. This was to highlight the fact that employers are no longer at liberty to invoke a termination clause and give notice without giving reasons for the termination and that such termination is in fact unfair. Court's attention was also drawn to clause 27 .0 of the contract which stipulates that the respondent may only terminate services of an employee on grounds related to performance after affording the employee an opportunity to be heard on the charges against him. 25. As it pertains to wrongful dismissal, counsel relied on the learned author Sp rack John in his book Employment Law and Practice (1 st Edition) where JlO he stated that wrongful dismissal is essentially a dismissal which is contrary to the contract and its roots lie in common law. Counsel also called in aid the case of Victoria Daka v. Petauke District CouncilPJ in which the apex court guided that if a contract is for a fixed term or is expressly stated to be terminable only in certain ways and it is terminated before the term expires or in an improper way, that may be wrongful dismissal. It was, therefore, submitted that the action by the respondent amounts to both wrongful and unlawful termination entitling the complainant to damages. 26. On the claim for gratuity, counsel referred to clauses 5.1 and 5.3 of the complainant's contract and submitted that these provisions were not complied with as the complainant was not paid her gratuity upon termination of her contract of employment. The case of Zambia Railways Limited and Attorney General v. Professor Clive Chirwa14l was cited in which the Court of Appeal emphasised the need to uphold the sanctity of contract. Counsel further reiterated that the complainant was not on probation and in any event, clause 5.3 of the contract of employment does not stipulate that an employee on probation is not entitled to gratuity. 27. Finally, on the claim for damages for mental anguish, inconvenience and loss suffered reliance was placed on Black's Laws Dictionary which defines mental anguish as "a highly unpleasant mental reaction (such as anguish, grief, freight, humiliation or fury) that results from another person's conduct; emotional pain and suffering." Counsel argued that the complainant's employment was abruptly terminated on unsubstantiated grounds and in a manner not provided for in the contract of employment. As a result of such conduct, the complainant suffered loss and distress. 28. Regarding quantum of damages, reliance was placed on the case of Swarp Spinning Mill Plc v. Chileshe and Others1s1, an authority which emphasizes that the general rule is that the normal measure of damages applies and usually relate to the applicable contractual length of notice. This can be departed from where the circumstances and the justice of the case so demand. 29. Counsel also relied on the case of African Banking Corporation Zambia Limited v. Lazarus Muntete<6 1 in aid of her argument for enhanced compensatory damages for and above the notice period due to mental distress, mental torture and inconvenience. Further reliance was placed on the case of Chilanga Cement v. Kasote Singogo(7) wherein the apex court stated that: ln a proper case, damages for loss of employment may be awarded for embarrassment and mental to,ture. Damages for mental distress and inconvenience would also be recovered in an action Jor breach of contract. However, such an award for torture or mental distress should only be granted in exceptional cases. 30. Counsel's submission was that the complainant's termination was traumatic as it was sudden, without justifiable reason and without an opportunity to be heard entitling the complainant to damages for mental distress. J12 31. In conclusion, it was argued on the basis of the case of Wilson Masauso Zulu v. Avondale Housing Project Limitedl8 J that the complainant, having proved her case using both documenta.iy and oral evidence, was entitled to all the reliefs sought plus costs. 32. The respondent's counsel, Mr. Mwaba, commenced the submissions by summarizing the evidence before Court. Vlith regard to the claims for wrongful and unlawful termination, counsel relied on High Court decisions in the cases of Luckfell Mambepa v. Zambia Postal Services Corporationl9l and Maggie Chishimba & Others v. Mpulungu Habour Corporation Limitedo 0, for persuasive value. To this end, counsel submitted that for the complainant to succeed on a claim for wrongful and unlawful dismissal, the complainant has to prove that either the respondent breached the contract of employment or any provision of the law. In this instance, there was no breach of either the conditions of service or any statute especially given that terms that were not specified in the contract would be in accordance with the employee's prevailing conditions of service. 33. It was contended that clause 3.2 of the conditions of service expressly stated that employees on permanent established posts shall be employed initially for a period of six months. Counsel further argued that the meaning of permanent established posts can be deciphered from the ordinary meaning of the words. In addition, the respondent's ,vitness clearly explained that the position of finance director was part of the permanent established posts in the organizational structure. J13 34. Counsel submitted that following the enactment of the Employment Code, it was realized that the clause on probation in the respondent's conditions of service contravened the law in terms of the time frame and in order to rectify this anomaly, the respondent put the probationary clause in the contracts of employment executed in and after 2020. For context, reference was made to the contracts of Mr. David Kangwa and Mr. Frightone Sichone. It was emphasised that probation applied to both of them irrespective of their designated grade or basis of employment. 35. Counsel also assailed the complainant's reliance on the case of Holmes Limited v. Build well Construction Limited (supra) and contended that in this instance, the contract itself expressly provided in clause 27 that there were other conditions to be read together \vith the contract. 36. Concerning the claim for unlawful dismissal, counsel's submission \Vas that although the complainant claimed that the dismissal was contrary to section 52 subsections (1) and (3) of the Employment Code, the said provisions were not applicable to an employee who was on probation. In such instance, the employer is only required to give 24 hours' notice after determining that the employee is not suitable for the position. Moreover, the respondent could not have breached the said provisions as the termination occurred during the transitional period for employers to comply with the Employment code. 37. To reinforce the position that there was no unfair dismissal, counsel called in aid the case of Zambia National Provident Fund v, Chirwa< 1 II which decided that no injustice occurred when an employer dismissed an Jl4 employee that had committed an offence attracting dismissal without following the laid down procedure. In relation to the case at hand, he submitted that it was not in dispute that the complainant failed to discharge her duties as Director of Finance while she was on probation as evidenced by the document "WK3" which she signed indicative that she was in agreement with the contents of the assessment conducted by the Managing Director. The upshot of the argument was that the termination was lawful. 38. The submissions then addressed the claim for payment of gratuity for the full duration of the contract. Counsel relied on the case of Tebuho Yeta v. African Banking Corporation (ABC)ll 21 and section 27 of the Employment Code Act which define a probationary period. It was emphasised that a party is bound by written agreements that they have acquiesced to and signed. Counsel contended that the complainant did not show any sufficient reasons or proof why her performance assessment which she cosigned should not be considered as a true reflection of her performance during her probationary period. It was on the basis of the poor performance assessment that the complainant's contract of employment was terminated. 39. Counsel also contested the complainant's assertion that she was given 24 hours' notice. He drew Court's attention to the notice of termination which clearly indicated that the complainant was given more than 24 hours' notice. Ultimately, counsel contended that the complainant did not qualify to receive terminal benefits as she was still on probation. It was JlS submitted that such an award would amount to unjust enrichment as envisaged by the Supreme Court in the case of Siamutwa v. Southern Province Cooperative Marketing Union & Finance Bank (Z) Limited! 13l. 40. On the complainant's claim for damages for mental anguish, inconvenience and loss suffered, counsel's succinct rebuttal was that the complainant had not proved to Court on a balance of probabilities that she suffered any of those as elucidated in the case of Zambia Railways Limited v. Pauline S. Mundia & Another! 141, counsel cited the case of Lewis Mosho v. Matildah Phiri!l 5l in which the issue of mental anguish was considered and the Court held that liability for the claim of nervous shock and mental anguish arises in extreme circumstances. In the premises, it was contended that the complainant had not shown any of the required elements. 41. In terms of inconvenience and loss suffered, counsel reiterated that the complainant had also not discharged the burden of proof. To buttress this argument counsel relied on the case of Mhango v. Ngulube & Otherst 16t in which it was held that a party claiming a special loss must prove that loss \:vith evidence. 42. Mr. Mwaba also made submissions in the alternative. He highlighted that in the event that the Court finds the respondent liable for terminating the complainant's contract of employment, the contract contains a liquidated damages clause which provides that: J16 The corporation shall pay the employee his full gratuity in the event that the corporation tenninates his contract of employment before its full term for any reason other than that relating to misconduct defined in the corporation disciplinary code book. 43. Court's attention was also drawn to the case of Zambia Telecommunications Company Limited v. Eva Bandall 71 in which the Court of Appeal had occasion to explain liquidated damages. rt was then submitted that Court has the power to enforce the liquidated damages clause that was freely entered into between the complainant and the respondent through the contract of employment. Therefore, in the event that the Court finds that the termination was unlawful, the only amount payable to the complainant is the gratuity. Analysis and decision 44. [ have considered and reflected on the pleadings, the oral evidence and the written submissions by both parties for which I am grateful. From the record, it is not in dispute that the complainant was employed by the respondent as Director of Finance in Grade Z. l O with effect from 1 ~, November, 2019 on a four-year fixed term contract which was to expire on 31st October, 2023. It is also not in dispute that the conditions of service applicable to the complainant were enshrined in her contract of employment and the respondent's conditions of service for non-unionized staff. The respondent terminated the complainant's contract of employment on 23 rd April, 2020. J17 45. On the one hand, the complainant asserts that her termination was unlawful and therefore she is deserving of damages and further that the respondent overlooked the clause on gratuity in her contract of employment when it refused to pay full gratuity upon termination. The respondent, on the other hand, holds the view that the complainant's employment w·as terminated during her probation for nonperformance and that it did not breach any law. Thus, the issues which fall for determination are as follows: (i) Whether or not the termination was unlawful, that is, -...vrongful and unfair entitling the complainant to damages; (ii} Whether the complainant is entitled to full gratuity follo-...ving the premature termination. 46. The Employment Code Act, 2019 (hereinafter referred to as the ECA) came into being on 9 th May, 2019 {SJ No. 29 of 2019}. Employers were, however, given a one year transition period and were to become fully compliant with its provisions by 9 th May, 2020. Clearly, therefore, the complainant's employment was during the transition period. It is settled that a law only applies prospectively and thus the entitlements in terms of the ECA were not applicable to the complainant. 47. I have, however, not overlooked the guidance of the Supreme Court in the case of Zambia Consolidated Copper Mines v. Jackson Siamel1 81. This is what the Court had to say: Jl8 We accept that it is a well-settled principle of law that there is always a presumption that any legislation is not intended to operate retrospectively but prospectively and this is more also where the enactment would have prejudicial effect on vested rights ... Side by side with this presumption of pmspectiue application is the well-established principle of law that all statutes must be construed as operating only on the cases where or on fact which came into existence after the statute were passed unless retl'ospectiue effects are clearly intended. But there is another well-established principle of law which is that any enactments which relate to procedure and practice of the court have retrospective application. (underlined for emphasis) 48. Drawing wisdom from the forgoing authority, I make the conclusion that while the respondent had the one year grace period to adhere to the substantive aspect, the practice and procedure of the ECA are applicable as the ECA had been passed by the time the complainant's contract of employment took effect on 1st November 2019. Therefore, for the substantive issues, the applicable law is the repealed Employment Act, Chapter 268. Whether the termination o[lhe complainant's employment was wrongful and unfair 49. In order to resolve this issue, it is cardinal to have an understanding of unfair and wrongful termination. The Supreme Court has in a plethora of cases addressed unfair and wrongful dismissal. In the case of First Quantum Mining and Operations v. Obby Yendamohl 191, it was stated that wrongful dismissal addresses the procedure J19 adopted in effecting the dismissal whilst unfair dismissal addresses the genuineness or otherwise of the dismissal. 50. Further, the authors of"A Comprehensive Guide to Employment Law in Zambia at page 241 define unfair dismissal as dismissal that is contrary to the statute or based on an unsubstantiated ground. They go on to state that unfair dismissal looks at the merits or substance of the dismissal. 51. I hold the view, based on the above authorities, that like a dismissal, a termination may also be termed unfair if it is contrary to statute or based on unsubstantiated grounds or wrongful if carried out contrary to the provisions of the contract of employment. 52. According to the letter of termination of contract, the complainant's employment ,vas terminated in line with clauses 3.2 and 4.0 (a} of the conditions of service as read with clause 26.1 of the contract. The two clauses in the conditions of service stated as follows: 3.2 PROBATION PERIOD Employees engaged on pennanent establishment posts shall, be employed initially for a minimum period of 6 months on probation. 4. 0 (a) During probation period, an appointment may be tenninated by either party giving twenty Jou,- (24) hours' notice. 53. Clause 26.1 of the complainant's contract of employment stated that "Other terms and conditions not specifically stated herein shall be in J20 accordance with the prevailing conditions of service for senior and non unionised niembers of staff of the board." 54. It was vehemently argued on behalf of the complainant that she was not on probation at the time of termination. The respondent insisted that the complainant was on probation as she was engaged on permanent established posts as per clause 3.2. 55. I have carefully considered the opposing views. To start with, I have carefully examined the offer letter dated 28th October, 2019 as well as the contract of employment dated 1st November, 2019 and note that none of the two documents makes mention of a probation period. Both documents categorically state that the appointment is for a period of 4 years and the contract under clause 1.0, goes on to state that the contract is subject to renewal for a further like term upon agreement by the parties. 56. In order to determine the probation, it is important to take a wholistic approach and examine other clauses in the conditions of service. 57. Clause 2.0 provides for basis of employment as permanent and pensionable; contract Zambian (CZ) and; contract non Zambian (CNZ). Clause 3.0 with the heading CONTRACT OF APPOINTMENT provides that employees in grade Z.8 to Zl 1 will be offered an initial contract of 3 years subject to renewal upon satisfactory job performance. Clause 3.2 already cited above provides for probationary period of at least 6 months for employees engaged on permanent establishment posts. )21 Clause 3.3 states that "on successful completion of a probation period, an employee in Z.4 to Z. 7 shall receive a letter of confirmation to the pernianent employment." 58. My understanding of the above cited clauses is that employees engaged on contract basis in grades Z.8 to Z.11 would receive 3 year contracts ,v-ithout any probation. The use of the word 'initial' in my vie,v- confirms the fact that there would be no probation. Employees in graded Z.4 to Z.7, on the other hand, would initially be on probation for a minimum of 6 months. I hold the firm view that had it been the intention of the drafters of the conditions of service that even those engaged on contract basis be subjected to probation, clause 3.3 would have included grades Z.8 to Z.11. 59. I have considered the respondent's submissions wherein they cited the definitions of the words 'permanent' 'establishment' and 'posts'. I perused Black's Law dictionary, 8 th Edition and I must mention that I did not see the definition of the word 'permanent'. I did however find the definition of the term 'permanent employment' at page 566 which is: "work that, under a contract is to continue indefinitely until either party wishes to terminate it for some legitimate reason." 60. By no stretch of imagination can a contract for a fixed duration be termed indefinite. Thus, a person holding a four-year contract cannot be said to hold permanent employment. That contract has a definite life span. I am fortified in my resolve by the recent Court of Appeal decision of Zubao Harry Juma v. First Quantum Mining & Operation Limited J22 - Road Division1201wherein the Court distinguished fixed-term contracts from contracts of a permanent nature. The Court stated that section 54(1) of the ECA applies to employees on fixed duration contracts. According to the court, fixed duration contracts are those contracts with a specified start and end date. The Court then cited the definition of permanent contract in section 3 of the ECA that "A permanent contract of employnient, if not terminated in accordance with this Act, expires on the employee's attainment of the retirement age specified under a written law." The Court then went on to hold that "this compels us to state that there is a distinction between a permanent contract of employment and a contract of fixed duration." 61. In the circumstances, I join hands with the complainant's submission that the complainant was not on probation as she was not employed on permanent basis, that is, until the day she attained retirement age which was the only kind of employment attracting probation in the respondent's organisation. 62. The letter of termination indicates that the complainant was terminated with 24 hours' notice because she was on probation. As found, this was not the case, therefore the termination was contrary to the contract of employment. 63. It will be noted that the respondent did not indicate the reason for the termination of employment in the termination letter. However, its position is that it terminated for failure to perform. I have had recourse to the )23 termination clauses in the contract of employment. Clause 27. l (c) applicable herein provides as follows: Employment May Be Terminated:• By the Corporation without allowing any period of notice or making any payment in lieu of notice if the employee fails to perform, observe or comply with any of the Terms and Condition of Employment and Service or is negligent or incompetent in the discharge of his duties or commits any act or makes any default which would justify his dismissal either by the contract or Laws of Zambia. Provided that the Corporation may only tenninate service of an employee on grounds relating to the conduct or performance o[ an employee a[ter affording the employee an opportunity to be heard on the charges laid against him in line with the Disciplinary Code and Grievance Procedure. (underlined for emphasis) 64. It is clear from the foregoing that the respondent was required to give the complainant an opportunity to be heard on her performance. It is evident that there were no disciplinary proceedings taken against the complainant. In the case of The Attorney General v. John Tembo!21 l it was held that: (1) There was maladministration as the respondent was neither charged, nor given an opportunity to exculpate himself over the allegations that he had absented himself from work without offteial leave for a continuous period of ten days or more. (2) There was a blatant disregard of the respondent's conditions of seruice and the rules of natural justice. J24 65. Similarly in casu, the respondent, having failed to give the complainant an opportunity to be heard on her poor performance, practiced maladministration. The import of the forgoing is that the complainant's termination was wrongful as it contravened the contract of employment and the complainant's conditions of service. 66. [ now move to unfair termination. As earlier established, in order to sustain a claim for unfair termination, the complainant has to demonstrate that some provision of the law was breached or that she was dismissed for no valid reason. 67. I note that reliance was placed on section 52 of the ECA to show that the termination was contrary to statute. However, as found, the ECA cannot be relied on in this case as the complainant was employed during the transition period. It was not yet mandatory for employers to fully comply with the Act. Thus, the repealed Employment Act, Chapter 268 is applicable. Section 36(3) as amended by the Employment (Amendment) Act, No. 15 of 2015 provided that: "The contract of service of an employee shall not be tenninated unless there is a valid reason for the tennination connected with the capacity, conduct of the employee or based on the operational requirements of the undertaking." 68. The above provision ts clear. An employee's contract could only be terminated for substantiated reasons. Thus, in the case of Sarah Aliza J25 ' Vekhnik v. Casa Dei Bambi Montessorri Zambia Limited (supra) the Court of Appeal expressed itself in the following terms: Section 36 of the Act has placed a requirement on an employer to give reasons for terminating an employee's employment. Employers are no longer at liberty to invoke a termination clause and give notice without assigning reasons for the tennination. What is of critical importance to note however is that the reason or reasons given must be substantiated. 69. It is also settled law that an employee's contract cannot be terminated for reasons connected with their conduct or performance without affording them an opportunity to be heard. In the very Sarah Aliza Vekhnik case, it was held that: The right to a fair hearing requires that individuals should not be penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case. 70. Further, in the case of Zambia China Mulungushi Textile (Joint Venture) Limited v. Gabriel Mwamil221 the Supreme Court held that" "Tenets of good decision making import fairness in the way decisions are arrived at. It is certainly desirable that an employee who will be affected by an adverse decision is given an opportunity to be heard." 71. In the case at hand, as found, the respondent terminated the complainant's employment without affording her an opportunity to be J26 heard. By not holding the hearing, the respondent not only deprived the complainant of an opportunity to defend herself but also deprived itself an opportunity to properly establish that the complainant was truly underperforming. In her examination in chief, the complainant told court that the Managing Director (M. D} called her to his office on 31 '" March, 2020 and handed her a list of duties she had allegedly failed to perform to the required standard. She asked for time to counter that list but the M. D stated that she needed to sign it there and then as that was his last day of office. Therefore, she signed it reluctantly. This testimony was not challenged. 72. l am of the view that having failed to give the complainant time to counter the assessment or having neglected to hold a hearing, the respondent cannot be heard to say it terminated the complainant's employment for a valid reason. Thus, the case of Zambia National Provident Fund v. Chirwa (supra) relied on by the respondent, for the proposition that no injustice arises from a failure to comply with laid down procedure in the contract in the event that the employee has committed a dismissible offence, does not apply. The respondent went against the mandatory provisions of section 36{3) of Chapter 268 which was couched 1n mandatory terms and also went against the rules of natural justice. 73. Fortified by the above cited authorities, I find that the complainant's termination vvas unfair. J27 ' 74. Having found that the complainant's employment was unlawfully terminated, it follows that she is entitled to damages. Payment o{gratuity 75. The complainant is claiming full gratuity for the full duration of the contract at the rate of 35%. The basis of this claim is clause S of her contract. Clauses 5.1 and 5.3 (applicable clauses) state: 5.1 A gratuity calculated at the rate of thirty five percent (35%) of the total earnings for the contractual period shall be payable to the employee at the end of the contract. 5.3 The corporation shall pay the Employee his full gratuity in the event that the Corporation terminates his Contract of Employment be[ ore its full term for any reason other than that relating to misconduct as defined in the Corporation's Disciplinary Code Book. 76. The wording of the above clauses is clear and requires no elaboration. The premature termination of the complainant's contract was not on account of misconduct and for this reason, the complainant submits that she is entitled to full gratuity. The respondent's position is that the complainant was still on probation and that paying her in any case would amount to unjust enrichment as she did not serve the full contract. Ho,vever, as found , the complainant was not on probation at the time of termination and as rightly pointed out by counsel for the complainant, the clause on gratuity did not, in any case, exclude payment by virtue of the employee being on probation. J28 77. I have had occasion to peruse the case of Zambia Railways Limited & Another v. Professor Clive Chirwa relied on by the complainant which was centered on a contract with a clause which entitled the employee to full payment of the amount due to him for the remaining part of the five-year contract in the event of premature termination of contract by the company on grounds other than disciplinary. The Court of Appeal stated that it was mandated to uphold the sanctity of a contract and freedom of contracting parties to engage each other freely and agree on terms that they themselves set to be bound by. The court found no circumstances warranting a departure from the provisions of the employment contract and interference with the award of compensation by the court below. 78. The respondent did offer an alternative argument in the event that Court finds that the respondent is liable for terminating the complainant's contract. It was submitted that clause 5.3 of the contract on payment of full gratuity where the respondent terminates the contract before its full term for a reason other than misconduct is a liquidated damages clause that sets out sufficient damages that the respondent would be required to pay the complainant. According to the respondent, payment of full gratuity would cover for any damages suffered as a result of the termination. In aid of this argument, the respondent relied on the case of Zambia Telecommunications Company Limited v. Eva Banda (supra}. 79. It was further argued that the complainant and respondent voluntarily and freely entered into the contract of employment which expressly sets out the damages to be paid. In aid of this argument, the case of Colgate Palmolive J29 (Z) Inc v. Abel Shemu Chika & Others<23l was cited where the Supreme Court adopted with approval the following passage from Printing and Numerical Registering Company v. Simpson: If there one thing more than another which public policy requires it is that men of full age and competent understanding shall have the utmost liberty in contracting and that their contract when entered into freely and voluntarily shall be enforced by courts of justice. 80. In the case of Zambia Telecommunications Company Limited v. Eva Banda, the Court of Appeal was faced with a clause similar to clause 5.3 herein. The Court stated that it is trite that employers and employees may agree and provide in the contract that in the event of premature termination, one party will pay to the other a specified sum. This is a liquidated damages clause which specifies a fixed or determined sum payable to the innocent party on a breach. The issue is whether the clause is a liquidated damages clause or whether it is penal, unconscionable and unenforceable. Where it constitutes a penalty it will be unenforceable against the party in breach. To qualify as a liquidated damages clause, the payment envisioned must be a genuine pre-estimate of the loss likely to flow from the breach. 81. As highlighted earlier, the respondent in casu submits that clause 5.3 is a liquidated damages clause that sets out the sufficient damages that the respondent would be required to pay the complainant. I agree. The amount of full gratuity as determined by the contract is an amount that may be awarded to the complainant as damages for breach of contract. The damages referred to here are the damages beyond the normal measure J30 • which is the notice period. The abrupt loss of employment without so much as an opportunity to be heard is a situation deserving of an award higher than the normal measure of damages. Thus, clause 5.3 is not penal in nature and the complainant is entitled to gratuity for the full duration of the contract. 82. That being the case, it follows that the damages awardable for unlawful termination of employment have been covered by the liquidated damages. Damages for mental anguish. inconvenience and loss suffered 83. It was argued on behalf of the complainant that she is entitled to said damages as her termination was traumatic having been done suddenly and without justifiable cause. On behalf of the respondent, it was submitted that the complainant had failed to prove that she was entitled to damages for mental anguish because she had not established the elements which would entitle her to such damages. 84. I have considered the opposing arguments. However, it has been found that the complainant is entitled to full contractual gratuity and this amount quite obviously represents more than the normal measure of damages which is the notice period. That being the case, a further award of damages for mental anguish, inconvenience and loss suffered would not be justified. 85. I am fortified by the case of Chilanga Cement Plc v. Kasote Singogo (supra} where the Supreme Court held as follows: J31 We are of the view, however, that such an award for torture or mental distress should be granted in exceptional cases, and certainly, not in a case where more than the nonnal measure of common law damages have been awarded; the rationale being that the enhanced damages are meant to encompass the inconvenience and any distress suffered by the employee as a result of the loss of the job. Any other relief and costs 86. The evidence on record does not reveal any other benefits that the complainant may be entitled to. As for costs, in this division, these are only awarded in accordance with Rule 44 of the Industrial Relations Court Rules, Chapter 269, that is, when a party has misconducted themselves in the proceedings. The record does not reveal any such misconduct by either party. Conclusion and orders 87. The complainant has proved to the court's satisfaction that she is entitled to full gratuity for the full duration of the contract at the rate of 35% as per liquidated damages clause in her contract of employment. The gratuity covers all damages sought by the complainant. 88. The sum due shall attract interest at short-term bank deposit rate from the date of notice of complaint to the date of judgment and thereafter, at current bank lending rate as determined by the Bank of Zambia until full settlement. J32 ~ .. 89. Each party shall bear own costs and is informed of the right to appeal. Delivered at Lusaka this 11th day of December, 2025 ············ .. ··~ ---· M. C. Mikalile J33