Mumba Jordan and 6 Ors v Zambia Medicines & Medical Supplies Agency (Formerly Medical Stores Limited) (COMP/IRCLK/120/2021) (9 December 2025) – ZambiaLII

- r_ .,.,. • AND ZAMBIA MEDICINES & MEDICAL SUPPLIES AGENCY (FORMERLY MEDICAL STORES LIMITED) RESPONDENT Coram: Before Mrs. Justice M. S. Ngoma this 9th day of December, 2025. For the Complainant L. Chaila of Dzekedzeke and Company. For the Respondent Miss. M.C. Kaoma of KMG Chisanga advocates. JUDGMENT Legislation referred to: 1. Employment Code Act No. 3 of 2019. Cases referred to: Qi.3 1. Western Excavating (ECO Limited) vs Sharp (1978) 761. 2. Kitwe City Council vs William Nguni (2005) ZR 5'{./ 3. Chilanga cement PLC vs Kasote Singogo (2009) ZR,1 22. · 4. Milangu Kampata vs Barclays Bank Zambia CPLC 2010/HP/59. · 5. Faidacy Mithi Lungu vs Lonrho Zambia Lir~lited SCZ Appeal No. 18 of 2000. 6. Musonda Mutale vs African Banking Corp~ration (Z) Limited Appeal No. 19 of 2019. 7. Mabilo vs Jlllpumalenga Provincial Government (1999) 20 K~J 1818 (LC). 8. Sapo Limited vs Jansen Van Vuuren (2008) 8 BLLR 798 (LC). J1 9. Standard Chartered Bank vs Celina Meena Nair CAZ Appeal No. 14 of 2019. o. 1 Finance Bank Zambia Limited and Anor vs ~imataa (Appeal No. 11 of 2017). 11. Robert Owen Harris vs Mopani Copper Mines PLC APPEAL No. 167/2013. 12. YB and F Transport Limited vs Supersonic Motors Limited10 (SCZ Judgment No. 3 of 2000). 13. Africa Banking Corporation Limited Moses Vera (CAZ 880 of 2011). 14. Simmonds vs Dowty Seals Limited 1978 IRLR211 EAT. 15. John Munsenge vs Family Health Trust Registered Trustees (SCZ Appeal No. 23/2012). 16. Michael Kahula vs Finance Bank Zambia Limited (Appeal No. 96/2012). 17. Nitrogen Chemicals of Zambia Limited vs Bog_d Chomba Mutambo and Others (Appeal No. 75 of 2014). 18. Mabilo vs Mpumalanga Provincial Government (1999) 201 LJ 1818 (LC). 19. Chansa Ng'onga vs Alfred H. Knight (Z) Limited Selected Judgment no. 26 of 2019. 20. Josephat Lupemba vs First Quantum Mining and Operation Limited CAZ Appeal No. 120 of 2017. 21. Swarp Spinning Mills PLC vs Chileshe and Others SCZ No. 6 of 2002. 22. Barclays Bank Zambia Plc and Weston Luwi and Suzgo Ngulube SCZ Appeal No. 07/2012. 23. Joseph Chitomfwa v Ndola Lime Company Limited (1999) ZR 172. 24. Attorney General vs Mpundu ( 1984) ZR 8. Other Materials 1. Black's Law Dictionary (6th Edition) St. Paul, West Publishing Chicago. J2 2. Employment Law in Zambia Cases and Materials, Revised Edition (2011) UNZA Press by W. S Mwenda. 3. Halsbury's Laws of England, 4th edition, Vol 16, at paragraph 321. 4. MC Gregor on Damages 16th Edition 1997. 5. A Comprehensive Guide to Employment Law in Zambia, Mwenda, WS and Chungu, C. Introduction 1. The complainants, namely Jordan Mumba, Nobert Mulilo, Samuel Mushiba, Sebastian Nchimunya, Kendrick Kabunda, Floyd Mumba, and Davies Mpande, resigned from their employment with the respondent and now claim that they were constructively dismissed. The respondent disputes liability, maintaining that the resignations were voluntary. Background 2. The complainants were employed by the respondent on permanent and pensionable contracts between October 1998 and June 2015 in various positions. They allege that between August and November 2020, they were compelled to resign due to the respondent's conduct, which they contend amounted to a fundamental breach of contract. They seek the following reliefs: i. A declaration that they were constructively aismissed; A declaration that there was failure on the part of the respondent ll. to observe basic rules of natural justice; m. A declaration that the respondent breached respective contracts of employment by suspending them indefinitely; w. Damages for breach of their respective contracts of employment; v. Damages for the harsh and inhuman manner in which they were treated resulting in undue embarrassment, physical and mental distress and trauma; vi. Any other relief the court may deem fit; J3 vu. Interest; and um. Costs. 3. The respondent, in its answer, denied the allegations and maintained that the complainants resigned of their own volition and are not entitled to the reliefs sought. Complainants' Affidavit Evidence 4. In the affidavit in support of the notice of complaint, Jordan Mumba, the lead complainant, deposed that the complainants were engaged by the respondent on diverse dates between October 1998 and June 2015, under permanent and pensionable contracts of service. 5. He deposed that the complainants were su_bjected to repeated suspensions, investigations, and restrictions without due process. He cited: the downgrading of Sebastian Nchimunya's salary in 2014 without justification; his own suspension in 2016 over alleged loss of HIV test kits, later cleared after a disciplinary hearing; the confiscation of the complainants' phones by police in 2017 at the respondent's instruction; indefinite suspensions in 2019 with half pay and restrictions on movement; and repeated suspensions and "show cause" letters despite lack of evidence implicating them 6. It was his testimony that on 28th August 2017, the complainants were segregated from the rest of the employees during a staff meeting and were thereafter handed over to officers of the Zambia Police, who, acting on the respondent's instructions, con:(iscated their mobile phones. The deponent further averred that the complainants were subjected to extensive investigations by various law enforcement agencies, including the Zambia Police and certain international bodies, yet no evidence was ever adduced implicating them in any wrongdoing. Notwithstanding this absence of incriminating evidence, the complainants were, on 18th June 2019, indefinitely suspended J4 from their duties, placed on half salary, and restricted from travelling outside Lusaka. The letters of suspension were exhibited to the affidavit and marked as "JM 7 ." 7. It was the deponent's further evidence that the complainants' legal practitioners on record addressed a letter to the respondent, challenging the propriety of the suspensions on the ground that they had been effected without adherence to the due process and procedure prescribed under the respondent's disciplinary code. Consequent thereto, the respondent lifted the suspensions on 28th June 2019. However, on 3rd July 2019, the respondent issued letters to the complainants requiring them to show cause why disciplinary action should not be taken against them in relation to the alleged loss of stock for the period 2014 to 2017. Shortly thereafter, on 9th July 2019, the complainants were once again placed on indefinite suspension. The letters lifting the suspensions, the "show cause" letters, and the subsequent suspension letters were exhibited to the affidavit and marked as "JM 10" and "JM 11," respectively. 8. The deponent further contended that the complainants were compelled to tender their resignations as a direct consequence of unfounded allegations levelled against them by the respondent, which created intolerable and unfavourable working conditions. The letters of resignation were exhibited to the affidavit and marked as "JM 13." He added that the complainants verily believe that the respondent's conduct amounted to a clear breach of their respective contracts of employment, contravened the provisions of the Employment Code Act, and was actuated by bad faith. As a result, the complainants suffered mental torment, anguish, embarrassment, and shock. Respondent's Affidavit Evidence 9. The affidavit in support of answer was deposed to by the respondent's human resource manager, Mazanga Sianga. He deposed JS that the respondent conducted a salary review for all employees which resulted in the downgrade of Sebastian Nchimunya's salary scale as it was discovered that he had been paid more than he was entitled to. Sebastian Nchimunya and the respondent reached a settlement in which it was agreed that he be paid all the amounts due to him. 10. The deponent averred that the matters which are peculiar to individual complainants referred to in the complainants' affidavit in support of complaint were dealt with conclusively before the matters giving rise to this action. He further averred that the 2016 suspension of the lead complainant related to thefts that occurred when the lead complainant was a manager at an offsite warehouse and that the matter was disposed of with finality and the lead complainant's suspension was lifted and he resumed normal work operations. 11. The deponent further averred that following a suspected diversion of essential medicines and other medical supplies stored by the respondent, investigations were commissioned on 28th August 2017 by the police leading to the suspension .and seizure of the complainants' mobile phones as part of the investigations. 12. The deponent denied treating the complainants in a discriminatory manner or making them subjects of threats, intimidation or manipulation. Additionally, he disputed that the complainants' freedom of movement was curtailed as the respondent only advised them that as a result of the investigations that were pending, it was prudent for them to be accessible when need arose. He stated that, in fact, the complainants continued to access· all benefits as an incidence to employment save for half pay and incentives such as bonuses. J6 13. The deponent further contended that the suspension of the complainants was a result of a report conducted by the Global Fund and United Nations Development Program (UNDP) on the diversion of essential medicines from the respondent which the respondent's employees responsible could not give satisfactory answers to the questions about the loses. The essence of the suspensions was to pave way for continued independent investigation of the matter. The suspensions were in accordance with the respondent's disciplinary procedure as prescribed in the disciplinary code. 14. The deponent also denied that the complainants were constructively dismissed. He contended that they resigned on their own without giving thirty days prior notice as required. The resignations were accepted by the respondent as shown in the letter in response to the resignations exhibited as 'MS 8'. 15. The deponent admitted that the investigations into the losses were being conducted by various agencies given that the medicines and medical supplies subject of investigations were donor funded, hence the interest of UNDP and Global Fund. 16. He denied breaching the complainants' contracts of employment or the Employment Code Act contending that the investigations were in accordance with the disciplinary code. He averred that it was, in fact, the complainants who breached the contract by voluntarily resigning without giving the requisite thirty days prior notice. Hearing 17. Four (4) witnesses took to the stand on behalf of the complainants while the respondent only called one witness. The first witness to take the stand was Jordan Mumba, the lead complainant (CWl). He testified that the complainants were a group of seven (7) and he was the longest serving with 22 years of service and the least had served J7 for 5 years. It was his testimony that on 9th September, 2016 he went on leave. He did his handover notes and left his responsibilities to two officers. There was no adverse report at the time he went on leave and everything was in order. Ten days into his leave, he got a call from the warehouse manager stating that there was a problem at the warehouse he operated from and requesting that he goes to the office. When he got there, he found a group of his colleagues led by the Director Logistics, the then boss of his department. While there, he learnt that some HIV Test Kits were missing. He was shocked because before he went on leave, everything was intact. 18. On the 13th October 2016, he reported back for work after his leave. That day, the warehouse manager called him to report to Matero Police Station where he was told that he was called for an interview with regard to the missing HIV Test Kits. 19. It was his testimony that the following month, he was interrogated by Drug Enforcement Commission (DEC) officers who even recorded a statement from him. What followed was that he received a letter of suspension from work on 6th March 201 7 stating that his suspension was due to the loss of HIV Test Kits and that he should not leave Lusaka. He told the Court that he noticed that the respondent had breached the disciplinary code when it suspended him without being given an opportunity to exculpate himself. He brought this breach to the attention of the human resources manager, but she ignored him. He was then taken through a disciplinary hearing and after a lengthy process, he was acquitted of wrong doing and transferred to another department in customer service. 20. It was his further testimony that on the day he reported to his new department on 28th August 2017, a meeting was called for all members of staff to be addressed by the Managing Director. At that meeting, twelve employees (the thirteenth employee, Norbert Mulilo, was added to the group later as he was not available on that day) JS including himself, were segregated from the rest of the employees and handed over to uniformed and plain-clothes Policemen who told them they were there to conduct investigations into the diversion of essential medicines from the respondent. The Police officers confiscated their mobile phones for forensic examinations, all without a search warrant. They promised they would keep the phones for three or four days only before returning them. The phones were only returned a year later. 21. He testified that their money was locked in their mobile money accounts in their phones, which paralysed them financially. They followed up, requesting a meeting with the Managing Director which never materialised. Days later, they received a response from the Managing Director advising them to communicate only with him and not the others. He described the Managing Director's response as weak and devoid of a solution to their problems. 22. CWl testified that the News Diggers Newspaper carried a story that police had grab bed phones from the masterminds of those involved in drug thefts at medical stores and that this resulted in their colleagues avoiding them and saying that finally the thieves had been caught. 23. What unfolded after that was that on 18th June 2019, the thirteen of them received suspension letters. These letters were signed by the Human Resource Manager, which he said was contrary to clauses 5.0 to 5.11 of the Disciplinary Procedure Code which stipulates that such letters should be signed by an employee's immediate supervisor and further requires that an employee be given an opportunity to exculpate himself, which was not done. After letters were written to the respondent by the complainants' legal representative and the Union on behalf of those among them who were unionised, the respondent lifted their suspensions and invited them to report for work on 3rd July 2019 only for them to be served with letters to show J9 cause why disciplinary action should not be taken against them. The complainants were suspended, yet again. He added that in the letters to show cause, the respondent quoted the Global Fund report and yet the report did not mention any of the complainants. According to this witness, this exposed the respondent as lacking control and stock management which resulted in the respondent being charged UD$ I million by Global fund. Further, the respondent was asked to make changes to its management structure. The Managing Director was removed. 24. It was CWl further testimony that they were treated badly at the hands of the Police as for months on end they were made to report to the Police every Wednesdays. 25. CWl told the Court that the respondent did not advance the internal disciplinary proceedings and when asked why this was so, they simply said the thirteen of them were under j,nvestigations by the Police. He averred that this was in breach of clauses 2129 and 2110 which provide for disciplinary procedure to run concurrently with any criminal process. 26. CWl further testified that throughout this process, the complainants never received any support from the respondent. The thirteen of them were all put on half salary and their movements were curtailed. Eventually, they started resigning one by one, from August until November 2020.This was because the respondent deliberately created an environment which forced the complainants to resign. 27. He added that Zambia Police; DEC; the Global Fund; UNDP; Investigator General's Office in Geneva and Pretoria; US Aid; and the Taskforce on Pilfera ge of Medicine and Drugs all took turns in investigating them and calling them to their offices one after another the whole of 2019 as they clearly had different agendas. no 28. Under cross examination, CWl confirmed that he was acquitted over the theft of HIV Test Kits but insisted that the same was related to the theft of drugs over which he was suspended with the twelve because the theft of HIV Test Kits was also captured in the Global Fund report. 29. Under further cross-examination, CWl confirmed that he was given an opportunity to exculpate himself prior to the 2018 suspension arising from the Global Fund and UNDP report on the diversion of medicines. That he was on suspension for more than a year and that he felt victimised by the respondent through its agents, the Zambia Police, who intimidated him and his colleagues by asking them to report to the Police every week. He also cited the Director Pharmaceutical Standard, Anne Zulu, who he said called them 'the cartel' in meetings. However, he did not have a record of this. 30. The second witness was Norbert Mulilo ('CW2'). It was his testimony that he worked for the respondent as warehouse manager until 2017 when there was a change at top management. A new managing director and a logistics manager were brought in in March 201 7. The warehouse manager made some changes at supervisory level. CW2 was moved from his position of assistant warehouse manager to the cold room where there were only two people who were working there. According to him, he was technically downgraded to a position he did not even know as he was supervising twenty people in his previous position, which position was given to his junior who he had been supervising. 31. It was his further testimony that in April 2017, _he was transferred to another warehouse in the Industrial area of Lusaka where he went reluctantly after he was threatened with a charge of insubordination. He was reluctant because it was the same warehouse where his colleague, CW 1, had been suspended on account of alleged stolen HIV Test Kits. Jll 32. It was his testimony that in August 2018, after. an attempted break in at the warehouse where he worked, he was suspended and was only formally charged for the offence of gross negligence three months into his suspension. He was reinstated to his position in January 2019 and moved from the warehouse to customer service as an Assistant Manager. During this period, he was tagged as a criminal and his manager told him he could not perform her duties except approving orders from health facilities because he was regarded as unclean. His colleagues in the department were also distancing themselves from him as they regarded him as a criminal. 33. He further testified that in June 2020, (he must have meant 2019 as the record shows) he received a suspension letter. The reason for the suspension was to pave way for investigatiqns over the loss of essential medicines which took place between 2014 and 2017. The suspension lasted one year and two months. During his suspension, he only got half his salary, and his take-home pay was K400 because of the loans that he had, which led to financial difficulties and eventually forced him to resign. That since his resignation, he had failed to get another job. Something he attributed to the manner in which he was suspended by the respondent. It was his testimony that he had been interviewed a number of times, however, when his prospective employers conducted background 'Checks on him, they were not willing to employ him. 34. In cross-examination, CW2 told the court that when he was downgraded, his conditions of service and job title did not change. He was assigned different duties. He conceded that there was nothing wrong with an employer re-assigning duties to an employee. He confirmed that when he resigned, he was paid all his dues including what was withheld during the 2nd suspension. J12 35. In re-examination, CW2 testified that althoug];i his salary was not downgraded, his responsibilities were, in fact, downgraded. 36. The 3rct witness called to the stand was Samuel Mushiba ("CW3''). He worked as an Assistant Manager reporting to the Director Logistics. In 2017, the respondent appointed a new Managing Director who introduced some changes in the Logistics Department. He appointed a new Director and introduced a new position between him and the Director. The new position was Inventory Manager and was occupied by a lady, Rachael Msimuko. All his responsibilities had been channelled to her. Even the eighteen people who were under him started reporting directly to her. All the documents that he used to approve started going directly to her. While all this was going on, he did not receive any communication from his Director or the Human Resource Department indicating to him about the changes. When he went to inquire about it from Human Resource, he learnt that it was the Managing Director who had instructed that Ms. Msimuko takes over his responsibilities. In the course of time, she was designated as Inventory Manager, a position that was not even in the organogram. 37. CW3 further recounted being among the thirteen employees who were paraded and had their phones confiscated by Police on 28th August 201 7 on suspicion that they were responsible for the missing medical stock. His testimony as to what ensued after this was, in substance, similar to the testimony of the previous witnesses. As such, I shall not re-harsh it here for the sake of brevity, save to state that he added that he noticed that his suspension letter made reference to the Global Fund report which had been published in April 2018, one year and four months previously. He wondered why the respondent suspended him in the middle of an investigation being conducted by UNDP as well as the Police. 38. He further added that after thirteen months of being on suspension without being brought before the disciplinary committee and all their J13 requests to have audience with the Managing Director being shunned, he decided to resign. It was only after he and the other complainants served the respondent with court process in this action that the respondent reinstated the rest of the thirteen suspended employees who had not resigned. 39. It was his further testimony, under cross examination, that it was wrong for the respondent to have appointed someone as Inventory Manager ahead of him when he had worked hard to motivate the respondent to appoint him to the position but the respondent stated that he could not be appointed to a position which was not on the organogram. 40. The 4th witness was Nchimunya Sebastian ("CW4"). It was his testimony that sometime in 2014, his salary was downgraded from "MSL5" to MSL7" in contravention of his contract of employment. No reason was given to him for this turn of events. The letters he wrote to management were not responded to until 28th August 201 7 when the department responded that the downgrade was due to a decision made at a meeting held with other government agencies that inventory officers in all parastatals should be paid the same. He found this very frustrating as it was not in line with his contract of employment. 41. He recounted the frustrations that he endured during the period he was on suspension. It was hard to survive on _half salary. He could not provide for his children adequately. His relationship with the respondent management had broken down. He added that he once lost a job offer when the prospective employer contacted the respondent for a reference and was told that he was on suspension in connection with missing medical supplies. He resigned on 31st August, 2020. J14 42. In cross examination he confirmed that he was paid his dues on resignation including the half salary that was withheld during his suspension. 43. The respondent's sole witness was Mazanga Siyanga, the Senior Manager, Human Resource and Administration. It was his testimony that the events leading up to this case involved stock and medical supplies that had gone missing between 2014 and 2017. This came to light when a report was produced by one of the respondent's cooperating partners, Global Fund. The stock in question belonged to Global Fund but was administered through the respondent in terms of storage and distribution. He testified that ~hen the issue of the missing stock came to light, it attracted the attention of investigative wings which launched investigations. The respondent also launched investigations and suspended thirteen of its employees who dealt directly with management of stock. These included Jordan Mumba ) the lead complainant, who was in charge ·of overseeing offsite warehouses rented by the respondent due to inadequate space; Samuel Mushiba the Assistant Manager Inventory and supervisor for the warehouse management system that was being used to account for stock; Norbert Mulilo, Assistant Manager responsible for outstocks processes which included picking, packing and discharging stock; Davis Ponde with his assistant Floyd Chitobeshi who were in charge of loading and accounting for any distribution of stock loaded on trucks in readiness for distri½mtion; Ken Kabunda who served as a checker, responsible for checking all stock that was packed before it was loaded; Sebastian Nchimunya, the Inventory Officer who, together with his Assistant Manager were custodians of the stock; David Mwale, the Fork Lift Operator whose role was to move stock within the warehouse from upper locations to the point of pick up; Lemmy Mbewe, Driver/Distribution Clerk; Yotam Mwale, Warehouse Assistant responsible for picking/packing processes; Trevor Chanda, Warehouse Assistant who occasionally acted as a checker. JlS 44. RW confirmed that the complainants were initially suspended in June 2019 and were recalled just after a few weeks and were subsequently requested to exculpate themselves after which they were again suspended pending investigations. 45. It was his further testimony that four of the thirteen employees had separate cases which were all conclusively dealt with and the cases closed. He told the Court that Jordan Mumba w,;1s in 2016 charged with the case of gross negligence after stock went missing at one of the warehouses where he was in charge. He was exonerated of wrong doing and recalled to work. 46. RW told the Court that the case cited by Robert Mulilo arose after a break-in at one of the warehouses he was managing. After a disciplinary process, he was found not guilty and recalled to work. 4 7. With regard to Sebastian Nchimunya's claim that he was downgraded, RW told the Court that the parties reached a settlement and he was compensated. 48. With respect to the claim by Samuel Mushiba that he was downgraded and another person recruited above him as Inventory Manager, RW told the court that Mr. Mushiba was, in fact, not downgraded. Inventory department was upgraded to a stand-alone department to be headed by a degree holder. Mr. .Mushiba only had a diploma, hence, the Head of Department was. recruited externally. Mr. Mushiba maintained. his terms and conditions of service. 49. It was RW's further testimony that the investigations carried on by the respondent into the missing medical supplies went on from July to December. Before the conclusion of the investigations, the complainants resigned their jobs, one after another, and were paid their benefits in full including all the half salaries that were withheld J16 during their suspension. Out of the thirteen, the ones who did not resign were reinstated at the end of the investigations and paid their full salaries. That the criminal investigation being carried out by the investigating wings were still on-going. 50. In cross-examination, RW testified that the respondents did follow the disciplinary code and procedure in the way it dealt with the complainants. He maintained that they were, indeed, given an opportunity to be heard as they were allowed to exculpate themselves. The suspension was pending investigations to enable the respondent establish if there wa& any wrong doing on the part of the complainants. 51. Under further cross examination, RW confirmed that the complainants' suspension lasted nearly a year and that during that period, he did not make any follow-up with the investigative wings. He also told the court that none of the thirteen employees were charged or convicted of any offence relating to the missing stock. Complainants' Submissions 52. Mr. Chaila, for the complainants, began by submitting on the legal definition and principles of constructive dismissal. He reproduced the definition of constructive dismissal found in Black's Law Dictionary as a- "Termination of employment brought about by making the employee's working conditions so intolerable that the employee feels compelled to leave." 53. He then cited various cases, some foreign and some local, where the principles of constructive dismissal were applied. They include the case of Western Excavating (ECO Limited) vs Sharp1 where the . . court established the test for constructive dismissal that an employee may resign in response to the employer's conduct if it amounts to a J17 fundamental breach of the contract of employment. The Court proceeded to state as follows: "If the employer is guilty of conduct which is a breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once." 54. Reference was also made to the case of Kitwe City Council vs William Nguni2 where it was held that constructive dismissal arises when the employer's condu.ct constitutes a breach of contract that entitles the employee to resign. This includes any action by the employer that demonstrates an intention not to be bound by essential terms of the employment contract. 55. Further reliance was 'placed on the case of Chilanga Cement PLC vs Kasote Singogo3 where the Court of Apex jurisdiction held that: "The notion of constructive dismissal is anchored on the concept that an employer must treat his employee fairly and should not act in a manner that will compel the employee to flee his job". 56. The Court further stated that: •· "An employer must not, without reasonable cause, conduct himself in a manner calculated or likely to destroy or J18 seriously damage the relationship of trust and confidence between the employer and the employee." 57. Reliance was also placed on the case of Milangu Kampa ta vs Barclays Bank Zambia PLC4 where the Court clarified that the test for constructive dismissal is not simply based on claims of frustration, victimization or harassment. Rather, the plaintiff must to a breach of demonstrate that the defendant's conduct amounted contract. 58. In support of the submission that the respondent unilaterally changed the employment terms of CW4 reliance was placed on section 55 (1) (c) of the Employment Code Act which prohibits employers from varying an employee's contract to their detriment without obtaining consent. It reads as follows: "An employer when varying the terms of service of an employee's employment contract to their detriment, must seek the employee's consent otherwise the variation would be regarded as unlawful." 59. Decided cases were also cited to demonstrate that a unilateral variation, particularly if it affects essential terms such as pay, rank or responsibilities can lead to constructive dismissal. These include the cases of Faidacy Mithi Lungu vs Lonrho Zambia Limited5 and Musonda Muta le vs African Banking Corporation (Z) Limited6 • In the former case, the Supreme court held that: "a reduction in rank and status was capable of constituting constructive dismissal, provided that the employee did not consent to it." 60. In the latter case, the Court of-Appeal held that a unilateral change that breaches the contract's terms is a fundamental breach of contract, resulting in its termination and entitling the employee to treat themselves as constructively dismissed. J19 61. Mr. Chaila then moved on to the submission that an indefinite suspens10n of an employee constitutes a fundamental breach of contract. At the outset, he drew my attention to section 49 of the Employment Code Act which requires that where an employee has been suspended for breaching the disciplinary rules, the suspension shall be done in accordance with the disciplinary rules applicable to the employee. It reads as follows: "Where an employer reasonably believes that an employee has breached the employer's disciplinary rules and the employer decides to suspend the employee, the suspension shall be done in accordance with the disciplinary rules applicable to the employee." 62. The South African case of Mabilo vs Mpumalenga Provincial Government7 was cited to buttress the submission that a suspension must not be used to unfairly disrupt the employee's life, and that any delay in bringing charges could render the suspension substantively unfair. It was held that; "An employer must not be allowed to abuse the suspension process, and that an employee is entitled to a speedy and effective resolution of the dispute. The investing action must be concluded within a reasonable period and unnecessary disruption to the employee's life mu5t be prevented. It is submitted that a lengthy delay in bringing charges which leads to an unreasonably long suspension may cause the preventative suspension to become substantively unfair." 63. Reliance was also placed in another South African case of Sapo Limited vs Jansen Van Vuuren8 where the court highlighted that unreasonably prolonged suspensions can be deemed disciplinary rather than merely preventative, which undermines their intended purposes. J20 64. Having set out the authorities as summarised above, Mr. Chaila then proceeded to submit that the complainants were subjected to public humiliation and distress when, at the instruction of the respondent, they were paraded before their colleagues, and their mobile phones confiscated without any legal warrant. He argued that this action, not only violated their personal rights, but was also unlawful and deeply damaging. He recounted how the complainants were suspended on 18th June 2019 without an opportunity to exculpate themselves, reinstated later and subsequently suspended on 9th July 2019 indefinitely until their resignations. He . submitted that both suspensions were procedurally flawed and lacking in due process in that the Director Logistics recommended the suspensions as opposed to their respective supervisors as required by the disciplinary code. It was his further submission that the indefinite and prolonged suspensions were financially and emotionally devastating, causing severe personal hardships. 65. Counsel further submitted that four of the complainants, namely, Jordan Mumba, Norbert Mulilo, Samuel Mushiba and Sebastian Nchimunya each had additional experiences that contributed to the series of breaches ultimately leading to their resignation. 66. It was counsel's submission that the confiscati9n of phones without justification and the unlawful suspensions constituted a significant breach of contract by the respondent, undermining the trust between the parties and entitling the complainants to resign. This submission was anchored on the case of Western Excavating1 referred to above where Lord Denning held that a significant breach by the employer such as creating intolerable working conditions permits the employee to treat themselves as constructively dismissed. 67. Counsel contended that the respondent's failure to adhere to its own disciplinary code, failure to provide the complainants with a proper opportunity to defend themselves and the prolonged nature of the J21 suspensions not only violated section 49 of the Employment Code Act reproduced above, but also demonstrate a series of breaches that go to the root of the employment contract. Counsel called to aid the case of Standard Chartered Bank v Celine Meena Nair9 where the Court ruled that actions by an employer that cause distress or undermine an employee's confidence are grounds for constructive dismissal. 68. Counsel's contention was that the delays and failure by the respondent to provide clear grounds for the suspensions exacerbated the complainants' emotional distress and financial burdens, making it untenable for them to continue in their employment. The kernel of counsel's submission was that the respondent's action amounted to a fundamental breach of contract, resulting in the complainants' resignations which now entitle the complainants to an award of damages as compensation for the abuse they endured at the hands of the respondent. 69. For the claim of damages, reliance was placed on the learned authors of Employment Law in Zambia who state that:- "Damages are payable in the case of breach of contract of employment in much the same way as they are payable in other cases of breach of contract." 70. Reliance was also placed on the case of Finance Bank Zambia Limited and Anor vs Simataa10 where the Supreme Court held that the purpose of damages is to restore the innocent party to the same economic position that party would have been in had the contract not been breached. 71. Counsel further submitted that in addition to damages for loss of employment, the complainants are entitled to· damages for mental distress, embarrassment, and anguish resulting from the intolerable conditions created by the respondent. Under this head, he drew the Court's attention to the cases of Robert Owen Harris ·vs Mopani J22 Copper Minesll where the Supreme Court reaffirmed the principle ::- that a claim for mental distress or anguish is a separate head which a trial Court is obliged to consider. 72. Counsel further claimed costs and relied on the authority of YB and F Transport Limited vs Supersonic Motors Limited12 where the Supreme Court restated the principle that costs follow the event unless the successful party did something wr_ong in the action or conduct of it. Respondent's final submissions 73. Miss. Kaoma, counsel for the respondent, filed submissions assailing the complainants' exertions. On the question whether the conduct of the respondent amounted to constructive dismissal, counsel relied on the definition proffered by W.S Mwenda in The Employment Law in Zambia Cases and Materials Revised Edition (2011) UNZA Press as follows: "Constructive dismissal arises when the employer through his behaviour makes the working environment so uncomfortable that it is impossible for the employee to continue working." 74. Reliance was also placed on the cases of Western Excavating (ECC) Limited1 and Kitwe City Council vs Ng'uni2 also cited by the complainants, to highlight the definition of constructive dismissal in this jurisdiction. The former case explains the principle that if an employer commits a serious breach of contract, one that goes to the very heart of the employment relationship, the employee can treat the contract as terminated because of the employer's conduct while the latter case emphasises that the test for constructive dismissal is whether or not the employer's conduct amounts to breach of contract which entitles the employee to resign. J23 75. Reliance was further placed on the case of Africa Banking Corporation Limited vs Moses Vera13 where the Court stated that: "The tests for constructive dismissal· are the contract test and the unreasonable test, which is, the conduct must go to the root of the contract and such conduct must be so unreasonable that no employee would be expected to stay in employment." 76. It was submitted that the complainants' evidence does not satisfy the conditions of constructive dismissal, which are that the employer's conduct must have created a toxic environment and must have conducted himself without reasonable and proper cause in a manner likely to destroy or seriously damage the relationship of confidence and trust with the employee. In this case, counsel submitted, there was nothing unreasonable for the respondent to have suspended the complainants to pave way for investigations after the audit conducted by the Global Fund and UNDP revealed that medical supplies worth US$ 1, 064, 788 had gone missing between 2014 and 2016. That the respondent was accountable to the Global Fund and UNDP for all the stock of medicines and medic.al supplies that were delivered by them as a grant to the Zambian Government. The thirteen employees were directly working at the warehouses that housed the missing stock. 77. Counsel further submitted that the suspension was also in line with section 5.4 of the respondent's disciplinary code of conduct and grievance procedure which provides for an employee under investigation to be suspended, on half pay, where his supervisor suspects that the presence of the employee would compromise the investigations. The said section 5.4 states as follows: "In circumstances where the supervisor suspects that the presence of the accused employee 1J!OUld compromise the investigations, he/ she can recommend suspension from the J24 workplace pending investigations of the case. An employee pending investigation shall be on half salary and shall not be entitled to any form of incentives and loans the entire period" 78. The respondent argued that the investigation t~at the complainants were facing was twofold in that the respondent invoked the administrative procedure under the disciplinary code while the other investigative bodies were involved and investigating the loss as well due to the nature of the case. She argued that it was, therefore, out of the respondent's control to determine how the other investigative bodies would conduct their investigation or interrogations. 79. It was further argued that authorities cited herein state that the conduct of the employer must be unreasonable-to the extent that no reasonable person can work under such conditions. In casu, it was argued, there was nothing to demonstrate that the respondent was unreasonable and created a toxic environment for the complainants. Counsel further contended that the complai~ants' allegation that they were harassed by the Police, if true, was not done at the behest of the respondent. 80. With regard to the complainants' allegation that the respondent's employees called them 'the cartel' and 'ring leaders', counsel argued that this was not substantiated as the complainants failed to even mention a single person who called them as such. Further, that the newspaper report shown in the complainants' affidavit in support of complaint did not speak to the assertion that ·they were called 'the cartel'. 81. With regard to the prior incidents that four of the complainants are said to have had with the respondent, counse_l argued that all the prior incidents were resolved and that the affected employees continued working. Consequently, the question that they were J25 constructively dismissed does not arise. To buttress this assertion, she cited Selwyn's Law of Employment which reads as follows: "Since the employee is claiming that the employer has broken the contract, he must resign as a result of that breach, if he continues to report for work, he may be deemed to have waived the breach, and can hardly bring a claim subsequently based on the employer's reputation, for the law does not allow him to have his cake and eat it." 82. Further reliance was placed on similar sentiments expressed by the learned authors of Halsbury's Laws of England, edition, Vol 16, 4th who at paragraph 321, state that the employee must leave in response to the breach of contract and indicate that he is treating the contract as repudiated. Additionally, that: "Delay in so doing may amount to waiver of breach and affirmation of the contract, though this will depend on the facts of the case." 83. Ms. Kaoma re-emphasised that the thirteen employees were targeted because they were working from the warehouses where the missing stock had been kept; that the rules of natural justice were observed in dealing with this matter; that the decision on the matter was not only dependent on the respondent's findings but also the findings of the Law Enforcement Agencies and that until they had concluded the investigations to their satisfaction, the respondent was precluded from taking further action. This was stated to be in line with clause of 5.5 of the Disciplinary Code. 84. Further, Miss Kaoma submitted that the respondent's disciplinary code does not give timeframe for the suspension. This is handled on a case-by-case basis. Therefore, to argue that_ the suspension was indefinite and as such in breach of contract is without basis. J26 85. In response to the claim for damages, the respondent cited the learned authors of Halsburys' Laws 4th edition volume 45 who state, at page 567, that:- "While the innocent party is entitled t~ damages as of right, to recover more than nominal damages he must prove loss." 86. Reference was also made to the learned authors of MC Gregor on Damages 16th Edition 1997, at page 7 where the learned authors state that: "Before damages c·an be recovered in an action there must be a wrong committed, whether the wrong be a tort or a breach of contract. Even if a loss has been incurred, no damages can be awarded in the absence of a wrong. It is damnum sine injuria. Therefore, the preliminary question to be answered, before any issue of damages can arise, is whether a wrong has been committed." 87. On the basis of the above authorities, Ms. Kaoma submitted that the complainants are not entitled to damages as they have failed to prove that the respondent did anything wrong to warrant condemnation in damages. That the respondent should not be held responsible for events that were truly beyond its control. 88. Ms. Kaoma, in conclusion of her submissions, contended that if the respondent had indeed rendered the work environment intolerable for the complainants as alleged, it would follow that the five other employees who were suspended alongside the complainants would not have consented to their reinstatement. 89. In their submissions in Reply, the complainants reiterated that procedural fairness was not adhered to throughout the suspensions and disciplinary actions. It was contended that while it was not disputed that the thirteen employees were working at the warehouse where the stock went missing, it was, equally not disputed that the J27 thirteen were not the only ones managing the warehouse operations. Counsel contended that RW, in cross-examination, conceded that others with similar or greater responsibilities s~ch as the Warehouse Manager; the Director of Pharmaceutical Standards, and the Inventory Manager were not suspended alongside the complainants despite their direct involvement with stock at the warehouses. 90. My attention was similarly directed to the oral testimony of CW4, who deposed that although there were ten inventory officers engaged in identical functions within the warehouse, he alone was subjected to suspension. In like manner, notwithstanding the existence of three checkers performing equivalent duties, only Mr. Kenrick Kabunda, one of the complainants, was singled out for suspension. The complainants contend that such selective and inconsistent imposition of suspensions, absent any discernible justification, constitutes a manifest departure from procedural fairness and gives rise to serious concerns of discrimination and victimisation. 91. The complainants reiterated that the respondent failed to adhere to the prescribed suspension procedure as stipulated under clause 5.1 of its own disciplinary code, which unequivocally requires that an employee be afforded an opportunity to exculpate themselves prior to the imposition of a suspension. 92. It was further contended that clause 5.4 of the disciplinary code, which mandates that an employee's immediate supervisor recommend suspension pending investigations, was not complied with. Instead, the recommendation emanated from the Director of Logistics rather than the complainants' supervisor. The complainants submitted that this deviation from the established disciplinary procedure constitutes a clear and direct contravention of section 49 of the Employment Code Act. J28 93. It was further submitted that CW2 was demoted from his position as Assistant Warehouse Manager in the cold room, accompanied by a substantial diminution of responsibilities. The complainants contended that such action constituted a deliberate attempt by the respondent to induce his resignation. Reliance was placed on the principle enunciated in Simmonds vs Dowty Seals Limited14 which , established that an employer's unilateral attempt to alter an employee's shifts without consent amounted to a variation of contract sufficient to justify constructive dismissal. 94. It was additionally submitted that the respondent wholly failed to address the grievance raised by Mr. Sebastian Nchimunya concerning the downgrading of his salary over a continuous period of seven years, spanning 2015 to 2020. The complainants argued that this prolonged inaction amounted to a clear dereliction of the respondent's contractual obligations. The respondent's belated efforts to rectify the salary downgrade only after Mr. Nchimunya's resignation and threat of legal proceedings, when considered together with the prolonged suspensions and unfounded allegations of theft, created intolerable working conditions which directly compelled his resignation. 95. In further support of their claim for damages, the complainants invoked the authority of John Munsenge vs Family Health Trust Registered Trustees15, wherein the Court awarded damages inclusive of full salary, allowances, and gratuity from the date of wrongful suspension up to the date of judgment. Analysis and Decision 96. I have carefully considered all the evidence adduced and the skeleton arguments filed. I am indebted to learned counsel on both sides for their industry and assistance. The facts which are not in dispute are that the complainants were engaged by the respondent on permanent J29 and pensionable contracts on various dates between October 1998 and June 2015, serving in different capacities until their resignations on diverse dates between August 2020 and November 2020. The complainants assert that their resignations were not voluntary but were compelled by a series of acts attributable to the respondent, which acts rendered the work environment intolerable and thereby amounted to a fundamental breach of their contracts of employment. Chief among these acts was the suspension of the complainants from duty for a period exceeding one year. 97. On its part, the respondent disputes making the work environment intolerable for the complainants and asserts that the suspension was to facilitate investigations being carried out by not only itself but also other investigative bodies. That, as such, it was out of the respondent's control to determine how the other investigative bodies would conduct their investigations or interrogations. 98. The issues for determination, as I see them, are as follows: (a) Whether or not the complainants were constructively dismissed; and if so, (b) Whether or not they are entitled to damages for loss of employment, mental torture, distress, pain, suffering, anguish arid inconvenience. (a) Whether or not the complainants were constructively dismissed 99. Mwenda W.S and Chungu C, the learned authors of A Comprehensive Guide to Employment Law in Zambia, state as follows on constructive dismissal, at page 269: "... Constructive dismissal occurs when an employee, seemingly on his own volition, terminates his contract of employment by resigning, while the· real reason for that action is that he is protesting against management's conduct. For constructive dismissal to be claimed, the J30 employer's conduct must be so serious that it amounts to a repudiation of the contract and the employee must clearly indicate that he is resigning or being forced to leave employment due to such conduct, ... " 100. In the case of Michael Kahula vs Finance Bank Zambia Limitedl6, the Supreme Court had this to say on constructive dismissal: "If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. He is constructively dismissed. The employee is entitled in these circumstances to leave at the instant without giving any notice at all, or alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must, in either case, be sufficiently serious to entitle him to leave at once." 101. In the case of Nitrogen Chemicals of Zambia Limited vs Boyd Chomba Mutambo and Others17, the Supreme Court outlined the elements of constructive dismissal when it stated as follows: "It is also plain there are three basic requirements for a constructive dismissal claim (1) the employee must resign (2) the resignation must be in response to a fundamental breach of contract (3) the employee must act promptly in response to the breach so that he or she is not taken to have implicitly agreed to continue with the contract." 102. From the foregoing authorities, as well as those cited by both learned counsel, it is settled law that an employee may properly assert a claim for constructive dismissal where resignation is compelled by J31 the employer's conduct amounting to a fundamental breach of the contract of employment. 103. The pertinent question for determination, therefore, is whether the complainants have sufficiently demonstrated that they meet the threshold for a claim founded on constructive dismissal. 104. It is not in dispute that the complainants tendered their resignations. Their respective letters of resignation are exhibited in the affidavit in support of complaint and collectively marked "JM13." The complainants adduced evidence that the respondent promptly accepted their resignations, as evidenced by its letter, also marked "JM13," dated 14th August 2020 and addressed to Samuel Mushiba, wherein the respondent acknowledged receipt of his notice of resignation and proceeded to advise him of the terminal benefits due to him. Each of the complainants received similar correspondence upon tendering their resignations. 105. In light of the foregoing, I find that the complainants' employment was terminated by way of resignation. The first requirement, as articulated in the Nitrogen Chemica1s17 case, is thereby satisfied. 106. This brings me to the second requirement, namely, whether the complainants resigned as a consequence of a fundamental breach of contract on the part of the respondent. 107. The complainants' reasons for leaving employment are clearly borne out on the record. While some of them cited additional grounds in their respective letters of resignation, the common thread running through all was that they had been subjected to investigations concerning the alleged loss of essential medicines and medical supplies for a period of three years, and further suspended from duty for thirteen months without any prospect of the suspension being lifted. They contend that this conduct constituted a fundamental and J32 willful breach of the implied term of mutual trust and confidence inherent in the employer-employee relationship. 108. Certain complainants advanced reasons peculiar to their individual circumstances. For instance, Sebastian Nchimunya asserted that he had been subjected to unfair treatment since 2014, when his terms and conditions of service were unilaterally altered, resulting in his salary scale being downgraded from MSLS to MSL7. 109. The complainants also lamented the inconvenience occasioned by the confiscation of their mobile phones by the Police for a period of eleven months, notwithstanding assurances that the devices would be returned within three or four days. As a consequence, they were denied access to funds held in their mobile money accounts. 110. I have carefully reviewed the evidence on recotd. I have considered the complainants' testimony that, together with six others, they were on 28th August 2017 isolated from the rest of the workforce during a meeting and handed over to the Police, who confiscated their mobile phones at the respondent's behest. They were tl;lereafter subjected to extensive investigations by various law enforcement agencies, both domestic and international, without any evidence being adduced against them. Notwithstanding this, they were indefinitely suspended from duty on 18th June 2019, restricted from travelling outside Lusaka, and placed on half salary. 111. In my view, the respondent did not succeed in rebutting the substance of the complainants' account of the events of 28th August 2017 when twelve employees, including the· complainants, were segregated from their colleagues by the Police. The respondent conceded that the employees were indeed isolated, but denied handing them over to the Police or being responsible for their isolation. J33 112. I must observe that the suggestion that the Police initiated the events of 28th August 2017 entirely on their own, without any complaint from the respondent, is implausible. In its letter dated 19th February 2018, addressed to the twelve employees and produced as exhibit "JM3," the respondent expressly admitted reporting the matter to the Police. The relevant portion of the letter states tbat the purpose of the "special operation" conducted by the Police on 28th August 2017 "was to launch an independent and credible police investigation on the grave issues related to stock management of essential medicines suspected to have occurred and that had been identified by management and subsequently reported to the Police. " 113. It is therefore evident that the respondent reported the matter to the Police. Accordingly, I reject the suggestion that the Police, acting entirely on their own initiative, attended the respondent's premises with a list of twelve names and undertook the actions of that day without any input from the respondent. 114. Moreover, the respondent's sole witness (RW) testified that the thirteen employees were targeted because they were directly involved in the management of stock in the warehouses where medical supplies had gone missing. For the respondent to have reported the missing stock to the· Police and provided a list of its employees for interrogation strongly suggests that it had undertaken preliminary internal investigations which identified the thirteen as possible culprits. This conclusion 1s reinforced by the fact that other employees who also dealt directly with stock management were neither suspended nor subjected to prolonged investigations. Under cross-examination, RW confirmed that Ernest Sinyinda, to whom complainant Jordan Mumba reported, was questioned by the Police but was neither suspended nor included among those subjected to extended investigations. J34 115. The foregoing leads me to the conclusion that the respondent deliberately and selectively identified the complainants, together with six others, as suspects in relation to the alleged loss of medical supplies. I hasten to add, however, that reporting one's employees is, in itself, not a breach of the employment relationship. 116. I have also taken into account the complainants' evidence that they were suspended on 18th June 2019 and placed on half salary without being afforded an opportunity to exculpate themselves, contrary to the requirements of clause 5.1 of the disciplinary code. According to the complainants, when this irregularity was raised by their legal representatives, the respondent lifted the suspension and, by letter dated 28th June 2019, directed the complainants to resume duty on 3rd July 2019. However, upon reporting for work on the said date, the complainants were served with letters requiring them to exculpate themselves and to show cause why disciplinary action should not be taken against them. Merely six days thereafter, on 9th July 2019, they were once again placed on i:p.definite suspension, ostensibly to facilitate further investigations into the matter. 11 7. I have considered clause 5 .1 of the Disciplinary Code, which provides as follows: "Immediately a violation of the rule(s) has been noted, the supervisor shall write to the employee on the alleged misconduct requesting the employee to show cause why disciplinary action should not be take:1- against him or her." 118. The subsequent sub-clauses prescribe the procedural steps to be followed, culminating, where appropriate, in the suspension of the employee. I am in agreement with the complainants that the suspensions effected on i8th June 2019 (the first suspensions) were in violation of clause 5 of the disciplinary code, in that the complainants were suspended without first being afforded an J35 opportunity to show cause why disciplinary action should not be taken against them. 119. While it may be contended that the brea~h of clause 5 was subsequently remedied when the first suspension was lifted and the complainants were thereafter required to show cause why disciplinary action ought not to be taken against them, it would, in my view, be simplistic to conclude that such remedial action restored the mutual trust and confidence inherent , in the employment relationship. The lifting of the suspension was plainly intended to regularise the respondent's procedural misstep rather than to exonerate the complainants of the suspicion that continued to hang over them. I take this view because the respondent had, from as early as August 2017 when it reported the matter to the Police, suspected the complainants, together with others, of involvement in the loss of medical supplies. The respondent's failure to take any decisive internal action from August 201 7 until the cqmplainants' eventual resignations nearly three years later is, in my considered opinion, a matter of significance. 120. I have considered the respondent's submission that the disciplinary code does not prescribe any specific timeframe within which a suspension must subsist, and that, consequently, to argue that the suspension was indefinite and thereby in breach of contract is without foundation. The respondent contends that suspensions are administered on a case-by-case basis, dependent upon the circumstances of each matter. The only explanation advanced for the protracted duration of the investigations was that they were two-pronged in nature, being conducted concurrently by the respondent on the one hand and by the security wings on the other. 121. In response to the respondent's argument, the complainants contended that the respondent, as employer, ought to have proceeded with the disciplinary proceedings notwithstanding the fact J36 that parallel investigations were being undertaken by the security wings and/ or the Global Fund. In support of this contention, reliance was placed on clause 2.1.2.9 of the Disciplinary Code, which expressly provides that disciplinary proceedings may be conducted concurrently with criminal investigations. The clause states: "If an employee commits misconduct that is also a criminal offence, the criminal procedure and the disciplinary procedure will continue as separate and different proceedings." 122. It is evident from the wording of the clause that criminal proceedings and disciplinary proceedings are intended to run as separate and distinct processes. No explanation was offered by the respondent as to why it could not proceed to conclude the disciplinary process while the Police continued with the criminal investigations. The respondent's failure to adhere to this clear pr<?vision serves only to further undermine the legitimacy of the suspensions imposed upon the complainants. Notably, it was only after the complainants had resigned and instituted this action that the respondent, according to the unchallenged testimony of CW3, concluded its investigations and reinstated the six employees who had not resigned and who are not parties to this action. 123. RW's testimony at trial that the criminal investigation carried out by the law enforcement agencies was on-going also defeats the respondent's argument that its internal disciplinary proceedings could not be concluded prior to the conclusion of the investigation by the law enforcement agencies. 124. The respondent did not adduce any evidence as to the disciplinary procedure that was followed leading to the lifting of the suspension of the six employees. Neither did it demonstrate that the matter under investigation was of such complexity as to warrant a duration of twenty-two months, thirteen of which the complainants remained on J37 suspension and on half salary. It appears to this Court that the respondent was content to keep its employee~ on suspension and reduced pay for as long as no legal challenge was mounted. An employer, however, is obliged to honour its contractual obligations even in the absence of litigation. 125. On the totality of the evidence, I find that the respondent abused the suspension process by failing to resolve the matter for which the complainants had been suspended. The South African case of Mabilo vs Mpumalanga Provincial Government7, though not binding on this Court, is instructive. In that case, the Court aptly observed: "An employer must not be allowed to abuse the suspension process, and that an employee is entitled to a speedy and effective resolution of the dispute. The investigating action must be concluded within a rea_sonable period and unnecessary disruption to the employee's life must be prevented. It is submitted that a lengthy delay in bringing charges which leads to an unreasonably long suspension may cause the preventative suspension to become substantively unfair. " 126. In that matter, the Court dismissed the employee's challenge to a precautionary suspension, holding that it was necessary for the orderly administration of the employer's operations to allow the investigation to proceed without interference. The Court found that the suspension on full pay was justified to safeguard the integrity of the investigation, notwithstanding that the employee had a right to be heard, which the Court determined would b<; addressed at a later stage of the disciplinary process. 127. In the present case, however, and for the reasons set out in the preceding paragraphs, I find that the suspension which was ostensibly imposed to facilitate investigations became unfair. It was not only protracted but also devoid of any resolution of the matter J38 after such an extended period. In my considered opinion, the absence of a timeframe in the disciplinary code within which the respondent can keep an employee on suspension does not, in the circumstances of this case, excuse the respondent's action. I accordingly hold that the respondent's conduct amounted to a fundamental breach of the implied terms ·_o f the contract of employment, thereby entitling the complainants to treat themselves as constructively dismissed. 128. I have also considered the complainants' submission that four of them had separate and isolated cases in addition to the common grievance. Upon perusal of the notice of complaint, it is evident that the principal grounds upon which this complaint is anchored relate to the events of 28th August 201 7, when the J:>olice attended at the respondent's premises and isolated twelve employees. Notwithstanding this, evidence was adduced in respect of the other isolated cases without objection from the respondent. Accordingly, I have taken them into account in determining whether they disclose any fundamental breach on the part of the respondent. 129. With regard to the submission that Jordan Mumba, the lead complainant, was m 2016 charged with gross negligence following the loss of stock at 'the warehouse under his-charge, I accept the testimony of RW that the matter was concluded prior to the present proceedings. This is corroborated by CWl himself, who confirmed that he had been acquitted, albeit on the very day he reported back for duty following his acquittal, the Police attended at the respondent's premises and he was among those isolated for further investigations. 130. The case of Norman Mulilo was similar to that of Jordan Mumba, in that he too was suspended following a break~in at the warehouse under his supervision, but was subsequently recalled after being exonerated. J39 131. The third case concerned Sebastian Nchimunya, who alleged that his position had been downgraded. RW explained that the downgrade followed a directive from Government, and further testified that the respondent reached a settlement with Mr. Nchimunya. Proof of payment of the agreed sum was produced before the Court. As the record will show, CW4 was downgraded in 2014. He carried on working until he resigned m 2020 following the prolonged suspension giving rise to this action. I agree with the respondent that the question of constructive dismissal on this ground does not arise. As stated in Selwyn's Law of Employment in the quote reproduced in paragraph 81 above, an employee who does not resign as a result of the breach and carries on working, as in this _case, may be deemed to have waived the breach. 132. The fourth case involved Samuel Mushiba, who claimed that he had been downgraded. RW testified that Mr. Mushiba was not downgraded, but that a new position was create·d above him after the Inventory Department was upgraded to a stand-alone department to be headed by a degree holder, whereas Mr. Mushiba held only a diploma. 133. Although RW contended that Mr. Mushiba was not downgraded, his (Mr. Mushiba) testimony was that he no longer reported directly to the Director as a new position was introduced between him and the Director. That all his responsibilities were take11: over by the holder of the new position and the 18 people who were under him started reporting directly to the lady who occupied the new position. In my view, this was a reduction in status notwithstanding that he may have maintained his salary. As guided by the Court of Appeal in the Musonda Mutale6 case, a reduction in rank and status is capable of constituting constructive dismissal. In the circumstances of this case, I find that the respondent breached Mushiba's contract fundamentally and he was entitled to resign on that ground. J40 134. Having considered the foregoing cases, I am of the view that the matters involving Jordan Mumba and Norman Mulilo demonstrate that the respondent did suffer thefts of stock from its warehouses, and was entitled to investigate the employees responsible for those warehouses. It has not been shown that those investigations were conducted in a manner amounting to a fundamental breach of contract. 135. In sum, I find that the isolated cases referred to above do not alter my conclusion that the complainants were constructively dismissed. Damages 136. Having established that the complainants were constructively dismissed, it follows that they are entitled to an award of damages for loss of employment. As guided by the Supreme Court in Finance Bank Zambia Limited and Another vs Simataa10, cited by the complainants, the fundamental purpose of damages in such cases is restitutio in integrum - namely, to restore the innocent party, so far as money can do so, to the same economic position that he or she would have occupied had the contract not been breached. 137. In the case of Chansa' Ng'onga vs Alfred H. Knight (Z) Limited18 the Supreme Court put it this way at page Jl9: "We have, however, throughout maintained the position that the starting point is that the normal measure of damages in wrongful/unlawful dismissal/termination cases should be payment of money equivalent to, or in lieu of the notice, that would otherwise lawfully terminate the employment contract .., This should be the case unless there are other compelling circumstances to warrant an award in excess of that determinable with reference to the notice period. " J41 138. Further, in the case of Josephat Lupemba vs First Quantum Mining and Operations LimitedI9, it was held that: "It is a requirement that the trial judge gives reason for awarding a measure of damages, either as the period of notice when the award is within the common law measure or justification for an award which exceeds the common law measure." 139. In the case of Swarp Spining Mills Pie vs Chileshe and Others20, also cited by the complainants, the Supreme Court gave the following guidance regarding awards for damages beyond the nominal measure: "In assessing the damages to be paid and which are appropriate in each case, the court does not forget the general rule which applies. This is that the normal measure of damages applies and will usually relate to the applicable contractual length of notice or the notional reasonable notice, where the contract is silent. However, the normal measure is departed from where the circumstances and the ;ustice of the case so demand. For instance, the termination may have been inflicted in a traumatic fashion which causes undue distress or mental suffering .. .In this country, we too have recognized this kind of additional damages in cases like The Attorney-General v Mpundu (. .) And Miyanda v The Attorney-General (7). In the case at hand, the learned trial Judge was right to consider the summary fashion of terminating at a meeting called on a Sunday, without any notice at all, and in circumstances making it difficult to explain the loss of employment for the purpose of obtaining alternative similar work. This justified the departure from the normal measure of damages. Senior managerial fobs cannot be equated with those which are more modest and relatively more abundant and therefore more readily available. The type of work in this J42 case cannot be regarded to be as scarce as that in say Chintomfwa or the cases of General Managers and persons at those levels." (Underlining for emphasis) 140. The Supreme Court, in Barclays Bank Zambia PLC and Weston Luwi and Suzgo Ngulube21 considered the following authorities when upholding an award of 24 months' salary as damages for wrongful termination: "The case of Swarp Spinning Mills Limited v Sebastian Chileshe and Others, which Mr Lukangaba cited, clearly sets out what some of the exceptions to the normal measure of damages are .... Therefore, termination inflicted in a traumatic fashion causing undue distress or mental suffering is, but one example. Loss of employment opportunities is another. In Joseph· Chitomfwa vs Ndola Lime Company Limited, 24 months' salary was awarded to compensate for loss of employment opportunities. We went further to hold in Chilanqa Cement Plc vs Kasote Sinqoqo, that enhanced damages are meant to encompass the inconvenience and distress suffered by the employee as a result of the loss of employment. In Farley v Skinner, the House of Lords held that a trial Court can on the evidence before it award damages for inconvenience and discomfort or distress and that such award must be a modest sum. The learned authors of Halsbury's Laws of England state at paragraph 959 that: "Where mental suffering is directly related to some physical discomfort or inconvenience caused 'to the innocent party by the breach, the damages awarded can include a sum to reflect the suffering." Similarly, we hold that the trial Court was entitled, based on the evidence before it, to award damages, [to] cover distress and inconvenience. An award of 24 months' salary J43 as damages, therefore, does not come to us with a sense of shock, as being excessive, to warrant being set aside." 141. In determining whether the circumstances of this case warrant an award beyond the nominal measure of damages, I turn to consider the manner in which the complainants were treated by the respondent. The evidence demonstrates that the complainants, together with six others, were publicly isolated from their colleagues by the Police for interrogation in relation to the alleged loss of medical supplies. This experience, by their own testimony, was distressing. No explanation was offered as to why the complainants were not discreetly summoned from their offices, but instead subjected to such a public spectacle. This amounted to humiliation which the respondent, as a responsible employer, ought to have sought to remedy through a prompt and fair resolution of the disciplinary process. Instead, the respondent appeared indifferent to the degrading treatment and public embarrassment suffered by its employees. 142. Matters were further aggravated by the respondent's decision to suspend the complainants, firstly, in breach of clause 5.1 of its Disciplinary Code, which mandates that employees be afforded an opportunity to exculpate themselves before suspension; and secondly, by maintaining the suspension for a prolonged period without preferring any charges against them. Such conduct compounded the unfairness and underscored the respondent's disregard for its contractual and statutory obligations. 143. I have also taken note of the fact that the complainants endured considerable financial hardship during the period of their suspens10n, as they were placed on half pay .. The details of such hardship were canvassed at trial. CW3 testified that he was compelled to withdraw his children from private schools and enrol J44 them in public schools owing to his inability to meet the requisite school fees. 144. Furthermore, I am mindful that the complaina,nts were engaged on permanent and pensionable terms. It is a matter of common knowledge that employees serving under permanent contracts ordinarily remain in employment until they attain the prescribed retirement age. The premature curtailment of their employment, in circumstances difficult to explain to prospective employers, warrants a departure from the ordinary measure of damages. Indeed, CW 4 testified that a prospective employer withdrew its interest in hiring him after the respondent's Human Resource Director informed them that he was under suspension in connection with the alleged theft of medical stocks. 145. Accordingly, on the authority of Swarp Spinning Mills Limited vs Sebastian Chileshe and Others20 and Joseph, Chitomfwa v Ndola Lime Company Limited22, I am fortified in the view that the circumstances and the justice of this case warrant a departure from the ordinary measure of damages. 146. I am mindful that the complainants were eventually paid the half salaries that had been withheld during the period of their suspension. Nevertheless, having considered the totality of the circumstances of this case, together with the established principles governing the award of damages in cases of constructive dismissal, I find it just and equitable to award the complainants damages equivalent to twenty-four (24) months' full salary as compensation for constructive dismissal. J45 b. Whether the complainants are entitled to damages for the harsh and inhuman manner in which they were treated resulting in undue embarrassment, physical and mental distress and .trauma 147. The respondent disputes that the complainants are entitled to damages under this head. The respondent submits that the complainants did not adduce any medical reports to substantiate their claim for physical and mental distress. 148. I have considered the authorities cited by counsel for the complainants starting with the case of Attorney General vs Mpundu23 that damages for mental distress may be considered in an action for breach of contract. 149. I have also considered that in the Chilanga vs Singog o case3 the , Supreme Court held as follows at page 142: "... an award for torture or mental distress· should be granted in exceptional cases, and certainly, not in a case where more than normal measure of common law damages have been awarded; the rationale being that the enhanced damages are meant to encompass the inconvenience and any distress suffered by the employee as a result of the loss of the job." 150. The above authority is clear that damages for torture or mental distress should only be granted in extraord~nary circumstances. Pertinently, they certainly should not be granted in a case where more than the normal measure of common law damages have been awarded. 151. In the case in casu, the complainants have been awarded 24 months' salary as damages for constru_ctive dismissal which award is more than the normal measure of damages. The said damages thus encompass the inconvenience and the distress the complainants suffered as a result. Consequently, I am rn:>t satisfied that the J46 complainants are due any further damages under this head. This claim is, therefore, unsuccessful. Conclusion and Orders 152. The complainants have proved, on a balance of probabilities, that they were constructively dismissed and are, therefore, entitled to damages for loss of employment. 153. Accordingly, the respondent shall pay to each of the complainants a sum equivalent to twenty-four (24) months' salary as damages for loss of employment. The quantum of such damages shall be assessed by the learned Registrar in default of agreement. 154. The amount awarded shall attract interest at the commercial 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 the Bank of Zambia until full payment. 155. As regards costs, I order that each party shall bear its own costs. Delivered at Lusaka this 9th d oJ:.-Bc~~~ '··2025 cl"·- M. ..:ofi) ',v.s; HIGH C JUDGE"":.-0:.'.:~~ J47