This action concerned an appeal from the Industrial Relations Court where an employee was employed on a permanent contract by Voluntary Services Overseas Zambia as an Administrative Officer on 11th July 1996. He was later promoted to the position of Officer Manager.
In 2001/2002, the employer changed its employment policy from employing staff on permanent terms to employing them on fixed-term contract. By 2008, the employer begun restructuring and informed employees. The employee’s position of Officer Manager was phased out and removed from the employer’s organisational structure, with two positions created, including that of Finance Manager. The employee claimed a redundancy package as he considered himself redundant. The employer declined to give him the redundancy package but offered him the position of Finance Manager in the restructured entity.
The employee was initially reluctant to take up the position as he felt he was not qualified for the position, and he feared that the employer would use any poor performance on his part to dismiss him at a later stage. Despite his concerns, he accepted the new position.
He was subsequently subject to various disciplinary issues and resigned. He commenced an action claiming a redundancy package, calculated at three (3) months’ pay for each year worked.
The Industrial Relations Court held that while there cannot be a redundancy where an employee is offered alternative employment, in this case the employee was not offered suitable alternative employment and only took up the position due to his employer’s coercion. The court ordered the payment of a redundancy package but declined to award damages for mental distress and anguish.
The Supreme Court confirmed that the provisions on redundancy and the (now repealed) Employment Act situated in section 26B do not apply to employees on written contracts. The court guided that for those on written contracts, redundancy only applied if the contract provided, which it did in this case. The fact that the Industrial Relations Court did not consider the provision on redundancy in the contract was a misdirection, according to the Supreme Court.
"Frida Kabaso (Sued as Country Director of Voluntary Services Overseas Zambia) v. Davies Tembo SCZ Appeal No. 04/2012,"
SAIPAR Case Review: Vol. 5:
1, Article 14.
Available at: https://scholarship.law.cornell.edu/scr/vol5/iss1/14