Pay Him Salary – Court Orders Bank
By Dickson Jere
Ignatius Mwanamwalye was a compliance specialist at the Zambia Electronic Clearing House. But then he saw a “job advert” for a similar position at the Micro Finance Zambia Limited. Eager for greener pastures, he applied, was interviewed and got the job of Head of Compliance. However, when he reported for work, he was told the position was not “available” until approval by Bank of Zambia (BOZ) is given. At law, he was told, such a position needed BOZ to approve as it is a senior management post in a financial institution.
He was to wait at home, which he did, but nothing came through, including the salary that he was promised. He then opted to resign and immediately filed a case of constructive dismissal before the High Court under cause number 2021/HK/99.
Having heard both sides of the case, Judge Abha Patel agreed that he was constructively dismissed and that the issue of BOZ prior approval of the position was never communicated when the job was offered.
The financial institution had argued that the contract was a nullity with the absence of BOZ approval and therefore he was not entitled to damages.
“It is far fetched to submit that the contract of employment is illegal without prior approval. It is thus the finding of the court that the absence of BOZ approval has no effect on the validity and enforceability of the contract of employment,” Judge Patel said.
The court went further and ordered that Mwanamwalye should be paid his full salaries for the period he was in employment even though he did reportfor work. The court observed that he wanted to work but he was turned away on the ground that there was no approval yet for the position.
“It cannot be argued that payment to the Plaintiff of his salary will constitute undue enrichment. I am therefore of the view that the Plaintiff is entitled to net salary of K38,500 as construed by the contract of employment,” Judge Patel ruled.
The Court ordered that he should be paid his salary from September 2020 to March 2021 with accrued leave days and salary increments due to him. However, the Court declined award him gratuity.
“I also award the Plaintiff 24 months of salary for damages for constructive dismissal and breach of contract,” the Judge said, which should be paid with interest plus costs.
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