NAME:

-
ethel munjita

PROGRAMME: DiHRM

COURSE: Labour Law (ii)

COMPUTER NO= 29004025

course code: DiL 2012

LECTURER: Mr. Sakala

MODE OF STUDY: full time

Introduction

In order to further safeguard employee rights, Zambia updated the Employment Code Act in
2019 by making a number of substantial changes. The two pieces of legislation that govern
employment relations in Zambia are the Employment Code Act and the Industrial and Labour
Relations Act. The Industrial Relations Court, a fast-track court, hears and quickly resolves
industrial relations cases. To form a local corporation in Zambia, a company must be familiar
with all parts of that country's employment laws. assist in reducing and removing the challenges
that organizations looking to operate a local office may face. The purpose of this essay is to
counsel Mr. Chileshe, a worker for the Zambian Breweries Company Ltd., on the legal actions
he can bring against his employer and the appropriate court for those actions. Additionally, it
explains the court's jurisdiction and what he can do if the court he files his action before judges
against him.

Concept of an employment contract (background)

The contract of employment is the legal document that governs the relationship between the
employer and the employee. A contract of employment is one of the types of agreements that
labor law uses to specify the legal rights and obligations of the parties to a transaction. On one
end is a "worker" who is "employed by an employer." It evolved out of the antiquated master-
servant law that predated the 20th century. The employment contract generally denotes a social
and economic subordination relationship. According to renowned labor lawyer Sir Otto Kahn-
Freund, the relationship between an employer and a lone employee or worker is often one
between a power bearer and a non-power bearer. It is an act of submission at its start and a
condition of subordination in its operation, even though the submit and the subordination may be
masked by the essential legal invention known as the "contract of employment." Providing a
countering force to the natural and inevitable imbalance of bargaining power in the employment
relationship has always been and will always be the main objective of labor law.

An employment contract is an oral or written, express or implied agreement between the parties
outlining the terms and conditions under which a person consents to undertake particular
activities in exchange for a predetermined wage or income.
contract-related legal issues

Modifying a contract refers to the process where one or both parties need to make changes to a
contractual contract. Such modifications may be made either orally or in writing and may be
made either before or after the contract has been signed by all parties. Contract changes may also
be made to specific contract provisions or the entire agreement.

Just as Mr. Chileshe and Breweries must agree on the terms of the first contract, all parties must
agree on any modifications involving Mr. Chileshe and his employer. If all parties agree, the
modifications will be legally binding and enforceable exactly like the original agreement. If Mr.
Chileshe objects to the modifications made to the contract by his employer, it might not be able
to enforce those changes.

Zambian contract law does not define what happens when a contract is changed without the
parties' consent, but common practice in Zambia permits the Common Law's powers. As in the
case of Mr. Chileshe and Breweries, a contract is said to be void if one party makes changes to it
without the consent of the other. If the written materials or the terms and conditions have been
unlawfully revised, the contract is stated to be null and void. The illegal modification of the
contract's documents is not addressed in the Zambian Contract. For the same reason, English law
is used by Zambian courts. Courts use a legal theory known as the "Blue Pencil Doctrine" to
determine which provisions of a contract are valid and which provisions can be enforced. The
Blue Pencil Doctrine states that any phrase that is unenforceable or otherwise invalid is deemed
to be void, and all other sections of the contract shall remain in full force and effect. It is also
known as the severability doctrine. The unapproved and unlawful modifications to a contract's
provisions may be declared unenforceable under the Blue Pencil Doctrine because they lack
legal standing and are not binding. This occasionally occurs.

As a result of the contract change, Mr. Chileshe has the right to sue his employer, Zambian
Breweries Company Ltd.

The employment contract is assumed to have ended and the employee is deemed to have been
declared redundant as of the date of the alteration, the Zambian Supreme Court held. This rule
applies when an employer modifies the fundamental terms of employment without the
employee's permission. The employee is entitled to a redundancy payment if the terms of
employment provide one. Which will most likely result in the finding that the modifications
made by Mr. Chileshe's employer are invalid in the current situation. The contract may contain a
provision permitting Zambia Breweries Ltd. to alter it; however, if it does not, Zambia Breweries
shall not be permitted to alter the contract without Mr. Chileshe's approval. Since the only way to
change the terms of the contract between Mr. Chileshe and Zambia Breweries Ltd is through a
collective agreement, Mr. Chileshe has a strong case against the employer. This might be
referenced in the ruling rendered by the Supreme Court of Zambia in the case of Kabwe v. BP
Zambia Limited from 1997. The appellant's compensation was decreased to the level it had been
prior to the increase when the respondent reversed a general salary increase. The response
provided him with a retirement payment based on his wages prior to the raise when he requested
to leave early. The court ruled that if an employer changes one or more fundamental terms of
employment without the employee's consent, the employment relationship ends, and the
employee is deemed to have been made redundant as of the date of the change and is entitled to a
redundancy payment if the conditions of service permit it. The employee appealed the court's
decision to deny his request for a declaration that he was entitled to a package based on his
higher pay. If redundancy is not an option and early retirement is permitted by the terms of
service, the person should be regarded as having taken early retirement. The appellant's
employment contract was thus terminated on the day his pay was decreased since the employee's
employer changed the terms of the agreement without his assent, and his benefits should have
been calculated using the higher income that was applicable to him at the time.

The matter of Mr. Chileshe will be heard before the industrial relations court. As has exclusive
original jurisdiction to consider and resolve any labor-related dispute.

Composition of the Court for Industrial Relations

The IRC is composed of a chairperson and a deputy, both of whom are chosen by the president
of Zambia from among individuals who are either judges of the High Court or have the required
qualifications, as per sections 96(2), (3), (4), and (5) of the IRA. In addition to the chairman and
his deputy, the president has the power to appoint two other members, or any bigger number that
he may specify. Actually, the president has four candidates on his list for the job. Under Rule 2
of the IRC, the chairman or deputy chairman are referred to as "judges." In accordance with
Section 96, the Minister of Labour and Social Services has the power to designate an even
number of assessors, not to exceed fourteen (7). Employers' representatives must make up half of
the assessors, while employees' representatives must make up the other half. In any particular
case, the chairman may ask for two of these assessors to sit with the court, one from each side.

The court is not compelled to follow the assessors' recommendation, but it does have the
discretion to do so. If the court has three members, or any other odd number that the chairman
may select, it will be properly constituted to hear any matter before the IRC. An interlocutory
matter may be heard by a single judge in accordance with Rule 34 of the IRC regulations from
1974, although any case before the IRC must be settled in accordance with the decision of the
majority of the members considering or hearing the topic. As a result, it appears that the
chairman and his deputy have sole authority to decide on interlocutory matters.

This is in accordance with accepted legal practice, which requires that judges treat these issues
alone in chambers. According to s. 101 of the IRA, the chairman has the power to create the
guidelines that would control every IRC procedure. With this legal backing, Mr. Justice Baron,
the first IRC chairman, published the IRC regulations in 1974, some of which have already been
described. These rules contain provisions ensuring that parties to any actions may always employ
conciliation services, exactly as is permitted by the rules of civil procedure (and, on occasion, the
rules of criminal procedure) in regular courts of law.

Jurisdiction

Section 98 of the IRA provides the IRC with its power and area of application. According to this,
the IRC's main responsibilities include reviewing and approving collective agreements, looking
into and making decisions in collective disputes, interpreting awards and agreements, and
punishing for contempt anyone who disobeys or illegally refuses to carry out or be bound by an
order made by a court under the IRA.

It should be noted that in addition to the powers mentioned above, the IRC rules also give the
court the power to direct the production of documents, order the joining of any party to the
proceedings who is not already a party, order the discovery of documents, order the
administration of interrogatories, order the attendance of witnesses, and order the conduct of
future proceedings. There is considerable doubt that the Subordinate and High Courts of Zambia,
as described in the numerous orders and rules of their respective statutes, have similar powers to
the IRC.

Court of appeals

Article 131 of the 2016 Zambian Constitution (Amendment) Act established the Court of
Appeal. The High Court and quasi-judicial entities' appeals are reviewed by the Court of Appeal.
Since the Court of Appeal was established, swift resolution of appeal issues has been made
possible.

The Supreme Court of Zambia has all the jurisdiction given to it by the Constitution and other
statutes as the final court of appeal Mr. Chileshe might petition for if he is dissatisfied with the
decision of the industrial relations court.

The Supreme Court is established by Article 124 of the Zambian Constitution, Chapter of the
Laws of Zambia. With the exception of constitutional matters, which are determined by the
Constitutional Court, the Supreme Court is the highest court of appeal and has appellate
jurisdiction to hear cases from the Court of Appeal. It might also be given legal jurisdiction.
Zambia's Supreme Court is comparable in stature to the Constitutional Court. As a result, his
case may be heard, and the Supreme Court's ruling may cause the Industrial Relations Court's
decision to be overturned or allow for a new trial.

If Mr. Chileshe disagrees with the ruling of the Industrial Relations Court, he has the right to
appeal it to the Supreme Court. Anyone who disagrees with the Industrial Relations Court's
decision may use the Court of Appeal to appeal it to the Supreme Court. As a result, Mr.
Chileshe has the following options for challenging the Industrial Relations Court's decision:

What needs to be done by Mr. Chileshe to inform the labor court of your appeal.

The second step is to pay the appeal's filing fee.

In step three, ascertain whether the appeals court will need more details before considering his
case.

The fourth stage entails ordering the trial transcripts. Verify sure the appellate court received the
record.
In step six, decide which specifics must be included in his brief.

Step seven will set a deadline for him to turn up his brief. Check the brief's length and formatting
specifications once more. jot down his memo

In conclusion, if it can be proven that the original contract did not include a clause permitting
Zambia Breweries to change it, Mr. Chileshe will probably win his legal battle with Zambia
Breweries Ltd. The alteration may be void if one party does not agree with it. Mr. Chileshe
should also retain knowledgeable legal representation because he is claiming that his employer
broke a contract.
References

 Jeannie Paterson, Andrew Robertson, and Arlen Duke (2012). Fundamentals of Contract
Law (Fourth ed.). Page 440. Sydney: Thomson Reuters (Professional) Australia Limited.
 Jean Murray 2 (25 March 2021). Understanding Business Contract Breach Small
Business The Balance. obtained on February 19, 2022.

 (1997) S.J. 42 MIKE MUSONDA KABWE v. B.P. ZAMBIA LIMITED (S.C.)