By Nyambe E.N
January 13, 2025
A dismissal refers
to the termination of an employee's contract of employment by the employer. The
Supreme Court in Redrilza Limited v
Abuid Nkazi and Others, SCZ Judgment No. 7 of. 2011 held that “dismissal involves loss of employment
arising from disciplinary action…” It evokes an image of misconduct by the
dismissed employee because of its punitive implications as provided in Agholor v Cheesebrough Pond's (Zambia)
Limited (1973/HP/909) [1976] ZMHC 1 (8 January 1976). Before an employer
can terminate an employee, two conditions must be met. First, the dismissal
must be based on a substantial reason that is legally justifiable. The
disciplinary process determines whether the employer acted reasonably in
considering the reason sufficient, as established in the case of Fred Mulomba v Zambia National Commercial
Bank (Appeal 161 of 2009) [2018] ZMSC 411 (13 March 2018). Second, the
employee must have been given an opportunity to present their case during the
disciplinary process, as affirmed in ZCF
Finance Services Limited v. Happy Edubert Phiri, SCZ Appeal No. 93/2001
(unreported).
Section 50 the Employment
Code No. 3 of 2019 permits summarily dismissal which is dismissal without
giving notice or an opportunity to be heard. Summarily dismissal is reserved
for instances when an employee engages in serious misconduct, commits an
offense, or fundamentally breaches their employment contract, as established in
ZCF Finance Services Limited v. Happy
Edubert Phiri, SCZ Appeal No. 93/2001 (unreported). Under common law,
summary dismissal is permissible when the employee's conduct constitutes a
fundamental breach of the employment contract, thereby undermining the trust
and respect essential to the employment relationship, as outlined in Pepper v Webb [1969] 2 ALL ER 216.
WRONGFUL DISMISSAL OR UNFAIR DISMISSAL
Dismissal may be
either unfair dismissal or wrongful dismissal. The two denote different things.
a. Unfair
Dismissal
Unfair dismissal
occurs when an employee is terminated from their employment in violation of
statutory provisions, without following the proper legal procedures or on an unsubstantiated
ground. Unfair dismissal is a creation of the statute, as
it occurs where an employer dismisses an employee contrary to the provisions of
the statute as specified in Care
International Zambia Limited v Misheck Tembo (Appeal 57 of 2016) [2018] ZMSC
378 (10 December 2018). The Supreme Court in Konkola Copper Mines Pic v Hendrix Mulenga Chileshe, SCZ Appeal No. 94/2015
guided that unfair dismissal “focuses on ‘why’
the dismissal was effected…” It is
concerned with the merits or substance (the reasons) of the dismissal as provided
in Care International Zambia Limited v
Misheck Tembo (Appeal 57 of 2016) [2018] ZMSC 378 (10 December 2018).
Wrongful Dismissal
Wrongful dismissal
refers to the termination of an employee in breach of the terms of their
employment contract. Wrongful dismissal is creature a creature of the common
law, as it occurs where an employer fails to adhere to the terms specified in
the employment contract, such as not providing the required notice period or
failing to follow the disciplinary procedures outlined in the contract as
specified in Care
International Zambia Limited v Misheck Tembo (Appeal 57 of 2016) [2018] ZMSC
378 (10 December 2018). Even if the reason for dismissal is valid, if
the employer does not follow the correct procedure, the dismissal may be deemed
wrongful. The Supreme Court in Konkola
Copper Mines Pic v Hendrix Mulenga Chileshe, SCZ Appeal No. 94/2015 guided
that wrongful dismissal “… focuses
on ‘how’ the dismissal was effected…”
It is procedural and contingent upon the terms of the contract as held in Chilanga Cement Plc v Kasote Singogo, 2009
ZR 122 (SC) or rather it looks at the
form of the dismissal as held in Supabets
Sports Betting v Kalimukwa (110 of 2016) [2019] ZMSC 27 (8 October 2019).
CAN IT BE BOTH WRONGFUL DISMISSAL AND UNFAIR DISMISSAL
The Supreme Court recognized
in Care International Zambia Limited v
Misheck Tembo (Appeal 57 of 2016) [2018] ZMSC 378 (10 December 2018) that a
dismissal can be both wrong and unfair. Such a case will be a case of a simultaneous
violations were the dismissal violates both the terms of the employment
contract and statutory protections.
To avoid unfairly
or wrongfully dismissing employees, employers are required to follow specific
procedures outlined in employment contracts or in the Employment Code No. 3 of 2019, including providing an opportunity
for the employee to be heard before dismissing an employee. There must be a just
cause and due process.
Quantum of Damages to be Claimed
In both cases, the
quantum of damages will depend on the specific circumstances surrounding the
dismissal, including the employee's length of service, salary, and the terms of
the employment contract. The calculation is not a one-size-fits-all approach;
rather, it is tailored to the unique circumstances of each case. In Finance Bank Zambia Ltd and Anor v Simataa
(Appeal 11 of 2017) [2017] ZMSC 233 (2 June 2017), the court held that damages
in the law of contracts are awarded for the purpose of putting the innocent
party in the position in which they would have been had the contractual obligations
been performed. Under employment law specifically, the primary measure of
damages in wrongful dismissal cases is typically the notice period stipulated
in the employment contract. This principle is supported by cases such as Swarp Spinning Mills PLC v Chileshe &
Others (SCZ 6 of 2002) and Zambia
Airways v Gershom B.B. Mubanga (SCZ Judgment No. 5 of 1992). The Supreme
Court have further guided in Wilfred
Weluzani Banda v Medical Council of Zambia and Attorney General (Appeal 116 of
2012) [2016] ZMSC 7 (26 January 2016),
that where the contract of employment
is silent on the notice period, damages will be awarded with reference to the
notice period provided under Section 53(2)
of the Employment Code No. 3 of 2019.
DEVIATION FROM THE NORMAL MEASURE OF DAMAGES
Certain circumstances may warrant additional damages
beyond the standard notice period. These include:
i.
Traumatic Circumstances: If the dismissal results in mental harm,
courts may award additional damages. For instance, a sudden termination without
cause could exacerbate emotional distress, leading to higher compensation. The
case of Swarp
Spinning Mills PLC v Chileshe & Others (SCZ 6 of 2002), is
illustrative of this circumstance.
ii.
Infringement of Rights: A dismissal that violates fundamental
rights, such the right to be heard, the right to a fair hearing and the right
to be given a valid reason, may result in enhanced damages to reflect the seriousness
of the infringement. The case of Sarah
Aliza Vekhnik v Casa Del Bambini Montesorri (Appeal 129 of 2017) [2018] ZMSC
583 (22 August 2018), is illustrative of this circumstance.
iii.
Oppression: If the employer's actions are deemed oppressive, such
as dismissing an employee in retaliation for whistleblowing or disguising the
real reason of the dismissal, courts may increase the damages to penalize such behaviour.
The cases of David Banda v. The
Attorney-General CAZ Appeal No. 233/2020 and Chilanga Cement Plc v Kasote Singogo, 2009 ZR 122 (SC) are illustrative
of this circumstance.
iv.
Abrupt Dismissal: An immediate termination without proper
procedure can lead to additional damages, as it may cause sudden financial
hardship and emotional distress. The case of Swarp Spinning Mills PLC v Chileshe & Others (SCZ 6 of 2002) is
illustrative of this circumstance.
v.
Mental Anguish, Anxiety, Stress, or
Inconvenience: The emotional
impact of dismissal can significantly affect an employee's well-being and
future prospects. Courts recognize this by awarding damages for mental
suffering, which can hinder the employee's ability to secure new employment. The
case of First Quantum Mining and
Operations Limited v Yendamoh (Appeal 206 of 2015) [2018] ZMSC 343 (15 August
2018) is illustrative of this circumstance.
vi.
Diminished Future Prospects: A wrongful dismissal can tarnish an
employee's reputation and create employment gaps, making it harder to find new
opportunities. This factor is crucial in determining additional damages, as it
reflects long-term career impact. The cases of Dennis Chansa v Barclays Bank, Zambia Plc [2012] ZMSC. 81 (27th
February 2012), First Quantum Mining
and Operations Limited v Yendamoh (Appeal 206 of 2015) [2018] ZMSC 343 (15
August 2018) and David Banda v. The
Attorney-General CAZ Appeal No. 233/2020 are illustrative of this
circumstance.
However, it very
cardinal to know that dismissed employees have a duty to mitigate their loss of employment. They
must take reasonable steps to mitigate against the loss suffered as provided in
Sarah Aliza Vekhnik v Casa Del Bambini
Montesorri (Appeal 129 of 2017) [2018] ZMSC 583 (22 August 2018), African
Banking Corporation (Zambia) Ltd v Muntete (Appeal 51 of 2021) [2023] ZMCA 4
(10 February 2023) and Ng'onga v
Alfred H. Knight Zambia Ltd (Appeal 203 of 2016) [2019] ZMSC 359 (26 September
2019)
ABOUT THE AUTHOR
