June 28, 2025
In
Zambia, the employer and employee relationship stem way back from the colonial
rule under the laws of the United Kingdom in the umbrella of voluntarism. This
was a poorly constructed policy that formed the countries labour laws.
Afterward, at independence the government policies were driven by eradicating
discrimination and the control of trade unions which formed the first positive
steps to Zambia’s current labour relations landscape.[1]
This paper analyses how the judgment in Care International Zambia Limited v
Misheck Tembo,[2]
has impacted the unfair ideas that have continually existed in the
employee-employer relationship. Specifically, this paper argues that the Supreme
Court’s reason for deciding in favour of Care International Zambia to dismiss
the employment of Misheck Tembo (Hereinafter the appellant and defendant
respectively), was legal and fair.
Firstly,
the case of Care International Zambia Limited v Misheck Tembo is a Supreme
Court appeal judgment whose grounds of appeal were that; the Court below erred
in law and in fact when it concluded and held, at page JlO of the judgment,
that the Respondent's dismissal was unfair and wrongful as the Appellant
followed the proper and/ or fair procedure before dismissing the Respondent.
The Court below erred in law and in fact when it awarded the Respondent, at
page Jl 1 of the judgment, 24 months' salary as compensatory damages for loss
of employment. The Court below erred in law and in fact when it awarded the
Respondent, at page Jl 1 of the judgment, 6 months' salary as compensation for
mental torture, distress and embarrassment." The Supreme Court in sum held
that the appeal succeeds on all the grounds of appeal and costs to be handled
by each party. This is a right as per s97,[3]
that any person aggrieved by any award, declaration, decision or judgment of
the Court may appeal to the Supreme Court on any point of law or any point of
mixed law and fact.
Secondly, the general rule is that an employer must have a valid reason to terminate or dismiss an employee. However, there are exceptions to this rule, which vary depending on the jurisdiction. An employee is a person who in return for wages or commission enters into a contract of employment and includes a casual employee, under an apprenticeship but not an independent contractor or one doing a piece work. To the contrary, an employer is one having authority over the employed this is as per s3 of The Employment code Act.[4] The Constitution of Zambia (Amendment) Act, 2016, on Article 187 (1) states that an employee also includes a public officer and constitutional office holder.[5] Section 49 of the Employment Code Act No. 3 of 2019 (Herein ECA) provides for the dismissal of an employee that where an employer reasonably believes that an employee has breached the employer’s disciplinary rules and the employer decides to suspend the employee, the suspension shall be done in accordance with the disciplinary rules applicable to the employee.[6] And, these rules had been followed by the appellants for once the defendant was accused by the appellant of having been abusing his position to intimidate female employees, making unwelcome amorous advances to such female employees or seeking their sexual favours and inviting them to his hotel rooms. The respondent was also accused of having been using his position in the appellant organization to terrorize his fellow employees on the pretext that he held the key to their job security. Next, the defendant was duly charged and subjected to a disciplinary committee. Meanwhile, it is not the employer’s responsibility to prove beyond all reasonable doubt that an offence was committed.[7]
In
Redrilza Limited v. Abuid Nkazi dismissal has been said to deal or involves loss
of employment arising from disciplinary action.[8]
Meanwhile, s50 (1) (a) of ECA provides that where an employee is guilty of
gross misconduct inconsistent with the express or implied conditions of the
contract of employment; their contract of employment shall be summarily
dismissed. In his reasoning the sitting Judge referred to the case of Undi
Phiri v. Bank of Zambia,[9]
were it was noted that "Where it is not in dispute that an employee has committed
an offence for which the appropriate punishment is dismissal, but the employer
dismisses him without following the procedure prior to the dismissal laid down
in a contract of service, no injustice is done to the employee by such failure
to follow the procedure and he has no claim on that ground either for wrongful
dismissal or for a declaration that the dismissal was a nullity. The defendant
had clearly agreed that he was indeed fraternizing with the female employees
outside work hours even the marred woman whose husband complained this shows
that he would still do it forcefully during work hours through his official
authority.
Finally, this paper agrees with the ratio and/or
reasoning undertaken by the supreme court to rule in favour of the appellant
because it has been proven that the defendant is guilty and the lower court’s
reasoning as well as the disciplinary committee had fairly heard and subjected
the defendant to a hearing. The law has clearly made misconduct as a legal
ground for dismissal by the employer.
[1]
Chanda Chungu and Ernest Beele Labour Law in Zambia: An Introduction,
(Second Edition 2019) p. 2
[2] Care International Zambia Limited v
Misheck Tembo (Appeal 57 of 2016) 2018 ZMSC 378 (10 December 2018)
[3]
Industrial And Labour Relations Act chapter 269, s97.
[4]
Employment code Act No.3 of 2019, s3.
[5]
Constitution Amendment Act No.2 of 2016.Art 187.
[6]
Chanda Chungu and Ernest Beele Labour Law in Zambia: An Introduction,
(Second Edition 2019) p. 32
[7]
Chimanga change limited v Stephen chipango Ngombe (2010) 1 Z.R 394.
[8]
Redriza limited v Aduib Nkazi (2011) Vol. 1 Z.R. 394.
[9]
Undi Phiri v Bank of Zambia (2007)
Z.R 186.
