Jimmy Mulusa v First National Bank Zambia Limited (2022/HPIR/595) (17 July 2024) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2022/HPIR/ 595 INDUSTRIAL RELATIONS COURT HOLDEN AT LUSAKA (Civil Jurisdiction) RR1'WF.F.N: JIMMY MULUSA COMPLAINANT vs / I ~/ FIRST NATIONAL BANK ZAMBIA LIMiTED - - RESPONDENT Coram: Before Mrs. Justice M. S. Ngoma in open court this 17th July, 2024. For the Complainant Raymond Musumali, of Messrs SLM Legal Practitioners. For the Respondent Mr. D. M. Chapaleka, Mr. P. Chomba, and Mr. 0. Asalama, All of Mulenga Mundashi Legal Practitioners. JUDGMENT Legislation referred to: 1. The Employment Code Act No, 3 of 2019 2. The Industrial and Labour Relations Act, Cap 269 of the Laws of Zambia. Cases referred to: 1. Kltwe City Council V William Ng'uni (2005) ZR 57. J1 2. Mwangala Nyambe and Price Waterhouse Cooper Limited, Appeal No. 155/2014. 3. Zesco Limited vs Patricia Kabwe Lungu Appeal No. 236 of 2013. 4. Swap Spinning Milla pie v Sebastian Chileshe and others (2002) ZR 23. 5. Chipungu Chllufya Dzehedzehe v Zambia Tele-communications Company Limited Comp No, 349/ 2016. 6. Attorney General vs D.G Mpundu (1984) ZR 6. 7. Mofya Mtongo and Ors v Local Authorities Superannuation Fund CAZ Appeal No. 225 of 2021. 8. Care Intemational Zambia Limited v Misheck Tembo SCZ Selected Judgment No. 56 of 2018. 9. Muaonda Chlzinga and Capstone Management Company Limited, unreported, 2022/HPIR/0 557. 10. Sarah Aliza Vekhnik v Casa Dei Bambini Montessori Zambia CAZ Appeal No. 129 of 2017. ll. Chansa Ng'onga V Alfred H. Knight (Z) Ltd Selected Judgment No. 26 of 2019. 12. Chilanga Cement Pie V Kasote Singogo (2009) ZR 122 (SC). l3. Dennis Chanaa V Barclays Bank Zambia PLC SCZ Appeal No 111 of 2011. 14, Albert Mupila v Yu Wei Comp/IRCLK/222/2021. Authoritative Texts Refereed to:- 1. Mwenda, W. S and Chungu, C, A Comprehensive Gulde to Employment Law in Zambia (UNZA Press 2021). J2 Introduction 1. The complainant commenced this action by filing a notice of complaint and supporting affidavit claiming the following: i) A declaration that his permanent contract of employment was unlawfully and wrongfully terminated by the respondentj ii) Dau:i.agt:s fur unlawful wul w rnn~ful lt:r.miua.Liun of hi::; employment resulting in loss of future earnings up to retirement; iii) Damages for mental distress, anguish and inconvenience suffered as a consequence of the abrupt termination of his employment; iv) Payment of gratuity for the period of employment; v) In the alternative to (iv) above, an order for payment of severance pay; vi) An order for payment of his accrued pension contributions under the respondent's Pension Scheme; vii) Payment of Repatriation; viii) Interest on the sums found due; ix) Any other relief the court may deem fit; and x) Legal costs. Complainant's Affidavit Evidence 2. The complainant's affidavit evidence was that he was employed by the respondent on July 2015 as an AYM custodian on a permanent and }st pensionable basis at its branch in Chingola, Copperbelt Province of Zambia. The employment contract was exhibited as "JMl" in the affidavit in support of complaint. 3. It was his testimony that he worked for a continuous period of 7 years until he received a letter of termination of employment on July 2022 1st in which it was stated that the termination was for operational requirements of the undertaking. J3 4. The complainant averred that the termination was made in bad faith and not for operational requirements at all because the respondent proceeded to advertise for employment of the position he had occupied. This, according to him, was tantamount to a redundancy. 5. The complainant further avern::d that he belonged to a trade union called Zambia Union of Financial Institutions and Allied Workers ("ZUFIAW") and that according to the collective agreement in force, retirement at the age of 60 was envisaged as the mode of separation for permanent employees thus, the respondent acted in breach of contract when it terminated his contract of employment on 1st July 2022 before he attained the age of 60. 6. The complainant also averred that the respondent did not accord him an opportunity to be heard before it arrived at a decision to terminate his contract as the rules of natural Justice would require. 7. It was contended that the termination was so abrupt that he suffered mental anguish and pain arising out of a sudden loss of employment and thus loss of possible future earnings he would have earned had he remained in employment until the retirement age of 60, 8. It was the complainant·s testimony that the respondent only made a payment of K27,169.62 on 20th July 2022 after making deductions of statutory contributions and neglected to pay gratuity or severance pay, his pension contributions, repatriation, and damages for breach of contract of employment. 9. It was the complainant's testimony that he lodged a complaint with ZUFIAW regarding the manner in which the respondent terminated his J4 employment whereupon a letter of demand was issued by ZUFIAW to the respondent but the respondent, acting by its advocates, dismissed all his claims. Respondent's Answer and Affidavit Evidence 10. 'l'he respondent tiled an answer and supporting affidavit on 161h November 2022 in which it was averred that the complainant·s contract of employment was terminated on grounds of operational requirements in accordance with Section 52 (2) of the Employment Code Act No 3 of 2019 of the Laws of Zambia. The respondent denied that the said termination was unlawful or wrongful and also denied that the termination was a redundancy as provided in section 3 and section 55 of the Employment Code Act. It contended that there was no legal obligation requiring it to accord an employee an opportunity to be heard before terminating his contract of employment on grounds of operational requirements. Further, that it was not proscribed by any written law from advertising the complainant·s position on 8th July 2022 after the complainant left the respondent Bank. It, thus, denied that there was bad faith in advertising the position previously occupied by the complainant. 11. The respondent further contended that the complainant·s private pension contributions had been paid to him in full and in accordance with the law and that he was not entitled to gratuity and/or severance pay. As for repatriation, the respondent stated that it was willing to engage a reputable transportation company to repatriate the complainant to Chingola where he was employed from. J5 12. The affidavit in support of answer was deposed to by Hinguuma Handia, the Head of Credit, in the respondent bank. The facts he deposed to are, in material respects, the same as the contents of the answer reproduced above. I shall, therefore, not repeat the contents of the affidavit to avoid unnecessary repetition. Hearing 13. At the hearing of this matter held on 30th November 2023 the complainant testified on his own behalf and did not call any witness while the respondent called one witness only. It was the complainant's testimony that on the day he was given the notice to terminate his employment contract, he was called to the office of Ms. Khondowe, the head of human capital, who told him that the respondent was realigning its position, therefore, the Executive Committee (EXCO) had decided to terminate his employment with the respondent. EXCO comprised of the Chief Executive Officer and all heads of departments. Ms. Khondowe is said to have asked the complainant if he had anything to say, to which he replied that he did not as he was just being informed of what Management had decided. He was hesitant to sign the letter of termination as he wanted to seek clarification from the Union. After consulting the Union, he proceeded to sign it. 14. As he exited the meeting room, he found a co-worker waiting for him and he got the bank laptop from him which he had been using. He was told to leave the bank there and then and was not even allowed time to get his personal belongings which he only managed to get after a heated exchange between his lawyers and the respondent. J6 15. The complainant told the court that he got in touch with Ms. Twaambo, a union representative, to find out if she was aware of his predicament and she said she was not aware of it as no communication had been made to the union by the respondent. 16. It was also the complainant's testimony that a month before the tennina.liou uf hi~ ~mpluyme.nt, U1e responde.nt advertised his position, seeking to employ someone else. At the time, he thought the respondent was looking for someone to assist him and did not realise that they were actually bringing someone to replace him. 17. He further told the court that the respondent only offered him one month's salary in lieu of notice and leave days and refused to pay anything else. 18. It was his testimony that he served the respondent diligently and had scored an average of 3.2 in his appraisals. 19. In cross examination, the complainant confirmed getting his pension contributions. He, thus, agreed to drop his claim for the same. He could not recall making a claim for pension contributions. 20. In further cross-examination, he confirmed that the applicable separation dues as per clause 12.1 of the Collective Agreement on record was one month pay, leave days and refund of pension contributions. 21. The complainant further conceded that there was no requirement under the Collective Agreement for the Union to be informed before termination of his employment. J7 22. The respondent·s lone witness was Mr. Handia, the Head of Credit. He shall hereinafter be referred to as "RW'\ It was RW's testimony that as head of credit, his role included being in charge of the day to day functions of the credit department that span from granting of loans, monitoring performance and recovery in the event of non pay1nent. That he was also responsible for setting the c.n:tlit strategy to ensure maximizing efficiency through the use of people resource and systems available. 23. It was RW's further testimony that in terms of operational requirements that necessitated the termination of the complainant's employment, it was necessary to bear in mind the industry in which the respondent operates as the respondent was not immune to the impact of technological advancement and changes in the environment. He added that part of his role was to update credit strategy and this implies constantly re-looking the operational requirements to ensure that the respondent was future proof in terms of optimally utilizing its resources. 24. In cross-examination, RW told the court that the respondent did not rely on clause II of the Collective Agreement to terminate the complainant·s employment contract but relied on the provisions of the Employment Code, particularly Section 52 (2). 25. RW confirmed that the complainant's position at the time of termination was collections officer and that exhibit "JM3" shown in the affidavit in support of complaint was an advertisement for the position of collections officer fixed term contracts with a deadline for 8th July 2022. He also confirmed that according to this advert, the respondent was earmarked to employ for two positions on fixed term contracts in line with operational requirements that would be JS required in line with rapid advancement of technology and ensuring the ability of the bank to respond accordingly into the future. 26. When it was put to him whether this was consistent with terminating the complainant·s employment for operational requirements, he said it was, as the respondent was not only looking at it in a narrow view but also from a departmental view and overview. Submissions 27. At the close of respondent's case, I invited counsel for both parties to file written submissions. The respondent's counsel filed their submissions while the complainant's counsel did not, 28. The respondent's counsel opened their submissions by arguing that the notice of complaint ought to be set aside for lack of action as it was filed before the employment contract was effectively terminated in accordance with the notice period provided in the respondent~s letter dated 1st July 2022. Counsel cited a plethora of authorities to support their argument that since the notice period had not yet expired, the complainant could not file a claim for unfair dismissal as the same was premature. 29. The record will show that this submission was raised for the first time in the respondent's written submissions, In my view, the submission itself is not properly before court as it should have been raised earlier, before the close of trial, if it was intended for my decision. It is a well established principle that a court is not bound to consider counsel's submissions. I am fortified by the J9 case of Kitwe City Council V William Ng'uni1 which guides that a court is not bound to consider counsel's submissions as the same are only meant to assist the court in arriving at a judgment. As such, this submission is dismissed for being improperly before court. 30. The respondent>s counsel then went on to point out that for the complainant to prove that the contract was unfairly terminated, he must show that the contract was terminated contrary to the contract or the law. It was submitted that both the contract and the law were complied with as the contract provides for one month's notice to terminate, which was given, and the Employment Code Act, in Section 52 (2), provides for operational requirements as one of the valid reasons for an employer to terminate a contract of employment. 31. The respondent's counsel countered the complainant·s assertion that he was not heard prior to the termination by arguing that there is no requirement for an employee to be heard before his employment is terminated with notice. The case of Mwangala Nyambe and Price Waterhouse Cooper Limited2 was cited in aid of this submission. 32. Counsel submitted that the respondent had shown that the termination was due to operational requirements as it was doing away with employees on permanent and pensionable contracts such as the complainant and replacing them with employees on fixed term contracts. Further, that this was explained to the complainant by Ms. Khondowe, the respondent~s head of human capital when she told the complainant that the respondent was realigning its undertaking. The court was referred to the J10 complainant's statement, in cross-examination, that Ms. Khondowe "said the Bank is realigning its position, therefore, EXCO has decided to terminate your employment with the Bank. ..." 33. It was submitted that when dealing with termination by operational requirements, it does not matter whether the employer engages H.Ilolher pernun lo re::place the employee whose contract has just been terminated. Reliance was placed on the case of Zesco Limited va Patricia Kabwe Lungu.3 where the Supreme Court took the view that where an employer is terminating the service of an employee for purposes of reorganization or in order to facilitate improvements in the efficiency or reorganization, which Counsel submitted was similar to operational requirements under section 52 (2) of the Employment Code Act, an employer can re employ in these positions because the positions will not have been abolished. 34. With regard to the claim for an order for payment of damages for unlawful and wrongful termination of contract, the respondent's counsel started by reiterating their submission that the termination was not unlawful and/or wrongful. It was submitted that in the unlikely event that the court was of the view that the termination was wrongful and/ or unlawful, the measure of damages was the contractual length of notice or reasonable notice where the contract is silent. Reliance was placed on Swap Spinning Mills pie v Sebastian Chlleshe and others4 in support of this submission. 35. A plethora of authorities were cited to support the argument that a court may only award compensation beyond the period of notice if it can be shown that the termination was effected in a traumatic J11 way. In casuJ it was submitted, the complainant had not shown any evidence of his employment being terminated in a traumatic fashion. 36. Counsel for the respondent further submitted that the complainant's claim for damages for future earnings up to retirement must fail as it would amount to unjust enrichment since the record shows that the complainant had engaged in the business of selling properties from which he used to earn an income. 37. In countering the complainant's submission that he is entitled to drunages for mental distress, anguish and inconvenience suffered as a consequence of the abrupt termination of his employment, the respondent's counsel submitted that damages under this head needed to be specifically pleaded and proved at trial. Reliance was placed on the case of Chlpungu Chilufya Dzekedzeke v Zambia Telecommunications Company Llmited5 in which it was held that "experiencing distress that normally results from dismissal and hurt feelings is not enough. The court will only grant enhanced damages if the employee can prove that the manner of the dismissal caused mental distress that was contemplated." 38. Reliance was also placed on Attorney General vs D.G Mpundu6 where damages for mental distress in employment contracts were regarded as special damages, as such, a complainant was required not only to claim them as a relief but also to particularize the claim. J12 39. Counsel submitted that the claim should fail as the complainant had not led evidence to prove the nature and extent of the mental anguish, stress, torture and inconvenience suffered as a result of the termination. 40. The dwm for gra.t.uily was disputed on the ground that. neither Lhe complainant's contract of employment nor the now repealed Employment Act provided for gratuity. Although the Employment Code Act provides for payment of gratuity, the same is not payable to employees on permanent contracts as the complainant was. 41. It was the respondent's further submission that the complainant is not entitled to severance pay either as envisaged by Section 54 of the Employment Code Act because the section clearly provides for an option between severance pay and retirement benefits provided by the relevant social security scheme that the employee is a member of. 42. Notwithstanding that the respondent denied that it was obligated, under section 33 of the Employment Code Act, to repatriate the complainant because the termination did not come under the ambit of that section, it was nevertheless, submitted that the respondent was willing to engage a reputable transportation company to ferry the complainant to Chingola. 43. I was finally implored to dismiss the complaint. J13 Consideration and Decision 44. I have considered and reflected on the pleadings, the oral evidence and the submissions by counsel for the respondent for which I am grateful. 45. From lht: c::vidence, it is not in dispute that the complainant was employed by the respondent on 1st August 2015 on permanent and pensionable basis at its branch in Chingola. It is also not in dispute that the conditions of service applicable to the complainant were enshrined in his employment contract and the collective agreement between the respondent and the union, ZUFIAW. 46. It is further not in dispute that on 1st July 2022, the respondent terminated the complainant's contract of employment on grounds that it was necessary for the respondent's operational requirements. Issues for Determination 4 7. Before I analyse the issues in dispute, I hasten to mention that regarding the complainant's claim for accrued pension contributions under the respondent's pension scheme, I agree with the respondent's submissions that the complainant did drop this claim after he was asked in cross examination whether he got his pension contributions and he confirmed that he did. He was further asked if he was, consequently, dropping this claim, and he answered in the affirmative. J14 48. Therefore, analyzing the evidence before me and the legal arguments, the issues for determination, in my view, are the following: i. Whether or not the termination of the complainant's employment was unlawjul and/ or wrongful; ii. Whether the complainant is entitled damages for the unlawful/ wrongful termination ofe mployment; iii. Whether the complainant is entitled to damages for mental distress anguish and inconvenience suffered as a consequence of the abrupt termination of his permanent contract of employment. iu, Whether the complainant is entitled to gratuity for the period of his employment or, in the alternative, severance pay; and v. Whether the complainant is entitled to payment of repatriation. at Whether the termination of the Complainant's Employment was Unlawful/Wrongful 49. According to the learned authors Winnie Sithole Mwenda and Chanda Chungu, in their book A Comprehensive Gulde to Employment Law in Zambia: (2021), the University of Zambia Preas, at page 241, "unfair dismissal is dismissal that is contrary to statute or based on unsubstantiated ground.» 50. In Care International Zambia Limited v Mlsheck TemboB, the Supreme Court endorsed the view that unfair dismissal is dismissal which is contrary to statute. Unfair dismissal and unlawful dismissal appear to be synonymous, as enunciated by the learned Judge Mwenda in Musonda Chlzlnga and Capstone J15 Management Company Limited9, at page J24 of her judgment, that; "unfair dismissal is essentially unlawful dismissal in that it is dismissal that is contrary to the law". 51. Notwithstanding that dismissal is distinguishable from termination, the definition of "unlawful" or "unfair'' equally applies to termination. Consequently, with regard to the question whether the termination was unlawful, I have to consider whether or not it was in accordance with the provisions of the law, as I do below. 52. Section 52, subsections (1) and (2) of the Employment Code Act provides as follows: "52. (1) A contract of employment terminates in the manner stated in the contract of employment or in any other manner in which a contract of employment is deemed to terminate under this Act or any other law, except that where an employer tenninates the contract, the employer shall give reasons to the employee for the termination of the employee's contract ofe mployment; and (2) An employer shall not tenninate a contract of employment of an employee without a valid reason for the tennination connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking." 53. I, again, draw from the wisdom of the learned authors Winnie Sithole Mwenda and Chanda Chungu, in their book referred to above, who, in commenting on this section, state, at page 228, that- "Where a termination is not carried out in accordance with the law, or where the employer terminates employment without giving a valid reason, such termination will be referred to as unfair termination, J16 and for termination contrary to the contract of employment as wrongful termination." (Underlining mine for emphasis). 54. The Court of Appeal decision in Sarah Aliza Vekhnik v Casa Del Bambinl Montessori Zambia10 endorsed the requirement for employers to give valid reasons when they terminate by way of nulic,;e. The t:ourt 8tated thal:- "Employers a.re no longer at liberty to invoke a termination clause and give notice without assigning reasons for the termination. What is of critical importance to note, however, fs that the reason or reasons given must be substantiated.'' 55. In the light of the above, it is established that the position of the law, as contained in the Employment Code Act, is that where the employer initiates termination of the employee's employment, even if they do so by invoking the notice clause in the contract of employment, they must give a valid reason. 56. As noted earlier, the complainant's contract of employment was terminated by one month's notice provided for in the contract of employment. The reason advanced for the termination was operational requirements of the undertaking. The relevant portion of the letter of termination appearing as "JM2" in the complainant's affidavit in support of complaint reads as follows: "You are hereby given notice of termination of your employment with the Bank with effect 1st July 2022. The valid reason aligned with section 52 (2) of the Employment Code Act is operational requirements of the undertaking. J17 Kindly therefore be advised that all staff privileges that were accorded to you whilst in employment with the bank will therefore fall away on the 31st July 2022 being the last day of the notice period.» 57. The question U1al falls Lu be dt!cidt!d hi whelht!r the respondtml haH demonstrated that the termination was for a valid reason. Here the evidential burden of proof lies with the respondent as guided in the case of Mofya Mtongo and Ors v Local Authorities Superannuation Fund7 where the Court of Appeal held that where the reasons advanced by the employer have been called into question, the employer must substantiate its reasons for the termination, or show that the termination was for a valid reason, and thus in compliance with the law. At page J.24, the court stated that "it is not enough for the employer to merely give a reason.» 58. The facts and circumstances leading to the tennination as presented by the complainant were not challenged in any material respect. The summary of what the complainant said was that on a Monday, while he was in Kabwe, he received a notification from the Head of Credit inviting him for a meeting. He returned to Lusaka, and, on Friday, he was called for a meeting with Ms. Khondowe, the Head of Human Capital, who told him that the Bank was realigning its position, therefore, EXCO had decided to terminate his employment with the Bank. He was handed a letter of termination; that there was no prior consultation and neither was he given an opportunity to be heard; that as he exited Ms. Khondowe's office, a colleague was waiting for him to get the work laptop from him; that he was not even allowed to get his personal J18 stuff until he engaged lawyers and there was some back and forth with the respondent. 59. Further, the complainant testified that he noticed that his position was advertised about a month before the termination of his employment. He thought the respondent was trying to recruit an assistant for him. Little did he know that the plan was to replace him. 60. The respondent, on its part, insisted that the termination was due to operational requirements of its undertaking. In my view, this needs to be substantiated. The respondent needed to demonstrate that its operational requirements were such that permanent contracts of employment had to be phased out and replaced with fixed term ones as submitted. 61. The respondent did not lead any evidence of any assessment it carried out which informed it of the need to phase out permanent and pensionable employees in favour of fixed term employees; how many employees would be affected by this migration; how the affected employees' employment contracts would be treated and over what period. Such evidence would have assisted it to prove its operational requirements. 62. Much as I agree with the respondent's submission that there was no legal obligation for the respondent to give the complainant an opportunity to be heard prior to the termination of his employment, it would, no doubt, have helped the respondent's cause had evidence been led to the effect that employees were aware that such an exercise was under way. J19 63. In my opinion, it was not enough for Ms. Khondowe, the head of human capital, to have spoken in general terms that the Bank was realigning its position, therefore, EXCO had decided to terminate the complainant's employment with the Bank. RW's testimony that the employees to replace the complainant were coming in on fixed term contracts appears to be an after-thought. In my view, if it was the main reason the complainant's employment was terminatedt it would have been prominent in the respondent's answer and affidavit in support thereof. 64. Even at the risk of testifying from the bar, Counsel for the respondent were determined to justify the reason for their client terminating the complainant's employment to the extent they submitted that the respondent was discarding employees on permanent and pensionable contracts. I found this submission rather startling because it was not supported by evidence on record. The respondent's sole witness made no such a statement. 65. In the light of the foregoing, I am not satisfied that the respondent terminated the complainant's employment for a valid reason. Further, the respondent's conduct in advertising the complainant's position before the termination; getting the Bank laptop immediately and not allowing the complainant to get his personal property until after a back and forth all go to show that the complainant was treated more as an erring employee than one who had to go simply because he was on permanent contract as opposed to a fixed term contract. 66. Consequently, I find that the respondent has failed to prove, on a balance of probability, that the reason for terminating the complainant's services was due to operational requirements of the J20 undertaking. As such, I find that Section 52 (2) of the Employment Code Act was not complied with. The termination was, consequently, unlawful. 6 7. The complrunant did not lead any evidence to support his assertions that the termination was also wrongful and amounted to a redundancy, As such, I i1ud Ll1~se eistu~rtions baseless and I dismiss them. (b} Whether the Complainant is entitled to Damages for Unlawful termination of employment 68. Having found that the termination was unlawful due to the respondent's failure to prove the operational requirements of its undertaking, I now come to the issue of damages. In my view, the complainant is entitled to damages for the unlawful termination. The issue that needs determination is the quantum of the damages. In this regard, I am grateful to counsel for the respondent for the helpful authorities cited dealing with the law of damages in employment cases. 69. In the case of Chanaa Ng'onga V Alfred H. Knight (Z) Ltd11 the Supreme Court confirmed that the normal measure of damages is an employee's notice period in the contract of employment or as provided for in the law. However, this can be departed from only when an employee proves that they are deserving of more and the conduct of the employer was so serious that it warrants a higher award of damages. The Chilanga Cement V Kasote Singogo12 case cited by the respondent is one such case where the court departed from the normal damages because of the traumatic circumstances in which the termination was effected. J21 I have already found that the respondent breached section 52(2) of the Employment Code Act relating to the provision of a valid reason, thus infringed upon the complainant's statutory rights. The Supreme Court, in Care International V Misheck Tembo8 (supra), held that compared to wrongful dismissal or termination, a higher award of damages is juslilit:tl wht:re Lhe l.t'.rminaliun or dismissal is unfair or unlawful because of the infringement of statutory rights. 70. In casu, my view is that the termination was somewhat traumatic. The complainant's position was advertised even before he was terminated. I consider this to be a cruel way of doing things as the complainant was unaware that he was living on borrowed time. I say so because he testified that when he saw the advert, he thought the respondent was employing someone to assist him, when in fact it was to replace him. This could cause mental anguish, inconvenience and stress. 71. Even assuming the reason for terminating was because he was on permanent contract and the respondent wanted fixed-term contract employees, the respondent did not lead any evidence to show that an effort was made to alter the complainant's employment terms from permanent and pensionable to fixed term. 72. Additionally, as I earlier observed, the complainant was treated more like an erring employee as opposed to an employee who had served diligently as he said he had, and was being let go simply because the employer now desired to have an employee on fixed term contract. J22 73. Further, as I consider the circumstances of the termination, I am. also mindful that dim job prospects is another consideration that a court may take into account in awarding appropriate damages to a deserving employee. This was endorsed by the Supreme Court in the case of Dannis Chanaa V Bar0lays Bank Zambia Ltd13• 74. The complainanfs dim job prospects were demonstrated at Trial. He described himself as unemployed. The respondent's submission that the complainant admitted, in cross examination, that after his termination, he worked for Astra Tech Limited is noted. The record, however, shows that the complainant stated that he worked with Astro Tech Limited for one month only after the owner called him to salvage the loan book. That it was not a full-time job. This, in my view, is not sufficient work to counter the argument that his job prospects are dim. Neither is the fact that the complainant admitted to selling property on behalf of people, not for free, but for 'a token of appreciation'. 75. In the light of the foregoing, I am satisfied that a departure from the normal measure of damages is justified. I have considered that the complainant was on a permanent contract and was unlawfully deprived of an income he would have enjoyed until retirement age (assuming it would not have terminated via lawful means). 76. In Chllanga Cement V Kasote Songogo12, the Supreme Court awarded twenty-four months' salary as damages. I hold the view that this is an appropriate case to award similar damages. Consequently, I award the complainant twenty-four (24) months' salary as damages for unlawful termination of his employment. J23 (c} Whether the complainant is entitled to Damages for Mental Distress, Anguish and Inconvenience Suffered as a Consequence of the Abrupt Termination of his Employment 77. Under cross examination, the complainant testified that he was tortured by the abrupt termination of his employment and he went into a. depre~~inn. He, however, did not undergo therapy as his background had taught him to hide things from his family. He then said his wife could testify to the depression. 78. Counsel for the respondent submitted that damages under this head are special damages which need to be pleaded. As the complainant had not pleaded them, and had not led evidence to substantiate the claim, I was implored to dismiss the claim. 79. I have considered the authorities cited by counsel for the respondent starting with the case of Attorney General V Mpundu6 that damages for mental distress may be considered in an action for breach of contract. I have also considered that in the Chilanga V Singogo case12, the Supreme Court held as follows at page 142: ". .. an award for torture or mental distress should be granted in exceptional cases, and certainly, not in a case where more than nonnal measure of common law damages have been awarded; the rationale being that the enhanced damages are meant to encompass the inconvenience and any distress suffered by the employee as a result of the loss of the job.» 80. In the case in casu, the complainant has been awarded 24 months, salary as damages for unlawful termination of his employment which award is more than the normal measure of damages. The J24 said damages thus encompass the inconvenience and any distress the complainant may have suffered as a result of the unlawful termination as guided by the quotation from the Chilanga v Singogo case12 reproduced above. Consequently, I am not satisfied that the complainant is due any further damages under this head. This claim is, therefore, unsuccessful. (d} Whether the Complainant is entitled to payment of gratuity or, in the alternative, severance pay 81. The complainant did not state the basis for this claim. The respondent submitted, and correctly so, that prior to the enactment of the Employment Code Act, gratuity was only payable if it was provided for in the contract of employment. Further, that under section 73 of the Employment Code Act, gratuity is only payable to employees on long-term contracts and not permanent contracts. 82. I agree with the respondent's submission that in the absence of a contractual provision entitling the complainant to gratuity, and since he was not covered under section 73 of the Employment Code Act as he was on permanent contract, his claim for gratuity must fail for lack of merit. 83. Regarding the alternative claim for severance pay, the respondent's counsel implored me to disregard it because the complainant had been paid his pension benefits and that there was no law which entitles an employee to both pension benefits and severance pay. Section 54(1)(b) of the Employment Code Act was referred to in support of this submission. The section provides as follows: J25 (1) An employer shall pay an employee severance pay, where the employee's contract of employment is tenninated or has expired in the following manner: (a) .... (b) where a contract of employment is for a fixed duration, severance pay shall either be a gratuity at the rate of not less that twenty-five percent of the employee's basic pay earned during the contract peri.od or the retirement benefits provided by the releuant social security scheme that the employee is a member of, as the case may be; 84. Clearly, the above section applies to an employee whose contract of employment is for a fixed duration. The question whether a permanent contract of employment is also a contract for a fixed duration was answered in the affirmative by my learned sister Judge Mwenda in the case of Albert Mupila v Yu Wei1 4, cited by the respondent. She opined that "From the definition of a permanent contract of employment in Section 3, I form the opinion that a permanent contract of employment is also a contract off ixed duration in the sense that it is certain to expire on the retirement date if not terminated in the various ways specified in the Employment Code." 85. I adopt this reasoning in this Judgment and hold that the complainant's contract of employment was for a fixed duration. 86. Coming back to section 54(1)(b) of the Employment Code Act, the respondent correctly argued that an employee may either get a severance pay or the retirement benefits provided by the relevant social security scheme but not both. According to the record, the J26 complainant admitted, in cross examination, that he was paid his contributions to the respondent's pension scheme. In my view, his contributions are not the same as retirement benefits provided by the relevant social security scheme that the employee is a member of, as the case may be as provided by this subsection. 87. The retirement benefits are provided for in Clause 12.3 of the Collective Agreement. These benefits include "Full pension benefits (employers and employees contributions with interest)." The complainant did not get the employer's contributions. Neither did he get the accrued interest. If he did, this fact was not brought to my attention. Both parties only spoke of the complainant getting his contributions to the pension scheme. As such, he did not get his full pension benefits as per Clause 12.3 of the Collective Agreement to justify disqualifying him from getting severance pay. The severance pay, will, however, not be from the date of his engagement but from the date the Employment Code Act came into force, which is 9th May 2020, to the date of termination of his employment. 88. Statutory Instrument No 48 of 2020, issued on 8th May, 2020 exempts expatriate employees and management employees from the payment of severance pay in terms of Section 54( 1) (b) of the Employment Code Act. 89. Section 3 of the Employment Code Act provides that; "management" has the meaning assigned to the word under the Industrial and Labour Relations Act". J27 90. I have read the definition of a person in management as defined in Section 3 of the Industrial and Labour Relations Act. I am satisfied that the complainant did not fall within the ambit of that section and was, consequently, not serving in a position of management as envisaged. 91. As such, I fil1d that he is entitled to severance pay of not less than twenty-five percent of his basic salary earned from 9th May 2020 to date of tennination of his employment. e) Whether the complainant is entitled to Repatriation 92. In my view, whether the complainant is entitled to repatriation is not so much of an issue as the respondent, both in its answer and its final submissions, stated that it was willing to engage a reputable transportation company to repatriate the complainant to Chingola. 93. The duty of an employer to repatriate an employee brought from a place within the Republic of Zambia is founded on Statute. I have considered section 33 of the Employment Code Act cited by the respondent's counsel in their submissions. Paragraph (a) of this section places an obligation on an employer to repatriate an employee on the "expiry of the period of service that is specified in the contract of employment." 94. The complainant's contract was a permanent and pensionable one. However, it had a provision for termination by either party giving to the other one month's notice to terminate. In my view, the complainant's period of service expired at the end of the notice J28 period, thus obligating the respondent to repatriate him by virtue of Section 33 (a) of the Employment Code Act. 95. I note that in both its answer and final submissions, the respondent restricts itself to providing transportation to move the complainant back to Chingola. Section 34(1) of the Employment Code Act gives an option for payment of transportation costs. It provides as follows; "An employer may provide transport or pay the cost of transport to repatriate an employee entitled to repatriation under section 33 (underlining mine for emphasis) 96. On the basis of this clear provision, I find that the complainant is entitled to payment of the cost of repatriation from Lusaka to Chingola. The same shall be assessed by the Registrar. Conclusion and Orders 90. The complainant has, on a balance of probabilities, proved his case to the extent shown above and I, accordingly, make the following orders: i. I declare that the termination of the complainant's employment was unlawful. ii. I award the complainant twenty four (24) months' salary as damages for unlawful termination, to be assessed by the Registrar. iii. The complainant is awarded severance pay at 25% of his basic salary from 9th May 2020 to date of termination of his employment, to be assessed by the Registrar. iv. The complainant is awarded repatriation costs from Lusaka to Chingola, to be assessed by the Registrar. J29 v. The amounts found due after assessment shall attract interest at commercial bank deposit rate from the date of the notice of complaint to the date of judgment and thereafter, at current lending rate as determined by the Bank of Zambia from the date of Judgment until full payment. vi. Each party shall bear its own costs. vii. Leave to appeal is granted. J30