IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA

(Civil Jurisdic on) APPEAL No. 232/2019

BETWEEN:
ALISTAIR LOGISTICS (Z) LIMITED: APPELLANT
AND
DEAN MWACHILENGA: RESPONDENT
Coram: Chashi, Lengalenga, and Majula, JJA On 11th and 20th November, 2020
For the Appellant: Mr. M. Nyirenda of Kafunda & Company
For the Respondent: Mr. J. Mataliro of James & Doris Legal Prac oners
JUDGMENT
MAJULA JA, delivered the Judgment of the Court.

Cases referred to
1. Nkhata and Others vs A orney General (1966) Z.R. 124
2. Care Interna onal Zambia Limited vs Misheck Tembo SJ No 56 of 2018
3. Agholar vs Cheeseborough Pond's Zambia Limited (1976) ZR 1
4. Caroline Tomaidah Daka vs Zambia Na onal Commercial Bank Limited
PLC (2012) ZR 8.
5. Yumba and 22 Others vs Luanshya Municipal Council (SCZ Appeal
005/2015).
6. Kanga vs Zambia Revenue Authority (SCZ Appeal No. 194/2015)
7. Redrilza vs Nkazi (2011) Vol. 1 ZR 394
8. Sarah Aliza Vekhnik vs Casa Dei Bambini Montessori Zambia Ltd (CAZ
Appeal No. 129/2017)
9. A orney General vs Fred Chileshe Ngoma (198 7) ZR 80.
10. Leopold Walford (Z) Ltd vs Unifreight (1985) ZR 203
11. Zambia Copper Mines Limited vs James Matale (SCZ Judgment No.9 of
1996)
12. Isaac Nyirenda vs Kapiri Glass Products Limited (1985) ZR 167
13. Masauso Zulu vs Avondale Housing Project Limited (1982) ZR 172
14. Chilanga Cement Plc vs Kasote Singogo (SCZ Judgment No. 13 of 2009) 15. Dennis Chansa
vs Barclays Bank (SCZ Appeal No. 111/2011)
16. Butler Asimbuyu Sitali vs Energy Regula on Board (CAZ Appeal No. 12 of
2017)
17. Kawimbe vs The A orney-General (1974) Z.R. 244
18. Engen Petroleum Zambia Limited vs Willis Muhanga & Another (SCZ
Appeal
No. 11712016)
19. Zambia Na onal Commercial Bank Plc vs. Joseph Kangwa (SCZ Appeal 54/2 008)

Legisla on and Other authori es referred to:

1. Employment Act, Chapter 268 as amended by Act No. 15 of 2015
2. Employment Code, Act No 3 of 2019
3. Gwyneth Pi , Employment Law, Seventh Edi on, (London,
Thomson Reuters (legal) Limited, 2009
 1.0 Introduc on
This appeal emanates from a judgment of the Hon. Mr. Jus ce D, Mumba of the Industrial
Rela ons Division of the High Court. Following a complaint that was lodged and trial of the
ma er, the court found that the respondent was wrongfully, unlawfully, and unfairly
terminated from employment.

1. Background (Sec ons 2.0 - 2.4):

The background sec on provides crucial context for the case. It outlines the employment
history of the respondent as a Civil Engineer with the appellant, emphasizing the
proba onary period and subsequent events.

- Proba onary Employment (Sec on 2.1): The appellant hired the respondent as a Civil
Engineer on proba on for three months, according to the employment contract's Clause 2.
Proba onary periods are common in employment contracts to assess an employee's
suitability for a role.

- Extension of Employment (Sec on 2.2): The respondent con nued working beyond the
proba on period without receiving any feedback regarding the proba on's outcome. This
raises ques ons about the appellant's handling of the proba onary period and its
implica ons for the employment contract.

- Assignment and Absence (Sec on 2.3): The respondent was assigned to work in Tanzania
and temporarily returned home during this assignment. Upon returning to the workplace,
the appellant informed the respondent of his termina on. This sequence of events raises
concerns about the ming and reasons behind the termina on.

- Complaint (Sec on 2.4): Following the termina on, the respondent filed a complaint,
alleging unjust, unlawful, and wrongful termina on. This sets the stage for the legal dispute.

2. Findings of Fact in the Court Below (Sec ons 3.0 - 3.4):

This sec on discusses the trial court's findings regarding two main issues: successful
comple on of proba on and the reasons for termina on.

- First Issue: Successful Comple on of Proba on (Sec on 3.2): The trial court found that
the respondent had successfully completed his proba on, mainly because the appellant did
not communicate any shortcomings during the proba onary period. This interpreta on of
the employment contract's proba on clause is crucial to the case's outcome.

- Second Issue: Reasons for Termina on (Sec on 3.3): The trial court ruled that the
appellant's failure to provide a valid reason for termina on violated employment laws. This
analysis revolves around sec on 36 of the Employment Act, Cap 268, which requires
employers to provide reasons for termina on.

- Unfair Termina on (Sec on 3.4): The lower court concluded that the termina on was
unfair due to the appellant's failure to charge the respondent or provide an opportunity to
be heard. The court then awarded damages to the respondent based on the perceived
unfairness of the termina on.
 3. Grounds of Appeal (Sec on 4.0):
The appellant's dissa sfac on with the lower court's judgment is evident in the grounds of
appeal presented. Each ground addresses a specific issue with the lower court's decision:

- Ground 1: The appellant disputes the lower court's finding that the respondent
successfully completed his proba on, arguing that the evidence presented does not support
this conclusion.

- Ground 2: The appellant challenges the lower court's declara on of wrongful and
unlawful termina on, contending that no injus ce was done given the respondent's alleged
misconduct.

- Ground 3: The appellant ques ons the lower court's characteriza on of the termina on
as unfair, arguing that the respondent's ac ons warranted summary dismissal.

- Ground 4: The appellant objects to the excessive damages awarded, arguing that they do
not align with the case's facts and the evidence presented.

4. Appellant's Arguments (Sec on 5.0):

The appellant's wri en arguments suppor ng the appeal are briefly outlined, highligh ng
the discrepancies between the lower court's findings and the evidence on record. The
appellant relies on legal precedents, such as the Nkhata case, to support its conten on that
the lower court's findings should be overturned.

5.2 Appellant's Arguments:

- Planned Proba on Review (Sec on 5.2): The appellant argues that a planned proba on
review for the respondent was in progress, awai ng the return of the respondent's
supervisor, Marko Krujuatuz. They contend that the trial judge failed to consider this aspect
and the evidence of a telephone conversa on and email chat related to the proba on
review. The appellant also asserts that deferring the proba on assessment was within its
discre on as provided in the employment contract's Clause 2. This argument addresses
whether the respondent had successfully completed his proba on and whether the
termina on was premature.

- Ground Two - No Injus ce (Sec on 5.3): The appellant disputes the lower court's failure
to consider the principle of law that when an employee commits an offense warran ng
dismissal, no injus ce occurs if the contract is terminated. They cite the case of Care
Interna onal Zambia Limited vs. Misheck Tembo as authority. This argument focuses on the
nature of the alleged offenses and their implica ons for the termina on.

- Ground Three - Summary Dismissal (Sec on 5.7): The appellant contends that the trial
judge misunderstood the nature of the termina on as it was a summary dismissal. They
reference the case of Agholar vs. Cheeseborough Pond's Zambia Limited to support the
argument that an employee terminated summarily forfeits the right to no ce and hearing on
the grounds for dismissal. This is a cri cal argument for determining whether the
respondent was en tled to a hearing before termina on.

- Ground Four - Excessive Damages (Sec on 5.9): The appellant argues that the awarded
damages (36 months of salary plus housing allowance) were excessive. They cite the case of
Caroline Tomaidah Daka vs. Zambia Na onal Commercial Bank Limited PLC to support their
claim that damages should aim to place the innocent party in the posi on they would have
been if the contract had been performed.

- Unpleaded Issue (Sec on 5.10): The appellant argues that the lower court erroneously
considered the respondent's 12-month unemployment period, as it was neither pleaded nor
substan ated with evidence during the trial.

6. Respondent's Arguments:

- Failure to File List of Authori es (Sec on 6.1): The respondent argues that the appeal is
frivolous and vexa ous because the appellant failed to file a list of authori es as required by
court rules. This argument addresses a procedural ma er.

- Ground One - Appeal Based on Facts (Sec on 6.2): The respondent asserts that Ground
One lacks merit because it is based on findings of fact, and appeals based solely on facts are
prohibited by sec on 97 of the Industrial and Labour Rela ons Act. They cite the case of
Kanga vs. Zambia Revenue Authority to support this conten on.

- Grounds Two and Three - Termina on vs. Dismissal (Sec on 6.3): The respondent argues
that the appellant misunderstood the dis nc on between termina on and dismissal. They
cite the case of Redrilza vs. Nkazi to highlight this difference. This argument challenges the
characteriza on of the respondent's termina on and its implica ons for the appeal.

Overall, these arguments address the core issues raised in the appeal, including the nature
of the respondent's termina on, the alleged offenses, and the appropriateness of the
damages awarded.

Analysis of the Court's Considera on and Decision (Sec on 9.0):

9.1 Review of the Case:

The court begins by emphasizing its thorough examina on of the case, including the record,
submissions from both par es, and relevant legal authori es. This highlights the court's
commitment to a fair and comprehensive review of the case.

9.2 Appellant's Arguments (Sec on 7.0):

The court revisits the key arguments presented by the appellant in its appeal. These
arguments include the challenges to the trial judge's findings regarding proba on, the
nature of the termina on, and the award of damages.

- Proba onary Period and Confirma on (Sec on 7.2): The appellant argues that the
proba onary period was extended for another three months, which should have allowed the
termina on without no ce or compensa on. This argument hinges on the interpreta on of
the employment contract's proba on clause.

- Nature of Termina on (Sec on 7.4): The appellant contends that the termina on was
not subject to providing reasons beyond sta ng that proba on was unsuccessful, given the
proba onary nature of the employment.

- Excessive Damages (Sec on 7.5): The appellant reiterates its objec on to the excessive
damages awarded to the respondent, emphasizing that the award should be based on the
specific circumstances of the case.

9.3 Respondent's Arguments (Sec on 6.0):

The court also reviews the key points presented by the respondent in its arguments,
including the dis nc on between termina on and dismissal, the requirement to provide
valid reasons for termina on, and the defense of the damages award.

- Failure to Provide Reasons (Sec on 6.5): The respondent asserts that the appellant was
obligated to provide valid reasons for termina on in accordance with sec on 36 of the
Employment Act, ci ng the case of Sarah Aliza Vekhnik vs. Casa Dei Bambini Montessori
Zambia Ltd.

- Dis nc on Between Termina on and Dismissal (Sec on 6.3): The respondent argues that
the appellant misunderstood the difference between termina on and dismissal,
emphasizing that this case involves termina on, not dismissal.

- Damages Award (Sec on 6.6): The respondent defends the damages award, arguing that
it was made considering the abrupt termina on and the scarcity of job opportuni es.

9.4 Court's Decision:

The court's decision is the culmina on of its analysis of the case's merits and the arguments
presented by both par es. This sec on provides a verdict on each of the appellant's grounds
of appeal.

- Ground One - Proba on (Sec on 7.2): The court evaluates the appellant's argument
regarding the extension of the proba onary period. It concludes that there was no evidence
to support the finding of fact regarding the extension of proba on. Therefore, this finding is
treated as a ques on of law and can be set aside, referencing the case of Zambia
Consolidated Copper Mines Limited vs. James Matale.

- Ground Three - Nature of Termina on (Sec on 7.4): The court accepts the appellant's
argument that the termina on was subject to the terms of the proba onary employment
contract, which did not require providing reasons beyond sta ng that proba on was
unsuccessful.

- Ground Four - Excessive Damages (Sec on 7.5): The court acknowledges the appellant's
concern about the excessive damages awarded. However, it emphasizes that the award was
made based on the specific circumstances of the case, adhering to the principle that
damages aim to place the innocent party in the posi on they would have been if the
contract had been performed.

9.5 Respondent's Arguments (Sec on 6.0):

The court briefly considers the respondent's arguments, including the requirement to
provide valid reasons for termina on and the defense of the damages award. While these
arguments are men oned, the court does not explicitly address them in the decision.

9.6 Conclusion (Sec on 9.7):

The court concludes its analysis and decision, poten ally announcing whether the appeal is
allowed or dismissed and providing any addi onal instruc ons or orders.

In this analysis, the court appears to favor the appellant's arguments regarding the
proba onary period, the nature of the termina on, and the excessive damages award.

9.2 Court's Acknowledgment of Grounds of Appeal (Sec on 9.2):

The court begins by acknowledging the less-than-ideal dra ing of the grounds of appeal but
asserts that this breach is not fatal to the appeal, ci ng the case of Leopold Wa ord vs.
Unifreight.

9.3-9.6 Substan ve Issues (Sec ons 9.3 - 9.6):

The court iden fies two key issues arising from the case:

- Issue 1 - Employment Status (Sec ons 10.1 - 10.2): The court delves into the first bone of
conten on regarding whether the respondent was confirmed in his employment or not.

- Issue 2 - Damages Award (Sec on 9.4): The second issue concerns the award of damages
given to the respondent due to the alleged wrongful and unlawful termina on.

10.0 Employment Status (Sec ons 10.1 - 10.2):

- Proba onary Clause (Sec on 10.3): The court examines the employment contract's
proba onary clause, which specifies a three-month proba on period that may be extended.

- Evalua on of Proba on Period (Sec on 10.4): The court analyzes the respondent's
employment history, emphasizing that he con nued working for four months and three
weeks beyond the ini al three-month proba on period. The court cites the trial judge's
finding that the respondent had successfully completed his proba on because no
shortcomings had been brought to his a en on during the proba onary period.

- Dismissal vs. Extension (Sec ons 10.5 - 10.7): The court dismisses the appellant's
argument that the proba onary period was extended, sta ng that there was no no fica on
of such an extension and that the evidence did not support this claim.

- Findings of Fact (Sec on 10.8): The court references established legal principles, such as
the condi ons under which an appellate court can reverse findings of fact, emphasizing that
the trial judge properly evaluated the evidence before making their findings.
- Comparison to Nyirenda vs. Kapiri Glass Case (Sec ons 10.9 - 10.11): The court
dis nguishes the present case from Nyirenda vs. Kapiri Glass, ci ng the relevant contract
clauses and arguing that the appellant's interpreta on of the proba onary clause ignores
the clause's clear meaning.

The court's analysis focuses on the interpreta on of the employment contract's

proba onary clause, the respondent's employment history, and the trial judge's findings of
fact. It concludes that the trial judge correctly evaluated the evidence and made appropriate
findings regarding the respondent's employment status.

10.12 Interpreta on of Proba on Clause (Sec ons 10.12 - 10.14):

- The court dis nguishes the present case from the Nyirenda vs. Kapiri Glass case and
underscores the importance of the specific language used in the contract. It argues that the
appellant's reliance on the Nyirenda case is not applicable to the current situa on due to
differences in contract clauses.

10.15 Dismissal of Grounds 1 and 2 (Sec on 10.15):

- The court dismisses grounds 1 and 2, which pertain to the respondent's employment
status, asser ng that there is no merit in these grounds and they are accordingly dismissed.

11.0 Award of Damages (Sec ons 11.1 - 11.8):

- The court delves into the principles governing the award of damages for wrongful
termina on of employment. It men ons that common law remedies typically involve a
no ce period but acknowledges that in deserving cases, courts have awarded more
substan al damages.

11.2-11.4 Case Examples (Sec ons 11.2 - 11.4):

- The court cites several cases to illustrate the ra onale behind enhanced damages for
wrongful termina on. These cases emphasize factors such as the harsh or inhumane
treatment of employees, the circumstances of termina on, and the impact on future job
prospects as considera ons in determining damages.

11.5-11.6 Progressive Damages (Sec ons 11.5 - 11.6):

- The court discusses the ra onale for progressive upward increases in damages, par cularly
in the current global economic environment, where finding employment is increasingly
challenging.

11.7-11.8 Excep onal Circumstances (Sec ons 11.7 - 11.8):

- The court highlights cases where excep onal circumstances, such as public scru ny and
mental distress, jus fied going beyond the normal measure of damages. In such cases, the
court awards higher compensa on due to the unique nature of the employee's ordeal.

The court's analysis centers on the principles guiding the award of damages for wrongful
termina on and references relevant case law to support its stance. It underscores that
damages may vary based on the specific circumstances of each case, especially when
excep onal or inhumane treatment is involved.

Analysis of the Court's Decision (Sec ons 11.9 - 12.5):

11.9-11.15 Discussion of Damages Award (Sec ons 11.9 - 11.15):

- The court recognizes the appellant's concern that the damages award is excessive while
also acknowledging the respondent's argument that damages should be based on the
specific circumstances of each case rather than solely on the contract's dura on. The court
cites various cases that support the principle that damages should consider the unique
circumstances surrounding wrongful termina on.

11.16-11.18 Interference with Damages Award (Sec ons 11.16 - 11.18):

- The court discusses the principles governing damages awards, emphasizing that damages
aim to compensate the innocent party as if the contract had been performed. It highlights
that contracts of employment are terminable by no ce, and damages are awarded to
compensate for the breach.

- The court expresses its concern that the awarded 36 months' pay is excessively high and
states that it "greet[s] us with a sense of shock." It cites precedent cases where interference
with damages awards was jus fied and explains its decision to set aside the 36 months' pay
award and replace it with a three-month pay award, including housing allowance and
interest from the date of the judgment in the lower court.

12.0 Costs (Sec ons 12.1 - 12.5):

- The court addresses the issue of costs, referencing relevant cases and guidelines. It points
out that in industrial and labor rela ons ma ers, each party typically bears its own costs
unless one party is found guilty of misconduct in the proceedings. The court concludes that
there is no basis to award costs to either party in this case.

12.5 Final Decision (Sec on 12.5):

- The court's final decision is that each party shall bear its own costs, both in the court below
and in the appeal. This means that neither the appellant nor the respondent will be awarded
costs for these proceedings.
The court's decision in this sec on focuses on the damages award, costs, and the principles
governing such ma ers in industrial and labor rela ons cases. It ul mately sets aside the
ini al damages award, reduces it, and declines to award costs to either party.