Kelvin Kapapilo and 13 Ors v Unitrans Freight Logistics (2021/HPIR/665) (15 November 2024) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2021 / HPIR/ 665 INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (CIVIL JURISDICTION) u,~AKA BETWEEN: f. 1 5 fD;; 2024 KELVIN KAPAPILO AND 13 OTHERS - --:--J COMPLAINANTS r::- i.:AL AND UNITRANS FREIGHT LOGISTICS RESPONDENT CORAM: Hon. E. MWANSA Esq JUDGE APPEARANCES: . . For the Complainant In Person - By Mr. Kapapilo K. with Mr. Harrison Mamfuka For Respondent : Mr. N. Kamanga- Messrs Justine Legal Practitioners Dates : 27th February, 2024 th 14 May, 2024 1 Qth October, 2024 JUDGMENT Authorities Referred to 1. The Industrial and Labour Relations Act Chapter 269. 2. The Employment Code Act No. 3 of 2019. Jl .. 1.0 THE COMPLAINANT'S CASE 1.1. The fourteen (14) Complainant's reached this Court by way of a Notice of Complaint filed pursuant to Section 85(4) and Rule 9 of the Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia. 1.2. They seek the following relief: 1.2.1. Salary arrears; 1.2.2. Leave days; 1.2.3. Unpaid allowances; and 1.2.4. Costs and any other benefits the Court may deem fit. 1. 3. In the evidence by CW 1 Kelvin Kapapilo and CW2 Harrison Mamfuka, the fourteen Complainants were employed verbally by the Respondent on different dates and different positions. A list of names stating dates of employment positions as well as the dates of dismissal was produced even though not numbered. 1. 4. That the Respondent was not paying salaries from the date it employed the Complainants on 12th July, 2021 to 31st August, 2021. Basically for one month. 1. 5. It appears however, that CW 1 was paid some K2, 000. 00 as final terminal pay, instead of KS,000.00 as agreed, per month. J2 1.6. There is before Court as exhibited by the Complainant (CWl), a document where he acknowledged receipt of K2,000.00 as final settlement. He however stated that he then added some writings showing that he is owed a further KB,000.00. He should not have added anything after the parties had already agreed. 1. 7. The other witness for the Complainant Harrison Mamfuka (CW2) said nothing material to the claims. He was not helpful to his own course. 1.8. But he did testify that he was employed on 24th July, 2021 as a General Worker where they were working on roads. His salary was said to be Kl,200.00. 1.9. According to him, they worked but were never paid any salary. So on 4th November, 2021, they sought counsel from the Labour Commissioner's Office. 1. 10. There is no evidence in respect of the other Complainants who did not come to Court. 2.0 THE RESPONDENT'S CASE 2.1. The Respondents did not call any witness. It relied on the Answer and Affidavit in Support of Answer. J3 2.2. In respect of CWl - Kelvin Kapapilo, the Respondent state that they indeed had engaged him on an oral contract on 14th July, 2021. 2.3. But that on 3rd September, 2021, while still on probation, his contract was terminated. 2.4. He was then paid K2,000.00 as final settlement since his salary was K2,500.00 and he had an advance of KS00.00. 2.5. The Respondent said nothing about CW2 and the other Complainants. 3.0 COURT'S POSITION 3.1. I have no problem in holding that the other twelve Complainants have probably abandoned their claims in this case. I say so because there is completely nothing said in respect of anyone else apart from CW 1 and CW2. 3. 2. In respect of CW2 he only stated that he was not paid salaries, at Kl,200.00 per month from date of engagement being 24th July, 2021. He did not even state when he was dismissed. 3.3. Well, there is no dispute that the two, CWl and CW2 only J4 worked for one month and few days. I tend to agree with the Respondent that they were only on probation when they were dismissed. 3.4. The Respondents state that there were contracts executed, but these have not been availed to Court. 3.5. Now, there is evidence that CWl was paid some K2,000.00, and that he had an advance of K500.00, I tend to believe this as they were working away from their homes. So they needed food. More probable than not, CW 1 or even CW2 could have taken some advance for up keep. For that reason I tend to believe the Respondent even though there is no evidence for this position. 3.6. In respect of CW2, there is a testimony that his salary was Kl,200.00. "He who alleges must affirm", goes the common legal parlance. Since the Respondent has said nothing contrary to this and they had a chance to do so. I am satisfied that CW2 has affirmed his allegation and he is owed Kl,200.00 as a salary for work done. I award him that. 3.7. For the two of them, CWl and CW2 they were clearly on probation for only one month when they were dismissed. There is thus no leave days accrued. JS 3.8. On unpaid allowances, no one has mentioned any allowance which they were entitled to during their probationary period. As such, the claim under this head must fail too. 4.0 CONCLUSION 4.1. I am settled that CWl was paid what his entitlement was for one month he worked with the Respondent. 4.2. CW2 is awarded Kl,200.00 to attract interest at the Bank of Zambia Short Term Lending Rate from November 2021 to date and thereafter at 6% to date of complete settlement. 4.3. All told, this suit is successful only in respect of the salary for CW2 Harrison Mamfuka. I make no Order as to costs. Dated this ......... day of ................. . ................................... E. MWANSA HIGH COURT JUDGE J6