Wellington Malindi v Amerex Fire Equipment Limited (2022/HN/454) [2025] ZMHC 147 (30 December 2025)

,, \ I ·,' \ \ . . 11: · ·· .,:Gil ,•· \ · ,,, B -,. . ' . ( ~ \ \ i; ;~~, zoz~ \ -',) IN THE HIGH COURT FOR ZAMij~ . AT THE DISTRICT REGISTRY HOLDEN AT NDOLA ( ivil Jwis diction) BET\\TEEN C IVIi '1 E. O 1S U1• "1110 " CUU~ / 1 il\l.qlY,l .. U 2022/HN/454 WELLINGTON MALINDI PLAINTIFF AND AMEREX FIRE EQUIPMENT LIMITED DEFENDANT Before Honourable Mr. Justice D. Musonda For the Plain tiff For the - 1 I LEGISLATION AND OTHER WORKS REFERRED TO: l, The Employment Code Act No. 3 of 2019. CASES REFERRED TO: 1. Lubunda Ngala and Jason Chulu vs. Anti-Corruption Commission CC/ R 2 of 201 7. CamScanner J 2 2 . Attorn y -G neral v . Chibaya and 4 Others Appeal No. 70 of 2 011 . 3 . Anderson Mwale and Others vs. Za mbia Open University 2 02 1/CCZ/ 001 . 4. Colga te (Z) Palmolive Inc vs. Abel Shemu Chika and 11 O Others App eal No. 181 of 2005. 5. Zambia Ox ygen Limited and Another vs. Chisakula and Others SCZ No. 4 of 2000. 6. Rosemary Ngorima and 10 Others vs. Zambia Consolidated Copper Mines Appeal No.121 of 2014. 7. Nawa vs. Standard Chartered Bank Zambia PLC SCZ Judgment No. 1 of 2011. 8. King/red Phiri vs. Life Master Ltd Appeal No. 24 of 2023. 9. Wakelin vs. London and South Western Ry Co. (1886) 12 Appeal Cas 41. CamScanner 1.0 INTRODUCTION J3 1.1 Thi jud 111ent oncerns personal emoluments allegedly accrued duri n th e term of a n employment relationship. The plaintiff contends that he was not paid gratuity and pension when he left e1nployment. Further that he was not paid his pension cont1ibutions amounting to the sum of K37, 337 .50 deducted from his salary which were meant to be remitted to a pension scheme. 1. 2 The nature of the plaintiffs employment with the defendant was initially contractual and was made permanent and pensionable in the year 2017. 1. 3 The defendant disputed the claims. The defendant's position was that the plaintiff was paid all his dues when he left employment and further that the money deducted from the plaintiffs salary was fully refunded to him. CamScanner J4 1.4 Arising from th for going, the ques tion for the court is whether the pl aintiff is ntitled to the claims he raised in the writ of sun11nons . This question is broken in two as follows: - 1. Whether the plaintiff is entitled to an Order for payment of terminal benefits/ gratuity; and, 11. Whether the plaintiff is entitled to an Order for payment of K37, 377.00 as refund for the money purportedly deducted from his salary as pension scheme contribution. 2.0 AVERMENTS BY THE PLAINTIFF 2.1 The plaintiffs averments in the accompanymg amended statement of claim were that the defendant employed him in 2007 as a service coordinator. Upon his intimation to resign from his position, in the year 2009, he was promoted to the position of branch manager for the Copperbelt, the position he held on a renewable yearly contract until the year 2017. CamScanner J5 2.2 Wh n his contract expired in 2017, the defendant retained the plaintiff on permanent and pensionable basis up to the year 2020 \\ hen he resigned. 2.3 The plaintiff complained that he was not paid gratuity from the year 2007 to the year 2017. Further that he was entitled to the pension contributions which were not remitted by the defendant amounting to Kl 12, 132.50. 2.4 In viev., of the above, the plaintiff claimed the following reliefs: - (i) An Order that the plaintiff is entitled to payment of his terminal benefits and/ or gratuity for the period served; (ii) Payment for the terminal benefits and / or gratuity; (iii) An Order for the payment of Kl 12, 132.50 being the plaintiffs and defendant's contribution that was not remitted to a pension scheme for the plaintiff; (iv) Interest; CamScanner J6 (v) Costs. 3.0 THE DEFENCE 3. 1 The defendant denied the allegations contending that the contract of employment was performed to its core; therefore, there was no breach occasioned by the defendant. 3.2 The defendant added that the plaintiff and the defendant never entered into any agreement regarding gratuity to be paid to the defendant. According to the defendant, the plaintiff was on a one year fixed term contract which was renewable until the plaintiff resigned in the year 2020. 3 .3 It was the defendant's further averment that the plaintiff was always paid his dues upon the termination and renewal of his one year fixed term contract of employment and he was also paid his dues immediately after his resignation in the year 2020. 3.4 The defendant denied that the plaintiff was entitled to any of the claims in the writ of summons . , CamScanner J7 4 .0 THE PLAINTIFF'S REPLY 4. 1 Th plai n tiff fil ed a reply to the defence on 23rd Ma rch, 2023 a nd essentia lly joined issue with the defendant on its defence. 5.0 THE CASE FOR THE PLAINTIFF 5 . 1 The plaintiff gave evidence as PW 1 and called no witnesses. His witness statement was filed into court on 21 st January, 2025 . 5 .2 The plaintiffs testimony was that the defendant employed him as service coordinator in the year 2007. In the year 2009, he was promoted to the position of branch manager for the Copperbelt Province for a period of two years. The aspect of gratuity in the contract was left to be discussed in future. 5.3 After working for two years, the contract period was reduced to a one year term contract which was renewed until the year 2017. The plaintiff stated that he was not paid gratuity for the years he served from 2007 to 2020. CamScanner JO s. It wn. the plnintirrs i\ 1rtlw1· tcs t illlOll,Y tl 1nt i ll l l1 c: . Y<~fll' /. OJ ?, hr: WAS 111t nn pcnnmwnt nn d p c 1w io 11 1tl Jlc c mp loy rn c n . IJ 11rin1~ his cmpln. 1111 nt with t h e' d ,i ' tHln ul , 11> ' cl c ~ •1Hl,.n1l UHc d t<> ci duct moni s from hi s sa lary A. R ·o ntrib ttion H lowa rc.l H c1 J ens1011 h m wh i h mo ni s w re not r mi lted aH p e r th intended purpos Ov,nng to th e defe nd a nt 's failure to mee t its fin a n cia l obligations, th e pl a intiff resigned from his employment in the year 2020. He stated that he was entitled to gratuity for the 13 years based on long term service calculated at the rate of K 14, 000.00 his last basic salary and the sum of K37, 377.50 being mo n ie s th e defendant deducted from his salary as contribution towards a p ension scheme. 5.6 Und er cr oss -examination, the plaintiff stated that he was employed as se rvice coordinator on a 6 months contract of em p loy m en t. He s ta ted that he could not sue initially because the con trac t was fully p erformed. CamScanner J9 .7 H on ed d thnt th' outra ·ts of '1t1pluym nl h · •xcc.:utc.:d with th d f -,nd ·111t did not provid for paym nl of gratuity. He add ,d that the ·ontra ·t of mploy1nent he executed on 4th Ma rch, O 17 relating to his pcrn1anent and pensionable employment did n ot provide for deductions for a pension scheme. 5.8 PWl stated that there was no evidence that the pension scheme contributions were done through his pay slip. He added that K700.00 was deducted monthly from his salary from August, 2020 and a total of K2100.00 was deducted and not K37, 000 .00. 5. 9 The plaintiff explained that his bank statement showed that the sum of K2100.00 was paid to his account on 23 rd November, 2020. He denied subscribing to any pension scheme. 5.10 That marked the close of the case for the plaintiff. 6.0 THE CASE FOR THE DEFENDANT 6.1 The defendant only called one witness, Martin Landman, the defendant's General Manager who testified as DWI. ., CamScanner JlO ( .'..... ll is witn 'H:-l i; t n t c m c 11t lil c cl Into co irt 0 11 7,1, ,J;.1t 1u e:iry, 2025 r ~ cnl ' d th nt th e d c f •n dn 11t. e mploy· I tli • p la inti ff in th e year · 01 on n r ' n cwa bl c o n e year con lruc t. Th e on lracls were H cordingly r n w cf 1ntil t h e year 20 17 when the las t con tract ,~ as termin a ted by e ffluxion of time . However , th e pla intiff was a llo\\ ed to con tinue working un til the year 2020 when h e re ign d. 6.3 DWl a dded that the employment relationship of the plaintiff and the defendant was governed by letters of appointment, the employ ment policies and the law. The parties to the employment contract never agreed that gratuity would be paid or that the plaintiff would be contributing to a private pension scheme. 6.4 It was DWl 's testimony that the plaintiff was never placed on any permanent and pensionable employment. He added that the defendant only deducted the total sum of K2, 800.00 for the months July, 2020 to October, 2020 at the rate of K700.00 per month. , CamScanner , Jll Th ... nwn "' 7 " n howc, er, r ,fun led upon noti c ing th,. t the laintiff wn.s not n rc cnl>l to th , lcrrns o f th pension sch me pr ntcd to him . D \V l ' tflt cl tha t the pl a int iff W " s not en titled t any f th ch.ims in th writ of summons. nder cross-examination, OW 1 confirmed that the plaintiff worked for the d efend a nt for approximately 13 years from 1st June 200 7 to 2020. He could not recall whether the plaintiff received leave pay during the time he worked for the defendant. 6. 7 DVJ 1 stated that from the year 201 7 to 2020, the plaintiff was on pennanent and pensionable employment. For the period he v; orked up to the year 2017, the plaintiff received bonuses at the discretion of the defendant. He reiterated that K2, 100.00 was refunded to the plaintiff and not K2, 800.00. 6 .8 That marked the close of the case for the defendant. At the close of the case for the defendant both counsel for the plaintiff and the d efendant undertook to file final written submissions by 15th May, 2025. However, only counsel for the defendant filed submissions albeit out of time. CamScanner 7 .0 trn DI1.,J, ENDJ\N'l'' FINAL WHl'l"l'EN BUBMI BSIONR ,J 12 7 . 1 The clcf'cndnnl H finul written su 1Jmi1-H:1 ion s were filc.:d into 'Ollrt on :10 111 May, 202S. The defend a nt s tarted by restating that th' burden of proving the case against th e defendant r ~ted on the plaintiff. The case of Zambia Railways Limited vs. Pauline S. Mundia and Another was cited as authority for that proposition. 7.2 It was submitted that under the contracts of employment executed by the plaintiff and the defendant, gratuity was not part of the terms agreed on. To this, it was argued that the parties were bound by the terms of the contracts they executed. The case of National Drug Company Limited and Zambia Privatization Agency vs. Mary Katongo and Others with the same principle of law were relied on to augment that proposition. 7 .3 It was further submitted that the plaintiff failed to provide evidence that he signed up for a private pension scheme. The money that was wrongly deducted from the plaintiff was paid CamScanner J13 bn l· . Th ' icfcnd n111 'R nrgum ~nt 1n rc ln tio11 lo Urnt w~ n th c1t, th . p la intiff WH.~ n ot entitled to nn nw11 ~y n ~IHli11 g to FJ rri va c n i n s ' h m e . 7.4 In r la tion to te nnina l b enefits, it wa s s ubmitted that each n tract th e pla intiff signed was independent of the others. In t hi r egard it was argued that the plaintiff could not use the old expired contracts as the basis to count the years of his s en ice and further as the basis for claiming terminal benefits under the 201 7 contract of employment. 7 . 5 The case of Zambia Consolidated Copper Mines vs. Ma tale was relied on to augment that proposition. The defendant added that even under the 2017 contract of employment, the plaintiff was not entitled to terminal benefits because he had not met t he conditions set in clause 7 .2 and 18 of the said contract. This was so because the plaintiff did not attain the age of 55 years and secondly, he had not worked for a period of 10 years. CamScanner ,J14 7. Th pl int iff in this mnltcr only worked for 3 yearn before h~ re ·i 1 n d at the ag' of 41 years. The defendant Hubmittccl in su nnn utio n that the plaintiff had not proved hi s case on th e balanc of proba bilities and, there fore, was not e ntitled to judgm ent in his fa vor. 8.0 CONSIDERATION, ANALYSIS AND DECISION 8.1 I have considered the pleadings, the evidence on record and the defendant's final written submissions. From the said pleadings and the evidence, I find the following facts not in dispute and, therefore, proved on the balance of probabilities. 8.2 The plaintiff was employed by the defendant as a service coordinator on 1st June, 2007. The duration of service according to the plaintiff was one year. He however changed his position in cross-examination and stated that the contract was for 6 months. Even if the 2007 employment was not produced in the parties' bundles of documents, the defendant did not deny the assertion that the duration of the contract was one CamScanner J15 year. I thus find it factual that the plaintiff was employed on a one year contract in the year 2007 . 8.3 In the year 2009, the plaintiff was promoted to the position of branch manager for the Copperbelt Province for a period two years. 8.4 It is common ground that after working for two years, the contract duration was revised and reduced to one year. The subsequent employment contracts were constantly renewed until the year 2020 when the plaintiff resigned from his employment. 8.5 The plaintiffs contention in this matter is that he was entitled to payment of terminal benefits/gratuity for the period he worked for the defendant. Further that he was entitled to payment of the sum of Kl 12, 132.50 being a refund of money deducted from his salary as pension scheme contribution which was not remitted to the pension scheme by the defendant. CamScanner Jl6 • :1 Th defendant vehemently denied thal the plaintiff was not entitl d to a ny of the claims in the writ of summons as the contracts of employment he signed did not provide for payment of gratuity. Further that the money that was wrongly deducted fron1 the plaintiff for the purposes of remitting it to the pension scheme, was paid back in full. 8.7 In the premises of this case, therefore, the questions for determination are twofold; namely: - 1. Whether the plaintiff is entitled to an Order for payment of terminal benefits/gratuity; and, n. Whether the plaintiff is entitled to an Order for payment of K37, 377 .00 as refund for the money purportedly deducted from his salary as pension scheme contribution. 8.8 I will address the issues seriatim as raised above. In relation to the question whether the plaintiff is entitled to an Order for payment of gratuity /terminal benefits, it is cardinal to , CamScanner J17 m ntion th nl ~1rnluily uucl Len11l1rn l IJ ·nclllf-1 r •for t.o lw<J diff 'r'n t thin 1 s nl lnw. In lin e wi th lhc fon.:goin[', it wui-, HU1l cd in the cas of Lubunda Ngala and Jason Chulu vs. Anti Corruption Com1nission 1 as follows : " .. . it would be wrong to say that all terminal benefit s simply because they arise from the termination or coming to an end of the employment contract, s hould be considered or interpreted to be the same as a pension benefit. . .. Thus, it can be correctly said that a pension benefit is triggered by retirement due to age or other circumstances. " 8.9 Terminal benefits, as can be deciphered from the above, entails that they only arise when one retires from his position as a result, mainly of age. The remedy of terminal benefits only apply to employees on permanent and pensionable contracts of employment. This position was confirmed by the case of Attorney-General vs. Chibaya and 4 Others2 where it was held that : CamScanner I Jl8 "it is settled that an employee on a fvced term is not entitled to pension benefits or redundancy pay as such employee can only be entitled to gratuity at the end of his contract. If the contract is wrongfully terminated before it ends by effluxion of time, all the employee may be entitled to are damages for breach of contract." 8.10 Gratuity on the other hand, is not due by virtue of an employee having reached retirement age or having retired under any law, but by virtue of a contract coming to an end, whether by expiry of a fixed term, resignation and/or on termination of contract on medical grounds as underscored in the case of Anderson Mwale and Others vs. Zambian Open University3 • 8.11 Having regard to the circumstances of this case where the plaintiff who was on a fixed term employment contract, and resigned from his work, I take it that the plaintiffs prayer related to gratuity only. CamScanner J19 "'. 1 · ln thi ' matt 'r 1 agr c with th de~ nd ont's HU brn iss ion th at th ondi tions of crvicc fo r th ' pla intiff we re express ly set out in th resp tive con trac ts of e mployment a nd the employment policies. Th ese term s form ed the ba si s of the employment con tracts executed by the p a rties. 8.13 I affinn , as rightly submitted by the defendant, that where par ties freely and voluntarily entered into the contract, they are bound by the terms of the contract and the contract should be given legal effect. 8.14 The case of Colgate (Z) Inc. vs. Abel Shemu Chika and 110 Others4 under scores that principle of law. On similar footing, th e Suprem e Court in the case of Zambia Oxygen Limited and Another vs. Chisakula and Others5 h eld tha t conditions of service have con tractu a l e ffect. 8.15 In th e case of Rosemary Ngorima and 10 Others vs. Zambia Consolidated Copper Mines 6 , it was h eld that: - CamScanner J20 "It is trite law that in any employer/ employee relationship the parties are bound by whatever terms and conditions they set out for themselves 11• 8.16 It follows from the foregoing that the basic conditions of service are fundamental and essential in determining the extent of the employment contract. They affect the essential character of the bargain, breach of which would justify the innocent party to enforce through the Court. The contracts of employment executed by the parties and shown in the plaintiffs bundle of documents provided for respective terms in that they did not stipulate the plaintiffs entitlement to gratuity. 8.17 Be that as it may, it should be noted that section 54 (1) (b) of the Employment Code Act No. 3 of 2019 provides that an employer shall pay an employee a severance pay, where the employer's contract of employment is terminated or has expired, where a contract of employment is for a fixed duration, severance pay shall either be a gratuity at the rate of not less than 25% of the employee's basic pay earned during CamScanner J21 th' ' Ont ra 'l p ' riod or th , rc lire mcn l b ·ncfil s pro vided by th e P l 'Van t social securi ty ch eme that the employee is a member of. .18 In line with the Employment Code Act, therefore, the payment of gratuity is mandatory at the end of a long-term contract period. 8.19 Even if the parties to a contract are not permitted to contract outside the mandatory legal prescription, it is noteworthy that the Employment Code Act was enacted on 11 th April, 2019 and came into operation on 9 th May, 2019. The plaintiff on the other hand, was employed in the year 2007 and was on renewable contracts until the year 2017. At the time the said Employment Code Act was enacted, it did not expressly state that it would operate retrospectively. 8 .20 In the case of Nawa vs. Standard Chartered Bank Zambia PLC7 the Supreme Court established that: - "It is trite that unless expressly stated, a law does not operate retrospectively. It could not therefore have been CamScanner J22 th intention of the framers of this law to irwalldale agreements that were perfectly legal at the time that they were executed. " 8 .2 1 Thusly, the Act did not apply to the plaintiffs contracts of employment and the defendant was not, by law obliged to include the clause for the payment of gratuity in the said contracts. This position explained by the plaintiff himself when he stated in cross-examination that the issue of gratuity was reserved for future discussions. This entails that the parties had agreed to agree and this was not binding on them. 8.22 The parties in this matter were in agreement that in the year 2017 to 2020, the plaintiff was employed on permanent and pensionable basis. The defendant initially contended that the plaintiff was never on permanent and pensionable employment. OW 1 in cross-examination renegaded on that assertion and explained that the plaintiff was on permanent and pensionable employment from the year 2017 to the time CamScanner J23 h e resigned fro1n employment m 2020. I thus acce pt th at a s ertion as b ing fac tua l. 8 .23 According to s ection 54 of the Employment code Act, a p enna n ent employee would not be entitled to severance pay, which is calculated on the same basis as gratuity, if he is dismissed or \Vhen h e resigns from employment. This is so because resignation from employment of an employee who is on permanent and pensionable employment is not one of the circumstances provided for under section 54(1) of the Employment Code Act to be entitled to a severance pay. 8.24 In so proceeding, I am fortified by the case of Kingfred Phiri vs. Life Master Ltd8 where one of the questions that had fallen for determination was whether an employee on permanent and pensionable contract of employment who is terminated other than the circumstances set out in section 54(1) is eligible for severance pay. 8 .25 In determining that question, the Court of Appeal held that:- CamScanner I I J24 «Employees dismi sed from employment for disciplinary r a ans and those terminated otherwise from permanent and pensionable contract of employment are not entitled to a severance pay under section 54(1) of the Act." 8 .26 It ,:vas further stated in that case that from the wording of section 54(1) of the Act , whereas a permanent and pensionable contract of employment can be terminated, it only expires upon the employee attaining the retirement age as stipulated by section 58 of the Act. 8 .27 In any case, the plaintiff did not meet any of the conditions set out in clauses 7 .2 and 18 of the said contract in that the plaintiff did not attain the age of 55 years and secondly, he had not worked for a period of 10 years before he resigned. In any case, the plaintiffs assertion that he worked for 13 years was erroneous at law. 8.28 It is cardinal to note that the parties stood discharged from their contractual obligations after the expiry of each single CamScanner J25 ontract. In this regard, I ag ree wilh the defendant's ulnnission that the plaintiff co uld not use the aggregate of the old expir d ontracts as th basis for counting the years of his service to claim terminal benefits under the 2017 contract of employment. 8 .29 In this regard, I find that the plaintiff was not entitled to pension or severance pay when he resigned from his employment. 8.30 As regards the claim for the sum of Kl 12, 132.50, the plaintiff did not provide sufficient evidence to establish that he was entitled to the same. He, however, admitted in cross examination that he received a total of K2, 100.00 in his account which the defendant explained was a refund of the total deductions from the plaintiffs salary. 8 .31 The plaintiffs evidence regarding the claim for Kl 12, 132.50 was scanty in that he did not state how he arrived at that figure when he expressly admitted that he did not belong to CamScanner ,J26 nny l t'l\~\Ol\ ~( ht'll\l' , Tin' prw Htipn lw t· x lt llJll1:cl f'or lh I 11 10 1111 11 1 f \\\,\, ~Hl'.2 0 lu O ' l oht~r : .. O' J) Hlt owed 11 ml orily rt l.otsil n1 1rn of K·- , \.' 00.00 wns I ' luclcd fro111 hi. pny. I W I, how •v ;r, 'Xplai n cct in -ross -exu min nlion thul on ly K2, LOO. DO w aH r ,fu nct d. Th "'r wus no xpl unatio n w hy Lh re was a shortfall f K7 00.00 in Lhe r -fund ,ct mo n y a nd th pl a in tiff d id n ot say anyth in · abou t it. 8 .32 ln th e case of Wakelin vs. London and South Western Ry Co. 9 th e House of Lords gave valuable guidance on a similar subj ect wh en it held that: "Where the available evidence is too scanty So as to render it impossible to reach a de.finite conclusion, the party to suffer this state of affairs must be the one whom, lies the burden of proof of the issue. " CamScanner J27 In th ~ pr ' mis ·~, l find th a t th la im fo r th e refund of th e unpl a d d um of Kl 12, 132 .50 or K37 , 3 77 .50 was no t ta blis h d and con sequently , the pla intiff is not entitled to the s a m e. This is in tandem with the plaintiffs position that h e could not sue ea rlier on because the contracts of employment ,ve re full) adhered to by the defendant. 9.0 DECISION 9 . 1 In view of the reasons I have given above, I find that the plaintiff has failed to prove his claims on the balance of probabilities except to the extent hereunder indicated. I find that the plaintiff is only entitled to the sum of K700 being the balance on the pension refund. The amount will attract interest at the rate of 7 % per year from writ to judgment. CamScanner '\'\w p\n,nllff hnvlng 1111 c<~l! <!d cd 011 CJIH ! , uqH!C l of Iii I d:drn ri, I ~ )nkr thnt t\nch p11rt . lie11r I lt c il' own c onl. n, DATED THIS 30"'11 DECEMDER DAY OF DECEMBER 2025. CamScanner