Maxmillian Chansa Chabala v Time Trucking Limited (Comp No. IRCLK/284/2021) [2025] ZMHC 124 (25 September 2025)

IN THE HIGH COURT FOR ZAMBIA Comp No. IRCLK/284/2021 ' . AT THE PRINCIPAL REGISTRY INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA BETWEEN: MAXMILLIAN CHANSA CHABAL~~ COMPLAINANT AND '- . c,•· , .,_ COURT OF, · · "'4 I. USAKA At -·,_...;;~- . !J 2 5 SEP 2025 TIME TRUCKING LIMITED l. RELATION~ t,\'l RESPONDENT SEAL Coram: Chigali Mikalile J this 25th day of September, 2025 For the Complainant: In person For the Respondent: Mrs. S. Phiri-Hinji - Messrs Chifumu Banda & Associates Legislation referred to: 1. The Employment Act, Chapter 268 2. The Employment Code Act No. 3 of2019 Cases referred to: 1. Masauso Zulu v Avondale Housing Project( 1982) ZR 172 2. First Quantum Mining and Operations v. Obby Yendamoh, SCZ 18/307/2015 3. Konkola Copper Mines Pie v. Hendrix Mulenga Chileshe, SCZ Appeal 94/2015 4. Shilling Bob Zinka v. Attorney General (1990 - 1992) Z. R. 73 (S. C.) 5. Sarah Aliza Vekhnik v. Casa Dei Bambini Montessori Zambia Limited, Appeal No. 129/2017 6. Barclays Bank Zambia Limited v. Mando Chola & Another, SCZJudgment No. 8/1997 7. Chansa Ng'onga v. Alfred H. Knight (Z) Ltd, Selected Judgment No. 26/2019 8. Development Bank of Zambia v. Dominic Mambo, SCZJudgment No. 13/ 1995 Texts referred to: 1. Mwenda, W. S. and Chungu, C. A Comprehensive Guide to Employment Law in Zambia, 2021, University of Zambia Press 2. Garner. Black's Law Dictionary (8"' Edition): Thompson West, 2004, USA Introduction 1. This action was commenced on 27th May, 2021 by way of Notice of Complaint. The complainant claims the following reliefs: a) Notice pay b) Leave pay c) Benefits for the years worked d) Damages for unfair and unlatuful dismissal e) Costs and an.y other benefits the court may deem fit The complainant's affidavit I. The complainant avers that he was verbally employed by the respondent on 2 nd April, 2007 as a General Worker. His monthly salary at the time of his unlawful dismissal on 18th April, 2019 was K 1,934.00. J2 2. Following his dismissal, the respondent calculated and paid him K 1 • 2,750.00 as his benefits despite him disputing the amount. Labour office intervention yielded no results hence taking out this action. Respondent's answer and affidavit 3. The respondent filed an answer on 24th June, 2021 in which it confirmed employing the complainant on 2°d April, 2007 and dismissing him on 18th April, 2019. [ t denied the assertion of unfair dismissal and asserts that the complainant is not entitled to any relief. 4. The affidavit was sworn by Chembe Nyangu, the respondent's then Human Resources Manager. He averred that the complainant's main duty as general worker was to load and offload goods from trucks. His gross salary was K 420.00 per month and he was entitled to 30 days leave per annum. According to his terms and conditions of service, notice of termination of employment was 30 days. 5. It was further averred that later on, the complainant was relocated to the kitchen to cook for staff. On 1st October, 2010, he was given a one year contract and the salary was raised to K 720.00. The salary was again raised in October, 2018 to K 1,936.00 and this was his salary till dismissal. 6. According to Mr. Nyangu, on 18th April, 2019, the Managing Director found the complainant loitering ·with the company premises. When confronted, he failed to give a reasonable J3 explanation. As a result, the Managing Director decided to dismiss him summarily in accordance with the general conditions of service. Exhibited to the affidavit as "CNl is the complainant's contract. 7. Prior to the dismissal, the complainant was written to and warned for committing other offences. Exhibited as "CN2" is a copy of the complainant's letter of apology for absence from duty. 8. The deponent further averred that the complainant was entitled to gratuity as per contract of employment from 2011 to 2016 which was based on one month's basic salary for each year completed. He was duly paid his gratuity and leave pay in the total sum of K 14,903.00. Exhibited as "CN3" are copies of the letters confu-ming receipt of the payments over the years. 9. From 2017 to 2018, the terms and conditions of service were altered and gratuity was payable at the discretion of management. Employees were thus only entitled to leave pay and monthly salaries. The complainant was paid K 1,000.00 and K 1,050.00 in 2017 and 2018 respectively. The letters exhibited as "CN4" evidence the two payments. IO. According to Mr. Nyangu, at the time of dismissal, the complainant was duly paid the sum of K 1,050.00 being one month's pay in lieu of notice and K 613.00 being 7 months accrued leave pay as per general conditions of service as sho,vn by pay slip exhibited as )4 "CNS". The complainant is, therefore, not entitled to the reliefs claimed. Hearing 11. The complainant testified on his own behalf and called no other witness. The respondent called one witness. 12. The complainant begun his testimony by giving his employment history. He proceeded to tell court that on the day he was dismissed, he had finished cooking around 16h00 and decided to join his colleagues who were washing tents. The respondent's Managing Director by the name of Mr. Patel approached him and asked him what he was doing. The complainant responded that he was cleaning tents. Mr. Patel then went to Human Resource (H. R) and soon after, the complainant was called by the HR officer. The officer informed the complainant that the boss had directed that he be dismissed instantly for the offence of loitering. 13. According to the complainant, he demanded his benefits for the years of service but he was told that there was nothing for him. Later, however, the respondent prepared K 2,750.00 despite that 12 years of service. He reminded them that he was not given any benefits for the period from 2007 to 2010. 14. On the last pay slip (exhibit "CN5"), the complainant testified that 12 days' pay was deducted from him for absenteeism and yet it is the respondent that made him stop work. JS 15. The complainant went on to admit being given gratuity in addition to his monthly salary after each contract ended. According to him, this did not happen in the period from 2016 to 2018 as the respondent alleged that he was not entitled. 16. When cross examined, the complainant stated that he received gratuity and leave pay from 2012 to 2016 but not in the years prior. He admitted that he did not have a contract to sho,v that he was entitled to gratuity before 2012. He also acknowledged that he was employed as cook/ loader and that washing tents was neither of the two. When referred to the last pay slip, he accepted that his basic pay was K 1,050.00 and that he was paid K 1,050.00 as notice pay. 17. The respondent's witness was Sikongo Chiyanika, the Human Resources Manager who told Court that he begun working for the respondent on 3 rd February, 2025. His predecessor was Mr. Chem be Nyangu, the deponent of the affidavit in support of Answer which he adopted in toto. He had nothing to add. 18. Under cross examination, the respondent's witness stated that the complainant was not paid benefits from 2007 to 2010 because he was not entitled. 19. When referred to the letter of apology written by the complainant for his absence on Sunday 6 th August, 2017 (marked "CN2") the witness stated that there was nothing in the letter to suggest that the complainant was not paid his August salary due to his one day absence. J 6 Analysis and decision 20. I have given careful consideration to the evidence presented by the complainant and the respondent. I am cognizant of the decision in the case ofMasauso Zulu v. Avondale Housing Project Limited(1l which held that: Where a plain.tiff alleges that he has been wrongfully or unfairly dismissed as indeed in any other case whe,.e he makes an allegation, it is generally for him to prove the allegation. A plaintiff who has failed to prove his case cannot be entitled to judgment, whatever may be said of the opponent's case. 21. Thus, the complainant has to prove his claims on a balance of probabilities. I now state my findings of fact. It is common cause that the complainant was employed by the respondent on 2 nd April, 2007 as a general worker. He was initially under an oral contract until 1st October, 2010 when he was placed on a one year v.rritten contract. He was dismissed instantly on 18th April, 2019 on allegations of loitering which, according to his contract dated 1st October, 2018, is a dismissible offence. It is not in dispute that the complainant was paid gratuity and leave benefits for the period from 2011 to 2016. Letters signed by him ackno,vledging receipt of these payments were produced by the respondent. It is also a fact that the complainant received leave benefits in 2017 and 2018 and he signed for these payments. 22. What ought to be determined is w·hether or not he was unfairly dismissed and whether or not he is owed any terminal dues. It is J7 cardinal to point out at this stage that the applicable law herein is the Employment Act, Chapter 268. The Employment Code Act, 2019 had not yet come into existence at the time of the complainant's dismissal on 18th April, 2019. Was the complainant unfairly dismissed? 23. In the case of First Quantum Mining and Operations v. Obby Yendamohl2l the Supreme Court gave guidance of what unfair dismissal is. The Court stated that unfair dismissal addresses the genuineness or otherwise of the dismissal. 24. The authors of "A Comprehensive Guide to Employment Law in Zambia at page 241 define unfair dismissal as dismissal that is contrary to the statute or based on an unsubstantiated ground. Further in the case of Konkola Copper Mines Plc v. Hendrix Mulenga Chileshet3l, the Supreme Court stated that unfair dismissal focuses on "why" the dismissal was effected. 25. The circumstances under which the complainant's employment was terminated are that he was deemed to have been loitering. The contract of employment clearly states that loitering is a dismissible offence. According to the complainant's unchallenged testimony, he was cleaning tents with his workmates when the Managing Director approached him and asked him what he was doing. Quite clearly, director was not satisfied \vi.th the response hence the instant dismissal. 26. It is settled at law that a contract of employment can be terminated by either party in accordance with the terms provided in the contract. Thus, an employer can terminate an employee's contract of employment if the employee is declared to have breached a term of his contract. However, the employer must follo,v the procedure as provided in the conditions of service as well as observe the principles of natural justice in dismissing such an employee. 27. The rules of natural justice demand that no man shall be condemned unheard. He ought to be given adequate notice and opportunity to be heard (see the case of Shilling Bob Zinka v. the Attorney General14l} 28. Thus, where the rules of natural justice have not been followed, a dismissal cannot be deemed fair. 29. As the evidence has revealed, the complainant was dismissed v.rithout being given an opportunity to exculpate himself. There was no hearing conducted. He was simply informed that he was loitering and that his relationship ·with the respondent had ceased. 30. In the case of Sarah Aliza Vekhnik v. Casa Del Bambini Montesorril51 the appellant was served with three warning letters, the third one resulted in termination of employment. The letters contained no invitation for the appellant to give her side of the story or tender an explanation but she was found wanting on two grounds of negligence and incompetence. The appellant was never )9 called for a hearing and neither was she called upon to tender an explanation. The following was the holding of the Court of Appeal: It is in this vein that we come to the inescapable conclusion that the respondent breached the rules of natural justice. It follows that in as much as the respondent had the power to terminate the appellant's employment, the power was not exercised fail'ly. In light of the foregoing, we find that the tennination of the appellant's employment was wrongful in the circumstances. 31. The Court ,vent on to consider section 36 of the Employment Act as amended by Act No. 15 of 2015 which provided for termination of a written contract of employment. Sub section (3) provided as follows: The contract of service of an employee shall not be terminated unless there is a valid reason for the termination connected with capacity, conduct of the employee or based on the operational requirement of the undertaking. 32. The Court then stated that: Section 36 of the Act has placed a requirement on an employer to give reasons for tenninating an employee's employment. Employers are no longe1· at liberty to invoke a termination clause and give notice without assigning reasons for the termination. What is of critical importance to note however is that the reason or reasons given must be substantiated. (underlined for emphasis) 33. As earlier noted, the respondent dismissed the complainant for loitering. The disciplinary code was not produced for the Court to JlO appreciate what amounts to loitering. Thus, recourse is had to Black's Law Dictionary, 8 th edition which, at page 960 defines 'loitering' as "the criminal offence of remaining in a certain place {such as a public street} for no apparent reason." 34. The complainant's testimony that the was washing tents at the material time was not disputed. It appears to me that he was actually performing a duty for the benefit of the employer. He was not just standing around doing nothing. For this reason, I am at pains to appreciate how that is loitering especially bearing in mind that he was a general worker whose duties included washing trucks and performing other incidental works. 35. My considered view is that the reason for the dismissal was unsubstantiated or was not valid. Thus, the respondent breached the rules of natural justice as well as section 36(3) of the Employment Act. As such, the dismissal was unfair. 36. Having been satisfied that the complainant's dismissal was unfair, it follows that he is entitled to damages. 37. A plethora of cases have decided that the award of damages should be equivalent to the contractual period of notice. In the case of Barclays Bank Zambia Limited v. Mando Chola & Anotherl61 it was held that the reason why the normal measure of damages is based on the period of notice is that it is the period within which the employee could reasonably be expected to have secured another job. Jll 38. In the case of Charles Ng'on.ga v. Alfred H. Knight (Z) Limited!7l the Supreme Court confirmed the position that the normal measure of damages is an employee's notice period or as it is provided for in the law and can only be departed from when the employee proves that he is deserving of more and the conduct of the employer was so serious that it warrants a higher award of damages. 39. The respondent's undisputed averment was that the terms and conditions of service provided for notice of termination of employment of 30 days. Thus, normal damages would be one month's salary. 40. However, I am of the firm view that the failure by an employer to follow the rules of natural justice is conduct warranting a higher award. Instant dismissal is, no doubt, traumatizing as the employee is not prepared for the loss of his livelihood. I do, however, note the unchallenged evidence from the respondent that the complainant was written to and warned for committing other offences prior to his dismissal. In support of this allegation, the respondent produced a letter of apology from the complainant dated 13th September, 2017 in which he apologized for being absent from duty. I am of the view that this conduct ought to react against him in determining the award. 41. I further note that the contract under which the complainant was serving was due to expire on 30th September, 2019. He \Vas basically remaining with a few months before his employment J 12 would come to an end and renewal was of course at the employer's discretion. 42. Taking the foregoing into account, therefore, I award the complainant 4 months' full salary as damages for unfair dismissal. 43. I vvill now determine the other claims. Notice pay 44. The complainant is claiming pay in lieu of notice. It is, however, noted from his last pay slip dated April, 2019 that the respondent did make a payment of K 1,050.00 as notice pay. The parties agreed that this was the complainant's basic pay. 45. In the case of Development Bank of Zambia v. Dorninic Mambol8l the Supreme Court held that where payment in lieu of notice is the mode of termination, the payment should be made in terms of the remuneration due to the employee under his existing contract. 46. On the one hand, the complainant stated that his monthly pay was K 1,934.00. On the other hand, the respondent stated that the complainant's pay was K 1,936.00. It is not immediately clear where the conflicting figures emanate from. Ho,vever, according to the complainant's contract, existing at the time of his termination, ("CN l "), his monthly remuneration was K 2,038.00. I hold the vie,v that this is the amount he ought to have received as notice pay. Quite clearly, therefore, he was underpaid. J 13 Leave pay 4 7. The complainant did not give evidence on this issue save to state that he was not paid between 2007 and 2012. The respondent, on its part, asserted that the complainant was paid for accrued leave days every year. In support of this assertion, the respondent produced letters where the complainant acknowledged receipt of leave benefits for the period from 2011 to 2018. 48. The complainant was obligated to prove that he was still owed a balance of leave benefits. There is no evidence to show that he did not receive benefits prior to 2011 or that he did but was underpaid. I am, therefore, disinclined to find in his favour. The claim is dismissed. Benefits for years of service 49. The complainant did not specify what these benefits are but since he had not attained the age of retirement at the time he was terminated, it is safe to conclude that he is not claiming retirement benefits. This leaves only one form of benefits, and that is gratuity. 50. It has already been established that the complainant was employed under the Employment Act. According to the learned authors of the text A comprehensive Guide to Employment Law in Zambia at page 287: Prior to the enactment of the Employment Code Act, gratuity was only a statutory entitlement for employees covered by the General and Shop Workers Orders provided they reached the retirement age and had worked for at least 10 years. For all other employees, gratuity was only an J 14 entitlement if provided for in their contract of employment or given at the discretion of the employer as an ex-gratia payment. 51. It will be noted from the respondent's affidavit evidence that the complainant was paid gratuity from 2011 to 2016 and that he was not paid from 2017 to 2018 because the terms and conditions of service were altered. Exhibited to the affidavit are letters dated 2011 to 2016 signed by the complainant ack-nowledging receipt of gratuity. 52. From the foregoing, it is clear that the claim for gratuity can only be restricted to the period from 2007 to 2010 and 2017 to 2018. But is there proof that the complainant was entitled to gratuity in those years? 53. The evidence has established that the complainant was initially employed under a verbal contract. He, nevertheless, did not produce evidence to show that his oral contract provided for gratuity. This applies to the year 2017. The complainant similarly did not produce a contract providing for gratuity in that year. 54. As for 2018, according to the complainant's contract for the period from 1st October, 2018 to 30th September, 2019, gratuity was re introduced at the rate of one month's basic pay, to be paid at the discretion of management upon successful completion of the contract. As alluded to earlier, the complainant did not complete the contract. He was dismissed a few months before its expiration. The last pay slip for April, 2019 is devoid of a gratuity payment. J lS This entails that management decided not to pay the complainant in the wake of the failure to complete the contract. As seen above, since gratuity was not mandatory prior to the enactment of the Employment Code Act, 2019, the respondent cannot be taken to task for failure to pay the complainant at pro rata basis. It simply followed the terms of the contract. 55. The upshot of the foregoing is that the claim for benefits for years worked lacks merit and is accordingly dismissed. Conclusion and final orders 56. The complainant has proved on a balance of probabilities that he was unfairly dismissed and is thus entitled to damages. He has also proven that he is owed a balance on the notice pay. The claims for leave pay and benefits for the years worked fail for want of justification. 57. For the avoidance of doubt, I order follows: (i} The respondent shall pay the complainant 4 months' full salary as damages for unfair dismissal; (ii) The respondent shall pay the complainant the balance on notice pay; (iii) The two amounts are to be computed by the learned Registrar. (iv} The judgment sum shall attract interest at short-term bank deposit rate from the date of Notice of Complaint to the date J 16 of judgment and thereafter, at current lending rate as determined by the Bank of Zambia until full settlement. (v) Each party shall bear own costs. HIGH COURT JUDGE J 17