George Mushaukwa v Q8 Transport Company (2023/HPIR/0492) [2024] ZMHC 312 (19 September 2024)

2023/HPJR/0492 IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DMSION HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: GEORGE MUSHAUKWA AND QS TRANSPORT COMPANY Coram: For the Complain.ant In. person For the Respondent S. Musonda- AMW& CO Legal Practitioners JUDGMENT Legislation referred to: 1. Employment Code Act No. 3 of 2019. 2. The Minimum Wages and Conditions of employment (Truck and Bus Drivers) Order, 2020. 3. The Industrial and Labour Relations Act, Cap 269 of the Laws of Zambia. Cases referred to 1. Redrllza Limited v Abuid Nkazl and Others S. C. Z. Judgment No. 7 of.2011. 2. Khalid Mohamed v Attorney-General (S. C. Z. Judgment 26 of 1982} [1982} ZMSC 17. 3. Bonham-Carter v. Hyde Park Hotel Ltd (1968) 65 TLR177. 4. Care International Zambia V Misheck Tembo 5CZ Appeal No. 57 of 2016. 5. Choonga v Zesco Recreation Club, Itezhi Tezhi (Appeal 168 of2013) [2016] ZMSC 32. J1 • f 6. Barclays Bank Zambia Limited v Mando Chola and Ignatius Mubanga (1997) S. J. 35 (S. C.) INTRODUCTION 1. The complainant was employed by the respondent as a tanker driver on contract basis until his dismissal on 14th March, 2023. Dissatisfied, he filed this complaint on 16"' May 2023 seeking the following reliefs: i. ii. iii. w. v. vi. vii. gratuity leave days notice pay subsistence allowance risk allowance underpayment of salary allowan.ce Any other benefits the court may deem fit. AFFIDAVIT IN SUPPORT OF COMPLAINT 2. In the affidavit in support of complaint, the complainant averred that he was employed some time in 2020 as a tanker driver on contract basis, until his dismissal on 14th March, 2013. Upon dismissal, the respondent refused to pay his dues. He approached the Labour Office, which referred the matter to court for resolution. RESPONDENT'S ANSWER AND AFFIDAVIT VERIFYING ANSWER 3. In its answer and counter-claim filed on 21 st November, 2023, the respondent admitted owing gratuity at K22,S00; leave pay at KS181.81; and allowances (i.e lunch, transport and housing) at K22,080. The respondent disputed the other claims. 4. By way of counter-claim, the respondent asserted that the complainant caused a breach of Puma's loading regulations resulting in his suspension and loss of business worth KS0,000. It was contended that sometime in April 2022, the respondent was engaged to ferry fuel to various depots on behalf of Puma Energy Zambia Pk )2 ("Puma"). The complainant, as the driver of the respondent's truck with registration number BCD 5926 (the "Truck") was accordingly tasked with delivering fuel to a site belonging to Puma's retail customer known as Zakis Kanyama. In breach of Puma's loading regulations and guidelines, the complainant failed to verify the product loaded on the Truck as a result of which Puma suspended the complainant and, consequently, the respondent could not utilize the Truck to make deliveries to the site. 5. The affidavit in support of answer was deposed to by Vincent Sambo, the respondent's account and head of operations. He deposed to the assertions contained in the answer as summarized above. He averred that had the complainant not been suspended, the respondent ,vould have serviced all the sites and brought in an anticipated earning of KS0,000 between 19th April 2022 and 18th May 2022. This assertion was supported by tax invoices exhibited in the affidavit in support of answer and marked "\1S3". The suspension letter was also exhibited and marked "VS2". HEARING 6. At the hearing of this matter, the complainant testified that he worked for the respondent from January 2020 to 13th March 2023 and that he served on a yearly contract, like the other drivers, which contracts were normally signed in January of each year and expired in December, only for the cycle to be repeated the next year. 7. It was the complainant's testimony that on 121h March, 2023, the respondent's Director, Mr. Zacharia, instructed the General Manager, Mr. Sambo, to tell all the drivers, with the exception of the complainant, to go in the garage while the complainant and a new driver remained behind to wait for the Director. When he came, he ordered the complainant to remove all his personal belongings from the Truck and hand the keys over to the new driver. The Director said he would talk to the complainant later. On that day, he did not )3 I talk to him. The next day, the complainant wanted to meet him, however, he, the Director, said he was busy and would meet him in the evening. The complainant then went to the General Manager's office to ask what was going on and he was told that the respondent wanted to move him to cross-border section. What followed, however, was a termination of his services. 8. The complainant further stated that when he asked for his benefits, the Director refused and said he would rather pay his lawyer to sort him out than pay him benefits. Hence, he went to the Labour Office where the respondent was summoned and directed to pay the complainant in line with the applicable Statutory Instrument. 9. It was his testimony that the unpaid gratuity was KS0,796 in respect of the period 2020 to December 2023; his unpaid leave days for four years was Kl6,932; and that he was also claiming an amount of K3000 which was deducted from his salary on allegations of him incurring shortages. 10. The complainant further testified that an amount of Kl5, 240 was deducted from his salary in respect of National Pension Scheme Authority (NAPSA) contributions which the respondent did not remit to NAPSA. 11. With regard to salary underpayments, it was his testimony that from January 2020 to December, 2020, he was underpaid by Kl733, bringing the total underpayment for this period to K20,000. He stated that during this period, he was getting K2500 per month which was inclusive of all allowances. 12. It was his further testimony that from January 2021 to November 2021, he received an increment of KSOO, hence he was being J4 underpaid by Kl233, bringing the total underpayment for this period to Kl3,563. 13. From December 2021 to March 2023, he got another increment of K500, bringing his pay to K3,500. Hence, he was underpaid by K733, which, when multiplied by 16 months, brings the total underpayment to Kl 1,728. 14. With regard to his claim for risk allowance, it was his testimony that he was underpaid by K800 as he was being paid an amount of Kl,000 instead of Kl800 which he was entitled to. He said when multiplied by the 15 trips that he made to Mongu, from 2020 to 2023, the total underpayment in this regard is K12,000. 15. The complainant further testified that he made 15 trips to Kaoma for which he was paid a risk allowance of K900 per trip instead of Kl,200, which he was entitled to, hence the shortfall was K300. When multiplied by 15 trips, the total shortfall comes to K4500. 16. The complainant further told the court that for the trips that he made to Zambezi and Chi pa ta, he was claiming K 1,600 as underpayment. 17. With respect to night allowance, the complainant stated that he worked 78 nights when he was with PUMA and was not paid night allowance in contravention of the Statutory Instruments for Truck and Bus Drivers of 2020 which provided for night allowance of K390 per night. When multiplied by the number of nights he worked, the amount outstanding for night allowance comes to K30,420. JS 18. He further added that under Rubis, he worked 62 nights. This means he accumulated the sum of K24, 180 which was not paid. 19. With respect to the claim for local trips, the complainant told the court that he was entitled to an allowance of KSOO for each trip that he made within Lusaka. Instead, he was only paid K350, leaving a shortfall of K150. He asserted that he made 33 local trips. When multiplied by Kl 50, the total amount outstanding is K4,950. 20. The complainant told the court that the respondent did not arrange medical scheme for him. 21. With regard to cross-border allowances, it was the complainant's testimony that on the first trip to Mozambique, he spent two nights there, hence, he should have been paid $25 per night, which at the exchange rate prevailing at that time, was equivalent to K900. On the next trip, he went to toll a truck which had overturned. He and Emmanuel Malunga, a mechanic he was with, spent 24 nights in Mozambique. Hence the allowance due in this respect comes to Kl0,800. 22. The complainant also asserted that he was owed a sum of K4,288 being the difference between what he was paid and what he should have been paid for the trips from Lusaka to Solwezi, Ndola, Chililabombwe, Kitwe, Mufulira, Feira and Choma. 23. He testified that the total amount he was claiming was K246,l 75, which included the sum of KS,466 in respect of two months' pay in lieu of notice. J6 24. The complainant testified that in April 2022 when he went to offload fuel at Kanyama filling station from Puma, he was instructed that before offloading he needed to physically and thoroughly check the product he was carrying to ensure there was no contamination. After opening the top seals, he touched each product that he loaded. He loaded 20,000 litres of diesel and 15,000 litres of petrol instead of 20,000 litters of petrol and 15,000 litres of diesel. He immediately notified Puma and the General manager of Puma told him to wait for them to come and verify before off-loading. He waited from 15:00 hours to 18:30 hours, however, they did not come. The respondent's General Manager, Mr. Sambo, and the Director ordered him to off• load the fuel saying they had gotten instructions from Mr. Maluba, the Commercial Manager of Puma. On the basis of these instructions, he proceeded to offload the fuel. The next day, Puma came and found that he had offloaded without verification. Two days later when he wanted to load fuel for Kaoma, he was told he could not load as there was a pending case. He then called the General Manager and asked him to call another driver since he could not load. The General Manager sent Moses. 25. Puma then suspended him from assisting to offload fuel for 30 days, saying he knew the rules, so he should have assisted them. They also wanted to suspend the truck for 90 days but Mr. Banda and Mr. Mbangweta pleaded with the terminal manager and the suspension was reduced to 30 days. 26. It was the complainant's testimony that when he called the Director and the General Manager to go and explain why they ordered him to offload they said he should just go and plead for leniency. He added that the issue was discussed and it ended there as the Director and the General Manager k-new they w·ere wrong. J7 27. The complainant disputed that the respondent hired a truck to transport fuel for Puma during the period of his suspension. He said there was an e;,iliibit before court which showed the trucks that loaded fuel at Puma. The ticked entries on the exhibit all belonged to the respondent . The drivers whose names appeared on the exhibit were all his former workmates. 28. Under cross-examination, the complainant disputed that exhibit "VS 1" in the respondent's affid avit in support of answer was his original payslip. He, however, conceded that he did not exhibit the original pay slip in his affidavit. 29. The complainant further conceded that he had not produced any document to support his claim that he went across the border on some days. He added that his passport could show this, however, he had not produced it. 30. Under further cross examination, the complainant testified that risk allowance was payable for tankers carrying dangerous goods as provided by the Statutory Instrument. He added that fuel in a tanker is considered dangerous goods, even after offloading, due to residue fuel remaining. 31. Still under cross, the complainant conceded that he had not shown the number of kilometres covered on each trip. 32. The respondent's lone witness was Vincent Sambo, the Operations Manager (RWJ. It was his testimony that the complainant was, indeed, owed gratuity amounting to K22,500 calculated at the rate of 25% on his basic salary of K3000. JS 33. RW further testified that it was not possible for the complainant to be owed subsistence allowance because the same was paid to drivers before they set off for the trips together with applicable toll fees. 34. With regard to the counter claim, RW testified that on a certain day, the complainant breached Puma's loading regulations by failing to verify the products that were loaded on his Truck as a result of which he was suspended by Puma for one month. He referred the court to the letter of suspension shown in the affidavit in support of answer and counter-claim marked "VS2". He told the court that in this letter, the complainant acknowledged that he had broken the regulations of Puma. Within the one month that the complainant was serving his suspension, the respondent incurred a loss to the tune of KS0,000 as evidenced by the tax invoice produced and marked "VS3" in the respondent's affidavit. 35. Under cross examination, RW testified that he was aware that the statutory minimum wages of a driver were as follows: ,. ii. iii. iv. Basic pay K3000 Housing allowance 30% of basic pay Transport allowance K200 Lunch allowance KJ80 36. Still under cross, RW testified that the rate used by the respondent to calculate mileage for purposes of trip allowances was higher than what was contained in the Statutory Instrument. 37. When asked if the respondent had ever paid night allowance to any driver, he responded that the mileage covered everything. 38. According to RW, the distance from Lusaka to Mongu was 600Km, hence a driver was paid K900 at the rate of Kl. SO per kilometre as )9 risk allowance. On top of that, a driver was paid K300 to cater for the night. A driver was not paid 1isk allowance for driving an empty truck. Even when drivers went to Mozambique, Zimbabwe and Tanzania, they were only paid US$ 600 one way. 39. Still under cross examination, RW admitted that he and the respondent's Director instructed the complainant to off load the fuel after he had waited for Puma from 15:00 hours to 18:00 hours. COMPLAINANT'S SUBMISSIONS 40. At the close of the hearing, both parties were invited to file final submissions. The complainant filed his submission while the respondent did not. I shall refer to the complainant's submissions as I proceed with the determination of the issues. I hasten to add, however, that the final submissions filed by the complainant were mainly a repetition of the evidence that he had already presented to the court and, in some instances, fresh evidence that he had not adduced prior to the close of trial. The purpose of final submissions is not to give a party a second bite at the cherry. Therefore, I shall not allow myself to be swayed by the fresh evidence contained in the submissions. ISSUES FOR DETERMINATION 41. It has not been disputed that the complainant was a protected worker under the Minimum Wages and Conditions of Employment, S. I 106 of 2020, which was promulgated on 18th December 2020 ("the S.l"). This is the Statutory Instrument that both parties referred to in their testimonies. 42. The issues for determination in this matter, as I see them, are the following: i. Entitlement to gratuity JlO ii. Leave pay for accrued leave iii. Notice pay iv. Risk and subsistence allowances v. Cross-border trip allowances vi. Salary underpayments vii. NAPSA contributions viii. Damages for unfair dismissal ix. Validity of the respondent's counterclaim a) Whether the complainant is entitled to gratuity 43. The complainant claims gratuity for the entire period of his employment at the rate of 25% of his basic pay. According to his calculation, he is owed KS0, 796 for the whole period of service from 2020 to December 2023. 44. The respondent, on its part, admitted that it owed him K22,500 gratuity for a period of 30 months calculated on his basic pay of K3,000 at the rate of 25%. 45. As per evidence on record, it is not in dispute that gratuity is due to the complainant. It is the quantum that needs determination and this depends on the length of service of the complainant. The complainant, in paragraph 4 of both the notice of complaint and his affidavit in support of complaint, averred that he was employed sometime in 2020. He did not specify exactly when in 2020. In his oral evidence at trial, it was his testimony that he was employed in January 2020. This was not disputed. In paragraph 4 of the notice of complaint and paragraph 5 of his affidavit, he averred that he was dismissed on 141h March 2023. If he served from January 2020 to 14th march 2023 as he submitted, then he served for a total of 38 months and 14 days. Jll 46. The respondent did not clarify its statement that the complainant only served for 30 months. The complainant did also not eJCplain why he claimed gratuity up to December, 2023 when, by his own testimony, he was dismissed on 14th March, 2023. Awarding him gratuity for a period not served will be unjust enrichment. 47. In view of the foregoing, I find that the complainant is entitled to gratuity for 38 months and 14 days, at 25% on a basic pay of K3,000. In default of agreement, the quantum shall be assessed by the honourable registrar. bl Whether the complainant is entitled to leave pay for accrued leave 48. The complainant's case under this head is that he accrued 2 days of leave per month and that he never went on leave the whole period he was employed by the respondent. He stated that the amount payable was Kl6, 932. The respondent, on its part, admitted owing leave pay at KS, 181.81. 49. As I found that the complainant served the respondent for 38 months and 14 days, I find that, at the rate of 2 days per month, the complainant accumulated a total of 76 leave days. He is thus entitled to leave pay for 76 leave days, the same to be assessed by the honourable registrar. c) Whether the complainant is entitled to notice pay 50. The complainant's version of events leading to the termination of his employment was not rebutted by the respondent. It was his testimony that on the 12th March 2023, the respondent's Director, Mr. Zacharia, ordered him to remove all his belongings from the Truck and hand over the keys to a new driver. Mr. Zacharia said he J12 would talk to the complainant afterwards, however, he did not. The next day, the complainant sought audience with Mr. Zacharia but Mr. Zacharia said he would attend to him in the evening. He was later told by the General Manager, RW, that his services had been terminated. 51. I am mindful that the complainant used the words 'termination' and 'dismissal' interchangeably in his evidence to the point that counsel for the respondent, in cross examination, asked him if he would be entitled to notice if he was dismissed. 52. The difference in the two terms has been explained in a plethora of authorities. The Supreme Court of Zambia, in the case of Redrllza Limited v Abuld Nkazi and Others1 , explained the difference between termination and dismissal when it stated as follows: .. , 'dismissal' involves loss of employment arising from disciplinary action, while 'temtination' allows the employer to terminate the contract of employment without invoking disciplinary action.• 53. I have considered the circumstances leading to the loss of the complainant's employment. It is not in dispute that no disciplinary action preceded the loss of his employment. Consequently, and as guided by the above citation in the Redrilza Limited v Abuid Nkazi1 case, I find that the complainant's employment ended by way of a termination and not a dismissal. 54. Section 53 (2) (c) of the Employment Code Act requires an employer who intends to terminate an employee's contract of employment to give thirty days' notice in writing. Where notice has not been given, the section provides for compensation in lieu of notice. )13 55. In the light of this self-explanatory section, I find that the complainant has proved his claim for pay in lieu of notice. I, accordingly, award him thirty days' salary in lieu of notice. This includes all allowances. for the avoidance of doubt, the basic pay is K3000, as per the $. I, and the allowances are Kl,233.60 as per the respondent's own admission, bringing the gross pay to K4,233.60. d) Whether the complainant is entitled to risk and subsistence allowances for local trips 56. With regard to the complainant's claim for risk and subsistence allowances, the respondent, in paragraph 6{iii) of the affidavit in support of answer, conceded that mileage allowance per trip was payable for local trips undertaken by the complainant. What is in dispute is whether there are any allowances unpaid. Whereas the complainant contends that he was underpaid, the respondent's contention is that the subsistence and risk allowances were duly paid for all the trips via a mileage allowance. At trial, RW told the court that the subsistence allowance was covered in the mileage allowance. 57. I hasten to state that subsistence allowance under the S. I is distinct from risk allowance and unlike the former, it is not based on mileage at all. Subsistence allowance is paid to an employee who spends a night away from home as provided by paragraph 11 of the S. I as follows: "An employer shall pay a driver who spends a night away from home to attend to an.y business of the employer, a subsistence allowance of not less than three hundred ninety Kwacha per night." 58. It was the complainant's testimony that he undertook 15 trips to Mongu and an equal number to Kaoma and that on his trips to Mongu, he was paid Kl000 instead of Kl,800 as provided by the $. I. Jl4 59. At the hearing, both the complainant and RW adduced into evidence documents titled 'Operations Seals Documents' as evidence of the trips the complainant undertook to Kaoma and Mongu. The respective serial numbers of these documents are: 41378, 42910, 43001, 43104, 43141, 43266, 43460, 43965, 44142, 44200,44623, 44623, 54526, 54123, 54164,54347, 56658, 57402, and 58044. 60. Some of these documents have a destination of Kaoma, others Mongu and yet others no destination is indicated. The follo'\\ring documents do not indicate the destination of the trips: i. No. 43266 dated 16th February 2021; 11. No. 43965 dated 28<h April, 2021; iii. No. 44142 dated 8<h May, 2021; iv. No. 44623 dated 11 ch June, 2021; v. No 44623 dated 11th June 2021; vi. No. 54347 dated 20•h June, 2022; vii. No. 56658 dated Jrd August 2022; and viii. No. 57402 dated 15th September, 2022 61. The 'summary of the trips' undertaken by the complainant as submitted by both parties, shows that the documents listed in (i) to (v) are in respect of trips from Lusaka to Kaoma while (Nos (vi) to (viii) are in respect of trips to Mongu. 62. The complainant's evidence was that the risk allowance payable on the trip to Mongu was K1800 while the respondent, in paragraph, 6 of the affidavit in support of answer, averred that the allowance payable was Kl200. The formular for calculating risk allowance is provided for in paragraph 14 of the S. I as follows: «A driver shall be paid the following risk allowances for canying an abnonnal load or dangerous goods: (a) for local trips, not less than one Kwacha fifty ngwee per kilometer; and )15 {b) for intemational trips not less than ten cents per kilometer. 0 63. Both parties submitted that the distance bet\veen Lusaka and Mongu was 600km. RW, in cross examination, stated that the respondent paid drivers to Mongu an allowance of Kl200, K900 of which was risk allowance and K300 was night allowance. 64. The complainant, on his part, argued that risk allowance was also payable for the return trip after offloading the fuel because even an empty tanker was dangerous as there was still residue of fuel which was equally a dangerous good. This was vehemently disputed by the respondent. 65. Paragraph 14 of the S.l which provides for risk allowance clearly states that this allowance is paid to a driver carrying dangerous goods. In my view, an empty tanker cannot be said to be canying dangerous goods. Therefore, I agree with the respondent that no risk allowance was payable on the return leg. 66. The complainant's testimony was that he was paid KlOOO for the trip to Mongu. He did not substantiate this. Even when RW told the Court, in cross examination, that the complainant was paid K900 for the trip and K300 for the night allowance, the complainant did not attempt to discredit the respondent's testimony with a follow-up question. As such, I am satisfied that the complainant was paid K1200 as opposed to KlOOO as he claimed. As such, he was not underpaid risk allowance for the Mongu trips. I shall return to subsistence allowance shortly. 67. Neither party adduced evidence of the distance between Lusaka and Kaoma to enable the court determine the allowance payable. It is incumbent upon the complainant to prove, to the requisite standard, the allegations made in his complaint irrespective of the respondent's case. It is settled law that the burden of proof throughout J16 proceedings rests on he who alleges. Th.is is as guided by the Supreme Court's holding in the case of Khalid Mohammed v The Attorney General2 as follows: "An unqualified proposition. that a plaintiff should succeed automatically whenever a defence has failed is unacceptable to me. A plain.tiff must prove his case and if he fails to do so the mere failure of the opponent's defence does not entitle him to judgment. I would not accept the proposition that even if a plaintiffs case has collapsed of its inanition or for some reason or other, judgment should nevertheless be given to him on the ground that the defence set up by the opponent has also collapsed. Quite clearly a defendant in such circumstances would not even need defence." 68. The complainant not having adduced sufficient evidence to prove the alleged underpayment of risk allowance for the local trips, the claim fails and is dismissed for want of merit. 69. I now return to the claim for subsistence allowance. The respondent admitted to paying subsistence allowance of K300 and yet, clearly, the amount payable under paragraph 11 of the Statutory Instrument is K390. Needless to say, the complainant was underpaid by K90. The summary of trips submitted by both parties indicate a total of 19 trips. I have noted that the trip undertaken on 11 th June 2021 was duplicated. As such the trips are reduced to 18. When multiplied by the underpayment of K90 per trip, the total underpayment of subsistence allowance comes to Kl,620. e) Whether the complainant is entitled to subsistence allowance for cross-border trips 70. Subsistence allowance for truck drivers undertaking cross-border trips is provided under paragraph 15 of the S. I as follows: Jl7 "A driver shall be paid a cross border subsisten.ce allowance of rwt less than twenty-five United States dollars per night.» 71. It was the complainant's testimony that he spent 2 nights on trips to Mozambique and a further 24 nights in Mozambique when he and a mechanic were assigned to toll a truck which had overturned. 72. As stated earlier, the complainant has the onus of adducing sufficient evidence to prove his claims. When asked in cross examination whether he had shown before the court that he went across the border, he admitted that he had not and added that his passport was not availed to the court. 73. Needless to say, the complainant ought to have produced evidence demonstrating the trips he undertook and the corresponding number of nights he spent away from home to enable the Court assess and compute the amount due, if any. It is not enough for a party to simply make a tabulation of what is being claimed. Lord Goddard, in the case of Bonham-Carter v. Hyde Park Hotel Lt<l3 put it succinctly when he said: «Plaintiffs must understand that, if they bring actions for damages, it is for them to prove their damage; it is not enough to write down particulars and so to simply throw them at the head of the court saying "this is what I have lost, I ask you to give me these damages.·• They have to prove it.• 74. Although this decision is not binding on this Court, the gist of this quote has been upheld in a plethora of authorities which are binding on this Court, including the Khalid Mohammed1 case already cited above. In the absence of such evidence, this Court finds no basis upon which to sustain the claim for subsistence allowance for cross border trips. The claim is hereby dismissed by lack of merit. Jl8 f) Whether the complainant is entitled to underpayments of housing, lunch and transport allowances 75. The complainant's testimony regarding allowance underpayments was that from January 2020 to December 2020, he was being underpaid by KI,733. He told the court that he was getting a gross pay of K2,500. 76. However, he did not adduce any evidence to support the alleged underpayment. The S. I was only promulgated on 1su. December 2020 and can, therefore, not be the basis for the claim for underpayment for the period prior to its promulgation. 77. It was the complainant's further testimony that there was an additional KS00 to his earnings for the period January 2021 to November 2021, wltich brought his gross pay to K3000. 78. The S. I, in paragraph 4 (a), provides for a minimum basic pay of K3000. Paragraph 9 provides for transport allowance of Kl52.60 to be paid to a driver whose duty station is beyond a three-kilometre radius from the driver's area of residence unless the employer provides transport for that employee. 79. The complainant did not adduce any evidence to show that he fulfils the two conditions in paragraph 9 of the S.l, that is, that his duty station was beyond a three-kilometre radius from his area of residence; and secondly, that the respondent did not provide him any transport. This, notwithstanding, the respondent itself, in paragraph 8 (iii) of its affidavit in support of answer, conceded that the complainant's lunch, transport and housing allowances should have been Kl,233.60 per month and not KS00 it had paid him. As such, the respondent admitted that it owed the complainant an amount of K22,080 in respect of underpayment for these allowances. On the J19 basis of the respondent's own admission, the complainant is awarded an amount of K22,080 being underpayment of these allowances. g) Whether the complainant is entitled to an award of salary under payment 80. In defence to the complainant's claim that his salary was underpaid from January 2020 until the end of his employment, the respondent, in paragraph 6 of its affidavit in support of answer, stated that the complainant was entitled to a basic salary of K3000. However, it did not state whether it had paid him a salary of K3000 from the start of his employment or not. In fact, even the payslip exhibited as "VS 1" shows a basic pay of K2713 as opposed to K3000. This payslip was for January 2023, just a couple of months before the end of the complainant's employment. On the basis of this, I am satisfied that the complainant was, indeed, underpaid. For the period prior to the S. J, the complainant did not state the basis of his claim that he was underpaid. For the period from January 2021 to November 2021, he testified that he was paid K2,500 per month. This means the salary was underpaid by KSOO, bringing the amount for the 11 months to KS,500. 81. It was his testimony that for the period December 2021 to March 2023, he was underpaid by KSOO. However, the payslip produced as exhibit "VS 1" shows that the basic salary was k2, 713. As such, I find that the complainant was underpaid by K287, bringing the total underpayment for this period to K4313. As the complainant did not work the whole month of March 2023, his employment having been terminated on 14th March, 2023, only a sum of Kl47.50 has been awarded for the 14 days. The grand total of the salary underpayment, therefore, is K9,960. )20 . . g) Whether the complainant is entitled to an Order for Napsa Contributions. 82. One of the reliefs sought by the complainant, although not included in his notice of complaint, is payment of unremitted NAPSA contributions. It was his testimony that a total of KlS,240 was deducted from his earnings but the respondent had failed to remit this amount to NAPSA. Therefore, he prays for the return of the unremitted contributions. The respondent did not deny failing to remit this amount to NAPSA nor did it deny making deductions from the complainant's pay in respect of NAPSA. 83. I have considered this claim. Contributions to NAPSA are a statutory requirement under the National Pension Scheme Act, Chapter 256 of the laws of Zambia. The NAPSA Act provides for penalties for failure to comply \vith the provisions of the law [see section 51). It is the duty of NAPSA to ensure that the contributing employer pays to the authority all contributions that are due for payment. 84. In addition, the NAPSA Act regulates the manner in which benefits are paid out. Section 16 of the Act provides that: «Where the Director General is satisfied that an employee's contribution has been deducted from his earnings, but the employer has failed to pay this contribution together with the employer's contributions t,o the Authority, he may treat the unpaid contributions as wholly or partially paid for the purpose of any claim to the payment or benefits, provided that this shall be without prejudice to any action to recover the amount due from the employer." 85. In the light of the foregoing, I am of the view that the proper course would have been for the complainant to lodge a complaint with NAPSA seeking from it an order to compel the respondent to fulfil its J21 obligations under the NAPSA Act. In view of this, the complainant's claim for unremitted NAPSA contributions fails for lack of merit. ANY OTHER RELIEF THE COURT MAY DEEM FIT 86. I have pondered the facts of this case. It is not in dispute that the complainant was not given notice prior to the termination of his employment and neither was he given reasons for the termination. 87. The Employment Code Act, in section 52(1), (2) and (3), requires an employer to give to an employee reasons for the termination of employment. It provides as foJlows: "52. (1) A contra.ct of employment tenninates in the manner stated in the contract of employment or in any other manner in which a contract of employment is deemed to tenninate under this Act or any other law, except that where an employer terminates the contract, the employer shall give reasons to the employee for the termination of the employee's contract of employment; and (2) An employer shall not tenninate a contract of employment of an employee without a valid reason for the tennination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking. (3) An employer shall not tenninate 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.• 88. In considering the implication of the respondent having terminated the complainant's contract in breach of the above section of the Employment Code Act, I am cognizant of the plethora of authorities where it has been made clear that a termination or dismissal that is contrary to statute is unfair. The Supreme Court, in the case of Care International zambia V Mlsheck Tembo4 , quoted Sprack John Employment Law and Practice, as follows: J22 "Wrongful dismissal essentially is a dismissal which is oon.trary to the contract and its roots lie in common law. The remedy is usually limited to payment for the notice period ,, ... (in oontract) unfair is dismissal oontrary to statute .... unfair dismissal is therefore a much more substantial right for the employee and the con.sequences for the employer of dismissing urifairly are much more severe than those which attend a wrongful dismissal." 89. The complainant's oral evidence as to the circumstances leading to the termination of his employment was not challenged. For the sake of brevity, I shall not restate them here, save to state that the complainant was just instructed to hand over the keys to the Truck he had been driving to a new driver and although he was told that he would be moved to cross-border section, this was not to be as he later learnt his contract of employment had been terminated. 90. The respondent not having given reasons for the termination of the complainant's employment breached section 52(1), {2) and (3) of the Employment Code reproduced above, and, therefore, the termination was unfair. 91. In the Care International Zambia Limited4 case cited above, the Supreme Court guided that unfair dismissal attracts more punitive measures than wrongful dismissal. Further, that the remedy for v,rongful dismissal is usually limited to payment for the notice period. 92. I am, indeed, cognizant of the depressed job market in our country. I am nevertheless, of the view that it is generally not difficult for a truck driver to find an equivalent job. As such, I am of the considered opinion that an award of 6 months' salary as damages for unfair termination of employment in the circumstances of this case is fair. J23 ' I > I 93. Before I move on to consider the respondent's counter-claim, I must state that I am well aware that the complainant did not plead damages for unfair tennination of employment. I take cognizance of the fact that he is a lay man and is unrepresented. In wnsidering this issue, I am guided by the Supreme Court in case of Choonga v Zesco Recreation Club, Itezhl Tezhi5 where the apex court stated that flawed pleadings cannot stand in the way of the Industrial Relations Court in its exercise of its powers under Section 85(5) of the Industrial and Labour Relations Act which provides that: "The Court shall not be bound by the rules of evidence in civil or criminal proceedings, but the main object of the Court shall be to do substantial justice between the parties before it." 94. The Supreme Court, in the case of Barclays Bank Zambia Limited v Mando Chola and Ignatius Mubanga6 stated that: "In the process of doing substantial htstice. there is nothing in the [Industrial and Labour Relations Act/ to stop the Industrial Relations Court from delving behind or into reasons given for tennination in order to redress any real iniustices discovered. While, undoubtedly, it would be desirable that a recognisable cause of action should be manifest in the originating documents including the affidavits in order that the opponent may have reasonable notice of the case to be met and so prepare adequately, nonetheless, it is not wrong for a court of substantial iustice to entertain a complaint however inadequately couched-especially by a lay litigant • and to make a decision or give an award on the merits of the case, once it is heard. The hearing is frequently a summary one and there is no need to depart from such practice. It follows that we do net accept the argument based on the "pleadings" such as they are." (Emphasis mine} 95. As a court mandated to do substantial justice, it would be an injustice to ignore the complainant's evidence and testimony merely J24 ' • J • because he may not have known he had an actionable cause for unfair termination. COUNTER-CLAIM 96. The respondent counter claims the sum of K50,000 being amount spent on hiring another company to transport fuel on behalf of Puma which the complainant would have transported had he not been suspended by Puma. The expenditure allegedly incurred was evidenced by the tax invoice exhibited in the affidavit in support of answer and marked "VS 3" as well as the transport statement. 97. The suspension letter indicates that the complainant was to be suspended from 19"' April 2022 to 18th May 2022. However, the letter is silent on the Truck itself being barred from loading fuel from Puma. No evidence was led as to why the respondent did not use one of its other drivers to transport fuel using the Truck in question albeit both the complainant and RW alluded to the fact that the Truck was also not permitted to load fuel by Puma. 98. It was the complainant's testimony that he was aware that during the period of his suspension, his fellow drivers at the respondent company used to transport fuel for Puma. He tendered into evidence a list of the drivers who transported the fuel. This evidence was not rebutted by the respondent and raises sufficient doubt as to whether the fuel transported by the hired company had any bearing to the complainant's suspension. 99. Further, the transport statement exhibited includes dates outside the period of the complainant's suspension and, no explanation was tendered as to why this was so. 100. Above all else, RW, under cross examination, admitted that he and the respondent's Director instructed the complainant to go ahead and offload the fuel after he had v.,aited for Puma officials from J2S 15:00 hours to 18:00 hours, an action that Jed to his suspension. In my view, it would be grossly unfair to punish an employee for carrying out instructions of his superiors, particularly superiors as senior as the Director and the General Manager. The claim for KS0,000 is, needless to say, dismissed for lack of merit. CONCLUSION AND ORDERS 101. The complainant has failed to prove his claims for trip allowance and NAPSA contributions. He has succeeded in respect of leave days, graruity, subsistence allowance and salary underpayments. The respondent failed to prove its counter-claim. The counter-claim is dismissed. As such, I order the following: i. The respondent shall pay gratuity for a period of 38 months and 14 days, on the basic salary of K3000 at the rate of 25%, to be assessed by the Registrar in. default of agreement; ii. Leave pay is awarded for 76 days, to be assessed by the Registrar in. default of agreement. iii. The respondent shall pay one month's gross salary of K4,233.60 in lieu of,wti.ce; iv. The respondent shall pay Kl,620 being underpayment of subsistence allowance. v. The respondent shall pay K22,080 being underpayment of transport, housing and lunch allowances. vi. vii. The respondent shall pay K9, 960 being salary underpayment. The respondent is awarded 6 months' salary as damages for unfair dismissal; viii. The amounts payable shall attract interest at the commercial bank deposit rate from the date of the notice of complaint to the date of judgment and, thereafter, a current lending rate as detennined by the Bank of Zambia from the date of judgment until full payment. JZ6 102. Each party will bear their own costs. Delivered at Lusaka this 19tll. day of September, 2025. ................ M . . HIGH COURT JU COUJi7 i;, u;1, "'i<I,~ .... ·~ JC,NSoM .ltJs.. KA J27