Wilbroad Mulamba and Ors v National Pension Scheme Authority (2025 /HPIR/ 0072) (14 January 2026) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2025 /HPIR/ 0072 INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: WILBROAD MULAMBA ALFRED CHIFOTA MABVUTO MBAWO SHEILA M. CHABALA CHRISTOPHER MAVIMBA FREDRICK SIMWINGA FELIX BANDA JETHROW LWENJE CYNTHIA CHISENGA AND NATIONAL PENSION SCHEME AUTHORITY RESPONDENT BEFORE: Hon. Mr. Justice E.L. Musona on the 14th day of January, 2026 For the Complainants: MB Christopher Legal Practitioners For the Respondent: National Pension Scheme Authority JUDGMENT Cases referred to 1. Kitwe City Council v Vvilliam Nguni SCZ Judgment No. 12 of 2005 2. Development Bank of Zambia v Mambo SCZ No. 13 of 1995 3. Agnicious Mushabati and others v National Prosecution Authority 2024/CCZ/003 4. Standard Chartered Bank (Z) Plc v Willard Nthanga and others SCZ Appeal No. 193 of 2016 Jl 1.0 THE BACKGROUND 1.1 On 31st January, 2025 the Complainants commenced this action seeking the following reliefs; A declaration that the Complainants who separated from 1. employment before the implementation of salary increments were entitled to be paid the difference where the date of effecting the increased salaries was backdated to the time the Complainants were still in employment. An order directing the Respondent to pay the 11. Complainants the salary difference between the salaries paid to them and the newly upward revised salary from November 2023 to date of separation of each Complainant and re-computation and subsequent payment of the separation packages based on the revised salaries. Interest on the amounts due at the current bank lending 111. rate from the date the judgment sum became due and payable to date of payment. 1v. Any other relief the court may deem fit. v. Costs of and incidental to these proceedings. J2 1.2 On 21st May 2025, the parties filed a consent order for directions where in it was agreed that the parties hereto shall file Agreed Statement of facts within 30 days from the date of signing the consent order by the Honourable Judge. 1.3 The Complainants shall file their written submissions within 21 days from the date of filing the agreed facts. 1.4 The Respondent shall file its written submission 21 days from the date of service of the Complainants filed submissions. 1.5 The Complainants shall file the reply to the Respondent filed submissions if any, within 14 days from the date of receipt of the Respondent filed submissions. 1.6 That there after the court shall proceed to deliver its judgment. 1. 7 I have meticulously looked at the facts of this case. I have also looked at the submissions from the parties. 2.0 THE FACTS 2.1 According to the Affidavit in support of Notice of Complaint the facts of this case are that Complainants are former employees J3 of the Respondent and served in different capacities and different number of years of service. 2.2 During the first half of 2024 the Complainants herein separated from the Respondent Authority at different dates but in the first half of the year 2024. 2.3 On or about July 2024, the Respondent Authority implemented the new conditions of service arising from the harmonization process which resulted in the increment of salaries in the salary scale of all Complainants. 2.4 The said upward revised salaries were then backdated at implementation to November 2023 during which period Complainants were still in employment. 2.5 On 27th September 2024, the Complainants wrote to the Respondent authority requesting payment of the difference in salaries and re-computation of the separation packages. There was produced and marked "WMl" a copy of the said letter. J4 2.6 On 31st November 2024, the Respondent authority wrote a letter in which it stated that the Complainants were not entitled to receive payment on the salary difference and re computation of the separation packages based on the revised salaries on the ground that they were no longer in employment. There was produced and marked "WM2" a copy of the said letter. 2. 7 The Respondents in their answer to the Notice of Complaint admitted that all the within Complainants were employees of the Respondent who separated from the Respondent on diverse dates. 2.8 The rationalization and harmonization of condition of service was only applicable to those who were employees at the time of implementation and did not extend to former employees who had already separated from the Respondent. 2. 9 Further, the report on the rationalization and harmonization of conditions of service issued by the Emoluments Commission clearly stated that the revised conditions of service were JS subject to consent. Therefore for an employee to be entitled to salary arrears or any other conditions flowing from the said rationalization and harmonization, they were required to give their consent to the revised conditions of service. In order to consent, they had to be in employment with the Respondent. Consent was requested from employees in June 2024, at which time the Complainants had already separated from the Respondent. 2.10 Apart from the within facts of this case, the parties filed agreed facts. The agreed facts are as fallows; 2.11 It was agreed that all the Complainants herein are former employees of the Respondent who served in various capacities for a different number of years. 2.12 It was further agreed that the Complainants herein separated from the Respondent at different dates but in the first half of the year 2024. 2.13 The parties agree that on or about 2022, the Emoluments Commission undertook to rationalize and harmonize J6 emoluments in Social Security Institutions which included the Respondent. 2. 14 That following the harmonization and rationalization of the Respondent conditions of service by the Emoluments Commission, salary increments and new conditions were implemented at the month end of July 2024 with the effective date being November 2023. 2.15 The parties agree that all the Complainants were in the employment of the Respondent as at November 2023, the effective date of the revised conditions but had separated from employment by June 2024 being the implementation date. 2.16 POSITION OF THE COMPLAINANTS (i) The Complainants position is that they are entitled to be paid the difference in salary arising from the increment from November 2023, being the effective date of the new conditions to the date of individual separation. (ii) The separation package should be recomputed based on the increased salary effected in November 2023 during which period the Complainants were still in employment. J7 2.1 7 POSITION OF THE RESPONDENT 1. The position of the Respondent is that the Complainants are not entitled to enjoy the new salary increment as they were all not in employment as at the date of implementation. 11. The rationalization of conditions of service did not extend to former employees who had already separated from employment as at implementation. Consequently, only employees who were 1n employment on the implementation date were entitled to the revised salary increment. 111. The Respondent 1s also of the position that for an employee to be entitled to the rationalized and harmonized conditions, they were required to give consent to the revised conditions. 3.0 DECISION 3. 1 On the basis of the agreed facts which were filed by the parties I am satisfied that there are now only two (2) questions for determination in resolving this impase. The questions are as follows; JB Whether the Complainants having separated from the 1. Respondent prior to the implementation date of the salary increment were entitled to the revised salaries. Whether the Complainants, having separated from the 11. Respondent prior to the implementation date of the salary increments are entitled to be paid the difference in salary and recomputed benefits at the rate of the revised salaries, backdated to the effective date. 3.2 I find the questions interesting. 3.3 When the rationalization and harmonization of conditions were done all the Complainants were in employment. The date to which the salaries were backdated fell within the period during which all the Complainants were in employment. 3.4 Had they not exited employment they would too have been paid. The only reasons why the Respondents are opposed to paying Complainants are because (1) payment was done after the Complainants had exited employment and (2) Complainants did not consent to the new conditions of service. J9 3.5 I have found the argument by the Respondent to be destitute of merit because by backdating the payment, the Respondent were in effect acknowledging that the employees including all the Complainants had worked for that money and therefore earned it from the date to which it was back dated to date of payment. There is no reason to deny the Complainants payment of the money which they worked for. 3.6 I have looked at a plethora of authorities. 3. 7 I have distinguished this case from the case of Kitwe City Council v William Nguni In the case of Kitwe City Council (II_ what the court held was that a person cannot be paid for a period not worked. In the present case the Complainants want payment for the period which they worked. To deny the Complainants payment for the period they worked is unjust. Every sweat must be paid for. The Complainants must be paid for their sweat. 3.8 The proposition by the Respondents that the Complainants did not consent to the new conditions is misplaced and JlO misrepresentation of facts. The Complainants have never asked to be beneficiaries of the general conditions of service. Their request is specific on salaries for the period they worked. There is no law requiring an employee to consent to a payment which has already been earned. They can just acknowledge receipt when they are paid. 3. 9 The consent to rationalized and harmonized conditions of service could only be given by employees who were still 1n employment of the Respondent at the implementation date. 3.10 The case of Development Bank of Zambia v Maambo '21 can be distinguished from the case in casu. Whereas the backdated salary increment in that case covered the period of the termination in lieu of notice. The case before me deals with the period affecting the Complainants when they substantively were in the employment of the Respondent. 3. 11 Further, in the case of Agnicious Mushabati and others v National Prosecution Authority (3l, the Petitioners in that matter had separated from employment and were retained on Jll the payroll pending payment of their pension. They claimed to be paid the salary difference when the conditions of those employment were revised upwards. The Constitutional Court declined on the ground that they could not be entitled to the salary increment as they had already separated with the employer. It is clear that whereas that case dealt with a future increment after the separation, the matter before me is dealing with the salary increment covering the period when the Complainants were still in employment. 3.12 The Respondent cited the case of Standard Charted Bank (Z) Plc v Willard Nthanga and others l 4 l which held that; "If one terminated employment two months after the new salaries came into force, he will be entitled to two months arrears. ... If he was terminated before the new salaries came into force he will be entitled to nothing." 3.13 Although this case was cited by the Respondents it is in effect strengthening the Complainants' case because the Complainants exited employment after the rationalization and Jl2 harmonization of salaries. They are therefore entitled to arrears as claimed. 3.14 On the above basis the Complainants are entitled to arrears as per revised salaries. 3.15 The Respondents must not expect free labour in the circumstances of this case. Labour is a commodity which is sold and must be paid for by the employer as buyer for labour. The Complainants must be paid the difference in salary and recomputed benefits at the rate of the revised salaries backdate to the effective date of the respective dates when each Complainant exited employment. 3.16 Now therefore, I declare that the Complainants who separated from employment before the implementation of salary increments are entitled to be paid the difference and order the Respondent to pay the Complainants the salary difference between the salaries paid to them and the newly upward revised salary from November 2023. Jl3 3.17 I order interest at short term bank deposit rate from the date of the Notice of Complaint to the date of judgment and thereafter, at the current lending rate as determined by Bank of Zambia from date of judgment until full payment. 3.18 I shall order no costs. Delivered and signed at Lusaka this the 14th day of January, 2026 Hon. Mr. Justice E.L. Musona HIGH COURT JUDGE J14