Alcious Mulwiida v Wilsar Logistics Limited (2021/HN/IR/68) (30 September 2024) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2021/HN/IR/68 AT THE DISTRICT REGISTRY HOLDEN AT NDOLA (Industrial Relations Division) BETWEEN: ALCIOUS MULWIIDA COMPLAINANT AND RESPONDENT Before the Honourable Mr. Justice Davies C. Mumba in Chambers on the 30th day of September, 2025. For the Complainant: In Person. For the Respondent: Mr. C. Mumba, Lumangwe Chambers. JUDGMENT Cases referred to: 1. Elizabeth Sokoni Mwenya v CFB Medical Centre Limited, SCZ Appeal No. 009 of 2015. 2. Chilanga Cement v Venus Kasito, Appeal No. 86 of 2015. 3. Sarah Aliza Vekhnik v Cash Dei Bambini Montessori Zambia Limited, Appeal No. 129 of 2017. 4. Zambia China Mulungushi Textile (Joint Venture) Limited v Gabriel Mwami (2004) Z.R. 244 (S.C. 5. Bethel Mumba and another v Africa Super Market (Trading as Shoprite Checkers), Complaint No. IRC/ND/80/2015. 6. Zambia National Provident Fund v Yekweniya Mbiniwa Chirwa (1986) Z.R. 70 (S.C). 7. National Breweries Limited v Phillip Mwenya, SCZ Judgment No. 28 of 2002. 8. Eston Banda and Edward Dalitso Zulu v The Attorney General, Appeal No. 42 of 2016. 9. Josephat Lupemba v First Quantum Mining Operations Limited, Appeal No. 20 of 2017. J2 10. Chilanga Cement Plc v Kasote Singogo (2009) Z.R. 122 (S.C). 11. Barclays Bank of Zambia Plc v Weston Luwi and Suzyo Ngulube, SCZ Appeal No. 7 of 2012. Legislation referred to: 1. The employment Code Act No. 3 of 2019. 2. The Industrial Relations Court Rules, Chapter 269 of the Laws of Zambia. 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. Lusaka, 2021. 1.0. INTRODUCTION 1. 1. By notice of complaint supported by an affidavit filed into court on 19th September, 2022, the complainant commenced this action against the respondent seeking an order declaring his dismissal from employment as wrongful and unfair; damages for wrongful and unfair dismissal; damages for loss of employment, mental and emotional distress; payment of gratuity; payment for accrued leave days; payment of three months' salary arrears; refund of K300.00 for toll fees; refund of USD200.00 for axle replacement; interest on all the amounts to be found due; and costs of the proceedings. 1.2. The respondent opposed all of the complainant's claims and in doing so, filed into court an answer and an affidavit in opposition on 7th October, 2022 sworn to by Chance J3 Sumani, Administrative Manager 1n the respondent · company. 1.3. It was the respondent's contention that the complainant was dismissed in accordance with the respondent's disciplinary code of conduct. The respondent also contended that the complainant was only entitled to the payment of gratuity upon the successful completion of his contract. It was further contended that the complainant was indebted to the respondent in the sum of USDI,438.00 which it intended to recover from the complainant. Furthermore, that the respondent had made an advance payment to the complainant in the sum of USD935.00 which covered the complainant's three months' salary arrears, leaving an excess balance of USD479.00 which the complainant owed the respondent. The respondent also argued that it sent USD605.00 to the complainant when he had a breakdown in the Democratic Republic of Congo (DRC). That the respondent had covered the cost of fuel for the whole trip and gave the complainant the sum of USDI,780.00 as mileage to cover all trip expenses but the complainant failed to account for the same. 2.0. THE COMPLAINANT'S CASE 2 .1. In his affidavit in support and at trial, the complainant · testified that he was employed by the respondent on 16th • J4 August, 2021 as a Truck Driver on a one year fixed term contract although he was not given a copy of his contract of employment. That he was instantly and unceremoniously dismissed on 10th August, 2022. 2.2. The complainant testified that he had worked for 10 months without signing a written contract. He stated that he had requested the respondent to be paying his salary through his bank account but the respondent was paying him through his mobile money account instead. That his monthly salary was K2,500.00 but the respondent used to deposit K2,300.00 in his mobile money account. 2.3. He testified that immediately his contract was renewed, he was assigned a truck to go with to the DRC. The complainant explained that whilst in the DRC the tyres on the truck got worn out as they had not been changed in 10 months. That he informed the respondent that he had a problem as two tyres on the trailer had burst due to overloading on that particular day which resulted in the axle on the trailer to cut. That he used his own money amounting to USD200.00 to remove the said axle and to pay the men who assisted him. That after removing the axle from the trailer, they put it on the space between the trailer and the horse at the place where the fuel tank was and put it on the horse. • JS 2 .4. That he travelled back to Zambia using the same truck and trailer and put it in the garage. That the respondent told him that it was going to repair the tyres that had burst, the three airbags, the ball-joints, the brake booster and the hanger of the airbag. However, after they finished working on the vehicle, the respondent asked the complainant to sign some document to indicate that he was going to reimburse the respondent for the spare parts that were replaced but the complainant refused to do so. Later, they asked him to go and put fuel in the truck and at the same time, gave him the same document and his contract of employment to sign. That he signed the contract of employment but refused to sign the other document. He was told that if he refused to sign the document, he was going to be taken to the Police. As a result, he also signed the same document and told the respondent that he was going to take the matter to court. 2.5. The complainant testified that after putting fuel in the truck, he went to the mine to load acid after which he went to the DRC. That on 14th July, 2022 while in the DRC, the truck developed a fault and he traveled back and forth between Zambia and DRC. That he made a total of four trips upto the time the truck was fixed. That the truck had developed problems with the clutch plate, pressure plate, clutch server, release bearing and a folk. When he phoned the respondent about the breakdown, they told him to look • J6 for people who could remove the faulty parts. The faulty parts were removed and he brought them to Zambia. He was given new parts. He also told the respondent that the people who dismantled the gear box had demanded for USD200.00 and also showed them the receipt for the clutch server he bought at USD200.00. The respondent refunded him both amounts and he went back to DRC. That when he fitted the new spares onto the truck, the truck could still not move as the new spare parts were not compatible. He took the new spare parts back to the respondent in Zambia and the respondent asked for more time to look for other spare parts. The respondent then bought and gave him second hand spare parts which he went to fit on the truck back in DRC. However, the folk could not fit so he bought one in Lubumbashi which he fitted and it worked. He stated that the money he used was the money which was meant for toll fees and parking which was USDl0.00 per day for 28 days. 2.6. He stated that after he left DRC, before he reached the toll gate, he phoned the respondent to inform them that he had used money amounting to USD280.00 which was meant for toll fees to pay for parking and USD200.00 to buy a gear stick for the vehicle to move. That they had sent him USDS00.00 for toll fees from Likasi Mine in Hauchine Mabende mine where he had offloaded acid from Zambia: That when he phoned the respondent whilst at Mokambo J7 border, the respondent told him to return the vehicle and that it was the end of his job. That his wife sent him K300.00 for toll fees and K200.00 to pay the Police. 2.7. The complainant testified that when he reached Kitwe, the respondent sent him 50 litres of diesel but did not send him the money for toll fees and money to pay the police for the worn out tyres as well as for expired road tax and fitness. He stated that when he arrived, he took the vehicle to the garage but did not give them the documents for proof of delivery because he wanted them to pay him three months' salary arrears for May, June and July. 2.8. The complainant explained that when he returned to Zambia on 10th August, 2022, he was told that he could no longer work for the respondent as they blamed him for the breakdowns. That his contract was terminated when it was supposed to expire in April, 2023. That when the respondent noticed that his contract period was almost exhausted, it found it fit to dismiss him on baseless and unsubstantiated accusations to avoid paying him his gratuity. That the respondent accused him of causing the vehicle breakdowns but the respondent was fond of overloading vehicles, an act which tended to overstretch the vehicles' capacity. JS 2.9. He stated that his dismissal from employment was wrongful and unfair as he was never warned, charged nor given a chance to exculpate himself. That there were also no investigations conducted to establish the facts. That he had just arrived from DRC where his life was at risk due to the prevailing political environment in that country but the respondent, without regard to his emotional and mental distress, instantly dismissed him without justifiable cause. He stated that the respondent must be ordered to pay him punitive damages for the wrongful and unfair dismissal; his accrued leave days and his gratuity as his contract period had almost elapsed when the respondent dismissed. 2.10. That he lodged a complaint at the Labour .Office but his boss still refused to pay him. 2.11. During cross-examination, the complainant admitted that he was employed by the respondent as a Truck Driver but he denied having been placed on three months' probation. He admitted that his second contract was for a period of one year but denied signing it on 16th November, 2021. He stated that the contract was not expiring on 16th November, 2022. When referred to the contract, 'CS2 ', he denied signing the said contract. He stated that he was not given a copy of the contract that he had signed. He stated that he could not remember how many trips he had made to • J9 DRC. He admitted that immediately his contract was renewed, he was assigned a truck to go with to the DRC but he had a break down only on 14th July, 2022. That it was the same trip on which the truck was overloaded. That he was able to know that the truck was overloaded because of the documents he had although he did not produce them before court. He stated that the truck was not in good condition when it was given to him. That there was no agreement which spoke to the condition of the vehicle. When referred to the agreement, 'CS3', the complainant stated that it was the document that he was forced to sign and that he did not read through the document before signing it. That he was threatened to be taken to the Police if he did not sign it. He denied committing any crime. When referred to the agreement, 'AMI', the complainant stated that he signed the document on 24th May, 2022 and when referred to the agreement, 'CS3' again, the complainant stated that he was forced to sign it. 2.12. He confirmed that he had a breakdown on 14th July, 2022 and stated that he informed the respondent about the breakdown the same day it happened. He denied that the breakdown was reported by other truck Drivers. He stated that he was given USD580.00 to cover for all the trip expenses including toll fees and not USD 1,870.00. That it did not cater for fuel expenses because the respondent had a filling station where they used to refuel full tanks. JlO 2 .13. The complainant stated that he did not have anything to show that the respondent used to pay him K2,300.00 instead of K2,500.00 because they used to deposit the money in his mobile money account. That his phone did not show mobile money transactions. He stated that he spent USD200.00 to remove the axle from the truck but the only person who could attest to that was in DRC. That he also spent USD280.00 on parking but they did not issue him receipts for parking in DRC as it was the Police Officers who were collecting the money. He also stated that when the truck broke down on 14th July, 2022, he left DRC to take spare parts to Zambia. He confirmed that he had loaded acid which was considered to be dangerous goods. That he was away for five days and he left the truck with Police Officers and the respondent was aware of that fact. 2.14. In re-examination, the complainant stated that after signing his contract, he was not given a copy. He denied having received the sum cif USD 1,870.00 from the respondent. 3.0. THE RESPONDENT'S CASE 3 .1. In its affidavit in opposition, it was averred that the Complainant was employed by the respondent on 16th August, 2021 as a Truck Driver on probation for three • Jll months as shown by the contract of employment, 'CSl'. That the complainant was on 16th November, 2021 employed in the same capacity on a one year contract, as shown by the contract, 'CS2'. It was stated that on 24th May, 2022, the complainant was assigned a truck to go with to the DRC and the said truck was given to him in good state and condition, as shown by the letter, 'CS3' which was signed by the complainant approving the good state of the truck. That while in the DRC, the complainant had a breakdown but contrary to the respondent's company policy he did not inform the respondent about the breakdown. That the complainant stopped answering the respondent's phone calls and on certain occasions, he would turn off his phone. That the respondent only became aware of the breakdown after being informed by other Truck Drivers. It was deposed that by a later phone conversation with the complainant, it came to the respondent's attention that the complainant had travelled to Ndola and Lusaka without the respondent's permission leaving the truck in the DRC for a long period of time unattended to notwithstanding the fact that it was carrying dangerous goods. 3.2. It was stated that upon reporting back from his trip from DRC on 10th August, 2022 and upon the respondent asking for the bill of lading, the complainant refused and began to behave unreasonably. J12 3. 3. The deponent averred that the complainant was given USDl,780.00 as mileage to cover all travel expenses but he failed to produce receipts to account for the said money. Further, that the respondent was not indebted to the complainant for three months' salary arrears. That the complainant was paid his salary in full and the respondent made a salary advance of USD935.00 as shown by the account report, 'CS4'. That as a result, the complainant was indebted to the respondent in the sum of USD935.00. 3 .4. Furthermore, that the complainant was indebted to the complainant in the sum of USDl,438.40, being the cost of spare parts for the damage caused to the respondent's truck due to his negligence and recklessness. To that effect, the respondent produced the letter, 'CSS' signed by the complainant showing the damaged parts on the truck and the quotation for spare parts, 'CS6'. It was stated that the complainant was found guilty of abandoning the truck in DRC for a long period of time and being absent from work for a continuous period of 5 working days. That the complainant was asked to write a letter of exculpation but he refused and continued to ignore the respondent's pleas to have him heard. 3.5. At the trial, Dhir Abdul Rashid, Director in the respondent company testified on behalf of the respondent as RWl. I J13 3.6. The witness testified that the complainant used to work for the respondent as a Driver and he used to drive the truck bearing registration number BCA 9774 and trailer registration number BCE 2932. That the complainant was employed towards the end of August, 2021 and he was placed on three months' probation as shown by the contract of employment, "CSI" dated 17th October, 2021 exhibited to the respondent's affidavit in opposition. 3. 7. The witness testified that on 16th August, 2021, the complainant was assigned to drive the truck from Chambishi Copper Smelter. That he loaded sulphuric acid and he was headed to Mubende Mine in DRC. That before he reached Mubende Mine, the complainant phoned him and informed him that an airbag from the trailer had burst. That the witness told the complainant that he was going to send him another airbag which was in good condition with a Mechanic to fit it, but the complainant told him not to do so. That the complainant told him that he was going to manage to drive the truck in the same condition in. which it was and offload the goods. That they would then work on the airbag upon his return to Zambia. 3.8. That the complainant managed to drive to the mine but before he could offload, the complainant informed him tha.t the truck had developed another problem. That three J14 more airbags for the trailer had burst, two hungers were broken and two more tyres had burst. Further, that the axle for the trailer had been cut completely. That the complainant told him that he could still manage to offload despite the damage to the truck. 3.9. The following day, the complainant informed him that he had managed to offload and that he was starting off for Zambia. That the complainant arrived at the respondent's garage on 22nd May, 2022. The witness told him that the damage to the truck was as a result of his careless and negligent driving. That the complainant admitted and undertook to repair the truck and bear the cost of repairs as shown by the letter, "CSS". Thereafter, the witness went to mega spare parts workshop and bought spare parts for the replacement of the damaged parts. That they prepared the quotation, "CS6", which came to a total of USDl,438.00. That he informed the complainant about the cost of the spare parts and the complainant agreed to it and signed the letter, "CSS". 3.10. The witness testified that the complainant did not pay anything towards the cost of repairs to the truck but the respondent bore the costs and the truck was fit to move again. That after the truck was fixed, the respondent sent the complainant to load sulphuric acid at Chambishi Copper Smelter. After loading, the complainant left for . JlS Hauchine mine in the DRC. That before reaching the mine and Lubumbashi, the truck developed a mechanical fault. That the gear lever had a problem. The next day, the witness tried to communicate with the complainant but his phone was off. That he then asked the respondent's other Drivers who were in DRC to look for the complainant and establish what exactly was the problem with the truck. That they did not find the complainant but they found the truck locked. That he again tried to communicate with the complainant but his phone was still off. Then the witness went to the complainant's home in Ndeke, Ndola and found the complainant there. That when they spoke, the complainant informed him that he had travelled to Ndola to look for a spare part so that he could fix the gear box problem. That the witness asked the complainant why he left the truck in the DRC without informing them and the complainant conceded that he had made a mistake. 3.11. That the complainant accepted the spare part that the witness had and the witness also gave him USDl00.00 to enable him travel back to the DRC and he travelled back the next day. That when he reached the place where the truck had a break down near Lubumbanshi, the complainant informed him that the spare part that the witness had given him was not compatible with the truck's gear box. Therefore, he wished to travel back to Ndola to look for the correct spare part. That the complainant J16 travelled back to Ndola the next day with the defective sample spare part and the witness found one which was compatible with the truck's gear box. That the witness tried to phone the complainant but his phone was switched off and he did not find him at his house. That it took eight to nine days to find the complainant who told him that he had gone to his farm and that the phone battery had drained. That the witness told the complainant that it was wrong of him to leave the truck which was carrying a dangerous substance as it could leak or anything else could happen. That the complainant apologised and requested for a salary advance of USD300.00 to enable him travel back to the DRC and he was given. That before he could travel back to the DRC, the complainant requested for another salary advance in the sum of USD200.00 and he was given, as shown by the document, "CS4." 3.12. That the complainant went back to the truck in the DRC and fitted the spare part that he was given. However, the truck did not move. That the complainant demanded for more spare parts to fix the gear box for the truck and requested for more money to buy the said spare parts. The witness testified that the respondent's agent in Lubambashi gave the complainant USD405 and the complainant told him that he bought the spares but the truck still did not move. That they sent more money to the agent in the sum of USDS00.00 which he gave to the J17 complainant. That the complainant told him that he bought the spare part and fitted it on the truck. Thereafter, he proceeded to Haushin mine in Congo where he offloaded the sulphuric acid. After offloading, the complainant started coming back to Zambia around August, 2022. That the complainant entered into Zambia through the Mukambo border and headed to the respondent's garage in Ndola. That when he reached the garage, the Administrator requested for the bill of lading but the complainant did not give her. That when the Administrator informed him that the complainant had not given him the bill of lading, the witness tried to communicate with the complainant but the complainant refused to give him the bill of lading. That he, therefore, reported the matter to Ndeke Police station and he was given two Police officers to go with him to the complainant's home where they collected the bill of lading from the complainant after the Police Officers spoke to him. 3 .13. That the next day, the complainant went to the respondent's garage and the witness requested for receipts for the spare parts he· bought in DRC. However, the complainant shouted at him and walked away. That the complainant told him that he had no right to request for the receipts and that they never used to give receipts after buying spare parts in the DRC. • J18 3.14. Two days later, the complainant served him with a letter from the Labour Office. They both went to the Labour office the next day and they had a meeting with an officer from the Labour office. That the witness produced all the details of all the money the respondent gave to the complainant whilst he was in the DRC. That the complainant complained about the dismissal letter he had • been given by the Office Administrator and the witness explained that the reason the complainant was dismissed from employment was because he left the truck loaded with sulphuric acid, which was a dangerous substance, unattended to without informing the respondent. That they did not conclude the meeting because the complainant walked away from the meeting; 3.15. The witness referred the court to the document marked "CS4" and explained that on 6th August, 2022, the complainant collected USD405.00 and USDl00.00 from the respondent's agent in Lubambashi. That on 7th August, 2022, the complainant collected USDS00.00. That USD35.00 appearing on the document was commission for the agent. 3.16. The witness denied all of the complainant's claims. J19 3 .17. In cross-examination, the witness stated tha.t he could not remember the name of the agent from whom the complainant collected the sums of USD405.00 and USD500.00 but he could confirm that the complainant had collected the money. He stated that when he requested for the receipts, the complainant told him that they never used to give receipts in the DRC. He stated that the Police are the ones who collected the bill of lading from the ti complainant. 3.18. The witness stated that they refused to pay the complainant his claims because he left the truck which was loaded with sulphuric acid unattended to. That the complainant also damaged the respondent's truck which damage he acknowledged by signing. He stated that the complainant was the one who brought the truck into Zambia after going back for it in the DRC. He stated that the complainant damaged the truck when he drove it with a punctured tyre to the mine thereby damaging the axle for the trailer which got cut, the airbag and the hangers. That when the complainant informed him that the truck had suffered the said damage, he asked the complainant about what was to follow and the complainant told him that he was going to make a plan. That the complainant then put the axle on the truck and managed to drive the truck to Ndola. The witness admitted that the complainant's job was to drive the truck and not to repair the truck. He stated • J20 that the complainant was not supposed to buy spare parts for the respondent's truck but he could buy spare parts for the respondent's truck that he was using. That despite that he was not supposed to buy spare parts for the respondent's trucks, but when out of Zambia and needed spare parts, the complainant could notify the respondent and the respondent could send him money in order for him to buy the spare parts. He stated that the truck was fixed by Mechanics hired by the complainant but the witness paid for the expenses. That he did not know how much the complainant paid the Mechanics because he did not give him the receipts. 4.0. CONSIDERATON OF THE EVIDENCE AND THE DECISION OF THE COURT 4.1. I have considered all the evidence before me. 4.2. It is common cause that the complainant was employed by the respondent as a Truck Driver on 16th August, 2021 on a fixed term contract for three months, "CSl" and he was assigned to drive the truck bearing registration number BCA 9774. On 16th November, 2021, the contract was renewed for a period of one year as shown by the contract, "CS2." Under clause 4 of the said contract, the complainant's full pay was K2,500.00. J21 4.3. During the course of his employment, the complainant was assigned to go to the DRC where he had a break down and some parts of the truck got damaged. When he returned to Zambia in May, 2022, the respondent had the damaged parts repaired and in some placed replaced altogether. The complainant was informed that he was to bear the cost of the damaged parts on allegation that the damage was as a result of his reckless driving and negligence. On 24th May, 2022, the complainant signed the letter, "CS5" wherein he admitted having damaged the truck parts on the respondent's truck as listed on the said letter. 4.4. The complainant was again assigned to go to the DRC using the same truck upon loading sulphuric acid and whilst in the DRC, in July, 2022, the truck broke down. The complainant left the truck in the DRC and travelled back to Ndola. He was given spare parts by the respondent which he went back with to the DRC to fit on the truck. When he returned to Zambia on 10th August, 2022, the respondent summarily dismissed the complainant from employment on allegation that he had abandoned the truck in the DRC for a long period of time and was absent from work for a continuous period of five days without permission. 4. 5. Dissatisfied with the respondent's decision, the complainant commenced this action against the respondent seeking various reliefs. • J22 4.6. From the evidence in this matter, the following are the issues for determination: 4.6.1. Whether the complainant's dismissal from employment was wrongful and/or unfair thereby entitling him to the payment of damages. 4.6.2. Whether the complainant is entitled to the payment of damages for mental and emotional distress. 4.6.3. Whether the complainant is entitled to the payment of three months' salary arrears for May, June and July, 2022. 4.6.4. Whether the complainant is entitled to the payment for accrued leave days and gratuity. 4.6. 5. Whether the complainant is entitled to the refund of K300.00 for toll fees and USD200.00 for axle he replaced on the truck. 4.6.6. Whether the complainant is entitled to the payment of costs of these proceedings. 4.7. It is trite that the burden to prove any claim made rests solely on the complainant regardless of what may be said of the respondent's case. This was the holding in the case of Elizabeth Sokoni Mwenya v CFB Medical Centre Ltdi where the Supreme Court held that: "A claimant always bears the burden of establishing his or her case. This requires that the complainant proves any allegation made, by adducing evidence to support such allegation, to the required standard." • J23 4.8. Therefore, the onus is upon the complainant to prove his claims. The standard of proof is on a balance of probabilities. 5.0. WHETHER THE COMPLAINANT'S DISMISSAL FROM EMPLOYMENT WAS WRONGFUL AND/OR UNFAIR THEREBY ENTITLING HIM TO THE PAYMENT OF DAMAGES 5 .1. The scope of the concept of wrongful dismissal has been settled by a plethora of authorities. 5.2. 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." 5.3. Further, in the case of Chilanga Cement v Venus Kasito2, 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." 5.4. 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 disciplinary procedure outlined in his conditions of service or the rules of natural justice. • J24 5.5. With regard to the concept of unfair dismissal, the learned authors, Judge 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." 5.6. On the above authority, for the complainant to succeed in his claim that he was unfairly dismissed, he must show that a specific statutory provision was breached by the respondent or that the dismissal · was based on unsubstantiated reasons. 5.7. In the present case, the complainant has claimed that his dismissal from employment was wrongful and unfair because he was never charged with any offence or given a chance to exculpate himself. Further, that there were no investigations conducted to establish the charges that were levelled against him. That the respondent dismissed him on baseless and unsubstantiated accusations to avoid paying him gratuity. • J25 5.8. On the other hand, the respondent contended that the complainant was dismissed in accordance with its disciplinary code of conduct. The respondent has argued • that the complainant was found guilty of the offences of abandoning its truck for a long period of time in ~he DRC; and being absent from work for a continuous period of five days. That the complainant was asked to write an exculpatory statement but he refused to do so and ignored the respondent's pleas to have him heard. 5.9. I have considered the arguments from both sides. 5.10. From the outset, I have noted that the respondent did not produce its disciplinary code of conduct that it purportedly complied with when dealing with the complainant's case. Nonetheless, I will proceed to determine if, when dealing with the complainant's case, the respondent had complied with the rules of natural justice. I must stress that it is a settled principle of employment law that termination of an employee's contract of employment on grounds of rp_isconduct or disciplinary grounds is one of those cases where the rules of natural justice apply. 5 .11. In the case of Sarah Aliza Vekhnik v Casa Dei Bambini Montessori Limited3, the Court of Appeal observed that the requirement for the rules of natural justice to be J26 complied with in order for a dismissal to be deemed fair was re-affirmed in Zambia China Mulungushi Textiles vs Gabriel Mwami4 where the Supreme Court 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."' 5 .12. In the present case, there is no evidence on record indicating that the respondent had actually charged the complainant for the alleged offences of abandoning the respondent's truck and being absent from work for a continuous period of five days. There is also no evidence supporting the respondent's assertion that the complainant was asked to write an exculpatory letter but he refused to do so. Therefore, I am satisfied that the respondent never charged the complainant with the offences for which he was dismissed. 5.13. It should be stressed that there is always the need for an employer to formally charge an employee prior to his/her dismissal on disciplinary grounds. I am persuaded to adopt the decision of the High Court in the case of Bethel Mumba and Another v Africa Market (Trading as Shoprite Checkers)5, where 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 • • J27 hallmark procedural and legal requirement in dealing with disciplinary process in employment matters." 5.14. In casu, it is clear that the respondent breached the rules of natural justice when dealing with the complainant's case before dismissing the complainant from employment as the respondent did not charge the complainant with the alleged offences and accord him an opportunity to be heard. 5.15. However, the matter does not end there. The question that now begs the answer is whether the complainant committed any offence for which he could be dismissed from employment, even though he may not have been formally charged with it. 5.16. In the case of Zambia National Provident Fund v Y.N. Chirwa6, it was held that: "Where it is not in dispute that the employee has committed an offence for which the appropriate punishment is dismissal and is also dismissed, no injustice arises from failure to comply with the laid down procedure in the contract and the employee has no claim on that ground for wrongful dismissal or a declaration that a dismissal is a nullity." 5.17. Further, in case of National Breweries Limited v Phillip Mwenya7, the Supreme Court held that: "Where an employee has committed an offence for which he can be dismissed, no injustice arises for failure to comply with the procedure stipulated in the contract and such an employee has no claim on that ground for wrongful dismissal". • J28 5.18. In this case, the respondent alleged that whilst in the DRC, the complainant had a breakdown but he did not inform the respondent. That the respondent heard about the breakdown from other Drivers. That RWl tried to get in touch with the complainant via phone but his phone was off. That when he finally spoke to the complainant, he discovered that the complainant had abandoned the truck for eight to nine days and had travelled to Ndola and Lusaka without the respondent's permission. 5 .19. On the other hand, the complainant denied having abandoned the truck. He stated that he only left the truck for five days in the custody of the Police in DRC when he travelled to Zambia to get spare parts for the truck and the respondent was aware. 5.20. I have considered the parties' opposing arguments. 5. 21. It is not in dispute that when the complainant had the break down in the DRC, the complainant travelled back to Zambia and left the truck in the DRC. The respondent alleged that the complainant was absent from work for a continuous period of five days when he abandoned the truck in the DRC for about eight or nine days without informing the respondent. J29 5.22. However, the respondent did not state the exact dates on which it claimed that the complainant abandoned the truck and absented himself from work without permission. Merely stating that the complainant abandoned the truck in the DRC and stayed away for eight or nine days was not sufficient. It is in evidence that the complainant had travelled from the DRC to Ndola from the DRC to get the spare parts for the truck. He was given the said spare parts by the respondent which he went and fitted on the truck when he got back to the DRC. 5.23. Therefore, the respondent ought to have formally charged the complainant and accord him an opportunity to be heard in order to establish if indeed the complainant had abandoned the respondent's truck and stayed away from work on specific dates for more than five days without permission. Without following the aforementioned disciplinary process, the respondent cannot be said to have established the alleged charges against the complainant. I find that the offences for which the complainant was dismissed were not substantiated. 5.24. In this regard, therefore, I find that the complainant's dismissal from employment was wrongful and unfair and as such, he is entitled to the payment for damages for both wrongful and unfair dismissal. • J30 5. 2 5. In the case of Es ton Banda and Edward Dalitso Zulu v The Attorney General8, the Supreme Court guided that the general measure of damages where there is nothing extra ordinary is an amount equivalent to the notice period provided in the contract or in the absence of such provision, a reasonable period. 5.26. 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. 5.27. 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 Limited9, the Court of Appeal referred to two leading cases of Chilanga Cement Pie v Kasote Singogo10 and Barclays , Bank (Z) Pie v Weston Luwi and Suzyo Ngulube11 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 • J31 is deserving, it should go beyond the common law measure of damages." 5.28. In the present case, the complainant was dismissed from employment on unproven allegations that he had abandoned the respondent's truck in DRC for a long period of time and he was absent from work for a continuous period of five days without informing the re~pondent. The respondent dismissed the complainant abruptly without charging him and according him an opportunity to be heard. 5.29. In the circumstances of this case, I am satisfied that the complainant deserves an award of damages more than the normal measure of common law damages. Therefore, I award the complainant damages equivalent to nine months of his last basic salary plus allowances. 5.30. According to the complainant's last contract of employment, "CS2", the complainant was in receipt of full pay of K2,500.00 per month. That amount multiplied by nine months gives a total of K22,500.00 being the damages I award to the complainant. 6.0. WHETHER THE COMPLAINANT IS ENTITLED TO THE PAYMENT OF DAMAGES FOR MENTAL AND EMOTIONAL DISTRESS J32 6: 1. The complainant did not lead any evidence before the Court as proof of his having suffered any mental and emotional distress. Therefore, this claim cannot stand and is accordingly dismissed. 7.0. WHETHER THE COMPLAINANT IS ENTITLED TO THE PAYMENT OF THREE MONTHS' SALARY ARREARS FOR MAY, JUNE AND JULY, 2022 7 .1. The complainant has claimed that the respondent did not pay him his salaries for May, June and July, 2022. 7.2. The respondent argued that it did not owe the complainant any salary arrears as he was paid the said salaries in full. That the respondent had paid the complainant salary advances amounting to USD935. That the said amount covered_ the complainant's three months' salaries, leaving an excess balance of USD479.00 which the complainant owed the respondent. 7. 3. I have considered all the evidence on record. 7.4. I have found the respondent's evidence of having paid the complainant advance salaries to be unreliable. This is because in its affidavit in opposition, the deponent averred that the complainant was paid a total of USD935 as advance salary while during trial, RWl testified that he J33 paid the complainant the sums of USDl00, USD300 and USD200 as advance salaries, giving a total of USD600. Further, the document marked "CS4" which the respondent relied on as proof of monies paid to the complainant indicated that the complainant was paid advance salaries of USD300 on 4th August, 2022; USDl00 on 6th August, 2022; and USD535 on 7th August, 2022 altogether amounting to USD935. However, in his testimony, RWl stated that the USD535 was for spare parts that the complainant had requested for and it was sent to the complainant through its agent who retained USD3 5 as his commission. 7.5. It can be seen from the foregoing that the respondent's evidence as it relates to paying the complainant's salary advances was inconsistent and not credible and as such, cannot be relied upon. 7.6. In this regard, therefore, I am satisfied that the respondent did not pay the complainant his salaries for the months of May, June and July, 2022. I find that the complainant is entitled to the payment of three months salaries for May, June and July, 2025. 7.7. According to his contract of employment, "CS2", the complainant was getting a full pay of K2,500.00. Therefore, I enter judgment in favour of the plaintiff in the • J34 sum of K?,500.00 being salary arrears for the said three months. 8.0. WHETHER THE COMPLAINANT IS ENTITLED TO THE PAYMENT FOR ACCRUED LEAVE DAYS AND GRATUITY 8.1. As regards the complainant's claim for accrued leave days and gratuity, the respondent did not dispute owing the complainant payment for such terminal benefits. However, the respondent contended that the reason the complaint was not paid his money was because he owed the respondent the sum of USDl,438 for spare parts it bought to repair its truck which the complainant had damaged due to his reckless and negligent driving. That the complainant had accepted to bear the cost of the damaged spare parts as shown by the letter, "CSS" and the quotation, "CS6." 8.2. The complainant stated that he was forced to sign the said letter because the respondent threatened to take him to the Police if he did not sign it but he informed the respondent that he was going to take the matter to Court. 8.3. There is no evidence on record showing that the complainant had actually taken the matter to court or lodged a complaint with any institution about having been forced to sign the letter, "CSS". In fact, after signing the letter, the complainant continued performing his duties • J35 normally until he was dismissed. Therefore, I am satisfied that the complainant signed the said letter freely and voluntarily. 8.4. Whereas it is not in dispute that the complainant had accepted the list of the truck parts as reflecting those that were damaged on the truck as listed on the said letter. "CSS" there is nowhere in the letter where it is indicated that the complainant had undertaken to bear the cost of the damaged parts. Therefore, the complainant cannot be held liable to pay for the cost of the parts that got damaged during the course of his employment. If the respondent was of the view that the truck parts got damaged due to the complainant's negligent of reckless driving, he should have been charged and given an opportunity to exculpate himself on the allegations of being negligent or reckless. I find that the respondent failed in its duty to comply with the rules of natural justice so as to hold the complainant culpable. 8. 5. In this regard, therefore, I would find in favour of the complainant for the payment for accrued leave days and gratuity as per his contract of employment without deducting the money spent by the respondent on the acquisition of spare parts from the total to be found due. • J36 8.6. According to the two contracts, "CSl" and "CS2" under which he served the respondent, the complainant was getting a full pay of K2, 500.00 and he was entitled to two leave days per month. The evidence on record has revealed that the complainant worked for the respondent for 11 full months having been engaged on 16th August, 2021 and dismissed on 10th August, 2022. Therefore, he had accrued a total of 22 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 (K2,500.00 x 22/26), I find that the amount due to the complainant for accrued leave days is K2,115.38, Therefore, I enter judgment in favour of the complainant in the sum of K2,115.38 being payment for accrued leave days. 8. 7. Further, according to clause 16 of his contract, "CS2", the complainant was entitled to the sum of Kl,750.00 as gratuity upon the successful completion of his contract. However, the complainant did not complete his contract period as he was dismissed from employment on 10th August, 2022 before the contract could expire on 16th November, 2022. At the time of his dismissal, the complainant had only served the respondent for nine months under his last contract, "CS2". Therefore, his gratuity has to be prorated to nine months, which amounts • J37 to Kl,312.50 and I enter judgment in his favour in the said amount. 9.0. WHETHER THE COMPLAINANT IS ENTITLED TO THE REFUND OF K300.00 FOR TOLL FEES AND USD200.00 FOR THE AXLE HE REPLACED ON THE TRUCK 9.1. The complainant claimed that when the axle on the trailer of the truck cut, he used his own money amounting to USD200.00 to remove the said axle and to pay the men who assisted him. 9.2. He also stated that the respondent had given him USD580.00 for toll fees but when the truck broke down in the DRC and the respondent gave him new spare parts for the truck, the folk could not fit becaus. .e it was not compatible with the truck. As a result, he bought one in Lubumbashi at the cost of USO 200.00 using the same money that was meant for the toll fees. That he also used the same money to pay for parking the truck at a Police station in the DRC for 28 days at USDl0.00 per day amounting to USD280.00. That when he informed the respondent and requested for money for toll fees, they sent him USD500.00 which he used from Likasi Mine in Hauchine Mabende mine where he had offloaded sulphuric acid from Zambia. That when he phoned the respondent whilst at Mokambo border, he was told to return the • J38 vehicle and that it was the end of his job. That he, therefore, asked his wife to send him K300.00 which he used to pay for toll fees. 9.3. On the other hand, the respondent argued that the complainant had been given USDl,780.00 as mileage to cover all travel expenses but he failed to produce receipts to account for the said money. 9.4. I have considered the parties' opposing arguments. 9.5. The complainant did not call any witness or produce any receipt or any documentary evidence to prove that he had spent USD200.00 to replace the axle for the truck. 9.6. Further, while the complainant acknowledged having been given USD580.00 to cover for his trip expenses and not USDl,780.00, he did not produce any receipts to show how he spent the said money. The complainant did not also produce any evidence showing that he had bought the folk in Lubumbashi at USD200.00 to fit on the truck and that he was charged USD280.00 for parking the truck at a Police station in the DRC. In the circumstances, I find that the complainant has not shown that all the money that he was given by the respondent to cover his trip .. expenses got exhausted such that he had to request his wife to send him K300.00 for toll fees. In this regard, therefore, his claim • • J39 for refund of USD200.00 and K300.00 is bereft of merit and is accordingly dismissed. 10.0. INTEREST 10.1. I have awarded the complainant damages in the sum of K22,500.00; salary arrears for three months amounting to K7,500.00; payment for accrued leave days in the sum of K2,115.38; and gratuity in the sum of Kl,312.50, altogether amounting to K33,427.88. The said sum of K33,427.88 shall attract interest at the average short-term deposit rate from the date of notice of complaint to the date of judgment; and thereafter, at the current lending rate as determined by the Bank of Zambia until full settlement of the judgment debt. 11.0. WHETHER THE COMPLAINANT IS ENTITLED TO THE PAYMENT OF COSTS OF THESE PROCEEDINGS 11.1. The complainant has prayed for the award of costs of these proceedings. 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: "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." J40 11.2. 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 the complainant had arisen. Therefore, I make no order for costs. 12.0. Leave to appeal is granted. Delivered at Ndola this 30th day of September, 2025 . ...... ~~·············~ Davies C. Mumba HIGH COURT JUDGE