Perry Mapani v Industrial Development Corporation Limited (2023/HPIR/1044) (11 February 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2023/HPIR/ 1044 INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (CIVIL JURISDICTION} ... . ,·. ·. - . BETWEEN: PERRYMAPANI .,COMPLAINANT AND INDUSTRIAL DEVELOPMENT CORPORATION LIMITED RESPONDENT CORAM: . . HON. E. MWANSA Esq JUDGE APPEARANCES: For the Complainant : Mr. D. Mtonga. with Ms. S. Mwangu - Messrs Paul Nora Advocates For the Respondent : Mr. G. Lungu-Messrs Muleza Mwiimbu and Company DATES 29'h October, 2024 31st October, 2024 8fll January, 2025 J I Jrh February, 202S JUDGMENT Authorities Refe rred to l. Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia. 2. Employment C-Ode Act Number 3 of 2019. Jl I Cases: 1. Chansa -V- Barclays Bank PLC scz No. 8/128/2011 Appeal No. 111 of 2011. 2. Robert Sim.eza and Others -V• Elizabeth Mzyeche (2011} Volume 3 ZR 290. 3. Nyonl -V-Attorney General (SCZ Judgment No. 11 of 2011} 4. Joseph Chintofwa.-V- Ndola Lime (1999} ZMSC 116 I 1.0 INTRODUCTION 1.1. Before me is this matter commenced by the Complainant by way of a Notice of Complaint with an accompanying Affidavit. It was lodged on 16th October, 2023. 1.2. The Complainant seeks the following reliefs: 1.2.1. An Order that the tennination of his employment was unfair, wrongful and unjustified; I An Order that he be paid the sum of 1.2.2. KS,650,970.00 being th£ basic pay outstanding for the remainder of his contract of employment. That in addition to the payment of the l.2.3. outstanding basic pay under the contract, an Order that he be paid all other accrued entitlements stipulated in the terms and J2 I conditions of his contract of employment which include inter alia, leave days, over time and gratuity; , 1.2.4. An Order for payment of damages for wrongful, unl.a.wful and unfair termination of the Complainant's contract of empwyment; l.2.5. An Order for payment of damages for reputational injury suffered as a result of the wrongful, unlawful and unfair termination of his contract of employment; 1.2.6. An Order for payment of damages for breach of the contract of empwyment by ' the Respondent; 1.2. 7. Costs; 1.2.8. Interest; and l.Z.9. Any other reliefs the Court deems fit. 1.3. On 14th February, 2024, the Respondent filed an Answer with the Affidavit. , J3 2.0 COMPLAINANT'S EVIDENCE 2.1. On the return day, 11th February, 2025 the Complainant I took the stand. He entirely relied on the Notice of Complaint and its Affidavit. 2.2. There was no cross- examination as the Respondent's Counsel had opted out stating that they were not ready to proceed. This was inspite of the three adjournments granted at their instance and Counsel having been replaced three times within less than one year. , 2.3. And, this was inspite of a further warning on the 8th January, 2025 that, that was to be the last adjournment in favour of the Respondent. 2.4. The record is clear as to how Counsel in their plurality, for the Respondent, inappropriately requested for adjournments as well as just how Counsel, particularly at the last return date excused himself from the hearing. 2.5. No doubt, the main object of this Court is to do substantial justice. Substantial justice is for both , parties. And as far as I am concerned, the Respondent was given plenty time demonstrated in three consecutive adjournments coupled by replacement or is it instructing J4 , new Counsel at each stage and at the time of the scheduled hearing. 2.6. At a time I thought the Court was now being exposed to abuse, I decided to hear the Complainant in the absence of the Respondent as Counsel Mr. G. Lungu of Messrs Muleza M,:viimbu, clearly did not wish to take part in the hearing. 2.7. I proceeded under guidance of the case of Robert Simeza I and Others -V- Elizabeth Mzyeche (2011} Volume 3, ZR 290 for the position that where a party with notice of proceedings has disregarded the opportunity of appearing and participating in the trial, he ·will normally be bound by the decision. No procedural injustice has therefore been occasioned because the Respondent in casu, who was well aware of the proceedings unequivocally decided not to take part in the hearing. 2.8. In his Affidavit, in support of the Notice of Complaint, the Complainant averred that he was employed by the I Respondent as Chief Executive Officer on a fixed term contract of three years, which commenced from 1st February, 2023. 2.9. That, the contract of employment, PM4 provided for a JS three month probation with a possibility of extension of an even duration to allow for assessment of suitability for the role. 2.10. Communication of the assessment as to suitability to hold this position ,:vould be made prior to extension of the probation period. I 2.11. That the Respondent did not conduct any appraisal nor did it communicate any resttlts of the assessment to the end of the probation period, but extended it, anyway. (PMS). 2.12. The Complainant testified further that, he believed the failure to conduct an appraisal and to communicate the results in the initial three months period, before extending it was in breach of the contract of employment. 2.13. That such breach effectively meant that he ought to have I been confirmed in position. 2.14. He further stated that at the expiry of the extended probation, he was served with another extention for one month. (PM9} This, he believed was null and void having served the 6 months. J6 2 .15. He stated that he was served a termination letter on 9 1h August, 2023 which was \vithout notice or indeed payment in lieu of notice. 2.16. That in addition, no reasons were given for such termination. As such this was unfair, wrongful and , unlav.rful. 3.0 RESPONDENT'S CASE 3.1. I stated earlier that the Respondent by its Counsel, appeared at each return date but with an excuse for an adjournment. On the last return date, Counsel clearly stated that he would not take part in the hearing. So I proceeded to hear the Complainant. 3.2. On 21st February, 2025, there was filed an application to set aside this Court's decision to adjourn for Judgment. , This application was refused citing simply the case of Simeza. -V• Elizabeth Mzycehe (2011) Volume 3 ZR 290 for the reason. 3.3. On record however, was an Answer and Affidavit in Support thereof. I rely on this one for my consideration of the issues before me. 3.4. According to Mr. Cornwell Muleya who was the Affiant J7 J of the said Affidavit, having agreed to the contents of paragraphs I to 9 of Affidavit in Support of Notice of Complaint, averred that communication of the Assessment was to be made at the end of the probation , period which probation was terminated on 9th August, 2023. 3.5. He however admitted to having extended the probation period tvvice, stating that it was because of unsatisfactory performance on the part of the Complaint. 3.6. Clearly, he provided no such results for the alleged unsatisfactory performance. 3.7. The rest of the paragraphs constitute mere denials and I as such, especially without justification, were not helpful in resolving issues before me. 4.0 FINDINGS OF FACT 4. I. I find as a fact that the Complainant was employed as Chief Executive Officer for the Respondent effective 1 st February, 2023. 4.2. It was a fixed term of three years. 4.3. It is a fact that, a probation period of three months was I JS enshrined in the contract of employment. 4.4. It is a fact, undisputed, that twice the probation period was extended without affording the Complainant, the benefit of results for assessment. 4.5. It is a fact that there were no assessments or is it appraisals conducted. 4.6. I find as a fact that on 9th August, 2023, exactly six months and a week after employment, the Complainant's employment was terminated. 5.0 ISSUES FOR DETERMINATION 5.1. Whether the extensions of probationary periods dated 27th April, 2023 and 23rd July, 2023 were in line with the contract of employment and or the law. 5.2. Whether entitlements as prayed for are due to the Complainant in their form. 6.0 COURT'S DETERMINATION 6.1. The starting point is always the provisions in the contract of employment in issue. If there is a statute that provides for such terms, such provisions maybe resorted to as a default. As such they will apply only where the J9 contract of employment did not provide for that OR where such provisions would be taken to have been in breach of the law in that they were less in effect, than that provided by the law. 6.2. Following upon this, the exhibit at PM4 is the contract of employment in issue. At clause 4 is this issue of probation period. I vvill quote this rather in extentia: "4.1. You shall be required to serve a probationary period of 3 months, for the I purpose of determining the suitability for confirmation. 4.2. The company shall undertake an assessment during the probationary period and the result of the assessment shall be communicated to you before the end of the probationary period. (Emphasis provided). 4.3. Where required, the probationary period may be extended for a further period not I exceeding 3 months at the discretion of the company. 4.4. Where, during the probation period, the JlO company determines after an a.s.sessment that you are not suitable for the job, the company shall terminate the contract of employment by giving at least 24 hours' notice of the termination. 4.5. The employee on probation may terminate the contract of employment by giving the ' employer at least twenty,:fcrur hours' notice of the termination." 6.3. A Quick perusal of Section 27 of the Employment Code Act No. 3 of 2019 appears to me to be what the contract at hand exactly provided. Subsections (1)(2)(3) and (5) of Section 27 appear to have been lifted hook line and sinker. So I will not reproduce Section 27. 6.4. But one thing is clear that the provisions make it mandatory- "Shall": I 6.4.1. Under take an assessment. 6.4.2. Communicate the results of such assessment to the employee before the end of the probation period, and pri.or to the extention of such period. Jll 6.4.3. It is clear also, from these provisions that if the employer holds the view that an extension is required for further assessment~ such an extention should not exceed three months. 6.5. Without burdening the point, it means that the maximum period allowed by the contract herein which is in compliance with Section 27 herein before referred to, is six {06) months. 6.6. I have already held as a fact that there ,vere no assessments conducted at any point during the first probationary period that should have led, but still led to the extention of this period. I 6. 7. That even in the extended three months probationary period, no assessment or appraisal was conducted that should have led to confirmation or termination as provided for by the contract and the law. But still it was extended by a month for the purpose only of terminating it. 6.8. As I said earlier, there is no evidence to dispute the facts I have relied on. Or indeed any other law to the contrary. Jl2 I 6.9. I am satisfied that the provisions of the contract were breached which makes the termination wrongful and unlawful. I 6.10. I will not shy away from stating that the same rights were protected by the statute/law, and they were breached. This makes it unfair dismissal. 6.11. The above reasoning is particularly so in that the one month extention in a letter dated 31st July, 2023 is , in my view, null and void as the maximum period allowed in the contract as well as the law, for a probation period is only six months after which a decision to confirm or terminate must be made. It cannot be made in the I seventh (7th) month. 6.12. An aggregated award of fourteen 44 months salary for both unfair and wrongful dismissal, is considered not too excessive nor too little. I accordingly award that. 6.12.l. In Joseph Chinto,rifwa -V- Ndola Lime Company Limited (1999) ZR 172; the Supreme Court found that as Appellants job prospects were almost nil, he was entitled to receive 2 years' salaries as damages for wrongful dismissal. I Jl3 6.12.2. T'wo years later, in Nyoni -V-Attorney General (SCZ Judgment No. 11 of 2011) the Supreme Court was urged to reduce the 36 months awarded by the lower Court to 24 months. 6.12.3. The position that the Complainant served in is such that it is unlikely for him to find a job that easily. Further, the loss of value, overtime, of the kwacha as dictated by the harsh economic environment, collectively I convince me to make such an award. Still further the award of 2 years in Chintomfwa -V Ndola Lime was made 26 years ago. And today, I am asked to decide on the award, not only for wrongful dismissal but also for unfair dismissal. There is need for a progressive upward increase in damages1• That is why an a,vard of forty-four (44) months' salary is arrived at here. Not too excessive not too little. 6.13. There is no independent award for breach of contract as Chansa -v-Barclays Bank Pie scz No. 8/128/2011 Appeal No. 111 of 2011 Jl4 such. What has been awarded above takes care of the breaches in the contract. So the relief in 1.2.6 fails for that reason. 6.14. In Employment Law, the breaches of the Employment Contract are what carry the special terms of "unfair dismissal" - which is a breach of the statutory protected rights of an employee. While failure to abide by the disciplinary procedures contained in the contract of employment is what is termed wrongful dismissal. I 6.15. Relief under 1.2.2, (for payment of KS,650,970.00) for the outstanding or remainder or for the period of the contract not worked; 1.2.3. for outstanding leave days, overtime and gratuity (not earned}, cannot be awarded, since these were not worked for. To award such would be unjust enrichment2. 6. 16. Damages for reputational injury: I have not received any evidence that goes to show that the termination of employment caused any sort of injury, let alone I reputational injury. If for some reason there is a mention of it somewhere, then I am settled that that mention is inadequate to satisfy the burden upon the Complainant, it should thus fail as it now does. Robert Simeza and Others-V• Elizabeth Mzyeche (2011) Volume 3 2R 290 Jl5 I have searched the evidence before me severally, but I 6.17. do not see any other award that could justifiably be extended to the Complainant. 6.18. Accrued leave days, overtime and gratuity. I have not received any evidence on these items so they fail. 7.0 CONCLUSION 7 .1. There was wrongful dismissal as well as unfair dismissal for which an aggregated award of forty-four (44) months' salary is awarded. 7.2. There is no award for breach of contract, as such. 7.3. Reliefs affecting unexpired term of the contract, as in relief 1.2.2, cannot be awarded for not having been earned or worked. To do so, would be unjust enrichment. 7.4. The reliefs for accrued leave days, overtime and gratuity fail since the evidence to support these awards, is lacking. 7 .5. I have found that there was no reputational damage in that no evidence was tendered to ground this relief. J16 7.6. The awards here will be subject to interest at the Bank of Zambia Short Tenn Deposit Rate from date of Notice of Complaint, being 161h October, 2023 to date of Judgment, and thereafter at 6% to date of complete J settlement. Matter referred to Registrar for Assessment. 7. 7. I make no Order as for costs. Dated this ......... day of .................................. , 2025. I J l7 I