Elijah Mukela Akangulubeta v Chinamanongo Lodge (2021/HPIR/60) [2024] ZMHC 250 (30 October 2024)

2021 / HPIR/ 60 IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: ELIJAH MUKELA AKANGULUBETA AND CHINAMANONGO LODGE RESPONDENT CORAM HON. E. MWANSA Esq JUDGE APPEARANCES: For the Complainant : Ms. C. Banda Kainga - Messrs Legal Aid Board For the Respondents : Not Present JUDGMENT Authorities Referred to: Statutes 1. Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia. 2. The Employment Code Act No .. 3 of 2019. Cases 1. Wilson Masauso Zulu -V-Avondale Housing Project Limited (1982) ZR 172. Jl 2 . Robert Simeza and 3 Others -V- Elizabeth Mzyeche (2011) Volume 3 , 290. 1.0 INTRODUCTION 1.1. This matter was commenced on 5 th February, 2021. It has been before two oth er Judges before me. 1.2. The Complainant seeks the following relief: 1.2.1. An Order that the dismissal dated 8 th November, 2018 was wrongful and unfair; 1.2.2. Damages for wrongful and unfair dismissal; 1.2.3. Payment of leave days from January, 2007 to March, 2019; 1.2.4. Payment of benefits from January, 2007 to March, 2019; 1.2.5. Payment of salary arrears as follows: 1.2.5.1. 1st May, 2014, 1 year's salary arrears in the sum of K6,600.00. 1.2.5.2. 1st May, 2015 1 year's salary arrears in the sum of K6,600.00. 1.2.5.3 . 1st May, 20 16 , 1 year's salary arrears in the sum of K6,600.00. J2 1.2.5.4 . 1st May, 2017, 1 year's salary arrears in the sum of K6,000.00. 1.2.5.5. 1st May, 2018, 1 year's salary arrears in the sum of K600 .00. 1.2.5.6. l st January, 2019 to March, 2019 3 months' salary arrears in the sum of Kl,650.00. 1.2. 6. Interest; 1.2.7. Costs and any other benefits the Court may Order. 2.0 COMPLAINANT'S TESTIMONY 2. 1. When the matter was returned for hearing on 28th August, 2024, the Complainant was present with Counsel. The Respondent was not before Court. 2.2. Having satisfied myself that service upon the Respondent was proper and effective as demonstrated by the Affidavit of Service, I proceeded to hear the Complainant who was the only witness called. 2.2.1. Where a party with Notice of Proceedings has disregarded the opportunity of appearing and participating in the trial, he will normally be bound by the decision. No procedural injustice has therefore b een occasioned because the Respondent J3 1n casu, who was aware of the proceedings as evidenced by the Affidavit of Service, decided not to give testimony at trial2 • 2 .3. And in his testimony, he totally relied on his Affidavit in Support of the Notice of Complaint. 2. 4 . So the evidence relied on here is only that which is in the Affidavit in Support of the Notice of Complaint. It is not even tested by way of cross examination. And the Affidavit itself, is brief. 2.5. Further, Counsel for the their wish to file submissions on or before the 11 th September, 2024. As I write this Judgment, the submissions are not before me. 2.6. The Complainant, by his Affidavit evidence, stated that he was employed verbally by the Respondent on 1st May, 2007 as a security guard and later as office assistant. 2 .7. To show for this employment, there is exhibited or picture, in black and white of the Complainant 1n an alleged uniform for the Respondent, as well as an identify card on 'GKl '. 2.8. He deposed that he worked a total of twelve (12) years, J4 from May, 2007 to March, 2019 when the Respondent in 2013 stopped paying him salaries. 2.9. And that in March, 2019, he was verbally dismissed without justifiable reasons . 2 . 10. Further that he was not paid any leave days for the whole period. 2 . 11. And that the Respondent did not also pay him five (05) years three (03) months salary arrears from 1st May, 2014 to 1st May, 2018 after in dismissed me from employment. (Paragraph 8 of Affidavit). 3.0 RESPONDENT'S CASE 3.1 . The Respondent did not enter any appearance in anyway. They did not respondent to an Order to File Answer. So there is no Answer. They did not appear for Mediation as the Report from the Mediator States so. They have not been in Court throughout these proceedings from 2019 to date 2024. J S 4.3. PAYMENT OF LEAVE DAYS. 4.3.1. Having been satisfied that there was an employee/ employer relationship, followed by an ascertion that he never went on leave from January, 2007 to March, 2019, I tend to believe that leave should have accrued to him. Unfortunately we will never know if he took some days off in the absence of a response from the Respondent2. 4.3.2. I will thus award leave at 2 days per month from January, 2007 to March, 2019. 4.4. PAYMENT OF BENEFITS 4.4 . 1. Again, there is clearly absence of any mention, in the evidence. Of any form of benefits due to the Complainant. 4.4.2. I said much earlier that this employment was verbal. Now the Complainant has not even said anything about the details of this verbal contract of employment. 4.4.3. Like I said, he who alleges must prove, the proof of what type of terminal benefits were agreed upon is absent. I have not been alerted to any form of J7 terminal benefits contemplated here. This relief fails . 4.5. PAYMENT OF SALARY ARREARS 4. 5. 1. I have received before me, a detail of the salaries which were not paid. Here I am satisfied, in the absence of any other evidence to the contrary, that these arrears are due. I therefore award these arrears in the total sum of K33,450.00. 4.6. THE TOTAL OF THESE TWO AWARDS (Leave days and arrears of salaries) will then be subject to interest at the Bank of Zambia short term deposit rate from date of Notice of Complaint being 15th August, 2019 to date of Judgment - 30th October, 2024 . And thereafter at 6% to date of complete settlement. 5.0 CONCLUSION 5.1. The only reliefs awarded are leave days, 294 days and salary arrears at K33 ,450.00. And interest upon these sums. 5.2. All other relief soughts have failed . 5.3. Matter referred to Registrar for assessment of what is due. J 8 5.4. I make no Order as to costs. IRA. Dated at Lusaka this ......... day of .... .. ....... ....... ...... .. , 2024 ......--: ------- ·-... " ·c, .· ' -- - - - ·· 3 0 ocr --- -< 2021 1✓r-r ..• f / _, vC•8(;·:--: .... =--: -~ ______ •• I ·. ·-. LUS/,., •••.•••••••.•••.•...........•... E. MWANSA HIGH COURT JUDG J9