Nelson Phiri & 10 Ors v Power Tools Logistics Limited and Anor (COMP/IRCLK/649/2021) [2025] ZMHC 126 (26 August 2025)

I - ,,. IN THE HIGH COURT FOR ZAMBIA COMP/IRCLK/649/2021 AT THE PRINCIPAL REGISTRY INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA BETWEEN: NELSON PHIRI AND 10 OTHERS ~ --- COMPLAINANTS AND DENNYTEMBO 1 sr RESPONDENT 2110 RESPONDENT Before Hon. Mrs. Justice Mwaaka. ChigaH Mikaltle thf.s 26th day of August, 2025 For the Complainants: In person For the 'Respondent: Mrs. G. Nkonde & Mr. N. Tembo - Messrs Grace and Partners JUDQ-JWE%illil'T Legislation referred to 1. The Employment Code Act No. 3 of 2019 Cases referred to: l. Care Internation Zambia Limited v. Misheck Tembo, Selected Judgment No.56/2018 • 2. Emporium Fresh Foods Limited T / A Foodlovers Market and Anor v. Kapya Chisanga, Appeal No. 44 /2021 3. Sarah Aliza Vekhnik v. Casa Dei Bambini Montessori Zambia Limited, CAZ Appeal 129/2017 4. Contract Haulage v. Mumbuwa Kamayoyo (1982) Z. R 13 (S. C) 5. Swarp Spinning Mills Limited v. Sebastian Chileshe and Others, SCZ Judgment No.6/2002 6. Maamba Collieries v. Douglas Siakalonga and Others, Appeal No. 51/2004 Text referred to: 7. Mwenda, W. S. and Chungu, C. A Comprehensive Guide to Employment Law in Zambia (UNZA) Press, 2001 Introduction 1. The complainants lodged their complaint on 25th November, 2021 asserting that they were verbally engaged by the 2 nd respondent in his capacity as director for the 1st respondent in different positions and on unspecified dates but between 2010 and 2016. The employment relationships are reported to have proceeded harmoniously unti.1 their contracts were terminated by the 1st respondent on different dates. The complain.ants contend that no formal procedures or written notice accompanied these terminations prompting concerns regarding their lawfulness. 2. After efforts to settle the resulting dispute failed, the complainants (Charles Tembo, Chisola Ndalama, Gift Mulube, Obert Mumba, Felix Siame, Phylis Mwanza, Godfrey Lengwe, Emmanuel Mudenda, Praise J2 N'cube, Nduwa Mpalanga and Nelson Phiri} commenced this action for the following reliefs: a) Tenninal benefits; b) Damages for unlawful and unfair dismissal; c) Leave days; d) Costs and any other benefits the Court may deem fit. 3. In its Answer, the 1st respondent asserts that there was initially no employer/ employee relationship with the complainants as they were viewed as independent contractors and paid according to the work undertaken daily until 2019 when they \Vere offered employment exclusively with the l st respondent. The complainants were subsequently charged with dismissible offences and requested to discontinue their services in 2021. Affidavit evidence 4. In the affidavit supporting the Notice of Complaint deposed to by the lead, Nelson Phiri, it was averred that the complainants ,vere verbally employed by the 2 nd respondent who was Director for the 1st respondent on permanent basis. Between January and February, 2021, the 1st respondent verbally terminated their contracts of employment. However, efforts to recover their terminal dues proved futile hence these proceedings. 5. The amended affidavit in support of the answer dated 24th July, 2023, was sworn by Adam Sintufya, the 1st respondent's Operations Manager. He clarified that contrary to the complainants' assertions, the 2 nd respondent J 3 is not a director in the 1st respondent company. Rather, he served as Managing Director for Zambia Malawi Transport Services, a company that also operates buses at the Lusaka Intercity Bus Terminus. 6. According to Mr. Sintufya, the 1st respondent, through its Managing Director, requested the assistance of the 2 nd respondent in sourcing individuals to provide certain services. This was aimed at enhancing the 1st respondent's ability to deliver effective transportation services to the public. That is how the complainants came on board and they were paid daily for their services. 7. In 2019, the 1st Respondent made the decision to employ the complainants. They were all required to formally apply for the available positions which included ticket sellers and call boys. 8. Sometime in 2021, the complainants committed offences deemed dismissible. Following a series of misunderstandings arising from these incidents, the 1st respondent chose to terminate their employment. 9. The deponent stated that Nelson Phiri, Gift Mulube, Felix Siame, and Obert Mumba were dismissed for inciting an illegal strike which led to a disruption of work activities among other employees. Chola Ndala and Charles Tembo were dismissed for the offence of theft by servant for failure to issue receipts to clients. Praise Ncube and Emmanuel Mudenda were dismissed for gross negligence, as they consistently failed to notify recipients to collect their parcels. Godfrey Lengwe was dismissed for failure to perform and follow instructions. Nduwa Mapulanga was dismissed for J4 dishonesty while Phylis Mwanza was dismissed after voluntarily abandoning her work station and imposing herself as a cashier. 10. In the affidavit in rely, Nelson Phiri assailed the 1st respondent's assertion that the 2 nd respondent was not a director. He maintained that the 2 nd respondent was in fact the director to the complainants in addition to his role as Managing Director of Zambia Malawi Transport Services. 11. He maintained that contrary to the 1st respondent's avennents, the complainants were paid monthly and used to sign in a record book. It was only in 2019 when they started receiving their pay through accounts after complaining to the 1st respondent. The deponent refuted the allegations of a work stoppage or strike and narrated that they were dismissed one after another following a query over delayed salary payments. 12. He highlighted that Chola Ndalama, Charles Tembo, Praise Ncube, Emmanuel Mudenda, Godfrey Lengwe and Nduwa Mapulanga were not informed of any offence and no evidence was availed to them with regard to their respective charges. As regards Phylis Mwanza, he averred that she did not abandon her role as ticket seller but that she was assigned the position of cashier by the Station Manager from 2020 to 2021. He maintained that the complainants worked for the 1 i.t respondent from 2011. Trial course 13. Four complainants testified on their own behalf and on behalf of the others. The respondent called two v.ritnesses. J 5 14. CW 1, Phylis Mwanza, testified that the complainants were employed by the respondent in various roles, though they \Vere never issued formal contracts of employment. She confirmed that the 2 nd respondent was the Managing Director of Zambia Malawi Transport Service. 15. According to CWl, the complainants began wearing Power Tools Transport Services uniforms around 2017, indicating a working relationship. Initially, they received piecemeal payments instead of regular monthly salaries. However, following their complaints, bank accounts were opened for them with FNB, and payments were thereafter deposited directly into those accounts. 16. CWI further stated that when the complainants demanded clarity about their employment contracts, the respondent sent a representative from the Human Resources Department to address their concerns. The complainants \Vere advised to submit application letters, \vhich they did. Despite this, they received no formal response. Upon resubmitting their applications, they were invited for interviews, but again no feedback was provided until they were ultimately dismissed. It was CWl 's evidence that she was not told as to why she was dismissed. She ·was just informed that she could not continue to handle the 1st respondent's cash because she did not have a signed contract of employment. She subsequently stopped reporting for work in August, 2021. 17. During cross examination, CWI explained that she was employed in 2013 as a ticket seller at the Mpulungu office at a monthly salary of K 1,000.00. J 6 She stated that she received her salary at the Zambia Malawi garage located along Mumbwa Road, a facility belonging to the 2nd respondent. 18. She conceded that the application letters submitted by the complainants were directed to the 1st respondent and not to Zambia Malawi. She said she applied for the cashier role despite initially working as a ticket seller. CW 1 confu-med that as ticket seller, she was reporting to the 2 nd respondent and he was the one that was paying their salaries. They later started reporting to one Benson. 19. CW 1 clarified that after the labour office engagement, there was an offer from the 1st respondent to pay outstanding leave pay and gratuity but only for the period 2019 to 2021. Of course they could not agree on the period of engagement and the 1st respondent did not disclose the nature of the pay. 20. In further cross-examination, CWl stated that the complainants did not pursue their dues from the 2 nd respondent as they believed their employment was with the 1st respondent. She emphasized that the 2 nd respondent merely played a supervisory role over the operations and was acting on the instructions of the 1st respondent. CW 1 concluded by stating that the 2nd respondent did not sign or issue any employment contracts to the complainants. 21. In re-examination, CW 1 reiterated that the complainants were employed by the 1st respondent. J7 22. CW2 was Godfrey Lengwe who testified that he was employed by the 1st respondent as a ticket seller from 2015 until his termination in 2021. He stated that he was not informed of the reason for his dismissal and had not received any payment since the cessation of his employment. CW2 firmly maintained that despite the 1st respondent's denial, the complainants were indeed employed by it. He explained that at the time of his employment, the 2 nd respondent served as a manager and even after he resigned, the complainants continued working under the 1st respondent. 23. CW2 also attested to the fact that upon their dismissal, the 1st respondent promised to pay dues for the period 2019 to 2021. Unfortunately, the 1st respondent reneged and referred the complainants to the 2 nd respondent. 24. Under cross examination, CW2 denied claims that his pay was based on the number of buses loaded or tickets sold. He insisted that he earned a fixed salary of K 1,000.00 per month. When the complainants raised concerns about being under paid, the 2nd respondent advised them that the 1st respondent would handle the matter appropriately. He confirmed that he stopped work in August 2021. 25. Further in cross, CW2 denied the assertion that the complainants started working for the 1st respondent in 2019 \vhen their accounts were opened. He insisted that the 1st respondent just changed the modus operandi. He likewise denied the assertion that the 2 nd respondent was the employer before 2019. JS 26. CW3 was Praise N'cube whose brief testimony was that he worked as a ticket collector for the 1st respondent. He aligned his account with those of previous v.ritnesses affirming that upon termination of his employment, he received no payments and was not provided with any reason for his dismissal. 27. Under cross examination, CW3 stated that his terminal dues claim spanned from 2016 to 19th July 2021. He denied handling parcels from clients. He clarified that his responsibility was strictly to issue receipts. Furthermore, he denied being dismissed for failing to notify clients to collect parcels, asserting that such duties were outside the scope of his assigned role. 28. In further cross, he clarified that he was employed by the 1st respondent in 2016 and evidence of this were photos and the fact that the 1st respondent opened accounts for the complainants. He aclmowledged that his payment was received through the 2 nd respondent. He only stopped receiving payments from the 2 nd respondent in 2019 following the submission of his account details. He already had an account then. 29. When re-examined, CW3 told court that he had not produced his bank statement. 30. CW4, Nduwa Mpalanga, testified that he ,vas employed as an inspector by the 1st respondent from 2016 to 2021. His role included dispatching buses between 04:00 and 15:00 hours and communicating with the cashiers. He stated he ,vas terminated without being given any reason or documentation. J9 31. When cross exaniined, CW 4 stated that he was hired by the 2nd respondent, whom he consistently referred to as the director of the 1st respondent. He also stated that his monthly salary ranged between K 1,000.00 and K 1,500.00 although he was unaware of the reason for the variation. He confirmed that while salaries were initially paid by the 2nd respondent, payments were later deposited directly into individual bank accounts opened for the complainants. 32. CW4 added that the complainants sought assistance from the labour office and this prompted the 1st respondent to promise payment for the period 2019 to 2021. The 1st respondent argued that any dues from earlier years should be claimed from the 2nd respondent. When the complainants approached the 2nd respondent, he stated that he had been dismissed by the 1st respondent and ,vas no longer involved in its affairs. 33. When queried further, CW4 denied the assertion that he was dismissed in 2020. He asserted that it was in February, 2021. CW4 could not recall the month when he received his last salary. CW4 further denied the assertion that he was getting an allowance per bus load and insisted that he received a fixed monthly salary of K 1,500.00 and this was the figure to be used to calculate his arrears. However when referred to the records he accepted that his last recorded salary was K 1,100.00, in November, 2020. 34. RW 1, Adam Sintufya, testified that when the 1st respondent, a Kitwe based company, opened routes in Lusaka, it engaged the 2 nd respondent to assemble a group of call boys and the complainants were part of this group. The complainants were responsible for loading buses. In 2018, the 1st J 10 respondent received reports that the complainants' welfare was being neglected. In response, the 1st respondent decided to assume responsibility for their wellbeing and opened bank accounts for them to facilitate direct payments, replacing the previous system where they were paid in cash without clear records. RW 1 further explained that the 1st respondent introduced a K 20 incentive per client brought in, credited through an account called ''Junta," and added to their salaries as an allowance. It was agreed in December, 2020 that the junta money would be added to the salary. Normally, the complainants received their salary on the 10th of every month. 35. On 1st January 2021, Nelson Phiri, Obert Mumba, Felix Siame and Gift Mulube incited others to stop work because they wanted junta money to be paid on the same day. The complainants did not load buses for almost three hours. RWl explained that a representative was dispatched to inform them that the extra amount would be paid along with their salary on 10th. As a consequence of the work stoppage, the 1st respondent lost business and decided to dismiss the four individuals ,vho incited their colleagues. Others resumed their duties. 36. In May, 2021, it was discovered that employees in the courier division namely Praise N'cube and Emmanuel Mudenda failed or neglected to alert the o·wners of parcels when their parcels arrived causing them to remain in storage for long periods. The two were charged with negligence of duty. 37. In June, 2021, Chola Ndalama and Charles Tembo were charged after allegedly conspiring with a driver and conductor to misappropriate funds JU paid for courier services. RW l went on to explain that Godfrey Lengwe was dismissed for insubordination, Nduwa Mpalanga was dismissed for theft while Phylis Mwanza was dismissed in August, 2021 for abandoning her role of ticket seller and assuming the role of cashier, which move was not sanctioned. 38. When cross-examined, RWl clarified that Praise was dismissed in May and not July, 2021. His dismissal resulted from providing courier services that were not properly accounted for. RWl then went on to detail the specific offences that led to each complainant's termination. 39. RW2 was Gillian Mwansa, the Human Resources Manager, who testified that the company asked the 2nd respondent to assist in managing buses in Lusaka. As such, the complainants, hired by the 2 nd respondent initially had no direct relationship vvith the 1st respondent. Money for wages was sent to the 2 nd respondent who then decided how to disburse it. To her lmo\vledge, the complainants became the l st respondent's employees in 2019. They were later dismissed for various breaches in the performance of their duties. 40. According to RW2, terminal dues were not paid as the complainants challenged the pay and refused the 1st respondent's proposal to settle wages only from 2019 onward. RW2 also clarified that none of them was ever recruited as a cashier. Roles \Vere limited to ticket sellers and call boys as none had the requisite accounting background. J 12 41. Under cross examination, RW2 denied the assertion that CWI was ever employed as a cashier. Analysis and decision 42. I have carefully considered the evidence presented by the parties. The salient undisputed facts are that the complainants were employed by the 1st respondent and dismissed sometime in 2021 at different times. Terminal dues were not paid as the parties could not agree on the employment start date. 43. The 1st respondent insists that the complainants were officially employed in 2019 while the complainants claim to have been employed much earlier. According to the list exhibited to the affidavit in support of complaint, Charles Tembo started work in 2010, Chola Ndalama started in 2011, Gift Mulube, Obert Mumba and Felix Siame started work in 2013, Phylis M,vanza, Godfrey Lengwe, Emmanuel Mudenda and Nelson Phiri started work in 2015, while Praise Nc'ube and Ndu·wa Mpalanga started work in 2016. 44. Ho\vever, the parties reached partial settlement after conclusion of trial. Varied amounts were paid to the complainants as terminal dues. 45. Flowing from the forgoing, the issues which I am to interrogate and determine are as follows: (i) The complainants' employment start and end dates; J 13 (ii} Whether the complainants' dismissals were unlawful and unfair entitling them to damages; (iii) Whether the complainants are entitled to any more terminal benefits. 46. In dealing with the forgoing issues, I am cognizant of the fact that the onus is on the complainants to prove each claim against the respondents on a balance of probabilities. Employmenl start and end date 47. It is helpful to begin by addressing the relationship between the complainants and the respondents. The 1st respondent claims that the complainants were not its employees initially. Undeterred, all the complainants maintained that they were employed by the 1st respondent from inception and the 2 nd respondent was only their manager. 48. I have carefully gone over the evidence. It is trite that the absence of a written contract does not negate the employment relationship. The Employment Code Act, 2019 (herein after referred to as the ECA) by virtue of section 18 recognizes oral contracts and requires the employer to keep a record of the same. In light of the evidence of both parties, I am satisfied that the complainants were employees of the 1st respondent. I am of the considered view that the 2 nd respondent was also just an employee of the 1st respondent. He was tasked by the 1st respondent to pay the complainants' wages on its behalf. As such, he cannot be held liable for the complainants' terminal dues or damages, if any. J 14 49. As stated earlier, the onus is on the complainants to prove their allegations. In order to make a determination as to whether or not the complainants were employed at the time they are claiming to have been employed, it is cardinal to examine the employment relationship between the complainants and the 1st respondent prior to 2019. 50. The Employment Code Act, 2019 in section 3 defines an employment relationship as follows: A relationship between employer and employee where work is canied out in accordance with instructions and under the control of an employer and may include- (a) the integration of the employee in the organisation of the undertaking where the workis- (i) performed solely or mainly for the benefit of an employer; and (ii) carried out personally by the employee; or {b)work- (i) carried out within specific working hours or at an undertaking specified by the employer; (ii) which is of a particular duration and has a certain permanency; (iii) that requires the employee's availability; (iv) which requires the provision of tools, materials and machinery by the employer; and (v) that is remunerated and constitutes the employee's sole or principal source of income. J 15 51. Further, the authors of Halsbury's Law·s of England 4 th Edition, Paragraph 3 at page 12 set out the characteristics of the relationship between an employer and employee as follo\vs: There is no single test for detennining whether a person is an employee •.. The question whether the person was integrated into the enterprise or remained apart from, and independent of it has been suggested as an appropriate test, but is likewise only one of the relevant factors ... The factors relevant in a particular case may include in addition to control and integration: the method of payment; any obligation to work only for that employer; stipulations as to hours; overtime, holidays etc; arrangements for payment of income tax and national insurance contributions ... In some cases, the nature of the work itself may be an important consideration. 52. The definition of employment relationship as supplied by the Employment Code Act clearly encompasses the common law tests that have been used to determine the existence of an employment relationship. These tests are the control test, integration test and economic dependency test. 53. It is common cause that the complainants' base was intercity bus terminus. There is no evidence that the complainants only performed duties for the 1st respondent and not any other bus company while at intercity. There is simply no proof that the complainants were under an obligation to \vork only for the 1st respondent. Thus the control factor has not been proven. 54. Furthermore, the evidence from the 1st respondent is that the complainants were not on payroll but were paid in accordance with the tasks performed on any given date until 2019. This evidence was not satisfactorily J 16 challenged. It appears that there was no obligation on the complainants to report for work daily or in accordance with allowable working hours in a week. The economic dependency factor is thus not clearly present. 55. In the circumstances, I am satisfied that the complainants were not integrated into the respondent company to become contractual employees until 2019. The exact date is unknown as no witness, be it a complainant or respondent's witness ventured into this arena. However, RWl is on record as saying that complaints were received regarding the complainants' welfare in 2018 and this prompted the 1st respondent to integrate the complainants into the company and open bank accounts for them. The bank statement for Phylis shows that she received a salary as early as February, 2019. In light of the foregoing, and in view of the fact that the respondent failed or neglected its duty to keep a record of the oral contract, I hold the view that the complainants officially became employees in January, 2019. 56. As such, the employment start date for all complainants is pegged at 1st January, 2019. 57. As regards the end dates, the undisputed evidence on record is that: Nelson Phiri, Obert Mumba, Felix Siame and Gift Mulube were tenninated on 1st January, 2021; Nduwa Mpalanga was terminated in February, 2021; Praise N'cube and Emmanuel Mudenda were terminated in May, 2021; Chola Ndalama and Charles Tembo were terminated in June, 2021; and Phylis Mwanza and Godfrey Lengwe were terminated in August, 2021. J 17 58. I find accordingly. Unfair dismissal 59. I v.ri.ll now consider whether or not the complainants' exit from employment was unfair. 60. Unfair dismissal according to the case of Care lnternatioa Zambia Limited v. Misheck Tembo< 1J is dismissal that is contrary to statute or based on unsubstantiated grounds. It focuses on the merits or substance of the dismissal. 61. The 1st respondent was obstinate that the complainants were lawfully dismissed for various breaches of their employment. The kernel of the complainants' evidence is that they were not given reasons for their termination and that they were not heard on the alleged offences. 62. The applicable law is the ECA which was in force at the time of the complainants' dismissal. The complainants contracts were verbally terminated by the 1st respondent on divers dates as outlined earlier but between January and August, 2021. 63. Section 50 of the ECA provides for the circumstances in which an employee may be summarily dismissed. It states: (1) An employer shall not dismiss an employee summarily except in the following circumstances: (a) where an employee is guilty of gross misconduct inconsistent with the express or implied conditions of the contract of employment; J 18 (b) for wilful disobedience to a lawful order given by the employer; (c)for lack of skill which the employee, expressly or impliedly, is warranted to possess; (d) for habitual or substantial neglect of the employee's duties; (e} for continual absence from work without the pemiission of the employer or a reasonable excuse; or (I) for a misconduct under the employer's disciplinary rules where the punishment is summary dismissal. 64. The Court of Appeal in the case of Emporium Fresh Foods Limited T/A Food.lovers Market and Anor v Kapya Chisangat2l had this to say regarding summary dismissal: Summary dismissal should, therefore, be understood to refer to the power bestowed upon the employer to instantly dismiss an employee following adherence to the disciplinary process as set out in the employer's disciplinary code or rules. Once this procedure has been followed there is no requirement for the employer to giue notice or payment in lieu of notice. 65. It is noted that the reasons attributed to the complainants' dismissals were all related to the complainants' conduct or performance. Section 52(2} of the ECA requires the employer to inform the employee of the reasons for the dismissal formally. This was not done in this instance. The ECA also makes it mandatory for the respondent to give the erring employee an opportunity to be heard and exculpate themselves. Section 52(2} and (3) provide thus: 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. J 19 3. An employer shall not tenninate the contract of employment of an employee for reasons related to an employee's conduct or perfonnance, before the employee is acccrded an opportunity to be heard. 56. The Court of Appeal's decision in the case of Sarah Aliza Vekhnik v. Casa Del Bambini Montessori Zambia Limitedl31 emphasised the need for employers to give not just any reason but a valid reason for terminating when it stated as follows: Section 36 of the Act has placed a requirement on an employer to give reasons for terminating an employee's employment. Employers are no longer 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. 57. In another case of Contract Haulage v. Mumbuwa Kamayoyol41, the Supreme Court stated as follows: Where there is a statute which specifically provides that an employee may only be dismissed if certain proceedings are carried out, then an improper dismissal is ultra vires: and where there is some statutory authority for certain procedure relating to dismissal, a failure to give an employee an opportunity to answer charges against him or any other unfairness is contrary to natural justice and a dismissal in those circumstances is null and void. 58. In the case at hand, there is no evidence of a formal procedure in the complainants' dismissal. Indeed there were no hearings held for the charges slapped on each complainant. This contravenes the aforestated J 20 • provisions of the ECA. Clearly the dismissal of the complainants was procedurally unfair. The employer may have had valid reasons for bringing the employment relationship at an end but the fact remains that it did not give the complainants an opportunity to exculpate themselves on the alleged offences. Damages for unfair dismissal 59. Having found that the complainants were unfairly dismissed, that is, dismissed contrary to statute, it follo,vs that they are entitled to damages. In terms of the measure of damages, in the case of Swarp Spinning Mills Limited v. Sebestian Chileshe and Othersl5l the Supreme Court held as follows: In assessing damages to be paid and which are appropriate in each case, the court does not forget the general rule which applies. This is that the normal measure of damages applies and will usually relate to the applicable contractual length of notice or the notional reasonable notice, where the contract is silent. However, the normal measure is departed from where the circumstances and the justice of the case so demand. For instance, where the termination may have been inflicted in a traumatic fashion which causes undue distress or mental suffering. 60. I have considered whether in this particular case the complainants are deserving of damages above the normal measure. After careful consideration of the evidence, I find that there is nothing that indicates that the dismissal was done in a traumatic fashion or in circumstances that merit damages above the normal measure. J 21 . ' 61. As highlighted earlier, the complainants had no written contracts and there is no evidence of what may have been agreed upon in terms of the notice period. 62. Section 53 provides time frames where the contract of employment does not provide for a period of notice. For employees employed for more than 3 months, notice period is 30 days. As the evidence has sho·wn, the complainants were all employed in 2019 and termination of employment was in 2021. This is more than 3 months. Thus, their notice period is 30 days or one month. 63. In the premises I award each of the complainants 1 month's salary as damages for unfair dismissal. Terminal benefits 64. According to the learned authors of A Comprehensive Guide Employment Law in Zambia 1st Edition at page 284, terminal benefits are all the wages and benefits due to an employee at the end of the employment relationship. 65. In the case of Maamba Collieries v. Douglas Siakalonga and Othersl6J, the court of apex jurisdiction guided that the existing conditions at the time of separation from employment are to be used for computing terminal benefits. J 22 66. In this case, the complainants did indicate that they were getting between K 1,000 and Kl,500. The evidence points to the fact that these were the basic salaries and the complainants had an additional allowance. 67. The ECA provides for payment of gratuity for employees on long term contracts. Section 73 states as follows: (1) An employer shall, at the end pf a long term contract period, pay an employee gratuity at the rate of not less than 25% 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 68. As found, the complainants' oral contracts amounted to long term contracts as deflned by the ECA. I, therefore, find that the complainants are entitled to gratuity on prorated basis for the period that each served the respondent. 69. I note that only 3 of the complainants furnished their bank statements. The others did not provide proof of their monthly salaries making it difficult to determine the actual amount due as damages for unfair dismissal as well as gratuity. For this reason, the matter is referred to the learned Registrar for assessment. J 23 Leave pay and any other bene{its 70. It is common cause that in this jurisdiction, leave pay is an accrued right that should be paid regardless of the mode of termination of the employment contract. That being said, the onus is still on the complainants to prove their case. 71. Perusal of the record reveals that the complainants did not indicate how many leave days each had accumulated or if at all they ever ,vent on leave in the period in issue. In the absence of evidence to buttress this claim, I find that it is ill fated and must fail. 72. In terms of other benefits, the evidence does not reveal any other entitlements due to the complainants. Coaclusions and Orders 73. In a nutshell, the complainants succeed as against the 1st respondent as outlined above. They have proved that they are entitled to terminal benefits in the form of gratuity from 1st January, 2019 to their respective end dates as found above. Thay have also proved that their dismissals were unfair or unlawful and they are therefore deserving of damages. The claim for leave pay has been dismissed for failure of proof to the requisite standard. 74. For the avoidance of doubt, I make the following orders: (i) The 1st respondent shall pay each complainant gratuity at 25% of basic pay (salary) for the period served to be computed by the Registrar. J 24 (ii)I declare the complainants' dismissal as unlawful. (iii) The 1st respondent shall pay each complainant one month's salary as damages for unfair or unlawful dismissal to be computed by the Registrar. (i) The amounts in (i) and (iii) shall attract interest at short-term bank deposit rate from the date of complaint to the date of judgment and thereafter at the current lending rate as determined by the Bank of Zambia until full payment. {iv) The amount found due in respect of each complainant shall be reduced by the amount already settled through mediation as per mediation settlement order dated 18th August, 2023. 70. Each party shall bear own costs and is informed of the right to appeal. Delivered at Lusaka this 26th day of August, 2025 ... ,.,. .. - ........ ;\EPUs ~ .. -· \ ] , ' " , , 1SAKA ,~ . . . . . . . . . . . . . ~ s .. '.: • IDGH COURT JUDG J 25