Natty Mwape v Reliance Technology Limited (COMP NO. IRCLK/400/2022) [2023] ZMHC 96 (30 September 2023)

IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (Civil Jurisdiction) COMP NO. IRCLK/400/2022 BETWEEN: NATTYMWAPE AND RELIANCE TECHNOLOGY LIMITED RESPONDENT Coram: Before Mrs. Justice M. $. Ngoma this 30tb day of September, 2025. For the Complainant Miss. D. Kabuka, Legal Aid Counsel from Legal Aid Board. For the Respondent N/A. JUDGMENT Leglslation referTed to: l. Employment Code Act No. 3 of 2019. Cases referred to: l. Joseph Gereta Chfkuta v Chipata Rural Council (1983) ZR 26 (SC). 2. Damales Mwansa v. Ndola Lime Company (2012} 3ZR 268. 3. Jackson Mwape and 61 others v ZCCM Investments Holdfngs Limited Plc. 4. National Mfllfng Company Limited v Grace Shnaata (SCZ 21 of 2000) {2000] ZMSC 21. Jl 5. Kasengele v Zambia National Commercial Bank (SCZ 11 of 2000} [2000/ ZMSC 20. 6. MP Infra.structure Zambia. Limlted v Matt Smith and Anor (APPEAL 102/2020} [2022} ZMCA 189. 7. Chishimbci Mulenga v Zambor J. V Ltd(COMP 82 of 2015) /2017] ZMHC462. 8. Kha.lid Mohammed v The Attorney General (1982} ZR 49. INTRODUCTION l. The complainant in this matter served the respondent as a Sales Executive for a period of fifteen years, until he tendered his resignation on 15th April 2023 by way of an email in which he expressed his profound gratitude for the training and professional development he had received. Upon resignation, his expectation was that he would be paid his terminal benefits together with the balance of his accrued leave days, subject to a deduction for the days taken in lieu of completing his one month's notice period in full. To his dismay, however, the respondent only computed his salary for the days worked in April up to the date of resignation. Feeling aggrieved, the complainant instituted these proceedings before this Court seeking the following reliefs: 1. ii. April Salary; Incentives along with the salary; iii. Leave days; iv. Notice pay v. Tenninal benefits for 15 years; vi. Any other benefits the court may deem fit. J2 COMPLAINANT'S AFFIDAVIT EVIDENCE 2. The complainant's affidavit evidence was that he was employed on 11th August 2008 as a Sales Executive on permanent basis as per exhibit marked "NM 1 ". He went on to testify that he worked well with the respondent until 15th April, 2023 when he served the respondent with his resignation via email, exhibited as "NM2" in his affidavit, which was accepted by the respondent via letter dated 17th April, 2023. 3. The complainant averred that he kept requesting for his dues from the respondent who under-calculated the amount as shown on the document titled "Final Settlement Dues for Natty Mwape" which was exhibited in his affidavit. RESPONDENT'S AFFIDAVIT EVIDENCE 4. The respondent's affidavit in support of answer was deposed to by Rajagopalan Kothandraman, the Managing Director of the respondent company. He testified that the complainant was an employee of the respondent up until 15th April 2023 when he resigned without giving the requisite one month notice. 5. He averred that soon after rendering his resignation letter via email, the respondent wrote to the complainant on 17th April, 2023 requesting him to report for work the following day to discuss issues relating to his separation. However, the complainant elected not to report for work which amounted to desertion of employment in accordance with the respondent's company policy. 6. He contended that in the circumstances, the complainant was not entitled to any notice pay, leave pay or, indeed, any terminal benefits as he left employment on his own accord. In terms of the incentives the complainant J3 was entitled to, the deponent stated that they were performance based as per agreed sales targets. Therefore, due to lack of performance, he was not entitled to any of the incentives during the period of 14 days that he deserted from work. COMPLAINANT'S AFFIDAVIT IN SUPPORT OF REPLY 7. The complainant denied the respondent's avennent that he was requested to report for work on the 17th April 2023 to discuss his separation and that he did not report as instructed. According to the complainant, he gave notice to resign from work on Saturday, 15th of April 2023 and he reported for work on Monday, I 7 th April 2023. However, before he could commence working that day, he was served with a letter informing him to surrender his laptop and to return the following day to collect his benefits. The complainant exhibited a copy of the said letter as "NM l ". 8. The complainant conceded that he was not entitled to notice pay only, however, he was entitled to leave pay and terminal benefits as he clearly stated in his resignation letter that he would work for 15 days and was ready to forfeit part of his leave days to cover the necessary notice period. 9. The complainant denied the respondents' avennents that he was not entitled to terminal benefits and placed the respondent to strict proof owing to the fact that the letter from the respondent exhibited as "NM 1" mentioned that he was entitled to terminal benefits as did his contract of employment. He referred to paragraph 4 of his contract under the heading "Salaries and Allowances", which made mention of other terms and conditions of employment being contained in a personnel policy which was never made available. 10. He further conceded that he was not entitled to the incentives as they were performance based. )4 HEARING 11. At the hearing, the complainant was represented by Miss Kabuka, Legal Aid Counsel from the Legal Aid Board while there was no appearance on behalf of the respondent. The complainant stated that he would rely on the affidavit in support of complaint and the affidavit in reply. He repeated that he was claiming for benefits for the 15 years that he served the respondent, his leave days and interest. COMPLAINANT'S FINAL SUBMISSIONS 12. The complainant invited the court to take cognisance of the reliefs in the notice of complaint that had since been conceded in his reply, namely, April salary arrears, incentives along with the salary and notice pay. Accordingly, the complainant's submissions would be in relation to his claim for leave days, terminal benefits for 15 years and any other relief the court may deem fit. 13. Counsel begun by submitting that it is trite that an employee has the right to terminate the employment contract and she cited the definition of 'resignation' according to the learned authors of A Comprehensive Guide to Employment Law in Zambia as follows: "The voluntary and unilateral termination of the contract of employment by an employee by either giving the required notice specified in the contract of employment or payment to the employer in lieu of notice." 14. It was Counsel's contention that the complainant acted within his rights when he gave notice of his resignation and the respondent's contention that the resignation was ineffective because it had a purported right to refuse the resignation was untenable at law. The case of Joseph Chikuta v Chipata JS Rural Council 1 was relied on for its holding that there is no law which confers a right to force an employee to remain in the employer's service and that an employee has the right to resign and such resignation effectively terminates the contract of service. On the strength of this authority, Counsel argued that the complainant duly notified the respondent of his resignation from employment which the respondent acknowledged and accepted as seen on exhibits ~NM2" and "NMl", being the resignation email and the letter from the respondent to the complainant, respectively. 15. Counsel proceeded to submit on the complainant's accrued benefits which could not be taken away regardless of the manner in which the contract of employment terminated. Counsel relied on the decision in Damales Mwanza v Ndola Lime Company Lim.ited2 and Jackson Mwape and 61 others v ZCCM Investments Holdings Limited Plc:3 . 16. In relation to the complainant's claim for his terminal benefits, Counsel relied on the case of National Milling Company Limited v Grace Simaata4 in which the Supreme Court held that when a person is leaving employment, the arrangements for terminal benefits such as a pension, gratuity, redundancy pay and the like are the most important and any unfavourable unilateral alterations to the disadvantage of the employee that were not previously agreed to are not permitted. Furthermore, the apex Court in Kasengele v Zambia National Commercial BanJtS buttressed the position that terminal benefits will be calculated on the basis of what was expressly agreed to in the contract of service that the employee operated under until his actual departure from such employment. 17. On the basis of the foregoing, Counsel argued that the complainant was entitled to terminal benefits under the law, which was recognised by the respondent under "NMl" wherein the complainant was instructed, distinctively, to collect his terminal benefits and final settlement of his dues. J6 Counsel added that the personnel policy referred to in his contract was an incorporated document to be read with all other stipulations in the employment contract. 18. The respondent did not file any written submissions. ISSUES FOR DETERMINATION 19. The following are the issues for determination in this matter: i. Whether the complainant is entitled to his leaue days; ii. Whether the complainant is entitled to terminal benefits; and iii. Whether the complainant is entitled to any other reliefs. ANALYSIS AND DECISION A. LEAVE PAY 20. The complainant claimed that he was entitled to payment of his leave days as he had clearly stated in his resignation letter that he would work for 15 days and was ready to forfeit part of his leave days to cover the necessary notice period. Conversely, the respondent, in its Answer, stated that the complainant was not entitled to his 28 days as he had deserted work immediately after giving his resignation without serving notice. As such, there was a set off for the notice pay as he did not provide the company with the 30 days' notice period. 21. I have examined the resignation submitted by the complainant via email, which reads in part as follows: "Dear Mr. Raman, I wish to inform you that l will be ending my services to Reliance Technology this April month end 2023. J7 For this, I wish to advice our Accounts Department to deduct from my outstanding 28 days balance money to compensate shortfall to make 1 month notice." 22. It is evident from the resignation email above that the complainant had every intention to continue to work up to the end of April 2023. The complainant clearly informed the respondent that he was ready to forfeit part of his leave days to cover the period that he would not serve his notice. The respondent testified that the complainant was contacted on the 17th April 2023 to report for work the following day to discuss issues relating to his separation. The respondent further testified that the complainant did not return for work as instructed, which actions amounted to desertion. 23. In stark contrast to the picture painted by the respondent, the complainant testified that he, in fact, reported for work on the 171h April 2023, which was the Monday after he tendered his resignation on Saturday, 15th April 2023. However, before he could commence working, he was served with a letter from the respondent which is reproduced below: #Dear Mr. Nalty Mwape, Sub: Your resignation by email date 15th April 2023 With reference to above captioned subject you are requested to surrender the laptop immediately and come tomorrow for your terminal benefits and final settlement of your dues with Reliance Techn.ology Limited." 24. The above-cited letter does, indeed, corroborate the complainant's version of events that he reported for work as he committed to do in his resignation letter and the respondent served him with a letter to return the company laptop and return the following day to collect his dues. The respondent did JS not produce any evidence of its communication to the complainant to report for work to discuss issues relating to his separation as alleged. 25. In light of the above factual findings, the next issue requiring my determination is what should occur in the event that an employer prevents an employee from serving his notice period and withholds his salary for not serving his notice? The first step in answering this question lies in understanding that leave pay is an accrued right of an employee. The Court of Appeal in MP Infrastructure Zambia Limited v Matt Smith and Anor6 reiterated the principle that leave days .are an accrued right and are paid regardless of the mode of exit from employment by an employee. Therefore, the resignation of the complainant did not enti.tle the respondent to withhold his leave pay, subject to the days he had forfeited to make up for the period in May 2023 when he would not serve the remainder of the notice. 26. Additionally, in the High Court case of Chishimba Mulenga v Zambor J. V Ltd,7 the complainant terminated his contract of employment by giving 30 days' notice. However, the respondent informed him that he was to report for work only when requested, and he was accordingly requested to do so on two occasions. The High Court made the following finding: "It is trite law that an employee remains an employee during the notice period and is, the ref ore, under obligation to discharge and to continue discharging the duties of his office throughout the notice period up to and including the last day of the notice period. The Complainant, however, was advised to stay away during that notioe period but to report for work only when called to do so. This assertion has not been disputed. J9 The Complainant cannot be faulted for the other days on which he did not report for work because the Complainant did so in obedience to the Respondents' instruction that the Complainant should not report for work during his notice period unless asked to do so by the Respondents. We have, therefore, seen no justification why the Respondents should not pay the Complainant his salary during the notice period." 27. The above cited case, although not on all fours with this case or binding upon this Court, has great persuasive value. The complainant in that case only worked on two occasions during his notice period at the request of the respondent who instructed him not to report unless requested. However, the honourable Judge came to the conclusion that there was no justification for the respondent to withhold the complainant's salary during the notice period as he was only rightfully following the respondent's instructions not to report for work unless he was called upon to do so. 28. Additionally, I considered the provisions of the Employment Code Act No. 3 of 2019 (the "Employment Code") on payment in lieu of notice. While there is no provision that caters to a scenario where the employer prevents the employee from serving notice, I find the provisions on what should occur when an employer does not give notice and when an employee refuses to work during the notice period quite instructive. The said provisions are contained at section 53(4) and (5) as follows: (4) An employer who does not give notice to an employee shall pay the employee the wages that the employee would have received if the employee had worked during the notice period. (5) Where an employee refuses to work during the notice period under subsection (ZJ, an employer may deduct, from any money due JlO to the employee on tennination, the amount that would have been due to the employee if the employee had worked during the notice period. 29. The above-cited provisions make it clear that an employee is entitled to receive his wages for working during his notice period and the employer is only entitled to deduct an amount that would be due to an employee in respect of the period that he refuses to work during the notice period. Having established that the respondent is the one who prevented the complainant from working during his notice period when the complainant had committed to do so, the respondent cannot be allowed to deprive the complainant of his leave days to cover the period that the respondent prevented him from working. The respondent clearly decided to forfeit the complainant's labour during that period, and the complainant should not be the party that bears that loss. 30. The complainant, in his Affidavit in Support of Reply, conceded that he is not entitled to notice pay only, and maintained that he was entitled to his leave pay and terminal benefits. However, the complainant would ordinarily have been entitled to his salary for the remainder of the month of April and his leave days less the 15 days in the month of May being remainder of his notice period. Therefore, he is entitled to recover his full leave days since he conceded his pay for the month of April which covers the leave days he would have forfeited for not completing bis notice period. Accordingly, I find that the complainant is entitled to payment for his 28 leave days, to be assessed by the Honourable Registrar, in default of agreement. B. TERMINAL BENEFITS 31. The complainant has claimed that he was entitled to terminal benefits for the 15 years that he served the respondent. He based his claim on the letter from the respondent marked as "NM 1" in his Affidavit in Reply in which the Jll respondent requested him to surrender his laptop and return the following day to collect his terminal benefits and dues. It was argued that the distinction made by reference to his "terminal benefits" and "dues" separately signified that he was entitled to terminal benefits. The complainant also made reference to his employment contract at paragraph 4 with the heading "salaries and allowances" which made reference to a "personnel policy" which contained other terms and conditions of his employment. However, the said personnel policy was never made available to the complainant, as such, he did not adduce it in evidence or state specifically what he was actually entitled to as terminal benefits. 32. It is settled law that the burden of proof in a civil action lies on the party who asserts the affirmative of the issues. This was emphasized by the Supreme Court in the case of Khalid Mohammed v The Attorney General8 as follows: "An unqualified propositwn that a plaintiff should succeed automatically whenever a defence has failed is unacceptable to me. A plaintiff must prove his case and if he fails to do so the mere failure of the opponent's defence does not entitle him to judgment. I would not accept /the/ proposition that even if a plaintiffs case has collapsed of its inanition or for some reason or other, judgment should nevertheless be given to him on the ground that defence set up by the opponent has also collapsed. Quite clearly a defendant in such circumstances would not even need defence. " 33. In the present case, the complainant bore the burden of proving his entitlement to terminal benefits by producing evidence that expressly conferred such an entitlement, such as the personnel policy referred to in his contract, provided that it contained provisions for terminal benefits. While it is true that the respondent did not avail a copy of the said policy to Jl2 the complainant, and despite the complainant's long service of fifteen years before his resignation, these circumstances do not absolve the complainant of the obligation to prove his claim. The Court cannot grant reliefs in a vacuum. Mere reference to terminal benefits in the letter marked "NM l" and an assumption that the personnel policy, of which the complainant has never had sight, contained such a provision, is insufficient proof that the respondent had in fact made provision for terminal benefits in his favour. Accordingly, I dismiss the complainant's claim for terminal benefits. 34. By way of obiter dictum, I wish to comment on the conduct of employers to withhold company policies from employees which render them ignorant of their entitlements and consequently, unable to enforce them against the employer. This conduct is prohibited by the Employment Code Act under Division 7.2 - Employment Policies, Procedures and Codes, at section 95 and 96 which provide as follows: "95. (1) An employer shall ensure that there exists in. the undertaking an employment policy, procedure and code, including an HN and AIDS policy, a health and wellness policy, harassment policy, performance management policy, grievance procedure and code of conduct. (3) An empwyer shall bring to the attention of each employee under the employer's direction, the policy, procedure and code under subsection (1). 96. A person who fails to comply with a provision of this Division is liable to an. administrative penalty." )13 35. The provision cited above mandates an employer to create an employment policy, procedure and code and to bring it to the attention of each employee. Therefore, having an employment policy, procedure and code yet not availing the same to each employee contravenes the Employment Code Act and the employer will be liable to an administrative penalty and the Labour Commissioner is empowered to issue one or more of the following administrative sanctions in accordance with section 133 of the Employment Code Act: "(a) a caution not to repeat the conduct which led to the non compliance with a provision of this Act; (b) a reprimand; (c) a directive to take remedial action or to make specific arrangements to redress identified non-compliance; (d) the restriction or suspension of certain specified business activities; (e) publication of a public notice of any prohibition or requirement imposed by the Labour Commissioner under this Part and of any rescission or variation thereof, and the notice may, if the Labour Commissioner considers necessary, include a statement of the reason for the prohibition, requirement, variation or rescission; and (f) a financial penalty not exceeding two hundred thousand penalty units." 36. Accordingly, employers are cautioned from withholding employment policies from employees as such conduct is prohibited by law. I also encourage employees to take a proactive step to request for employment polices and all documents related to their employment so that they have a clear )14 understanding of what they are actually entitled to which allows them to enforce their contractual rights when the need arises. ANY OTHER RELIEFS 37. At the hearing held on 2nd October 2024, counsel for the respondent applied for an adjournment on account of attending to a bereavement. The application was opposed by counsel for the complainant who submitted that the respondent's counsel had been present at the previous hearing on 9th April 2024, some six months prior, and that no prior indication had been given of the need for an adjournment. Further, it was argued that the notice of intention to seek an adjournment was only filed on 30th September 2024, merely two days before the scheduled hearing on 2nd October 2024. 38. I noted that counsel with conduct of the matter was not the only advocate at the firm of Messrs Tembo, Ngulube & Associates, and that arrangements could and ought to have been made for another advocate from the same firm to proceed with the hearing. However, I was also mindful that bereavements occur without warning and, depending on the proximity of counsel to the deceased, it is understandable that alternative arrangements may at times be overlooked. On that basis, I granted the adjournment, but directed counsel for the respondent, Mr Ngulube, to submit proof that he had indeed travelled to the Copperbelt on the material date, either by way of toll-gate receipts or copies of air tickets, by the next hearing date. Counsel for the respondent neither complied with that order nor attended the subsequent hearing, and has provided no explanation for his failure either to appear or to furnish the requested documents. 39. Rule 44(1) of the Industrial Relations Court Rules empowers this Court to make an order for costs against any person who has been guilty of unreasonable delay, or of taking improper, vexatious, or unnecessary steps JlS in any proceedings, or has otherwise acted unreasonably. The rule provides: "Where it appears to the Court that any person has been guilty of unreasonable delay, or of taking improper, vexatious or unnecessary steps in any proceedings, or of other unreasonable conduct, the Court may make an order for costs or expenses against him.» 40. In my view, this is an appropriate case in which to penalise a party in costs on account of unreasonable conduct in the proceedings. The respondent's counsel sought and was granted an adjournment made at the "last minute", that is, two days before the hearing, on the assurance that he was attending to a bereavement on the Copperbelt and would provide proof in the form of toll-gate receipts or air-tickets. Having been afforded that indulgence, counsel failed to produce the required proof, failed to attend the next hearing, and offered no explanation for his default. 41. As an officer of the Court, counsel is expected to show courtesy to the Court by complying with its directions, which is essential to the efficient administration of justice. Conduct of this kind cannot be condoned, as to do so would set a precedent whereby counsel may disregard court orders and fail to appear without consequence. Without belabouring the point further, 1 order that the costs of this action be borne by the respondent. CONCLUSION AND ORDERS 42. The complainant has, on a balance of probabilities, proved his case to the extent shovm above and I, accordingly, make the following orders: i) Payment of 28 leave days to the complainant, to be assessed by the Honourable Registrar, in default of agreement. J16 ii) The amounts found due after the assessment shall attract interest at the commercial bank deposit rate from the date of the notice of complaint to the date of judgment and thereafter at the current lending rate as determined by the Bank of Zambia from the date of judgment until full payment. 43. The costs of this action shall be borne by the respondent. Delivered at Lusaka this 30t11 day o!)i,..te,I~' 2025. M. S. Ngoma HIGH COURT JUDGE J17