Phanwuel Mweetwa Natala v Sanlam Life Insurance Zambia Limited (2022/HP/0121) (23 June 2025) – ZambiaLII

IN THE HIGH COURT OF ZAMBIA 2022/HP/0121 AT THE PRINCIPAL REGIST'~"'~-:-:-:::-~ HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: PHANWUEL MWEETWA AND SANLAM LIFE INSURANCE ZAMBIA DEFENDANT LIMITED BEFORE THE HONOURABLE MR. JUSTICE I. M. MABBOLOBBOLO IN CHAMBERS ON 10TH APRIL AND 23RD JUNE, 2025. For the Plaintiff: Mr. M. Phiri, Messers MPM Legal Practitioners For the Defendant: Mr. M. Mahenga, Messers Chibesakunda and Company JUDGMENT A. CASES REFERRED TO: 1. Nitrogen Chemicals of Zambia Limited v Boyd Chomba Mutambo SCZ No. 44 of2 016 2. African Banking Corporation Limited v Moses Vera CAZ Appeal No.93/2019 3. Westen Excavating Limited v Sharp (1978) QB761 4. Zambia Electricity Supply Corporation Limited v Muyambango (2006) ZR 22 5. Wabei Nambula Mangambwa v ZCCM Investments Holdings Ltd Appeal No. 314/2 021 6. Fala Mbewe v Poseidon Construction Company Limited 2024ZMHC 7. Friday Kabaso Phiri (sued as Country Director of Voluntary Services Overseas Zambia) v Davies Tembo Appeal No.04/2012 8. Chilanga Cement Plc v Kasote Singongo SCZ No.13 of Page 1 of J33 9. Standard Chartered Bank v Celine Nair CAZ Appeal No.14/ 14/2019 B. OTHER WORKS REFERRED TO: 1. Winnie Sithole Mwenda and Chanda Chungu, "Comprehensive Guide to Employment Law in Zambia, 2021 University ofZ ambia Press 2. Selwyn's Employment Law, Forth Edition, 1982, Butter Worths, London 1. INTRODUCTION AND BACKGROUND 1.1. This is a Judgment on the Plaintiff's action commenced by way of Writ of Summons and Statement of Claim filed into Court on 27th January, 2022. 1.2. In the Statement of Claim, the Plaintiff states that he is a former employee of the Defendant who is a qualified Chartered Accountant and Member of the Zambia Institute of Chartered Accounts with more than 16 years working experience in his professional work and career. That besides being a Chartered Accountant he also holds a Degree in Actuarial Science and was at the material time pursuing a Masters in the same course. 1.3. It was claimed that by a Contract of Employment made on 15th July, 2019, (hereinafter referred to as the "Contract") the Defendant agreed to employ the Plaintiff as Finance Manager, Operations on permanent and pensionable basis. The Plaintiff averred that it was an agreed term of the Cont ract that with effect from 12th August, 2019, the Plaintiff shall continue in the employment of the Defendant's company until he attains the Statutory Page 2 of J33 Retirement age as prescribed by the Statue of the Republic of Zambia which is in this case is 65 years of age. 1 .4. The Plaintiff averred that under the Contract, he was entitled to full monthly salary of ZMW 25,000 inclusive of all Statutory allowances such as housing, lunch and transport allowance. That the Contract also provided for the following allowances: a) Fuel allowance worth ZMW2, 080 per month b) Mobile Airtime ofZ MWl,040 c) Annual leave of 24 working days per year Further that the total gross monthly earnings being ZMWS 1,040.00 and annual earnings including leave being ZMW955,337.00. Finally, that it was also an agreed term of the Contract that the Plaintiff's salary would be reviewed annually. 1.5. It was the Plaintiffs position that he would at trial aver that between April and May, 2020, the Plaintiff was confirmed in his position by a letter issued by the Defendant's Head of Human Resource. That after signing the Contract, the Defendant provided a peaceful and conducive working environment which made the Plaintiff enjoy his work and he would always look forward to going for work especially that he spent most of his time at work than any other place. 1.6. According to the Plaintiff, on 10th June, 2020 he signed a Performance Contract after realignment of responsibilities in the Finance Department signed by the Defendant and he performed his duties in accordance with the Page 3 of J33 Performance Contract without any complaints about his work or any issues related to his work. 1. 7. The Plaintiff states that on 28th July, 2020, he received an e-mail from the Defendant informing him that he was given a verbal warning for "attitude towards work", "timely delivery of assignments" and 'poor communication". The Plaintiff would at trial aver that on 6th August, 2020, he responded to the e-mail by refuting the allegations made against him by the Defendant because the Defendant failed to cite any incidents to substantiate or prove these allegations and the Plaintiff had never committed any of these offences. 1.8. It was the Plaintiff's averment that between the 2nd and 3rd weeks of August, 2020, he received handover notes from his colleague and in September, 2020, he was given additional handover notes and had a meeting with the Defendant's Chief Financial Officer (CFO). That the Plaintiff would aver that sometime in October, 2020, he had a one on one meeting with the Defendant's Chief Financial Officer during which the Chief Financial Officer openly told the Plaintiff that he would be put on Performance Improvement Plan (PIP) without any explanations why he was doing so. That the CFO informed the Plaintiff that: '(He did not want to work with him. He also went further that he wanted to build his own team in Finance, he also mentioned that he would rather deal with the Labour Commission than dealing with the Plaintiff'. Page 4 of J33 1.9. According to the Plaintiff, after the meeting with the CFO in October, 2020, the Plaintiff was given the Performance Improvement Plan notification and terms of reference and after this various e-mails were exchanged between the Plaintiff and the Defendant. That the Plaintiff would aver that his working relationship with the Defendant's CFO deteriorated as he would make flimsy accusations about the Plaintiff's work and would also do things to frustrate the Plaintiff. That on 2nd November, 2020, the Performance Improvement Plan was escalated to the Defendant's Human Resource as the Plaintiff and the CFO could not agree on the terms of reference. 1.10.The Plaintiff stated that as per conditions of service, he did rd on 3 November, 2020, apply for 10 days annual leave for purposes of sitting for his examinations. That it was agreed with his supervisor, the CFO that he takes his leave rd from 9th November, 2020, to 23 November, 2020, and the said leave was approved by the Defendant's CFO after making consultations with him. Further that as per the Defendant's policy, procedure and guidance on leave, the Plaintiff proceeded to activate an auto-response to all incoming mail and indicated that the Plaintiff would be on leave until 23rd November, 2020, and during his absence, Jim Bwalya would act in his place and gave the email address for Jim Bwalya. Further that after receiving the approval for leave from the Defendant's CFO, the Plaintiff prepared handover notes which he gave to his colleague. 1.11.That having done the handovers, the Plaintiff proceeded on leave but to his great shock and surprise, the Page 5 of J33 Defendant's CFO sent an email advising the Plaintiff that his leave had been cancelled without giving any reasons or consulting the Plaintiff over the same. That the CFO on 9th November, 2020, sent a WhatsApp message informing the Plaintiff that he had sent an email which he was required to respond to urgently. 1.12.According to the Plaintiff, he, on 18th November, 2020, received an e-mail from the Defendant's Human Resource requesting the Plaintiff to formalize the Plaintiff's concerns and worries as the Plaintiff also raised his concern about the deteriorating relationship between the Plaintiff and the Defendant's CFO and the Performance Improvement Plan. Further that the Defendant's CFO continued to frustrate the Plaintiff and make his work difficult and the work environment intolerable and toxic to work in. 1. 13.The Plaintiff stated that instead of resolving the issues he had raised with the Human Resource and to his surprise, he received an e-mail where he was requested to exculpate himself in connection with the reasons for ignoring the 2 e-mails from the Defendant's CFO and why he was absent from work. That on 15th December, 2020, the Defendant's CFO called for a meeting and charged the Plaintiff for taking study and examination leave without approval and also for refusal to obey lawful instructions. Further that on 17th December, 2020, the Plaintiff responded to the charges by denying the alleged charges because as indicated above, the Plaintiff duly followed the procedure for getting leave which was also duly authorized by the Defendant's CFO and the Plaintiff also had handed over Page 6 of J33 his work to his colleague. The Plaintiff never received instructions which he disobeyed. 1.14.Related to the above, the Plaintiff stated that on 22nd December, 2020, a hearing was convened for these allegations, but that at the sitting, the charge for taking leave for examinations was dropped without any explanation from the Defendant. That however, the Plaintiff on 24th December, 2020, was served with a letter informing him about the final warning for refusal to obey instructions contrary to Clause B10.24 (d) of the Conditions of Service. 1.15.According to the Plaintiff, on 30th December, 2020, he appealed against the final warning refuting the charge of refusal to obey a lawful instruction from a supervisor which charge the Plaintiff denied and wrote to the Chief Executive Officer to rescind the decision. That the appeal hearing was heard on 22nd January, 2021, and the Defendant upheld its decision through a letter authored by the Acting Chief Executive Officer which in part read as; "After a careful deliberation, and taking into consideration the ground of appeal you submitted, management has decided to uphold the final written warning based on the fact that you produced no new evidence". 1.16. It was stated that the Plaintiff on 4th February, 2021, wrote a letter to the Chief Acting Executive Officer requesting that the charges of failure to obey lawful instructions be dropped as he was not told of any Page 7 of J33 instance where he had refused to obey instructions and even during the hearing the Defendant failed to point to an incident where the Plaintiff was issued with the instructions which he later on refused to obey. That there was no evidence adduced or produced against the Plaintiff to the said offence. Further that the Plaintiff made several attempts with the Defendant to have the offence dropped as it would also tarnish his image as a professional, but all to no avail. 1.17. Further that on 7th February, 2021, the Plaintiff received an e-mail from the Defendant's human Resource informing him that the matter was closed and was not subject of any discussion. 1.18. The Plaintiff would aver at trial that following the events cited above, the Defendant made the environment not conducive, intolerable and difficult for the Plaintiff to do his work and enjoy his freedom. That thus, the Plaintiff tendered in his letter of resignation which in part read as: "My decision to resign is because of the work environment that has not been conducive for me as evidenced by the disciplinary charges laid against me and various issues that were raised against me by my supervisor in the past one year. Please note that I still do not agree with the charges and the subsequent final warning which I have been given. In view of the foregoing, I feel that it is necessary for me to step aside as I can not work under these Page 8 of J33 circumstances presented by management decision". 1.19. It was the Plaintiff's averment that the Defendant acted in a manner calculated to damage the relationship of trust and confidence in his daily work. That up to the time the Plaintiff had filed this suit, he had not been able to find work and the chances of him getting alternative employment had been drastically reduced because of the charges of not obeying instructions which had never been dropped by the Defendant despite them not being proved. Further that the said charges have permanently tainted the professional image and standing of the Plaintiff as he is now perceived as a disobedient person or employee because the Defendant refused to drop the charges. 1.20. It was the Plaintiff's position that by reason of the matters aforesaid, he has suffered failure to find alternative employment, financial loss, frustration, embarrassment and severe depression, pain and anguish and also unable to financially take care of his family as this was the only source of income. The Plaintiff claims; 1.20.1. Damages for loss of his employment through Constructive Dismissal 1.20.2. Damages for financial loss, frustration, trauma, inconvenience, embarrassment, depression, pain and anguish. 1.20.3. Damages for reducing the Plaintiffs support to himself and his family as a result of salary and other benefits as a result of the loss of his employment. Page 9 of J33 1.20. 4. Damages for failure to financially support himself and his family as a result of salary and other benefits as a result of the loss of employment. 1.20.5. Payment of the Plaintiffs pension contribution and all other outstanding benefits 1.20. 6. Damages for tarnishing his professional image, standing in his profession and society. 1.20. 7. Damages for professional stigma among his peers 1.20.8. Payment of outstanding leave days 1.20.9. Interest 1.20.10. Costs 1.20.11. Any other relief the Court will deem fit. 1.21. The Defendant opposed the Plaintiff's action through its Defence filed on 9th February, 2022 the gist of which is that it admits that the Plaintiff is a former employee who resigned from his employment in circumstances that do not give rise to any claim by the Plaintiff against the Defendant. Further that the Defendant has no knowledge of the averments by the Plaintiff regarding his nationality, and/ or the status of the Plaintiffs professional standing and/ or membership with the Zambia Institute of Chartered Accounts or any other professional body, and/or the period of the Plaintiffs alleged professional work or career. 1.22. It was admitted that the Plaintiff was employed under a written contract whose commencement date was 12th August, 2019, and the terms agreed by the Plaintiff and the Defendant were that subject to the right of the Defendant to terminate the Contract, the Contract would Page 10 of J33 continue until the Plaintiff reached the retirement age as provided by the Laws of Zambia. 1.23. The Defendant stated that it would in addition aver that there was an internal realignment of duties in respect of several employees of which the Plaintiff was one. That the Plaintiff was part of a performance improvement process after realignment and it was a term of the employment contract that the Plaintiff was obligated to perform the duties and functions defined by the Chief Finance Office, and the duties could be changed if deemed necessary having regard to the Defendant's operational requirement. That the Defendant will aver that the warnings alluded to by the Plaintiff, if issued, were properly issued. Alternatively, and without prejudice, the Defendant would aver that the incidents alleged by the Plaintiff to the extent that they can be proved, do not demonstrate a repudiation of the employment Contract by the Defendant. Alternatively, still, the Defendant would aver that the Plaintiff did not raise any formal dissent to the alleged verbal warning. 1.24. The Defendant denies the alleged one on one meeting or conversation between the Plaintiff and Defendant as claimed and would put the Plaintiff to strict proof. That alternatively, to the extent that the Plaintiff can demonstrate that he was put on a Performance Improvement Plan as alleged, the Defendant will assert that any improvement plans were necessary and implemented in compliance with internal procedure. Page 11 of J33 1.25. The assertion by the Plaintiff that his working relationship with the CFO deteriorated was denied by the Defendant and that to the extent that any issues were raised by CFO regarding the work of the Plaintiff, it is averred that the same were necessary, and in compliance with the terms of employment agreed between the Parties. 1.26. It was the Defendant's position that the Plaintiff would be put to strict proof on the version of event adumbrated by him. Further that the Defendant would demonstrate that all internal procedures and requirements connected to a disciplinary hearing were adhered to and that the Plaintiff can not use Court as an appellate body from internal matters. That to the extent that the Plaintiff can prove any of his averments, the Defendant will say all issues were addressed during an internal disciplinary process in which the Plaintiff participated and even appealed against. 1.27. Further to the above, that the Defendant would show that the charges related to the Plaintiffs leave request were withdrawn and or determined to be unfounded during the disciplinary hearing in which the Plaintiff's participated. That the internal procedure regarding the charge including an internal appeal had been exhausted and the Plaintiff did not have any further internal recourse regarding the charges on which he was found guilty by the internal disciplinary committee and consequently, there was no further averments regarding the decision of the committee and the appeal committee under the terms agreed between the parties. Page 12 of J33 1.28. The Defendant admitted, that with express reservation of its right to raise issue regarding the regularity of the statement alleged made by the CFO as asserted by the Plaintiff, the Defendant expressly denied the veracity of the allegations and the Plaintiff would be put to strict proof thereof. 1.29. In toto, the Defendant rejected the Plaintiff's claim as being without merit and that the Defendant denies that any losses or damage that the Plaintiff allegedly suffered are on account of the Defendant. 2.0. THE HEARING 2.1. At the hearing held on 10th April, 2024, the Plaintiff relied on his Witness Statement filed on 17th October, 2024. In his Statement he largely repeats the averments in the Statement of Claim as indicated above and these will not be repeated in their entirety to avoid monotony. 2.1. In Cross Examination, the Plaintiff confirmed that he was employed as Finance Manager Operations and that he reported directly to the Chief Financial Officer. Further that after the happenings, he tendered in his resignation in 2021 and that as at 2022, he was employed by Zambia State Insurance. 2.3. The Plaintiff agreed that when he was employed by the Defendant in 2019, he was given the Defendant's conditions of service which he understood. He conceded that as per the condition, where an employee is under performing, the immediate supervisor had the mandate to Page 13 of J33 reprimand them, and in this case, the CFO had that mandate. He disagreed that the Defendant had the authority to charge an employee who missteps according to him. 2.4. In further Cross Examination, the Plaintiff admitted that there was a time when his supervisor, the CFO was not happy with his performance. He stated that he could remember that on 28th July, 202, his supervisor actually wrote an e-mail identifying his under performance. When referred to Page 58 of the Plaintiff's Bundle of Documents, he confirmed the e-mail written by Valentine Kabonga, his immediate supervisor and addressed to him. Pressed further and asked to read Paragraph 3, the Plaintiff responded that he didn't read that his supervisor was complaining. He however, agreed that the supervisor was requesting a response by close of business for his attitude. 2.5. Whether the Plaintiff agreed that for almost 10 days, he did not respond to the e-mail, his response was that he could not remember and neither could he remember whether he had reverted by close of business as required in the e-mail. When asked whether he agreed that if a supervisor said revert by close of business and if you do not do, that is insubordination, the Plaintiff's reply was that it depends. He agreed that the Defendant's code of conduct allowed his supervisor to issue a warning against him. 2.6. Reference was made to Page 60 of the Plaintiff's Bundle of Documents where upon he confirmed that the email Page 14 of J33 appearing at the page was sent to him by his supervisor. The Plaintiff agreed that his supervisor formally placed a verbal warning because of attitude and work and that his supervisor expected that he would improve. He also conceded that he was charged by the company, that the said charge sheet by the company listed what he was being charged for and went further to state which portions of the conditions of service were allegedly breached. Further that he agreed that he was invited for a disciplinary hearing which took place and where he was given an opportunity to defend himself after which he was found guilty. He agreed that the process of the procedure was followed by the company. He however did not agree that since the procedure was followed then the company had treated him fairly. 2. 7. Following the determination of the Disciplinary Committee the Plaintiff agrees that he was given an opportunity to appeal which he proceeded to do. He conceded that he had not submitted a medical report evidencing trauma, or depression or anguish. He did not agree that the determination of the disciplinary committee was not to dismiss him but to place him on final warning. When refe rred to Page 90 of the Defendant's Bundle and pressed to read he conceded that he was placed on a final warning which was valid for 18 months and not forever. 2.8. In Re- Examination regarding evidence for trauma, the Plaintiff stated that he did not present the records because he was not sick, but that these are pains he went through during the whole process. Page 15 of J33 2. 9. Regarding the final warning at Page 90 of the Defendant's Bundle, he clarified that he received the letter written to him after the hearing and he did object to it and made an appeal. 2.10. The Defendant called only one witness, Chileshe Chelemu Chisamba, the current Human Capital Operations Manager at the Company (DW). She stated in her Witness Statement filed on 20th December, 2024, that it is within her knowledge that by Contract dated 15th July, 2019, the Plaintiff was in the employ of the Defendant as Finance Manager of Operations. That in the course of the Plaintiff's employment, there occurred an incident in which he was placed on Performance Improvement Plan by an Officer of the Defendant, which matter was escalated to the Defendant's Head Human Resource. 2.11. It was DWI 's testimony that on November, 2020, the 3rct Plaintiff applied for a period of 10 days leave, beginning on 9th November, 2020. That the Plaintiff was granted a conditional leave which was only to take effect upon the condition of him having effected a clear handover of tasks that he was supposed to undertake. Further that the Plaintiff failed to provide a clear hand over of certain tasks which meant that the Plaint iff's leave could not take full effect and he was subsequently asked to return to work. Further still that the Plaintiff opted to ignore the request of his supervisor to return to work and thus ignored lawful instructions from the supervisor. Page 16 of J33 2.12. According to DW, having failed to return to work when asked to by his supervisor and thus disregarding lawful orders by his supervisor, the Plaintiff was charged with persistent unauthorized absence from work for a period of more than five consecutive days and refusal to obey a lawful instruction from a supervisor or more senior company employee. That the Defendant received a response on 17th December, 2020, from the Plaintiff denying the charges as evidenced at Page 80 to 87 Of the Defendant's Bundle of Documents. 2.13.Further to the above, DW stated that the Defendant company in adhering to procedure, notified the Plaintiff that a Disciplinary Hearing would be held wherein the Plaintiff would have an opportunity to exculpate himself on the charges levied against him. DW stated that she was aware that a Disciplinary Hearing was held on 22nd December, 2020, at which the Plaintiff was found guilty of refusal to obey a lawful instruction from a supervisor or more sen10r company employee and acquitted of unauthorized absence from work for a period of more than five consecutive days. 2.14.DW's further testimony is that on 30th December, 2020, the Plaintiff appealed against the Disciplinary tribunal's findings and the hearing of the appeal was conducted on 22nd January, 2021, in which it was resolved to uphold the disciplinary tribunal's decision. That the outcome of the hearing was that the Plaintiff was placed on a final written warning but was to continue working under the same conditions and nothing to that effect was attered. Page 17 of J33 2.15.According to DW, the Defendant company conducted a normal and fair disciplinary hearing and an outcome arrived at wherein the Plaintiff was accorded an opportunity to not only be heard but defend himself. That the Disciplinary hearing was carried out in accordance with the attested conditions of service. 2.16.DW's concluding testimony was that the Plaintiff tendered his resignation letter on 18th February, 2021, as appears at Page 98 of the Defendant's Bundle of Documents. 2.17.In Cross Examination, DW stated that she joined the Defendant Company in August, 2021 and that the Plaintiff did not report to him. When asked whether the information in her witness Statement came from third parties, her response was that the information is on record on a personal file. 2.18.Regarding the Performance Improvement Plan referred to in her Witness Statement, DW stated that she was speaking to the basis of such a plan and that she did not have specific details regarding the Plaintiffs incident. 2 .19. On the issue of conditional leave referred to in her Witness Statement and where the same is contained, DW responded that the Conditions of Service do not stipulate the term 'conditional leave' as it is not there. She conceded that the Plaintiff was granted normal leave and he was not absent from work. 2.20. DW reiterated the allegation in her Witness Statement that the Plaintiff ignored lawful instructions to return to work when he was on leave. That as regards what Page 18 of J33 offence the Plaintiff had committed, she stated it was failure to follow lawful instructions from his supervisor. When pressed as to which instructions, DW's response was that the handover notes was one of them. 2.21. When asked where the charge sheet was if at all an offence had been committed, DW's response was that there was no charge sheet. 2.22. DW agreed that she attended the Plaintiff's Disciplinary Hearing and that the Plaintiff did not agree with the offences that he was charged with and that he finally resigned giving reasons as indicated in his letter of resignation. That primarily the reason for the Plaintiff's resignation is that he was not happy with the way the case had gone. 2.23. In Re- Examination on which instructions the Plaintiff failed to follow, DW's clarification was that it was failure to return to work when he was called upon during his leave. 3.0. SUBMISSIONS 3.1. The Plaintiff filed his Submissions on 9th May, 2025, while the Defendant filed its Submissions on 23rd May, 2025. 3.2. The detailed Submissions by the Parties shall not be reproduced here but will be referred to where necessary. 4.0. CONSIDERATION AND DECISION OF THE COURT Page 19 of J33 4.1. I have considered the Pleadings, the evidence and the respective Submissions by the Parties. I am grateful to Counsel for the spirited Submissions. 4.2. There is no dispute that the Plaintiff who was an employee of the Defendant on permanent and pensionable conditions of service tendered in his resignation which was accepted by the Defendant. 4.3. As, I see it, the issue for falling for my determination from where all the other claims by the Plaintiff stem is simply this; "Whether or not the resignation by the Plaintiff qualifies as Constructive Dismissal by the Defendant". 4.4. Both the Plaintiff and the Defendant have usefully cited the case of Nitrogen Chemicals of Zambia Limited v Boyd Chomba Mutambo1 where the Supreme Court held that Constructive Dismissal is anchored on the concept that an employer must treat his employees fairly and not act in a manner that will compel the employee to flee his job. The Supreme Court set out the three (3) requirements for a successful claim of Constructive Dismissal as: 4. 4 .1. The employee must resign 4.4.2. The resignation must be in response to a .fundamental breach of contract and; 4.4.3. The employee must act promptly and in response to the breach so that he or she is not taken to Page 20 of J33 have implicitly agreed to continue with the contract. 4.5. Writing on the concept of Constructive Dismissal, the Learned Authors Winnie Sithole Mweenda and Chanda Chungu in their book titled, 'A Comprehensive Guide to Employment Law in Zambia' at Page 262 state thus; "Sometimes the employer through his behavior makes the working environment so uncomfortable for the employee to continue working. The employee is left with no alternative but to tender in his resignation. In such a situation, the employee's resignation is brought about by the employer's behavior. This is known as Constructive Dismissal". 4.6. From my reading and understanding of Constructive Dismissal put differently, the reason for the resignation by the employee must have been as a result of the employer's wrongful conduct which caused the intolerable working relationship for the employee and the resultant breakdown in the employment relationship. 4. 7. In the letter of resignation by the Plaintiff to the Defendant dated 8th February, 2021, the relevant portion on the subject reads as follows: "My decision to resign zs because of work environment that has not been conducive for me as evidenced by the disciplinary charges laid against me and the various issues that were raised against me by my supervisor in the past one year. Please Page 21 of J33 note that I still do not agree with the charges and the subsequent final warning which I have been gwen. In view of the foregoing, I feel that it is necessary for me to step aside as I can not work under these circumstances presented by management's decisions". 4.8. The circumstances surrounding the resignation by the Plaintiff, quite clearly must be evaluated in the context of the Court of Appeal case of African Banking Corporation Limited v Moses Vera2 usefully cited by both the Plaintiff , and the Defendant where the Court of Appeal citing the case of Westen Excavating Limited v Sharp3 stated that the tests for Constructive Dismissal are the contract test and unreasonable test. The meaning is that the conduct must go to the root of the contract, that is to say, whether or not the employer's conduct amounts to fundamental breach of contract and such conduct must be so unreasonable that no employee would be expected to stay in employment. 4.9. I have taken the liberty to review the Plaintiff's and Defendant's evidence and Bundle of Documents to appreciate especially the issues relating to the disciplinary action that the Plaintiff was subjected to and what he mentions as his reasons for his resignation. In my review, I do so not to sit as an appellate body to review what the Defendant's disciplinary mechanisms against the Plaintiff. This is because I am alive to the guidance provided by a plethora of authorities not least the case of Zambia Electricity Supply Corporation Limited v Page 22 of J33 Muyambango4 on the functions of the Court vis-a-vis domestic disciplinary tribunals. 4.10.My review is intended to establish the Plaintiff's assertions regarding his claim for Constructive Dismissal. This is because I am of the firm view that a claim for Constructive Dismissal is maintainable notwithstanding that part of the reasons given for resignation touch on the disciplinary proceedings which the Plaintiff was subjected to prior to his resignation. I am fortified in taking this position by the Learned Authors of 'A Comprehensive Guide to Employment Law in Zambia' cited in Paragraph 4.5 above who stated at Page 269 that: "Even though there are many reasons for resignation, if the conduct of the employer played a part, a claim for constructive dismissal will succeed". 4.11. According to the Minutes of the Disciplinary Hearing held on 22nd December, 2020, via conference call and face to face meeting appearing at Pages 85 of the Defendant's Bundle of Documents the Plaintiff was charged with the following offences. 4.11.1. Persistent unauthorized absence from work for a period of more than five consecutive days Section Bl 6.2.4 (a) oft he Attested Terms and Conditions of Service. 4.11.2. Refusal to obey a lawful instruction from a superior or more senior company employee-Section B 1 0. 2. 4 (a) oft he Attested Terms and Conditions of Service. Page 23 of J33 4.12. I take the liberty to reproduce below what I consider are excerpts relevant to this matter from the Deliberations, Observations and Conclusions/Recommendations of the Disciplinary Committee. a} Deliberations 4.12.1. According to the Panel, the first charge concerning absence could not hold as it was not clearly substantiated by evidence - the leave taking process was not adhered to and the accused assumed leave was approved based on the discussions they had and the common practice around taking leave. 4.12.2. According to the panel, the second charge concerning Refusal to obey lawful instructions held as the accused admitted to not responding or acting on the instructions issued whilst on leave. Evidence proved that he reluctantly and consciously decided not to make any efforts to find out the reasons why his immediate supervisor was trying to reach him via phone, email and WhatsApp messages. b} Observations 4.12.3. We also draw evidence form an e-mail dated 9th November, 2020 in which the charging officer advised him to change the Leave period to what was agreed. 4.12.4. Important to note that we currently have a poor practice regarding Leave and the procedure has not been adhered to in similar Page 24 of J33 situations. Employees take Leave tither on or offt he system and is later re---- which must be corrected going forward. 4.12.5. Employees embarking on taking professional examinations must be accorded an opportunity to do so with adequate notice gwen. 4.12.6. We can not take away the importance from both meeting required deliverables and the taking ofe xaminations, as Sanlam we believe in growing our businesses as well as developing our employees professionally. 4.12. 7. The Panel observed that supervisory skills in this cause must extend to improved record keeping of verbal reprimands as well as actions aimed at assisting an employee to improve. 4.12.8. We must have evidence of the attempts made to correct poor conduct as opposed to taking quick and punitive action. 4.12.9. The accused brought out a separate grievance matter related to a meeting he and the charging officer had months prior to the hearing. The accused alleged that he was singled out as the reason for the delayed submissions and he was not fit to be part of the finance team. The Panel advised the accused to seek resolution oft his grievance by following the grievance procedure as provided Page 25 of J33 for in the Attested Terms and Conditions of Service. 4.12.10. The situation is not a lost cause and can be salvaged through engagement from both the supervisor and the employee. 4.12.11. It is observed by the committee that any underlying issues between the charging officer and the accused had to be resolved to ensure that we make progress for the sake of the business a working relationship should be established. c) Cone lusion/Recommendation 4.12.12. Having denied both the charges levelled against him and in consideration of his mitigation, the panel a.greed to take the following actions. The accused • Final written wamzng (has no pnor disciplinary record or reprimand, additionally one of the charges was dropped) • In light of this we do not condone the employee's actions especially those related to his decision to not respond to/ return business related calls, messages and e mails. This was strongly discouraged for the employee's professional relationship stance. Page 26 of J33 • We also do not condone the accused's failure to present deliverables to the satisfaction of the head of department and to consolidate a comprehensive handover before taking Leave. • Handover before taking Leave must be taken comprehensively regardless of the type of Leave one wishes to take. • The Leave taking process as well as other work procedures requirements must be adhered to consistently. • Performance Improvement Plan (PIP) Given that the charging officer had in the past recommended a PIP which the accused was opposed to, the Panel agreed that the PIP signed by the CEO and Head of HR should be regularized by getting the charging office to buy in. The Charging Officer • Improve on record keeping in terms of informal meetings, verbal warning, reprimands and complaints/ assistance rendered to a poor performing employee. • Improve on supervisor engagement on one on one basis to discuss how they can be helped in their areas of concern. Page 27 of J33 • Ensure that the assigned individuals understand clearly what the tasks entail by regular communication and monitoring. 4.13. I have already said that there is no dispute that the Plaintiff resigned from his employment by the Defendant. So, I will not belabour the point as the first requirement for a successful claim for constructive dismissal as set out by the Supreme Court in the case of Nitrogen Chemicals of Zambia Ltd v Boyd Chomba Mutambo1 has been met. I now move on to the second requirement whether the Plaintiff's resignation was in response to a fundamental breach of the employment contract by the Defendant. 4.14.In dealing with the second requirement, the question I ask myself is this- can it reasonably be argued from a holistic consideration of what has been outlined above in Paragraph 4.11 that there was a fundamental breach of the contract? In other words, was there a basis for the Defendant to subject the Plaintiff to a disciplinary process on the two charges of absence from work and failure to obey lawful instructions from his supervisor? As can be seen from the observations and recommendations of the Disciplinary Committee, the charge for absenteeism was not supported by any evidence and could therefore not stand. The view I take is that the charging officer clearly had no basis to profer the charge of absence from work on the Plaintiff in the wake of his own e-mail dated 9th November, 2020, headed "Leave period" as exhibited at Page 79 of the Plaintiff's Bundle of Documents. I am certainly not inclined to accept the Submission on behalf Page 28 of J33 of the Defendant that the Plaintiff and his supervisor were at cross purposes regarding the taking of Leave by the Plaintiff. 4.15.The significant point regarding this charge, in my view, is that the system is self-correcting as done by the Disciplinary Committee which observed that the Defendant had a poor practice regarding Leave and the procedure had not been adhered to in similar situations as those of the Plaintiff. Given that this particular charge had been dropped, the Plaintiff quite clearly would not reasonably place reliance on this regarding what led him to tender his resignation. 4.16.Regarding the second charge of failure to obey lawful instructions, it is not in dispute that work related messages by way of e-mail and WhatsApp were sent to the Plaintiff while he was on Leave but that he never responded to them until his Leave had ended and he had returned to work. The view I take is that it was not unreasonable for the Defendant to have sent work related messages to the Plaintiff notwithstanding that he was on Leave considering the high position held by the Plaintiff of Finance Manager. What is reasonably expected of a professional at the level of Finance Manager would be to find time even while being on Leave to respond to the messages. In view of the position I have taken, the Defendant had a basis to subject the Plaintiff to disciplinary procedures and can not therefore be faulted or said to have acted unreasonably. I am fortified in taking this position by the Court of Appeal case of Wabei Page 29 of J33 Nambula Mangambwa v ZCCM Investments Holdings Ltd5 where in agreeing with the Lower Court it was stated that: "Our view is that there was a substratum of facts upon which the respondent could have charged the appellant". The conclusion I reach is that the Defendant can not be said to have been unreasonable or that it breached the Contract of Employment by subjecting the Plaintiff to disciplinary action in respect of the second charge of failing to obey lawful instructions. 4.17. Regarding the assertion that the Plaintiff's supervisor openly told him that he did not want to work with him and that the supervisor wanted to build his own team, I have interrogated the same from the evidence on record. I have noted that according to the e-mail by the Plaintiff to Chanda T. Mwila of HR, dated 20th November, 2020, appearing at Page 87 of the Plaintiffs Bundle of Documents the same was said to the Plaintiff a day after the Scorecard for September, and the following day, he received an e-mail demanding that he signs the Personal Improvement Plan which he was very uncomfortable to sign. 4.18.I have perused the documents before me and note that other than the e-mail referred to above there is no other evidence that comprehensively addressed the assertion. I note however, that the Plaintiff also brought it up at the disciplinary hearing where the Disciplinary Committee Page 30 of J33 adv ised him to seek resolution of the grievance by following the Grievance Procedure as provided for in the Attested Terms and Conditions of Service. In my view, the Recommendation by the Disciplinary Committee was yet again another self-correcting mechanism when there are grievances at the place of work. 4. 19. On the related issue of the Performance Improvement Plan (PIP), which the Plaintiff received from his supervisor after the alleged remarks about not being wanted as part of the Finance Team, I note that the Disciplinary Committee acknowledged the sentiments regarding the Plaintiffs reservations on the PIP as issued by the supervisor. The recommendation was that given that the Performance Improvement Plan that the Charging Officer (supervisor) had in the past recommended for the Plaintiff was not acceptable to him, the Performance Improvement Plan signed by the Chief Executive Officer and Human Resource should instead be regularized by getting the charging officer (supervisor) to buy into it. In effect, the Disciplinary Committee agreed with the Plaintiff to dispense with the one initially given by the supervisor. In my estimation, this is yet another self correcting internal mechanism int ended to resolve the perceived differences between the Plaintiff and his Supervisor. 4.20. Furthermore, the Disciplinary Committee 1n its conclusion and recommendations pointed out the areas of concern requiring the attention of the charging Officer (the Plaint iff's supervisor) . Page 31 of J33 4.21.Having found that there was no fundamental breach of the Employment Contract by the Defendant, the third requirement to successfully claim Constructive Dismissal as envisaged in the Nitrogen Chemicals of Zambia case, becomes a mere academic exercise which I will not go into. 4.22.In the final analysis, the issue I set out for my determination, that is to say, whether or not the Plaintiff's resignation qualifies as Constructive Dismissal weighs in favour of declining the claim by the Plaintiff that his resignation qualifies as Constructive Dismissal. 4.23.It is clear from the authorities cited that the threshold to prove Constructive Dismissal is justifiably high. That is as it should be. In my view, it is intended to prevent abuse by opportunistic employees who may feel aggrieved by the employer's conduct or who may wish to escape dealing with incompatibility, misconduct or incapacity under the guise of Constructive Dismissal. While I recognize and appreciate that employees are entitled to a safe working environment and the right to be treated with dignity and respect, a mere unpleasant or stressful work environment does not equate to intolerability and employees should use and exhaust the normal (internal) remedies available to them to address such issues before resorting to the drastic step of resignation as the Plaintiff did in this matter. 4.24.Given the position that I have taken, the cases of Fala Mbewe v Poseidon Construction Company Limited6 , Friday Kabaso Phiri (sued as Country Director of Voluntary Services Overseas Zambia) v Davies Tembo7 , Chilanga Cement Pie v Kasote Singongo8 and Standard Page 32 of 133 Chartered Bank v Celine Nair9 on constructive dismissal can all not be of any assistance to the Plaintiff's case. I also see no need to invoke breach of implied terms as stated by the Learned Authors of Selwyn's Employment Law cited by the Plaintiff on unjustified warnings, making statements which destroy or seriously damage the relationship of trust and confidence which must exist between the parties. I have no doubt that in a proper case, unlike this one, these considerations would be taken into account 4.25.As I had indicated earlier, all the other reliefs claimed by the Plaintiff were predicated on the claim for Constructive Dismissal succeeding. In the wake of the fate of this claim it becomes otiose to consider the other reliefs. 5.0. CONCLUSION 5.1. The Plaintiff's case has not, on a balance of probabilities, satisfied the justifiably high threshold to prove Constructive Dismissal. 5.2. In consequence, the Plaintiff's case 1s dismissed with costs for lack of merit. DELIVERED AT LUSAKA THIS 23RD DAY OF JUNE, 2025. I. M. MABBOLOBBOLO HIGH COURT JUDGE. Page 33 of J33