Lumwana Mining Company Ltd v Henry Nyambe and 9 Ors (Appeal No. 165/2022) [2024] ZMCA 246 (4 July 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE Appeal No . 165/ 2022 (Civil Jurisdiction) BETWEEN: LUMWANA MINING COMPA AND 0 4 JUL 2024 ILREGISTR X 50067 , L APPELLANT HENRY NY AMBE & 9 OTHERS RESPONDENT Coram: Kondolo SC, Majula & Banda-Bobo, JJA On 23rd May 2024 and 4 t h July, 2024 For the Appellant: Mr. S. Chisenga of Corpus Legal Practitioners For the Respondent: Ms. C. Shamakamba of Shamakamba & Associates JUDGMENT MAJULA J A d elivered t h e Judgm ent of the Cou r t . Cases referred to: 1. B. J Poultry Farms Limited vs Nutri Feeds Zambia Limited - SCZ Judgment No. 3 of 2016. 2 . National Drug Company Limited and Zambia Privatization Agency vs Mary Katongo - SCZ Appeal 79/ 2001. 3 . Holmes Limited vs Buildwell Construction Company Limited (1973) ZR 97. 4. Care International Zambia Limited vs Misheck Tembo - Selected Judgment No.56 of 2018. • J2 5. Moses Choonga vs ZESCO Recreation Club, Itezhi Tezhi - SCZ Appeal 168 of 2013. 6. Chilanga Cement Plc vs Kasote Singogo - SCZ Judgment No.13 of 2009. 7. Copperbelt Bottling Company Limited vs Phineas Fombe - SCZ Appeal No.37 of 1996. 8. Konkola Copper Mines Plc vs Aaron Chimfwembe and Kingstone Simbayi - SCZ Selected Judgment No. 33 of 2016. 9. Swarp Spinning Mills Plc vs Chileshe and Others - SCZ Judgment No. 6 of 2002. 10. Prenn vs Simmonds (1971) 1 WLR 1381. 11. Eston Banda & Another vs The Attorney-General - SCZ Appeal No. 42/2016. 12. Sobek Lodges Limited vs Zambia Wildlife Authority (2011) 2 ZR 235. 13. Mwamba vs Sylvester Nthenga, Kapinga Chekwe - SCZ Judgment No.5 of 2013. 14. NFC African Milling Pls vs Logoyi Enterprises Limited - SCZ Appeal No. 38 of 2000. 15. ZCCM Investment Holdings vs Cordwell Shichimu - SCZ Appeal No. 172/ 2014 16. David Banda vs Attorney General - Appeal 233/ 2020 17. Tolani Zulu vs Barclays Bank of Zambia - SCZ Judgment No. 17 of 2003. 18. Philip Mutantika & Sheal Mulyata vs Kenneth Chipungu - SCZ Judgment No. 13 of 2014. 19. National Milling Corporation vs Angela Chileshe Silwamba - SCZ Appeal 171/2015. 20. Andreas Panani vs Attorney-General (2011) Volume 2 ZR 22. 21. Bob Shilling Zinka vs The Attorney General (1990-1992) ZR 73. 22. Sarah Aliza Vekhnik vs Casa Dei Bambini Montessori Zambia - CAZ Appeal 129/ 2017 23. Attorney General vs John Tembo - Selected Judgment No. 1 of 2012· • J3 24. Chansa Ng'onga vs Knight (Z) Limited - Selected Judgment No. 26/ 2019. 25. First Quantum Mining & Operations vs Obby Yendamoh - SCZ Appeal 206/ 2015. 26. Dennis Chansa vs Barclays Bank (Z) Plc - SCZ Appeal 111 / 2011 1. 0 Introduction 1. 1 This appeal originates from a decision of Honourable Mr. Justice D. Mulenga that was rendered on 21 st March 2022. 2.0 Background 2.1 The respondents were employees of the appellant in various positions, after having been employed on divers' dates. On 8 th October 2019, the appellant's Human Resources Manager, Mr. Ng'andwe Chibesa, authored letters informing the respondents that the company was restructuring to improve efficiency. That their positions had been deemed excessive to the company's requirements and had therefore been made redundant. The respondents were consequently informed that the last working day was 11th October 2019. 2.2 Subsequently, the respondents were paid a redundancy package which included payment of all outstanding leave days, two months basic salary for each completed year of continuous service, repatriation where applicable , and one month's pay in lieu of notice. 2.3 At the time of the declaration of redundancy, the respondents were senior staff employees, and the relationship with the appellant was governed by the Zambia Senior Staff • J4 employees' conditions of Lumwana Mining Company Limited (LMC) which came into effect on 1st January 2013. 2.4 The respondents were unhappy with the redundancy package and graced the doors of the High Court seeking Orders that the declaration of redundancy was illegal, unlawful, and in breach of their conditions of service. They also sought damages for unlawful and unfair termination of employment. 3.0 Decision of the lower Court 3. 1 The lower court considered the evidence deployed and diagnosed the issue for determination as being whether the respondents were placed on redundancy in breach of their conditions of service. The court also considered whether the appellant unilaterally varied the respondents' conditions of service. 3. 2 The court was of the view that clause 22. 8 (g) of the terms and conditions of service provided that employees should enter into discussions with management to agree on the appropriate redundancy package. In casu, the respondents were simply notified on 8 th October 2019 without any discussion, that they would be paid two months' pay for each completed year. The lower court concluded that there was therefore a breach of contract when the appellant failed to engage the respondents before deciding to lay them off by way of redundancy. He thus found that the termination was wrongful, unfair, and unlawful. JS 3.4 The respondents were ultimately awarded twelve ( 12) months' salaries as damages for wrongful, unfair, and unlawful termination of employment. 4.0 Grounds of Appeal 4.1 The appellant was disconsolate with the decision of the court below, hence the appeal anchored on three grounds as follows: "1 . That the Honourable learned Judge erred in fact and law when he found and/ or held at page J24 of the Judgment that the redundancy clause contained in the Complainant's validly executed contracts of employment can be relied upon for the calculation of the complainant's redundancy packages. 2. That the Honourable Judge erred in fact and law when it found and/ or held at page J.24 of the Judgment that the appellant unilaterally varied the terms of the contractual agreement between the complainants and the respondents and failed to hold discussions with the complainants. 3. That the Honourable Judge erred in fact and law when it found and/ or held at page J.29 of the Judgment that the complainant had proved on a balance of probabilities that the redundancy was wrongful, unfair and unlawful and that the Complainants are deserving of an award of damages equivalent to 12 months' salary plus interest." J6 5.0 Appellant's Arguments 5. 1 The essence of the arguments on the first and second grounds of appeal is that it was the respondents who had the burden of proof that the redundancy clause continued to apply to them after their promotion to senior staff. That the lower court misdirected itself when it held on page J.24 that the burden of proof was on the appellant in the court below. The case of B. J Poultry Farms Limited vs Nutri Feeds Zambia Limited1 was cited as the authority for this proposition. Counsel contended therefore that the finding by the trial court was perverse and premised on a misapprehension of facts and law. 5.2 Counsel went on to argue that the parties herein voluntarily entered into an employment contract that had terms and conditions relating to redundancy. The contract essentially provided that each employee would be paid two months for every year that he or she served and the parties were bound. The cases of National Drug Company Limited & Zambia Privatization Agency vs Mary Katongo2 and Holmes Limited vs Build well Construction Company Limited3 were called in aid to buttress the submission. It was therefore incumbent on the respondents to prove that there was a variation in the terms and rate of redundancy payment. 5.3 Pertaining to ground three, the thrust of the submission was that for a claim for unfair and unlawful termination to J7 succeed, the employee must prove that there was a breach of contract or statute. In other words, the employee must show what the statute provides and that the employer proceeded to act contrary to what is provided. On the definitions of wrongful, unfair, and unlawful termination, our attention was drawn to the cases of Care International Zambia Limited vs Misheck Tembo4 and Moses Choonga vs ZESCO Recreation Club, Itezhi Tezhi. 5 5.4 In casu, Counsel averred that the respondent's employment was conducted following section 55 of the Employment Code Act. The respondents were paid a redundancy package of two months as provided in the Statute and the Contract of Employment. 5.5 In furtherance of the submissions, the appellant conceded that the Senior Staff Conditions which appear on page 86 of the record of appeal provide that there must be an agreement between the staff members and the appellant on the redundancy package but this was not done. 5 .6 On the issue of damages, Counsel submitted that where wrongful dismissal is successfully proved, the award of damages must be restricted to the notice period provided for in the contract unless there exists special and compelling circumstances that entitle the court to exceed the notice period. To support this submission, the cases of Chilanga Cement Plc vs Kasote Singogo6 and Copperbe lt Bottling J8 Company Limited vs Phineas Fombe7 were cited as authority. 5.7 According to the appellant, a trial court must consider the nature of the job lost, the age of the complainant, the scarcity of employment, or the harsh manner one is treated during the dismissal before awarding damages beyond the notice period. To solidify the argument, Counsel found solace in the cases of Konkola Copper Mines Plc vs Aaron Chimfwembe & King stone Simbayi, 8 and Swarp Spinning Mills Plc vs Chileshe & Others. 9 5.8 We were thus urged to allow the appeal and set aside the decision of the lower court. 6.0 Respondent's Arguments 6.1 In opposing the appeal, the respondents filed their heads of argument on 17th May 2024 wherein it was submitted that they enjoyed conditions of service that came into force on 1st January 2013. 6.2 That in terms of clause 22.8(b) of the Conditions of Service, the appellant was required to engage the respondents in discussions relating to termination of employment on redundancy. It was thus contended that the appellant acted contrary to the senior staff conditions of employment. 6.3 About ground three, the respondent's Counsel submitted that since the redundancy was wrongful, unfair, and J9 u nlawful, the resp ondents deserve the award of damages equivalent to 12 m onths' salaries. To cemen t the position, the respondent Cou nsel rod e on the coattails of the case of Care International Zambia Limited vs Misheck Tembo and Others4 as well as section 55 of the Employment Code Act. 6.4 We were accordin gly urged to dismiss the appeal with costs to the resp ondents. 7 .0 Reply 7. 1 A reply to the appeal was filed on 30th May 2024 b y th e a p pellant's advocates. Th e kernel of the submission in- grou nd one was th at the lower court made a perver se and erroneou s finding of fact when it held that the terms of payment set out in the various con tracts of em ployment did n ot apply to the responden ts in t he absen ce of credible evidence. To buttress this submission, Mr. Chisenga r eferred u s to the employment contract of Jon athan Sakala dated 27th September 2013 particularly clause 1 7 which provides that the redu ndancy package will be (2) two months basic p ay for each com pleted year of service. 7 .2 Mr. Ch isenga went on to aver that the intention of the parties, by havin g provisions such as t h e one in Clau se 1 7 of Jonathan's employment contract, never meant to repeal nor replace the normal r edund ancy package. We were fu rther invited to consider the whole contract and the entire 'matrix JlO of facts' wh en it comes to the in terpretation of vanous contracts as ob served by Lord Wilb erforce in the case of Prenn vs Simmonds10. 7.3 In fu rth er ance of his argum ent, Mr. Chisen ga vehemently asserted that t h e burden of proof lay on the respondents to s h ow that t h e provisions of the senior staff con ditions varied and repealed th e contr actual provisions on the n or mal redundancy pay package. Solace for this proposition was p laced on th e cases of Eston Banda & Another vs The Attorney-General1 1 as well as Sobek Lodges Limited vs Zambia Wildlife Authority12 amon g other s. 7.4 It was contended that in t h e absence of evidence, the status qu o remains t h at the relevant provisions of the various employees' contracts are binding and the role of the court is to s imply en force the agreements. The case of Friday Mwamba vs Sylvester Nthenga, Kapinga Chekwe13 was cited as authority. 7 . 5 On ground two, Mr . Chisenga forcefully argued that the trial court erred when it relied heavily on the respondent's testimonies and failed to properly evaluate the rest of the evidence from t h e appellant. The trial Judge merely glossed over t h e sign ed con tracts of employment, which show proof of how the respondent's redundancy package was to be paid at the termination of their employm ent. Cou nsel resolutely argued th at in the absence of evidence from th e resp on d en ts p roving that the appellant did unilaterally vary the terms of .. Jl 1 their contracts of employment and failed to hold discussions, the lower court's decision was erroneous and not well founded. To fortify the submission, the case of NFC African Milling Pls vs Logoyi Enterprises Limited14 was alluded to. 7 .6 In wrapping up, Mr. Chisen ga submitted that it would lead to an absurdity if this court confirmed the holding that Senior Staff Conditions, which is mere company policy and not contractual, varied the respondents' employment contracts without mutual agreement. The appellant should not be punished for not having consulted the respondents given there was already a contractual provision on r edundancy. 7 . 7 Turning to the third ground of appeal, Mr. Chisenga submitted that the damages awarded in this case were excessive and prejudicial to the appellant. That the court exercised its discretion injudiciously by misapplying the principles of law. 7 .8 Counsel reiterated his earlier submission that the purpose of damages for wrongful dismissal is to secure the employee's interest in remuneration and benefits for the denied period of notice or the unexpired fixed term and that an extraordinary event is required to take the case out of the realm of the normal measure of damages. For this proposition, Mr. Chisenga placed reliance on the decision of Eston Banda vs The Attorney-Generaz11. J12 8.0 Hearing of the Appeal 8.1 At the hearing of the appeal, Mr. Chisenga on behalf of the appellant entirely relied on the documents filed. 8.2 On the other hand, Ms Shamakamba gave brief oral submissions to augment the respondent's heads of arguments. She argued that the letters exhibited on pages 84 to 86 of the record of appeal are evidence that the only procedure that was followed by the appellant was notification of the meeting. That section 55(2)(b) of the Employment Code Act was not complied with. The cases of ZCCM Investment Holdings vs Cordwell Shichimu15 where the court granted a claim for unfair dismissal on the basis that the procedure for redundancy was not complied with, were cited. 8.3 Ms. Shamakamba further invited us to consider the case of David Banda vs Attorney General 16 on the issue of damages on account that jobs are difficult to find. 9.0 Decision of this Court 9.1 We have carefully considered the arguments and submissions that the parties have canvassed before us in the context of the judgment of the court below. We shall deal with all the three together as they are entwined. J13 Redundancy clause 9. 2 The first and second grounds of appeal challenge the finding of the lower court on page J. 24 that there was a variation of the contracts. It was strenuously avowed by the appellant that the parties had agreed in the contract that the redundancy package would be two months' salary for every year of service. There was therefore no variation when the appellant paid the respondents as provided in the contract of employment. 9.3 The respondent, on the other hand, is contending that the appellant needed to negotiate the redundancy packages before terminating their contracts in line with the provisions of clause 22.8(b) and (g) of the conditions of service. 9. 4 The grievance in the third ground of appeal is with the finding by the lower court that there was wrongful, unfair, and unlawful termination of employment through redundancy. 9.5 In his judgment, the trial Judge made the following observations: "It is the considered position of this court that the respondent could not circumvent by going on a frolic of its own, ignoring the provisions of clause 22.8 (a), (b), and (g) of the Complainants' terms and conditions of employment and not allowing the complainants to discuss the redundancy process as well as negotiate an appropriate redundancy package." J14 9.6 It was based on the foregoing that the learned Judge concluded that the appellant acted in breach of contract when it did not discuss with the respondents the planned redundancy and payment package as provided in the respective contracts of employment. 9.7 The appellant is not disputing that there was no agreement or discussion before the notice for redundancy as required by the contract. 9.8 It is settled law that an employer or employee has a right to terminate a contract of employment per the terms of a contract. We are fortified on this position by the holding of the Supreme Court in Tolani Zulu vs Barclays Bank of Zambia17 where it was held: "An employer is within his right to opt to invoke the notice clause in the contract even in the midst of a suspension and disciplinary charges so long it is done in accordance with the contract. " 9. 9 Our examination of the evidence on record reveals that the conditions of service that were applicable before 2013 were those effected on 1st January 2010 (see page 29 of the record of appeal) . The 2010 conditions of service provided that the redundancy package would be 2 months of basic pay for each year of completed service. The 2010 conditions were , however, superseded by the conditions of service that came into force on 1st January 2013 (see page 108 ROA) . It is J15 imperative to reproduce the relevant prov1s10ns of clause 22. 8 (b) and (g) as they were the ones in force at the time of redundancy on 8 th October 2019. These provide as follows: "22.8 (b). On receipt of the information, the employees or their representatives shall enter into discussion with management, upon which the latter shall present for discussion the proposal for the said redundancy giving reasons thereof, its immediacy and the criteria used to select employees to be affected. 22. 8 (g) In the case of redundancy or severance, the employees or their representatives shall enter into discussion with management to agree on the appropriate redundancy package." 9 .10 It is clear from the foregoing that there is a requirement under these provisions that the parties must enter into discussions with management. Furthermore, the reasons and criteria used in selecting the employees must be advanced. The payment of two months for every year completed was not canvassed in the 2013 conditions of service. In any event, the conditions are explicit on the requirement to enter into discussions prior to effecting redundancy. 9. 11 We have also scrutinized the contracts of the respective respondents and have noted that there is a provision under clause 17 for redundancy which provides as follows: "Redundancy J16 The redundancy package will be (02) two months basic pay for each completed year of service." 9.12 It is plain t h at the contracts of employment simply provided for what would constitute the redundancy package in the event of redundancy. In our view, it is of critical importance to look at the procedure that is to be employed in effecting the same notwithstanding that the contract is silent. We turn to section 55(2) of the Employment Code Act which reads as follows: "Where an employer intends to terminate a contract of employment by reason of redundancy, the employer shall:- (a) give notice of not less than thirty days to the employee or a representative of the employee of the impending redundancy and inform the representative on the number of employees, if more than one to be affected and the period within which the termination is intended to be carried out; (b) afford the employee or representative of the employees an opportunity to consult on the measures to be taken to minimise the termination and the adverse effects on the employee." 9.13 It is our understanding that the aforecited section 55(2) has made it mandatory to follow the outlined procedure when effecting a redundancy. The use of the word "shall" denotes that the employer is obligated to take steps in notifying the J17 Labour Commissioner of imminent redundancies and in addition, must conduct consultations with the employees who are likely to be affected. Furthermore, there is also a requirement to give (30) thirty days notice. 9. 14 On the question of the mandatory nature of the word "shall" we stand guided by the case of Philip Mutantika & Sheal Mulyata vs Kenneth Chipungu18 where it was opined as follows: "Where a rule is couched in mandatory terms by the use of the word 'shall' and is not regulatory, thereby giving the court discretionary power, any breach of such a rule is fatal to a party's case." 9. 15 Arising from the fore going, we are of the well-considered view that the law is settled that where there is use of the word 'shall' it implies that it is a compulsory provision and noncompliance is fatal. At the crux of this matter, as we see it, is whether or not the appellant complied with this mandatory procedure. 9.16 Mr. Chisenga has advanced an argument to the effect that the contracts of employment which were subsisting had put out the intentions of the parties regarding redundancy packages which was the payment of that was due to the respondents. That, therefore, having complied with the said payment, the appellant could not be found wanting in this regard. In addition, the appellant had complied with the terms of the contract and our role was simply to enforce them. J 18 9 . 1 7 We agree with Mr . Chisenga t h at ou r role as a court is to uph old the sanctity of con t racts and enforce them. Where we disagree is disregarding t h e process that is to be followed. Th er e is a mandatory procedure th at requires that consu ltation s m u st take place and affected employees should not be ambu s h ed. This was clearly explained by th e law Lords in the apex Court when they h eld in t h e case of Chilanga Cement vs Kasote Singogo that: "Redundancies are planned activities. Being a planned activity, the employee needs to be p repared for the loss of a job. Reasonable measures which should be taken will inevitably include notices, and consultations which are so vital to the planning p rocess." 9. 18 An oth er illuminatin g case is that of National Milling Corporation vs Angela Chileshe Silwamba19 where th ey stated that: "There are procedures on how redundancies ought to be effected, amongst them, the requirement for consultations with the person to be affected." 9 .1 9 Thes e cases are an illustr ation of the com pulsory n ature of consu ltation in the course of a redundancy exer cise. It is necessary t o uphold t h e principle of natural jus tice, audi alteram paterem ru le , t h at no m an s h all be condemned u n h eard. Th e principle of natur al justice h as b een articulated in a plethora of decisions amongst th em, Andreas Panani vs J 19 Attorney-General20 and Bob Shilling Zink a vs The Attor ney Generaz.21 9.20 The distinguished authors o f A Comprehensive Guide to Em ployme nt Law Dr. Winnie Sithole Mwenda and Chanda Chungu have clearly stated on page 332 as follows: "Because consultations are a mandatory requirement under section 55(2)(b) of the Employment Code Act, they have to be carried out notwithstanding the diminished chances of reversing the redundancies. The employer should still do all it can to consult and where it would not be possible to consult or consultations would be a futile exercise, this must be explained to the employees and reasons should be furnished . Such a position is what should be followed in Zambia given the guidance of the Supreme Court in the case of Chilanga Cement vs Kasote Singogo." 9.21 In light of the foregoing, it behoves us to state categorically that whenever an employer contemplates a redundancy, the exercise begins by notification of the Labour Commissioner as provided for under section 55(2) of the Employment Code Act and consultations with the affected employees to allow them to be heard. Redundancies should not be an exercise by ambush. The Employment Code Act makes it mandatory to conduct consultations. • J20 9.22 We therefore dismiss the argument by Mr. Chisenga that they complied with the statutory provisions by simply paying what was provided for in the contract. We expressed ourselves clearly in Sarah Aliza Vekhnik vs Casa Dei Bambini Montessori Zambia22 where we held that parties cannot contract outside of the mandatory provisions of any statute. 9.23 From the foregoing, it is clear that an employer must comply with the rules of natural justice by affording the employees the right to be heard on the impending redundancy and also allowing the employee to understand the employer's reason for redundancy. The idea is to discuss whether or not other avenues can be explored to mitigate the adverse effects of redundancy. Explaining the reasons for redundancy is imperative even though consultations may not reverse the decision for redundancy. An employer has to conduct consultations to fulfill the mandatory requirements under section 55(2)(b) of the Employment Code Act. 9.24 Turning to the argument as to whether or not the appellant unilaterally varied the terms of the contractual agreement, we hold the view that the parties were bound by the terms and conditions that were agreed upon and any departure therefrom amounted to a unilateral variation and breach of contract. 9.25 We are alive to the principle of law set in the case of Care International Zambia Limited vs Misheck Tembo4 where it was articulated that the mode of an employee's exit from J21 employment determines the relief he will be entitled to and the nature of his benefits. The apex court further opined that: "Where the mode of termination is due to redundancy, the employee will also be entitled to at least two (2) months' pay for each year worked as redundancy pay provided for in Section 55(3}(a} of the Employment Code Act." 9 .26 We agree with the authority cited that where the mode of exit is by way of redundancy, at a minimum, the employee must be paid two months' salary for every year of continuous service. That notwithstanding, in this particular case, the contract of employment, specifically clause 22.8(b) and (g) obligated the appellant to enter into discussions with the respondent before effecting the redundancy. 9.27 In this case, there is a consensus that no discussions were held before the declaration of redundancy. It is on that basis that the lower court found that there was a breach of contract and consequently wrongful termination of employment. 9.28 From our standpoint, we agree with the position taken by the learned Judge and refuse to assail his decision. 9.29 Turning to the award of damages, we note that the lower court awarded 12 months' salaries as damages on the basis that there are dim prospects of employment. The appellant has argued that such an award can only be justified where there are special and compelling circumstances that were not present in casu. • J22 9 .30 The appellant has argued that the apex court has guided that the normal measure of damages is usually limited to the payment of the notice period unless there is something extraordinary that would necessitate a higher award. In Copperbe lt Bottling Company Limited vs Phineas Fombe7) it was observed that: "Where there is nothing extraordinary that would take a case out of the Kamayoyo decision) damages would be the usual salary for the notice period." 9. 31 We do agree that the classical approach by the apex court is that when it comes to an award of damages, it has been restricted to the normal measure equivalent to the notice period in the employee's contract of employment or reasonable period. There is a chain of authorities from the Supreme Court that enunciates this principle to name but a few, Chilanga Cement Plc vs Kasote Singogo6 , Swarp Spinning Mills Plc vs Sebastian Chileshe & Others9 . This remedy of damages being equivalent to the notice period was adopted from the common law. We hasten to point out that the law has evolved and the apex Court has indicated that the normal measure of damages remedy can be departed from if certain factors are established. We recall the case of Swarp Spinning Mills vs Sebastian Chileshe and Others9 where it was held that: J23 "The nonnal measure of damages applies and will usually relate to the applicable contractual length of notice or the notional reasonable notice where the contract is silent. (ii) The normal measu re is departed from where the termination may have been inflicted in a traumatic fashion which causes undue distress or mental suffering. (iii) While there should be compensation over and above the contractual terminal benefits already paid, that is beyond the nonnal measure, to equate such damages to the salary and perquisites over a two year p eriod, was wrong in principle and produced an excessive award. " 9 .32 Other insightful cases are Attorney General vs John Temba2 3 , Chansa Ng'onga vs Knight (Z) Limited24, First Quantum Mining & Operations vs Obby Yendamoh25, Dennis Chansa vs Barclays Bank2 6 wher e th e Supr eme Court has guided that the court can award beyond the normal measure of damages if the factors such as infliction of termination in a trau matic fashion, causing u n due str ess or mental su ffering, infringement of rules of natur al justice and an employee's dim future j ob prospects were p resent. 9.33 Having taken into accou nt how t h e appellant declared the responden ts redu n d ant without consulting them we can infer that it fell within one of the factors highlighted in paragraph 9.32 of t his judgment. We take the firm view that damages are justified on the following grounds: J24 1. There was a breach of the employment law. 2. There was a breach of the right to fair procedure; employees have a right to fair treatment and a proper procedure during redundancy processes. Lack of consultation can be seen as a denial of this right, justifying damages. 3. Emotional and financial impact; sudden redundancy without consultation can cause significant emotional distress and financial hardship to the employee. Compensation can help mitigate these effects. 4. Loss of opportunity for alternative solutions; consultations allow employees to discuss alternative solutions to redundancy such as re-deployment. Without this opportunity, employees may miss out on possible solutions warranting compensation. 9.34 In light of the above, in our eyes, the respondents are indeed entitled to damages beyond the notice period. However, we take the view that the 12-month award was excessive given the circumstances of this case and we accordingly set it aside. 9.35 We order that the respondents be paid (03) three months' salaries as damages. ... 10.0 Costs J25 9 .1 Each party shall bear their costs. -===== .... ~ -:-:-:-:-.... .... ~ .................... . . M. M. Kondolo, SC COURT OF APPEAL JUDGE ==---=- . P. ........ . . B. M. ajula COURT OF APPEAL JUDGE . ···· ···~ ······· ....... . A. M. Banda-Bobo COURT OF APPEAL JUDGE