Laban Botha v National Roads Fund Agency (2023/ HN/IR/69) (17 July 2025) – ZambiaLII

.. IN THE HIGH COURT FOR ZAMBIA 202 3/HN/IR/69 AT THE DISTRICT REGISTRY HOLDEN AT NDOLA (Industrial Relations Division) BETWEEN: LABAN BOTHA COMPLAINANT AND NATIONAL ROADS FUND AGE URT RESPONDENT '. •;, Before the Honourable Mr. Justice Davies C. Mumba in Chambers on the 17th day of July, 2025. For the Complainant: In person For the Respondent: Mr. F. Imasiku with. Ms. N. Dianga - Both In-house Counsel. 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. Attorney-General v Phiri ( 1988-1989) Z.R. 121 (S.C). 4. Redrilza Limited v Abuid Nkazi and Others, SCZ Judgment No. 7 of 2011. 5. Kingfred Phiri v Life Master Limited, CAZ Appeal No. 24 of 2023. 6. 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, Cap. 269 of the Laws of Zambia. J2 Other works referred to: 1. W.S Mwenda, Employment Law in Zambia: Cases and Materials: UNZA Press, Lusaka, 2004. 2. W. S. Mwenda and Chanda Chungu: A Comprehensive Guide to Employment Law in Zambia: UNZ~ Press. Lusaka, 2021. · 1. 1. INTRODUCTION 1.2. By notice of complaint supported by an affidavit filed into court on 11th September, 2023, the·· complainant commenced this action against the respondent seeking damages for wrongful and unfair dismissal; terminal leave days' pay; severance package calculated at 2 5% of his annual gross pay for each year completed in accordance with the Employment Code Act No.3 of 2019; interest; costs; and any other relief the1-court may deem fit. 1.3. The respondent opposed th~ ·~omplainant's claims and in doing so, filed an answer and an affidavit in opposition thereof on 5th October, 2023 sworn to by Alice Nambeye, Human Resources and Administration Manager in the respondent company. 1.4. In reply, the complainant relied on the amended affidavit in reply filed into court on 24th June, 2024. ..: J3 2.0. THE COMPLAINANT'S CASE 2.1. It was complainant's testimony that he was employed by the Road Development Agency on 2nd November, 2013 as a Toll Collector. That on 1st May, 2018, he was transferred to the respondent in the capacity of Senior Toll Collector. That his gross salary was K27,748.85. 2.2. His evidence was that he worked well with the respondent until 19th August, 2022 when. he received his suspension letter, "LB 1." That on the same date, he also received the charge letter, "LB2". In the said charge letter, it was alleged that he had deliberately disabled motor vehicles on the Local User Discount (LUD) facility and solicited for payments from drivers of motor vehicles registration numbers ACR 7305 and AIC 5890 ZM who claimed to have paid to him K700.00 and K950.,OO, respectively, after which the LUD status was restored. It was further alleged that the premature disablemeriV of LUD qualifying motor vehicles was noted on . motor vehicles registration numbers ACY 2362, ADD 3406 and ADD 1481. It was also alleged that he had failed to :carry out his duties of daily cash reconciliations resulting in cash shortage at the station amounting to K18,879.00. .. J4 2.3. He responded to the charge letter by his exculpatory statement, "LB3" dated 8'~ September, 2022. In that exculpatory letter, he stated that the allegations against him were false .. and desigped to harm or damage his reputation; and that his actions were within the standard operations procedures of the respondent. 2.4. That on 26th September, he was invited for a disciplinary hearing as shown by the letter of invitation to the case hearing, "LB4". The disciplinary hearing took place on 27th September, 2022. The complainant contended that during the hearing, the respondent did not give him a proper reason as to why the disciplinary hearing committee was convened. That he noticed. that the respondent had neglected a number of . clauses in the respondent's disciplinary and grievahc~ procedures code, in particular, 3.9.11; 3.8.1; 3.8.5;,3.9.2, 3. . 9,5; 3.5.5;3.2.l,·3.5.4 and 7.6. 2. 5. The complainant explained his disenchantment about the respondent's non-compliance with the aforementioned clauses. With regard to clause 3.8.1, no witness was present on the part of the respondent just like with clause 3.9.2. With respect to clause 3.2.1, the charge sheet stated that a report was received from the Auditors but the Auditors despite being Internal Auditors were not present during the hearing. JS . 2.6. Regarding clause 3.5.4, the disciplinary committee's membership did not comprise the members listed in the clause. That according to clause 7.6, all appeals had to be heard within 14 days of being lodged. That he lodged his appeal on 19th October, 2022 as shown by his letter, "LB6" but he only received the response on 13th June, 2023 which period was too long and, therefore, contrary to the appeals procedure. 2.7. He testified that he was dismissed from employment on 28th September, 2022 as shown by the dismissal letter, "LBS" for the offence of misconduct yet he was innocent. That he had documents to prove his innocence. That he received the said letter of his dismissal belatedly on 17th October, 2022. 2.8. It was the complainant's evid.ence that the offence of disabling motor vehicles on the· local user discount was withdrawn before the disciplinary hearing. That the second offence of poor superyision was done away with during the hearing as indicated by his letter of dismissal, "AN12". That the third offence of misconduct was sustained despite·: the refpondent not producing any evidence to suppcfrt it. He "p'ointed out that the persons mentioned in the third offence as witnesses were not the J6 respondent's clients as stated in the report marked 'ANS'. He complained that the computation of terminal benefits schedule, "AN2'1 showed that he was dismissed on 20th September, 2022' which" was before the disciplinary hearing took place. 2.9. The complainant testified that the charge letter from his immediate supervisor showed that his immediate supervisor did not follow the proper channels of communication. That his supervisor reported the alleged misconducts directly to the· Directors instead of his immediate supervisor who was the Manager.Road Tolling Operations. That his immediate supervisor never engaged him on the allegations before charging him. That by reporting him; as:his subor,d1nate, to the senior officials, his supervisor ' deprived; :him of the opportunity of defending himself before, the disciplinary committee hearing. That he believed · that the charge letter was prepared by someone who used to report to the Directors for his or her own interest. 2.10. That the respondent claimed that the alleged misconducts were from the audit report, 'BL2' exhibited to the amended affidavit in reply. He argued that the August, 2021 to 30th June, 2022 audit report issued.to him did not have any of the misconducts listed in . the charge letter. That he . ' J7 believed that if there were any misconducts, they were supposed to appear in the audit report to give him an opportunity to respond to · the report so that any unsatisfactory response from him could allow his supervisor to charge him,· That the motor vehicles indicated in the charge letter were on local user discount facility. · 2 .11. He explained that the local user discounts were contracts given to individuals who owned vehicles and resided within a radius of 10km from the toll station. 2.12. That he had investigated the vehicles registration numbers ACR 7305 and AIC 5890ZM. That their contracts were terminated because the own·e~s of the said vehicles had breached the guideline under clause 3.6.2(i) provided in the Standard Operations Procedure Manual, 'ANl0'. That investigations revealed 'that the owners used the domicility of their Driver~ to acquire the local user discount contr~cts with the' help of two employees of the respondent as shown on the document marked 'BLS'. That through the action of the two employees namely; Masekano Malisawa and Christopher Lesa, the respondent lost revenue amounting , to K36.00 per passage. He contended that his action to terminate the contracts for the aforesaid two motor vehicles prevented the respondent from a continuous loss of revenue. Therefore, ,- 1 . !., i_ JS . I • his action was in ·compliance with the guideline under ., clause 3.6.1 of the Standard Operations Procedures Manual, "ANl0". 2.13. The complaint testified that during the disciplinary hearing, the respondent accused him of terminating the local user discount contracts for Kennedy Malama of NRC 202473/45/1 and Paul Chisanga'of NRC 252811/45/1. It was his argument that the respbndent's books of accounts did not indicate that the said Kennedy Malama and Paul Chisanga had any contracts with the respondent as shown in the system logs 'BL3' and 'BL5.' That the Drivers of the motor vehicles in question and the respondent were not affected in any way becau~e .the Drivers did not have any ' . -~ : '. ,; local user discount contracts ·with the respondent. 1 ' { •. · 2.14. That the respondent set up a disciplinary committee comprising members who were managers to superintend the hearing of an employee at grade 6 salary scale. That the names of the managers ';Vere: Vernon Ngulube, Manager Monitoring and Evaluation; Mr. Charles Kandeke, ' · ..' , .' Manager Infrastructure; Mrs. Mica Chola, Manager Fund l ."' ~ Management; and Mrs. Alice. . Nambeya, Manager Human Resources and Administrati0:\1. That by setting up the ., ·, '\. foregoing committee, the,respondent violated clause 3.5 . ,• ;'.; .· (section 4) of the disciplinary and grievance procedures . ' ., ' , ,: ' code. r .., . J9 2.15. The complainant contested that the respondent dismissed him in order to conceal the loss of revenue and to shield the two employees who were involved in the registration of local user discount contracts. That the respondent had failed to give any reason why he was dismissed from employment. That during the hearing process, Mr. Vernon Ngulube who was the Chairperson issued a statement which did not sit well with him to the effect that 'bribery does not have a proof. 'That the statement left him worried because the source of the bribery mentioned was not known to him. 2.16. He prayed the court for damages for wrongful and unfair dismissal, payment of the salary from 1st September, 2022 ..... • to the date of trial, accni-e':l benefits and Transport allowances from 1st May, 2018;to the date of trial. '. < I ' •• • "..:'. • 2.17. During cross-examination, .. the complainant confirmed -·' ·. .. that between Augµst, 2021 .and June, 2022 he was Senior . •' . ' . Toll Collector and that he _was the person that used to approve the local user discount contracts. He admitted that the respondent had a manual for the award of local user discount contracts which he was familiar with. When referred to paragraph 15 of his affidavit in reply, the complainant confirmed that he conducted investigations on some motor vehicles that had the local user discount • JlO contracts. When referred to page 13 of the manual, 'ANl0', he confirmed that clause 3.6. l was the procedure for the award· of the local user discount contracts. That as Senior Toll Collector, when processing the grant of a local user discount contract, he complied with clauses 3.6.3 (Authentication) and 3.6.4 (LUD internal processes) of the manual. When referred to clause 3.6.2 (Eligibility), the complainant stated that the Manager, Road · Tolling Infrastructure had to be informed where the eligibility to the grant of the local user discount was in dispute. When referred to the Internal Audit report, 'AN3' he recalled testifying that he investigated the motor vehicle ACR 7305. That his name appeared against all dates as the user. That he had the authority·. to approve the local user discount contract for the aforesaid vehicle. That on the column for activity, it was indicated as 'renew'. That 'renew' implied that the local user discount was valid for one year. That on 6th December, 2 021, it was indicated 'disabled' meaning that the vehicle was no longer enjoying the local user discount facility; That the one year validity period had not yet expired and that the vehicle was still eligible to enjoy a local user discount. He confirmed that he was the one who disabled .the said vehicle. That during that period he did not inform, the Manager, Road Tolling Infrastructure as he had no obligation to do so because the process was initiated at the station and it was ending with Jll him at the station. That at the said station, he had the authority to disable motor vehicles and reactivate them whenever there was need to carry out investigations. That the disabling . he had do.ne was as a result of the investigations he had carried out. He stressed that the first disabling was to stop the loss of revenue and give the client an opportunity to provide more information. That reactivation meant that he was satisfied with information that was provided by the client. That the guidelines provided that when there was a breach of the terms and conditions of the local user discount contract, he had to disable. That on 8th September, 2021, he reactivated the local user discount contract for the same vehicle. He reiterated that he disabled the. vehicle on 6th December, 2021 as he was conducting an investigation. Further, he confirmed that on 10th May, 2022 which was about five to six months, he disabled the vehicle. 2.18. When referred to appendix 5,of the Internal Audit Report, "AN3", the complainant confirmed that he had also investigated the vehicle registration number AIC 5890 ZM. That according to the activity report, he disabled it two times within a space of six months. 2.19. When referred to appendix 7 of the Internal Audit Report, "AN3" he confirmed investigating motor vehicle ACY J12 2362. That he disabled the vehicle on 13th December, 2021 and reactivated it on 14th December, 2021. When referred to appendix 8 of the said report, he confirmed investigating motor vehicle ADD 3406. Thathe disabled it on 13th December, 2021. When referred to appendix 9 of the same report, he confirmed investigating motor vehicle ADD 1481 on 12th January, 2022 and disabled it. 2.20. He stated that he did not report any of his investigations to the Manager, Road Tolling Infrastructure because his_ position did not require h_im to report to the said Manager. That he was reporting to the Road Tolling Operations Officer. However, he did not also report to the Road Tolling Operations Officer. 2.21. When further cross-examined, he stated that his immediate supervisor did not engage him over any of the charges. 2.22. When referred to the show cause statement, 'AN4' he confirmed that his immediate supervisor was the one who wrote to him that show cause letter. He reiterated that his immediate supervisor did not engage him over the allegations and so he wondered as to where all those allegations came from. J13 2.23. When referred to the charge form, 'AN7', the complainant admitted that it indicated the offences he was alleged to have committed. He stated that Alice Nambeya, Secretary was part of the disciplinary committee panel, as he understood the situation. 2.24. In re-examination, the complainant stated that once he had investigated a motorist, he had no one else to submit his report to. He complained that the Internal Audit report, 'AN3' was never given to him. 3. THE RESPONDENT'S CASE 3 .1. In its affidavit evidence, the respondent averred that the complainant was not employed by the respondent but had his contract of employment transferred to the respondent company in his capacity as ,a Senior Toll Collector with effect from 1st May, 2018 as shown by the letter, "ANl". 3.2. That the complainant's non-payment for his accrued leave days was due to the fact that he had lodged an appeal against his dismissal and any payment could only be effected once the appeal was determined and his dismissal upheld as per computation of terminal benefits, 'AN2'. J14 3.3. That in the month of July, 2022, the respondent received an internal audit report which indicated that the complainant was accepting or offering bribes in respect of the respondent's business at Chilonga Toll Station. That the said report highlighted several transactions in which the complainant obtained money from motorists on local user discounts contracts and never receipted the funds as shown by the Internal Audit report, 'AN3'. 3.4. That around the said period, there was a shortage of eighteen thousand, eight hundred and·· seventy-nine kwacha (K18,879.00) at Chilonga toll station where the complainant was the Senior Toll Collector in charge of the station books. That the shortage was due to the complainant's failure to , carry out daily cash reconciliations availed in the show cause statement, 'AN4' served on the complainant on 19th August, 2022. That, by the memorandum, 'AN5' dated 19th August, 2022, the complainant responded to. the show cause statement denying all the charges that were laid against him. That on the same date, the respondent wrote the complainant a suspension letter, 'AN6' to facilitate .. for further investigations and determination of the matter. 3.5. That on the 26th day of August, 2022, the respondent raised a charge form, 'AN7' against the complainant JlS stating in full detail the complainant's charges which were contravening the provisions of the Respondent's Disciplinary and grievance procedure (clauses 6.50 and 6.15). 3.6. That on the 8th September, 2022, the complainant denied all charges against him stating that the allegations against him were false and designed to harm or damage his reputation. Further, the complainant contended that his actions were within the respondent's standard operations procedures, 'ANl0'. 3.7. That by the memorandum, 'ANll' the complainant was invited to attend a disciplinary hearing on 27th September, 2022. That after the said hearing, the complainant was of found guilty on the charge accepting or offering bribes. As stated in the dismissal letter, 'AN12', the complainant was informed of his right to appeal the disciplinary committee's decision of dismissing him from employment within 14 days. He lodged in_his appeal, 'AN 13', on 20th October, 2022. That the appeal was unsuccessful and consequently, the dismissal was upheld as the appeal never demonstrated reasonable grounds nor any fresh evidence on which the decision of the disciplinary committee could be overridden. J16 3.8. At the trial, the respondent called two witnesses in aid of its case. 3.9. RWl was Richard Chomba Kafula who was Manager, Internal Audit in the respondent Agency. He testified that between January and February, 2022, he undertook an I .. audit of Chilonga toll plaza. During his audit, he noticed some suspicious activities · on the local user discount facility. That some motor vehicles were being removed from enjoying the local user discount and being reverted to normal rates. He cited three instances when a motor vehicle could be removed from enjoying the local user discount facility as when the one-year validity period expires; when there is change of ownership of the motor vehicle; and when the domicility of 1 0kms radius from the toll plaza changes. He explained the last instance and gave an example as when a motor vehicle had been purchased and went out of -the 10 kilometre radius from the toll plaza. 3.10. He stated that when he reviewed selected transactions, he found that some vehicles were disabled from enjoying the local user discount facility despite not meeting any of the above three conditions. 3.11. That when carrying out investigations, he got all transactions and checked those that were disabled. He J17 found that motor vehicles were being disabled without meeting the criteria stated above. That he, thereafter, produced the investigations report, 'AN3' (Internal Audit Report). 3.12. In reference to paragraph 6.1. of the Internal Audit Report, 'AN3' the witness testified that motor vehicle ACR 7305 had the validity period of 12 months to enjoy the local user discount from 1st July, 2021 to 1st July, 2022. However, the said motor vehicle was disabled on 6th December, 2021 and reactivated on 8th December, 2021. The same motor vehicle was again disabled on 10th May, 2022 and reactivated on 14th May, 2022. Then it was completely disabled on 20th June, 2022. That he interviewed the Driver of the said motor vehicle and obtained a written statement in which the driver alleged that the complainant told him .that his vehicle was not eligible to be granted the local user discounts; and that he was owing the Government K27,000.00. He further alleged that after hours of discussion, .the complainant asked him to pay Kl,800.00 out of which he paid K?00.00 leaving a balance of Kl,100.00. That at that point, he was reactivated on the local user discount facility. He further alleged that the complainant-asked him for the remaining balance to which the Driver responded that he did not have. As a result, the complainant removed him from the J18 local user discount facility; The witness referred the Court to appendix 2 which showed the audit trail ·or system log that was downloaded by the ICT Technician; and appendix 3 which was the written statement by the Driver of Motor vehicle registration number ACR 7305. 3.13. The witness further explained that whenever there was a disablement, the complainant was supposed to furnish a report to the Manager, Road Tolling Operations. That during his investigations, he did not find any such report or reasons for the disablements. That the obligation of submitting a report to . the Manager, Road Tolling Operations in the case of disablement with r.easons for the disablement w_as; provided f~r in section 3.6.2. of the '- •' I Standard Operating Proce_dures manual, 'ANl0'. That such a requirement was mandatory. . ' ' . ~ . 3.14. That during his investigations, he came across other similar cases to the one discussed above. He found that the complainant was disabling motor vehicles at his will. That his conclusion as an Auditor and Investigator was that the complainant had engaged in fraudulent activities. 3.15. When cross-examined by the complainant, the witness stated that he was working as 'an Auditor .as well as an investigator according to his job description. In addition, he was a certified Fraud Ex~miner by the Association of . 1: J19 Certified Fraud Examiners. He stated that after he conducted the auditing, he was not required to give a copy of the Audit report to the complainant. When referred to the internal audit report, 'BL2' for the period August 2021 to June, 2022 exhibited to ,the complainant's amended. affidavit in reply, the witness confirmed that he had carried out the audit. That, that was the report that he had issued to the complainant. He admitted that the allegations on which the charges were based were not indicated in the audit report. He explained that the reason he did not include the complainant's suspected fraudulent activities into the audit report was because it was a routine audit report; and that there was need for a separate investigations report for the suspected fraudulent activities. He stated that since the evidence relating to the fraudulent activities was overwhelming, they reported directly to the Director, Road Tolling so that disciplinary action could be taken against the complainant. That this was not written anywhere :that the complainant was not supposed to be engaged. ; '· ·.· . ; 3.16. He admitted having interviewed the Driver of the motor vehicle registration number ACR 7305 as being the right person. When referred to the audit trail (system log), 'BL3' of the amended affidavit in reply, the witness confirmed that it bore the client's name Katanganya. That it was the • • • J20 same person appearing on. the Local user discount distance confirmation form, 'BLS'. That he was the owner of the vehicle in question. He denied previously stating that the owner of the vehicle was Paul Chisanga. 3.17. When referred to the statement, 'BL4,' the witness stated that he did not say that the Drivers were the owners of the vehicles. That Kennedy Mwila and Paul Chisanga were appearing in the audit report because they were the Drivers of the motor vehicles. That the Drivers were the right people to interview in connection with the motor '. vehicles on the Local User discount facility as they were the taxi drivers who were driving the motor vehicles. He stressed that the complaina11t was supposed to report his activities to the Manager, Road Tolling. ; 3.18. When referred to section 3.6.2 of the Standard Operations Procedures manual, 'ANlO', the witness emphasized that· the section required the co,mplainant to report his activities in connection with eligibility at any stage, to the Manager, Road Tolling infrastructure. That the complainant was supposed to._comply with clause 3.6.2 .. \ because it applied to all staff who were involved in the process of registration and approval of the local user discount facility. _That the· complainant's role was to approve contracts based on the information submitted to him by the shift supervisors or toll collectors. That the • • J21 coordinates were picked by the shift supervisors or toll collectors. He denied being aware of the investigations that the complainant was carrying out. He stated that the complainant was not denied. the opportunity to defend himself before the disciplinary committee. 3.19. RW2 was Patrick Musonda, Road Tolling Operations Officer in the respondent Agency. 3.20. The witness testified that in June, 2022 they received an internal audit report from Internal Auditors which was conducted by the Internal Auditors for the first and second quarters of 2022. That the report highlighted a few errors made by the then Station Manager, the complainant, who held the position of Sei;lior Toll Collector. That the highlighted errors were against the standard operating procedures. That is, ther.e · was the deactivation and ,. . reactivation of the' local user discount accounts. 3.21. The witness testified that after reviewing the report, he bore the responsibility to find out what caused the complainant to make the errors that were highlighted. Thereafter, the witness escalated the matter to senior management who guided him to charge the complainant.. That he proceeded to charge the complainant as shown by the charge form, 'AN7'. That a letter of suspension was ' ., .• J22 · also written to the complainant. Eventually, the complainant was invited to a disciplinary hearing. 3.22. That after the disciplinary hearing, the disciplinary committee decided that the· complainant should be dismissed from employment. 3.23. RW2 explained that motorists on local user discount accounts were, supposed to· remain on the system for a continuous period of 12 months after approvals were. done. That in this case, the accounts were deactivated before the expiry dates. The witness referred the court to appendix 2 of the Internal Audit Report, 'AN3' and explained that the account for motor vehicle registration number ACR 7305 was deactivated from the system on 20th June, 2022. That it was reactivated on 8th December, 2021 and deactivated on 10th May, 2022 .. That that was against the standard operating procedures because the vehicle did not enjoy the 12 months local user discount facility. He stated that applications for. the local user discount accounts were made to the Senior Toll Collector who was also responsible for approving the said applications. That the complainant was . the·• one who approved the application for the local user discount account for the vehicle, ACR 7503. d J23 3.24. The witness testified that the procedure to be followed for a local user discount account was contai~ed in section 3.6.1. of the Standard Operations Procedures Manual, 'ANl0'. He stated that the complainant did not follow the procedure provided for in the said section .. 3.25. The witness also referred the court to the complainant's. memorandum, 'ANS' and explained that the person who approved the local user discount in question was the complainant. He stated that he was not aware of any · investigation that was going on before he received the internal audit report. That at the material time, the complainant used to report · to him as his immediate supervisor. He stated that it was a requirement to report any investigationthat was being carried out as per section 3.6.2 of the Standard Operations Procedures Manual, 'ANl0'. 3.26. During cross-examination, the witness stated that he did not have cite of the Auditor's operating procedures and as such, he was not able to confirm whether the procedures were followed or not. He reiterated that after reviewing the audit report, he engaged the complainant by writing to him to exculpate himself in order to appreciate the matters that were raised. He stated that he reported the matter to hi~ immediate,. S\lpervisor, the Road Tolling J24 Manager and not the Director. · When referred to the show cause form, 'AN4', the · witness stated that the memorandum was addressed to the complainant and was not copied to the Road Tolling Manager. That it was the right channel. of communication. That according to the procedure, the . Manager, ' Road Tolling was omitted because at that stage only heads of departments dealing with the subject matter were copied in hence the mention of the Director, Corporate Services, and the Director, Road Tolling as being copied. 3.27. The witness stated that the responsibility for road user discount reactivation and deactivation lay with the Senior Toll Collector who was the complainant at the material . . . ! . time. 3.28. He testified that he had concluded that the deactivation of the motor vehicles bearing registration number ACR 7305 ., : ,'i :. and AIC 5890ZM was an error because he had seen from the system extract that it was done in less than 12 months in the system.· That the systkms record showed that the vehicles were deactivated and reactivated before the expiry dates of their continuous 12 months. 3.29. When referred to statement of the attachment to the form, 'LB3', of the complainant's affidavit in support, the witness stated that upon finding that there was breach of • J25 · contract for local user discount accounts, the complainant was expected to write to his office highlighting the situation on the ground and further recommending the next course of action on the matter. That he did not receive any information regarding the matter until the audit report came out. That taking into consideration that it involved the loss of revenue, he expected the complainant to immediately engage his office on the matter. When further referred to section 3.6.2 of the Standard Operations Procedure Manual, 'ANlO', the witness stated that the section provided for the action to be taken in the event of breach of contract for local user discount facility. That since the complainant did not just make a report to him, the failure to do so did not warrant a dismissal. The witness denied making allegations of the complainant receiving bribes from Kennedy Mwila and Paul Chisanga. What he had recited in the show cause was exactly what was contained in the audit report. He explained that, that was the reason for asking the complainant to exculpate himself on the irregularities that were found. 3.30. When referred to appendices ,3 and 6 of the Testimony made by driver, 'BL4', the witness stated that the two drivers were not the respondent's clients on the local user. discount accounts. That he had alleged that the • J26 • complainant had received bribes from Kennedy Mwila and Paul Chisanga because the au_dit report stated so. 4.0. CONSIDERATION OF THE EVIDENCE AND DECISION OF THE COURT 4.1. I have considered the affidavit and vice voce evidence from both parties and the written final submissions by the respondent's Counsel. I will refer to such written submissions whenever it becomes necessary. 4.2. The facts which were not in dispute are that by the letter, "ANl" dated 23rd April, 2018, the complainant's contract of employment was transferred from the Road Development Agency to National Road Fund Agency, the respondent herein. This was as a result of the decision to declare all revenue collectio_n positions redundant in the Road Development Agency. The complainant was taken on by the respondent with effect from 1st May, 2018 on the same terms and conditions of service as Senior Toll Collector. st 4.3. Following the internal audit for the period 1 August, 202 l to 30th June, 2022 conducted by the respondent's Internal Auditors at Chilonga Toll Plaza where the complainant was the Station Manager, a number of irregularities were found _,,. ., • J27 . . • to have been committed by the complainant. As a result, the complainant was written t() . to show cause why disciplinary action could not be taken against him via the internal memorandum, "AN4," dated 19th August, 2022. He responded by his memorandum, "AN5," of even date denying all the allegations that were leveled against him and argued that the respondent could not take any disciplinary action against him based on the Public Financial Management Act No.l of 2018. The same day, on 19th August, 2022, the complainant was suspended from duty by the letter, "AN6" with immediate effect to pave way for further investigations and determination of his case. 4.4. On 26th August, 2022, the respondent formally charged the complainant with two offences. First, accepting or offering bribes in respect of any agency business contrary to clause 6.50 of the Agency Disciplinary Code of Conduct and Grievances Procedures. The second offence was poor ••• supervision as. provided for. ·under clause 6.15 of the Agency Disciplinary Code . of Conduct and Grievances Procedures. 4.5. In his exculpatory statement dubbed as 'statement form,' "AN9" dated 8th September, 2022, the complainant defended himself. He stated that the allegations against J28 • or him were false and designed to harm damage his reputation; and that his actions were within the standard operations procedures. 4.6. On 27th September, 2022, the complainant was invited to attend a disciplinary hearing as shown by the internal memorandum, "ANl l." After the disciplinary hearing, the complainant was not found guilty of the offence of poor supervision and therefore, the offence was dismissed. However, the disciplinary . committee found the complainant guilty of the offence of accepting or offering bribes in respect of any agency business. Consequently, he was summarily dismissed from employment with effect from 28th September, 2022,.His dismissal was pursuant to the provisions of the agency's Disciplinary Code of Conduct and Grievances Procedures clause 6.46 as read with section 5 l(l)(e) and (f) of the Employment Code Act No. 3 of 2019. He was informed of his right to appeal to. the respondent's Director/Chief Executive Officer within 14 days from the date of receipt of his letter of dismissal. Two days after receiving his · dismissal letter, the complainant lodged his appeal against his dismissal through his letter, "AN13" dated 19th October, 2022. By the respondent's letter, "AN14:'. dated 13th Juhe, 2023, the complainant was notified that.his appeal was unsuccessful as it did not demonstrate any reasonable grounds nor J29 • present any fresh evidence on which the decision of the disciplinary committee could be overridden. 4. 7. Disenchanted with the respondent's final decision, the complainant commenced this action against the respondent on 11th September, 202 3 seeking a number of reliefs as listed under paragraph 1.2 of this judgment. 4.8. From the evidence in this matter, the following are the issues for determination: 4.8.1. Whether the complainant's dismissal from employment was wrongful and/or unfair thereby entitling him to the payment of damages. 4.8.2. Whether the complainant is entitled to the payment for accrued leave days .. 4.8.3. Whether the complainant is entitled to the payment of a severance package calculated at the rate of 2 5% of his annual basic pay for each completed year of service. 4.8.4. Whether the complainant is entitled to the payment of costs of this action. 4.9. 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." 4.10. Therefore, the onus is upon the complainant to prove his claims. The standard of proof is on a balance of probabilities. 5 .0. WHETHER THE COMPLAINANT'S DISMISSAL FROM EMPLOYMENT WAS WRONGFUL AND/OR UNFAIR 5.1. I will begin with the complainant's claim that his dismissal from employment was wron'gful. 5.2. The scope of the concept of wrongful dismissal has been settled by a plethora of authorities. 5.3. Hon. Dr. Judge 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 w:as effected." . ' J31 5.4. Further, in the case of Chilang<;1 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." 5.5. 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 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. 5.6. In the present case, it is not in dispute that following the internal audit at Chilonga Toll Plaza where the complainant was working as1Senior Toll Collector and the discovery of some financial irregularities and bribery activities by the respondent's Internal Auditors who later rendered an internal audit report, "AN3" to the respondent's management, the complainant was subsequently charged for the offences of accepting or offering bribes in respect of any agency business; and poor supervision. He exculpated himself in writing and was later invited to attend the disciplinary hearing. When the complainant appeared before the disciplinary committee, the offence of poor•supervision was dismissed • '. J32 • whereas he was found guilty of the offence of accepting or offering bribes in respect of any agency business. Consequently, he was summarily dismissed from employment. He appealed against his dismissal but the appeal was unsuccessful. 5.7. From the above sequence of events, it is evident that the respondent had complied with its disciplinary procedures, the rules of natural justice _and the Employment Code Act when dealing with the complainant's case. 5.8. On the totality of the evidence in this case, I am satisfied that the complainant was accorded all his rights to a fair hearing. In this regard, the complainant has, on a balance of probabilities, failed to prove that he w.as wrongfully dismissed from employment and his claim is accordingly dismissed. 5.9. I now have to determine the question whether the complainant's dismissal from employment was unfair. 5.10. 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 • • J33 • conclusion that the dismissal is unfair, the,, Court will look at the substance or merits to determine if the dismissal was reasonable and justified." 5.11. On the above authorities, 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. 5.12. Further, in the case of The Attorney-General v Phiri3, it was held that: "Once the correct procedures ·have been followed, the only question which can arise for the consid.eration of the Court, based on the facts of the case, would be whether there were in fact facts established to support the disciplinary measure~. since it is obvious that any exercise of powers will be regarded as bad if there is no substratum· of facts to support the same. Quite clearly, if there is no evidence to sustain charges levelled in disciplinary proceedings, injustice would be visited upon the party concerned if the court could not then review the validity of the exercise of such powers simply because the disciplinary authority went through the proper motions and followed the correct procedures." 5.13. Pursuant to section 52(5) of the Employment Code Act No. 3 of 2019, the employer bears the evidential burden of proving that the dismissal of an employee from employment was fair and for a valid reason: ' ' .. J34 5.14. In the present case, the complainant has contended that the respondent did not give him any reason for his dismissal from employment. Additionally, he has argued that Mr. Vernon Ngulube, who was the Chairperson of the disciplinary committee, issued a statement to the effect that "bribery,_ does not .. · have a proof" during the disciplinary hearing process which statement worried him as the source of bribery mentioned was not known to him. 5.15. On the other hand, the respondent's evidence was that the internal audit report, "AN3", indicated that the complainant was accepting or offering bribes in respect of the respondent's business at Chilonga toll station. That he was charged with the said offence, he exculpated himself and appeared before the disciplinary hearing. 5.16. According to the letter of the complainant's summary dismissal, "AN12" dated 28th September, 2022, he was dismissed from employmeht for the offence of accepting or offering bribes in respect of the respondent's business. , I . , .. ·,' Resultantly, I find that a reason was given for the summary dismissal of the complaina'n't. Whether this was a valid reason or not will be deduced from the available evidence before court. 5.17. Although the complainant has argued that the charges he was facing were never based on the audit report, I find that _. J35 " not to be true. According to paragraphs 6.1 and 6.2 relating to the motor vehicles registration numbers ACR 7305 and AIC 5890 ZM, respectively, these are the same vehicles whose Drivers complained having paid the complainant the sum of K700.00, leaving a balance of Kl, 100.00 (total charged by . the complainant was Kl,800.00); and the sum of K950.00 leaving a balance of Kl,550.00 (total charged by the complainant was K2,500.00). The internal audit report, "AN3" revealed that the money the said Drivers paid to the complainant was never receipted . at the. toll plaza in favour of the respondent. Because the two Drivers were unable to pay ,, the balances of the total amounts they were charged by the complainant, their vehicles were disabled from enjoying the local user discount facility. The disablement of the two vehicles was before the expiry of the one year validity period of the local user discount contracts which was contrary to the standard : operations procedures, "ANl0." 5.18. Having considered all the circumstances of the case, I am satisfied that the respondent adequately investigated the conduct of the .complainant at Chilonga toll plaza and properly found that the complainant had engaged himself in corrupt practices by, receiving bribes for him tei reactivate motor. vehicles · on the local user discount . • :: J36 facility. Therefore, the respondent cannot be faulted for finding the complainant guilty, of the offence of accepting bribes in respect of the respondent's business contrary to clause 6.46 of, the respondent's Disciplinary Code of Conduct and Grievances Procedures Code, "AN8," and for having summarily dismissed him in accordance with the said clause. 5.19. I am satisfied that the complainant's summary dismissal from employment was, therefore, for a fair and valid reason as required by the provisions of section 52(2) of the Employment Code Act No. 3 of 2019. Consequently, the complainant's claim that his dismissal from employment was unfair is bereft of merit and is accordingly di,smissed. 5.20. Having found that the complainant's sumll}ary dismissal from employment was nei'ther wrongful nor unfair, the complainant is not entitled to the payment of damages for either wrongful or unfair dismissal. 6.0. WHETHER THE COMPLAINANT IS ENTITLED TO THE PAYMENT FOR ACCRUED LEAVE PAYS 6.1. The complainant has claimed for the payment for his accrued leave days which he says he was not paid for. J37 6.2. The respondent, on the other hand, has not disputed paying the complainant for his accrued leave days. The reason advanced for the non-payment is the fact that the complainant had lodged an app;eal against his dismissal and that, therefore, any payment could only be effected once the appeal was determined. The respondent indicated that. the computation of the complainant's terminal benefits had already been done and referred the court to exhibit "AN2" to support the said computation of terminal benefits. The document referred to as the computation of terminal benefits, "AN2" was indeed prepared by the respondent. What I am not able to confirm is whether the 68 days indicated to have been the l~ave days accrued by the complainant as at 20th September, 2022 is the correct computation. l say so because the said document, exhibit "AN2" ind_icating the computation of terminal benefits had not been audited. Further, the complainant himself did not lead any evidence indicating the period over which he had based his claim and the rate of the leave days he was earning per month during his_ employment with respondent. 6.3. That said, what. is clear to me is the fact that the respondent has not disputed having not paid the complainant for his accrued leave days. Therefore, I enter judgment in favour of the complainant for the payment of • = J38 his accrued leave days, the quantum which has to be agreed between the parties or in default, the same to be assessed by the learned District Registrar. 7.0. WHETHER THE COMPLAINANT IS ENTITLED TO THE PAYMENT OF A SEVERANCE PACKAGE CALCULATED AT THE RATE OF 25% OF HIS ANNUAL BASIC PAY FOR EACH COMPLETED YEAR OF SERVICE 7 .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 that 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 case 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; J39 (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." 7.2. On the above authority, it is clear that severance pay is only payable where a contr.act is terminated or has expired. 7.3. In the case of Redrilza: Limited v Abuid Nkazi and Others4, the Supreme Court· distinguished termination from dismissal wben 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. • J40 7.4. In the case of Kingfred Phiri v Life Master Limited5 the , Court of Appeal reaffirmed its position in the case of Midlands Milling Ltd v Lloyd Tembo6 that an employee who has been dismissed from employment whether from a fixed term of 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. 7.5. From the foregoing, the complainant is not entitled to the payment of a severance pay. Therefore, his claim for the payment of a severance package calculated at the rate of 25% of his annual basic pay for each completed year of service is accordingly dismissed. 8.0. OTHER CLAIMS 8.1. At the conclusion of his evidence in chief, the complainant st also prayed the court to award him salaries from 1 September, 2022 to the date of trial; and transport allowances from 1st May, 2018 to the date of trial. 8.2. I have looked atthe pleadings and find that such claims were not pleaded. It is trite that parties are bound by their pleadings. Therefore, in, view of these omissions, the claims are accordingly dismissed. 9.0. WHETHER THE COMPLAINANT IS ENTITLED TO THE PAYMENT OF COSTS OF THIS ACTION 9.1. 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." 9.2. In the present case, I find that none of the circumstances listed under Rule 44 of thel~dustrial 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 July, 2025. Davies C. Mum.ha HIGH COURT JUDGE . .'.:I·