Yvonne Ng'andu Sikute v L.M . Engineering Limited and Ors (IRC/ND/117/2015) [2017] ZMIC 16 (6 April 2017)

IN THE HIGH COURT FOR ZAMBIA AT THE NDOLA DISTRICT REGISTRY HOLDEN AT NDOLA INDUSTRIAL/LABOUR DIVISION BETWEEN: YVONNE NG'ANDU SIKUTE AND L. M. ENGINEERING LIMITED JIMBE ENGINEERING LIMITED BREESEV COMPLEX LIMITED ,• , · :1:ST· RESPONDENT ,2ND, RESPONDENT . ,. i 3Ro RESPONDENT '' . ' '" I Before: Hon. Judge D. Mulenga this 6 th day of April, 2017 For the Complainant .t-.fr. K. Msoni of Messrs J. B. Sakala & Company For the Respondent Miss K. N. Kaunda of Mm ems K. N. Kaunda Advocates JUDGMENT Cases referred to: 1. Wilson Masauso Zulu v Avondale Housing Project (1982) ZR 172. 2. Paul Mwila Kasengele v Zambia National Commercial Bank SCZ Judgment No. 11 of 2000. 3. ZESCO Limited v David Lubasf Muyambango (2006) Z R 22, 4. Raine Engineering Company Limited v Baker (1972) ZR 156 5. Contract Haulage v Mumbuna Kamayoyo (1985) Z R 6. ANZ Grindlays Bank (Zambia) Limited v Chrispin Kaona SCZ Judgment No. 12 of 1995 J1 7. Phillip Mhango v Dorothy Ngulube & Others (1983) Z. R. 66 Legislature referred: 1. Section 26 A of the Employment (Amendment) Act, of 1999 of the Laws of Zambia Other Works referred to: 1. Sutton and Shannon on contracts Seventh Edition, published by Butterworths (London) • The Complainant herein presented her Notice of Complaint and an affidavit in support of Complaint on 28 th December, 2015, on the grounds that the termination of her employment by the 1st Respondent from 2nd and 3rd Respondents on 25 th September, 2015 was not only unfair and wrongful but also unlawful, null and void. The Complainant, therefore seek the following relief: (i) An Order that the termination of her employment by the 1st Respondent from the 2nd and 3rd Respondents is wrongful, unfair, unlawful, null and void. (ii) An order of reinstatement of the C01nplainant to her erstwhile position in the 2nd and 3rd Respondent Companies. (iii) Payment of all salaries fron1 the date of termination of employment to date of reinstatement. (iv) Payment of unpaid salaries by the 3rd Respondent from 2013 to December, 2014 at K4, 000.00 per month. (v) In the alternative; (a) Damages for wrongful termination of employment J2 (b) Payment of K7, 000.00 which was wrongfully deducted from her benefits. (c) Payment of all salary arrears by the 3rd Respondent of the sum of K4, 000.00 per month from April, 2013 to December, 2014. (d)An Order that each Respondent pays benefits of K4, 000.00 x 2 for each completed year of service. (e) Three (3) months pay by the 2nd Respondent from June, 2015 to September, 2015. (f) Payment of salaries by 2nd Respondent from July, 2015 to September, 2015. The Complainant deposed by her affidavit in support of the Notice of Complaint, that she was employed by the 2nd Respondent in 2009 as Project Accountant and was initially based at Lusaka. However, in 2013 the Complainant was r equested by the Director and Chairman of the 2nd Respondent Mr. Severine Chilufya Kazenene to relocate to Chingola, in her same capacity, which request she declined. The Complainant deposed that she was persuaded to relocate to Chingola ·with her family by the said Chairman of the Respondent Companies, who t promised to transfer to her ten (10) percent · of L. M. Engineering Limited shares in the 2nd Respondent Company in appreciation for the services rendered as a condition for her relocation. According to the Complainant she moved to Chingola in 2013 purely on the understanding that she was not only going to be an employee of the 2nd Respondent (Jimbe Minerals Limited) but also as a Director and shareholder of the said Company. J3 Complainant deposes that when she n1oved to Chingola she became aware that the 1 si, 2nd and 3rd Respondent Companies were family businesses of the said Chairman of the 2nd Respondent in that; (a) Severine Chilufya Kazenene is the majority shareholder in L. M. Engineering Limited with the wife as a minority shareholder. (b) L. M. Engineering is the majority shareholder of Jimbe Minerals Limited (c) Severine Chilufya Kazenene and the spouse Bridgitte Kazenene are shareholders of Breesev Complex Limited as per exhibit "YNSl" to "YNS12". The same are articles of Association. ' The Complainant deposes that when she was transferred to Chingola she was given an added responsibility of being an Estate Manager of the 3rd Respondent (Breesev Complex Limited) where she was assigned duties of dealing with tenants of the flats built by the 3rd Respondent. According to the 2nd Respondent apart from performing duties of the 2nd Respondent she was tasked with work of finding tenants for the flats, advertising for the premises, maintenance of the flats, preparing of books of accounts for the Company, preparing, payroll and handling all administrative works of the 3rd Respondent. She was also appointed as the Agent of the 3rd Respondent's Bank Account as per exhibit "YNS 13". The Complainant deposed that her duties in the 2nd Respondent involved auditing of the Company logistics, follow up 1natters and contracts and general administration among others. J4 The Complainant contends that her e1nployment with the 2nd and 3rd Respondent was terminated on 25 September, 2015 by the 1st Respondent (L. M. Engineering Limited) a company she did not work for. She produced a copy of the letter of termination ("YNS 14") where according to her the Board of Directors of L. M. Engineering Limited purportedly being the sponsor of Jimbe Minerals Limited and Breesev Estates Limited had voted to terminate her employment. The Complainant deposes that the 1s t Respondent stated in its letter of termination that her employinent had been terminated on account of her • alleged failure to be punctual as reported by Breesev employees, not approved (unauthorised) absenteeism and not approved (unauthorised) loans, lack of productivity and commitment. The Complainant further deposed that arising from the termination of her employment, she made a written appeal against the said termination and physically made personal effort to meet the directors of the Respondent Companies but to no avail. The Complainant therefore, c01nplains that ,she had never been charged I with any offence during the period of service with the 211 d and 3rd Respondent prior to being served with the letter of terntination of her en1ployment. She contends that the reasons for the ternunation of her e1nployment are all false and malicious as she was always punctual and present for work except where there were excusable reasons and permission granted. · J5 The Con1plainant deposes that she never gave out any loans without the approval of her supervisors and to that effect she had proof. She also argues that the accusation that there was lack of productivity on her part is unacceptable in that she did her best to improve the profiles of both the and 3rd Respondent C01npanies. According to Complainant when she took over the running of the 3rd Respondent there was almost nothing in its Bank account but she raised the revenue to very high levels as demonstrated by the document marked "YNS 1511 • • The Complainant laments that she provided her services to the and 3rd Respondents but 1st Respondent did not pay her salaries of almost two years that is from April 201 3 to January, 2015 when the 3rd Respondent started paying her san1e salary as well. The Respondents oppose the Complainant and to that effect filed into Court an Answer and affidavit in support of the Answer on 11 th January, 2015. The Respondent's Answer to the Complainant's Notice of Complaint says I that the Complainant's employment was legally and lawfully terminated for reasons stated in the letter terminating her employment dated 25 th September, 2015 following a charge raised against her. The Respondents avers that the Complainant was given an opportunity exculpate herself on the charges leveled against her and was after invited to formal disciplinary hearing which she attended and a further appeal process which she exercised and in the letter of appeal dated J6 18th October, 2015 she pledged to improve if given a chance to return to work. · According to the Respondents, the charge was proved against the Complainant in which various performance issues were raised including the illegal maternity leave she took from 8th April, 2015 to 17th August, 2015 which saw neglect in the performance of duty resulting in serious customer complaints and loss to the Respondent. The Respondent further avers that the Complainant was informed of her Right of appeal which right she exercised by trying to communicate with the Chairman and still remained in employment post the letter of terminating her services. The Respondent also averred that the Complainant was employed by the 2nd Respondent and was based at Lusaka on a start up project which never took off and on account of the lack of trade and no incon1e, it was decided to transfer her employment to the 1st Respondent seconded to the 3rd Respondent as Property Manager. That the offer of employment by the 1st Respondent to the Complainant seconded to the 3rd Respondent was made orally and so were the allocation of duties. The Respondent contends that the Complainant was paid dues for all the work purportedly done for all the three Respondents and there is nothing due and owing to her from any of the ''Respondents jointly or severally as she voluntarily consented to the transfer of her employment from the 2nd Respondent to the 1st Respondent seconded to the 3rd Respondent. J7 The Respondents by their affidavit in support of the Answer sworn by their Sales and Marketing Executive, one Tony Chilufya, deposes that the Complainant was employed by the 1st Respondent at the time it operated a mine in the North-Western Province of Zambia. The said mine was sold to another entity as a going concern together with all assets and liabilities therefore, the Complainant's employment with the 1st Respondent was terminated and she was re-engaged by the purchaser of the mine. However, the said services were later terminated by the purchaser. • The Respondents deposes that they are related and are operated as a group of companies with one Chairman. The Respondents depose that the Complainant was employed by the 2nd Respondent in 2010, on a start-up project of exploration, with offices in Lusaka, however by 2013 the exploration did not commence and it was decided to close down the offices in. Lusaka, consequently the Complainant was offered employment as Property Manager by the 1st Respondent to be seconded to the 3rd Respondent, a real estate Company that had just commenced operations. JS The Respondents averred that the Complainant consented to the transfer and relocated from Lusaka to Chingola in 2013 where the Complainant worked as such and was paid the agreed monthly salary and allowances by the 1st Respondent and later by the 3rd Respondent. The Complainant reported to the sales and marketing executive. The Respondents deposes that during the course of her employment by the 1st Respondent, the Complainant's performance was below standard • and she was warned for negligence of duty and poor performance, however, she persistently deserted work every Saturday and , was perpetually absent from work. The Cmnplainant was summoned to a formal disciplinary hearing which she attended as per the details in October, 2014 and a warning letter was issued to her. The Respondent also deposes that the Complainant without approval from the 1st and 3rd Respondents took maternity leave from the 8 th of April, 2015 to the 17th August 2015, reference is made to the emails marked "TC2". Further that when the Complainant returned from maternity leave, she continued with her absenteeis1n, tardiness, avoiding to work on Saturdays, none responsive to Complainants from Tenants. The Respondents contends that the Complainant had appealed against termination of her employment to the Board of Directors of the 1st Respondent by letter dated 18th October, 2015 and pledged to improve her performance as per exhibit marked "TC4". Further that she had continued in office when she appealed to the Chairman of the Respondent's against her termination of employment as per the email marked "TC6" . J9 The Respondents deposes that the Co1nplainant was paid dues for all the five (5) years she worked for the 2nd Respondent to the tilne of her transfer of employment to 1st Respondent on secondment to the 3rd Respondent as per copy of the pay statement and cheque issued to her marked "TCS". At the hearing of the complaint the C01nplainant was the only witness for her case and her viva voce testimony is as deposed facts through the affidavit in support of the C01nplaint. The Respondent called one witness one Tony Chilufya a Sales and Marketing Executive of the Respondent C01npanies. I shall allude to some of the viva voce evidence of the Complainant and the Respondent's witness when addressing each and every claim presented by the Complainant. At the time of writing the judgment this Court was only favoured with written submissions on behalf of the Re.spondent, the san1e shall be alluded to as and when need arises. Whereas, the Complainant has not directly or specifically claimed for an order for specific performance of ten per cent (10%) share transfer from the 1st Respondent in the 2mj Respondent Company, the same was canvassed by the Complainant without any objection by the Respondents. • • J10 The evidence of the Complainant on the issue of transfer of shares is that when she was requested by the Chairman of the Respondent Companies, to relocate from Lusaka to Chingola as accountant of the 2nd Respondent she declined only accepted when the Chairman Chilufya Kazenene promised her that the l st Respondent was going to transfer to her ten percent (l 0%) of shares in the 2nd Respondent. The Complainant in her oral testimony told the Court that she had sat with the Chairman of the l st Respondent who is also the majority shareholder therein and discussed the issue of transfer of ten percent • (10%) shares in the 2nd Respondent to her, the said understanding, according to Complainant was written down on a piece of paper by the Chairman. Clearly, it must be borne in mind always as it was held by the Supreme Court in the case if Wilson Masauso Zulu v Avondale Housing Project (1 ), that he who alleges must prove his case. t In the case in casu, the Complainant has not produced any documents to show that there was an offer of ten percent (10%) shares of the l51 Respondent in the 2nd Respondent and that there was unqualified acceptance of the said off er of shares by the Complainant, for such a transaction to be one which is enforceable at law. J11 Sutton and Shannon on contracts Seventh Edition, published by Butterworths (London), puts clearly that: Express agreement is constituted by an off er made by one party, and accepted by the other, which expresses the terms of the agreement. The Complainant has not established or demonstrated by way of any evidence that the 1st Respondent acted on the alleged promise to her by its Chairman and majority shareholder by passing a resolution to offer shares to her whether for a consideration or sweat equity. This 'claim made at the trial cannot stand as the Complainant has failed to prove the same on the balance of probabilities. It is dismissed for lack of merit. • In respect of the Complainant's claim for an order that the termination of employment by the 1st Respondent from the 2nd and 3rd Respondents is wrongful, unfair, unlawful and null and void. The Complainant has argued that the 1st Respondent had no power to terminate her employment because the said L. M. Engineering was not its It employer. Further that even if it could be- said that the 1st Respondent had power to terminate her employment, the Court should find that there were no proper reasons for terminating her employment. The Complainant refused the Respondent's accusations of failure to be . punctual, absenteeism giving an unauthorised or not approved loans, lack of productivity and commitment to duty. J12 To paraphrase, the Complainant's complaint is that 1st Respondent lacked authority to terminate her employment from the 2nd and 3rd Respondents. Learned Counsel for the Respondents has submitted that considering the admission by the Complainant that the three Respondents herein are all family businesses, the related companies are for many purposes treated as one at Common Law. Further, that the law recognises the dominant position of shareholders in the affairs of the Companies even in so far as they relate to employee matters. Learned Counsel referred this Court to the case of Paul Mwila Kasengele v Zambia National Commercial Bank (2), where the Supreme Court in ilnplementing the shareholders' decision to merge • salaries and allowances held that; Shareholders enjoy as a matter of right overriding authority, even over the wishes of the Board of Directors and Managers. t I have critically considered the submission of Learned Counsel for the Respondent and the letter of termination of employment dated 25 th September, 2015 under the hand of one S. C. Kazenene Chairman of L. M. Engineering Limited. The tenor of the "said letter is that the decision to terminate the Complainant's employment was arrived at by the Board of Director of L. M. Engineering being the sponsors of 2nd and 3rd Respondents (Jimbe Minerals and Breesev Estates) respectively. J13 • • It 1nust be appreciated that a company acts or performs through its Directors. In the case in casu there is no dispute that the shareholders and Directors of the 1st Respondent are the same for the 2nd and 3rd Respondents. It is also an agreed position that the Chairman of the Board of Directors of the 1st Respondent is also the majority shareholder and Chairman of 2nd and 3rd Respondents. ,,-·. The Complainant has not adduced any evidence to show or prove that the management and or Board of Directors for 2nd and 3rd Respondents is different and independent of the one for 1st Respondent. The foregoing withstanding, I agree with the submissions of Counsel for the Respondent and have come to the conclusion that the Board of Directors had authority to deal with the Complainant as between Management and an employee therefore, the Complainant's claim that the 1st Respondent lacked legal authority to terminate her employment from the 2nd and 3rd Respondents cannot stand. I now turn to the Complainant's argument that there were no proper reasons justifying termination of her employment by the 1st Respondent . This Court is alive to the directives of the Supre1ne Court of Zambia in the case of ZESCO Limited v David Lubasi Muyambango (3), where it outlined that; It is not the function of the Court to interpose itself as an appellate Tribunal within the domestic disciplinary process to review what others have done. The duty of the Court is to examine if there was the necessary disciplinary power, and if it was exercised in due form. J14 It is therefore, the role of this Court to make a determination whether or not the disciplinary due process was followed and having already determined that the Board of Directors of the 1st Respondent had legal authority to deal with the Con1plainant, the issue to ascertain is whether the powers were exercised in due form. Learned Counsel for the Respondent has subn1itted that where it is a pure master and servant relationship, the Complainant does not require to be heard on her defences as suggested by cross-examination that she did not attend the Board meeting which made the decision to terminate her employment. She ref erred the Court to the case of Raine Engineering Company Limited v Baker (4), where the Court held as follows; ... the question in a pure case of master and servant does not depend on whether the master has heard the servant in his own defence. It depends on whether the facts emerging at trial prove a breach of contract. .. I The foregoing withstanding, it is observed {r01n the e mails between the Respondents' Sales and Marketing Executive that there was an issue of the Complainant proceeding on Maternity Leave from 8 th April, 2015 to l Th August, 2015 without the approval of the Respondents (Exhibit "CT 2"). J15 The said Sales and Marketing Executive, one Tony Chilufya, also raised an issue against the Complainant's failure to attend to tenant' complaints. Further, from the termination letter dated 25 th Septe1nber, 2015, otherwise exhibit II TC3" it is clear that the Board of Directors of L. M. Engineering, made a decision and voted to terminate the Complainant's employment for failure on the part of the Complainant to be punctual in reference to working hours as per reports by tenants and Breesev employees, practiced occasional not approved absenteeism and not approved loans, that she demonstrated lack of productivity and c01nmitment to work duties which is tantamount to incompetence and non-value adding and unauthorised maternal leave lasing four months within two working years, which, the Respondents termed to be against the law. The allegations raised in the Respondents' letter of termination of employment of the Complainant are serious which the rules of natural justice would ordinarily require her to be given an opportunity to exculpate herself and heard. In the case of Contract Haulage v Mumbuna Kamayoyo (5), the Court held that failure to give an employee an opportunity to answer charges against hiln or any unfairness is . contrary to the rules of natural justice and the dismissal in these • circun1stances is unfair disnlissal. J16 The Respondent has submitted that it gave the said reasons simply because there is a requirement to do so under Section 5 (3) of Act No. 15 of 2015 of the employment Act, which provides: The contract of service of an employee shall not be terminated unless there is a valid reason for the termination connected to the capacity, conduct of the employee or based on the operational requirement of the undertaking. It The above provision of the law did not in any way repeal the law under 26A of the Employment (Amendment) Act No. 15 of 1997. Section 26A provides; An employer shall not terminate the services of an employee on grounds related to the conduct or performance of an employee on grounds related to the conduct or performance of an employee without affording the employee an opportunity to be heard on the charges laid against him. The facts of the case herein clearly reveals that the termination of the Complainant's employment is in fact dismissal on grounds of the I conduct or performance of the Complainant. The in1port of Section 5 (3) of Act No. 15 of 2015 is therefore, that a good reason ought to be shown by the Respondent and it can only be so by affording the Complainant an opportunity to be heard as provided for under Section 26A of the Employment (Amendment) Act No. 15 of 1997, in so far as it relates to termination of employment on grounds related to the conduct or performance of the employee. I J17 This Court is alive to the fact that Section 26A of the Employment Act falls under part IV of the Employment Act which applies to oral contracts of employment which therefore, applies to the Complainant herein. I have critically analysed the evidence and the facts of the case in casu, I have come to the conclusion that the termination of the Complainant's employment was on the grounds related to her conduct or performance of her employment. She was not afforded an opportunity to be heard or exculpate herself. The termination was done in violation of the law therefore, amounted to unlawful dismissal. The Complainant has proved her case on the balance of probabilities on her claim for damages for unlawful dismissal from employ1nent against the Respondent. Having found that the Complainant's employment was unlawfully terminated by the Respondent. I have to now address the claim by the Complainant for an order of reinstatement. I Indeed as submitted by Learned Counsel for the Respondents in reliance on the holding of the Supreme Court in the case of ANZ Grindlays Bank {Zambia) Limited v Chrispin Kaona (7), that orders for reinstatement in such cases are only made in exceptional cases, and, even then are very rarely made. I have applied my mind to the circumstances of the case herein and the fact that the Respondents herein are family cmnpanies whose family members are fully involved in the running of the said businesses. I do not see the Complainant's safe stay in the Respondent's companies if reinstated. J18 The Complainant is therefore entitled to damages for unlawful dismissal from employment and accordingly ~ s ix months salaries which are inclusive of perks with interest fron1 the date of the Notice of Complaint at the current Bank of Zambia rate until full payment of the judgment sum. The Complainant has claimed payment of K7, 000.00 which she contends was wrongfully deducted from her benefits . • • The background to this claim is simply that the Complainant obtained a loan of K7, 000.00 from the Respondents s01netime in December, 2014. The Complainant indicated that in January, 2015 she was not paid her salary of K4, 000.00 because of the said loan, she ref erred the Court to the payroll of the 3rd Respondent, exhibit "YNS 21" in the affidavit in support of the Notice of Complaint. The Complainant further ref erred the Court to exhibit "YNS 20" March, 2015 pay roll, the same shows that she was only paid K3, 000.00 as Kl, 000.00 was deducted as part of the recovery for the same loan . Complainant also referred the Court to Page 1 of the Respondents' Notice to produce as proof that she was paid K3000.00 in May 2015 because • Kl, 000.00 was deducted towards repayment of the loan. The Complainant referred the Court to exhibit YNS 28 the saine being the Schedule of Payment of her terminal benefits and that an amount of K3, 000.00 was deducted, according to her this was towards the loan of J19 K7, 000.00 which she had repaid through the deductions alluded to herein above. The Respondent's position is that the amount of K3, 000.00 which was deducted from the Complainant's terminal benefits was an amount advanced to her by the 1st Respondent. Perusal of exhibits both ref erred to by the Complainant and Respondent do not show any deduction of K7, 000.00 as averred by the Complainant. There is a deduction of K3, 000.00 which the Respondent has given an explanation that the same was an advance payment which the 1st Respondent gave to the Complainant and the same was recoverable. Having closely looked at the testin1ony of the Complainant and that of the Respondent's only witness, I find the evidence of the Respondent more cogent as regards the advance of K3, 000.00 which the 1st Respondent advanced the Complainant, the said an1ount cannot be said to be a salary from which the amount of Kl, 000.00 is purported to have been deducted, as per testimony of the Complainant. In any case the Complainant claimed payment of K?, 000.00 which according to her the Respondent wrongly deducted from her:. terminal benefits. Perusal of the schedule of terminal pay shows that there is no such deduction. The Complainant's claim for payment of K7, 000.00 therefore, fails as the Complainant has failed to prove the same on the balance of probabilities, the same is dismissed. • • J20 In respect of the Complainant's claims for payment of all salary arrears by the · 3rd Respondent of the sum of K4000.00 per month from April, 2013 to December, 2014, an order that each Respondent pays benefits of K4000.00 x 2 for each completed year of service, three months pay by the 2nd Respondent from June 2015 to September, 2015 and payment of salaries by 2nd Respondent fron1 July, 2015 to Septe1nber, 2015. The Complainant's claims for salary arrears against the 3rd Respondent arose from her belief as averred in paragraph 21 of the affidavit in • support of the Notice of Complaint that she had provided services to the 2nd and 3rd Respondents. However, 3rd Respondent did not pay her salaries. According to the Cmnplainant the 3rd Respondent also started paying salaries fro1n January, 2015. The Complainant did not adduce any documentary evidence to show that she entered into a separated contract with the yc1 Respondent or any other Respondent to the effect that she was to provide service to the 3rd Respondent and to draw a separate salary. It must be emphasised here that it is not the duty of the Court to c(eate terms and conditions of contracts or indeed to create contracts on behalf of the parties. The claims for payment of salary arrears in this Court's understanding falls within the claims for special losses and the Supre1ne Court of Zambia cautioned in its holding in the case of Phillip Mhango v Dorothy Ngulube & Others (7) that; It is of course, for any party claiming special losses to prove that loss and to do so with evidence which makes it possible for the J21 Court to determine the value of the loss with a fair amount of certainty. As a general rule there{ ore, any short comings in the proof of a special loss should react against the claimant. The Respondent's explanation as regards how the Complainant found herself serving the 3rd Respondent is that the 2nd Respondent Company that employed the Complainant did not commence the exploration business therefore, the same was closed down and the Complainant was seconded to the 3rd Respondent as Property Manager. • The Respondent's explanation notwithstanding, the Complainant has failed to negate the said evidence or demonstrate how she was engaged to serve two companies and expect to be paid two salaries. The Complainant has not even called evidence to show that by conduct the 2nd and 3rd Respondents paid salaries separately. Clearly, there is no evidence which could make it possible for this Court to make a finding that the Complainant was entitled to double salary, and • that she is owed salaries in arrears as claimed. The Con1plainant has failed to prove these claims for payment of salary arrears and payment of double terminal benefits. These claims are accordingly dismissed for lack of merit. I am mindful that the pleadings are muddled, however fron1 the testilnony of both the Complainant and the Respondent, it b ecame clear that the Cmnplainant's claim for three months pay from the 2nd Respondent from June, 2015 to September, 201 5, in fact arose from J22 the fact that the Co1nplainant had proceeded on Maternity Leave from the 8th of April, 2015 to 17 th August, 2015. The dispute, therefore was that Respondent treated the Complainant's Maternity Leave as one which it did not approve and that she did not qualify for the said maternity leave for reasons to be found in the e-mail correspondences between the Complainant and the Respondent's Sales and Marketing Executive, one Tony Chilufya. In the e-mail of RWl to the Complainant, dated 1 Th August, 2015 he • wanted to know when the Complainant started her maternity leave and she responded on l51 September, 2015, that she had submitted her leave forms on 8th April, and that she did not obtain any copy (Ref exhibit "TC 2 (a)"). • The Respondent contended that the Complainant had not qualified to proceed on maternity leave because, she had taken one from September to December, 2013. As can be deduced from email of RWl dated 1st August, 2015 to the Complainant (exhibit TC 2 (b)) the Respondents argued that the Complainant did not qualifY,. for Maternity Leave under the 2nd Respondent neither under the 3rd Respondent. The Complainant's averments that she qualified for n1aternity leave under the 3rd Respondent because she had just been retained on a pay roll cannot hold water for the same reasons given herein above that she was not employed to serve the 2nd and 3rd Respondents separately whereby she could enjoy terms and conditions of employment from each of the two Companies. J23 Further, Section l SA of the Employment Act, Chapter 2 68 of the Laws of Zambia ,only entitles a female employee to proceed on maternity leave for twelve (12 weeks) who has completed at least two years of continuous service with the employer from the date of first engagement or since the last maternity leave taken. From the foregoing facts, it is clear that the Complainant was not entitled to paid during the maternity leave in issue, therefore the Respondents correctly deducted the amount of K20, 000.00 which was paid to her during the four months she went on the said leave. This claim therefore, fails for lack of merit and it is accordingly dismissed. Considering that the Complainant has succeeded on one of the claims there will be costs to the C01nplainant to be taxed in default of agreement. Informed of Right of Appeal to the Court of Appeal within thirty (30) days from the date hereof. Dated at Ndola this 6 th day of April, 2017. r e ' J24