Kennedy Herbert Lungu v Cool Bananas Limited (IRC/ND/36/2021) [2022] ZMHC 77 (30 June 2022)

IN THE HIGH COURT FOR ZAMBIA AT THE DISTRICT REGISTRY HOLDEN AT NDOLA (Industrial Relations Division) BETWEEN: IRC/ND/36/2021 KENNEDY HERBERT LUNGU I ') COMPLAINANT AND COOL BANANAS LIMITED RESPONDENT Before the Ho n . Mr. Ju s tic e Davies C. Mumba in chambers on th e 30'h d ay of Jun e, 2022. For th e Co m plainant: For the Respondent: Mr. D. S. Libati, Messrs D. S. Libati Legal Pra ctiti o ner s . In Person. JUDGMENT Cases referred to: 1. Est on Ba nda v The Attorney General, Appeal No. 42 of 201 6 . 2. Kitwe Ci t y Council v William Ng'uni (2005) Z. R. 5 7 (SC). Legislation referred to: 1. The Empl oym e nt Co d e Act No. 3 o f 20 19. Other works referred to: 1. Winn ie Sit h o le Mw e nd a a nd Ch a nd a Chu ngu: A Co m pre h ens ive Guid e to Em p lo y m ent Law in Zambia: UNZA Press . 2021. J2 By notice of complaint supported by an affidavit filed into Court on 8 th July, 2021, the complainant commenced this action against the respondent seeking the following reliefs: 1. An order for compensation for loss of employment due to unlawful, unfair and wrongful dismissal. 2. Payn1ent for accrued leave days. 3. Payment of terminal benefits. 4. Any other dues the Court may deem fit. 5. Costs and Interest. In opposing the complaint, the respondent filed into Court its answer and an affidavit in opposition to the notice of complaint on 29 th July, 2021 and denied all the complainant's claims. On 14th December, 2021, the complainant filed into Court an affidavit in reply to the respondent's affidavit in opposition. The complainant, through his affidavits and at the trial, testified that he was employed by the respondent on 4 th April, 2017 as Chief Security Officer after the respondent's Director looked at his military background from Special Forces. That he worked for a period of five years from 4 th April , 2017 to 26 th April, 2021. That his basic salary was K7,659.00. That his duties included planning, coordinating and enforcing company security policies. He was also the in-ch arge of the security dep artment , responsible for the protec tion of company p r op erty, employees and company informa tion . Th a t d u ri n g hi s fi ve years of service, h e wor ked so J3 hard such that in 2018, he had his salary increased twice. That, however, he also accumulated en mi s amongst his fellow workers such that on day he was almo st hacked with a machete by one of the workers. That the san1e worker al o went to his house and planted a plastic containing dagga. That upon discovering that , he reported to the respondent's Director but the Director did not do anything about it. The complainant testified that during the five years of his service , he never went on annual leave. The complainant stated that it all started when he was serving on probation for three months from April, 2017 to June, 2017. That when the probation expired, he was informed by the Director that his probation period was going to be extended for another three months from July to September, 2017. That he was told that the reason for the extension of the probationary period was that his colleague, Chrispin Nkwanisha was not doing his work according to his job description so the Director had to extend their probation for him to assess them properly. That in 2018, he was confirmed and he continued working so hard. In the month of September, 2018, he requested to go on annual leave because he had accrued 24 leave days. That the request was made through Mr. Juji Shanti who was in charge of Human Resource and Administration. That after Mr. Juji presented the complainant's request to the Director, Mr. Juji informed the complainant that the Director had declined hi s request for leave because Chrispin Nkwanisha had resigned J4 and there was no one to stand in for the complainant. That, therefore, the year 2018 came to an end with the respondent owing him 24 leave days which were equivalent to K6,600.44. That in 2019, he continued working hard and remained disciplined such that he never received any charge letter. That in September, 2019, he requested to go leave to go and pursue a Bachelor's degree in criminal law and procedure which required him to be in school for two weeks and later continue through distance learning. That he made the request through the farm Manager, Mr. Titus Million who went to see the Director. That when he came back to him, Titus Million told the complainant that the Director had said that the complainant should first find an Assistant who was supposed to be a former soldier and not Bemba by tribe to stand in for him. That that was a difficult task for him because most of the former soldiers he knew were Bemba by tribe. Therefore, the year 2019 ended without him going on annual leave and the respondent owed him 24 accrued leaves days which translated to K7, 128.00 for the year 2019, which came to a total of Kl3,728.92 for both 2018 and 2019. The complainant testified that whilst working, they had established a system of communication at the farm through the phone either by voice calls, text messages or WhatsApp messages. That through the said platforms, any company messages could be re layed and such messages were treated as official. He stated that in January, 2020, he received a call from the farm Manager, Mr. Titu s Million who informed him that there was going to be a JS meeting in the Director's office at 11 :00. During the said meeting, the Director informed them that he had concluded discussions with a certain union based in Kabwe, that is, the National Union of Plantations, Agriculture and Allied Workers (NUPAAW) and he had allowed the union to open a branch at the respondent company. That he wanted all the workers starting from Farm Manager, other Managers, Supervisors and Casual Workers to join as members of the union. After the meeting, all the workers were given forms to fill in and sign. That in March, 2020, they had some deductions of 1 % from their basic salary towards the union monthly contributions. That in April, 2020, elections to elect the union office bearers were held and he was elected as Union Vice Chairperson for the respondent's branch. In due course, the Chairperson and Secretary of the union resigned from their positions and he remained the only active Executive Member, most of the times communicating to the National Executive in Kabwe. That during that time, he started receiving a lot of complaints from workers such as non-payment of housing allowances for those who were on contract, non-payment of tools allowance as the workers were made to use their own tools to do the work at the farm and not paid allowances at the end of the month. That in December, 2020 after receiving a lot of complaints from the Labour Office, the respondent's Director started paying for accrued leave days to those workers who never took leave. That the complainant was among those that were paid for the accrued leave days for the year 20 20. That he was paid by Martin who made him sign on a brown en ve lope which he got as proof of payment. J6 The complainant testified that in 2021, he continued to work hard and never attracted any charge or disciplinary hearing. That however, in the 111onth of March, 2021, his work environment started becon1ing unconducive. That the farm Manager, Mr. Titu s Million brought someone by the name of Levison Kunda to be hi s Assistant. That the said Levison Kunda never wanted to follow the programs that the complainant was making for the department . That when he tried to sit him down, Levison Kunda told the complainant that he was following instructions from the Farm Manager, who had told him not to follow instructions from the complainant. That the situation continued and between 30 h March, 2021 and 12 th April, 2021, the complainant was compelled to bring it to the attention of the Acting Human Resource Manager , Mr. Saviour Manda. That he informed Mr. Manda through a phone text message. That 14 th April, 2021, Mr. Manda replied to his text message telling him that the Director was informed, and he said that he should continue working hard because he was doing a good job where security of the farm was concerned. That between 20 th April, 2021 and 24 th April, 2021, the Farm Manager and the complainant's Assistant brought three men from the village . That his Assistant told him that the Farm Manager wanted those men to be employed as Security Guards. That one of the three men that were brought had been dismissed from work whilst on probation because of reporting for work in a drunken state. That the complainant explained this to his Assistant who went bacl to the Farm Manager and when he came back, the Assistant said that the J7 Farm Manager had insisted that all th e three me n should b • employed and that was how th ey w re mploy d . That on th• ·am. day, Saturday, 24 111 April, around J 0.00 hour ', h wrot • a t xt message on WhatsApp to the Dire tor, whi ·h h ·xhibit •d as 'KHLS' in his notice of intention to produ · ' a nd th , Dir• ·tor replied at 13 .36 hours stating that he wa s su pe nd d fr om wo rk until the n1atter in which he had reported the Farm Manag r to th. Labour Office was sorted out. That around 14.00 hour ·, th Director went to see him in the company of the Farm Manager, the Assistant Farm Manager, Andrew and two other white boy s . Tha t he requested the Director to put it in writing that he had bee n suspended but the Director refused and started shouting at him saying that he was a thief, and that was why he was dismissed from the Army because he stole money from the accounts department where he was working from. That on 26 th April , 2021 , the Assistant Farm Manager, Andrew assigned some Guards to surround the company house he was occupying and monitor his movements. Later, the Assistant Farm Manager went to his house with the Farm Manager and told him to jump on the vehicle and took him to Twapia Police station where they reported that the complainant was extorting money from his fellow workers . That the Officer-in-Charge asked the Farm Manager whether they had instituted disciplinary proceedings before reporting the matter to Twapia police, and that was how they went back. The next day on 27 th April, 2021, whilst at his house, he saw the Assistant Farm Manager organising Guards and one of the Guards, Mumba, who was near his home asked his fellow Guard when he was called to J8 go and give a state1nent to the Farm Manager, what type of state1nents they were suppo d to give. That the Guard responded that it was over the issu of the complainant's statements. That the other Guard shouted that he did not know anything about the issue. That the con1plainant never said anything but he was just hearing the two Guards talk in his yard. Later that day, he received a phone call fro1n Twapia Police and they told him to report there the san1e day. That when he went there, he found the Director , Sin1on Hayward with the Farm Manager, Titus Million, the Assistant Farn1 Manager, Andrew and the Human Resource Manager , Mr. Saviour Manda. Then the Officer-in-Charge invited them into his office and advised Simon Hayward to go back and fallow the respondent's disciplinary procedures since it was a labour-related matter. The complainant then went to the Labour Office where he met Mr. Charles Muwowo, the Assistant Labour Commissioner for Copperbelt Province and explained everything concerning his suspension. That Mr. Muwowo then told him that in fact he had not been suspended but he had been dismissed. That the Labour Office had received the complainant's letter of dismissal dated 26 th April, 2021. Mr. Muwowo, however, said that he would proceed to summon the respondent and he wrote the letter, exhibited as 'KHL8' in his notice of intention to produce, to the respondent to go to his office the next day on 28 th April, 2021 over the matter of unfair, unlawful and wrongful dismissal. A meeting was held the following day and th e res pond ent was repres ented by Mr. Saviour Manda and the Assistant Farm Manager, Andrew. That Mr. Muwowo asked them to explain the respondent's side of the story and J9 Saviour Manda said that the respondent did not dismiss the complainant but Mr. Muwowo showed him the letter stating that the compl ainant had been disn1issed. Then Mr. Saviour Manda said he was going to get in touch with the respondent and told the con1plainant that he would be con tac ted. That the complainant then wrote a letter to the Minister of Labour and Social Security explaining what had happened and he copied the said letter to the Pern1anent Secretary for Copperbelt Province and the District Con1missioner of Ndola. That he also involved an organisation called the Adju dicators which was headed by Mr. Cephas Daka, who engaged Mr. Muwowo through the phone and Mr. Muwowo confirmed that he knew the matter and that the complainant had since been dismissed and that he had ruled in the complainant 's fa vour. He produced the text message between Mr. Daka and Mu wowo as 'KHL6' in his notice of intention to produce. That after sometime, the complainant went to Mr. Muwowo to ask him to refer the matter to Court and he wrote the letter dated 28 th April , 2021. That that was how he sued the respondent claiming that his dismissal from emp loyment was wrongful, unlawful and unfair. That he was also claiming for payment for accrued leave day s in the sum of Kl3 ,728.00 for the year 2018 and 2019 which he was never paid . That he was also claiming for payment of terminal benefits which he could have received if his employment had not been terminated unlawfully, unfairly and wrongfully. He added that all the allegations stated in his dismissal letter, 'KHLl' namely; gross incompetence, gross dishonest, gross JlO insubordination and threatening behaviour by the respondent were not true because never at any time was he charged for the said offences and he was never at any time called to appear before any disciplinary hearing. That he was not informed of the dates indicated that he was called to appear before the disciplinary hearing. Further, that the workers who reported against him were also not called to prove their allegations before him. That he just saw their statements for the first time in the respondent's affidavit . That he did not also know the woman who had accused him of having solicited for sex from her and he did not know the property he was alleged to have stolen. That he wondered why he was not reported to the Police at the time he was taken there if he had stolen. He further stated that his leave days for 2018 and 2019 were never paid and he saw the document that was presented by the respondent indicating that he had signed to show that he had been paid for the first time in the respondent's affidavit when it was served on him; and that the signature on it was a copy and paste of his signature. During cross-examination, when referred to clause 12(a) and (e) of the complainant's contract of employment at page 4 of the complainant's notice of intention to produce, the complainant stated that it was not correct that an employee was liable for summary dismissal if found guilty of gross misconduct or disobedience but admitted that what he had read was that an employee would be liable to summary dismissal if found guilty of serious misconduct. He denied that the respondent could dismiss Jll him if it took the position that he had either grossly misconducted himself or was disobedient. He also denied that the respondent dismissed hi1n based on gross negligence, gross misconduct and disobedience. When referred to clause 2 S(e) of the collective agree1nent, 'KHL2 ', and asked whether he was paid for his accrued leave days and for the days he worked, the complainant stated that he was underpaid. When referred to the letter, 'SH4', and again clause 2 S(e) of the collective agreement, 'KHL2', the complainant stated that he was entitled to accrued leave days and days worked upon summary dismissal but insisted that that was not what he was only entitled to. When referred to the letter, 'SH4', the complainant confirmed that it was his last pay for April, 2021. That he was paid K?,627.47 as his income. That he was paid K586. 73 for accrued leave days and K2,542.49 as gratuity. He confirmed that his final pay included gratuity and payment in lieu of notice but it was not over and above what he was not entitled to. He stated that the gratuity was not among his entitlements under clause 2 S(e) of the collective agreement. When referred to the letter of termination of employment, dated 26 th April, 2021, the complainant still denied that he was dismissed for gross misconduct. When referred to the letters, 'HS3' and 'HS(i)', the complainant confirmed that the signatures on the documents were his . When referred to the notice, 'HS4(viii)', the complainant confirmed that he received the notice and that one of the signatures and NRC numbers on the 2nd page of his document were his. He admitted that he was put on notice of the prevalence of the practice of extortion in the workplace on 3 l5 1 March, 2021. He J12 denied that the eight complaints attached to the notice, exhibit 'HS4(viii)' were lodged against him to the respondent. That he disputed the co1nplaints in paragraph 10 of his affidavit in reply. He stated that it was never brought to his attention that he had breached company rules. He admitted that he had the said docu1nent with him together with all the eight complaints even before he filed his notice of complaint but he never asked for further and better particulars. He also admitted that he lodged a co1nplaint against the respondent at the Labour Office and the letter, exhibit 'KHL8' was from the Labour Office to the respondent fallowing his complaint. That there were numerous correspondences among the Labour Office, the respondent and himself but he did not produce them before Court. The complainant confirmed that the letter, exhibit 'HS2(ii)' dated 23 rd April, 2021 was from the Labour Office and that he disputed the contents of the said letter in paragraph 9 of his affidavit in reply wherein he stated that he strongly challenged the respondent that there was no disciplinary hearing and he was not given a chance to exculpate himself. Further, that he responded to the contents of the letter in paragraphs 6 and 7 of his affidavit in reply where he stated that he was not served with a charge letter or any letter inviting him to exculpate himself or appear before a disciplinary hearing. When referred to the letter, exhibit 'SH4(v)', the complainant confirmed that he received the said letter from the Assistant Labour Commissioner, Mr. Muwowo. He admitted having written letters to both the Minister of Labour and the Labour Office. When referred to the letter, exhibit 'SH4(iv), the J13 complainant confirmed that h e had received the document from the respondent when it responded to his notice of complaint and that he disputed its cont nt s in paragraph 7 of his affidavit in reply although not sp cificaJly. Wh e n referred to the letter, exhibit 'KHLl ', the co1nplainant admitted that according to the said letter, he repeatedly mis ed appoint1nents with Management to discuss his conduct in the workplace and also that on 28 th April, 2021 , the complainant refuse d to receive the letter of termination of his employment in front of the Labour Officer. When referred to the \ hatsApp message s 'KHL4' and 'KHLS' in the complainant ' s notice of intention to produce, the complainant denied that on 'KHL4 ', the response that he gave to Mr. Hayward was cut out. That the message wa s complete as the two documents contained the same message. When referred to the text messages, exhibit 'KHL6 ' in the complainant ' s notice of intention to produce, the comp lainant stated that there was no mobile number and date indicated on the document. When referred to the medical slip, 'KHL3' in the complainant ' s affidavit in reply, the complainant admitt ed that there was no letter supporting that the slip was from Mu hili Commando Hospital but state d that there was a date stamp . When referred to the letter, exhibit 'HSl' dated 6 th April, 2021 and the letter , exhibit 'HS2' dated 12 th April, 2021, the complainant confirmed that the letters were addressed to him as well as the letter, exhibit 'HS2(ii)' dated 20 th April, 2021. When further cross -examin e d, th complainant sta ted that during the five years he worked for the respondent, he worked so hard J14 such that his salary was incr as d twice in 2018 but he started accumulating ene1nies an1ong hi f -llow workers. However, he did not produce any docun1 nt or all c ny witn to prove that he had ene1nies at the worl . pla . H stat d th e t h had no witness or docu1nentary evid nee to onfirm that on day he wa s almost hacked with a 111ach te by one of the work r ; and also that that worker planted dagga in his yard. H tated that he had no witnes or docun1entary vid nc to prov that he was told th at his probation wa going to be extended from July to September , 2017 because his colleague, Chrispin Nkwanisha had not performed ,,ve il. That he had no witness or documentary evidence to show that when he applied for leave, Mr. Juji, after presenting the con1plainant's request to the Director, was told that the complainant could not go on leave because Chripsin Nkwanisha had resigned and there was no one to stand in for him. That he did not bring any witness or documentary evidence to show that in September, 2019, he had applied for two weeks' leave to go and pursue a Bachelors' Degree in Criminal Law and Procedure. Th t he did not call any witness or produce any document ary e idenc to show that at some point, NUPAAW started d ducting 1% fron1 his salary. That he had no witness or docum ntar id n t pro ve that the Farm Manager, Titus Million had brought on1 on by the name of Levison Kunda who nev r ant d to foll th programmes the complainant was putting up for th ct partn1 nt. That he had no evi d n to how th t th arn1 M n · r nd th Assistant Farm Manag r h d t k n thr ill g to work as Security Guards and it w 111 1 t d th t the thr e hould JlS work under him despite that one of them had been caught drunk whilst on duty. That he had no witness or documentary evidence to show that when he told the Director to put it in writing that he had been suspended, the Director refused to do so and started shouting at hin1, stating that he was a thief and that that was why he was disn1issed from the Army because he stole from the accounts department. That he had no witness or documentary evidence to show that he had been taken to Twapia Police on two occasions by the respondent where the respondent reported him for extortion. In re-examination, the complainant stated that the statements in the eight complaints that were lodged against him were not clear enough for him to understand what was meant by the statements . He stated that the reason he could not call witnesses was because they were still working for the respondent and so he thought the y could not be credible witnesses. He also stated that the incomplete part of the text message, exhibit 'KHLS' was not submitted before Court so he felt it was not possible to bring it before Court as it was not even marked. The evidence from the respondent came from Simon Francis Hayward (RWl), Director in the respondent company, through his affidavit in opposition to the notice of complaint and at trial. He testified that in 2017, the respondent recruited Sergeant Major Chrispin as a Guard Force Commander. That the Sergeant Major asked if he could recruit an Assistant and when allowed to do so, - Jl. 6 he brought in the comp]ainant as hi s Ass istant. That after a very short period of tim e, th S rg a nt Major res ign ed and the respondent off red th po ition of Guard Co mmander to the complainant. He explain ed tha t when he fir s t s tarted working for the respondent , the complainant was very good but small problems started to occur which grew bigger overtime. That in early 2021, the witness started to hear stories of Supervisors exthorting n1one y from workers such as payment to get a job, payment to take a day off, payment to take leave and sometimes being forced to take out loans for a supervisor. That he gathered all the Managers and Supervisors in his office and he gave each one of them letters stating that exthorting money from employees would not be tolerated. That the complainant and all other Managers and Supervisors signed to say they had received the said letter. That in the next few days, he started receiving complaints from the Guard force that the complainant had been exthorting mone y from them and a number of witness statements were lodged in evidence to that effect. That he also received complaints from at le ast one of the women who worked on the farm that the complainant had been pestering them for sexual favours, thereby abusing his position of trust. That two weeks later, he summoned the complainant in writing to exculpate himself on two occasions. That before that, he had met with the complainant in his office on two occasions to attempt to ge t to the bottom of what was disturbing him. That the complainant refused to sign the letters J1 7 the witness gave him and also to appear for exculpation before an internal disciplinary hearing b for e the witness and the Farm Manager. That he , th erefore , took advi ce from the Labour Office on how to pro c d with th m a tt r. That La bour Office then advised the '" itn es th at th e res pond e nt had ac ted within the law. Then on 24 111 April , 20 2 1, th e con1plainant had a blazing argument with the witness publicly where th e complainant threatened th e witness and n1ade claims of victimization against the Farm Manager. That as a result, the witness suspended the complainant with full pay pending investigations. He explained that during the argument , the complainant was shouting at him saying that 'Sack me !' Sack me! Sack me!' However, the witness did not sack the complainant but instead suspended him. The witness then sought legal advice and with the blessing of the Labour Office, he was told that he could terminate the employment of the complainant. That the letter of termination of employment was delivered to the complainant by the Labour Office. That the Labour Office also told the witness the final financial settlement which had to be made to the complainant, that is, outstanding leave days for 2021, gratuity for 2021, one month's pay in lieu of notice and any outstanding pay. That the money was paid to the complainant and he accepted it. The witness testified that the complainant was dismissed at the end of April , 2021 for exthorting money from workers, threatening female employees, not carrying out his duties properly, threatening the witness, making false claims against the Farm J18 Manager, refusing to work with an Assistant that the respondent provided him to h elp hi1n run the Guard Fo rce and re fusing to attend di sc ip li nary hearings . That the witness was left with no choice but to disn1iss the complainant. The witness referred the Court to a copy of the letter, 'HS4(viii)' dated 3 l5 1 March , 2021 and stated that it was the letter that he had given to all the Managers and Supervisors advising them that extorting money from e1nployees would not be tolerated . That the complainant had signed the said le tter. The witness also referred th e Court to the eight statements that were attached to the said letter, which he said were complaints from the Guard Force to the effec t that the complainant ha d been receiving money from them. The witness reiterated that after receiving the said complaints , he summoned the complainant on two occasions via the letters , 'HS l' dated 6 th April , 2021 and 'HS2 ' dated 12 th April, 2021. That he also wrote the letter , 'HS2(i)' dated 20 th April, 2021 in which he informed the complainant that he was going to seek legal advic e . That in response to its le t t er to the Labour Office, the Labour Office wrote to the responde n t t h e letter, 'HS2(ii)' in which the Labour Office advised that the resp on d ent had act ed within t he law. The witness stated that the complainant' s claims that he was unfairly , unlawfully and wrongfu lly dismissal were baseless. That the accusations against the complainant that he grossly misconducted himself, that he was grossly incompetent, grossly dishonest, grossly insubo rdinate and that he had engaged in threatening behaviour were true. J1 9 Regarding the con1plainant' claim that h was owed the sum of Kl3,728.00 for accrued I av day for th y ar 2018 and 2019, the witness stated that th lain1 wa ba s le s be ause he personally paid the con1pl inant hi I av day for tho se y ar . That the con1plainant ign ed th lett r s, xhibit ' HS3' dat ed 2 l5' Dece mber ' 2019 and 'H 3(i) ' dat d 23 rd December, 2018 to that effec t. That upon his di 1ni al at the month end of April, the complainan t was paid K6,101.98 for the days he worked in April, 2021; K2 ,5 42.4 9 gratuity upto April; 20 2 1, K5 86 .73 leave pay for 2021 and K 7, 62 7.4 7 as one m onth' s pay in lieu of notice as shown by the pay statement, 'H S4' . The witness rejected all of the complainant' s claims. During cross-exam ination, when referred to the WhatsApp message , 'KHLS' in the complainant's notice of intention to produce , the witne ss stated that he could not remember his re sponse when the comp lainant sent him that mes sage but the text appearing on the message, exhibit 'KH L4' stated that 'this is a. very serious charge and until it is sorted, I have no choice but to temporary suspend you on fu ll pay'. That after e changing tho e text s me ssages, the only meeting he r membered ha ing ith the complainant was the one at the Labour Office when the complainant wa s told that h wa s di mi ssed . That he could not remember any oth r m e ting . I-I d ni d t stifying that he employed the complainant through Human Resource and stated that the complainant was tak n to the farm by Sergeant Maj or Crispin. He admitted that they had a Human Resources Manager at J20 the farm but tha t h e did not keep personal fi les of the employees. When referred to the Jett r and co ll ectiv agreement, exhibit 'KHL2' in th con1p lainan t's arfidavH in support of the co m plainant, th w.itn lated t hat h was not a signatory to the co llective agre 111 nt. He adn1i ll d t hat th re spond e nt was a n1en1ber of the Fanner' Union of Zambia but that it wa s not a n1en1b r of th National Union of Plantation , Agriculture and llied Workers. That the National Union of Plantation, Agriculture and Allied Workers repres ente d e mployees an d not employers. That the respondent acc epted the said union when it went to open a branch at the re spondent company. When r eferred to clause l0(c) of the collective agreement, 'KHL2', the witne s s stated that the respondent ap plied the clause to the complainant at the time he was dismis s e d and there was proof before Court to show that the clause wa s fo llow ed. When referred t o the letters, exhibits 'HS3' and 'HS 3(i)', RWl stated that the two w ere not standard documents the r e sp ondent used when making p ayments such as payments for acc rue d leave days but he wrote the d ocuments to the complainant. That every case was different so there wa s no standard document. That he gave the original document to the com p lainant and made copie in the presence of the complainant which he kept. That the document was signed in his office on 23 rd Decemb r, 2019. That he was just with the complainant and no other p r on was pre ent. He remembered paying th complainant for his accrued leave days fo r the year 2020. That he could not re1nember who was present J2 1 when he was paying th e con1plainant. That they cou ld have signed a similar document when making the paym nt but he did not have the document. When ask d how th e s ignatur s on the letters ' igned on e year apart had exhibits 'HS3' and 'HS3(i) whi h w re his signatur e block aln1o s t on the sarne po sition , .ess co111plainant us ed to sign . Wh en th e witn stated that that was how th referred to th staten1ents attached to the noti ce, exhibit 'HS4(viii) ' , RWl stated that the allegations did not happ en on the san1e day. That the said statements were not dat ed. He deni ed that the y ,,vere written in January, 2021. The witness stated that th e complainant ' s job description was in his contract. That ther e was no clause in the contract that specifically gave the complainant authority to deal with employees' leave but that the complainant , as the Guard Commander and just like any other Sup ervisor , was responsible for approving leave applications for his subordinates . He stated that the female employee who reported that th e comp lainant had solicited for sex from her was Dorothy from the Store at the Farm. That she made the complaint after the witness had suspended the complainant and she said that it had happ ened on numero u s dates in the Store. That there was no st atemen t re c orded from Dorothy as sh e made a verbal complaint. That there w a s no n ee d for h im to investigat e that allegation b eca u e he ha d alread y su s pende d the complainant at the time s he told hi n1 an d it wa s not part of the c harg es th a t had b ee n le ve lle d again t th e complainant . T h e witn ss s ta te d th a t th con1pl aina nt was given chance to prove his inno c n c . Th a t h h a d as l d th complainant to go to his office to e xculp a te him se lf on 12 th and 2 1st April, 2021 J22 but the complainant refused to do so. When referred to the letter ' 'KHL8' in the complainant's notice of intention to produce, the witness stated that he understood the contents of the letter. That to the best of his knowledge, all the documents that were required by the Labour Office were delivered. That if they had not been delivered , the Labour Office would not have reached to the conclusion that it reached. He denied that the Labour Office summoned him despite having advised him that the respondent had the right to dismiss the complainant. RWl stated that he could not remember the exact date when he summoned the complainant to his office to find out what was troubling him but that it could have been in March. That no statement was recorded and there was no witness in the meeting. He stated that when the complainant accused the Farm Manager of victimisation on 24 th April, 2021, he did not call the Farm Manager so that the complainant could substantiate his claims because the complainant was screaming and shouting. That the complainant was unresponsive and being unreasonable. That he got the information that the complainant was refusing to work with the Assistant from the complainant himself and Memory around 24 th April, 2021. That the complainant had told the Farm Manager and that the witness took it as the truth because he believed the Farm Manager. He denied condemning the complainant before hearing him. That as shown in the message, 'KHL4', he did not dismiss the complainant but just suspended him with full pay pending inquiries. When asked whether he had given the complainant chance to answer to the allegations between Saturday , 24 th April , 2021 when h e suspended the complainant and J23 Monday, 26 th April, 2021 when he dismissed the complainant, RWl stated that he had asked the complainant on numerous occasions to explain the side of his story but he repeatedly refused. He stated that the dismissal did not en1anate from the message only. He stated that he did not speak to the complainant over that weekend he suspended hin1. He ad1nitted that he did not give the co1nplainant chance to be heard before that dismissal but stated that it was because the complainant was not communicating with him. He stated that the reason the complainant was taken to Twapia Police station in April after he had already been dismissed was because the Guards had accused him of exthorting money from them. That he could not answer as to whether the police charged or locked up the complainant as he only reported the matter because he thought it was not right. That the Officer in Charge did not give any guidance to the respondent. That they went back to Twapia police because the complainant was summoned again a few days later. When referred to the letter of termination, exhibit 'KHLl ', RWl stated that there was no need to prove that the complainant had taken any documents that belonged to the respondent but he just asked the complainant to return anything that he might have taken. That the books that the complainant was alleged to have stolen on page 2 of the letter of termination, 'KHLl' were record books for logging in vehicles that were going in and out of the farm. When asked why the witness did not report the complainant to have stolen property from the farm, the witness stated that when the complainant was recalled to Twapia police for the second time, the witness went there and J24 the allegation that was levelled against the complainant was that of extortion. That the date when it was discovered that the books were stolen was irre] vanl. Wh n r f rred to section 5 2(3) and 36 of the En1ployn1ent Code a t No . 3 of 2019, the witness stated the respondent follow d th provisions of the collective agreement ½ hen dealing with the complainant's case and that the con1plainant had a copy of the said collective agreement. In re-examination, when asked whether the respondent had con1plied with clause 1 0(c) of the collective agreement, the witness stated that the process leading upto the complainant's dismissal took over a period of two to three weeks during which time he refused two requests to exculpate himself. That, therefore , the respondent did everything to the letter of the law. That he had exhibited letters in his affidavit which he had also submitted to the Labour Office and to the complainant stating that the complainant had failed to present himself for exculpation at a disciplinary hearing. He stated that the statements by the Guards were made after he had suspended the complainant. That the verbal complaint from the female employee was also made after the complainant had been suspended but that the main accusations against him were extortion. He stated that after suspending the complainant on 24 th April, 2021, there was a meeting with the complainant, the Labour Officers and representatives from the respondent at the Labour Office. That the complainant was dismissed from work at the end of that meeting. That during that meeting, the complainant had the opportunity to J25 exculpate himself. That the question of books being removed was of less significance than the other allegations. Both parties filed final written submissions which I have duly taken into account and I will make reference to them where relevant. I have considered the affidavit and viva voce evidence from both parties. The facts which were common cause are that the complainant was employed by the respondent on 4 th April, 2017 as Chief Security Officer. He worked for a period of five years until he was dismissed from employment on 26 th April, 2021 on allegations of gross misconduct, gross incompetence, gross dishonesty , gross insubordination and threatening behaviour. The complainant was not heard on the said allegations by the respondent before his dismissal. Further, during the course of his employment, the com.plainant had not gone on annual leave in 2018 and 2019; and had accrued a total of 24 leave days in each of those year . From the evidence on record, the following are the issues for determination : 1. Whether the comp lainant's dismissal from employment was wrongful and unfair th reby entitling him to damages. J26 ii. Whether the complainant is entitled to the payment of the sum of Kl3 ,728.92 for accrued leave days for the year 2018 and 2019. iii. Whether the co1nplainant is entitled to the payment of terminal benefits that would have accrued to him had he not been dis1nissed from employment. I will start with the first issue. Regarding the complainant's claim for an order that his dismissal from employment was unlawful, unfair and wrongful, the Supreme Court in the case of Eston Banda and Another v the Attorney GeneraP , has guided that: "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 a term for which the employee is engaged; whilst 'unfair' refers to a dismissal in breach of a statutory provision where an employee has a statutory right not to be dismissed. A loose reference to the term 'unlawful' to mean 'unfair' is strictly speaking, in employment parlance, incorrect and is bound to cause confusion. The learned author, Judge W. S. Mwenda, clarifies on the two broad categories, in her book Employment Law in Zambia: Cases and Materials, (2011), revised edition UNZA Press, Zambia at page 136. She opines that, in our jurisdiction, a dismissal is either wrongful or unfair, and that wrongful dismissal looks at the form of the dismissal whilst unfair dismissal is a creature of statute." On the above authority, I am of the view that the relief that the complainant is seeking is for an order that his dismissal be J27 declared to have been wrongful and unfair, hence the main question that has been s t for the d termination by the Court. For the con1plainant to succeed in hi claim that he wa wrongfully dismissed fron1 en1ploy1nent, he has to prove, on a balance of probabilities, that the respondent breached the disciplinary procedure and/or a term of his contract at the time he was disn1issed as was held in the Eston Banda 1 case . As for his claim tha t h is dismissal from emplo yment was unfair , the learned authors, Judge W. S. Mwenda and Chanda Chungu, in their book entitled: A Comprehensive Guide to Employment Law in Zambia, state at page 241 as follows: "Unfair dismissal is dismissal that is contrary to the statute or based on unsubstantiated ground. For unfair dismis sal, the Courts will look at the reasons for the dismissal for the purpose of de termining whether the dismissal was justified or not. In reaching the conclusion that the dismissal is unfair, the Court will look at the substance or merits to determine if the dismissal was reasonable and justified." Therefore , to prove that his dismissal fr om employment was unfair, the complainant has to establish that a specific statutory provision was breached by the respondent or that the di missal was based on unsubstantiated reasons. In the present cas , the complainant has contended that his dismissal from employment was wrongful and unfair because the respondent breached the provisions of clause 1 O(c) of the collective agreement, exhibit 'KHL2' and section 5 2(3) of the J28 Employme nt Cod e Act No. 3 of 2019, which provide that an employer shall not t rminate the ontract of employment of an employee on ground r lat d to conduct or performance without affording th en1ployee an opportunity to be heard . The con1plainant argu d that he wa not served with any charges and he was not in ited to exc ul pa te himself or appear before a disciplinary hearing before the respondent dismissed him. He also argued that all the allegations for wh ic h he was dismissed, that is, gross incompetence, gros s di shonest , gros s in subordination and threatening behaviour were not substantiated as he was never at any time charged for the said offences and he was never at any time called to appear before any disciplinary hearing t o exculpate himself. Further, that the workers who reported again st him were also not called to prove their allegations against him. That he saw their statements for the first time in the respondent ' s affidavit. That he al so did not know the woman who accused h im of having solicited for sex from her; and he did not kno w the property he was alleged to h ave stolen. On the other hand , the respondent has argued that the complainant was dismisse d for exho r ting money from workers, soliciting sex from female emp loyees, not carrying out hi duties properly, threatening behaviour, making false claims against the Farm Manager, refusing to work with an ssistant that the respondent provided him to help him run the Guard Force and refusing to attend disciplinary hearings. That RWl had received co mplaints from Guards that the complainant had b een extorting J29 money from them as shown by the wi.tness statements attached to the letter, 'HS4(viii). That aft r receiving the said complaints, he summoned the complainant on two occasions via the letters, 'HS l' dated 6 th April , 2021 and 'HS2' dated 12 th April, 2021 to appear before Manag 111 nt to answ r to the all gation and to also appear before an int rnal disciplinary board but the complainant refused to sign the said lett rs. That before that, RWl had met with the complainant on two occasions in an attempt to get to the bottom of what was disturbing him but to no avail. That RWl also received complaints from at least one of the women who worked on the farm that the complainant had been pestering them for sexual favours. That on 24 th April, 2021, the complainant had an argument with RWl publicly where the complainant threatened him and made claims of victimization against the Farm Manager. That he suspended the complainant with full pay but could not afford him an opportunity to be heard because they were not communicating. That the accusations against the complainant that he grossly misconducted himself, that he was grossly incompetent, grossly dishonest, grossly insubordinate and that he had engaged in threatening behaviour were true and the respondent was left with no choice but to dismiss the complainant. I h ave considered the parties' opposing arguments. It is not in dispute that the comp la inant was dismissed from work for t h e offence s of gross misconduct, gr o ss incompetence, gross J30 dishonesty, gross insubordination and threatening behaviour. It can be seen that the above offenc e related to the complainant's conduct and perforn1ance. Sec tion 5 2(3) of the Employment Code Act No. 3 of 2019 provides tha t: "An employer shall not terminate the contract of employment of an employee for reasons related to an employee's conduct is accorded an or perforntance, before opportunity to be heard. " the employee Further, clause lO(c) of the collective agreement, 'KHL2 ' which go verned the complainant's conditions of service provided as follo ws: "An employer shall not terminate the service of an employee on grounds related to the conduct or performance without affording the employee an opportunity to be heard on charges laid against them." In casu, it is on record that the complainant did not exculpate himself on the allegations that were levelled against him and he was not heard by the respondent before he was dismissed from employment. According to the respondent, the reason the complainant was not heard was because he had, on numerous occasions, refused or neglected to exculpate himself or present himself for disciplinary hearing when summoned do so both verbally and in writing. To that effect, the respondent produced the letters, 'HS l ', 'HS2' and 'HS2(i). I have read the said letters. Under 'HS l ', the respondent informed the complainant of the charges that had been raised against him by fellow employees and asked him to appear before Management on 8 th April, 2021 to exc ulpate himself. The complainant did not appear before • J31 Management on 8 th April, 2021. Under 'HS2', the respondent wrote to the complainant inforn1ing him that since he had failed to appear before Management as requested, he would have to appear before an internal disciplinary board for a hearing relating to his conduct on 16 th April, 2021. The complainant still did not appear before the internal disciplinary board. The respondent then wrote the letter, 'HS2(i) to the co1nplainant stating that since he had failed to appear before the internal disciplinary board , it was going to seek legal advice. On 22 nd April, 2021, the respondent wrote the letter, 'HS2 (iii) to the Labour Office seeking advice on how proceed with the matter. In response, the Labour Office wrote the letter , 'HS2 (ii) to the respondent wherein it advised the respondent that it had the right to act and proceed to decide the matter in line with its disciplinary code since the complainant had decided not to appear before Management and the internal disciplinary board. The complainant denied having been served with the letters , 'HS l ', 'HS2' and 'HS2(i) and he stated that on 8 th April, 2021, he had gone to the clinic with the permission of the respondent. He produced a document in his affidavit in reply, which he said was from Mushili Commando Hospital. However, the complainant did not produce any slip to show that the respondent had given him permission to go to the hospital and he did not mention the specific office or person that had given him permission to go to the hospital. Further, the docum nt produced by the complainant in his affidavit in reply did not have any signature from any medical personnel from the hospital he attended. I believe it ' • J32 cannot be a n1ere coincidence that the complainant decided to go to the hospital on th day that he wa s asked to appear before Managenient to ex ulpat - him se lf ov r th e complaints that had been laid again s t hi n1 by hi s f c]Jow e mploy e . In my view, the co111plainant was awar of th charges a nd delib era tely dec ided to go to the ho spital to avoid app earing before Managem ent to ans\,\ er to the said charges. On the whole, I find tha t the con1plainant had been served with the letters, exhibits 'HS l ', 'HS2 ' and ' HS 2 (i) '; and that he deliberately chose not to seize the opportunity to be heard and to defend himse lf against th e allegations levelle d against him. For this reason , I have believed the respondent that it had on numerous occasions summoned the complainant to exculpate himself on the allegations but he vvittingly refu sed to do so. In this regard, the complainant has himself to blame as he decided to sleep on his right to be heard. Therefore , the respondent cannot be faulted for having dismissed the complainant without hearing him out as the complainant was accorded an opportunity to be heard which he turned do wn . Consequently, I am satisfied that the respondent did not breach the provisions of section 52(3) of the Employment Code Act o. 3 of 2019 and clause l0(c) of the collective agreement, 'KHL2 ' and as such, the complainant's clai.m that his dismissal from employment was unfair and wrongful cannot stand and is accordingly di s mi sse d . J33 I now turn to the second issue, which is, whether the complainant is entitled to the payment of the sum of Kl3,728.92 for accrued leave days for the year 2018 and 2019. There in undisputed evidence that the complainant did not go on leave in 2018 and in 2019, but it was argued, on behalf of the respondent, that the complainant was paid K6,093. l 2 in 2018 and K6,582.00 in 2019 for the leave days he had accrued as shown by the letters, 'HS3(i) and 'HS3' which he signed. The complainant denied having been paid the money. I have read the letters, 'HS3(i) and 'HS3 '. The said letters merely indicated that the respondent acknowledged that the complainant had not taken leave in the respective years and calculated the leave pay that was due to the complainant for the days that had accrued. There is nowhere in the letters where it was indicated that the complainant had received the payment. Further, the respondent did not produce any documentary evidence such as pay statements or any documents signed by the complainant confirming that he had received the payment. For this reason, I am satisfied that the complainant was not paid for his accrued leave days in 2018 and 2019. Therefore, I enter judgment in his favour in the sum of Kl2,675.12 being payment for accrued leave days for the year 2018 and 2019, with interest at the short-term commercial deposit rate, as determined by the Bank of Zambia, fr om the date of the notice of complainant to the date of the judgment and thereafter, at 10% per annum until full settlement. ,\ I J34 Regarding the third issue, which is whether the complainant is entitled to the pay1n ent of terminal benefits that would have accrued to hi1n had h e not b ee n di s mi sse d from employment, I am guided b y the holdin g in th e case o f Kitwe City Council v. William Ng'uni, 2 where it was held that: "You cannot award a salary or pension benefits, for that n1atter, for a period not worked for because such an award has not been earned and might be properly termed as unjust enrichn1ent." In casu, it is on record that the complainant did not render any services to the respondent after he was dismissed from emplo yment and as such, awarding him terminal benefits for a period he did not work would amount to unjust enrichment. In this regard , therefore, the complainant's claim for terminal benefits that could have accrued to him had he not been dismissed from employment is devoid of merit and is accordingly dismissed. I make no order for costs. Each party will bear own costs. Leave to appeal is granted. Delivered at Ndola this 30th day of June, 2022. Davies C. Mumba HIGH COURT JUDGE