Florence Chanda Tembo v Nkhwazi Primary School (COMP/IRCK/615/2021) (23 September 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA COMP/IRCK/615/2021 AT THE PRINCIPAL REGISTRY INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA BETWEEN: AND Coram: Chigali Mikalile, J this 23rd day of September, 2025 For the Complainant: Mr. J.C. Kalokoni & Mr. L. Kirnena - Messrs Kalokoni & Co. For the Respondent: Mr. C.M. Sianondo & Ms. S. Ternbo - Messrs Malarnbo & Co. JUI>GJ.VIENT. --------------------·---·-- J,.,E;gislation. refened to, l. The Employment Code Act No. 3 of 2019 Cases referred ta: l. S v. Makwanyane CCT3 / 94( 1995) ZACC3 2. Klrnmalo and Others v. Holomisa (2002) ZACC (5) SA 401 3. Carmichael v. Minister of Safety and Security (2001) (4) SA 938 4. Nancy Law v. Minister of Human Resources Development (1999) SCR 497 5. Chilanga Cement v. Kasote Singogo (2009) ZR 122 6. Kitwe City Council v. William Nguni (2005) ZR 57 7. Micheal Kahula v. Finance Bank Zambia Limited, Appeal no. 96/2012. 8. Maamba Collieries Limited v. Mudenda Ngandu, SCZ Appeal No 8. of 2005 9. Malik v. Bank of Credit and International SA ( 1977) 10. Council of Scientific and Industrial Research v. Figen, (314/ 1994) [1995] ZASCA 143 11. Standard Chartered Bank Plc v. Celine Nair, Appeal No. 14 of 2019 12. Western Excavating (ECC) Limited v. Sharpe (1978) IRLR 13. Nitrogen Chemicals of Zambia Limited v. Boyd Chomba Mutambo & others, Appeal No 75 of2014 14. Zambia National Building Society v. Ernest Mukwamataba Nayunda SCZ Judgment No. 11 of 1993 15. Zambia telecommunications Company Limited v. Eva Banda CAZ Appeal No.2 of 2017 16. Chansa Ngonga v. Alfred H. Knight (Z) Ltd SCZ selected Judgment No 26 of 17. Wadham Motor Group v. Wells (EAT 1048/95) 18. David Banda v. The Attorney General, Appeal No. 233 of 2020. 19. Josephat Lupemba v. First Quantum Mining and Operations Limited CAZ Appea1No120/2017 Text referred to: Mwenda, W.S. & Chungu, C. A Comprehensive Guide to Employment Law in Zambia, 2021, UNZA Press Introduction 1. At the heart of this action is the issue of constructive dismissal. The linchpin of this type of dismissal is that the employee must prove that the employer's actions left him no reasonable alternative but to resign. The complainant claims that this was exactly what happened in this case. The respondent, on its part, vehemently disputes being the reason for the complainant's resignation stating that the complainant was happy to be part of the respondent's team and that this was demonstrated through her application for renewal of her contract. 2. The background to this case is that the complainant was employed by the respondent as a Financial Controller. After completing her first contract, she renewed it for a further term of two years. Meanwhile, the respondent appointed a new chairman to its board with whom the complainant claims she had difficulty working. According to the J 2 complainant, the chair created a hostile environment and subjected her to sub human and inhumane treatment. Unable to continue working under such circumstances, she resigned from work. She then took out this action for the following reliefs: (i) A declaration that she was constructively dismissed from employment; (ii) Payment of thirty six (36) months' salary or such higher amount as the Court may deem fit as damages for loss of employment; (iii) Damages for mental torture, distress, pain, suffering, anguish and inconvenience inflicted on the complainant; (iv) Any other relief the Court may deem fit; (v) Interest on the sum due. 3. In its answer, the respondent denied the allegations against the board chairperson and maintained that the complainant is not entitled to the reliefs sought. Affidavit evidence 4. In the affidavit in support of notice of complaint, the complainant deposed that she was employed by the respondent as Financial Controller on a two-year fixed term contract (exhibited as "FCTl") from 20th October 2017 to 19th October 2019. It was· renewed for another two years from 20th October 2019 to 31st October, 2021. The fresh contract and accompanying conditions of service are exhibited as "FCT2" and "FCT3" respectively. Under the conditions of service, the complainant's direct supervisor was the head of the school. 5. In May, 2020, the Nkhwazi Educational Trust (hereinafter referred to as NET) appointed a new board chairperson called Mr. Ramaswamy. According to the complainant, the new chair was actively involved in daily operations and assumed supervisory authority over her in financial matters, including purchases and payments, which were J 3 predominantly decided by him. Consequently, the complainant as the Financial Controller was not authorised to approve or sign any purchase or payment without prior approval of the chair. Further, he began scrutinizing her performance and embarked on a fault-finding mission and frequently communicated with her at inappropriate hours. The complainant subsequently raised concerns about the chair's conduct and language with the head of the school and later discussed the matter directly with the chair and he apologized. 6. Nevertheless, the chair's treatment of her only worsened over time. She cited specific instances where she was belittled and humiliated by him. Ultimately, he undermined her authority conveying that he considered her worthless. She submitted exhibits "FCT6" to "FCTl 9" to demonstrate his micromanagement, noting that his actions kept her pre-occupied with straight forward and trivial issues, causing significant stress and distress. Her health was affected leading to high blood pressure. 7. In January 2021, the board chair continued his conduct and further instructed her to share her talk time incentive with the deputy head, which she declined to do. As a result, he declined to sign petty cash vouchers reimbursing her for talk time expenses. Further, the chair, through the vice chair, directed that from August 2021 onward, gross pay for expiring contracts be split 55% basic pay and 45% housing allowance, as shown in exhibit "FCT31". This change effectively reduced staff gratuity and leave pay, which were calculated based on basic pay. 8. The remainder of the affidavit outlines the complainant's continued unpleasant encounters with the chair. It was her averment that she J4 brought these matters to the attention of the head of the school who informed her that there was nothing he could do as the chair was his supervisor. When her concerns remained unaddressed, she tendered st her resignation on 1 September 2021 (exhibit "FCT42"). On 27th September 2021, she attended an exit interview with the Human Resources and Administrative Office, during which she detailed the circumstances that led to her resignation. The exit questionnaire is exhibited to the affidavit as "FCT45". 9. The complainant contends that she was compelled to resign despite not having secured alternative employment, which resulted in a loss of income critical to supporting her family and dependents. She further emphasized that the relationship of mutual trust and confidence between herself and the respondent had irretrievably broken down, leaving her with no viable option but to terminate her employment. 10. The affidavit in support of answer was deposed to by the board chairperson, Mr. Rangaramanujan Ramaswamy. He deposed that prior to the expiry of the contract dated 20th October, 2017 the complainant applied for a renewal of her contract for a further term of two years which application was accepted by the board as indicated in the exhibit "RRl". 11. On 15th July, 2021, the complainant applied for renewal of her i),,," contract which was to expire in October, 2021. However, on 1st September 2021, before the board could convene to discuss the complainant's application, the respondent received the complainant's resignation letter. In it, she expressed gratitude to both the board and school management for their support during her tenure as Financial Controller. JS 12. The deponent averred that the complainant's duties included promoting best practices, ensuring timely submission of monthly and other reports and safeguarding the funds she was entrusted with. He explained that the respondent's structure requires the Financial Controller's fiscal responsibilities to be directly accountable to the board chairperson who must authorize payments before processing. Administrative functions, however, fall under the head of the school. He referenced exhibits "FCT6" to "FCTl 9" in complainant's affidavit to show that the complainant was responsible for approving payment vouchers. 13. The deponent denied psychologically threatening the complainant or requesting financial statements she hadn't finished reviewing. He asserted that it was her duty to ensure the statements were accurate before submitting them to the auditors. According to him, since he was not a full-time employee of the respondent, he was only able to attend to work relating to the respondent during lunch or in the evening after knocking off from his full time job. This is the reason he would send instructions on items that needed attention in, the evening to members of staff including the head. It was his understanding and intention that the issues raised by his correspondence would be attended to during working hours and not immediately the messages were sent as evidenced by exhibits "RR3-4" which bear no demand for immediate response. 14. The deponent acknowledged that the complainant had expressed discomfort with receiving messages at odd hours. He clarified his intentions and expectations, emphasizing that he used no inappropriate language and did not disrespect the complainant. He further asserted that the messaging issue and the audit delay were unrelated incidents. J 6 He denied attributing the delay of the audit to the complainant. He stated that, according to the auditors, the audit's conclusion was postponed due to the late submission of the trial balance. He emphasized that the complainant was responsible for preparing the necessary information for the auditors. 15. The deponent maintained that his identification of anomalies in the financial records submitted by the complainant did not constitute disrespect or the use of inappropriate language. He merely sought clarification on the principles applied by the complainant and her subordinates in arriving at certain figures. He further denied ever considering the complainant worthless, explaining that his intention was to encourage greater efficiency in her duties. While the complainant may have perceived his guidance as demeaning, he clarified that it was meant to be constructive. He noted that if the respondent truly undervalued the complainant or found her performance unacceptable, she would have faced dismissal. However, no disciplinary action was taken against her. 16. The deponent further cited specific instances in which he sought clarification from the complainant, detailing the reasons and errors that prompted his inquiries. He emphasized that contrary to the complainant's assertions, she was not being singled out, as he had also questioned other staff members within her department. He referred to payment vouchers "RR6-8" which were not prepared by the complainant but were nonetheless subject of his scrutiny. 17. Regarding talk time allowance, the deponent explained that it was intended to facilitate follow-ups on school fees payments. Accordingly, he requested that the complainant allocate a portion of the talk time to J7 the deputy head of the school. He also noted that the complainant was earning more than the deputy head, her superior and clarified that he merely pointed this out without altering the complainant's salary in any way. 18. He highlighted that staff members had agreed to a temporary salary reduction during the period when the respondent was operating below full capacity. However, this reduction was ultimately not implemented. He clarified that the board, through its vice chairperson, provided guidance to the school management on how to proceed with employee remuneration. It was deposed that the complainant's contract was not affected as it was not among those scheduled to conclude in August 2021. The deponent emphasized that the changes to the remuneration policy were intended to apply uniformly across all contracts. At the time of her contract renewal, the complainant had the option to accept or decline the revised terms. 19. According to Mr. Ramaswamy, he had requested a meeting with the complainant and expressed regret that she felt aggrieved by the interaction. He explained that he believed the complainant could still be trained to perform her duties effectively and that his actions were in line with his responsibilities, particularly regarding the authorization of payments. He firmly denied the allegation that the complainant was 'thrown on the street' clarifying that her contract was due to expire in October 2021. Its renewal was subject of board approval and not automatic. 21. In reply to the respondent's affidavit, the complainant clarified that her expression of gratitude to the · board was merely a gesture of J 8 appreciation and courtesy toward members with whom she maintained cordial relations. She reiterated that her designated supervisor was the head of the school. However, the chair had effectively taken over the operations of her office. Even where financial analyses were conducted by her, they were submitted to the chair for scrutiny and clarification before any payment vouchers or cheques could be processed. 22. The complainant deposed that the chair had no authority to send text messages to her during awkward hours of the night, especially knowing that she would be unable to respond to the queries immediately. She emphasized that any concerns from him ought to have been communicated through the formal channel, namely email, so that the relevant officers could appropriately address them. 23. The complainant maintained that the chair had used unpalatable and inappropriate language in one of his messages which she found unacceptable. She reiterated that he appeared to be preoccupied with frustrating her professional efforts. Yet at the time of the chair's appointment, the complainant had served the respondent for two and a half years without any reports of financial mismanagement. The complainant further reiterates that she was subjected to ill-treatment by the chair who fostered a hostile and acrimonious work environment and that she brought these issues to the attention of the head. The affidavit details that the complainant did not provide the school with three months' notice as the respondent's conditions of service had been revised to align with the Employment Code Act No. 3 of 2019, as evidenced by exhibit "FCT 2", the minutes of the board meeting held on 20th May, 2021. The revised conditions required her to give one month's notice. J 9 Trial course 25. Only the complainant testified. The respondent could not secure the attendance of its witness. 26. The complainant testified that she joined the respondent as Financial Controller in October 2017. During her tenure, she served under two contracts, the first expired in 2019 after which she was issued a second contract that was set to expire on 31st October 2021. She resigned in September, 2021. 27. It was her evidence that the respondent operated under a tripartite reporting structure comprising the Nkhwazi Educational Trust (NET) which served as the supreme governing body, the board, and the school management. She explained that the board chair reported directly to the NET while the school management, through the Head, reported to the board. At management level, the hierarchy consisted of the Head, the Deputy Head, and the Financial Controller. 28. In her capacity as Financial Controller, the complainant was formally required to report to the head. However, the chair, Mr. Ramaswamy, unilaterally assumed supervisory authority over her in matters relating to finances, procurement, and payments. She referred to Exhibit "FCT45", an exit questionnaire, which documented her reasons for leaving employment. In the document, the complainant cited a hostile and unhealthy work environment created by Mr. Ramaswamy as the primary reason for her resignation. She emphasized that the form detailed her inability to perform her duties independently or make decisions within her scope of responsibility. Her role, she J 10 explained, had been reduced to merely rubber-stamping decisions made by Mr. Ramaswamy. 29. The complainant testified that she received SMS messages from Mr. Ramaswamy which, 1n her view, questioned her professional competence. She stated that these communications were often sent at inappropriate hours and contained unpalatable language. Furthermore, Mr. Ramaswamy interfered with her duties by requesting access to financial documents, such as financial statements, before they were properly finalized. The complainant also referred to handwritten notes from Mr. Ramaswamy that she considered intrusive and undermining. 30. According to the complainant, her relationship with Mr. Ramaswamy was acrimonious, lacking mutual respect and trust and characterized by hostility. Her reporting of the matter to the Head and the NET did not yield any results. The complainant emphasized that despite being a qualified accountant with ACCA certification, holding a Master's degree in Business Administration and possessing over 15 years of professional expenence, her role was subjected to micromanagement and undue scrutiny. 31. Under cross-examination, the complainant confirmed that Mr. Ramaswamy demonstrated a better understanding of accounting matters than the previous board chairman who was an engineer by profession. 32. When referred to exhibit "FC21", the complainant denied ever admitting to professional incompetence. She acknowledged that Mr. Ramaswamy was within his rights to inquire about payments that required his approval. She further conceded that, despite some errors J 1n documentation, Mr. Ramaswamy neither charged her with misconduct nor recommended her removal. 33. The complainant accepted that the renewal of her contract was at the discretion of the respondent. She confirmed that she resigned one month prior to the expiry of her contract. The complainant explained that her decision to resign was based on multiple factors which she elaborated in her exit questionnaire. 34. Further in cross examination, the complainant affirmed that she was seeking damages for mental stress and anxiety although she had no documentation to show that she received medical treatment. The complainant also affirmed that the respondent did not make any adjustments to her salary throughout her tenure. 35. When re-examined, the complainant told court that the respondent never formally notified her of the discontinuation of her talk time allowance which is why she continued to receive it. On her contract renewal, she told court that she applied with the hope that the NET would consider her situation and address her concerns about working with the board chairman. Submissions 36. Mr. Kalokoni, for the complainant, begun by submitting on the value of human dignity and its place in constructive dismissal. Various international cases were cited on this aspect. These are South African cases of S v. Makwanyanel1l, Khumalo and Others v. Holomisal2l and Carmichael v. Minister of Safety and Security{3l as well as the Canadian case Nancy Law v. Minister of Human Resources J 12 Developmentl41. These authorities underscore that human dignity reflects the inherent worth of every individual in society. 37. Counsel then zeroed in on constructive dismissal. He relied on the landmark case of Chilanga Cement v. Kasote Singogol51 wherein the apex Court held that in constructive dismissal, an employee leaves employment promptly by notice as a result of the conduct of his employer. The court further held that an employee can claim to have been constructively dismissed if he resigned or was forced to leave employment as a result of his employer's unlawful conduct which conduct amounts to a fundamental breach of employment. It is the employee who makes the decision to leave. 38. Further reliance was placed on the cases of Kitwe City Council v. William Ngunil61 and Micheal Kahula v. Finance Bank Zambia Limitedl71. In the former case the Court of apex jurisdiction affirmed that constructive dismissal occurs where the employer's conduct amounts to a fundament breach going to the root of the contract. In the latter case, the Court guided that constructive dismissal was a question of fact to be decided on after considering the particular facts of the case. 39. Bolstered by these authorities, Mr. Kalokoni posited that the issues to be determined by this Court were twofold. Firstly, whether the employer's conduct amounted to a fundamental breach of contract and secondly, whether the respondent's conduct reflected our national values namely, respect for the human dignity of the complainant. 40. Counsel submitted that the evidence by the complainant on the insolent, dehumanizing language used by Mr. Ramaswamy when speaking to her remains largely unchallenged. The complainant gave J 13 reasons for her resignation. Counsel contended that it was not enough for Mr. Ramaswamy to merely aver in his affidavit that that allegation made against him were unfounded without adducing evidence in Court to prove this. To this end, he called in aid the case ofMaamba Collieries Limited v. Mudenda Ngandul81. He added that the failure by the respondent to investigate the allegations provided the final straw which made the complainant resign. 41. Counsel's contention was that while Mr. Ramaswamy had the right to question the complainant about her work, this authority ought to have been exercised within the bounds of mutual trust and confidence. He cited the cases of Malik v. Bank of Credit and International SA 191, Council of Scientific and Industrial Research v. Figen!101 and Standard Chartered Bank Plc v. Celine Nairl111 emphasizing that an employer must not act in a way that is likely to damage or destroy the employment relationship. This duty, he noted, may be implied and must not be breached. 42. Relying on these precedents, counsel submitted that Mr. Ramaswamy's use of insolent, demeaning, and derogatory language constituted a serious violation of the complainant's human dignity and the duty of mutual trust and confidence justifying her resignation and claim for constructive dismissal. The kernel of counsel's submission was that human dignity is a judicial value underpinning the right to equal respect and consideration. He argued that the Court has a duty to interpret employment law through the lens of national values, ensuring the protection of workers' dignity in the workplace. On this basis, he urged the Court to award the complainant 36 months' salary as compensation for the abuse she endured at the hands of the respondent. J 14 43. Mr. Sianondo, counsel for the respondent, filed submissions assailing the complainant's exertions. On the issue of constructive dismissal, counsel relied on the cases of Western Excavating (ECC) Limited v. Sharpe1121 and Chilanga Cement v. Kasote Singogol51. This was to highlight the definition of constructive dismissal in this jurisdiction as well as the basic requirement for such a case to be proved. 44. Mr. Sianondo also called in aid the case of Kitwe City Council v. William Ng'uni161 and further relied on Nitrogen Chemicals of Zambia Limited v. Boyd Chomba Mutambo and othersl131. The former case emphasises that the test for constructive dismissal is whether or not the employer's conduct amounts to breach of contract. In the latter case, the apex Court elucidated on the basic requirements for constructive dismissal. In this instance, it was submitted that it was not in dispute that the complainant tendered her resignation on 1st September, 2021. According to counsel the issue is whether the respondent breached the complainant's contract of employment. 45. It was submitted that the newly appointed board chairperson, Mr. Ramaswamy was an accountant by profession, unlike his predecessor. This professional background informed the Chair's approach to financial oversight. He pointed out that the Chairperson was responsible for signing off on payment vouchers originating from the complainant's department which had already been approved by the complainant. He was obligated to personally verify such expenditures prior to authorizing them, given his accountability to the public. J 15 46. Regarding the issue of Mr. Ramaswamy contacting the complainant outside official working hours, counsel explained that Mr. Ramaswamy was not a full-time employee of the respondent and could only attend to institutional matters after completing his regular employment duties. It was further submitted that the Mr. Ramaswamy did not demand immediate responses from the complainant during these interactions. In any case, that grievance was addressed and he ceased the conduct that had been the subject of complaint. 47. It was further contended that chair denied ever disrespecting the complainant or using unpalatable language towards her. Counsel argued that it was not inappropriate for the chair to raise queries regarding payment vouchers as this was done in pursuit of cost-saving measures and financial accuracy. His inquiries were framed as part of his duty rather than personal attacks. 48. Counsel emphasized that the complainant was not being singled out as alleged. Rather, the intention was to ensure that the complainant and her subordinates in the Finance Department maintained accurate and well documented records. It was submitted that whenever the records were complete and properly supported, the chair approved the payments without objection. 49. Regarding the resignation, it was noted that the complainant ~t;c expressed gratitude to the respondent's Board of Management for the support extended to her during her tenure. Moreover, the complainant applied to renew her contract which, according to counsel, indicated her satisfaction with the working environment and her desire to continue in her role. Anchored on the forgoing, it was contended that had the respondent rendered the working relationship intolerable, the J 16 complainant would not have sought to renew her contract. It was argued that her resignation letter did not cite disrespect or psychological abuse as reasons for leaving. 50. Regarding the complainant's reliance on the case of Standard Chartered v Celine Meena Nair (supra), counsel contended that the case is distinguishable. Unlike in that matter, the complainant herein was on a fixed term contract with one month to go before its expiration. In addition, the complainant did not initiate any grievance procedure. Furthermore, the alleged misconduct, including micromanagement, disrespect and psychological abuse was disputed by Mr. Ramaswamy. It was submitted that the complainant failed to identify a definitive "last straw" that prompted her resignation. 51. Counsel argued that although the complainant had shortcomings in her role, she was never subjected to disciplinary proceedings as the respondent believed she could improve with appropriate guidance. Accordingly, it was contended that the respondent did not breach the complainant's contract of employment. 52. The submissions then addressed the claim for damages. It was acknowledged that it is trite law that the purpose of damages was to put the innocent party in the position in which he would have been had the contractual obligation been performed. It was submitted that the ~,, respondent did not breach the complainant's contract of employment, therefore, she was not entitled to damages. However, should the Court find otherwise, counsel submitted that any award should be guided by the precedent in Zambia National Building Society v. Ernest Mukwamataba Nayundal141J 17 53. On the 36 months' salary as damages for loss of employment sought, counsel called in aid the cases of Zambia Telecommunications Company Limited v. Eva Bandal151 and Chansa Ngonga v. Alfred H. Knight (Z) Ltdl161 which counsel quoted at length. Counsel then submitted that the complainant made no efforts to be re-employed by the respondent despite the respondent requesting her to rescind her decision to resign. She had also not given evidence to show what steps she took to mitigate her perceived loss. 54. Furthermore, it was submitted that the complainant failed to adduce evidence substantiating her claims for damages arising from mental torture, emotional distress, pain and suffering. In support, counsel cited the Chilanga Cement case (supra). It was then argued that the circumstances of this case do not warrant the reliefs sought and the action should be dismissed. 55. In reply, Mr. Kalokoni reaffirmed reliance on the Celine Nair case, citing similarities in the use of derogatory language specifically terms such as "nonsensical" and "total rubbish "directed at the complainant. He submitted that the complainant reported the matter to the head of the school and by escalating it to the board chairman effectively invoked the grievance procedure which the respondent failed to investigate. To underscore that such failure constitutes evidence of malice, counsel referred to the Chilanga Cement case. 56. Counsel further assailed the respondent's assertion that the complainant was content with her employment as evidenced by her application to renew her contract. He argued that the application was made in the hope that the board would address her grievance and remedy the situation, an expectation that was ultimately unmet. This, J 18 coupled with ongoing verbal abuse, provided the last straw which led to her resignation. He also disputed the respondent's claim that the complainant, being on a fixed-term contract, was not protected under the law governing constructive dismissal. 57. He emphasized that the complainant did not dispute Mr. Ramaswamy's authority to scrutinize payment vouchers and clarify issues prior to approval. Rather, her objection concerned the manner in which he exercised that authority. Counsel argued that a core principle of the employment contract is the qualified duty of mutual trust and confidence citing Wadham Kenning Motor Group Ltd v. Wel1s1171 in support. In that case, the tribunal upheld a finding of constructive dismissal after determining that the employer had humiliated the sales manager, undermined her authority and made workplace changes within her remit without consultation. 58. In conclusion, the case of Carmichael v. Minister of Safety and Security (supra) was again relied on and Article 8 of the Constitution of Zambia to emphasize the Court's duty to interpret labour laws in line with national values of human dignity, equity, equality, and social justice. It was argued that this case presents an opportunity for the Court to advance the doctrine of constructive dismissal by promoting sustainable labour practices. To reinforce his position, he cited David Banda v. The Attorney Genera111s1. 59. Counsel asked Court to take into account Mr. Ramaswamy's failure to appear before Court to deny the allegations against him into consideration. He beseeched this Court to award the complainant 42 months' salary as damages with interests and costs. J 19 Analysis and decision 60. I have carefully considered all of the evidence presented and skeleton arguments. I am grateful to counsel on both sides for their exertions. The undisputed facts are that the complainant was employed by the respondent as a financial controller on 20th October, 2017. She served the respondent on two fixed term contracts, the last of which was to determine on 31st October, 2021. The complainant, however, decided to resign on 1st September, 2021. It is also uncontroverted that Mr. Ramaswamy was the respondent's board chairperson at the time of the complainant's resignation. 61. The complainant alleges that she was compelled to resign due to a number of breaches of the terms of her contract of employment by the respondent's board chair and the hostile and unhealthy work environment created by him. On its part, the respondent disputes these allegations and states that the chair was merely doing his job and ensuring that the complainant executed her tasks efficiently 62. The issues for determination as I see them, therefore, are as follows: (a) Whether the complainant was constructively dismissed; (b) Whether or not she is entitled to damages for loss of employment, mental torture, distress, pain, suffering, anguish and inconvenience. 63. Before dealing with the questions formulated, I must state that I am mindful that the onus is on the complainant to prove her claims on a balance of probabilities. Whether or not the complainant was constructively dismissed J 20 64. The learned authors of A Comprehensive Guide to Employment Law in Zambia state as follows on constructive dismissal at page 269: ... constructive dismissal occurs when an employee, seemingly on his own volition, terminates his contract of employment by resigning, while the real reason for that action is that he is protesting against management's conduct. For constructive dismissal to be claimed, the employer's conduct must be so serious that it amounts to a repudiation of the contract and the employee must clearly indicate that he is resigning or being forced to leave employment due to such conduct, ... 65. In the case ofKahula v. Finance Bank Zambia (supra) the Supreme Court had this to say on constructive dismissal: If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. He is constructively dismissed. The employee is entitled in these circumstances to leave at the instant without giving any notice at all, or alternatively, he may give notice and say he is leaving at the end of the-notice. But the conduct must, in either case, be sufficiently serious to entitle him to leave at once. 66. In the case of Nitrogen Chemicals of Zambia Limited v. Boyd Chomba Mutambo and Others (supra) the Supreme Court outlined the elements of constructive dismissal when it stated as follows: It is also plain there are three basic requirements for a constructive dismissal claim (1) the employee must resign (2) the resignation must be in response to a fundamental breach of contract (3) the employee must act promptly in response to the breach so that he or she is not taken to have implicitly agreed to continue with the contract. J 21 67. What can be gleaned from these authorities is that an employee can properly claim to have been constructively dismissed if he is forced to resign as a result of employer's conduct amounting to a fundamental breach of the contract of employment. Thus, I ask myself whether or not the complainant meets the threshold for a claim for constructive dismissal based on the respondent's conduct. 68. The complainant's second contract was renewed on 20th October, 2019 and was to expire on 31st October, 2021. It is common cause that the complainant tendered in her resignation on 1st September 2021 indicating 30th September, 2021 as her last day of work. The evidence reveals that the complainant when urged to reconsider her decision was adamant and refused to reconsider. I, therefore, have no hesitation in finding that there was a proper resignation in this case. 69. The second requirement is that the complainant must have resigned as a result of a fundamental breach of contract. The complainant's reasons for leaving employment are clearly indicated in the exit questionnaire exhibited as "FCT 45" and· included: hostile and unhealthy work environment; not being able to do her work independently and properly, her office having been taken over by the board chair; not being able to make any decisions; being micromanaged; use of unpalatable language by the board chair and the disrespect from him; and being psychologically and emotionally tormented leading to stress, high BP and headaches. 70. I have reviewed the evidence of the communication between the complainant and Mr. Ramaswamy, the board chair. An email exhibited to the complainant's affidavit ("FCT 38") shows the chair alleging that the employees 1n the accounts department were working as J 22 postmasters. In another email ("FCT39"), the chair wrote "Did you go through the workings or you are just forwarding it like a ????". Petty cash summaries and payment vouchers (exhibited as "FCT 20 - 28") show that the chair questioned almost all the expenditure. This is not to say that the chair had no right to seek clarifications. However, it is quite clear that in some instances, this was unjustified and excessive. An exaµiple of this are the documents collectively marked "FCT35" regarding a bursary scheme payment. The chair went as far as cancelling a cheque the complainant had properly prepared when he could have easily sought clarification from the head before doing so. 71. It is clear from the documents on record that the complainant as financial controller was being micromanaged and without a doubt subjected to an acrimonious or strained work environment. One would not expect to have words like 'nonsensical' being used against them. The use of question marks in the email quoted above leaves the reader to feel in the appropriate word. Quite clearly even the author was not bold enough to use the word intended and this can only mean the word was unpalatable. The work environment demands that suitable and cordial language is used. 72. The fact that the complainant resigned close to the date when her contract was meant to expire, in my view, indicates that she was not prepared to wait until the end to exit employment. In the Nitrogen chemicals case, the Supreme Court guided that the time of resignation was critical because if the employee resigns too late, the employer can claim that he stayed on because he implicitly agreed to the breach or modification of the contract. J 23 73. In this case, the complainant complained to the NET chairman and member in May, 2021. The payment voucher and petty cash summary exhibited as "FCT 19" and "FCT 20" show that as late as August, 2021, the chair was still micromanaging the complainant. In fact, there is nothing on record to show that anything was ever done by the NET before the complainant resigned in September, 2021. My considered view is that the complainant did not acquiesce to the breach of implied duty of confidence, trust and mutual respect. 74. In the Celine Meena Nair case (supra) the Court of Appeal stated that: Repudiatory conduct may consist of a series of acts or incidents some of them perhaps quite trivial which cumulatively amounts to a repudiatory breach of the implied terms of the contract that the employer will not, without reasonable and proper cause conduct himself in a manner calculated to destroy or damage the relationship of confidence and trust between the employer and employer." 75. The Court went on to state that the final straw was the failure to handle the grievance with urgency, which entitled the employee to resign bearing in mind the other words and acts of abuse by the respondent. 76. It is well settled that implied terms are not expressly stated in the contract. They are those terms which are so obvious that they need not be stated. For instance, treating employees with respect and not abuse them physically or otherwise is implied in every contract of employment. 77. I have considered the respondent's argument that the complainant's reporting in relation to fiscal issues was to the board chairperson. The complainant on other hand was adamant that she was to report to the J 24 headmaster. Perusal of the respondent's conditions of service for nonteaching staff ("FCT3") shows that the complainant's direct supervisor was the Head teacher. It provides that: The day to day running of the school had been vested in the Head Teacher (hereinafter referred to as the "Head"), who has the authority, inter alia, to organise, supervise and direct the teaching, administrative and ancillary staff in a manner which, in his judgment best serves the interest of the school and, also, to select, appoint, terminate, renew/non renew contracts, assign, transfer and discipline teaching and non teaching personnel. The Employee agrees as part of these Conditions of Service, to carry out to the best of his ability all legitimate instructions issued by the Head. 78. In terms of her obligations to the board, "FCT3" Appendix 1 1s insightful and provides in clause 3(b): Provide monthly feedback to the Board of Management on actual results and any variances against budget. Feedback includes analysis on data, especially highlighting important variances, advising on these results and recommending actions to be taken, .. 79. Granted the complainant was responsible to the Board of Management. However, from the evidence on record, it is patent that the complainant was being micromanaged. Pertinently, irrespective of the respondent's practice as far as financial issues are concerned, the cardinal point is that the respondent must provide a safe environment where the employee is treated with respect. 80. The respondent's failure to intervene perpetuated the hostile work environment. This breached the complainant's implied terms of trust, respect and confidence. J 25 81. It was submitted on behalf of the respondent that the complainant could not have applied to renew her contract if the workplace made the relationship intolerable. In reply, however, it was submitted that the application was made in hopes that the NET would address her concerns. Moreover, the fact that the complainant resigned only augments her position as opposed to weakening it. I agree with this submission. 82. Another issue raised by the respondent was that the complainant did not raise any grievance aside from her concerns about being contacted outside working hours. However, exhibited to the complainant's affidavit is communication between the complainant and the NET Chair, Mr. Nayee ("FCT41"). The messages clearly demonstrate that the complainant brought her concerns to the NET and the Chair made an undertaking to look into the complainant's submission. Therefore, this argument does not hold any water. 83. As rightly submitted on behalf of the complainant, the respondent's denials regarding the complainant's grievances of the chair's treatment of her remain just bare denials as the affidavit evidence was not tested through cross examination. The exit questionnaire and all other evidence on record are solid proof of what the complainant experienced in her second contract tenure. It is also worth mentioning here that there is no authority to support the respondent's assertion that a person on fixed term contract cannot seek recourse for constructive dismissal. The submission is wanting of merit. J 26 85. Having holistically considered the evidence before me, I am satisfied that the complainant was forced to resign as a result of the hostile work environment which the employer failed to resolve for months on end. She was, therefore, constructively dismissed. Damages 86. Having proved that she was constructively dismissed, the complainant is entitled to damages for loss of employment. I am cognisant that each case will turn on its own individual set of facts and circumstances as it pertains to quantum. I am also cognisant of the fact that damages are awarded for the purpose of putting the innocent party in the position in which he would have been had there not been a breach. 87. It is trite that the common law remedy for loss of employment is the period of notice. The Courts do, in deserving cases, award more that the common law measure as was stated by the Supreme in the case of Chilanga Cement v. Kasote Singogo (supra). 88. In the case of Chansa Ng'onga v. Alfred H. Knight (Z) Ltd (supra) cited by the respondent, the Supreme Court put it this way at page Jl 9: We have, however, throughout maintained the position that the starting point is that the nonnal measure of damages in wrongful/unlawful dismissal/termination cases should be payment of money equivalent to, or in lieu of the notice, that would othenvise lawfully terminate the employment contract.., This should be the case unless there are other compelling circumstances to warrant an award in excess of that detenninable with reference to the notice period. 89. Further, in the case of Josephat Lupemba v. First Quantum Mining and Operations Limitedl191 it was held that: J 27 It is a requirement that the trial judge gives reason for awarding a measure of damages, either as the period of notice when the award is within the common law measure or justification for an award which exceeds the common law measure. 90. The foregoing authorities require no elaboration. Thus, my role at this stage is to determine whether the facts of the case call upon me to award more than the normal measure of damages as prayed by the complainant. 91. As noted earlier in the judgment, there was laxity and lack of intention by the Nkhwazi Education Trust in this matter despite glaring proof of the constant demeaning and micromanaging of the complainant by the board chair. As rightly submitted on behalf of the complainant, human dignity is the value and worth of all individuals as members of society. No one in the place of work should be subjected to insensitive or degrading treatment or any other form of humiliation. Every employee ought to receive equal respect and equal concern within the work place. Having been denied the necessary respect and concern, I hold the firm view that the complainant is deserving of a departure from the normal measure of damages. 92. I have considered the respondent's argument that the complainant refused to stay but in light of what transpired, she cannot be faulted for that refusal. This is the whole essence of constructive dismissal; that the employer's action compelled the employee to leave. 93. The complainant prayed for an award of 36 months' salary as compensation. r do, however, note that the complainant only had a month left before her contract could come to an end. Furthermore, as J 28 rightly pointed out by counsel for the respondent, renewal was not automatic but at the employer's discretion which meant that the complainant ought to have prepared for the eventuality of non-renewal. In light of the foregoing, I am of the considered view that this is not an appropriate case to award 36 months' pay as compensation for loss of employment. 94. Having holistically considered the circumstances of the case and other principles regarding the award of damages in such circumstances, I award the complainant 12 months' full salary as damages for constructive dismissal. 95. I now turn to the claim for damages for mental torture, distress, pain suffering, anguish and inconvenience. 96. As rightly pointed out by counsel for the respondent, these damages are only granted in exceptional circumstances. The Supreme Court in the Kasote Singogo case guided that: We are of the view, however, that such an award for tofture or mental distress should be granted in exceptional cases, and certainly! not in a case where more than the nonnal measure of common law damages have been awarded; the rationale being th.at the enhanced damages are meant to encompass the inconvenience and any distress suffered by the employee as a result of the loss of the job. 97. The above authority is clear that damages for torture or mental distress should only be granted in extraordinary circumstances. Pertinently, they certainly should not be granted in a case where more than the normal measure of common law damages have been awarded. J 29 98. Drawing wisdom from the above authorities and having granted the complainant more than the normal measure, I am disinclined to award the complainant any more damages. Any other reliefs 99. Having carefully scrutinized the evidence and granted the complainant her meritorious claims, I see no other relief available to her. Conclusion and orders 100. In a nutshell, the complainant has established to the court's satisfaction that she was constructively dismissed and therefore entitled to damages for loss of employment. For reasons given herein, her claim for damages for mental torture, distress, pain, suffering, anguish and inconvenience is unsuccessful. 101. For the avoidance of doubt, the respondent shall pay the complainant 12 months' full salary as damages for loss of employment. The amount shall be assessed by the learned Registrar. 102. Each party shall bear own costs. Delivered at Lusaka this 23n1 day of September, 2025 M,~t· ............." :--l-~l,•;' ..... j l ·. "'\ -t JUDGE J 30 •