Luna Harriet Moyo v China Civil Engineering Corporation (Zambia) Limited (IRC/ND/66/2021) [2022] ZMHC 78 (30 June 2022)

IN THE HIGH COURT FOR ZAMBIA AT THE DISTRICT REGISTRY HOLDEN AT NDOLA BETWEEN: (Indu str ia l Rela.(i c,,n · •D iv i ·ion) IRC/ND/66/202 1 LUNA HARRIET MOYO COMPLAlN AN "l AND CHINA CIVIL ENGINEERING CORPORATION (ZAMBIA) LIMITED RESPOND ENT Befo re the Hon. Mr. Justice Davie s C. Mumba in chamb e rs o n th e 30 th cl a y o l Ju n e, 2022. Fo r th e Complainant: For the Re s pondent : Mr. J. Chilenga, Messrs Nyirongo and Co mpa n y ln Person. JUDGMENT Cases referred to: 1. Sam Amos Mumba and Za1nbia Fisheries and BOC Gase s PLC v l)t\1::--t(' Mu sonda (2005) Z. R. 119 (S . C). 2. Moses Choonga v ZESCO Rec reation Clu b , Itezhi -tezhi , App eal 1o. l b ·, of 2013 . 3. Mike Musonda Kabwe v B. P. Zam bia Lirnited (19 97 ) S. J. 42 (S. C. ) Le islation referred to: 1. Th e Employment Co de Ac t No . 3 of 2019 . 2. Th e Employment Ac t, Chapt er 268 of' th e Laws or Zarnb ia. 3. The Minimum Wages and Co ndition s of' Em p loym ent (Ge neral) Ord er , 201 1. J2 Other works referred to : 1. Winnie Sithol e Mwe nd a a nd Cha nd a Chun gu : A Co mpr e he ns ive Guid e to Emplo y m e nt Law in Za mbi a : UN ZA Pr ess . 20 2 1. By notice of con1plaint supported by an affidavit filed int o Co urt on 13 th December , 2021, the complainant commenced thi s ac t1on against the respondent seeking the following reliefs: I . A declaration that the purported transfer notice lett er da ted p t November, 2021 from Chambishi camp to Lusaka head office in null and void ab initio. 2. A declaration that the respondent's unilateral variati on o f K400.00 monthly bonus pay in the month of October , 20 2 l was wrongful and unlawful. 3. A declaration that the complainant's employmen t was terminated by reason of the respondent ' s busines s go ing down and had no project, downsizing and/or redu ndan cy as contained in the letter dated 15 th November, 20 21 . 4. A declaration that the complainant be issu ed with ct certificate of service and recommendation letter. 5. An order for payment of five (5) years redund an cy terrnin '1l benefits package. 6 . An ord e r for p a yme nt of seve r a n ce p ay. 7. An order fo r p aym e nt of th e r em a ind e r of 30% housin g allowanc e a rr ea r s fro m Dece mb e r , 20 16 to Novem ber, 2021. 8. An order for pay me nt of full salaries until th e m a tt er is d isposed of. r J3 9. oan1ages for loss of employment and wrongful termination . 10. Interest and cos ts. 11. Any other rem edy the Court n1ay dee m fit. In her affid av it in support of the notice of complain t, the complainant deposed that she was verbally employed by th e respondent on permanent basis and she signed a one- yea r performance contract as Human Resources Officer with effect from 10 th December, 2016. She produced the said contract , exhibit 'LHM l ' to 'LHM4' to that effect. That after serving for one year and on successful probation, she was confirmed in her sub stanti\'f position of Human Resources Officer and she signed a permanent and pensionable contract, exhibit 'LHMS' to 'LHMl0' on 15 r• January, 2019. That on or about 30 th January, 2019, the respon clen L issued her with a record management of personal dat a form , 'LHMl l ' which she filled in indicating her marital sta tu s as a married woman with four children. The complainant depos ed that on 19 t h August, 2021 and l T 11 September, 2021 , she claimed for monthly arrears of housing allowance at 30% of h er ba sic sa lary and Kl80 .00 lu n ch allo wa nce for t h e period December, 2016 to July, 2021 as sh own b y the le tte rs, 'LHM12' and 'LHM13 ' . Tha t 011 1s t Octob er , 20 21 , the r e s p onden t attempted to ch an ge her permane nt co ntrac t of employment by co ercin g h e r to s ign what it termed as a new six months ' fixed term contract of emplo yrnen t and condit ions of service, exhibit 'LHM 14 ' to 'LHM2 2 '. That she rejected and oppo sed the said new propose d contract as the J4 decision taken by the respondent's senior Management wa s unilateral. That in that ontract, essential c lauses such as 30% housing allowance, r tir 111 nt and r dundancy which had bee n agreed upon verbally were 0111itted. She averred that th e'. respondent decided to change her contract in retaliation to her clain1 for housing and lunch allowances which she had insi st ed o n. She also deposed that the said 6 months' fixed term contract wa silent on the payment of her previous benefits hence the conflict and she could not accept such illegal and wrongful acts. That un 30 th October, 2021, the respondent paid the complainant her lun e h allowance in full but only paid her housing allowance in part at 10% of her basic salary for the period May, 2019 to Septemb er , 2021 in the sum of K26,286.00 as shown by the letter, 'LHM 23' and the statement, 'LHM24'. She deposed that the respondent's actio n to impose a new fixed term contract of employment and it s insistence on paying her housing allowance at 10% instead of 30% triggered her dissatisfaction at work owing to a hostile work environment. That she was not given an opportunity to be heard and her grievances were moribund, contrary to the respondent 's grievance procedures and the rules of natural justice. That sh e wrote a follow up letter, 'LHM2 5' on 8 th October, 2021 wherein she claimed for the difference of 20% unpaid housing allowanc e . Th a t during the October, 2021 payroll, the respondent took away her accrued right by cutting off K400.00 bonus allowance which she was entitled to. That this decision was in bad faith and without notice and/or any reasonable or valid cause. In support of this , the JS complainant exhibited her July, 2021 payslip to show that she used to earn and received the said K400.00 bonus in the month of July but she did not receive it in October and November, 20 21 . Sh e deposed that on 1st November, 2021, the respondent impo se d a transfer on her at short notice whereby she was given thr ee days to move fron1 Chambishi to Lusaka, as shown by the noti ce or transfer , 'LHM2 7'. That the same day in the afternoon , th e complainant responded to the respondent's letter of tran sfe r by writing the letter, exhibit 'LHM28' in which she defend ed her accrued right of the K400.00 monthly bonus and refused to acc e pt the unjustified purported transfer. That on 2nd November , 20 2 1, the respondent, through its letter, exhibit 'LHM29', indic ated to her that she had three days' notice of her transfer' and on e wee k in which to prepare herself to travel to Lusaka. That in paragraph 3 of the said letter, the respondent confirmed to the compl ainan t that the reason for her transfer was because there had been no new construction project in the previous year and the depressio n and downsizing were still going on. According to her, th e letter justified her complaint that her services were no longer requir ed owing to redundancy. She averred that all of the respond ent' s letters which were addressed to her concerning the transfer n o ti ce were neither authentic nor officially signed b y her superiors; and they were iss u ed to her by expatriates namely, Zhang Zi we i and Kevin who were both masquerading as the respondent's Branch Human Res ource Manager; and Lizixi Ec ho who was masqu e radin g as the re s pond e nt's Country Head Hu111an Re source Mana ge r . That J6 she pointed out this maladministration to the respondent and pointed it out to them that they were all incompetent and working illegally as Human Resourc e Manager s in the Republic of Zarnbi a as they were not affiliated to the Zambia In s titute of Human Resource Management and they lacked the necess ar y qualifications and competence. That in retaliation, the re sp ond en t imposed the disputed transfer on her. She deposed that since the respondent ' s decision affected her roles and responsibiliti es , s he wrote the letter, exhibit 'LHM30' to the respondent wher ei n she complained to the respondent about its tendency of not s ign in g official letters and also justified that even though the Chamb ish i can1p was downsizing, she was supposed to be the last per son to exit since her position was an essential and integral part of the business. That instead of addressing her grievances , the respondent wrote to her an unsigned letter, exhibit 'LHM3 l ' on 1 0· · November, 2021 requesting her to exculpate herself as to wh y sh e failed to go to Lusaka. That the respondent requested for her exculpation before charging her with any offence as was pr ovid ed for. That in response to the respondent's request for he r exculpation, she wrote the letter, exhibit 'LHM3 2' on l0 t' November, 2021 wherein she justified why she rej ec ted ·n1ei opposed the purported transfer to Lusaka . That on 15 th No ve mbe r , 2021, the re s pondent yet again served her with an unsigned letter, exhibi t 'LHM33' to 'LHM 34' wh erein it was st a ted that its d ec ision was fi nal and tha t Chambi shi camp h a d no project and as such , S no t able to continu e with her as Hun1an r es pon en wa d t the J7 Resource Officer on a long-term contract. That it was also indicated in the letter that the last day of her work was 16 t h November, 2021 and that she should hand over. That the letter also clearly outlined the fact that the re spondent' s bu siness was going down and/or expected to cease or diminish the requir ement for her position. That the aforementioned mode of sep arat ion settled and justified her complaint for severance and redundan cy benefits. She deposed that on 16 th November, 2016, she requ es ted the respondent, through her letter, exhibit 'LHM3 5' to explain the nature of the separation and stated that she qualified for redundancy benefits and severance pay; and that she was re ady to hand over to Liu as soon as possible. That surprisingly, on 26 'r. November , 2021, she received yet another unsigned letter , exhib it 'LHM36 ' to 'LHM37' wherein it was stated that she had fa iled to comply with the respondent's final say to transfer her to Lus aka and further alleged that she had resigned on 15 111 November , 20 21 and was required to hand over her office. She deposed tha t she disputed her transfer to Lusaka as the respondent kn ew or ou gh t to have known that she was a re sponsible m arried woman with four children and she was 20 weeks pregnant. That the res pond ent was aware that h er Doctor had advi se d her agains t tr avellin° lon g distances and to avoid lon g hours of work , str s , fati gue or exh austio n . Th a t forcing h er to travel from Kit w t o Lu saka could have re s ult ed in co m pli ca tion of h r pr gnan cy an d he r n1edi cal condition whi ch would h ave eventu ally impacte d her hea lth. In support of thi s argu ment, the complainant produced copies of h er J8 ante-natal card and radiological request forrn, exhibits 'LHM38' and 'LHM39', respectively. That even though the respondent wanted her to handover on 16 111 November, 2016, a driver wa s not sent to pick her up fro1n her home as per normal routin e transportation tern1s and conditions of service which wer e initially impliedly agreed on. That it was later agreed with the respondent that she should handover on 28 th November, 2021 but she wa s shocked to find her office door lock changed and she could not gain access to her office. That because of the so many chall enge s she encountered at the hands of the respondent, on 29· .. November, 2021, the complainant sought the services of a Lab our Consultant who tried to engage the respondent but it did not corporate or indulge them to resolve her grievance s. The complainant produced the letter, exhibit 'LHM40' which th e Labour Consultant wrote to the respondent to that effect. Sh e deposed that the respondent had neglected to pay her the difference of her 30% housing allowance arrears, severance p ay and redundancy packages. The respondent filed an affidavit in opposition to the no tice of complaint on 3rd January, 2022, sworn by Zh ang Ziw ei, Br 1Hl ·h Human Resourc Officer in the respond ent company. She d epo sed that the responde nt employe d th comp! inant as a Hurnan Resource Officer by way of a writt e n contract, 'LHMl' to 'LHM4' on 10 t h November, 2016 for a period of one year and it was to run up to 9 1h December, 2017. That by virtue of the said contract, the J9 complainant disputes having a verbal employment agreement with the respondent and that if there was such a contract, the same was superseded by the terms and conditions of the written employment contract that was entered into by the parties on 10 111 December, 2016. It was deposed that among the complainant 's duties was to prepare employment contracts of the emplo yees including that for herself. That for unknown reason , the complainant neglected and failed to prepare her contract of employment after it expired on 9 th December, 2017. That in 201 8 , the parties continued working based on the terms of the 2 0 1 G contract of employment despite the complainant not preparin g a written contract of employment. That in 2019, the complain ant , as a Human Resource Officer, prepared a written contract , exhibit 'LHMS ' to 'LHMl0' which was entered into with the respo ndent . That by virtue of the 2019 contract, the 2016 contra ct was superseded. That to the best of the deponent's knowled ge , no verbal agreement was entered into between the complain ant an d the respondent which varied or supplemented the terms of the two mentioned written contracts of employment save for the agreement, evidenced through the correspondence bet ween the parties , on how much the complainant was to receive as housing and lunch allowances. The deponent disputed th at th e complainant's contract was perrnanent and pensionable as the complainant was entitl e d to gratuity at the end of each cornplete year of service. That the respond e nt's standard contract of e mpl oyment as prepared by th e complain ant stipulated the ba sic JlO pay and provided a breakdown of allowances such as housing and lunch allowances. That however, for unknown reasons, th e complainant prepared her own contract without a break do wn of the amount of allowances which was a departure fr om th e respondent ' s standard contract of employment. That b ase d on such concealment of facts, the complainant came up with her own figures for housing and lunch allowances without consulti ng and agreeing with the respondent. That the complainant deman ded 30% of her basic pay as housing allowance as shown by her letter , exhibit 'LHM 12'. It was argued that the K6,600.00 salary that was being paid to the complainant was inclusive of all allo wances including housing and lunch allowances. That the resp ondent expressed misgivings as to why the complainant did no t do a breakdown of the allowances within the K6,600.00 in her contract of employment like the standard contract of employment for th e respondent. That as a result, the respondent responded to th e complainant's demands of housing allowance at the rate of 30% of her basic salary to the extent that despite its position th a t th e K6,600.00 was inclusive of the demanded allo wanc es, the respondent was willing, in a spirit of give and take and as a way of appreciating the complainant's servic e , to offer h er th e purport ed housing allowance at the rate of 8% instead of 30% of h er b as ic salary as can b e disc erne d from the res pond ent 's le tt er, LHM22 ' · That the comp lainant r ejec te d th e 8% as sho wn by th e lett er , 'ZZ l' and the r e s p ond e nt adj u s ted the offer to th e ra te of 10% of her basic salary as can be disc ern ed from it s let ter , 'LHM 2 3'. That the Jl] complainant willingly accept d th off r of 10% of her basic sa lary as housing allowance s hown by th 1 tter, 'ZZ2' and sht received the 111011 y a r - d by th pa rti , be in g hou s in g allowance calculat d at 10% of h r ba s ic salary and lunc. h allowance , a hown b y th state1n nt, 'LHM24'. That, th ' r f or e, the complainant ' s clai111 for housing allowance at 30% of h r b 51 salary after having accepted and received the 10% wa an afterthought and not justifiable. That the complainant wa s no entitled to any further payment of housing allowance as what was agreed was dul y paid to her. That following the misund ers and~ :-.; between the complainant and the respondent on the fa ilur e o tabulate the allowances in the contract of employment contrary o the respondent's standard contracts of employme n t. the respondent drafted a contract that had a breakdown of allo wanc e - and gave the same to the complainant to sign, but the comp l refused to sign it. That the complainant's claim and rea so refusing to sign the said contract was baseless as the h ou u1 0 allowance that she was claiming was already paid to her. Th t th affiant believed that a new contract could not retrospe ctiv l · ' with grievances arising from a previous contrac t t 1s ' t l r ~ l ' complainant had other administrative recour whatever grievance s she had . That the conduct of th on1µl lin' 1 was aimed at declining th e t rm s of emp lo yni nt tlY\t \\' Cr' applicable to ev ry mploy the contract she dr aft d whi h wa s 1110r in th tandard con tr a t ':l nd ~· ti · l to to h "r f vo ur ab l especially that she wa s in c harg of draftin · con tra t '. 1·1ll' J12 deponent denied tha t th e K400.00 d edu c ted fro rn th e complainant's p ay was a n e ntitleme nt . Tha t the amount in iss ue was a bonus a ppli cabl e to every employ ee and wa s give n at the discretion of the res pond ent d e pe ndi ng on h ow on e work ed in a given 1nonth. That , there fore, it was not a m a tt er of right . That in the month it was deducted, the complainant was not among the en1plo yees des e rvin g a bonus. Further , the affiant deposed that according to clau se 2 of th e complainant's contract of employment, 'LHMS' to 'LH M 10' , th e complainant was obligated to work in any other location withi n Zambia as determined by the respondent other than Muku lu mpe. That do wnsizing work at Mukulumpe could not be used as an excuse by the complainant to claim to be separated fro m the respondent under redundancy as the complainant was bound to be trans ferred to any other place within Zambia b y the res pond en t. That the transfer of the complainant was justifiable as th e respondent needed Human Resource at the Lusaka offic e as can be discerned from the online advertisement, exhib it ' ZZ 3' . Tha t accordi ng to h er wr itten contract of employm ent , the com plain a nt was not p reclude d fr om any transfer by h er marit al s ta tus and , there fore, it was wrong for her to refuse to be t ransferred . Tha t the compl ainant was given sufficient time to prepare her se lf to m ove t o Lu saka and that th e r e sponden t was willin g to pay her fo r t he r e p a t ria tio n upon confirmation complainant did not confirm th e same. That by conduc t of the transfer but th e of J1 3 complainant of refusing to report for work, she was deerned to have deserted work and according to th e respondent's disciplinary code, exhibit 'ZZ4' , such conduct warranted an jnstant dismissal. That as a result, th e con1plainant's conduct was taken as resignation and th e respondent accordingly discharged her frorn her duties and requested her to do the handover as shown by the letter , 'ZZS '. That subsequent to the handover lett er, th E.: con1plainant duly undertook the handover without rai sin g an y grievances in the manner her separation was done with th e respondent as shown by the electronic mails, exhibits 'ZZ6 '. Th a t all the dues being claimed by the complainant were paid to her and she never challenged her separation administratively at th e time of separation with the respondent. That this action wa s an afterthought on the part of the complainant inspired by frustrations. At the trial, the complainant testified that sometime in Sept ember , 2016, she received a phone call from Mr. Xuan Ran who was at th e time the Project Manager for the respondent in Chan1b esh1, Copperbelt. Mr. Xuan told her that he wanted to hav e a n1ee tin g with her and later went to her home in Chimwen1we, Kitw e. In th e meeting, Mr. Xuan told her that Manage n1en t had discuss ·ct ' \l1d resolved tha t the r spo nde nt s hould re -e mploy h r in th po s itio11 of Human Reso ur c s Offic e r . Th a t h e xplain ,ct to h r th ·:tt in th e previous two year s after ' h e h ad l ft th ' re pondenl, h e l1 ad employed a bout fiv e Human R so ur ces Offi cers whom h e wa s not J1 4 satisfied with their perfonnance. That they also discussed if she was interested in th e sa n1 po ition a nd s he ag re d. Th -u the y further discuss ed h er salary and ag r d th a t it would b e K8 ,000 .00 net per n1onth. Tha t th e salary also co111pri se d o f lun c h a t Kl 20.00 and housing allowanc e at 30% of her bas ic sa la ry. Th a t th y also discussed tha t in tern1 s of her tran s port, th ere would b e a ve hi cle and a driver a ssi gn ed to pi ck her to and from work as well as f or operations and other purposes. That her medical expen ses wo ul d also be covered. That after everything was agreed upon , Mr . Xu an called the respondent's General Manager and after discussing th e same matter , she was engaged as Human Resource Officer. On 12' 1 ' Decen1ber, 2016, she was called to report for work which s he d id and she was given part of her tern1s and conditions of ser vices in her probationary contract for one year. That Mr. Xuan explai ned to her that he needed to ensure that her performance would no t be regrettable as the five Human Resource Officers he had emplo ye d before. That the contract, exhibit 'LHM 1 to 'LHM4' was from 12 111 December , 2017 to 11 th December, 2017. That she performed her work satisfactorily after which she went back to inquire ab out other conditions of service, in particular, housing and lu nch allowances and she was informed that she was on p ermanen t and pensionable con tract and that the allowance s would be p aid in d ue course. That she con tinu ed to work an d in 201 9 , th e res p on d en t engag ed a n ew Hu man Res ou rce Manager b y the nam e of Zha ng. Tha t she JlS approached Ms. Zhang to query about her other conditions of services and Zhang told her the same thing that she was on a permanent and pensionable contract and that she would be paid. That she insisted on her terms and conditions of service and Zhang gave her one which was open ended and continuous , that is, exhibit 'LHMS' to 'LHM 11' and that on the page marked 'LHM 11 ' she presented her personal data, that is, information regarding her spouse and children. That the same year in December, 201 9 she was awarded an outstanding performance service and dedicati o n for 2019 and the prize was in monetary form. That she agai n queried about her other conditions of service, that is, lunch and 30% housing allowances and again she was told that she would be paid in due course. That on 19 th August, 2021, she decided to formally write to Management the letter, exhibit 'LHM 12' wher ein she made a formal claim for the housing and lunch allowances after seeing that so much time had passed and what was agr eed on was not being awarded to her. That the amount for lun ch allowance was K8,835.20 while that for housing allowance was Kll2,737.00 for the period 12 th December, 2016 to Jul y, 2020, giving a total of Kl21,057.00. That in response, Mana geme nt offered her 8% of her basic salary as housing allo wance out of the 30% which they had verbally agreed on but she declined. Then Zhang increased it to 10% but the complainant still declined. La ter, Zh a ng in formed he r th a t the Gene ral Manager wa s not around to au th or ise the 3 O % an d tha t she co u 1 d only go as far as 1 0 qf;. n r t t s h e wa s assur ed tha t th e o t h er 20% woul d be paid in Dec en1ber, J1 6 2020 when the Gen ral Manag r r turn ct to the office. That Zhang paid her K26,286.00 a indi t d by th bank tran fer , 'LHM24. That the con1plainant thank d Manag m nt for th paym nt and informed Zhan that h would till claim for th remaining 20% as pron1i ed , h n the G neral Manager returned. That Zhang al so confirn1ed , in her letter , 'LHM2 2' that indeed there was a ve rbal agreement that the complainant had with the respond ent. Tha t in the same letter , Zhang also indicated that going for ward , she "'ould outline the complainant's allowances clearly in the already existing permanent and pensionable contract starting from October , 2021. That Zhang further indicated that the payme nt was calculated from May, 2019 hence for the period December , 2016 o ay, 20 19 the allowances were not paid in full. The complainan t tes tified that she continued working but with difficulties an d challenges as the work environment became hostile . That in December , 2021, Zhang removed her K400.00 monthly bonu fr orn her pay which she was entitled to since 2018, without informin g her and without any reason. That the K400.00 had beco me p · rt I her pay a s Zhang had mentioned in the letter , exhibit 'LH 12 2' th · t she would outline all her allowances in the perm nent n i pensionable contract s o a s to b cl ear. That h we ver, in t ad of ro111i , d, xi tin g ontr t outlining h er aliowan c s in th Zhang prepare d a n w ontra l, was for a fixed term of ix month . Th t th m 1 in -i nt re fu ' tel hibit 'LHM1 4' to 'LHM2 1' v hi ch to sign the contract b cau it wa in on sis tent with th alre ady existing permanent and pensionabl e contract and signing it would J17 have meant that she was going to lose her already accrued benefits. That Zhang later explained to her that there had not been a project in the past one year and ther e were not going to be any project in the next one year so the re s pond ent could not s us tain the con1plainant's pern1anent and pensionable contract . That Zhang urged her to sign the six months' contract which wa s to run fron1 1st October, 2021 to 1s t April, 2022. That the complainant then informed Zhang that if that was to be the case, Zhang ne eded to declare her redundant, give her 30 days' notice and clear her in pay1nent of the benefits she had accrued in the five years sh e had served before she could sign the new contract. She testified that before they could conclude the matter of adjusting the allo wan ce s in the already existing permanent and pensionable contract , on l '' No vember, 2021, Zhang gave her a transfer notice, 'LHM2 7'. Tha t by that notice, she was transferred from Chambishi camp to Lusaka , head office where Zhang indicated that there was insufficient man power and her services were needed there ; and that she had to report on 8 th November, 2021. That the complainant was given three days within which to respond to th letter from 1st to 3rd November, 2021 and that silent would be deemed to be acceptance of the transfer. That on the san1e day . the complainant responded, via the letter, 'LHM28' indic a tin g th~l eight days was short notice as Zhang was aware that sh e wa s a married woman with childre n and was at leas t entitl ed to adequ ate notice to prepare ; and th a t th e trans fer le tt er did not includ e conditions such a s up se t allowan c / re p a tri a tion to cover th e J18 expenses of moving. That the complainant also complained th a t the respondent had no intention of termin a tin g her empl oyn1 ent considering that it was p ern1ane nt and pen sionable; and th at sh e had only requ es ted th e res po n den t to give her what wa s lega ll y right. Ho weve r , th e res pond ent tre ated h er terms and cond ition s of employment casually wh en it decided to offer her a six months' contract kno wing that she was 21 weeks pregnant and that signin g the six months' contract would only exclude her from gett ing maternity leave . That Zhang responded to her through th e lett er, 'LHM29 ', wherein she indicated that repatriation allo wan ce cou ld only be paid after the complainant had confirmed the trans fe r an d two day s before travelling. That Zhang also advis ed th e complainant, in the same letter, that employment concerne d her as an individual and was not binding on her family. That she al so ins isted that the reason the complainant was being trans ferred was because there was no new construction project and that th e depression was still going on. That the respondent cou ld not sustain the complainant on a long-term contract at Chamb ish i camp. That the letter further indicated , in paragraph 5, tha t the complainant ' s failure to report to Lusaka on 8 th Novemb er woul d be ta ken a s refu sal t o work. The co m plaina nt s tated tha t she had given her rea so ns as to wh y s h e co u ld n ot acce pt h er tra n sfer , th e main one b e in g that there was no diligence in th e manner in whi ch Zha ng came up with her transfer . That the responden t did not engage her to explain the n at ure and particu lars of the tra ns fer he n ce s h e did not gi ve th e requi si te con se nt a s requi red by J1 9 sections 28 and 29 Employment Code Act No . 3 of 201 9. She explained that section 28 of the Employment Code Act required an employer to engage an employee before the transfer to explain th e particulars of such transfer ; and that the employee was required to give consent in writing . That a transfer was not to be coerced. That a refusal to accept a transfer would lead to termin ation by reason of redundancy in accordance with section 5 5 of the Employment Code Act. That however , the respondent decid ed to terminate her contract instantly and also coerced her as sho wn by the letter , exhibit 'LHM2 7' , in which it was stated that silenc e would have meant that she had accepted the transfer . That she had explained the reasons why she could not accept the transfer which were based on her medical condition . That there was no fairn es s in the procedure that was adopted by the respondent. That Zha ng had also mentioned on several occasions that there was no proj ect hence the respondent had to downsize . That this meant tha t th ere was redundancy and the respondent was supposed to give her 30 days ' notice of termination , and pay her a redundancy package as well as notice pay . However , the respondent subjected her to ~l disciplinary process which resulted into instant dismissal, statin g that she had refused to work. Further , that the disciplinary procedu re was flawed as no due diligence was exercise d . T ha t she was no t charged but was dismissed instantly . Tha t Zhan g wrot e the le tt er , ' LHM3 3 ' on 15 111 November , 2021 about her tra nsfe r r e fu sal an d indicat ed that si n ce there was no new proj ec t, th e complaina n t ' s lon g-term con tract cou ld not be su s ta ined a nd as J1 9 sections 28 and 29 Employm e nt od e Act No. 3 of 201 9 . Sh e explained that section 28 of th e mploym nt Code Act required an employer to eng g a n 1nploye b for th tr a n f r to e xpl a in th e particular of u h tra n f r ; a nd tha t th e e mpl o y wa requir ed to gi ve con e nt in writing. T ha t a lr an f r wa not to be ·o ' r e 1 d . That a refu sal to a cce pt a tr a n s f r wo uld lead to te r m in at ion b y reason of re dundancy in acc orda n ce with sec tio n f hr· Emplo y ment Code Act. That however, th e r es pondent d ecid ed 0 terminat e her contract instantly and also coerc e d h er as s hown b y the letter , exhibit 'LHM27', in which it was stated tha t silenc would have meant that she had accepted the transfer. That s he ha d explained the reasons why she could not accept the transfer which were based on her medical condition. That there was n o fa irness in t he procedure that was adopted by the respondent. That Zhang h ad also mentioned on several occasions that there was no proj ec he n ce the respondent had to downsize. That this meant that Lh er c wa s redundancy and the respondent was supposed to give her 30 d a ys ' n o tic e of termination, and pay her a redund a nc y pacl a e well a s n otice pay . How e ve r, the re spondent s ubj ec ted h 'r tu d disciplinary p ro cess which res ult ed into in s ta nt di smi a l, ·t'tting hat sh had r f u e d to work . Furth e r, tha t th e d i ciplin H\ pr dur wa fl a w ct as n o d u e dili ge n ce wa s x r c i · 'd . l lt tl ti\.' w a n h r g ct b u t w a · d i · mi s s d in , ta n t I y. Th at han g vv r l c th J r , ' LHM'3 5 ' on J S''' Nov mb r, 20 2 1 abo u t h r tr·lu 1s!' ' r· ·in ·c t h ere w·ts 110 'W proj' ·t , lli L' th a t r e fu a l an d indi a t ,cJ co m p 1 a in n t ' · long -t 'r rri o n tra ·t ·ou l cl n o t b ' su ·ta i n ed an d as J20 such, she was no longer needed. That the complainant was as ked to handover company property and informed her that that was her last day of work. The complainant testified that she wrote the letter, 'LHM3 5' on 16 th November, 2021 in which she asked about the nature of her separation and the respondent responded on 26 th November , 2021 via the letter, 'LHM36' wherein it was stated that failure to report to a new site and failure to handover on 16 th November , 2021 meant that she had resigned. She stated that when she went to handover on 28 th November, 2021, she found that her offi ce was already opened and so she hesitated to do the handover. That th ey had broken the lock and she was told to handover to a Mr. Chisha instead of Mr. Liu who was mentioned in the letter of l 6 11 • November, 2021. That, therefore, she refused to do the hand over and went back without doing it. According to her, Zhang had told her that Mr. Chisha was a witness as he was not working for th e respondent at the time but she told them that since they had broken the locks, she also needed a witness. That she went and saw a Labour Consultant with whom she discussed her grievance and subsequently, the Labour Consultant called Zhang. However, Zhang refused and told her that she should either go to the La bour Office or Court. That since her office was already open ed, she handed over via email and she was paid her salary. That Zhang also confirmed that everything was in order. J21 She told the Court that th pro c dur e folJow ed when tran s ferrin g her was flawed and th a t th r 1nova l of he r K400 .00 monthl y bonus fro1n her pa y was wrongful a nd unfair . Furthe r, th a t he r en1plo) 1nent was wron gfull y tenninated becau se s he was supposed to be decl ared redundant du e to th e down s iz ing an d gi\ en adequate notice before separation . That her 30 % h ousin g allowance and K 102 .00 lunch allowance for the period 12 ir, December , 2016 and May, 2019 were not paid. Further , s he testified that 20% housing allowance from May, 2019 to No vember , 2021 was also not paid. During cross-examination, the complainant stated that h er fir s written engagement with the respondent was in 2016 and it wa~ under the contract, exhibit 'LHM l' to 'LHM4 ' . That th e sai contract did not indicate that she was on probation. She st ated that the contract was for one year and that she was n ot paid gratuity at the end of the contract. That she was not paid anything but she was told to continue working and also that she vvas or permanent and pensionable contract. That there was no cl ause in the contract which stated that she was on a permanent and pensionable contract but it was verbally agreed . The con1pldin u1 l admitted that aft e r that contract, she entered into ano th 'r contract, exhibit 'LHMS' to 'LHMll' and it wa s the contr ac t th a t was running at th e ti m s h e wa s given th e noti ce of tr a n sfer . Wh e n referred to clau e 2 of th e sa id contrac t, th e compl a inant a dn1itt ed that she was r e quir e d to wo rk in a n y part of Za mbia a nd the J22 respondent had the right to transfer her to any part of Zambia. She stated that she was not aware that the respondent had projects within Za1nbia but outside Chambishi because Zhang never engaged her to explain that position. That she wa s aware th a t th e respondent had its head office in Lu saka and other proj ec t sit es . That there was nothing wrong with the respondent tran sferrin g her to another office but it had to follow the procedur e. Sh e admitted that by virtue of the respondent giving her an opportunity to work from Lusaka, it still wanted to maint ain her services and position in the company. She stated that there was no clause in the contract which provided for the notice period for transfer but that fair practice demanded that adequate notice was given. She stated that pregnant women were not precluded from being transferred. She maintained that her family was a part y Lu her employment contract even though it was only sign ed by herself and the respondent. She stated that her supervisor und er the contract she entered into in January, 2019 was Zhan g but Zhang had no right to make any decision regarding her tran sfer . That the person who had the authority to transfer her was the Human Resource Manager from the head office. She stated tha t she complained to he a d office about her transfer but she did not have any evidence before Court becaus e it was a verbal compl aint . She stated that housing and lunch allo wa n ce s we re not provid ed for in her contract bu t th e is sue of the sai d all owances was se ttl ed b y way o f a verb a l agr ee m e nt. Wh en referred to the le tt er, 'LHM1 2' , th e comp la ina nt a d mit te d that in the said let ter, she rem inded the J23 respondent that her housing allowance was 30% of her basic salary. When referred to the letter, exhibit 'LHM22', the complainant confirn1ed that in response to her letter, the respondent proposed 8% of her basic salary as housing allowance . That the 8% was i1nposed in the sense that they had already agr ee d on 30% of her basic salary verbally and she was not given a chan ce to talk further because Zhang kept on indicating that her letter was final. That she objected to 8% but agreed to 10% in that Zhang told her that that was what she could manage at the time and the balance would be paid to her in December when the Manager returned. That her agreement to the 10% was in writing but she forgot to produce the letter in her affidavit in support the notice of complaint. That she did not conceal it but she had put it into account that she had been paid. When referred to the letter , 'ZZ 2', the complainant confirmed that she authored the said letter and that it was in response to housing and lunch allowances. That that letter settled the issue of housing allowance. That there was nothing in the letter showing that she was going to follow up the difference of 20%. That she was paid the 10% for the period Ma') , 2019 to October, 2021. That the document did not state the period for which she was supposed to receive housing allowance but it was Zhang who had stated that she would pay her fron1 May , 20 l 9 to October, 2021 and she agreed to it. She admitted that she was working when she received the letter of transfer. That she did not move to Lusaka but she gave valid reasons as to why she could not move . She stated that she continued working and was in the office J2 4 at all times and only stopp ctr porting for work on 15 th November J topp d r porting for work was becau se 2021. That the r ason h she was told to top by th e r pond nt and th r s pond ent did not send tran port on 16 th Nov 1nb r , 20 2 1 when h wa upp ose d to go and do a h a ndover. Sh s ta ted tha t acco r ding to th e respondent ' s di sc iplinary cod e, not r eportin g for wo rk for rnor than five days without a reason warranted summary dismis al. The complainant stated that an employee was entitled to a bon us for hard work and any other duties which were out of their job description carried out excellently. That giving a bonu s · n c.1 particular month for good performance was in the discr et ion of the respondent. That to some of the employees, bonuses were an entitlement because they were performing duties outside their job description. That she classified the K400.00 as a monthly bonus in the notice of complaint and so it remained a bonus . She s t t ' 1 that she did not continue going for work after handing over. he admitted that she was paid gratuity at the end of 2020. That he was not paid gratuity in 2019 as the same was supposed to b e :t i at the re s pondent's discretion. She admitted th t prep rin ~ employme nt contra cts was part of her duti es but she ct ni having prepared her 20 19 con tr ct . In r e -examination, the om p lain nt t t d th -t h did not ign the disciplinary cod , 'ZZ4' to pprov of th di ciplin r procedure 1n h r. Sh e s tated that that t he r espondent appl i d wh n di n1i the gratuity paid to her in 2020 and 2021 wa s not contractu al bu t J25 . . it was out of the respondent's own discretion. She stated that it was verbally agre ed that the balan for the housing and lunch allowances would be paid to g 'lh r with what wa s not paid in full from Decen1ber , 2016 to May , 2019. R\i\ 1 was Chi ha Kape1nbwa, Administrative Officer in th t respondent con1pany. The witness informed the Court that he wa s rel) ing on the affidavit in opposition to the notice of complaint filed into Court on 3rd January, 2022. In addition, the witness testified that the complainant was employed by the respondent as a Human Resource Officer on 10 · December, 2016 on a one year contract which came to an end on 9 th December, 2017. That after the expiration of her contract , th e complainant did not prepare another contract for herself. Th at in 2019 , the complainant signed another contract which came to an end in 2020. That after 2020, the complainant never si gne d d contract but continued to work until the day she stopped work in 2021. The witness told the Court that the complainant ' s co n trac t for a fixed term one year from December 2016 to 201 7 wa s no t a probationary contract but was a forma l contr ac t as th e complainant had previously worked for th e res pond ent in t he same capac ity. He t tifi e d th a t a t t he en d of h er one- year contract, the compla inant was p aid a ll her t r mina l b enefits vvhi ch included gratu ity, an n u a l le ave p a y an d a ll that was suppo sed to J26 be paid at the end of th e contrac t. That the complainant was not on a perman ent and pen sio nab l co ntract. Regardin g th e cornpl ainan t' s claim tha t her transfer notice wa s not valid , the witn ess sta ted tha t the com plain ant was transferabl to any part of th e country as part of her contractual obligations and that enough notice was given for her to be transferr ed to the head office in Lusaka. That she was transferred to Lusaka because the head office in Lusaka needed a Human Resource Officer as evidenced by the advertisement, exhibit 'ZZ3 ' . Th at th e complainant's contract did not exclude her from being tran sferred by virtue of her being pregnant and having a family. That she was transferable regardless of her condition. With respect to the complainant's claim that there was an u nlawful deduction of K400.00 monthly bonus, the witness stated that the respondent ' s Management had the discretion to give a bo nus to a d es erving e mp loyee who had worked hard in that particular mon th and re co m mended by t h e ir supervi s or. That t h e said b onus as not par t of the comp la inant 's salary . In r e lation to the complainant' clain1 that the termin , tion f h r employment wa s by r a n of r dund n b us the respondent's bu sin w in down, th wit. t ted that the respondent ' s business w not ·0111 down and that the complainant was transferable where h r servi ces were needed in anoth r tation . Tha t in thi s a, \ h wa tran f rred to Lusa ka wh r h r , where nc 'd 'd . That th ·ompla inant did nol report t Lu ka but inst ad wrot' a I tt r wh r ' s h ga ve r ason s a to wh , h - houJd not hav b n tran s fe rr e d whi h in lud ed fan1il 111att rs whi h w re not part of the con tr act co ndit ion s . That th con1p lainant also stopped going for work at he Chan1bi hi can1p. Tha t when the complainant did not r e port f or '" ork for five consecutive days, she was deemed to have d ese rt ed '" ork and Managen1ent took it that she had voluntarily re sign ed . That the penalty for someone who had absconded wor k wa s summary dismissal. The witness testified that the complainant had never mad e any request for a certificate of service or recommendation letter when she separated with the respondent. He also testified th at th complainant was not supposed to receive redundancy be ne fi ts because all her benefits were paid at the end of each year she served . That the position of Human Resource Office r in th e respondent company was not abolished and the compl ai n an t vv" l S merely transferred. That she was transferred in the same capa ·· as Human Res ource Officer . Regarding th e c om.plaina nt' s c laim for hou ino· a llo w nc i. t 3V10 of her ba s ic pay , th wiln s s lat e d th a t th ompla in nt wa , p · ici all her arrears. That initi lly, th r pond nt had off red h er housing allowance at 8% of h e r ba i pay but th complainant J28 declined. Then the respondent offered her 10% which she agree d to and she was paid. That it was not true that the complainant wa s to be paid the 20% balance of housing allowance after the Regional Manager returned. He also testified that the com.plainant could not be paid salaries until the matter was disposed of because she was no longer working for the respondent. Further , th a t t he co1nplainant's employ1nent was not wrongfully terminated but s he just resigned on her own. That the respondent took it that sh e had stopped work and that she had deserted . During cross-examination, the witness stated that the complainant stopped reporting for work on 15 th November, 2021. He confirm ed that the complainant received the letter, 'LHM3 3' on 1 5 lh November, 2021. When referred to the letter, 'LHM34', the witn es s confirmed that the said letter indicated that the complainant 's last day of work was 16 t h November, 2021. He stated th at the complainant was absent for five days because immediat ely she received the letter of transfer, she was supposed to report to Lusaka but the complainant never reported for work from th at date. That the complainant was not absent for only one day. Th a t the complainant s topp e d r eporting for work before th e let t r dated 15 th Novemb e r, 2021 was writt en to her. He admitt e d th a t the letter of tran s fer wa s given to th e compl inant on 1 ' November, 2021. That th e co mpl ai n ant n ev r r po r t d for work from 1st to 15 th Novemb er , 20 2 1. Th e witn s s s tate d th a t wh en one was trans ferr e d , by la w, th e y wer e suppos ed to co m ply wi th J29 Management's decision as their services were needed at that particular station. That the complainant's services were needed at the head office in Lusaka and that wa s why sh e wa s tran sferr ed . That there were no provi sions where it wa s indi cat ed that fa il ure to report to the place of transfer was tantamount to refu sal to report for work. That the cornplainant's contract indicated that th e complainant could be transferred to any other station apart fr om Mukulu1npe as long as it was within Zambia. He stated th at th e complainant was paid gratuity for the period 2019 to 2020 for her one-year contract; and for January, 2020 to 2021 and also for January , 2021 to November when she stopped working. That all her terminal benefits were paid. He stated that the complainant started working for the complainant on 10 th December, 20 16 and she was paid gratuity for the five years that she worked. That gratuity was provided for in the complainant's contract whi ch had been attested by the Labour Office. That he did not have the said contract as it was at the Labour Office. The witness stated that he was aware that when an employee was being repatriated, tr ansport had to be provided to the employee and not the family . That on ce an employee was given transport, even the family had to u se th e same transport to be repatriated to where the emplo yee wa · transferred . The witness admitted that the respondent had give n the complainant standard terms and conditions of emplo yrn enl. He denied tha t the complainant wa s e ntitled to housing allo wa nce at 30% of her basic pay . He also stated that the complainant was offe r e d 30% o f h er b a sic pay as housin g allowance and it was BO incorporated into her whole sa lary tog ther with her lun c h allowance. He stated that the omplainant wa paid all her terminal benefit at the end of h r contract but the proof of payn1ent was not produ ed befor Court . He tat d that th e respond ent did not ubject the comp lainant to a di sciplinary action \ hen she failed to prepare her own contract wher e she should have indicated her allowances. That this was becau se he respondent took it that the complainant was a professional Human Resource Officer and since most Managers of the resp ond ent co1npany were foreigners, they all depended on her dec isio n and expected her to run all activities. He stated that he was not aware that b y law, an employee had to be subjected to medical te sts before transfer. That the respondent did not neglect the complainant's pregnancy condition as it was not part of her conditions of service. He stated that the complainant 's contract of employment was amended in 2019 following the new Employme nt Code Act but he was not too sure of the month in which it was amended. When referred to the contract, 'LHM 14' to 'LHN1 2 l ', the witness admitted that the complainant refused to si gn th contract. That as a result, the respondent did not depend on b t h the 2016 and 2019 contracts but only depended on th e 20 19 contract as it superseded the 2016 contract . That th Y had atteS t ed the said 2019 contract and the att st d copy w t the Labour Office. That it was s ign din January, 2019 and w amend e d wh en the new Employment Code Act came into force in May, 20l9 . He admitted that since the complainant refused to sign the contract, J31 'LHM14' to 'LHM21' which was drafted on 1 s t October, 2021, the issue of putting her housing and lunch allowances in her contract was not concluded. That all of the complainant's needs were attended to and she was paid. That the complainant was the one who was supposed to include her housing and lunch allowanc es in her 2019 contract as she was the one who prepared it. That preparing contracts was part of her job description. That a~ Hun1an Resource Officer, the complainant was mandated to prepare all contracts and no other person was mandated to do such. When referred to the contracts, 'LHM2 l ', and 'LHM 1 O' , the witness stated that Zhang never used to prepare the contracts but she just use to authorise them. That the contracts used to be prepared by the Human Resource Officer. When referred to 'LHM4', the witness stated that the said contract was not prepared by Han Pei but it was prepared by the Human Resource Officer and Management just approved it. The witness stated that the complainant deserted work. When referred to the advertisernent , exhibit 'ZZ3 ', the witness admitted that the complainant \Na "' transferred to Lusaka to occupy the position of Administrativ e Assistant. He explained that the position of Adrninistrative Assistant was not advertised so that the con1plainant could go an d occupy it but that she was going to occupy the position of Hun1an Resource Officer. He stated that the con1p lainan t was given adequate notice to go to Lu aka and that the particulars of her transfer were written to her. J 2 In re-e xa n1ination, the wit ne ss ' tat d that d rafting of contract s used to be done by the Human R ourc Offi r and would be appro ve d by th Re gional Ma n ag r or Admini trative Offi ce r . Th at the con1plainant wa s the Hun1an R our e Offi ce r at th tim e. He sta ted that the 01nplainant's contract of employment r fl eete d her housing allowance at the ra te of 30% of her basic salar y. Tha this was included in her m onthly lump su m which also includ ed her basic pay and lu n ch allowance. That it was no t tabulated in her contract . The complainant filed final written submissions wh ich I have dl ly considered a nd I will make reference to them where r elevant . I have cons idered the parties' affidavit and viva v oce evid ence , a well as the complainant's final written submissions. The facts which were common cause are that the co m p lain ant w- s employed by the res pondent as a Human Resource Office r , on fixed term contract for o ne y ear from 10 th December ) 201 6 t o g,tt December , 2017 . After the sai d contrac t expired, the compl atn nt co ntinu e d to work and only signed the second contra t n l s -' January, 2019 which wa with effect from 211d July , 019 . B . th th e fir st and sec ond ontract s mad no pr v1 i n for the comp lainant's lun h a nd hou in g allow a n and re s u lt , th e complaina nt , through her 1 tt r s , xhibits 'LHM12' da t ed 19 [\ August, 202 1 a nd 'LHM 13', dated 17 th S ptember, 2021 d emanded J33 for lunch allowance and housing allowance at the rate of 30% ot her basic salary fron1 10 111 Dec mber, 2016 when she was employed. In response, the re pond nt, through its lette r, exhibit 'LHM22' d ate d 21 Hi October, 2021 offered the complainant lun ch allowance and housing allowance at 8% of basic salary which the complainant rejected. Then the respondent, through its lett er, exhibit 'LHM2 3' dated 15 th October, 2021 offered the complainan t lunch allowance at Kl80.00 per month and increased the rate of housing allowance to 10% of her basic salary. The complainant , through her letter, exhibit 'ZZ2' accepted the offer and was paid the sum of KS,220.00 as her lunch allowance and the sum of K21 , 066.00 as her allowance, which payments were back dated to May, 2019. Before the respondent responded to the complainant 's demands for lunch and housing allowances, the respondent had , on 1st October, 2021, offered the complainant a new contract of employment, exhibit 'LHM14' to 'LHM22' which was for a fixed term period of six months from l5 1 October, 2021 to 1st April , 20 22 but the complainant had declined to sign the said contract on the ground that it was going to vary the terms and conditions tn d )r her already existing permanent and pensionable contr act. On 1s t Novemb er, 2021, the respondent wrote the letter, LHM2 7' to the complainant by which the cornplainant wa its headquarters in Lusaka and told to r eport on 8 transferred to No ve n1b er, th 2021. The complainant, through her letter, ILHM28' contested th e ground that she was a 111arried woman wi th transfer on the J34 children and also that she wa s not given adequate notice of th e transfer. On 2 11 d Nov em ber , 20 21, th e respondent wrote back to th e complainant and inforn1ed her that th ere wa s no project at Chan1bishi and also that h er failure to report to Lusaka would be taken as refusal to work. On 4 th November, 2021, the complainant wrote the letter, 'LHM30' to the respondent wherein s he n1aintained her position that the decision by the respond e nt to transfer her was wrong. As a result, the respondent , throu gh its letter, 'LHM3 l' dated 10 th November, 2021 asked the complainant to exculpate herself for failure to report for work. 1n her exculpatory letter, 'LHM3 2 ', the complainant maintained her position stating that her transfer was not done with go od intentions. She claimed that the respondent's actio n was discriminatory owing to her pregnancy condition and also that it amounted to constructive dismissal as she was told that failur e to report would be deemed to be refusal to work. Consequently, th e respondent wrote the letter, 'LHM33' to 'LHM34 ' to the complainant, dated 15 th November, 2021 by which it terminated the complainant's contract of employment on the ground of refusal to work and asked her to do a hando ver. In respons e, th complainant wrote the letter, 'LHM35' dated 16 th No vemb er, 2021 to the r espondent wherein she asked the respondent to exphin th e nature of her separation and in its lett r, 'LHtv136 ' to 'LHM37', dated 26 th November, 2021 , the r spond nt clarified that it took il that the complainant had resigned . J3 5 From the evidenc on record, th following are the issues for detennina tion: 1. Whether th con1p lainant is ntitl d to th paym nt of lun ch allowance; nd housing allowanc at the rat of 0% of her basic salary for the period 10 th December, 2 0 16 to May , Lo J. ; and the balance of 20% of the housing allowance for the period May, 2019 to November, 2021. 2. Whether the non-payment to the complainant of the K4 00 .00 monthly bonus in the month of October, 2021 amount ed o a unilateral variation of the complainant's basic condit ion of employment by the respondent. 3. Whether the complainant's transfer by the respondent from Mukulumpe to Lusaka was null and void ab initio. 4. Whether the complainant's employment was terminate d by reason of redundancy thereby entitling her to a redundanc y package. 5. Whether the complainant is entitled to the payment of damages for the loss of employment and wron gfl l termination of her contract. I will start with the first issue, which is wheth r the comphinan t is entitled to the payment of lunch allow ance a t Kl8 0.0 0 P ' r month and hou ing a llowance at th rate of 0% of h r b a ic sa hry to M y, 2019; a11d ·oct 1011 1 o c m per mont hf or th e p e n r , the balance of 20 % of th e hou ing llow n c for th period May , 20 I 9 to November, 2021. J36 According to the con1pl ai n ant, befo re s he was re-employed by th e respondent, sh e n egotia t d wha t were to be the terms and conditions of h e r serv ice with the r es pon d nt ' s then Human Resources Man ager, Mr. Xu an . Th ese were, among o thers, KB,000.00 net monthly salary which includ ed lunch all ow ance at Kl20.00 per month and housing allowance at 30% of her basic salary. However, upon being re -employed, the complainant sign ed a vvritten fixed term contract, exhibit 'LHM l' to 'LHM4 ' which was for a period of one year from 10 th December, 2017 to 9 th Decembe r, 201 7. That the said contract made no provision for lun ch and housing allowances as agreed verbally. That after pressing the respond ent , it finally agreed to include lunch allowance at Kl8 0 .00 and h ous ing allowance at 10% of her basic salary as part of her pay , b ut only bac k dated the payment of the said allo wances lo May, 20 19 ins t e ad of December, 2016. She also argued that th 10% wa s belo w the minimum standard of 30% provided for in the laws and s he made particular re fere n ce to the Minimum Wages and Co nditions of Employment (General) Order , 2011. Further , th at the 10% was also contrary to the 3 0% initi ally agreed u p on in the erb agreeme nt . Tha t she wa s , ther efor e cl aimi n g arr ars for lun h , nd 30 % housing allow a n ce for the p riod Dece mb r, 201 to -Y, 20 19 and t he 2 0% balance of h r hou in g allowance f r the p eriod On th oth r h nd, th responde n t 20 21 . . • t ' s alary w s inclusive of all her b May , 2 019 to ovem N r , argued that the c omp a1nan h allowan ces , including lune . d h ousing allowances but the an J39 provide to an employee either housing, a loan or advanc e to~a.rds the purchase or construc tion of a house, guarantee fac1hty for a n1ortgage or house loan on behalf of an employee or pay housing allowance." It can be seen from the wording of the above provision, in particular , the use of the word 'may' that the provisi on of hou sing or the payn1ent of housing allowance in lieu thereof by an employer to an e1nployee was not mandatory. It had to be pro vided for in a collective agreement or a contract or under the general conditions of service of the employer. In the present case , th e complainant ' s contract of employment did not make any provision for any form of housing for the complainant or the payment of housing allowance in lieu thereof. Further, there was no pr ovisio for the payment of lunch allowance. The complainant did not als o produce the respondent's general conditions of service, if ther e were any , to show that she was entitled to the two allowanc es. Fo r the foregoing reasons, I find that the complainant was not entitled to both lunch and housing allowances during the period she served under the written contract, 'LHM l' to 'LHM4', that is , frorn 10 th December, 2016 to 9 111 December, 2017. As for the period 10 th December, 2017 to 1s t January, 20l 9 which fter the contr ct the complainant served without any wn en ·tt . · b · expiration of the first contract , xh1 it 'LHNI 1 ' to 'LH M 4' and before s igning the secon wn d ·tt con tr ct exhibi t 'LHMS' to ' n 'LHMlO' , I am gu1 e ·ct d by the decision of the Supreme Court in the J40 case of Choonga v ZESCO Recreation Club, Itezhi-tezhi2, where it was held that: "Since the respondent allowed the appellant to continue his duties for one n1onth after the contract expired due to effluxion of tilne on 31 s t July, 2020, it can be implied and properly so, that the contract of employment was extended for those the same period and on the same conditions as contained in the expired fixed term contract of employment ." In the san1e vein, since the respondent had allow ed the con1plainant to continue working after her first contract , exh i b i 'LHMl ' to 'LHM4' expired on 9 th December, 2017, it can be imp lied that her contract of employment was extended for anoth er on e year and on the same conditions contained in that contra c . Therefore, it follows that during the period 10 th December , 201 7 to l5 1 January, 2019, the complainant was not entitled to lun ch and housing allowances as the same were not provided for in her contract of employment. As for the period between 2nd January, 2019 and May, 201 9, 1t is on record that on 15 th January, 2019, the complainant accept ed th offer of the second written contract, exhibit 'LHMS' to 'LH 11 0· which was with effect from 211d January , 2019 when she signed it. This was a permanent and pensionable contract as th e dur ti n of the contract was not s tated in the said contrac t . Like th e firsl contract, exhibit 'LH M l' to 'LHM4', thi con tr ct al o n1 . de no . ll ow nc s. During the said . provision for lunch an d hou 1ng f . wa p eriod , the law that wa in ore . . h E the old Emp lo yn1ent Act, Cap. _ loyme nt Code Act No. 3 of · ,, 268 of the Laws o f Zambia, as t e mp J41 2019 only can1e into effect on 9 th May, 2019. Therefore , it follows that from 2 nd January , 20 19 to gtt, Ma y , 20 19, the complainant was not entitled to lunch a nd hou sing aJlow ances , as th e sa me we re not provided for in her con trac t. It should be noted that whereas the Employme n t Cod e Act No . 3 of 2019 made no pro vision for lunch allowance , it mad e the pro v ision for either accommodation or the payment of h o us ing allo wance to an employee mandatory. Therefore , the resp ondent cannot be faulted to have backdated the payment of the complainant ' s housing allowance to May, 2019 and not Dec ember , 2016 when the complainant started work. In summary, the complainant's claim for lunch allowanc e and housing allowance at 30% of her basic salary for the period 1 Q-!, December , 2016 to 8 th May, 2019 has failed and is acco rdingly dismissed. Further , the ques t ion that begs an answer is wheth er the complainant is entitled to the payment of the 20% b alance of the hou sin g allo wance, fo r the period May, 2019 t o November, 202 1. According t o th e co mplainant , the standard rate for hou ' in g allo wa nce under the Zambian Laws is 30% of the basic l ry as p e r the Minimum Wag s and ondition of mploym nt (General) Order, 2011 but the r pond nt nly p id h r 10% of her basi c J42 salary for the period May, 2019 to November, 2021. Further, tha t Zhang had pro1nised that she would be paid the 20% balanc e when the General Manager who was away returned to work. On the other hand, the respondent argued that the complainant acc ep te d its offer of 10% of her basic salary as her hous ing allowance as shown by the letter, 'ZZ2'. That the Minimum Wages and Conditi ons of Employment (General) Order, 2011 did not apply to her and she was never promised that she would be paid the 20% balanc e when the General Manager returned. As I have already stated above, the complainant's second contract , exhibit 'LHM5' to 'LHMl0 ' which was with effect from 2nd January, 2019 also made no provision for housing allowance . Ho we ver , after pressing the respondent, the complainant was offered housing allowance at 10% of her basic pay as shown by the lett er , 'LHM23' dated 15 th Octob er , 2021 which rate of housing allowance she accepted. Subseque ntly, the complainant was paid a total of K 2 1,066 .00 as h er hou sin g allowance with effect from May , 2019 . I must me ntio n tha t with the coming into for ce of t he Emplo yme nt Code Act No. 3 o f 2019 , it is now mand atory for emplo yer to p rovi de acc ommodation to its employees or pay them hou ·in °· allowance . Section 91 of the said Act provides as follows : "An employ e r s hall provide an e1nployee hou_sing , a loan or n advanc e to wards the purchase or con s truction of a house, ~ guarante e facility for a mortgage or house loan on beh~f 0 th employee housing allowance un . er- e t registered under the Industrial and the employ~e or pay (a) a collecnve agreemen Labour Relations Act; (b) a contract of employinent; or J43 (c) the general conditions of service of the undertaking." However, it can be noted from the reading of the above provi sion that the Act has not prescribed the minimum rate of housing allowance, in an event where the employer chooses to provid e housing allowance. Further, I have perused the correspond ence between the complainant and the respondent regarding her demand for housing allowance and I find that at no time did th e respondent indicate that the complainant would be paid th e 20% balance upon the return of the General Manager. Infact , in her letter, exhibit 'ZZ2', the complainant clearly stated that she was in agreement with the offer of 10% of her basic pay as hou sing allowance and acknowledged having received payment of th e same for the period May, 2019 to October, 2021. For the foregoing reasons, I find that the claim by the complainant that she was entitled to or promised housing allowance at the ra te of 30% of her basic pay for the period May, 2019 to No vemb er, 2021 has no basis and is accordingly dismissed. With regard to the second issue, which is whethe r the no n pay ment of K400.00 mo n thly bonus in the month of October, 20 21 amounted to a u ni lat eral var ia tio n of th e co m plai n ant 's basic co n dition o f emplo yme n t by th e res p on d ent , it was the co mplainant 's co n ten tion tha t th e said bonus was her ac crued righ t as it had be come part of her pay . That it wa s an entitlem ent J44 as she used to receive the payment every month since 2018. That the respondent removed it from her pay in the month of Octob er , 2021 without any r ea son a nd also without informing her. On the other hand, th e r es pondent argu e d th a t th e pa y in g of bonuses was in the discretion of Management and it u se d to be paid out to deserving employees who had worked hard a nd recommended by their immediate supervisor in a parti cul a r 1nonth. That K400.00 was not part of the complainant's salary . I have considered the opposing arguments regarding this iss u e . In the case of Mike Musonda Kabwe v B. P. Zambia Limited·\ it was held that: "If an employer varies a basic or basic conditions of employment without the consent of their employee then the contract of employment terminates; the employee is deemed to have been declared redundant on the date of such variation and must get a redundancy payment if the conditions of service do provide for such payment. We would add here that if the conditions of service provide for early retirement and not redundancy then the employee should be deemed to be on early retirement." In casu, it is not in dispute that the K400.00 being claimed by th e complainant was being paid to her as a bonus but it was no t provide d for in h er contrac t of employment . ln support o l Il er claim, the compl a in a nt produ ce d h er Jul y , 20 21 pay s ta ten1e nt, exhibit 'I HM 26 ' to s h o w th a t s h e u d to r ece ive th sa id pay me nt. C Since su ch p ayrnen t was no t prov id ed for in her cont ra ct of \ . J4 5 employment, it remained to be determined and paid at the sole discretion of th e respondent. In cross -examination , the complainant conc e d ed , and rightly so, that the giving of a bonu s in a particul ar month for good performance was in the discretion of the respondent. This is the legal po siti on as enacted by section 66(6) of the E111 ploymen t Code Act. The learned authors, Judge W. S. Mwenda and Chanda Chungu , in their book entitled: A Comprehensive Guide to Employment Law in Zambia, have explained at page 119 as follows: "Section 66 of the Employment Code Act outlines when wages are due and how they should be paid. If employment allowances are part of the contract of employment, they should be paid in accordance with the contract. Howeve r, section 66(6) of the Employment Code Act states that if the allowances are not part of the contract of employment, they need not be paid in accordance with the guidelines in section 66(1) (2) or (3) of the Code. In other words, the Employment Code Acts states that the payment of an allowance or bonus that is not part of the contract can be done at the employer's discretion. The most common of such allowance would be the bonus payment allowance which is normally not in the contract of employment and, therefore, solely at the discretion of the employer." In the instant case, therefore, the complainant 's claim tha t th e respondent's stopping of the payment of K400.00 rr1onthl y bonu - amounted to a unilateral variation of her conditions of servi ce 15 bereft of merit and is accordingly dismissed. J4 6 I now turn to the third issu , which i whether the complainant 's transfer by the re pond nt from Mukulurnp and void ab initio. to Lu s aka wa s null The con1plainant conte nde d tha t h e r tran sfer to Lu sa ka was no t done with good intentions in that it wa s impo se d on h er aft e r s he declined to sign the contract, exhibit 'LHM14' to 'LHM22 ' whi ch was a variation of her existing permanent and pens ionab le contract. She also argued that the eight days which she was gj ven to move upon her transfer to Lusaka was short notice consid er1n g that she was a married woman with children and she ne eded enough time to prepare. She also argued that the respondent was aware that she was 20 weeks pregnant and her doctor had ad vis ed her against moving long distances and doing stressful work and also to avoid fatigue and exhaustion. Further, that in the notice of transfer , exhibit 'LHM2 7', the respondent had stated that her lon g term contract could not be sustained at Chambishi camp as th ere was no new construction project and it was downsi zin g. It was h er further argument that the manner in which the transfer was done was not proper a s sh e did not give consent whi ch was a p re requi s ite and the r es ponde nt did not en gage or explain the particulars o f h e r tra n sfer b efore effec ting it as provid e d for und er s e ctions 28 of th Em p lo y1n nt o d Ac t No . of 20 19. Th e resp ond ent, o n the oth er h and , o nt nd ed tha t the complainant wa s t ransfe r abl e t o any pa r t o f the cou n try as part of her contractual obligations an . : d th a t she was give n su ffi cient noti ce . J47 That the reason she was transferred was because the respondent's head office in Lusaka · needed a Human Resource Offic er as evidenced by the ~dvertisement, 'ZZ3'. That the complainant was not precluded from being transferred by virtue of her being married and pregnant. I have considered the arguments from both sides. It is on record that in its letter, exhibit 'LHM2 7', dated l "1 November, 2021, the respondent transferred the complainant to its headquarters in Lusaka with effect from 8 th November , 2021. However, the complainant contested the transfer on the ground s that she was a married woman with children and also that she wa s 20 weeks pregnant. Further, that she was not given sufficient . As rightly argued by the respondent, it was clearly stated in the complainant's contract under clause 2, that she could be placed in any part of the country as determined by the respondent. It should also be noted that section 24 of the Employment Code Ac t categorically states that a contract of employment is not bindin g on the family of an employee except where it makes a separat e provision for a family member. Therefore, the complainant 's contract of employment did not bind her fan1ily and it was w ro11 g for her to have refused the transfer on account of her being a married woman with children. I have also looked at the documents produced by the complainant in support of her claim that she was J4 8 advised against tr v llin long di ta n s by h r Medical. Do ctor, that is, copi of he r ant -nalal a rd a nd rauiolo gi al requ es t f o r m, exhibit s ' HM 8 ' a nd 'JHM 39', r sp' ·ti v ·ly . I ha v found tha t th e san1e do not cont a in a ny r tri tion on h r mov m nt . Furth e r, th er e i n ow h r - in her contrac t wh re .it wa ta t d that be fo r transf 1-ring h er , th res pondent had to fir s t con sult h er and also expl ain the r ea on for the transfer. Th e provi sion s of th e En1plo) n1ent Code Act that the complainant relied upon , that is , sections 28 and 29 are not applicable to the complainant as th ey relate to employees on transfer from one employer to anoth er , tha t is , fron1 one co1npany to another company. In this ca se , th e complainant 's transfer was within the same co mpany. Furthermore, the complainant's contract did not provide for th e notice period for transfer. Therefore, respondent had the discretionary power to transfer the complainant, as its empl oyee , either with immediate effect or otherwise giving a period of tim e that it considered as being reasonable. Based the foregoi ng, the complainant ' s claim that her transfer was null and void a b initio cannot stand and is accordingly dismissed. I now turn to the fourth issue, which is whether the complainan t ' employment was terminated by reason of redund anc y, th er by entitling h e r to a r e dundancy package. In support of thi ct a irn, th e compl a ina nt co nt end e d th a t a ft er pressing the r e spond e nt for th p a ym nt of her her lun ch a nd J49 housing allowances, the complainant first attem.pted to vary her contract of e1nploy1n nt fro1n a p rman nt and pensionable contract to a fix d t -rn1 contra t, xhi.bit 'LHM14' to 'LHM 21 ' which was for a period of ix months. That wh n h declined to sign the said contract and asked the respondent to fir st de !are her redundant , give her the requisite 30 days' notice and pay her the benefits that had accrued under the perman ent and pensionable contract, the respondent forced the transfer on her to its headquarters in Lusaka. That infact, the real reason behi nd her transfer was that the respondent's business was going dow n as it did not have any projects at the Chambishi camp hence it had to downsize. On the other hand, the respondent argued that it decided to transfer the complainant to its headquarters in Lusaka because there was insufficient manpower at Lusaka and they needed a Human Resource Officer. Further, that it had no projec at Chambishi camp and as such, it could not sustain the complainant's long-term contract. That the complainant v transferred in the same capacity as Human Resource Office r. I have considered the parties' opposing arguments. I note that although the respondent had no project and had to downsize at it hambishi camp, it took t P to find th e complainant alternative mploym nt within the coinpany by transferring her to its headquart rs in Lu aka where her position ·11 was st1 ·1 bl ava1 a e an · d on th e same terms and conditions of JSO service. However, it is clear from the complainant's letters, in particular the letters, exhibits 'LHM29 ' and 'LHM30' that she was not willing and h ad no intentions of going to Lusaka to take up the position. Even after being ca ution ed and asked to exculpat e herself as to why she did not report at her new work station , the co1nplainant still indicated that she was not willing to go to her new station. If indeed the reason she could not go to Lusaka wa s due to insufficient notice, the complainant could have still accepted the transfer and ask for more time to move to Lusaka. From the foregoing, the respondent cannot be faulted for having come to the conclusion that she had refused to work and deemed her to have resigned. Therefore, the complainant's claim that her employment was terminated by reason of the respondent ' s business going down or downsizing and/or redundancy canno t stand and is accordingly dismissed. Consequently, the complainant's claim for a redundancy package or severance pay cannot stand and is accordingly dismissed. Regarding the fifth issue, which is whether the complainant is entitled to the payment of damages for loss of employment and wrongful termination, it was the complainant's argument tha t her employment was terminated without giving her an opportu nit y to be h eard. The respondent, on the other hand, argued th t th e respond ent was deemed to have deserted work as she refused to report to Lusaka whe r e she was transferred. JSl As I have already found above, it 1s clear from the letters the complainant wrote to the respondent, n1ore especially her exculpatory letter, 'LHM32' that the con1plainant had no int entions of reporting to her new station in Lusaka where she was transferred to. Therefore, the respondent cannot be faulted for having deen1ed the respondent to have resigned or deserted wor k. In the result, the complainant's claim for damages for loss of employn1ent and wrongful termination lacks merit and 1s accordingly dismissed. In her notice of complaint, the complainant also claimed for a declaration that she be issued with a certificate of servi ce and recomn1endation letter but she did not lead any evidence to that effect. However, section 59 ( 1) and (2) of the Employment Code Act No. 3 of 2019, provides for the issuance of certificate of service and a testimonial to an employee on the termination of employment. The said section provides as follows: (1) Despite the provisions of subsection (2) an employer shall, on the termination of a contract of employment, give an employee a certificate of service indicating- (a) the name of the employer; (b) the name of the employee; (c) the date of engagement; (d) the date of discharge; (e) the nature of employment; (f) the employer's account number with any fund or scheme under which statutory contributions have been or will be remitted to the fund or scheme on behalf of the employee; (g) the employee's national registration number and membership number in the fund or scheme during the course of the contract; and ,I.. J52 (h) a statement of the amount of statutory and any supplementary contributions paid by the employer to the fund or schen1e during the course of the contract. (2) An e111p1oyer may give a testimonial, reference or certificate of character to an employee at the termination of the employee's service ." It can be seen fro1n the above provision that it is mandatory for an en1plo er to issue a cert ificate of service upon terminating an en1plo yee's contract of e1nployment. For this reason, I ord er that the respondent should issue a certificate of service to th e con1plainant. As regards the issuance of a testimonial or recommendation as the complainant put it, it can be seen from the reading of th e aforementioned statutory provision that it is in the discretio n of the employer. Therefore, the respondent was not obligated to issue a testimonial or a recommendation to the complainant . Therefore, her claim lacks 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 30 th day of June, 2022.