Kilpatrick F. Kabwita v Live Radio Limited (2023/HPIR/0113) [2025] ZMHC 122 (26 June 2025)

IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA 2023/HPIR/0l l 3 BETWEEN AND LIVE RAD[O LIMITED RESPONDENT Coram: ChigaH Mtkalile, J thts 26th day of June, 2025 For the Complainarit : In person For the Respondent: Ms. E. M. Phiri - Station Manager JUDGM'. ENT Legislation referred to: 1. The Employment Code Act, No. 3 of 2019 Cases referred to: 1) Wilson Masauso Zulu v. Avondale Housing Project Limited (1982) Z. R. i'72-,...,, 2) Zambia Consolidated Copper Mines I,td v. Richard Kangwa & Others (2000) Z. R. 109 . Text referred to: 1. Halsbury's Laws of England, 4 th Edition Vol. 16 (re-issue): Butterworths London,2000 Introduction 1. The complainant alleges that he was employed by the respondent in August, 2018 as a Radio Presenter until he was dismissed in 2022. He commenced this action on 6 th February, 2023 for the following reliefs: (a) Benefits for years worked; (b)Salary arrears; (c) Any other benefits the court may deem fit and costs. 2. The respondent denies ever employing the respondent and alleges that he merely offered voluntary services and on 27th December, 2022, he was notified that his services were no longer required. Consequently, the complainant is not entitled to the reliefs he seeks. Affidavit evidence 3. In the affidavit in support of the complaint, the complainant avers that he was verbally employed by the respondent from August, 2018 to 27th December, 2022. Exhibited to the affidavit and marked "KFKl" is a letter of termination of services. The respondent made it clear to him that it did not owe him anything. He then sought the assistance of the labour office but nothing fruitful came from that avenue hence J 2 commencing action. Exhibited as "KFK2" is the letter from the labour inspector to that effect dated 2 nd February, 2023. 4. The affidavit in support of Answer was sworn by Esther Mwanza Phiri, the respondent's Station Manager. She averred that the respondent hired a company call I-Rock Technologies Limited as business development consultant in August, 2018. I-Rock crune with its working team including the complainant. I-Rock further recommended that the complainant should be engaged as a presenter on voluntary basis for one of the Sunday shows. Exhibited to the affidavit and marked "EMPl" collectively are a letter from I-Rock's Chief Executive Officer outlining the circumstances in which the complainant was engaged and a consultancy agreement between the respondent and I-Rock. 5. The deponent also averred that the complainant did not work well with the respondent and on 27th December, 2022, the respondent informed the complainant that his voluntary services were no longer needed as they were not adding value to the respondent. The termination notification is exhibited as "EMP2". 6. According to the deponent, the complainant was not on the respondent's payroll as he was not an employee, therefore, the respondent has no obligation to pay his claims. 0 J3 Evidence at trial 7. The complainant testified on his own behalf and called no other witness. The respondent called three witnesses. 8. The complainant testified that he was employed by the respondent on permanent basis on 9 th August, 2018. He, however, never signed a contract of employment despite the respondent undertaking to give him one. On 25th December, 2022, he was on his way to work when he received a text message from the station manager asking him not to report and to pick up his letter on 26th December, 2022. He picked the letter on 27th December, 2022 and the station manager explained that there were three reasons for his termination. Firstly, that he did not play a program for a client on a particular day. Secondly, that he was reporting late for work and lastly that he brought down the respondent's business as they were making losses. According to the complainant, he sought clarity on the issues outlined but was just told that the CEO had made a decision to get rid of him. 9. He asked about his terminal dues and was informed that the Q respondent did not owe him anything. It was his evidence that he was paid a monthly salary of K 1,000.00. He, however, did not receive his salary from October to December, 2022. He told court that he was not issued pay slips but used to sign in a book for receipt of the salary. The book is in the respondent's custody. Further, he did not receive an allowance of K 2,150.00 for bringing business from a company called ETG Group. J4 10. The complainant further testified that he never once went on leave during his employment tenure. He prayed for an order of payment of all his dues. According to him, he was unjustly fired. 11. In reacting to the Answer, he told court that he was truly an employee of the respondent and that he went there alone, not through the company I-Rock. He expressed discontent with the assertion that he did not add value to the respondent. According to him, he would not have been kept for all those years had that been true. Whether part time or full time, he was entitled to the claims made and it was unfair for the respondent to dismiss his claims after his service to it. 12. When cross examined, the complainant stated that he approached the respondent upon learning that the station was looking for presenters. He stated that he was auditioned by the head of presenters and was given a program to present. He admitted that he accepted employment without knowing the conditions of service. He was told of the sala.1:y of K 1,000.00 by the station manager and the CEO. He stated that the salary was initially K 800.00 and was later increased Q to K 1,000.00. He accepted that there were no statutory deductions. He further stated that his employment was terminated because his services were no longer required. 13. The first v.ritness for the respondent (RWl) was Esther Mwanza Phiri, the Station Manager. She testified in accordance with her affidavit and added that I-Rock, the company that brought the J 5 complainant to the respondent, was fully responsible for its team including the complainant. According to the contract between the respondent and I-Rock, I-Rock was to run the respondent and share in the profits made. How·ever, by December, 2018, no business was brought by I-Rock and the CEO stopped showing up for work. His team members started leaving one by one but the complainant continued working until 27th December, 2022 \Vhen his voluntary services were terminated. The reasons for the termination were that he was not consistent and his stay with the respondent was not adding any value. 14. It was RWl 's further testimony that the complainant asked for free 45 minutes airtime for a program called Ulimi and further asked that once he got sponsors for it, he should start getting presenter's fee. He was given that 45 minutes but for one year, the program remained unsponsored. The complainant then asked to be considered for transport and airtime to be calling guests on air. He was at times given K 150, KSOO or even K 1,000 in some instances. According to RWl, that was not a salary. 0 15. When his services were terminated, the complainant was told that he had no benefits as a volunteer. He then went to the labour office claiming wrongful dismissal and salary arrears. RW 1 was prompted to contact the CEO for I-Rock who wrote the statement exhibited to the respondent's affidavit on how the complainant was engaged. JG l6. She further testified that when employing someone, the candidate must apply for the job and interviews are conducted by three people including herself and CEO. An offer letter is then given to a successful candidate plus conditions of service. No one is employed verbally. She denied the assertion that the complainant approached her for an offer letter or written contract. In conclusion, RW 1 told court that she does not know where the complainant is basing his claims. 17. When cross examined, RWl confirmed that the complainant came through I-Rock and that I-Rock's contract was not terminated. They just stopped showing up. She stated that the complainant was supposed to find sponsors for the Ulimi program and denied the assertion that a company called ETG sponsored the program. She also stated that the amount given to the complainant for transport and airtime was never fixed. It ranged from K 150 to K 1,000 and was paid from petty cash. She further stated that the complainant used to present on a program on Sunday morning and the one for which he asked for 45 minutes. 18. RW2 was Jamia Nkhoma, the respondent's CEO whose evidence C basically was that the complainant was not entitled to the claims he made for the reason that he was a voluntary employee. He had n o salary or any entitlement. 19. When cross examined, RW2 stated that I-Rock, through which the complainant came, was in charge of his wellbeing. When I-Rock left, the complainant remained doing a gospel show on Sunday and he then J 7 left. Rebecca took over. The complainant returned around 2019 ·with idea for the agriculture show called Ulimi. According to RW2, she told him that the respondent could not employ him due to financial constraints. His response was that he was a·ware and that he wanted to continue being on radio due to the passion he had for it. The complainant further assured RW2 that he would get sponsorship for the sho,v and the respondent would then find a way of taking care of him. 20. On ETG Group, RW2 stated that it was an old client of the Q respondent's and to her knowledge, it never sponsored the complainant's show. She also stated that she was very sure that the complainant never brought any clients. 21. RW3 was George Mazambani, a Sales and Marketing manager at the respondent company whose testimony was that since the respondent was struggling financially, I-Rock came v.rith its own presenters to do the shows they birthed. These were to be taken care of by I-Rock. The complainant's show· was a gospel one. When the business did not materialise, I-Rock phased away. The Directors stopped showing up and eventually presenters followed suit. Only the complainant and one other presenter called Peter continued. The complainant subsequently also stopped coming for work until he returned with the Ulimi show idea. 22. RW3 also testified that the complainant also started presenting on a night show and he was given transport money for it. However, night )8 clients started complaining that the complainant was attending to their program late. RW3 engaged the complainant verbally over the complaints several times. As he felt that they could not afford to lose clients through the night program, RW3 recommended that the respondent lets go of him and bring on board someone else. 23. When cross examined, RW3 stated that ETG ,vas the respondent's client and featured on the Ulimi program because the complainant invited them. He admitted to sending K 800 to the complainant as commission for the Ulimi ETG adverts. He also stated that no one Q sponsored the Ulimi program. He tried to persuade ETG for sponsorship but they stated that it was too expensive and instead went for a thirteen-series-advert. Analysis and decision 24. I have considered the notice of complainant, the affidavit in support thereof, the answer and accompanying affidavit and all the evidence on record. It is a fact that the complainant did work at the respondent radio station as a presenter. He asserts that he was an employee on a monthly salary but the respondent vehemently denies this assertion and states that he \vas a volunteer that was given an allowance for transport and talk time from time to time. 25. Thus, what ought to be determined before the reliefs sought can be considered is whether or not the complainant was an employee of the respondent. Before I delve into the issue, I remind myself that he who J9 alleges must prove. In the case of Wilson Masauso Zulu v. Avondale Housing Project Limited1, the Supreme Court stated that where a plaintiff makes any allegations, it is generally for him to prove those allegations. A plaintiff who has failed to prove his case cannot be entitled to judgment, ·whatever may be said of the opponent's case. 26. On the one hand, the complainant claims to have w·orked for the respondent from August, 2018 to 27th December, 2022. He did, ho\vever, confirm that he \Vas not issued an offer of employment, much less a contract, be it oral or written. On the other hand, the respondent asserted that the complainant was introduced to it by a consultant that it worked vvith called I-Rock Technologies Ltd. Its evidence is that I-Rock came with its own radio presenters that included the complainant and was responsible for their well-being. 27. I have examined the consultancy agreement between the respondent and I-Rock and not that under clause 3, it is specifically stated that I-Rock shall have the right to appoint and shall be solely responsible for employees, agents and representatives and shall not have any claim against the respondent for compensation or reimbursement. 28. I have also examined the statement written by I-Rock's CEO which 0 reads in part as follows: Date: 2()th February, 2023 Sub: TO WHOM IT l\l!A Y CONCERN J 10 I, Trevor C. Ng'andu, Chief Executive Officer, of I-Rock Technologies Limited ... say as follows: I make this witness statement on behalf of Live Radio and Mr Kilpatrick Kabwita. Live Radio hired our company as a business development consultant in August of 2018. The goal of this engagement was to assist the station with business development and restructuring, sales development, radio program design and radio presenter recommendations. During the same period, we were engaged, we recommended Mr. Kilpatrick Kabwita to Live Radio management as a presenter for one of the Sunday shows. Mr Kabwita was engaged on a voluntary basis. The reason for this was because Live Radion was financially constrained and could not afford to take on employees on a.full time basis. Our contract with Live Radion came to an end in December, 2018. I have no knowledge of any subsequent agreements between Live Radion and Mr Kabwita. 29. The consultancy agreement and the foregoing letter clearly prove the respondent's position of how the relationship between the complainant and respondent came to being. I am without a doubt in my mind that the complainant was engaged on voluntary basis. He was not employed in August, 2018 as alleged. The question that arises is - is there proof that he was subsequently employed by the respondent following the departure of I-Rock? As can be seen from the letter, the CEO is unaware of what happened after the ending of the consultancy agreement in December, 2018. 0 Jll 30. As already stated, the complainant did not produce an offer of employment or prove the existence of a contract. The only relevant document produced by him is the letter of termination which reads as follows: Re: Terminatton of services This letter serves to inform you that your part-time voluntary services with Live Radio Limited ended on 23rd December, 2022 due to the reason that your services are no longer required. We sincerely thank you for your time with us and wish you well in your future endeavours. C 31. The above letter clearly describes the services offered by the complainant as 'part-time voluntary services.' It does not make mention of any terminal dues due to the complainant. The letter confirms the respondent's position on the nature of the employment relationship. 32. Nevertheless, employers over the years have been known to deny employment relationships just so they can avoid paying an employee's terminal dues. Thus, the law was developed to remedy such situations. The Employment Code Act, 2019 in section 3 defines an employment relationship as follows: A relationship between employer and employee where work is carried out in accordance with instructions and under the control of an employer and may include- J 12 (a} the integration of the employee in the organisation of the undertaking where the work is- (i) performed solely or mainly for the benefit of an employer; and (ii) carried out personally by the employee; or (b) work- (i) canied out within specific working hours or at an undertaking specified by the employer; (ii) which is of a particular duration and has a certain permanency; (iii) that requires the employee's availability; (iv) which requires the provision of tools, materials and machinery by the employer; and (v) that is remunerated and constitutes the employee's sole or principal source of income. 33. Further, the authors of Halsbury's Laws of England 4 th Edition, Paragraph 3 at page 12 set out the characteristics of the relationship between an employer and employee as follows: There is no single test for determining whether a person is an employee ... The question whether the person was integrated into the enterprise or remained apart from, and independent ofit has been suggested as an appropriate test, but is likewise only one of the relevant factors ... The factors relevant in a particular case may include in addition to control and integration: the method of payment; any obligation to work only for that employer; stipulations as to hours; overtime, holidays etc; arTangements for payment of income tax and national insurance contributions ... In some cases, the nature of the work itself may be an important consideration. J 13 34. The definition of employment relationship as supplied by the Employment Code Act clearly encompasses the common law tests that have been used to determine the existence of an employment relationship. These tests are the control test, integration test and economic dependency test. 0 35. The evidence on record reveals that the complainant only used to present a Sunday gospel show and then stopped and someone else took over the show. Clearly, this entails that he initially only worked once a week on Sundays. He then returned in 2019 wi.th an idea of the Ulimi agriculture show for which he asked for 45 minutes on air. There is no evidence that this was a daily show. Further, there is also no evidence that the complainant performed other duties for the respondent after the 45 minutes had elapsed. There is simply no proof that the complainant was under an obligation to work only for the respondent. 36. From the foregoing, I find that the respondent did not have control over the complainant. Clearly, he was free to work elsewhere after presenting the Sunday show and the 45 minutes Ulimi show. 37. Furthermore, the unchallenged evidence from the respondent is that the complainant was never on payroll. Therefore, I am satisfied that the complainant was not integrated into the respondent company to become a contractual employee. This conduct by the respondent demonstrates that it was not ready or willing to take in the complainant as its full time employee. J 14 38. On the method of payment, the complainant on the one hand told court that his initial salary was K 800.00 and was later increased to K 1,000.00 per month. The respondent, on the other hand, is on record as stating that the complainant was only given allowances for talk time to call guests on his Ulimi show and transport when he \Vas presenting a night program. These moneys ,vere paid from petty cash. 0 39. I have considered the opposing views and note that the complainant did not show proof that he was indeed consistently paid the fixed amount of K 1,000.00 per month. In addition, he did not meaningfully challenge the respondent's evidence that he was merely paid an allowance for communication and movement purposes from pretty cash, which allowances varied from K 150.00 to K 1,000.00. As such, I have no qualms accepting the respondent's evidence more so that the complainant confirmed that no statutory deductions were made from the money given him such as pay as you earn and NAPSA contributions. 40. Without a fixed salary or basic pay, there is no ,vay of computing terminal benefits such as gratuity or redundancy payments. To exemplify this, I have considered section 73(1) of the Employment Code which states that "An employer shall, at the end of a long-term contract period pay an employee gratuity at a rate of not less than twenty-flue percent of the employee's basic pay earned during the contract period." J 15 41. In casu, it is clear that gratuity cannot be ascertained based on the part-time w·ork that the complainant did or the varying allowances paid him whose regularity is unclear. 42. All in all, the complainant needed to show that he and the respondent entered into a contract whether written or oral and that it is a contract that can be considered legally binding and enforceable by this court. C 43. I am cognizant of the fact that this is a court of substantial justice unfettered by legalistic niceties as guided in the case of Zambia Consolidated Copper Mines v. Richard Kangwa2 . Nevertheless, that does not absorb the complainant of his obligation to prove his case on a balance of preponderance as established in the case cited earlier on this issue. 44. Without a clear picture of the existence of an employment relationship, this court's hands are tied. In dispensing substantial justice, the court is called upon to determine the matter fairly and Q impartially taking into account all of the evidence, the law and the surrounding circumstances. Conclusion 45. Having carefully considered the circumstances herein I am of the view that the complainant's failure to produce evidence of employment is fatal to his case. The result is that the complainant's claims become J 16 • futile. In other words, this court is disinclined to declare that the complainant was employed by the respondent and entitled to payment of benefits for years worked, salary arrears or leave pay. 46. The complaint is, therefore, dismissed in its entirety for ,vant of merit. 4 7. Each party shall bear own costs. 48. The complainant is informed of his right to appeal. Delivered at Lusaka this 26 th day of June, 2025 ..•.•••....... ~ . Mwaaka Chigali Mikalil HIGH COURT JUDGE 0 J 17