Turnvell Mataa Sendoi v Interlink Freight Services Limited (2023/HPIR/0527) [2024] ZMHC 140 (4 September 2024)

IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (Civil Jurisdiction) 2023/HPIR/0527 BETWEEN: TURNVELL MATAA SENDOI AND - - -~~~ ' \l =----~,.;; ' ,.,.r-· __ , '\ . , l, : u 4 ..- . ') ~ . . 7 \ ~ - ~ · · / i:.:.,_ I ' " ' ' ...,_' !<\ • I I COMPLAINANT INTERLINK FREIGHT SERVICES LIMf!'~ - / RESPONDENT Coram: Before Hon. Lady Justice Mrs. Mwaka. S. Ngoma this 4 th day of September, 2024. For the Complainant For the Respondent In Person. Mr. H. B Hantumbu of Muleza Mwimbu & Co. JUDGMENT Legislation referred to: 1. The Employment Code Act, No. 3 of 2019. Case referred to: 1. Wilson Masauso Zulu V Avondale Housing Project (1982) ZR 172. 2. Zambia Revenue Authority and Christopher Kanga (sued as Administrative of the Estate of Godfrey Locha (Deceased) Appeal No. 219/2015. INTRODUCTION 1. The complainant commenced this action against the respondent by way of notice of complaint and supporting affidavit on 26th May, 2023 seeking the following reliefs: a. Underpayment of Gratuity Jl b. Overtime allowance c. Deduction of Charges d. Costs and any other benefits the court may deem fit. COMPLAINANT'S AFFIDAVIT EVIDENCE 2. In his affidavit in support of complaint, the complainant deposed that he was employed by the respondent as a workshop foreman on contract basis on 2nd June, 2022. He averred that he worked well until on 3rd May, 2023 when he wrote a letter to the respondent giving one month's notice not to renew his contract which was to end on 2nd June 2023. That, in response to his letter of non-renewal of contract, the respondent, by letter dated 18th May, 2023, instructed him to stop work immediately. The complainant's letter and respondent's response are exhibited in the affidavit in support of complaint as "TMS 1" and "TMS 2", respectively. 3. The complainant further averred that after he stopped work, the respondent levied charges against him for negligence and deducted an amount of Kl4,130 from his benefits. The tabulation of his benefits was exhibited as "TMS3". RESPONDENT'S ANSWER AND AFFIDAVIT VERIFYING ANSWER 4. In its answer, the respondent stated that the complainant was requested to stop work immediately his letter giving notice not to renew his contract was received because of his non-satisfactory performance during the tenure of his employment. It was further stated that the complainant was, nevertheless, paid his full salary of June 2023 as if he had worked the whole month. 5. In the affidavit in support of answer deposed to by Hendrix Kapimpa the Human Resources Officer, it was averred that the issue of the complainant's sub-standard performance was raised with him during the J2 tenure of his employment, with no improvement on his part. Copies of letters written to the complainant over his unsatisfactory performance are exhibited as "HK2". 6. It was further averred that the respondent charged the complainant with negligence. That the complainant's negligent acts resulted in the respondent incurring losses to the tune of K24,346. That the disciplinary committee acquitted the complainant of other charges and only found him responsible for negligent actions leading to the loss of Kl 4,130.99. 7. It was the deponent's further testimony that the respondent was within its rights to charge the complainant for negligence and recoup its losses from him. REPLY 8. In his affidavit in reply filed on 31 st August 2023, the complainant stated that the respondent did not call him for any disciplinary hearing and that he was not paid his overtime and that his gratuity was underpaid. HEARING 9. At the hearing held on 16th November, 2023, the complainant gave evidence on his own behalf and called no witness. The respondent called two witnesses. COMPLAINANT'S CASE 10. The complainant told the court that it was after he gave the respondent notice of non-renewal of his contract of employment that charges were brought against him alleging that he was negligent in his duties leading to the respondent losing money which amount would be deducted from his gratuity. He did not agree with this so he wrote a letter disputing this but the J3 respondent was adamant, leading to him involving the Labour Office. That too did not work, hence his decision to come to court. 11. It was his further testimony that during his employment, he often used his tools to repair company trucks and yet he was not paid any allowance for the use of his tools. Further, that he often worked on Saturdays, Sundays, and public holidays, and sometimes overnight up to 05:00hours. That he was not paid any overtime allowance despite him requisitioning management for the same. 12. It was his evidence that his gross monthly salary was K14,130.99; and the gratuity he was paid was K32, 624. 13. Under cross examination he told the court that after the charges were brought against him, he wrote an exculpatory letter resulting in some charges being dropped. That he appealed to the General Manager requesting for a meeting but, regrettably, he was not accorded the opportunity to meet with him. 14. Under further cross examination, he told the court that his claim was for the amount of Kl4, 130.99 which was wrongly deducted from his gratuity and unpaid overtime allowances. He, however, admitted that entitlement to overtime allowance was not specified in his contract of employment. 15. In continued cross examination, he told the court that he was responsible for certifying the respondent's vehicles' readiness to go on the road and that he worked under a manager. J4 16. In re-examination, he clarified that the letter of 12th May, 2023 was an appeal letter to the General Manager. RESPONDENT'S CASE 17. The respondent's witness, Hendrix Kapimpa, ("RWl", told the court that he worked for the respondent as Human Resources Officer. 18. It was his testimony that the gratuity paid to the complainant was properly calculated as per breakdown of the same exhibited as "HK7" in the affidavit in support of answer. He added that the complainant's basic pay for the months June 2022 to August 2022 was K8000 whereas the basic pay for the months September, 2022 to May 2023 was K10748. The pay for the 2 days in June was based on the two days he had worked in June. The gratuity paid was the sum total of the amounts paid. 19. RWl further testified that payment for overtime was subject to approval by one's superior. He added that all overtime is paid within the month that it accrues. He told the court that the complainant had not shown the respondent any approved overtime forms and neither has he mentioned a figure he was claiming in respect of overtime. He emphasized that the respondent could not process such a claim without approved documentation. He further stated that it was doubtful that any employee could work overtime continuously from the 1st day of employment to the end of it. 20. In cross examination, RWl told the court that the amount of Kl4,130.99 deducted from the respondent's dues was in respect of expenses incurred by the respondent occasioned by the complainant's negligence of duty. JS 21 . RW2 was Given Munsanje, an assistant manager at the respondent company. His testimony was that the sum of Kl 4,130.99 deducted from the complainant's dues was in respect of costs incurred by the respondent allegedly due to the complainant's negligence in carrying out his duties. Exhibit HK3 was referenced to show the list of damages incurred in the workshop. 22. It was RW2's testimony that he personally discussed with the complainant to improve or reduce the number of breakdowns. The complainant had people reporting to him so it was his duty to segregate his team on all works assigned to him. He had the responsibility for certifying the roadworthiness of trucks. As such, he was responsible for bad workmanship because his duty was to ensure that the repairs were properly done before each truck left the workshop. 23. In cross-examination, RW2 testified that the truck relating to the 1st item on exhibit HK3 went to South Africa and back and to Congo and back with the same seal; that the truck in item no. 2 did not leave with workshop with a deflated tyre; that the pipe in relation to item no 3 was just a passage and not a storage; that the intercooler in relation to item no. 4 was changed in September 2022, the truck undertook a number of trips including to South Africa and back, to Congo and back. It was only in December 2022 that it was discovered that the intercooler had a problem. 24. In continued cross examination, he agreed that every work done in the workshop was done with prior authorization of the General Manager or himself and that when the work is done, the job card returns to him for signing that the work is done. J6 25. In further cross examination, he told the court that the complainant was reporting to him directly as he (RW2) was his immediate supervisor. ANALYSIS AND DECISION 26. The issues for determination, in my view are as follows: i. Whether the complainant· s gratuity was underpaid. ii. Whether the complainant is entitled to an amount of Kl4,130 which was deductedfrom his terminal dues. iii. Whether the complainant is entitled to overtime allowance i. Whether the complainant's Gratuity was underpaid. 27. The complainant-s claims for underpayment of gratuity and deductions of charges were listed as separate claims. However, at trial, he combined the two and only mentioned that his gratuity was underpaid by K14, 130, which is the amount in respect of deduction of charges. 28. The Respondent, on its part, through the testimony of RWl, tabulated that the complainant-s gratuity was calculated on the basic pay he earned at different times. Between June 2022 and August 2022, the complainant earned KB,000 per month. The total earned for the 3 months comes to K24, 000. From September 2022, the basic pay was Kl0,748. In June 2023, there was a prorata for 2 days which amounted to K826.77. J7 29. The gross of the basic pay came to K121, 558. Gratuity calculated at the rate of 25% of this gives K30,389.69. This testimony was supported by exhibit "HK7" in the respondent·s affidavit. The same is also exhibited in the complainant·s affidavit. 30. While the parties are agreed that gratuity was payable to the complainant, I have observed that the gratuity was calculated on the basic of a segmented contract duration as opposed to as a unit based on the last drawn salary as should have been the case. I am fortified by the Supreme Court decision of Zambia Revenue Authority and Christopher Kanga (sued as Administrative of the Estate of Godfrey Locha (Deceased) Appeal No. 219/2015 in which it upheld the trial Judge·s decision for gratuity to be re calculated on the basis of the basic salary reflected on the employee·s last pay statement. 31. Since it is not in dispute that the complainant·s last basic pay was Kl0,748, gratuity for the whole 12 months he served the respondent should have been based on the said amount of Kl0,748. According to my calculations, this would have given a total of K129,802.77. 25% of this amount is K32,450.69. The difference between this figure and the sum of K30,389.69 shown on exhibit HK7 is K2,061. Consequently, I find that the complainant was underpaid by K2,061. ii. Whether the complainant is entitled to an amount of Kl4,130.99 which was deducted from his terminal dues. J8 32. It is not in dispute that the respondent reduced the complainant's terminal dues by Kl 4,130.99. This was in respect of the losses or expenses allegedly incurred by the respondent arising from what it termed negligent work of the complainant in his duties as workshop foreman. 33 . It is also not in dispute that the only reason that the respondent sought to recover this amount from the complainant is because, as the foreman, the complainant was held responsible for any loss caused by workshop staff. This is clear from the letters exhibited in the affidavits, particularly the one marked HK3, which is a letter dated 5th May, 2023, addressed to the complainant by the General Manager, Mr. Paul Weng. This letter reads, in part, as follows: 5th May 2023. Mr. Fredrick M. Sendai Dear Mr. Sendai, WORKSHOP SUPERVISROY NEGLIGENCE · YOURSELF Reference is made to your disciplinary meeting held in the Human Resources Department dated 15th March 2023 to discuss an adverse situation in the workshop in light of an unacceptable number of returned jobs. As you are aware, management placed the smooth operation of the workshop exclusively under your authority and as such you were expected to take full responsibility for any omission or loss caused by workshop staff in the course of perfonning their duties as everything in the workshop begins and ends with you. J9 In view of the above, please be infonned that the company will recover from your dues the cost of the damages (please refer to the list of damages that has incurred in the workshop as per attached documents). By copy of this letter, the Finance Department is requested to deduct the total cost of these damages amounting to ZMW24,346.00 (Twenty-Four Thousand, Three Hundred and Forty-Six Kwachafrom your dues as per attached schedule. Should you require any clarifications, please let us know. Yours sincerely, (signed) Paul Weng General Manager 34. I have perused the documents filed by the parties and have not seen any reference to any clause in the conditions of service, contract of employment or section of the law empowering the respondent to hold the complainant responsible for the losses occasioned by fellow employees just because he was the foreman of the workshop. If the respondent has such a culture, then some explanation needed to have been given as to why the complainant's bosses who were supervising him were not equally charged. The complainant's testimony that the General Manager and RW2 signed each job card was unchallenged. 35. I have also not seen any charge letters in respect of each offence particularizing the alleged negligence on the part of the complainant. Further, the admissions made by RW2 under cross examination, as contained in paragraph 23 of this Judgment do JlO not help the respondent·s case as they raise doubts as to whether the complainant was truly negligent in his duties as alleged. For example, the trucks shown in items No. 1 and 4 on exhibit HK3 each travelled to South Africa and back, to Congo and back, before their respective problems which had earlier been attended to in the workshop resurfaced. It was not sufficiently demonstrated that despite covering these long distances, the respective problems of the trucks could only have recurred due to negligence of the employees in the workshop. 36 . Another example relates to the tyre relating to the truck in item No.2 on exhibit HK3. RW2 admitted that the truck in question did not leave the workshop with a deflated tyre. 37. In the light of the above, I see no justification for holding that the complainant was negligent. Consequently, I find that the respondent's decision to withhold the sum of K14,130.99 was wrong as it was not supported by law. The complainant's claim in this regard succeeds. iii. Whether the complainant is entitled to overtime allowance. 38. With regard to this claim, it was the complainant's evidence that during the time he worked for the respondent, he worked on Sundays, Saturdays, and holidays. Even on normal working days, he sometimes worked the whole day and night, up to 05:00hours. He made a requisition for overtime pay but he was not paid. The respondent, denied that there was any overtime payment due to the complainant. That the complainant had not shown any overtime claim forms, duly approved, to enable payment to him. J11 39. In dealing with this claim, as indeed with the other claims, I have reminded myself of the principle that the party that alleges has the duty to prove the issue alleged. Here, I am fortified by the holding in the case of Wilson Masauso Zulu V Avondale Housing Project1 where the Supreme Court restated the principle of law that he who alleges must prove; and Ngulube DCJ (as he then was), said the following at page 175: " ••• I think it is accepted that where a plaintiff alleges that he has been wrongfully or unfairly dismissed, as indeed in any other case where he makes any allegations, it is generally for him to prove those allegations. A plaintiff who has failed to prove his case cannot be entitled to judgment whatever may be said of the opponent's case." 40. The complainant, therefore, bears the burden of proving that he is entitled to overtime pay. He has, however, not exhibited any document to show that he did work overtime and requisitioned for overtime pay but was not paid. Further, in cross-examination, he conceded that his contract of service did not have a provision entitling him to overtime. 41. He has also not shown the log book which he said was signed by every employee on a daily basis indicating reporting time and knocking off time. 42. In my view, the complainant has failed to prove the claim for overtime allowances as he has not shown the basis upon which it can be paid. The claim is dismissed for lack of merit. J12 CONCLUSION AND ORDERS 43. The complainant has, on a balance of probabilities, proved his case to the extent shown above and I, accordingly, make the following orders: i. I award the complainant the sum of K2,061 in respect of underpaid gratuity. ii. I award the complainant the sum of Kl4,130.99 wrongfully deductedfrom his terminal dues. iii. The amount awarded shall attract interest at commercial bank deposit rate from the date of the notice of complaint to the date of Judgment and thereafter, at current lending rate as determined by the Bank of Zambia from the date of Judgment until full payment. iv. The claim/or overtime allowance has failed. 44. Each party shall bear its own costs. 45. Leave to appeal is granted. ptember, ... 2824 _ Hon. Lady Justice t ,I O / ,"-. )' . M. S. N goma High Court Judge J13