Clayton Wayanika v Yellowquip Limited (2025/HN/IR/10) (17 October 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2025/HN/IR/10 AT THE DISTRICT REGISTRY HOLDEN AT NDOLA (Industrial Relations Division) BETWEEN: ,//. CLAYTON WAYANIKA 1 7 OCT 2025 COMPLAINANT AND YELLOWQUIP LIMITED RESPONDENT Before the Honourable Mr. Justice Davies C. Mumba in Chambers on the 17th day of October, 2025. For the Complainant: In Person. For the Respondent: Mr. G. Miti, Messrs Wilson and Cornhill Legal Practitioners. JUDGMENT Cases referred to: 1. Elizabeth Sokoni Mwenya v CFB Medical Centre Limited, SCZ Appeal No. 009 of 2015. 2. Chilanga Cement v Venus Kasito, Appeal No. 86 of 2015. 3. Colgate Palmolive Zambia Inc. v Able Shemu Chuka and Others, SCZ Appeal No. 181 of 2005. 4. Sam Amos Mumba v Zambia Fisheries and Fish Marketing Corporation Limited (1980) Z.R. 135. 5. Redri!za Limited v Abuid Nkazi and Others, SCZ Appeal No. 7 of 2011. 6. Kingfred Phiri v Life Master Limited, CAZ Appeal No. 24 of 2023. 7. Midlands Milling Limited v Lloyd Tembo, CAZ Appeal No. 297 of 2022. Legislation referred to: 1. The Employment Code Act No.3 of 2019. 2. The Industrial Relations Court Rules, Chapter 269 of the Laws of · Zambia. J2 Other works referred to: 1. Winnie Sithole Mwenda and Chanda Chungu: A Comprehensive Guide to Employment Law in Zambia: UNZA Press. Lusaka, 2021. 2. W.S Mwenda, Employment Law in Zambia: Cases and Materials: UNZA Press, Lusaka, 2004. 1.0. INTRODUCTION 1.1. By notice of complaint supported by an affidavit filed into court on 2l5t February, 2025, the complainant commenced this action against the respondent seeking payment of the sum of K86,422.0l for 37 months' salary arrears; payment of severance pay from the date of employment to the date of dismissal; damages for wrongful, unlawful and unfair dismissal; interest on all the amounts due; costs; and any other relief the court may deem fit considering the circumstances of the case. 1.2. The respondent opposed the complainant's claims and in doing so, filed into court an answer and an affidavit in opposition on 2nd April, 2025 sworn to by Evans Mwenya, Human Resource Manager in the respondent company. 1.3. It was the respondent's contention that the complainant was not entitled to any of the claims he was seeking. J3 1.4. On 16th June, 2025, the complainant filed into court an affidavit in reply contending that he was entitled to the award of all his claims. 2.0. THE COMPLAINANT'S CASE 2.1. In his affidavit in support of the notice of complaint, the complainant averred that he was employed by the respondent on 1st March, 2007 as an Administrative Officer on permanent and pensionable basis and was stationed in Chinsali. To that effect, he produced the letter of appointment, "CWl". That on 5th March, 2016, he was reassigned to the parent company in Chingola and appointed as Stores Controller as shown by the letter, "CW2". 2.2. He averred that on 29th May, 2018, he was promoted to the position of Superintendent-Parts and Stores under the salary grade YL2 as shown by the letter, "CW3". That in 2019, his salary was revised downwards due to financial challenges that the respondent was facing. That the period of the revised salary that he had consented to was six months, but the respondent ignored to revert to the initial salary after the said period elapsed. That as a result, salary arrears accrued and he wrote the letters, J4 "CW4-7" reminding the respondent of the period he had consented to. 2.3. He deposed that the respondent owed him salary arrears for 37 months which accrued from July, 2019 to July, 2022 amounting to K86,422.01 as shown by the letters, "CW8-9". That the said amount was agreed upon by the respondent but the respondent never made any effort 'or show any seriousness to fulfil the pledge and only paid him for his accrued leave days. 2.4. The complainant also deposed that a dispute arose when the respondent handed him letters of transfer, "CWl0" and "CWl 1" on 26th October, 2022 and 6th December, 2022, respectively to its Kansanshi project but he declined due to lack of incentives. That on 27th February, 2023, he was charged with the offence of disobedience and refusal to carry out a lawful instruction of transfer to Kansanshi in Solwezi as shown by the charge letter, "CW12". Subsequently, he was given a notice to attend a disciplinary hearing, "CW13" scheduled for 2nd March, 2023. That the respondent summarily dismissed him on 2nd March, 2023 after a defective disciplinary hearing. 2.5. He stated that the disciplinary hearing was defective resulting in his wrongful, unlawful and unfair dismissal JS as the author of the dismissal letter was neither a member of the respondent nor management but an official or Vice Principal of Don Bosco Youth Training Centre. That his dismissal from employment was wrongful because the charging officer was not present to prove to him that the offence for which he was charged warranted summary dismissal according to the respondent's Disciplinary and Grievance Procedure Code. Further, that the respondent did not show him any other document showing that the said offence warranted summary dismissal. That his contract bf employment never provided that declining a transfer amounted to the offence of disobedience and refusal to carry out a lawful instruction. That the respondent did not avail him a copy its Disciplinary Code and Grievance Procedure as a guide or rules to the employees. 2.6. The complainant further alleged that his dismissal from employment was wrongful, unlawful and unfair because it was premeditated as the charge letter was given to him on 27th February, 2023, a day after he handed a letter of recommendation to court from the Senior Labour Officer to the respondent. That the hearing of the said recommendation was on 2nd March, 2023 and the outcome of the hearing was passed in an urgent manner indicating that the respondent had a motive to dismiss him. That he J6 • appealed against his summary dismissal but the appeal did not produce any positive results. 2. 7. He deposed that he was also claiming severance pay from the date of employment to the date of his dismissal as well as salary arrears, interest and costs. That his last salary was K7,961.90 as shown by his February pay slip, "CWl 7." He added that he had suffered immense mental anguish and distress, untold embarrassment and as such, he was claiming damages for wrongful, unlawful and unfair dismissal. 2.8. In his affidavit in reply, the complainant substantially repeated his averments in his affidavit in support of the complaint save that he denied being part of the meeting of 1st January, 2019 in which the respondent resolved to revise salaries downwards. In his further explanation as to why he considered the disciplinary hearing as being defective, he stated that the respondent breached the contractual obligations and that certain laws were ignored. He also stated that his dismissal was wrongful and unfair because he was not told the provisions of the respondent's disciplinary code or any other document under which he was charged and whether the offence warranted summary dismissal. J7 • 2.9. Further, the complainant averred that the respondent cannot dispute that it owed him salary arrears for 3 7 months because its own legal representatives drafted the consent order, "CWl" between June and August, 2024 which he declined to sign as they did not include interest, damages and other reliefs. That the respondent had agreed to settle the debt in three instalments from 30th June, 2024. 2 .10. At the trial, the complainant testified that he was employed by the respondent as Superintendent for Parts and Stores on 1st March, 2007. That he was dismissed unceremoniously on 2nd March, 2022. 2.11. He explained that sometime in November, 2018, he was approached by the respondent's Human Resource Manager with a request that the company ~as undergoing some financial difficulties and asked him to accept a downward salary adjustment by 30% but he turned the proposal down. That the following month, December, the Managing Director called him to his office and presented the same matter to him. That the Managing Director asked him why he had rejected the downward adjustment of his salary when the other employees had accepted. That the complainant asked the Managing Director for how long the downward adjustment was going to be and JS the Managing Director told him that it was going to be for a period of six months only from January to June, 2019. That having been assured of that period which seemed reasonable, he accepted the offer. 2 .12. The complainant testified that after the six months' period elapsed, the respondent continued paying him the salary at the adjusted rate. That he engaged the respondent both verbally and in writing but the respondent failed to honour its side of the bargain. That the complainant then engaged the Labour office and the respondent was summoned. However, the respondent still refused to honour the agreement and stated that it could not adjust the salary to its original position because it did not have money. That the Labour officer wrote to him advising him to consider taking the respondent to court concerning his salary arrears. That when he presented the said letter to the respondent on 1st March, 2023, the respondent responded by dismissing him on 2nd March, 2023. 2.13. That the respondent went into the archives and fished out some disciplinary issues dating as far back as 26th October, 2022. Jg 2.14. During cross-examination, the complainant admitted that the respondent had not restored his original salary at the time he lodged his complainant with the Labour office. He confirmed having authoured the letter, "CW8". When referred to the letter, "CW9," the complainant admitted having registered his complaint with the Labour office on 20th February, 2023. When referred to the letter, "CW8", the complainant denied that his salary was restored in July, 2022. When pressed further, the complainant stated that according to the said letter, his salary arrears accrued for 37 months from July, 2019 to July, 2022. That he could not confirm if his salary had been restored by August, 2022 unless he checked on his pay slip. He admitted that at the time he was dismissed, his salary had been restored. He also admitted that he wrote the letter, "CW8" in October, 2022 and he only captured the period July, 2019 to July, 2022. 2.15. When referred to the letter, "CW3", the complainant denied that his position as Superintendent-Parts and Stores was a management position. When referred to the letter, "CW4", the complainant stated that the verbal agreement he had with the respondent was in respect of a downward salary adjustment. That •. according to paragraph· l(i) of the letter, "CW4" the adjustment was with effect from 1st January, 2019 and it was for the JlO • remaining period of his contract. He stated that he was employed on permanent and pensionable basis. He denied having signed the letter. 2.16. When referred to the letter, "EM6", the complainant refuted that it was the same letter he had exhibited as "CW4." When referred to both letters, he stated that the letter, "EM6" was a contract and he was seeing it for the first time. He admitted that page 2 of the said letter contained his signature. When asked what he was accepting by signing on the letter, the complainant stated that he did not know where the respondent got that page from as the letter, "CW4" did not have such an attachment. 2 .17. Still under cross-examination, when referred to clause. 3 of his contract of employment, "CWl", the complainant admitted that the respondent had the right to transfer him. That there is nowhere in the contract or even in the letters that came thereafter, where it was provided that before transferring him, there had to be an incentive. When referred to page 2 of the letter of transfer, "CWlO", the complainant admitted that his refusal of the transfer was due to lack of incentives. That he gave the same reason when the same letter, "CWl l" was written to him again in December, 2022. He denied that a transfer was a Jll • lawful instruction given by an employer because the second pages of both the letters, "CWl0" and "CWl l" gave options to either accept or not accept the transfer. That his contractual basis for demanding for the incentives was that he expected the respondent to effect the transfer by providing logistics for travelling but he .was told by the Human Resources Manager to board a bus and find himself in Solwezi. 2.18. He stated that the letter, "CWl0" was written on 26th October, 2022 and he declined the transfer on 27th October, 2022. That according to the letter, the effective date of the transfer was 1st November, 2022. He admitted that he did not write to the respondent stating that he was not going to report to Solwezi because it had failed to provide transport for him to travel but the interactions he had with them were verbal. He also admitted that he did not go to report alone then return to wait for the respondent to provide transport for him and his family. He stated that the second letter, "CWl l" was written to him after a month. That he again did not write to the respondent to provide transport for him but the discussions were verbal. 2 .19. The complainant admitted having alleged that he was dismissed because he had reported the respondent to the J12 • Labour office and as a result, the Labour office recommended that he goes to court. When referred to the charge letter, "CW12" dated 27th February, 2023, the complainant stated that he had given the respondent the letter, "CW9" from the Labour office dated I st March, 2023 by 27th February, 2023. He stated that he could not remember the exact date when he handed it to the respondent but he had a conversation with the Human Resource Manager over the same. That he could also not remember when he was given the said letter by the Labour office. 2.20. The complainant denied having . presided over any disciplinary matters involving employees of the respondent. When referred to the disciplinary record card, "EM13", he denied having presided over the case of Moffat Mutale and stated that he was just part of the team. That presiding over disciplinary matters was a preserve of the Human Resources Manager. He admitted having been the administering official for the said case of Moffat Mutale. When referred to the disciplinary case record, "EM 12" for Fun well Mungala, the complainant admitted having been part of the disciplinary procedure as an administering official in the matter. J13 2.21. When referred to charge letter, "CW12" and his exculpatory statement, "EM20", the complainant admitted having received the charge letter and having exculpated himself. He also admitted having ·· attended the disciplinary hearing. That he was informed of his right of appeal and he appealed. He reiterated that he did not go to Solwezi on transfer because the respondent did not provide him with transport. That, however, the reason he gave on his exculpatory statement, "EM20" was that the transfer letter offered two options, that is, 'accept or not accept'. 3.0. THE RESPONDENT'S CASE 3.1. The evidence of Evans Mwenya (RWI), through his affidavit in opposition, was that it was correct that the complainant was employed by the respondent on I st March, 2007 and further that under paragraph 3 of his contract of employment, "EM I", the respondent had retained the right to transfer the complainant to any post provided that such post was appropriate to the complainant's qualifications and experience. That paragraph 13 of the said contract also provided that the terms of the contract were subject to discretionary amendments by management after consultation with the complainant. He deposed that when the complainant was J14 reassigned in 2016, his terms and conditions did not change as evidenced by paragraph 2 of the letter, "EM2". The deponent admitted that the complainant was promoted to the position of Superintendent-Parts and Stores in 2018 as shown by the letter, "EM3". He stated that even before his new position, the complainant used to sit in the management board of the respondent as bo.th his previous position of Administration Officer and the new position of Superintendent-Parts and Stores were managerial positions. That prior to 2019, the complainant's basic salary was K4,260.00 and it was raised to K?,667.00 in 2018 while the basic pay for the then Managing Director, Mr. Gardner was K8,000.00 during the said period as shown by the pay slips, "EM4." 3.2. It was averred that the complainant's position was critical to the survival of the respondent. That, however, the complainant's performance was below average, . a situation which made the respondent to write to the complainant the letter, "EMS" about his poor performance. That the complainant's poor performance compounded the financial challenges which the respondent was facing making it fail to meet its financial obligations. That to salvage the situation, a management meeting was held on 1st January, 2019 which meeting the complainant was part of. That in the said meeting, it was JlS agreed that to address the respondent's financial challenges, salaries were to be adjusted downwards for all of the respondent's management employees until the respondent's financial position improved. That it was agreed that the adjustment would be reviewed after six months to ascertain if the respondent's financial status had improved. That the agreement to reduce the salaries was reduced into writing and the complainant acknowledged receipt of the written terms and conditions as shown by the letter, "EM6." That becau~e the reduction affected every employee including the Managing Director, some of the employees who were not happy with the adjustment decided to leave the respondent's employment. 3.3. That by 30th April, 2019, the respondent's financial position had not improved and upon review, it was decided that the salaries would be maintained as opposed to revising them upwards. That on 24th June, 2019, the letter, "EMS" was written to the complainant to notify him that upon review of the respondent's financial performance, salaries were to remain unadjusted. The deponent disputed , that the consent period for the adjusted salaries was six months and stated that the period of six months was for review as can be seen from the letter, "EM6." That when the respondent's financial J16 challenges improved, the complainant's salary, together with all other employees including the Managing Director were revised upwards as shown by the copies of pay slips, "EM9" for the complainant and the Managing Director. The deponent disputed that the respondent owed the complainant 37 months' salary arrears amounting to K86,422.0l. He stated that the respondent did not owe the complainant anything arising out of the contractual relationship it had with him and at no point did the respondent accept liability for the said amount. That the respondent had attempted to engage the complainant on a purely without prejudice basis but the said attempt failed because the complainant was not interested. 3.4. The deponent also deposed that the complainant was transferred to its Kansanshi project on two occasions but he rejected the transfer following which he was charged. That the complainant's dismissal from employment was not defective but it complied with the procedure outlined in both the respondent's disciplinary code and the code of conduct which the complainant was aware of as his position entitled him to be the custodian and administrator of the respondent's policy as per clause 12 of his contract of employment, "EMl." J17 3.5. It was averred that under clause 4(c) of the complainant's contract of employment, "EM3 ", the complainant was required to faithfully comply with all directives of lawful instructions and to observe all prevailing rules, regulations and arrangements of the respondent. 3.6. That in 2017, the deponent's office was tasked with the work of preparing the Disciplinary Procedure Code, "EMl0"; the Grievance Procedure Code, "EMll"; and the Code of Conduct, "EMll." That he conducted a series of presentations and workshops to explain to all of the respondent's employees including the complainant, on the contents of the said documents. 3.7. That in 2018, the complainant, using the respondent's Disciplinary Code and Code of Conduct presided over a case relating to the offence of bad supervision and absenteeism against one of the respondent's employees, Moffat Mutale as shown by the disciplinary case records, "EM12" and "EM.13". That the complainant had also been previously charged with another offence relating to damaging the respondent's property and the complainant had complied with the procedures outlined in the aforestated documents as shown by the complainant form, "EM14", statement, "EMl 5" and case record, "EM16". J18 3.8. It was also averred that in October, 2022, the complainant was transferred to Kansanshi but he refused to accept the transfer as shown by the letter, "EM17''. That the complainant was verbally engaged and explained to the consequences of his refusal to comply with the lawful instructions as enshrined in his contract, the disciplinary code and the code of conduct. That the complainant was given one month to reconsider his position but he maintained his refusal to be transferred. That in December, 2022, another letter of transfer, "EM18" was written to the complainant but he still refused to be transferred. That following his refusal to be transferred, a charge was raised against him on 27th February, 2023 for the offence of disobedience and refusal to carry out a lawful instruction of being transferred to Kansanshi as shown by the charge sheet, "EM 19". That the complainant submitted an exculpatory statement, "EM20" and he was later invited for a disciplinary hearing which he attended. That, thereafter, the complainant was found guilty as charged and summarily dismissed from employment .as shown by the letter of dismissal, "EM21 ". The deponent denied that the dismissal was premeditated. That the complainant appealed against the summary dismissal but his appeal was not successful. The deponent stated that the complainant was not owed any form of separation package. He admitted that the complainant's last net pay J19 was K?,961.90 but denied the claim for damages, interest and costs. 3.9. During cross-examination, when referred to the consent order, "CWl" in the complainant's affidavit in reply, the witness stated that the respondent could not be held liable to pay the amount stated on the consent order because it had no signatures to prove that the respondent was liable to pay that amount. Further, that according to the letter, "EM6", the adjustment of the salary was for th~ period of his contract which was permanent and pensionable. He stated that that did not mean that the respondent was going to be underpaying the complainant for the rest of the contract but that it was indicated in the letter that the financial challenges the respondent was facing were going to be reviewed at a certain stage to see if it could restore the complainant's salary. When referred to the letters, "CW6" and "CW8", the witness stated that the complainant consented to the reduction of his salary as shown by the letter, "EM6." 4.0. FINAL WRITTEN SUBMISSIONS 4.1. Learned Counsel for the respondent filed final written submissions. I will not reproduce them but I will make reference to them where relevant. J20 5.0. CONSIDERATON OF THE EVIDENCE AND THE DECISION OF THE COURT 5 .1. I have considered the evidence by both parties and the respondent's Counsel's final written submissions. 5.2. The facts which were common cause are that the complainant was employed by the respondent on 1st March, 2007 as an Administrative Officer on permanent and pensionable basis, and stationed in Chinsali as shown by the letter of appointment, "CWl ". On 5th March, 2016, the complainant was reassigned to the parent company in Chingola and appointed as Stores Controller as shown by the letter, "CW2". On 29th May, 2018, he was promoted to the position of Superintendent-Parts and Stores under the salary grade YL2 as shown by the letter, "CW3". In January, 2019, the complainant's salary was revised downwards due to financial challenges that the respondent was facing. This followed a meeting by the respondent's management in which it was agreed that to address the respondent's financial challenges, salaries were to be adjusted downwards for all of the respondent's management employees until the respondent's financial position improved. In the said meeting, it was also agreed that the adjustment would be reviewed after six months to ascertain if the respondent's J21 financial status had improved. The said agreement to reduce the salaries was reduced into writing and the complainant acknowledged receipt of the revised written terms and conditions as shown by the letter, "EM6". 5.3. On 24th June, 2019, the letter, "EMS" was written to the complainant to notify him that upon review of the respondent's financial performance, salaries were to remain unadjusted. In response, the complainant wrote the letter, "CW6" asking the respondent to revert to his salary on the ground that the decision to continue paying him the revised salary was unilateral and had not basis at law. The respondent reverted to him with the letter, "CW?'' reiterating that its financial position had not changed and his request to adjust the salary upwards was not successful. 5.4. On 10th October, 2022, the complainant wrote the letter, "CW8" to the respondent demanding salary arrears for 3 7 months on the ground that the effective date for reinstating his salary was supposed to be 1st July, 2019. 5.5. On 26th October, 2022, by the letter, "CWl0", the respondent transferred the complainant to Solwezi to its Kansanshi project but the complainant declined the transfer giving the reason of lack of incentives for the • J22 transfer. The respondent again wrote the letter, "CWl l" to the complainant transferring him to its Kansanshi project but he declined giving the same reason. 5.6. On 20th February, 2013, the complainant lodged a complainant with the labour office claiming salary underpayments for 37 months amounting to K86,422.0l but the labour office failed to help the parties resolve the matter. 5. 7. On 27th February, 2023, the respondent charged the complainant with the offences of disobedience and refusal to carry out a lawful instruction of transfer to Kansanshi in Solwezi and asked the complainant to exculpate himself as shown by the charge letter, "EM19". The complainant submitted his exculpatory statement, "EM20" wherein he denied the charge. A disciplinary hearing was held on 2nd March, 2023 after which he was found guilty as charged and summarily dismissed him from its employment. 5.8. Dissatisfied with the respondent's decision, the complainant commenced this action against the respondent seeking a number of reliefs. J23 5.9. From the evidence in this matter, the following are the issues for determination: 5.9.1. Whether the complainant's dismissal from employment was wrongful and/or unfair thereby entitling him to the payment of damages. 5.9.2. Whether the complainant is entitled to the payment of salary arrears for 3 7 months amounting to K86,422.0l. 5.9.3. Whether the complainant is entitled the payment of a severance package from the date of his employment to the date of dismissal. 5.10. It is trite that the burden to prove any claim made rests solely on the complainant regardless of what may be said of the respondent's case. This was the holding in the case of Elizabeth Sokoni Mwenya v CFB Medical Centre Ltd1 where the Supreme Court held that: "A claimant always bears the burden of establishing his or her case. This requires that the complainant proves any allegation made, by adducing evidence to support such allegation, to the required standard." 5 .11. Therefore, the onus is upon the complainant to prove his claims. The standard of proof is on a balance of probabilities. J24 6.0. WHETHER THE COMPLAINANT'S DISMISSAL FROM EMPLOYMENT WAS WRONGFUL AND/OR UNFAIR THEREBY ENTITLING HIM TO THE PAYMENT OF DAMAGES. 6.1. I will start by determining whether the dismissal of the complainant was wrongful. 6.2. The scope of the concept of wrongful dismissal has been ,. settled by a plethora of authorities. 6.3. Hon. Judge Dr. W.S. Mwenda, learned author of the book entitled 'Employment Law in Zambia: Cases and Materials' states at page 18 that: "The concept of wrongful dismissal is the product of common law. When considering whether a dismissal is wrongful or not, the form, rather than the merits of the dismissal must be examined. The question is not why, but how the dismissal was effected." 6.4. Further, in the case of Chilanga Cement v Venus Kasito2, the Supreme Court held that: "The concept of wrongful dismissal is essentially procedural and is largely dependent upon the actual terms of the contract in question." 6.5. On the above authorities, for the complainant to succeed in his claim for wrongful dismissal, he has to prove, on a balance of probabilities, that the respondent breached • J25 the disciplinary procedure outlined in his conditions of service or the rules of natural justice and/or the disciplinary procedure stipulated in the Employment Code Act No. 3 of 2019. 6.6. In the present case, the complainant has contended that his dismissal from employment was wrongful because the disciplinary hearing was defective; and that the respondent breached the disciplinary procedure. He argued that he was not informed of the provisions of the respondent's disciplinary code or any other document under which he was charged and the penalty for the offences. Further, that the author of his letter of dismissal was neither a member of the respondent or part of the respondent's management but an official or Vice Principal of the Don Bosco Youth Training Centre. 6.7. On the other hand, the respondent argued that when the respondent transferred the complainant to its Kansanshi project in Solwezi, he rejected the transfer. The transfer letter, "EMl 7'' was exhibited to the respondent's affidavit in opposition. That the complainant was verbally engaged and explained to about the consequences of his refusal to comply with lawful instructions as enshrined in his contract, the respondent's disciplinary code and code of conduct. That he was also given one month to reconsider J26 his decision. Unfortunately, he maintained his refusal to be transferred. That when written to again on 6th December, 2022, the complainant still rejected the transfer. The complainant's second transfer letter, was exhibited as "EM18." That as a result of his refusal to go on transfer, the complainant was charged with the offences of disobedience; and refusal to carry out a lawful instruction of being transferred to Kansanshi as shown by the charge letter, "EM19." That he was asked to exculpate himself and he submitted the exculpatory statement, "EM20." That a disciplinary hearing was held on 2nd March, 2023 following which the complainant was summarily dismissed from employment. That the complainant appealed against his dismissal but the appeal was unsuccessful. 6.8. It was the respondent's further contention that the complainant's dismissal from employment was not defective as the respondent complied with its disciplinary code and the code of conduct when dealing with the complainant's case. 6.9. I have considered the parties' arguments. 6.10. The evidence on record has revealed that prior to his dismissal from employment, the complainant was on 27th February, 2023 charged with the offences of J27 disobedience; and refusal to carry out a lawful instruction arising from his decline to go on transfer to Kansanshi in Solwezi. He was asked to submit an exculpatory statement which he did. In the said exculpatory statement, "EM20", the complainant denied the charge stating that the transfer letter had offered him two options; either to accept or not to accept the transfer. He was later invited to attend the disciplinary hearing after which he was found guilty and summarily dismissed from employment. He was informed of his right to appeal against the dismissal which he did but the appeal was unsuccessful. 6.11. With regard to the complainant's contention that the disciplinary process was defective because he was not availed the disciplinary code; and that he was not informed of the provisions of the respondent's disciplinary code or any other document under which he was charged and the penalty for such offences, I am of the firm view that the complainant was not prejudiced in any way. It is on record that the complainant was conversant with the respondent's disciplinary process.es and the Disciplinary Code of Conduct, "EM 11" having previously presided over some disciplinary cases for other employees of the respondent as shown by the disciplinary records marked "EMl 2". Further, as a J28 prudent Senior Officer, he should or ought to have been familiar with the respondent's disciplinary code that applied to him. At the time he was charged with the offence, he should have had recourse to the respondent's disciplinary code. 6.12. I also find no merit in the complainant's argument that his dismissal was wrongful because the author of his dismissal letter, "EM2 l" was not part of the respondent's management but was an official or Vice Principal of Don Bosco Youth Training Centre. The said argument is bereft of merit because according to the said letter, Action Banda, the Vice Principal of Don Bosco Youth Training Centre was properly appointed as the Administering Official. 6.13. On the totality of the evidence in this matter, I am satisfied that the respondent had followed the proper procedure and had accorded the complainant all his rights to a fair hearing prior to his dismissal from employment. Therefore, the complainant's claim for wrongful dismissal cannot stand and is accordingly dismissed. 6.14. I now turn to determine whether the dismissal of the complainant was unfair. J29 6.15. The learned authors, Judge Dr. W.S. Mwenda and Chanda Chungu in their book entitled: A Comprehensive Guide to Employment Law in Zambia, state at page 241 as follows: "Unfair dismissal is dismissal that is contrary to the statute or based on unsubstantiated ground. For unfair dismissal, the Courts will look at the reasons for the dismissal for the purpose of determining whether the dismissal was justified or not. In reaching the conclusion that the dismissal is unfair, the Court will look at the substance or merits to determine if the dismissal was reasonable and justified." 6.16. On the above authority, it follows that unfair dismissal is one where a specific statutory provision has been breached by an employer when dismissing an employee or one where a dismissal has been based on unsubstantiated reasons. 6.17. In casu, it is not in dispute that the complainant was dismissed from employment upon being found guilty of • the offences of disobedience; and refusal to carry out a lawful instruction of being transferred to Kansanshi in Solwezi. 6.18. The complainant has argued that his dismissal from employment . was unfair because his contract of employment did not provide that declining to be transferred amounted to the offence of disobedience; and J30 refusal to carry out a lawful instruction. He also claimed that his dismissal was premeditated as the respondent charged him after he handed in a letter from the Labour office recommending that he takes the respondent .to court over his demands for salary arrears that the respondent owed him. Further, that the outcome of the disciplinary hearing was passed in an urgent manner on the day of the hearing, an indication that the respondent had a motive to dismiss him. Furthermore, the complainant contended that his dismissal from employment was unfair because the charging officer was not present at his hearing to prove that the offence for which he was dismissed warranted the penalty of summary dismissal in the respondent's disciplinary code and procedure. 6.19. The respondent, on the other hand, contended that under paragraph 3 of the complainant's contract of employment, the respondent retained the right to transfer the complainant to any post provided such post was appropriate for the complainant's qualifications and experience. The respondent also argued that the complainant's dismissal was not premeditated as the complainant was charged on 27'h February, 2023 as shown by the charge letter, "EM19" but the recommendation from the Labour office was only issu~d J31 on 1st March, 2023. It was the respondent's contention that after the complainant declined the first transfer of 25th October, 2022, he was verbally engaged and informed of the consequences of his refusal to comply with the lawful instructions as enshrined in his contract. That he was also given one month to reconsider his decision but he still declined the transfer when the respondent wrote to him again on 5th December, 2023. That the complainant was dismissed after being found guilty as charged. 5.20. I have considered the arguments from both parties. 5.21. The events that led to the complainant being charged with the subject offences were that on 25th October, 2022 by the letter, "CWl0", the respondent transferred the complainant to Solwezi to its Kansanshi project. The complainant declined the transfer giving the reason of lack of incentives for the transfer. On 5th December, 2022, the respondent again wrote the letter, "CWll" to the complainant transferring him to its Kansanshi project but he declined giving the same reason. After being charged, the complainant wrote the exculpatory statement, "EM20". Subsequently, he was summarily dismissed after being found guilty of the offences with which he was charged. J32 6.22. A question arises as to whether the complainant's refusal to be transferred to Solwezi amounted to disobedience and refusal of to carry out a lawful instruction. 6.23. Clause 3 of the complainant's contract of employment, "EM l" read in part: "You will be based in Chingola. The company retains the right to transfer you to another post provided such a post is appropriate to your qualifications and experience" 6.24. It can be seen from the above that it was a term of the complainant's contract that the respondent had the right to transfer him whenever need arose. The letter of transfer, "EM17'' clearly stated the new role and functions that the complainant was going to take up in Solwezi as a result of the reorganisation of its labour structure. However, the complainant refused to go on transfer without advancing any valid reason for declining the transfer. I have stated that the complainant did not advance any valid reason because the reason of 'lack of incentives' is broad and vague. The complainant did not indicate clearly as to what incentives he would have wanted the respondent to offer him before he could accept to go on transfer. There mere fact that the respondent still demanded that the complainant goes on transfer by its second letter, "EM18" meant that the ·• J33 reason of 'lack of incentives' was not accepted and justifiably so because that sort of reason was not founded on his contract of employment. 6.25. In the circumstances, therefore, I am satisfied that the complainant's refusal of the transfer amounted to disobedience and refusal to carry out a lawful instruction as provided for under clauses 6.1 and 6.2 of the respondent's Disciplinary Code, "EMl l ". As a result, the respondent cannot be faulted for having found the complainant guilty of the said offences and summarily dismissed him. Consequently, the complainant's claim that his dismissal from employment was unfair is bereft of merit and is accordingly dismissed. 7 .0. WHETHER THE COMPLAINANT IS ENTITLED TO THE PAYMENT OF SALARY ARREARS FOR 37 MONTHS AMOUNTING TO K86,422.0l 7.1. It is not in dispute that owing to financial challenges that the respondent was facing, the complainant consented to the reduction of his basic salary from K?,667.00 to KS,366.90 and housing allowance from K2,300.10 to Kl,610.07 with effect from 1'1 January, 2019. ' J34 7.2. What is in dispute is that the complainant has claimed that he consented to being paid the revised salary for a period of six months only from January to June, 2019 but the respondent continued to pay him the revised salary until July, 2022 despite engaging the respondent verbally and in writing as shown by the letter, "CW6." The complainant contended that as a result, the respondent owed him the sum of K86,422.0l being salary arrears from July, 2019 to July, 2022. 7.3. On the other hand, the respondent argued that the period for the downward adjustment of the complainant's salary which he consented to was not six months but was for the remainder of his contract which was a permanent and pensionable contract subject to review of the respondent's financial status after six months. To that effect, the respondent produced the letter, "EM6." Tqat after reviewing its financial status, on 24th June, 2019, the respondent wrote the letter, "EM8" to the complainant notifying him that the respondent's financial situation had not improved and the salaries were to remain the same. That when the financial challenges improved, the complainant's salary and that of other employees were revised upwards. The respondent denied owing the complainant the sum of K86,422.0l being salary arrears , J35 for 3 7 months and stated that at no point did the respondent accept liability for the said amount. 7.4. I have read the letter, "EM6" and I note that it is clear that the downward adjustment of the complainant's salary was for the remaining period of his permanent contract subject to review of the respondent's financial status. A perusal of the second page of the said letter has revealed that the complainant signed the said letter to signify his consent the revised conditions of employment. 7.5. In the case of Colgate Palmolive Zambia Inc v Chuka and Others3 which has been referred to by the respondent, the Supreme Court held that: "If there is one thing more than another which public policy requires, it is that men of full age and competent understanding shall have the utmost liberty in contracting and that their contract when entered into freely and voluntarily shall be enforced by courts of justice." 7.6. Further, in the case of Sam Amos Mumba and Zambia Fisheries and BOC Gases PLC v Phesto Musonda4, it was held: "That where the parties have embodied the terms of contract into a written document, extrinsic evidence is not admissible to add, vary, subtract or contradict the terms of the documents." · J36 .. 7.7. On the about authorities, I am satisfied that where parties reduce their agreement into writing, they will be bound by the terms of such agreement. 7.8. In the present case, the complainant signed the letter, "EM6" which clearly stated that the revised salary was for the remaining period of his contract and not for six months. 7.9. I have also read the letter, "EMS" wherein the respondent notified the complainant that its financial challenges had not improved and the revised salaries were going to remain in force until after six months when it was goihg to be reviewed for a possible adjustment. 7.10. I have further looked at the draft consent order, "CWl" in the complainant's affidavit in reply and I find that the same has no legal effect whatsoever as it was neither signed by the parties nor approved by the court. 7 .11. On the whole of the evidence in this case, I am satisfied that the complainant's revised salary was meant to be in force for the remainder of the period of his contract or until the respondent's financial status improved. In this regard, therefore, the complainant's claim for the • J37 · payment of the sum of K86,422.0l being salary arrears for 3 7 months cannot stand and is accordingly dismissed. 8.0. WHETHER THE COMPLAINANT IS ENTITLED THE PAYMENT OF A SEVERANCE PACKAGE FROM THE DATE OF EMPLOYMENT TO THE DATE OF DISMISSAL 8.1. The complainant did not lead any evidence in support of this claim. However, section 54 of the Employment Code Act No. 3 of 2019 provides the eligibility criteria for the payment of the severance pay. The said section provides as follows: "54(1) An employer shall pay an employee a severance pay, where the employee's contract of employment is terminated or has expired, in the following manner: (a) where an employee has been medically discharged from employment, in accordance with section 38(5); (b) where a contract of employment is for a fixed duration, severance pay shall either be a gratuity at the rate of not less than twenty-five percent of the employee's basic pay earned during the contract period or the retirement benefits provided by the relevant social security scheme that the employee is a member of, as the cas,e may be; (c) where a contract of employment of a fixed duration has been terminated, severance pay shall be a gratuity at the rate of not less than twenty-five percent of the employee's basic pay earned during the contract period as at the effective date of termination; J38 (d) where a contract of employment has been terminated by redundancy in accordance with section 55, the severance pay shall be a lump sum of two months' basic pay for each year served under the contract of employment; or (e) where an employee dies in service, the severance pay shall be two months' basic pay for each year served under the contract of employment. (2)Where an employee dies before receiving the severance pay, the employer shall pay the severance pay to the employee's estate in accordance with the Intestate Succession Act or the Wills and Testate Estates Act. (3)The severance pay under this section shall not be paid to a casual employee, a temporary employee, an employee engaged on a long term contract or an employee serving a period of probation. (4) The Minister shall prescribe the formula for the minimum computation of severance pay." 8.2. On the above authority, it is clear that severance pay is only payable where a contract is terminated or has expired. 8.3. In the case of Redrilza Limited v Abuid Nkazi and Others5 the Supreme Court distinguished termination , from dismissal when it held that dismissal involves the loss of employment arising from disciplinary action while termination allows the employer to terminate the contract of employment without invoking disciplinary action. In casu, it is not in dispute that the complainant was dismissed from employment. J39 8.4. In the case of Kingfred Phiri v Life Master Limited6, the Court of Appeal reaffirmed its position in the case of Midlands Milling Ltd v Lloyd Tembo7 that an employee who has been dismissed from employment whether from a fixed term contract or permanent and pensionable contract of employment does not qualify for severance pay under section 54 of the Employment Code Act No. 3 of 2019. 8. 5. Based on the above authorities, the complainant is not entitled to the payment of a severance pay. Therefore, his claim for the payment of a severance package from the date of employment to the date of his dismissal is accordingly dismissed. 9.0. WHETHER THE COMPLAINANT IS ENTITLED TO COSTS OF OR INCIDENT AL TO THESE PROCEEDINGS 9 .1. Lastly, the complainant has prayed for the award of costs of these proceedings. Costs in this Division can only be awarded in accordance with Rule 44 of the Industrial Relations Court Rules, Chapter 269 of the Laws of Zambia. The said Rule 44 provides: "Where it appears to the Court that any·· person has been guilty of unreasonable delay, or of taking improper, vexatious or unnecessary steps in any proceedings, or of other unreasonable conduct, the Court may make an order for costs or expenses against him." J40 • 9.2. In the present case, I find that none of the circumstances listed under Rule 44 of the Industrial Relations Court Rules which could have persuaded me to- award costs to the complainant had arisen. Therefore, I make no order for costs. 10.0. Leave to appeal is granted. Delivered at Ndola this 17th day of October, 2025. avies C. Mumba HIGH COURT JUDGE