Quattro Company Limited v Moscane Mbulo (APPEAL NO. 118/2017) [2017] ZMCA 507 (1 August 2017)

,. t IN THE COURT OF APPEAL FOR ZAMBIA APPEAL N0.118/2017 HOLDEN AT LUSAKA (Civil Jurisdiction) ~~-)=--:-::-.... ,,,,.,,,,,,,,, S. S:.1'-~!C ~.' BETWEEN: QUATTRO COMPANY LIMI Appellant I ;- l(JS~K~ AND MOSCANE MBULO Respondent Coram: Mchenga DJP, Mulongoti and Lengalenga JJA On 28th March 2018 and lot August 2018 For the Appellant: Ms K. N Kaunda of Mmes K. N Kaunda Advocates For the Respondent: Mr T. Chabu of Messrs Terence Chabu & Co. JUDGMENT MULONGOTI, JA, delivered the Judgment of the Court Cases referred to: 1. Kwena Darius Mangope v South African football Association {2011) 4 BLLR391 2. Robson Banda (suing as administrator of the estate of the late Rosemary Phiri) v Evaristo Mulenga (sued as administrator of the estate of the late Steven Kabamba) SCZ Judgment No. 16/2002 3. Kitwe City Council v William Ngunl (20051 ZR 57 {SCI 4. SWarp Spinning Mills Plc. v Chiles.he& others 120021 ZR 5. Rodgers Chama Pon.de and 4 others v Zambia State Insurance Company (20041 ZR 151 (SCI 6. Mususu Kalenga Bu.ilding Limited and another v Richman's Money lenders Enterprises (1999) ZR 27 (SCI 7. Zambia Privatisation Agency v Mata.le (1995-19971 ZR 157 (SC) 8. Zambia China Mulungushi Textiles (Joint Venture} Limited v Gabriel Mwami (20041 ZR 244 9. Barclays Bank v Mando Chola and another SCZ Judgment No.8/1997 10. Gerald Musonda Lumpa v Maamba Collieries Limited (1988-891 ZR 217 (SCI 11. Kawhnbe v The Attorney General (19741 ZR 244 12. Chilanga Cement Pie v Kasote Singongo (2009) ZR 122 (SC) 13. Za:nlbia Airways Corporation Ltd v Gershom BB Mubanga (1990-19921 ZR 149 (SCI 14. National Airways Corporation v Reggie Zimba and Saviour Konie SCZ Judgment No. 34/2000 Legislation referred to: 1. Constitution Of Zambia Chapter 1 of the Laws of Zambia 2. Employment Act cap 268 of the Laws of Zambia as amended by Act No.15 of 2015 J2 Other Works: 1. Chitty On Contracts vol. I 24111 edition 2. Cheshire and Fifoot On Contract, 14th edition, P236 3. Halsburv's Laws of England, 411> edition, Re-Issue para.graph 28 This an appeal against the decision of the High Court (Industrial and Labour Relations Division), pursuant to which the appellant Quattro Company Limited, was ordered to pay the respondent four months' salary as damages for breach of contract. The background leading to this appeal 1s that the respondent, Moscane Mbulo, was employed by the appellant as a security manager on 18th December 2015. He reported for work in January, 2016 and was stationed at the appellant's yard in Solwezi. On 31$' March, 2016 he was tenninated on grounds of unsuccessful probation in accordance with the contract "MM3", which he never signed. He sued the appellant and sought the following reliefs: (l} Damages for wrongful and or unlawful unninatton of contract of employment. (ii) Payment of salary in lieu of notice (iii} Damages for breach of contract J3 {tv) Compensation for loss of earnings of KS,000.00 per month, leave days allowance of $215.25 and talk time allowance of KS00.00 per month for the rematnlng contract period of 9 months (v) Interest and {vi) Costs. He maintained that he was offered a twelve months contract 1n accordance with the letter "MMl", appearing on page 27 of the record of appeal. The appellant contended that the respondent was offered employment vide the letter "MMl" on condition that he would be issued with a twelve months contract. He accepted the letter of employment but never signed the contract, exhibit "LSl" of the affidavit in support of answer. The Court heard that during the three months of his employment the appellant was warned for using vulgar language to two of his workmates. He was charged but pleaded guilty and asked for forgiveness and the respondent accepted the apology. He continued )4 working until he was terminated on grounds of unsuccessful probation. After analysing the evidence, the trial Court found that the issue for his determination was whether or not the condition in the letter "MMl" that "Should you agree to the conditions above you will be issued a 12 months contract", is an agreement subject to contract. If the answer is in the affirmative, the question is whether or not there was a binding contract. Quoting Sutton and Shannon on Contracts that: "Parties when entering into a contract, by offer and acceptance may intend that the agreement shall ultimately be put into the form of a written agreement and that it shall not be binding until that ha9 been done. If this is their intention, there is no contract until the agreement has been put into writing. This is what was described in the case of Chlllingworth v Esche. Or they may intend that they shall be bound as soon as they are agreed as to the terms, and those terms are afterwards to be put into writing for the sake of preserving a memorial. In this case they are bound as soon as all the terms JS which are to be put into writing are agreed upon as per Lord Wensleydale in the case of Ridgway v Wharton.,. The trial Court concluded that where an agreement is made subject to a condition precedent , the contract does not bind the parties until the condition has been satisfied. The trial judge found that the condition precedent which was required to be fulfilled by the respondent in accordance with the letter "MMl", was the acceptance, signified by his signature, of the conditions of employment in the said letter. Since the conditions in the letter "MMl" did not include a probation period, the termination was done in breach of the contract of employment. The trial Judge reasoned that it was inconceivable that the appellant wanted to rely on the probation clause in the draft contract "LSI", which was not presented to the complainant and was never signed. The Judge found the letter "MM l" to be binding and conclusive. )6 In awarding the four months pay, with all taxable allowances as damages, the trial court was persuaded by the decision of the Labour Court of South Africa in Kwena Darius Mangope v South African Football Association1 that: "The amount of damages to be awarded to an employee as a result ofan unlawful termination ofaflxed term contract by the employer ls the amount he or she would have received in the sa1.ary but for the repudiation of the contract by the employer. In other words, the damagu in an unlawfttl termination of an employment contract is calculat.ed on the basis of what would have been due to the employee on the unexpired period of the contract less whatever amount he or she may have received after the termination of the contract, c:onsfftuting mitigation of his or her damage.s." In awarding the four months pay, the judge noted that the respondent mitigated his damages by finding employment as Manager at Chowa Farms. Dissatisfied with the Judgment, the appellant lodged an appeal and raised five grounds of appeal as follows: )7 1. The Court below erred in law and/a.ct when it found that the letter offering employment to the respondent was the full and conclusive document governing the employment relatioMhfp between the appellant and the respondent wlum the same was expressly made $Ubfect to a formal 1.2 months contract. Z. The. Court below erred in law and fact when it faUed to consider the fact that the appellant is merely a contractor operattng at the mines and therefore that tt had a duty to maintain highest standards of service including tnnployees to maintain good state of mining operations. 3. The Court below erred in law and fact when it found that the only CQntract referred to was the blank contract "LSI" in the affidavit in support of answ.er when there were two other separate contracts produced in evldence relating to two other respondent's employed prior to the respondent includtng the appellants only witness that were repeatedly ref erred to at trlat 4. The Cou.rt below erred in law and fact when it faU.ed to recognise the. right of the employer to assess any new employee and make up its mind on retaining or urmlnating their employment within a period of three months. 5. The Court below erred in law and fact when lt fMJ.nd that the respondent had breached the contract and proceeded to award damages for breach of contract relying on a foreign authority dealing with unlawful termination of empwyment when it has found that the. issue$ of wrongful and or unlawful termination of the contract of employment did not arise discarding the fundamental principle that the normal measure of damages for breach of contra.ct is the notice period. JS The respondent also cross appealed on the following grounds: 1. The court bel.ow erred in law and fact when he held that the claim for wrongful and/or unlawful termination of contract of employment did not arise on the ground that the respondent's evidence on record and the reason given ln the letter dated 31•1 March, 2016, namely unsuccessful probation, oblfged the court to adjudtcate upon the said claim to determine all issues in dispute in finality. 2. The co1.!rt below erred in law and fact when he failed and/or neglecud to adjudicat.e upon the claun for pay,rumt of s,.da,y in lkq of notlce. 3. The court below erred ln law and fact when he awarded the respondent compensation ~uivalent to four months pay with all taxable allowances for breach of contract on the ground that the sald compensation was so inordinately low and the e<>urt applied a wrong principle of law in making the satd award. In support of the appeal Ms. Kaunda, who appeared for the appellant, also filed heads of argument. In ground one it is argued that from the letter of acceptance of conditions, it is clear that the respondent would be issued vvith a twelve months contract. The trial court, therefore, erred when it disregarded that condition. According to counsel, it cannot be said that all the conditions were put dovvn in the letter "MMl" as there were clearly, other J9 conditions, most of which were positive and favourable to the respondent. Quoting Cheshire and Fifoot, On Contract, that "It wa.s already settled by the beglnnfng of the nineuenth century that the plmntlJf might rely on two or more document$ to prove hts case. But at thi$ period, it was still necessary that the one document must 8pedfically, and on the face of it. refer to the other." It is argued, that the position of the law is that it is proper for one document to refer to the other and the terms of that other document to be part of the contract. In relation to ground two, it is argued that the appellant is a mere mining contractor, who was subcontracted by the mine to provide transportation services. Thus, the respondent's conduct of using vulgar language while at the mine, would have disrupted mine operations and all this would have fallen on the appellant who allowed him at the mine. A mine being a sensitive area, such behaviour could not be condoned. It is the further submission of counsel, that indeed if the trial Judge believed that the letter "MMl" contained the full conditions, he JlO would have had no problems seeing that the respondent went outside the duties he was assigned to do as specified in the letter and went on to assert supervisory authority over other employees of the mine whom he was not responsible for. This caused a direct threat on the appellant's business relationship with the mine. The trial Judge not only failed to consider these arguments but he did not give reasons. In ground three it is learned counsel's contention that the finding of the lower court that the contract "LSl" with the probation period was never presented to the respondent for signing, is contrary to Halsbury's Laws of England on incorporation of terms into an agreement which states that: "even where the cusent of the parties to an w.1reemettt is sf.gnifled in some manner other thc:m on a document cont«ming or referring to its Umt$, it is sttll possible for the terms contauied in a document to become part of the agreement between those parties. That document may even be the terms of another contract between the part:fes, or a drqft agreement between them, or a contract between one of them and a third party ... Whether the tenns contained or referred to in the document be vi.rtti:allu the whole agreement or fu,$t a small part the test is the same ... He may do so expressly by gluing actual notice of the Jtl written terms and hi.$ tntentlon to the other partfes or he may do so by tmpUcatlotL" This argument was presented to the court below but the court did not explain why it discarded this position of the law. In any event, counsel argued that the appellant produced two contracts of its other employees to show that every new employee is on probation for at least three months. It was therefore, incumbent upon the respondent to prove in the court below that there was no probation period. The respondent produced nothing to isolate his case from the rest of the employees, yet the Court found that he had discharged his burden of proof on a balance of probabilities. This, it is submitted, shows that the evaluation of the evidence was thus erroneous and incomplete which should warrant our setting aside the Judgment of the lower court, in accordance with the Supreme Court decision in Robson Banda (suing as administrator of the estate of the late Rosemary Phirll v Evaristo Mulenga (sued as administrator of the estate of the late Steven Kabamba)2 · In that case, the Court held that where a trial court, in assessing and evaluating the evidence failed to take into account Jl2 one party's evidence, the appellate court could interfere with the fmdings of the trial court. [n the present case the trial court did not consider the evidence of the appellant relating to the contracts of the two other employees. In relation to ground four it is contended that the employer retains a right, at common law, to assess his employees before committing them to full term employment. This right is recognised in section 2 of the Employment Act which provides that employment that exceeds six months, is not casual work and is under a written contract of employment. However, the Court below did not address this provision of the law. Ground four should be equally allowed and the Judgment set aside. In ground five, learned counsel argues, that the trial Judge erred in law and fact when he proceeded to assess damages for breach of contract based on the South Africa case of Kwena Darius Mangope v South African football Association1 . According to counsel, that J13 case dealt with "unlawful termination" of a fixed term contract, which was not an issue in the present case. In addition, from the passage quoted by the trial Judge, that "there l$ a tendency among lawyers practising in the field of labour to rely on these dicta to contend that the unlawful premature termination of a fixed term contract of employment entitles the wrongfully dtsmtssed employee to be pald the balan<:e o/the unexpired portlon of his or her contract. .. In accordance with the general principle, a plaintiff claiming for damages for a prospective loss of future sakuy m.ust adduce evidence enabling a fair approxfmation of the loss even though it ts of uncertain predtctabiUty and exactitude. It ls not competent for a court to embark upon conjecture or guesswork in assessing damages when there is inadequat.e factual basis in evidence." Thus, according to learned counsel, the plaintiff always bears the burden to prove prospective loss of the expectancy of income and that in Kitwe City Council v William Nguni3, it was clearly stated that no complainant is entitled to claim a salary for a period not worked for and awards of such nature are never made lightly. Jl4 In conclusion, it is argued that the court below misapplied the South African case. The respondent was already in employment and this evidence should have been considered. The confusion surrounding the misapplication of the foreign authority is also seen from the award of four months' pay with "all taxable allowances" despite the trial court's finding that the letter contained all the conditions of employment. Thus, it is not easily comprehended what "all taxable allowances" the trial Court was referring to. Learned counsel further submitted that there are Zambian cases on assessment of damages for security guards which the court below should have followed, such as Swa.rp Spinning Mills Plc. v Chileshe & others.4 Additionally, that although the Court below tried to draw a distinction between wrongful termination and breach of contract, the line is really slim and difficult to appreciate. Ultimately, what occurred was a loss of employment. The known common law remedy for loss of employment is the notice period, which is departed from where the termination is done in a traumatic fashion. There is no trauma in casu as the respondent JlS was treated with utmost courtesy. He was even paid gratuity, given a laptop and a mobile phone, which he was not entitled to. Furthermore, that though the Letter had no notice period, it goes without saying that any contract must have a clause specifying the notice period, if not, section 20(2) of the Employment Act specifies the notice period as follows: 'Y2) in the absence of any agreement providing for period of notiCi! of longer duration, the length of such notice shall be- (a) subject to the provisions of paragraph (b), twenty-four hours where the contract is for a period of less than a week; (b) fourteen days where the contract is a dafly contract under which,. by cigreement or custom. wages are payable not at the end of the d<ty, but at intervals not exceeding one month; (c) thirty days where the contract i,s for a period of one week or more. (3) Notice to terminate employment may be either verbal or written and may be gfuen at any time, and the d4y on which the notice ts given shall be included in the period of notice,• In conclusion, it is argued that the court below fell in manifest error when it failed to appreciate the inconclusiveness of the letter of offer which missed out even the fundamental notice period and erred in assessing damages. Jl6 Mr. Chabu, who appeared for the respondent, argued in relation to ground one that the trial court did not err when it held that the letter offering employment to the respondent was the full and conclusive document. Quoting Chitty On Contracts that: "Extrinsic evidence inadmissible. Ulhere the parties have embodied the terms of their contract in a written document, the general rule is that ·verbal evidence is not allowed to be given ... so as to add to or subtract from, or in any manner to vary or qualify the written con.tract ... Evidence is not admissible of negotiations between parties; nor is it permissible to adduce evidence to show that their subjective intentions were not in accord with the particular e-"?)ression.s used in the written instrument." This, according to counsel, was followed in the case of Rodgers Chama Ponde and 4 others v Zambia State Insurance Company Limited5 where the Supreme Court held that: "Parol evidence ls lnadmlssible because it tends to add. vary or contradtct the terms of a written cigreement validly concluded by the pa.rt:l.es." The respondent testified in cross examination at page 13 lines 2-3 that: "Probation was not specifically mentioned in the letter of offer of employment." Jl7 As such, it cannot be admitted as part of the respondent's conditions of service. It is argued further that the draft contracts of other employees do not apply to the respondent as there is no evidence to show that he was given the same and he signed for them. Counsel further contends that the appellant failed to show proof that it had a written company policy on the three months probation period. In grounds two and four, it is argued that issues raised therein were not pleaded and cannot be raised on appeal. The case of Mususu Kalenga Building Limited and another v Richman's Money Lenders Enterprises6 was cited as authority on that position of the law. ln ground three it is contended that the Court did not err when it found that the only contract referred to was the blank "LSl ". )18 In ground five it is contended that the trial Court properly found that the appellant had breached the contract by terminating on probation basis, which was not a term of the respondent's conditions of service. Furthermore, that the court below was in order to have relied on the case of Kwena Darius Mangope v South African football Association 1• Counsel further, submitted that in Zambia Privatisation Agency v Matale7 , the Supreme Court elucidated on termination by notice and measure of damages as follows: "where the contract expressly provides that the rekittonshtp of employer and employee ts to endure for a certain time, the contract will be determined at the conclusion of such period, tennination before the agreed date may take place either lawfully or 'UIN>ngfttlly ... If such termination ts lawful, then the parties will be discharged from the obligations of the contract without Uability thereunder lf wrongful, on the other hand, the party guilty of premature determination wUl be in breach of the contract and will be liable accordingly. J19 In addition, in that case, the Supreme Court agreed with the learned author Friedman in his book 'The Modern Law of Employment• that: "the damages measured by loss of sala2ry /or remainder of a fixed term of employment are on.ly payable where the employer wrongfully repudiates the contract and not where the termination Is lawful." in relation to the cross appeal, Mr. Chabu argued in ground one that the trial court erred when it declined to adjudicate on the claim of wrongful or unlawful termination of employment on the ground that it did not arise. According to counsel, a trial court is obliged to adjudicate upon all issues in dispute to finality. It is the further submission of counsel that the termination was wrongful/unlawful because the respondent failed to comply with the disciplinary code by charging the respondent retrospectively. The appellant also failed to give him a final warning for the alleged offence of using vulgar language. Furthermore, that the termination was wrongful/unlawful because )20 it was contrary to section 36 (1) (c) and (3) of the Employment Act which provides: "Termination of Contract 36. (11) A written. con.tract of service shall be terminated- (a) by the expiry of the tennfor which it is expressed to be made; (bJ by the death of the employee before such expiry; (c) in any other manner in which a contract of seruioo may be lawfully terminated or deemed to be tenninated whether under the provisions of this act or otherwise; except that where the termination is at the initiath1e of the employer, the employer shall give ~ns to the employee for the termination of that employee's employment. .• 13} The contract of service of an employee shall not be terml. Jtated unless there is a vaUd reason for the termination connected with the capacity. conduct of the employee or based on the operational requirement ofthe undertaking." Furthermore, that section 26A prohibits termination on grounds related to conduct or performance without affording the employee an opportunity to be heard on the charges laid against him. This is also provided for in Article 7 of the International Labour Organisation (ILO). Relying on the cases of Zambia China Mulungushi Textiles (Joint Venture) Limited v Gabriel Mwami8 and Barclays Bank v Mando Chola and another9, counsel argued that the termination of the )21 respondent was unlawful as the appellant failed to state reasons for termination. In ground two, it is contended that the trial Judge erred in law and fact when he failed to adjudicate upon the claim for payment of salary in lieu of notice. According to counsel, the respondent is entitled to salary in lieu of notice as he was not summarily dismissed. The case of Gerald Musonda Lumpa v Maamba Collieries Limited10 was relied upon where it was held that: "in an ordinary master and servant relationship, the master c«n terminate the contract with his servant at any time and for any reason or for not what$oeuer. If a master gives a reason for termtnatlon he is not obliged to substantiate i.t. lt ts the gtvi.ng of notice or pay in lteu that terminates the employment. A reason is only necessary to justify summary dismissal without notice or pay -ln lieu." In ground three, it is argued that the court below erred in law and fact when it awarded the respondent four months' pay with all taxable allowances for breach of contract. The compensation of four months is so inordinately low and the court below applied a wrong J22 principle of law in making the said award. According to counsel, we, as an appellate court have powers to interfere with the quantum of damages as held in Kawimbe v The Attorney General11that " ... (iii) An appellate court should not interfere with the finding of a trial court as to the amount of damages merely because the appellate court is of the view that if it had tried the case in the first instance they would have given a lesser sum. (iv) Before the appellate court interferes with the .findings of a trial court as to the amount of damages, it must be shown that the trial court has applied a wrong prlncipls or has mis-apprehended the facts or that the award was so high or $0 low as to be utterly unreasonable or was entirely erroneous estunate of the damage." Furthermore, relying on Article 118 (1) and (2) of the Constitution of Zambia which enacts that: "( 1) The judicial authority of the Republic of Zambia derives from the people of Zambia and shall be exercised in a just manner and such exercise shall promote accountability. (2) In exercising judicial authcrity, the courts shall be guided by the following principles ... (c) Adequate compensation shall be awarded. where payable ... •· Counsel argued that the four months compensation was inadequate. He therefore, submitted that the respondent be paid J23 the remainder of the contract as held in Zambia Privatisation Agency v Matale, supra that: "the damage$ measured by lo$$ of salary for remainder of a fixed term of empl.oyment are only payable where the employer wrongfully repudiates the contract and not where the t.ermination is l.awfuL" Citing a plethora of cases where damages for wrongful termination were awarded equivalent to 12 and 24 months pay, it is argued that the court below ought to have adequately awarded the respondent nine months salary and allowances. See Chilanga Cement Plc v Kasote Singongo 12 accordingly, it is submitted that he be awarded nine months pay which is the remainder of the contract. Furthermore, that in Zambia Airways Corporation Ltd v Gershom BB Mubanga 13 the Supreme Court awarded the respondent full salary and other entitlements from the date of suspension to the date of dismissal plus damages of 12 months salary and other entitlements inclusive of leave pay for wrongful dismissal. We were urged to allow the cross appeal. J24 In response to the cross appeal the learned counsel for the appellant a1:gued that the respondent was not summarily dismissed but was terminated on grounds of unsuccessful probation. According to counsel the terms of employment that are envisaged in the concept of wrongful termination of employment are those that guide the specific employment of an employee. A finding of wrongful termination of employment, after considering the terms of employment, is the same thing as breach of contract because the employer would have breached the terms of the contract of employment. According to counsel, the position of the law would not be to create a double benefit to an employee who claims both breach of contract and wrongful termination of employment. He submitted that this is why the Judge held that, having dealt with the issue of breach of contract, there was no need to deal with the claim for wrongful termination of employment. In ground two, it is argued that the court below addressed the issues of payment in lieu of notice. This ground is baseless as the J25 respondent argued and insisted that the letter of offer of employment contained all the terms and conditions. But it did not provide for notice. In response to ground three of the cross appeal, it is argued that the normal measure of damages is the notice period. As the letter of offer had no clause or notice period, the court erred when it awarded four months pay as compensation without explaining why. The respondent only worked for three months and was paid one month salary, a laptop and mobile phone, which was adequate compensation. In the circumstances, there was nothing to justify the four months pay. It was therefore excessive and unjustifiable. We have considered the arguments and submissions by both counsel in relation to the appeal and cross appeal. We note that issues raised are the same or interlinked. We will therefore deal with the appeal and cross appeal simultaneously. We will consider grounds one and three of the appeal together as well as all the three grounds of the cross appeal. J26 The issue arising in relation to these grounds is whether the letter of offer of employment dated 18th December, 2015 exhibited in the record of appeal constituted all the conditions of employment. Was it subject to issuance of a twelve months contract to be effective? To put matters in proper context we reproduce the letter "MMl" below: "J e1h December 2015 Mr. Moscane Mbulo NRG No. 144950/ 73/ 1 Mkushi . Re: Letter of Offer of employment We are pleased to offer you the position of Security Manager at our Solwezi Branch effective 41h January, 2016. Due to the growth factor both in size and scope of work, creating a Security department has become the next step in ensuring that we maintain the high standard and quality required of us by our clientele. Checks and balances with fuel, stock and other consumables are vital as we require a high standard of aoccuntability and transparency. Job function As Head of Security, you will be responsible for the following: • To be responsible for setting up a full proof Security System with fuel, lubricants and all consumables. J27 • Ensuring that all vehicles coming and going are thoroughly searched • To implement systems and measures of control that will be utilised in that branch. • To propose new ways we can improve (llld control our stocks, systematical stocking, delivery and issuance and branding of all tyres • Up to date record keeping on all items issued and keep delivery notes on all branch deliveries and have recipients sign for collections. Conditions of service Your remuneration will be as follows: 1. Monthly basic pay of KB,000.00 (Eight Thousand Kwacha Only} and 30% housing allowance/ Z. You will be issued with a Brand New working Laptop for all your operations. 3. Company vehicle. 4. You wifl also receive a Brand New Mobile Phone. 5. MTN Airtime of KS00.00 a month. Should you agree to the conditions above you will be issued a 12 month contract. Your signature below indicates that you agree to the above conditions. Please do not hesitate to contact me should you have any queries. Mrs. Selina Kale.ro Kayi ., .................................................. si.gned Mr. Moscane Ml>ulo .............................................. $'i.gned1 • J28 It is clear to us that by this letter the respondent was offered employment as head of security. The letter also sets out the conditions of service being offered. The letter further states that should the respondent agree to the conditions, he would be issued a twelve months contract. Importantly, it states further that "your signature below indicates that you agree to the above conditions." The respondent signed the letter as did the appellant's representative. It is our considered view, that once the respondent signed the letter, he accepted the conditions and the twelve months contract was to be issued to him, based on the conditions in the letter. As such, whether he signed the twelve months contract or not is immaterial, because the letter clearly stated that he was offered employment under the stated conditions, which when accepted, automatically entitled him to a twelve months contract. This twelve months contract was on the conditions he accepted, not new ones. The J29 • letter did not state that the twelve months contract would be subject to further or new conditions. In this regard, the trial Judge was on firm ground when he held that the parties intended to be bound by the letter as soon as they both signed and that the appellant cannot rely on the draft contract 'LSl', which had different conditions and which was never presented to the respondent to sign. lt follows, that since the letter governed the employment relationship between the appellant and the respondent, the appellant could only terminate the employment in accordance with the letter. The letter is unambiguous and the trial court correctly interpreted it. We are alive to the fact that the respondent was terminated on grounds of unsuccessful probation in accordance with the contract "LSl" which he never signed. This was wrong. We agree with the trial court that the termination on grounds of unsuccessful probation, which was not a condition of employment, HO ' . was wrong. However, we find that the court below erred when it held that the termination was done in breach of contract, without even specifying which term of the contract or condition was breached. More importantly, the contract, which had the probation clause, was not in issue as alluded to. What was in issue was the letter. The question is, was the termination in accordance with the letter which provided the conditions? The answer is no. The letter did not provide for probation as one of the terms of employment. It is settled law however, that every contract of employment is determinable by notice. In the case of Zambia Privatisation Agency v Matale7also cited by Mr. Chabu, the Supreme Court elucidated that: «where the contract expressly or impliedly provides that the relationship of employer and employee is to endure for a certain time, the contract will be determtned at the conclusion of such period. Termination before the agreed date may take place either lawfutly or wrongfully ... lf such termination l.s lawful, then the parties are dtscha:rged from the obUgatlon on the contract ... If it ts wrongful the party guilty of premature determinatton will be in breach and ltable accordingly ... " Bl • Further that: ''payment in lieu of notice is a proper and lawful way of terminating the respondent's contract on the basis that in the absence of express stipulation every contract ls determinable by reasonable notice. H In casu, the appellant terminated on grounds of unsuccessful probation, contrary to the letter which governed the employment relationship between the parties. This therefore, was wrongful as held in the Matale7 case supra. The Supreme Court has further elucidated that wrongful termination a.rises where the employer fails to follow procedure stipulated in the contract. In casu, probation was not a tenn or condition of the letter, so the termination was wrongful. Thus, though the contract could have been terminated by notice, even if the letter did not have a term on notice period, and the issue of termination by notice does not arise. We therefore, find that the contract was wrongfully terminated. As argued by Ms Kaunda, the normal measure of damages for wrongful J32 ' . termination is the notice period. In casu, no notice period was stated but as held in Matale 7 every contract is determined by reasonable notice. We find two months to be reasonable notice. Accordingly we set aside the award of four months compensation and substitute it with two months pay. We must state though that the reasons for setting aside the four months are as we have stated and not on the arguments by counsel for the appellant, that since there was no notice period in the letter, the Judge erred to award four months pay. Additionally, the respondent is already in gainful employment and has thus mitigated his loss. We are of the considered view that the two months pay is adequate. It is trite law that the notice period as measure of dam.ages is only departed from where the termination is done in a traumatic fashion. The circumstances of this case are such that the respondent had worked for three months only. At the end of the three months he was informed of termination for unsuccessful probation, though wrongfully. We do not see any trauma that befell the respondent in J33 • the manner of termination to warrant departure from the nonnal measure. If anything, during the three months the respondent was charged twice but forgiven after he apologised. Accordingly, we see no reason for departing from the notice period as the measure of damages in this case. Regarding, the arguments that he be paid for the remainder of the contract, which is nine months pay, we are fortified by the case of National Airways Corporation v Reggie Zimba and Saviour Konie14, where the Supreme Court held that paying for the remainder of the contract is bound to be extravagant and unconscionable as the employee has not worked for the period. Thus, there is no consideration and amounts to unjust enrichment. The respondent herein worked for three months and is already in gainful employment. Furthermore, the Supreme Court has elucidated in later cases such as Chilanga Cement Plc v Kasote Singogo 12 that the normal measure of damages is the notice period. J34 • In light of what we have said above, we find no merit in grounds one and three of the appeal and all the three grounds of the cross appeal. However, ground five of the appeal is allowed in light of the setting aside of the four months award and substitution with two months pay. From the onset, we wish to state that we agree with Mr. Chabu that issues pertaining to ground two of the appeal did not arise in the court below. Furthermore, the appellant accepted the respondent's apology regarding his behaviour. Ground two equally fails. Ground four is equally bound to fail. We found that the respondent was not on probation as the same was not part of the terms and conditions of the letter governing the employment. Sections 2, 26A and 20 of the Employment Act are clearly misapplied on the facts of this case. Ground four also fails. In the net result, the appeal has only partially succeeded. The cross appeal has failed in its entirety and is dismissed. J35 ,, We order each party to bear own costs in this court and maintain the order on costs below as ordered. C. F. R. MCHENGA DEPUTY JUDGE PRESWE ~ J , J~ J. Z. MULON'Gt COURT OF APPEAL JUDGE F. M. LENGALENGA COURT OF APPEAL JUDGE J36