IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO.

185/2022
HOLDEN AT KABWE
(Civil Jurisdiction)

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ZCCM INVESTMENTS HOLDING PLC RESPONDENT

Coram: Kondolo, S.C, Majula and Banda-Bobo, JJA.

On 23rd May, 2024 and 28th November, 2024.

For the Appellant: Mr. W. Mubanga, SC and Mr. M. Mubanga, both of

Messrs Chilupe and Permanent Chambers, and Mr. C.
Chungu of Nsapato and Company

For the Respondent: Mr. B. Mbilima - In House Counsel

JUDGMENT

Banda-Bobo, JA delivered the Judgment of the Court.

Cases referred to:-

/
1. Tolani Zulu and Musa Hamwala v. Barclays Bank Zambia Limited
(SCZ Judgment No. 17 / 2003)
2. Attorney General v. Marcus Kampumbu Achiume (SCZ Judgment No.
2 of 1983)
3. MP Infrastructure Zambia Limited v. Matt Smith and Kenneth Barnes
(Appeal 102 / 2020)
4. Albert Mupila v. Yu Wei (2022) ZMIC 2
5. Supabets Sports Betting v. Batuke Kalimukwa (110 of 2016) (2019)
• l

6. Attorney General v. Paul Chilosha (2019) ZMSC 338

7. Sarah Aliza Vekhnik v. Casa Dei Bambini Montessori Zambia Limited
(2018) ZMCA
8. S. A. Clothing and Textile Workers Union and Others v. Discrete - A
Division of Trump and Springbok Holdings (1998) 12BLLR 1228 (LAC)
9. Zambia Consolidated Copper Mines v. Matale (SCZ Judgment No. 9 of
1996)
10. Giles Yambayamba v. Attorney General and National Assembly
(SCZ/ 26/ 2015)
11. Butler Asimbuyu Sitali v. Energy Regulation Board (Appeal No.
12 / 2017)
12. Christopher Mulenga and 2 Others (Appeal No. 12/ 2015 selected
Judgment No. 421 2017)
13. Savenda Management Services v . Staribic Bank (Selected Judgment
No. 10 of 2018)
14. Harrison Fwalo Chikasa v. Chantete Mining Services Limited
(Comp/ 10/ 2016) (unreported)
15. Chilanga Cement v. Kasote Singogo (SCZ Judgment No. 13 of 2009,
16. National Milling Corporation v. Angela Chileshe Bwembya Silwamba
(2018) ZMSC 567
17 . Chansa v. Barclays Bank Plc (Appeal 111 / 2011)
18. Standard Chartered Bank Plc v . Celine Meena Nair (Appeal 14/ 2019)
19. Suhayl Dudhia v. Citi Bank Zambia Limited (Comp No.
IRC/ 211 / 2013)
20. First Quantum Mining and Operations (Appeal No . 206/ 2015)
21. Zambia Privatisation Agen cy v. James Matale (Appeal No. 96 of 199 5)
22 . Bupe and Another v. Zambia National Commercial Bank (SCZ Appeal
No. 27 / 2000) (unreported)
23. Swarp Spinning Mills PLc v. Chileshe and Others (2202) ZR 23 ,
24. Zambia State Insurance Corporation and Attorney General v. Singogo
(SCZ Appeal No. 2 / 2007)
25. Barclays Bank Zambia Plc v. Weston Luwi and Suzyo Ngulube (SCZ
Appeal No. 07/ 2012)

Legislation referred to:-

• The Employm ent (Amendment) Act No. 15 of 2015

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• The South African Labour Relations Act, 1995

• The Employment Act, Cap. 269
• The International Labour Organisation (110) Termination of
Employm ent Convention No. 158, 1982
• The Industrial and Labour Relations Act Cap. 269

Other Works referred to:-

1. Mwenda, J, Employm ent Law in Zambia: Cases and Materials

2. Selweyns Law of Employment

1.0 Introduction

1. 1 This is an appeal against the Judgment of Hon. Mr. Justice

E. Mwansa, delivered in the Industrial Labour Relations

Division of the High Court, at Lusaka, on 30th June, 2022.

The parties will be referred to as they appear in this Court.

2. 0 Background

2.1 Briefly, the background to this matter is that the appellant,

who had been employed as a Chief Executive Officer (CEO),

and was serving his second term of contract for a period of

36 months, had his contract terminated before it expired.

This termination was on 1st February, 2019.

2.2 It was his Complaint that in a letter dated 31st January,

2019, the respondent unjustifiably and illegally terminated

his employment, in that the termination was effected

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without giving the complainant valid reasons, connected

with his conduct or performance, and neither was he

accorded an opportunity to be heard prior to the

termination.

2.3 The respondent, 1n its letter of termination advanced a

reason for termination, couched thus:-

"As you are aware, the company has recently

adopted a new strategic plan for the period 2018
to 2023. The company has decided to terminate
your services to pave way for a new Chief
Executive Officer to run with the new plan."
2.4 The appellant, dissatisfied with the reason, commenced an

action in the Industrial Relations Division, High Court,

seeking various reliefs and Orders.

2.5 In the affidavit in support of the Complaint, appearing at

page 83 of the record of appeal (ROA), Vol. 1, the appellant

gave a historical background to his employm ent relationship

with the respondent; and the terms embedded in the contract

the parties entered into.

2.6 It was the appellant's contention that in the period of his

employment, he served the respondent to the best of his

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ability, and turned the company into a World Class

Investment Company, by putting in place a five year robust

strategic plan. He went on to tabulate the various milestones

attained by the respondent in the time he was at the helm.

2 .7 That sometime in 2019, about 28 th January, he responded to

a journalist from Bloomberg on the effect of a proposed sales

tax on the financials of the respondent company. That as a

result of his response , some media houses printed articles

wherein he was branded, among other things, as a traitor

and calling for his removal.

2 .8 That this was later followed by a telephonic conversation,

and an in person meeting with the Chairperson of the Board

of the respondent. That he was informed by the Chair, that

his comments on the sales tax had been blown out of

proportion and that he , the Chair, had been instructed to

terminate the appellant's employment with immediate effect.

2.9 That on 1st February, 2019, his employment was terminated

without prior warning, and by way of an announcement on

the Zambia National Broadcasting Corporation Television

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 (ZNBC), at a press briefing by the Minister of Mines, and the

press aide to the then Republican President.

2.10 He was handed a letter of termination, in which it was stated

that he would be paid 3 months' salary in lieu of Notice and

requesting him to vacate the company residence by the end

of February.

2.11 It was his deposition that the letter did not state the reasons

for terminating his contract.

2.12 He claimed that the termination of his employment was

unlawful, as the respondent ought to have stated reasons for

the said termination, and given him an opportunity to be

heard; which was not done. That he believed that the reason

given in the letter did not amount to a valid reason as

envisaged by the Employment (Amendment) Act, 15 Of 2015.

2.13 He was of the belief that the real reason for termination was

premised on the allegations reported by the media in

response to the answer he gave on the issue of the proposed

tax regime. That he had been advised that his termination

had been precipitated by the allegations against him.

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2.14 That he ought to have been charged so that he could defend

and exculpate himself; after which appropriate action could

have been taken against him.

2 . 15 That by invoking the notice clause to terminate his contract,

the respondent infact summarily dismissed him under the

guise of termination by the said notice clause, which notice

was a flagrant contravention of the relevant provisions of the

Employment (Amendment) Act, No. 15 of 2015. That he had

been advised that the use of the Notice Clause in its quest to

terminate his services, amounted to abuse in that a Notice

Clause should not be used as a substitute to dismiss.

2.16 It was his further averment that, according to relevant

provisions of the Employment (Amendment) Act, he was

wrongfully removed from the respondent's company and

believed his termination was a flagrant breach of the rules of

natural justice and the Employment (Amendment) Act.

2 . 17 The respondent filed an answer to the Complaint on 25 th

March, 2021. In the affidavit in support of the respondent's

answer to the complainant, the whole Complaint was

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traversed thoroughly. Of relevance, was the averment that

the employment contract for the appellant provided for the

employer to give three (3) months' notice of termination or

payment of three (3) months basic pay in lieu of notice. That

infact a reason for termination was given, namely to pave way

for a new CEO to run with the strategic plan. That the

complainant had been advised what he would be paid upon

termination, and he was paid prorated gratuity, leave days

and three months' pay in lieu of notice, less what he owed the

company.

2.18 The Respondent did not dispute terminating the appellant's

employment by way of a letter of termination. That all his

dues were paid. That therefore the dismissal was neither

unlawful nor unfair as it was done in conformity with the

provisions of, among others; the Contract of Employment,

the Employment Act, Cap 268 of the Laws of Zambia, and the

respondent's policies and procedures. That the appellant's

claim was incorrect, and an afterthought, in view of Clause 8

of the contract of employment.

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2.19 That the appellant was entitled to payment in lieu of notice ,

his three months' salary, accrued leave days and prorated

gratuity up to the date of his dismissal, which were all paid

to him in full after his dismissal.

2.20 That in view of the above, the Complaint lacked merit and

the Complainant was not entitled to any of the reliefs sought.

3.0 Decision of the Lower Court

3.1 The learned Judge received evidence from the appellant in

support of his case. The testimony for the respondent came

from their single witness, a Mr. Patson Banda.

3.2 In coming to his determination, the learned Judge identified

two (2) issues for resolution, namely:-

(i) Whether the reasons given by the respondent for

termination using the notice clause are valid or

whether or not the veil can be pierced;

(ii) Whether in the circumstances, the termination

could be held to be wrongful or unlawful.

3.3 In answering the first issue, the learned Judge asked

himself whether the reasons stated in the letter for

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 termination were sufficient. The learned Judge found that

it was sufficient to cover operational requirements. That a

strategic plan is an operational document. That, that being

the case, the reason given by the respondent for termination

was an operational one, hence valid and in compliance with

the requirement of Section 36(3) of the Employment

(Amendment) Act.

3.4 The learned Judge was of the view that it would have been

different if no reason had been proffered at all or if he had

found the meaning of "operational requirement" to be

something else. Further that, the reason given need not

satisfy the Employee or Complainant. That it is the court

that needs to be satisfied that the reason is valid or not. He

found that the reason given fell within the requirement of

the law.

4.0 Regarding the second issue, the learned Judge found that

there was no wrongful nor unlawful termination. To arrive

at his decision, the learned Judge relied on the case of

Tolani Zulu and Musa Hamwala v. Barclays Bank Zambia

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Limited 1 , for the proposition that the respondent used the

Notice Clause in the agreement, which was an option to

them; besides that of prosecuting the appellants, proffering

disciplinary charges or indeed giving him the notice

required under the conditions of service or pay the amount

in cash in lieu of notice.

4.1 It was the learned Judge's conclusion that all salaries,

allowances and prorated gratuity was paid at termination.

That there could be no award for the unworked portion of

the contract as that would amount to unjust enrichment.

4.2 All in all, he found no merit in the appellant's case, and

dismissed it in its entirety.

5.0 The Appeal

5. 1 Discomforted by the verdict of the lower court, the

appellant now comes to this Court on appeal, fronting

seven (7) grounds couched thus:-

1. The Honourable Judge in the court below erred

in fact and in law by holding that the
termination of the Appellant's contract by the
respondent was an operational one and

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 therefore valid and in keeping with the
requirement of Section 36(3) of the Employment
Act Chapter 268 of the Laws of Zambia (As
amended by Act No. 15 of 2015) when there was
no such evidence;
2. The Honourable Judge in the court below erred
in fact and in law when he made a finding that
the letter of termination carried a reason which
satisfied the court below as valid and within the
requirement of the law when that was not the
case;
3. The Honourable Judge in the court below erred
both in law and fact by failing to consider the
various judicial authorities that have given
guidance to the rules as regards doing
substantial justice and piercing the veil in
search of the real reasons for termination;
4. The Honourable Judge in the court below erred
in fact and in law by failing to recognize the fact
that the respondent did not give the appellant
an opportunity to be heard prior to the
termination as regards the operational
requirements of the respondent as it ought to
have done in accordance with the law.

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 5. The Honourable Judge erred in fact and in law
by disregarding all the appellant's evidence for
the real reason behind the termination;
6. The Learned Judge in the court below was not
on firm ground when he held that the
respondent's termination of the appellant's
employment was properly done and within the
power of the respondent because an employer is
at liberty to simply invoke a notice clause even
without giving reasons;
7. Such grounds as will be available upon perusal
of the case record.

6.0 Arguments in Support

6 .1 The appellant filed his heads of argument on 18th August,

2022.

6.2 In arguing the appeal, grounds 1, 2 , 4, 6 and 7 were argued

separately, while grounds 3 and 5 were argued together.

6.3 In ground one, the court was faulted for holding that the

termination of the appellant's contract by the respondent

was an operational one, and therefore valid as it was in

consonant with Section 36(3) of the Employment Act, Cap

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 268 of the Laws of Zambia as amended by Act No. 15 of

2015.

6.4 The contention was that the said holding was made in the

absence of evidence to that effect. We were urged to

overturn the findings of fact, as the findings were perverse.

That in line with the case of Attorney General v. Marcus

Kampumbu Achiume 2 the court is entitled to overturn

perverse findings of fact made by a lower court.

6.5 It was contended that the reason given in casu, for the

termination was not tenable as no evidence had been led to

back up the respondent's assertion that they needed a new

CEO to run with the new plan. In support, we were referred

to the case of MP Infrastructure Zambia Limited v. Matt

Smith and Kenneth Barnes3 where we held that: -

"It has been argued on behalf of the appellant that

the reason given was valid as the appellant was not
obliged to prove the reason. We however agree
with the learned trial Judge that the termination
was unlawful as the appellant failed to provide a
"valid reason" for the same. This is because there
was no notice of any wrongdoing on the part of the

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 2 nd respondent. The appellant alleged that they
had reviewed the 2 nd respondent's work performance
but did not produce the work appraisals in evidence.
We therefore find no merit in ground one."
6.6 Counsel adumbrated the reason for the amendment of

Section 36(3) and referred to the second Reading of the

Employment (Amendment Bill) No. 15 of 2015, where the

intention of the Legislature in formulating the law, was inter

alia, to address the lack of employment security, eliminate

gross abuse of workers' rights and enhance the country's

labour administration in line with the International Labour

Organisation (ILO) Termination of Employment Convention

No. 158, 1982.

6 .7 Regarding the lower court's consideration of termination

based on the operational requirements of the undertaking,

counsel submitted that our legislation does not provide a

definition of the term "operational requirements". Counsel

pointed to the decision of the Industrial Relations Court in

the case of Albert Mupila v. Yu Wei4 where the issue of

'operational requirements' was discussed. That the court

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 gave guidance on the basis upon which termination based

on the operational requirements of the undertaking should

be made; where it held that:-

"The distinction between termination for

operational requirements and redundancy is that
termination for operational requirements is based
on a bonafide commercial reason such as inability
to financially sustain an employee or due to a
restructuring exercise, while redundancy is only
triggered when one of the redundancy situations in
Section 55(i) of the employment Code Act arises."
6.8 Counsel submitted that termination connected to the

operational requirements of the undertaking is one that is

based on a banafide commercial reason such as inability

to financially sustain an employee or due to a restructuring

exercise. Counsel urged us to endorse this.

6.9 It was counsel's submission that what would constitute a

bona fide commercial reason would be dependent on the

employer; but that however, in order to ensure fairness, an

employer ought to substantiate and justify the reason for

termination. That the respondent ought to have been clear

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and precise, by indicating in the letter of termination, why

it felt that the appellant was incapable of running with the

plan or why it required a new CEO to run with the strategic

plan.

6.10 Counsel further adverted to the South African jurisdiction;

to supplement his argument, which jurisdiction he

contended is equally subscribed to the International Labour

Organisation's Convention No. 158, having domesticated

the same way before Zambia did. Counsel cited Section 213

of the South African Labour Relations Act, 1995 which

defines "operational requirements" to mean:-

"requirements based on the economic,

technological, structural or similar needs of an
employer"
6.11 It was contended that this definition sits well with the

guidance given in the Mupila4 case, and it would assist in

formulating an appropriate definition of the term, and

would not only add value to our jurisprudence, but bring

certainty and clarity on what it entails to terminate an

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 employee's contract based on the "operational

requirements" of the undertaking.

6 . 12 Counsel argued that the burden of proving the existence of

a valid reason for termination lay upon the employer, since

he is the one who initiates the termination. That he is thus

under an obligation to provide evidence that the reason for

termination is valid, otherwise employers would come up

with a myriad of excuses to use, to disguise the real reason

for terminating an employee's employment.

6.13 Counsel went on to state that Section 52(2) of the

Employment Code Act No. 3 of 2019 has captured what was

Section 36(3) of the repealed Employment Act. That the

current Act has codified Article 9(2) of the Convention by

way of Section 52(5).

6.14 Reverting to the matter at hand, counsel argued that the

respondent failed to discharge its burden, despite filing an

answer to the complainant, and appearing at trial. That it

did not provide evidence to the effect that the termination

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 of the contract of employment was fair and for a valid

reason.

7. 0 That in casu, other than the letter of termination, which

stated nothing about the respondent's operational

requirements, there was no evidence provided by the

respondent to substantiate the reason for termination.

7.1 To augment, our attention was called to the case of

Supabets Sports Betting v. Batuke Kalimukwa5 where the

Supreme Court held that:-

"In the case in casu, apart from having been

wrongfully dismissed, the respondent was, as
correctly found by the trial court, also unfairly
dismissed for the charge of sexual harassment,
which, according to the evidence on record, was
not supported by any relevant substratum of facts.
The decision appears to have been prompted by the
appellant's predetermined result to find a ground
on which to dismiss the respondent ... "
7.2 That in casu, the respondent did not, in its answer, give any

such evidence. That there was no evidence in the 2018 to

2023 Strategic Plan appearing from pages 496 to 596, Vol

3 of the record of appeal, produced, pointing to any specific

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 expectation, performance indicator or anything whatsoever

showing that a new CEO was better fitted to run with the

plan as per the respondent's purported reason for

termination.

7.3 It was their submission that the respondent was in clear

breach of statute when it terminated the appellant's

employment, as it failed to substantiate the reason for

terminating. That the finding by the court below was

flawed , as there was no basis upon which it could have

made this finding.

7.4 In ground 2, the learned Judge in the court below is faulted

for finding that the letter of termination carried a reason

which satisfied it, as being valid and within the

requirements of the law when infact not.

7.5 The submissions on this ground were similar to those

proffered in ground one, namely that the termination had

to be for a reason, not only a reason, but a valid and

justifiable reason. In support, the cases of Attorney

General v. Paul Chilosha6 , Sarah Aliza Vekhnik v. Casa

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 Dei Bambini Montessori Zambia Limited7 were adverted

to. That the respondent should have given reasons or the

instances laid down in arriving at a decision to pave way for

a new CEO, as to simply state "to pave way" was grossly

insufficient.

7 .6 That the case of S.A. Clothing and Textile Workers Union

and Others v. Discreto - A Division of Trump and

Springbok Holdings 8 is instructive as it summarises the

procedure to be followed prior to a termination based on

operational requirements of an undertaking. That the

events prior to the termination and subsequently the

manner of termination suggested political interference,

hence suggesting that the reasons advanced for the

termination merely disguised the real reason.

8.0 In grounds three and five, it was contended that the reason

for the termination was but a smokescreen to hide the real

reason for the termination. Counsel tabulated all the

events leading up to the termination. That these events

and the suddenness of the termination and the

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announcement thereof, on the national television

broadcaster by the former Presidential Aid and Minister of

Mines, were highly suggestive of mala fides. That Section

85(5) of the Industrial and Labour Relations Act Cap. 269,

clothes the court with power unfiltered by technicalities, to

carry out substantial justice. That the effect of the said

Section was elucidated in the case of Zambia Consolidated

Copper Mines v. Matale 9 where it was guided that in

doing substantial justice, the court could delve into

reasons given for termination to redress any real injustices.

8.1 Counsel contended that the lower court glossed over the

crucial events as set out by the appellant; and it failed to

delve behind the reasons for the termination. That the

court failed to critically examine all the circumstances

surrounding the termina tion.

8.2 Our attention was also drawn to the cases of Giles

Yambayamba v. Attorney General and National

Assembly 10 and Butler Asimbuyu Sitali v. Energy

Regulation Board 11 , to buttress this point.

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8. 3 Regarding the need to do a thorough analysis of the

circumstances surrounding an employee's termination,

counsel adverted to our decision in the case of Sarah Aliza

Vekhnik7 where we stated, inter alia that:-

"... we the refore agree with counsel for the

appellant that the court below did have power to
consider the circumstances leading to the
appellant's dismissal."
8.4 We were also referred to the cases of Christopher

Mulenga and 2 Others 12 and Savenda Management

Services v. Stanbic Bank Zambia Limited13 , on

principles of judgment writing, which it was averred were

not followed, as the learned Judge did not actively

interrogate all the issues in the case.

8.5 Under ground four, the learned Judge was faulted for

failing to recognize the fact that the respondent did not

give the appellant an opportunity to be heard prior to the

termination as regards the operational requirements of

the respondent. That the failure to afford the appellant an

opportunity to be heard prior to the termination amounted

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 to wrongful dismissal. That there had been no procedural

fairness in the appellant's dismissal; as the proper

procedure was not followed.

8.6 Reference was had to the works of Mwenda, J, Employment

Law in Zambia: Cases and Materials 1 , where she confirmed

that wrongful dismissal looks at the form or procedural

errors in effecting a dismissal. That in casu, the dismissal

was wrongful because the respondent failed to afford the

appellant an opportunity to be heard. Counsel drew our

attention to the learned authors of Selweyns Law of

Employment2 , and the case of Harrison Fwalo Chikasa v.

Chantete Mining Services Limited 14 on the need for an

employee, who will be affected by an adverse decision, to

be given an opportunity to be heard so as to ensure fairness.

8. 7 That in the context of an employment termination based on

the operational requirements of the undertaking, what

would amount to procedural fairness would be to subject the

employee to a consultation process. Counsel referred to the

cases of Chilanga Cement v. Kasote Singogo 15 and

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 National Milling Corporation v. Angela Chileshe

Bwembya Silwamba 16 on the need to consult the affected

employee to ensure procedural fairness.

8 .8 Counsel adverted to the issue of the principle of natural

justice, while relying on the case of Sarah Aliza Vekhnik7

in which we alluded to the requirement for the rules of

natural justice to be complied with.

8 .9 In ground six, the learned Judge in the lower court is

attacked for holding that the termination of the appellant's

employment was properly done and within the power of the

respondent, as an employer is at liberty to simply invoke

the Notice Clause, even without giving reasons.

8.10 It was submitted that the learned Judge misapplied the

principle in the case of Tolani Zulu and Musa Hamwala v.

Barclays Bank Zambia Limited 1 , in which the Supreme

Court guided that out of all the options open to the

respondent, the respondent opted for the last option of

paying a month's salary in lieu of Notice. That however,

since the enactment of Act No. 15 of 2015, and the decisions

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 of this Court and those of the Supreme Court, an employer

can no longer invoke a termination clause without giving

reasons. That the Tolani1 case is a 2003 decision, long

before the enactment of Act No. 15 of 15, which made it

mandatory for the employer to give valid reasons for

termination of an employer's contract.

8. 11 That the Tolani 1 case is distinguishable from the matter

before this Court and its principles inapplicable, because, in

that case, the appellant had been accused of misconduct,

which resulted in the termination of his contract, while the

appellant in the matter before us was facing a no-fault

dismissal.

8.12 The gist of the submissions under ground seven were that

the learned Judge in the court below ought to have found

that there was evidence of mental torture, embarrassment

and anguish suffered by the appellant as a result of the

manner in which his contract was terminated. That looking

at the manner of termination of the contract at the hands of

the respondent and its abruptness, it warranted an award

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 of damages that are beyond the common law measure. To

augment, we were referred to the cases of Chansa v.

Barclays Bank Plc 17 , Standard Chartered Bank Pie v.

Celine Meena Nair 18 , Suhayl Dudhia v. Citi Bank Zambia

Limited19 and First Quantum Mining and Operations20

where 36 months salary as damages was awarded. That the

courts in those matters rationalized the award by stating

that as the global economies deteriorate, the chances of

finding employment even by graduates, is dimmer.

8.13 That in casu, the appellant had brought to the court's

attention the embarrassment suffered as per pages 61 7 to

625, record of appeal, Vol. 3, which showed that he had been

labelled as a western puppet, selfish, traitor, corrupt and so

on. That this was proof that he suffered mental torture.

8.14 Counsel went on to consider the factors that a court

considers when awarding damages beyond the common law

measure. That guidance was given in the Chilanga Cement

Pie v. Kasote Singogo 15 and Butler Asimbuyu Sitali11,

cases thus:-

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 " ... an award for torture or mental distress should
be granted in exceptional cases, and certainly not
in a case where more than the normal 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."
8.15 We were implored to allow the appeal in its entirety.

9. 0 Respondent's Arguments

9.1 There were no heads of argument by the respondent.

However, on 3 rd May, 2024, counsel for the respondent made

an application for leave to file heads of argument out of time.

As the appeal had already been cause listed, we opted to deal

with the application during the hearing of the appeal and

render our Ruling there and then.

9 .2 Mr. Mbilima, counsel for the respondent, spoke to the

application. Needless to say, the application was opposed by

Mr. Mubanga, SC, counsel for the appellant. He argued that

the respondent was served on 19 th August, 2022 , a period of

one year nine months. That there was inordinate delay.

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 9.3 In our Ruling, and after considering the application to file out

of time, and hearing counsel for each party, we took the view

that the delay in making the application was inordinate.

Secondly that the reasons advanced for the delay were

insufficient. For the aforestated reasons, we declined to grant

the application, stating that we would proceed to hear the

main appeal. That there being no heads of argument from the

respondent, the respondent would not take any further part in

the proceedings.

10 Hearing

10.1 In arguing the appeal, Mr. Mubanga SC relied on the Heads

of argument filed into court on 18th August, 2022 with brief

oral augmentation which we note is but a repeat of the written

Heads of argument, therefore we shall not reproduce them

here.

11 .0 Analysis and Decision

11.1 In our view, the major issue for resolution is whether the reason

proffered by the respondent to terminate the appellant's contract of

employment was in tandem with the law as found by the lower

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 court, namely that the termination was for operational purposes.

Further, whether the Appellant is entitled to an award of damages

beyond the common law measure. The answers to the above in our

view will resolve all grounds. Thus we shall consider all grounds

together, except ground 7 which we shall consider separately.

11.2 It is trite that an appellate court will not upset findings of fact by a

trial court; unless the same were perverse or made in the absence

of any relevant evidence, or on a proper view of the evidence, no trial

court, acting correctly could reasonably make. The case of

Attorney General v. Achiume2 is pertinent, and we are properly

guided.

11.3 The appeal revolves around the termination of a contract of

employment. It discusses the issue of the requirement to give a

reason for termination of a contract of employment, and whether

the reason is just any reason or it should be one that is valid and

justifiable.

11.4 The Appellant argues that the reason given by the respondent for

terminating his employment was not valid nor was it justifiable. He

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 pointed to other factors and events that took place prior to this

termination as the real reason for the termination.

11.5 In the lower court, the Respondent was of the view that the law

required them to proffer a reason, and that this they did, as appear

at paragraph 2.3 herein, which we reproduce here thus:

" ... as you are aware, the company has recently adopted
a new strategic plan for the period 2018 - 2023. The
company has decided to terminate your services to pave
way for the appointment of a new Chief Executive to
run with the new strategic plan."
11.6 The Respondent, in the answer to the Complaint, justified the above

reason as falling under operational requirements of the entity and

in consonant with Section 36(3) of the Employment (Amendment)

Act No. 15.

11.5 To answer the question whether the respondent had met the

requirements of the Act, the learned Judge sought solace in the

Google search engine for the meaning of "operational requirements",

and the results are as at page J15 of the Judgment, which is on

page 25 of the record of appeal. The learned Judge stated thus:

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 "I accept this as the very basic meaning of operational

requirements. And if this is so, then a strategic plan is an

operational document, without even defining it here ... "

11.6 The learned Judge went on to state that that being the case, the

reason given by the respondent for the termination is therefore an

operational one, hence valid and in compliance with the

requirement of Section 36(3) of the Employment Act (as amended).

11. 7 We wish to begin by stating that the issue before the learned Judge

was not whether or not the strategic plan was an operational

document, but rather whether the reason proffered for the

termination was based on operational requirements. Further,

whether the reason was valid and was substantiated by the

employer.

11.8 It is trite that there are several ways of legally terminating a contract

of employment. At the time this matter arose , what was prescribed

was Section 36, Employment Act (Amendment) Act No. 15 of 2015.

What is evident is that the law proscribes termination of

employment on impermissible reasons , while disguising them as

legitimate. The case of Zambia Privatisation Agency v. James

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 Matale 21 guided on the power of a court to delve into the reason

given for a dismissal so as to remedy any injustice caused to an

employee where evidence emerges showing an ulterior motive

leading to the termination. It was guided that a court can go behind

the motive to find out the real reason for the dismissal.

11.9 Section S(a) and (b)(3) of the Employment (Amendment) Act, 2015

guides that: -

"Section thirty six of the Principal Act is amended by the

insertion -

(a) In paragraph (c ) of subsection (i) immediately after the

words "otherwise" of the words

"except where the termination is at the initiative of the

employer, the employer shall give reasons to the

employee for the termination of that employee's

employment."

(b) The contract of service of an employee shall not be

terminated unless there is a valid reason for the

termination connected with the capacity or conduct of

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 the employee or based on the operational requirements

of the undertaking."

11.20 Chanda Chungu and Ernest Beele, authors of Labour Law in

Zambia: An Introduction, 2 nd Edition, state at page 103 thereof,

that:-

"Therefore for the dismissal to be fair, an employer

must give a valid reason, prior to the dismissal. For the

reason to be valid, it must be related to the conduct or

capacity of the employee or operational requirement of

the employer."

11.21 The authors submit that this provision, requiring that a valid

reason must be given before dismissal, means that the

Employment Act is giving effect to Article 9(2) of the International

Labour Organisation Convention No. 158 which enjoins an

employer to prove the existence of a valid reason for the

termination. Suffice to say that the ILO Convention was

domesticated in this jurisdiction, and it is thus applicable.

11.22 In the case of Sara Aliza Vekhnik v. Casa Dei Bambini

Montessori Zambia 7, this Court h eld that:-

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 "What is of critical importance to note however is that

the reason or reasons given must be substantiated ... in

other words, we must be satisfied that there were no

malafides on the part of the employer."

11 .23 In the case of Mupila v. Yu Wei4 a persuasive High Court

matter, the learned Judge made a distinction between

termination for operational requirements and redundancy

when she held that:-

"The distinction between termination for

operational requirements and redundancy is that

termination for operational requirements is based

on a bona fide commercial reason, such as

inability to financially sustain an employee or due

. ... " (underline for

to a restructuring exercise

emphasis only)

11.24 We have found no evidence of any of the above. Section 213

of the South African Labour Relations Act, 66 of 1995, and

brought to our attention by counsel for the Appellant is

equally persuasive, where it defines what operational

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 requirements means, where it states that it means

"... requirements based on the economic, technological,

structural or similar needs of an employer"

11.26 When viewed against the cited authorities, it is clear that the

learned trial Judge in the lower court was way off the mark as

regards the issue of operational requirements. His acceptance of

a simple basic google search does not align with the meaning as

set out in the cited cases and authorities.

11.27 We find, contrary to what the learned Judge found, that the

reasons proffered by the respondent for terminating the

appellant's contract were neither valid nor justified.

11.28 The respondent did not lay any evidence before court to justify

and substantiate the termination based on operational

requirements. We agree with the Appellant that it could never

have been the intention of the legislature to have a situation

where an employer can terminate its employees contract, using

any concocted reasons without any justification whatsoever, as

that would result in abuse, and defeat the whole purpose of the

J36
 Act, which 1s to protect the employee, or provide him with

security.

11.29 There was no evidence led, or on record, to show that a new

strategic plan had been formulated for the period in issue or why

it was felt that the appellant could not run with the 2018 - 2023

Strategic Plan which he himself had crafted. Infact the evidence

on record is to the contrary, about his abilities.

11.30 At page 498 of the record of appeal, volume 3, the Chairman of

the Board, the same one who signed the termination letter, wrote

a Forward to the only strategic plan on record. He heaped praise

on the appellant and his management team. An excerpt of the

said Forward reads:-

"... I wish to offer my earnest recommendations and

deepest appreciation to the management of ZCCM - IH
PLC for having worked diligently, tussled with language
and fashioned a vision, mission statement and plan of
action that will thrust us forward with great energy for
the period of this strategic plan. I strongly believe that
together we can make it and look forward to very
productive years ahead ... "

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11.31 Considering the above, it is not farfetched for us to conclude, as

we do, that operational requirements had nothing to do with the

termination.

11.32 In any case, we have found that the reason given for the

termination was not valid nor was it justifiable. The respondent

did not lead any evidence to substantiate that the termination

was for a valid commercial reason such as inability to financially

sustain the appellant or due to a restructuring exercise.

11 .33 Further, we note the lack of evidence showing that they engaged

the appellant and that he failed to operationalize the strategic

plan, which he himself crafted, hence the need for another Chief

Executive Officer to operationalize it. We hold that the

termination was not in conformity with the law as provided in

Section 36 of the Employment Act (as amended) which provides

that:

"A dismissal, which is not automatically unfair is unfair

if the employer fails to prove
(a) That the reason for dismissal is a fair reason
(i) Related to the employee's conduct or
capacity, or
(ii) Based on the employers operational
requirements; and

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 (b) That the dismissal was effected in accordance with
a fair procedure"

11.34 We are of the view that the respondent failed to substantiate the

reason for terminating the appellant's contract of employment,

and was thus in clear breach of the above stated statute.

Consequently, we find that the learned Judge 's reliance in the

lower court, on go ogle search for the meaning of operational

requirements was flawed , as there was infact no basis upon

which he made his finding . It is our view, that this is a matter

in which we can upset the findings of fact by the learned Judge.

11.35 As regards the issue that the respondent was at liberty to use

the Notice Clause in the contract, we revert to the argument

that, even in that case, an employer is required to give reasons

for invoking that clause. It is now mandatory for the employer

to proffer a valid and substantiated reason for termination of

employment. The Notice Clause is no longer an escape clause.

11.36 Furthermore, and as stated by the appellant, the appellant was

facing a no-fault dismissal in the sense that he had not been

charged with any offence. The employer just wrote to him that

they wanted a new Chief Executive Officer to run with the new
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 J •

strategic plan, without telling him in what way he had failed to

operationalize the same strategic plan.

11.37 Having found thus, we are of the view that grounds 1 - 6 have

merit, and are upheld.

11.38 Under ground seven, the appellant faults the Judge in the

lower court for not awarding the appellant damages for mental

torture, embarrassment and anguish suffered as a result of the

manner in which his contract was terminated. That the

manner of termination warrants an award of damages beyond

the common law measure

11.39 In his judgment, at page 26 of the record of appeal, the learned

Judge stated thus:-

"That said, the separation on the impugned notice of

termination is without fault, and there is thus no
wrongful or unlawful termination.
There will be no damages awarded where the suit fails
as this one does."
11.40 It is evident, and as shown in a plethora of cases, some of

which were cited by the appellant herein, that the normal

measure of damages is an employees' notice period in the

contract of employment or as provided by the law.

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11.41 Section 85A (a) and (d) of the Industrial and Labour

Relations Act, provides for awards and provides inter alia

that:-

"where the court finds that the Complaint or

application presented to it is justified and
reasonable, the court shall grant such remedy as it
considers just and equitable and may:-
(a) award the complainant or applicant damages
or compensation for loss of employment;
(d) make any other order or award as the court
may consider fit in the circumstances of the
case."
11.42 In awarding such damages, the court is guided by the need

to do substantial justice. The case of Bupe and Another v.

Zambia National Commercial Bank22 provides guidance;

where it was emphasized that the granting of remedies is

done with due regard to the need to do substantial justice.

It is thus patent that when awarding damages, the court

should award such damages or compensation as it

considers fit in the circumstances of each case, while

keeping in mind the need to do substantial justice.

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.
I ),
-·
•

11.43 Further, in deserving cases, courts have departed from

awarding the normal measure of damages of the notice

period. In Swarp Spinning Mills PLc v. Chileshe and

Others23 , the Supreme Court held that:-

"The normal measure is departed from where the

termination may have been inflicted in a traumatic

fashion which causes undue distress or mental

suffering."

11.44 Furthermore, in a plethora of cases, our courts have

awarded damages beyond the common law measure. This

has been done in cases where there has been mental

distress, mental torture and inconvenience. In the case of

Chilanga Cement v. Kasote Singogo 15 the Supreme Court

awarded the complainant 24 months salary as damages for

a malicious redundancy, and guided that enhanced

damages are awarded to compensate for inconvenience and

distress caused, and to also condemn the employer for the

malicious and improper manner an employer effects

dismissal. The case of Zambia State Insurance

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( '.

Corporation and Attorney General v. Singogo 24 provides

further insight.

11.45 These damages will be available only where it is shown that

distress or inconvenience was a direct consequence of the

dismissal. Consequently, the burden is on the employee to

show that the distress or inconvenience was a result of the

dismissal. The employee has to show that the distress or

inconvenience is a result of the act or omission on the part

of the employer. That that act, occasioned suffering, and

which suffering goes beyond the normal circumstances of

the wrongful breach.

11.46 In the case of Barclays Bank Zambia Pie v. Weston Luwi

and Suzyo Ngulube 25 , the Supreme Court guided on when

courts can enhance compensatory or exemplary damages,

stating that this is dependent on the manner of separation

and conduct of the employer, especially if the dismissal or

termination was inflicted in a traumatic manner. It was

held that:-

"... at this stage, we take the liberty to correct Mr.

Lukangaba's assertion that mental anguish is the only

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 exception. What we said in that case (Swarp Spinning
case) is that the normal measure of damages is
departed from where the circumstances and the
justice of the case so demands. Therefore termination
inflicted in a traumatic fashion, causing undue
distress or mental suffering is but one example. Loss
of employment opportunity is another ... enhanced
damages are meant to encompass the inconvenience
and any distress suffered by the employee as a result
of the loss of employment ... we held that the trial
court was entitled, based on the evidence before it, to
award damages to cover distress and inconvenience.
An award of 24 months salary as damages does not
come to us with a sense of shock, as being excessive
to warrant it being set aside."
11.47 Furth er , in the case of Dennis Chansa v. Barclays Bank

Zambia Plc 17 , th e loss of future employment opportunities

was taken into consideration. The Suprem e Court

considered cases where damages were progr essively

enhanced . They stated that:-

" ...The rationale is as the global economies

deteriorate, the chances of finding employment
even by graduates are dimmer. There should be
progressive upward measure in damages as it is

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 bound to take longer to find a job in the current
domestic and global economic environment."
11.48 We agree with the appellant that his employment

termination was done in a traumatic manner. Further,

that the same caused him undue distress and mental

suffering. The learned Judge ought to have carefully

considered the evidence proffered by the appellant in that

regard. It was not enough in the circumstances of the case

and in view of the evidence adduced by the appellant, to

find as he did.

11.49 We have had sight of social media publications appearing

from pages 613 to 633, record of appeal where the

Appellant, a Chief Executive Officer, was mercilessly trolled

by social media users. A few examples will suffice, just to

illustrate how social media reacted to his being fired.

11.50 Page 61 7 - Dr. Chonya

"Well done, lets uproot all white puppets
Cozcow Jr: This Kasolo guy was almost becoming
another Mujajati, he behaves like he lives in a first world
country.
Page 618 - Thorn in the flesh "can minds like
Kasolo ever run mines again. He is behaving like a
corrupt union leader who eats with corrupt

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4 •

management at the expense of the workers he

represents"
Page 619 - Nubian Princess
"Kasolo was the wrong person to hire in the first place,
a man with two sets of families is a mess, period"
Page 624 - Mr. P
"I hate people who always favour white supremacy like
Kasolo. Good that is fired. No need to keep corrupt
men like him"
Page 625 - Hoho
"Kasolo, along with his chief investment officer has
been cutting a lot of deals by investing in questionable
private sector ventures. President Lungu shall set up
a task force to ween out corrupt Kasolo."

11.51 Any of the cited examples are sufficient in our view to cause

a person trauma. We are of the view that the Appellant

discharged the burden of proof, showing how traumatic his

dismissal was to him. His dismissal therefore warrants an

award of damages that are beyond the common law

measure.

11.52 We find merit in ground seven.

12.0 Conclusion

12.1 We find merit in the appeal and it succeeds on all grounds.

The decision of the learned Judge in the lower court is set

aside. We award the appellant six months' salary as

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·. ,•-.. , ,.

damages for wrongful dismissal. The same shall attract

interest, which interest is to be calculated according to the

Judgment Act.

21.2 This being an industrial and labour relations case, each

party shall bear their own costs.

M. M. Kondolo, SC
Court Of Appeal Judge

. Majula
.......... ~-?-:.............. .
A. M. Banda-Bobo
Court Of Appeal Judge Court Of Appeal Judge

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