Sandie Mkandawire v Trinity University (2022/HPIR/889) [2025] ZMHC 55 (9 July 2025)

2022/HPIR/889 IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: SANDIE MKANDAWIRE AND TRINITY UNIVERSITY SPONDENT CORAM: HON. E. MWANSA Esq JUDGE APPEARANCES: For the Complainant Mr. C. Chungu with Mr. Z. M. Mubiana - Messrs Nsapato and Company For the Respondent Mr. C. Phiri - Messrs M. C. Phiri and Associates JUDGMENT Authorities Referred to Statutes: 1 . Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia. 2. Employment Code Act Number 3 of 2019. Cases: 1. Care International -V- Misheck Tembo Appeal No. 57 of 2016. 2 . W. Devis and Sons Limited -V-Atkin (1975) 11 LTR 15 @ 22. Jl J ., J 3. Caroline Tomaidah Daka -V- Zambia National Commercial Bank Plc (201 2) ZR 8 (H C). 4 . Wilson Masauso Zulu -V-Avondale Housing Project Limited (1982) ZR 175. 5 . Supabets Sports Betting -V- Batuke Kelimukwa SCZ SJ No. 27/ 219. 1.0 INTRODUCTION 1.1. The Complainant is before Court on a Notice of Complaint filed together with its Affidavit in Support on 2 nd November, 2022. 1.2. The Affidavit was however, materially amended later. 1.3. The take away from both the Affidavit and the evidence viva voce in Court is that on 1st July, 2021, th e .1 Complainant was employed as part time lecturer by the Respondent's school of Health Sciences. 1 .4. On 20th September, 2021, he was promoted to full time lecturer in the same school, on a salary of K9,700.00 per month. (K7,500.00 basic salary, Kl,500.00 housing allowance K300.00 commu nication allowance, K400.00 transport). 1. 5. It was the Complainant's further evidence that he was J2 . I underpaid October, November and December, 2021 salaries by K7,400.00, KS,000.00 and KS,900.00 respectively). 1.6. And that for the month s of January and February, 2022 he was paid only K4,700.00 for each month. Thus underpaying him by KS, 000. 00 . 1.7. That for March, 2022 to July, 2022, the Respondent failed, refused or neglected to pay the salaries completely. 1.8. He testified that he wrote SM4 and SMS, letters claiming the underpayments but no response was ever made. 1.9. That however, he was appointed as Head of Department for the school of Health Sciences. No letter of appointment is available. ,I 1.10. The Complainant further testified that on 26th July, 2022, a payment of K6,500.00 was made but that the outstanding underpayments were not addressed. 1.11. That in August, 2022, he administered examinations. A copy of the examination timetable, SM6 was produced as evidence that he administered examinations. His name is ,I however not on the exhibit. J3 1.12. In the same month, August, 2022, the Complainant was dismissed for purported absenteeism and desertion of work. (SM7). 1.13. He now seeks the following reliefs: 1.13.1. A declaration that the termination of the Complainant's unfair and unlawful; employment was wrongful, 1.13.2. The underpayments of salary amounting to K67,200.00. 1.13.3. Severance pay in the form of gratuity based on Section 54(1)(c) of the Employment Code Act; 1.13.4. Forty-two (42) months salary as damages for wrongful unfair and unlawful dismissal; 1.13. 5. All accrued leave days; 1.13. 6. Interest; 1.13. 7. Costs of and incidental to this action; and 1.13.8. Any other relief the Court may deem.fit. 2.0 THE RESPONDENT'S CASE 2.1 . The Respondent was granted leave to file Answer out of time. The Answer was filed. ., J4 2.2. Material evidence in this case is that the Complainant was indeed employed by the Respondent, first as part time lecturer and later admitted to full time lecturer as stated by the Complainant, under a two (02} year contract, renewable. 2.3. Gratuity was set at 12% of his salary (SM2}. 2.4. The contract was served from 1st October, 2021 to 9 th J May, 2022 when the Complainant resigned. 2.5. RWl's only witness, Mr. Field Kasoma, and Librarian told this Court that the Complainant should have worked nine (09) months from October, to May or August, 2022. 2. 6. According to RW 1, sometimes the Respondent would pay salaries over the counter not sending to individual Bank Accounts. To support this allegation he relied on DPl. 2.7. He stated further that the Complainant told him once that he was busy with Justo Mwale University so he could not find time to go and assist the Respondent when they needed help from him. 2.8. Under cross examination, RWl testified that the JS J Complainant, according to DPI, was owed K47,427.50. A KS,000.00 was paid to him later, leaving K42,427 .00 which was owed to him. 2.9. His responses under cross examination indicated that the Complainant resigned on 9 th May, 2022, and DP2 was a letter accepting the resignation. 2. 10. But then again on SM7 was a dismissal letter dated 19th August, 2022. 3 .0 ISSUES FOR DETERMINATION 3.1. Was the separation a dismissal or resignation? 3.2. Is the Complainant entitled to unpaid salaries? If so how much? 3 .3. Is gratuity payable? 3.4. Are leave days owed? 3.5. Was the dismissal wrongful, unfair and unlawful? 4 .0 COURT'S DETERMINATION 4. 1. Was the separation dismissal or resignation? 4.1 .1. There is evidence of the Complainant having J6 J ./ resigned on 9 th May, 2022 (DP4). 4.1.2. There is also evidence of the Respondent having dismissed the Complainant on 19th August, 2022. (SM7). 4.1.3. I have no evidence that the exhibit was forged . Without overstretching this issue, termination in this matter was by way of dismissal, which came in August, 2022. 4.2. There is also no controversy as to whether the Complainant is owed salaries. What is not clear is how much is he owed in such salaries? 4.2.1. The Respondent states that the Complainant would have worked for roughly 9 months from October, 2021 to May, 2022 or August, 2022, and gratuity would not be more than K22,500.00. Definitely not the claimed K82,500.00. 4.3. At once, it is admitted that the Complainant is owed some money in form of gratuity. It is the amount that is in dispute. Not even that the Complainant worked upto August, 2022. August, 2022 as the last working month is not in dispute. J7 4.4. As to accrued leave days, the Complainant states in J evidence, simply that he is owed. He does not state how many days nor does he state how much. 4.4.1. I have no doubt that he worked for the Respondent, for which he could have accrued some leave days. It is also possible that he utilized some of these days to go on leave. 4.4.2. At the end of this consideration, it is not clear how many leave days or indeed how much is owed to the Complainant under this sub heading. Or indeed how much was paid J towards this claim. Suffice to state that he was owed some money in leave days. 4.4.3. If the Complainant states that he never went on leave, it is not easy for him/her to prove this fact since, it is only going on leave that is documented. So it appears that at this point, the Respondent needs to show that the Complainant had taken leave. These documents will normally be with the Employer. In the absence of leave taken, it appears that J the Complainant has discharged his burden on the issue. J8 4.4.4 . I therefore gr ant the relief for accrued leave days, su bj ect only to assessment by th e Registrar. 4 .5 . Unpaid, Wrongfu l and Unlawful dism issal 4.5. 1. In the case of Care International - V- Misheck Tembo Appeal No. 57 of 2016, th e Su preme Cour t of Zambia took time to guide on the application and use of the terms "unfair" "unlawful" and "wrongful". 4 .5.2. Quoting Spr ak J. in his book "Employment Law and Practice; 1st Edition, at page 117, the Court stated: J ,I "Wrongful dismissal ..... essentially is a dismissal which is contrary to the contract and its roots lie in the common law. The remedy is usually limited to payment for the notice period...... (In . I contrast). Unfair dismissal is, therefore, usually a much more substantial right for the employee and the J9 consequences for the employer of dismissing unfairly are usually much more serious than those which attend a wrongful d . tsmtssa ..... ,, . l 4.5.3. As quoted , th e Court went on; "It follows therefore, that from the distinction between unfair and wrongful dismissal that a dismissal may be: (a) Wrongful but not unfair; (b) Unfair but not wrongful; (c) Unfair and wrongful; (d) Lawful, in the sense that it is neither unfair no wrongful." 4 .5 .4 . Close home, Mwenda W. S. has also written in her book "Employment Law in Zambia cases and materials", that: "Unlike wrongful dismissal, unfair dismissal is a creation of statute. Unlike wrongful dismissal, which looks at the JlO ,I ,I form (of the dismissal), unfair dismissal looks at merits (or substance) of the dismissal and the form is only supportive of the whole merits of the dismissal... ..... Under unfair dismissal, the Courts will look at the reasons for the dismissal for the purpose of determining whether the dismissal was justified or not." 4.5.5. In W. Devis and Sons Limited -V-Atkin (1975) 11 LTR 15 @ 22, Phillip J m ade it clear when he defin ed 'unfair d ismissal' as follows": ".... The expression ''unfair dismissal" is in no sense a common-sense expression capable of being understood by the man in the street, which at first sight one would think it is. lnfact it is narrowly and to some extent arbitrarily defined. And so the concept of unfair dismissal is not really a Jll J J common sense concept, it is a form of words which c ould be translated as being equivalent to t he d ismissal . I "contrary to the statute" and to which the label 'unfair dismissal' has been given. " 4 .5 .6. The claim under this subhead is for unfair, wrongful and unlawful dismissal. The Complainant has not alerted me to any statutory provision protecting his right to employment, that has been breached in the course of the disciplinary process. 4 .5 . 7. The case of Caroline Tomaid a h Daka - V Zambia National Commercial Bank Plc (2012) ZR 8 (HC) and that of Wilson Masauso Zulu -V- Avondale Housing Project Limited (1982) ZR 175; are instructive on the issue in this sub head. 4.5.8. As to wrongful dismissal, there is evidence that the Complainant was dismissed without an opportunity to be heard. There was no charge given for the Complainant to exculpate " J12 himself, even. Had there been an exculpation on the charges preferred, one could have opined that the Complainant was 'heard'. In casu , I do not see any exculpation letter. 4 .5 .9. In Supabets Sports Betting -V- Batt.tke Kalimukwa SCZ SJ No. 27/ 2019, the Court had occasion to consider this too. 4.5.10. For failure to give the Complainant chance to be heard, it was wrongfu l dismissal, and I hold so. An award of four months salary for wrongful dismissal is considered not too excessive nor too minimal as I see no aggravating circumstances. 4.6. I note that the submissions by Cou nsel for the Complainant carry extensive arguments on Constructive Dismissal. Clearly, the claim as in the Notice of Complaint carries no such claim as Constructive Dismissal. It is only 1n the testimony. I am thus reluctant to address it as it has not given the Respondents room to address it in its defence . It is as such considered as a n one-issue ipso facto. I Jl3 5.0 CONCLUSION 5 . 1. On the evidence before me, it is right and proper to declare that there was here wrongful dismissal for which an award of four (04) months salary is due and ordered. 5.2. There is no unfair dismissal. 5.3. Leave days are owed and due to the Complainant; if not already paid. 5.4. Salary arrears are also awarded, if not already paid. 5 .5 . Gratuity SM2 is NOT a contract of Employment. It is merely a letter of appointment. As such it lacks details of the parties' duties and obligations. This could be better. 5.5.1. SM2 however, places the appointment of the Complainant as lecturer on a two (02) year fixed contract. 5.5.2. It states expressly that at the end of the contract period, he would be entitled to gratuity calculated at 12% of the salary. 5 .5 .3 . So, gratuity is only payable when the contract Jl4 expires organically. This one did not since it is a ccepted that he was dismissed, one year inside the contract. 5.5.4. But then again, the provision in this letter of appointment which carries this provision goes against Section 54(1)(c) of the Employment Code Act No. 3 of 2019. This provision is: "An employer shall pay an employee a severance pay, where the employee's contract of employment is terminated or has expired, in the following manner: (a) (b) (c) where a contract of employment of a ftxed duration has been termination, severance pay shall be a gratuity at the rate of not less J than twenty-five percent of the employee's basic pay earned during the contract period as at the effective date of termination" J1 5 ,I 5.5.5. The percentage allowed is 25% of the basic pay, not less. So, by the basic tenets of law, where the agreement between the parties is less favourable to that provided by the law, the law will applyl. 5.5.6. That said, the Complainant is entitled to gratuity at 25% of his basic pay for the period worked. 5.6. The sum total of the awards due will then be subject to interest at the Bank of Zambia Short Term Deposit Rate from date of Notice of Complaint to Judgment being 2 nd November, 2022 and thereafter at 6 % to date of complete settlement. 5.7. The case is referred to the Registrar for Assessment. I make no Order as to costs. Sect ion 127, Employment Code Act No. 3 of 2019 Jl6 J J J