Pay Them Over Resignations – Court
By Dickson Jere
Medicines and HIV testing kits were stolen at ZAMMSA between 2014 and 2019. The UN Global Fund and donors were livid. They demanded that the Zambia government should come clean and deal with the massive theft amounting to over USD 1 million. Foreign forensic investigators were also called in to help track down the culprits.
In the midst of the drama, seven employees – on permanent and pensionable contract – were caught up in the dragnet. At a company meeting, they were isolated and plain clothed police officers appeared and picked them. They had their phones confiscated and ordered not to leave Lusaka. They were suspended at the office and put on half pay while the disciplinary process was not properly conducted.
Investigations involved Police, DEC, Taskforce and international investigators from Switzerland and South Africa.
They protested against ill treatment but to no avail.
The process went on for three years. Feeling harassed, unwanted and tormented, they one-by-one resigned. Management quickly accepted their resignation and paid them their dues even though their phones remained with police for over year.
They then filed a lawsuit, claiming that they were constructively dismissed as their resignations were triggered by ill treatment and prolonged investigations that did not produce of any negative results against them.
Following trial, the High Court Judge did find that the resignations were triggered by bad working environment at the office as well as the contractual breaches by ZAMMSA. Their suspension without being heard was illegal.
“The complainants have proved, on balance of probabilities, that they were constructively dismissed and,are, therefore, entitled to damages for loss of employment,” the Judge ruled.
“I find that the suspension which was ostensibly imposed to facilitate investigations became unfair. It was not only protracted but also devoid of any resolution of the matter at such an extended period,” the Judge noted.
She then ordered that ZAMMSA pays the ex workers 24 months salaries as damages for loss of employment, which will also attract interest. However, the judge said the same 24 months salary will also cover for compensation for distress and mental anguish suffered.
“The said damages thus encompass the inconvenience and the distress the complainants suffered as a result,” the Judge said.
Case citation – Mumba Jordan & Others v Zambia Medicines & Medical Supplies Agency (ZAMMSA) – Comp/IRCLK/120/2021 and judgement delivered last week.
Lecture Notes;
1. For constructive dismissal to succeed, three things must happen. (I) there must a resignation by the employee. (II) That resignation must be triggered by conduct of the employer which makes the employee continued working unattainable due to breach of contractual terms and (III) the employee must act promptly by showing that he was not happy with the treatment. Simply, he should not seem to accept the bad treatment by the employer.
