Eddie Nyimbwa v Africonnect Zambia Limited (COMP No. IRLK/250/2020) [2025] ZMHC 42 (11 June 2025)

IN THE HIGH COURT FOR ZAMBIA COMP No. IRLK/250/2020 INDUSTRIAL RELATIONS REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: EDDIE NYIMBWA AND l 1 JUN 2025 , -' L . - - - : - - SEAL OMPLAINANT AFRICONNECT ZAMBIA LIMI IAL RELAi lO RESPONDENT BEFORE: Hon. Mr. Justice E. L. Musona on the 11 TH day of June, For the Complainant: H. M. Mulunda of Messrs. Hibajene Mulunda Advocates. For the Respondent: I. Mung'omba and D. Nalishuwa of Messrs. Musa Dudhia and Company. JUDGMENT Cases referred to: 1 . Zambia Railways Limited vs Pauline S. Mundia and Brian Sialumba Supreme Court Judgment No. 24 of 2008 2. Elizabeth Sokoni Mwenya vs CFB Medical Centre Limited Appeal No. 009/2015 3. The Attorney General vs D. G. Mpundu (1984) Z. R . 6 (S. C) Jl 4 . Finance Bank Zambia Limited and Rajan Mahtani vs Simataa Simataa Selected Judgment No. 21 of 2017 5 . Eston Banda and Edward Dalitso Zulu vs the Attorney General Appeal No. 42/2016 6. Care International Zambia limited vs Misheck Tembo Selected Judgment no. 56 of 2018 7. West Midlands Corporative Society vs Tipton (1986) 1 RLR 1128 8. Fred Kapya Sinkala vs Bruce Mining Limited, Konkola Copper Mines PLC and Hellen Bruce 2002/ HK/ 54 7 9. Chilanga Cement PLC vs Kasote Singogo Supreme Court Judgment No. 13 of 2009 1 0. National Breweries Limited vs Phillip Mwenya (SCZ Judgment No. 28 of 2002) 11 . Orman Corrigan (Suing by his next friend) Albert John Corrigan vs Tiger Limited & Abdi Jumale (1981) Z. R . 60 (S. C.) 12. Mike Musonda Kabwe vs B. P Zambia Limited S. C. Z No. 10 of 13. Victor Chimuka Siamuzyulu vs Computicket Zambia Limited and Shoprite (Africa Supermarket Limited) Comp. No. IRCLK/ 608/ 2021 14. North Riding Garage Limited vs Buttenvich (1967) 2 QB 56 Legislation referred to: 1. Industrial and Labour Relations Act, Chapter 269, Volume 15 of the Laws of Zambia 2. Employment Code Act No. 3 of 2019 J2 Other works referred to: 1. Employment Law in Zambia, Cases and Materials. Revised Edition. W S. Mwenda (2011) 2. Atkin's Court Forms, on Contract Second Edition 12 (2) 2009 3. Halsbury's Laws of England (4th Edition) 2000 Reissue BACKGROUND 1. This is a matter brought before this Honourable Court by Eddie Nyimbwa, the Complainant herein, by way of Notice of Complaint, dated 15th May, 2020, made pursuant to Order 85 A (Rule 9) of the Industrial and Labour Relations Act, accompanied by an Affidavit in support of the said Notice of Complaint, of even date. 2. The following are the reliefs that the Complainant is seeking before this Honourable Court, as contained in his Notice of Complaint: a) Damages for unfair, unlawful and/or wrongful termination. b) Damages for emotional distress and mental anguish arising from the termination. c) Damages for loss of earnings. d) An order that the Complainant be declared redundant. e) Costs. f) Interest. g) Any other relief that the Court may deem fit. J3 FACTS Notice of Complaint and Affidavit in Support 3. According to the Complainant's Notice of Complaint and the accompanying affidavit, it is stated that on 6 th February, 2015, the Complainant was employed by Africonnect Zambia Limited, the Respondent herein, as head enterprise provisioning and support, at a salary of K 360, 000. 00 (Three Hundred and Sixty Thousand Kwacha). The said employment was on a permanent and pensionable basis. It is also stated that while he was serving in this position, the Complainant was awarded a meritorious award of excellence. 4 . It is stated that at the time of the termination of his employment, the Complainant was occupying a position of head of infrastructure, NOC and governance , in the Respondent Company. The Complainant avers that when he was re-assigned to this position by the Respondent, he was promised by the Respondent to be trained in the new area, as he was moved from the department he was initially adept with to a new department which required competence in new skills. 5 . It is averred that the Complainant and his supervisor agreed on performance follow up meetings or incapacity counselling sessions, wherein his supervisor was to assess his performance periodically. It is sated that the said meetings were to happen for six times but the said supervisor only met with him, three times, and that on the subsequent supposed meeting times, the said J4 supervisor was unavailable, promoting the Complainant to notify the Respondent's human resource department to intervene. 6. It is stated that during the Complainant's meeting with the human resource, he informed the Respondent that he found the conduct of his supervisor personal and unprofessional in that his supervisor did not come to his aid as far as his training was concerned. It is averred that the said supervisor also confirmed in the meeting that he was not available throughout the incapacity counselling session. 7. It is further averred that despite the Complainant's supervisor's inability to avail the Complainant adequate attention in so far as the incapacity counselling sess10n 1s concerned, the Complainant received a notice of employment separation, on 16th March, 2020. It is further averred that the said letter of termination cites reasons for termination as failure to improve his performance in accordance with the agreed incapacity counselling objectives set out. The Complainant avers that the reasons cited in the said termination letter are not true, as his supervisor admitted that he did not attend all the sessions. 8 . It is averred that the Complainant's supervisor had admitted that the Complainant had tremendously improved on the areas where he had received training. 9. The Complainant also states that he had pointed out that part of his required training was not provided for, to which his supervisor admitted that the Company failed to fund it. JS 10. It is averred that the Complainant's employment was unfairly terminated as the reasons given in the letter are false and the said termination is punctuated by malice. 11. It is further averred that the Complainant's contract of employment was wrongfully and unfairly terminated as he was not availed a hearing and he disputes the allegation that he failed to meet his performance targets as his supervisor was unavailable. Answer to Complaint and Affidavit in Support 12. In answer to the Notice of Complaint, Africonnect Zambia Limited, the Respondent herein, filed its Answer on 2 nd October, 2020, which was accompanied by an Affidavit in support of even date. Wherein the Respondent confined that the Complainant, Eddie Nyimbwa, was its employee which it re-assigned later to the position of head of infrastructure NOC & Governance. It was stated that the Complainant had the basis qualification and technical knowhow to be the subject matter as expected, for the position and that any and all other direction and assistance was availed to him during the course of his employment. 13. It is stated that the Complainant's contract of employment was lawfully, correctly and fairly terminated as a result of the Complainant's poor performance, failure to meet targets and perform his duties. It is stated that the Complainant's contract of employment was terminated in accordance with the Respondent's incapacity counselling procedure which process J6 was fairly adhered to and the Complainant was granted an opportunity, training and pointers on how to improve his performance. It is further stated that the Respondent followed proper and due process as per its disciplinary and incapacity policies. That the Complainant was afforded several hearings with his line manager that culminated in a formal incapacity enquiry, which followed the Respondent's policies and rules of natural justice. 14. The Respondent herein denies the claim of any malice in the termination of the Complainant's employment contract and states that it duly followed its internal policy, process and procedure without breaching any legal provisions in arriving at the separation from employment. 15. It is stated that the Complainant was duly paid upon termination of the contract as per law requirement. 16. According to the affidavit in support of answer, which was deposed to by one Stephen Ngala, the Respondent's chief technology officer, it is averred that the deponent herein was the Complainant's supervisor. 17. It is averred that the Complainant was by reason of his poor performance put on performance dialogue process, whose aim was to assist him improve identified areas of his poor performance. 18. It is averred that the Complainant and the deponent signed on performance needing improvement and planned out how to assist the Complainant improve his work. J7 19. It is averred that the Complainant was provided with tools and aids to improve his work performance. 20. It is stated that the Complainant failed to improve his performance and thus the performance dialogue process was graduated to performance incapacity process which eventually at scheduled hearing resulted in ruling for termination of the Complainant's employment contract. 21. That the Complainant was afforded chance to be heard and present his case. Further, that the Complainant's employment was terminated according to the Respondent's internal processes and policies. 22. It is stated that the deponent has never acknowledged that as the Complainant's supervisor, he acted unprofessional, with malice. Affidavit in Reply 23. In reply to the Respondent's Answer and affidavit in support thereof, the Complainant filed an affidavit in reply on 4 th March, 2024, wherein he stated inter alia, in relation to paragraph 4 of the Respondent's affidavit in support of answer, wherein the Respondent averred that it followed its internal policies when it placed the Complainant on performance dialogue because of his poor performance. The Complainant avers that the Respondent did not comply with its internal policies as it did not avail him the tools and training, and neither did it allow him to go through the entire process of the said performance dialogue process. J8 24. The Complainant reaffirmed his position that instead of the six requisite sessions, he only had three sessions with his supervisor, which prompted him to complain to the Respondent's human resources department, that promised to intervene but that nothing was done. 25. In relation to paragraphs 6 and 7 of the Respondent's affidavit, wherein it is averred that the Complainant was provided with tools and aids to improve his work performance, and that the Complainant failed to improve his performance which resulted in the termination of the Complainant's employment. The Complainant states that the said paragraphs are not true , he avers that in addition to his supervisor not being available to complete the said six sessions, the termination of his employment was not in keeping with the Respondent's internal policies on performance management. TRIAL Evidence of the Complainant 26. At trial, the Complainant told the Court that in relation to the reliefs he is seeking before this Honourable Court, that is to say, firstly with regard to the claim for damages of unfair and unlawful termination, the Respondent did not give him tools that were needed to carry out his work, and further to that, the Respondent did not conduct the training that it promised to conduct on him for the same. J9 27. It was stated that he and the Respondent had agreed that he was to meet with his supervisor for a six-session performance improvement plan and that the said supervisor only met with him three times. He stated that according to the said performance improvement plan, there was an aspect of the Respondent training him and the purpose of the said training was to equip him with tools that were going to help him carry out his assignment. He further stated that he was informed that the Respondent did not have the funds to pay for the training and as such the training was not even done. This position is confirmed at page 7 entry 5 . 3 dated 8 th December, 2019, of the said performance improvement plan exhibited 1n the Complainant's bundle of documents, dated 15t h December, 2023 . 28. The Complainant stated that according to the said performance improvement plan, there were tools that the Respondent was supposed to avail to him, through the Respondent's stores department and that the same were not made available to him, as when he inquired from the said stores department, he was informed that the tools were not in stock, this was later established by himself and his supervisor that the same were not available. 29. It was stated that the Respondent's complaint relating to his performance was that he was not able to execute all the assignments given to him yet in order for him to execute the said assignments the Complainant needed the Respondent to avail JlO him with tools as well as to train him, and that this was agreed between himself and the Respondent prior to the performance improvement plan. 30. The Complainant stated that before he was in the department where his employment was terminated, he was working in the Respondent's enterprise and solutions department and that his performance there was okay and that his department was the best performing department in the Respondent Company which resulted in the Respondent awarding his department and that some of the members of the said department were even given individual awards. 31. The Complainant stated that the decision to move him from being head enterprise provisioning and support to head of infrastructure, NOC and governance was made by management of the Respondent, who assured him that it would help him fit in the new department and that management acknowledged that they were throwing him into the deep end but that they would provide him with tools that are needed for him to perform better. 32. The Complainant further stated that the role of head enterprise provisioning and support department which he was initially employed for, required, competency in technology, he stated that he has a BA in science and physics and an MA in science and management. He further testified that the role of head infrastructure where he was re assigned sometime 1n 2018 requires knowledge in infrastructure and radio technology and Jll fiber optic and that this role required a different qualification, that is, telecommunications and radio transmission. 33. In relation to the claim for damages for unlawful termination, the Complainant told the Court that, his termination was unlawful because the performance management system of the Respondent has to align with the labour law and must adhere to the procedure that they come with. He stated that the process that preceded the termination of his employment was that there was a performance improvement plan hearing wherein both himself and his supervisor presented their individual reports of their sessions before the chair, who then directed the duo to instead present one harmonized report. 34. The Complainant stated that the said hearing was not a disciplinary hearing but rather an ordinary session which came about after he had questioned his supervisor over his non availability for the scheduled performance improvement plan sessions, after which his supervisor scheduled the four session, which he then objected to because there were a lot of things that were not done in their third sessions. It was stated that this made the supervisor report the issue to the Respondent's human resource department, who then initiated the incapacity hearing before the whole process of the performance improvement plan sessions were concluded. 35. The Complainant testified that when the duo were given time to harmonized their reports and present one report before him, his supervisor was again unavailable during the entire period they J12 were given and to the Complainant's surprise, on the morning of the day of the final hearing, he discovered that his supervisor sent an email to the chairperson on the night before the final hearing at around 22: 00 hours, the same is shown in the said report which is exhibited in the Respondent's bundle of documents dated 19t h February, 2024, at page 38. He further stated unlike the performance improvement plan report which is at pages 5 to 7 of his bundle of documents dated 15th December, 2023, the report that was submitted solely by the supervisor had none of his input. 36. The Complainant testified that the reason the Respondent gave him for terminating his contract of employment was that of being found to have failed to make the required improvement as was agreed in the performance improvement plan process with his supervisor as well as his general work input as evidenced by the warning letter that was given to him by the Respondent. He testified that following the said warning letter, the Respondent did not conduct a disciplinary hearing concerning the same. 37. Over his claim for damages for emotional distress and mental anguish, the Complainant testified that he was confused because he could not believe that his contract was terminated in the way it was, he testified that the Respondent informed him of the termination of his contract of employment in a very short meeting, where he was also told to hand over everything that belonged to the Respondent including his work laptop. He testified that because of how sudden everything happened, it J13 impacted him emotionally, he found it difficult to accept that it had happened to him, in such a short time. He further testified that he could not think right and that at the time of the termination of his employment contract, his wife was in hospital as such the whole event left him confused and he could not stand it. 38. It was stated that the Complainant is also claiming for damages for loss of earnings, an order that he should be deemed to have been declared redundant, costs, interest and any reliefs that the Court may deem fit. Evidence of the Respondent 39. The Respondent called one witness, one Mwandu Mwelwa, the Respondent's executive head of technology that he has been with the Respondent for fifteen ( 15) years. He stated that among other positions, the Complainant also took up the position of head of solutions and service management. 40. It was testified that the Complainant's employment was terminated because of poor performance. He testified that the Complainant's previous role and the role that he occurred at the time of termination are both related to the field of Information Technology. 41. It was further testified that the procedures that followed when the Complainant was assigned the new role was that there was a performance dialogue then an incapacity hearing and there after there was an incapacity inquiry. J14 42. The witness testified that there was no condition that the Respondent would train the Complainant before being assigned to a new role. He further stated that the Complainant was given an opportunity to be heard through the counselling sessions with his line manager until a decision was made to terminate his contract of employment. 43. The witness when referred to pages 17 and 18 of the Respondent's bundle of documents testified that 1n the interactions between one Mr Stephen Ngala and the Complainant, it was recommended that the Complainant be trained but the training was not done . 44. It was testified by the witness that he was not privy to the counselling sessions of the Complainant. DECISION OF THE COURT 45. I am grateful for the submissions of both the counsel, the same are duly noted and considered. 46 . This is an action by the Complainant which is brought under section 85 A (Rule 9) of the Industrial and Labour Relations Act 1 , this this Court is graced with the jurisdiction to determine this matter. 4 7. It is common knowledge that this matter before this Honourable Court is civil in nature, and it is trite law generally in all civil matters the burden of proof from beginning to the end lies on the party alleging the facts. I am fortified by the decision of the Supreme Court in the case. of Zambia Railways Limited vs JlS Pauline S. Mundia and Brian Sialumba 1 , wherein Silomba, JS, delivered the judgment of the Court. The Court held as follows at page J 14: ''The old adage is tn1.e that he who assents a claim in a civil trial must prove on a balance of probability that the other party is liable." 48. Coming to the case in casu, the burden of proving the claims alleged by the Complainant, solely lies on the Complainant himself, and he must prove the said claims against the Respondent, on a balance of probabilities by the use of evidence, this position of the law has been pronounced in the case of Elizabeth Sokoni Mwenya vs CFB Medical Centre Limited 2 in a judgment delivered by, Kabuka, JS, the Court stated as fallows at page J24: " .. a claimant always bears the burden of establishing his/her case. This requires that the complainant proves any allegations made, by adducing evidence to support such allegation, to a required standard." 49. Having established the jurisdiction of this Honourable Court, as well as the party who shall bear the burden of proving the claims herein, I will now address my mind to the substantive issues of this matter. SO. According to the facts before me, the Complainant and the Respondent entered into a contract of employment. The said contract which is exhibited on pages 15 to 43 of the Complainant's bundle of documents states in part that the said J16 employment agreement shall commence on }st March, 2015, it states that the Respondent appointed the Complainant to the position of head enterprise and provisioning support. The same is also confirmed in the Complainant's letter of appointment, dated 22nd January, 2015. The said letter, which is on pages 1 and 2 of the Complainant's bundle of documents read in part as follows: "Dear Eddie Re: LETTER OF APPOINTMENT On behalf of Africonnect management, it is my pleasure to offer you the position of Head of Enterprise Provisioning and Support at Africonnect Zambia Ltd with effect from l st March, 2015. You will report to the Executive Head of Technology or his/her delegate, who will determine your performance target, which will form the basis of your annual renumeration review. Your confirmation will be subject to 3 month probation. You will be entitled to a basic salary of ZMW K360, 000. 00 which includes all benefits and allowances not listed in this offer letter ... " 51. I must state at this point, that a contract of employment is just like any other contract. The learned author of Employment Law in Zambia 1 describes the nature of an employment contract in the following terms, at page 28: "A contract of employment or service is an individual contract between the employer and employee that regulates their symbolic relationship. Legally it is the most important J17 document from which the rights and duties of the employer and employee are derived ... " 52. The learned author goes on to explain that a contract of employment consists of three separate elements, that is to say, express terms, implied terms by common law and terms imposed by statute. The learned author further states at the same page 28 as follows: "Any contract whether written or oral will consist of at least three separate elements: a. Any express terms which may be agreed upon by the employer and the employee. b. Terms which may be implied by common law such as implied duties of good faith and confidentiality which every employee owes to his employer; the implied undertaking by an employee holding himself out as being skilled, that he will exercise skill or competence, the implied term that the employer will pay reasonable renumeration for services rendered; the implied right by either party to terminate the contract of employment on notice. c. Terms that are imposed by statute." 53. Therefore, in deciding whether or not, the Complainant is entitled to the claims and/ or reliefs that he is seeking before this Honourable Court, I will look at all the three above listed category of terms that applies to a contract of employment. J18 54. Before I start determining each individual claim of the Complainant herein, I must state that it is trite law that where there is a breach of a contract by one party, there is an infringement of a contractual right of the other party to the contract. It is also trite that a breach of contract gives rise to action for damages by the party who has been harmed by the said breach. 55. It should however be noted that there are generally three main remedies that are available to a person that has suffered harm from a breach of a contract where there are a party. The learned authors of Atkin's Court Forms, 2 , state as follows at pages 63 to 64, paragraphs 50, 51 and 52: "There are basically three heads of remedies available for breach of contract; these are damages and interest thereon, quantum meruit and specific performance ... The remedy sought for breach of contract is usually damages; the breach entitles the other party to general damages only, unless special damages are pleaded and proved. The object of damages is to put the claimant, so far as possible, into the same situation as if the contract had been performed... The object of damages is always to compensate the claimant, not to punish the defendant. Where two parties made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may be fairly and reasonably be considered to have arisen naturally, that is, according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time when they made the contract, as the possible result of the breach." 56. From the above extract of Atkin's Court Forms, it is important to note that, the existence of a breach of contract entitles the other party to general damages only. However, where the other party makes a claim for special damages, they can only be entitled to the same, where they specifically plead the said special damages and prove them. The Supreme Court of Zambia put it this way, in the case of The Attorney General vs D. G. Mpundu 3 , wherein, Silungwe, CJ (as he then was) delivered the judgment of the Court. It was stated that: " ... McGregor on Damages, 13th Edition, under the heading "Terminology", discusses in paragraph 16, 17, 18 and 19, the terms "general" and "special" damages. He states that the first meaning of general and special damage concerns liability (paragraph 16) that the second meaning of these terms concerns proof (paragraph 17) and that the third meaning concerns pleading (paragraph 19). He says, inter alia, under paragraph 19: "The distinction here is put thus by Lord Dunedin in The Susquehanna (5): 'If there be, any special damage which is attributed to the wrongful note, that special damage must be averred and proved, and, if proved, will be awarded. If the damage be general, then it J20 must be averred that such damage has been suffered, but the quantification is jury question.' And in Stroms Brutes Aktie Bolag v Hutchinson (6) Lord MacNaghten, ... , said: 'General damages' ... are such as the law will presume to be the direct natural or probable consequence of the act complained of. 'Special damages,' on the other hand, are such as the law will not infer from the nature of the act. They do not follow in ordinary course. They are exceptional their character and therefore, they must be claimed specially and proved strictly.' Here, pleading, general damage is wider than its second meaning, for it includes losses the amount of which the law will not presume since this is capable of calculations, and therefore evidence to assist the court in doing the calculation must be given if the plaintiff wishes to obtain substantial damages on the general head. " Those principles are reflected in Odgers' Principles of Pleading and Practice, 21st Edition at page 164, as follows: "As to the allegation of damage, the distinction between special and general damage must be carefully observed. General damage such as the law will presume to be the natural or probable consequence of the defendant's act need not be specifically pleaded. It arises by inference of law and need not, therefore, be proved by evidence, and may be averred generally. In some cases however, part of J21 the general damages which it is sought to recover may have resulted from the wrong complained of in an unexpected though foreseeable way, in which case particulars should be given so as to avoid surprise at the trial and to enable your opponent to consider making a payment into court. Special damage, on the other hand, is such loss as the law will not presume to be the consequence of the defendant's act, but which depends in part, at least, on the special circumstances of the case. It must therefore always be explicitly claimed on the pleadings and at the trial it must be proved by evidence both that the loss was incurred and that it was the direct result of the defendant's conduct. A mere expectation or apprehension of loss is not sufficient. And no damages can be recovered for a loss actually sustained, unless it is either the natural or probable consequence of the defendant's act, or such a consequence as he in fact contemplated or could reasonably have foreseen when he so acted. All other damage is held 'remote'." ... . In other words, usual, ordinary or general damages may be generally pleaded; whereas, unusual or special damages may not, as these must be specifically pleaded in a statement of claim (or where necessary, in a counter claim) and must be proved." J22 57. The Supreme Court in the case of Finance Bank Zambia Limited and Rajan Mahtani vs Simataa Simataa 4 , a judgment delivered by Malila, JS, has put it this way, at pages J23 and J24: "A violation of a settlement agreement, being a breach of contract, entitled a party who believes that he or she has been harmed by such breach to bring an action for damages for the harm he or she allegedly suffered from the breach. It is important to recollect the principle of the law that where there is a right, there is a remedy. A right would be of little value if there was no remedy available in the event of its infringement. A breach of contract by one party necessarily entails an infringement of a contractual right of the other party. A remedy is given as a means of vindicating the right, or as pecuniary compensation in lieu of performance. A breach of contract usually, but not always, causes loss. In either case, there is a right of action against the contract-breaker." 58. Therefore, where there is a breach of contract, a contractual right is infringed and the right holder in the said contract is entitled to commence an action against the contract breaker for either a claim for damages and interest, specific performance and/ or quantum meruit. 59. It is also trite that in cases of breach of contract in a contract of employment, the general measure of awarding damages is the notice period stated in the contract of employment or such J23 reasonable period as the Court deems fit unless there are special circumstances that warrant the Court to grant damages for other such period. I am fortified by the decision of the Supreme Court in the case of, Eston Banda and Edward Dalitso Zulu vs the Attorney General 5 , in a judgment delivered by Kabuka, JS. The Court held as follows at page J25: "As we have again held previously, the general measure of damages for such breach where there is nothing extra ordinary that would take a case out of the realm of Kamayoyo, is an amount equivalent to the notice period provided in the contract or in the absence of such provision, a reasonable period." 60. In the case in casu, in determining the claims of the Complainant, this Court is not only establishing whether or not the Respondent h erein did breach the contract of employment between itself and the Respondent but also whether or not the Complainant is entitled to the remedies of damages and interest there on, as well as the measure of damages to be awarded to the Complainant where it is found that he is entitled to damages . CLAIM A Damages for unfair, unlawful and/ or wrongful termination 61. It is trite law that where an employer breaches a contract of employment by terminating the same before the expiration period, an employee can commence an action for a claim for J24 damages which may fall either under a claim for unfair, unlawful or wrongful termination. In the case of Care International Zambia Limited vs Misheck Tembo 6 , wherein Musonda, JS, delivered the judgment of the Court. It was stated as follows at page J25, the Supreme Court held that: "We have also said in numerous cases that the mode of an employee's exitfrom employment will invariably determine what, if at all, relief they would be entitled to." 62. The Supreme Court, in the case of Eston Banda and Edward Dalisto Zulu vs the Attorney-General Appeal No. 42 of 20167, wherein Kabuka, JS delivered the judgment, the Court stated as follows at page J22 paragraph 49: "There are only two broad categories for dismissal by an employer of an employee, it is either wrongful or unfair. 'Wrongful' refers to a dismissal in breach of a relevant term embodied in a contract of employment, which relates to the expiration of the term for which the employee is engaged; whilst 'unfair', as stated at paragraph 757 of Halsbury's Laws of England, refers to a dismissal in breach of a statutory provision, where an employee has a statutory rig ht not to be dismissed." 63 . The learned author, W. S. Mwenda in her book Employment Law in Zambia: Cases and Materials, (2011), revised edition, UNZA Press1, Zambia at pages 135 and 136 states as follows in relation to what amounts to an unfair dismissal: J25 64. "Unlike wrongful dismissal, unfair dismissal is a creation of statute. Its roots can be traced to 1971 in England where it came into being with the objective of promoting fair labour practices, by preventing employees from terminating contracts of employment on specified grounds. Unlike wrongful dismissal, which looks at the form, unfair dismissal looks at the merits of the dismissal and the form is only supportive of the whole merits for the dismissal. In other words, under unfair dismissal, the courts will look at the reasons for the dismissal to determine whether the dismissal was justified or not." 65. Having looked at the above distinction between wrongful termination and unfair termination, I will now proceed to deal with the individual claims of the types of dismissals. (i) Unfair dismissal 66. From the above authorities, 1n the simplest terms, unfair dismissal is a termination of an employee's contract of employment by an employer without fair hearing or based on invalid reasons or no reason at all or based on unproven allegations. 67. It is trite law that failure by an employer to follow a procedure prescribed in the code, or statute, or contract of employment when dismissing an employee amounts to unfair dismissal. In the English case of West Midlands Cooperative Society vs J26 Tipton 7 herein Lord Bridge quoting from a judgment by Viscount Dillard in W. Davis & Sons vs Atkins said: "Failure to follow a procedure prescribed in the code may lead to the conclusion that a dismissal was unfair." 68. The facts before this Honourable Court are that according to the notice of separation dated 16th March, 2020 of the Complainant, which is exhibited at page 8 of the Complainant's bundle of documents, the said notice reads: "Dear Eddie NOTICE OF EMOLOYMENT SEPARATION Reference is made to the incapacity enquiry held on 24th February 2020 in regards to your incapacity counselling sessions that were instituted on 10th April 2019 between you and your line manager. I regret to inform you that the outcome of the enquiry on 24th February is recommended to terminate your employment following your failure to improve your performance in accordance with the agreed incapacity counselling objectives set out and agreed by yourself. In this regard, kindly receive this letter as notice to terminate your employment contract. Your last working day will therefore be 15th April 2020." 69. Further, in the Respondent's bundle of documents dated 19th February, 2024 at page 44 of the same, is contained the outcome of the said incapacity discussions, which reads in part: J27 "NAME OF EMPLOYEE: Eddie Nyimbwa JOB TTLE: Head of Infrastructure, NOC and Governance DATE OF INCAPACITY DISCUSSION: 24th February 2020 The incapacity process was followed and you have been found to have failed to make the required improvements as was agreed in the PIP process with your supervisor and also your general work output is evidenced by a recent warning letter issue ... After taking into account all relevant information, the Company has decided to terminate your services You are required to get a letter of termination from HR and surrender all Company assets in your possession accordingly NOTICE GIVEN BY: Capacity: Chairperson of the Enquiry Committee ... " 70. According to the Complainants evidence, including his letter of appointment, exhibited at pages 1 to 2 of his bundle of documents , as well as the contract of employment, exhibited at pages 15 to 43 of also of his bundle of documents, the Complainant was employed by the Respondent to the position of head enterprise provisioning and support. The said contract of employment, under clause 5 on the responsibilities and duties, the Complainant was to report to the executive head of technology of the Respondent or his delegate and he acknowledged therein that the nature of his work, duties and J28 responsibilities as well as his reporting structure may change from time to time within the ambit of his appointment. 71. According to the testimony of the Complainant, while he was heading the enterprise provisioning and support department, he was given a meritorious award of excellence and that some individual members of his department were also awarded. 72. The Complainant also testified that the Respondent, through management decided to re-assign him to the position head of infrastructure, NOC and Governance, in a letter of re assignment effective 1st July, 2016, this is evidenced through a letter of re-assignment at pages 3 and 4 of the Complainants bundle of documents. According to the evidence before me, the Respondent agreed to train the Complainant in this new assignment role and further to this, there were six scheduled performance improvement plan sessions that were given to the Complainant by the Respondent, which sessions were to be conducted by his supervisor. The purpose of the said sessions was to ensure that the Complainant is equipped with skills to adapt in his new role . The Complainant further testified that he only had three sessions with his supervisor, and this was because his supervisor was unavailable, and further the Respondent did not provide him with the tools he needed to carry out the work, he was informed that the Respondent did not have the requisite tools in its stores department and he was further informed that the Respondent did not have funds to facilitate his training, which it promised him in order for him to have J29 competent skills to discharge his new role, this fact was confirmed by the Respondent in its knowledge gap mitigation at page 22 of its bundle of documents, in the column at 5.3 wherein it stated that the excel training was not yet funded by the Respondent as of 12th August 2019 as such the training was undone. 73. It is trite law that by virtue of the existence of a contract of employment, there are implied terms that automatically apply, these implied common law terms include the employee's duty to exercise reasonable skill and competence in exercising his or her duties in the course of the employment. Where an employee fails to discharge this duty, the employer has a right to dismiss him or her from employment summarily, I am fortified by the provisions of section 50 (1) (c) of the Employment Code Act 2 which provides as follows: "An employer shall not dismiss an employee summarily except in the following circumstances: (c) for lack of skill which the employee, expressly or impliedly, is warranted to possess;" 74. From the testimony of the Complainant before me , I am satisfied that he did possess reasonable skill and competence for the position that the Respondent had initially employed in and he also exercised reasonable skill and competence in the discharge of his duties as head of enterprise provisioning and support, and while he was heading the said department, where he was given a meritorious award of excellence. Further, the Complainant in J30 his testimony told the Court that the said position required competence in technology, he testified that he has a BA in physics, MA in science and in management. 75. However, it has been testified that at the time of the termination of his contract of employment, the Complainant was re-assigned to the position of head of infrastructure, NOC and governance , the Complainant testified at trial that the said position required knowledge in infrastructure, that is to say, radio technology and fiber optic, he testified that the said role required a different qualification. That is, telecoms and radio transmission. He testified that in his earlier position he did not deal with telecoms and radio transmission. He further testified that he had informed the Respondent that he was not qualified for the new role that he was re-assigned to. The undisputed testimony of the Complainant is that the Respondent promised to not only provide him with training for the new role but also was supposed to provide him with the necessary tools as well as the performance improvement plan sessions to equip him with the requisite skill to discharge his duties as head of infrastructure, NOC and governance. It is trite law that side by side with the common law duty of the employee to exercise reasonable care and skill in discharging his or her duties, there are also some duties that are imposed by the common law on the Complainant. Some of these duties include the duty of employing competent staff, to provide for tools as well as the duty of care. I am fortified by the decision in the case of Fred Kapya Sinkala vs Bn.tce J31 Mining Limited, Konkola Copper Mines PLC and Hellen Bruce 8 , the Court spelled out some of these common law duties at page Jl4 as follows: "The employer's duties derived from common law include provision of competent staff (staff should be selected carefully, have training to meet the requirements of their job, and be supervised where necessary; provision of safety measures at place of work, proper plant, equipment and appliances {failure to provide adequate safety equipment may result in liability for negligence)" 76. From the above authorities and the evidence of both the Complainant and Respondent, I am satisfied that the Respondent having re-assigned the Complainant to a new role which he was not adequately qualified for, it had a duty to ensure that the Complainant gets adequate training for the said position. Further, notwithstanding the Respondent's promise to the Complainant of providing him with an excel training as well as performance improvement plan sessions in order to equip him with the requisite skills to discharge his new functions, the Respondent did not provide the excel training, neither did he give the Complainant all the six sessions for the performance improvement plan sessions nor did it give him the requisite tools to conduct his duties. I find that the Respondent failed in its duties, thereby breaching the contract of employment. Therefore, the Respondent's reason to terminate the contract of employment is simply a move by it to shift its failures on the J32 Complainant, which resulted in it terminating the contract of employment and causing the Complainant to suffer from loss of earnings. The reason for dismissal therefore cannot stand. 77. From the above analysis, I find that the failure is on the Respondent and therefore, the termination of the contract of employment was unfair. 78. The Complainant therefore succeeds in his claim for damages for unfair dismissal. 79. In this jurisdiction, the general position of the law is that the general measure of damages for wrongful and unfair termination of the contract of employment, is an amount equivalent to the notice period provided in the contract of employment or in the absence of such provision, a reasonable period. However, 1n exceptional circumstances, the Court has the jurisdiction to order an amount of damages exceeding the said notice period. I am fortified by the decision of the Supreme Court in the case of the Eston Banda and Edward Dalitso Zulu 5 case, the Court held as follows at page J25: "As we have again held previously, the general measure of damages for such breach where there is nothing extra ordinary that would take a case out of the realm of Kamayoyo, is an amount equivalent to the notice period provided in the contract or in the absence of such provision, a reasonable period." J33 80. The question, now remains whether or not there is something extraordinary about the case in casu that will justify an order of damages, exceeding the notice period of one month notice which is provided for in the Complainant's employment contract? 81. The Courts in this jurisdiction have in a number of exceptional circumstances departed from the ordinary measure of damages for breach of contract for a claim for wrongful dismissal, and awarded the victims amounts of damages higher than the notice period, for instance, in a case where there is a loss of a job in a higher position and the employee is not likely to get a future job elsewhere because of scarcity of jobs, where the employer's treatment to the employee is harsh and inhuman or where there is an abrupt loss of employment. For instance, in the case of Chilanga Cement PLC vs Kasote Singogo 9 , in a judgment delivered by Mambilima, DCJ (as she then was), the Court stated as follows at pages J33 and J34 respectively: "We are alive to the fact in the CHITOMFWA case, the rationale for awarding two years salary as damages was due to the Appellant's grim future job prospects. We are of the view that when each case is considered on its own merit, future job prospects may not be the only consideration for enhanced damages in wrongful or unlawful dismissals. As we have stated above, it would appear that in this case, the Respondent was compensated for 'abntpt loss of a job.' We are not inclined to interfere with this award because we wish to underline the indignation we share with the lower court in the harsh and inhuman manner in which the Respondent was treated. Like the lower Court, we do not believe the Appellant's story that the event at TAP had nothing to do with the Respondent's alleged redundancy. If anything, the Appellant was completely oblivious to the Respondent's feelings on the alleged racist slurs in his encounter with Mr. SRINIVASAN. Instead of following up the matter with the said Mr. SRINIVASAN, the Appellants looked for an excuse to terminate the Respondent's employment. Hapless and weak employees like the Respondent need to be protected from the whims and caprices of powerful elements in large conglomerates such as the Appellant, who might be tempted to use their positions to antagonize employees." 82. In the case in casu, the Respondent terminated the contract of employment of the Complainant by shifting its failures on the Complainant, the Respondent's failure to discharge its common law duty, as well as its failure to honour its promise to train the Complainant so that he can have the requisite skills and competent to work in a position, must be borne by itself and it must suffer the consequences of the said failures. The actions of the Respondent amount to gross misbehaviour and the Complainant, like any other employee must be protected from such whims and caprices of powerful employers such as the J35 Respondent who use and in future might be tempted to use their positions to antagonize their employers. 83. From this reason and in support of the above cited authority, I hereby order that the Complainant be paid damages equivalent to 3 (three) years' salary, with all other perks. for wrongful termination of employment together with an interest at the short-term bank deposit rate from the date of the notice of complaint to the date of judgment and thereafter, at the current lending rate as determined by the Bank of Zambia from the date of judgment until full payment. Unlawful Dismissal 84. Unlawful dismissal is said to be a dismissal from employment which is effected in violation of the law, or a statute. In order for the Complainant to succeed on a claim of unlawful dismissal, there must be proof of the law allegedly breached. 85. Section 52 of the Employment Code Act 2 provides for termination of contract of employment, section 52 ( 1), (2) and (3) provides as follows: "(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 J36 (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 conduct of the employee or based on the operational requirements of the undertaking. (3) An employer shall not terminate the contract of employment of an employee for reasons related to an employee's conduct or performance, before the employee is accorded an opportunity to be heard." 86. The facts and evidence in the case in casu, the reason that the Respondent gave the Complainant for termination of his contract of employment, according to the notice of employment separation dated 16th March, 2020 was that the Complainant's termination of employment was because of his failure to improve his performance. As already stated above, the Complainant was re-assigned to a new department and position, which he was not skilled for or qualified for. It is not in dispute that he made it known to the Respondent that he had no adequate skills for the new role. It is also not in dispute that the Respondent promised to train him and also provide tools for him to be competent in the new position which promises the Respondent did not fulfil thereby leaving the Complainant stranded in the discharge of his duties. The said reason is simply a way of the Respondent shifting its responsibilities and liabilities onto the Complainant, for this reason, I find that the Respondent termination the employment contract of the Complainant outside the confines of J37 the above cited prov1s10ns of the law. Therefore, the Complainant's claim for damages for unlawful dismissal succeeds and I accordingly award the Complainant damages of one ( 1) year salary with all other pecks. This award shall be with an interest at the short-term bank deposit rate from the date of the notice of complaint to the date of judgment and thereafter, at the current lending rate as determined by the Bank of Zambia from the date of judgment until full payment. Wrongful dismissal 87. The learned authors of Halsbury's Laws of England 3 at page 414 paragraph 451 the meaning of wrongful dismissal has been stated in the following terms: "A wrongful dismissal is a dismissal in breach of the relevant provision in the contract of employment relating to the expiration of the term for which the employee is engaged. To entitle the employee to sue for damages, two conditions must normally be fulfilled, namely: (1) The employee must have been engaged for a fixed period or for a period terminable by notice and dismissed either before the expiration of that fixed period or without the requisite notice, as the case may be; and (2) His dismissal must have been wrongful, that is to say without sufficient cause to permit his employer to dismiss him summarily." J38 88. The Complainant herein was employed on a permanent and pensionable basis, during the course of his employment as already stated above the Respondent re-assigned him to a different department under a different role requiring a different and new set of skills which it promised to train him. It has been established that the Respondent failed to provide the requisite training as well as working skills for the Complainant to discharge his new assignment. 89. It is common cause that there 1s no wrong doing that the Complainant ever admitted, and further, the incapacity counselling sessions which were chaired by a chairman from the Respondent company, were instituted after he complained at human resource · of the absence of his supervisor for the scheduled performance improvement sessions. The Complainant testified that he was never charged for any offence and neither was there a disciplinary hearing that was instituted to give the Complainant an opportunity to be heard. 90. The Supreme Court in the case of, National Breweries Limited vs Phillip Mwenya 10 wherein Mambilima, JS, delivered the judgment of the Court. The Court held as follows: "In our view, however, the wrongdoing was established. The respondent admitted to having been on a final warning and the offence in question is one for which the respondent could be dismissed. As we held ·in the case of Zambia National Provident Fund v Y. N. Chirwa where an employee has committed an offence for which he can be J39 dismissed, no injustice arises for failure to comply with the procedure, in the contract and such employee has no claim on the ground for wrongful dismiss ... " 91. From the above facts and authorities, I therefore find that there being no offence that the Complainant was charged with nor did the Respondent convene a disciplinary hearing meeting to address any fault that the Respondent allege was committed by the Complainant. I find that the Complainant's claim for wrongful termination is successful and I award the Complainant one ( 1) year salary with all other pecks as damages for the wrongful termination of his contract of employment. This award shall be with an interest at the short-term bank deposit rate from the date of the notice of complaint to the date of judgment and thereafter, at the current lending rate as determined by the Bank of Zambia from the date of judgment until full payment. CLAIM B Damages for emotional distress and mental anguish arising from the termination. 92. It is trite law that damages for emotional distress and mental anguish may be recovered in an action for breach of contract. Further, it is trite law that damages for emotional distress and mental anguish are general damages as such they may be generally pleaded. I am fortified by the decision of the Supreme Court in the case of The Attorney General vs D. G. Mpundu 3, J40 Silungwe, CJ (as he then was) delivered the judgment of the case. it was held that "We are at large to consider whether the respondent is entitled to compensation under general damages for mental distress and inconvenience. Addis v Gramophone Company Limited, ( 11) was for many years authority to bar, for instance, a servant wrongfully dismissed from his employment, for recovering damages for injured feelings or loss sustained from the fact that the dismissal itself makes it more difficult for him to obtain fresh employment. This case has since been qualified and there Is now a chain of authorities to support the recovery of damages for mental distress or inconvenience, for example, damages for frustration, annoyance and disappointment could be recovered in an action/or breach of contract. In McCall v Abelesz and Another, (12), it was held (per Lord Denning, M. R.) at page 731 that: "It is now settled that the court can give damages for the mental upset and distress caused by the defendant's conduct in breach of contract. " In this case, it is quite clear that the respondent did suffer some mental distress and inconvenience as or result of the wrongful suspension for a prolonged period of time brought about by the appellant. In our opinion, the correct measure of damages to which the respondent was entitled, taking into account the fact that the breach of contract in J41 his case did not amount to termination of contract, is K2,000.00n." 93. In the case in casu, the manner in which the Complainant's employment contract was terminated by the Respondent was abrupt and shocking. The Complainant was not charged of any wrong doing, nor was there a disciplinary hearing instituted for any offence against himself. While the Complainant initiated the intervention of the Respondent, to ensure that it trains him and equips him with the skills to function in a new role where it placed him, he was met with termination of his employment and upon receipt of the notice of separation from employment, he was informed to surrender his work laptop and all other property belonging to the Respondent. The Complainant testified that on the eventful day, his wife was actually in hospital. 94. Apart from the Complainant's own testimony I have seen no proof of emotional distress and mental anguish such as medical evidence. This claim therefore , fails . CLAIM C Damages for loss of earnings 95. It is trite law that a claim for damages for loss of earnings is a plea for special damages . The Supreme Court, in the case of Orman Corrigan (Suing by his next friend) Albert John Corrigan vs Tiger Limited & Abdi Ju.male 11 , in a judgment delivered by Cullinan, JS, the Court stated as follows: J42 ''I come then to consider the award in respect of loss of earnings. No award in respect of loss of earnings up to the date of the trial in 1976 was made, as the appellant/ailed to plead such loss quantified as special damages." 96. From the above cited authority, in order for the Complainant to succeed with this claim, he needed not only specifically plead the said claim but also adduce evidence of the same . This was also seen in the Attorney General vs D. G. Mpundu 3 case where it held as follows on a claim for loss of earnings: "Where there are, for instance, special damages claimed, those, as we have earlier pointed out, should be specifically pleaded and proved." 97. The Com plain ant in this case has just pleaded the claim for loss of earning, however, there is no evidence from the Complainant to prove the said claim. I therefore find that the claim for damages for loss of earnings fails accordingly. CLAIM D An order that the Complainant be deemed to have been declared redundant 98. It is trite law in this jurisdiction that where an employer varies the conditions of service of an employee without his or her consent, the contract of employment terminates and the employee will be rendered redundant. The Supreme Court in the case of Mike Musonda Kabwe vs B. P Zambia Limited 12, in a J43 judgment delivered by Muzyamba, JS, the Court held as follows at page JlO: "If an emp layer varies a basic or basic conditions of service without the consent of the employee then the contract of employment terminates and the employee is deemed to have been declared redundant on the date of such variation and must get a redundancy payment if the conditions of service do provide for such payment. We would add here that if the conditions of service provide for early retirement and not redundancy then the employee should be deemed to be on early retirement .... The fact that the appellant continued working after his salary was reduced cannot be said that he accepted the new condition." 99. Further, section 55 of the Employment Code Act 2 provides for termination by redundancy, sections 55 (1) (c) and 55 (3) states as follows: "55 (1) (c) 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 - (c) an adverse alteration of the employee's conditions of service which the employee has not consented to. 55 (3) Subject to section 57, an employee whose contract of employment has been terminated by reason of redundancy shall- (a) unless better terms are agreed between the employer and the employee concerned or the employee's J44 representatives, be entitled to a minimum redundancy payment of not less than two months' pay for every year served and other benefits the employee is entitled to as compensation for loss of employment; and (b) be paid the redundancy payment not later than the last day of duty of the employee, except that where an employer is unable to pay the redundancy payment on the last day of duty of the employee, the employer shall continue to pay the employee full wages until the redundancy package is paid." 100. The evidence before me is that according to the Complainant's employment contract at pages 15 to 43 of his bundle of documents, he was employed by the Respondent to the position of head enterprise provisioning and support, the contract further provides that he was to report to the execute head of technology or his delegate and he further acknowledged that the nature of his work, duties and responsibilities as well as reporting structure would change from time to time within the ambit of his appointment. He testified that the said position requires competence in technology, he testified that he has a BA in science and physics and an MA in science and management. 101. He testified that sometime in 2018, the Respondent re assigned him to a new position being head of infrastructure NOC and Governance, that required a new set of skills and qualifications and that further the Respondent promised to train him for the new role and also to provide him with tools for labour. J45 102. It must be noted that varying the basic conditions of service of an employee by an employer is not limited to salaries only but also includes transfer of job descriptions and/ or positions, for instance, in the case of Victor Chimuka Siamuzyulu vs Computicket Zambia Limited and Shoprite (Africa Supermarkets Limited) 13, the Court held as follows at page J19: "Where the employee proves that the alternative position offered him is not suitable and he declines to take up, a redundancy situation occurs." 103. From the facts before me, it is not in dispute that the Complainant was transferred to another position. The evidence of the Complainant's employment contract under paragraph 20, provides as fallows: "No addition to or variation, consensual cancellation or novation of this agreement and no waiver of any right arising from this agreement or its breach or termination shall be of any force or effect, unless reduced to writing and signed by all the parties or their duly authorized representatives." 104. From the above clause any variation to the said contract must be in writing and signed by both the Complainant and the Respondent. The reassignment from the position stated therein amounts to a variation, there is no evidence of any written J46 document signed by both the Complainant and the Respondent agreeing or consent to the re assignment to the position of head of infrastructure NOC and Governance. 105. I must state at this point that the two job positions are essentially different not just in title but in responsibilities and duties. I am fortified by the case of North Riding Garage Limited vs Butterwich 14, where it was stated that: "where, however, the work functions remained the same and the employee is unable and unwilling to perform the new task, his inability will not constitute dismissal for redundancy ... " 106. Thus, notwithstanding the fact that he continued working in the said new role amounts to redundancy. The claim for the Complainant be declared redundant is successful. 107. The Complainant's contract of employment does not reveal any clause on redundancy, I therefore seek recourse to the Employment Code Act, and I find that the Complainant's case herein is within the perimeters of section 55 (1) (c ) of the Employment Code Act, as such according to section 53 of the said Act 2 I order that the Complainant be given a payment of two (2) months pay for every year served and other benefits that he is entitled to as compensation for the loss of employment. CLAIM E Costs J47 108. It is trite law, that costs are at the discretion of the Court. Ordinarily, this Court does not award costs in favour of one party. However, Rule 44 of the Industrial Relations Court Rules gives an exception where one party has been guilty of unreasonable delay, or of taking improper, vexatious or unnecessary steps in any proceedings, or of other unreasonable conduct. I am of the view that the circumstances of this case do not warrant the grant of costs as envisaged in Rule 44. 109. Therefore, I order that each party shall bear their own costs. 110. Leave for appeal is hereby granted. Delivered at Lusaka this 11 th day of May, 2025 . • t t t t t t t O t t t I t to t O t t t t t t t t t t t t t t t t t t t t t t t t t t t I t t t t t t J48