Horag Mulenga v V. M. General Dealers (2025/HN/IR/39) (25 November 2024) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2025/HN/IR/39 AT THE DISTRICT REGISTRY HOLDEN AT NDOLA (Industrial Relations Division) BETWEEN: HORAG MULENGA COMPLAINANT • AND V.M. GENERAL DEALERS RESPONDENT Before the Honourable Mr. Justice Davies C. Mumba in Chambers on the 25th day of November, 2025. For the Complainant: In Person. For the Respondent: In Person. JUDGMENT Cases referred to: 1. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) Z.R. 172. 2. Es ton Banda and another v The Attorney-General, Appeal No. 42 of 2016. 3. Chilanga Cement v Venus Kasito, Appeal No. 86 of 2015. 4. Bethel Mumba and another v Africa Super Market (Trading as Shoprite Checkers), Complaint No. IRC/ND/80/2015. 5. Sarah Aliza Vekhnik v Casa Dei Bambini Montessori Zambia Limited, Appeal No. 129 of 2017. 6. Zambia China Mulungushi Textile (Joint Venture) Limited v Gabriel Mwami (2004) Z.R. 244 (S.C. 7. Josephat Lupemba v First Quantum Mining Operations Limited, Appeal No. 20 of 2017. 8. Chilanga Cement Pie v Kasote Singogo (2009) Z.R. 122 (S.C). 9. Barclays Bank of Zambia Pie v Weston Luwi and Suzyo Ngulube, SCZ Appeal No. 7 of 2012. 10. Dennis Chansa v Barclays Bank Zambia PLC, Appeal No.Ill of 2011. J2 Legislation referred to: 1. The Employment Code (Shop Workers Minimum Wages and Conditions of Employment) Order, 2023. 2. The Employment Code Act No. 3 of 2019. Other works referred to: 1. W.S Mwenda, Employment Law in Zambia: Cases and Materials: UNZA Press, Lusaka, 2004. 2. Winnie Sithole Mwenda and Chanda Chungu: A Comprehensive Guide to Employment Law in Zambia: UNZA Press. 2021. 1.0. INTRODUCTION 1.1. By notice of complaint supported by an affidavit filed into court on 20th June, 2025, the complainant commenced this action against the respondent seeking damages for unlawful dismissal; payment of a separation package; costs; and any other relief the ·court may deem fit and just under the circumstances. 1.2. The respondent opposed the complainant's claims and in doing so, filed into court an answer and a counter-claim supported by an affidavit sworn to by Maybin Mulenga, Shop Manager for the respondent on 23rd July, 2025. 1.3. It was the respondent's contention that the complainant was not employed as a General Worker but the respondent used to engage him as a causal worker to do piece works. The respondent also contended that the complainant was J3 not unlawfully dismissed but was dismissed after investigations revealed that he was responsible for the goods that were found to have been damaged in th~ respondent's shop which resulted in the respondent incurring losses. The respondent further contended that the complainant was not entitled to the payment of a separation package. 1.4. In its counter-claim, the respondent sought the payment of the value of the goods that were destroyed in the shop by the complainant being K9,000.00 for tissue paper; K700.00 for cafemol; K2,000.00 for nyama soya pieces; K2,000.00 for bottles of drinks; Interest; and costs of these proceedings. 2.0. THE COMPLAINANT'S CASE 2 .1. In his affidavit in support of the notice of complaint, the complainant deposed that he was employed by the respondent on 4th March, 2016 as a General Worker and worked until 20th February, 2025 when the respondent unlawfully terminated his employment without any reason. That he engaged the respondent in an effort to get his dues but all was in vain as the respondent refused, ignored or failed to pay him. That he engaged the Labour a office to help them resolve the matter and during J4 meeting, his dues were calculated but the respondent refused to pay him. He prayed the court to grant him the reliefs he was seeking. 2.2. At the trial, the complainant testified that he was employed by the respondent on 16th January, 2016 as a General Worker on an oral contract on permanent basis. That after one year elapsed, he asked his boss, Victor Mulenga why he had not paid him for his accrued leave days and gratuity and in response, Victor Mulenga told him that he was going to pay him everything at once upon leaving employment. 2.3. That on 10th February, 2025, the respondent dismissed him from employment verbally. That there was nothing written to him about the dismissal and he was not told the reason for his dismissal. 2.4. After three weeks upon realising that he was not being called back for work, he went to lodge a complaint at the Labour office. That the respondent was summoned but they refused to go there. Lydia from the Labour office then phoned Maybin Mulenga (RWl) but Maybin Mulenga told her that he was not going to go there and stated that he could only pay the complainant KS,000.00. JS 2.5. During cross-examination, the complainant stated that Victor Mulenga was the one who employed him. He stated that the shop where he used to work belonged to Victor Mulenga and not Maybin Mulenga. That the company is called V.M General Dealers, the initials V.M standing for Victor Mulenga. He stated that he was employed in 2016 at the age of 15. 3.0. THE RESPONDENT'S CASE 3 .1. In the affidavit in support of the answer and counter claim, the respondent denied having employed the complainant as a General Worker and stated that it used to engage the complainant as a casual worker to do piece works. The respondent also denied that it refused to pay the complainant his dues or neglected to settle the matter ex-curia. 3.2. It was stated that the complainant's employment was not unlawfully terminated but he was placed on one-month suspension pending investigations for the items that were destroyed in the respondent's shop. To that effect, the deponent produced the pictures, "MM 1 (1-4)". That the investigations conducted revealed that the complainant was responsible for the destruction of the said goods which destruction resulted in loss of the respondent's income and that it was on that basis that the decision to J6 dismiss the complainant was made. It was stressed that the respondent incurred losses due to the complainant's carelessness and negligence which was investigated and discovered while he was on suspension. 3.3. At the trial, Maybin Mulenga, Shop Manager for the respondent's shop testified on its behalf as RWl. 3.4. He testified that the respondent was a shop and not a company. That the shop was started by his older brother, Victor Mulenga. That in 2019, after working with him for three years, Victor Mulenga gave the witness the shop as he had another shop in Twapia. 3.5. The witness testified that he had no permanent employees in the shop but he would engage people to do piece works whenever need arose. That in 2020, he phoned his parents in Mansa and asked them to find a relative to assist him run the shop. That his mother sent a boy named Chipasha whom he started working with. He · explained that whenever he ordered merchandise from town, Chipasha would engage the boys that were found outside the shop to assist him offload the merchandise. That among those boys was the complainant who would also assist Chipasha to take the goods into the shop. After that, the witness J7 would give money to Chipasha to pay the boys according to their agreement. 3.6. That the boys were working like that for a period of four years until 2024 when he approached the complainant and explained to him that the manner in which they were working was not beneficial to him because the money was being wasted. That he asked the complainant if he could be keeping the money for him and pay him at months' ends. That the complainant agreed and he started paying him K400.00 per month. 3. 7. He testified that they worked well together but due to limited space in the shop, the witness decided to rent · another shop for use as a storage facility for soya pieces, tissue paper, cafemol and drinks. That the complainant was the one who use to go and collect the items from the same storage shop and take them to the shop. That when going there, the complainant used to go with a new employee named Lucky Chambeshi to assist him carry the items. 3.8. He explained that what used to happen was that whenever the complainant was not working, the witness is the one who used to go and collect the items from the storage and he used to go with Lucky Chambeshi. That normally, they JS would see that the goods that were packed in front were in good condition but the ones behind would be damaged or spoiled. That on 10th February, 2025, he went to the storage shop and found the tissue paper, soya pieces and the drinks scattered everywhere in the shop. That he called the complainant and asked why the items were scattered but the complainant told him that he did not know. 3.9. That when they went back to the shop, the witness noticed a bottle of sundowner beer near his counter and it was opened and drunk from then closed again. That the witness then told the complainant that it was like he had been drinking on duty and that was why goods in the storeroom were scattered. According to him, the complainant was the only one who used to drink beer. That the complainant denied drinking. That the witness got very upset and told the complainant that they were not going to work well since he had drunk some beer and chased him from the shop. That the complainant did not go back to work the next day and only showed up with summons from the Labour office on 25th February, 2025. 3.10. The witness testified that he went to the Labour on 27th February, 202 5 and found the complainant there with his father. That when they entered the office, a lady whose J9 name he could not remember informed him that the complainant had complained that he had been dismissed from employment. That the witness denied dismissing the complainant and told her that the complainant had damaged tissue paper, soya pieces and drinks in his shop. That the lady then told the witness that the complainant was claiming for the payment of what he had worked for. That in response, the witness stated that the complainant had the right to claim for his payments but first he wanted to meet him so that he could account for the damaged goods in the storage shop. That the lady advised them to go together to the storage shop and estimate the value of the damaged goods. That they agreed to meet on 29th February, 2025 at the storage shop to assess the value of the damaged goods but the complainant did not go there. 3 .11. That the witness went back to the Labour office and informed them and they told him that they were going to call him on phone. They advised him to go and assess the value of the damaged goods and take pictures. 3 .12. After leaving the Labour office, he, his wife and Lucky Chambeshi went to the storage shop and found that the actual damage was far worse than he had anticipated and his blood pressure rose. That .he failed to go on to assess the damage and went outside to catch a breath. He then JlO told his wife that it was better to call the complainant's father so that he could see the damage for himself. That his wife went to the complainant's house and found his \ mother and requested to go with her to the storage shop. However, no one from the complainant's family went there to see the damaged goods. After about five days, the witness received a phone call from the Labour office informing him that the complainant was at the Labour office. They also asked if he had taken pictures of the damaged goods and he told them he had. He later went to the Labour office and showed them the pictures of the damaged goods. 3 .13. The witness testified that he informed the Labour office that the damaged tissue paper was valued.at K9,000.00; cafemol at K700.00; soya pieces at K2,000.00; and drinks at K2,000.00. That they asked the complainant if he had seen the pictures and what he .had to say about it. The complainant admitted having damaged the goods. That the lady from the Labour Office then advised that they were going to determine how many leave days had accrued to the complainant and after counting, she found that the amount due to the complainant was about K9,000.00. The complainant was asked if he was going to pay the respondent the value of the damaged goods but he did not respond. The complainant then said that he wanted to go and think about it. Jll 3.14. After some days, the Labour office called him again and informed him that the complainant had decided to take the matter to court. 3 .15. During cross-examination, the witness stated that he was the one who employed the complainant and not Victor Mulenga. He stated that the complainant was working in the grocery shop and not in the storage shop. The witness stated that he had seen the complainant drinking beer. He stated that he had documents showing the goods the complainant had damaged. The witness stated that the complainant did not have rats for him to have damaged the goods. He denied having said that he could only pay the complainant K5,000.00 at the Labour office. 4.0. CONSIDERATON OF THE EVIDENCE AND THE DECISION OF THE COURT 4.1. I have considered the evidence from both parties. 4.2. The facts which were common cause are that the complainant was employed by the respondent as a General Worker. On 10th February, 202 5, RWl found tissue paper, cafemol, soya pieces and drinks in the storage store damaged as shown by the pictures, "MMl(l)-(4)". The same J12 day, RWl chased the complainant from the shop and he never reported back to work afterwards. According to the complainant, he was unlawfully terminated by the respondent. Consequently, the complainant has claimed for the payment of damages for unfair dismissal and a separation package which claims the respondent has vehemently disputed. The respondent has, on the other hand, made a counter-claim in the sum of K13, 700.00 for the shop goods allegedly damaged by the complainant. 4.3. On the whole evidence in this matter, the following are the issues for determination: 4.3.1. Whether the complainant's dismissal from employment was wrongful and/or unfair thereby entitling him to the payment of damages. 4.3.2. Whether the complainant is entitled to a separation package from 10th march, 2016 to 10th February, 2025. 4.3.3. Whether the respondent's counter claim for the payment of K13,700.00 being the value of the shop goods allegedly damaged by the complainant is justified. 4.4. It is trite that the burden to prove any claim made rests solely on the claimant regardless of what may be said of the opponent's case. This was the holding in the case of J13 Wilson Masauso Zulu v Avondale Housing Project1 where the Supreme Court held that: ". . .it is accepted that where a plaintiff alleges, as indeed in any other case where he makes any allegations, it is generally for him tQ prove those allegations. A plaintiff who has failed to prove his case cannot be entitled to judgment, whatever may be said of the opponent's case." 4.5. On the above authority, the onus is, therefore, upon the complainant and the respondent to prove their respective claims. The standard of proof is on a balance of probabilities. 4.6. Before I determine the above issues, I have noted that there is a preliminary issue that has to be resolved, that is, the date when the complainant was employed by the respondent and in which capacity. 4. 7. The complainant has argued that he started working for the respondent on 4th March, 2016, when Victor Mulenga, the owner of the respondent's shop employed him as a General Worker on permanent basis. 4.8. On the other hand, RWl testified that when his older brother, Victor Mulenga handed over the shop to him in 2019, he did not have any permanent employees until he employed a man named Chipasha to work with him. That at the time, the complainant was among the boys who used J14 to be found outside the shop and Chipasha would engage him and the other boys as casual workers to do piece works of offloading items and taking them inside the shop whenever he bought new stock for the shop. That he only employed the complainant to work in the shop in 2024. 4.9. I have considered the arguments from both parties. 4.10. It is not in dispute that initially the respondent's shop was owned and run by Victor Mulenga, the person whom the complainant claimed employed him as a General Worker on 4th March, 2016. The respondent did not call the said Victor Mulenga or any other witness to dispute the complainant's evidence. Further, the respondent claimed that Chipasha, the person who used to work in the shop was the one who used to give the complainant piece works but the said Chipasha was also not called .as its witness too support its case. 4.11. On the evidence on record, I find that the complainant was employed to work in the respondent's shop on 4th March, 2016 as a General Worker until 10th February, 2025. 5.0. WHETHER THE COMPLAINANT'S DISMISSAL FROM EMPLOYMENT WAS UNFAIR AND/OR WRONGFUL J15 THEREBY ENTITLING HIM TO THE PAYMENT OF DAMAGES. 5.1. The complainant has claimed for damages for unlawful ' dismissal. 5.2. In the case of Eston Banda and Another v the Attorney General2, the Supreme Court guided that: "There are only two broad categories for dismissal by an employer of an employee, it is either wrongful or unfair. 'Wrongful' refers to a dismissal in breach of a relevant term embodied in a contract of employment, which relates to the expiration of a term for which the employee is engaged; whilst 'unfair' refers to a dismissal in breach of a statutory provision where an employee has a statutory right not to be dismissed. A loose reference to the term 'unlawful' to mean 'unfair' is strictly speaking, in employment parlance, incorrect and is bound to cause confusion. The learned author, Judge W.S. Mwenda, clarifies on the two broad categories, in her book Employment Law in Zambia: Cases and Materials, (2011), revised edition UNZA Press, Zambia at page 136. She opines that, in our jurisdiction, a dismissal is either wrongful or unfair, and that wrongful dismissal looks at the form of the dismissal whilst unfair dismissal is a creature of statute." 5.3. Based on the above authority, I am of the view that the relief that the complainant is seeking is for the payment of damages for wrongful and unfair dismissal. 5.4. I will start by determining whether the dismissal of the complainant was wrongful. J16 5.5. The scope of the concept of wrongful dismissal has been settled by a plethora of authorities. 5.6. Hon. Judge Dr. W.S. Mwenda, learned author of the book entitled 'Employment Law in Zambia: Cases and Materials' states at page 18 that: "The concept of wrongful dismissal is the product of common law. When considering whether a dismissal is wrongful or not, the form, rather than the merits of the dismissal must be examined. The question is not why, but how the dismissal was effected." 5.7. Further, in the case of Chilanga Cement v Venus Kasito3, the Supreme Court held that: "The concept of wrongful dismissal is ·· essentially procedural and is largely dependent upon the actual terms of the contract in question." 5.8. On the above authorities, for the complainant to succeed in his claim for wrongful dismissal, he has to prove, on a balance of probabilities, that the respondent breached the procedural provisions of his contract of employment iri conducting the disciplinary process or the rules of natural justice. 5.9. The complainant has contended that his dismissal from employment was wrongful because th~ respondent dismissed him from employment verbally. That there was nothing written to him about the dismissal. J17 5.10. On the other hand, in its affidavit in support of its answer and counter-claim, the respondent argued that the complainant was not unlawfully terminated but was placed on one-month suspension pending the outcome of the investigations into goods which were damaged in the respondent's shop. That the investigations revealed that the complainant was responsible for the damage to the goods. He testified that on 10th February, 2025 when he found an opened bottle of beer near the counter where the complainant used to work from, he told th~ complainant that he was drinking on duty but the complainant denied. That he got very angry and chased the complainant away from the shop. That from that day, the complainant did not go back for work but only showed up on 25th February, 2025 with summons from the Labour office. 5.11. I have considered the arguments from both parties. 5.12. It is on record that the complainant was employed under an oral contract and as such, there is no contract of employment or disciplinary code to refer to in determining whether or not the complainant was wrongfully dismissed from employment. 5 .13. That notwithstanding, it should be stressed that there is always the need for an employer to charge an employee J18 prior to his/her dismissal on disciplinary grounds. In the case of Bethel Mumba and Another v Africa Market (Trading as Shoprite Checkers)4, it was held that: "In industrial and labour matters, the need for an employer to charge an employee with a disciplinary offence and to give such an employee an opportunity to be heard before any sanction can be imposed cannot be over-emphasised as the same is the hallmark procedural and legal requirement in dealing with disciplinary process in employment matters." 5.14. Further, in the case of Sarah Aliza Vekhnik v Cash Dei Bambini Montessori Zambia Limited5, the Court of Appeal observed that: "In English law, natural justice is a technical terminology for the rule against bias (nemo judex in casua) and the right to a fair hearing (audi alteram partem), put simply it is the 'duty to act fairly.' The right to a fair hearing requires that individuals should not be penalised by decisions affecting their rights of legitimate expectation unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case." 5.15. Furthermore, the requirement for the rules of natural justice to be complied with in order for a dismissal to be deemed fair was re-affirmed in the case of Zambia China Mulungushi Textile (Joint Venture) Limited v Gabriel Mwami6 where it was held that: "Tenets of good decision-making import fairness in the way decisions are arrived at. It is certainly desirable that an employee who will be affected by an adverse decision is given an opportunity to be heard.'' J19 5.16. In the present case, it is not in dispute that before he was summarily dismissed, the complainant was neither charged for allegedly damaging the shop goods nor given an opportunity to be heard. Further, the respondent's witness claimed that he had suspended the complainant for one month pending the outcome of the investigations into the shop goods that were found damaged in the shop. However, there is no evidence on record proving that the complainant was suspended. What the affidavit evidence has revealed is that when the respondent's witness was convinced that the complainant was the one responsible for damaging the shop goods, he decided to dismiss him instantly. At the time the complainant lodged his complaint with the Labour office, he had already been dismissed. 5.17. On the whole evidence in this matter, I -.find that the respondent's action of dismissing the complainant without charging him and without giving him an opportunity to be heard was contrary to the principles of natural justice. In this regard, I am satisfied that the complainant has, on a balance of probabilities, proved his claim that his dismissal from employment was wrongful. · 5.18. I now turn to determine whether the dismissal of the complainant was unfair. J20 5.19. The learned authors, Judge Dr.- W.S. Mwenda and Chanda Chungu in their book entitled: A Comprehensive Guide to Employment Law in Zambia, state at page 241 as follows: "Unfair dismissal is dismissal that is contrary to the statute or based on unsubstantiated ground. For unfair dismissal, the Courts will look at the reasons for the dismissal for the purpose of determining whether the dismissal was justified or not. In reaching the conclusion that the dismissal is unfair, the Court will look at the substance or merits to determine if the dismissal was reasonable and justified." 5.20. On the above authority, it follows that unfair dismissal is one where a specific statutory provision has been breached by an employer when dismissing an employee or one where a dismissal has been based on unsubstantiated reasons. 5.21. The complainant has argued that the respondent dismissed him from employment without telling him any reason for his dismissal. 5.22. On the other hand, the respondent argued that on 10th February, 2025, when RWl went to the shop which was used as a storage facility for drinks, soya pieces, cafemol and tissue paper, he found the aforesaid goods damaged and scattered everywhere in the shop. To that effect, the respondent produced the pictures, "MMl(l)-(4)". That when he asked the complainant about ~he same, he expressed ignorance. That investigations were instituted J21 and it was found that the complainant .. was the one responsible for damaging the goods which resulted in the loss of income on the part of the respondent. The respondent has alleged that the goods got damaged as a result of the complainant's carelessness and negligence. 5.23. I have considered the parties' opposing arguments. 5.24. From RWl's testimony, it appears that the reason he concluded that the complainant was the one who was responsible for the goods that were found to have been damaged was that the complainant was the one who had been assigned to be collecting goods from the shop which was being used as a storage facility and take them to the shop they used to sale from. 5.25. However, as found above, the respondent did not formally charge the complainant and give him an opportunity to be heard in order to prove the allegation against him before his dismissal. 5.26. Further, the evidence on reGord has revealed that the complainant was not the only person who had access to the storage shop. RWl testified that whenever he was going to the shop, the complainant would go with another employee named Lucky Chambeshi. RWl also testified J22 that he used to go to the storage shop himself when the complainant was not around. Furthermore, apart from RWl merely stating that the complainant was the one who used to go and fetch the goods from the storage store, RWl did not show to the court that the complainant was the one who was assigned the responsibility of ensuring that the goods were kept in good order/condition but he failed in his duties. 5.27. On the whole evidence in this matter, I find that the respondent has failed to prove that the complainant was the one who damaged the tissue paper, cafemol, soya pieces and drinks that were kept in the storage shop. It follows, therefore, that the reason given by the respondent for the dismissal of the "complainant was not substantiated. In the circumstances, I hold that the complainant's dismissal from employment was unfair. 5.28. In summary, I have found that the complainant's dismissal from the respondent's employment was both wrongful and unfair; and he is accordingly entitled to the payment of damages for wrongful and unfair dismissal. 5.29. In the Eston Banda2 case, the Supreme Court guided that the general measure of damages where there is nothing extra ordinary is an amount equivalent to the notice J23 period provided in the contract or in the absence of such provision, a reasonable period. 5.30. From the above authority, it is settled that the normal measure of damages that applies is the contractual length of notice or the notional reasonable notice where the contract is silent. However, .the normal measure is departed from where the circumstances and the justice of the case so demand. 5.31. In discussing the factors that warrant departure from the common law measure of damages in the case of Josephat Lupemba v First Quantum Mining and Operations Limited7, the Court of Appeal referred to two leading cases of Chilanga Cement Pie v Kasote Singogo,8 and Barclays Bank (Z) Pie v Weston Luwi and Suzyo Ngulube9 , decided by the Supreme Court. The Court of Appeal observed at page JS of the judgment that: "We note that in the two cases, the Supreme Court guided on the factors to be taken into consideration to award damages beyond the common law practice of notice period. Some of the considerations are future job prospects, inconvenience, stress and abruptness of termination. In so guiding, the emphasis was that the trial Court should consider all the circumstances of each case and where it considers that a particular case is deserving, it should go beyond the common law measure of damages." 5.32. In the case of Dennis Chansa v Barclays Bank Zambia Plc10 , the Supreme Court upheld the lower courts award of 36 J24 months salaries as damages on the ground that as global economies deteriorate, the chances of finding employment even by graduates are dimmer. 5.33. On the facts of this case, I have decided to depart from awarding the complainant damages equivalent to the notional reasonable notice period having considered the fact that the chances of finding employment in the current domestic and global economic environment are dimmer. Further, his dismissal from employment was done abruptly and without any justifiable reasons. Therefore, I award the complainant damages equivalent to twelve (12) months of his full pay for the wrongful and unfair dismissal from employment. 5.34. The complainant did not state how much his monthly salary was but RWl told the court that he used to pay him K400.00 per month. I note that K400.00 is way below the minimum wage provided for under the Employment Code (Shop Workers Minimum Wages and Conditions of Employment) Order, 202 3 which came into effect on 1st January, 2024. 5. 3 5. According to sub-paragraph 1 of paragraphs 3 and 4 of the. schedule to the said Order, the minimum basic pay for a General Worker is Kl,487.00 per month. Further, sub- J25 paragraph 4 provides for transport allowance at K200.00 per month and sub-paragraph 10 provides for housing allowance at the rate of 30% of the employee's basic pay, which, in this case, translates to K446. l per month. This gives a total of K2,133.10 full pay per month. Therefore, the complainant's damages shall be calculated based on K2,133.10. K2,133.10 multiplied by 12 months gives a total of K25,597.20 which is the total amount of damages I award to the complainant. 6.0. WHETHER THE COMPLAINANT IS ENTITLED TO A SEPARATION PACKAGE FROM I Orn MARCH, 2016 TO I Orn FEBRUARY, 2025. ' 6 .1. With regard to this claim, the complainant did not adduce any evidence as to what benefits had accrued and were payable to him at the time of his dismissal from employment. He merely testified that the respondent had refused to pay him his dues. However, it is trite that all employees accrue leave days and from the evidence on record, it is clear to me that the complainant did not go on any leave during the subsistence of his employment. Therefore, I find that the complainant is only entitled to the payment for his accrued leave days as his separation package. J26 6.2. Neither the complainant nor the respondent informed the court as to how many leave days the complainant was entitled to per month. In this r!;!gard, recourse shall be had to section 36 of the Employment Code Act No. 3 of 2019 which provides for at least two days per month. 6.3. As found above, the complainant worked for the respondent from 4th March, 2016 to 10th February, 2025 giving a total of 106 full months. Therefore, he had accrued a total of 212 leave days at the time of his dismissal from employment. Using the formular provided in the Employment Code Act for the commutation of accrued leave days, that is, full pay x accrued leave days/26 (K2,133.l x 212/26), I find that the amount due to the complainant for accrued leave days is Kl 7,392.96. Therefore, I enter judgment in favour of the complainant in the sum of Kl 7,392.96 being payment for accrued leave days 7 .0. INTEREST 7.1. I have awarded the complainant damages in the sum of K25,597.20 and the sum Kl?,392.96 for accrued leave days, making a total sum of K42,990.16. The said sum of K42, 990.16 shall attract interest at the average short-term deposit rate from the date of the notice of complaint to the date of judgment; and thereafter, at the current J27 lending rate as determined by the Bank of Zambia until full ' settlement of the judgment debt. 8.0. THE RESPONDENT'S COUNTER-CLAIM 8.1. The respondent has counter-claimed for the payment of the sum of K13,700.00 being the value of the damaged goods in the storage store allegedly damaged by the complainant. 8.2. Having found that the respondent has failed to prove that the complainant was the one who damaged the tissue paper, cafemol, soya pieces and drinks that were kept in the storage shop, it follows thcJ,t the respondent's claim for the payment of the sum of Kl 3,700.00 cannot stand and is accordingly dismissed. 8.3. COSTS 8.4. Lastly, both the complainant and the respondent prayed for the award of costs of these proceedings. 8.5. Costs in this Division can only be awarded in accordance with Rule 44 of the Industrial Relations Court Rules, Chapter 269 of the Laws of Zambia. The said Rule 44 provides: .. J28 "Where it appears to the Court that any person has been guilty of unreasonable delay, or of taking improper, vexatious or unnecessary steps in any proceedings, or of other unreasonable conduct, the Court may make an order for costs or expenses against him." 8.6. In the present case, I find that none of the circumstances listed under Rule 44 of the Industrial Relations Court Rules which could have persuaded me to award costs to either the complainant or the respondent had arisen. Therefore, I make no order for costs. 9.0. Leave to appeal is granted. Delivered at Ndola this 25th day of November, 2025 . ..... , ~.. ............. € Davies C. Mumba HIGH COURT JUDGE