EMPLOYMENT LAW CASES

UNIT 1

Control Test

Yewens v Noakes

Principle: The definition of an employee (person who is subject to the command of his
master as to the manner in which he shall do his work).

Held: the man was not a “servant” or an employee of the building owner as the owner had
no right to control the man’s work and manner in which it was done.

Performing Right Society v Mitchell

Principle: The definition of an employee (person who is subject to the command of his
master as to the manner in which he shall do his work.)

Held: the members of the band are said to be employees as the dance hall company had
control over the members of the band.

Integration(organization) Test

Stevenson, Jordan & Harrison Ltd v Macdonald & Evans Ltd

Principle: whether the work being done is an integral part of the business operation of the
person hiring the services of the worker or is merely an accomplice to it.

Held: even though the employer does not have any detailed control of what the employee
does, a person who is integrated with others in the organization or business is an employee.

UNIT 2

Implied duties in employment relationship

Liverpool city council v Irwin

Principle: Whether the court can imply a term into a contract

Held: it was possible to imply such a term into the contract, but that the Council was not in
any event guilty of breaching it as the damage had been carried out by vandals. The
residents also had a duty of care.

Implied duties of the employer

(a) Duty to provide work

Collier v Sunday referee publishing Co Ltd

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Principle: Employer not obligated to provide work but to pay wages under the contract

Held: an employee who is paid his/her wages cannot complain if no work is provided as long
as the employer paid the agreed wages.

(i) Publicity and reputation

Herbert clayton and Jack Waller Ltd v Oliver

Held: the court regarded loss of publicity rather than loss of reputation as the preferable
expression.

(ii) Earn the wage

Turner v Sandon

Held: to have no legal complaint so long as the salary continued to be paid, notwithstanding
that owing to their employers’ action they were left with nothing to do.

(iii) Develop or maintain skill

Langston v Amalgamated union of engineering workers

Held: Unless there is an express provision for this an employer must provide work to an
employee when there is available work to be done.

(b) Duty to Pay Wages

Duckworth v P.R Farnish Ltd

Principle: The employer is under an obligation to pay the employee a wage and commits a
fundamental breach if he fails in this duty.

(c) Duty of mutual trust and confidence

Malik v Bank of credit and commerce

Held: It is an implied term of any contract of employment that the employer shall not without
reasonable and proper cause conduct itself in a manner calculated or likely to destroy or
seriously damage the relationship of confidence and trust between employer and employee. 

(d) Duty to indemnify the employee against liabilities and losses

Re Famatima development corporation Ltd

Principle: An employee on duty does so for the benefit of the employer. Any expenses,
losses or liabilities that the employee suffers are chargeable to the employer.

(e) Testimonials and references

Reliance Loss

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Hedley Byrne v Heller and Partners

Principle: The future employer who suffers loss may sue for reliance loss.

Spring v Guardian Insurance

Held: An employer who provides a reference in respect of an employee to a prospective

new employer owes a duty of care to the employee in respect of preparation of the
reference.

Implied duties of the employee

(a) Duty of personal service

Express and Echo publications Limited v Ernest Tanton

Principle: A contract for services, which required the contractor to provide an alternate
worker in case of sickness, could not be a contract of employment. Such a clause could not
be said to require the services to be provided personally.

(b) Duty to obey reasonable and lawful instructions

Pepper v Webb

Held: a gardener’s refusal to obey instructions was held to be a breach of his implied duty
and warranted his summary dismissal.

(c) Duty to exercise reasonable care and skill

Agholor v cheese borough ponds Ltd

Held: It is well settled that the employee who holds himself out as being skilled to do a
certain type of work impliedly undertakes that he will exercise reasonable skill or
competence in that work. He can be dismissed summarily if he fails to display such skill or
competence.

(d) Duty of good faith and loyalty

(i) Confidentiality
Faccenda chicken ltd v fowler

Held: The information and the advantage flowing from it was obtained through dishonesty.
The court set down the obligations of employees after leaving their employment with regard
to confidential information acquired by them.

Nordenfelt v Maxim Nordenfelt

Held: He is under a duty not to disclose such information even after leaving employment.

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J.K Ramba Patel v Mukesh Patel

Held: It must only protect a legitimate proprietary interest and not be used as a way of
avoiding competition.

(ii) Invention
British Reinforced concrete Co. Ltd v Lind

Held: The common law position is that such inventions are the property of the employer.

UNIT 4

Termination with Notice

Lord Averstone CJ wrote in Re African Associations Ltd and Allan stated that “the general
principle applicable to contracts of service is that in the absence of misconduct or of
grounds specified in the contract, the engagement can only be terminated after reasonable
notice. This means that any attempt to terminate a contract of employment without notice
would constitute a breach of contract, for which the employee could bring action for
damages. Similarly, there can be no cause of action that can be put against an employer
who has lawfully terminated a contract. These principles received approval in the Supreme
Court of Zambia in the case of ZAMBIA PRIVATISATION AGENCY VS. MATALE
(1995 – 1997) ZR 157
Summary Dismissal

Agholor v cheese borough ponds Ltd

Held: It is well settled that the employee who holds himself out as being skilled to do a
certain type of work impliedly undertakes that he will exercise reasonable skill or
competence in that work. He can be dismissed summarily if he fails to display such skill or
competence.

Constructive Dismissal

Marriot v oxford and district co-operative society limited

Principle: unilateral reduction in salary or status.

Walker v Josiah Wedgwood and sons limited

Principle: workplace hostility.

Kitwe city council v William Ng’uni (Test for constructive dismissal)

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Principle: The test for constructive dismissal is whether or not the employer’s conduct
amount to a breach of contract which entitle an employee to resign.

Faidecy Mithi lungu v Lonhro Zambia Limited

Principle: an employee who is given an alternative position where reorganization has taken
place and accepts the new arrangement cannot claim constructive dismissal on grounds of
victimization or harassment.

Chilanga cement Plc v Kasote Singogo

Held: In constructive dismissal, an employee leaves employment promptly or by notice, as a

result of the conduct of his employer; An employee can claim to have been constructively
dismissed of he resigned or was forced to leave employment as a result of his employer’s
unlawful conduct, which conduct amounts to a fundamental breach of contract of
employment. It is the employee who makes the decision to leave. (requirements)

The notion of constructive dismissal comes from the concept “An employer must not, without
reasonable or proper cause, conduct himself in a manner calculated or likely to destroy or
seriously damage the relationship of trust and confidence between the employer and the
employee." Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84, EAT.

Unfair Dismissal

Henry Million Mulenga v Refined Oils Products

Held: An employee who can prove a termination in violation of statute will be reinstated as
the unfair dismissal seeks to limit the employer’s capacity to terminate the employment
relationship in an arbitrary manner.

RESIGNATION
JOSEPH GERETA CHIKUTA VS. CHIPATA RURAL COUNCIL (1983) ZR 26
It was held that there is no law which confers the right in effect to force an employee to
remain in the employer’s service. The appellant had every right to resign and having done
so, such resignation effectively terminated the contract of service. The respondent should
have dismissed the appellant during the period of notice given by him.
CASE ON REDUNDANCY/RETIREMENT
KABWE VS BP ZAMBIA LTD (1995 – 1997) ZR 218(SC)
The Court held that the contracting of Employment between the parties terminated on 9 th
June, 1994 when the Redundancy reduced cannot be said that the accepted the new
conditions. The contract of Employment was terminated on the 9 th June 1994 when the
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redundancy reduced the appellant’s salary without his consent. His benefit ought to have been
calculated on increased salary applicable to him.
This case lies during the laws as it presently is a universal variation of contracts of
employment by employers. The Supreme Court was categorical in the fact that in the event of
an employer verging the contract of employment without the consent of the employee, the
employee is deemed to have been declared redundant on that date of such variation. The
unilateral variation of a contract of employment by an employer buys the contract to end.
CASE OF HERWITT CHOLA AND 154 OTHERS VS DUNLOP ZAMBIA LIMITED
SCZ APPEAL No 108 of 2001
The appellants and 154 other people were Employees of the respondent declaring company.
They were served with letters declaring them redundant on 2 nd September 1997. They filed a
complaint in the I. R. C against their former Employer stating that the deciding to declare
them redundant was wrong as the procedure was not collective agreement.
UNIT 6
LEGAL STATUS
Zambia State Insurance Corporation Limited v Zambia Bottler Limited Pension
Scheme, in which the courts stated “Nevertheless, there are several kinds of
unincorporated bodies, consisting of two or more persons bound together for one or
more common purposes, which may be regarded as having separate legal entity and
a juridical personality sufficient to enable them to sue or to be sued in their own
name or through the medium of trustees who hold their property in trust for them.
Thus, a trade union is not and may not be treated as if it were a body corporate but
is nevertheless capable of suing and being sued in its own name for any cause of
action whatsoever. Similarly, an employers’ association may be a body corporate or
alternatively an unincorporated association and, in such case, it is capable of suing
and being sued in its own name for any cause of action whatsoever.”

UNIT 7

Legal Support for bargaining

Facilities subsector bargaining association v British Columbia

Principle: The right to bargain collectively with an employer enhances the human dignity,
liberty and autonomy of workers by giving them the opportunity to influence the
establishment of workplace rules and thereby gain some control over a major aspect of their
lives, namely their work.

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Kamayoyo v contract haulage

Held: a collective agreement is a legally binding contract between the parties and that
anything done outside these contractual agreements are of no legal effect.

Pamodzi hotel v Godwin Mbewe

Held: where there is a collective agreement which has been properly published in the
Gazette and which contains a disciplinary code providing for a certain procedure to be
followed before the dismissal, there is statutory support for such procedure and a breach
thereof might as well result in a declaration that a dismissal was null and void.

UNIT 8

CASE LAW ON JURISDICTION

Mulambya v. Tanzania Zambia Railway Authority, IRC Comp. No 6 of 1983 (unreported)

Note: The reader should take note of the fact that this case occurred before the Industrial
Relation Act, which was repealed by Industrial and Labour Relation Act No. 27 of 1993. The
position now is that the Industrial Relation Court has original and exclusive jurisdiction,
under section 85 (1) of the Labour Relation Act, to determine any industrial relation matters.

ZNPF Board v. Attorney-General and Others and in the matter of Industrial Relation Court’s
decision date 29 October 1982 and An Application for Certiorari (1983) ZR 140(HC)

There is another test, well recognised by lawyers, by which to distinguish a superior

from an inferior court, namely, whether in its proceedings, and in particular in its
judgement, it must appear that the court was acting within its jurisdiction. This is the
characteristic of an inferior court, whereas in the proceeding of a superior court, it will
be presumed that acted within its jurisdiction unless the country should appear on the
face of the proceeding. I am inclined to accept both tests. It goes without saying that the IRC
in proceeding must act within its jurisdiction as provided by the Act. I am mindful that the
present chairman of the IRC is a judge of the High Court. But she presides in the IRC not as
judge of the High Court but as chairman of the IRC exercising limited jurisdiction of that
court. Thus, after considering all statutory provision governing the two courts, I have no
doubt in concluding that the IRC is not a superior court of record and in my judgement, it is
inferior to the High Court for purpose of this application.

IMPORTANT NOTES

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 Unit 8

Industrial relation matters include, award and decisions of collective disputes interpretation of the
term of awards, collective and recognition agreement; and general inquiries into, and adjudication on
any matter affecting the right, obligations and privileges of employees, employers and their
representative bodies.

Unit 9

All factories must be registered with the Labour commissioner in a register of factories maintained as
such. The application for entry into the register must be in writing and if satisfied that the premises
comply with the provisions of the Act, the commissioner is under obligation to register the premises
and issue a certificate of registration. In this respect, the following are spelt out in the factories Act:

a) The Act obliges the factory owners to ensure; cleanliness, no overcrowding,

general ventilation, good lighting and sanity conditions.

b) The Act obliges the factory owners to ensure safety of workers as regards
machinery. This may require the fencing of dangerous machinery and proper maintenance
of floors, steps, stairs, passages and gangways.

c) There must be adequate provision of means of escape and warning in case of fire.

d) The Act also has a provision on the minimum standards that must be involved for
work that involves the lifting of machinery.

e) In factories where workers are subjected to excessive exposure to any poisonous

or other injurious or offensive substances or to any heat, cold or wetness, suitable
protective clothing and appliances must be provided and maintained for the use of such
persons.
It is an offence for the owner of a factory to fail to comply with the provisions of the Act
and such occupier is prohibited from making any deductions from the wages paid to his
employees for anything to be done or provided by him in pursuance of the provision of
the Act.

Finally, section seven (7) of the Act, gives factory inspectors the following powers:

(a) To enter and examine at any time a factory

(b) To require the production of documents in respects of the factory

(c) To make any such examination and enquiry as may be necessary.

Unit 10
WORKERS’ COMPENSATION FUND CONTROL BOARD (WCFB)
WCFCB is a social security body constituted under Act No. 10 of 1999 of the laws of Zambia for
the purpose of compensating workers in the event of occupational accident and disease. All

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employers except the state are required to comply with the requirements of Workers’
Compensation Act for the purpose of providing social security to workers for occupational
accidents and disease by:

i) Registering with the board within fourteen days commencement of the business.

ii). Declaring statement of workers earnings to the Board annually.

i) Remitting of assessment to the Board within three days of being assessed.

Failure to comply with the requirements of the Workers’ Compensation Act constitutes an
offence for which employers risk prosecution by the Board.

BENEFITS

1.0 The Boards provides compensation benefits on behalf of employers to workers in

the event of disabilities or death arising out of and in the course of employment.

2.0 The Board provides occupational health and safety programmes to assist
employers reduce accidents and disease in work places.

3.0 The Board indemnifies employers against civil claims which may be instituted
for compensation in the event of occupational accidents and diseases.

Unit 4

The contract of employment may come to an end through termination of the contract, dismissal,
resignation, redundancy, retrenchment, retirement, frustration or the death of the employee and
medical discharge.

Unit 6

Federation of Trade Unions

A federation of trade Union is an organization whose membership consists of registered trade unions
affiliated to such federations and whose principal objectives are the promotion and regulation of
relations between the trade unions affiliated to the federations or between employees, their trade
unions, employers and employers’ organizations.
Before 1997, the Zambian Congress of Trade Unions was the umbrella body for all trade unions in
Zambia. However, with the enactment of the Industrial Relations (Amendment) Act No. 30 of 1997,
the Zambian Congress of Trade Unions was continued, and still is, in existence as an incorporate
body. The Congress deemed to be registered as a federation of trade unions under the Act. I other
words, it is one of the federations of trade unions in existence in Zambia.
Unit 7
Incorporation of Collective Terms

There are two theories regarding incorporation of collective terms into individual contracts of
employment. The first one is known as the concept of automatic incorporation. Under this concept, it
is assumed that the collective terms are incorporated automatically into individual contracts of
employees in the enterprise or industry in which the collective agreement is in effect as soon as the

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agreement becomes legally binding. The other theory is that there is no automatic incorporation of
collective terms but that parties to the contract of employment must consciously incorporate the said
terms in their contracts of employment.

The legal status of collective agreements in Zambia is that if the agreement is procedurally correct and
approved by the Minister, it constitutes a legally binding contract between the parties.

The implication of section 78 (ii) in the Industrial Relations Act are that any employee involved in an
illegal strike will be in breach of his contract of employment. Even under the common law, breach of
a collective agreement by either party has the same effect as the breach of any other contract. Breach
includes unilateral alteration of the provisions of the collective agreement. Where a breach involves
non – implementation of the existing rights under the collective agreement, a dispute of rights arises
while a dispute involving the introduction of new terms which the parties fail to agree upon results in
a dispute of interests.

The central question in as far as industrial action is concerned, is what is the legal effect of industrial
action on the part of the employee who takes who takes part in industrial action in breach of his
contract of employment, where such contract has an intrinsic implied term that he shall be able and
willing to work? What remedies does an employer have in such a case?

An employee who goes on an illegal strike necessarily terminates his contract of employment. Under
the common law which happens, when 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 and retain him employment. He may also withhold
payment for the number of days that the employee was absent.

It is important to observe and note that although the law has provided for strike action; such action
ought to be resorted to only if other avenues fail because of the disruptive nature of strike action to
both the workers and employers. Furthermore, such action must emanate from disputes “relating to
terms and conditions of or affecting employment.” It is also important to note that industrial action is
particularly proscribed in essential services. The essential services are as defined by the ILO and
include hospital or medical services, electricity generation and supply, supply and distribution of
water, sewerage, fire brigade and certain services in the mines.

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