Unlawful and Unfair Dismissal, Underpayment of Employees, Permanent Contract of Employment
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.
- 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.
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the Minimum Wages and Conditions of Work Act, Chapter 282 of the Laws of Zambia, are still in effect until expressly repealed as provided for by section 15 of the Interpretation and General Provisions Act.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.
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