FSG Zambia Limited v Tami Daka (Appeal No. 43/2023) (19 November 2024) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA AppealNo.43/2023 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: FSG ZAMBIA LIMITED APPELLANT AND TAMIDAKA RESPONDENT Coram: Kondolo SC, Majula & Banda-Bobo, JJA On 13th November, 2024 and 19th November, 2024 For the Appellant Mr. C. Sianondo of Malambo & Company For the Respondent Mr. P. Kalonge of Messrs. Ellis & Company JUDGMENT MAJULA JA, delivered the Judgment of the Court. Cases referred to: 1. Chilanga Cement Plc v. Kasote Singogo (2009) ZR 122. 2. Nyirenda v. Grace Ministries Mission International - CAZ Appeal No.30 of 2018. 3. Kitwe City Council v. William Ng'uni (2005) ZR 57. 4. Western Excavating Limited v. Sharp (1978) QB 761 5. Sun Country Limited & Two Others v. Rodgers Redin Savory - SCZ Appeal No.122/ 2006. 6. Josephat Lupemba v. First Quantum Mining and Operation Limited - CAZ Appeal No. 120/ 2017 7. Zambia Revenue Authority v. Hitech Trading Company Limited - SCZ Appeal No. 13 of 2001 8. Colgate Palmolive (Z) Inc. v. Shemu and Others - SCZ Appeal No.30 of 2018. 9. Ireen Chinjavata v. The Attorney General (2004) ZR.184. 10. David Banda v. The Attorney General - CAZ Appeal 233 of 2020 11. Justin Mbita Silumbwe v. Barclays Bank of Zambia Limited - SCZ Appeal No. 4 of 2017 12. Paul Roland Harrison v. The Attorney General - SCZ Judgment No.15 of 1993 13. Joseph Chintofwa v. Ndola Lime Co Limited (1999) ZR 172 (SC) 14. Masauso Zulu v. Avondale Housing Project Limited (1982) ZR 172 Legislation referred to 1. Employment Code Act, No. 3 of 2019 1.0 Introduction 1.1 This appeal emanated from the Industrial and Labour Division of the High Court and was presided over by Justice Davies C. Mumba. In a judgment delivered on 5th November 2022, the judge ruled that the Respondent had been constructively dismissed and awarded him damages. 1.2 This appeal calls upon us to probe into, firstly whether or not the Respondent had been constructively dismissed. Secondly, whether the extended probationary period given to the Respondent conformed with the law. Finally, we have been urged to examine whether the award of 12 months' basic salary as damages was excessive in the circumstances of this case. 2.0 Background 2.1 The Respondent was initially employed as a Customer Sales Advisor on May 31, 2018. On April 24, 2020, the Respondent was appointed Acting Branch Supervisor after the previous supervisor's contract was not extended. The appointment letter mentioned that a fixed-term contract would be offered if the Respondent's performance was satisfactory. Despite this, the Respondent's terms and conditions of employment remained the same as those of a customer sales advisor. 2.2 After three months, the Respondent was not offered a fixed term contract on the new position. Instead, the Appellant informed the Respondent that his probation period would be extended for another three months due to unsatisfactory performance. 2.3 The Respondent resigned via email on October 1, 2020. 3.0 Decision of the Lower Court 3.1 Three issues were identified for determination by the lower Court, namely: 1. Whether the Appellant breached the contract when it extended the Complainant's acting appointment as Branch Supervisor. 2. Secondly, whether the Respondent was constructively dismissed and; 3. Thirdly, whether the Respondent was entitled to payment of allowances that a Branch Supervisor was entitled to and salary arrears. 3.2 On the 1st issue, the learned Judge found that the Appellant breached the provisions of Section 27(1) and (5) of the Employment Code Act when it extended the probation period for the Respondent beyond six (6) months. 3.3 Pertaining to the 2nd issue, the learned Judge found that the Appellant's conduct was so severe that it amounted to the repudiation of the employment contract, thereby entitling the Respondent to resign. That there was, therefore, constructive dismissal in this case. 3 .4 The claim for allowances and salary arrears was dismissed. In sum, the Respondent was awarded 12 months' salary as damages for breach of his contract and constructive dismissal. 4.0 Grounds of Appeal 4.1 Unhappy with the decision of the court below, the Appellant has appealed to us on the following grounds: 1. The Courl below erred in law and fact by finding that the Respondent was constructively dismissed by the Appellant. 2. The Court below erred in law and in fact by finding that the Appellant irregularly extended the probation period. 3. In the alternative, the Court below erred in law in granting the Respondent 12 months basic salary as the same was excesswe. 5.0 Appellant's Arguments 5.1 The Appellant contends that the lower court erred in law by finding that the Respondent was constructively dismissed. In support of their argument, they cite the case of Chilanga Cement Plc v. Kasote Singogo1 in which, the Supreme Court clarified the principles of constructive dismissal. 5.2 The Appellant argues that to establish constructive dismissal, an employee must have left employment either promptly or by notice due to the employer's conduct. The test for constructive dismissal requires assessing whether the employee acted reasonably in deciding that he could no longer work for the employer based on the circumstances. 5.3 The Appellant argues that there is no evidence presented in the trial court indicating any unlawful behaviour or conduct on its part that would amount to a fundamental breach of the employment contract. 5.4 According to the Appellant, it was understood by the Respondent that if management was not satisfied with his work, he would not be offered a fixed-term contract. That this is supported by the evidence on record. The case of Nyirenda v. Grace Ministries Mission International,2 was referenced, as well as that of Kitwe City Council v. Ng'uni, 3 wherein the Supreme Court adopted the decision in Western Excavating (ECC) Limited v. Sharp. 4 All these cases reinforce the principle that constructive dismissal can occur based on the actions of an employer, including repudiation of the contract by the employee in response to the employer's conduct. 5.5 In furtherance of its submission, the Appellant has asserted that for a resignation to be considered constructive dismissal, it must result from the employer's conduct and not due to personal or other unrelated reasons. That the Respondent, in his notice of resignation, indicated that he wanted to ''pursue his personal interests and move on to the next challenge." This was clarified further during cross-examination, supporting the claim that his resignation was for personal reasons rather than due to the employer's conduct. 5.6 The frustration in the 2nd ground of appeal arises from the finding by the court below that the probation period was irregularly extended. The Appellant draws the court's attention to Section 27 ( 1) of the Employment Code Act1 , which allows an employee to be employed for a probationary period not exceeding three months, for the purpose of determining suitability for appointment. 5.7 The Appellant further refers to Section 27 (5) of the same Act, which allows for the extension of the probationary period by an additional three months, making the total possible probation · period six months. The Appellant states that, based on the Respondent's appointment letter dated May 2, 2020, the six-month probationary period would have lasted from May 2, 2020, to November 2, 2020. The probation period was, therefore, not exceeded since the Respondent resigned on October 1, 2020. In essence, the Appellant argues that the extension of the Respondent's probation was lawful and within the permissible limits outlined in the Employment Code Act1 • 5.8 The Appellant refers to Section 27(2) of the Employment Code Act1, which requires the employer to assess the employee during the probationary period and communicate the results before the end of the probation period. The Appellant points out that on June 1, 2020, email was sent ~ to the Respondent, informing him that the Appellant was not satisfied with his work and that the probation period would be extended. This was discussed in a meeting and later confirmed by a witness during cross-examination. 5.9 In rounding off ground 2, the Appellant maintains that they followed proper procedures in extending the probation period and that the court's finding of a breach was incorrect. 5.10 The Appellant's alternative ground of appeal argues that the trial court erred in law by awarding the Respondent 12 months' basic salary as compensation. The Appellant claims that this award was excessive. The Appellant cites Sun Country Limited & Two Others v. Rodgers Redin Savory,5 where the court clarified that when a party proves its case on a balance of probabilities, it is not obligated to consider alternative reliefs. 5.11 Regarding the 3rd ground, the Appellant calls in aid the case of Josephat Lupemba v. First Quantum6 where it was , established that a trial judge must provide reasons for awarding damages. If the damages exceed the common law measure, the judge must justify such an award. In support of the alternative ground, the Appellant references Section 27(3)(7) of the Employment Code Act, which provides that both the employer and the employee can terminate the employment contract during the probation period by giving at least 24 hours' notice. 5.12 The Appellant notes that while the Respondent was on probation and employed as a Customer Sales Advisor, the contract did not specify a notice period for termination. Therefore, the statutory notice period as per Section 53(2)(c) of the Employment Code Act applies, requiring a 30-day notice for contracts lasting more than three months. 5.13 The Appellant argues that the statutory notice period was adhered to, and no excessive compensation should be awarded without exceptional circumstances justifying it. The Appellant submits that awarding the Respondent 12 months' compensation is excessive, especially given that no traumatic event occurred and the statute prescribes a more appropriate notice period of one month. This point is further supported by the fact that the Respondent's position as Customer Sales Advisor was still available at the time of the resignation, as uncontested in the record of appeal. 6.0 Respondent's Arguments 6.1 The Respondent's counsel filed his heads of arguments on 21 June, 2024. The Respondent begins his arguments by giving a historical background of what transpired during the employment relationship with the Appellant. The Respondent points out that almost five months after his appointment as Acting Branch Supervisor, he had not received any communication regarding his probation period or employment status. The Appellant appointed a new Customer Sales Advisor in Kitwe during this period. 6.2 The Respondent refers the court to the Affidavit in Support of Notice of Complaint and the testimony of the Appellant's sole witness. The witness confirmed that another individual had been em ployed as a Customer Sales Advisor after the Respondent was dismissed and re-engaged in the same position. 6.3 The Respondent argues that the Appellant's claim that the Respondent's employment as Customer Sales Advisor was still intact is unsupported by any evidence, including their testimony. The Respondent concludes that this constitutes evidence from the Bar and is invalid. Reliance is placed on the case of Zambia Revenue Authority v. Hitech Trading Company Limited,1 emphasizing that arguments made at the bar cannot substitute sworn evidence. The Respondent prays that this Court focuses only on sworn evidence and the lower court's findings. 6.4 The Respondent highlights that the Appellant had decided to extend the probation period for an additional three months, starting October 1, 2020. This would result in the total probation period extending to nine months, which the Respondent contends is excessive. 6.5 The Respondent points out that there is no evidence in the record showing that the Appellant ever responded to his email of September 22, 2020, in which he inquired about his employment status. Furthermore, that there is no evidence that the Respondent was provided with the job description for . the Branch Supervisor role. 6.6 Responding to the 1st ground, the Respondent asserts that the trial judge was correct in his decision regarding the constructive dismissal. The Respondent has placed reliance on the case of Western Excavating Ltd. v. Sharp4 where , Lord Denning MR, clarified that an employer's significant breach of contract or clear indication of no longer being bound by the contract, entitles the employee to treat themselves as discharged from further performance. This allows the employee to resign immediately if the employer's conduct is sufficiently serious. 6. 7 The case of Kitwe City Council v. William Nguni3 has also been called in aid where the principles •from Western Excavating Ltd v Sharp4 were adopted. 6. 8 To further reinforce his argument, counsel for the Respondent cites Chilanga Cement Plc v. Kasote Singogo1 where the Supreme Court held that an employee could claim constructive dismissal if they resign or are forced to leave due to the employer's unlawful conduct, which amounts to a fundamental breach of the contract of employment. 6. 9 The Respondent submits that his notice of resignation should be considered in the context of the email sent on September 22, 2020, where the Respondent had been on probation for six months without any communication regarding his employment status. 6.10 That in the email, the Respondent expressed concerns about acting as Branch Supervisor for over three months without receiving any official communication from the Appellant. The Respondent mentioned that the uncertainty was causing disruption to his personal plans, making it difficult to plan for the future. 6.11 That at the time of resignation, the Respondent had served as Acting Branch Supervisor for five to six months. The Appellant had already appointed a new Customer Sales Advisor. That on the day of resignation, the Respondent was informed that his probation period would be extended by an additional three months. 6.14 The Respondent references unchallenged evidence that the Appellant had provided him with business cards designating him as Branch Supervisor for Kitwe Branch, which solidifies his employment status. 6.15 The Respondent argues that it is evident that he was constructively dismissed, and his reference to "personal plans" in his resignation letter is consistent with his earlier statements and re-examination. That the resignation was not due to personal interests, but rather, due to employment conditions, such as the lack of a contract and the extended probation. 6.16 The Respondent points out that the letter of appointment as Acting Branch Supervisor did not provide for probation beyond three months. Furthermore, that the Employment Code Act1 limits probation to a maximum of six months. That the Appellant had violated this by deciding to extend probation to eight months. 6 .18 The Respondent argues that extending the probation period to eight or nine months without an increase in pay, while expecting him to perform the duties of Branch Supervisor, was a breach of contract and unlawful conduct by the Appellant. That this justified the Respondent's resignation 6.19 The Respondent points out that all allegations of poor performance were effectively rebutted through the evidence presented by both parties. Based on the evidence and arguments presented, the Respondent submits that the trial court was correct in finding that the Respondent had been constructively dismissed. 7.0 Response to ground two 7.1 Turning to ground 2, the Respondent submits that the appointment letter did not provide for an extension beyond the initial three months. That this was acknowledged by the Appellant's sole witness at trial. 7.2 The Respondent further cites Section 27 (1), (2), and (4) of the Employment Code Act1 which stipulates that an , employee may be employed for a probationary period not exceeding three months. That the Act also requires the employer to assess the employee during the probationary period to determine suitability for continued appointment. 7 .3 It has been contended by the Respondent that the Appellant extended the probation by an additional three months, which is a clear violation of Section 27(4) of the Employment Code Act1 • 7.4 The Respondent argues that the Appellant did not conduct any assessment of the Respondent during the probation period, nor did they communicate the results, as required by law. That this failure further supports the claim that the Appellant acted unlawfully. 7.5 The Respondent references the case of Colgate Palmolive (Z) Inc. v. Shemu and Others8 where it was held that contracts , entered freely and voluntarily must be enforced by courts of justice. This is cited to reinforce the Respondent's position that the Appellant violated the employment contract. 7.6 The Respondent concludes his arguments by submitting that the trial judge should not be faulted for concluding that the Appellant acted illegally and irregularly. 8.0 Response to Ground Three 8.1 The Respondent strongly opposes the alternative ground and has argued that the award should have been more than 12 months' salary, given the circumstances. 8.2 The Respondent cites the Chilanga Cement v Kasote Singogo1 case, where the employee was awarded 36 months' salary for an abrupt job loss. 8.3 We have been referred to lreen Chinjavata v. The Attorney General9 and David Banda v. The Attorney General1° which cases dealt with the principle of enhancement of damages. The Respondent places reliance on the aforecited cases to reinforce his argument for a higher award. 8.7 The Respondent bemoaned the treatment he received at the hands of the Appellant and has argued that his resignation was forced due to the oppressive treatment by the Appellant's Executive Director. He goes on to recount the incident that took place on October 1, 2020. It has been asserted that the the court acknowledged his oppressive treatment, as reflected in the court's findings. 8.8 The Respondent argues that, as of August 29, 2022, more than 18 months after his constructive dismissal, he remained unemployed. Given the harsh socioeconomic conditions, including inflation and high unemployment, the 12 months' pay awarded by the court was inadequate. The Respondent submits that the compensation should be increased to 36 months' salary. 9.0 Respondent's Cross-Appeal 9.1 The Respondent filed a cross-appeal on 21st June 2023, requesting that the lower court's judgment be varied. 10.0 Grounds of the Cross-Appeal 10.1 In a nutshell, the following are the grounds for the cross appeal: 1. The lower Court erred in law and fact by failing to award punitive damages to the Respondent. 2. The lower Court misdirected itself in awarding only 12 months' salary for breach of contract and constructive dismissal rather than 36 months. 10.2 The Respondent highlights that his claim for damages, including punitive damages, was outlined in the Notice of Claim before the lower court. The Respondent asserts that, given the treatment he suffered at the hands of the Appellant, as acknowledged by the court, an award of punitive damages is justified. 10.3 The Respondent has criticised the trial judge for concluding that awarding compensatory damages was adequate and, therefore, punitive damages were unnecessary. The Respondent submits that this was a grave error by the Judge. 10.4 The Respondent argues that it is well-established law that compensatory damages and punitive (or exemplary) damages serve different purposes. While compensatory damages are meant to reimburse the claimant for harm, punitive damages are intended to punish the defendant for wrongful conduct. 10.5 The Respondent cites McGregor on Damages, explaining that punitive damages come into play when the defendant's conduct is sufficiently outrageous to merit punishment. This includes instances of malice, fraud, cruelty, or similar misconduct. 10.6 Reliance was placed on the case of Justin Mbita Silumbwe v. Barclays Bank of Zambia Limited, 11 where the Supreme Court stated that exemplary damages are awarded when the defendant's conduct merits punishment. That this includes cases where the conduct is wanton or shows a contumelious disregard for the plaintiff's rights. 10.7 To fortify his argument, the Respondent calls in aid the Supreme Court decision in Paul Roland Harrison v. The Attorney General12 where it was held that exemplary , damages may be awarded in cases where the defendant has acted with blatant disregard for the plaintiff's rights. 10.8 The Respondent requests that the court dismiss the appeal, uphold the cross-appeal, and increase the damages awarded to 36 months' pay, along with punitive damages and costs. 11.0 Hearing of the Appeal 11.1 The matter came up for hearing on 13th November 2024. By way of emphasis, Mr. Sianondo referred the Court to a letter on page 56 of the Record of Appeal written to the Respondent notifying him of his appointment as Acting Branch supervisor. Counsel went on to highlight that the critical aspect of this letter is that it made it clear to the Respondent that should the performance be satisfactory during the probation period, then employment would be given to the Respondent. 11.2 Mr Sianondo further submitted that a person in the position of the Respondent should be assessed within 3 months in accordance with the provisions of Section 27(2) of the Employment Code Act. References were made to page 58 of the Record of Appeal, where there is an email dated 1st June 2020, which shows feedback that fewer funerals were being recorded when compared to the target. That the Respondent was given a further extension of 3 months, but before this could lapse, the Respondent resigned. Fortification for an additional extension of 3 months was placed on the provisions of Section 27(5) of the Employment Code Act. Counsel argued that it is on this basis that the lower court misapprehended the facts in this case. 11.3 Learned Counsel argued that the Respondent was 1n fact advised that he could revert to his substantive position should the assessment not be in his favour. The Respondent, however, wrote a resignation letter to the Appellant indicating that he wanted to pursue his personal endeavours. 11.4 In response, Mr Kalonge relied on the Respondent's heads of argument. In augmenting, he referred the court to page 57 of the Record of Appeal, which contains an email dated 22nd September 2020, where the Respondent expressed displeasure on how his probation issue was being handled. Counsel conceded that according to the record, the Respondent resigned before the expiry of the 6 month probation period and was also notified of his unsatisfactory performance. 11.5 With regard to the cross-appeal, both counsel relied entirely on the documents they had filed on behalf of their client's case. 12.0 Consideration and Decision of the Court 12.1 We have meticulously examined the record of appeal and the rival arguments by the parties. At the core or heart of the appeal is the question as to whether or not the Appellant had constructively dismissed the Respondent. 12.2 The Appellant has expressed its disquiet with the court's judgment, which found that the Respondent had been constructively dismissed by virtue of the Appellant's conduct. We quickly turn to the law pertaining to constructive dismissal, which stipulates that it occurs when an employee resigns due to the employer's conduct, which fundamentally breaches the employment contract, making the continued employment untenable. The Supreme Court of Zambia has addressed this concept in several cases. In the celebrated case of Kitwe City Council v William Nguni3, the Supreme Court defined constructive dismissal as follows; "The test for constructive dismissal is whether or not the employer's conduct amounts to a breach of contract which entitles an employee to resign." 12.3 Another insightful case is that of Chilanga Cement Plc v Kasote Singogo1 This case emphasized that an employer's . conduct leading to an employee's resignation can constitute constructive dismissal if they breach a fundamental term of the contract. The principles that the aforecited cases have established are as follows:- (i.) The employer's behaviour must significantly breach the employment contract, making continued employment unreasonable for the employee. (ii.) In addition, the resignation must directly respond to the employer's conduct, and the employee should leave promptly after the incident to avoid implying acceptance of the new conditions. 12.4 Furthermore, the employee bears the burden of proving that the employer's actions were severe enough to justify resignation as constructive dismissal. 12.5 Adopting the preceding principles, we must satisfy ourselves that the employer behaved in a manner that fundamentally breached the employment contract terms, entitling the Respondent to resign. We have exercised our minds in relation to the circumstances of this case, particularly the fact that it is not disputed that the Respondent had been employed on 2nd May 2020 as Acting branch supervisor Kitwe. He was placed on probation for 3 months, and after this period lapsed, the probation was extended for a further 3 months on 2nd August 2020. It is common cause that on the 1st of October 2020, the Appellant verbally communicated to the Respondent that the probationary period would be extended for another 3 months. This further extension of the probationary period triggered the Respondent to hand in his resignation on 1st October 2020. 12.6 We have reflected on the evidence before us and the principles highlighted in relation to constructive dismissal in the earlier part of this judgment. The contention by the Appellant is that they had decided to extend the Respondent's probationary period as his performance was deemed unsatisfactory. The Respondent contends that he was displeased or grossly unhappy with his treatment. He has highlighted incidents of how the Appellant treated him, and further, that there was no official communication of his employment status, and emails sent to the Appellant remained unanswered. According to him, he resigned in protest as the extended probationary period had surpassed the legally permitted period of 6 months. 12.7 We have asked ourselves whether the Respondent has met the threshold for a claim of constructive dismissal to be upheld based on the employer's conduct. We stand guided by the cases of Kitwe City Council v. Willaim Nguni3 and Chilanga Cement v. Kasote Singogo1 which clearly articulate when an employer's conduct can amount to a breach of contract entitling an employee to resign. 12.8 From where we stand, we do not find sufficient material in relation to the employer's conduct upon which it can be said that they violated a fundamental term of the contract. If dissatisfied during the probationary period, the employer was entitled to extend for a further period in line with Section 27(5) of the Employment Code Act. The objective of a probationary period is to assess the employee's skills, productivity and ability to meet the role's expectations. At the end of a probationary period, the employer typically decides whether to confirm the employee in their role, extend the probation, or terminate the employment. 12.9 The probationary period is designed to benefit both parties. Just as the employer assesses the employee, the employee also evaluates whether the role, workplace culture, and organisational environment meet their expectations. If the job does not align with their professional goals or personal preferences, the employee can exercise their contractual right to resign during this period. Long and short, the employee also has the right to terminate his employment during the probationary period. In our considered view, probation is to be understood as a trial phase for both the employer and employee as they carry out their respective assessments. 12.10 According to our calculation of time from 2nd May 2020 to 1st October 2020, the Respondent was within the probation window period. The Appellant's actions were not severe enough to justify resignation as constructive dismissal. The employer was exercising its right to assess the Respondent's suitability and highlighted what it considered to be unsatisfactory performance on the part of the employee. This is evidenced by the email dated 1st June 2020 which gave feedback to the Respondent. 12.11 On the 1st of October 2020, after a verbal discussion regarding the employment relationship, the Respondent elected to tender in his resignation. In the said resignation, he stated as follows: "Notice to resign Good day, Please accept this email as a formal notice of my resignation from my job as Acting branch supervisor for Kitwe branch. My last day of employment will be 03.10.2020. Thank you for giving me an opportunity to work in this company for the past two years. I have thoroughly enjoyed working here and appreciate all the opportunities you have given me; however, I could not proceed to work without any contract, and as a result, I have decided it is time for me to move on to my next challenge and pursue my personal interests. Thank you, and I wish the company all the best for the future. Regards" 2.12 Our discernment of this letter is that the Respondent merely exercised his contractual right to resign within the probationary period. We say so against the backdrop that we have not found on the record where the conduct of the employer amounted to a fundamental breach of the contract of employment. .2.13 We now turn to consider whether the Appellant had breached its statutory duty under Section 27(1) & (5) of the Employment Code Act, by allegedly extending the probationary period beyond the 6-month permissible limit. For ease of reference, these provisions are enacted as follows: "27(1) An employee may be employed for a probationary period, not exceeding three months, to determine that employee's suitability for appointment. (5) A probationary period under subsection (1) may be extended for a further period not exceeding three months.'' 2.14 It is clear from the preceding, that an employee can be placed on a 3-month probationary period, which the employer can extend to further assess suitability for the job. At the end of the initial 3 months probationary period, an employer is entitled to extend for an additional 3 months. The total probationary period permissible by law is 6 months and not beyond. The net effect of going beyond the 6 month period would amount to a breach of the statutory period. 2.15 Regarding the present case, we find it imperative to highlight the timelines to determine whether the above statutory period was breached. The Respondent was appointed as Acting Branch Supervisor, Kitwe on 2nd May 2020 on a probationary period of 3 months. On 2nd August 2020, the probation was extended for 3 months. On the 1st of October 2020, the Executive Director notified the Respondent verbally that there would be a further extension of 3 months. The Respondent reacted to this news by tendering a resignation. 2.16 As earlier stated in paragraph 12.11, we calculated the period from 2nd May 2020 to the date of resignation, which is 1st of October 2020, and found that the total period that the Respondent had served on probation was 5 months. It therefore follows that at the time of resignation, the Appellant had not breached the statutory permissible period of 6 months. Our examination of the evidence, in particular on page 71 of the record of appeal, reveals that on the material day, 1st October 2020, there was a discussion between the Respondent and the Appellant's Executive Director, Mr. Nebojsa Spasic, when giving him feedback on his performance. In this discussion, he was asked to step up failure to which he would be reverted to his earlier position of Customer Sales Adviser. It is not disputed that the communication was verbal, and the Respondent reacted by resigning. 2.17 It is alleged by the Respondent that he was informed that there would be a further extension of the probationary period. Notwithstanding that the Respondent may have been told or notified that the probationary period would be extended at the point of resignation, the legal limit of 6 months statutory probation was never exceeded. We are of the settled view that the Respondent's resignation occurred pnor to the crystallization of any breach, thus maintaining the employer's legal compliance. 2.18 This entails that the finding of fact by the trial Court, to the effect that the Appellant breached the Employment Code Act, was perverse as the evidence and the law did not support it. The evidence, as we have highlighted, is that the Respondent resigned before the lapse of the 6 months statutory permissible probation period. We are thus mandated to set aside the finding on the strength of the holding in Masauso Zulu v Avondale Housing Project Limited14 Ground 2 1s • meritorious for the avoidance of doubt. Consequently, the award of 12 months' salary by the court below is set aside. 2.19 Turning to the alternative ground where the Appellant bemoans the award of 12 man ths' basic salary as compensation; in light of what we have found in ground two, that there was no constructive dismissal, this ground becomes otiose. 2.20 Moving on to the cross-appeal where the Respondent is requesting enhanced damages, the Respondent has asked for an award of punitive damages and an increase in the award for breach of contract to 36 months. In light of our findings on grounds 1 and 2, the cross-appeal has no legal leg to stand on. 13.0 Conclusion 13.1 In sum, we have found the following: 1. That the employers' (Appellant) conduct did not breach the terms of the employment contract. The employer's conduct did not amount to constructive dismissal. 2. The Respondent exercised his contractual right to resign. The resignation by the Respondent occurred before any statutory breach could materialize, therefore, any claim of non-compliance is unfounded. 3. The probationary period given to the Respondent was within the provisions of the Employment Code Act1 and the Appellant had not exceeded the permissible period of 6 months at the time the Respondent resigned. 4. The alternative ground challenging the excessive award has been overtaken by events and is, therefore, redundant. 5. In the cross-appeal, the claim for punitive damages is found to be bereft of merit as there was no constructive dismissal. 11.2 The appeal is allowed. This matter having emanated from the Industrial and labour division of the High Court, each party bears their own costs. ···~ ··········~ ············ M.M. Kondolo, SC COURT OF APPEAL JUDGE " ~ ......... ............. .. ·········~ ·········· A.M. Banda-Bobo COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE