Mubiana Sitali and 10 Ors v M & H Packaging Industries Limited (COMP/IRCLK/832) [2024] ZMHC 262 (28 November 2024)

COIP/TR£Uf4832 IN THE IDGH COURT FOR ZUIBlA. IKDUSTRIAL RELATIONS DIVISIO BOLDEN AT LUSAKA. (Ciuil Jurisdictum.] l:sE'l"WEErt: MUBIA1iA. SITALI Al'iI> 10 01"' ' AND M & H PACKAGING IliDUSTRIBS LDDTBD R. BSPO Coram: Before Mrs. JlJStice S. !fgoma this~ day 2024. For the Complainant For the Respondent JUDGMENT Legislation referred to: L The Employment Code Act: .l r 0 - 3 OZ" 20 9 _ 2_ . Minimum Wages and Condmom; of ~ an ( fi., 'P\ _ ,./';=- _ as amended. in 2012 and 2 01.8- Case referred to: L Wilson Masautso Zulu A¥rmri2l? Hoas:rng Pn:l~~ f 982 2-. R. _-:: 2. Nyambe Martin 0:Lti. S !, ~ ~- 3. Zambia Nation al Providen· Fun~ v Cm:rna. (_9Sfi LR 7 4. Tiger Chicks (t / a Progressive Pouh:!y !..imri-= vs _en::oo Cn~::-[":.e. C and Others (Appeal 6 of 2 020) (2020] ZM.....~ 160 (23 ~ -"""--"'=>."'. CamScanner , .. , .. i · ,.-· i ~. ~-•. :./·' :, . t·· ' k, ~~ . =.~'". r--·:· . ~··· 1- ~--·~ ~ . . Introduction· 1. The complainants commenced this action on 11 th October, 2022 by way of Notice of Complaint and suppo.rting affidavit seeking the following reliefs: i) ii) iii) iv) v) Leave days; Gratuity; Breach of Contract; 6 months' salary arrears; Costs and any other reliefs the court may deem fit. Complainants' Affidavit Evidence 2. The complainants' affidavit evidence was that they were employed by the respondent on various dates as machine operators and mould filters. 3. It was the complainants' case that the respondent promised to increase their salaries in June 2022 and that by August 2022, the respondent had not increased their salaries. That the Labour Officers visited the respondent and directed that the complainants be paid a minimum wage but the respondent did not adhere to those directives. 4. It was also the complainants' case that the respondent, on 6th September, 2022, issued them with warning letters as exhibited in the affidavit in support of complaint and marked as MS-1. 5. The complainants further averred that they received termination letters on 19th September, 2022. The termination letters were produced as MS- 2 in the affidavit in support of notice of complaint. J2 CamScanner " .: .. · 6. It was the complf.\innntR' further tostimo11y that they took the matter to the Labour Office where the respondent was MUmmoncd but that everything proved futile hence being referred to this court. Respondent's answer and affidavit ln support 7. The respondent filed an answer and supporting affidavit on 28th November, 2022. The supporting affidavit was deposed to by Enock Sakala, the shift supervisor of the respondent company. 8. It was the deponent's evidence that the complainants were employed by the respondent under various contracts which contracts were approved by the Ministry of Labour and were valid for a period of one year from the year 2022. Copies of the respective contracts were produced in the affidavit in support of answer and marked ESl (a)-(k) 9. It was the respondent's case that the complainants held different positions in the respondent company among which were general workers, printers and weavers, contrary to the complainants' pleadings. 10. The respondent further averred that the facts leading to the termination of the complainants' contracts of employment were that a dispute in relation to salary increments arose and the respondent, in addressing the said dispute, engaged the Ministry of Labour and Social Security to invite them to see its operations and help classify each department. The Ministry, in response, promised to issue a report to the respondent but did not issue one. A copy of a letter written to the Ministry was produced in the respondent's affidavit and marked ES-2. 11. The deponent contended that in frustration with management, the complainants instigated and held a strike with a few other co-workers without notifying the respondent, which action was contrary to the provisions of the complainants' contracts of employment. A copy of a J3 CamScanner letter signed by one of the complaina nts, Tracy Screnj , wht r~ oh ln aclmowledging that she incited her fellow employees to take pnrt in t}w strike was produced and marked "ES3" 12. The deponent further averred that although the punishment for holding unauthorized strikes was summary dismissa l, the rcRpond n t gave final warning letters to the complainants wa rning them thflt n repeat of the strike again would lead to dismissals. He contended tlu\t this, notwithstanding, the complainants wen t on strike agnin , prompting the respondent to terminate their contracts of employment with immediate effect, as evidenced by the termination letters produced in the affidavit and marked 'ESS(a)-(k)'. 13. The deponent further averred that the complainants were paid their gratuities, wages in lieu of notice and accrued leave days as evidenced by the acknowledgment of receipts marked 'ES6(a)-(k)' in the affidavit in support of answer. 14. It was the respondent's case that following the termination of the employment contracts, both parties attended a meeting at the Labour Office where a settlement was reached pursuant to which all the complainants were paid all their claims in full. The acknowledgment of receipts signed by the complainants were produced and marked 'ES9(a)-(k)'. Hearing 15. At the hearing held on 15th November, 2023, the complainants' lead complainant, Oscar Mubiana Sitali, ('CW') testified that he was employed by the respondent in January, 2022 as a machine operator and mould fitter on a one-year contract. It was his testimony that the complainants had an issue with the respondent being that their salaries were too low. They engaged the Human Resource Officer (HR) i' •. , J4 CamScanner ' . ' ' .. ·' "'" ! ; . -~ .. : · -who advised them to go ahead and sign their written contracts, promising to negotiate an increment with their superiors. In June, 2022, the HR officer assured the complainants that the increment had been approved by the boss and would be effected in July 2022. In August 2022, the complainants discovered tha,t salaries had been increased for some employees but not for all of them. On 1st September, 2022, the complainants followed up oh the promised increments and on 5 th September, 2022, they engaged Mr. Muhamed, the General Manager, who told them their services had been terminated. At that time, the respondent also called the Labour Office who came to meet all employees and discovered that they employees had no work suits and noted that the employees' salaries were too low. 16. It was his further testimony that the Labour Officers also inspected the whole factory and noted that cables in the factory were improperly arranged. Afterwards, they assured the employees that their salaries would be increased. They also advised employees not to work until the respondent bought them work suits. The next day, the respondent bought the work suits and the employees returned to work. 17. On the 20 th September, 2022, the complainants were given termination letters and were paid 6 months' salaries and gratuities. He told the court that the leave days and gratuity they were claiming relate to the unserved 6 months following the premature termination of their employment. 18. CW further told the court that the underpayment of salaries was anchored on what the labour office told them that their salaries as machine operators should have been K2,275 as opposed to Kl,500 which they were being paid. CamScanner 19. In cross-examination, CW, admitted that leave days, gratuities and salary underpayments they were claiming were for the period they did not work for. He also admitted they were paid their salaries in lieu of notice. 20. In further cross-examination, CW denied that the complainants were given any warning letters prior to their dismissals. 21. In re-examination, CW told the court that the respondent did not pay the complainants in lieu of notice Respondent's Evidence at Trial 22. The respondent called two witnesses. The first was Enock Sakala, the Shift Supervisor in the respondent company ('RWl). RWl was the deponent of the affidavit in support of the answer. He relied on his affidavit as part of his evidence in chief. He added that he was shocked that this matter had come to court particularly that the complainants' claims were settled in full and they even signed for the money paid. He prayed that the court dismisses all the claims. 23. In cross examination, RW 1 maintained that the respondent paid all of the complainants' dues. 24. The second witness called by the respondent was Mabuchi Harawa, (RW2) the Assistant Accountant in the firm of messrs Philson and Partners, the respondents' advocates on record. 25. It was RW2's testimony that sometime in October 2022, she was requested by the respondent to pay out money to the complainants after a successful settlement reached at the Labour Office. She told the court that she paid the complainants from her office where each complainant counted the money given to him in her presence and J6 CamScanner signed the acknowledgement of receipt of funds in full and final settlement of all claims. She identified "ES 9" as the acknowledgement of receipt signed by the complainants. She further told the court that she signed as witness on all of the ! • . , ,. i . { _ acknowledgements of receipt. 26. The witness ended her testimony by stating that she was shocked that this matter had come this far when the complainants had acknowledged receipt of payments made to them as full and final payment of their claims. She thus urged this court to dismiss the complaint for lack of merit. 27 . In cross examination, RW2 maintained that the complainants were paid all their dues receipt of which they acknowledged as full and final settlement of their claims. She further told the court that both the acknowledgment of receipt and the page containing the breakdown of the payment was given to each complainant. Submissions 28. At the close of. the hearing, the respondent's counsel filed written submissions for which I am grateful. I shall refer to the submissions as I go along in my analysis of issues. Issues for determination 29. In my view, the issues to be determined are as follows: 1. Whether or not there was breach of contract; and 11. Whether or not the complainants are entitled to gratuity, salary arrears and leave days. J7 CamScanner Determination of Issues i. Whether or not there was a breach of contract 30. It was submitted on behalf of the respondent that the complainants had not discharged their burden of proof to the standard required by this court. Reliance was placed on the case of Wilson Masautso Zulu V Avondale Housing Projects1 where it was held that: "Where a Plaintiff alleges that he has been wrongly or unfairly dismissed, as indeed in any other case where he makes an allegation, it is Jor him to prove those allegations. A Plaintiff who has Jailed to prove his case cannot be entitled to judgment whatever may be said of the opponent's case." 31. It was submitted that the complainants had not argued, in any way, that their respective contracts of employment were terminated wrongful or otherwise. That, in fact, the complainants did not specifically plead what, in their case, amounted to breach of contract. That they did not dispute that they committed dismissible offences under their respective contracts of employment and neither did they dispute that they were paid all their dues until termination. 32. It was the respondents' submission that, in fact, the complainants were warned, as a matter of leniency, instead of being dismissed when they first committed the dismissible offence of holding unauthorized or unconstitutional actions against the respondent. 33. I have analysed the record and I have to agree with the respondent's counsel that the complainants did not specifically indicate what exactly amounted to breach of contract. Although their contracts were exhibited in the respondent's affidavit in support of answer, the ,n CamScanner -.:_. ··,· .. , -· -: ,: . , •• . complainants did not draw my attention to the specific clauses which were breached. 34. Further, the complainants did not challenge the respondent's assertion that what led to the termination of their services was that they took part in an unauthorized strike, and that the same was a dismissible offence. 35. I, again, bemoan the tendency by some litigants, particularly unrepresented ones, who make no effort to adduce even an iota of evidence to substantiate their claims. There is a plethora of authorities, including the case of Wilson Masautso Zulu V Avondale Housing Projects cited above that it is incumbent upon a party making allegations to prove them. 36. The respondent has asserted that the complainants were terminated for taking part in an unauthorized strike. The first time the complainants went on strike they were given warning letters, the copies of which were exhibited as ES-4 in the respondent's affidavit in support of answer. Despite the warning letters, the complainants, again, took part in a similar strike. The complainants did not dispute this, even in the face of an allegation that one of their own, Ms. Tracey Serenje, conceded to having incited her fellow employees to take part in the strike. 37. In view of the foregoing, I am satisfied that the complainants' contracts of employment were terminated after they repeated their participation in a strike. I am also satisfied that the complainants have failed to substantiate the claim that the termination was in breach of contract. As such, the claim for breach of contract fails for lack of merit. CamScanner ' . '• •. ·t'· ·' "'- ! ' ~ ·' ' · ·: ·,: . •· . ' , • ·.•. f. .. u. Whether the complainants are entitled to leave days, gratuity, and salary arrears 38. CW testified that the complainants were paid their leave days, gratuity and salaries up to the date of termination of their contracts of employment. Both respondent witnesses also confirmed that the complainants were, indeed, paid all their dues for the period they served. This was also evidenced by the acknowledgment of receipts produced collectively as ES-6(a)-(k) in the respondent's affidavit in support of answer. 39. CW told the court that the complainants' claims for these reliefs relate to the period after the termination of their contracts until the full period of 1 year had lapsed. It was the complainants' position that they were entitled to payment of all they would have earned had their one-year contracts not been terminated prematurely. 40. The respondent opposed these claims arguing that awarding the complainants salaries, leave days and gratuity for months not worked would amount to unjust enrichment. Counsel drew my attention to the Supreme Court decision in the case of Nyambe Martin Nyambe v Gabriel Mwelwa & Others2 where the court, when called upon to decide whether the Court of Appeal had wrongly awarded pension benefits for a period not worked on the basis of unjust enrichment and because there was no breach of contract to entitle the appellants to damages, held at page j41 that: "When this issue arose in the cases of Zesco Limited V Alexis Makulu Matale and Kitwe City Council v Willim Nguni, we expressed our dismay regarding orders of the trial court awarding damages · to employees for periods not worked, in the following terms: CamScanner " you cannot award a salary or pension benefits .. .for a period not worked for because such an award has not been earned and mightbe properly termed as unjust enrichment." We affirm that holding." .r_·•._ 41. On the basis of the above authority, the respondent urged me to dismiss the claims. While denying that the termination was wrongful, ' - .. . • . ·-. . · ' _,, . . • .• , -.: '.-~ t\~-: .... . :~·:_:\ - .·. the respondent argued that even assuming the termination could be faulted, the fact that the complainants committed a dismissible offence would rob the complainants of grounds of unfair or wrongful dismissal. This argument was buttressed by the decision in the case of Zambia National Provident Fund v Chirwa3 where it was held that: "Where it is not in dispute that an employee has committed an offence for which the appropriate punishment is dismissal and he is also dismissed, no injustice arises from a failure to comply with the laid down procedure in the contract and the employee has no claim on the ground of wrongful dismissal or a declaration that the dismissal is a nullity." 42. With many other authorities, the respondent invited me to find that the complainants would not be entitled to any ·relief of wrongful termination on the ground of failure to follow procedure. I respectfully decline to go that route because the issue of failure to follow procedure did not come up in the pleadings or at trial, hence I find a discussion on this issue to be otiose. iii. Any Other Relief the Court may deem flt 43. It was CW's testimony that the complainants were told by the Labour Office that their salaries of Kl,500 per month were too low and that they should have been getting K2, 275 as machine operators. CW did not state the basis for this assertion. Although he told the court that the complainants were all machine operators, he did not adduce any Jll CamScanner evidence to prove this. The complainants' contracts of employment submitted by the respondent and marked ESl (a)-(k) show that the complainants were employed in various positions as follows: i. Chibelushi Sandra, whose contract is exhibited as ES 1 (a) - weaver 11. Teddy Simwinga, whose contract is exhibited as ESl(b) - weaver; u1. Maximo Chanda, whose contract is exhibited as ESl(c)- weaver; 1v. Maximo Chanda, whose contract is exhibited as ESl(d)- weaver; v. Stacy Serenje whose contract is exhibited as ESl(e)- weaver; vi. Paul Chama, whose contract is exhibited as ES 1 (f)-general worker; vu. Mubiana Sitali, whose contract is exhibited as ESl(g)- OPR Vlll. Mushenya Douglas, whose contract is exhibited as ESl(h)-ex OPR; ix. Frank Chilembo, whose contract is exhibited as ESl(i)- n/a; x . Frank Chilembo, whose contract is exhibited as ES 1 (j)- printer; and xi. Mweetwa Mwangilwa, whose contract is exhibited as ESl(k) weaver. 44. At the time of the complainant's employment, the Ministerial Orders enacted under the now repealed Minimum Wages and Conditions of Employment Act provided for minimum wages and conditions of employment for protected employees. I have examined the Minimum Wages and Conditions of Employment (General) Order, 2011, as amended in 2012 and 2018, ("the General Order'') which applies to vulnerable workers and covers their terms and conditions such as annual leave, retirement benefits, etcetera. I have noted the specific workers as identified in the Schedule to the General Order as: Category ~ (a) general workers, not elsewhere specified; (b) cleaners (c) handymen; (d) watchmen and guards; Category II are drivers; while category III has typists and receptionists or_ telephonists and Category IV protects clerks. CamScanner 45. Of the listed positions occupied by th e comp1ainantff, on1y general worker is mentioned in the Schedule to the General Order, The Supreme Court, in the case of Tiger Chlcka (t/a Pro1rca1ivc Poultry Limited) vs Tembo Chrisford and Othera4 held that an employee can only benefit from the Ministerial Orders if they fall in to one . of the protected categories and that notwithstanding their dcHignation a which do not answer to any of the categorised positions, it ia possible, for good cause, for non-categorized employees to be re-categorised into one or other of the identified categories. 46. Paragraph 3(l)(a)(i) of the General Order, as amended by statutory instrument No. 46 of 2012, provides that a 'general worker' shall apply to all other workers 'not elsewhere specified' in the statutory instrument. That is to say, workers who do not fit in any of the categories which are stated therein. No evidence was adduced as to what the responsibilities of a weaver, printer and operator were. As such, I have not found any cause to re-categorise them into general workers. 4 7. Consequently, I find that of all the complainants, only Paul Chama, employed as a general worker, was a protected employee to whom the General Order applied. 48. Since the rest of the complainants were not protected employees as defined above, I have no basis for holding that their salaries were too low as alleged. As for Paul Chama, my attention is drawn to section 4(1)(a) of the (General) (Amendment) Order 2018, which provided the minimum wage for a general worker as Kl, 050. 49. Exhibit ES 1 (~, at page 2, shows that Paul Chama's basic salary was · Kl, 050. As this was the prescribed minimum salary, it is clear that Paul Chama was not underpaid either. J13 CamScanner .. . . ' . ~ .. .. -. .. . .. . , . ' ·' ~f :}t.·· _:·. ' . . . ' · 50. In the light of the foregoing, I find the assertion that the complainanti' . · salaries were too low and that they should have been getting K2, 27 5 to be devoid of merit. 51. Conclusion and Orders 1. The complainants have failed to prove their case on a balance of probabilities and all the claims are hereby dismissed for lack of merit. u. Each party shall bear its own costs. 52. Leave to appeal is granted . . . . . . . . . . . . . . . . . . . . Mrs. M. S. Ngoma HIGH COURT JUDGE JUDGE IALRELAi\O ox 5006'1 , CamScanner