Photo Source:Law Writing
By Teddy Musonda
31, March, 2024
Employment Law – Unilateral Variation
Zambia National Commercial Bank v Ernestina Sakala; A Seemingly Departure from Richard Musenyesa.
The Employment Code Act No. 3 of 2019 under section 23 (2) provides that an employer can make variations to the terms of an employment contract, but this must be done with the full consent of the employee. Section 55 (1) (c) provides that an employer when varying the terms of service of an employee’s employment contract to their detriment, must seek the employee’s consent otherwise the variation would be regarded as unlawful. The take away point from the above provisions is that an employee must accept or register their consent to a detrimental change or alteration of their contract of employment at the time the employer wishes to make such variations.
The Zambian Supreme Court has for so long struggled to adequately deal with circumstances where an employee despite having their terms of service varied to their detriment without their consent, continues in employment for many years. In such cases the question has been whether by the fact that the employee remained in employment signified that they consented or accepted to such variations. This struggle is evident as seen from the number of times the Supreme Court overruled itself when the above question was brought before it for determination.
The most recent cases with regard to this issue are Richard Musenyesa v Indo Bank Zambia (2020) ZMSC 214 and Zambia National Commercial Bank v Ernestina Sakala & 62 Others (2023) ZMSC 13. The former seemed to have tightened the law by providing a criterion that had to be met by employers in order to regard an employee’s continuance of employment as acceptance to the unilateral variation to their terms of service. While the latest judgment, even though not expressly overruling the former, seemed to have disregarded the criterion, it instead upheld earlier decisions of the Court. Therefore, in order to understand these two cases, below is a brief overview of the concept of variation including reasons why this seems to be a contentious topic in employment law. Also included are past Supreme Court cases that demonstrate the Supreme Court’s approach to unilateral variations of an employee’s service of employment.
VARIATION: AN OVERVIEW
The concept of Variation is provided by the Employment Code Act. It emanates from section 23 (2) which reads:
“where the terms of a written contract of employment change, the employer shall, with the consent of the employee, revise the contract to reflect the change and provide the employee with a copy of the revised contract of employment”
Section 55 (1) (c) goes on to provide for the effects of a unilateral variation to an employee’s terms of service to their detriment, without seeking their consent. The section reads:
“An employer is considered to have terminated a contract of employment of an employee by reason of redundancy if the termination is wholly or in part due to –
(a) …
(b) …
(c) an adverse alteration of the employee’s conditions of service which the employee has not consented to.”
What section 55 (1) (c) essentially speaks to is that; an employee’s contract of employment is deemed to have been terminated if their employer varies their [terms] of service to reflect lower or lesser terms of service without seeking the employee’s consent. When such occurs, an employee may seek recourse in court and claim a redundancy package.
Further, the above provision denotes that an employer must not seek consent of an employee after the adverse variation to their terms of service has been made but consent must be obtained before making the variation, and where an employee refuses to issue their consent then any adverse variations made becomes unlawful thus giving way to a redundancy situation. The bottom
line is that the employee must issue their consent to adverse variations to terms of service. It is common law that consent can either be obtained expressly or impliedly
(deducing from one’s conduct) but section 55 (1) (c) makes no specification on the form of consent that must be obtained. The provision dictates that the consent either express or implied must be obtained before the variations are made and not after.
Acquiescence in Contract Law
It must be mentioned that employment law is governed by contract law principles only that it is circumscribed by statute (Employment Code Act). On that basis, acquiescence is a contract law principle where an innocent party to a repudiatory breach is deemed to have affirmed the contract due to lack of ‘clear and unequivocal communication’ of acceptance of the termination of the contract.
Applying this principle in employment law in relation to variation means that; a repudiatory breach occurs once the employer varies the terms of service of the employee without their consent, thereby giving the employee two options
(i) to accept the repudiatory breach- resign and claim a redundancy package from the employer, or
(ii) to affirm the contract- continue with employment under the new varied terms. Acceptance of a repudiatory breach must be communicated ‘clearly and unequivocally’ to the party in breach, otherwise the innocent party would be deemed to have affirmed the contract by way of acquiescence. This would mean that an employee who does not leave their employment after an adverse variation to their terms of service would be regarded to have acquiesced to the said variation.
However, there have been reservations to whether the principle of acquiescence must be applied to employment contracts, specifically in dealing with the subject of variation. As earlier stated, what has proved challenging for the Supreme Court over the years, stems from intricate situations where they dealt with employees who despite having had their terms of service varied to their detriment by their employer, continued with their employment for several years. In such circumstances, would it mean that the employee, by continuing with their employment acquiesced to the unilateral variations hence waiving any rights entitled to them under the previous terms? or should the fact that they did not consent to the said variations mean that the said changes to the terms of service were unlawful hence maintaining any rights entitled to them under the previous terms?
DEVELOPMENT TO THE SUPREME COURT’S APPROACH TO VARIATION
1. Dickson Zulu and Others v Zambia State Insurance Corporation Limited (2008) SCZ 203.
The case involved employees whose retirement benefits where unilaterally varied without their consent to reflect lower benefits. Despite this fact, they remained in employment with the respondent, upon retiring, they demanded that their retirement benefits be computed by what was provided by their previous employment contracts i.e. before the variation occurred. The Supreme Court held that where an employer varies the terms of service of an employee’ employment contract to the employee’s disadvantage, if the employee does not protest or raise an issue concerning the application of the said changes, they shall not subsequently complain if the new changes are reflected.
Essentially the Supreme Court guided that an employee whose terms of service have been unilaterally varied to their detriment without their consent, is required to protest and register their concern to the employer regarding the variation. It follows that if an employee continues with their employment without protest, then they will be regarded to have acquiesced thus consenting to the variations, they therefore, lose any right of claims arising from the said variations. This case did not address the issue to the fullest extent, as it did not properly guide what must follow where an employee protests or registers their concerns to the employer but the employer does nothing to address the concerns or stands by the said variations. Well, it may be inferred from the judgement that in such a situation, the employee is expected to then resign or continue in employment operating under the said variation which they did not consent too.
2. Attorney General v Nachizi Phiri and 10 Others (2009) SCZ 68.
This case was decided a few years later following the decision in Dickson Zulu case, here, the Supreme Court dealt with employees whose retirement benefits as provided by the National Assembly Conditions of Service and Disciplinary Code of 1996 included an ex-gratia payment. Therefore, in 2000 the employers released a National Assembly Circular No. 5 of 2000 which revised the employee’s retirement benefits and totally abolished an ex-gratia payment, this unilateral variation was made without the consent of the employees. The employees claimed to believe that the variations in the year 2000, only applied to prospective employees, which would mean they were still entitled to ex-gratia payments as provided by their earlier terms of service. It was on this basis that they continued in employment.
After years of continued service, the employees retired but were not offered ex-gratia payments, the appellants on behalf of the employers contended that the 2000 circular also applied to employees who served before the said unilateral variations were effected, the fact that there was no evidence of protest or dissatisfaction on the part of the employees and their continuance in employment, implied that that they had acquiesced to the variation hence waiving any rights to that effect.
The Supreme Court held;
“Conditions of service for any kind of employment can be amended, but this must only be with the clear and express consent of the employee. It is our view that express consent of an employee must always be a major pillar in the principles of employment law, in the safeguarding of the terms of an employee’s contract of employment already being enjoyed; the other pillar being job security for that employee which is also a prominent feature of the present day government policy on employment…”
The Court further alluded by stating:
“Failure by employees to parade and protest against condition of service offered by one of the three arms of government should not amount to their consent by conduct. If it happens, it would in fact amount to indiscipline.”
The Supreme Court here made it clear that an employee’s terms of service can only be varied with their express consent. This is important to take note of because by this statement alone, the Supreme Court ruled out the possibility of assuming that an employee consented to a unilateral variation to the terms of service from their conduct (by the fact that they don’t resign).
The Supreme Court in this case evidently departed from the Dickson Zulu case by holding that an employee was no longer obligated to protest against a unilateral variation to their terms of service to their detriment to prove that they do not approve of the variation (the contrary being the holding in the Dickson Zulu case). One reason for this position is that employees naturally have a weak bargaining power compared to the employer, therefore, demanding an employee to protest against their employer would be placing a huge burden on the employee, as many employees would opt not to protest, in fear of losing their jobs.
Another reason is with regards to job security; the Supreme Court emphasized on the need to understand the employment levels and opportunities in Zambia. The scarcity of job openings definitely would impact the decision of an employee contemplating whether to resign or not. In the Dickson Zulu case, it was held that where an employee does not resign then it shall be concluded that they have consented to the unilateral variations to their terms of service, however, in this case it was directed that an employee’s continuance with employment must not be a basis of assuming an employee’s consent, as realistically speaking, most employees would not resign due to the fear of staying unemployed due to the scarcity of suitable employment opportunities.
Furthermore, to contextualize the foregoing, where an employee’s terms of service have been unilaterally varied to their detriment without their consent but remains in employment even for many years, they would still claim a redundancy package as provided by section 55 (1) (c) of the Employment Code Act, they would also be entitled to any benefits provided under the terms of services that were in place before the variation occurred.
3. Hambali M. Hantontola v Council of the University of Zambia (2014) SCZ 215
Following the judgment in the Nachizi Phiri case, the Supreme Court in 2014 overruled itself and reverted back to the position taken in the Dickson Zulu Case. The brief facts were that the employee during the tenure of their employment with the respondent saw their terms of service unilaterally varied to their detriment, despite the change of terms to their employment service, they continued under employment for eleven years. After the employment terminated, they demanded to rip off the benefits provided by the terms of service provided by their previous employment contract i.e. before the unilaterally variation occurred.
The Supreme Court held that where an employer introduces a unilateral variation to a fundamental term of contract to their detriment, the employee has two options; either to:
“…take the variation as a breach of contract which entitles [them] to treat the contract as having been thereby terminated or consent to the variation and accept to continue working on the contract as varied.”
The Supreme Court in this case applied contract law principles on repudiatory breach to the latter by holding that; indeed, an employer who unilaterally varies an employee’s terms of service without their consent commits a repudiatory breach which therefore, invites the employee to either resign, thereby terminating the employment and claim a redundancy package, or continue with employment, thereby acquiescing to the breach, so consent would be assumed. If the employee chooses the latter option, they necessarily lose any claims under the previous contract.
It is vital to understand the ratio decidendi of the of this ruling so as to appreciate why the Supreme Court reverted to its position in the Dickson Zulu case, one major factor or reasoning behind this stance is that the Court dealt with employees who continued with their employment for so many years after their terms of service were unilaterally varied without their consent therefore, the employer would then be thwarted where employees claim benefits provided by terms under the previous contracts i.e. before the variation occurred many years ago. This was done in order to protect employers from dishonest employees who clearly understand that their terms have been unilaterally varied to reflect lower terms of service, from going to Court after working many years under the same varied terms and claim benefits from their previous employment contract.
This position was further fortified in a plethora of subsequent cases like, Zambia National Commercial Bank v Misheck Chanda (2014) SCZ 104, Zambian Breweries Plc v Stanley K. Musa (2014) SCZ 165, and Charles Nyambe and Eighty-two Others v Buks Haulage Limite (2014) SCZ 202.
This position was made abundantly clear in the Charles Nyambe case for instance, where the Supreme Court held that where an employee does not challenge a decision to vary their terms of service to their disadvantage the will be deemed to have acquiesced to the said variation.
4. Engen Petroleum v Willis Muhanga and Jeremy Lumba (2016) SCZ 117
The Supreme Court is 2016 added another twist to the ongoing saga of cases, the Supreme Court overruled and departed from the position it took in the Hontolola, Stanley K Musa, Misheck Tembo and Charles Nyambe cases and reverted back to the position taken in the Nachizi Phiri case.
4. Engen Petroleum v Willis Muhanga and Jeremy Lumba (2016) SCZ 117
The Supreme Court is 2016 added another twist to the ongoing saga of cases, the Supreme Court overruled and departed from the position it took in the Hontolola, Stanley K Musa, Misheck Tembo and Charles Nyambe cases and reverted back to the position taken in the Nachizi Phiri case.
The brief facts were that the appellants (employer) made changes to the terms of service of its employees, it introduced a new contributory pension scheme and replaced the clause relating to redundancy. The clause reduced payment of redundancy from five (5) months’ pay of each year worked to two (2) months’ pay for each year worked. All employees were requested to sign a document acknowledging that they consented to the revised terms and conditions. The first employee (1st respondent-Muhanga) stayed in employment but they did not consent to the changes as they made comments showing dissatisfaction and non-support for the said variations to take effect. The second employee (2nd respondent-Lumba) continued in employment and did not make any challenges to the decision of the employer. The Supreme Court found that both employees in this case had not acquiesced to the variations to their contracts. The Supreme Court stated:
“The fact that the appellant did not bother to address the 1st respondent’s concerns shows that the respondent did not acquiescence or consent to the revised conditions… we guided that acquiescence should be taken with caution. In our view, on the facts of this case, that the court below should have proceeded with caution before finding that the [the 1st and] 2nd respondent acquiesced to the change in conditions of service more so that the conditions of service with regard to redundancy were being downgraded.”
In essence the Supreme Court reverted back to the position taken in the Nachizi Phiri case. Firstly, it was held that all relevant communications between the employer and employee must be examined in order to consider whether from the said communications it could be fair enough to conclude that an employee gave actual consent or not. Secondly, the Court held that where there is evidence that the employee showed concerns in relation to unilateral variations to their terms of service and the employer did not address those concerns, that in itself strongly suggests that the employee did not acquiescence to the said variations, hence even where the continued to work for many years, nothing would stop them from claiming any rights under the employment contract before variations to it were effected.
The take away point from this case is that it restored the position that where an employee’ terms of service have been unilaterally varied to their detriment without their consent, the fact that they continue in employment would not mean that they acquiesced to the variations. However, this position did not provide a lasting and sustainable solution to the arguments or concerns raised in the cases that aligned with the ruling in the Dickson Zulu case. To contextualize this; in line with this judgement, all what an employee had to do was to show that when their employer unilaterally varied their terms of service to their detriment, the employer did not obtain their express consent. In that case, they variations would be ruled unlawful thereby the employee is to benefit from the terms that applied before the variations occurred. However, an employer’s argument would be that standing by such an approach is unreasonable especially when dealing with employees who stayed for a long time after their terms of service had been altered, because the said employees were clearly aware of the variation and opted not to resign, implying that they were comfortable operating under the varied terms.
Recent Supreme Court Judgements
5. Richard Musenyesa v Indo Bank Zambia (2020) ZMSC 214
This case marked a significant benchmark in Employment Law with regards to unilateral variations to the terms of an employment contract. Here an employee’s terms of service where altered without their consent by their employer, the new terms of service did not include an entitlement of gratuity at the end of employment relationship despite it being in the previous terms of service. The Supreme Court held:
“Where acquiescence is intended to be assumed from conduct, credible evidence will have to be led, showing that the employee was by clear notice given by the employer indeed aware of the variation, understood the implication and full extent, before it can be said that they acquiesced or consented by conduct.”
This case supported the position taken in the Willis Muhanga and Nachizi Phiri cases by ruling that by mere fact that an employee continues in employment does not mean that the acquiesced or consented by conduct to the unilateral variations to their terms of service. Therefore, this case went further in providing a viable solution on a more appropriate approach to variations, the Supreme Court provided a four test criterion that had to be met by an employer in order for acquiescence or consent by conduct to be properly assumed from the employee. While the Willis Muhanga and Nachizi Phiri cases seemed to rule out acquiescence in employment law with regards to variation, claiming that an employee being in a naturally weak position should not be expected to have acquiesced to unilateral variations to their terms of service by reason that they continued with their employment and did not protest. The Richard Musenyesa case provided room for acquiescence to be assumed from an employee but at the same time provided a criterion that had to be met by the employer in order for acquiescence to be assumed from the employee. These four requirements are;
(i) the employer must give clear notice of the unilateral variation to the employee
(ii) the employee must be aware and understand the full extent and implications of the variations
(iii) the employee must be aware of their right to either accept or reject the unilateral variations to their terms of service
(iv) the employee having demonstrated full knowledge of the circumstances, continues with employment- (then they would be deemed to have acquiesced to the variations).
This criterion gave a burden on an employee to prove that at the time the employer unilaterally varied their terms of service, the employer failed to abide to these four requirements, and it also placed the burden on the employer to defend themselves by proving that at the time of variation, they followed the requirements above. i.e. they clearly told the employee of the imminent variations to their terms, they made sure that the employee understood the implication, they made sure that the employee was aware of their options, and thereafter the employee continued in employment. If the employer achieved these four requirements, then the employee’s continuance in employment will automatically signify their consent to the unilateral variation to their terms of service, the contrary applies where the employer did not achieve the said requirements.
This was an excellent development, it can be said to have tightened the law by filling the gap between the approach in the Dickson Zulu case and its subsequent alike cases, and in the Nachizi Phiri and its subsequent alike cases.
This case balanced the two contrasting approaches hence proving to be a viable and sustainable position, however, the Supreme Court in its more recent judgement in Zambia National Commercial Bank v Ernestina Sakala, although not expressly making reference to the Richard Musenyensa case, seems to have departed from its ruling and somewhat oddly reverted back to the old positions taken in the Dickson Zulu case and its subsequent alike cases.
An Analysis on;
6. Zambia National Commercial Bank v Ernestina Sakala. (2023) ZMSC 13
The brief facts are that the appellants (employer) had a voluntary separation scheme with its employees, which was a window opened from time to time allowing the employer and any employee to terminate the employment relationship on mutual grounds. As such the employee would receive termination benefits provided under the scheme. The initial scheme provided that termination benefits would be calculated using a formula of multiplying a factor 4.5 by the monthly basic pay.
However, in 1999 the employer revised the scheme by varying the formula from multiplying the factor from 4.5 to 2.5, and the employer opened the window and the employees opted to continue with their employment. In 2011, the employer again varied the terms of the scheme by reducing the multiplying factor to 1.4 but they window was not opened not until 2017, the employees then decided to leave employment by way of the voluntary separation scheme opened in 2017. The employees could be divided in three groups according to their respective claims; the first group went on early retirement but claimed to benefit from the voluntary separation scheme (this shall not be addressed due to irrelevance to this piece of writing), the second group claimed that their termination benefits must be calculated by the factor of 4.5 as provided by the agreement before the 1999 variation. This group claimed that they did not consent to the unilateral variations to their terms of service in 1999 therefore, the terms that remained applicable to them are those before 1999 which provided for a multiplying factor of 4.5.
The third group claimed that their termination benefits must be calculated by the factor of 2.5 instead of 1.4. this group claimed that although the consented to the unilateral variations to their terms of service in 1999, they did not consent to the variation in 2011 therefore, the multiplying factor that remained applicable to them was that provided after 1999 but before2011 (2.5). However, the appellants claimed that by the fact that the employees continued in employment even after the variations of 1999 and further after the variations of 2011 proves that they had consented and were satisfied of the variations therefore, they acquiesced to the said variations.
The underlining fact of similarity that this case holds with every other case cited in this writing is; the employer unilaterally varied the terms of service of the employees to their detriment without seeking their consent, despite knowledge of this fact, the employees continued with their employment relationship with the employer. The question then to the Court was whether or not by the fact that the employees opted to continue with their employment, signified that the acquiesced to the unilaterally variations? The Supreme Court began by addressing the third group, making reference to them it stated;
“…they were fully aware that, in 2011, the appellants had revised the formula for computing the separation package to 1.4… clearly, their voluntary option to exit through the scheme, while alive to the revised formula, was very strong evidence indicating that they had accepted the revised formula.”
Making reference to the second group the Supreme Court stated;
“…the fact is that they did not opt to leave by way of the scheme at that time, in 1999. Instead, they remained in employment; and in 20111, they became aware that the formula was revised further t the factor of 1.4. so, when they came to choose, of their own volition, to leave by way of the scheme in 2016 or 2017, they were fully aware of the revision that was made to the formula in 2011, but they opted to leave on that scheme. This is evidence that they had accepted the revision in 2011.”
The Supreme Court took yet another surprising position by evidently reverting to the Dickson Zulu case seemingly without exception whatsoever. The Court essentially found that the employee’s continuance in employment after the unilateral variations to their terms of service signified that they acquiesced or consented by conduct to the same variation thereby could not claim any benefits from the terms of service before they were revised. The author finds it quite strange why neither counsel nor the judge made any reference to the Richard Musenyesa case, just as earlier shown, the Richard Musenyesa case provided a criterion of four (4) requirements that an employer must meet in order to deem an employee to have acquiesced to a unilateral variation of an employee’s terms of service to their detriment.
However, the Supreme Court took cognizance of the duration the employees remained in employment after the unilateral variations to their terms of service occurred. From 1999, which marked the first unilateral variation to their terms of service, to 2017, when the left employment, marked exactly Eighteen (18) years working under terms the claimed not to have consented to. This may have impacted the Court’s ruling as the test of reasonableness was also discussed, this is to say, the Supreme Court suggested that where an employee whose terms of service have been unilaterally varied to their detriment, stayed and continued in employment for a reasonable period of time, then they would be considered to have acquiesced to the variations.
But the foregoing reasoning invites several counter arguments. Firstly, what exactly would amount to a reasonable period of time? This would ultimately leave it the discretion of the court to decide, however, this becomes undesirable as it makes the law inconsistent and unpredictable which defy basic features of law. Furthermore, deciding the outcome of a case solely based on how long an employee stays in employment after a unilateral variation to their terms of service without their consent seems absurd because taking this approach means that employees are advised to resign and leave employment at the soonest possible time after the employer unilaterally varies their terms of service without their consent. Advancing the argument raised in Nachizi Phiri that employees are ‘naturally weak’ due to the justification that in most trades or industries, alternative suitable employment in Zambia is hard to find, employees would rather remain in employment as long as possible for fear of remaining unemployed for a long period of time if they resign, also taking into account that the redundancy package they would receive when they resign may not financially sustain their needs forever. Therefore, job security must be a factor the Courts must seriously take into account.
The second argument raised is; whether by virtue of the case in casu, the case of Richard Musenyesa v Indo Bank Zambia has been overruled thereby the criterion established in the case being no longer authority? This rhetorical question stems from the root that first of all, the judge made no reference whatsoever to the Richard Musenyesa judgement, the Richard Musenyesa judgement made it abundantly clear that the criterion, which has already been outlined, must be met by the employer who claims that the employee acquiesced to unilateral variations to their terms of service, this therefore follows that the Courts must inquire from the employer, with evidence, whether at the time of the variation, they satisfied the requirements provided by the criterion set out in the Richard Musenyesa case. This approach dictates that where the Court finds that the employer in fact satisfied the criterion set out, then the employee would be deemed to have acquiesced or consented by conduct to the variations, however, if the Court finds that the employer did not satisfy the sad criterion, then, regardless of how long the employee stays in employment after the variations, the employee would have not acquiesced or consented by conduct to the said variations. Simply put, according to the Richard Musenyesa case, whether or not an employee’s continuance of employment signifies consent to a unilateral variation of their service of employment to their detriment is dependent on whether the employer satisfied the criterion set out in the Richard Musenyesa case.
However, this is not the impression that the Ernestina Sakala case leaves us with, according to the case, the only test to be applied is that the employee “being fully aware of the said variations continued in employment for a reasonable period of time,” this statement strongly shows that the Supreme Court only directed their minds to unilateral variations of terms of service that did not have an immediate practical effect, for example, where an employer alters the benefits of an employee when they retire. In such a case, indeed, the may be possibilities that an employee is not aware of such an alteration at the time they were made, the Supreme Court’ reasoning would be justified to that effect, however, the Supreme Court’s decision can be criticized on the basis that it does not provide a profound consistent umbrella that logically relates to circumstances where the unilateral variations do have an immediate practical effect. For example, where an employer reduces an employee’s salary.
Applying the test of whether an employee continued in employment while being fully aware of the variation proves to be illogical and impractical in such a circumstance, as obviously an employee would be fully aware when their salary is reduced, and holding that an employee acquiesced to the reduction in salary simply because they were aware of such a reduction and continued in employment is as sending the employee to a predetermined death. The foregoing discrepancies also demonstrates that reconciling the Ernestina Sakala case with the Richard Munsenyesa case, as some authors would suggest, is difficult because the two cases seem to have more distinctions than similarities between them.
The author submits that the Supreme Court erred in Zambia National Commercial Bank v Ernestina Sakala, the case is a backward judgment that points to the restoration of the position taken in Dickson Zulu v Zambia State Insurance Corporation Limited. The Supreme Court should have directed their minds to whether the employer took positive steps to ensure that consent is obtained from the employees before varying their terms of service. Positive steps would mean satisfying the criterion set out in Richard Musenyesa. Further, from the evidence provided from considering the Ernestina Sakala case, the case strongly suggests that Richard Musenyesa v Indo Bank Zambia has been overruled and is no longer the position of the law currently.
The author further submits that an employee’s continuance of employment alone, must NOT signify consent to a unilateral variation of their service of employment to their detriment, instead, in line with the good law as provided in Richard Musenyesa v Indo Bank Zambia, the only time an employee’s consent to a unilateral variation to their service of employment to their detriment can be assumed, is if and only if; (i) the employer gave clear notice of the unilateral variation to the employee (ii) the employer made the employee aware and that the employee understood the full extent and implications of the variations (iii) the employer made the employee aware of their right to either accept or reject the unilateral variations to their terms of service (possibly even making them aware of the effects that follows either decision) and (iv) the employee having demonstrated full knowledge of the circumstances, continued with employment. This position is also reflected by the spirit and letter of Section 55 (1) (c) of the Employment Code Act.
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About the Author:Teddy Musonda is a third year student at the University of Zambia and serving as the current Chief Executive Officer of Legal Aid Initiative. He is also an Editor at Amulufeblog.com
