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THE UNIVERSITY OF ZAMBIA

INSTITUTE OF DISTANCE EDUCATION (IDE)

BACHELOR OF LAWS (LLB)

LPR 3115 EMPLOYMENT LAW


DRAFT MODULE 2021

Year 3

MR. CHRISPIN MIZINGA HAMPUNGANI


(LLM, LLB, LPC, Dip.Ed, HSK1)

LPR3115 EMPLOYMENT LAW DRAFT MODULE 2021 – Mr. Chrispin Mizinga Hampungani Page i

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TABLE OF CONTENTS

1.0 INTRODUCTION .................................................................................................................... 4


1.1 MODULE AIM ......................................................................................................................... 4
1.2 OBJECTIVES ........................................................................................................................... 4
1.3 ASSESSMENT DETAILS ....................................................................................................... 4
1.4 READINGS ............................................................................................................................... 5
Prescribed Reading .......................................................................................................................... 5
Recommended Reading.................................................................................................................... 5
1.5 TIME FRAME ................................................................................................................................ 6
1.6 STUDY SKILLS ............................................................................................................................. 6
1.7 NEED HELP? ................................................................................................................................. 6
2.0 UNIT ONE: THE CONTRACT OF EMPLOYMENT ......................................................... 7
2.1 INTRODUCTION ...................................................................................................................... 7
2.2 AIM .............................................................................................................................................. 7
2.3 OBJECTIVES ............................................................................................................................. 7
2.4 TIME REQUIRED ..................................................................................................................... 7
2.5 REFLECTION............................................................................................................................ 7
2.6 Sources of employment law ......................................................................................................... 8
2.7 The contract of employment: contractual basis of the employment relationship ...................... 9
2.7.1 Types of employment contracts under the Employment Act ................................................. 10
2.7.2 Written contracts ................................................................................................................ 10
2.7.3 Oral contracts ...................................................................................................................... 12
2.8 Contract of service and contract for services. ............................................................................ 13
2.8.1 Mutuality of obligation test ................................................................................................. 14
2.8.2 Personal performance test .................................................................................................. 14
2.8.3 Entrepreneurial test ............................................................................................................ 15
2.8.4 Sufficient control test .......................................................................................................... 15
2.8.5 Integration/Organisational Test .......................................................................................... 16
2.8.6 Multifactorial/ Multiple (economic reality) or Mixed Test.................................................. 17
2.8.7 Importance of the distinction .............................................................................................. 18
2.10 SUMMARY ............................................................................................................................. 21
3.0 UNIT TWO: FORMATION OF THE EMPLOYMENT CONTRACT............................ 22
3.1 INTRODUCTION .................................................................................................................... 22

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3.2 AIM ............................................................................................................................................ 22


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3.3 OBJECTIVES ........................................................................................................................... 22


3.4 TIME REQUIRED ................................................................................................................... 22
3.5 REFLECTION.......................................................................................................................... 22
3.6 FORMATION OF THE CONTRACT ................................................................................... 23
3.6.1 Express Terms of the contract ............................................................................................. 24
3.6.2 Implied terms of the contract.............................................................................................. 26
3.6.3 Terms implied by Statutes ................................................................................................... 26
3.7.1 Duties of Employees ............................................................................................................ 27
3.7.2 Common law Duties of Employers ...................................................................................... 28
3.7.3 Statutory Duties of Employers............................................................................................. 29
3.9 SUMMARY ............................................................................................................................... 34
4.0 UNIT THREE: DISCRIMINATION IN EMPLOYMENT ................................................ 35
4.1 INTRODUCTION .................................................................................................................... 35
4.2 AIM ............................................................................................................................................ 35
4.3 OBJECTIVES ........................................................................................................................... 35
4.4 TIME REQUIRED ................................................................................................................... 35
4.5 REFLECTION.......................................................................................................................... 35
4.6 DISCRIMINATION IN EMPLOYMENT ............................................................................. 36
4.6.1 Discrimination on the basis of sex and marital status ......................................................... 39
4.6.2 Discrimination on the basis of political affiliation ............................................................... 40
4.6.3 Discrimination on the basis of social status ........................................................................ 40
4.6.4 Other forms of discrimination (race, religion, tribe, disability) ........................................... 41
4.7 ACTIVITIES ............................................................................................................................ 42
4.8 SUMMARY............................................................................................................................... 42
5.0 UNIT FOUR: MINIMUM STANDARDS AND CONDITIONS OF EMPLOYMENT
Error! Bookmark not defined.
5.1 INTRODUCTION ....................................................................... Error! Bookmark not defined.
5.2 AIM ............................................................................................... Error! Bookmark not defined.
5.3 OBJECTIVES .............................................................................. Error! Bookmark not defined.
5.4 TIME REQUIRED ...................................................................... Error! Bookmark not defined.
5.5 REFLECTION............................................................................. Error! Bookmark not defined.
6.0 UNIT FIVE: TERMINATION OF THE EMPLOYMENT CONTRACT ........................ 46
REMEDIES FOR TERMINATION OF EMPLOYMENT..................................................................57

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7.0 UNIT SIX: SAFETY AT PLACES OF WORK ...................................................................... 570


7.1 INTRODUCTION .................................................................................................................. 570
7.2 AIM .......................................................................................................................................... 570
7.3 OBJECTIVES ......................................................................................................................... 570
7.4 TIME REQUIRED ................................................................................................................. 570
7.5 REFLECTION........................................................................................................................ 571
7.6 SAFETY AT PLACES OF WORK ...................................................................................... 582
UNIT 7: INDUSTRIAL RELATIONS COURT AND ITS JURISDICTION ........................................................ 67

UNIT 8: TRADE UNIONS IN ZAMBIA AND THE ZAMBIAN LABOUR LAW .............................................. 73

UNIT 9: THEORETICAL APPROACHES TO EMPLOYMENT AND INDUSTRIAL RELATIONS ......................84

UNIT 10: INTERNATIONAL LABOUR ORGANISATION AND LABOUR REGULATION .............................. 88

BIBILIOGRAPHY .................................................................................................................................... 91

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1.0 INTRODUCTION
This module seeks to foster an understanding regarding the nature and scope of
Employment Law in Zambia. This is the core of any country as all of us, are involved
in work relations in one way or another; directly or indirectly.

1.1 MODULE AIM


This module is aimed at introducing students to the formation, terms and termination
of contracts of employment. It also looks at other issues such as discrimination,
minimum standards, safety and health in employment.

1.2 OBJECTIVES

By the end of the course, students should be able to:

 Demonstrate knowledge of the key concepts of the contract of employment,

 Discuss various statutes regulating the contracts of employment,

 Understand the issues of discrimination, minimum standards, safety and health at places
of work,

 Analyze the aspect of termination of employment contracts and the remedies available
and

 Evaluate cases dealing with employment disputes.

1.3 ASSESSMENT DETAILS


You will be assessed as follows:-

Continuous Assessment: 40 %
Comprising of:
 1 Test 10 %

 2 Assignments 30 %
Final examination 60 %
Total 100%

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1.4 READINGS

Prescribed Reading

1. Mwenda, W.S., (2011). Employment Law in Zambia, Revised Edition,


Lusaka: UNZA Press.

2. Emir, Astra (2012). Selwyn‟s Law of Employment, 17th Edition, UK: OUP.

3. Selwyn, N.M., (1982). Selwyn‟s Law of Employment, 4th Edition, London: Butterworths.

Recommended Reading
Books

1. Freund, O., (1977), Labour and the Law, 2nd Edition, London: Stevens
2. Smith, T.S., and Wood, J.C., (1983), Industrial Law, 2nd Edition, London:
Butterworths.
3. Farnham D. et al, (1988), Understanding Industrial Relations, 3rd Edition, London:
Cassel Educational Ltd.

Acts of Parliament

1. The Constitution of Zambia, Chapter 1 of the Laws of Zambia


2. The Employment Code Act No.3 of 2019 which repealed (Employment Act, Chapter 268
of the Laws of Zambia; Employment (Amendment) Act, No. 15 of 1997; Employment
(Amendment) Act, No. 15 of 2015; Employment of Young Persons and Children Act,
Chapter 274 of the Laws of Zambia; Employment of Young Persons and Children
(Amendment) Act No. 10 of 2004; The Employment (Special Provisions) Act 1966; The
Minimum Wages and Conditions of Employment Act, 1982 with its amendments)
3. Industrial and Labour Relations Act, Chapter 269 of the laws of Zambia.
4. The Factories Act Cap 441 of the Laws of Zambia, 1967
5. The Workers Compensation Act Chapter 271 of the Laws of Zambia
6. The National Pension Scheme Authority Act Chapter 256 of the Laws of Zambia
7. Gender Equity and Equality Act No. 22 of 2015
8. Occupational Health and Safety Act (OHASA) No. 36 of 2010

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1.5 TIME FRAME


To successfully complete this course, you will need a minimum of 60 hours. You
are expected to spend studying this module and attempting the activities. You also
need to allocate time to study both the prescribed and recommended materials.

 Study time for module materials – 36 hours


 Exercises – 12 hours
 Additional study materials – 12 hours

1.6 STUDY SKILLS

For you to be able to successfully complete this module, you will need to do the
following:

 Read the module and all the prescribed and recommended readings and cases. In
addition, attempt the activities at the end of each Unit.

1.7 NEED HELP?

If you need help on the module, please use the following contacts:

Course Lecturer on the email/numbers given by the Class Representative.

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2.0 UNIT ONE: THE CONTRACT OF EMPLOYMENT

2.1 INTRODUCTION
This unit examines the nature and types of employment contracts and the sources of
employment law in Zambia.

2.2 AIM

The aim of this unit is to enhance your understanding of the contractual basis of the
employment relationship, types of employment contracts, and the sources of
employment law.

2.3 OBJECTIVES

At the end of this unit you should be able to do the following:-

 Explain the nature of employment contracts,


 Identify the different types of employment contracts,
 Understand the types of employment contracts provided for by the Employment Act,
Chapter 268 of the Laws of Zambia and Employment Code Act 2019
 Discuss the sources of employment law in Zambia.

2.4 TIME REQUIRED


You are advised to spend at least 10 hours on this unit. 6 hours to study the unit and
4 hours to read the supplementary materials and attempt the questions at the end of
the unit.

2.5 REFLECTION

How can you distinguish between an employer and an employee?

Answer:- Employees are engaged in contracts to perform duties for which they are paid. The
Employer is responsible for assigning those duties which an employee must perform and the
employee is paid by the employer.

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2.6 Sources of employment law


The sources of employment and labour law in Zambia are:
(a) The Constitution of Zambia
This is the supreme law of the land and any other law inconsistent with the Constitution is null
and void, as per Article 1 (1)(2) of the Constitution Chapter 1 of the Laws of Zambia. It
provides:
1. (1) This Constitution is the supreme law of the Republic of Zambia and any
other written law, customary law and customary practice that is inconsistent with
its provisions is void to the extent of the inconsistency.
(2) An act or omission that contravenes this Constitution is illegal.
Further Article 23(2) provides that no person shall be treated in a discriminatory manner by any
person acting by virtue of any written law or in the performance of the functions of any public
office or any public authority. This includes employees, as are part of „persons‟ that Constitution
seeks to protect.
Article 23(3) defines discriminatory behaviour, which is prohibited in our labour laws
“discriminatory” mean, affording different treatment to different persons attributable, wholly or
mainly to their respective descriptions by race, tribe, sex, place of origin, marital status, political
opinions colour or creed whereby persons of one such description are subjected to disabilities or
restrictions to which persons of another such description are not made subject or are accorded
privileges or advantages which are not accorded to persons of another such description.
Article 133 (2) of the Constitution of Zambia (Amendment) Act No. 2 of 2016 establishes the
Industrial Relations Court, a Division of the High Court which has which is vested with original
and exclusive jurisdiction to hear and determine any labour-related matter.

(b) English Common law, as per English Law (Extent of Application) Act, Cap 11 Vol. 2 of the
Laws of Zambia which states that „Subject to the provisions of the Constitution and to any other
written law, the common law;…shall be in force in the Republic.‟
Thus English Common Law and the doctrines of equity are applicable in Zambia as inherited law
from our former colonial masters, the United Kingdom. The statutes that were in force in
England on 17th August, 1911, as well as Northern Rhodesia Order in Council, 1911 and the

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British Acts (Extension) Act, Chapter 10, Volume 2 of the Laws of Zambia, which statutes
passed after 17th August 1911, are contained in the schedule and still applicable in Zambia.

(c) Judicial Precedents - That is, employment related decisions of the Superior Courts such as
the High Court, Court of Appeal, Constitutional Court and the Supreme Court which are binding
on lower courts.

(d) Legislation - Legislation includes Statutes/ Acts of Parliament like The Employment Code
Act No. 3 of 2019, The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia,
The Factories Act, Workers Compensation Act, National Pension Scheme Authority, Gender
Equity and Equality Act No. 22 of 2015, etc and delegated legislation such as Statutory
Instruments, and bye laws relating to employment.

(e) International Law – Zambia is a member of many international organisations such as the
United Nations, African Union, SADC, etc which do not only encourage promotion of trade,
integration of nations, but also the rights of employees. Zambia is a signatory to the International
Labour Organisation (ILO) 1982 Convention on Termination of Employment No. 158, whose
purpose is to coordinate minimum levels of job security in the laws of the member states.

2.7 The contract of employment: contractual basis of the employment relationship


The employment relationship arises when one person (the employee) supplies skill and labour to
another (the employer) in return for payment. This may be for a fixed or indefinite period or for
the completion of a particular job. The parties to an employment contract are defined as the
"employee", meaning, “a person who, in return for wages, enters into a contract of service
whether on full time, part time or temporary basis or who is engaged to do casual work...”1 and
the "employer" defined as any person, or any firm, corporation or company, public authority or
body of persons who or which has entered into a contract of service to employ any person, and
includes any agent, representative, foreman or manager of such person, firm, corporation,
company, public authority or body of persons who is placed in authority over such person
employed.

1
Employment Code, Act No.3 of 2019

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An employment contract is like any other contractual relationship in the sense that the rules of
the law of contract apply. In order to be valid, there must be agreement; which is made of an
offer and acceptance; consideration, being the price for the promise and the intention to create
legal relations. In a contract of employment, the following therefore happens; the employer
offers employment which the employee accepts. The two parties agree on consideration which is
in the form of the remuneration package provided by the employer in return for the work of the
employee. Employment contracts are agreements in which the parties are presumed to intend to
create legal relations.

2.7.1 Types of employment contracts under the Employment Act


As is the case with contracts generally, a contract of employment does not usually need to be in
writing in order to be enforceable. It can be either express or implied. If express, it can be either
oral or written.2 A valid contract of employment is made when there is agreement on essential
terms such as hours and wages. The Employment Code 2019 provides for two (2) types of
employment contracts, i.e. written and oral.

2.7.2 Written contracts


In order to partially deal with the difficulty in identifying the terms of an employment contract,
the Section 22 (1) of the Employment Code 2019 states that a written contract of employment is
one which is made for a period of or exceeding six months or for a number of working days
equivalent to six months or more; or a contract of foreign service, or when someone is to perform
personally some specific work which could not reasonably be expected to be completed within
six months or within a number of working days equivalent to six months from the start of the
work.
A written contract of service made under the provisions of the Employment Code [Section 25]
shall not be enforceable unless it bears an attestation3 under the hand of a proper officer to the
effect that such contract was read over and explained to the employee in the presence of such
officer and was entered into by the employee voluntarily and with the full understanding of its
meaning. Provided that where the parties to a contract of service which has not been attested in
accordance with the provisions of the EA are literate and entered into the contract in good faith,
2
Op. Cit, Mwenda 2011: 28
3
To bear witness that the employee has fully understood and therefore freely consents to the employment
contract. This is necessary in order to ensure that the employee does not enter into an employment contract by
coercion, undue influence, misrepresentation or mistake.

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such contract shall be enforceable as if it had been attested. The employment contract once
attested is binding on the employer and employee only. A written contract of service shall not be
binding on the family of an employee.
The Code outlines the information which must be included in a written employment contract. To
be included are such items as:-
 The names of the parties, i. e. employer and employee
 name of the business or undertaking in which the employee is to be employed
 the place of engagement and, where applicable, the place of origin of the employee and
any other particulars necessary for his identification
 date of starting work and the duration of the contract of service
 the place at which, or the geographical limits within which, any work under the contract
is to be performed
 rate of remuneration and, if applicable, particulars of any food to be provided under the
contract or of any cash equivalent of any such food
 an undertaking by the employer to pay the wages of the employee monthly or at shorter
period
 the nature of the employment, including working hours and tasks where applicable and
practical, and the general operations involved and such additional details as may be
necessary to make it clear to the employee the nature of the work for which he contracts
 in the case of a contract of foreign service or contract of service entered into by an
employment agency on behalf of an employer with an employee, an undertaking by the
employer or employment agency, as the case may be, to provide the employee with
sufficient means of subsistence to proceed to the place of employment and to pay the
expenses of repatriating the employees
 holidays and holiday pay entitlement
 sick leave and sick pay entitlements
 pension entitlements and schemes (if any)
 length of notice
 title of job and brief job description
 disciplinary rules and grievance procedures and

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 details of any collective agreement which applies to the contract.


If there is a change in any of the particulars listed above and which are required to be included in
the written contract, the employer must obtain consent from the employee, regarding the
changes, and must give the employee a written statement containing details of the change.
Varying of terms in an employment contract is discussed in detail later in this module.

2.7.3 Oral Contracts


All contracts of service, other than contracts which are required by the Employment Code or any
other law to be made in writing, may be made orally. Meaning that, apart from contracts which
must be in writing, others may be made orally. In the absence of any agreement to the contrary,
an oral contract shall be deemed to be a contract for the period by reference to which wages are
calculated, for example, where wages are calculated weekly, any such oral contract shall be
deemed to be a weekly contract.
Regardless of being known as an oral contract, the employer is required to prepare and maintain
at their expense, or cause to be prepared and maintained, a record of contract for every employee
employed by them under an oral contract of service.4 The Code states that a record of contract
shall be in the prescribed form and shall contain the following particulars:-
(a) the name and sex of the employee and their nationality;
(b) the name, address and occupation of the employer;
(c) the date of the employee's engagement and the capacity in which they are to be
employed;
(d) the type of contract;
(e) the place of engagement;
(f) the rate of wages and any additional payments in kind and
(g) the intervals of payment.
Such a record of contract must be prepared in duplicate and one copy be given to the employee at
the time of his engagement and the other copy to be retained by the employer. An employer, who
fails to prepare or cause to be prepared such record or fails to issue a copy of a record of contract
to the employee concerned, shall be guilty of an offence. In addition, where any dispute arises as
to the terms and conditions of an oral contract, and the employer fails to produce a record of such
4
Employment Code, Section 18

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contract, the statement of the employee as to the nature of the terms and conditions shall be
receivable as evidence of such terms and conditions unless the employer satisfies the court to the
contrary.5

2.8 Contract of service and contract for services.


People can enter into contracts of employment either as an employees working under a contract
of employment or as self-employed persons. The self-employed are considered to be at arm‟s
length and are in an independent position or are in business on their own. Mwenda [2011:28]6
defines an employee as „an individual who has entered into, or works under a contract of
employment whereas a self-employed individual or independent contractor works under a
contract for services.‟ The Code, as earlier stated, defines an employee as “a person who, in
return for wages, enters into a contract of service whether on full time, part time or temporary
basis or who is engaged to do casual work, but does not include a person employed under a
contract of apprenticeship made in accordance with the Apprenticeship Act, an independent
contractor or a person engaged to do piece work”7
Under a contract of service, a person places his/her labour at the disposal of another and a
relationship is constituted which in past days was called „master and servant‟ whereas in a
contract for services, on the other hand, a person who operates an independent business agrees to
carry out a task for another and the relationship is that of employer and independent contractor.
For example, if Y wants to build a garage on his land, he has two courses open: he can employ a
bricklayer and other trades people under contracts of employment or he can entrust the work to a
builder/contractor as an independent contractor.
The basic division therefore is between who are employed persons and those who are self-
employed, and the distinction between these categories is that the employed person works under
a contract of service, whereas the self-employed person works under a contract for services. It is
easy to state this distinction, but in practice it has proved difficult to draw it, and over years, the
courts have developed a number of tests designed to produce a distinctive result.8

5
Ibid, Employment Code
6
Mwenda, Employment Law in Zambia, Revised Edition, Lusaka: UNZA Press
7
Employment Code
8
Emir, Astra (2012). Selwyn’s Law of Employment, 17th Edition, UK: OUP. p. 47

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When determining the two, the courts will look at the actual facts of a situation, not at the label
which the parties attach to it. The court will look at the reality of the situation, rather than the
form of the arrangement.

TESTS AS TO WHETHER ONE IS AN EMPLOYEE OR AN INDEPENDENT


CONTRACTOR
Case law gives guidance on how to distinguish between those in contract of service and those
serving under contract for services and the following tests have to be satisfied for there to be an
employment relationship:-
 There must be (a) mutuality of obligation, (b) sufficient control, (c) the work must be
personally performed and
 (d) The worker must not be in business for his own account

2.8.1 Mutuality of obligation test


In an employment relationship, both parties must be under an irreducible minimum of obligation.
This must amount to one party providing work usually for remuneration and the other (employer)
providing the work to be done and payments for the same. An absence of mutual obligations on
both parties will defeat the creation of the contract of employment. For example, people who
perform work at home may be classed as employees so long as there is an element of continuing
mutual contractual obligation.9
It is important to consider the nature of the mutuality of obligations in order to determine
whether a contract of employment has been formed. The focus must be as to whether there is
some obligation on an individual to perform work and some obligation on the employer to pay
for it. This indicates the existence of a contract of employment, which is the „work/wage‟
bargain.10

2.8.2 Personal performance test


One party must personally perform the work required meaning that a person must perform
his/her contract in person. However, personal performance does not necessarily always indicate
that an individual is employed. Where a person can choose to perform their contracts by sending
someone else in their place, this will not satisfy this requirement. In such circumstances, the

9
McCleod v Hellyer Bros [1987] IRLR 232
10
FL Memo (2009). Employment Law and Practice, London: FL Memo. p. 36

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person need never perform the contract personally and therefore cannot be employed under a
contract of service as illustrated in the case of Ready-Mixed Concrete (South East) Ltd v Minister
of Pensions and National Insurance in which an independent contractor appeared as if he was an
employee, but it was held that because he was able to delegate his work, he was therefore not an
employee but an independent contractor.11

2.8.3 Entrepreneurial test


For a person to be an employee they must show that they are not in business for their own
account. The question to be asked is; „are they in business on their own account?‟ No exhaustive
considerations can be formulated, but the following can be taken into account. Do they provide
their own equipment? Do they hire their own helpers? Is there any degree of financial
responsibility for investment or degree of risk? Do they undertake any other sort of commission,
business or employment? Is there any opportunity to profit from sound management?
Some of these questions were raised in Market Investigations Ltd v Minister of Social Security,12
where a company employed women on part-time basis to do market research. They could work
as they chose, but according to a set pattern. It was held that the women were employees and not
employed in business „on their own‟. The more unskilled and untrained a person is, the less
likely it will be that they are running their own business.

2.8.4 Sufficient control test


This has been the test perhaps most frequently relied on by the courts, and is one of the main
factors considered. Control means that the employer has the right to tell the other party to the
contract, the employee, not only "what" to do but "how" to do it and when to do it. In other
words, he/she controls not only the "ends" but the "means". The general rule is that wherever this
type of control exists, the person thus controlled is an employee.
In our present society, however, the control test has been shown to have certain deficiencies, and
it is doubtful nowadays whether control or lack of control indicates conclusively whether a
contract of employment exists. Industrial society today is totally different from the society which
existed when the control test was first formulated, since nowadays the employer very rarely has
the exact skill and knowledge of his/her employees. It is very difficult to say that employers can
control the work of employees who may have skills which that employer lacks. For example, can

11
[1968] 2QB 497
12
[1969] 2QB173

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the hospital authorities or administrators control the work of a doctor, or a local authority
administrator controlling the actions of a surveyor?
This was shown very clearly in Cassidy v. Minister of Health.13 This case solved many of the
problems relating to skilled people. Although the employer could not control the actions of the
doctor in the strict sense, the doctors and nurses concerned were permanently employed and
salaried members of the staff, and were subject to the standing orders of the employers; also the
employers were in a position to make rules concerning the organisation of the doctor's work. For
these reasons, the doctor was an employee, despite the lack of control in the old sense.
It is clear that the greater the degree of control which is exercisable by the employer, the more
likely it will be that the contract is one of service, but the greater the skill required for an
employee‟s work the less significant is control in determining whether the employee is under a
contract of service.14

2.8.5 Integration/Organisational Test


This test is indicative particularly in relation to skilled employees who are „integrated” into an
organisation or business in respect of whom the control test is inappropriate. This test suggests
that the individual is "part and parcel" of the employer's organisation. This idea was to some
extent suggested in Cassidy v. Minister of Health15, where the medical staff were on the
permanent establishment of the hospital and subject to the standing orders of the hospital.
Another example is the case of Beloff v Pressdam16 in which Beloff, a regular contributor to a
newspaper, had no regular hours, wrote for other newspapers, and had leave to write books.
However, she wrote regularly for Pressdam newspaper, was even an active member of the
editorial staff, attending regular meetings and taking part in editorial decisions. It was held that
she was an employee as her work was an integral part of the business.
A conclusion can be made therefore that the decisive test might be to consider whether „the
alleged servant forms part of the alleged master's organisation?" in order to decide the nature of
an employment contract in existence instead of sole dependence on the control element. Without
this assertion however, lack of control would indicate that an employee is not integrated into the
employers‟ organisation and therefore does not serve under a contract of employment but a

13
[1951] 2 KB 343
14
Op. Cit, Emir, p. 48
15
Op. Cit, [1951] 2 QB 343
16
[1973] 1 ALL ER 241

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contract for service. Referring again to the case of Cassidy v Minister of Health,17 where a
patient sued the Minister of Health for a poorly done operation on the wrist, and the
hospital/minister argued that the doctor was not their employee as they did not control how he
performed his duties. It was held that in such circumstances the proper test would be whether the
employer appointed the employee, selected him for his task and so integrated him into the
organization. If the patient had chosen the doctor, the Ministry would not have been liable as
employer. But here the Ministry (the hospital management) made the choice and so it was
vicariously liable.

2.8.6 Multifactorial/ Multiple (economic reality) or Mixed Test


Another and perhaps more logical test used today is one where the courts consider several
factors, and by weighing these various factors, decide whether the person is an employee. The
leading case here is that of Ready Mixed Concrete (South East) v Ministry of Pensions &
National Insurance18. The facts are that the driver of a special vehicle worked for one company
only in the delivery of liquid concrete to building sites. He provided his own vehicle (obtained
on hire purchase from the company) and was responsible for its maintenance and repair. He was
free to provide a substitute driver. The vehicle was painted in the company‟s colours and the
driver wore its uniform. He was paid gross amounts (no tax etc. deducted) on the basis of
mileage and quantity delivered as a self-employed contractor. The Ministry of Pensions sued the
company claiming that he was in fact an employee for whom the company should make the
employer‟s insurance contributions. It was held that in such cases the most important test is
whether the worker is working on his account. On these facts therefore, the driver was a self-
employed transport contractor and not an employee.
In the above case Mackenna held that a contract of service existed where:
 There must be agreement or mutuality of obligation between the parties for it to be an
employment contract. This means that the employee is obliged to carry out work for the
employer and the employer is obliged to provide that work and pay for it,
 The worker agrees either expressly or impliedly that their master can exercise control
over their performance and

17
Op. Cit, Emir, p. 54
18
Op. Cit, [1968] 2QB 497

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 There are other factors included in the contract that make it consistent with a contract of
service such as indicated below:
The following are the factors:-
 The contractual provisions and whether or not those provisions do represent the true
relationship between the parties as employer/employee,
 The duty of personal service and the opportunity to work for other employers,
 The provision of tools, equipment, instruments, etc. ,
 The arrangements for tax, national health insurance, sick pay,
 The degree of financial risk and the responsibility for investment and management and
the
In the same case, the fact that the drivers could appoint replacements for himself meant that he
was a contractor rather than an employee. No single factor, by itself, is conclusive, and all the
relevant circumstances must be taken into consideration.

2.8.7 Importance of the distinction


The distinction between those in employment (contracts of service) and those who are self-
employed (contracts for service) is significant for various reasons. The individual has to be
placed in the correct category in order to ascertain exactly what their rights and duties are.
According to Emir19, the individual's exact status will be important as regards social security,
taxation, liability, safety and health reasons. These categories are each discussed in the following
paragraphs.

2.8.7.1 Social security and tax reasons


For social security purposes, the contribution rates payable differ as between the employed and
the self-employed. In addition, there are differences in entitlement to benefits and statutory sick
pay. For taxation purposes, deductions must be made by an employer for income tax under pay
as you earn (PAYE) from salary paid to employees under a contract of service, whereas the self-
employed are directly responsible to the Zambia Revenue Authority (ZRA) and National Pension
Scheme Authority (NAPSA) for all due tax deductions and contributions. In addition employees
do not have to register for or charge value added tax (VAT) whereas a contractor may have to
register their business for VAT and charge VAT on services supplied.

19
Op. Cit, Emir. p. 54

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2.8.7.2 Liability reasons


The employer is generally vicariously liable for tortuous acts committed by their employees
during the course of their employment. But such liability is severely restricted in the case of a
contractor. Vicarious liability means assuming liability for the torts20 of others and arises because
of a relationship between the parties. According to Emir,21 if an employee commits a wrongful or
a tortuous act while executing their duties and the act or omission causes injury or damage to a
third party, the employer may be vicariously liable to compensate the injured third party. In order
for vicarious liability to be valid, it requires firstly that there be a relationship of employer and
employee, characterised by the features of a contract of service discussed earlier and secondly
that the employee‟s tort be committed during the course of their employment.
In general, according to tort law, an employer may not be pursued as liable for negligence on the
part of the independent contractor as they are not, essentially, their actual employee. There are
however exceptions to this general position of employers restriction of liability. For instance, if
the operation creates a hazard for users of the highway; if the operation is exceptionally risky; if
the duty is personal or if there is negligence in selecting a contractor and as a result the one
selected is not competent to do the work entrusted to them or if the operation is one for which
there is strict liability.22
Liability arises even in the following circumstances; if the employee disobeys orders as to how
they shall do their work, i. e the way the act is to be done is restricted; if, while engaged on their
duties, the employee does something for their own convenience, i. e. unauthorised ways of
performing contractual duties; if the act itself is forbidden meaning where an employer has
instructed their employee not to do a particular act, this does not restrict their liability if the
employee causes damage when doing the forbidden act.
However, if the employer allows the employee private use of the employer‟s vehicle for instance,
the employer is not liable for any accident which may occur. There is the same result when a
driver disobeys orders by giving a lift to a passenger who is then injured, because the employee

20
The word “Tort” appears to come from the Latin word meaning “twisted” or “turned aside”, and the Norman
French meaning "a wrong". A tort is a civil wrong that causes injury or damage.
21
Op. Cit, p. 321
22
These are instances in which the claimant can recover compensation for loss or damage without having to prove
fault, negligence or intention on the part of the defendant but simply because they are in possession of a
dangerous product, animal or weapon.

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acts outside their contractual duties. Equally an employer is not liable where an employee does
an act which is outside their contractual duties but for the benefit of the employer.
In addition, if the employee, acting in their normal course of employment, defrauds a third party
for their own advantage, or the employers benefit, the employer is still vicariously liable. Also if
the employee commits a criminal act that is sufficiently connected to their work (during the
course of employment), the employer is vicariously liable.
This may appear confusing; however, the best approach would be to take into account the ultra
or intra vires rules. Where an employer has specified or stated the limits of their activities and an
employee injures someone whilst acting within (i.e. intra vires) the defined limits or activities,
the company is liable. If the activity is however, beyond the confines of the limits (i.e. ultra
vires), the company will not be vicariously liable unless the employee has express authority from
management to perform the act.

2.8.7.3 Statutory reasons


The Employment Act,23 provides legislation which confers protection and benefits upon
employees under a contract of service by way of minimum periods of notice, remedies for unfair
dismissal and for redundancy payments. This employment protection is not available for
contractors
In addition, with reference to bankruptcy, should the employer go into liquidation or become
bankrupt, the employee under a contract of service has preferential rights as a creditor for
payment of outstanding salary and redundancy payments, up to a certain limit. A contractor is
treated as a non-preferential creditor.
2.9 ACTIVITIES

1. What is the distinction between a contract of service and a contract for service and
why is the distinction important?

2. To establish whether or not there is an employment relationship, tests are used. State and
briefly explain the types of tests used.
3. Explain the characteristics of oral as well as written contracts of employment under the
Employment Code Act No.3 of 2019 of the Laws of Zambia.

23
Employment Code of 2019

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2.10 SUMMARY

This Unit has highlighted how a contract of employment is like any other contract
in the sense that it is subject to the general principles of contract law. The Unit
has also set out the distinction between employees and self-employed workers
and the relevance of the distinction. It ends by stating the sources of employment law in Zambia.

Contracts of employment, just like any other contract, can be entered into either orally or in
writing, a considerable degree of formality is desirable. Indeed, if practical as well as legal
difficulties are to be avoided, great care should be taken to ensure that all the relevant terms and
conditions are understood at the time employment commences.

The next Unit discusses the formation of employment contracts, in particular, the terms and
duties of employers and employees.

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3.0 UNIT TWO: FORMATION OF THE EMPLOYMENT CONTRACT


3.1 INTRODUCTION
This unit discusses the formation of the employment contract, in particular, the terms,
rights and duties of employers and employees. Terms and conditions attached to an
employment contract, whereas rights are entitlements and duties are obligations found in an
employment contract.

3.2 AIM

The aim of this Unit is to introduce the student to formation of employment contracts
with regard to the actual terms embodied in contracts of employment and the duties
of employers and employees.

3.3 OBJECTIVES

At the end of this unit you should be able to do the following:-

 Identify the express and implied terms of an employment contract,

 Explain the terms implied from various statutes,

 Outline the duties of employers and employees and

 Describe the employers‟ liability for employee‟s wrongful acts.

3.4 TIME REQUIRED


You are advised to spend at least 10 hours on this unit. 6 hours to study the unit and
4 hours to read the supplementary materials and attempt the questions at the end of
the unit.

3.5 REFLECTION

Have you ever wondered how employers and employees come up with terms
to be contained in contracts of employment?

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Answer:-Terms find themselves in employment either expressly, that is agreed upon by the
parties or by implication.24 Terms can be implied by the courts or by legislation.

3.6 FORMATION OF THE CONTRACT


A contract of employment can be entered into formally or informally. It can emerge as a result to
interviews, negotiations, exchange of letters or a casual conversation. It can be made orally or in
writing. It is essentially a contract just like any other contract and is subject to the general
principles of the law of contracts.25 It has been argued that the terms of an employment contract
are bilateral, that is, they are part of an agreement made between the employer and the employee,
therefore, changes or variation of terms cannot be made to a contract of employment without the
consent of the employee, but where there is a change in the details of the contract, written
notification must be given to the employee. Apart from bilateral variations, there is a possibility
of making unilateral variation, that is, where an employer varies the terms of employment
without obtaining consent from the employee.
In a case where there is unilateral variation, the employee has to choose whether to leave the
employment and claim damages for wrongful dismissal or seek a declaration through the courts
of law that the purported variation is unlawful or unenforceable against them because such a
variation would imply breach of the employment contract by the employer or failure by the
employer to follow the requirement of obtaining consent prior to variation.
In such cases, the trade union can also come in to counteract the stronger bargaining power of the
employer and seek the best remedy for the weaker party, in this case, the employee. If the
employee, however does nothing and continues working after a unilateral variation, they are
deemed to have affirmed or accepted the variation and they will be bound by the new terms. The
Supreme Court of Zambia in Mike Musonda Kabwe v. BP Zambia26held that:-
"If an employer varies a basic condition or basic conditions of employment without the
consent of the employee then the contract of employment terminates and the employee is

24
Meaning: the process of writing terms into a contract
25
Op. Cit, Emir: 88
26
SCZ Judgment No. 10 of 1997. The facts of the case are that the employer had reversed a general salary increase,
which resulted in the appellant's salary being reduced to the level prior to the increase. This reduction in salary
was done without the employee’s consent. He applied for early retirement and the respondent offered him a
retirement package which was based on his salary prior to the increase. The appellant's contract of employment
was therefore terminated on the date his salary was decreased without his consent and his benefits ought to have
been calculated on the increased salary applicable to him then.

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deemed to have been declared redundant on the date of such variation and must get a
redundancy payment if the conditions of service provide for such payment."
This principle of the law was also upheld in the case of National Milling Company Limited v
Grace Simataa and Others27where it was firmly held by the court that, “if an employer varies, in
an adverse way, a basic condition or basic conditions of employment without the consent of the
employee, then the contract of employment terminates and the employee is deemed to have been
declared redundant”.
The unilateral variation to an important term of an employment contract which is non-consensual
and which is unacceptable to the workers would justify the aggrieved workers treating the same
as a repudiation and breach of contract by the employer which terminates the employment
contract and which warrants the payment of redundancy.
Terms of employment contracts can be found in express or implied agreements and in various
statutory provisions.

3.6.1 Express Terms of the contract


Express terms are those terms which have been agreed upon by the employer and the employee
themselves and they can be either written or oral. They are expressly stated to form part of the
contract and they are binding. Express terms normally take precedence over all other sources,
such as common law implied terms, custom and practice.28 The employer must supply written
particulars of key terms of employment. The reasoning behind this is clear: if employees receive
written statements of the main terms of employment, disputes over the nature and scope of their
contracts will be diminished.29
Apart from those agreed upon by the parties, express terms can also be found in:
 Collective agreements – this is an agreement made between an employers‟ association,
or a single employer, on the one hand, and a trade union on the other, which, as well as

27
SCZ Judgment No. 21 of 2000. In this case, the employers were, prior to its privatisation, one of the subsidiary
companies in the ZIMCO group of Companies which were parastatals. The employees were employed under what
were known as ZIMCO Conditions of Service for non-unionised workers. However, after privatisation, the
shareholding went to new owners. The employers notified the workers that it had moved away from the ZIMCO
conditions of service and would have and use its own. The employees felt short-changed and sued claiming to be
given the separation packages awarded to them under the ZIMCO conditions. The judge agreed with them after
finding that the appellant had changed the conditions of service for worse and without the consent of the affected
employers.
28
Lewis, David, (1997). Essentials of Employment Law. 5th Edition, London: Institute of Personnel and
Development. p. 15
29
Op. Cit, Employment Code

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laying down the procedure which will govern the relationship between the signatories, it
will also provide for the terms and conditions of employment of those covered by the
agreement.30 The question which usually arises is „by what mechanism then do individual
employees derive the legal right to claim the terms and conditions which have been
negotiated on their behalf?‟ The answer lies in the process of incorporation, for by this
device, collectively agreed terms become legally binding as part of the individual
contract of employment.31The terms of the agreement therefore will only be binding in
law on the individual employer and the employee if, and only if, they are expressly or
impliedly incorporated into the individual contract of employment. According to
Mwenda [2011:214]32 incorporation of collective terms can be either automatic or not.
Automatic if it is assumed that collective terms are incorporated automatically into
individual contracts of employees in the enterprise or industry as soon as the agreement
becomes legally binding. Not automatic if the parties must consciously incorporate the
said terms into their contracts of employment.
 Works/staff rules – these differ from collective agreements in the sense that they are
unilaterally determined by the employer. Just like collective agreements, they can be
expressly or impliedly incorporated into individual contracts of employment.
Management can lawfully change work rules at any time and refusal by an employee to
adhere to the revised rules would amount to a breach of contract even if there had been
no advance warning or consultation with the employees affected.33
 Custom and practice – in the past when written contracts of employment were less
common and when written statements of particulars were not required by statute, custom
and practice played an important role in helping to identify the contractual terms. Today
however, custom and practice is not such an important source of law, although it may still
be invoked occasionally to fill gaps in the employment relationship. To do so, a custom
or practice must be definite, reasonable and generally applied in the area or trade in
question.34 This source of terms has diminished with increased formalisation of

30
Op. Cit, Emir: 102
31
Gibbons v Associated British Ports [1985] IRLR 376
32
Op. cit, Mwenda:214-215
33
Op. Cit, Lewis:22
34
Ibid, Lewis: 23

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employment contracts and if there is any conflict between the two, i.e., custom and
practice and the contract, then, of course, the contract prevails.

3.6.2 IMPLIED TERMS OF THE CONTRACT OF EMPLOYMENT


Terms Implied By Custom or Practice
Terms can be implied into a contract of employment either when there is a gap in the contract of
employment or if a court can be persuaded that it is necessary to do so in the circumstances of
any given case or if there are terms which are regarded by the courts as being inherent in all
contracts of employment.
It is a basic principle that a contractual term can be implied only if it is consistent with the
express terms of the contract. If there is a dispute over something which is not expressly dealt
with in the contract of employment, a court may be asked to insert a term to cover the point in
issue. The party applying for implication of a term must satisfy the court that such a term was so
obvious that the parties did not think it necessary to state it expressly35or that such a term was
necessary to give „business efficacy‟ to the relationship.

3.6.3 Terms implied by Statutes


A number of statutory terms are superimposed on all contracts of employment in addition to a
considerable number of statutory „rights‟ which have been created by various legislative
provisions. They are contained mostly in the Employment Act36 and various regulations. It is
worth mentioning here that the terms provided by statutes are regarded as minimum standards or
as a „floor of rights‟ in the sense that they set a standard for employers to apply. Meaning that
employers are allowed to go up or give employees more than the minimum standards but they
must never to go below the „floor‟. Statutory terms may be improved upon by agreement
between the parties, but any attempt to oust them will be of no effect. For example in this
country we have the Minimum Wages set by statute or Statutory Instrument which impliedly
binds all employers to meet that standard.
3.7 IMPLIED DUTIES OF EMPLOYEES AND EMPLOYERS

Unless the contract expressly provides otherwise, the parties owe each other certain duties and
the following paragraphs outline the common law duties of employees and employers. It also
highlights the statutory duties of employers.
35
Known as the ‘officious bystander’ test
36
Op. Cit, Employment Act

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3.7.1 Duties of Employees


Emir37 states that the employees have a fundamental duty of faithful service to their employers.
All other duties are features of this general fundamental duty, breach of which may justify the
employer dismissing them. The duties are to:-
 Exercise reasonable competence to do their job,
 To provide a personal service, i.e. to be ready and willing to work. An employee must
be prepared to work under the direction of the employer in return for the agreed wages.
Absence from work without excuse amounts to breach of contract. The employee may
not delegate their duties without the employers express or implied consent,
 Exercise reasonable skill and care. An employee who takes on a job professes their
ability to do that job and is required not to be unduly negligent in carrying it out. If they
fail in these duties, they are again in breach of contract,
 To obey lawful orders. An employee must obey the orders of the employer, provided
that they are lawful, that they fall within the scope of the contract and that they do not
involve exceptional danger. Orders that are genuinely considered by the employee to be
contrary to safety may be refused and dismissal for such a reason is automatically unfair,
 To avoid misconduct as this may result in summary dismissal. Examples are insolence,
persistent laziness, immorality, dishonesty and drunkenness,
 To act in good faith. This covers a number of aspects. For example, an employee must
be honest in their relationship with her employer. They must disclose any defect in
themselves which might make their employment more hazardous. They must not make
secret profits from their employment or work for a competitor while working for their
main employer. They should not do anything which would harm the reputation of the
company or Employer.
 To take care of the employer's property. If an employee fails to take reasonable care of
the employer's property and money, they are required to indemnify the employer against
any loss sustained and
 To maintain confidentiality both during and after employment. An employee must not
only keep their employers' secrets whilst working for them, but they also have a duty not
to disclose trade secrets or sensitive commercial information after they have left the

37
Op. Cit, p. 307

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employment.38 The need to the employers' secrets goes so far as to not reveal information
about illegal or unethical practices by the employer unless the revelation is to an
enforcement agency such as the Zambia Environmental Management Agency (ZEMA) in
the case of pollution issues, ZRA in case of tax fraud, etc. The need to uphold
confidentiality will extend to cases involving restraint of trade clauses.39Employees must
exhibit the same duty of fidelity to an employer to whom they have seconded as they did
to the initial employer.

The importance of these common law duties of employees is that breach may entitle the injured
party, the employer, to treat the contract as discharged and to claim for damages and the
employer may seek to justify dismissal by reference to the breach.

3.7.2 Common law Duties of Employers


Employers‟ duties emanate from both common law and statute. Employers have an overriding
duty of mutual trust and confidence. They are to behave reasonably and responsible towards their
employees.40 Out of this overriding duty, employers owe employees the following duties:-
 To provide work. The general common law position is that there is no obligation to
provide work for the employee to do; there is only an obligation to pay the wages which
may be due under the particular contract of employment concerned. It was once stated
that “provided I pay my cook her wages regularly, she cannot complain if I choose to eat
out.”41 However, the law recognises that in certain contracts, the opportunity to work is
of the essence and so certain exceptions to the common law general rule have evolved.
For example, an employee paid on piece work or commission basis (part-time workers
paid on the amount of work done) where actual work is necessary for them to earn a
living, there is an obligation on the employer to provide work to enable the employee to
earn reasonable or expected wages.42
 To pay remuneration. The employer is obliged to pay the contractually agreed
remuneration and failure to do so constitutes a breach of contract. If there is no rate fixed
by the parties, this duty is to then pay reasonable remuneration. The obligation of the

38
Faccenda Chicken Co. v. Fowler (1988) 1 ALL ER 617
39
Used by employers to restrict the activities of employees after they leave service
40
Op. Cit, Emir:294
41
Collier v Sunday Referee Publishing Co. Ltd [1940] 2 QB 647
42
Smith, I and A. Baker. (2010). Smith & Woods Employment Law. New York, OUP. p. 135

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employer to pay the employee is also protected by both the EA and the International
Labour Organisation (ILO Conventions on Minimum Standards)
 To provide for the safety of employees. There is a common law obligation on
employers to provide a safe system of work and workers who are injured (so long as the
employer has taken the necessary steps) may claim compensation under the Worker‟s
Compensation Act,43
 To indemnify employees. The employer must reimburse employees against all expenses,
losses and liabilities incurred in the execution of orders, or in the reasonable performance
of the employment. However, there is no implied term that the employee must be
indemnified against his/her own negligence or when obeying an obviously unlawful
order,
 To give true references. An employer is under no obligation to give a character
reference for an employee or former employee but is under an implied duty not to make
untrue statements or to be malicious if a reference is given and
 To maintain trust and confidence. The employer has an implied duty to maintain the
trust and confidence of the employee and if they do not then they will be in breach of the
contract entitling the employee to resign and claim constructive dismissal.

3.7.3 Statutory Duties of Employers


The Employment Act implies terms by way of employers duties into employment contracts
which may not usually be overridden. The following are the statutory duties of employers:-
 Protection of wages. According to the Employment Code, the employer has a duty to
pay wages of an employee in all contracts of service in the currency of the Zambian
Republic and must be paid directly to the employee, unless the employee requests, in
writing or by a collective agreement, payment may then be made into an account at a
bank or building society, being an account standing in the name of the person to whom
the payment is due, or an account standing in the name of that person jointly with one or
more other persons; payment be by postal order, by money order or by

43
Chapter 271 of the Laws of Zambia which is an Act inter alia provides for the establishment and administration of
a Fund for the compensation of Workers disabled by accidents to, or diseases contracted by, such workers in the
course of their employment, and for the payment of compensation to dependants of workers who die as a result
of such accidents or diseases…

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cheque.44Wherever possible, wages must be paid on work days and at or near the place of
employment.
An employer may, in the absence of an employee, pay the wages of such employee to a
person other than the employee if such person is duly authorised to receive such wages
by the employee in writing.
The Employment Act further states that an employer can, in addition to wages, pay to an
employee allowances in kind where such payment is customary or agreed to by the
employee or provided for in a collective agreement or in accordance with any written law
as long as any such payment, being an allowance in kind, shall be for the personal use
and benefit of the employee, and his family, and shall not be in the form of intoxicating
spirits or noxious drugs. Payment of wages shall not be made in any shop, store or
canteen or in places where intoxicating liquor is sold, except in the case of employees
employed to work therein.
An employer may make deductions from the wages payable to an employee in respect of
contributions to any provident, medical or pension fund or any other fund or scheme
approved by the Minister to which the employee has agreed in writing to contribute; a
reasonable amount for any damage done to, or loss of, any property lawfully in the
possession or custody of any employer occasioned by the wilful default of the employee,
if such amount and its deduction are duly accepted in writing by such employee; any
amount paid to an employee in error as wages in excess of the amount of wages due to
them; subject to the written consent of the employee, an amount equal to any shortage of
money arising through the negligence or dishonesty, not amounting to a criminal offence,
of an employee whose contract of service provides specifically for their being entrusted
with the receipt, custody and payment of money; any amount agreed in repayment of a
loan made by the employer to the employee, at their request, for a purpose beneficial to
them under the terms of a collective agreement applicable to such employee; and any
other amounts as may be prescribed by the Minister by statutory instrument.
An employer shall not make any deductions from wages payable to an employee or any
amount paid to such employee as an advance of wages in consideration of, or as a reward
for, providing employment for such employee or for retaining such employee in

44
Op. Cit, Part IV of the Code provides for Protection of Wages

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employment. The wages of an employee shall be paid on the last day when due and the
due date is determined from the employment agreement itself. It could be monthly,
fortnightly, weekly, etc. In the case of an employee employed on a task or piece work, on
the completion of such task or work; in the case of an employee employed to perform a
journey, on the completion of such journey; in any other case, in accordance with the
terms of the contract of service. The wages of an employee must be paid at regular
intervals not being later than the fifth day following the date upon which they fall due.
In every case in which employment under a contract of service is lawfully terminated, all
wages including overtime pay and allowances additional to basic pay shall be payable on
the day upon which such contract terminates. This shall not apply to the payment of any
allowance or bonus where such allowance or bonus does not form part of any payment
due under the contract of service. Lastly, an employer shall not limit or attempt to limit
the right of an employee to dispose of his wages in any manner which he deems fit.
Every employer must keep a record of the wages paid to each of their employees or
casual employees and of every deduction from such wages and the reason for the
deduction, at the place of employment or at such other place as the Minister may in any
particular case approve and shall, at all reasonable hours, be available for inspection by a
proper officer. The employer should also provide a copy of the pay statement or payslip
to each employee.
Every employer must, before an employee commences employment or when changes in
the nature of such employment take place, cause to be explained to such employee the
rate of wages and conditions relating to such payment.45
Wages shall not become payable to any employee in respect of any period during which
the employee is imprisoned under any law or otherwise detained in lawful custody.
Wages will not accrue during imprisonment. Except as may be provided in any contract
of service, collective agreement or other written law more favourable to the employee, if
any employee becomes temporarily incapacitated in consequence of sickness or accident
not occasioned by his own default, such employee shall, provided he has produced a valid
medical certificate, receive pay for the days absent up to a maximum of twenty-six (26)

45
Ibid, Part IV of the Code

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working days in any period of twelve months.46 In addition to the leave, every female
employee shall be entitled to one day's absence from work each month without having to
produce a valid medical certificate. It is an offence for an employer to employ or to
continue in their employment any employee or casual employee without intending to pay,
or without having reasonable grounds for believing that they can pay, the wages of such
employee or casual employee as they become payable; without reasonable excuse fails on
demand to pay any wages due to any employee or casual employee; or makes any
deductions from wages other than those authorised.
An employee may present a complaint whenever an employer or employee neglects or
refuses to comply with the terms of any contract of service, or whenever any question,
difference or dispute arises as to the rights or liabilities of any party to such contract or as
to any misconduct, neglect or ill-treatment of any such party, or concerning any injury to
the person or property of such party, the party aggrieved may report the matter to a labour
officer, who shall thereupon take such steps as may seem to him to be expedient to effect
a settlement between the parties and, in particular, shall encourage the use of collective
bargaining facilities where applicable.
 Time off Work. An employee has the right to be permitted by their employer to take
time off during the employee's working hours to discharge public duties as a member of
society. In addition, an employee also has the right, if they have been given notice of
dismissal by reason of redundancy, to be permitted by their employer to take reasonable
time off during working hours before the end of their notice to:
o look for new employment;
o make arrangements for training for future employment, subject to a condition that
they must have been continuously employed for a period of two years or more
prior to the expiry of their notice.
o They are entitled to be paid for the time so taken off and have a right to lodge a
complaint for non-compliance with these provisions by the employer. Similar
provisions provide for time off work by a qualifying employee in respect of.
 Maternity Rights. Certain rights relating to pregnancy and maternity have been granted
to female employees by statute. Briefly, these are as follows: Subject to any agreement

46
Ibid, Sections36

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between the parties, or any other written law, every female employee who has completed
at least two years of continuous service with her employer from the date of first
engagement or since the last maternity leave taken, as the case may be, shall, on
production of a medical certificate as to her pregnancy signed by a registered medical
practitioner, be entitled to maternity leave of fourteen weeks with full pay.
The maternity leave granted shall be exclusive of any other leave to which a female
employee may otherwise be entitled. In case of illness which arises out of pregnancy and
results in a female employee becoming temporarily incapable of performing her official
duties, such employee shall be entitled to sick leave.
Further, an employer shall not terminate the services of a female employee or impose any
other penalty or disadvantage upon such employee for reasons connected with such
employee's pregnancy.47 In the absence of proof to the contrary, an employer shall be
deemed to have acted in contravention of the Act if he terminates the contract of service
or imposes any other penalty or disadvantage upon a female employee within six months
after delivery.
 Holidays. An employer has a duty to an employee who has been in employment for a
period of six (6) months continuous service to grant him a holiday with full pay at the
rate of two days in respect of each period of one month's service, to be taken at such time
as shall be agreed between the parties. Provided that where a contract of service is
terminated otherwise than by an employee's desertion, resignation or summary dismissal
before they have qualified for a holiday as aforesaid, they shall be entitled to be paid two
days' full pay for each completed month of service. The holidays referred to shall be in
addition to any public holiday or weekly rest period, whether fixed by any law,
agreement or custom, in respect of which the employee is not required to work under
their contract of service.
Lastly, the Minister may, by statutory order, declare any day or days required to be
observed as or declared to be public holidays under the Public Holidays Act to be paid
public holidays, and on any day which has been declared to be a paid public holiday
every employee shall be entitled to a holiday with full pay if they do not, without the
permission of their employer or reasonable excuse, absent themselves from duty either on

47
Ibid, Section 41

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the day immediately preceding or on the day following such public holiday. Provided that
where by virtue of any agreement or custom it is normal for an employee or class of
employees to work on any day declared to be a paid public holiday such employee or
class of employees shall be entitled to payment of wages at such rate as may be agreed
under a collective agreement or contract of service48.
An employer may, with the agreement of the employee, pay wages to such employee in
lieu of any holiday due to the employee and if any leave has been accumulated by an
employee whose contract has terminated, the employer shall pay wages to the employee
for the period of such accumulated leave.

3.8 ACTIVITIES

1. Distinguish between express and implied terms in a contract of employment.


2. Discuss the common law duties of employers and employees.
3. Discuss the statutory duties of employers.

3.9 SUMMARY

This Unit in a nutshell looks at the different ways in which contractual terms may
come into existence and observed that certain terms are be agreed upon by the
parties whereas some terms are implied into all contracts of employment. The
Unit also examined the major obligations which are imposed on both parties in an employment
contract. The next Unit discusses discrimination in employment.

48
Section 35 of the Code

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4.0 UNIT THREE: DISCRIMINATION IN EMPLOYMENT


4.1 INTRODUCTION
This Unit discusses the element of discrimination in employment.

4.2 AIM

The aim of this Unit is to introduce the student to the vice of discrimination in
relation to contracts to employment.

4.3 OBJECTIVES

At the end of this unit you should be able to do the following:-

 Define discrimination and

 Identify the different types of discrimination prevalent in employment or workplaces.

4.4 TIME REQUIRED


You are advised to spend at least 10 hours on this unit. 6 hours to study the unit and
4 hours to read the supplementary materials and attempt the questions at the end of
the unit.

4.5 REFLECTION

What thought crosses your mind when you hear the word „discrimination‟?

Answer:- The Zambian Constitution provides under Article 23(2) that no


person shall be treated in a discriminatory manner by any person acting by
virtue of any written law or in the performance of the functions of any public
office or any public authority. This provision includes employees, as they are part of „persons‟
that Constitution seeks to protect.

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Article 23(3) defines discriminatory behaviour, which is prohibited in our labour laws
“discriminatory” mean, affording different treatment to different persons attributable, wholly or
mainly to their respective descriptions by race, tribe, sex, place of origin, marital status, political
opinions colour or creed whereby persons of one such description are subjected to disabilities or
restrictions to which persons of another such description are not made subject or are accorded
privileges or advantages which are not accorded to persons of another such description.
4.6 DISCRIMINATION IN EMPLOYMENT
There are scanty provisions in the Zambian labour laws defining discrimination in employment.
Both the Employment Act and the Industrial and Labour Relations Act (ILRA)49 do not offer a
definition of the word „discrimination.‟ The Constitution, defines the expression "discriminatory"
as „affording different treatment to different persons attributable, wholly or mainly to their
respective descriptions by race, tribe, sex, place of origin, marital status, political opinions,
colour or creed whereby persons of one such description are subjected to disabilities or
restrictions to which persons of another such description are not made subject or are accorded
privileges or advantages which are not accorded to persons of another such description.‟50
Discrimination has also been defined as any form of prejudicial, unfair, biased, inequity, bigotry,
chauvinist or intolerable treatment based on one‟s sex, race, tribe, religion, origin or
affiliation.51Any form of discrimination is illegal in terms of Zambian labour legislation. A
worker who is denied promotion or a pay rise because of their sex, race, religion, marital status
and in certain cases, health has the right to seek redress. In short, you cannot be discriminated
because of your nationality, race, if you are pregnant or on maternity leave, gender, age,
disability, religion or belief, ethnic background, marriage or colour.
ILO Convention No. 111 defines discrimination as any distinction, exclusion or preference made
on the basis of race, colour, sex, religion, political opinion, national extraction or social origin,
which has the effect of nullifying or impairing equality of opportunity and treatment in
employment or occupation. Both direct and indirect discrimination are covered by the

49
Chapter 269 of the Laws of Zambia
50
Constitution of Zambia, Article 23(3)
51
www.mywage.org/zambia/discrimination

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Convention. Discrimination does not have to be intentional. What matters are the effects of
discrimination.52

Types of Discrimination
There are two (2) types of discrimination, namely, direct and indirect discrimination.
Direct discrimination happens when certain employees are outrightly given preference over
others by the employer. For example, some employees may be promoted not because of their
skills but closeness to the person in charge – e.g. bootlickers who even call their bosses as dad or
mum instead of their official work titles.
Indirect Discrimination refers to unfavourable working conditions that tend to place a few
employees in an advantageous position over others. It is not outrightly expressed, it is an
underground way of doing things. Examples of this include conditions such as when an
application for jobs in the hospitality industry tends to prefer employing people based on
physical appearance that may be disadvantageous to others. An example of this would be a hotel
restricting job applicants for a waitressing vacancy to light skinned individuals, thereby
disadvantaging dark skinned and qualified persons.53
The Constitution states that a person shall not be treated in a discriminatory manner.54In addition,
the ILRA prohibits discrimination in employment55 on grounds similar to those outlined above.
More legislation on discrimination comes by way of the Gender Equity and Equality Act 56 which
aims at promoting the attainment and mainstreaming of gender equality. It is fighting for the
elimination of discrimination in employment on the basis of gender. Further, the Persons with
Disabilities Act57 requires that no person may be discriminated against on the basis of disability
with regard to all forms of employment, including conditions of recruitment, hiring and
employment, continuance of employment, the creation, classification and abolition of positions,

52
The Discrimination (Employment and Occupation) Convention Of 1958
53
Ibid
54
Op. Cit, Constitution, Article 23(2)
55
Op. Cit, ILRA, Section 108(1)
56
No. 22 of 2015
57
Chapter 65 of the Laws of Zambia

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the determination of wages, pension or other benefits, apprenticeship, promotion, career


advancement and safe and healthy working conditions.
Physical disability can be permanent or temporal and ranges from a person being permanently in
a wheelchair, to someone having their leg in a plaster, to someone with poor eye sight or hearing
problems. It is illegal to discriminate against an employee based on their physical disability. The
law eliminates any form of discrimination against those who have disabilities but are able to
carry out their duties without hindrance. Zambian law prohibits discrimination based on physical
or mental disability unless such an employee has been certified unfit for duty by a qualified
medical practitioner. Provided that a physically disabled person is able to carry out their duties
and they meet the qualifications for that particular job, they can and should be employed.58
Apart from prohibiting discrimination in employment on various grounds, the ILRA provides the
procedure for challenging discrimination in employment contracts as well as the remedies
available. It states that „any employee who has reasonable cause to believe that the employees'
services have been terminated or that the employee has suffered any other penalty or
disadvantage, or any prospective employee who has reasonable cause to believe that the
employee has been discriminated against may, within thirty days of the occurrence which gives
rise to such belief, lay a complaint before the Court and The Court shall, if it finds in favour of
the complainant, grant to the complainant damages or compensation for loss of employment; or
make an order for re-employment or reinstatement in accordance with the gravity of the
circumstances of each case.59

Zambia, unlike Britain, lacks legislation which is dedicated to discrimination. British labour
law‟s primary legislation comes by way of the Equality Act60 which exhaustively deals with
discrimination in employment. It outlaws discrimination. In Zambia, as mentioned above,
discrimination in employment is derived from the provisions of the Constitution as well as the
ILRA and other statutes.

ILO Convention No. 111, mentioned earlier protects all workers against discrimination on the
basis of race, colour, sex, religion, political opinion, national extraction, social origin, and other
criteria as may be determined by a ratifying state after consultation with representative

58
Op. Cit, www.mywage.org
59
Op. Cit, ILRA Sections 108 (2)(3)
60
2010

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employers‟ and workers‟ organizations. The protection of Convention No. 111 applies to all
aspects of employment and occupation, both public and private, and extends to: access to
education, vocational guidance and training; access to employment and occupation (i.e. to work,
whether self-employment, wage employment or in the public service); access to placement
services; access to workers‟ and employers‟ organizations; career advancement; security of job
tenure; collective bargaining; equal remuneration for work of equal value; access to social
security, welfare facilities and benefits related to employment; and other conditions of work
including occupational safety and health, hours of work, rest periods, holidays.

Under Convention No. 111, States must establish and implement a national policy to promote
equality of opportunity and treatment in employment and occupation. This policy should apply to
both the private and the public sectors. States are required to cooperate with workers‟ and
employers‟ organizations in the preparation and implementation of their national equality policy.
These organizations, in turn, should promote the national equality policy in the workplace and
within the organization itself. Measures to declare and pursue a national equality policy may
include laws, equality policies, collective agreements and educational and training activities. The
elimination of discrimination may require affirmative action measures in favour of groups that
face discrimination and a lack of equal opportunities.

Discrimination, or difference in treatment, could serve to deprive a person of, or limit their
access to, equal opportunity. There are some measures, however, that are not considered as
discrimination. These include measures based on the inherent requirements of a particular job
(e.g. manual of loading timber logs onto trucks inherently needs men), measures intended to
safeguard the security of the State, and special measures of protection (e.g. to address the
specific health needs of women or men) or assistance (e.g. affirmative action and
accommodation measures).

Case law in Zambia has revealed intolerance of discrimination as shown in the following
paragraphs.

4.6.1 Discrimination on the basis of sex and marital status


Posts and Telecommunications Corporation Limited v Salim Jack Phiri (1995) S.C.Z.
Judgment No. 7

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In this case, the respondent was dismissed by the appellant during his probation period and was
paid a 14 days‟ salary in lieu of notice. His dismissal was based on certain losses that the
appellant had incurred as a result of the respondent‟s conduct. The respondent sued the appellant
contending that he had been discriminated against on the basis of social status and sex. The court
found for the respondents and the appellant appealed. On appeal however, it was held that there
was no discrimination justifying the award of damages by the Industrial Relations Court.

4.6.2 Discrimination on the basis of political affiliation


Zambia National Broadcasting Corporation Limited v Penias Tembo, Edward Chileshe
Mulenga and Moses Phiri (1995) S.C.Z. Judgment No. 9
In the above case, one of the issues raised was that there were complaints by the Movement for
Multi-Party Democracy (MMD) of unfair coverage of political adverts before the 1991
presidential and general elections which the United National Independence Party (UNIP) lost.
The first respondent was employed as Regional Controller for the Northern Region, the second
respondent was employed as Director of Engineering, who acted as Director General whenever
the director General was absent and the third respondent was employed as Head of Programmes
and Operations. Towards the end of November 1991, the respondent received letters from the
appellant informing them that their contracts of service were terminated and that they were being
given three months‟ salaries in lieu of notice. The Supreme Court had no doubt that had UNIP
won the election, the respondents would not have been dismissed. It was clear to the court that
the respondents were discriminated against on the basis of their political affiliation contrary to
section 108 of the Industrial and Labour Relations Act and the court decided in their favour.

4.6.3 Discrimination on the basis of social status


Zambia Consolidated Copper Mines Limited v Patrick Mulemwa (1995 S.C.Z. Judgment No.
15

In the above case, the respondent was dismissed from employment by the appellant on grounds
of misuse of company property and giving a false statement against a subordinate. The
respondent brought an action against the appellant in the Industrial Relations Court. The
Industrial Relations Court found that the respondent had done nothing wrong and nullified the
dismissal. The court further found that the respondent had been discriminated against on grounds
of social status. The court also expressed disagreement with the Supreme Court on the definition

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of social status61 stating that social status referred to one‟s standing in the employment hierarchy
only. On appeal, the Supreme Court held that until such time as an earlier decision of the
Supreme Court is upset by the Supreme Court itself, such decisions remain binding on all other
courts.62 The Industrial Relations Court in this case was not in a position to say that in their view
the words „social status‟ in section 108 referred to the appellant‟s position in the hierarchy of the
company and that discrimination per se is not a ground for making an order for reinstatement.
Therefore, the Industrial Relations Court had no power to reinstate.

4.6.4 Other forms of discrimination (race, religion, tribe, disability)


In the recent case involving a complaint related to racial discrimination leveled against Horse
Shoe Restaurant63 by a member of the public, the Human Rights Commission64 was unable to
establish a complaint against discrimination on the basis of race as defined by the Zambian
Constitution and the International Convention on the Elimination of all forms of Racial
Discrimination.

Article 19 of the Constitution of Zambia enshrines the freedom of religion, the right to change
one‟s religious faith, to express publicly one‟s faith and to make converts. An amendment
introduced in 1996 in its preamble states that Zambia is a Christian nation which respects
citizens‟ right of freedom of conscience and worship. Although the Constitution describes
Zambia as a “Christian” confessional State, the document guarantees protection for non-
Christians, who are given the right to follow their religion of choice. There are no other laws in
the country which curtail this religious freedom. Zambia has always upheld the right to religious
freedom, and is likely to continue doing so.

The labour laws in their current form are extremely inadequate with respect to protecting
individuals with disabilities. Labour laws such as the EA65 and ILRA66 do not make express
provisions to protect individuals with disabilities. This may probably be one of the reasons why
there is very little case law or litigation regarding discrimination based on disability as the laws
61
Friday J.M. Ngwira v Zambia National Insurance Brokers Limited (1994) S.C.Z. Judgment No.9
62
See also Edward Mweshi Chileshe v Zambia Consolidated Copper Mines Limited (1996) S.C.Z. Judgment No. 10
and Zambia Privatisation Agency v Matale [1996] SC .
63 th
Times of Zambia Newspaper, December 25 , 2016
64
It is a national human rights institution established in 1996 to, among other things, investigate and remedy
human rights violations. It carried out an independent investigation on the matter.
65
Chapter 268 of the Laws of Zambia
66
Chapter 269 of the Laws of Zambia

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themselves do not explicitly include disability as a ground on which to place a discrimination


claim. Even the Constitution, the supreme law of the land, is silent on this issue and it does not
make explicit provisions to protect individuals with disabilities.

Discrimination based on disability is outlined in the Persons with Disabilities Act67 which states
that:-

“An employer shall not treat a person with a disability different from a person without
disability when advertising for employment; recruiting persons for employment; offering
terms or conditions of employment; considering promotion, transferring or training such
persons; or providing any other benefits related to employment.68”

4.7 ACTIVITIES

1. On what basis is discrimination in employment outlawed in Zambia and what


remedies are available to victims of discrimination in employment.

4.8 SUMMARY

This Unit was centred on discrimination in employment. The following Unit


concentrates on the minimum standards and conditions of employment as
provided for under the Employment Act, Statutory Instruments and International
Labour Organisations (ILO) Conventions.

67
Chapter 65 of the Laws of Zambia
68
Ibid, Section 20

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5.0 UNIT FIVE: TERMINATION OF THE EMPLOYMENT CONTRACT


5.1 INTRODUCTION
Employments contracts, just like other types of contract, come to an end in one way or
another. This Unit discusses the ways in which employment contract can come to an
end and the remedies available thereafter.

5.2 AIM

This Units aims at explaining the conditions which would lead to termination of an
employment contract.

5.3 OBJECTIVES

At the end of this unit you should be able to do the following:-

 Analyse the aspect of termination of employment contracts,

 List and explain the ways in which employment contract can come to an end and

 Discuss the remedies available when a contract of employment terminates.

5.4 TIME REQUIRED

You are advised to spend at least 10 hours on this unit. 6 hours to study the unit and
4 hours to read the supplementary materials and attempt the questions at the end of
the unit.

5.5 REFLECTION

In what ways may a contract of employment be terminated?

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Answer:-

Contracts of employment may terminate by notice, dismissal, retrenchment, retirement,


redundancy or by frustration.

5.6 TERMINATION OF EMPLOYMENT CONTRACTS


An employment contract, just like other types of contracts, can come to an end. Employment
contracts may be terminated either under common law (compulsory liquidation of a company,
dissolution of a partnership, retirement, retrenchment or bankruptcy) or by statute (expiry of a
fixed term contract, death of the employee, any other lawful manner, retirement on medical
grounds, summary dismissal, termination by notice, dismissal for a lawful cause and termination
by redundancy). In summary therefore a contract of employment may come to an end through
termination of the contract by notice, dismissal, retrenchment, retirement, redundancy or
frustration.

5.6.1 Termination by Notice


If a contract of employment is for a specified period, the employment ceases at the end of that
period without notice.69 If the contract is not for a definite period then, if either party wishes to
end it, they must give the period of notice, verbally or in writing, either specified in the contract
or, if no period of notice is expressly stated, the period of notice required is that which is
prescribed in the Employment Act, that is, 24 hours where the contract is for a period of less than
a week; 14 days where the contract is a daily contract under which, by agreement or custom,
wages are payable not at the end of the day, but at intervals not exceeding one month; and 30
days where the contract is for a period of one week or more or that which is customary in the
trade or reasonable in the circumstances.70

Each party to an oral contract for a period not exceeding one month shall, on the termination of
such contract, be conclusively presumed to have entered into a new oral contract for a further
period of the same duration and subject to the same terms and conditions as those of the contract
unless notice to terminate the employment has been given by either party and the period of
notice has expired; or the contract has been terminated by payment in lieu of notice; or the
contract has been summarily terminated by either party for lawful cause; or the contract has

69
Op. Cit, Employment Code Act, Section 52
70
Ibid. Employment Code Act, Section 53

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been otherwise lawfully terminated under the provisions of the EA. Where notice is given, there
shall be paid to the employee, on the expiration of the notice, all wages and benefits due to him.

There is need therefore to terminate a contract of employment by giving the appropriate notice.
Any attempt to terminate a contact of employment without notice71 would amount to breach of
contract, for which the employee could bring an action for damages. This was illustrated in the
case of Zambia Privatization Agency v Matale72 in which the employee had been employed by
the employer as a director on a contract period of three years. Before the expiry of the three year
period (after a period of less than two years) he was given notice that his services were
terminated with immediate effect. The employee was paid three months' salary in lieu of notice
and was given an additional three months' salary ex gratia. The contract of employment made no
provision for prior termination. It was held that payment in lieu of notice was a proper and lawful
way of terminating the employee‟s on the basis that in the absence of express stipulation every
contract of employment is determinable by reasonable notice. The measure of damages is
calculated based on the wages which an employee would have earned if proper notice had been
given. Employers in practice usually pay wages in lieu of notice in order to terminate a
relationship that has broken down.

5.6.2 Resignation

Apart from termination of employment contracts by notice, they can also come to an end when
the employee resigns. Resignation is a unilateral free choice of an employee in a contract of
personal service to terminate the contract at any stage either contractually or in breach of
contract, enabling the employer to in turn sue for damages for breach of contract. The employee
would either give the required notice or offer payment of money to the employer in lieu of
notice. This action releases the parties from their obligations in a contract of employment73 and
an employer cannot force an employee to return to work or to continue working for them after an
employee has resigned.

5.6.3 Frustration

71
Except for summary dismissal which does not attract a notice period.
72
[1995-1997] ZR 157 SC
73
Joseph Greta Chikuta v Chipata Rural Council 1983 ZR 26 (SC)

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A contract of employment, again like all other contracts, can be discharged by frustration.
Frustration is a contractual doctrine which warrants discharge of a contract due to a rise
circumstances, making performance of the contract impossible. The circumstances must be
unforeseen and should not be the fault of either the employer or employee. 74The destruction of
the subject matter of a contract of employment, for instance, death of either party would amount
to frustration of a contract of employment in the sense that death is an unforeseen circumstance
which makes further performance of an employment contract impossible. Other examples of
frustrating events in an employment contract are supervening incapacity, for instances, the loss
of a driving license for a driver.

5.6.4. Dismissal

Further, contracts of employment may come to an end in two (2) other ways, namely through
dismissal or redundancy. Take note that there is a difference between dismissal and termination.
Dismissal involves loss of employment arising from disciplinary action, while termination allows
the employer to terminate the contract of employment without invoking disciplinary action.75

Types of Dismissal:

5.6.4.1. Summary Dismissal


There is one exception to the requirement to give the specified notice. This is when one party has
committed a fundamental breach of a vital term of the contract.76 This usually relates to what is
called summary or instant dismissal by an employer. There is no simple answer as to what
justifies summary dismissal; it will depend on the particular circumstances of each case but it is
assumed from the employees conduct that they are no longer willing to be bound by the
employment contract. In the language of contract law, the employee is said to have committed a
repudiatory breach which enables the employer to bring the contract of employment to an end.
Most disciplinary procedures specify or give examples of what actions would amount to “gross
industrial misconduct" which may lead to summary dismissal. A single act of negligence or
disobedience is unlikely to justify such action. Summary dismissal would result out of actions

74
Op. Cit, Lewis. p. 138
75
Redrilza Limited V Abuid Nkazi And Others (S.C.Z. Judgment No. 7 Of 2011)
76
Op. Cit, Mwenda, p. 86

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such as, interalia dishonesty, fraud, misconduct, incompetence, refusal or neglect to render
agreed services and negligence calculated to injure the employers business.

The EA requires that a certain procedure be followed when an employee has been summarily
dismissed. It states that “whenever an employer shall dismiss an employee summarily and
without due notice or payment of wages in lieu of notice, such employer shall, within four days
of such dismissal, deliver to a labour officer or the Labour Commissioner (in the District in
which the employee was working) within 5 days of the dismissal, a written report of the
circumstances leading to, and the reasons for, such dismissal. The labour officer shall then cause
to be entered in a register, maintained for the purpose, details of the report delivered to them.
Where the Labour Commissioner or labour office finds that the circumstances of the case do not
warrant summary dismissal of the employee, the employee so dismissed is entitled to payment of
severance benefits of not less than two (2) months basic pay of each completed year of service”77

Where an employee is summarily dismissed, they forfeit their right to any notice whatsoever and
to a number of other benefits. However, the employer must still pay the wages and allowances
including leave entitlements accrued up to the time of the dismissal78because these are
retrospective. Further, it states that an employer shall not terminate the service of an employee
on grounds related to the conduct or performance of an employee without affording the
employee an opportunity to be heard on the charges laid against him.79

In the case of ZCF Finance Services Ltd v Happy Edubert Phiri80, a General Manager was
summarily dismissed following irregularities of an audit report, despite having exculpated
himself. He sued for wrongful dismissal and for reinstatement. Alternatively, he applied for
payment of his full retirement package. The High Court ruled in his favour and ZCF appealed to
the SC where it was held despite having observed the rules of natural justice in writing an
exculpatory letter, the GM‟s actions were reckless as he did not take into account the company‟s
interests, resulting in losses. The SC overturned the HC‟s decision and upheld the dismissal

77
Op. Cit, Employment Code Act, Section 54
78
Ibid, Section 26
79
Ibid, Section 26(A)
80
SCZ Appeal no. 93 unreported [2001]

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In another case, that of Pamodzi Hotel v Godwin Mbewe81, the respondent was employed by the
appellant as a waiter and supervisor. There was in existence a Collective Agreement incorporated
into the terms of the employment which bound both parties. The Agreement provided a penalty
of dismissal after a written warning for a first breach for offences related to drunkenness and
summary dismissal without any need for a previous warning for drunkenness. On an allegation
that the respondent was drunk on duty, he was dismissed. He sought a declaration in the High
Court that his dismissal was null and void. Evidence was adduced at the trial that he was found
to be drunk by security guards and was seen by the hotel manager who, from the smell of his
breath and appearance, found he was not his usual self and concluded he was drunk.

The court found that under the Collective Agreement, dismissal could only occur after a final
written warning for a previous breach and as no warning had been given and summary dismissal
was unlawful. The appellant appealed. The appellant argued that the reason for dismissal was
satisfied under the Agreement on the evidence of a supervisor and one witness and that the
degree of drunkenness for dismissal was not as applied in the case of drunken driving where a
medical report is required. It was sufficient that the dismissal was carried out fairly as laid down
in the Collective Agreement.

It was held that instant dismissal is justified if an employee is drunk. The state of drunkenness to
justify the dismissal of an employee is not the same as the state which renders a person incapable
of having proper control of a motor vehicle. It was sufficient under the Agreement to justify
dismissal if there was drunkenness as evidenced by a supervisor and one witness. The decision to
dismiss cannot be questioned unless there is evidence of malice or if no reasonable person could
form such an opinion.

5.6.4. 2. Wrongful Dismissal


This arises when an employer dismisses an employee contrary to the terms of employment. The
form and not the merits of the dismissal are examined in case there is a claim for wrongful
dismissal and the question asked is not why but how the dismissal was effected.82 An employee
who is summarily dismissed without proper cause can bring an action for wrongful dismissal in
the court.

81
[1987] ZR 56 (SC)
82
Op. Cit, Mwenda, p. 105

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If an employee's action for wrongful dismissal is successful, he/she will be awarded damages but
cannot obtain an order of "specific performance" i.e. an order compelling the employer to
reinstate him/her. Wrongful dismissal involves going or acting against the terms of the
employment contract and it involves the form or process and not the merits of a case, i.e. how
and not why the dismissal was effected.

Wrongful dismissal arises where an employer fails to give requisite notice in terms of giving
termination notice according to the contract or giving less than required notice. The employee
can challenge this kind of dismissal based on insufficient notice being given. An employee is
entitled to damages calculated on the basis of what they would have gotten had the proper notice
been given. It may also arise where there is procedural impropriety and the employee asks the
court to declare the dismissal as being null and void. The employee may be awarded damages
and reinstatement since there was no dismissal at all. However, this does not stop the employer
from starting the dismissal procedure all over again in the correct manner to ensure an actual
dismissal is effected.

In the case of Contract Haulage Ltd v Mumbuwa Kamayoyo,83after being granted leave for 24
days, the respondent was arrested. A letter terminating his services was written effective on the
day he should have returned to work. He claimed that the dismissal was null and void in which
case the respondent would be entitled to, reinstatement. The appellant argued that the
employment was under a master and servant contract; if the respondent was wrongly dismissed
he was entitled only to damages, and there was no question of breach of natural justice being
applicable and thus the dismissal was not null and void.

It was held that in a pure master and servant relationship there cannot be specific performance of
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; where there is a statute which specifically provides that an
employee may only be dismissed if certain proceedings are carried out, then an improper
dismissal is ultra vires: and where there is some statutory authority for certain procedure relating
to dismissal a failure to give an employee an opportunity to answer charges against him or any
other unfairness is Contrary to natural justice and a dismissal in those circumstances is null and

83
[1982] ZR 13 SC

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void; and that there is no statutory authority for specific procedural steps to be taken before an
employee in a parastatal organization may be dismissed. The contract provided for 1 months‟
notice but it was not given, therefore the termination was improperly terminated and the
respondent is entitled to damages, i.e 30 days salary in lieu of notice.

In Zambia National Provident Fund v Yekweniya Mbiniwa Chirwa84 The respondent, as the
personal representative of one Godwin J Kamanga (deceased), who was dismissed by ZNPF, his
employers, upon his admitted dishonest conduct brought a successful action in a lower court to
nullify the dismissal due to non-compliance with ZNPF disciplinary rules. The employers
appealed. It was held that ZNPF procedural rules are part of the conditions of service of the
parastatal organisation and are not statutory and that where it is not in dispute that an employee
has committed an offence for which the appropriate punishment is dismissal and he is also
dismissed, no injustice arises from a failure to comply with the laid down procedure in the
contract and the employee has no claim on that ground for wrongful dismissal or a declaration
that the dismissal is nullity.

The court further stated that „It is pertinent to refer here to the case of Contract Haulage Limited
v Kamayoyo (above), in which this court held that where there was a statute that specifically
provides that an employee may only be dismissed if certain proceedings were carried out, or
where there was some statutory authority for a certain procedure relating to dismissal, a failure to
give an employee an opportunity to answer charges against him was contrary to natural justice
and a dismissal in those circumstances was null and void. In that case the court did not take into
consideration the situation which would arise where, despite a failure to comply with a certain
procedure before taking disciplinary action, no injustice resulted, but, apart from that, the court
confirms that that judgment stated the law as it relates to a dismissal being ultra vires and in
consequence null and void. Where the procedural requirements before disciplinary action are not
statutory but merely form part of the conditions of service in the contract between the parties, a
failure to follow such procedure would be a breach of contract and could possibly give rise to a
claim for damages for wrongful dismissal but would not make such dismissal null and void.
Therefore, in the case at present although the appellant is a parastatal organisation its conditions

84
[1986] ZR 70 SC

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of service are not statutory and in the circumstances no declaration could be made that the
dismissal was null and void for failure to comply with the appropriate procedure.

5.6.4.3 Unfair dismissal


Unlike wrongful dismissal which is a common law creation, unfair dismissal is a creation of
statute. It is concerned with the merits (the why) and not the form (the how) of a dismissal. It is
involved with the actual reasons for the dismissal in order to determine whether the dismissal
was justified or not85. It is regulated by the Industrial and Labour Relations Act which provides
for restrictions on discrimination in employment. It states that:-

“No employer shall terminate the services of an employee or impose any other penalty or
disadvantage on any employee, on grounds of race, sex, marital status, religion, political
opinion or affiliation, tribal extraction or status of the employee. Any employee who has
reasonable cause to believe that the employees' services have been terminated or that the
employee has suffered any other penalty or disadvantage, or any prospective employee
who has reasonable cause to believe that the employee has been discriminated against,
may, within thirty days of the occurrence which gives rise to such belief, lay a complaint
before the Court: Provided that the Court may extend the thirty-day period for a further
three months after the date on which the complainant has exhausted the administrative
channels available to him. The Court shall, if it finds in favour of the complainant; grant
to the complainant damages or compensation for loss of employment or make an order
for re-employment or reinstatement in accordance with the gravity of the circumstances
of each case.86

Unfair dismissal was illustrate in the case of Henry Milton Mulenga v Refined Oil Products87 in
which the complainant asked for permission to go and make burial arrangements on 15th
October, but was denied. He then applied for leave to attend the funeral on 18th October. He
only left on 19th October and was given a letter terminating his services because he was serving
his last warning. He complained of discrimination based on social status, to the IRC under s 108
(2) and asked the IRC to nullify the decision and reinstate him. It was held that he had been

85
Op. Cit, Mwenda, p. 135
86
Op. Cit, ILRA, Section 108
87
IRC Complaint No. 40 of 1983 (unreported)

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unfairly treated when he was refused permission to attend a funeral and then given a letter
terminating his services after granting him leave.

5.6.4.4 Constructive dismissal


Constructive dismissal occurs when an employee leaves an employment, with or without notice,
"in circumstances such that he is entitled to terminate it without notice by reason of the
employer's conduct."88 In other words, although the employee has taken the initiative in leaving
the employment, they do so because the employer has created an impossible working
environment. The employer's conduct must involve a significant breach of the terms of the
contract; mere unreasonable or unfair behaviour is not enough. The act by the employer must be
such as to lead the employee into resigning. The notion behind the concept of constructive
dismissal is that by their conduct, the employer repudiates the contract and the employee accepts
the employer‟s repudiation as concluding the contract by resigning or walking out.89

Examples of conduct which have been held to amount to constructive dismissal are unilateral
reduction in basic rate of pay, unilateral change in job duties, handing an employee over to the
police on suspicion of theft without any discussion or breach of implied terms of mutual trust and
confidence.

Constructive dismissal was illustrated in the case of Faidecy Mithi Lungu v Lonrho Zambia
Ltd.90The facts of the case are that an executive secretary to the Executive Chairman had been
dismissed. The HC ordered her reinstatement. However, the position of executive secretary had
been abolished so she was given other lower secretarial duties and she was finally transferred to s
subsidiary company to do a typist‟s job. She resigned citing constrictive dismissal. It was held
that she knew that her position had been abolished and so she could not expect to get her position
back. Further the judge said she had a poor attitude and appeared to underplay her superiors as if
they were her inferiors.

Take note that the employee must react promptly to the employer's conduct. If the employee
delays too long before leaving, he/she may be regarded as having accepted the change in the
terms of the contract.

88
Op. Cit, Mwenda, p. 148
89
Western Excavating (ECC) Ltd v Sharpe [1978] IRLR
90
Appeal no. 182 [2000 unreported]

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5.7 Retrenchment, Retirement and Redundancy


Retrenchment

Retrenchment arises when a company is going through financial difficulties and opts to cut down
the workforce as a cost-saving measure due to an economic downturn. The employer can replace
the employees when their financial position improves. It is usually done in mass as a business
restructures.

7. Retirement

In Zambia, when an employee attains the age of sixty-five (65),91 they may retire. Employees are
however allowed to opt for early retirement when it is permissible by their conditions of service
such as at 55 years or at 60 years. Retirement benefits are then given in accordance with the
conditions of service.

8. Redundancy

Unlike retrenchment, redundancy on the other hand takes place when the employer decides that
the employee‟s services are no longer needed, e.g. to restructuring or advancements in
technology. The employer cannot thereafter replace such employees. In practice however,
retrenchment and redundancy are taken to be synonymous, meaning one and the same thing.92
The law too seems to take retrenchment and redundancy to mean one and the same thing. Thus,
whereas the procedure on redundancy is provided for in the law, no such provision is there for
retrenchment.93

Redundancy can be either voluntary or compulsory. Voluntary redundancy arises where the
employee agrees to be dismissed relating to selection, consultation, etc, do not apply. It is not
even necessary for the employer to prove that the job of the applicant for voluntary redundancy
has gone.

Redundancy is deemed to arise where the employer dismisses an employee because either the
employer has ceased or intends to cease to carry on the business for the purposes of which the
employee was employed, the employer has ceased or intends to cease to carry on that business in

91
The Public Service Pensions Act, S.I. No 63 of 2014
92
Herwitt Chola and 154 Others v Dunlop Zambia Ltd SCZ APPEAL NO. 108 2001 UNREPORTED.
93
Op. Cit, Mwenda, p. 160

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the place where the employee was employed or the needs of the business for employees to carry
out work of a particular kind in the place where the employee was employed have ceased or
diminished, or are expected to do so. Thus, basically, redundancy occurs in two situations. First,
where the employer ceases to exist, and secondly where the job ceases to exist.

Once a person has been dismissed for reason of redundancy, they are entitled to a lump sum
redundancy payment from the employer. According to the Employment Code an employee
whose contract of service has been terminated by reason of redundancy shall be entitled to such
redundancy payment as agreed by the parties or as determined by the Minister, whichever is the
greater; and be paid the redundancy benefits not later than the last day of duty of the employee.
Provided that where an employer is unable to pay the redundancy benefits on the last day of duty
of the employee, the employer shall continue to pay the employee full wages until the
redundancy benefits are paid.94

The Employment Act also provides guidance regarding the step or procedure to be followed by
an employer who wishes to declare some employees redundant. It states that whenever an
employer intends to terminate a contract of employment for reasons of redundancy, the employer
shall provide notice of not less than thirty days to the representative of the employee on the
impending redundancies and inform the representative on the number of employees to be
affected and the period within which the termination is intended to be carried out; afford the
representatives of the employee an opportunity for consultations on the measures to be taken to
minimize the terminations and the adverse effects on the employees and the measures to be
taken to mitigate the adverse effects on the employees concerned including finding alternative
employment for the affected employees; not less than sixty days prior to effecting the
termination, notify the proper officer of the impending terminations by reason of redundancy and
submit to that officer information on the reasons for the termination by redundancy; the number
of categories of employees likely to be affected; the period within which the redundancies are to
be affected; and the nature of the redundancy package.

These provisions do not apply to an employer who ceases to carry on business by reason of
bankruptcy or compulsory liquidation; a casual employee; an employee engaged for a fixed term
and the redundancy coincides with the expiration of that term; an employee on probation; or an

94
Ibid, Section 55

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employee who has been offered alternative employment and who has unreasonably refused the
offer.

6.8 Remedies available for breach of an employment contract


The following are the three main remedies available in employment law in case of a premature
termination of a contract of employment:-

Re-instatement, meaning that the employee is taken back on the same terms and seniority as
before and the employee is treated as not having been dismissed in the first place.

Re-engagement: meaning the employee being taken back on different terms, i.e. under a new
contract of employment. Compensation is given by way of damages equal to the period of notice
notwithstanding that the contract provides that all benefits under the contract shall be paid as if
the contract had run the full term if the employer terminates the contract prematurely for reasons
other than incompetence or willful neglect of duty.

Damages: This is the most common remedy in the breach of a contract of employment.
Damages are meant to compensate the employee for losses or inconvenience occasioned by
his/her loss of employment prematurely. Damages give an employee what he/she would have
received had the contract not been breached. The law does not allow payment of benefits in
terms of salary for the expired term of the contract due to lack of consideration for such
payment.95 If effected, such payment would constitute unjust enrichment to the employee.
Further, the courts frown upon runaway damages or those that border on penalizing the
employer. Courts will instead, order payment of salary and perquisites commensurate with the
period of notice. In the absence of express terms, the measure of damages will be reasonable
notice period and what is reasonable depending on the individual circumstances of each case.96

6.9 ACTIVITIES

1. Discuss the ways in which a contract of employment can come to an end.


2. Outline the procedure an employer must follow when rendering employees redundant.

95
Zambia State Insurance Corporation Ltd v Allisand Singogo SCZ Appeal no. 2 of 2007 unreported.
96
Op. Cit, Mwenda, p. 189

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6.10 SUMMARY

This Unit has shown how a contract of employment can come to an end, that is, if
it is of a fixed term, or through notice, dismissal, retrenchment, retirement,
redundancy or by frustration. The subsequent Unit discusses safety, health
welfare of people at places of work.

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6.0 UNIT SIX: SAFETY AT PLACES OF WORK


6.1 INTRODUCTION
This Unit aims at introducing the student to industrial safety and the law applicable.

6.2 AIM

The aim of this Unit is to equip the student with knowledge regarding the minimum
standards required by law in industrial undertakings for the safety of all concerned.

6.3 OBJECTIVES

At the end of this unit you should be able to do the following:-

 Discuss the regulation of the conditions of employment in factories and other places as
regards the safety, health and welfare of people employed there.

6.4 TIME REQUIRED


You are advised to spend at least 10 hours on this unit. 6 hours to study the unit and
4 hours to read the supplementary materials and attempt the questions at the end of
the unit.

6.5 REFLECTION

What is a factory and what hazards associated with such environments?

Answer:-

A factory is any premises in which or within which persons are employed in


manual labour for various purposes. Depending on the nature of products, factories pose safety,
health and welfare challenges for the employees. Examples are poisonous substances, fire,
explosions etc.

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6.6 SAFETY AT PLACES OF WORK


One of the common law obligations of employers relates to health and safety of employee. The
protection emanating from the common law duties imposes civil liabilities on an employer for
causing harm and injury to another person caused by an employee. For example, the doctrine of
vicarious liability has been used by the law to attribute liability to an employer even if they may
not have been personally responsible for an injury caused by their worker to a third party;
provided there existed a contract of service and the injury was caused during the normal course
of business of the employer, i.e within the scope of employment of the employee – Vally v
Attorney General (2017) ZMCA 15 (ZAF Officer’s Case). The Court of Appeals held that the
employer was liable as they threatened the developers in the officers‟ course of employment.. It
is important to note that in the absence of statutory provisions, courts have to resort to common
law principles to settle any matter not so provided for. The English Law (Extent of Application)
Act97 provides for the application of English common law, doctrines of equity and certain
English statutes in Zambia. Further, Section 3 of the Interpretation and General Provisions Act 98
defines 'common law' as the common law of England.

This Unit examines legislation which is designed to maintain and improve standards of health,
safety and welfare. The major legislation is provided for by the Factories Act, the Worker‟s
Compensation Act and the Occupational Health and Safety Act of 2010. There is delegated
legislation99 and other legislation providing for the protection of the health and safety of
employees inter alia mine safety,100 handling and transportation of explosives, gases and
petroleum products101 and public health.102

In addition, Zambia has ratified two conventions dealing with matters relating to occupational
safety and health; namely, the Benzene Convention103 and the Working Environment (Air
Pollution, Noise and Vibration)104 and the Safety and Health in Mines Convention.

97
Chapter 11 of the Laws of Zambia, Section 2
98
Chapter 2 of the Laws of Zambia
99
Passed by Ministers in order to operationise the parent Act
100
Mines and Minerals Development Act, No. 7 of 2008
101
Explosives Act, Chapter 115 of the Laws of Zambia
102
Public Health Act, Chapter 295 of the Laws of Zambia, the Environmental Protection and Pollution Control Act.
Chapter 204 of the Laws of Zambia and the Ionising Radiation Protection Act No 16 of 2005.
103
ILO Convention No. 163
104
ILO Convention No. 148

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6.6.1 The Factories Act


This is found in Chapter 441 of the Laws of Zambia. It is an Act to make further and better
provision for the regulation of the conditions of employment in factories and other places as
regards the safety, health and welfare of persons employed therein; to provide for the safety,
examination and inspection of certain plant and machinery. It was last amended in 1994. As
mentioned earlier, it only covers factories and excludes the mining sector, explosives
manufacturing or assembling which are covered by other Acts. It does not extend to employees
working in the agricultural or services sectors or to those in informal employment.

The Act stipulates that factories are to be registered and also that inspectors from the
Occupational Safety and Health Services Department are empowered to inspect factories to
ensure compliance with the Act. Contravention of the Act may result in fines, compliance orders
and in certain cases, the suspension of work in a non-complaint workplace until the Chief
inspector is satisfied.

The Act provides detailed substantive provisions addressing safety at work such as the fencing
off of moving machinery, the securing of dangerous substances, the proper construction of
access such as ladders and gangways, the provision of first aid and procedures for the prevention
and fighting of fire.105

It also provides for healthy working conditions that need to be followed such as overcrowding,
cleanliness, toilet facilities, lighting and ventilation. Additional provisions are made relating to
the provision of protective clothing, drinking water, resting facilities and change rooms.

6.6.2 Workers’ Compensation Act No. 10 of 1999, Chapter 271 of the Laws of Zambia
Under Common law, the employer solely bore the responsibility of providing a healthy and safe
working. If he discharged (done something to mitigate the injury) this duty and an employee got
injured thereafter, the employer was not to blame. If an employee sued the employer for
negligence he would not succeed as the employer‟s defence would be that he had discharged his
responsibility of providing a safe working environment. This was illustrated in the case of
Latimer v AEC (1953) AC 643 in which the claimant who worked in the factory of the defendant
slipped, fell and was injured. The factory had got flooded after a storm, but the employer had
taken reasonable steps to dry the floor by mopping and applying saw dust. The trial judge held
105
Op. Cit, Musonda. p. 141

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that there was a breach of duty: the factory should have been closed as it was unsafe. But on
appeal, it was held that the closure was not necessary as the employers had discharged their
obligation to provide a safe working environment.

The decision in Latimer was however unfair as the employee was genuinely injured at work and
needed some form of relief. That is why the Workers‟ Compensation Act was passed, and
provides a mechanism of both the employers and employees contributing funds that may be
applied in the event of injury at work, whether the employer is to blame or not.

Workers who get disabled by accidents or contract diseases through their work are protected by
the Workers‟ Compensation Act. This Act provides for the establishment and administration of a
Fund (Workers‟ Compensation Fund) for compensation of such workers. In case such a worker
dies as a result of the accident or disease, the Act further provides for the payment of
compensation to his or her dependants; and for the grant of pensions and allowances to certain
dependants.

The Act also provides for the appointment and powers of a Workers‟ Compensation
Commissioner; the establishment and powers of a Workers‟ Compensation Board and an Appeal
Tribunal. This means that there are statutory and independent bodies that an aggrieved party can
approach.

The Act also stipulates that the Principal shall be liable for everything that happens on a
construction site under a Principal and contractor relationship, unless otherwise agreed by the
parties. The Act does not impose liability on the Principal in respect of any accident which
occurs elsewhere and not on the premises the Principal undertakes to execute the work.
Therefore the Act prevents the Principal from being liable for acts or omissions of the contractor
that happen outside work premises.

6.6.3 Occupational Health and Safety Act (OHASA) No. 36 of 2010


This is the new law in the area of occupational health and safety in Zambia. The OHASA
provides for some of the shortcomings in the health and safety legislation. It provides for the
following:-

 It provides for the OHASA Institute and provide for its functions,

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 It provides establishment of health and safety committees at workplaces and for the
health, safety and welfare of persons at work,
 It provides for the duties of manufacturers, importers and suppliers of articles, devices,
items and substances for use at work,
 It provides for the protection of persons, other than persons at work, against risks to
health or safety arising from, or in connection with, the activities of persons at work at
lastly
 It provides for matters connected with, or incidental to, the foregoing.

The purpose of establishing the Institute and committees is to protect the health, safety and
welfare of all persons at a work place, including small and medium enterprises managers,
administrators and general workers.

The functions of the Institute are to raise awareness around occupational health and safety
through education, incentives for employers to improve occupational health and safety, as well
as to monitor occupational diseases and injuries by conducting medical examinations,
establishing an occupational laboratory service, conducting research and keeping statistics. The
Institute is governed by the Occupational Health and Safety Board.106

The functions of the health and safety committee are to monitor health and safety measures in the
workplace and resolve identified risks, educate employees and promote cooperation between
employers and employees in maintaining a healthy and safe working environment. The Act
outlines the offences and penalties for non-compliance and it provides the legal proceedings in
respect of the offences.

In conclusion, it can be stated that the Workers‟ Compensation Act provides a mechanism of
both the employers and employees to contribute funds that may be applied in the event of injury
at work, whether the employer is to blame or not. The Factories Act on the other hand provides
for minimum standards to regulate working conditions in a factory. The definition of factory is
broadened to cover any place where man comes into contact with machines and is likely to get
injured. A factory may be a building with machinery, a boiler of water for supply in the hospital
or construction works of any kind.

106
Ibid, Musonda. p. 146

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These statutes continue to apply independently, but also in conjunction with the Occupational
Health and Safety Act (OHASA) of 2010. The OHASA shifts the burden of providing safety
from the employer, to sharing the responsibility with other stake holders, including the
employees, manufacturers, importers and suppliers of articles, devices, items or substances used
at work. Work Committees for safety are required by law to be established at work places for the
proper implementation of the OHASA.

The 2004 National Employment and Labour Market Policy observed that the majority of workers
in Zambia continue to face numerous occupational health safety risks at workplaces. These risks
are usually in mining, manufacturing, construction, electricity, forestry and agriculture. Also
workers in the informal sector have continued to work in unsafe and unhygienic conditions
because there is usually no legislative provision to cover them.

SET BACKS TO IMPLEMENTATION OF HEALTH AND SAFETY AT WORK IN ZAMBIA

1. It is also worth noting that Zambia has not formulated a comprehensive national policy on
occupational safety and health inspite of occupational safety and health being a cross cutting
issue by its nature and the existence of various institutions dealing with occupational safety and
health. Instead, components as opposed to a holistic policy are segmented in various policies
such as the ones discussed above. Further, due to lack of a comprehensive national policy,
Zambia has not domesticated some ILO International Conventions on Occupational Safety and
Health and there is little publicity about new measures especially those from ILO Conventions,
for instance the „Guidelines on Occupational Safety and Health Management Systems‟ (ILO-
OSH 2001. This makes them inapplicable.

2. In addition, there is lack of co-ordination among the institutions which are mandated to
enforce these laws, Workers‟ Compensation Board centres on contributions without really
getting involved as to the nature of the factory working conditions.

3. There is also inadequate capacity among stakeholders dealing with occupational health and
safety issues in the country, e.g. inadequate manpower, training in scientific analysis, etc.107

107
Paper presented by G. Mukosiku under the project on Improving Safety and Health at work through a Decent
Work Agenda, 2011.

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4. Inadequate logistical capacity e.g. transport, equipment for inspections, etc,

5. Inadequate advocacy,

6. Lack of research

7. Limited coverage of workplaces by occupational safety and health laws.

8. Restrictions of entry by NGOs and concerned groups/individuals into the factories.

6.7 ACTIVITIES
1. Discuss the general provisions of the Factories Act in relation to health, safety
and welfare in the work place.

6.8 SUMMARY

People who work in factories and other environments are susceptible to accidents,
injury and in worst cases, death, therefore, there is need to ensure their health and
safety in such environments. The Factories Act provides for mechanism to
provide and maintain minimum safety and health standards.

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UNIT 7: INDUSTRIAL RELATIONS COURT;

Courts‟ Jurisdiction in Industrial Relations and Employment Matters.

The judicature under the current Constitution of the republic of Zambia is as follows:

The Supreme Court of Zambia and the Constitutional Court;

The Court of Appeal;

The High Court of Zambia; (with divisions i.e. the Industrial Relations Court; Commercial court;
Family court; and Children‟s court)

The subordinate courts;

The Local Courts; and

such lower courts as may be prescribed by an Act of Parliament.

INDUSTRIAL RELATIONS COURT

Jurisdiction and Law

The Industrial Relations Court is established under s 64 of the Industrial Relations Act, No.36 of
1990 and is continued under s84 of the Industrial and Labour Relations Act as if established
under the latter Act. The court forms part of the judicature of the republic of Zambia. It was
established as the court of first instance with original jurisdiction in all industrial relations
matters. The HC jurisdiction, though unlimited and original, is excluded in all proceedings in
which the IRC has exclusive jurisdiction under the ILRA. Unlike the HC, the IRC has no
divisions and is now a division of the High Court under Art 133 of the amended constitution.

The IRC has original jurisdiction in all industrial relations matters. It may commit and punish for
contempt any person who disobeys or lawfully refuses to obey the orders of the court. A
complaint or application to the court must be presented within 30 days of the occurrence of the
event that gave rise to the complaint. The chairman and the deputy chairman of the court have
the same status as the judges of the High Court. The court has the jurisdiction to inquire and

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make awards and decisions in collective disputes, interpret the terms of awards, collective
agreements and recognition agreements. It also has jurisdiction to adjudicate upon any matter
affecting collective rights, obligations and privileges of employees, employers and representative
organizations.

Whereas in the past the IRC could not hear cases of wrongful or unfair dismissal, the court can
now hear and determine any dispute between an employer and an employee notwithstanding
that such a dispute is not concerned with a collective agreement or other trade union matter
under s 85 (1). See the case of Mulambya v Tanzania Zambia Railways Authority IRC Comp.
No. 6 of 1983 (Unreported). The complainant who was working for the respondent company
was dismissed from work for fighting at work and not seeking permission to be absent from
work. He filed a complaint in the IRC for wrongful dismissal. The case was referred to the High
Court because the IRC was a wrong court for wrongful dismissal. This case occurred before the
industrial relations act was repealed to be replaced by the industrial and labour relations act No.
27 of 1993. Under this Act, the IRC can hear cases involving individuals such as wrongful or
unfair dismissal.

The general rule is that no cause is beyond the competence of the High Court. Notwithstanding
that the IRC has exclusive jurisdiction in industrial and labour relations matters, the SC has held
that the HC has jurisdiction to hear and determine matters arising out of pure master and servant
relationships such as wrongful dismissal and breach of contract.

In the case of Cheelo and nine others v ZCCM Ltd (1999) SCZ judgment No. 27 of 1999
(Unreported), the HC presided over this case despite that it had issues related to industrial and
labour relations matter. In the case Mbazima and others joint liquidators of ZIMCO limited (in
liquidation) and Reuben Vera (2001) SCZ judgment No. 6 0f 2001 the IRC could not preside
over the matter because it had issues related to land conveyance issues and a labour dispute. The
parties were advised by the SC to take the matter to the HC which would deal with all issues at
the same time. The IRC has no jurisdiction to preside over matters of land conveyance.

Appeals from the IRC lie to the Court of Appeal. But the appeals are only on points of law or of
mixed law and fact but not on points of fact only. This point is illustrated in the case of Barclays
Bank (Z) Limited v Chola and Mubanga (1995 – 1997) ZR 212 (SC)

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The IRC is headed by a chairman appointed by the president of the Republic of Zambia on the
advice of the judicial commission of Zambia. The chairman is assisted by the Deputy Chairman.
The court must discharge its functions autonomously in accordance with the constitution and in
accordance with the laws of Zambia when the court is hearing matters.

Qualifications for appointment of Chairman and Deputy Chairman

No person shall qualify for appointment as chairman or deputy chairman of the IRC unless he
holds or has held a high judicial office for a period of not less than 10 years. However, the
president may dispense with this consideration if he is satisfied with any special circumstances
that any person so appointed may have. He may appoint such a person chairman or deputy
chairman even if he does not meet the 10-year requirement. This dispensation is made on the
advice of the Judicial Service Commission (JSC). The JSC may itself recommend or advise the
president to make the appointment.

The term of office for the chairman and deputy chairman of the IRC is five years and the officers
shall be eligible for re-appointment. Removal from office of the chairman and deputy chairman
is possible only in the case of inability to perform the functions of the office due to illness,
mental or physical disability, incompetence, gross misconduct or bankruptcy. The procedure for
removal is provided for under Art. 143. The removal of a judge may be initiated by the Judicial
Service Commission, or by a complaint made to the JSC complaints commission based on the
grounds stated in Art 143.

Failure to deliver judgment stipulated by the IRC i.e. 60 days from the day the matter was first
heard constitutes grounds for removal on account of inability by the chairman or deputy
chairman to perform functions of the court.

On deciding or hearing the matter, the court has power to summon any relevant person and
punish anyone for disobedience.

Attorney General v Civil Servants of Zambia and National Union of Public Service Worker
dispute No. 3 of 1995

The IRC made an award in favour of two public service unions directing that members of the
two unions should be given salary increments. The then minister of finance, the late Hon. Ronald

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Penza made a public statement through the press condemning the judgment of the court and
describing it as an irresponsible judgment. The two unions commenced committal procedures to
have the minister punished. The court convicted Hon Penza for contempt of court because he
was a public officer vested with authority to direct payment of salaries. The court found that he
had blatantly said he would not authorize for payment of salaries and convicted him accordingly.
He was ordered to pay a fine of K1.5 m in his personal capacity. In default of payment within 30
days Hon. Penza was to be committed to serve three months‟ imprisonment with hard labour. He
was also to bear the cost of the courts proceedings.

Procedure of IRC

At any hearing before the court, any party may appear in person or be represented by any other
officer of a trade union, association, an officer of the congress or of the federation or a legal
practitioner. The government may be represented by the Attorney General or any other person
authorized. The chairman may cause to be published in the gazette any award, decision or
judgment of the court which, in his opinion, is of general interest.

The IRC is not bound by the rules of evidence applied in civil or criminal proceedings. The
main aim of the court is to do substantial justice between the parties. This phrase is not defined
in the Act. It allows the court not to concentrate so much on ordinary rules of evidence as to how
evidence is admitted. Also, the court must not tie itself unnecessarily to legal technicalities e.g.
in dispensing substantial justice. See case of Zambia Consolidated Copper Mines Limited v
Richard Kangwa and Others SCZ judgment No. 25 of 2000 (unreported). The SC in this case
held that the industrial relations court is a court mandated to do substantial justice, unfettered by
legalistic niceties.

Although a contract of employment allows the employer to terminate the contract upon giving
notice, the court can go around the notice clause to discover the real intention behind the
termination. If the employer served you notice for termination, the court will waive this if it
suspects reason termination was ill-conceived.

Chileshe v ZCCM Appeal No. 9 of 1996.

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An employee was dismissed. He filed a complaint that he was dismissed on account of social
status in breach of section 108 of the ILRA Cap 269. The SC held that is the court mandated to
dispense substantive justice to the parties that are before the court. In exercising that jurisdiction,
the court has power to consider the real motive actuating an employer to enforce the contractual
term.

The HC and its relation to the IRC.

There are several apparent distinctions existing between the HC and the IRC. The HC is presided
over by a judge and that judge is appointed by the president on the advice of the JSC. The
appointment of the judge must be ratified by parliament. Conversely, the chairman of the IRC is
appointed by the president on the advice of the JSC only. The court has limited jurisdiction and
exclusive jurisdiction to determine any industrial relations matter. The HC has original and
unlimited jurisdiction to determine any civil and criminal proceedings under any law and such
jurisdiction and power as may be conferred on it by the constitution of the republic of Zambia.
The jurisdiction IRC is a special jurisdiction e.g. the IRC cannot try criminal cases such as
treason, sedition or any other criminal cases.

Which of the two courts is superior to the other? Before the amendment of the Republican
constitution of 2016, the two courts were seemingly equal, but with the coming in of the
constitutional amendment, the HC seems superior, though both rank pari pasu (at par with equal
power as High Courts).

See the case of ZNPF Board v AG and others, in the matter of industrial relations court
decision dated 29th October 1983 and an application for certiorari (1983) ZR 140 (HC)

The ZNPF Board, dissatisfied with the decision of the IRC commenced proceedings to have the
decision moved into the HC and quashed. The legal argument centered upon the question
whether the IRC was inferior to the HC and whether a certiorari could issue despite the
provisions of s 101 (3) of the Industrial Relations Act. Section 101 (3) of the Act excluded the
power of the HC to issue orders of certiorari removing the proceedings or decisions of the IRC
into the HC for purposes of quashing the same.

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The HC held that the IRC is not a superior court of record, and in the HCs judgment it is inferior
to the HC for purposes of the application before the HC. The application of the ZNPF was
dismissed. Despite the findings that the IRC was inferior to the HC for purposes of the
application, the application was dismissed in this case because s 101 (3) of the IRC Act took
away the jurisdiction of the HC to issue the writ of certiorari. This section has now been repealed
and any person aggrieved with the decision the IRC can appeal to the Court of Appeal on any
point of law or any point of mixed law and fact.

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UNIT 8: TRADE UNIONS IN THE ZAMBIAN LABOUR LAW

A trade union is an organization of workers who have come together to achieve common goals
such as protecting the integrity of its trade; improving safety standards; achieving higher pay and
benefits such as health care and retirement; increasing the number of employees an employer
assigns to complete the work and better working conditions in general. S3 (1) of the ILRA states
that a trade union is an organization registered as a union under the Act. The trade union
regulates collective relations between employees and employers or between organizations of
employers and employees. S4 of the ILRA states that unionisable employees are not members of
management.

A trade union through its leadership bargains with the employer on behalf of the union members
and negotiates labour contracts (collective bargaining).

A trade union traditionally has a constitution which details the governance of its bargaining unit
and governance at various levels of government depending on the industry that binds it legally to
its negotiations and functioning. A standard constitution is scheduled to the ILRA.

Since the publication of the history of Trade Unionism (1894) by Sidney and Beatrice Webb, the
predominant historical view is that a trade union „is a continuous association of wage earners for
the purpose of maintaining or improving the conditions of service of their employment‟. Karl
Marx described trade unions thus…the value of labour power constitutes the conscious and
explicit foundation of trade unions whose importance for the …working class can scarcely be
overestimated. The trade unions aim at nothing less than to prevent the reduction of wages below
the level that is traditionally maintained in the various branches of industry. That is to say, they
wish to prevent the price of labour power from falling below its value (capital VI, 1867
p.1069).

Formation

Any group of employees not less than 100 can register a TU. A lesser number prescribed by the
minister of labour can also be allowed to register a TU. The application must be accompanied by
two certified copies of the constitution of the proposed union. The application and the
constitution shall be submitted to the Commissioner for registration S9 (3). A certificate of

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registration shall be prima facie evidence that the provisions of the industrial and labour relation
act have been complied with.

No body of employees registering as TU shall be registered under a name identical or so nearly


resembles such name so as to be likely to deceive its own members or members of the public. All
TU established and registered in accordance with S6 of the Industrial Relations Act, 1990 have
been allowed to continue existing under the 1993 Act.

Rights and obligations of the employees in respect of TU membership and activities

Art 21 (1) of the constitution of the Republic of Zambia states that “except with his own consent,
a person shall not be hindered in the enjoyment of his freedom of assembly and association, that
is to say his right to assemble freely and associate with other persons or belong to any political
party, trade union or other association for the protection of his interests”.

In this regard, every employee is free to be a member of any TU. The ILRA, under S5 has
stipulated the rights of the employees in respect of TU membership and its activities. The section
states that every employee as between himself and the employer shall have the right to take part
in the formation of a trade union and to be a member of a trade union of his choice. Other rights
include taking part in the activities of a TU, the right to seek election or accept appointment as an
official in the TU and the right not to be prevented, dismissed, or discriminated against or
deterred from exercising the rights conferred on the employee under the ILRA. S6 lays down the
obligations of every employee as being to promote, maintain and cooperate with management of
the undertaking in which the employee is employed in the interest of industrial peace, greater
efficiency and productivity.

Freedom of Association

Art 21 (1) of the Zambian constitution stipulates fundamental freedoms. However, these
freedoms are not absolute. This limitation has brought controversy. For example, under what
circumstances can the Labour Commissioner refuse to register a trade union? Is it under the
Public order act, public safety etc.? Before the amendments to the ILRA of 1997, the
Commissioner could refuse to register a TU where another TU already exists serving the
interests of the industry. (S9). See the case of Attorney General and LC V Zulu. In this case Art

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21 was violated. Old S9 (c) was inconsistent with Art 21. SC reversed the decision. A Public
official has no power to decide on freedom of association or expression. (see the case of
Mulundika and seven others v the People)

After December 1997, old S9 was repealed. The Commissioner has no power to refuse
registration of a new trade union even if he thinks interests are already represented. He only has
power to stop registration if there is a conflict with the name of an already existing TU. S5 was
also amended to allow every employee to take part in formation of new TU. Additionally, after
1997 TU monopoly was abolished. Due to this, there has been a proliferation of TUs in industry.
This can be seen in the education sector, the financial sector, etc. The ILO principle is that the
union with the majority of members must be allowed to bargain with the employer. S69 (1)
imposes a duty to commence negotiations aimed at a collective agreement three months before a
present agreement comes to an end.

Legal Personality

A TU is not a body corporate. All real and personal property belonging to the TU vests in
trustees of the union for the use and benefit of the TU members. Actions by and against the TU
are brought and defended by the trustees of the union or any other officers authorized to do so by
the union‟s constitution. The suit may be civil or criminal concerning property or claim to
property of the TU (S 26).

S15 of the ILRA stipulates that two or more unions may, in accordance with their respective
constitutions, amalgamate as one TU and the new TU so-formed could be registered in
accordance with the provisions of the Act.

Federation of TUs.

The federation of TUs is an organization whose membership consists of registered TUs affiliated
to such federation and whose primary objective is the promotion and regulation of relations
between the TUs affiliated to the federation or between employees, their trade unions, employers
and employers‟ organizations.

Prior to 1997, the Zambia Congress of Trade Unions (ZCTU) was the only umbrella body of all
trade unions in Zambia. With the coming in of the ILRA (Amendment) Act No/30 of 1997,

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another federation was formed. This was the Federation of Free Trade Unions of Zambia
(FFTUZ) established in 1998. However, ZCTU still has a higher number of TUs affiliated to it.

Dissolution

S 16 (1) of the ILRA provides for the voluntary dissolution of a TU. When members of TU
decide to dissolve the union, a voluntary notice signed by the executive committee of the union
is sent to the commissioner with a copy to the federation of the TUs. The commissioner approves
the dissolution if satisfied that the dissolution is in accordance with the constitution of the union.

Once a Trade Union is dissolved, the property of the TU vests in the liquidator appointed by the
Commissioner. The liquidator winds up the affairs of the TU after satisfying and providing for
all the debts and liabilities of the TU. Under S 16 (6) the liquidator is protected from any action
or other proceedings in respect of anything done or omitted to be done in good faith in the
exercise or purported exercise of his functions under the Act.

Read the cases:

Zambia National Provident Fund v Rowlands Musukwa SCZ Judgment No.15 of 1995
(Unreported)

Attorney General and the Labour Commissioner v Zulu, Kamukwamba and Others (1995-
1997) ZR 33 (SC)

ANZ Grindlays bank (Z) Ltd v Crispin Kaona (1995-1997) ZR 85(SC)

EMPLOYERS ORGANISATIONS

This is an organization of any group of employers registered under the ILRA. The principal
objectives are the representation and promotion employer‟s interests and regulation of relations
between employers and employees. The employer‟s organization also regulates relations
between employers and trade unions including a federation of employers‟ organizations.

Every employer‟s organization must be registered with the labour Commissioner within six
months from the date of formation. If the LC refuses to register it must dissolve within six
months after notification of refusal. If this does not happen, every officer of the organization is

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guilty of an offence and is liable to fines S 37 (3). Not less than five members of proposed
employer‟s organization. Application must be accompanied by two certified copies of the
constitution.

No employers‟ organization or its officers should perform any act in furtherance of the objects
for which it was formed unless the organization unless the organization is registered.
Contravention of this provision will attract a penalty and the officers involved will be prohibited
from holding office in any other employers‟ organization for a period determined by the court.

A certificate of registration may be cancelled by the Commissioner at the request of the


employer‟s organization with the approval of the minister. The certificate can also be cancelled if
obtained by mistake or fraud. Before cancellation of the certificate, the commissioner will notify
the employer‟s organization on what information he will rely for the cancellation. The
organization concerned may then make representations to the commissioner in opposition to the
grounds contained in the notice. After receipt of the representations and after the expiry of three
months, the commissioner may cancel the certificate.

Employers’ rights.

The employers have the right to organize and associate. This is under the Freedom of
association and protection of the right to organize convention of 1948 to which Zambia is a
signatory and enshrined in the Republican Constitution. S37 of the ILRA also has provisions for
employers‟ rights. No law should prohibit any employer from becoming a member of any
employers‟ organization. Additionally, no person should impede, interfere with or coerce an
employer in the exercise of his rights under the act. No discrimination is allowed on members of
employers‟ organizations.

Employees are not allowed to cease work or suspending their work if the employer is not a
member or holds or does not hold office in the employer‟s organization. This should not happen
if the employer has appeared as a complainant before the IRC or any other court. Any person
who contravenes this provision is guilty of an offence and liable to a fine or maybe prohibited
from holding office in a trade union for a period determined by thecourt.

Legal Personality

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The organization has no legal personality. The provisions under Ss 25, 26 and 27 of the ILRA
apply mutatis mutandis to employers‟ organizations.

Amalgamation

Amalgamation takes place in the same manner as trade unions amalgamate. This is under section
49 (1) of the Act.

Federation of Employers’ Organization

The federation comprises registered employer‟s organizations or individual employers who are
not members of any employers‟ organization. Its objectives are to regulate relations between
employers‟ organizations amongst other objectives. The Zambia Federation of Employers was
founded in 1955 and was registered under s56 of the repealed Act of 1990. It still exists as an
unincorporated body. All provisions relating to the constitution of the federation of trade unions,
the relationship between the federation trade unions apply mutatis mutandis to the federation of
employer‟s organizations and the employer‟s organizations. Ss 56 and 57 respectively.

Dissolution

Notice of intention to dissolve must be submitted to the commissioner. The notice must be
signed by all members of the executive committee. This must be accompanied by a copy of the
minutes and the resolution passed. If the organization is affiliated to a federation of employers, a
copy should be sent there too. If the commissioner is satisfied that the intended dissolution is in
accordance with the organizations constitution, he may approve the dissolution which is effective
from the date the commissioner accords his approval. If the commissioner refuses to dissolve the
organization even after meeting the conditions, the organization has recourse to the IRC for
redress under s 85 of the Act. Provisions 50(4) (a) and (b) relating to the vesting of the property
of the employers‟ organization and winding up of affairs are similar to the provisions on the
same matters as they apply to trade unions.

Collective Agreement

A collective agreement is a type of commercial agreement between management (on behalf of


the company) and trade unions (on behalf of the employees). The collective agreement regulates

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the terms and conditions of employees in their work place. It is usually the result of the process
of collective bargaining between an employer (or a number of employers) and a trade union
representing the workers.

Every employer employing not less than 25 employees and the trade union to which the
employees belong are required to enter into a recognition agreement. Under this agreement, the
employer does not simply acknowledge the existence of such trade union but more importantly
undertakes to accept the union as bargaining partner.

The agreement is a prerequisite for regulating the collective relationship of the employer and the
trade union. Similar relationships are required to be established between employers‟
organizations and trade unions as may exist.

Collective bargaining

Collective bargaining is a process of joint or co-determination through negotiation by the


bargaining unit of conditions or terms of employment. The law supports collective bargaining by
providing safe guards to protect the rights of the parties to bargain collectively. Collective
bargaining takes place at enterprise and industry levels. Industry level bargaining has tended to
be shunned in favour of enterprise level bargaining which is considered to be more realistic as it
tends to take full account of enterprise capacity.

Bargaining Procedure.

Collective bargaining is an exclusive function of the union and the employer or employers‟
organization. Together they form a bargaining unit. The Industrial and Labour Relations Act was
amended in 1997 to do away with Joint Councils which were bargaining units at industry level.
At enterprise level the bargaining unit was also done away with. Before the amendment,
whatever was agreed by the Joint Council was binding to everyone in a particular industry. Small
enterprises were disadvantaged if they had no capacity to meet the agreed conditions.

At enterprise level, the bargaining unit consisted of representatives on the union‟s side and the
individual employer on the other side. The collective agreement reached was not gazzetable. The
bargaining unit only submitted five copies to the Commissioner. These agreements were also
subject to the approval of the minister. In order to be valid, every collective agreement must

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contain the mandatory statutory clauses which included the date on which the collective
agreement will come into effect, the period in which it will remain in force. It should also
contain the methods, procedures and rules for reviewing, amending, replacing or terminating the
collective agreement (s 68).

Generally, the government does not interfere with collective agreements. The major determinant
is the capacity of the employer and the negotiating skills of the union. Provided an agreement is
not contrary to any written law, the minister will direct the registration of the agreement. Upon
registration by the labour commissioner, a collective agreement assumes legal effect and is
binding on the parties. A collective agreement which is not registered has no legal effect.

The parties to a collective agreement are required to lodge five signed copies of the collective
agreement to the commissioner who in turn submits them to the minister. If the minister is
satisfied with the contents, he directs the Commissioner to have the agreement registered. If not,
a copy of the agreement is returned to the parties with the reason for the refusal with instructions
to the Commissioner. Government‟s insistence in the last quarter of 2003 that due to the financial
difficulties it was facing, it had to meet with representatives of the Civil Servants and Allied
Union of Zambia to renegotiate the collective agreement entered into between them was in
accordance with S72 of the ILRA.

While the law recognizes the duty to bargain collectively, it does not prescribe any standards for
bargaining. This has led to many disputes between employers and TUs in Zambia.

Case:

Council of the University of Zambia and another v University of Zambia and Allied Workers
Union (2003) ZR 24.

A collective agreement was not made to be registered by the Commissioner because the minister
felt that due to a wage freeze in existence at the time, the collective agreement should not be
implemented.

The minister will not direct the registration of a collective agreement unless he is satisfied that
the agreement contains the mandatory statutory clauses (S68) and that the clauses do not contain
anything that is contrary to any written law. (S71).

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On appeal to the SC, it was held that as long as the collective agreement is not approved by the
minister, it has no legal effect even if it meets the requirements under S68 of the ILRA.

Incorporation of Collective Terms

Collective terms of an agreement can be incorporated into individual contracts of employment


either automatically or through conscious incorporation. The legal status in Zambia is that if the
agreement is procedurally correct and approved by the minister, it constitutes a legally binding
contract between the parties.

In the case of Kamayoyo v Contract Haulage, the SC held that a collective agreement is a
legally binding contract between parties and anything done outside these contractual agreements
are of no legal effect. The same applied in the case of Pamodzi Hotel v Godwin Mbewe, where a
collective agreement was incorporated into the terms of employment that bound both parties.

Industrial Action

Industrial action refers collectively to any measures taken by trade unions meant to reduce
productivity in a work place. Industrial action may take place in the context of labour dispute or
may be made to effect political or social change. Specifically, industrial action may include
strike (work stoppage caused by the mass refusal of employees to work), lockout (the exclusion
of employees by their employer from their place of work until certain terms are agreed to),
occupation of factories (employees occupy factories to prevent lockouts), work to rule (work only
normal working hours), go slow (employees perform their duties but seek to reduce productivity
or efficiency in their performance of these duties), or overtime ban (employees limit their
working time to the hours specified in their contracts). A go slow is popular amongst essential
service employees as they are prohibited by law to go on strike. Essential service workers
include those in generation, supply and distribution of electricity, hospital or medical service,
distribution of water, fire brigade, maintenance of mine safety, and underground drainage.

S76(1) of the ILRA stipulates the procedure to be followed before a dispute can be deemed to
exist and neither party to the dispute is engaged in an essential service. The dispute is resolved
through conciliation. In the case of a dispute arising between parties, either of whom is engaged

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in an essential service, the parties cannot resort to conciliation but have to refer the dispute to the
IRC for resolution. See S 76 (6) of the Act.

A collective dispute exists when there is a dispute between employers or organizations


representing employers and employees or organizations representing employees relating to terms
and conditions of service. In the dispute, one party presents in writing to the other party all its
claims and demands. The other party should have failed to answer the claims and demands
within 14 days and made no counter offer. Alternatively, both parties to the dispute should have
held at least one meeting with a view to negotiating a settlement of the dispute and failed to
reach settlement on all or some of the matters in issue between them.

Collective disputes involving non-essential service organizations are settled by conciliation.


Where a conciliator fails to settle a collective dispute, the matter may be referred to court or a
ballot is conducted to settle the dispute by a strike or lockout. Where a matter is referred to court,
the decision of the court is binding upon the parties‟ subject to appeal to the Supreme Court. The
minister is at liberty to intervene before the strike or lockout.

While the law permits both essential and non-essential employees to enter into collective
bargaining, s 107(3) prohibits an employer or any other person from taking part in a lock out.
Any employee, a trade union or any other person taking part in a strike which is likely to hinder
or interfere with the carrying on of any essential service will be committing an offence. It is very
difficult to go on a legal strike in Zambia because the procedures are very cumbersome. The
implications of S78 (ii) of the ILRA are that any employee involved in an illegal strike is in
breach of the employment contract. Even under the common law, breach of the collective
agreement by either party has the same effect as the breach of any other contract. Under common
law, when such happens, the employer has the following remedies open to him. He may treat the
employee as having repudiated the contract of employment and hence terminated it, or he may
sue the employee for damages for breach of contract and retain him in employment. He may also
withhold payment for the number of days that the employee was absent.

Although members of the defence forces, Zambia intelligence service judges, magistrates and
registrars of courts are not allowed to form unions, it appears they are allowed to form
associations to further their professional interests. For example, magistrates and judges have

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formed an association called Magistrates and Judges Association of Zambia (MAJAZ).


However, such associations are not unions and therefore cannot engage in collective bargaining.

The Tripartite Consultative Labour Council (Workers‟ Representatives, Employers and


Government)

The Tripartite Consultative Labour Council is made up of the minister as chairperson and such
equal number of members of the trade unions, the employers and the government as the minister
may determine but the members shall not be less than twenty-one. The commissioner shall act as
the secretary. In the absence of the minister, the Permanent Secretary in charge of labour shall
chair the meeting. The council meets at least twice per year. The functions of the council are to
advise government on issues relating to labour matters, manpower development and utilization
and any other matter referred to it by the government.

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UNIT 9: THEORETICAL APPROACHES TO EMPLOYMENT AND INDUSTRIAL


RELATIONS

Theory could be viewed as a coherent group of assumptions or propositions put forth to explain a
phenomenon. Theory attempts to observe, understand, explain, predict and control events or
phenomenon. It helps in our understanding of events and problems in the practical world
(Fajanda, 2000, p 21)

Theoretical and conceptual framework of employment relations

Employment relations is the study of the regulation of employment relations between employer
and employee, both collectively and individually, and the determination of substantive and
procedural issues at industrial, organisational and workplace levels. According to Kaufman
(2010) industrial relations is viewed as the process of rulemaking for the workplace, job
regulation, social regulation of production and the social regulation of market forces.

According to Bain and Clegg (1974), a traditional approach to employment and industrial
relations has been to regard it as the study of the rules governing employment, and the way in
which rules are changed, interpreted and administered.

Theoretical Themes

1. Unitary Theory:

The Unitary frame of reference is credited to Alan Fox (1966). The unitary perspective views the
organisation as pointing towards a single or unified authority and loyalty structure. Emphasis
under the unitary perspective is placed on common values, interests and objectives. Those
subscribing to this view see all organisational participants as a team or family thereby implicitly
emphasising shared values, shared goals and common destiny. Unitarism in essence implies the
absence of factionalism within the enterprise (Fujana, 2000). Conflict is regarded as
pathological, evil or bad. Trade unionism is banned as it is viewed as an illegitimate intrusion
encroaching on management‟s right to manage. Under the unitary perspective, trade unions are
seen to be competing with management for the loyalty of employees. This theory tends towards
authoritarianism and paternalism.

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This theory is pro-management biased and emphasises consensus and industrial peace. The
underlying perspective of this view is that the organisation exists in perfect harmony and all
conflict is unnecessary.

2 Conflict Theory

Conflict theory is synonymous with the pluralist or pluralistic frame of reference which is
credited to Alan Fox (1966). The conflict theory views the organisation as a collection or
combination of sectional groups with different values, interests and objectives. Thus employees
have different values and aspirations from those of management and these values and aspirations
are always in conflict with those of management. Conflict theorists argue that conflict is always
inevitable, rational, functional and a normal situation in organisations which is resolved
through compromise and agreement or collective bargaining. Conflict theorists view trade
unions as legitimate challenges to managerial rules or prerogatives and emphasise competition
and collaboration. This view recognises trade unions as legitimate representative organisations
which enable groups of employees to influence management decisions. It is viewed by some
philosophers that the pluralistic perspective is more relevant than the unitary perspective in the
analysis of industrial relations in many large unionised organisations with developments in
contemporary society.

3 Systems Theory

The concept of system derives from structural/functional perspectives of social system (society).
The social systems theory is made up of different actors. These are:

a) a hierarchy of managers and their representatives in supervision


b) a hierarchy of workers (non-managerial) and their spokesmen
c) specialized government agencies and specialized private agencies created by employers
and employees, concerned with workers, enterprises and their relationships.

Context in which actors operate:

In this system, there is a larger environment which shapes the conduct of, and the rules
established by workers, employers and the state. These rules are made in what is called contexts

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and they include technological characteristics of the workplace and the work community, the
market budgetary constraints and the locus and distribution of power in the larger society.

The actors in a given context establish rules for the workplace and work community. These rules
govern their own interactions and may pertain to issues involving wages/salaries, hours of work
and other terms and conditions of employment as the case may be. Other rules relate to
discipline, redundancy, settlement of disputes, and renewal of collective agreements.

The systems theory has a set of ideas and beliefs held by each group of actors that help to bind or
integrate the system together as an entity. In its operation, the systems theory has inputs
emanating from the actors i.e. employers, employees, and government agencies, who initiate
processes for bargaining, conciliation, arbitration and law making. These processes lead to
outputs such as rules, collective agreements, settlement of disputes and guidelines for the
improvement of the workplace. The processes create a feedback loop for the improvement of
rules and refinement of ideologies so that the processes of collective bargaining, conciliation and
arbitration can be improved upon in future.

4. Marxist Theory

Marxism is more or less a general theory of society and of social change with implications for
the analysis of industrial relations within capitalistic societies and does not strictly explain the
theory of industrial relations. Hyman (1975) based on the Marxist theory, states that the control
feature of industrial relations is the unceasing power struggle for control. This struggle
emanates from the nature and characteristics of capitalist society. The major characteristics of
capitalism are:

i) the ownership and control of means of production by a small minority


ii) the domination of profit as the fundamental determinant of economic activities, and
iii) the obligation of most society to sell their productive abilities on the market as a
commodity.

Because of this, two classes are distinct in the capitalist society. These are the owners of the
means of production i.e. the capitalist or bourgeoisie and the owners of labour, the workers or
proletariat. This being so, the interests of employers and employees are diametrically opposed

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and conflicted. The capitalist endeavours to purchase labour at the lowest possible price whist
the owner of labour on the other hand tries to sell his only asset at the highest possible price to
ensure his existence.

Thus in capitalist industrial society, the interests and aspirations of both employees and
employers are divergent and in conflict. Hyman further states that industrial relations are all
about power, interests and conflict. The economic technological and political dynamics of the
broader society inevitably shape the character of relations among the actors in industrial relations
which he described as the political economy of the industrial relations. Conflict is viewed as a
disorder precursor to change. To resolve conflict means to change the imbalance and inequalities
in society in terms of power and wealth. Trade unions are viewed as employee response to
wealth. Marxist theory emphasises exploitation and alienation. This perspective is critical of
capitalist society and its systems of production, distribution and exchange. It emphasises the
importance of collective action including strike action and action short of strikes.

5 Social Action theory

According to Green (1994), “the social action theory views industrial relations from the
individual‟s view point and motivation”. The social action approach considers the organisation
from the position of the individual members or actors who will each have their own goals. This
perspective regards conflicts of interest as normal behaviour and part of organisational life. The
theory seeks to analyse why actors take certain lines of action. This contrasts with the system
action which states that behaviour is the result of the structure and processes of the system.
Social action arises from the expectations, norms, attitudes, values, experiences, situations
and goals of the individuals working in the system. While the system theory approach is up
down, the social action theory is bottom up. Salamon (2001) advocates the importance of social
action theory of industrial relations, he is of the view that it weakens the fatalism of structural
determinism and stresses that the individual retains some freedom of action and ability to
influence events in the direction that he/she believes to be right or desirable.

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UNIT 10: INTERNATIONAL LABOUR ORGANISATION AND LABOUR


REGULATION

International Labour Organization (ILO)

ILO was formed in 1919 as a specialized agency of the United Nations to develop and promote
labour standards. The ILO has over the years evolved into the international

flagship organization in the internationalization of labour law and standards.

The broad and overarching principles of the ILO are proclaimed in the Philadelphia Declaration
of 1944 which affirmed its aims and purposes:

i) That labour is not a commodity.


ii) Freedom of expression and association are essential to sustained progress; and
iii) Poverty anywhere constitutes a danger to prosperity everywhere.

„War against want and privation would only be won with concerted and unceasing effort to
promote the common welfare.”

The broad principles seek to promote lasting world peace and harmony by realizing regulation
of, a) hours of work, b) labour supply, c) prevention of unemployment, d) provision of adequate
living wage, e) protection against sickness, disease and injury, f) protection of foreign workers,
g) recognition of the principle of equal remuneration for work of value, e) recognition of the
principle of the principle of freedom of association, and f) the organization of vocational and
technical education and other measures.

Membership of the ILO

Membership of the ILO is open to all nations which are members of the of United Nations
Membership. Organs of ILO are created by virtue of the provisions of Article 2 of the ILO
Constitution which provides for the following:

(a) A General Conference of representatives of the Members.

(b) A Governing Body.

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(c) An International Labour Office controlled by the Governing Body.

The General Conference is modelled on the tri-partite framework with membership drawn from
government, workers‟ representatives and representatives of employers. Delegates to the General
Conference, held at least once each year have voting rights.

The Governing Body consists of 28 Representatives of Governments, 14 of employers and 14 of


workers elected from among the members of the General Conference.

The International Labour Office is established in accordance with the Constitution and managed
by a Director-General appointed by the Governing Body.

The functions of the International Labour Office are provided for in the ILO

Constitution and include:

i) Collection and distribution of information on all subjects relating to the international


adjustment of conditions of industrial life and labour.
ii) To facilitate conclusion of International Conventions, and
iii) To Conduct of investigations as may be ordered by the Conference or by the Governing
Body.

ILO Conventions and Recommendations

The ILO creates International Labour Law and sets standards through its decision making
machinery of the General Conference. Decisions of the General Conference can take two forms
namely: conventions which have treaty status and recommendations where members do not wish
to give treaty status to the subject of the recommendations. Recommendations or conventions are
carried by two thirds majority vote. Implementation of the conventions and recommendations is
facilitated by the requirement to submit annual reports. Members may also cite others for non-
observance of the Constitution and pledge to cooperate with any inquiries that may arise.

The standard setting function of the ILO through its conventions and recommendations has
created a large body of international labour standards. Eight Conventions regarded as Core
Conventions are highlighted as specified in the in the ILO Declaration on Fundamental

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Principles and Rights at Work. These are binding on all members by virtue of membership of the
ILO.

The eight conventions and the principles they espouse are listed below:

□ Freedom of Association and the Effective Recognition of the Right to Collective


Bargaining

1. Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87).

2. Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

□ The Elimination of all Forms of Forced and Compulsory Labour

3. Forced Labour Convention, 1930 (No. 29).

4. Abolition of Forced Labour Convention, 1957 (No. 105).

□ The Effective Abolition of Child Labour

5. Minimum Age Convention, 1973 (No. 138).

6. Worst Forms of Child Labour Convention, 1999 (No. 182).

□ The Elimination of Discrimination in Employment and Occupation

7. Equal Remuneration Convention, 19551 (No. 100).

8. Discrimination (Employment and Occupation) Convention, 1958 (No. 111)

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BIBLIOGRAPHY

Books

Emir, Astra (2012). Selwyn‟s Law of Employment, 17th Edition, UK: OUP.
FL Memo (2009). Employment Law and Practice, London: FL Memo
Lewis, David, (1997). Essentials of Employment Law. 5th Edition, London: Institute of Personnel
and Development.
Muhyila Mildred, Employment Law Module, ZCAS University, Lusaka.
Musonda, Akwale (2017). The Current Labour and Employment Laws in Zambia: Legislation,
Cases and Materials. Lusaka, ZEPH.
Mwenda, W.S., (2011). Employment Law in Zambia, Revised Edition, Lusaka: UNZA Press
Smith, Ian and Aaron Baker, (2010). Smith and Wood‟s Employment Law. 10th Edition, New
York: Oxford University Press.

Acts of Parliament
The Employment Code Act No.3 of 2019
The Industrial and Labour Relations Act, Chapter 269 of the laws of Zambia
The Companies Act, Chapter 388 of the Laws of Zambia
The Constitution, Chapter 1 of the Laws of Zambia
The Emergency Powers Act, Chapter 108 of the Laws of Zambia
The Factories Act, Chapter 441 of the Laws of Zambia
The Persons with Disabilities Act, Chapter 65 of the Laws of Zambia
The Preservation of Public Security Act, Chapter 112 of the Laws of Zambia
The Workers‟ Compensation Act, Chapter 271 of the Laws of Zambia

The Factories Act


The National Pension Scheme Authority Act

Cases
Barclays Bank Zambia v. Zambia Union of Financial Institution and Allied Workers, SCZ No 12
of 2007
Beloff v Pressdam [1973] 1 ALL ER 241
Cassidy v. Minister of Health [1951] 2 KB 343

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Chilanga Cement v Kasote Singogo SCZ No 13 of 2007


Collier v Sunday Referee Publishing Co. Ltd [1940] 2 QB 647
Contract Haulage Ltd v Mumbuwa Kamayoyo [1982] ZR 13 SC
Edward Mweshi Chileshe V Zambia Consolidated Copper Mines Ltd S.C.Z. Judgment No. 10 of
1996
Faccenda Chicken Co. v. Fowler (1988) 1 ALL ER 617
Faidecy Mithi Lungu v Lonrho Zambia Ltd Appeal No. 182 of 2000 [Ureported]
Friday J.M. Ngwira V Zambia National Insurance Brokers Limited S.C.Z. Judgment No.9 of
1994
Gerald Musonda Lumpa v Maamba Collieries Ltd [1988-1989] ZR 217
Gibbons v Associated British Ports [1985] IRLR 376
Henry Milton Mulenga v Refined Oil Products IRC Complaint No. 40 of 1983 [unreported]
Herwitt Chola and 154 Others v Dunlop Zambia Ltd SCZ Appeal No. 108 of 2001 [Unreported]
Joseph Greta Chikuta v Chipata Rural Council 1983 ZR 26 (SC)
Lawrence Muyunda Mwalye and Bank of Zambia SCZ Judgment No. 22 of 2000
Market Investigations Ltd v Minister of Social Security [1969] 2QB173
McCleod v Hellyer Bros [1987] IRLR 232
Mike Musonda Kabwe v. BP Zambia. SCZ Judgment No. 10 of 1997
National Milling Company Ltd v Grace Simataa & Others SCZ Judgment No. 21 of 2000
Pamodzi Hotel v Godwin Mbewe [1987] ZR 56 (SC)
Posts and Telecommunications Corporation Limited V Salim Jack Phiri SCZ. Judgment No. 7 of
1995
Ready Mixed Concrete (South East) v Ministry of Pensions & National Insurance [1968] 2 QB
497
Redrilza Limited V Abuid Nkazi And Others SCZ Judgment No. 7 of 2011
Western Excavating (ECC) Ltd v Sharpe [1978] IRLR
Zambia Consolidated Copper Mines Limited V Patrick Mulemwa SCZ Judgment No. 15 of 1995
Zambia National Broadcasting Corporation Limited V Penias Tembo, Edward Chileshe Mulenga
and Moses Phiri SCZ Judgment No. 9 of 1995
Zambia National Provident Fund v Yekweniya Mbiniwa Chirwa [1986] ZR 70 SC

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Zambia State Insurance Corporation Ltd v Allisand Singogo SCZ Appeal no. 2 of 2007
[unreported]
Zambian privatization Agency v Matale [1995-1997] ZR 157 SC
ZCF Finance Services Ltd v Happy Edubert Phiri SCZ Appeal No. 93 of 2001 [Unreported]
Reports/ Newspapers/ Internet
Chanda, Davies, M. M. Horse Shoe Saga in New Twist. Times of Zambia Newspaper, December
25th 2016
http://www.ilo.org
International Confederation Of Free Trade Unions (ICFTU). Internationally-Recognised Core
Labour Standards In Zambia. Report For The WTO General Council Review Of Trade Policies
Of Zambia (Geneva, 23 - 25 October 2002)
www.mywage.org/Zambia- Discrimination
Zambia Congress of Trade Unions (ZCTU). Country Report On Occupational Health And Safety
And HIV/Aids In Zambia. Paper Prepared For Presentation At The Training Of Trainers Course
By The ITC/ILO (Ghana, 13 – 17 August 2012)

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