Veronica Samuel Mwanza and Anor v Luxury Duty Free Limited (COMP/IRCLK/526/2021) [2025] ZMHC 128 (30 September 2025)

IN THE BIGH COURT FOR ZAMBIA COMP/IRCLK/526/2021 INDUSTRIAL RELATIONS DMSION HOLDEN AT LUSAKA BETWEEN: VERONICA SAMUEL MW ~ !:=::~~::::;,,..__ 1 sT COMPLAINANT ~✓,, -~ND COMPLAINANT GWEN MULENGA AND ~T OF z,,,,_, ':,,. LUSAKA -( 3 O SEP 1115 J a'~ $EAL , f•~VJ LUXURY DUTY FREEL RESPONDENT Coram: Chigali Mika Ii le, J this 30th day of September, 2025 For the Complainants: Mrs, J, Chimfwembe & Mrs R, Mawere Banda Messrs Chifunda Chimfwembe & Co. For Respondent: No appearance Legislation to referred L The Minimum Wages and Conditions of Employment (Shop Workers) (Amendment) Order, 2018 (SJ. No 70 of2018J 2, The Employment Code Act No, 3 of 2019 3, The lndustlial and Labour Relations Act, Chapter 269 Cases to referred I . 1. Chilanga' Cement Pie v. Kawte Singogo {2009) ZR 122 • 2. Chansa Ng'.onga v. A\fred H. Knight (Z) Ltd, Selected Judgment No. 26/2019 Introduction 1. This action was commenced on 28th September, 2021 by way of Notice of Complaint. The complainants allege that the respondent verbally dismissed them without notice contrary to the terms and conditions of employment and refused, neglected or ignored to pay their dues. They thus seek the following reliefs: 1. One month salary in lieu of notice in the sum of K 2,974.00 each; 2. Tenninal benefits for 7 years of service in the sum of K 97,601.00 and K 81,276.00 respectively; 3. Payment of K 38,662.00 each as monthly salary fro1n the date of dismissal to date; 4. Payment of K 2,974.00 each per month until full payment of the terminal benefits owed; 5. Costs of and incidental to this action; 6. Any other relief the Court may deem.fit. Affidavit evidence 2. In the brief supporting affidavit, the complainants deposed that they were employed on 1st January, 2015 as sales persons on a one year fixed renewable contract of employment at a basic salary of K 852.03. Exhibited to the affidavit as ""MMl" is a contract between the respondent and the 2 nd complainant. 3. In August 2020, after working for 7 years, the respondent proceeded to verbally dismiss both the complainants without notice contrary to clause F of the employment contract signed on 1st January, 2015. )2 A complaint was filed with the labour office which office wrote to the respondent advising on the terminal dues to be paid. Letter dated 22 nd September, 2020 is exhibited to the affidavit as "MM2". The respondent, through its Director, responded to the Commissioner on 25•h September, 2020 and asked for time to complete the books and submit a comprehensive report. The letter is exhibited as "MM3". This avenue proved futile hence this action. 4. According to the complainants, their terminal benefits of K 97, 610.00 and K 81,276.00 respectively include redundancy packages calculated at 2 months basic pay per each year served, leave benefits, salary arrears and salary underpayments. 5. There was no Answer and affidavit in opposition filed. Trial course 6. Only the complainants' advocates were in attendance. The respondent was absent for reasons unknown to Court and the matter proceeded as [ was satisfied that the respondent was aware of the trial date. Before Court is an affidavit of service with an exhibit showing that Shamwana & Company received the notice of hearing about a week prior to the hearing date. 7. Counsel for the complainants informed Court that the complainants would not give oral evidence and that Court could proceed to render judgment based on the evidence so far on record. The matter was then adjourned for judgment. J3 Analysis and decision 8. l have carefully considered the affidavit evidence. l remind myself that the burden of proof rests on the complainants. They ought to prove their claims against the respondent on a balance of probabilities and the absence of a defence does not entitle them to automatic success. 9. I now state my findings of fact. I am satisfied that the complainants were employees of the respondent. The respondent was written to regarding the terminal dues of the complainants and, in its response, did not dispute being the complainants' employer. In light of this and in the absence of a defence, I have no qualms accepting that: the complainants were employed as sales persons on a one year fixed term renewable contract in 2015; that their employment was verbally terminated in August, 2020; and that their terminal dues were not paid. 10. I further find as a fact that as sales persons, the complainants were protected employees under the Minimum Wages and Conditions of Employment (Shop Workers) (Amendment) Order, 2018 (SJ. No 70 of 2018), therefore, entitled to wages as provided thereunder or better. 11. What I ought to resolve, therefore, is whether or not the evidence on record is sufficient to establish that the complainants are owed the terminal dues sought. Payment in lieu of notice 12. The labour officer, in his letter to the respondent's director (exhibit "MM2") stated his findings as being that the complainants were declared redundant as a result of economic challenges and in view of this, the complainants were entitled to salary arrears, salary underpayments, leave days, redundancy package and salaries from the time the complainants stopped work. 13. As alluded to earlier, the director replayed to this letter and did not dispute these claims. Furthermore, there was no reaction to the notice of complaint, therefore, the affidavit evidence remains unchallenged. rn the circumstances, I am without a doubt that the complainants were made redundant and not notified of the impending redundancy. The question that arises then is - does that entitle them to notice pay? 14. An examination of the Employment Code Act, 2019 {hereinafter referred to as ECA) reveals that subsection 2 of section 55 lays out the procedure that the employer needs to follow when employees are to be declared redundant. It stipulates as follows: 55(2) Where an employer intends to terminate a contract of employment by reason of redundancy, the employer shall • a) give notice of not less than thirty days to the employee or the representative of the employee of the impending redundancy and infonn the representative on the number of employees, if more than one to be affected and the period within which the tennination is intended to be carried out; JS b) afford the employee or representative of the employees an opportunity to con.suit on the measures to be taken to minimise the termination and the adverse effects on the employee; and c} not less than. sixty da.ys prior to effecting the termination, rwtify an authorised officer of the impending termination by reason of redundancy and submit to that authorised officer information on- i. ii. m. 1v. the reasons for the termination by redundancy; the number of categories of employees likely to be affected; the period within which the redundancy is to be effected; and the nature of the redundancy package. 15. As can be seen above, the employer is mandated to give employees notice of its intention to terminate contracts of employment by redundancy. The provision, however, does not provide for payment in lieu of notice. The rationale behind this is that redundancy is a planned activity that does not occur abruptly. This was aptly explained by the apex court in the case of Chilanga Cement Pie v. Kasote Singogotll. In the circumstances, I am disinclined to grant the claim for notice pay. 16. However, having failed to give the requisite notice, and on the whole follow the redundancy procedure outlined above, the respondent terminated the complainants' employment contrary to statute and this entitles the employees to damages for unlawful termination or abrupt and unplanned redundancy. 17. In deciding the quantum, I have had recourse to the case of Chansa Ng'onga v. Alfred H. Knight (Zl Ltdl2l wherein the Supreme Court confirmed that the normal measure of damages is an employee's notice period in the contract of employment or as provided for in law. )6 However, this can be departed from, only when the employee proves that they are deserving of more and the conduct of the employer was so serious that it warrants a higher award of damages. 18. In the matter at hand, there is no evidence persuading me to depart from the normal measure which, according to the contract on record, was one month's pay. I accordingly order that each complainant be paid one month's full salary as damages for unlawful termination or abrupt loss of employment. 19. I note that the complainants are each claiming a sum of K 2,974.00 as their monthly salary. However, no pay slip was produced to confirm this figure. Further, when one adds up the basic pay of K 2,031.00 of a sales person (as per S. I. 70 of2018) and the allowances, being lunch, transport and housing, one does not arrive at K 2, 974.00. In the circumstances, the sum due shall be assessed by the learned Registrar. Redundancy benefits 20. Having determined that the complainants' employment was terminated by way of redundancy, it follows that they are entitled to benefits stipulated under section 55 of the Act. Subsection (3) states: Subject to section 57, an employee whose contract of employment has been tenninated by reason of redundancy shall- a) Unless better terms are agreed between the employer and the employee concerned or the employee's representatives, be entitled to a minimum redundancy payment of not less than two months pay for every year J7 served and other benefits the employee is entitled to as compensation for loss of employment; and b) Be paid the redundancy payment no later than the last days of duly of the employee, except that where an employer is unable to pay the redundancy payment on the last duty the employee, the employer shall continue to pay the employee full wages until the redundancy package is paid. 21. The complainants claim that they worked for 7 years. However, the period from January, 2015 to August, 2020 does not amount to 7 years. The complainants in truth only served about 5 years and 7 months. The Registrar shall compute the sum due to each complainant in accordance with the years served. Salary arrears 22. The complainants are claiming arrears for 12 months. According to them, they were only paid K 5,800.00 out of the total arrears due. The letter from the labour office to the respondent buttresses this claim. It reveals that the complainants' complaint was that they had not been paid from August, 2019 to their tennination, which was in August, 2020. Again, the respondent did not distance itself from this allegation either in its reply to the labour commissioner or before Court. The only plausible explanation for this is that the respondent has no defence. 23. In the circumstances, I find that the complainants are owed salary arrears for 12 months less the amounts already paid. These shall be computed by the Registrar based on the correct salary due in accordance with the law. J8 Salary unde,:payments 24. The complainants are alleging that they were underpaid by K 998.00 per month in contravention of Statutory Instrument No. 70 of 2018. This, according to them, dates back to the time the amendment came into effect in September, 2018. 25. In the absence of evidence to the contrary, I accept the complainants' assertion. However, I note that their calculations for salary underpayment are for 23 months. Clearly this covers the period they did not receive their salaries at all, that is the period from August, 2019 to August, 2020. Indisputably, one cannot speak of an underpayment if they have not been paid at all. As such, the correct period for consideration under this claim is September, 2018 to July, 2019 when the complainants were last paid by the respondent. 26. In light of the scanty information on record, the learned Registrar shall compute the difference between what the complainants received bet\veen September, 2018 and July, 2019 and what they ought to have received in that period in accordance with the law. Leave days 27. Only the first complainant is claiming under this head. She claims a sum of K 15,785.00 based on 138 days and at a full pay of K 2,974.00. I have no qualms accepting that the complainant is owed leave benefits as this was one of the claims that was made long before the matter was brought to court and to which no dispute was mounted by the respondent. J9 28. Nevertheless, the complainant has not proved that K 2,974.00 was her monthly entitlement, therefore I cannot endorse the amount arrived at. As such, the leave benefits due shall be assessed by the Registrar. Payment of salary until tenninal benefits are paid 29. The complainants, as found, were made redundant. As seen from section 55(3) of the ECA cited earlier, they ought to have been paid the redundancy payment not later than the last day of duty unless the employer was unable to pay on the last day, in which case the employer ought continue to pay the employee full wages until the redundancy package is paid. 30. The provision is couched in mandatory terms. As such, I order that the complainants be paid their full wages from the date of termination of their employment until the redundancy benefits are paid in full. Costs 31. Costs in this division are only awarded in accordance with Rule 44 of the Industrial Relations Court Rules, Cap 269 which states that the court may only make an order for costs if any person has been guilty of unreasonable delay or taking improper, vexatious or unnecessary steps in any proceedings or other unreasonable conduct. The respondent did not enter appearance and was a no show at trial. I find this to be unreasonable behaviour envisaged by rule 44. As such I award cost of this action to the complainants. JlO Conclusion and orders 32. The complainants have proved their claims on a balance of preponderance. They have established that their termination was by way of redundancy. The failure by the respondent to adhere to the established redundancy procedure was a breach of its statutory obligation entitling the complainants to damages for unlawful termination or abrupt loss of employment. Further, they have shown that they are owed salary arrears and that they were underpaid following the enactment of S. I. 70 of 2018. 33. For the avoidance of doubt, I make the following orders: (i) Each complainant shall be paid a redundancy package of 2 months' pay for every year served; (ii) Each complainant shall be paid 1 month's salary as damages for unlawful termination of employment; (iii) Each complainant shall be paid salary arrears for 12 months less the amount of K 5,800.00 already received; (iv) Each complainant shall be paid salary underpayment for the period September, 2018 to July, 201 9. (v) The 1st complainant shall be paid leave benefits; (vi) The complainants shall receive salaries from the date of termination until their redundancy benefits are paid in full; (vii) The sums due shall be the assessed by the learned Registrar and shall attract interest at short-term bank deposit rate from the date of complaint to the date of judgment and thereafter, at the current bank Jll lending rate as determined by the Bank of Zambia until full settlement; (viii) The complainants are awarded costs to be agreed or taxed in default of agreement. Delivered at Lusaka this 30th day of September, 2025 ············~ ·~··· JUDGE euc OF '-~Me; ouRl , QR~ u '"'"'~ -' ," ~j •1 , ... .. , ,o~s / , " "' ••·· JUDGE---;,.,,,<t . I l'Ji1At. Ac•.1>~1c>ls o V X 3"CC9.~ Jl2