Gertrude Kanyinji v Il Mercato Cafe (2024/HPIR/0197) [2025] ZMHC 120 (4 September 2025)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA BETWEEN: GERTRUDE KANYINJI IJRT OF.' •r.· '" l~ v ·<,-,i'. P --- l O It S£P 2025 /"I \ ' 2024/HPIR/0197 COMPLAINANT AND $!:oAL P.ir,L Rl::i.h"!_l IL MERCATO CAFE RESPONDENT Coram: Chigali MlkaHle, J this 4i1i day of Sepumber, 2025 For the Complainant: In person For the Respondent: No appearance JUX>G-:M:B!IIT Legislation referred to: 1. The Employment Code Act No. 3 of 2019 2. The Industrial Relations Court Rules, Chapter 269 Cases referred to: 1. Robert Simeza (Executor} v. Elizabeth Mzyeche (2011) Z. R Vol. 3 2. Wilson Masauso Zulu v. Avondale Housing Project (1982) ZR 178 3. Redrilza Limited v. Abuid Nkazi & Others, SCZ Judgment No. 7 /2011 4. First Quantum Mining and Operations v. Obby Yendamoh, SCZ/8/307 /2015 5. Barclays Bank Zambia Limited v. Mando Chola & Another SCZ Judgment No. 8/1997 6. Chansa Ng'onga v. Alfred H. Knight (Z) Ltd, Selected Judgment No. 26/2019 7. Kingfred Phiri v. Life Master Limited, CAZ Appeal No. 24/2023 Text referred to: Mwenda W. S and Chungu, A Comprehensive Guide to Employment Law in Zambia ,UNZA Press, 2001 Introduction 1. The complainant commenced this action by Notice of Complaint and supporting affidavit on 13th March, 2024 seeking the foUowing reliefs: (a) leave benefits; (b) Gratuity; (c) Damages for unlawful and unfair dismissal; (d) Payment in lieu of notice; (e) Costs and any other benefits the court may deem fit. Complainant's case 2. In her affidavit in support of the complaint, the complainant deposed that she was employed by the respondent as a general worker on permanent basis on 19th March, 2023. She worked well until 16th January, 2024 when she was verbally dismissed from employment without notice. )2 3. The respondent did not pay her dues following the dismissal prompting her to write a demand letter which is exhibited to the affidavit. There was no response to the letter and the matter ended up at the labour office. Unfortunately, parties could not agree hence this action. 4. At the hearing, the complainant testified that she used to perform roles of a waitress, cook and cleaner. Her monthly salary was K 2,200.00. 5. It was her testimony that the respondent fired its manager on 14th January, 2024 and upon leaving, he took with him, his equipment. This made their work very difficult as they could not prepare meals timely. 6. On 16th January, 2024, the respondent's proprietor's friend came to the cafe and the proprietor asked the employees to take care of that friend. According to the complainant, due to lack of equipment, food was being prepared at a slower pace. When the proprietor discovered that her guest had not yet been served, she was infuriated and asked to see the employees in her office. She began shouting at them without according them an opportunity to explain why the food orders were delaying. She further lamented that the employees had brought shame to her business. She ordered them to leave immediately and that marked the end of their employment. Terminal dues were not paid. 7. The complainant highlighted that she demanded K 5,000.00 as compensation because the respondent greatly inconvenienced her by abruptly terminating her employment. It was her evidence that in the follo\1/ up meetings, the respondent expressed willingness to pay all her claims except compensation. She was, however, adamant that she was entitled to compensation. 8. On leave days, she told court that she never proceeded on leave throughout the 10 months of employment. Respondent's case 9. The respondent did not file an Answer and did not appear at the hearing either. I proceeded in its absence as there is on record an affidavit of service attesting to the fact that the respondent was duly served with the notice of hearing. I was fortified by the case of Robert Simeza v. Elizabeth Mzyechel1l which holds that no procedural injustice is occasioned when a party who is aware of the proceedings does not turn up. Analysis and decision 10. I have considered the complainant's affidavit and oral evidence. I remind myself that he who alleges must prove. In the case of Wilson Masauso Zulu v. Avondale Housing Project(21 the Court stated that a claimant who has failed to prove his case cannot be entitled to judgment, whatever may be said of the opponent's case. 11. From the evidence, I have no qualms accepting that the complainant was employed as a general worker on 19th March, 2023. There is no written contract thus I hold that she was employed under an oral J4 contract. Her contract of employment tenninated on 16th January, 2024. 12. The complainant asserts that she was instantly dismissed without notice hence her claim that she was unfairly dismissed. What I ought to determine, therefore, is w'hether she ,vas indeed unfairly dismissed and whether she is o,ved the terminal dues claimed. Unlawful or unfair dismissal 13. As has been established by the apex Court, there is a difference between termination and dismissal and the two terms should not be used interchangeably. In the case ofRedrilza Limited v. Abuid Nkazi & Othersl3l the Supreme Court held that: (1) There is a d(fference between dismissal and termination. Dismissal inuolues loss of employment arising from disciplinary action. While termination allows the employer to terminate the contract of employment without invoking disciplinary action. (Z) The terms "'dismissal" and «termination," should not be used interchangeably. 14. From the complainant's unchallenged evidence, her contract of employment was terminated without invoking disciplinary action. Quite clearly, and as guided by the Redrilza case, the complainant was not dismissed. Her employment contract was terminated. The very case establishes that a termination can be unlawful entitling the claimant to damages. Thus, what may be awarded, if it is decided that JS the termination was unlawful, are damages for unlawful termination and not damages for unlawful dismissal as claimed. 15. In order to resolve this issue, it is cardinal to have an understanding of what unfair termination is. The Supreme Court has in a plethora of cases addressed unfair dismissal. In the case of First Quantum Mining and Operations v. Obby Yendamoh141 it was stated that unfair dismissal addresses the genuineness or otherwise of the dismissal. 16. Further, the authors of "A Comprehensive Guide to Employment Law in Zambia" at page 241 define unfair dismissal as dismissal that is contrary to statute or based on an unsubstantiated ground. They go on to state that unfair dismissal looks at the merits or substance of the dismissal. 17. I hold the view, based on the above authorities, that a termination may be termed unfair if it is contrary to statute or based on unsubstantiated grounds. 18. The complainant, in her evidence, pointed out that the respondent terminated her employment abruptly. This was due to the fact that service was slow as food orders were taking long to prepare. According to her, this was through no fault of the employees but due to the fact that they had no proper equipment to work with. Again, the absence of the respondent meant that this testimony went unchallenged. Therefore, I have no qualms accepting it as true. J6 19. What the foregoing entails is that the employer was dissatisfied with the employee's output and instantly terminated her employment without notice. I therefore ask myself if this amounts to unfair termination, that is, termination which was unsubstantiated or contrary to statute. 20. The law in force at the time of termination was the Employment Code Act, 2019 hereinafter called the ECA. 21. On notice, the ECA under section 53( 1) states as follows: An employee whose contract is intended to be tenninated is entitled to a period of notice or compensation in lieu of notice, unless the employee is guilty of misconduct of a nature that it would be unreasonable to require the employer to continue the employment relation. 22. Subsection 2 of section 53 provides notice periods for different contracts; for instance 24 hour notice for a contract not exceeding one month and 30 days' notice for a contract of more than 3 months. It further provides that if the contract is for more than 6 months, the notice must be in writing. 23. The complainant's evidence is that she was employed on permanent basis. In the absence of evidence that she was guilty of misconduct of a nature that it would be unreasonable to require the respondent to continue the employment relationship, then she was entitled to not less than 30 days' notice. J7 24. Quite clearly, the respondent acted contrary to the law when it terminated the employment relationship instantly. On this account alone, the termination was unfair. 25. A further look at the provisions of the ECA reveals that an employer is not at liberty to terminate the employment relationship without giving a valid reason and further that if the employee has misconducted themselves, they must be given an opportunity to be heard on the alleged wrongdoing. 26. Thus, sections 52 of the ECA (relevant part only) provides as follows: 52(1) A contract of employment terminates in the manner stated in the contract of employment or in a.ny other manner in which a contract of employment is deemed to terminate under this Act or any other law, except that where an employer temtinates 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 te,minate 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. (5) An employer shall bear the burden of proof that the termination of a contract of employment was fair and for a ualid reason. JS 27. The foregoing provisions are very clear that a valid reason ought to be given when an employee is terminated due to his capacity or conduct or operational requirements of the establishment and furthermore, he must be heard. 28. It is clear from the complainant's unchallenged evidence, which as earlier stated, I have no qualms accepting, that the respondent was dissatisfied with the complainant's performance. Thus, she ought to have been accorded an opportunity to be heard. Further, since no written notice was given, this Court will never know the reason for the termination and whether or not it \Vas valid. In the circumstances, it safe to conclude that the termination was also contrary to section 52 of the ECA. 29. For the foregoing reasons, I find that the complainant's employment was terminated in disregard of the law and she is, therefore, entitled to damages for unlawful termination. 30. A plethora of cases have decided that the award of damages should be equivalent to the contractual period of notice. In the case of Barclays Bank Zambia Limited v. Mando Chola & Another!5l it was held that the reason why the normal measure of damages is based on the period of notice is that it is the period within which the employee could reasonably be expected to have secured another job. 31. In the case of Charles Ng'onga v. Alfred H. Knight (Z) Limited!61 the Supreme Court confirmed the position that the normal measure of )9 damages is an employee's notice period or as it is provided for in the law and can only be departed from when the employee proves that he is deserving of more and the conduct of the employer was so serious that it warrants a higher award of damages. 32. I am of the firm view that abrupt loss of employment is traumatic. Furthermore, ,vanton disregard of the law by an employer is inexcusable and the damages awarded must exhibit the Court's disapproval. In light of the foregoing, I find that the complainant deserves an award higher than notice pay which in this case is one month's salary. 33. Taking the foregoing into account, therefore, I award the complainant 6 months' salary as damages for unlawful termination. Leave benefits 34. It is trite that leave days are an accrued right. As earlier stated, the complainant did not avail a contract of employment. Further, the respondent, who is mandated by the law to keep a record of oral contracts, did not avail evidence of what the complainant's entitlement was in terms of leave days. Thus, recourse is had to the law. 35. Section 36 of the ECA provides for leave days as follows: An employee, other than a temporary or causal employee, who remains in continuous employment with the same employer for a period of twelve consecutive months shall be granted during each subsequent period of twelve JlO months while the employee remains in continuous employment, annual leave on full pay at the rate of at least two days per month. 36. The foregoing provision is clear that any employee who is not a temporary or casual employee is entitled to not less than 2 leave days of per month. 37. Further, section 37 of the ECA provides that: qSubject to an agreement between the parties which is more favourable to an employee, an employee shall be paid annual leave benefits based on the fonnula as set out in the Fi.fth Schedule.» 38. The formula is full pay multiplied by accrued days and divided by 26 days. The complainant's testimony was that her full pay was K 2,200.00. There being no evidence to rebut her assertion on her leave claim, I find that she is entitled to leave benefits calculated in accordance ·with the fifth schedule of the ECA as follows: K 2,200 x 20/26 = K 1,692.31. Gratuity 39. The complainant asserted in her affidavit in support of complaint that she was employed on permanent basis. However, a recent Court of Appeal decision in the case of Kingfred Phiri v. Life Master Limitedl7 J determined that gratuity is only payable to employees on fixed term contracts and not those employed on permanent and pensionable basis. Jll 40. In the circumstances, I am disinclined to grant this claim. Notice pay 41. The complainant's success under the claim that she was unlawfully terminated is partly anchored on the fact that she was not given notice of termination in accordance with the law. For this reason, I am disinclined to make an award under this head. I am of the firm view that the damages awarded for unlawful tennination encompass this claim. Costs 42. The respondent did not enter appearance. This, in my view, ts unreasonable conduct envisaged by Rule 44 of the Industrial Relations Court Rules, Cap 269. Thus, it is only proper that the respondent be condemned in costs for and incidental to this action. Conclusion and orders 43. The complainant has proved on a balance of probabilities that her employment was unlawfully terminated and she is entitled to damages beyond the normal measure. She has also proved to the Court's satisfaction that she is owed leave days for her 10 months tenure. The claim for gratuity fails. 44. As such, and for the avoidance of doubt, I make the following orders: J12 {i) The respondent shall pay the complainant the sum of K 13,200.00 as damages for unlawful termination; (ii) The respondent shall pay the complainant the sum of K 1,692.31 as leave benefits; {iii) The judgment sum shall attract interest at short term bank deposit rate from the date of filing of the notice until Judgment and thereafter at current lending rate as determined by Bank of Zambia until full settlement; (iv) The complainant is awarded costs to be agreed or taxed in default of agreement. Parties are informed of their right to appeal. Delivered at Lusaka this 4 th day September, 2025 ......... ~ .: Mwaaka Chigali Mikalile (Mrs.) HIGH COURT JUDGE J13