Thiroshin Pillai v Pick and Pay Zambia Limited (COMP /IRCLK/290/2022) [2023] ZMHC 69 (21 August 2023)

IN THE HIGH COURT FOR ZAMBIA COMP /IRCLK/290/2022 J1 INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA BETWEEN: THIROSHIN PILLAI AND COMPLAINANT PICK AND PAY ZAMBIA LIMITED RESPONDENT Before The Hon. Mrs. Justice T. S. Musonda For the Complainant : Mr. K. Chipungu of Messrs. G. M. Legal Practitioners For the Respondent : Mr. M. Ndalameta of Messrs. Musa Dudhia & Co JUDGMENT Legislation referred to: 1. The Employment Code Act. No.3 of 2019 Cases referred to: 1. Newston Zulu V Metal Fabricators of Zambia Ltd, SCZ Appeal No. 70 of 2005 2. Birrell v Australian National Airlines Commission, [1984) FCA 174 3. Mark Tink and Others V Lumwana Mining Company Limited,CAZ Appeal No.41 of 2021 4. Alistair Logistics (Z) Limited V Dean Mwachilenga, CAZ No. 232 of 2019 5. Sarah Aliza Vekhnik v Casa Dei Bambini Montessoru Zambia, CAZ Appeal No.129 of 2017 6. Zambia Consolidated Copper Mines V James Matale, [1995-1997) ZR 157 7. Dennis Chansa v Barclays Bank Zambia PLC , SCZ Appeal No. 111 of 2011 J2 8. Chansa Ng'onga V Alfred H. Knight (Z) Limited, Selected Judgment No. 26 of2019 9. Swarp Spinning Mills PLC v Chilshe and Others, [2002] ZR 23 10. Spectra Oil Zambia Limited v Oliver Chinyama, CAZ Appeal No. 18 of 2018 11. Chilanga Cement Pie V Kasote Singogo, (2009] Z. R 122 S. C 12. Zambia National Commercial Bank V Joseph Kangwa, SCZ Appeal No. 54 of2008 13. Kansanshi Mining Pie V Mathews Mwelwa, Appeal No. 103 of 2019 Other works referred to: 1. W. S. Mwenda and Chanda Chungu, A Comprehensive Guide to Employment Law in Zambia (University of Zambia Press, 2021) 2. Oxford Dictionary of Human Geography, https//www.oxfordreference.com 3. Halsbury's Laws of England Fourth Edition, Reeissue Volume 9 INTRODUCTION 1. The Complainant, Thiroshin Pillai filed a Complaint dated 13th April, 2022 in which he sought the following reliefs: (i) Declaration that the termination of employment was wrongful and unlawful; (ii) Damages for wrongful and unlawful termination of employment; (iii) Declaration that the Complainant is now Redundant and entitled to Redundancy benefits; (iv) Damages for mental torture and inconvenience due to the unprecedented wrongful and unlawful termination of employment; and J3 (v) Any other equitable reliefs that the Court may grant plus interest and costs. 2. The Respondent filed an Answer and a supporting Affidavit on 9th August 2022. 3. During the hearing the Complainant testified on his own behalf and informed the Court that he would rely on his Affidavit filed in support of Complaint; Affidavit in Reply to the Respondent's Affidavit in Support of Answer dated 20th October 2022; and witness statement. 4. The Respondent presented on one witness, Joan Johannes Potgieter, its Head of Commercial, who equally relied on the Respondent's Affidavit in Support of Answer and his witness statement. SUMMARY OF THE EVIDENCE The Complainant's case 5. The Complainant's case is that he was a South African national who was first recruited by the Respondent from South Africa in October, 2012 as a Business Coordinator on permanent and pensionable basis to be based at the Head office in Lusaka. His contract did not state that he was an expatriate. 6. He was later promoted in December, 2019 to the position of National Buyer/ Business Coordinator and awarded a salary increment of USD9000.00 including a Kwacha based salary of K 153,000.00 as consideration for the promotion for being a hard worker. The contract that was signed following this development did not make any reference to the position only being available for two (2) years. 7. The Complainant's duty in his new role was to grow the business. He accordingly, successfully executed his duties and grew the Respondent's business over 12 months by 13.5% to total store participation. Further, he was also in charge of training as a negligible function of his job description. He J4 however did not train anyone in the organization while serving in the position of Buyer. 8. On 14th January 2022, the Respondent served the Complainant a letter of termination of his contract of services without any reason. He was not given month notice which was as required by Clause 13 of the contract and the provisions of the Employment Code Act No. 3 of 2019. The Respondent also immediately disabled the Complainant's access rights to the premises. 9. It was the Complainant's case that as soon as he received the letter of termination, he proceeded to the Human Resources office and later called the General Manager to seek clarification over the reasons for the termination. However, no cogent reason was given to him apart from the position that the company was downsizing. 10. The Complainant later sent an email to the General Manager and the Senior Buyer over the termination of employment, but there was no response. 11 . He then sought representation from his Advocates, Messrs. GM Legal Practitioners who issued a letter of demand to the Respondent seeking answers on the reasons for termination and also for payment of damages. 12. The initial position of the Respondent's Advocates was that they did not have instructions and needed to consult the Respondent. The Respondent's Advocates thereafter wrote to the Complainant after two weeks and notified him that the termination was due to operational requirements. This according to the Complainant appeared to be an afterthought. 13. The Complainant attended a meeting on 24th February 2022 which was held at the Respondent's Advocates' offices in the spirit of settling the matter ex-curia. He demanded for compensation and for him and his family to be repatriated back to South Africa. The Respondent however reiterated its earlier position on the issue. JS 14. The Respondent began to harass the Complainant over the immediate surrender of the work permit even before he was paid his repatriation package back to South Africa. Further, the Respondent also reported the Complainant to the Zambia Immigration Department offices. He was consequently repeatedly summoned and asked to surrender his work permit and leave Zambia within a period of 7 days at that time. His permit has since been blocked and he will be unable to acquire a new permit until after the determination of this matter. 15. It was also the Complainant's position that he was unjustly, wrongfully and lawfully terminated without reasons. This carries a negative tag in society and would affect his career prospects in the future. He also lamented that being away from South Africa for close to 10 years would make it hard for him to re-adjust and find alternative employment. 16. It was with background that the Complainant thus urged this Court to declare that his termination of employment was wrongful and unlawful; order payment of 36 months' basic salary with allowances as damages; order payment of damages for mental torture and inconvenience; and grant any other equitable reliefs that the Court would deem fit plus costs. The Respondent's case 17. It was the Respondent's case through its witness, Joan Johannes Potgieter (Mr. Potgieter) that, the Complainant was engaged by the Respondent as an expatriate employee on 1st June 2014. He was primarily engaged because he possessed the knowledge and skills that were required to grow its bakery department which was underperforming. The Complainant was also required to train Zambian citizens employed by the Respondent in the operations of the department. 18. That because of the uncertainty regarding how long the aforementioned training would take, the Complainant was employed under a permanent J6 contract. This however did not mean that the contract could not be terminated. 19. The Complainant as Bakery Coordinator, trained not less than thirty-six (36) Zambians in a similar role . That consequently, Mr. Tanasho Chanda was performing the Bakery Coordinator function in the Lusaka region, while Mr. Jack Kaposa was performing the said role for the Copperbelt region. 20. That having successfully grown the bakery department and trained enough Zambians to succeed the Complainant's role as Bakery Coordinator, the Complainant was later promoted to the position of Buyer on 14th December, 2019. The position at that time required a person with the Complainants' skill and knowledge. 21. The Complainant in his role as Buyer, trained a Zambian Citizen, Mumbo Mushota, who took over from him. This was pursuant to Employment Code Act which provides that an expatriate could only stay to improve the skills and knowledge of understudies for a period of 2 years. 22. It was the Respondent's position that the Complainant knew or ought to have known that the peculiar nature of the employment was that once the skills were transferred and an adequate number of Zambians were trained , then the expatriate role would terminate. The Complainant was required to improve the skills and knowledge of the employees he was training within a period of 2 years or within a period that would be prescribed by the Labour Commissioner. This was in accordance with the Employment Code Act. 23. The Complainant could thus only serve in his position of Buyer for a period of 2 years or within a period that would be prescribed by the Labour Commissioner. In the case of the Complainant, the Labour Commissioner never prescribed the said period . The Respondent therefore had to adhere to the prescribed 2 year period. J7 24. According to the Respondent, the Complainant's employment was not terminated by reason of redundancy. This was because the role that the Complainant performed was still in existence and being performed by Mr. Mumbo Mushota who had been trained by the Complainant during the period he served as Buyer. It was at the expiry of the 2 year period that the Complainant was notified on 14th January 2022 that his employment with the Respondent would be terminated . Further that, the Complainant was given reasons for the termination being operational requirements which was in compliance with labour laws. 25. The Complainant was paid KlOl,772.14 as benefits under his contract and one month in lieu of notice even after being given 30 days' notice period. 26. On 25th February 2022, the Respondent exercised its obligation to inform the Director General of Immigration Services of the termination of the Complainant's employment so that he could surrender his work permit. 27. The Respondent held the view that the Complainant had failed to justify his claim of an exorbitant amount of $3,000,000.00 being damages for wrongful termination. 28. The Respondent also took the position that it had always been ready and willing to settle the Complainant's repatriation costs. The Complainant has however not availed the Respondent with the necessary information regarding the ages of the people whose air tickets need to be purchased and also an inventory of the goods that need to be moved to enable it obtain its own independent quotations. 29. The Respondent's final position was that the Complainant was not entitled to his claims on the ground that all his dues under the contract of employment were paid to him . J8 ISSUES FOR DETERMINATION 30.1 have considered the evidence including responses given in cross examination. I have also considered the rival written submissions together with the legal authorities cited. I shall not recite the submissions but refer to them where necessary in my analysis. 31. Based on the parties' cases as stated in the summary of the evidence and submissions, it is apparent that the main issues for determination are: (i) Whether the Complainant was an expatriate employee? (ii) Considering that the fact of termination of contract is not in dispute, whether the termination was wrongful and unlawful? (iii) Whether the Complainant was declared redundant? (iv) Whether the Complainant is entitled to the reliefs claimed namely, damages for wrongful and unlawful termination of employment; payment of redundancy benefits; damages for mental torture and inconvenience as a result of the wrongful and unlawful termination of employment; and any other equitable reliefs that the court may grant plus interest and costs. ANALYSIS AND DETERMINATION 32.1 shall now move on to resolve the issues framed for determination. (i) Whether the Complainant was an expatriate employee? 33. It is my view that that establishing whether the Complainant was an expatriate employee of the Respondent will be the starting point in the resolution of issues that that have been framed for resolution. 34. This is with the background that the Respondent's case is anchored on the contention that the Complainant was an expatriate employee, whilst the J9 Complainant's contention on the other hand is that his contract of employment did not designate him as an expatriate employee. 35. Who is an expatriate? The online Oxford Dictionary of Human Geography defines an expatriate as 'a person settled outside their country of origin, .. ln practice the term is generally applied to professionals, skilled workers, or artists from affluent countries, often transferred by companies, rather than all immigrants in general.' 36. In essence, an expatriate employee is an individual who is temporarily or permanently assigned to work in a foreign country. 37. With regard to the Complainant, it is not in dispute that the Respondent recruited him from South Africa as Bakery Coordinator to be based in Lusaka. 38 . The Complainant claimed that he was employed in 2012 and referred to exhibit "TPl" in the Affidavit in Reply to the Respondent's Affidavit in Support of Answer, to support this assertion. Indeed, exhibit "TPl 11 , a letter which was addressed to the Barclays Bank Branch Manager, demonstrates that the Respondent indicated that the Complainant had been working for it since October 2012. 39. However, the evidence that was availed to this Court by the Complainant himself in the form of exhibit "TPl II in the Affidavit in Support of Complaint, also demonstrates that the Complainant was appointed to the position of Bakery Coordinator and not Business Coordinator by a contract of employment, dated l51 June 2014. 40. The Complainant was then promoted to the position of Buyer on 14th December 2019 and was issued with promotion letter, exhibited as "TP3 11 in the Affidavit in Support of Complaint. 41. It is clear from the Complainant's contract of employment that he was not designated as an expatriate. It is however, my considered view that the JlO Complainant is deemed to have been an expatriate by virtue of having been recruited by the Respondent from South Africa to work in Zambia. 42. My position is further cemented by the Complainant's responses under cross-examination. I noted that the Complainant conceded under cross examination that he was aware that for any job, the Respondent was required to employ a Zambian unless there was no Zambian capable of doing the job. He also conceded that the reason why he was hired from South Africa was that there were no Zambians at that time who could perform his Bakery Coordinator job . He further conceded that training and skills transfers to Zambians was something he had to do by virtue of being an expatriate. I find that there is no doubt that the Complainant was an expatriate employee. (ii) Whether the termination of employment of the Complainant by the Respondent was wrongful and unlawful What constitutes wrongful and unlawful termination of a contract of employment? Wrongful termination 43. The learned authors of a 'Comprehensive Guide to Employment Law in Zambia', Judge W. S. Mwenda and Chanda Chuungu at page 228, explained that, where the employer terminates employment contrary to the terms of the contract of employment, such termination will be regarded as wrongful termination. Unlawful termination 44. It is established that a termination of contract will be unlawful if the employer breaches a statutory provision, in terminating the employees contract. 45.1 find it fit to firstly determine whether the termination of the Complainant's contract was unlawful. Jll Was the termination of the Complainant's contract of employment unlawful? 46. In support of the Complainants' case, it was submitted that the Respondent terminated the Complainants' employment by notice without reason. This was on the basis that the termination letter did not state any reason for the termination. Further, the Complainant wrote an email after the termination to demand for reasons by email dated 161h February 2022 and there was no response to the said email. 47. It was submitted further, that the Respondent breached Section 52(1) and (2) of the Employment Code Act, which provides as follows: 52. (1) A contract of employment terminates in the manner stated in the contract of employment or in any other manner in which a contract of employment is deemed to terminate under this Act or any other law, except that where an employer terminates the contract, the employer shall give reasons to the employee for the termination of the employee's contract of employment; (2) An employer shall not terminate a contract of employment of an employee without a valid reason connected with the capacity or conduct of an employee or based on the operational requirements of the undertaking. 48. Based on the aforementioned provisions, it was submitted that an employer who terminates the contract of employment of an employee is required to give reasons to the employee for the termination. This is not withstanding that the employer may have given notice of termination. 49. On the other hand, it was submitted on behalf of the Respondent that there was nothing unlawful about the termination of the Complainants' contract of employment. J12 50. In support of the aforementioned position, it was submitted that reasons for the termination were given in the letter of 7th February 2022' exhibit 'TP8' in the Complainant's Affidavit in Support of Complaint. He was notified that the termination was because of operational requirements. 51. Further, that the Complainant was an expatriate and as exhibit, 'TPl' in the Affidavit in Reply demonstrated, he was required to train Zambians under the bakery department who were supposed to take over the job. This provision was grounded on Section 14 of the Employment Code Act, which prioritises the employment of Zambian citizens over expatriates. According to this provision, an expatriate will only be employed where a Zambian citizen does not possess the skills required for that particular job. In this case, the Respondent having over the years empowered Zambian citizens with skills required to perform the Complainants' job, there was no need for the Complainant to have continued working. 52. Further, with regard to Section 60 (2) of the Employment Code Act, a Zambian citizen who was identified to work as a trainee under the supervision of an expatriate was to be trained within two years or a period that would be determined by the Labour Commissioner. This was to be done with the view of that citizen eventually taking over the job. 53. It was submitted further that it was not the duty of the Respondent to inform the Complainant about the provisions of the law with regard to the period of training provided for in Section 60 (2). It was thus not open to the Complainant to claim ignorance of the law, which was not a defence. 54. It was also the Respondent's position that changes arising from the Employment Code Act operated by force of law. In the Complainant's case, the said changes could not be prevented from taking effect on the basis that the Complainant was not informed about the passing of the Employment Code Act. J13 55 . It was the Respondent's contention that the developments and obligations placed on the Respondent by the Employment Code Act, were implied into the Complainant's contract of employment by virtue of the Supreme Court's holding in the case of Newston Zulu V Metal Fabricators of Zambia Ltd (1). The Supreme Court in that case, held that the law could imply a term in the contract although it was not expressly included by the parties. 56. In conclusion, it was submitted that the Complainant's termination could not have been unlawful on the basis of the aforesaid arguments. 57 . Having considered the parties rival submissions on whether the Complainant's termination of employment was unlawful, I will now proceed to make a determination on the issue. 58. It is not in dispute that by letter dated 14th January 2022, the Respondent notified the Complainant that his services were terminated in accordance with Clause 13 of the employment contract and that his last working day would be 13th February 2022. 59. It is my view that it will be important to reproduce the contents of the said letter: January 14,2022 Mr. Thironshin Pillai C/O Pick n Pay Support Office Kabulongo Lusaka Dear Mr. Pillai, Ref: Termination of Service J14 We refer to the above subject matter and regret to inform you that your services are hereby terminated in accordance with clause 13 of your employment contract. In this regard, your last working day will be February 13, 2022. Accordingly, please arrange to handover all your work tools and company property in your possession to the Head of Fresh based at Support Office. Please accept Pick n Pay Zambia's sincere appreciated of your dedicated contribution to the company during the period of your employment. We wish you all the best in your future endevours. Kindly arrange to revert to the undersigned if you need any further information. Yours Sincerely, PICK N PAY ZAMBIA LTD Precious Mundi Kalwa MANAGER HUMAN RESOURCES 60. Clause 13 of the 1st June 2014 contract provided as follows: Either party may terminate this contract of employment by giving the other one month written notice of termination. JlS 61. It is clear from Clause 13 of the contract that the parties agreed that either party would be at liberty to terminate the contract of employment by giving the other one month's written notice of termination. 62. It is clear that the letter of 14th January 2022, did not give reasons for the termination of the Complainant's contract of employment. The Complainant's email, exhibit 'TPS', in the Affidavit in Support of Complaint addressed to Dave and Jannie, in which he sought reasons why his contract had been terminated, demonstrates that indeed, no reasons were given to the Complainant at the point he was given the letter of termination. This position is further fortified by Mr. Potgieter's admission under cross-examination that no reasons for the termination were given in the letter of 14th January 2022 and the email was never responded to. 63. The Complainant through his Advocates then wrote to the Respondent's Country Managing Director by letter dated 24th January 2022 whose contents are as follows: 24th January 2022 The Country Managing Director Pick N Pay Zambia Limited LUSAKA Dear Sir RE: DEMAND FOR PAYMENT OF USD$3,000,000.00 FOR WRONGFUL AND UNLAWFUL TERMINATION OF EMPLOYMENT CONTRACT THIROSHIN PILAI. We advise that we have been retained to act on behalf of Thiroshin Pilai (hereinafter referred to as our "Client") in this matter. Kindly thereof note our interest. J16 Your letter dated 14th January 2022 has been relayed to us, with instructions to respond thereto as we do now. 1. Background 1.1 We understand that our Client has been an employee of Pick N Pay Zambia Limited (the Company) since 2012 wherein he served as Buyer on a Permanent and Pensionable basis. 1.2 We understand that on 14th January 2022 the Company did serve our client with a letter Terminating his services, pursuant to a clause 13 of his contract of services ( contract). 1.3 We appreciate that the said clause 13 if this contract either party reserves the right to terminate this contract by giving the other one-month notice; 1.4 We further understand that pursuant to the said notice you proceeded to disable all his system user and access rights, even when the letter terminating his services was devoid of reason as prescribed under the Employment Code Act, 2019. 1.5 We further understand that our client has on numerous occasions unsuccessfully engaged your management team, in an effort to understand the rationale behind his termination, however no cogent explanation has been provided so far; 1.6 As a result, our Client has suffered, and continues to suffer loss and damage (including legal costs). 2. Our Client's Demands 2.1 We therefore now demand that you payment USD$3,000,000.00 within 05 days from date of this letter for breach of your statutory obligation to provide a reason/s for this termination; 2.2 2.3 That you immediately issue the requisite immigration release letter; Unless you attend to our Client's aforementioned demands, our Client will commence legal proceedings against you without further recourse to you to: 2.4 Obtain the Appropriate Court Order; J17 2.5 Pay demand to our client for violating his statutory rights; 2.6 Pay our legal costs in the sum of USD$300,000.00. Our Client reserves his rights. We trust that the position herein is unequivocal and that the above action will not be necessary and that you send written proof of payment into our bank account whose details are set out below before close of business 28th January 2022. In the event that require additional clarification or to meet us before time herein, kindly contact mail: Mukumba mukumbamuleie@yahoo.com and mobile: 0977606284: Mulele our or at Account Name Bank Name Account Number Brach Swift Code GM Legal Practitioners Eco Bank Zambia Limited Woodlands ECOCZMLU Kindly acknowledge receipt of this letter by signing, dating and returning a copy of this letter enclosed herewith. We await your prompt response and receipt of the remedial plan. Yours faithfully, GM Legal Practitioners 64 . The Respondent's Advocates by letter dated 7th February 2022 responded as follows: 7 February 2022 GM Legal Practitioners Suite 28 Blue Flats, Kabulonga Road P/Bag ES.35 Lusaka Our ref: Mr M Ndalatemeta/HC J18 Dear Sirs, Demand for payment of USD 3 000 000.00 for wrongful and unlawful termination of employment contract- Thiroshin Pillai 1. We refer to our letter of 27 January 2022 and confirm that we have now received instructions. 2. Our instructions are that your Client's termination is based on the operational requirements of Pick n Pay. You may appreciate that your Clients was employed as an expatriate with specialized skills to coordinate bakery in the Zambia stores and carry out skill transfer by training Zambian understudies. 3. Our Client has been pleased to note that during his period of service, Mr Pillai has trained no less than 36 Zambians in a similar role. We have attached the full list of the pool of talent as a schedule to this letter. 4. In the circumstances, it would be contrary to public policy, and immigration laws for your Client to continue in employment. Present Mr Tanasho Chanda, is performing the Bakery Coordinator function in the Lusaka region, while in Copperelt it is Mr Jack Kaposa. Both of these individuals are Zambia nationals. We therefore confirm that no other expatriate is coming to serve in the same role. 5. To the extent that this was not clear in the initial letter, your client will be treated as having worked up to the date that you receive this letter, and will be paid in lieu of notice from that date. 6. Please be advised that he will also receive this payment together with ZMW 60 000 for purposes of his repatriation to South Africa. Thereafter, and certainly no later than 11 February 2022, in J19 complying with the provisions of section 28(7) of the Immigration and Deportation Act No 18 of 2010, our Client will surrender Mr Pillai's employment permit to the Director-General of Immigration. 7. Lastly, our Client is at pains to understand the basis of the demand for$ 3 000 000 because Mr Pillai's contract does not provide for any such benefits. Our instructions are that your Client is fully aware that remuneration of expatriates in the Pick n Pay Group is high when compared to local employees because expatriates are paid on an "a// inclusive" basis. This means that their salary includes provision for pension or retirement funding and medical aid. In addition, your Client was not entitled to any gratuity. Even if he were to have such a clause in his contract, it would not be enforceable because of regulation 3 of the Employment Code (Exemption) Regulations 2020 which precludes expatriates from entitlement to gratuity. 8. Kindly acknowledge safe receipt of this letter by signing, dating and returning the copy enclosed. Yours faithfully, Musa Dudhia & Co 65. It is very clear from the letter from the Respondent's Advocates that the reason for the termination was the Respondent's operational requirements. 66. Further, that since it this was not clarified in the initial letter of 14th January 2022, the Complainant would be deemed as having worked up to the date the letter of 7th February 2022 would be received and that he was to be paid in lieu of notice from that date. 67. The letter of 7th February 2022, in my considered opinion introduced in paragraph 5, a new effective date of termination which would be the date J20 the Complainant would receive the said letter. The letter of 7th February 2022 also gave the Complainant reasons for the termination. It was on the ground that the said letter of 7th February 2022, gave reasons for termination that the Respondent submitted that the issue of unlawful termination could not arise. 68. On the other hand, the Complainant's case is clearly anchored on the letter of 14th January 2022 which gave no reasons for the termination. 69. The question that now seeks an answer is, 'which letter should be adopted for the purposes of determining whether the termination of the Complainant's contract of employment was unlawful? 70. According to Halsburv's Laws of England Fourth Edition, Reissue Volume 9 (1) at paragraph 983 at common law, a notice of termination validly given cannot thereafter be withdrawn without agreement. 71 . In the course of my research, I did not find any authority in this jurisdiction which specifically addresses the effect of withdrawal of a notice of termination of contract by an employer. shall therefore refer to the persuasive Australian case of Birrell v Australian National Airlines Commission (2) in which the effect of a withdrawal of notice by an employer was the subject of discussion. J Gray in approving the comments of J Moore noted: The authorities all support the view that unilateral withdrawal of a notice of termination of a contract of employment is not possible. In principle, this conclusion must be correct. The purpose of providing in a contract for a period of notice of termination is to enable the party receiving the notice to make other arrangements ...... I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties. J21 72. Flowing from the position set out in the Halsbury's Laws of England and the sentiments expressed in Birrell v Australian National Airlines Commission, where a withdrawal of notice is consented to by an employee, then the withdrawal is effective and employment continues as before. A unilateral withdrawal of notice is deemed invalid. 73. In the case at hand, indeed by Clause 13 of the Complainants' contract of employment, either party was at liberty to terminate the contract of employment by giving the other one month written notice of termination. 7 4. As already established above, the Respondent did by letter of 7th February 2022 notify the Complainant through his Advocates that he would be deemed to have worked up to the date of receipt of the letter and receive payment in lieu of notice. In my view, the Respondent's unilateral decision was prompted by the Complainant's letter through his Advocates of 24th January 2022. 75. Based on the authorities cited above, the Respondent could not unilaterally decide to deem the Complainant to have worked up to the date of the receipt of its letter of 7th February 2022 without the consent of the Complainant. The Complainant was accordingly in my view within his rights to rely on the termination letter of 14th January 2022, which gave 13th February 2022 as his last working day and also formed the basis of this Complaint. I will accordingly adopt the said termination letter of 14th January 2022 in this analysis. 7 6.1 shall at this point refer to the recently decided Court of Appeal case of Mark link and Others V Lumwana Mining Company Limited (3), in resolving the contested issue of the unlawful termination of the Complainant's contract of employment. 77. In this case, the employer employed a group of expatriate employees on fixed term contracts with the aim that they would help train Zambian J22 employees during their term of employment . However, before the expiry of their fixed term contracts, their contracts of employment were terminated at various stages. Their employer did not give any valid reasons for the termination of the said contracts. 78. It was the employer's position that the expatriate employees were either collectively or individually advised verbally of the impending terminations of their contracts to enable Zambian employees to take over. This according to the employer was a valid reason pursuant to a term of their contracts which provided for the localization of positions that were held by the expatriate employees . 79. The High Court held that the various terminations were neither unlawful nor unfair, and declined to award damages to the employees. The expatriate employees appealed to the Court of Appeal. 80. In the Court of Appeal, the Respondent argued that that the expatriate employees were on fixed term contracts and knew that their contracts would not run indefinitely, and that they were for the purpose of training local employees. The Court of Appeal held as follows at page 29: ... Whilst we agree that they were aware that their contracts would not subsist indefinitely, it was equally not in contemplation of the appellants that their contracts would be terminated abruptly without running their full term upon which localization would take place. We therefore reverse the finding that the respondent accorded the appellants a reason in accordance with Section 36 of the Employment Act. We wish to restate what we stated in the case of Sarah Aliza Vekhnik v Casa Dei Bambini Montessoru Zambia supra where we pronounced that: Section 36 of the Act has placed a requirement on an employer to give reasons for terminating an employee's J23 employment. Employers are no longer at liberty to invoke a termination clause and give notice without assigning reasons for their termination. What is of critical importance to note however is that the reason or reasons given must be substantiated. 81 . Further at page 30 that: In the present case, we hold that the termination was not in conformity with the law as enshrined in Section 36 of the Employment Act. For the reasons we have articulated above we hold that the terminations of the appellants' contracts to have been unlawful and the manner it was done was unfair. 82.1 appreciate that the above decision was based on Section 36 of the Employment (Amendment) Act,No.15 of 2015. It is to be noted that Section 36 (l)(c) and (3) provided as follows: (1) A written contract of service shall be terminated- (a) (b) (c) (2) in any manner in which a contract of service may be lawfully terminated or deemed to be terminated whether under the provisions of this Act or otherwise, except that were the termination is at the initiative of the employer, the employer shall give valid reasons to the employee for the termination of the employee's employment. J24 (3) An employer shall not terminate a contract of employment of an employee without a valid reason for the termination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking. (underlining showing emphasis mine) 83. The above provisions are reflected in Section 52 (1) and (2) of the Employment Code Act which law mandates an employer to give a valid reason for the termination of a contract of employment. There must be a valid reason for termination connected to the conduct or capacity of the employee or operational requirements of the employer. 84.1 do acknowledge that in the Mark Tink and Others case, it can be discerned that the aggrieved employees were expressly employed as expatriates in their various positions. In the Complainant's case, I have already found that although his contract did not specifically designate him as an expatriate, he is deemed to have been an expatriate employee by virtue of his engagement by the Respondent in South Africa to work in in this country. It is for this reason that I shall rely on the Mark Tink and Others in the analysis under this head. 85. Therefore, considering that the principles enunciated in the Mark Tink and Others case cited above were based on Section 36 of the Employment (Amendment) Act which has been replicated in Section 52 (1 )(2) the Employment Code Act, it is my finding that the said principles apply to the case at hand. 86.1 must state that it is an established principle that there is no contract that is indefinite. The Court of Appeal in the case of Alistair Logistics (Z) Limited V Dean Mwachilenga (4) confirmed this position when it stated that there was no contract that was indefinite and had an 'until death do us apart' clause. J25 Further, that either party was at liberty to terminate the contract in line with the provision of their contract. 87. The Court of Appeal in Mark Tink and Others case reiterated this view when it acknowledged that the expatriates' contracts of employment would not subsist indefinitely. However, it also held the view that it was equally not in contemplation of the employees that their contracts would be terminated abruptly without running their full term upon which localization would take place. 88. In the case at hand the Complainant's letter of promotion to the position of Buyer, exhibit "TP3" in the Affidavit in Support of Complaint, discloses that the parties were still bound by the 1st June, 2014 contract despite the promotion. 89. For the avoidance of doubt, I will reproduce the promotion letter below: 141h December, 2019 Thiroshin Pillai C/O Pick n Pay Support Office Lusaka. EMP No. _____ _ Dear Thiroshin, LETTER OF CONFIRMATION Following the successful completion of your probation, Pick n Pay Zambia Management is pleased to confirm you in the position of Buyer for Pick n Pay Zambia, reporting to the Senior Buyer. J26 Your monthly remuneration package has been adjusted upwards effective 14th December, 2019. Your new gross pay will be USO 9000. All other terms and conditions will remain the same. Please acknowledge and sign below as an indication of acceptance and understand of the terms and conditions. Thank you for your continued contribution to Pick n Pay Zambia and best wishes in your position. Yours Sincerely, LUCAS HOUBEN MANAGING DIRECTOR- PnP ZAMBIA CC: Payroll Administrators- Finance I, __ __ _______ acknowledge receipt of this letter and conditions contained thereof. NAME DATE 90. Indeed, as established in this analysis, the parties were bound by Clause 13 of the contract, which provided that either party could terminate the contract by giving the other one months ' notice. This was despite the position that he was a permanent and pensionable employee. The Complainant in fact conceded under cross-examination that he agreed with the Respondent's position that his employment could one day be terminated . 91 . However, as was held in the case of Sarah Aliza Vekhnik v Casa Dei Bambini Montessoru Zambia (5). at page 19 'Employers are no longer at J27 liberty to invoke a termination clause and give notice without assigning reasons for the termination. 92. Therefore, whilst an employer may give notice of termination in accordance with the terms of an employment contract, the employer must give valid reasons for termination connected to the employee's conduct or capacity or operational requirements of an employer as reflected in Section 52 (2) of the Employment Code Act. 93. In this case, it was therefore not open to the Respondent to justify the termination by arguing that it was based on operational requirements as stated in the letter of 7th February 2022, whose effect I have found to have been invalid. The Respondent's position that a reason could be given by l 3th February 2022 as was suggested during the cross-examination of the Complainant cannot also be sustained. Further, Mr. Potgieter's position under cross-examination was that there was an exit interview that was conducted with the Complainant . Mr. Potgieter however, failed to state the date when the alleged interview was conducted. There is therefore no evidence of the occurrence the alleged interview. 94. It follows that despite the position that contracts of employment are not indefinite, the Complainant's contract inclusive, the Respondent in this case had a statutory obligation to give substantiated reasons for the termination of the Complainants' contract of employment at the point of giving notice through its letter of 14th January 2022. 95. On the totality of the evidence, I find that the termination of the Complainant's contract was unlawful in that it was contrary to Section 52 (1) and (2) of the Employment Code Act. 96.1 shall now proceed to determine whether the termination of the Complainant's contract of employment was wrongful. J28 Was the termination of the Complainant's contract of employment wrongful? 97.1 noted that the Complainant's submissions where mostly grounded on the on the failure by the Respondent to give reasons for the termination of the Complainant's employment contrary to Section 52 (1) and {2) of the Employment Code Act. 98. On the other hand, the Respondent's position as set out its submissions was that the termination of contract was not wrongful. This was on the ground that it was done pursuant to Clause 13 of the Complainant's contract of employment which gave either party the right to terminate the contract upon giving one month's written notice. 99. It was submitted that whether taken from the letter of 14th January 2022 or the letter of 7th February 2022, the result was that the Complainant was given one month's notice or payment in lieu of notice, which were both lawful ways of terminating a contract of employment. Reliance was placed on Section 53 (4) of the Employment Code Act and the case of Zambia Consolidated Copper Mines V James Matale (6) in support of the position that the Respondent could terminate the contract of employment by paying the Complaint in lieu of notice. 100. The claim for wrongful termination of contract could therefore not stand as the termination was done in accordance with the contract of employment. 101. It is trite that the focus when dealing with a wrongful termination suit is on 'how' the termination was carried out. Where such termination is carried out in a manner contrary to the terms of contract of employment, such conduct by an employer would constitute wrongful termination of contract. In other words, a 'wrong' arises where for instance, the employer breaches the contract by failing to give the terminated employee notice in accordance with the terms of the contract. J29 102. In the case at hand as already established, Clause 13 of the Complainant's contract of employment gave either party the right to terminate the contract upon giving one month's written notice. The Respondent thus had an obligation to give the Complainant one months' notice of its intention to terminate the employment relationship. I find that the Respondent did give the requisite one months' notice with an effective date of termination being 13th February 2022. 103. In conclusion, I find that there was no wrongful termination of contract under the facts of this case. 104. Having found that the Complainant's contract of employment was not wrongfully terminated, I shall now proceed to determine whether he is entitled to damages for unlawful termination of contract. (iii) Whether the Complainant is entitled to damages for unlawful termination of contract 105. I did consider the parties rival submissions and all authorities cited in the said submissions over the issue of damages. 106. It was submitted by the Respondent that in the event that this Court found that the Complainant's contract of employment was wrongfully or unlawfully terminated, all he was to be awarded were damages equivalent to the notice period in the contract as established in a plethora of authorities cited in the parties' submissions. 107. On behalf of the Complainant, it was submitted that the Complainant was on the authority of Dennis Chansa v Barclays Bank Zambia PLC (7), entitled to an award of damages exceeding the normal measure of damages. l 08. Following my finding that the Complainant's contract of employment was unlawfully terminated, I further find that he is entitled to damages for the said unlawful termination of contract. My next assignment is to determine the quantum of damages. J30 109. I shall refer to four cases for guidance in determining the quantum of damages, namely Chansa Ng'onga V Alfred H. Knight (Z) Limited (8), Swarp Spinning Mills PLC v Chilshe and Others (9), Dennis Chansa v Barclays Bank Zambia PLC and the Mark link and Others case. 110. It is trite that under the context of employment, the normal measure of damages is the salary equivalent to the notice period. In the event that the contract of employment did not provide for a notice period, the normal measure would be the salary equivalent to reasonable notice. 111. In the Chansa Ng'onga case, the Appellant sought to be paid compensation for 24 or 36 months which he had not worked for. The Supreme Court noted that it was fair for him to entertain such hope as long as he could show, as did in claimants in cases where such awards were made, that the peculiarity of the circumstance and the loss he suffered merited such an award. 112. The Supreme Court further guided that a Court could depart from the normal measure where there were compelling circumstances to warrant such an award. These were circumstances, such as where the termination of employment or dismissal was inflicted in a traumatic fashion and the loss suffered by the employee justified an award higher than the salary equivalent to the notice period . The factors to be used in determining the measure of damages following unlawful or wrongful conduct thus depended on the facts and varying individual circumstances in each case . 113. Indeed, as was guided by the Supreme Court in the case of Swarp Spinning Mills PLC case, the assessment of quantum of damages is not simply an exercise of adopting the quantum of damages awarded in other cases, when circumstances do not lend themselves to the drawing of parallels . 114. I now have the task of determining whether the Complainant in this case demonstrated on a balance of probabilities that the circumstances J31 of his case took it out of the realm of the ordinary award of damages for unlawful termination of contract. 115. According to the Complainant, at the point his contract was terminated, he had been in this country for close to 10 years and was required to surrender his work permit and abruptly return to South Africa. It was his position that having been away from South Africa, he would have to re-adjust his life and find alternative employment of similar position either in South Africa or in Zambia. It was his further position that finding alternative employment either in Zambia or South Africa was quite remote. 116. In my view, the Respondent did not take into consideration the ultimate effect of its abrupt termination of the Complainant's contract without any reason/s contrary to the law. 117. The Respondent did not accordingly consider that the Complainant would under the circumstances of this case, be required to abruptly return to South Africa and re-adjust his life after being away from that country for close to 10 years. Further, taking his position of finding alternative employment in Zambia , he would similarly have to abruptly start looking for employment. The Complainant's position was also that his permit was blocked and he was thus unable to acquire a new permit until the determination of this matter. 118. Flowing from the Complainant's lamentations about the grim prospects of finding alternative employment of similar position, either in South Africa or Zambia, I find it fit to take note of the sentiments expressed by the Supreme Court in the 2011 Dennis Chansa case. The Supreme Court acknowledged that it would be hard to find a job in the current domestic and global economic environment. This consideration was supposed to lead to a progressive upward increase in damages. 119. Turning back to the case at hand, I take judicial notice of the current global economic environment and job scarcity. J32 120. Taking the above considerations into account, I am satisfied that the Complainant's case has been taken out of the realm of the ordinary award of damages for unlawful termination of contract. 121. In the 2021 Mark link and Others case, the Court of Appeal awarded the Appellants 12 months' basic salaries for unlawful termination of contract of employment. The Court of Appeal in arriving at that award, considered the 2018 case of Spectra Oil Zambia Limited v Oliver Chinyama (10). 122. In the Spectra Oil Zambia Limited case, the employer terminated the contract of employment without furnishing the employee with a valid reason as required by statute. The High Court awarded 12 months' salaries as damages and this award was upheld by the Court of Appeal on the basis that it was not inordinately high. 123. In the Mark link and Others case, the Court of Appeal in awarding 12 months' basic salaries, took into consideration that the termination of the Appellants contracts of employment was abrupt. Further, that the Appellants were all foreigners who had to exit the country and wind up their personal affairs at short notice. 124. In the case at hand, the Complainant has in my view not sufficiently demonstrated his entitlement to an award exceeding 36 months' salaries. On this aspect I again call to mind the Supreme Court's guidance in the Swarp Spinning Mills PLC case, to the effect that the assessment of damages is not simply an exercise of adopting the quantum of damages awarded in other cases, when circumstances do not lend themselves to the drawing of parallels. 125. Considering the similarities between the Complainant's case and the Mark link and Others case, I am of the view that an award of 12 month's basic salaries for unlawful termination contract is appropriate under the circumstances of this case. J33 126. I accordingly award the Complainant damages for unlawful termination equivalent to 12 months' basic salaries as damages. I take note that I found the Respondent's letter of 7th February 2022 which adjusted the effective date of termination and provided for payment in lieu of notice to have been invalid. This meant that the effective date of termination was 13th February 2022. It follows that any salary paid specifically in lieu of notice on the ground of the 7th February 2022 letter, shall be deducted from the 12 months' basic salaries award. 127. The sum due to the Complainant shall attract interest at short term bank deposit rate from the date of the Notice of Complaint, 13th April 2022, to the date of Judgment and thereafter at the current lending rate as determined by the Bank of Zambia until full payment. (iv) Whether or not the Complainant was declared redundant and entitled to a redundancy package? 128. I noted that the Complainant 's submissions did not address the Complainant 's claim for a declaration of redundancy and entitlement to a redundancy package. 129. I however take note of the Complainant 's position that he was informed that the Respondent was downsizing its business and a number of outlets were closed. Mr. Potgieter, the Respondent's witness admitted under cross-examination that the Respondent had closed some of its shops during the past 5 years. 130. The Complainant also relied on exhibit "TP2" in the Affidavit in Reply to the Respondent's Affidavit in Support of Answer, which he termed a redundancy letter issued by the Respondent to some of its employees. 131 . As submitted by the Respondent, the evidence led during cross- examination pointed to the Complainant's belief that the downsizing of the Respondent's business formed the basis of his claim for redundancy benefits. In this regard, the Respondent submitted that the Complainant's J34 contract was not terminated by reason of redundancy as none of the instances listed under Section 55 of the Employment Code Act occurred. 132. To establish whether the Complainant can be said to have been declared redundant, I will proceed to review the provisions of Section 55 (1) of the Employment Code Act No. 3 which provides instances when an employer can be deemed to have terminated an employees' contract of employment by reason of redundancy. It provides that: (1) An employer is considered to have terminated a contract of employment of an employee 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 employees were engaged; (b) the business ceasing or diminishing or expected ceasing or diminishing the requirement for the employees to carry out work of a particular kind in the place where the employees were engaged; or (c) an adverse alteration of the employee's conditions of service which the employee has not consented to. 133. Having considered the above provision of the law on redundancy, I have found it difficult to appreciate essence of the Complainant's claim for a declaration of redundancy and consequential payment of a redundancy package. Exhibit "TP2", in the Affidavit in Reply, does not assist the Complainant's case under this head in any way. The said exhibit is a termination of contract letter addressed to another employee. It was not open to the Complainant to use another employee's termination of contract letter to prove that he had been declared redundant. There is J35 further no way of ascertaining whether the contract of employment of the employee in exhibit "TP2", was terminated by reason of redundancy. 134. I agree with the Respondent's submissions that, the Complainant's mode of exit from employment was not on the basis of any of the situations laid down in Section 55 (1) of the Employment Act of 2019. 135. To buttress this finding , it is clear that there is no evidence that was adduced to prove that: i. The Respondent had ceased or intended to cease to carry on business by virtue of which the Complainant was employed at the time of the termination of his contract. ii. The Respondent had ceased, diminished or was expected to cease the requirement for its employees to carry out work of a particular kind in the department the Complainant was engaged; iii. There was an adverse alteration of the Complainant's conditions of service which he did not consented to. 136. I further noted that the Complainant's case on wrongful and unlawful termination of contract was premised on the fact that the Respondent contravened the law when it terminated his contract of employment without a valid reason by letter dated 14th January 2022. It is thus difficult to appreciate how the on the one hand could claim that his termination was not for a valid reason and on the other hand claim that his termination was by reason of redundancy. 137. In the final analysis I find that the Complainant's claim under this head does not have legs on which to stand on and is accordingly dismissed. (v) Whether or not the Complainant is entitled to damages for mental torture and inconvenience due to the termination of employment? J36 138. As regards the claim for damages for mental torture and inconvenience due to termination of employment, I shall refer to the case of Chilanga Cement Pie V Kasote Singogo (11), for guidance. The Supreme Court guided as follows at page 35: We are of the view, however, that such an award for torture or mental distress should be granted in exceptional circumstances, and certainly, not in a case where more than the normal measure of common law damages have been awarded; the rationale being that enhanced damages are meant to encompass the inconvenience and any distress suffered by the employee as a result of the loss of the job. (underlining showing emphasis mine) 139. Under the circumstances, having awarded the damages that exceed the normal measure of damages, I cannot award the Complainant further damages for mental distress and inconvenience as guided by the Supreme Court in the Kasote Singogo case. 140. In the upshot, the Complainant is not entitled to an award of damages under this head. The claim is accordingly dismissed. Whether the Complainant is entitled to any other equitable reliefs that the Court may grant plus costs and interest 14 l. I note that the Complainant was registered with the National Pension Scheme Authority (NAPSA) and confirmed that his pension was to be paid through NAPSA. I also note that the Respondent has conceded that it is responsible for the Complainant's repatriation costs. Accordingly, as regards the Complainant's claim for any other equitable reliefs the Court may grant, I find that the Complainant is not entitled to the same, save for the award of damages for unlawful termination of employment contract. J37 142. Turning to the Complainant's claim for costs, I shall refer to the Supreme Court's sentiments at pages 21 and 22 in the case of Zambia National Commercial Bank V Joseph Kangwa (12): With regard to costs, Rule 44 of the Industrial and Labour Relations Court Rules contained in the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia provides that a party should only be condemned to costs if they have been guilty of misconduct in the prosecution or defence of the proceedings. We wish to adopt the principle in that rule since this is a matter coming from the Industrial Relations Court. We do not find any misconduct in the Respondent's defence of this appeal. 143. The Court of Appeal in Kansanshi Mining Pie V Mathews Mwelwa (13) referred to the aforementioned decision of the Supreme Court and stated as follows at page 6: Our understanding is that in as much as it is trite law that costs follow the event, matters in the Industrial Relations Division fall in a special or unique category. This means that the general rule does not apply to matters brought in the Industrial Relations Division ..... .......... The question as to the award of costs as explained in the recently decided cases applies equally to employers and employees. 144. Further at page 7 that: In order for one to be awarded costs the onus falls on them to demonstrate that the claim falls under one of the exceptions. The long and short is that the general rule of costs follows the event does not apply in matters under the Industrial Relations Division "unless one J38 is guilty of unreasonable delay or taking improper vexatious or unnecessary steps in any proceedings or the other unreasonable conduct." A claim for costs must thus fall in one of the instances highlighted above and if not costs should not have awarded ... 145. I have considered the circumstances of the case before me and find that no reasons have been availed to me that would warrant the award of costs to the Complainant. I therefore dismiss the claim for costs and order that each party shall bear their own costs. 146. With regard to interest, I have already awarded interest on the sum to be found due as damages for unlawful termination. CONCLUSION 147. For avoidance of doubt, in conclusion I make the following Orders: (i) The Complainant's claim for a declaration that the termination of employment was unlawful is merited and therefore upheld. The claim that he was wrongfully terminated is not merited and is accordingly dismissed. (ii) The Complainant is entitled to damages for unlawful termination of contract and is awarded 12 months' basic salaries as damages, less payment of any salary paid specifically in lieu of notice on the basis of the Respondent's letter of 7th February 2022. (iii) The Complainant's claim for a declaration that he is now redundant and entitled to redundancy benefits is not merited and is accordingly dismissed. (iv) The Complainant is not entitled to damages for mental torture and inconvenience due to the unprecedented wrongful and J39 unlawful termination of employment. This claim is accordingly dismissed. (v) The Complainant is not entitled to any other equitable reliefs that the Court may grant. (vi) The sum due as damages for unlawful termination of contract shall attract interest at short term bank deposit rate from the date of the notice of complaint, 13th April 2022, to the date of Judgment and thereafter at the current lending rate as determined by the Bank of Zambia until full payment. (vii) The Complainant is not entitled to his claim for costs. Consequently, each party shall bear their own costs.