Dispute Resolution and

Remedies
1
Chanda Chungu
University of Lusaka
2 Labour Office
 Where a dispute has been referred to the authorised officer, the officer shall, according to
Section 121(2) of the Employment Code Act take steps that the authorised officer may
consider to be expedient to effect a settlement between the parties and, in particular, shall
encourage the use of collective bargaining facilities, where applicable; and where an
authorised officer fails to effect a settlement between the parties, the authorised officer
may recommend that the aggrieved party refers the matter to court.
 The power which labour officers have been given to take any steps they see as expedient to
settle a dispute is a very powerful one. The authorised officers can use this power in the
Act to approach an employer and negotiate or issue written undertakings to an employer
where they have reasonable grounds to believe, based on the complaint received, that the
employer is not complying with the law or any agreed terms of the contract or collective
agreement.
3 Courts
 Employment disputes in Zambia can be commenced either in the High Court, Principal
Division or the Industrial Relations Division. In some cases, the subordinate courts can
hear employment matters.
 The Principal Division has original and unlimited jurisdiction in all matters but the
Industrial Relations Division has original and exclusive jurisdiction in all industrial
relations matters.
 In employment matters, court action before the Industrial Relations Court is commenced
by the aggrieved employee filing a notice of complaint and an affidavit in support of the
notice of complaint within 90 days of exhausting internal administrative channels
 The Industrial Relations Court shall not be bound by the rules of evidence in civil or
criminal proceedings, but the main object of the Court shall be to do substantial justice
between the parties before it.
4 Courts
 An award, declaration, decision or judgment of the Industrial Relations Court on any
matter referred to it for its decision or on any matter falling within its exclusive jurisdiction
shall, subject to Section ninety-seven, be binding on the parties to the matter and on any
parties affected.
 Example of cases where this rule was employed are the three Indo-Zambia Bank cases
relating to gratuity for fixed-term employees. In Indo Zambia Bank v. Mushaukwa
Muhanga, an employee on a fixed term contract was awarded gratuity due to the wording
in the employment contracts. It had been the intention of the employer to only give gratuity
to a certain class of employees but the contract was drafted carelessly and the Court
awarded the benefit to the employee. In the subsequent cases Indo Zambia Limited v. Boaz
Kadochi Chinkamba and Indo Zambia Bank v. Christine Banda, the Supreme Court held
that the employees in both cases were similarly circumstanced and the earlier judgment
should apply to the subsequent employees as well. The Court was of the view that the
employer should not get away with fraudulently concealing a benefit from a previous
judgment that could be applied to subsequent employees in the same situation.
5 Remedies
 Section 85A of the Industrial Relations Act provides that:
 Where the Court finds that the complaint or application presented to it is justified and
reasonable, the Court shall grant such remedy as it considers just and equitable and may -
 award the complainant or applicant damages or compensation for loss of employment;
 make an order for reinstatement, re-employment or re-engagement;
 deem the complainant or applicant as retired, retrenched or redundant; or
 make any other order or award as the court may consider fit in the circumstances of the case.
 The Industrial Relations Court (now a Division of the High Court) is empowered by
Section 85A of the Industrial and Labour Relations Act to grant a remedy which it
considers to be just and equitable in the circumstances of the case. The court has the power
to order reinstatement, re-employment or re-engagement and/or damages or compensation
for loss of employment.
6 Reinstatement
 Reinstatement occurs where the employer places the employee in the same position or
capacity that he held prior to the dismissal, under the same contract of employment. In
Rainward Mubanga v. Zambia Tanzania Road Services Limited and Nyambe Luywa v. The
Council of the University of Zambia, the court held that where there has been a purported
termination of a contract of service, a declaration to the effect that the contract of service
still subsists or reinstatement will rarely be granted by a court. In Francis v Municipal
Councillors of Kuala Lumpur, the Privy Council held as follows:
.... When there has been a purported termination of a contract of service a declaration to the effect
that the contract of service still subsists will rarely be made. This is a consequence of the general
principle of law that the courts will not grant specific performance of contracts of service. Special
circumstances will be required before such a declaration is made and its making will normally be in
the discretion of the court...
 Reinstatement is very rarely awarded because, as the court in Contract Haulage Limited v.
Mumbuwa Kamayoyo stated:
In a pure master and servant relationship there cannot be specific performance of a contract of service
and the master can terminate the contract with his servant at any time and for any reason or for none;
if he does so in a manner not warranted by the contract, he must pay damages for breach of contract.
7 Reinstatement
 In Bank of Zambia v. Joseph Kasonde, the Supreme Court, per Chaila JS., held It is trite
law that the remedy of reinstatement is granted sparingly, with great care and jealously
and with extreme caution.
 It can be gleaned from the Mumbuwa Kamayoyo and Joseph Kasonde cases that the reason
why the courts grant the remedy of reinstatement sparingly is because the common law has
been very reluctant to enforce contract of employment remedies which require the contract
to continue, namely specific performance and injunctions. (1987) ZR 43 (SC).
 Damages are often adequate as a remedy, and it is a general rule of contract that where this
is the case, then the equitable remedies of specific performance in the form of
reinstatement should not be considered.
 Apart from specific performance being avoided to enforce breaches of contracts of
employment, the Supreme Court in Martin Nguvulu and 34 Others v. Marasa Holdings
Limited (t/a Hotel Inter-Continental Lusaka), underscored further reasons why this remedy
is rarely granted. The Supreme Court held because of the far-reaching consequences
reinstatement has on the relations of the parties, as well as the financial implications it
carries, it is a remedy that is rarely and exceptionally granted.
8 Re-Employment/Re-engagement
 In terms of sections 85 A (b) and 108 (3) (b) of the Industrial and Labour Relations Act, the
court can order re-employment or re-engagement depending on the gravity of the offence.
While the Industrial and Labour Relations Act refers to both re-employment and reengagement,
they refer to the same concept.
 An order for re-employment or re-engagement entails the employer re-hiring the employee but
in a different capacity and with a different contract of employment. An order for re-employment
involves the employer taking back the employee into employment on comparable or better
terms to those which the employee had prior to the dismissal, so far as they are reasonably
practicable and as favourable as if he has been reinstated.
 The Supreme Court in Martin Nguvulu and 34 Others v. Marasa Holdings Limited (t/a Hotel
InterContinental Lusaka), stated that re-engagement should only be granted after the court has
considered the express wishes and desire of the employee and where it is practicable for the
employer. The court emphasised that this remedy should only be granted if the employer has a
suitable role for the employee in its organisation and the details of the nature of the
employment must be apparent to the court before re-engagement is granted.
9 Damages
 According to the Supreme Court in Finance Bank Zambia Limited and Another v. Simataa
Simataa, damages in the law of contract are awarded for the purpose of putting the innocent
party in the position in which he would have been had the contractual obligations been
performed. Damages are payable in the case of breach of contract of employment in much the
same way as they are payable in other cases of breach of contract. This was the position taken
by the Supreme Court in an earlier case of Zambia National Building Society v. Ernest
Mukwamataba Nayunda where it held:
 The essence of damages has always been that the injured party should be put as far as monetary
compensation can go in about the same position he would have been, had he not been injured. He
should not be in a prejudiced position nor be unjustly enriched.
 The Supreme Court has held on multifarious occasions that the normal measure of damages is
based on the notice period required under the contract of employment.
10 Damages
 Having established that the normal measure of damages in employment law is the notice
period, it is imperative to examine what happens where the contract of employment expressly
provides that all benefits under the contract shall be paid as if the contract had been fulfilled.
 based on the Alisand Singogo and Reggie Ephraim Zimba cases, the position in Zambia is that
the courts do not ordinarily permit the payment of all monetary benefits for an unexpired
contract of employment even where a contract expressly stipulates that all salary and benefits
will be payable. This is so even when the employer cancels the contract prematurely.
11 Mitigating the loss
 It is important to note that when courts award damages, they do so in a bid to ensure
substantial justice for both parties. This means they will only award the greatest possible loss an
employee would face. This is because a dismissed employee is under a duty to mitigate against
the loss of employment, as far as possible.
 The principle of mitigating one’s loss entails taking reasonable action to minimise or reduce the
amount of loss when you have suffered loss from breach of contract or unfair conduct. Put
simply, mitigating loss, means lessening or diminishing the effects and gravity of a serious or
severe action.
 Caroline Tomaidah Daka v Zambia National Commercial Bank Limited Plc., 2008/HP/0846
 Mitigation of loss entails seeking alternative employment within a reasonable period after the
dismissal or finding another source of income in the intervening period which will then be
deducted from the loss suffered and damages to be paid. in Agholor v Cheeseborough Ponds (Z)
Ltd, the High Court stated that the securing of new employment by an employee would have
the effect of minimising damages. Zambia Airways Corporation Limited v Gershom BB
Mubanga, SCZ Judgment No. 5 of 1992.
12 Enhanced Damages
 In Zambia, in special and deserving cases, the courts have held that the normal measure of
damages for wrongful or unfair dismissal will be departed from where the termination had
aggravating factors such as being inflicted in a traumatic fashion which causes the employee
undue distress or mental suffering. In such cases damages for mental distress and inconvenience
may be recovered in an action for breach of contract.
 The Supreme Court in Attorney General v. John Tembo, and First Quantum Mining and
Operations Limited v Obby Yendamoh has held that the maximum amount an employee could
receive for unfair dismissal would be 36 months’ pay as damages provided that such an
employee proves the following:-
 that his/her employment was terminated in in traumatic fashion;
 was the result of the blatant infringement and/or disregard of their rights, the rules of natural justice and/or their
contract of employment;
 caused mental anguish, inconvenience and stress; and
 the employee’s future job prospects and the economy when awarding these damages.
13 Back Pay or Additional Remedies
 What is patent from section 85A of the Industrial and Labour Relations Act is that the Court
may award a remedy that is just and equitable as well as any one of the four remedies listed in
(a)-(d). This means that if the Industrial Relations Division finds the employee’s case to be
justified and reasonable, the court may award more than one remedy. Section 85A in other
words, makes it mandatory for the Court to award a remedy where the circumstances warrant it
and then further provides that the Court may also award an additional remedy of either damages
or compensation, re-instatement, re-employment or re-engagement, deem the employee to be
retired, retrenched or redundant or make an award as they consider fit.
 This means that theoretically, if the Court finds it just and equitable to award reinstatement for
example, it shall award it and in addition to that remedy, it may also award damages or
compensation for loss of employment. Based on this, it is clear that there is a clear conflict
between sections 85A and 108(3) of the Industrial Relations Act. Section 85A permits the court
to award more than one remedy for all employment cases, whilst Section 108 (3) only permits
the court to award one remedy in cases of discrimination. Such ambiguity causes confusion as
to whether or not reinstatement and compensation can be awarded on the same set of facts.