Chisola Mukimba v Olympic Youth Development Centre (COMP No: IRCLK/57/2020) (30 September 2025) – ZambiaLII

IN THE HIGH COURT OF ZAMBIA COMP No: IRCLK/57 /2020 INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA CHISOLA MUKIMBA ( 3 0 SEP 2025 ) COMPLAINANT SEAL 4L RElATlO~~ AND OLYMPIC YOUTH DEVELOPMENT CENTRE RESPONDENT Coram: Chigali Mikalile, J this 3()th day of September, 2025 For the complainant: In person For the respondent: Mr. G. Pindani & Ms. M. Mulendema - Messrs Chonta, Musaila & Pindani Advocates JUDGIW.CENT Legislation refened to: 1. The Employment Code Act, 2019 2. The Employment Act, Chapter 268 Cases referred to: 1. Tarmac Roadstone Holdings v. Peacock (1973) IW.L.R 2. Tom Chilambuka v. Mercy Touch Mission, SCZ Appeal No 171/ 121 3. Nottingham University v. Fishel (2000) ICR 1462 QBD 4. Zambia National Commercial Bank v. Joseph Kangwa SCZ, Appeal No 54/2008 Introduction 1. One of the ways a contract of employment can be terminated is through resignation, the act of voluntarily relinquishing a position, office or employment typically through written notice. In the present case, there is no dispute that the complainant terminated her contract of employment with the respondent through resignation but the parties failed to agree on what was due to the complainant hence this action. The following reliefs are sought: 1) Salary arrears; 2) Leave days; 3) Overtime; 4) Gratuity; 5) Interest on all the above amounts; 6) Any other costs and benefits the court may deem fit. Affidavit evidence 2. In the supporting affidavit, the complainant stated that she was initially employed by the respondent in 2011 as a Human Resource Consultant, a position she held until 2012. In 2012 she signed a new one-year contract as an Assistant Events Coordinator. She further signed two additional contracts, each valid for two years, covering the period from 2013 to 2017. Thereafter, she was elevated to the position of Events and Marketing Officer under a new two-year contract (exhibited as "CM2") extending to 9th August, 2019 exhibited to the affidavit. The complainant subsequently chose to end her employment and tendered her resignation on 1st December 2018. J2 · She claims, however, that her resignation letter was misplaced by the Human Resource Officer. 3. The complainant deposed that she proceeded on leave on 26th January, 2019. At the time, she had 37 unutilized leave days. According to the complainant, the respondent had not paid her salary arrears for August through to December and January 2018. She also did not receive leave and overtime for 2012 to 2013 and 2013 to 2015. She further claimed that she was owed gratuity and overtime for the 2015 to 2017 contract as well as under the 2017 to 2019 contract. 4. The complainant attested that following her resignation, the respondent promised to settle her outstanding wages by June 2019. She averred that the payments were scheduled to be staggered over the period from January to May 2019. However, the respondent failed or neglected to fulfill these obligations. The respondent attempted to justify the non-payment by alleging that she had obtained salary advances against her 2015 to 201 7 gratuity, an allegation she strongly denied. According to the complainant, she did obtain two salary advances, but these were drawn against her 2013 to 2015 contract gratuity on 14th March 2015 and 5th September, 2015, prior to the commencement of the 2015 to 2017 contract, as evidenced by exhibits "CM3" and "CM4." 5. The complainant highlighted that the respondent's Human Resource Manual expressly prohibits employees from receiving advances against contracts not yet in effect or against gratuity which had not yet been accumulated. The complainant did acknow·ledge however, that she also got )3 an advance of K6,000.00 against her salary on 14th March, 2016 exhibited as "CMS". She clarified that this amount was deducted monthly until it was cleared. 6. It was the complainant's further averment that the respondent transferred her gratuity for the 2013 to 2015 contract of K 12,000.00 to her salary account. The transfer is exhibited as "CM6". 7. The complainant asserted that she was accused of fraudulently acquiring K3,500.00 from the respondent's client through her Airtel Money account for the hire of the respondent's facilities. According to the complainant, she had a decorations business she conducted at the respondent facility which the respondent was aware of. A client had engaged her independently to provide decoration services for a church event to be held at the respondent's premises and had transferred funds to her for that purpose. However, when the client later decided to do its own decorations, the complainant was instructed to transfer the funds she had received to the respondent to offset the amount the client owed the respondent for hiring the venue. This information \Vas communicated to the respondent's accounts team and it was agreed that the amount would be deducted from the complainant as a salary advance. The deduction was effected as shown by the February, 2019 pay statement ("CM7"). 8. The complainant further deposed that the respondent through the Human Resources Office did confirm benefits due to her for the 2015 to 2017 contract in November of 2018. The contract benefit confirmation is exhibited as "CMS". The respondent decided to deduct NAPSA and tax her J4 ·gratuity. It further deducted pay in lieu of notice from her 2017 to 2019 leave days when she had given her resignation on time and worked till the last day as shown by her pay slip "CM9". 9. The affidavit in support of Answer was deposed to by Dr Fredrick Chitangala, Centre Director for the respondent. He confirmed that the complainant entered into a contract with the respondent covering the period from 10th August 2015 to 9th August 201 7, as evidenced by exhibit "CM l" in her affidavit. This contract was subsequently extended for an additional two years. 10. Dr. Chitangala deposed that the complainant resigned but contrary to her assertions, she deserted her employment from 27th December 2018 upon learning of impending disciplinary proceedings against her for gross misconduct. The allegations included verbally abusing a senior manager and fraudulently receiving the sum of K 3,500.00 from a client, an amount she allegedly failed to remit to the respondent. Exhibited to the affidavit as "FC l" is the proof of payment to the complainant. 11. It was his averment that the complainant returned to ,vork on 14th January 2019, having been absent without official leave since 271 December 2018. h Upon her return, she failed to provide a satisfactory explanation for her absence. According to the deponent, the complainant had colluded ,vith a Human Resource Officer, a Ms. Malambo by sending a signed resignation letter via WhatsApp. The letter, marked "FC2", and dated 31st December 2018, stated that her effective resignation date was 25th December 2018. JS It also indicated that she would be on leave from 1st to 30th January, 2019 which did not make any logical sense. 12. It later came to light that Ms. Malambo further connived with the complainant and completed a leave form on behalf of the complainant dated 14th January, 2019 with leave commencement date of is1 January, 2019 to 31st January to facilitate the complainant getting paid for January 2019 and to comply with the requirement of one months' resignation notice. In addition, the complainant got advances against her gratuity and leave days for the 2015 to 2017 contract. Exhibited as "FC3" are the proof of the advance payments. 13. According to the terms of the contract, any overtime worked was to be converted into off days and could not be redeemed for cash. The deponent emphasized that from 14th January 2019 onward, the complainant was not heard from and made no attempt to approach the respondent's office to assert any claims because she was aware that all her dues had already been settled. The deponent denied the assertion that overtures or promises were made to pay the complainant. When the complainant submitted a demand letter on 25th July 2019, the respondent made it clear that there were no outstanding payments. 14. The deponent acknowledged that it was observed that K 3,000 was still owed to the complainant that was erroneously deducted as an advance. Notwithstanding, the complainant had not provided details of her claims namely leave days, approved overtime, salary arrears and gratuity. J6 15: According to the deponent, the complainant's contract was lawfully terminated by resignation. In the circumstances, the complainant is not entitled to any of the reliefs claimed in her notice of complainant. Trial course 16. The complainant testified on her own behalf and called no other ·witness. The respondent also called one witness. 17. The complainant testified that she initially joined the respondent as a volunteer in 2011 before being formally employed in 2012 as a Personal Assistant. She was eventually promoted to the role of Events and Booking Coordinator. When the respondent expanded its operations to include a lodge, she assumed additional responsibilities, including attending to guests and effectively acting as the lodge manager. The respondent had assured her that she would be appropriately compensated for these added duties and overtime. 18. Subsequently, in 2017, the complainant ,vas awarded another two-year contract as Events and Marketing Officer. She did not complete the contract as she chose to resign on 1st December, 2018. At the time of her resignation, the respondent was experiencing financial difficulties and was reportedly strnggling to pay staff salaries due to reduced funding from its sponsors. 19. On or about 51h January, 2019, the complainant received a call from the Human Resource Officer informing her that her original resignation letter had been misplaced. In response, she submitted a copy of the letter to both the Human Resource Officer and the respondent's new Executive Director. J7 · The complainant explained that she continued working until 30th January, 2019 because the second letter she submitted constituted a fresh resignation. She said she worked the first two weeks and was on leave the last two weeks of January. 20. To justify her overtime claims, the complainant pointed out that the respondent had a biometric scanner which kept record as ·well as a hard cover book where the extra days and overtime were recorded. The said records were kept by the human resource office pending approval by the respondent's director. 21. In response to the respondent's allegation that she fraudulently received K 3,500.00 from a client intended for the respondent, the complainant reiterated that she was genuinely paid by the client for decorating services which service she carried out outside her regular w·orking hours. When the client later opted to handle the decorations themselves, they instructed the her to transfer the funds to the respondent as part payment for hiring the respondent's venue. The respondent recovered the sum from her salary. 22. The complainant testified that she was claiming unpaid gratuity and related entitlements. Under the 2013 to 2015 contract, she was claiming gratuity of K 16,800.00. She was claiming gratuity and leave in the sum of K 32,500.00 as ,vell as the sum of K 38,250.00 for overtime under the 2015 to 2017 contract. She was also claiming K 22,083.00 for over time, K 7,708.00 for leave days and a balance of K 1,543.80 on gratuity under the 2017-2019 contract. JS 23'. On salary arrears, it was her testimony that she was paid the January, 2019 salary but this was later deducted from her as payment in lieu of notice. she referred Court to exhibit "CM7". 24. During cross-examination, the complainant acknowledged that clients were issued quotations and receipts by the accounts office. The complainant conceded that the Finance Manager did question her about the K 3,500.00 she received from the client. She also accepted that she did not surrender the money to the respondent after the query. Further, she confirmed that her salary during the period from 2013 to 2015 was K 3,500.00. 25. She denied the assertion that she resigned because she was informed that she had committed a dismissible offence. She also refuted any kno,vledge of an impending disciplinary hearing. The complainant confirmed that while her resignation letter is dated 31st December 2018, its effective date ,vas listed as 25th December 2018. She acknowledged the discrepancy and explained that this was an earlier draft she had prepared. 26. On her claim for overtime, the complainant stated that the respondent did have overtime forms but that she had not submitted any in evidence. She also stated that overtime had to be authorised by the supervisor and the director had to approve the overtime form. 27. On gratuity, she stated that she enlisted the help of a colleague to help her ascertain the amount due. J9 28: When queried regarding her claim for leave days, the complainant acknowledged that leave of more than five days had to be approved by the Centre Director or human resource personnel. The complainant maintained that she followed the respondent's company procedure when she applied for 2 weeks leaves and it was approved. She accepted that the amount of K 7,708.00 was inaccurate as she took 14 days and remained with 10 days. 29. The complainant was then queried in detail about the various amounts she was claiming. She confirmed that her claim for K32,500 included leave pay amounting to K 11,900.00 as she never took leave during the period in question. She confirmed that her basic salary from 2017 onwards was KS,000 and that she resigned whilst serving under the 2017 to 2019 contract. When referred to page 24 of the respondent's bundle of documents, she confirmed that it was contract benefits confirmation in the sum of K 28,725.00 which was approved by human resources. She also confirmed receipt of K 7,725.00 and K 4,280.00. 30. When referred to page 16 of the respondent's bundle, the complainant confirmed that she was paid the K 17,000.00 gratuity. She acknowledged that she took leave from 26th December, 2017 to 51h January, 2018. Despite the queries of the amounts claimed, complainant maintained that her claim for K 32,500.00 was not wrong because gratuity was not taxed. She, however, conceded that she did not raise any concerns to the finance department about NAPSA deductions. JlO r. 3 In re-examination, the complainant told court that there was no record that she ,,vas paid gratuity for the 2015 to 2017 contract. She stated that any salary advances received were deducted by the respondent. She also told court that she did not have any documents pertaining to the overtime claim as the books were kept by the respondent. 32. With regard to her resignation the complainant clarified that this had nothing do with any impending disciplinary action. She resigned because she got a new job as the respondent was not consistent in paying salaries. 33. Respondent's \vitness was Authur fvlwale, the Human Resource Manager. He confirmed that the complainant was formerly employed as a Marketing Officer by the respondent. The complainant's salary for her initial contract was K 3,000.00 and gratuity \Vas to be paid at the rate of20°/o. This amount was paid. He explained that allo,,vances were not taken into consideration when calculating gratuity. This was the reason the complainant's gratuity for that period was not be calculated based on the sum of K 3,500.00. 34. It \Vas his testimony that another sum of K 12,000.00 was paid in 2015 and this was after deducting two advances totaling K 6,000.00. For the 2015 to 2017 contract, the complainant was entitled to K 21,600.00 calculated as K 4,500 x 24 x 20%. This amount was paid. In addition, reference was also made to pages 16 and 17 of the respondent's bundle of documents which indicate gratuity payment of K 17,000.00 and Kl,000.00 respectively. He highlighted that since the complainant resigned, she was not entitled to gratuity on the last contract, however, she was still paid. Jll 35." On the complainant's claim for leave days, the witness testified that the complainant was paid her leave dues and had no days left. 36. As regards overtime, he explained that an employee had to submit a form in addition to obtaining approval from a supervisor. An employee who worked overtime was compensated through time off. Clause 6 of her contract prohibited payment of overtime. It w·as therefore procedurally incorrect for the complainant to claim K 32,000.00. 37. The witness further testified that when the complainant was queried over the K 3,500.00 for which she did not issue a receipt to the client, she opted to resign. Emphasis was placed on the fact that the complainant's resignation was irregular as it was sent through WhatsApp. According to the witness, this mode of communication was only used if one was incapacitated. 38. When cross examined, the witness stated that he joined the respondent in August, 2019 after the complainant had left. Fortunately, he was able to refer to the records kept by the respondent regarding the complainant's employment history. He stated that the complainant did receive some gratuity advances according to the respondent's records. He conceded that he did not have any document indicating that the complainant received overtime pay. He acknowledged that there was a possibility that the complainant worked overtime. 39. In further cross examination, the ,¥itness conceded that Ms. Malambo had authority to approve leave applications and not the director. He further J12 conceded that the salary advance of K 3,000.00 dated 31 May, 2018 was st not supported by any evidence. He maintained that although the K 3000.00 was an error, the other amounts the complainant received were not errors. He could not confirm what amounts were deducted from the complainant's account. He stated that according to the contractual terms, the payment of K 17,000.00 \Vas an error. Submissions 40. Counsel filed submissions on behalf of the respondent which begun by giving a succinct background. Counsel also took cognizance of the fact that the burden of proof lies on the party who substantially asserts the affirmative issue. 4 1. With regard to salary arrears, the gist of the submissions was that the respondent discharged its duty to pay its employees their wages and this included the complainant. Meanwhile, the complainant had failed to prove to this Court that she was not paid the aforementioned salary arrears as there was no evidence to rebut the evidence produced by the respondent in its bundle of documents that she was paid. 42. In terms of the claim for leave days, counsel submitted that pages 16, 17, 22,23 and 24 of the respondents bundle of documents show that the complainant was paid K 5,000.00 for 24 days, K 416.67 and the rest of the pages indicate the complainant was paid leave from 2015 to 201 7. In the premises, it was submitted that the claim for leave days must fail as it was not substantiated by the complainant. J13 43: On overtime, Court's attention was drawn to the case of Tarmac Roadstone Holdings v. Peacocklll which emphasised that for overtime to be part of normal working hours, it has to be obligatory on both sides. Counsel's contention was that although the complainant was claiming for overtime, clause 6 of both the 2015-201 7 and 2017-2019 contracts clearly outlined that an employee who worked beyond normal working hours would not be paid overtime but given days off as compensation for overtime hours. 44. It was further contended that although the complainant claimed that she used to be on duty from 21 to 05 hours during overnights, such claims must be authenticated by claim forms which have been approved by the supervisor. In this case, the complainant conceded that she did not submit any claim form. To further buttress the argument, counsel cited the case of Tom Chilambuka v. Mercy Touch Mission121 in which the Supreme Court guided that an employee must perform his work outside the scheduled hours and such work must be recognized and approved by the employer as being outside working hours. It was therefore submitted that the complainant was not entitled to any overtime payment as it is not provided for in the contract of employment. 45. Turning to the issue of gratuity, reliance was placed on the definition of gratuity in section 3 of the Employment Code Act, 2019. It was submitted that the complainant's claims for gratuity for her contracts from 2013 to 201 7 were based on wrong calculations. This was in view of the fact that the complainant obtained numerous advances against her gratuity. Further it was submitted that page 23 of the respondents bundle of documents indicates that she was duly paid her gratuity. It was thus Jl4 · submitted that this claim lacked merit and the Court was implored to dismiss it. 46. The submissions also addressed the complainant's breach of her duty of fidelity. Reliance was place on the case of Nottingham University v. Fishel13J and the learned author of Selwyn's Law of Employment. The gist of these authorities ,:vas that an employee who takes a bribe or a secret commission is in breach of their duty of fidelity and may be liable to the employer for profits made in such circumstances. 4 7. In light of the forgoing, it was submitted that despite suing the respondent, the complainant was actually in breach of contract as she breached her duty of fidelity. It was counsel's further submission that although deductions from the complainants pay were done to recover what she owed the respondent, the complainant upon her resignation was paid all her dues by the respondent. 48. The rest of the submissions highlighted the fact that the complainant had the opportunity to challenge the respondent's evidence and that she had failed to discharge the burden of proof. Court was thus implored to dismiss the claims for lacking merit. 49. Regarding costs, counsel dre\:v Court's attention to the case of Zambia National Commercial Bank v. Joseph Kangwal4 which guides that a party J should only be condemned in cost if they have been guilty of misconduct in prosecution or defence of the proceedings. Predicated on this authority counsel's contention was that each party should bear its own costs. JlS · Considerations and decision 50. I have given careful consideration to the evidence presented by both parties, the submissions by the respondent and the authorities cited therein. From the evidence, it is uncontroverted that the complainant worked for the respondent in various capacities, her last role was that of Events and Marketing Officer under a contract valid from 10th August, 2017 to 9th August, 2019. It is also undisputed that the complainant exercised her contractual right to terminate her contract of employment by resignation. 51. In terms of the effective date of resignation, the evidence is not very clear. The complainant claims that the respondent lost her first resignation letter tendered on 1 December, 2018 and that she had to serve fresh notice upon st resubmitting the resignation letter. She, however, did not dispute the assertion that she worked up to 27th December, 2018 and that she was nowhere to be seen until 14th January, 2019. The respondent also did not dispute the complainant's assertion that she worked up to the month end of January, 2019. As such, I find that 31st January, 2019 was the complainant's last day of work. I am fortified in my resolve by the fact that she received her full January salary through the February, 2019 pay statement. 52. I further have no qualms in accepting that during the month of January, 2019, she was away on leave for 14 days as asserted by her. 53. The complainant claims that the respondent did not pay her terminal dues. The respondent's position is that it discharged its duty towards the complainant and, therefore, owes her nothing. Thus, the question I ask J16 · myself is whether or not the complainant is entitled to the claims as outlined in the notice of complaint. 54. Before I delve into the claims, I find it imperative to point out that at the time the complainant was resigning in December, 2018 or January, 2019, the Employment Code Act of 2019 had not come into being. As such, it is not applicable herein. The applicable law is the repealed Employment Act, Chapter 268. Salary arrears 55. The complainant contends that she is owed salary arrears for the period from August to December, 2018 as ,:veil as January 2019. However, as already found, she was paid the January, 2019 salary. The February pay statement clearly shows a basic pay of K 5,000.00 as well as pay in lieu of notice in the sum of K 5,000.00. Quite clearly, the respondent realised that it had erroneously effected pay in lieu of notice in January. 56. The respondent did concede that the complainant was owed September, 2018 salary in the sum of K 4,280.00 and did in fact prove that the same was paid to her. Before Court is a letter (at page 18 of its bundle) showing that the bank was instructed to pay the complainant the said amount. Further, the benefits confirmation document (at page 23) indicates that the respondent took into account the said amount when calculating the complainant's dues. 57. As for the months of August and October to December, 2018, the complainant did not provide any supporting evidence for the alleged salary Jl7 arrears. The demand letter authored by her (at page 21 of the respondent's bundle) does not include any claims for salary arrears for August through to December, 2018 or for any of the years with the respondent. 58. Given that the burden of proof rests on the complainant, I am disinclined to find in her favour. The claim for salary arrears is accordingly dismissed. Gratuity 59. The complainant's argument was that she was owed gratuity under the 2015 to 2017 and the 2017 to 2019 contracts. She did however, conceded that she received K 21,600.00 for the 2015 to 2017 contract and K 17,000.00 under the uncompleted 2017 to 2019 contract. The respondent vehemently denied this claim and pointed out that the complainant took several advances against her gratuity during the course of her tenure and was paid the balance. 60. I have carefully considered the opposing arguments. The starting point is that the complainant's contracts did provide for gratuity. The clause in both contracts read: The employer· will pay you gratuity at the rate of 20% of the annual gross salary upon your successful completion of the tenn of the contract. The last gross salary received by the employee shall be used when computing the gratuity. Gratuity shall not apply to the following: (i) Proof of partial performance of the duration of the contract (ii) Gross misconduct of the employee. Jl8 61: As for the 2015 to 2017 contract, it is quite clear that the amount due was K 21,600.00 and this is what was received by the complainant. It is also clear that the respondent deducted a total of K 21,000.00 as gratuity and salary advances. However, as correctly admitted by it, the K 3,000.00 deduction dated 31st May, 2018 was erroneous. 62. The complainant claims that the salary advances shown on the benefits form at page 23 had already been recovered under the 2013 to 2015 contract, However, there is no proof of this recovery. The onus was upon the complainant to establish this. The contract for the said period is not before Court and it is therefore unknown if the complainant was entitled to gratuity in that period from which advances could have been recovered. It is to be noted that during the period, gratuity was not mandatory but was paid at the employer's discretion. In the circumstances, I am not satisfied that there is any gratuity balance due under the 2015 to 2017 contract. 63. As regards the 2017 to 2019 contract, it has been shown that the complainant was paid a sum of K 17,000.00. The respondent did highlight that the amount was paid in error. I have no qualms accepting this submission because the clause on gratuity cited above clearly shows that gratuity was only payable upon successful completion of the contract. As the evidence has shown, the complainant resigned about 7 months before expiration of the contract. It is worth mentioning that since gratuity was not mandatory then, it was paid in accordance with the terms of the contract. Thus, strictly speaking, the complainant \Vas not entitled to any payment. )19 64: I have not overlooked the complainant's argument that her gratuity was taxed and as a result, she received less than what she was entitled to. I am at pains to understand this assertion. The January pay statement which carries the K 17,000.00 gratuity shows that the only taxable pay was K 5,000.00. As such, I do not accept this assertion for want of merit. 65. In light of the above, I am not persuaded to find that the complainant is still owed gratuity. If anything, she received more than she was entitled to. The claim is bereft of merit and is dismissed accordingly. Leave days 66. It is settled at law that an employee is entitled to accrued benefits regardless of the mode of exit from employment. The complainant's contract of employment provided for leave at the rate of 2 days per completed month of service. The complainant is claiming leave for 2012 to 2013, 2013 to 2015 and from 2017 to 2019. The respondent argued that the complainant is not entitled to such pay as the clause on leave in the employment contract provided that leave shall not be converted into cash. 67. I have considered the opposing arguments. I have noted that the clause concerning leave in the last contract signed in 2017 is phrased differently from the earlier one signed in 2015. The 2015 contract indeed stated that leave shall not be converted into cash. However, section 15(5) of the repealed Employment Act, Chapter 268 (in force at the time) provided for payment for accumulated leave days. The clause in the complainant's contract, therefore, contravened statute and cannot take preeminence. J20 · Notwithstanding, the onus still remained on the complainant to prove her claim. 68. Although the complainant is claiming leave from as far back as 2012, the claim was not supported by evidence. She did not produce evidence to show that she never proceeded on leave or had unutilized leave days from 2012 to 2015. 69. The record shows that the complainant was paid K 5000.00.00 and another amount of K 416.67 through the Januruy and February, 2019 pay statements. The leave application form in the respondent's bundle reveals that the complainant took 10 days annual leave. The complainant further asserted that she took 2 weeks (14 days) leave in January, 2019. I am alive to the fact that the respondent challenged this leave form for being fraudulently completed to cover up for the complainant's absence. Ho\vever, I have decided not to concern myself with the fraud aspect but rather to take the form as proof that the complainant did not work from 26th December, 2017 to 5th January, 2018 as she proceeded on leave. 70. Thus, for the period from August, 2015 to August, 2017, the complainant had 48 days and had 33 days from August, 2017 to January, 2019. She took 24 days leave which leaves only 57 days. This entails that she was owed a total of K 10,961.54 (K 5,000 x 57 /26) less the K 5,416.67 already paid bringing the balance to K 5,544.87. However, in light of the K 14,000.00 that the respondent paid towards gratuity (K 17,000 - K 3,000 erroneously deducted) that the complainant was not entitled to, I am disinclined to order any further payment for leave. J21 71: All in all, the claim for leave fails. Overtime 72. The complainant's contention v,ras that she was entitled to payment for the hours she worked outside the normal working hours. Conversely, the respondent argued that any such overtime was not authorized or sanctioned and, therefore, not compensable. 73. A review of the employment contracts on record indicates that the complainant's standard working schedule was 48 hours per week. Given the nature of the respondent's operations, it is conceivable that the complainant may have worked in excess of these hours. 74. The complainant, when queried, conceded that she did not have any documentary evidence to buttress her claim for overtime. In the case of Tom Chilambuka v Merch Touch Mission (supra) which was cited by the respondent and is reproduced for emphasis, the Supreme Court stated that: Coming to the claim for overtime, th.e law merely provides a rate of payment to an. employee where such employee has actually worked outside the scheduled worlo.ing hours. To be entitled to that rate, an employee must perform his work outside the sch.eduled hours and such work must be recognized and approved by the employer as being outside th.e scheduled working hours. 11te approval by the employer is important. For example, an employee who decides to perform the tasks assigned to him after scheduled working hours when h.e could have performed them during the scheduled working hours cannot be entitled to payment of overtime allowance; in such a case the employer will be justified not to approve the claim for overtime payment. J22 75: As alluded to, the complainant did not substantiate this claim with any compelling documentary evidence. This is with regard to both the days that she worked and any approval by the respondent for her to proceed with the overtime she posits to have worked. Furthermore, the contracts in clauses 5 and 6 are clear that the complainant was not to receive payment for overtime but was to take off duty days as compensation. 76. I, therefore, find no merit in this claim and I dismiss it accordingly. Conclusion and order 77. In a nutshell, the complainant has not proved to the Court's satisfaction that she is still owed terminal benefits. As such, the entire complaint is dismissed for want of merit. 78. Each party shall bear own costs and is informed of the right to appeal. Delivered this 30th day of September, 2025 U8UCO,: CO\JfU F HIGH COURT J23