Mukiza Jean De Dieu v Elechia Investments Limited (2025/HPIR/0006) [2025] ZMHC 125 (30 September 2025)

2025/HPIR/0006 IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: MUKIZA JEAN DE DIEU AND ELECHIA INVESTMENTS LIMITED Coram: Before Hon. Lady Justice Mrs. Mwaka. S. Ngoma this 30th September, 2025 For the Complainant In Person For the Respondent NIA JUDGMENT Legislation referred to: 1. Minimum Wages and Conditions of Employment (Shop Workers} Order, 2011 as amended in 2012 and 2018. 2. Minimum Wages and Conditions of Employment (Shop Workers) Order, 2023 3. Employment Code Act No. 3 of 2019. Cases referred to: 1. Robert Simeza and 3 Others vs Elizabeth Mz.yece (2011} ZMSC 3. z. Khalid Mohamed v. The Attorney-General (1982) ZR 49. 3. B. J Poultry Farm Limited v. Nutri Feeds Zambia Limited (Appeal 166 of2015). 4. Cli...e Mumba v Mabua Resources Limited (2024) ZMHC 79. 5. Albert Mupila vs Yu• Wei s.c.z. Judgment 26 of 1982} [1982] ZMSC 17. Jl 6. Eston Banda and Another v Attorney General7 (Appeal No. 42 of 2016. 7. Ca.re International Zambia V Misheck Tembo SCZ Appeal No. 57 of 2016. other authoritative texts 1. Mwenda, W. S and Chungu, C, A Comprehens(ve G1.dde to Employment Law (n Zambta. 2021, The University of Zambia Press. BACKGROUND 1. The brief background to this matter is that the complainant was orally employed by the respondent on Sth May 2023 as a driver until 22nd July, 2024 when his employment was verbally terminated without any notice. 2. At the end of his employment, his employer, the respondent herein, did not pay him anything. He was aggrieved, and commenced the action herein by way of notice of complaint and supporting affidavit seeking the following reliefs: a. Leave days b. Salary arrears c. Notice pay d. Benefits e. Unlawful and Unfair termination f. Costs and any other benefits the court may deem it. Complainant's Affidavit Evidence 3. In his affidavit evidence, the complainant averred that he was employed on 5th May, 2023 as a driver on permanent basis and his monthly salary was pegged at K1500. J2 4. He added that it was agreed that the respondent would keep his salaries and pay it all to him as a lump sum at the expiration of two years. 5. It was his further testimony that after he had worked for one year and two months, the respondent verbally terminated his employment without any notice. 6. He averred that he asked the respondent about the money he had worked for during the period of one year and two months and the respondent told him that he would be paid bit by bit but up to the time of commencement of his action, no payment had been made. 7. He further averred that he lodged a complaint with the Labour Commissioner who summoned the respondent twice. However, the respondent did not avail itself. The Labour Commissioner then referred the complainant to this Court for assistance. The letter of reference was exhibited in the affidavit in support of complaint and marked MJDD 1" 8. The respondent did not file an answer. Hearing 9. At the hearing held on 31 •t July 2025, the respondent did not appear before court, while the complainant was present. I noted from the record that the complainant filed an affidavit of service on 17th July 2025 in which he deposed to having served the respondent with the notice of hearing on the same day that he filed his affidavit of service. Having satisfied myself that the respondent was aware of the date of hearing, I proceeded to hear the matter on the basis that the respondent was absent from court without any reason. I was fortified in taking this course by the case of Robert Sbne.za and 3 Others vs Elizabeth M.zyece 1 where the Supreme Court guided that no procedural injustice is J3 occasioned when a court proceeds where a party who was aware of proceedings did not appear before court. 10. Before court was a gentleman by the name of Levis Nuikuri of Chipanga Electric Company who told the court that he was aware that the respondent previously occupied the premises that his company was operating from. He stated that he had no relationship with the complainant and had only come to court out of respect for the court. He further appealed to the complainant to wait for the owner of the company who employed him. 11. I, nevertheless, decided to proceed as it was not the first time someone attended court just to say he had no relationship with the complainant or respondent but, that he operates from the same premises where the respondent used to operate from. On 20th May, 2025, a Mr. Gipanga Rujurama attended court to say he had no dealings with the respondent as he just rents the houses and business premises that the respondent used to rent. 12. The complainant's oral testimony was that he was employed on a two year contract. His salary was pegged at Kl,500 per month. However, it was agreed that instead of being paid every month, he would receive his salary as a lump sum at the end of his two year contract so that he could use the money to go and open his own shop. 13. It was his testimony that, as a driver, he was the one who went to buy supplies for the respondent's shop. That the respondent was operating a liquor store. 14. He also told the court that he had continued asking the respondent for the money that he worked for, and each time the respondent told him to J4 wait for the boss' return from abroad. He did not lrnow which country the boss had gone to, save that it was overseas. He identified the boss as Jean Boso Bahati, the one who signed on the mediation statement when this matter was referred to mediation. 15. He further testified that while he was employed by the respondent, he was provided with accommodation. However, when he asked for the money that he had worked for, the respondent demanded that he vacates the house. The complainant said he resisted and asked how he could vacate the accommodation when he had not been paid his terminal dues. The respondent then paid him a Kl000 and said he could use it to pay for accommodation wherever he went. After this, the respondent proceeded to lock him out by putting new locks on the house doors. Issues for Determination 16. As indicated above, the respondent did not file an answer and neither did it appear in court. This matter is, therefore, undefended. Nevertheless, it is trite law that a plaintiff or complainant cannot automatically succeed whenever there is no defence or when a defence has failed as he has to prove his case since the mere failure of the defence does not entitle him to judgment, see Khalid Mohamed v. The Attorney-Generat:3 and B. J. Poultry Farm Limited v. Nutri Feeds Zambia Limited.3 As such, the only issue for determination, in my view, is whether the complainant has proved his claims against the respondent. Determination of Issues 17. Before I delve into the claims listed in the complaint, it is imperative that the nature of the complainant's employment with the respondent JS be determined. In paragraph 4 of the affidavit in support of complaint, the complainant stated that he was employed as a permanent employee. At the hearing of the matter, it was his oral evidence that he was employed on a fixed term contract of two years and that the parties agreed that he would be paid at the expiration of this period so that he could open his own shop. 18. The complainant's evidence, one way or another, was unsupported by any documentary evidence. His testimony was that his contract of employment was oral. I have no difficulties accepting this because it is not uncommon for this class of employees to be employed without a written contract or any document evidencing their terms and conditions of employment. 19. Having stated that, I am mindful that it is crucial that the nature of employment be determined because this has a bearing on the reliefs sought, particularly what terminal benefits may be awarded to the complainant. 20. There is a plethora of authorities where the courts have had occasion to pronounce themselves on when an employment may be considered to be of a permanent nature. 21. The High Court, in Clive Mumba v Mabiza Resources Limlted4 made the following finding: "Therefore, the default type of contract is a permanent one. However, where the contract contains a clause fixi.ng the duration and stating a pre-detennined end date, this would change the characterization of the contract. Put differently, a contract is presumed to be permanent in nature, unless the contrary is proven." J6 22. Additionally in Albert Mupila vs Yu• We15 , the High Court made a finding that: "Where a contract does not fix a date for expiry, it is presumed to be a pennanent contract that expires at retirement age unless tenninated in tenns of the law." 23. The above stated positions by the learned Judges of the High Court are in harmony with the views of the learned authors Mwenda and Chungu, in their book, A Comprehensive Guide to Employment Law in Zambia, at page 23, where permanent employment is defined as follows: "In Secretary of State for Employment II Globe Elastic Thread Company Limited {( 1979) 2 ALL ER 1077} the court held that a person's employment during any period should be presumed to have been continuous unless the ccntrary is proved. Hence it is always assumed that an employee is in full-time employment unless there is evidence to the contrary such as the inclusion of a fixed tenn in the contract of employment. n 24. The circumstances of the parties' relationship are such that it cannot be assumed that the complainant was in a permanent employment. The complainant's testimony that it was agreed that his salary would be kept by the respondent until the expiration of two years to enable him start his own shop business was uncontroverted. It does not seem likely that the parties would have intended for the complainant to start his own shop business after two years and continue to be in the respondent's employ. What is probable is that the parties intended for the complainant's employment to terminate after two years when he would start running his own shop. )7 25. In view of the foregoing, I am satisfied that the complainant was employed on a t\ivo-year fixed contract which was to run from S°' May, 2023, the date of his employment to 4°' May, 2025, when he would have clocked two days. 26. Another critical issue worth considering at the outset is that the complainant, who worked as a driver in a shop, was no doubt a protected employee as envisioned by the Minimum Wages and Conditions of Employment (Shop Workers) Order 2011 ("the Order") as amended, and after its revocation, by the Minimum Wages and Conditions of Employment (Shop Workers) Order, 2023 ("the 2023 Order"). 27. The categories of employees to whom the order applied as indicated in the schedule to the order included 'driver', a position held by the complainant. Paragraph 1 (b) in the schedule to the 2023 Order also includes a driver in the categories of protected employees. 28. Having stated the above, I shall proceed to determine the complainant's claims against this backdrop. A. Whether the Complainant is entitled to Leave Pay 29. The complainant seeks leave days' pay. It was his testimony that he never went on leave the entire period of his employment. He added that, in fact, he worked every single day, including Saturdays and Sundays. 30. Section 5 (1) of the Order provided for two days' leave in a month as follows: JS "An employer shall grant leave of absence on full pay to an employee, other than a part time employee, who hCtS completed six months' continuous service at the rate of two days per month in accordance with the following conditions: (a) in computing the period of leave, Sundays and public holidays shall be excluded; (b) part time employees shall be given leave of absence on full pay based on the proportion that their number of hours worked per month bears to one hundred and ninety five hours; and (c) the employer may give reasonable consideration to the exigencies and interest of the employer's business in agreeing to the date when an employee may take leave." 31. The 2023 Order which revoked the 2011 Order does not provide for leave. However, Regulation 12 (1) of the 2023 Order proscribes the reduction or adverse alteration of an employee's wages or any benefit as a result of its application. It provides as follows: "12. (1) On commencement of this Order, the wages or any benefit enjoyed by an employee shall not be reduced or altered adversely as a result of an application of this Order." 32. The import of this, in my view, is that the complainant accrued two days of leave per month the entire period of his employment. As the complainant's employment spanned from 5th May, 2023 to 22nd July, 2024, he accumulated a total of 28 leave days, and the same is awarded to him, to be assessed by the Honourable Registrar, in default of agreement. B. Whether the complainant is entitled to Salaries for the period he was employed by the respondent 33. It was the complainant's uncontroverted testimony that he was not paid his salary from the commencement of his employment as it was agreed J9 that the same would be paid as a lump sum at the expiration of his contract. It was his further testimony that his monthly salary was pegged at Kl,500. 34. I am satisfied that the complainant's salaries were withheld by the respondent. As such, I award him salaries for the 14 months he served the respondent. C. Whether the Complainant ls entitled to Notice Pay 35. It was the complainant's evidence that his contract was terminated without any notice. Section 53 (1) of the Employment Code Act provides for notice as follows: "53. (1) An employee whose contract of employment is intended to be tenninated is entitled to a period of notice, or compensation in lieu of notice, unless the employee is guilty of misconduct of a nature that it would be unreasonable to require the employer to continue the employment relationship." 36. Subsection 2 (c) provides for a notice period of thirty days as follows: •r2) An employer shall, where the contract of employment does not provide for a period of notice, give- (a) .. . (b) ... and (c) thirty days for a contract of employment of more than three months, except that notice to terminate a contract of employment of more than six months shall be in writing." 37. As the complainant's contract was for a period of more than six months, he ought to have been given thirty days' notice. As he was not, I am JlO satisfied that he is entitled to one month's salary in lieu of notice. I, accordingly, award him the same. D. Whether the Complainant is entitled to Benefits 38. In terms of the claim for benefits, the complainant did not lead any evidence as to the basis for this claim. I have, time and again, bemoaned the mistaken believe by litigants who come to this court, particularly unrepresented ones, that it is the duty of the court to scrounge for evidence to support their claims. As stated above, the party that makes a claim has a duty to prove his claim. This was the holding in the case of Khalid Mohamed v. The Attorney-General2 referred to above. 39. Be that as it may, I have not lost sight of my earlier finding that the complainant was employed on a fixed term contract of two years. Gratuity and severance pay are examples of benefits payable to deserving employees at the end of a fixed term contracts. 40. Section 73 of the Employment Code Act provides for the payment of gratuity as follows: "73 (1) An employer shall, at the end of a long-temi oontract period, pay an employee gratuity at a rate of not less than twenty-five percent of the employee's basic pay earned during the contract period. (2) Where an employee's contract of employment is terminated in accordance with this Code, the employee shall be paid gratuity prorated in accordance with the period of employment. • 41. A long-term contract has been defined at section 3 of the Employment Code Act as a contract of service either for a period exceeding twelve months, renewable for a further term or for the performance of a )11 specific task or project to be undertaken over a specified period of time, and whose termination is fixed in advance by both parties. 42. The question whether the complainant served under long-term contract is answered in the affirmative considering my earlier finding that the complainant served on a two•year fixed term contract. Consequently, I am satisfied that the complainant is entitled to gratuity at the rate of twenty•five per cent for the entire period of his employment. The same shall be calculated by the Honourable Registrar, in default of agreement. E. Whether the complainant's employment was unlawfully or unfairly terminated 43. Again, not much was stated by the complainant to support his claim for unfair and unlawful termination of his employment save that his employment was terminated without notice and without reasons. 44. In order to distinguish unfair termination and wrongful termination, I shall refer to the case of Eston Banda and Another v Attorney General6 where the distinction between wrongful dismissal and unfair dismissal was aptly made. I hasten to state that, although in casu, the issue is not a dismissal but a termination, the distinction made by the court in that case can be applied to termination as well. It reads: a ... there are only two broad categories for dismissal by an employer of an employee, it is either wrongful or unfair. "Wrongful' refers to a dismissal in breach of a relevant term embodied in a contract of employment, which relates to the expiration of the term for which the employee is engaged; whilst 'unfair', as stated at paragraph 757 of Jl2 Halsbury's Laws of Engla.nd, refers to a dismissal in breach of a statutory provision, where an employee has a statutory right not to be dismissed." 45. Another relevant authority on the distinction between the two is the Supreme Court case of Care International Zambia V Misheck Tembo7 where the court quoted Sprack John Employment Law and Practice, as follows: "Wrongful dismissal essentially is a dismissal which is contrary to the contract and its roots lie in common law. The remedy is usually limited to payment for the notice period ..... (in contract) unfair is dismissal contrary to statute .... unfair dismissal is therefore a much more substantial right for the employee and the con.sequences for the employer of dismissing unfairly are much more severe than those which attend a wrongful dismissal." 46. On the basis of the above authorities, it is clear that in order to succeed on a claim for wrongful termination of contract, the complainant ought to have shown that his contract or conditions of service were breached in the manner the termination was effected. No iota of evidence was led to that effect. I am, therefore, not satisfied that the termination of his employment was wrongful. 47. With regard to the question whether the termination was contrary to statute, I have examined the Employment Code Act which, in section 52(1), (2) and (3), requires an employer to give to an employee a reason for the termination of employment. It provides as follows: "52. (1) A contract of employment terminates in the manner stated in the contrnct of employment or in any other manner in which a contract of employment is deemed to terminate under this Act or any other law, except Jl3 that where an employer tenninates the contract, the employer shall give reasons to the employee for the tennination of the employee's contract of employment; and (2) An employer shall not tenninate a contract of employment of an employee without a valid reason for the termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking. (3) An employer shall not terminate the contract of employment of an employee for reasons related to an employee's conduct or performance, before the employee is accorded an opportunity to be heard. " 48. The respondent not having given reasons for the termination of the complainant's employment breached section 52(1), (2) and (3) of the Employment Code reproduced above, and, therefore, the termination was unfair. 49. In the Care International Zambia Limited7 case cited above, the Supreme Court guided that unfair dismissal attracts more punitive measures than v.rrongful dismissal. Further, that the remedy for wrongful dismissal is usually limited to payment for the notice period. 50. I am, indeed, cognizant of the depressed job market in our country. I am, nevertheless, of the view that it is generally not difficult for a driver to find an equivalent job. As such, I am of the considered opinion that an award of 6 months' salary as damages for unfair termination of employment in the circumstances of this case is fair. J14 F. Whether the Complainant is entitled to any other relief the court may deem fit 51. As the complainant is a protected employee, the 2023 Order became applicable to him on 1st January 2024 when the Order itself came into operation. Paragraph 1 (b) of the 2023 Order, provides for the minimum basic pay of an employee in category II, where the complainant fell as a driver, as Kl80l.98. In this case, it means that the complainant's monthly pay should have been increased from KlSOO to Kl801 with effect from 1st January, 2024. The difference between these two figures is K300. Consequently, the complainant is awarded a salary of Kl801 per month from l st January, 2024 when the Order became effective to 22nd July, 2024 when his employment was terminated. Conclusion and Orders 52. The complainant has, on a balance of probabilities, proved his case to the extent shown above and I, accordingly, make the following orders: I. The respondent shall pay the complainant leave pay in respect of 28 leave days; II. The respondent shall pay unpaid salaries for the whole period the complainant was employed by the respondent at KJS00 from 5th May, 2023 to 31 st December, 2023 and at K1801.98from 1st January 2024 to 22nd July 2024. lll. The respondent shall pay one month's salary of K 1801. 98 in lieu of notice; IV. The respondent shall pay the complainant gratuity at 25% of his basic pay for the whole period of his employment. V. The complainant is awarded 6 months' salary as damages for unfair termination. J15 VI. The amounts payable shall attract interest at the commercial bank deposit rate from the date of the notice of complaint to the date of judgment and thereafter a current lending rate as determined by the Bank of Zambia from the date of judgment until full payment. VII. The amount of Kl000 paid to the complainant by the respondent shall be subtracted from the complainant's dues. 53. Each party will bear its own costs. Delivered at Lusaka this 30th day of September, 202S. M. S. Ngom HIGH COURT JU Jl6