Esau Shamalambo v China Zambia Friendship Farm Ltd (2023/HPIR/596) [2024] ZMHC 243 (6 August 2024)

IN THE HIGH COURT FOR ZAMBIA 2023 / HPIR/ 596 AT THE PRINCIPAL REGISTRY IJ\TDUSTRJAL RELATIONS DIVISION ~ HOLDEN AT LUSAKA BETWEEN: I l ESAU SHAMALAMBO AND -:e , f t '~ -2~ . r-'' ' ~ l C 6 LI '"' ~-". I -?l~. ~ ' 7 I. _, vf I I I COMPLAINANT CHINA ZAMBIA FRIENDSHIP FARM LTD RESPONDENT Coram: Chigali Mikalile, J this 6 th day of August, 2024 For the Complrunant: In person ftor the Resp ondent: • Co mpany officer JUDGlVI F:NT --------- - - - . - ---- ·- - - - - - - -- - - - - 1 egisla tion referred lo l. The Employmen L Ael, Chapter 268 Cases referred Lo: 1. Khalid Mohamed v. Attorney General (1 982) ZR 49 2. Zambia Ain.vay s Corporabon Ltd v. F lora Rubiolo, Appeal No.8 of 1993 3. J ackson Mwape & 61 Other s v. ZCCM Investments Holdings Limited , SCZ ,Judgment No . 23 of 2 01 4 r Text ref erred to: 1. Winnie Sithole Mwenda and Chanda Chungu, A Comprehensive Guide to Employment Law in Zambia (2021) UNZA Press 2. Norman Selwyn, Selwyn's Law of Employm ent 14 th Edition (2006) Oxford University Press Introduction 1. The complainant filed his notice of complaint against the respondent on 13th June, 2023. This was after h e was granted leave to file out of time. He seeks the following reliefs: 1. Leave days for 5 y ears 2. Terminal benefits 3. Costs and other benefits the court may deem fit 2. In rebuttal to the clairns, the respondent filed an answer on 10th July, 2023 in which it acknowledged that the complainant was indeed its employee. The responden t was, however, adamant that the complainant was not owed any amount as all his du es were paid. Affidavit evidence 3. In the affidavit in support of the con1plaint, the complainant d eposed that he was employed by the respondent on 25Lh May, 2006 as an Irrigator on permanent basis. He worked well until 2 nd November, 2018 when he resigned from employment after giving the respondent one month's notice . After his resignation, the J 2 respondent refused or neglected to pay him his dues despite nurnerous pleas. The c01nplainant then sought the intervention of the labour office but all effort s proved futile. He tendered in evidence, a letter from the labour office dated 4 th July, 2019 showing that he is owed leave days for 6 years. 4 . The affidavit buttressing the answer wa s sworn by Shi Lei the respondent's l'v'I~'l.ager who confirmed that the complainant was employed as an Irrigator on 25th May, 2006. 5. He attested that the complainant did not resign but that he just stopped reporting for work on 2 nd November, 2018 without communicating his decision. Consequently, t h e respondent decided to dismiss him for being absent from work without permission as indicated in the exhibit n1arked "SLl ". 6. Mr. Lei further deposed that the respondent paid the complainant his dues t hrough the labour office as indicated in the exhibit marked ''SL2n. As a result, the respondent does not owe the complainant any dues as these were fully paid. The hearing 7 . At the h earing held on 16th July , 2024, the complainant testified on his own behalf and called no other witness. The respondent also called one witness. 8. The compla inant te stified that he started working for the respondent on 2 5 th May, 2006. Initially he was not entitled to leave J 3 pay as he was a casual employee. He was only employed on permanent basis in 2 01 2 as an irrigator and this was when he started r eceiving leave b enefits. 9. It was his evidence that the problem arose on 2 nd November 2018 when h e discovered that the r espondent intende d to change his position from irrigator to a security guard. He protested the change because history had shown that when a theft occurred, the respondent would deduct from the benefits of the security officer on duty and they would start afresh as a piece worker. He did not wai1.t this to happen t o him h ence his d ecision not to take up the new position. 10. The complainant, therefore, decided to tender his resignation so that h e could be paid what was due to him. However, the respondent refused to accept the notice. The Director, Mr. Wong, refused to pay him and told hiin he could go to any office and complain about the issue. The complainant thus decided to escala te the issue t o the labour office whe re , to his dismay, h e was advised to s e ttle the issue amicably with his employer. 11. The complaina11.t furth er testified that he had no written contract as the r espondent only started signing contracts two years ago . He clarified that the period for which he sought leave b en efits was 2006 to 2011. 12. When cross examined by the respondent's Manager, the complainant dispute d the assertion that h e was paid what was due J 4 to him. According to him, the document from the labour office showing that he was paid was forged. 13. The respondent's witness was Mr. Shi Lei the Site Manager. He confirmed that the complainant was initially employed on piece work basis whereby he would report on some days and not report on other days. Mr. Wong later decided to change the complainant's position from irrigator to security guard because he was not performing well as an irrigator. Since the complainant was not agreeable to the change, he stopped reporting for work. As a consequence thereof, the complainant was asked to sign the dismissal letter on 17th December, 2018. The witness's evidence in a nutshell was that what was owed to the complainant was duly paid to him. 14. When cross examined, Mr. Lei stated that he did not come to court with th e register because the complainant was paid what was due to him. The only document he had was the letter frorn the labour office exhibited to his affidavit as "SL2". According to him, the labour officer wrote this letter after being shown all the documents. 15. Concerning the disrnissal letter, the witness admitted that he was not present when the complainant signed it. He stated that three p eople signed the letter, that is , the cornplainant, his supervisor and management. J 5 16. When asked whether the complainant was paid his benefits, he stated that the co1nplainant was paid at the respondent's farm and that there was no witness to this because employees are paid individually and privately. 1 7 . In re-examination, Mr. Lei reiterated that it was the complainant who signed the dismissal letter that the respondent produced b efore court. He emphasized that any doubt as to whether the complainant really signed the letter can be cleared by comparing the complainant's signature on the letter with his signature on other documents filed by the complainant before court. Analysis and Decision 18. From the evidence led by both parties, the salient facts are that from 2 006 to 2011, the complainant was employed by the respondent on piece work basis. He was only employed on permanent basis as an Irrigator in 2012. His employment ceased towards the end of 2018. 19. The issues which I find I am being called upon to determine are the complainant's mode of exist from employment and whether or not h e is entitled to leave benefits for the period 2006 to 2011 and terminal benefits. 20. In determining the above issue s , I am mindful that the complainant must prove his case and the m er e failure of the J 6 opponent's defence does not entitle h im to judgment. (See Khalid Mohamed v Attorney General(1 l). Mode of exit 21. The complainant's argument on the one hand is that he resigned frorn employment and gave the respondent one month's notice. The respondent on the other hand was adamant that the complainant was dismissed due to h is constant absence from work as per exhibit "SL l ". 22. Given that the complainant's employment determined in 2018, the applicable law is the now repealed Employment Act Chapter 268 of the laws of Zambia (herein after referred to as the Act). Given that there is no evidence of a written contract, it is safe to conclude that the parties' relationship was governed by an oral contract which was recognized by section 17 of the Act. 23. As it pertains to termination of oral contracts, t h e Act provided as follows under section 20: (1) Either party to an oral contract may terminate the e mployment on the expiration of notice given to the other party of his intention to do so, and where the notice expires during the currency of a contract period, the contract shall be thereupon terminated. (3) Notice to terminate employment may be either verbal or written and may be given at any time, and the day on which the notice is given shall be included in the period of notice. J 7 I 24. As seen a bove, notice to termjnate could be verbal or written. I am alive to the decision of the Supreme Court in the case of Zambia Airways Corporation Ltd v . Flora Rubiolo(2l and oth er authorities to the effect that an employee has every right to resign and the r esignation terminates the contract of s ervice. 25. In casu, the complainant did not specify if his notice of resignation to the respondent was verbal or written. Assuming his notice was verbal, the complainant did not adduce evidence regarding the person in authority to whom h e communkated his decision to stop work on 2nd November, 2018. In the same vein, supposing the notice was written, the complainant ought to have tendered the resignation letter b efore court as evidence to that effect. 26 . Mr. Shi Lei, on behalf of the respondent, testified that the complainant signed his dismissal letter which was also signed by managem ent and his s upervisor. The signa ture of the complainant on t h e dismissal letter and the court documents before court are identical. Thus , I have no qualms accepting that the complainant did indeed sign the dismissal letter. The dismissal letter dated 14th December , 2 018 dearly states that the complainant had been away from work for a continuous period of one month without permission and on that basis the respondent had decided to dismiss hin1. 27. According to th e learned author of Selwyn 's Employment Law, at paragraph 1 7 . 51, whether an employee has resigned or was J 8 dismissed is a question of fact for the employment tribunal to determine. 28. In the absence of evidence to the contrary, I am satisfied that the complainant's employment d etermined when he was dismissed from employment by virtue of the letter dated 14th December, 2018 and not by resignation as asserted by the complainant. Given that the complainant alleged that h e resigned, I am s a tisfied that the complainant did not take issue with his dismissal. Quite clearly , the issue in contention is that he was not paid his dues and this is the reason for his complaint before court. Leave d ays 29. The cornplainant in his notice of complaint specified that the leave benefits h e was claiming were for 5 years. At the hearing, he made it clear that the leave he was claiming was for the period 2006 to 2011. He also made it clear that since becoming a permanent employee in 2 012 , h e was r eceiving his leave benefits. 3 0. The respondent assailed th e claim and averred that the complainant and other employees were paid their leave pay at the end of each year and were thus not owed any leave dues. 31. In the Act, leave was provided for under section 15 which allowed for holiday with p ay at the r a te of two days p er month. It is cardinal to mention here that leave days are an accrued right that cannot be t aken away from an employee regardless of the method of separation from en1ployment. This was espoused in the case J 9 Jackson Mwape & Others v . ZCCM Investments Holdings Limited(3J. 32 . Subsection (1) of section 15 provided as follows: Subject to any agreement between the parties providing for holidays with pay on conditions not less favourable to an employee than is provided for in this section, and s ubject to any s tatutory determination concerning holidays made in accordance with the Minimum Wages and Conditions of Employment Act, an employee shall, after six months' continuous service, be entitled to a holiday with full pay at the rate of two days in respect of each period of one month's service, to be taken at such time as shall be agreed between the parties: 33 . My understanding of the above prov1s1on 1s that for one to b e entitled to leave pay, one had to be in employment for a continuous period of 6 rr1onths. 34. I note that the letter from the labour office dated 4 th July, 20 19 which indicates that the complainant was owed K 4,778.00 as leave dues contradicts the earlier letter from the same office dated 14th December, 2018 which states that the complainant and one Mr. Malambo are not owed anything. 35 . I am, however , of the view that neither letter necessarily gives a falsehood. The letter dated 14th December, 2018 alleges th at the respondent had tendered evidence showing that it had paid the complainant leave days in full at the end of each year. In my view, this letter supports the complainant's own evidence that indeed he J 10 I was paid all his dues for the period 2012 to 2018 when he was in permanent employment. 36. The second letter of 2019 shows that the complainant was owed leave benefits for 6 years. Quite clearly, the 6 years being referred to is the period between 2012 and 2018. I state so because from 2006 to 2011 is a period of 5 years. However, as found, the complainant was only performing piece works in that period. The respondent's witness's unchallenged testimony was that the complainant would work from time to time, that is, he would report on some d ays and not others. 37. As seen from section 15 (1) cited above, one needed to work for a continuous p eriod of 6 months to be entitled to leave pay at the rate of 2 days per month. And as the evidence has shown, the complainant was paid for the period he was in continuous service, that is, from 2012 to 2018. 38. I must point out here that there is no indication that the labour office wrote the second letter after seeing the company records as was the case with the first letter. It is therefore not farfetched to conclude that the letter was written on the basis of the one sided assertions made by the complainant. 39. Having b een satisfied that the complainant did not work continuously in the period 2006 to 2011, I find that he is not entitled to leave benefits for that p eriod. The claim for leave days for 5 years, therefore, fails. J 11 Terminal Benefits 40. The complainant asserts that he was not paid his terminal dues. According to the learned authors of A Comprehensive Guide to Employment Law in Zambia at page 284, the phrase 'terminal benefits' refers to all wages and benefits due to an employee at the end or termination of the employment relationship. These may include gratuity, pens10n and severance pay as well as leave benefits. 41. In this case, as alluded to earlier, the contract of employment was an oral one. The Act provided as fallows in section 21 (b) regarding the termination of an oral contract: 21. Either party to an oral contract of service may terminate such contract- (b} in any other case, by payment to the other party of a sum equal to all wages and other benefits that would have been due to the employee at the termination of the employment had notice to terminate the same been given on the date of payment. 42. From the above provision, it is clear that an employee under an oral contract could be entitled to more than wages and leave benefits. However, a claimai1.t ought to demonstrate to court what he is owed and how he is owed. In short, he has to substantiate his claim. 43. Careful scrutiny of the record shows that the complainant did not lead any evidence regai·ding the type of payment he was entitled to upon his dismissal in accordance with his conditions of service. In J 12 other words, although the complainant may have been entitled to payment by virtue of section 21 (b) of the Act, there is no evidence documentary or otherwise supporting this claim. I, therefore, find this claim to be ill fated as it is devoid of merit and I dismiss it accordingly. Conclusion and order 44. In a nutshell, the cornplainant has failed to prove his claims on a balance of probabilities. His en tire com plaint is accordingly dismissed. 45. Each party shall bear own costs. M. C. Mika lile HIGH COURT JUDGE J 13