Victor Chimuka Siamuzyulu v Computicket Zambia Ltd & Another (COMP NO. IRCLK/608/2021) (1 October 2024) – ZambiaLII

t IN THE HIGH COURT OF ZAMBIA COMP NO. IRCLK/608/2021 AT THE PRINCIPAL REGISTRY INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA BETWEEN: OURTo - - LPSAKA 10;~ VICTOR CHIMUKA SIAMUZYUL COMPLAINANT SEAL AND ELATION COMPUTICKET ZAMBIA LIMITED 1 ST RESPONDENT SHOPRITE (AFRICA SUPERMARKETS LIMITED) RESPONDENT 2ND Coram: Chigali Mikalile, J this 1st day of October, 2024 For the Complainant: Mr. S.M. Lungwebungu -Messrs SCPM Legal Practitioners & Mr. Y. Daka - Messrs Lusitu Chambers For the 2rtd Respondent: Mr. S. Mambwe - Messrs Mambwe Siwila & Lisimba Advocates JUX>Gl.VIENT Legislation refrred to: 1. The Employment Code Act No. 3 of 2019 2. The Industrial and Labour Relations Act Chapter 269 Cases referred to: 1. Frida Kabao Phiri (Sued as Country Director of Voluntary Services Overseas Zambia) v. Davies Tembo, SCZ Apeela No. 04/2020 J 1 , I 2. Kahalu v. Finance Bank Zambia Limited Appeal No. 96/ 2012 3. Nitrogen Chemicals of Zambia Limited v. Boyd Chomba Mutambo & Others SCZ 75/2014 4. Chilanga Cement Plc. v. Kasote Singogo (2009) ZR 122 Texts referred to: 1. Mwenda, W.S. & Chungu, C. A Comprehensive Guide to Employment Law in Zambia, 2021, UNZA Press Introduction 1. The complainant alleges that either a redundancy situation took place or he was constructively dismissed. He premised his allegation on the fact that he was redeployed to work as Regional Human Resources Manager under the 2nd respondent from the position of Sales Manager under the 1st respondent. Apparently, the 1st respondent's operations and business diminished following the outbreak of the Covid-19 pandemic. According to the complainant, he has no qualifications for the position of Regional HR Manager. 2. It is against this background the he commenced action on 10th November, 2021. By an amended Complaint dated 25th April, 2022, he seeks the following reliefs: (i) A declaration that by the letter dated 2Jth August, 2021 and by a further letter dated 4th October, 2021 and further by the complainant's letter dated 9th October, 2021, a redundancy took place. J 2 .. J • (ii) An order for payment of a redundancy package/ pay calculated in accordance with the law (iii) In the alternative, a declaration that by the letter dated 27th August, 2021 and by a further letter dated 4th October, 2021 and further by the complainant's letter dated 9th October, 2021, the complainant was constructively dismissed (iv) An order for damages for constructive dismissal (v) Damages or compensation for loss of employment on account of discrimination (vi) Payment of severance pay in accordance with the law (vii) Interest on all sums found due (viii) Any other relief the Court may deem fit (ix) Costs of and incidental to these proeceedings 3. In answer to the complaint, the respondent stated that the 1st respondent was voluntarily wound up in 2017 and remained a division/ department of the 2nd respondent. Even before being wound up, it was not the complainant's employer. 4. Following a reduction in the activities of the 2nd respondent's computicket department, the complainant was required to transfer to another position within the 2nd respondent's business. He refused to take up the position and absconded from work. He terminated his own employment by desertion. 5. The 2nd respondent's position was that the complainant 1s not entitled to a redundancy package because the company that employed him is still in existence and had given him other duties which he refused to perform. He is not entitled to damages for J 3 .. constructive dismissal either because his conditions of service were not altered. Affidavit evidence 6. In the affidavit in support of complaint dated 10th November, 2021, the complainant deposed that he was employed by the respondent as Data Clerk in 1997 and rose through the ranks. In 2014, he was appointed Sales Manager for Computicket Zambia Ltd. The offer of employment letter dated 30th April, 2014 and the contract of employment are exhibited to the affidavit as "VCSl" and "VCS2" respectively. In line with his contract, his employment was to terminate upon attaining the age of 55. 7. On 27th August, 2021, he was served with a letter ("VCS3") advising him of the respondent's decision to redeploy him to the position of Admin Manager Designate at Shoprite with new conditions of service. According to the complainant, the position and the conditions of service that were being offered to him were lower than what he was currently entitled to. 8. Prior to giving him the letter, the respondent explained that there would be some changes due to the impact of the Covid-19. He was also asked to hand in the personal to holder motor vehicle that he was using for work. He averred that neither was he consulted nor did he agree with management over the change in his conditions of service. According to the complainant, he felt that the change was actually a termination of his employment J 4 thus sought guidance from the Labour office. Exhibited as "VCS4" collectively are his letter and the Labour office's response. 9. He availed the letter to the respondent and asked them to pay him the appropriate dues before offering him another job but they went silent. Instead, they appointed him to the position of Regional Human Resource Manager as indicated in the letter marked "VCSS" knowing very well that the position requires a particular skills set and qualifications that he does not possess. 10. The respondent has refused or neglected to do anything to clarify their position hence this action. 11. The respondent's affidavit in support of Answer filed on 25th November, 2021, was deposed by Andrew Mutangambelwa Mwala, the 2nd respondent's Human Resources Manager. 12. He averred that the complainant was employed by the 2nd respondent as Sales Manager under a written contract. Clause 10.1 of the contract was categorical on the fact that the complainant was employed by the company as a whole and therefore may be required to accept a transfer to another branch within the company. Clause 3 complemented clause 10.1 and provided that the complainant could also be required to transfer to another position on a permanent basis. J 5 13. Pursuant to those contractual prov1s1ons, and when the need arose, the complainant was redeployed as Regional Human Resources Manager by letter dated 27th August, 2021. Prior to this, the complainant had been redeployed as Admin Manager Designate but this was withdrawn and replaced by the letter of 27th August. However, the complainant refused to take up the redeployment and stopped reporting for work. He even returned his October, 2021 salary. The complainant continued absenting himself despite the chances given to him to return to work, resulting into desertion of work. 14. Mr. Mwala further deposed that the 1st respondent is not in existence, having been voluntarily wound up in 2017. Its assets were bought by the 2nd respondent as majority shareholder. Hearing 15. The complainant testified on his own behalf and called one other witness. The respondent called one witness. Complainant's case 16. The complainant testified in line with his affidavit evidence. He added that when he received the letter of 27th August and realized that his salary and bonus would be reduced and that his company vehicle was going to be taken away, he approached the HR Manager for him to interpret the letter which appeared to be demotion. The complainant was informed that his options were either to take up the position or resign as that was what they J 6 could offer at that moment. He sought an interpretation from the Labour office and the Labour Commissioner wrote to him explaining that what had happened was either a constructive dismissal or a redundancy situation. The commissioner invited the respondent for an amicable resolution of the matter but the respondent declined the invitation. 17. According to the complainant, he began reporting at head office as he could not function in his old office. He wrote various emails seeking feedback but there was no response. He produced the emails and they were admitted in evidence marked Pl. Subsequently, he was given a new position of Regional Human Resources Manager which he could not take up because he was not qualified. His fear was that he would end up being dismissed for non-performance. His qualifications are in IT and accounts. 18. He explained that back in 1997 when Shoprite was computerizing its business, it needed an IT personnel and he was asked to enter data in computers. He said this did not mean that he worked in H.R. 19. He asked for other options but was told there was none. The letter of appointment did not specify where his office would be. He then started feeling insecure as he slowly realized that he may not be in employment. He sought assurance from the General Manager but received none. J 7 20. On 9th October, 2021, he asked the respondent if he had been declared redundant in light of the fact that there was nothing else to offer him. Subsequently, he handed over company property to H.R and left. At the month end of October, 2021, the respondent sent him a salary which he was uncomfortable to receive as he had not worked the full month. He returned the money and asked the respondent to calculate the actual days. 21. The respondent then wrote a letter of desertion and dismissed him in November alleging that he had terminated his services by desertion. 22. In concluding, the complainant told court that he was unfairly treated. He ought to have been declared redundant and paid his dues as was the case with his colleagues in South Africa, Botswana, Namibia and Mozambique. He also told court that Computicket is still operational and his then assistant is now the manager. 23. In cross examination, the complainant stated that he has been in the employ of Zambian Potato Company since 1st November, 2021. He interviewed for the job on or about 30th October, 2021. He denied the assertion that he left the respondent's employment because he was offered his current job. J 8 -I 24. The complainant admitted that he moved to Lusaka HR in 1997 as a pay roll clerk and was promoted to payroll supervisor. He worked until 2000 then moved to accounts department. 25. On his journey with Computicket, the complainant stated that 1n the new contract, Computicket was his employer. Computicket was under Africa Supermarket. He admitted that his offer letter was not from Computicket and that his contract of employment was with Africa Supermarkets Ltd. It does not mention Computicket. The contract also says that he would be reporting to the General Manager for Africa Supermarkets; that he could be moved to another position on permanent basis. 26. When referred to clauses 10.1 and 10.2 of the contract, the complainant stated that the company being referred to was Computicket and this is despite the fact that it is not mentioned anywhere in the contract. He also stated that he only learnt that computicket was wound up in 2017 and became a division of Africa Supermarkets when he read the respondent's Answer. When referred to pages 18 to 22 of the respondent's bundle of documents, the complainant accepted that Africa Supermarkets absorbed the assets for Computicket. 27. On the position of regional HR Manager, the complainant stated that he refused the offer because he was not qualified and is not a member of the institution to which HR practitioners belong. He also stated that the letter of offer for regional HR J 9 manager offered training for his new position but there were no details. According to the complainant, the offer was reactive and without any discussion. Thus, he did not see any good will. 28. He admitted that the company used clause 3 of the contract to redeploy him and according to the offer letter, his remuneration would remain the same. 29. In re-examination, the complainant told court that he never applied for his current job but that he met a colleague who sympathized with him and asked him if he was interested in joining Zambian Potatoes. 30. CW2 was Lambe Mulenga whose testimony was that he moved to Computicket from Shoprite in 201 7 in the position of Country Supervisor under the complainant. He, however, moved back to Shoprite in 2018 due to disciplinary issues. During a discussion with the complainant after Covid struck, the complainant informed him that Computicket was going to close and that he had been offered a regional HR position. Computicket was an events company and all events were cancelled during Covid. The complainant however declined the position and was ultimately dismissed. 31. To his knowledge, Computicket 1s a company under Shoprite and is still running in Zambia. The same cannot be said J 10 about other countries like South Africa, Botswana, Namibia and Mozambique. 32. The witness was not cross examined. Respondent's case 33. The 2nd respondent's sole witness was Andrew Mwala, the Human Resources Manager. It was his testimony that the 1st respondent does not exist. Following the down turn of business on account of Covid, the complainant was offered another role within the Shoprite group in line with clause 3 of his contract of employment. His redeployment was not in any way going to affect his conditions of service and this was made clear to him. 34. The complainant wrote back indicating that he was not willing to take up the new role. The respondent reminded him of his contractual obligations and further warned him that failure to report to his work station would attract disciplinary action. The complainant opted to defy management's instructions and stayed away for more than 10 days which, according to the company's disciplinary code, amounted to desertion. His contract was terminated for desertion. 35. According to the witness, the respondent does not appreciate why the complainant is of the view that a redundancy situation occurred. The position he held has since been filled up by another person J 11 j the contract that allowed Africa Supermarkets to transfer an employee from one subsidiary to another. Clause 10.1 speaks to a branch within the same company. 40. Still in cross, the witness stated that when looking for an HR person, they look for qualifications and experience in HR and membership to the institute. He acknowledged that the complainant does not have a qualification in HR management and is not a member of the Human Resource Institute and that the respondent gave him the position despite these shortcomings. 41. The witness further acknowledged that the complainant wrote a letter of resignation ("VCSS") and a response was written in which the complainant's concerns were addressed. 42. In re-examination, Mr. Mwala corrected that Computicket did not wind up as a result of Covid. The notice to wind up was as per board resolution in 2017. He also emphasized that the complainant was not an employee of Computicket but Africa Supermarkets engaged to perform specific tasks relating to Computicket activities. Submissions 43. Both parties filed written submissions for which I am most grateful. J 13 ../ Analysis and decision 44. I have carefully considered all of the evidence and the written submissions from each party. I find as a fact that the complainant was employed as a Sales Manager on 1st May, 2014 on permanent and pensionable terms. On 27th August, 2021, the complainant was redeployed to the position of Admin Manager Designate but this was withdrawn and replaced by redeployment to the position of Regional HR Manager on 4th October, 2021 . He, however, refused to take up th e position and ultimately the employment relationship ended. 45. On the one hand, the complainant submits that his employer in 2014 was the 1st respondent company, a subsidiary of the 2nd respondent. The complainant as an employee was not informed or put on notice of the voluntary wind up of the 1st respondent 1n 201 7. According to the complainant, the wind up did not culminate in the complainant having a new contract with the 2nd respondent. 46. On the other hand, the 2nd respondent submits that the complainant was employed by the 2nd respondent and was later given duties to manage the business of Computicket which business later closed. When he was ultimately redeployed as Regional HR Manager by the letter J 14 .J I /' ' of 4th October, 2021, he was informed that his remuneration package would remain the same. 4 7. I have considered the opposing views as regards which company employed the complainant 1n 2014. In determining the issue, I have examined the offer of employment letter dated 30th April, 2014 and the contract of employment with the commencement date of 1st May, 2014. 48. The offer letter, while stating that the complainant was being employed as Sales Manager for Computicket Zambia Ltd, is on a letter head for Africa Supermarkets Ltd. The contract of employment indicates that it is between Africa Supermarkets Limited and Victor Chimuka Siamuzyulu. The combined effect of the two documents, in my understanding, is that the complainant was employed to be manager for Computicket in 2014 but was not employed by Computicket. I, therefore, find that he was employed by the 2nd respondent and remained its employee until he left employment. Thus, that he was not informed of the winding up of the 1st respondent is inconsequential. 49. In any case, had he been employed by the 1st respondent, he would have been out of employment as soon as the 1st respondent was wound up. I, therefore, have no qualms accepting the respondent's evidence that what used J 15 .J to be the 1st respondent company remained a division or department of the 2nd respondent. 50. Having established who the employer was, I will proceed to determine the main issue in contention, that is, whether or not the employment contract ended by way of redundancy or constructive dismissal. Whether or not a redundancy situation occurred 51. It was submitted on behalf of the complainant that the 2nd respondent decided to move the complainant to another position due to reduced or diminished activities of Cumputicket as a result of the impact of Covid-19 pandemic. In doing so, the 2nd respondent did not seek the consent of the complainant and simply wanted to alter the terms by force. It was argued that the complainant was set up to fail as h e was given a position that he was not qualified or trained for. 52. It was further submitted that the letters dated 27th August, 2021 and October, 2021 terminated the 4 Lh contract of employment by way of redundancy. 53. On the other hand, counsel for the 2nd respondent submitted that the redeployment was done in line with clause 3 of the contract of employment which provided that duties could change and the complainant could be J 16 transferred to another position. Counsel also submitted that the 2nd respondent offered to continue employing the complainant but the complainant refused and subsequently left employment. 54. It was further argued that the 2nd respondent has not ceased to carry on business by which the complainant was engaged. As such, there was no redundancy as provided for under the Employment Code Act, 2019. 55. I have considered the foregoing arguments. Indeed redundancy is provided for under section 55(1) of the Code Act which states as follows: An employer is considered to have terminated a contract of employment of an employee by reason of redundancy if the termination is wholly or in part due to - (a.) the employer ceasing or intending to cease to carry on the business by virtue of which the employees were engaged; (b) the business ceasing or diminishing or expected ceasing or diminishing the requirement for the employees to carry out work of a particular kind in the place where the employees were engaged; or (c) an adverse alteration of the employee's conditions of service which the employee has not consented to. 56. As for the situation under paragraph (a), it is a fact that the 2nd respondent did not cease to carry on the business by virtue of J 17 J which employees were engaged. The 2nd respondent did not close down its operations and business. 57. Paragraph (b) of section 55(1) provides that the diminished role of employees to carry out work is a valid ground for redundancy. Thus, where there is reduction in the requirement for employee to perform work of a particular kind or where there is less work for existing employees, a redundancy situation occurs. 58. As established, the complainant was employed as a Sales Manager in the 2nd respondent's Computicket department and as the evidence has shown, the activities of this department reduced due to the Covid-19 pandemic. On the face of it, a redundancy situation occurred. However, before a conclusion can be made if indeed there was a redundancy, it is important to consider the fact that the complainant was given another role in line with his contract of employment which contract provided that he could be transferred to another department. The new role he was offered was that of HR manager. 59. It is not in dispute that the complainant had no known HR qualifications and was not affiliated to the Human Resources Institute as is a requirement for human resource practitioners. It is also not in dispute that the complainant refused to take up this role because he did not deem hi1nself competent for the role. J 18 60. In light of the foregoing, I ask myself if it can still be said that there was no redundancy. 61. To help me determine this issue, I have had recourse to the case of Frida Kabaso Phiri v. Davies Tembo(1l where the employee's position was phased out and removed following a restructuring process but a new position was created. The Supreme Court opined that by accepting the new position, the employee was not entitled to claim redundancy, given that he was still needed by the employer and a position was made available to him. His need in the employer's organization was neither terminated nor diminished. In essence, the fact that the employee did not dernonstrate that the alternative employment was not suitable led to the conclusion that he could not claim redundancy. 62. In light of the above reasoning, I agree with the complainant's submission that where the employee proves that the alternative position offered him is not suitable and he declines to tal<:e it up, a redundancy situation occurs. It boils down to the fact that the e1nployee's position is surplus to requirements. 63. I, therefore, find that a redundancy situation did occur herein and the complainant is entitled to a redundancy package. A perusal of the contract of employment reveals that there is no clause on redundancy and as such recourse is to the Employment Code Act. Section 55(3) provides for a payment of J 19 not less than two rnonths' pay for every year served and other benefits the employee is entitled to as compensation for loss of employment. 64. I now turn to the effective date of redundancy. The complainant holds the view that the letters dated 27th August, 2021 and 4th October, 2021 terminated the contract of employment by way of redundancy. However, the evidence has shown that the letter of 27th August, 2021 was actually withdrawn as the 2nd respondent recognised its error of varying the conditions of service to the complainant's detriment without his consent. This is the reason why paragraph (c) of section 55(1) is, in my view, inapplicable to this situation. Had that letter not been withdrawn, 27th August, 2021 would have been the effective date. 65. l ·opine that 9th October, 2021 is the date a redundancy occurred as this is the date the complainant out rightly declined to take up the position of Regional HR Manager (offered in the letter of 4th October, 2021) for which he was not qualified. Whether or not the complainant was constructively dismissed 66. The complainant is seeking this claim in the alternative. contended on his behalf that the letter dated 9th October 202 ' a1nounted to constructive dismissal since the complainant did n accept the respondent's repudiatory conduct. J 20 • 67. The 2nd respondent on its part denied unlawful behavior amounting to a breach of contract to warrant resignation by the complainant. It was argued that the complainant opted to stop reporting for work and eventually left employment. 68. I have carefully considered the opposing views. The learned authors of 'A Comprehensive Guide to Employment Law in Zambia' have this to say about constructive dismissal at page 269: Constructive dismissal occurs when an employee, seemingly on his own volition terminates his contract of employment by resigning, while the real reason for that action is that he is protesting against management's conduct. For constructive dismissal to be claimed the employer's conduct must be so serious that it amounts to a repudiation of the contract and the employee must clearly indicate that he is resigning or being forced to leave employment due to such conduct. 69. In the case of Kahula v. Finance Bank Zambia Limited(2l the Supreme Court quoted Lord Denning in the case of Western Excavating Ltd v. Sharp(l 978) I.R.L.R where he stated that: If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. He is constructively dismissed. The employee is entitled in these circumstances to leave at the instant without giving any notice at all or alternatively, he may give notice and say that he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. J 21 • 70. Further in the case of Nitrogen Chemicals of Zambia Limited v. Boyd Chantha Mutambo and Others(3l cited by the complainant, the Supreme Court outlined the elements of constructive dismissal when it stated as follows: It is also plain there are three basic requirements for a constructive dismissal claim (1) the employee must resign (2) the Resignation must be in response to a fundamental breach of contract (3) the employee must act promptly and in response to the breach, so that he or she is not taken to have implicitly agreed to continue with the contract. (underlined for emphasis) 71. What can be gleaned from these authorities is that an employee can properly claim to have been constructively dismissed if he is forced to resign as a result of employer's unlawful conduct amounting to a fundamental breach of the contract of employment. 72. I will now consider the circumstances of this case to determ.ine if what occurred was in fact constructive dismissal at law. 73. It is common cause that the complainant resigned on 9th October, 2021. 74. In relation to the 2nd element, the respondent argued, and rightly so, that the contract of employment between the parties allowed the e1nployer to deploy the employee to any position in the company. J 22 75. I, therefore, agree that by transferring the complainant to the HR department, the respondent acted within the terms of the contract. Contrary to the complainant's argument, he was not transferred to another subsidiary but a department within his employer's organization. In the case of Michael Kahula v. Finance Bank Zambia Ltd (supra), the Supreme Court found that there was no constructive dismissal as the respondent had contractual powers to transfer the appellant to any department even in the absence of a transfer request from him. 76. However, I have considered what was stated by the Supreme Court in the case of Chilanga Cement Plc. v. Kasote Singogo(4l cited by the respondent. The Court at page 137 held: "The notion of constructive dismissal is anchored on the concept that an employer must treat his employee fairly and should not act in a manner that will compel the employee to flee his job". 77. Premised on this authority, it can be resolved that an employer acted unlawfully if it is found that the employer unfairly treated the employee. 78. As found, the complainant was offered a job for which he was not qualified and I tend to agree with his argument that he was being set up for failure. One wonders how he was expected to practice more so that he was not a member of the Human Resource Institute. J 23