SCHOOL OF LAW

L213- EMPLOYMENT LAW

10TH MARCH 2023

NYAMBE KAHONYI LLB21210040

NYAMBE MUKELABAI CHARITY LLB22215831

PHIRI THANDIWE LLB212484202

PHIRI MARVIS LLB21210081

PHIRI KATONGO NYAWA LLB212484357

PHIRI KUMBUTSO LLB212483801

SAKALA TAFARA LLB211482343

Chilanga Cement Plc v Kasote Singogo (2009) ZR 122

Facts

This case was an appeal against the judgement of the Industrial Relations Court,
which was in favour of the Respondent. The brief facts of this case are as follows;
the Respondent was employed as a Credit Controller by the Appellant company in
March 1988. He received a letter on 17 th December 1999 that stated in part that the
redundancy was due to the company’s decision to rationalize its manning levels. The
Respondent opposed the claim that the redundancy was due to the rationalize of
manning levels. The Respondent believed that the redundancy was due to an issue
that occurred on 3rd December 1999 at the offices of TAP Limited, between a Mr
Srinivasan, client of the Appellant Company, and the Respondent. The Respondent
was following up on a credit taken out by the client. During the meeting the
Respondent alleged that Mr Srinivasan made racist remarks towards him, that
annoyed and irked him.

The Respondent challenged Mr Srinivasan and later reported the incident to the
police. Thereafter, he informed his immediate boss, a Mr Mumba, about the police
report and the incident with Mr Srinivasan. Mr Mumba told the Respondent that he
would wait for the police investigations. The General Manager contacted the
Respondent on 7th December 1999, asking the respondent to explain the happenings
of the past seven days. The Respondent wrote back to the General Manager the
next day, he did not state exactly what had occurred, but he had reiterated his claim
that Mr Srinivasan had made racist remarks towards him and the poor black people
of the country. He also stated that he had reported the matter to the relevant
authority namely the Zambia Police. The General Manager responded to the
message and also made it known that this was not the first time that they had
received a complaint about the Respondent. The General Manager asked the
Respondent to meet physically, so that they could talk about what happened. On
15th December, he met with the general manager and was asked to explain what
happened transpired so he did. Later asked to explain what he has done for the
company.
Furthermore, on the date of the Christmas party that was for the employee, he
received a phone call from Mr. NAMAVAT using the Manager's phone telling him not
to attend the party. And on the 17 th he received the letter of redundancy. The
respondent stated that even though he knew that there was a redundancy exercise
going on, he did not receive any notice or was he aware that he was part of the list.
The Appellant contended this claim and stated that the redundancy was because the
company was performing a restructuring exercise restructure itself.

The Industrial Relations Court gave judgement in favour of the respondent and
ordered:

(a) That the Respondent be compensated for the abrupt loss of employment and be
paid twenty-four months' salary based on his last pay;

(b) That he be paid damages for the manner in which the employment was
terminated, the embarrassment he endured and the physical and mental torture he
suffered and that he be paid six months' salary based on his last pay;

(c) That he be given an option to purchase the motor vehicle he used and mobile
phone;

(d) That monies due to him should attract interest at Bank of Zambia short term
lending rate from the time of filing the complaint up to the date of judgment and
thereafter at the current lending rate until settlement. The Court also awarded costs
to the Respondent.

Issue

There were five main issues in this case: (1) Whether the Respondent’s
redundancy amounted to a constructive dismissal. (2) Was the redundancy
procedure lawful? (3) Does a payment amount to a notice of redundancy? (4) Did the
court error in ordering the reward of twenty-four months compensation? (5) Did the
courts error in ordering six months salary as damages?
Holding

In regards to the first issue the court defined a constructive trust as where the
employee leaves employment promptly or by notice due to the conduct of the
employer. They stated that an employee can claim to have been constructively
dismissed if he resigned or was forced to leave employment as a result of his
employer's unlawful conduct, which conduct amounts to a fundamental breach of the
contract of employment. It is the employee who makes the decision to leave. The
court found that the respondent’s termination of employment was not a constructive
dismissal as his termination was not by his own doing.

The court made judgement in relation to the second and third issue together. The
court held that redundancies are planned activities and the employer has a duty to
minimize the negative impact that the redundancy may have on the employee. The
employee must be prepared for the loss, reasonable measures must be taken this
includes notices and consultations with the employee. The courts also distinguished
this case from the case of Zambia Privatisation VS James Matale, they had stated
that payment in lieu of notice was a proper and lawful way of terminating
employment on the basis that in the absence of express stipulation every contract of
employment is determinable by reasonable notice. The court stated that this principle
is only refers to ordinary notices to terminate a contract of service and that such a
notice cannot be equated to redundancy notice. The court held that the
Respondent’s termination was wrongful.

Concerning the fourth issue the court sided with the lower court and stated that
the Respondent was compensated for his ‘abrupt loss of employment’. The courts
did not interfere with this reward as it was compensation for the inhumane treatment
the Respondent received from the Appellant.

On the final issue the court was of the view that the award of six months salary as
damages should only be awarded in exceptional circumstances and an award of
common law damages is enough, the court differentiated this case from the case of
Attorney General V Mpundu where it was held that awards for damages can be
given for mental distress and inconvenience suffered as a result of unlawful
suspension. The courts rationed that the enhanced damages are to encompass any
distress or inconvenience that may be caused by the abrupt loss of employment. The
Respondent already had employment from a different company before the trial
commenced.

The appeal was dismissed as the appellant only succeeded in two grounds. The
Respondent was also awarded costs, that were to be taxed in default of agreement.

Significance

The principle under the first issue is used to identify a constructive dismissal and it
is also used to define constructive dismissal. The principle under the second and
third issue is used to explain the importance of giving notice to employees before
declaring them redundant, it also differentiates a notice of termination of a contract of
service from a redundancy notice. The principle under the fourth issue explains the
reason for the reward of twenty-four months salary as damages compensation for
abrupt loss of employment. The fifth principle outlines that enhanced damages are
only to be given in special circumstances.

Conclusion

This case is the leading case under constructive dismissal. It brings out both the
definition of constructive dismissal and also the test used to identify constructive
dismissal. It also differentiates itself from the case of Zambia Privatization V James
Matale and the case of Attorney-General V Mpundu. Therefore, this case is a
significant case in Zambian law. Its principles are used as precedence in three parts
of employment law namely, damages, constructive dismissal and redundancy.