Raphael Mvula and 351 Ors v Torress Advanced Enterprises Solutions (COMP/IRC/LK/470/2021) [2024] ZMHC 307 (27 June 2024)

• Jl IN THE HIGH COURT FOR ZAMBIA COMP /IRC/LK/ 470/2021 AT THE INDUSTRIAL RELA HOLDEN AT LUSAKA BETWEEN: LUSAKA . [2 7 JUN 2025 ] SEAL RAPHAEL MVULA AND 35 COMPLAINANTS AND TORRESS ADVANCED ENTERPRISES SOLUTIONS RESPONDENT Before the Hon. Mrs. Justice T. S Musonda For the Complainants : Mr. C . Chungu, Pro Bono Legal Aid Counsel, Messrs. Legal Aid Board For the Respondent : Ms. C. Kafwelu & Mr. A. Simunyola of Messrs. Eric Silwamba, Jalasi & Linyama Legal Practitioners JUDGMENT Legislation referred to: (l)Constitution of Zambia (Amendment) Act No. 2 of2016 (2) Employment Act, Chapter 268 of the Laws of Zambia (3) Minimum Wages and Conditions of Employment (General) Order, Statutory Instrument No. 2 of 201 lJudgment Act Cases referred to: (l)Attorney General v. Katwishi Kapandula, (1988-1989) Z. R 69 (S. C) (2) Gilbert Besa v. Chimwenda Investments Limited, 2023/HN/IR/21 (3) Secretary of State for Employment v. Globe Thread Company Limited, (1979) 2 All ER 1077 (4)Albert Mupila v . Yu-Wei, COMP/IRCLK/222/202. • J2 (5) Margaret Simeza and 52 Others v. Society for Family Health, SCZ Appeal No. 155 of2011 (6) Frida Kabaso Phiri (sued as Country Director of Voluntary Services Overseas Zambia) v. Davies Tembo, SCZ Appeal No. 04 of 2012 (7) Barclays Bank v. Zambia Union of Financial and Allied Workers, (2007) Z. R 106 (S. C) (8) Central Province Co-operative Union v. Alisala Aison Mulambya, SCZ Appeal No. 3 of 2016 (9) Chilanga Cement Pie v. Kasote Singogo, SCZ Appeal No. 13 of 2009 (10) National Milling Corporation v. Angela Chileshe Bwembya Silwamba, SCZ Appeal No. 171 of 2015 (ll)Musonda Chizinga v. Capstone Management Company Limited, 2022/HPIR/ 557 (12) Lumwana Mining Company Ltd v. Henry Nyambe and Others, CAZ Appeal No. 165/2022. (13) Swarp Spinning Mills Pie v. Sebastian Chileshe and Others, (2002) Z. R 23 (S. C) (14) Attorney General v. John Tembo, SCZ Appeal No. 4 of 2010 ( 15) First Quantum Mining and Operations Limited v Obby Yendamoh, SCZ Appeal No. 206 of 2015 (16) Konkola Copper Mines Pie v. Aaron Chimfwembe and Kingstone Simbayi, SCZ Appeal No. of 195 of2013 (17) Tiger Chicks (t/a Progressive Poultry Limited) v. Tembo Chrisford and Others, SCZ Appeal No. 6 of 2020 (18)Jennifer Nawa v. Standard Chartered Bank Zambia Pie, SCZ Appeal No. 1 of2011 (19) Galaunia Farms Limited v. National Miling Company Limited, (2004) Z. R 1 (S. C) (20) David Chiyengele and Others v. Scaw Limited, SCZ Appeal of 177 of J3 (21)Lubunda Ngala and Jason Chulu v. Anti-Corruption Commission, CCZ Selected Judgment No. 4 of 2018 (22) Zambia Export and Import Bank Limited v. Mkuyu Farms Limited and Ellias Sypron and Mary Ann Langley Sypron, (1993-1994) Z. R 36 (23) Friday Mwamba v. Sylvester Nthenge and (2) others, (2013) ZMSC 5 (24) Jacob Nyoni v. The Attorney General and the case of Nyambe and Others v. Konkola Copper Mine Plc (In Liquidation), (2023) ZMSC 17 (25) Nyambe and Others v. Konkola Copper Mine Plc (In Liquidation), SCZ Appeal No. 2 of 2022 (26) Siwale and others v. Council of the Copperbelt University, (COMP 51 of 2015) [2016] ZMIC 24 (27) Dr. Richard Mwiinga v. Public Service Pension Fund Board and the Attorney General, COMP/IRC/LK/22/2018 (28) Zambia Revenue Authority v. Dorothy Mwanza and Others, (2010) 2 ZR 181 (29) McCall v. Abelesz and another, (1976) 1 ALL E. R 727 (30) Kitwe City Council v. William Ng'uni, (2005) Z. R 57 (31) Zambia National Building Society v. Ernest Mukwamataba Nayunda, (1993-1994) Z. R. 29. (32) Constantine Line v. Imperial Smelting Corporation, (1942) AC 154 (33) Eston Banda and another v. Attorney General, SCZ Appeal No. 42/2016 (34) African Banking Corporation v. Bernard Fungamwango, CAZ Appeal No. 148 of 2020 (35) Raila Odinga and others v. Independent Electoral and Boundaries Commission and others, (2013) KLR-SCK Petition No. of2013 & No. 1 of2017 (36) African Banking Corporation v. Lazarous Muntente, CAZ Appeal No. 51 of2021 (37) Daniel Peyala v. Zambia Consolidated Copper Mines, SCZ Appeal No. 81 of2012 J4 (38) Ireen Kafula Banda v. Zambia Bata Shoe Company Pie, SCZ Appeal No. 148 of2013 (39) Attorney General v. Seong San Company Limited, SCZ Appeal No. 182 of2010 (40) Oliver Bwalya v. Zambia Telecommunications Company Limited, SCZ Appeal No. 213 of 2016 (41) Kayombo and others v. Quattro Company Limited, CAZ Appeal No. 23 of 2018) [2018] ZMCA 262 (42)Mugford v. Midland Bank Pie, (1997) ICR 399 (43) Owen Mayapi and (4) Others v. Attorney General, 2019/CCZ/003 (44)Anderson Mwale and others v. Zambia Open University, 2021/CCZ/001 (45)Mcqueen Zenzo Zaza v. ZESCO Limited, 2018/CCZ/006 Other works refereed to: (1) Mwenda, Winnie Sithole and Chungu, Chanda 'A Comprehensive Guide to Employment Law in Zambia' (2021) UNZA Press (2) Chitty on Contracts, General Principles Volume 1, 28th Edition (1999) (3) Phipson on Evidence, 14th Edition, Sweet & Maxwell (1990) 1. INTRODUCTION 1.1 This Judgment concerns the Complainants' amended Notice of Complaint, filed on 22nd November 2023, and accompanied by an Affidavit in Support. The reliefs sought by the Complainants are as follows: (i) A declaration that the Complainants were declared redundant by the Respondent; (ii) Forty-two months (42) salary as damages for wrongful, unfair and unlawful termination of the Complainants by redundancy; (iii)The payment of the Complainants redundancy packages at the rate of two (02) months' salary for each year worked; JS (iv)An order that the Complainants be retained on the Respondent's payroll until the redundancy package is paid in full to the Complainants pursuant to Articles 187 and 189 of the Constitution; (v) Salaries arrears due to the Complainants from the date of termination by redundancy to the date the Complainants are paid in full; (vi) Interest (vii) Costs of and incidental to this action; and (viii) Any other relief that the court may deem fit 1.2 The grounds upon which the Complaint was made are as follows: (i) The Complainants were employed on oral, permanent contracts by the Respondent guards. (ii) The Respondent had a separate five (5) year contract with the United States of America Embassy that was independent from the oral, permanent contracts it entered into with the Complainants. (iii)The Respondent's contract with the United States of America Embassy was brought to end in 2018 thus abolishing the need for the position and services of the Complainants within the Respondent's business. (iv)The Respondent did not follow the redundancy procedure prior to termination of the Complainants employment by redundancy, particularly the need to consult each and every Complainant on mitigating the redundancy and minimizing its effects. (v) The Respondent failed, neglected and refused to pay the Complainants their redundancy packages amounting to two (02) months' salary for each year worked based on the Minimum Wage and Condition of Employment (General) Order which applied to the Complainants as guards. J6 (vi)The Complainants seek the indulgence of this court in granting remedies sought. 1.3 The Respondent filed an Amended Answer and supporting Affidavit on 15th January 2024, denying the Complainants claims. 1.4 The Complainants replied with an Affidavit dated 22nd January 2024. 1.5 By consent, the parties agreed to have judgment rendered based on the documentation before Court. 2. SUMMARY OF THE EVIDENCE The Complainants' case 2.1 The Complainants' case, as outlined in the supporting Affidavit sworn by Raphael Mvula on his own behalf and on behalf of 351 other Complainants listed in exhibit "RMl" is as follows: 2.2 The Respondent had a contract with the United States of America Embassy ("US Embassy") for provision of security services. The Complainants were employed by the Respondent on oral contracts as security guards to provide the security services. 2.3 Considering that the oral contracts had no pre-determined end date, the Complainants were on permanent contracts of employment. 2.4 Subsequently, the US Embassy terminated the Respondent's contract as evidenced by exhibit "RM2". 2.5 According to the Complainants, their contracts of employment were not tied to the Respondent's contract with the US Embassy. Consequently, they did not automatically expire when the Respondent's aforesaid contract was terminated. 2.6 Furthermore, the termination of the Respondent's contract entailed that it no longer required the Complainants' positions and services. This rendered the Complainants redundant. 2.7 Additionally, the Respondent informed the Complainant that they would be declared redundant. As a result, their termination and redundancy benefits would be calculated and duly paid to them. The J7 Respondent was thus aware of the duty to settle redundancy packages due to the Complainants. 2.8 This position is supported by exhibit "RMS", a copy of the computation of benefits for George Chilufya and Josephat Chisenga. 2.9 However, despite being declared redundant, the Respondent only settled the Complainants' last monthly salaries, but failed and/or neglected to settle their redundancy packages. The Respondent's failure to pay redundancy packages was based on its position that the Complainants purportedly served on fixed term contracts. This is reflected in exhibits "RM3" and "RM4", copies of the Respondent's correspondence with the Ministry of Labour. 2.10 The Complainants contend that the Respondents' position in relation to their employment is fallacious, incorrect and inaccurate. This was because the Complainants were permanently employed by the Respondent, notwithstanding the fixed term nature of the Respondent's contract with the US Embassy. Furthermore, none of the Complainants signed a contract of employment tying their employment to the duration of the contract between the Respondent and the US Embassy. 2.11 The Complainants sought the Ministry of Labour's intervention as evidenced by exhibits "RM6" and "RM7", copies of correspondence from the Ministry of Labour. The Ministry of Labour confirmed that the Complainants were declared redundant and entitled to redundancy packages. 2.12 In light of the foregoing, the Complainants were entitled to redundancy benefits with interest. The Respondent's case 2.13 The Respondent's case as outlined in its Answer and supporting Affidavit sworn by ALFRED LEGGET, the Vice President, Support Service in the Respondent Company is as follows: 2.14 On 14th December 2011, the Respondent was awarded a contract by the United States Department of State ("US Dos") for the provision of J8 local guard services at the US Embassy in the Lusaka, Zambia. The contract had a base period of one base, with four one-year option period. 2.15 Furthermore, on 1st April 2018, the US Dos extended the contract with the Respondent for an additional nine (9) months, until 31 st December 2018. Due to the said extension of the terms of contract, the Respondent employed the Complainants on a fixed term contract for a duration of nine months, commencing on 1st April 2018 to December 31 st 2018 as evidenced by exhibit "ALl", a copy of a contract of employment, between the Respondent and one of the Complainants Mr. George Chilufya. 2.16 During the Respondent's contract with the US Dos, the US Dos issued a Request for Proposal SAQMMAl 7RO744 to Security Firms for the provision of Local Guard Services for the duration of five years. The Respondent and other security firms submitted their proposals. 2.17 On 28 th August 2018, the US Dos awarded a new contract to G4S Security Integration LLC, and subsequently informed the Respondent that its proposal had not been accepted, as evidenced by exhibit "AL2". 2.18 Mr. Kenneth W. Crutcher, the Program Manager -Zambia, wrote a letter to the Respondents' employees, informing them of the non-award of a new contract by the US Dos (exhibit "AL3"). Consequently, the Respondent would not be renewing their contracts which where expiring on 31 st December 2018. 2.19 Contrary the Complainants claims, they served on fixed term contracts which expired on the 31 st December 2018. They were therefore not entitled to any redundancy packages. Furthermore, their contracts coincided with the US Dos contract which ended on 31 st December 2018. 2.20 On 25th October 2018, Mr. Kenneth W. Crutcher authored a letter to the Ministry of Labour and Social Security regarding the non-renewal J9 of the Guard Service Contract with the US Dos and employment compliance issues, as evidenced by exhibit "AL4". 2.21 The Complainants were paid their last salaries for the month of December 2018, and all accrued benefits entitled to them under their contracts of employment. Their contracts did not provide for redundancy nor did they provide for gratuity. 2.22 Considering that the Complainants contracts ran their full course and expired by effluxion of time, they could not claim that they served on permanent contracts of employment. 2.23 Regarding the redundancy benefits claim, the Complainants assertions are unattainable as their employment relationship with the Respondent was governed by a written contract which did not provide for redundancy packages. 2.24 The correspondence with the Ministry of Labour and resultant position on redundancy, alluded to by the Complainants, was within their peculiar knowledge. The Ministry of Labour and Social Security was availed with copies of written and signed contracts of employment, and upon being furnished with the same, they did not send or engage in any further correspondence with the Respondent. 2.25 The Respondent maintained the position that the Complainants were paid all their accrued benefits in accordance with the terms of their contracts of employment, and were therefore not entitled to any other relief claimed. The Complainants' case in reply 2.26 The Complainants entered into contracts with the Respondents which the US Dos was not a party nor privy to. The Respondent's relationship with the US Dos is and was irrelevant to the Complainants' relationship with the Respondent. Furthermore, the Respondent's contract with US Dos, was not a condition for the Complainants employment relationship with the Respondent. JlO 2.27 The Complainants reiterated that they were employed on oral permanent contracts by the Respondent as guards. The oral contracts of employment had no pre-determined end date, thus fortifying the Complainants case that they served on permanent contracts of employment. Additionally, there was no mention, either verbally or in writing that the duration of their contracts would be tied to the Respondent's contract with the US Dos. 2.28 The Respondent had produced a contract for Mr. George Chilufya, but failed to produce any contract (s) for any other Complainant. This demonstrated that the Complainants did not serve on any written contract as alleged. He further reiterated that the Complainants served the Respondent on oral contracts of employment without a pre determined end date, and thus served on permanent contracts of employment. 2.29 The Respondent failed to provide any evidence of the claimed written contracts of employment. 2.30 It would appear that as a result of the termination of the service contract between the Respondent and the US Dos, the Respondent no longer had any positions and services of the Complainants within its business in Zambia. 2.31 The Respondent, thus concluded that the Complainants, had to be declared redundant. A redundancy situation arose. 2.32 The Complainants reiterated that despite being declared redundant, the Respondent only settled their last monthly salaries, but failed and/ or neglected to settle any accrued leave days or redundancy packages. 2.33 Notwithstanding that their contracts did not provide for redundancy, they were entitled to redundancy as implied terms of their oral contracts and based on the facts that they are all vulnerable workers. 2.34 In any case, the Complainants were expressly informed by the Respondent that they would be declared redundant, and their Jll termination and redundancy packages would be calculated and duly paid to them. Additionally, the Respondent computed the Complainants' redundancy packages, and sent the same to the Ministry of Labour. 2.35 Due to the passage of time, some Complainants had lost their retirements package statements. 2.36 The Complainants further reiterated their attempt to resolve the matter through the Ministry of Labour, which confirmed their engagement on oral contracts, declaration of redundancy and their entitlement to redundancy packages. 2.37 The Complainants had suffered mental anguish, anxiety stress and inconvenience as a result of losing employment abruptly in an oppressive, traumatic manner following their redundancy. Furthermore, the Respondent failed to consult or follow any fair procedure and also refused to pay their redundancy packages. 2.38 Most of the Complainants had remained unemployed as a result of the Respondent's infringement of their rights with grim and dim prospects of alternative employment in the current Zambian economy. 3. SUBMISSIONS The Complainants' submissions 3.1 Regarding the redundancy claim, it was submitted that the Complainants were serving on oral permanent contract. They argued that the Respondent had failed to avail any written contacts that were duly signed by the Complainants to substantiate its allegations. 3.2 The Supreme Court case of Attorney General v. Katwishi Kapandula (1) was cited in the support of the position that for a court to rely on unchallenged evidence two conditions must be met. Firstly, there must be no other evidence that can be brought to support a claim. Secondly, it must be accepted that the truth is being told. Consequently, since there was no documentation to prove that the Complainants were not J12 on oral contracts, there was no reason to doubt that they were not telling the truth. 3.3 Section 24 (5) of the Employment Act, Chapter 268 of the Laws of Zambia, was also relied on. 3.4 It was submitted that the above provision applied to the Complainants, as it was the governing Jaw at the time of their employment. 3.5 Regarding the interpretation of Section 24 (5), reference was made to the High Court case of Gilbert Besa v. Chimwenda Investments Limited (2). It was stated that according to Section 24 (5), where a dispute arises and the employer fails to produce a record, the court shall take a statement of an employee as the truth. The rationale for this is to protect employees, who in some cases are not presented with their contracts of employment. This is why it is imperative for an employer to keep records of oral engagement or written contracts of employment as mandated by Jaw to defend itself from an employee's assertions to the contrary in court. 3.6 Considering the Respondent's failure to provide any written evidence or other evidence to the contrary that the Complainants were on oral contracts, the Complainants were engaged on oral contracts, and were also permanent employees. 3.7 Regarding the presumption that an employee whose contract does not state a duration is deemed to be permanent, the case of Secretary of State for Employment v. Globe Thread Company Limited (3), as affirmed in the High Court case of Albert Mupila v. Yu-Wei (4), was cited. 3.8 It was argued that the Complainants having served on oral permanent contracts of employment, their contracts were not tied to the Respondent's contract with the US Embassy. Accordingly, when the US Embassy contract with the Respondent was terminated, leading to the closure of the Respondent's business, the Complainants were declared redundant. On the nature of redundancy, the Supreme Court case of J13 Margaret Simeza and 52 Others v. Society for Family Health (5) was cited, where the Supreme Court held that redundancy is a form of employment termination. It happens when employers need to reduce their workforce. Furthermore, that in broad terms, there are two main redundancy situations: closure of the business and reduction in the size of the workforce. 3.9 In this case, the Complainants lost their employment when the Respondent lost a contract for security services. This resulted into closure of the business, thus rendering the Complainants redundant, and therefore entitled to a redundancy package. Further on circumstances that lead to redundancy the case of Frida Kabaso Phiri (sued as Country Director of Voluntary Services Overseas Zambia) v. Davies Tembo (6), was relied on. 3 .10 Reliance was also placed on the Supreme Court cases of Barclays Bank v. Zambia Union and Allied Financial and Allied Workers (7) and Central Province Co-operative Union v. Alisala Aison Mulambya (8), which both guided that Section 26B of the Employment Act, was intended to safeguard the interests of employees who were employed on oral contracts of service by which nature would not have any provision for termination of employment by way of redundancy. 3.11 It was submitted that Section 26B, applied to the Complainants and therefore, the Court was empowered to declare that the Complainants were declared redundant. 3.12 Regarding the claim for payment of forty-two months' salary as damages for wrongful, unfair and unlawful termination of the Complainants by redundancy, it was submitted that the record shows that the Complainants were declared redundant. However, the Respondent did not follow any redundancy procedure. On this argument, the Supreme Court cases of Chilanga Cement Plc v. Kasote Singogo (9) and National Milling Corporation v. Angela Chileshe Bwembya Silwamba (10) were cited. The Supreme Court emphasized J14 that considering that redundancies were planned activities, employers were required to undertake reasonable measures, such as notices and employee consultations, to minimize the impact of such redundancies. 3.13 On the strength of the above authority, it was submitted that failure to undertake appropriate mandatory consultations deems the redundancy automatically unfair and unlawful. 3.14 The Respondent's Affidavit did not reveal any consultations having taken place with the Complainants. Considering this, attempting to declare the Complainants redundant was unfair and wrongful. 3.15 To buttress the Complainants position, reliance was placed on the High Court case of Musonda Chizinga v. Capstone Management (11) and Court of Appeal case of Lumwana Mining Company Ltd v. Henry Nyambe and Others (12) which both highlighted the principle that a redundancy exercise begins by notification of the Labour Commissioner as provided for under Section 55 (2) of the Employment Code Act and further consultations with the affected employees to allow them to be heard. 3.16 In this case, failure by the Respondent to accord the Complainants any opportunity to be heard was an abrogation of a statutory right that the Complainants had as employees. 3.17 Furthermore, under the circumstances, the redundancy was carried out in bad faith, in unreasonable manner and contrary to the law. 3.18 Reliance was further placed on the High Court case of Musonda Chizinga v. Capstone Management Company Limited) in support of the position that reasons for redundancy must be substantiated to the Labour Commissioner through consultations. In this case, there was no evidence by the Respondent to the Commissioner justifying the Complainants termination by redundancy. 3.19 Based on the authorities cited, it was submitted that, considering that the redundancy was not carried in line with the procedure, and was Jl5 also substantially unfair, the Complainants were entitled to an award of damages. 3.20 On the quantum of damages, the case of Swarp Spinning Mills Pie v. Sebastian Chileshe and Others (13) was relied on, wherein, the Supreme Court guided that the normal measure is departed from where the termination may have been inflicted in a traumatic fashion which causes undue distress or mental suffering. 3.21 In this case, the normal measure in awarding of damages would be inadequate, and a higher sum should be awarded based on cited cases, among them the cases of Swarp Spinning Mills Pie supra, Attorney General v. John Tembo (14) and First Quantum Mining Operations Limited v Obby Yendamoh (15). 3.22 Furthermore, based on the case of Konkola Copper Mines Plc v. Aaron Chimfwembe and Kingstone Simbayi (16), it was submitted that the Complainants were all elderly gentlemen who served the Respondent for a long period of time, entitling them to a higher sum of damages. 3.23 Additionally, it was submitted that for an employee to be awarded damages beyond the notice period, the following must be proved: there was a blatant infringement and/or disregard of their rights, the rules of natural justice and/ or their contract of employment, that his/her employment was terminated in an abrupt, oppressive and/ or traumatic fashion, that it caused mental anguish, anxiety, inconvenience and stress, and that the employee's future job prospects and the economy when awarding these damages. 3.24 It was argued that based on the above criteria, the Complainants had provided sufficient basis and led evidence to satisfy the criteria for the award of damages, therefore entitled to the damages claimed. 3.25 Regarding the payment of the Complainants redundancy packages at the rate of two months' salary for each year worked, it was submitted that the Complainants are entitled to the relief for each year worked for Jl6 the Respondent in line with Regulation 10 of the Minimum Wages and Conditions of Employment (General) Order, Statutory Instrument No.2 of 2011. 3.26 Furthermore, the Complainants were security guards therefore covered under the General Order. The Supreme Court cases of Tiger Chicks (t/a Progressive Poultry Limited) v. Tembo Chrisford and Others (17) and Jennifer Nawa v. Standard Chartered Bank Zambia Pie (18), were cited as authorities. 3.27 It was further argued that as the record shows, the Respondent had prepared redundancy payment statements for all the Complainants. Therefore, the Respondent was estopped from denying payment of the redundancy package, relying on the Supreme Court case of Galaunia Farms Limited v. National Miling Company Limited (19). 3.28 It was further submitted that the Complainants were claiming both damages and redundancy, which is permissible as per the Supreme Court decision in the case of David Chiyengele and Others v. SCAN Limited (20). 3.29 Regarding, the claim for an order that the Complainants be retained on the Respondent's payroll until the redundancy package is paid in full, it was submitted that under Article 189 (2) of the Constitution, if a pension is not paid on the last of duty, the employer must retain the employee on the payroll until full payment. 3.30 The case of Lubunda Ngala and Jason Chulu v. Anti-Corruption Commission (21) was cited, where the Constitutional Court held that the mischief behind the enactment of Article 189, was plain and the intention was clear, namely, to cushion pensioners and retrenchees from the hardship they were experiencing as a result of delayed payment of their pension money or gratuity. 3.31 Considering the failure by the Respondent to pay the redundancy package on the last day of service, the Complainants were entitled to remain on the payroll until the redundancy package was paid in full. J17 3.32 Regarding the claim for interest, Section 2 of the Judgment Act, was cited, which provides that interest must be paid on all sums granted by the court. The Complainants must be awarded interest on the sums due. 3.33 On costs incidental to the action, it was submitted that the Court is governed by Rule 44 of the Industrial and Labour Relations Rules, and this claim was consequently withdrawn. 3.34 Regarding other reliefs claimed, it was submitted that the Complainants had demonstrated that they are entitled to all the reliefs sought. However, they will accept any further relief that could or should be awarded in the circumstances based on Section SSA of the Industrial and Labour Relations Act and Rule 55 of the Industrial and Labour Relations Rules. The Respondents' Submissions 3.35 It was argued that clause 8.5 of the Complainants' contracts of employment was very clear. The contracts stipulated when the contracts of employment would expire. The said clause reads; "employment shall terminate on the expiry of the short term contract period and there shall be no prior notification in this regard by the company or the employee". 3.36 The Complainants' claim hinged on the assertion that the employment was oral in nature, and that the Respondent failed to provide adequate notice and compensation upon termination as was prescribed under Part IV, Section 26B of the Employment Act. 3.37 It was conversely tendered that the documentary evidence submitted by the Respondent, including copies of the written contract clearly refutes the Complainants claim. 3.38 The Complainants were fully aware of the terms, having signed the contract at the beginning of their employment period. 3.39 Consequently, the Complainants assertion of an oral contract was not only factually incorrect, but also legally untenable given the evidence of J18 written agreements, and the lack of cogent evidence supporting the Complainants case. 3.40 Citing, the learned authors of Chitty on contracts, General Principles, Volume 1, 28th Edition (1999) at paragraph 12.002 on page 583, it was argued that once a document was signed by parties, they were bound by its contents, whether or not they had been ignorant of its legal effect. 3.41 The Supreme Court case of Zambia Export and Import Bank Limited v. Mkuyu Farms Limited and Ellias Sypron and Mary Ann Langley Sypron (22), was also cited, which confirms the position that an agreement is signed freely in the course of business practice, and a party has a choice not to sign. The. case of Friday Mwamba v. Sylvester Nthenge and (2) others (23), which alludes to parties' freedom to contract and enforcement was also cited. 3.42 Premised on the authorities cited, it was submitted that the Complainants and the Respondent entered into a legally binding agreement that was agreed upon by the respective parties. 3.43 The Complainants had an option not to sign the contracts of employment, but when they did, they became bound by the terms therein. They were barred from bringing a claim on the redundancy payments which was anchored on oral contracts, as prescribed under Section 26B of the Employment Act. 3.44 Regarding the claim that the Complainants were declared redundant by the Respondent, it was submitted that the law only applies prospectively and not retrospectively. 3.45 In the case of Jacob Nyoni v. The Attorney General (24) and the case of Nyambe and Others v. Konkola Copper Mine Pie (In Liquidation) (25), guides that a law that comes into effect after parties have entered a contract cannot apply to relations that were consummated previously. 3.46 Consequently, the legislation properly applicable in this case is the repealed Employment Act. Jl9 3.47 As per Section 26B of the Employment Act, redundancy was only applied to oral contracts of employment. The Respondent had proved that the Complainants were under a fixed term contract and not oral contracts as evidenced by the Respondent's exhibit "ALI", a copy of the written contract between the Complainants and the Respondent. The case of Siwale and others v. Council of the Copperbelt University (26), was cited in support of this position. 3.48 Citing the learned authors of A Comprehensive Guide to Employment Law in Zambia, redundancy typically applies to situations where an employee's position is no longer required, and the employer can no longer offer the same job usually due to economic, structural, or technological reasons. 3.49 It was reiterated that the Complainants contracts were specific in their duration and did not imply an indefinite employment relationship, and the Complainants claim of redundancy is therefore misplaced as redundancy under the Employment Act does not apply to fixed term contracts. 3.50 The Respondent fulfilled all contractual obligations, including contracts running their course and expiring by effluxion of time. 3.51 Furthermore, once a fixed contract comes to end, there is no automatic renewal of the same unless freshly negotiated and agreed by the parties. The cases of Dr. Richard Mwiinga v. Public Service Pension Fund Board and the Attorney General (27) and Zambia Revenue Authority v. Dorothy Mwanza and Others (28), were relied upon to buttress this argument. 3.52 Considering that the Complainants attempt to claim redundancy benefits is was not supported by the facts or the law, the claim for a declaration that the Complainants were declared redundant by the Respondent must fail. 3.53 Regarding the claim for forty-two months' salary as damages for wrongful, unfair and unlawful dismissal, counsel argued that it is not J20 clear how the said claim is attainable as the question of redundancy does not even arise in this matter. 3.54 The written contracts explicitly stated the duration of the contract of employment which the Complainants were fully aware of. Furthermore, the Respondent adhered to the terms of the contract and there was no sudden or unexpected termination, and the Complainants were not at any point declared redundant. Consequently, Regulation 10 of the Minimum Wages and Conditions of Employment (General) Order 2011, does not apply to the case herein because the termination was not a redundancy. Additionally, as stated in Chilanga Cement case, Section 26B of the Employment Act, does not apply to termination by way of redundancy of written contracts. 3.55 It was submitted that a basic principle of contract demands that damages are only granted in the case of breach of contract. It was further submitted that the seminal Swarp Spinning case, clarifies that the damages will ordinarily be equal to the wages for the notice period. Citing the case of McCall v. Abelesz and another (29), it was submitted that for a claim of mental anguish to be successful, there must be clear evidence of both the mental distress suffered and its direct causation by the breach of the Respondent. 3.56 It was further submitted that the case of McCall, is tandem with the sentiments of the authors of the book A Comprehensive Guide to Employment in Zambia, who at page 427 state that for an employee to successfully claim for these damages, an employee must first prove that the termination or dismissal was either unlawful, unfair or in breach of contract and prove the mental stress and inconvenience. Therefore, an employee cannot claim enhanced damages if not successful with their claim for breach of contract and eligible for the ordinary remedies highlighted above. 3.57 In this case, the Complainants had not provided any medical or psychological evidence to support their claim of mental anguish. h J21 3.58 Furthermore, they had not proved any breach of contract of employment, which caused the purported mental anguish they suffered. 3.59 Additionally, they could not rely on the Swarp Milling case, to demonstrate that the purported termination was inflicted in a traumatic or abrupt fashion. They were fully aware that the contracts had an expired date, and the Respondent further authored a letter to the employees informing them that the Respondent would not renew their contracts after their expiration on 31 st December 2018 as shown by exhibit "AL3". 3.60 Reference was also made to the Chilanga Cement case, to demonstrate that the Complainants had not met the threshold of placing their case under the ambit of exceptional cases, which would warrant an award for torture and mental distress. The Complainants case was further weakened by lack of any contemporaneous complaints or communications indicating any distress at the time of termination. 3.61 It was argued that the Complainants claim was an afterthought raised only as a means to seek additional compensation. 3.62 Rather, the termination as undertaken by the Respondent was not wrongful, unfair or unlawful, but conducted in accordance with the law and the Complainants contracts of employment. 3.63 Submitting on the claim for payment of the Complainants redundancy packages at the rate of two months' salary for each year worked, it was argued that as demonstrated, a claim for redundancy is not tenable in this case. 3.64 Regarding, the claim for retention of the Complainants on the Respondent's payroll, it was submitted that the Respondent had fully complied with the Constitutional requirement in Article 189 (2) of the Constitution. All accrued and terminal benefits had been duly paid to the employees. The Respondent had upheld legal obligations and J22 ensurmg that the rights of the employees were fully respected and honored. 3.65 Relying on the cases of Kitwe City Council v. William Ng'uni (30), and Zambia National Building Society v. Ernest Mukwamataba Nayunda (31), it was submitted that the Complainants are barred from making a claim seeking to benefit twice from the same facts as the same would constitute unjust enrichment. 3.66 Regarding the burden of proof, reference was made to the learned authors of Phipson on Evidence, 14th Edition, paragraph 402 at page 50, and the cases of Constantine Line v. Imperial Smelting Corporation (32) and Eston Banda and another v. Attorney General (33), in support of the position that the burden of proof lies upon the party who substantially asserts the affirmative of the issue. In this case, the Complainants had failed to adduce concrete evidence on a balance of probabilities to prove their claims. They withheld material evidence and opted to misled the Court that they never signed any written contracts of employment. 3.67 In light of the submissions and supporting authorities relied on, this Court should dismiss the Complainants claims in their entirety as they are unsupported by the evidence and contrary to the terms of the written contract. The Complainant's submissions in reply 3.68 The gist of the Complainants' submissions in reply, was wholly a restatement of the arguments in the main submissions, which countered the Respondent's submissions. 3.69 It was in conclusion reiterated that the Complainants had satisfied their obligation to be entitled to the claims before the court. On the other hand, the Respondent had not discharged its obligation to disapprove the claims as outlined. 4. FINDING OF FACTS 4.1 The following facts are not in dispute: J23 (i) The Complainants were employed as security guards by the Respondent; (ii) The Respondent had a contract with the US Dos for the provision of local guard services at the US Embassy in the Lusaka, Zambia; (iii) The Respondent's last contract with the US Dos would expire on 31st December 2018; (iv) The Respondent's contract was not renewed following its unsuccessful bid for a new five-year contract, as the tender for security services was awarded to another security company G4S Secure Integration LLC; (v) The Respondent, through Mr. Kenneth W. Crutcher, the Program Manager -Zambia, wrote a letter to its employees, informing them of the non-award of a new contract by the US Dos, and consequently, the Respondent would not be renewing their contracts which where expiring on 31 st December 2018. (vi) The Respondent ceased carrying on business in Zambia m January 2019. 5. ISSUES FOR DETERMINATION 5.1 The central issues for determination by this Court are as follows: (i) Which party bears the burden of proof in these proceedings: the Complainants or the Respondent? (ii) Whether the Complainants' contracts of employment with the Respondent were governed by written fixed-term agreements or constituted oral contracts of permanent. (iii) Whether the written contract of employment produced and marked as Exhibit "ALl ", executed between the Respondent and Mr. George Chilufya, has any evidentiary or legal bearing on the contractual status of the remaining Complainants. (iv) Whether the Complainants are entitled to the reliefs sought. 6. ANALYSIS AND DETERMINATION J24 6.1 I will now proceed to determine the above issues ad seriatim. i. Which party bears the burden of proof in these proceedings: the Complainants or the Respondent? 6.2 I have noted the rival submissions on the issue. 6.3 In the case of African Banking Corporation v. Bernard Fungamwango (34), the Court of Appeal held that: It is not in dispute that the legal burden of proof in civil action is borne by the plaintiff. The burden of adducing evidence is generally borne by the party bearing the burden of proof. However, when it comes to adducing evidence, the burden (evidential burden) shifts. 6.4 Based on the preceding, it is trite that the plaintiff bears the legal or persuasive burden of proof throughout the trial of the matter to prove their claims. 6.5 Though the case of Raila Odinga and Others v. Independent Electoral and Boundaries Commission and Others (35) is an election petition determined by the Supreme Court of Kenya, it is cited here for its persuasive articulation of a broader evidentiary principle. The Court emphasized that while the legal burden of proof remains with the claimant throughout, the evidential burden may shift depending on how effectively that burden is discharged at various stages of the case. The Court stated: The legal burden rests on the petitioner, but, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting ... It falls to the court to determine whether a firm and unanswered case has been made. J25 6.6 This reasoning, while arising in an electoral context, affirms a well established evidential doctrine equally applicable in employment law: once a prima facie case has been laid. 6.7 It follows that while the Complainants bear the burden of proving their claims, the burden may shift at various stages, between the Complainants and Respondent. Furthermore, drawing from the principle set out in African Banking Corporation v. Lazarous Muntente (36), where an evidential burden is placed by statute, the party requiring to adduce evidence on a particular aspect, shall bear the burden of proof. 6.8 Before proceeding further in this analysis, I find it necessary to determine the legal framework under which the Complainants' claims are to be assessed. The evidence shows that the Respondent terminated the Complainants' contracts in December 2018. At the material time, the Employment Code Act, No. 3 of 2019, had not yet come into force. 6. 9 I therefore hold that this matter is governed by the repealed Employment Act, Chapter 268 of the Laws of Zambia, which was in force at the time. ii. Whether the Complainants' contracts of employment with the Respondent were governed by written fixed-term agreements or constituted oral permanent contracts 6.10 The Complainants contended that their contracts of employment with the Respondent were oral and permanent in nature, thereby entitling them to redundancy benefits upon termination. 6.11 In contrast, the Respondent argued that the employment relationship was governed by written fixed-term contracts which coincided with the tenure of the Respondent's external engagement with the US Dos. To support this claim, the Respondent exhibited a single written contract of employment (exhibit "ALl''). J26 6.12 Relying on the common law doctrine of privity of contract, as articulated in Daniel Peyala v. Zambia Consolidated Copper Mines Ltd (37), the Complainants submitted that exhibit "ALl" could not bind or define the employment terms of persons who were not privy to it. They emphasized that this document was executed exclusively between the Respondent and Mr. George Chilufya, and as such, cannot be relied upon to define or limit the employment rights of the other Complainants. 6.13 Upon close examination, I note that exhibit "ALl" was executed solely between Torres Advanced Enterprise Solutions (the Respondent) and Mr. George Chilufya, who appears as Complainant number 73 on the verified list annexed to the Complainants' affidavits filed on 22 November 2023 and 22 January 2024, respectively. Clause 3.1 of the contract reflects that the term of employment was fixed for nine (9) months, commencing on 1st April 2018 and expiring on 31 st December 2018. 6.14 I accordingly find that the said contract was binding solely between the Respondent and Mr. George Chilufya and cannot, either by operation of law or implication, be deemed to extend to the other Complainants. While the Respondent asserted that all other Complainants were similarly engaged on fixed term written contracts, it failed to produce additional contracts relating to the said Complainants. This was the case even when expressly advised by the Ministry of Labour, as the evidence demonstrates. 6.15 Once the Respondent pleaded that the Complainants were employed under fixed term written agreements, the evidentiary burden fell upon it to produce such documents. This burden was not discharged. The legal maxim he who alleges must prove applies with full force under the circumstances. This position was reiterated in Ireen Kafula Banda v. Zambia Bata Shoe Company Pie (38), where the Supreme Court held: J27 In this case, we have perused through the record and we have not seen any written contract of employment between the parties. In the absence of such a contract, we cannot fault the court below for making a finding that the appellant was on oral contract. 6.16 It follows that the party who asserts a written agreement must produce it to substantiate its contents. Mere allegations without evidence do not suffice. 6.17 Furthermore, Section 24(5) of the Employment Act, provided: Where any dispute arises as to terms and conditions of an oral contract other than a contract for employment of a casual employee, and the employee fails to produce a record of such contract made in accordance with the provisions of this section, the statement of the employee as to the nature of the terms and conditions shall be receivable as evidence of such terms and conditions unless the employer satisfies the court to the contrary. 6.18 Considering the foregoing, and save for Mr. George Chilufya, I find that the Complainants' employment relationships with the Respondent were not governed by written fixed-term con tr-acts. In the absence of contrary evidence, the presumption of oral permanent contracts, understood to be ongoing, until lawfully terminated must stand. iii. Whether the written contract of employment produced as Exhibit "ALl" between the Respondent and GEORGE CHILUFYA in any way affects the contractual rights of the other Complainants 6.19 It is trite law that a contract does not confer rights or impose obligations upon persons who are not parties to it. As stated in Chitty on J28 Contracts, General Principles, Vol. 1, 28th Ed. (1999), para. 19-001, p. 959: Under the common law doctrine of privity of contract, the general rule is that contracts cannot be enforced either by or against third parties... A contract cannot impose liability except upon a party to it. 6.20 This principle was affirmed by the Supreme Court of Zambia in Attorney General v. Seong San Company Limited (39), where the Court held: We agree with counsel that the common law doctrine of privity of contract in general does not confer rights nor impose obligations on persons who are not parties to it. 6.21 As previously discussed in this judgment, it is beyond dispute that the parties to exhibit "ALl" are the Respondent and Mr. George Chilufya. The contract was executed without reference to or inclusion of any other Complainant. Accordingly, I find that the terms and conditions of that contract are binding only upon the parties thereto and cannot be extended to the other Complainants who were not privy to it. 6.22 I therefore hold that the Respondent's reliance on exhibit "ALl" succeeds only in relation to Mr. George Chilufya and fails in respect of the remaining Complainants. I reiterate that the Respondent's argument that all Complainants were employed under similar written fixed-term contracts is unsupported by evidence and cannot be sustained. 6.23 I shall now proceed to consider the reliefs sought by the Complainants, addressing each in turn. The first is: a) Whether the Complainants' contracts of employment were terminated by reason of redundancy J29 6.22 Section 26B of the Employment Act, provides: The contract of service of an employee shall be deemed to have been terminated by reason of redundancy if the termination is wholly or in part due to- (a) the employer ceasing or intending to cease to carry on the business by virtue of which the employee was engaged;or (b) the business ceasing or reducing the requirement for the employee to carry out work of a particular kind in the place where the employee was engaged and the business remains a viable going concern. 6.23 The Supreme Court in Frida Kabaso Phiri supra, held: A redundancy takes place when an employer decides that the employee's position and/ or services are no longer required and, therefore, the position must be abolished. 6.24 Similarly, in Oliver Bwalya v. Zambia Telecommunications Company Limited (40), the Court stated: The term redundancy generally involves a state of being no longer in employment on account that there is no more work available. 6.26 The Respondent's position, as disclosed in its affidavit evidence and supporting exhibits, is that on 14th December 2011, it was awarded a contract by the US Dos for the provision of local guard services at the U. S. Embassy in Lusaka. The contract had a base period of one year, with four optional one-year extensions. The Respondent submitted a J30 proposal for a new five-year contract but was unsuccessful. On 28th August 2018, the contract was awarded to G4S Secure Integration LLC, and the Respondent was formally notified by letter, exhibit "AL2". 6.27 Following this development, the Respondent, through its Program Manager for Zambia, Mr. Kenneth W. Crutcher, authored a notice to its employees, exhibit "AL3", informing them that their contracts would not be renewed beyond 31 st December 2018. The Respondent also notified the Ministry of Labour and Social Security by letter dated 25th October 2018, exhibit "AL4", explaining that it could no longer sustain operations in Zambia due to the loss of the U. S. Embassy contract and sought guidance on compliance with Zambian labour laws regarding final pay and allowances. 6.28 The Respondent's defence, therefore, is that the Complainants' employment was contractually tied to the U. S. Embassy contract, and that the expiration of that external contract automatically brought the Complainants' employment to an end. It argues that this was not a redundancy situation but a natural expiry of fixed-term contracts. 6.29 However, as previously found, the Respondent failed to produce written fixed-term contracts for the Complainants, save for Mr. George Chilufya. I have already found that I am entitled to presume that the Complainants were employed under oral permanent contracts, understood by the parties to be ongoing, until lawfully terminated. 6.30 In the present case, the Respondent's own correspondence, particularly exhibit "AL4", confirms that it ceased operations in Zambia following the loss of the U. S. Embassy contract. It explicitly stated that it could no longer sustain business and sought guidance on final payments. This is a textbook example of redundancy under Section 26B(l)(a) of the Employment Act. 6.31 Furthermore, the Respondent's correspondence dated 17th December 2018, addressed to all its employees and specifically to Mr. George J31 Chilufya, demonstrates a clear acknowledgment that the employees were being declared redundant. The relevant portion of the letter reads: This letter serves to inform you that Torres AES will present to you your final pay package in accordance with Zambian Labour Laws. As the law states, redundancy will be paid at two months' salary for each year of service completed. Our records indicate that you joined Torres on the date of 30-Apr-16 to 31 December 2018 amounting to 2 completed years of service to Torres. Therefore, your final pay due is tabulated below: Number of Leave Days: Rate KS.48 Salary K3, 782. 75 Leave Pay Kl,380.96 Redundancy KS,786.88 Estimated Total Amount Due Kl0,950,59 6.32 A similar letter of the same date was issued to Mr. Josephat Chisenga, worded in substantially identical terms, save for the individualized computation of entitlements. 6.33 These letters not only corroborate the Complainants' claim that their terminations amounted to redundancy, but also constitute an express admission by the Respondent that it was treating the situation as such. I therefore find, on a balance of probabilities, that the Respondent acknowledged that the Complainants were declared redundant. 6.34 As such, the argument advanced by the Respondent, that the Complainants' employment expired purely by operation of time following the termination of the U. S. Embassy contract, cannot shield it from liability for statutory redundancy obligations. The burden of proving that each Complainant's employment was for a defined term that concluded with the cessation of the Respondent's external contract lay squarely on the Respondent, and it failed to discharge that burden. 6.35 Considering the foregoing, I find and declare that the Respondent's termination of the Complainants' employment was by reason of J32 redundancy. The cessation of the U. S. Embassy contract may have triggered the operational change, but in law, the Respondent ceased to carry on the business by virtue of which the Complainants were engaged. The statutory definition of redundancy is therefore satisfied. (b) Whether the Complainants are entitled to 42 months' salary as damages for wrongful, unfair and unlawful termination of the Complainants by redundancy 6.36 Before I can grant relief in favour of the Complainants, I must first satisfy myself that the manner in which the Respondent terminated their employment was unlawful, wrongful, or procedurally unfair. 6.37 Section 26B(2) of the Employment Act, provides that: Whenever an employer intends to terminate a contract of employment for reasons of redundancy, the employer shall- (a) Provide notice of not less than thirty days to the representative of the employee on the impending redundancies and inform the representative on the number of employees to be affected and the period within which the termination is intended to be carried out; (b) Afford the representative of an employee an opportunity for consultations on- (i) The measures to be taken to minimize the terminations and adverse effects on the employees; (ii) The measures to be taken to mitigate the adverse effects on the employees concerned including finding alternative employment for the affected employees; (c) Not less than sixty days prior to effecting the termination, notify the proper officer of the impending terminations by J33 reasons of redundancy and submit to that officer information on- (i) (ii) The reasons for the termination by redundancy; The number and categories of employees likely to be affected; (iii) The period within which the redundancies are to be effected; and (iv) The nature of the redundancy package. 6.38 In light of the above, I must determine whether the Respondent complied with these mandatory procedural requirements prior to terminating the Complainants' employment. Whether the Respondent gave a notice of not less than thirty days to the employees 6.39 As already noted above, following notification from the U. S. Embassy, that the Respondent, had not been awarded the renewed contract, its Program Manager, Mr. Crutcher, authored a letter to all affected employees informing them that their contracts would expire on 31st December 2018. This letter was produced as exhibit "AL3". 6.40 I note, however, that exhibit "AL3" is undated. On its face, this rriakes it difficult to ascertain whether the letter was issued at least thirty days prior to the effective date of termination. 6.41 Nevertheless, in a subsequent letter to the Ministry of Labour and Social Security dated 20th July 2019, authored by Mr. Cornelius Medley, the Respondent's Director of Operations, it was stated that the Respondent was notified of the unsuccessful bid on 18th July 2018 and that employees were informed shortly thereafter that their contracts would conclude on 31 st December 2018. 6.42 Further, in exhibit "AL4", a letter dated 25th October 2018 authored by Mr. Crutcher to the Ministry of Labour, the Respondent stated: J34 Torres has begun our transition with the U. S. Embassy, our employees, and the successful vendor. Our plan is to have a smooth transition with all parties affected, especially our employees. 6.43 The same letter continues: We are preparing official written contract completion notification for each employee. We seek your assistance in this matter because we want to ensure we are compliant with all Zambian Labour Laws. 6.43 Under the circumstances, considering that the Complainants did not allege any breach of Section 26B(2)(a), I am unable to find that the notice to employees was in breach of the said provision. 6.44 I therefore find, on a balance of probabilities, that the Respondent did issue notice to the employees at least thirty days prior to the effective date of termination. Accordingly, this requirement under Section 26B(2)(a) was satisfied. Consultation with the employees 6.45 The Complainants contend that prior to the termination of their employment by redundancy, the Respondent neither engaged in any consultation nor undertook the procedure in good faith. They submit that this omission rendered the termination procedurally unfair and unlawful. 6.46 It is evident that even under the Employment Act, which governs this dispute, consultation was a mandatory procedural safeguard. Its purpose was to afford an opportunity for the employer and employees (or their representatives) to explore measures to minimize adverse impacts, including the possibility of redeployment or mitigating redundancy effects. The importance of meaningful consultation in J35 redundancy processes has been recognized in a range of authorities, including Chilanga Cement (supra). 6.47 Having already found, on a balance of probabilities, that the Respondent acknowledged the existence of a redundancy situation, as evidenced by the letters dated 17th December 2018 (exhibit "RMS"), it follows that the procedural obligations under Section_ 26B(2)(b) of the Employment Act were triggered in full. In particular, the duty to consult arose by operation of law, and could not be waived or avoided simply by characterizing the termination as contract expiry. 6.48 The Respondent's notice to employees, demonstrates that the it anticipated a pathway for transition and continuity of employment for the affected staff under the successor contractor. However, while it undertook to coordinate with G4S, there is no evidence that the Respondent, consulted the Complainants to explain this arrangement, confirm their interest, or provide any details on the terms or process of such a transition. There is no evidence that the affected employees were informed, engaged, or asked for input about the redundancy itself or the stated arrangement. 6.49 That omission, of direct, participatory dialogue with the very individuals affected, fell short of the procedural obligations imposed under Section 26B(2)(b) of the Employment Act. 6.50 The absence of consultation underscores procedural unfairness in the manner in which the employment relationships were terminated through redundancy. Whether the Respondent gave not less than sixty (60) days' notice to the proper officer, accompanied by reasons for termination by redundancy. number and categories of employees likely to be affected, the period within which the redundancy was to be effected, and the nature of the redundancy package 6.51 The Respondent's letter dated 25th October 2018 (exhibits "AL4" and "RM3"), addressed to the Ministry of Labour and Social Security, J36 indicated that it would be closing its business operations in Zambia in January 2019. It cited as the reason the non-award of its contract with the U. S. Embassy for the provision of security services, and further stated that it could no longer sustain operations as a business in Zambia. 6.52 As previously found, a redundancy situation did arise. Moreover, in exhibit "RMS", I found corroboration that the Respondent had expressly acknowledged the existence of redundancy in its communication to employees. In that context, I am satisfied that the Respondent, in its letter to the Ministry, indicated the reason for redundancy and the anticipated timeframe within which the termination would be effected. 6.53 However, the said letter did not specify the number or categories of employees likely to be affected, nor did it detail the nature of the redundancy package to be offered to the affected employees. Instead, the Respondent requested guidance from the Ministry on compliance with Zambian labour law regarding final pay and allowances. 6.54 In my view, the omission relating to the number of affected employees and the specific redundancy package, while not in strict compliance with Section 26B(2l(c) of the Employment Act, does not, on the facts of this case, amount to a fatal procedural breach. The Respondent gave notice of not less than sixty days in advance of the intended closure, and the correspondence revealed a clear intention to engage the Ministry proactively for lawful compliance. I therefore find that the sixty-day notice requirement was substantively met, even though the notice was not entirely comprehensive in form. Concluding analysis 6.55 In the Lumwana Mining Company Limited case, the Court of Appeal at page J.23-J.24, paragraphs 9.33-9.35, held: J37 Having taken into account how the appellant declared the Respondent's redundant without consulting them we can infer that it fell within one of the factors highlighted in paragraph 9.32 of this Judgment. We take the firm view that damages are justified on the following grounds: (1) There was breach of employment law. (2) There was the breach of the right to fair procedure; employees have a right to fair treatment and a proper procedure during redundancy processes. Lack of consultations can be seen as a denial of this right, justifying damages. (3) Emotional and financial impact; sudden redundancy without consultation can cause significant emotional distress and financial hardship to the employee. Compensation can help mitigate these effects. (4) Loss of opportunity for alternative solutions; consultations allow employees to discuss alternative solutions to redundancy such as re-deployment. Without this opportunity, employees may miss out on possible solutions warranting compensation. 6.56 The court continued and held as follows: In light of the above, in our eyes, the Respondents are indeed entitled to damages beyond the notice period. However, we take the view that the 12 months award was excessive given the circumstances of this case and we accordingly set it aside. We order that the Respondents be paid (03) three months salaries as damages. J38 6.57 In the case of Kayombo and Others v. Quattro Company Limited (41), the Court of Appeal applied the case of Mugford v. Midland Bank Plc (42), in which the United Kingdom Employment Tribunal held as follows: (l)Where no consultation about redundancy has taken place with either the trade union or the employee, the dismissal will normally be unfair, unless the Industrial Tribunal finds that a reasonable employer would have concluded that consultation would be an utterly futile exercise in the particular circumstances of the case. (2) Consultation with the Trade Union over selection criteria does not of itself release the employer from considering with the employee individually his being identified for redundancy. (3) It will be a question of fact and degree for the Industrial Tribunal to consider whether consultation with the individual and/ or his union was so inadequate as to render the dismissal unfair. A lack of consultation in particular respect will not automatically lead to that result. The overall picture must be reviewed by the tribunal up to the date of termination to ascertain whether the employer has or has not acted reasonably in dismissing the employee on the grounds of redundancy. 6.58 Arising from the Mugford conclusions above, the court at page J.9 stated the following: From the above conclusions, we would hold that the position as regards consultations is a matter best left to J39 the discretion of the trial court to decide whether lack of it was an act of unreasonableness on the part of the employer where statute so provide. 6.59 In this case, while it is accepted that the contract with the U. S. Embassy had been lost and the Respondent's operations were winding down, the very existence of a potential redeployment opportunity with G4S required engagement. Proper consultations would have allowed the employees to understand their options, express preferences, or seek assurances, if not continuity, then at least clarity. 6.60 Against this backdrop, I find that the redundancy was substantively lawful, as it arose from a genuine operational cessation. However, the failure to consult, particularly in circumstances where the Respondent envisaged continued employment for the Complainants with G4S, rendered the process procedurally unfair and unreasonable, entitling the Complainants to an award of damages. 6.61 I now turn to the issue of quantum. 6.62 I have considered the Complainants' argument, rooted in the Swarp Spinning Mills Limited case, that this Court should depart from the normal measure of damages and award an enhanced sum of forty-two months' salary, citing emotional and economic impact. In that case, the Supreme Court held that the normal measure is departed from where the circumstances and the justice of the case so demand. The lower court's discretion to increase damages due to the traumatic and high handed nature of the termination, was upheld. The Court emphasised that emotional trauma, abruptness, and any other applicable situation may, in exceptional cases, justify a departure from the standard scale. 6.63 However, I am not persuaded that the factual circumstances of the present case align with Swarp Spinning Mills Limited. There is no evidence before this Court that the termination itself was abrupt or J40 executed in a traumatic or high-handed fashion. The Respondent gave not less than sixty days' notice to the Ministry of Labour and approximately thirty days' notice to affected employees. There is no evidence before this Court that the Complainants were terminated without communication or subjected to indignity. 6.64 Consequently, I find the sum of forty-two months' salary as damages, disproportionate to the facts, and excessive even where unreasonableness is established. 6.65 In this case, accordingly, I award to each Complainant one months' salary as reasonable damages. This award reflects the procedural unreasonableness of the Respondent's omission to consult, and affirms the protective purpose of Section 26B(2)(b). {c) Claim for payment of the Complainant's redundancy packages at the rate of two (2) months' salary for each year worked 6.66 The Minimum Wage and Conditions of Employment (General Order) 2011, provides that: Where an employee's contract of service is terminated by reason of redundancy, the employee shall be entitled to at least one month's notice and redundancy benefits of not less than two months' basic pay for each completed year of service. 6.67 Having found that the Complainants were declared redundant by the Respondent, I hereby grant them the relief for payment of redundancy packages at the rate of two (2) months' basic pay for each completed year of service. This award is granted to all affected Complainants except one, Mr. George Chilufya, in respect of whom the Respondent has demonstrated that he was serving under a fixed-term written contract. J41 6.68 In relation to Mr. Chilufya's position, I am fortified by the guidance of the Supreme Court in Barclays Bank (Z) Plc, Chilanga Cement, and more recently in Siwale and Others, which hold that Section 26B of the Employment Act, applied only to oral contracts of service. (d) Whether the Complainants are entitled to be retained on the Respondent's payroll until payment of their redundancy packages, pursuant to Articles 187 and 189 of the Constitution 6.69 The Complainants also seek an order that they be retained on the Respondent's payroll until their redundancy packages are fully paid, in line with Articles 187 and 189 of the Constitution of Zambia. 6.70 Article 189 provides: (1) A pension benefit shall be paid promptly and regularly. (2) Where a pension benefit is not paid on a person's last working day, that person shall stop work but the person's name shall be retained on the payroll, until payment of the pension benefit based on the last salary received by that person while on the payroll. 6.71 The rationale for Article 189(2), as articulated by the Constitutional Court in the Lubunda Ngala & Jason Chulu case. to cushion pensioners and retrenchees from economic hardship caused by the delay in receiving their terminal benefits. 6.72 In Owen Mayapi & Others v. Attorney General (43), the Constitutional Court reaffirmed this rationale, stating at page J3 l: The phrase retained on the payroll means that such retirees will continue to be paid what they were getting through the payroll at the time of their retirement. This, we opine, is premised on the need to maintain the status J42 quo of a retiree who, for no fault of his/her own, has not accessed his/her pension benefits. 6. 73 In Anderson Mwale & Others v. Zambia Open University (44), the Constitutional Court clarified that the phrase "pension benefit" under Articles 187, 189, and 266 encompasses entitlements granted under pension legislation or any other law regulating an employee's conditions of service. 6.74 I further considered the holding in McQueen Zenzo Zaza v. ZESCO Limited (45), in which the Constitutional Court, held: The Petitioner has sufficiently shown that the compensation due to him upon termination of his employment, which was termed as a redundancy package, qualified for consideration under the provisions of Article 189 of the Constitution. This payment was akin to compensation or similar allowance listed in the definition of pension benefit. 6. 75 I am satisfied, on the strength of the above authority and the provisions of Minimum Wages and Conditions of Employment (General) Order 2011, that a statutory redundancy package qualifies as a pension benefit for purposes of Article 189. The definition of pension benefit under Article 266 is inclusive of "gratuity, compensation, or other similar allowances," which captures redundancy packages payable by law. 6.76 I now turn to the evidence. It is undisputed that the Complainants' last pay from the Respondent was in December 2018, the same month their contracts were terminated. There is no evidence that redundancy packages, as prescribed under Minimum Wages and Conditions of Employment (General) Order, were paid thereafter. J43 6. 77 The Respondent contends that all terminal benefits were paid, and that the Complainants' claim amounts to unjust enrichment. In support, the Respondent relies on the decision in Kitwe City Council, in which the Supreme Court held that salary cannot be awarded for a period not worked, as doing so would result in unjust enrichment. 6. 78 I find that Kitwe City Council is distinguishable. The present matter concerns a constitutional obligation triggered by the non-payment of a statutory terminal benefit, not a speculative claim for salary post employment. The principle in Kitwe City Council cannot override the express provision in Article 189(2), as interpreted in binding precedent of the Constitutional Court. 6. 79 I am also cognisant of the fact that the Respondent ceased its operations in Zambia following loss of contract with the U. S. Embassy. However, as held in Owen Mayapi and Mcqueen Zaza, the duty to retain an employee on the payroll under Article 189(2) is not qualified by the employer's operational status. The trigger is clear, where a pension benefit remains unpaid on the last working day, the employee must be retained on the payroll until that obligation is discharged. It is a legal duty, not a discretionary measure. 6.80 In the premises, having found that the Complainants were declared redundant, are entitled to redundancy packages under Minimum Wages and Conditions of Employment (General) Order, and have not received payment to date, I accordingly grant the relief sought. The Complainants shall be retained on the Respondent's payroll, effective the date of termination, until full payment of their redundancy packages. (e) Claim for salary arrears from the date of termination until payment in full 6.81 Having granted an order that the Complainants be retained on the Respondent's payroll until full payment of their redundancy packages, pursuant to Article 189(2) of the Constitution, I am of the view that J44 the claim for salary arrears over the same period amounts to a duplication of that constitutional entitlement claim. The protective mechanism under Article 189 already contemplates the maintenance of the affected employee's status on the payroll until the pension benefit is paid. Accordingly, I decline to grant a separate award under this head, as it would result in double recovery for the same underlying relief. (f) Interest on the sums due 6.82 I hold that the amount due to the entitled Complainants in this matter shall attract interest at short term bank deposit rate from the date of the Notice of Complaint to the date of Judgment and thereafter, at current bank lending rate as determined by the Bank of Zambia. (g) Costs of and incidental to this action 6.83 Pursuant to Rule 44 of the Industrial and Labour Relations Court Rules, costs may only be awarded where there is frivolity, vexatious conduct, or unreasonable delay attributable to a party. Considering that no such evidence exists in this case, each party shall bear its own costs. 7. CONCLUSION 7.1 For reasons stated above, I make the following orders: (i) A declaration that the Complainants were declared redundant by the Respondent It is hereby declared that the Complainants, save for Mr. George Chilufya, were declared redundant by the Respondent. (ii) Forty-two months (42) salary as damages for wrongful, unfair and unlawful termination of the Complainants by redundancy Each Complainant, save for Mr. George Chilufya, is awarded one months' salary as damages for procedural unfairness arising from the Respondent's failure to conduct consultations during the redundancy process. ' J45 (iii) The payment of the Complainants redundancy packages at the rate of two (02) months' salary for each year worked The Respondent shall pay !a.ch Complainant, save for Mr. George Chilufya, redundancy benefits at the rate of two months' salary for each completed year of service. (iv) An order that the Complainants be retained on the Respondent's payroll until the redundancy package is paid in full to the Complainants pursuant to Articles 187 and 189 of the Constitution The Respondent shall retain each Complainant, save for Mr. George Chilufya, on its payroll, with effect from the date of termination, until the full payment of their redundancy packages. (v) Salaries arrears due to the Complainants from the date of termination by redundancy to the date the Complainants are paid in full. Having granted an order that the Complainants be retained on the Respondent's payroll until full payment of their redundancy packages, pursuant to Article 189(2) of the Constitution, the claim for salary arrears over the same period amounts to a duplication of that constitutional entitlement claim. I decline to grant a separate award under this head. (vi) Interest The amounts due to the entitled Complainants in this matter shall be computed by the Registrar and attract interest at short term bank deposit rate from the date of the Notice of Complaint to the date of Judgment and thereafter, at current bank lending rate as determined by the Bank of Zambia. (vii) Costs of and incidental to this action Each party shall bear its own costs (viii) Any other relief that the court may deem fit J46 The Complainants are not entitled any other reliefs save for the specific reliefs gran~ d herein. _i_vi.e __ 2025