Kingsley Chisanga v Nice Products Limited (2022/HN/IR/69) (26 January 2024) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2022/HN/IR/69 AT THE DISTRICT REGISTRY HOLDEN AT NDOLA (Industrial Relations Division) Before the Hon. Mr. Justice Davies Chali Mumba in Chambers on the 26th day of January, 2024. For the Complainant: Mrs K. Chisala-Bwalya, Messrs Legal Aid Board For the Respondent: In Person JUDGMENT Cases referred to: 1. Eston Banda and another v The Attorney-General, Appeal No. 42 of 2016. 2. Chilanga Cement v Venus Kasito, Appeal No. 86 of 2015. 3. Bethel Mumba and another v Africa Super Market (Trading as Shoprite Checkers), Complaint No. IRC/ND/ 80/2015. 4. Sarah Aliza Vekhnik v Cash Dei Bambini Montessori Zambia Limited, Appeal No. 129 of 2017. 5. Zambia China Mulungushi Textile (Joint Venture) Limited v Gabriel Mwami (2004) Z.R. 244 (S.C.). 6. Josephat Lupemba v First Quantum Mining Operations Limited, Appeal No. 20 of 2017. 7. Chilanga Cement Pie v Kasote Singogo (2009) Z.R. 122 (S.C). 8. Barclays Bank of Zambia Plc v Weston Lyuni and Suzyo Ngulube, SCZ Appeal No. 07/2012. .. )1 1. The 'mp! \'ment 'orle rt o. 3 of O I <J rk r f rr d t : 1. \\' __ 1w nda, ·m loyment Law in Zambia: Cases and Ma erials: U ZA ., Lu.aka, 00 . .... \\.innie ith 1 1\-venda and Chanda Chungu: A Comprehensive Guide t mpl ·ment Law in Zambia: UNZ Press. Lusaka, 2021. 1.0. INTRODUCTION 1.1. By notice of cornplaint supported by an affidavit filed into Court on 20th September, 2022, the complainant comn1enced this action against the respondent seeking the following reliefs: 1.1.1. An order for damages for wrongful and unlawful dismissal; 1.1. 2. An order for payn1ent of salary arrears as a re ult of the underpayn1ent of his salaries; 1.1. 3. An order for payment for accrued leave da le the amount already paid; 1.1.4. An ord r for payment of one-month lar · in li u of noti ] .J .r_ Anorderforpayn 'nt ofs J . J . G. Co~ ts of a I ci i 11 · i ct , t · I to t hi - ·1 ·ti JI1: J. J. 7. ny oth r r ,Ji ,rd , ,m •d fit by th ' ·ourt. J3 1.2. The respondent opposed the complainant's claims and in doing so, filed into court an affidavit in opposition on 28th Nove1nber, 2023 sworn to by Gregory Maistrellis, Director of the respondent company. It was argued that the complainant had been confrontational upon being cautioned several times against getting salary advances n1ore than once in a month as per the respondent's policy. That the con1plainant was dismissed for violating clause 1.1 q of the respondent's disciplinary code. 2.0. THE COMPLAINANT'S CASE 2 .1. In his affidavit in support of the notice of complaint and at trial, the complainant testified that he was employed by the respondent on 2nd December, 2015 as a General Worker as shown by his letter of appointment, 'KC l '. That his monthly salary was Kl,132.00 which he was getting until March, 2016 when the respondent reduced it to KS00.00 per month. That he was not told the reason why his salary had been reduced. That prior to the salary being reduced, he was being given pay slips but when his salary was reduced, the respondent started giving him cash only. That the respondent continued to pay him a salary of KS00.00 from April, 2016 until January, 2018. From February, 2019, his salary was further reduced from KS00.00 to K200.00 which h was being paid on a weekly basis until O tobcr, 2019. That he did not know why his j J/j l·.rlc· wl1y Id,, vlvry 111011 r,.;,Jur_,;,J, r,,; ·1,;,- •/)., ··:::~· ::; • ~-, nn1 1•111ploy •cJ un P'~rrnrJn'.:nt w,i', J J :".': -,,.::;-, =: -_.:;-·,,,;:; 1 111plcJy , • whfJ wc;1c, not r.;nlifl~d trJ 8 r; r;:-. .. ::.; ·,:;_::;_ • .:-::: w,1s also imm ·cJiat ,Jy cJic,mic,c,,.=d v:l nrJ .. .. ::~ '../.1::..::. . ·,·,.--, -. of any offence or any misconduct. T, a .. ::r: ·,,,-;;:, ::_1 ~ =:-,=::.. charged or subjected o a dlsciplina '/ :1=€ 3 :-L g -:-:..~:=:;;~-=:: he went to see the Human Resourctc Of:ic'2:--. .:-3':'.::::.-·. -:_::-~-- who advised him to go to his home a next day. ----- ----- 2.2. He testified that he went back o lsor. ::_:_ - -~ .I - --- decided to see his boss before he co- · .:, a _ _ ,., __ ..__ =-~~ :::~ ==.~.:: That, however, his boss repeated he sanF" ,-.- used the previous day. That he he :.-=t= 3. _- : :.:::2 ::::-~: Human Resource Officer and info ed , · :.:....a: had maintained his stance: and e ,,·a- - ,-=i---2_-·_·. advised to go to the Labour Office si appointment. That he \\'ent to the La o r Human Resource Officer ,ras sum o e Labour Officer asked the Human Re- e why his employment "as termin te I Human Resource Officer indi te l the reason for the term i na ti n that the Q\,vner of th m pan,· \LlS the reason . That up n b in~ ~·u1 1 abour Offi 'r, his boss ct, ·!in' I l( 10 lh 'r 0 11 two occa in,. Th'r'aft'r, h', rel' I lo lh' ·ourl . tlS tT' 2. . h omplainant . lal, I lhal a · ·or ling l > I is 1' ll 'r ol a pp o i 11 t rn 11 l, · K I ' , h ' was c n l i t I ' ct lo l w o I c ·w cl a .· pc r month but h n vcr w nt on I 'av durit the '11 ir' riod he worJ-ed for the re pond nt. Thal wh n h ' r spond 'Ill terminated hi contract, he was paid 1 0.00 f r rued leave day . However, he wa not urc if that wa wl t GS due to hi111 for accrued leave days. Th l he w s n l paid any other terminal dues. He also lated that he w ncv r paid for the underpayn1ent of his alaric . 2 .4. He prayed the court to grant him all hi claim . 2. 5. During cross-exan1ination, the co111plain nt confirm d that he was employed by the respondent. He adn1itt d th t he was given a letter of appointn1ent and h i n ct it. He also admitted that he used to receive pay hp upon beino paid his wages. He stated that hi alary wa r due d t KS00.00 in April, 2016. That in January, 20 l , hi s 1 r was redu d lo K200.00. Wh n r f rred to hi pa lip in the re pondent' notic to produ 'e al p·1g _ l ·1nd · , th, omplainant stat 'd that lh sale r of K 1, l32.00 w _ v h l he was getting al th b 'ginning of his mplo ment. llc admi tl d that th pay slip at pag' I was hi s·1lar for May, or 2018 in the sum KI, I J2.00 wlli ·h was his gro s salary. J6 Further, he confirn1ed that, shown at page 2, was his gross salary for the n1onth of May, 2017 in the sum of Kl,132.00. Furthern1ore, on the same page aforesaid, he admitted that the pay slip for the 1nonth of June, 2017 showed a gross salary of K 1,132.00. He denied testifying, in his evidence in chief, that his salary was K500.00. When referred to page 4, lines 2-5 of the record of proceedings, the complainant still denied testifying that his salary was reduced to K500.00. When referred to page 4, line 15 of the record of proceedings, the complainant admitted having stated that his salary was reduced to K200.00 in January, 2018. That, however, the pay slip showed that he received the full salary of Kl, 13 2 .00 for which he signed. 2.6. When referred to the letter titled 'separation benefits' at page 4 of the respondent's bundle of documents, the complainant admitted that the signature on the document was his signature and the document contained his separation benefits. He confirmed that he was paid for his accrued leave days. 2. 7. When re-examined regarding the payment of his salary of Kl, 132.00 which he was receiving; and the respondent's reduction of his salary from K500.00 to K200.00 in April, 2016, the complainant stated that it was from January to April, 2016 when h was g tting KS00.00. When further pressed, he stated that he was only given a full salary in J7 May, 2018. That, however, in the previous months from January, 2016 to April, 2018, he was being paid KS00.00. 3.0. THE RESPONDENT'S CASE 3 .1. RW 1 was Henry Sumaili, Human Resource Manager in the respondent company. The witness informed the court that the complainant joined the respondent in 2015 and he was given the offer letter exhibited at pages 1-2 of the respondent's bundle of documents. That the complainant accepted the offer of employment by signing the aforestated letter. That according to the said contract of employment, the basic pay was K700.00; housing allowance was 30% of the basic pay; transport allowance was Kl04.00 per month; and lunch allowance was Kl20.00 per month. That during the course of his employment, the complainant was being paid all the aforestated amounts. That the complainant, just like any other employee, enjoyed the facility of salary advance which would be deducted from an employee's salary on the pay day. 3.2. It was the witness's testimony that they worked well with the complainant but sometime in 2018, the respondent differed with him and dismissed him. That upon his dismissal, they calculated what was due to the complainant and it amounted to K862.00 and paid him. JB That the con1plainant acknowledged receipt as shown by the docun1ent at page 4 of the respondent's bundle of docu1nents. That on the said document, the complainant acknowledged that it was his full payment, therefore, the respondent did not owe him. anything. 3.3. During cross-examination, the witness stated that employees never used to fill in forms when requesting for a salary advance but they used to sign at the time of being paid to acknowledge receipt. That the document at page 11 of the respondent's bundle of documents showed when the complainant got and signed for the salary advances. He admitted that the document did not show that it was a salary advance form. That it also did not show the year within which the sums were obtained but it just showed the months. That he did not write to the complainant about the money owing because he did not owe the company any money. 3 .4. He admitted that the respondent terminated the complainant's employment. He stated that he had worked as a Human Resource Manager for 10 years although he did not have qualifications of a Human Resource Practitioner. That he was aware that if an employee had breached the disciplinary code, the en1ployee was supposed to be charged and allowed to respond to the J9 charge. That after the response, a disciplinary hearing was supposed to be held where if found guilty, then write to the employee terminating employment. He stated that he did not write a letter to the complainant. He admitted that he was once sum1noned by the Labour Office and went to attend the n1eeting in his capacity as Human Resource Manager. That, therefore, the Directors of the respondent were aware of the complainant's grievances. He denied that the complainant approached him to complain about the underpayments of KS00.00 and K200.00. He denied that the reason the complainant was dismissed was because he complained about the underpayments. He admitted having written to the complainant's Lawyers offering to pay the complainant K7,000.00. He also admitted that he had not informed the court why the respondent terminated the complainant's employment. The witness confirmed that the complainant used to get his salary on a monthly basis. That he had not produced any documents to show that the complainant used to get his salary on a monthly basis. 3. 5. In re-examination, the witness stated that the reason he did not come with all of the complainant's pay slips was because the letter of offer of employment indicated that he was to be paid his salary on a monthly basis. That the JlO con1plainant had agreed that he used to get paid every n1onth but lain1 d that he was under paid. 3.6. RW2 was Greg Naistrellis, Director for the respondent con1pan . He te tified that the complainant was employed on 2nd Decen1ber, 2015 as a General Worker. That he used to work well but the problem the respondent had with him was that he used to request for salary advances every week. That the complainant used to receive multiple salary advances every month which used to he recorded in the advance book as per company procedure. The witness stated that according to company procedure, only one or two salary advances were allowed but the complainant used to get n1ultiple advances per week. That the complainant was warned verbally by the witness and RWl but despite the verbal warnings, the complainant continued getting the salary advances. That that led to his salary being less in net upon deductions. That that habit continued and the complainant got to a stage where he would not accept when the witness refused to give him the salary advances. That the complainant would in fact get aggressive and intimidating which conduct l d to hi dismissal. The witness Lestified that a cording to company policy, wh r th r was aggre ion or intimidation to any rnploye or manag 111 nt, it would result in instant dismissal. Jll 3. 7. It wa the witness' lestin1ony Lhat the complainant was a good and an intelligent p r on despite not having formal education. hat he could read and peak English as well as speal Greek. That, therefore, the complainant was lying when he tated that he did not know why he was being under paid. That the con1plainant knew why he was getting the salaries that he was getting and that was why he did not complain. That the reason why the witness only brought a few pay slips to court was to prove that the complainant was lying. 3.8. RW2 testified that the complainant had worked for the respondent until June, 2018; and that he had received his full separation benefits as shown by the document that he had signed. That the complainant was not telling the truth when he stated that he worked up to October, 2019. The witness stated that the Labour Office had advised the respondent to pay the complainant Kl 7,727.50 without explaining the reasons for that payment; and the witness was not given a chance to offer any explanation as the matter came straight to court. That as for K?,000.00 that was offered to the con1plainant, the witness was advi ed to pay it to his lawyers on a without prejudice ba i to avoid unnecessary cosls. J12 3.9. Durina cro - xamination, the witne s admitted that RWl had att 'nd d a meeting al th Labour Office regarding the co111plainant' complaints. That he did not accompany R\ 1 a he wa not ummoned. That RWl went to the Labour office on behalf of the company. That a letter of tern1ination of employment was written to the co111plainant but it did not indicate the reason why the co111plainant's employment was terminated. He stated that the complainant was charged for being aggressive and intimidating. However, he did not produce the said letter to the court. That disciplinary hearings were held many ti111es relating to the same offence. That he did not show the court the findings of the disciplinary hearings. He stated that the complainant never approached him to complain about the underpayments of KS00.00 and K200.00. He stated that he only produced three pa · slips to prove that the complainant was a liar. That he had not produced the book for salary advances but only produced a page. He admitted that the said page did not sho the years when the complainant took the salary advances and it did not show that it was extracted from the alar advance book. When referred to page 4 of the respondent's bundle of documents, the witne d nied that he told the complainant that he wa not ;oing to get K862 .00 if he did not ign th do um nt. H t ted that the respond n l did not writ to the employee when he J13 took the salary advance but the money would just be deducted fron1 the salary. That in case of any queries they could just check in the book, the reason why they used to sign upon receiving the salary advance. 3.10. The witness admitted that in 2018, he employed the complainant as a Domestic Servant at his house. He denied telling the complainant that he was no longer a Domestic Worker but a Casual Worker in June, 2018. 4.0. FACTS NOT IN DISPUTE 4.1. The only fact which is common cause in this matter was that the complainant was employed by the respondent on 2nd December, 2015 as a General Worker as shown by his letter of appointment, 'KC 1.' 5.0. ANALYSIS OF THE EVIDENCE AND THE DECISION OF THE COURT 5 .1. From the evidence on record, the questions for determination are: 5.1.1. Whether the complainant's dismissal from employment was wrongful and unfair thereby entitling him lo the payment of damages. J14 5.1.2. Whether the complainant used to be underpaid his alary. 5 .1. 3. Whether the complainant is en titled to the payn1ent for accrued leave days; payment of one month's salary in lieu of notice; and to the payment of a severance package. 5.2. I will start with the first issue, which is, whether the complainant's dismissal from employment was wrongful and unfair thereby entitling him to the payment of damages. 5. 3. Under paragraph 5 of the notice of complaint, the complainant claims for an order for payment of damages for wrongful and unlawful dismissal. 5 .4. In the case of Eston Banda and Another v the Attorney General1, the Supreme Court has guided that: "There are only two broad categories for dismissal by an employer of an employee, it is either wrongful or unfair. 'Wrongful' refers to a dismissal in breach of a relevant term embodied in a contract of employment, which relates to the expiration of a term for which the employee is engaged; whilst 'unfaiY refers to a dismissal in breach of a statutory provision where an employee has a statutory right not to be dismissed. A loose reference to the term 'unlawful' to mean 'unfair' is strictly speaking, in employment parlance, incorrect and is bound to cause confusion. The learned author Judge W.S. Mwenda, clarifies on the two broad categories, in her book Employment Law in Zambia: Cases and Materials, (2011), revised edition UNZA JlS Press, Zambia at page 136. She opines that, in our jurisdiction, a dismissal is either wrongful or unfair, and that wrongful dismissal looks at the form of the dismissal whilst unfair dismissal is a creature of statute." 5. 5. On the above authority, I am of the firm view that the relief that the complainant is seeking is that his dismissal from employment was wrongful and/or unfair, and I will proceed to determine his claim as such. 5.6. I will begin with the complainant's claim that his dismissal from employment was wrongful. 5. 7. It is settled that for an employee to successfully bring and maintain an action for wrongful dismissal, it must be shown that the employer breached the disciplinary procedures under the contract of employment, the rules of natural justice and/or indeed the procedure outlined under the Employment Code Act no. 3 of 2019. 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." 5.8. Further, in th ase of Chilanga Cement v Venus Kasito2, the Supreme Court held that: ,, J16 "The concept of wrongful dismissal is essentially procedural and is largely dependent upon the actual terms of the contract in question." 5.9. The above authorities have provided enough guidance as to what a1nounts to wrongful dismissal. 5.10. In casu, in support of his claim, the complainant averred that upon complaining about being underpaid by the respondent, he was instantly dismissed without any misconduct or commission of any offence. That he was not even charged or heard for any alleged offence. 5 .11. On the other hand, the respondent argued that the complainant used to receive multiple salary advances per week contrary to company procedure which allowed for only one or two salary advances per month. That the complainant was warned verbally by RWl and RW2 over the same but despite the verbal warnings, the complainant continued getting the salary advances. That that led to his salary being less in net upon deductions. That the habit continued and the complainant got to a stage where he would not accept when RW2 refused to give him the salary advances and would eventually get aggressive and intimidating. That that led to his dismissal because according to company policy, where there was aggression or intimidation Lo any mploye or managen1ent, it would result in insLant disrnis al. I II 111 1·1'<),-..'-. 1•x 111111111 011, I WI 11d111ltt(•<I 111:11 IH· 111·v1·1 wr,,1,, 111 1 lv111•1· to tilt' ('(11t1pl 1 1111111 1·1·p,:il'(ll11~ Iii•,, 1111fl1u 1. 1 W'! ,'l:tlt•d 111 II :1 l11llt1J' 1111('1'11111:111,111 li.111 '"'('II WJ'lll1•11 '" lllf• cornpl:1 11:1111 l,111 I <Id 1101 11d ,·:1t<· 1111· 1·,•:1•;1J11 lor 1111· IL'rlll 11:11 Oil. lk :d::n .·1:11,•d tl1;1t ,,1•v,·r;1I <I ,,, lpll11;1ry ll •:11· 11g.· 1\•l:1tl1q~ 10 1111• .::11111· c,1'1'(1 11('(' w,·r1· 111•1<1. I llav(1 c·o11.·l(l<•rvcl 1lH1 :11·1:111111 1 111.· lro111 l"'llt p:1r11,, ·. S. I ·I. /\n·orcll111•, 10 HWJ, 1111· <·0111plal11:111t 1~01 itl',1~r1·.-.-iv1· ;u1cl lntlrni<l.11l11g wl1v11 w:11·11t<I ov<·1· 111 · rnult lplv ·;llary aclvan · ·s lw lw<I I) ·vn 1•,1·t1 i111 1,. 'l'lw1 1lii.; w;1.· ;u1 ol'l,·n ·,· un I •r th• r·spo1HI ·111·.- di.-clpli11·1ry ;ocl ·, ;la11s · I. II i11 p·1rti ·ular, ancl Ill· p •11:tlly w·,.- i11.-1un1 11.-1111.-.-al. Th • off 111 · 1 Lll1 I •r .-aid ('la11s<· I. I q wa.- I ·rr · I 'ts "f'iqhllnq, assuult, threats und lntlmldutlon lnvolvlnq manayernent and/or m<'mh<'rs o(stu/f' durln<,J und out u( worl<inq hours.'' I) •s pit• Ill· ol'I' ·11 · · l1.1vi11l', IJ ·c11 all •g ·cJ to Inv· b 1 ·n ·o n 111 i II (' cl I y I I1 • · c" 11 p I i.li II a II I , Ii · w a s 11 · v •r f' o r 111 a 11 y ·11;11·1 •ti witl1 ii . 1, :i . I '., . 11:ivv IH'r11.-vcl 111 • ,. •.-po11 I ·111·.- lis ·iplinary ·o I· ·xl1il)il<•cl :11 p:q•,t'.':, :u1d (i ol' 111 · r '.'1)011 I ·111 ' · b II II• ol' cl() ct 111 H· 111 .- :1 . ' w •1 1 a.- 11 1( ' i.t (I cl •1 1 d u 111 lo l It · cl i .' · I I I i I l'l r y ,·o<lv vxlilllil<'d :11 p:q•,v (), I 1101 · 111,11 111 ·rv ill'· 110 provio.,in11 · r,·l:11 l1q 1, 10 1111· dl.-c·ipli11,1ry pro · •d 1r • 10 I), Jl8 followed in an event that an employee commits an offence. However, it should be stressed that there is always the need for an e1nployer to formally charge an employee prior to his/ her dismissal on disciplinary grounds. Section 52(3) of the Employment Code Act No. 3 of 2019 prohibits an en1ployer from terminating an employee's contract of employment for reasons related to an employee's conduct before the employee is accorded an opportunity to be heard. 5 .16. In the case of Bethel Mumba and Another v Africa Market (Trading as Shoprite Checkers)3, it was held that: "In industrial and labour matters, the need for an employer to charge an employee with a disciplinary offence and to give such an employee an opportunity to be heard before any sanction can be imposed cannot be over-emphasised as the same is the hallmark procedural and legal requirement in dealing with disciplinary process in employment matters." 5 .17. Further, in the case of Sarah Aliza Vekhnik v Cash Dei Bambini Montessori Zambia Limited4, the ourt f Appeal observed that: "In English law, natural justice is a technic 1 terminology for the rule against bias (nemo Jud x in casua) and the right to a fair hearing (<rndi alteram partem), put simply it is the 'd11t to 1 t fairly.' The right to a fair hearing r quir that individuals should not be penalis d by d ci ion affecting their rights of legitimat p t tion unless they hav been given prior noti of th, case, a fair opportunity to n wer it, nd the opportunity to present th ir own cas . " J19 5.18. Furthermore, the requirement for the rules of natural justice to be complied with in order for a dismissal to be deemed fair was re-affirmed in the case of Zambia China Mulungushi Textile (Joint Venture) Limited v Gabriel Mwami5 where it was held that: "Tenets of good decision-making import fairness in the way decisions are arrived at. It is certainly desirable that an employee who will be affected by an adverse decision is given an opportunity to be heard." 5 .19. In the present case, the evidence on record has revealed that the complainant was not formally charged with the alleged offence or indeed any other offence before he was dismissed. Further, although RW2 claimed that several disciplinary hearings had been held against the complainant, there was no evidence produced to prove that such disciplinary hearings were held. Therefore, I am satisfied that the complainant was also not given an opportunity to exculpate himself or to be heard. 5. 2 0. In the result, therefore, I find that the failure by the respondents to formally charge the complainant; invite him to exculpate himself; and to accord him a hearing before his dismissal culminated in the breach of section 5 2(3) of the Employment ode Act No. 3 of 2019 and the rules of natural justice. Consequently, the complainant J20 has, on a balance of probabilities, proved his claim that his dismissal from employment was wrongful and he is entitled to damages accordingly. 5. 2 1. The complainant has also complained that his dismissal from employment was unfair. 5.22. The learned authors, Judge Dr. W.S. Mwenda and Chanda Chungu in their book entitled: A Comprehensive Guide to Employment Law in Zambia, state at page 241 as follows: "Unfair dismissal is dismissal that is contrary to the statute or based on unsubstantiated ground. For unfair dismissal, the Courts will look at the reasons for the dismissal for the purpose of determining whether the dismissal was justified or not. In reaching the conclusion that the dismissal is unfair, the Court will look at the substance or merits to determine if the dismissal was reasonable and justified." 5.23. On the above authority, unfair dismissal is one where a specific statutory provision has been breached by an employer when dismissing an employee or one where a dismissal has been based on unsubstantiated reasons. 5.24. Pursuant to section 52(5) of the Employment Code Act No. 3 of 2019, the employer bears the evidential burden of proving that the dismissal of an employee from employment was fair and for a valid reason. 5.25. In the pres nt ·as , it i not .in issu that the complainant was dismiss d from cmploym nt for allegedly committing J21 the offence of issuing threats and intimidating RWl and RW2. It is alleged thal the complainant became aggressive and intimidating upon being verbally warned for getting too n1any salary advances. 5.26. As I have already found above, the complainant was not charged with any offence before he was dismissed thereby denying him an opportunity to defend himself. Had the respondent charged the complainant and accorded him an opportunity to exculpate himself before dismissing him from employment, it could have satisfactorily established whether or not he had committed the alleged offence for which he was dismissed. This follows that the reasons for dismissing the complainant from employment were not substantiated. In the circumstances, therefore, I hold that the complainant's dismissal from employment was unfair and he is accordingly entitled to damages. 5.27. In summary, I am satisfied that the dismissal of the complainant was both wrongful and unfair. 5.28. I now come to the assessment of the quantum of damages to which the complainant is entitled to for both the wrongful and unfair dismissal. 5.29. Jn the Eston Banda and Edward Dalitso Zulu' case, the Supreme Court guided lhat the general measure of J22 damage w h c r c l h c r c i s n o L h i n g c x tr a or di nary is an an1ounl quivalcnl lo Lh noli c period provided in the c n trac l or tn Lh e abs en e of such provision, a reasonable period. From the roregoing, it is settled that the normal n1easure of dan1ages that apphes 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 de1nand. 5.30. 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 Limited6, the Court of Appeal referred to two leading cases of Chilanga Cement Pie v Kasote Singogo7, and Barclays Bank (Z) PLC v Weston Lyuni and Suzyo Ngulube , decided by the Supreme Court. The Court of Appeal observed at page JS of the judgment that: "We note that in the two cases, the Supreme Court guided on the factors to be taken into consideration to award damages beyond the common law practice of notice period. Some of the considerations are future job prospects, inconvenience, stress and abruptness of termination. In so guiding, the emphasis was that the trial Court should consider all the circumstances of each case and where it considers that a particular case is deserving, it should go beyond the common law measure of damages." 5.3 1. In the presenl case, I am sati fied that the complainant was abruplly and unwarrantedly disn1issed from .. J23 employn1ent. Therefore, considering the circumstances of this case, I have decided to depart from awarding the con1plainant da1nages equivalent to the notice period. Consequently, I award the complainant damages equivalent to nine 1nonths full pay. 5.32. According to the complainant's pay slips produced before court, his full pay was K 1,132.00 per month. That amount multiplied by nine months gives a total of Kl0,188.00. Therefore, I enter judgment in favour of the complainant in the sum of Kl 0, 188.00 being damages for wrongful and unfair dismissal. 5. 3 3. I now turn to the second issue for determination, which is whether the complainant used to be underpaid his salaries. 5. 34. Before, determining this issue, I wish first to determine the preliminary issue raised by the respondent that the complainant was dismissed on 30th June, 2018 and not in October, 2019 as claimed. It was the respondent's evidence that due to his persistent pleas after his dismissal, the complainant was employed as a Domestic Servant on 8th October, 2018 by RW2 in his personal capacity and not by the respondent. J24 5. 3 5. I have considered all th evidence before me. I note that on 30th June, 2018, the complainant signed the letter termed 'SEPARATION BENEFITS' exhibited at page 4 of the respondent's bundle of documents. In the said letter, the con1plainant acknowledged receipt of the sum of K86 2. 00 as his final pay1nent. 5. 3 6. Further, the complainant did not dispute having been employed as a Domestic servant by RW2, in his personal capacity. Therefore, I find that the complainant's employment relation with the respondent terminated on 30th June, 2018. As such, the complainant is not entitled to any claims against the respondent beyond that date. 5. 3 7. I now come back to the question for determination. It is not in dispute that the complainant's salary was Kl, 13 2 .00 as per his contract of employment, 'KC l '. The complainant alleged that he was getting that salary until March, 2016. That from April, 2016 to January, 2018 the respondent reduced his salary to KS00.00 per month without any explanation. That in January, the re pondent further reduced his salary to K200.00 up to October, 2019. That when he asked why his salary wa reduced he was told that h was not mploy don permanent ba i but he was a ca ual mploy and h wa uppo d to be getting paid a daily alary as opposed to a monthly salary. J25 5.38. On th oth r hand, the r spond nt argued hat the con1plain nt u d to r quest for salary advances every , eek and ould r ceiv multiple salary advances every n1onth hich used to be recorded in the advance book as per compan procedure. That according to the company procedure, only one or two salary advances were allowed but the complainant used to get multiple advances per week. That the complainant was warned verbally by RWl and RW2 over the same but despite the verbal warnings, the complainant continued getting the salary advances. That that situation led to his salary being less in net after deduction of the salary advances. That the complainant knew why he was getting the amount of the salaries he was getting and that was why he did not complain during his employment. 5.39. I have considered the parties' arguments in support of their respective claims. 5.40. During cross- xan1ination, the ompl in nt dmitted th t th pay slip xhibit d t p g 1 f th r p nd nt' n ti to produ a hi 1 r f r th 1 nd it show d gro salar ofKl ,L ' .0). H mitt d that th fir t pa •lip f th id n tice to produ \ a~ for th 11011th of 1 17 n it ho,\ ed ' ' ' ' J26 a gross pay of Kl, 132.00 while the second pay slip was for the month of June, 201 7 and it al so showed a gross salary of Kl, 132.00. The foregoing evidence clearly shows that the respondent had not reduced the complainant's salary to KS00.00 in April, 2016 and later to K200.00 in January, 2018. Had that been the case, the complainant would not have received full salaries in the above stated months. 5.41. Further, I have noted from the document at page 11 of the respondent's bundle of documents, which the respondent said was an extract from the book where they used to record salary advances, that the complainant had signed for several cash advances. This supports the respondent's evidence that the complainant used to get several salary advances which would lead to him getting less pay upon deducting the salary advances. 5 .42. It is noteworthy that it was the duty of the complainant to adduce cogent evidence in support of his claim or allegation. He had failed to discharge the said burden of proof. 5.43. On the above evidence, find that the complainant has not T prov d, on a balance of probabilities, his claim for paym nl of salary arrears by virtue of salary J?7 underpayn1e, Ls. There I or , his claim cannot tand and is a ordingl di miss d. 5.44. l 110\ turn lo the third i u , whi h i wheth r the con1plainanl is entitled lo the payment for accrued leave day ; payn1ent of one month's salary in lieu of notice; and to the pay111ent of a severance package. 5 .4 5. Regarding his claim for the payment for accrued leave days, the complainant stated that according to the complainant's letter of appointment, 'KCl', he was entitled to two leave days per month. That, however, he never went on leave during the entire period he worked for the respondent. That when the respondent terminated his contract, he was paid K850.00 for accrued leave days. However, he was not sure if that was what was due to him for accrued leave days. S .46. The respondent, on the other hand, argued that the omplainant was paid for al1 his leave day and h acknowledged receiving the payment as hi final payment by signing the letler exhibit d at page 4 of the r spond nt's bundl of document . 5.47. As allud •d to abov ', th , 011plainant had worked for the respondent from :Z11<1 I) c mb r, 20 1 to 01h June, 2018. J28 This gives a total of 31 1nonths. According to his letter of appointn1ent, 'KC l ', he was enti t]ed to two leave days per n1onth. This means that the complainant had accrued a total of 62 leave days. There is undisputed evidence on record that the con1plainant had never gone on leave during the entire period that he had worked for the respondent. Therefore, using the formular provided for in the Employment Code Act No. 3 of 2019, the amount of Kl, 132.00, full pay multiplied by 62 accrued leave days divided by 26 equals to K2,699.38. According to the letter dated 30th June, 2018 exhibited at page 4 of the respondent's bundle of documents, the respondent only paid the complainant the sum of K862 .00 for 3 2 accrued leave days. This means that the complainant was underpaid by the sum of Kl,837.38. In this regard, I enter judgment in favour of the complainant in the sum of Kl ,837.38 being payment for the balance of accrued leave days. t With regard to the complainant's claims for one month's pay in lieu of notice and for the payment of severance benefits, I find that the co1nplainant is not entitled to the tc payment of one month's salary in lieu of notice and severance benefits sine his n1ode of separation with the respondent was a di n1issal and not a termination. ' J79 Th r for , thcs ' ·laims cannot stand and are accordingly dL n1L d . .4 . In umn1ar , th omplainant has succeeded in his claims for th pay111ent of da1nages for wrongful and unfair di n1is al in the sun of Kl0,188.00 and payment for accrued leave days in the sum of Kl,837.38. The total sum r ' of Kl2,025.38 shall attract interest at the short-term commercial deposit rate, as determined by the Bank of Zan1bia, from the date of the notice of complaint to the date of the judgment and thereafter, at 10% per annum until full settlement. 5. 5 0. I make no order for costs 5. 51. Leave to appeal is granted. Delivered at Ndola this 26th day of January, 2024 Davie C. Mumba HIGH COURT JUDGE