EMPLOYMENT LAW

In Zambia, the legal framework for employment is primarily governed by the Employment
Code Act No. 3 of 2019 (ECA) and the Industrial and Labour Relations Act, Chapter 269
of the Laws of Zambia. These statutes provide the legal basis for termination and dismissal,
prohibit workplace discrimination, and regulate social security.

Termination and Dismissal

Zambian law distinguishes between different types of employment termination and provides
specific procedures for each.

 Valid Reasons for Termination: An employer cannot simply terminate an

employee's contract without a valid reason. The ECA specifies that a termination must
be based on a reason connected with the employee's capacity or conduct, or the
operational requirements of the employer's undertaking.
o Capacity or Conduct: This includes issues such as poor performance,
misconduct (e.g., insubordination, theft), or health-related incapacitation.
o Operational Requirements: This refers to redundancy, where the employee's
position is no longer needed due to restructuring, downsizing, or economic
downturn.
 Notice Period and Severance Pay:
o Notice: The law mandates minimum notice periods for termination, which
vary depending on the duration of the contract and the employee's pay cycle.
For a monthly-paid employee, a minimum of one month's notice is required.
Notice must be in writing for contracts exceeding six months.
o Severance Pay: The ECA introduced specific provisions for severance pay.
An employee on a fixed-duration contract is entitled to a gratuity of at least
25% of their basic pay earned during the contract period. In cases of
redundancy, an employee is entitled to a severance payment of two months'
basic pay for each completed year of service.
 Summary Dismissal: An employer may summarily dismiss an employee without
notice for serious misconduct. However, even in such cases, the employer must
submit a written report to a labour officer within four days of the dismissal, detailing
the reasons for the action.
 Unfair Dismissal: An employee can challenge a termination as "unfair dismissal" if
they believe it was not based on a valid reason or if the proper procedure was not
followed.
o Procedural Fairness: The law and case precedents emphasize the principle of
natural justice. This means an employee must be given a fair opportunity to be
heard and respond to allegations before a decision to terminate is made. This
often involves a disciplinary hearing.
o Case Law: The case of Bikson Jishika v. Barrick Lumwana Mining
Company Ltd highlights the importance of procedural fairness. The court
found that the disciplinary procedure was not adhered to, and that a decision to
summarily dismiss the employee was reached before the hearing was
concluded.

Workplace Discrimination
Zambian law expressly prohibits discrimination in the workplace.

 Statutory Basis: The Employment Code Act (ECA) and the Industrial and
Labour Relations Act are the primary statutes that outlaw discrimination. Section 5
of the ECA specifically prohibits discrimination on grounds such as:
o Nationality
o Colour
o Religion
o Sex
o Marital status
o Political opinion or affiliation
o Tribal extraction
o Social status
 Remedies for Discrimination: An employee who has been discriminated against can
seek recourse through the Labour Office or the courts. Remedies may include
reinstatement, re-employment, or compensation for the loss of a job.
 Case Law: The case of Henry Million Mulenga v Refined Oils Products (1972)
Ltd is a notable example where the court addressed a claim of unfair and
discriminatory treatment based on social status. The court found that the employee
was unfairly treated and ordered his re-employment. This case underscores the
importance of employers treating all employees fairly and without discrimination.

Social Security

The social security system in Zambia is a complex landscape of various statutory and
occupational schemes. While it does not provide unemployment benefits in the same way as
many developed countries, it does offer protection in other areas that are relevant to
employment termination.

 National Pension Scheme Authority (NAPSA): This is a mandatory contributory

scheme for all employees in the formal sector. Contributions are made by both the
employer and the employee. When an employee's employment is terminated, they are
entitled to receive a portion of their NAPSA contributions as a lump-sum benefit or
can opt to continue contributing to receive a full pension upon retirement. This
provides a form of financial security upon job loss.
 Workers' Compensation Fund Control Board (WCFCB): This scheme provides
for compensation in the event of employment-related injuries or diseases. If an
employee is terminated due to a medical condition resulting from a workplace injury,
the WCFCB provides benefits.
 Pension Schemes: The legal framework for occupational pension schemes is
regulated by the Pensions and Insurance Authority (PIA). Employees who are part
of a private or public pension scheme are entitled to their accrued benefits upon
termination of employment, which may include a lump sum or a deferred pension.

While Zambia does not have a comprehensive unemployment insurance scheme, the social
security system, particularly NAPSA and other pension funds, provides a crucial financial
safety net for employees who lose their jobs.

Comparison and Contrast

a) Wrongful, Unfair, and Constructive Dismissal

Constructive
Feature Wrongful Dismissal Unfair Dismissal
Dismissal

A form of wrongful
A statutory claim
dismissal where
A breach of the that arises when
the employee
employment contract the dismissal is not
Nature resigns due to a
by the employer. It's based on a valid
fundamental
a contractual claim. reason or fair
breach of contract
procedure.
by the employer.

The Employment
Common law A common law
Code Act No. 3 of
principles of contract. concept derived
Legal 2019 (ECA) and
The remedy is from the principle
Basis the Industrial and
damages for breach of wrongful
Labour Relations
of contract. dismissal.
Act (ILRA).

The employer's
The employer fails to
The employer lacks conduct is so
adhere to the terms
a valid reason unreasonable that
of the contract, such
(e.g., related to the it forces the
as dismissing an
employee's employee to resign.
employee without the
conduct, capacity, Examples include a
Grounds required notice
or operational significant
period or not
requirements) for reduction in pay,
following a
termination, or fails harassment, or a
disciplinary
to follow a fair major change in job
procedure laid out in
procedure. duties without
the contract.
consent.

Remedy Damages for breach The court can Treated as a

of contract, typically order wrongful dismissal.
limited to the salary reinstatement, re- The employee can
and benefits the employment, or claim damages for
employee would compensation. The breach of contract.
have received during primary remedy
the notice period. under the ILRA is
The case of David reinstatement, but
Banda v Attorney compensation is
General (Appeal more common in
No. 233 of 2020) practice.
saw the Court of
Appeal depart from
this traditional
measure, awarding
42 months' salary as
damages, citing the
 Constructive
Feature Wrongful Dismissal Unfair Dismissal
Dismissal

unjust nature of the

dismissal and the
employee's inability
to find new
employment.

The employee
must prove that the
The employer must
employer's conduct
prove that the
The employee must was so
dismissal was for a
Burden prove that the fundamentally in
valid reason and
of Proof employer breached a breach of the
that a fair
term of their contract. contract that it left
procedure was
them with no
followed.
choice but to
resign.
<br>

b) Collective Bargaining, Collective Agreements, and Recognition Agreements

Collective Collective Recognition

Feature
Bargaining Agreements Agreements

The initial
The process of agreement
negotiation between an
between a trade The outcome or the employer and a
union and an written contract that trade union, where
employer to results from collective the employer
Nature
determine terms bargaining. It contains formally recognizes
and conditions of the agreed-upon the union as the
employment. It's terms. sole bargaining
the act of reaching agent for a
a deal. category of
employees.

Legal Governed by the The ILRA regulates The ILRA

Basis Industrial and the content and mandates
Labour Relations validity of collective employers to enter
Act (ILRA), which agreements. Once into a Recognition
provides the approved by the Agreement with a
framework for Minister of Labour, it union within three
these negotiations. is legally binding. The months of the
case of Contract union obtaining a
Haulage Limited v certificate of
Mumbuwa registration.
 Collective Collective Recognition
Feature
Bargaining Agreements Agreements

Kamayoyo (1982)
Z.R. 13 (S.C.) affirmed
that a collective
agreement is a legally
binding contract.

To establish a
To provide a
formal, working
mechanism for
To formalize the terms relationship
employees,
and conditions of between the
through their
employment for a employer and the
union, to negotiate
group of employees, union. It is the
better terms and
Purpose creating a legally prerequisite for
conditions than
enforceable contract commencing
what is provided
that governs aspects collective
for in individual
like wages, hours, and bargaining. It sets
contracts or
benefits. out the framework
statutory
for future
instruments.
negotiations.

Contains statutory
Defines the
clauses, including the
bargaining unit
effective date,
Not a document (the category of
duration, and
itself, but a employees the
procedures for review
Key process involving union represents)
and amendment. It
Content offers, counter- and establishes the
also covers
offers, and procedures for
substantive matters
concessions. resolving disputes
like wages, leave, and
and conducting
disciplinary
future negotiations.
procedures.

Court of Appeal's Recent Approach to Summary Dismissal

The enactment of the Employment Code Act No. 3 of 2019 (ECA) has had a
profound impact on the Court of Appeal's approach to summary dismissal in Zambia.
Before the ECA, the common law principle of master and servant allowed employers
to summarily dismiss an employee for gross misconduct without affording them a
hearing, as long as the reason for the dismissal was valid.
However, the Court of Appeal has now firmly established that procedural fairness
is mandatory even in cases of summary dismissal. The court's decisions, such as in
Emporium Fresh Foods Limited t/a Food Lovers Market and Gourment Market
Limited v. Kapya Chisanga (CAZ Appeal No. 44/2021), interpret Section 52(3) of
the ECA to mean that an employer cannot summarily dismiss an employee without
first giving them an opportunity to be heard. . This is a significant shift that overrules
previous decisions. The court has held that the employee must be formally informed
of the alleged wrongdoing and given a chance to present their side of the story.
Failure to follow this "due process" renders the dismissal wrongful, regardless of the
seriousness of the offence. This approach ensures that employees are protected
from arbitrary dismissals and that the principles of natural justice are upheld.

Importance of Social Security in Employment Law

Social security is a crucial pillar of employment law as it provides a safety net for
employees against various life contingencies, thereby promoting social justice and
economic stability.
 Protection against Loss of Income: Statutory schemes like the National
Pension Scheme Authority (NAPSA) provide financial support to employees
upon retirement, invalidity, or death. When an employee's contract is
terminated, their accrued benefits from such schemes provide a measure of
financial stability during a period of unemployment.
 Compensation for Workplace Injuries: The Workers' Compensation Fund
Control Board (WCFCB) is a vital component of social security that ensures
employees who suffer injuries or contract diseases in the course of their
employment are compensated. This protects employees from financial
hardship due to work-related health issues, even if their employment is
terminated as a result.
 Promotion of Decent Work: The existence of a robust social security
system, as advocated by the International Labour Organization (ILO),
encourages decent work. It provides security for workers and their families,
reducing vulnerability and contributing to a more productive workforce.
These schemes, while not offering direct unemployment benefits, are essential
because they provide a basic level of financial protection that complements wages
and other benefits, ensuring that workers are not left destitute when the employment
relationship ends.

Principles Relating to Ministerial Orders

Ministerial Orders, issued by the Minister of Labour and Social Security under the
authority of the Employment Code Act, are statutory instruments that prescribe
minimum wages and conditions of employment. The principles relating to them are:
 Binding Nature: Ministerial Orders are legally binding. They set the floor for
minimum wages, allowances, and other conditions that employers must
adhere to. Any provision in an individual employment contract or collective
agreement that is less favourable to the employee than a Ministerial Order is
void to the extent of the inconsistency.
 Applicability: Ministerial Orders generally apply to all employees in the
formal sector who are not specifically exempted.
 Non-Applicability: The Employment Code (Minimum Wages and
Conditions of Employment) (General) Order, 2023 (SI No. 48 of 2023),
clearly outlines the categories of employees to whom the orders do not apply.
These include:
o Employees in the Civil Service and Local Authorities.

o Employees in management.
 o Employees whose conditions of service are more favourable than
those prescribed in the Order.
o Unionised employees whose conditions are negotiated through
collective bargaining, provided the collective agreement offers
conditions that are not less favourable.
The rationale behind these exemptions is to avoid undermining the authority of
existing collective agreements or management contracts that already provide for
superior conditions.

Principles of Dismissal for Poor Performance

Dismissal for poor performance, or lack of capacity, is a valid ground for termination
under the ECA. However, for a dismissal to be fair, the employer must adhere to a
specific procedure based on the principles of natural justice.
1. Notification: The employee must be made aware of the required
performance standards and how they are failing to meet them. This should be
communicated clearly and in writing.
2. Opportunity to Improve: The employee must be given a reasonable
opportunity, including training, guidance, or counselling, to improve their
performance to the required standard.
3. Reasonable Time: The employer must provide a reasonable period for the
employee to demonstrate improvement. This is not a one-off assessment but
a process.
4. Warning: If performance does not improve after a reasonable period, the
employer must issue a clear and unambiguous warning that failure to improve
will lead to dismissal.
5. Fair Hearing: Before a final decision is made, the employee must be given a
fair hearing to explain their side and to be heard. This is consistent with the
Court of Appeal's ruling on procedural fairness.
The burden is on the employer to prove that the employee was given a fair
opportunity to improve and that the dismissal was a last resort.

Saviours Mundia v Consolidated Farming Unit Comp/IRC/LK/442/2019

The High Court of Zambia's decision in Saviours Mundia v Consolidated Farming
Unit (Comp/IRC/LK/442/2019) concerned a claim for underpayment of wages and
other benefits. The Industrial Relations Court (IRC) found in favour of the employee,
Saviours Mundia, holding that he was entitled to the underpayment of his salary for
the years he worked, as he was a "protected employee" under the Minimum Wages
and Conditions of Employment Act.
The key finding in this case was that the statutory instruments prescribing minimum
wages, even though made under a repealed Act, remained in force because the
ECA did not expressly repeal them. This judgment affirmed that an employee's
entitlement to minimum wages and conditions of employment is protected by law,
and an employer cannot evade this by simply failing to issue a written contract or
paying below the prescribed minimums. The court emphasized that it has the power
to look at the factual background of the case to determine if an employee is entitled
to backpay and can use its discretion under the ILRA to award such a remedy.

Outline for Professor Kalunga on Backpay and Underpayment

Principles
Outline: Principles for Awarding Backpay and Underpayment in Zambian
Courts
I. Introduction
 Brief overview of the legal landscape: Employment Code Act No. 3 of 2019
and the Industrial and Labour Relations Act (ILRA).
 Recognition of the courts' role in protecting employee rights to fair
remuneration.
II. Fundamental Principles
 Principle of Contractual Obligation: The primary consideration is the
employee's contract of employment. Courts will first examine the express
terms of the contract to determine the agreed-upon wages.
o Case Authority: National Drug Company Limited and Zambia
Privatisation Agency v Mary Katongo. This case reinforces that
parties are bound by the terms they freely and voluntarily entered into.
 Principle of Statutory Entitlement: Even where a contract is silent or
provides for a lesser amount, the courts will apply the minimums and
conditions prescribed in the Ministerial Orders. These are the "floor" below
which an employer cannot legally pay.
o Case Authority: Saviours Mundia v Consolidated Farming Unit
(Comp/IRC/LK/442/2019). This case is crucial as it confirmed the
continued applicability of Statutory Instruments from the repealed
Minimum Wages Act.
 Principle of Factual Ascertainment: Courts will not be limited to the written
contract. They can look at the "factual background" and extrinsic evidence to
determine the true intention and rights of the parties. This is particularly
relevant in cases where the contract is incomplete or ambiguous.
o Case Authority: Phinate Chona v ZESCO Limited (CAZ Appeal No.
66/2019). The Court of Appeal in this case established the principle
that courts are permitted to look at the surrounding circumstances to
interpret a contract, departing from a strict literal interpretation.
III. Discretionary Powers of the Court
 The courts, particularly the Industrial Relations Court, have broad discretion
under the ILRA to grant backpay and underpayment. This is a remedial power
aimed at achieving social justice.
 The court may also consider the duration of the underpayment, the employer's
conduct (e.g., wilful non-compliance), and the impact on the employee when
determining the amount.
IV. Conclusion
 The Zambian courts' approach to backpay and underpayment is a blend of
traditional contract law and modern employment law principles.
 The core principle is that no employee should be paid less than what is legally
due to them, whether by contract or by statute, and the courts have a duty to
correct such injustices.