Unlawful and Unfair Dismissal,
Underpayment of Employees, Permanent Contract of Employment
Facts
The complainant worked for the respondent as a
shopkeeper/manager on a permanent basis from 10th October 2016 to 27th
February 2021. They did not give him any document containing his conditions of
service. When he went to complain to the respondent about his National Pension Scheme
contribution he consequently got dismissed.
Issues
- Whether the Shop Workers Order, 2011 as amended by the2012 and 2018 Orders, applied to the Complainant.
- Whether the complainants’ dismissal was valid.
- Whether the complainant could receive damages.
Held
The court held despite the repeal of their parent Act.
Statutory instruments made under the Minimum Wages and Conditions of Work Act,
Chapter 282 of the Laws of Zambia, are still in effect until expressly repealed
as provided for by section 15 of the Interpretation and General Provisions Act.
Thus, the Shop Workers Order applied to the complainant and according to it entitled him to receive minimum wages and benefits.
The court held that employers have a limited set of grounds
on which they can dismiss their employees, they include; the conduct or
capacity of the employee, the employee’s operational requirements or
redundancy. In Casu the court found that the only possible ground for dismissal
was misconduct because the employee was summarily dismissed. Thus, the burden
of proof laid on the employer, who in the case failed to justify the summary
dismissal rendering the dismissal unfair and unlawful.
The court also held that Section 85A of the Industrial and Labour Relations Act empowered the Industrial Relations Court to grant
any remedy which it considers to be just and equitable. And also, the court
guided that where a contract does not specify an end date; it is presumed to be
a permanent contract. A permanent contract which has a pre-determined end date
of retirement makes it a contract for a fixed duration. And a fixed duration
contract entitled the party to a severance pay as gratuity.
Therefore, the court awarded the complainant:
- K250
for underpayment of salaries for 30 months.
- Housing, transportation and lunch allowance for the day of employment to the termination.
- Leave
days at the rate of 2 days per month from the day of employment to the date of termination.
- One
month's salary as damages for unfair and unlawful dismissal.
- Severance
pay, being 25% of the complaint’s basic salary from the day of employment to
the date of termination.
Download the full case here
or
Read a case commentary on the case here