EMPLOYMENT AND

INDUSTRIAL RELATIONS
LAW
L213
DISTANCE STUDENTS
MODULE

Greenwell Lyempe
DipHRM (CBU), LLB (UNZA), LLM (UZ), Phd (Cand), AHCZ
5342922843 (TURKEY LINE For Calls ) +260 966787395/+26 0977354729(What’s up only)/lyempe@gmail.com
 This Employment and Industrial Relations Law Module
The Employment and Industrial Relations Law Module has been produced by
Mr. Greenwell Lyempe for Students at The University of Lusaka- Law School
How this Employment and Industrial Relations Law Module is structured

The Module overview

The module overview gives you a general introduction to the module. Information
contained in the module overview will help you determine:
What you can expect from the course.
How much time you will need to invest to complete the course.

The overview also provides guidance on:

Study skills.
Where to get help.
 Assignments and assessments
 Activity icons

We strongly recommend that you read the overview carefully before starting your
study.

The Module content

The Module is broken down into twelve (10) units. Each unit comprises:
An introduction to the unit content.
Unit outcomes.
New terminology.
Core content of the unit with a variety of learning activities.
A unit summary
Assignments and/or assessments, as applicable.
For those interested in learning more on this subject, we provide you with a list of
additional resources at the end of this Employment and Industrial Relations law;
these may be books, articles or web sites.

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Your comments
After completing this Employment and Industrial Relations Law Module, we
would appreciate it if you would take a few moments to give us your feedback on
any aspect of this course. Your feedback might include comments on:
Content and structure.
Reading materials and resources.
Assignments and Assessments.
Duration.
Support (assigned tutors, technical help, etc.)

Your constructive feedback will help us to improve and enhance this course.
Welcome to Employment and Industrial Relations law Module
This Employment and Industrial Relations law Module gives an in-depth
knowledge of Employment and Industrial Relations matters in Zambia.

Module learning outcomes

Upon completion of this Module, you will be able to:

Expected duration of this Module is 4 months

Formal study time required is 4 weeks before the
beginning of the semester
Self-study time recommended is 4 hours per week
Time Frame

Study skills
As an adult learner your approach to learning will be
different to that of your school days: you will choose
what you want to study, you will have professional
and/or personal motivation for doing so and you will
most likely be fitting your study activities around other
professional or domestic responsibilities.

2
Essentially you will be taking control of your learning
environment. As a consequence, you will need to
consider performance issues related to time
management, goal setting, stress management, etc.
Perhaps you will also need to reacquaint yourself in
other areas such as essay planning, coping with exams
and using the web as a learning resource.
Your most significant considerations will be time and
space i.e. the time you dedicate to your learning and the
environment in which you engage in that learning.
We recommend that you take time now—before starting
your self-study—to familiarize yourself with these
issues. There are a number of excellent resources on the
web. A few suggested links are:

 http://www.how-to-study.com/
The “How to study” web site is dedicated to study skills
resources. You will find links to study preparation (a list
of nine essentials for a good study place), taking notes,
strategies for reading text books, using reference
sources, test anxiety.

 http://www.ucc.vt.edu/stdysk/stdyhlp.html
This is the web site of the Virginia Tech, Division of
Student Affairs. You will find links to time scheduling
(including a “where does time go?” link), a study skill
checklist, basic concentration techniques, control of the
study environment, note taking, how to read essays for
analysis, memory skills (“remembering”).

 http://www.howtostudy.org/resources.php
Another “How to study” web site with useful links to
time management, efficient reading,
questioning/listening/observing skills, getting the most
out of doing (“hands-on” learning), memory building,
tips for staying motivated, developing a learning plan.
The above links are our suggestions to start you on your
way. At the time of writing these web links were active.
If you want to look for more go to www.google.com
and type “self-study basics”, “self-study tips”, “self-
study skills” or similar.

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 Need
Help? In case you need help, you can contact UNILUS at the
following website, phone number or you can email.

www.UNILUS.ac.zm
UNILUS: Leopard Hill Campus –
.

Assignments There shall be NO assignment But two tests during

residential school given for this module.

Getting around the Employment and Industrial Relations law Module

Margin icons
While working through this Employment and Industrial Relations law module, you
will notice the frequent use of margin icons. These icons serve to “signpost” a
particular piece of text, a new task or change in activity; they have been included
to help you to find your way around this Employment and Industrial Relations law
module.

A complete icon set is shown below. We suggest that you familiarize yourself with
the icons and their meaning before starting your study.

Activity Assessment Assignment Case

study

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 Discussion Group Help Note it!
activity

Outcomes Reading Reflection Study

skills

Summary Terminology Time Tip

Learning tips
You may not have studied by distance education before. Here are some guidelines
to help you.

How long will it take?

It will probably take you a minimum of 70 hours to work through this study guide.
The time should be spent on studying the module and the readings, doing the
activities and self-help questions and completing the assessment tasks.

Note that units are not all the same length, so make sure you plan and pace your
work to give yourself time to complete all of them.

About the study guide

This study guide gives you a unit-by-unit guide to the module you are studying.
Each unit includes information, activities, self-help questions and readings for you
to complete. These are all designed to help you achieve the learning outcomes that
are stated at the beginning of the module.

Activities, self-help questions and assessments

The activities, self-help questions and assessments are part of a planned distance
education programme. They will help you make your learning more active and
effective, as you process and apply what you read. They will help you to engage
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with ideas and check your own understanding. It is vital that you take the time to
complete them in the order that they occur in the study guide. Make sure you write
full answers to the activities, or take notes of any discussion.

We recommend you write your answers in your learning journal and keep it with
your study materials as a record of your work. You can refer to it whenever you
need to remind yourself of what you have done.

Unit summary
At the end of each unit there is a list of the main points. Use it to help you review
your learning. Go back if you think you have not covered something properly.
Studying at a distance
There are many advantages to studying by distance education – a full set of
learning materials as provided, and you study close to home in your own
community. You can also plan some of your study time to fit in with other
commitments like work or family.

However, there are also challenges. Learning at a distance from your learning
institution requires discipline and motivation. Here are some tips for studying at a
distance.

1. Plan – Give priority to study sessions with your tutor and make sure you
allow enough travel time to your meeting place. Make a study schedule and try to
stick to it. Set specific days and times each week for study and keep them free of
other activities. Make a note of the dates that your assessment pieces are due and
plan for extra study time around those dates.

2. Manage your time – Set aside a reasonable amount of time each week for
your study programme – but don’t be too ambitious or you won’t be able to keep
up the pace. Work in productive blocks of time and include regular rests.

3. Be organised – Have your study materials organized in one place and keep
your notes clearly labeled and sorted. Work through the topics in your study guide
systematically and seek help for difficulties straight away. Never leave this until
later.

4. Find a good place to study – Most people need order and quiet to study
effectively, so try to find a suitable place to do your work – preferably somewhere
where you can leave your study materials ready until next time.

5. Ask for help if you need it – This is the most vital part of studying at a
distance. No matter what the difficulty is, seek help from your tutor or fellow
students straight away.

6. Don’t give up – If you miss deadlines for assessments, speak to your tutor
– together you can work out what to do. Talking to other students can also make a

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difference to your study progress. Seeking help when you need it is a key way of
making sure you complete your studies – so don’t give up.

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Copyright
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system or transmitted in any form or by any means, or mechanical
including photocopying, recording or otherwise, without permission in writing
from the University of Lusaka (UNILUS)

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 EMPLOYMENT AND INDUSTRIAL RELATIONS LAW
L213 COURSE OUTLINE
COURSE CONTENT:
UNIT 1: INTRODUCTION TO EMPLOYMENT AND INDUSTRIAL RELATIONS
LAW
1.1.1 Definition of Employment and Industrial Relations Law
1.1.2 Types of Employment and Industrial Relations engagement
1.1.3 Contract of Service/Contract for Service
1.1.4 Test to Determine Employment Relationship
UNIT 2. IMPLIED TERMS IN THE CONTRACT OF EMPLOYMENT
2.1 Implied Duties of the Employer
2.1.1 Duty to provide work
2.1.2 Duty to Pay Wages
2.1.3 Duty to take reasonable care and provide a safe system of work
2.1.4 Duty of Mutual Trust and Confidence
2.1.5 Duty to indemnify the employee against liabilities and losses
2.1.6 Testimonials and references
3.2 Implied Duties of the Employee
2.2.1 Duty of Personal Service
2.2.2 Duty to obey reasonable and lawful instructions
2.2.4 Duty of good faith and loyalty
2.2.5 Duty with respect to inventions made in the course of employment.
2.2.6 Duty to indemnify the employer
UNIT 3: STATUTORY RIGHTS AND MINIMUM CONDITIONS OF SERVICES:
3.1.1 Remuneration, Guarantee payments/salary
3.2.1 Maternity leave and entitlement benefits and rights
3.3.1 Mother’s day
3.4.1 Paid leave, Holiday and Time Off
3.5.1 Hours of Work and Overtime Allowance,
3.6.1 Medical Care
3.7.1 Paid Sick Leave
3.8.1 Housing Allowance
3.9.1 Funeral Allowance
3.10.1 Retirement Age and benefits
3.11.1 Redundancy Process and Benefits
3.12.1 Gratuity

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UNIT 4: SUSPENSION AND TERMINATION OF EMPLOYMENT:
4. 1 .0 Introduction
4.1.1 Termination:- By Operation of Law; By Agreement
4.1.2 Termination by payment in lieu of notice:- By Employer; By Employee
4.1.3 Termination by Notice:- By Employer; By Employee
4.1.4 Summary Dismissal
4.1.5 Wrongful Dismissal
4.1.6 Unfair Dismissal
4.1.7 Constructive Dismissal
4.1.8 Remedies for Dismissal
4.1.9 Redundancy
4.1.10 Retrenchment
4.1.11 Remedies

UNIT 5. INDUSTRIAL RELATIONS

5.1.1 Introduction
5.2 .1 Definition
5.3 .1 Importance of Industrial relations
5.4 .1 Parties involved in industrial relations
5.5 .1 History of industrial relations
5.6.1 Conclusion

UNIT 6: TRADE UNIONS AND EMPLOYERS ORGANISATION

6.1.1.1 Definition of Trade Union And Employers Organization
6.1.1.2 Formation
6.1.1.3 Rights and Obligations of Employees/Employers in Respect of
Membership and Activities – Freedom of Association
6.1.1.4 Legal Personality
6.1.1.5 Amalgamation
6.1.1.6 Federation
6.1.1.7 Dissolution
UNIT 7: COLLECTIVE EMPLOYMENT AND INDUSTRIAL RELATIONS
7.1.1 Collective Bargaining
7.1.2 Legal Support for Collective Bargaining
7.1.3 Bargaining Procedure
7.1.4 Incorporation of Collective Bargaining Terms
7.1.5 Industrial Action

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 UNIT 8: INDUSTRIAL RELATIONS COURT:
8.1.1.1 Jurisdiction of the Industrial Relations Court
8.1.1.2 The composition
8.1.1.3 Status and effect of its decisions
8.1.1.4 Practice and Procedure
Unit 9 – Safety legislation – Factories Act..……………….………………………...

9.0 Introduction………………………………………………………………
9.1 Factory Act…….………….……………………………………………..

Unit 10 – Social security schemes..…………….……………………………............

10.0 Introduction………………………………………………………………
10.1 NAPSA…………………………………………………………………..
10.2 Workers’ Compensation Fund Control Board……………………………

METHOD OF TEACHING:
Lectures: 3 Weeks of Residential Classes
ASSESSMENT:
Student performance assessment shall comprise of:
a) Continuous Assessment
Two written Tests 30%
b) Final Examination 70%

REQUIRED READINGS:
1. Farnham & Picot (1992), Understanding Industrial Relations
2. Mwenda W.S. ( ), Employment law in Zambia: Cases and Materials
3. Industrial and Employment and Industrial Relations Act CAP.269 of the Laws
of the Republic of Zambia
4. Employment Code Act No.3 of 2019

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UNIT 1 INTRODUCTION TO EMPLOYMENT AND INDUSTRIAL RELATIONS
LAW

LEARNING OBJECTIVES
At the end of this lesson participants will
 Define the idea of Employment and Industrial Relations and Employment and
Industrial Relations law
 Understand the role of Employment and Industrial Relations law in
Employment and Industrial Relations market regulation
 Identify and describe the types of engagement of Employment and Industrial
Relations
 Distinguish a contract of service from a contract for services
 Understand the difference between a contract of employment and a contract for
service.
 Know the different test used by court to determine employment relationship
1.1 DEFINITION OF LABOUR
Labour may be defined as the sum total of physical and mental effort used in the production of
goods and services.
This Labour may be paid for or utilized for free. The focus of Employment and Industrial
Relations law is the study of the law that regulates Employment and Industrial Relations that
is employed in those transactions involving the exchange of mental and physical effort in
exchange for a wage or salary. The parties to this relationship are an employer and a worker.
Employment and Industrial Relations law is mainly concerned with the regulation of the
employment relationship between an employer and employee. You should appreciate from the
outset that the employer/employee relationship is just one among many other relationships
that involves the exchange of labour for economic benefit. Employment and Industrial
Relations market regulation as a specific province of Employment and Industrial Relations
law regulates minimum conditions of employment, collective Employment and Industrial
Relations , institutions of governance, dispute resolution and adjudication, promotion of
equality in the workplace, social security among many others. The overarching purpose of
Employment and Industrial Relations law is seen as balancing the apparent contradictions
between the workers’ need for autonomy and enhanced economic benefit and the employers’
need for economic efficiency and maintaining viable enterprise. In this lesson our focus will
be more on how the law regulates the relationship of employer and employee.

1.2 TYPES OF ENGAGEMENT OF EMPLOYMENT AND INDUSTRIAL

RELATIONS
Zambian law regulates employment relationships of varying types. The employer employee
relationship is the dominant type regulated by the bulk of Employment and Industrial
Relations law. Other forms of labour normally referred to as atypical, irregular or precarious
employment relationships are discussed below.

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1.2.1 Casual workers
Casual workers are defined as persons employed under a contract that is daily but does not
exceed six months. This category of workers are employed on daily contracts and do not
enjoy statutory rights that are extended to employees. The contract for a casual worker comes
to an end at the end of the day. This is irrespective of the intervals at which the wages are
paid.4You should pay particular attention to the definition of a ‘casual worker’ in the
Employment Act particularly when it uses the expression “casual employee.” Does this
reflect? Legislative oversight to use casual and employee in the same line? It would appear
that the draughtsman in this case intended to use the word employee in its generic sense to
refer to “worker.”

1.2.2 Part-time workers

Part time workers are normally employed on short term contracts to perform work of a non-
continuous nature. These individuals do not benefit from some of the statutory protection and
rights that apply to employees.5This category of employed persons may qualify for a limited
number of rights but because of the nature of their work find themselves outside the law’s
protection. This may occur because most employers are most likely to avoid registering such
workers because of administrative costs that may be involved in recognizing them as regular
employees.

1.2.3 Workers on fixed term contracts

Fixed term contract workers may enjoy a significant number of statutory rights that apply to
employees. In typical arrangements they enjoy the same rights as employees except such
benefits as gratuity which individual workers have to negotiate with their employers.6

1.2.4 Workers employed under triangular relationships

Triangular employment contracts are those in which the worker is ‘employed’ by an agency or
similar entity on behalf of a ‘user’ of labour. In this case, therefore, three parties are in place,
that is, (1) The laborer who uses his mental or physical effort, (2) a user of labour who makes
use of a laborer’s mental or physical effort (3) a supplier of labour called an agency or a
broker. The user of the labour whilst being the employer in reality has no legal obligations to
the worker. This places the worker in a difficult situation when it comes to asserting rights and
seeking redress for injury to vested rights that should exist in an employment relationship.
1.2.5 Domestic workers
Domestic workers are employed in domestic settings and are normally employed under an
informal contract. Domestic workers are currently given limited protection under statutory
law. The Statutory Order for Domestic Workers seeks to provide some measure of protection
such as creating a minimum wage for domestic workers. Challenges that may be presented in
the implementation of this law may arise in the area of enforcement or administration of the
statutory provisions. The agency responsible for enforcement may not have adequate logistical
mechanisms to ensure compliance. The wide berth of the sector means that the government
inspectorate wing may not adequately cover the field.
As can be seen the above categories of workers represent employment relationships that are
not easy to regulate. You will observe that the natures of the relationships are informal or
loose and present practical difficulties in deciding the extent or levels of control or regulation.
As a student of Employment and Industrial Relations law you need to be constantly alive to
the changing nature of the employment relationship and how the law tries to regulate it.
Employment and Industrial Relations law is concerned with the study of the employment
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relationship in which the employer/employee relationship is the main subject matter. It
interrogates the nature of that relationship, the law that governs it and the institutions that are
involved in the administration and enforcement of the law. It is one subject that intersects with
other disciplines in a large measure than most. Hence, “…of all the “legal” subjects it is truest
of Employment and Industrial Relations law that it does not belong fully to lawyers. A great
deal of background takes its principles from other disciplines- from politics, from economics
and social psychology. Each has its own literature and it is inevitable, though unfortunate, that
there is little synthesis.”12It is important from the above discussion for the user of the Module
to remember that Labor law regulation is always in a state of flux with changes occurring as
society shifts its norms and conceptions.
1.3 CONTRACT OF SERVICE V CONTRACT FOR SERVICE

A contract of employment not usually defined to mean the same as a "contract of service". A
contract of service has historically been distinguished from a "contract for services", the
expression altered to imply the dividing line between a person who is "employed" and
someone who is "self-employed". The purpose of the dividing line is to attribute rights to
some kinds of people who work from others. This could be the right to a minimum wage,
holiday pay, sick leave, fair dismissal, a written statement of the contract, the right to organize
in a union, and so on. The assumption is that genuinely self-employed people should be able
to look after their own affairs, and therefore work they do for others should not carry with it
an obligation to look after these rights.

The Contract of Employment is a ‘contract of service’, which must be distinguished from a

‘contract for service’. The difference between the two terms is important because a contract
of service is used when an employee wishes to engage someone an employee. The Zambian
Employment Act CAP 268 defines an employer 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”
A contract for service differs from a contract of service in that the former is an independent
contractor. It is common in some sectors such as mining for a company to have some people
working for it under a contract of service and outsourcing other activities under a contract for
service. The key factors influencing whether an organization will decide to engage labor
through a contract for service is:
(i)It’s a project with a specific life period.
(ii)It makes business sense i.e. it’s more cost effective
(iii)There is need to ensure continuity of services
(iv)The outsourced function is not a core or key function in the organization. E.g. cleaning
services.

1. 4 TESTS TO USED BY COURT TO DETERMINE EMPLOYMENT

RELATIONSHIPS
Determining who is a worker is under a Contract of Service or a Contract for Service can
sometimes be confusing so the courts designed some tests to avoid doubt. A Contract of

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Service is a Contract of Employment. A Contract for Service is one where there is an
independent contractor engaged to carry out specific task(s).
An individual working under a Contract for Service is an independent contractor who is self-
employed and provides their own skills and equipment to carry out a task without supervision.
S/he provides services for a fee.
A person engaged to an employer, for a specific wage or salary and who has to work in a
specified manner and provided the tools / equipment to carry out the task(s) is considered to
work under a Contract of Service and is an employee.
The reason why some employers prefer to place workers on a Contract for Service rather than
a Contract of Service is to avoid administrative costs and statutory obligations such as social
security and Pay as You Earn obligations or vicarious liability arising from the actions of it’s
employees. It may also be because the employer desires to retain a level of flexibility by
shedding workers under a Contract for Service due to operational requirements. This is more
complex and costly under a Contract of Service.
Various tests of employment have developed over the years to determine whether a worker is
under a Contract of Service or Contract for Service. These tests listed below can be used in
combination and each has its unique advantages and disadvantages.
i. The Control Test
ii. The Integration Test
iii. The Multiple or Mixed Test
1. 4.1 The Control Test
The Control Test was developed during the time of the Industrial Revolution by the courts in
the 19th century to determine who is an employee and who is not. A key question to answer is
whether the employer controls the individual. The Control Test sets to establish whether the
worker is told what to do, when to work, where to work and how to perform that work. If the
answer is yes, then it is likely that the individual is an employee working under an implied
contract of service and the employer has certain obligations to that worker who is considered
to be an employee. Other characteristics a court may seek to establish in determining whether
an individual is working under a contract of service are:
i. The individual is working under the control and direction of the employer.
ii. The individual has statutory rights due to employees such as holiday pay, sick
pay and maternity leave.
iii. The individual is given benefits usually accorded to employees such as
bonuses, health insurance etc.
iv. The individual is not personally liable for mistakes made during the execution
of a specific assignment.
v. The individual cannot substitute themselves if they are absent from work.
vi. The individual is expected to abide by a prescribed work schedule in a
particular place.
The control test was most relevant in situations where employees were doing relatively
simple tasks of which the master could directly control.
The Case of Yewens v Noakes
In the case of Yewens vs Noakes of 1880, Lord Justice Branwell wrote that “…a
servant is a person subject to the command of his master as to the manner in which
15
she shall do the work”. This case established the Control Test to determine whether
someone is an employee and therefore under an implied contract of service.

The Case of Performing Right Society v Mitchell and Booker

Facts of this case are that the defendant, the occupier of a dance-hall, entered into a
written agreement with a music band to provide music in the hall. The music band was
bound by the agreement not to infringe any copyright by playing music it did not own.
Despite this understanding, the music band did play someone else’s music and
therefore infringed copyright law. The owner of the music, the plaintiff, sued the
defendant and demanded compensation for copyright infringement. The defendant’s
liability depended on the band being its employees. So the question the court had to
deal with was whether the music band was operating under a contract for service, as
alleged by the defendant or a contract of employment, in which case the dance hall
would be liable.

The court held that the relationship between the dance hall and the music band was
that of employer and employee because the agreement determined when they were
required to work, where they were required to work, what they were required to play
and that they would be summarily dismissed if in breach of the agreement.
Based upon these factors, the court ruled that the music band were operating under
the control of the dance hall and therefore under a contract of employment. This
meant that the dance hall was vicariously liable for breaching copyright rules.
1.4.2 The Integration Test
The Control Test was soon found to be inadequate to determine whether a worker was
under a contract of service where the employee did not need to be controlled by his/her
employer. For example, a surgeon in a hospital may be employed but not be
necessarily controlled in their work by the employer. Similarly, a bus driver may be
employed to ferry passengers but may be necessarily controlled during the course of
their duties. These shortcomings led to another test referred to as the ‘integration test’
or ‘organization test’. The test aims to determine the extent to which the worker is
integrated in the organization. The higher the degree of integration, the more likely
that s/he is working under a contract of service.
This test developed when it was held by the Courts that an employer can be held
vicariously liable for the acts of its workers. Vicarious liability places responsibility on
an employer for the torts (or wrongs) committed by their employees.
Vicarious Liability is a legal principle that assigned responsibility to a principal, or
in employment law, an employer, for the wrongs committed by its employees.
In the case of Stevenson, Jordan & Harrison Ltd v MacDonald & Evans [1952] 1 TLR
101 at 111, Lord Denning in his ruling stated
"One feature which seems to run through the instances is that, under a
contract of services, a man is employed as part of the business and his work is
done as an integral part of the business; whereas, under a contract for

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 services, his work, although done for the business, is not integrated into it but
is only accessory to it.”
1.4.3 The Mutuality of Obligation Test
The Court may use the Mutuality of obligation to determine if an employer is obliged
to provide work for an employee and the employee is obliged to undertake the work.
Using this test, the courts will determine whether labor is supplied in exchange for a
wage. Secondly, courts will investigate whether there is a continuing obligation by the
employer to provide the individual with work and an obligation by them to work in
exchange for a wage.

1.5 THE CONTRACT OF EMPLOYMENT

To be legally binding a contract of employment must fulfill all the normal
contractual requirements i.e.

(a) Offer and acceptance

The offer is made by the employer and accepted by the employee.

(b) Intention to enter into legal relations

Employment is a commercial agreement and therefore legal relations are
presumed.

(c) Consideration
The consideration is the employers promise to pay the agreed wages in return for
the employees promise to perform a particular task.

(d) Capacity
There is some restriction on the contractual capacity of minors.

(e) Legality
A contract of employment must not be tainted with illegality e.g. a contract which
illegality e.g. a contract which deliberately seeks to defraud ZRA.

Contract of employment may be written, oral or a mixture of two. At the extreme it

may be a document drawn up by a lawyer and signed by both parties. At the other
extreme it may consist of a handshake and “a see you next Monday”.

However, from the practical point of view of clarifying what has been agreed upon
should a dispute later arise, it is preferable and advisable to reduce a contract of
employment into writing.

Oral Contracts of Employment

The Employment Act requires that oral contracts of employment be evidenced in

writing. In this regard every employer is required to prepare and maintain at his
expense a record of contract for every employee under an oral contract of service.
The record must contain the following details:

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 (a) Name
(b) Sex
(c) Nationality
(d) Name, address and occupation of employer
(e) Date of engagement and capacity in which the employee is employed
(f) Type of contract
(g) Place of employment
(h) Rate of wages and any additional payments in kind
(i) Interval of payment of wages.

The law requires that the employee is given a copy of the record at the time of
engagement and any employer who fails to comply with this requirement commits
an offence for which he is subject to penalties.

In the absence of the record and in the event of the dispute concerning the terms
and conditions of employment the courts will rely on the employee’s version of the
events or statement unless the employer proves the contrary.

2.3 Written Contract of Employment

The following are contracts required to be in writing by S. 28 of the Employment
Act.

(a) Contract of Employment for six months or more

(b) Contract of Foreign Service
(c) Work which cannot be expected to be completed within six months.

According to section 29 of the Employment Act a contract made under the

provisions of S.28 shall not be enforceable unless it bears an attestation by a proper
officer to the effect that such a contract was read over and explained to the
employee in the presence of such officer.

Contents of Written Contract of Employment

According to Section 30 of the Employment Act a written contract of service shall
not be attested by a proper officer unless it contains the following:

1. Names of Employer and Employee

2. Names of the business undertaking in which the employee is to be
employed.
3. Place of engagement.
4. Date of commencement
5. Place where the work has to be done
6. Wages
7. Mode of payment of wages
8. Nature of employment
9. Subsistence in case of Foreign Service.

1.5 .1.UNILATERAL VARIATION OF A CONTRACT OF EMPLOYMENT

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The Code codifies the principle of unilateral variation of a contract. This is to the effect that if
an employer varies in any “adverse way” a basic condition or basic conditions of employment
without the consent of the employee, then the contract of employment stands terminated and
he employee is deemed to have been declared redundant or early retired and therefore, entitled
to a redundancy or retirement package, as may be appropriate (per National Milling Company
Ltd v Simataa & Ors. SCZ No. 21 of 2000). The Code now provides that an employee will be
considered to have been declared redundant and therefore, entitled
to a redundancy package where there is an “adverse alteration” of the employee’s conditions
of service which the employee has not consented to.

1.5. 2THE DICHOTOMY BETWEEN ORAL AND WRITTEN CONTRACTS

The Code dilutes the dichotomy in the repealed Act between oral and written contracts in two
respects. Firstly, it codifies the principle of natural justice that every employee (whether on a
written or oral contract) must be given an opportunity to be heard before termination. Under
the repealed Act, this statutory provision applied only to oral contracts (per Bank of Zambia v
ZUFIAW, SCZ No.17 of 2007). The Code now makes it a statutory obligation for employers
to accord employees an opportunity to be heard before termination relating to either conduct
or performance of the employee. Secondly, under the repealed Act, the provisions on
termination by redundancy cover only employees on oral contracts (per Chilanga Cement v
Singogo, SCZ No. 13 of 2009). This has previously caused problems for the employee on a
written contract with no redundancy provision, but who suffers redundancy, for instance -
what procedures should be followed? What criterion should be used to calculate the
redundancy package?

19
UNIT 2. IMPLIED TERMS IN THE CONTRACT OF EMPLOYMENT
Introduction
The law of contract is founded on the assumption that the parties to a contract exercise free
will to decide their own terms to regulate the contract. However, the courts have tended to
read into contracts terms which the parties did not specifically include. Courts have implied
terms into contracts based on surrounding facts, necessity or implied terms by law3:
Liverpool City Council v Irwin. The implication of terms is meant to give effect to the
unexpressed wishes of the parties looking at the common intentions of the parties, actual or
imputed. Secondly, courts will imply terms in contracts by law into contracts of a particular
type, that is, irrespective of the intentions of the parties. This is done on the footing that absent
the implication the contract would be impossible to perform. The contract of employment as a
contract sui generis has terms implied into it by the courts. These terms are commonly
referred to as implied duties and are discussed below.
2.1 Implied Duties of the Employer
2.1.1 Duty to provide work
The Common Law does not, as a general rule, recognize a duty to provide work but to pay the
employee wages due under the contract. The statement of this position was aptly made in
Collier v. Sunday Referee Publishing Co.Ltd32wherein the Court stated that an employee
who is paid his/her wages cannot complain if no work is provided as long as the employer
paid the agreed wages. This position of the law seems to stem from the ‘master’ and ‘servant
era where the employer as master determined and controlled every aspect of the work to be
performed by the employee. The second view is a modification of the general rule and a state
that in some cases the employer has an obligation to not only pay a wage but also to provide
work to the employee. These cases include instances where it is required to maintain the
employee’s publicity and reputation: 33 Herbert Clayton & Jack Waller Ltd. v Oliver, to
enable the employee to earn the wage: Turner v Sawdon34or to enable the employee to
develop or maintain his skills: Langston v Amalgamated Union of Engineering Workers.35
2.1.2 Duty to Pay Wages
The employer is under an obligation to pay the employee a wage and commits a fundamental
breach if he fails in this duty: Duckworth v P.F Farnish Ltd36.The employee can bring an
action on a quantum meruit where no wage was fixed at the time of entering into the contract.
An action for repudiatory breach arises where the employer fails to pay wages.
2.1.3 Duty to take reasonable care and provide a safe system of work
The Common Law rules of negligence apply to the employment relationship as well. This
means that the employer is obligated to ensure that the work environment is safe and not
likely to cause injury. The duty of care implicit in this obligation exposes the employer to an
action for damages for failure to prevent injury. Critical aspects of this duty require that the
employer puts in place safe work practices, safety equipment and training, supervision,
adequate personnel and takes corrective measures to prevent future accidents. Like in the law
of negligence the employer’s duty extends only to liability that is reasonably foreseeable. He
is only liable for failure to take ‘reasonable care.’ The relevant tests to determine whether or
not the employer has discharged his obligation include the following:
2.1.3.1 Likelihood of injury
An employer who is aware of the likelihood of injury from past experience fails in the duty if
he does not take steps to correct the situation: Hudson v Ridge Manufacturing Ltd.37In this

20
case the employer failed to stop a practical joker in the workplace who caused injury to other
employees and was held liable for breach of the duty.

2.1.3.2 Nature of the risk and the probable consequences

The employer who has done his part in making the work environment safe will not be held
liable if the employee does not comply with the safety scheme in place. For example, if the
employer provides safety wear and the employee neglects, fails or ignores to use it the
employer will not be held liable: Qualcast (Wolver Hampton) Ltd v Haynes.38Would you
agree that this takes care also of the requirement of reasonableness and foreseeability?
2.1.3.3 Known characteristics of the employee.
An employer who is aware of some pre-existing risk or predisposition to injury fails in the
duty if he does not take steps to reduce likelihood of injury: Paris v Stepney Borough
Council.39Paris had only one eye and the employer who rarely gave protective goggles failed
in the duty because he did not provide him with some when it was known loss of his one eye
would be fatal.
2.1.3.4 The cost of prevention
The employer is not expected to do the impossible. The duty as already stated is limited to
foreseeability and reasonableness. It does not extend to cases where the cost of prevention
would far outweigh the benefit of safety measures. Thus in Latimer v AEC40 the employer
put saw dust in many places to make flooded work places safe. An employee who suffered
injury failed in an action for damages when the court held that the employer had put in place
sufficient controls to prevent injury and therefore was not liable. The court did not expect the
employer to close his factory.
2.1.4 Duty of Mutual Trust and Confidence
The duty of mutual trust and confidence means that the employer must not work in a manner
that is calculated or is likely to destroy the mutual trust and confidence between the parties.
This formulation was affirmed in the leading case of Malik v Bank of Credit and Commerce
International.41This duty is based on fairness as an integral and necessary requirement of a
contract of employment. In Malik the plaintiff Bank in liquidation was found liable for stigma
damages for having run a fraudulent banking operation. The court supported the argument that
the bank’s actions had rendered the plaintiffs unemployable through their association with the
defendant bank and awarded damages. An employer’s acts that are calculated or likely to
injure the reputation of the employee fall under this general common law duty.
2.1.5 Duty to indemnify the employee against liabilities and losses
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: Re Famatima
Development Corporation Ltd.42The employer is merely restoring the employee to his/her
original position. The employee would not have incurred or suffered loss but for the
employer’s business. The duty is capped by the requirement of expenses reasonably incurred
on behalf of the employer.
Egregious or extravagant spending would not qualify for indemnity.
2.1.6 Testimonials and references
An employer is under no obligation to provide testimonials or references to employees. An
employer who issues a testimonial or reference is subject to the rules of negligence. He owes a
duty of care to the former employee and potential employer not to cause injury to them. The
future employer who suffers loss may sue for reliance loss: Hedley Byrne v Heller and
Partners 43and the former employee can sue for injury to reputation if he can show malice on
the part of the employer. For example in spring v Guardian Insurance44 the employer used
unflattering language to describe the employee in a reference. It was held that even if he
21
honestly held the negative view of the employee he had been negligent and had breached the
duty of care that by law he was under.

2.2 Implied Duties of the Employee

The Common Law looks at the contract of employment as one founded on faithful service and
loyalty. This is evidenced in the implied terms of; personal service, obedience, reasonable care
and skill, and good faith and loyalty.

2.2.1 Duty of Personal Service

The employment contract requires personal service: Ilkiw v Samuels.45 this means that an
employee cannot substitute him/herself like in the case of a contract for services. The contract
of employment is personal. Recall that the contract is founded on the master and servant
principle. (Read the case of Express and Echo Publications Limited v Ernest Tanton (1999)
EWCA Civ.949,[1999] IRLR 367,[1999] ICR 693)
2.2.2 Duty to obey reasonable and lawful instructions
The employee is under an obligation to carry out all reasonable and lawful instructions of the
employer. A moody, sulky or grumpy employee is validly dismissed for breach of this duty
Pepper v Webb 46 The duty of obedience is, however, not absolute. It is subject to exceptions.
Instructions that are outside the scope of the contract 47, are illegal48 or which expose the
employee to unjustifiable risk49cannot bind the employee.
2.2.3 Duty to exercise reasonable care and skill
The contract of employment assumes that the employee possesses the necessary skill, capacity
and competence to perform the work for which he is employed. This duty is subject to the
nature of the work to be done, skills, and qualifications. Thus an accountant who failed to do
basic book keeping was held to have been validly dismissed for breach of this duty: Agholor v
Cheseborough Ponds (Z) Ltd.50

2.2.4Duty of good faith and loyalty

Employees are expected to be faithful and loyal. The employment relationship is founded on
trust that may include the following situations:

2.2.4.1 Conflict of interest

The employee must not put himself in a situation where his interests and those of the
employer conflict. (See Woodpecker Inn v Stockdale51).An employee whose interest’s
conflict with that of the employer will be presumed to favor personal interest and acts in
breach if he does not declare interest but proceeds to act in a matter.
2.2.4.2 Solicitation of customers
A former employee can be restrained from soliciting clients of the former employer after the
employee has left employment: Robb v Green52.

2.2.4.3 Confidentiality
During the course of employment the employee comes across so much information which
may include trade secrets and special methods of doing business. Courts have distinguished
between two types of confidential information being information of a proprietary nature
(trade secrets) and confidential information of a non-proprietary nature. The later type is not
protected while the formal enjoys legal protection: Faccenda Chicken Ltd v Fowler53.He is
under a duty not to disclose such information even after leaving employment: Nordenfelt v
Maxim Nordenfelt54.This duty is not absolute and is subject to limitations established by the
courts. It must not be too wide or unenforceable and it must not be contrary to public interest.
22
It must only protect a legitimate proprietary interest and not be used as a way of avoiding
competition (See also J. K. Rambai Patel v Mukesh Kumar Patel).55

2.2.4.4 Duty to Account for profit and gain

The employee is under a duty to account for any profits or gain and property acquired in the
course of carrying out his work: Reading v A.G.56.He is not to keep secret profits. A breach
of the duty entitles the employer to sue for an account and demand that proceeds are duly paid
to the employer.

2.2.4.5 Duty not to work against the interests of the employer

The employee should avoid conflict of interest. His personal interests must not be in conflict
with the interests of the employer. (See the case of Boston Sea Fishing and Ice Co. v Ansell)

2.2.4.6 Bribes
The employee should not accept bribes for work done on behalf of the employer. Bribes or
secret commissions expose the employee to potential civil as well as criminal liability.58

2.2.4.7 Misconduct
The employee must conduct himself in a manner that protects the interests and reputation of
the business.59
3.2.5 Duty with respect to inventions made in the course of employment.
The common law position is that such inventions are the property of the employer: British
Reinforced Concrete Co.Ltd v Lind.

2.2.6 Duty to indemnify the employer

The employee is under a duty to indemnify the employer for all damage caused as a result of
willful conduct or negligence. This includes indemnity for the cases where the employer
becomes vicariously liable for the acts of the employee.

SELF ASSESSMENT QUESTIONS

1. The Common Law recognizes a number of implied terms or duties.
Discuss these terms and explain their legal significance in the regulation of the employment
relationship.
2. Discuss the distinction between the two forms of confidentiality recognized at common
law. Are they a justifiable incident of the employment relationship?

23
UNIT 3 STATUTORY RIGHTS MINIMUM STANDARDS CONDITIONS OF
SERVICES EMPLOYMENT RELATIONS.
Learning outcomes
By the end of this unit you should be able to:
 Understand the nature and source of statutory rights
 Define and explain common statutory rights
State the different conditions of services in Employment relations as per Employment
Code
 Explain the effect of failure to honor statutory rights

3.1 Nature of Statutory Rights

The Common Law of contract established that the parties to a contract exercised free will and
because they had capacity, they could determine their own rules under the contract. However,
this freedom of contract was based on the notion of an exchange of agents who were equally
disposed in terms of bargaining power. Human experience proved, especially during the
industrial revolution, that the employment relationship bore no such hallmarks as free agents.
The rise of the welfare state launched an assault on the employment relationship in an effort to
create a countervailing force against employer power in the bargaining relationship.62 This
marked the birth of statutory rights which are essentially a state intervention into a purely
private relationship. In these respects statutory law creates a proprietary interest in the job of
the employee by guaranteeing rights that were not available at common law. For example,
unfair dismissal laws. The nature and scope of these rights are subject to change with time and
evolve as social norms change. Parliamentary intervention is the principal vehicle for the
creation of the labor law in this respect. This section of the module merely highlights some of
the protections enacted under statute to protect the employment relationship from predatory
behavior.

3.2 Source of Statutory Rights

Statutory rights have a wide provenance discussed in the elements below.
3.2.1 Constitutional guarantees
In the pyramid of rights certain Labour rights are protected by the supreme law of the land,
the Constitution. Examples of such constitutionally guaranteed rights include the protection of
the right to freedom of assembly and association the protection against forced Labour.
Constitutional rights cannot be abrogated except in few instances where the state is permitted
to derogate from them in pursuance of legitimate state interests such as public safety, defense
and security.

3.2.2 Legislative enactments/Positive law

Laws that are passed by Parliament create certain safeguards for employees which employers
are required to comply with. As mentioned at the beginning of this Module Employment and
Industrial Relations regulation is concerned with setting minimum standards of employment
and the administrative machinery that is required to implement them. In this respect examples
of such laws are the Employment Act, Employment and Industrial Relations Act, Factories
Act, among others.

3.2.3 International law

24
Law making in Zambia is only exercisable by the legislature. International law in Zambia,
therefore, is not directly applicable. Labour rights that are established under international
treaties and agreements cannot confer the protections that they espouse until they are
domesticated by Parliament. This statement of the law was pronounced upon by the court in
Zambia Sugar Plc v Fellow Nanzaluka.
Statutory rights are not immutable; they may change with the regularity that social norms
evolve.
What was acceptable yesterday may be considered a violation of the law tomorrow. The
student of labor law should remain alive to environmental changes to take note of emerging
trends and assess their impact on labor market regulation.

3.3 Analysis of salient features introduced in by the new employment code act 3 of 2019
related to conditions of service in employment relations
Introduction
The new Employment Code Act, No. 3 of 2019 (the “Code”) attempts to consolidate and in
some respects, codify employment law principles, thereby altering the employment law
landscape in Zambia. The Minister of Employment and Industrial Relations and Social
Security has issued a Statutory Instrument (SI) – the Employment Code Act (Commencement)
Order, SI No. 29 of 2019, which provides that the Code shall come into operation on the date
of publication of the SI. The SI was published in the Government Gazette on 10th May 2019.
Based on this provision, the author takes the view that the Code has become operative (per
section 19(1) (a) of Cap 2 of the Laws of Zambia). The Code repeals and replaces the
Employment Act (the “repealed Act”), Cap 268 of the Laws of Zambia, as well as the
Minimum Wages and Conditions of Employment Act (the “repealed Minimum Wages Act”)
of 1982 notwithstanding the repealing of these Acts, all the Statutory Instruments (the “SIs”)
issued pursuant to the repealed Minimum Wages Act (i.e. minimum wages and conditions of
employment for protected employees such as clerks, receptionists, cleaners, guards, domestic
workers etc.) will remain in force, provided they are consistent with the Code or until replaced
with new SIs.
3.1.1 Abolishment of casualization
While the old Employment Act Cap 268 of the laws of Zambia did not outlaw casualization,
the Employment Code in section 7 unequivocally bans the practice of casualization. This
development means that all other obligations that come with having employees on fixed term
contracts or permanent contracts become part of the costs that the employer will have to meet
in respect of these workers: Social security, funeral benefits and other commitments
associated with permanent employee become relevant to institute casuals as well.

3.1.2 Standard conditions of service

The Code introduces standard conditions of service, applicable to all categories of employees,
whether protected employees (PEs) or non-protected employees (NPEs). However, as earlier
stated, notwithstanding that the Act which gives the SIs legal basis has been repealed, the
25
provisions of the SIs applicable to Pes will still be in force. This raises a question of
interpretation, whether provisions in the Sis which are inconsistent with the Code will
still be applicable. The author takes the view that the provisions in the SIs which are more
favorable to PEs (in comparison with the Code) will remain in force, as this would be in line
with the purpose of prescribing minimum requirements for PEs. Employers have 1 year to
comply with the Code. Any new contracts however, will have to be compliant with the Code.
3.1.3. Introduction of mandatory housing, medical and water requirements to be
provided by the employer
The Code introduces mandatory employee benefits being housing, water and sanitation and
medical attention. These benefits are optional for NPEs under the repealed Act. Under the
Code however, employers are mandated to provide either housing allowance or to facilitate
some form of arrangement to aid the employee in securing housing (either by providing a
loan/ advance or a guarantee facility). Employers are further mandated to provide medical
attention and medicine to employees and where necessary, transport to a health facility.
Employers are also obliged to ensure that employees receive adequate supply of water and
sanitation facilities at the place of work.
The repealed Act merely provided for the supply of drinking water by the employer at the
place of work. PEs will continue to enjoy 30% of the basic pay as housing allowance as
provided under the SIs (or better housing benefits provided by the employer), including
several other allowances such as lunch, transport and funeral allowances. PEs will in addition,
be entitled to medical attention and the provision of water and sanitation which is now
mandatory for all employees, under the Code.
3.1.4 Payment of gratuity and severance pay
The Code makes the payment of Gratuity and Severance Pay mandatory. There was no
provision for gratuity or severance pay under the repealed Act, as this was generally a subject
of contractual agreement in the Employment and Industrial Relations market. The Code
requires the payment of gratuity to an employee on a long-term contract (i.e. a fixed term
contract exceeding one year), at the end of the contract period, at the rate of 25% of the
employee’s basic pay. If the contract is terminated prior to expiry of the contractual period,
the employee is entitled to gratuity calculated on a prorated basis. Further, the Code has
introduced severance pay which is
payable to all employees except those on long term contracts, temporary employees, casual
employees and employees on probation. It appears that the entitled employees are employees
engaged on short-term contracts (i.e. fixed term contracts not exceeding 12 months) and
permanent employees (i.e. employees not on a fixed term contract). The entitlement to
severance pay is triggered in 5 specific situations including: (1) where the employee has been
medically discharged in accordance with the Code; (2) where a fixed term contract expires;
and (3) where a fixed term contract has been terminated;
(4) Where a contract has been terminated by redundancy. Notably, an employee engaged on a
short-term contract is equally entitled to some form of gratuity, only that it is paid in the form
of severance pay. It appears that PEs would also be entitled to gratuity and severance pay if
they meet the criteria set out in the Code, seeing that the SIs do not make provision for
payment of gratuity and severance pay.

26
3.1.4 Codifies probation period
The Code has codified probation, which was previously not provided by law but merely best
practice. The Code provides for a period of 3 months’ probation, which may be extended for a
further period of not more than 3 months. Where the employer does not inform the employee
in writing on whether or not the employee is confirmed, the employee shall be deemed to be
confirmed from the date of the expiry of the probation period. The contract of employment
maybe terminated during probation by either party giving 24hrs notice of termination. In the
case of the employer, termination can only be done after an assessment has been made as to
the suitability of the employee for the job. It appears that the assessment of the employee
suffices as a reason for termination as required by the Code and the employer need not give
any other reason. An employee who is re-employed by the same employer for the same job
within a period of 2 years from the date of termination of the contract of employment with
that employer shall not be subject to probation, where the termination was not performance
related.

3.1 5. INTRODUCTION OF NEW LEAVE ENTITLEMENTS

leave days per year to cover responsibilities related to the care, health or education for the
employee’s child, spouse or dependent. NPEs are therefore, entitled to 10 days in total as
family The Code has introduced new leave entitlements previously not provided under
the repealed Act, namely:
(a) Compassionate leave – of 12 days in a year where the employee has lost a spouse, parent,
child or dependent or a justifiable compassionate ground (which term is not defined in the
Code). PEs will now also be entitled to compassionate leave, considering it is not
provided under the SIs: (b) Family responsibility leave – of 7 days in a year to enable the
employee to nurse a sick spouse, child or dependent. In addition, an employee is entitled
to 3 paid responsibility leave. Notably, PEs will continue to enjoy this benefit as they are
already entitled to this leave under the SIs, although the leave is for 15 working days: (c)
Paternity leave – of 5 working days to be taken within
7 days of the birth of the child, provided that the employee is the father of the child and
has submitted a birth record to prove this. PEs are already entitled to paternity leave under the
SIs, except there is no requirement for it to be taken within 7 days of the birth of the child: (d)
Weekly rest days and health
breaks - a weekly rest day of 24 consecutive hours in every 7 days, to be taken on any day
when the employee is not required to work under the contract. In addition, the employee is
entitled to a mandatory lunch break of 1 hour and a health break of at least 20 minutes every
working day. PEs will now also be entitled to this, considering that the SIs do not make such
provision.
9. The Code has altered current leave benefits as follows–
a. Annual leave - the Code has increased the qualification period for taking leave from after 6
months to after 12 months from the date of employment. The employee is entitled to be paid
wages for any leave accrued but not taken at the end of the year.

27
b. Sick leave - the Code provides that all employees are entitled to sick leave and specifically,
employees on short-term contracts are entitled to a total of 52 days sick leave, with the first 26
days at full pay and the next 26 days at half pay. Employees on long-term contracts are
entitled to up to 6 months of sick leave, with the first 3 months at full pay and the next 3
months at half pay. These provisions reflect the sick leave entitlements for PEs under the SIs,
which will continue to be in force.

c. MATERNITY LEAVE
Maternity Leave has always been part of the conditions of service. However, the new
Employment Code Act 3 of 2019 has added a few extra incentives to the provision
with regards to Maternity Leave which include:
- An increase of days from 90 days to 98 days for a single birth and for multiple
births has been extended for a period of 4 weeks extra,

- Just by providing a medical certificate an employee is entitled to maternity leave

which can be taken immediately preceding the expected date of delivery except
that at least six weeks maternity leave shall be taken immediately after delivery,

- A female employee who gives birth to a premature child is entitled to an extension

of the maternity for a period that be recommended by the doctor.

- A female employ who remains in employment with the same employer for a period
of twelve months and suffers a miscarriage pregnancy or bears a still born child is
entitled to six weeks leave on full pay immediately after the miscarriage or still
born as long as its duly certified by a medical doctor.
As can be seen from the points above, which is now these incentives might work to the
disadvantage of female employees especially those young and not yet married.
Because the above conditions may be good for female employees but a disadvantage
to the employer as they will be seen as a cost to the business.

Forced Leave

This is another challenge posed to the employer because for an organization to put employees
on forced leave it means they are not in full operation and do not have the resources to sustain
all employees i.e. in a situation of break-down or maintenance of a plantation it would mean
them is no production going on. However, the employment Code Act of 2019 section 48 (i)

28
where the states that an employer shall employee basic pay during the period of the forced
leave.

The Minister may by statutory instrument prescribe the circumstances under which an
employee is required to be sent on forced leave.

Some of the statutory rights that are protected include the ones discussed below.
4.3.1Protection of Remuneration Part IV of ECD
The law protects the wages and salaries of employees against employer schemes designed to
deprive them of their hard earned money. The law regulates the dates and the times within
which payments should be made when due. In some cases the law establishes minimum wages
and payments that employers are required to comply with.
Under the common law, it is an implied term of any contract of employment that the employer
will pay reasonable remuneration for services rendered. Failure by the employer to remunerate
the employee in terms of the contract of employment, will entitle the employee to sue his
employer for breach of contract. In Zambia, statutory law has stepped in to protect the wages
of employees. Section 66 of the ECD makes provision as to when wages of employees are
due. In the case of a fortnightly contract of service, wages are due on the last day of each
fortnight. In the case of a weekly contract, wages are due on the completion of such task or
work. Further, in the case of an employee employed to perform a journey, wages are due on
the completion of such journey. In any other case, wages are due in accordance with the terms
of the contract of service.

The Employment Act makes it mandatory for wages to be paid at regular intervals as
indicated above, being not later than the fifth day following the date upon which they fall due.
While section 66 of the Act makes provision as to when wages are due as indicated in the
previous paragraph, there is a provision as to when wages are due as indicated in the previous
employer, with the consent of the employee, to accumulate the wages due to employee for
such period not exceeding one month as may ne agreed by the parties.

In Zambia most employees’ contracts of service provide for the receipt by the employees of
their wages on a monthly basis. However, the reality on the ground is different. A lot of
employers do not pay employees their wages as and when they fall due.
29
UNIT 4 TERMINATION OF EMPLOYMENT CONTRACT

Learning outcomes
By the end of this unit you should be able to:
 Identify and explain the different methods by which a contract of employment can be
terminated.
 Discuss the legal effect of the methods of termination.
 Discuss the remedies available in cases of termination of employment.
4.1 Methods of Termination of Employment
Termination of the contract of employment is the bringing to an end of the contract.
Termination may happen by Notice, operation of law, agreement, and payment and by
dismissal. Each mode of termination carries with it special legal burdens forms a useful
subject of study. These methods are discussed below.

4.1.1 Termination by notice

Notice is a pre-determined date or period whereby the contract is to run or expected to end, as
agreed by the parties. Termination by notice thus involves the invocation of a predetermined
date or period in order to bring an end to the contract. This may be contractual, based on the
agreement of the parties, or statutory73.

4.1.2 Termination by operation of law

Termination by operation of law happens where certain events recognized by law make
performance of the contract impossible or change its character.74There is no exhaustible list
but examples include death of the employee or employer, dissolution of a partnership or
liquidation of a company75, sale of a business, bankruptcy, frustration76 and redundancy.

4.1.3 Termination by agreement

This may happen by mutual agreement of the parties normally involving a financial
settlement. The agreement extinguishes all obligations under the contract and sets the parties
free. Such agreements are normally mutual and may be used where parties wish to separate
without undue publicity and seek to maintain confidentiality or peace.77

4.1.4 Termination by payment

Termination by payment involves a financial settlement that is equivalent to an applicable
notice period or such other criteria agreed by the parties.78

4.1.5 Termination by Dismissal

At common law dismissal is when the employer terminates the employment contract with or
without notice.79The Zambian jurisdiction considers a dismissal as termination of
employment on disciplinary grounds. Statutory modification of the law has also recognized
two other instances of dismissal which are constructive and unfair dismissal. The statutory
dismissal regime is subject to the employee meeting the requisite continuity period set in the
statute.80The dismissal types and their legal consequences are explained below:
30
4.1.5.1 Summary Dismissal
The employer terminates the contract of employment summarily without giving notice81
because of gross misconduct, negligence or incompetence by the employee(Read the case of
Agholor v Cheese brough Pond's (Zambia) Limited) .Summary dismissal in Zambian takes
place only after the employee has been given an opportunity to be heard and found was guilty.
The dismissal can then be effected without giving the employee notice of termination of
employment. The notion of “instant dismissal” which is held in some cases assumes a situation
where the employer is at liberty to dismiss the employee without being heard. Section 50 of
the ECD states as follows:
(1) An employer shall not dismiss an employee summarily except in the following
circumstances:
(a) where an employee is guilty of gross misconduct inconsistent with the express or implied
conditions of the contract of employment;
(b) for wilful disobedience to a lawful order given by the employer;
(c) for lack of skill which the employee, expressly or impliedly, is warranted to possess;
(d) for habitual or substantial neglect of the employee’s duties;
(e) for continual absence from work without the permission of the employer or a reasonable
excuse; or
(f) for a misconduct under the employer’s disciplinary rules where the punishment is summary
dismissal.
(2) Where an employer summarily dismisses an employee without due notice or payment of
wages in lieu of notice, the employer shall, within four days of the dismissal, submit to a
Employment and Industrial Relations officer in the district in which the employee was
working, a written report of the circumstances leading to, and the reasons for, the dismissal.
(3) A report under subsection (2), may be submitted through registered or electronic mail.
(4) Where a report is submitted through registered mail, the report shall be considered to have
been submitted to a Employment and Industrial Relations officer within four days of the
dismissal if the envelope within which it is
contained bears a postmark dated not later than three days following the dismissal.
(5) A Employment and Industrial Relations officer shall record the details of a report
submitted under subsection (2), in a register maintained for that purpose.
(6) A person who fails to comply with the provisions of subsection (2), is liable to an
administrative penalty.
51. (1) An employer who summarily dismisses an employee under section 50 shall pay the
employee, on dismissal, the wages

Section 50(2) above makes the hearing a mandatory requirement. Failure to hear the
employee even in a case of obvious gross violation of the contract does not remove the
requirement and is a breach of statutory law.

4.1.5.2 Wrongful dismissal (common law)

Occurs when the employer dismisses an employee without giving notice of termination or in
violation of a contractual provision, that is, in breach of contract.83Wrongful dismissal is
based on the common law. To determine whether a dismissal is wrongful or not the key issues
to be considered are whether the contract has been terminated without notice or in violation of
some contractual provision such as procedure. Wrongful dismissal hence can happen even
where the employer is justified in terminating the employment; that is, the employer’s case
has merit. This is because wrongful dismissal is concerned with the ‘form ‘or ‘manner’ of the
31
dismissal as opposed to the reasons for the dismissal.84The dismissed employee is only
entitled to damages where wrongful dismissal is proved.85The Common law is set on the
footing that an employment contract is personal in nature and therefore not subject to the
equitable remedies of specific performance or injunction.86

4.1.5.3 Constructive dismissal

Happens when the employer by his/her conduct or behavior commits a fundamental breach of
the contract which forces the employee to resign. The breach in this case arises because the
employer acts in a manner fundamentally against the contract so that the employee is entitled
to treat the contract as breached. The employee as the injured party is entitled to treat the
contract as repudiated and claim damages for breach of contract. The employee resigns and
then brings an action for breach of contract. Without the employee resigning he/she cannot
claim constructive dismissal. Examples of constructive dismissal include unilateral reduction
in salary or status: Marriot v. Oxford and District Co-operative Society Limited87, workplace
hostility: Walker v. Josiah Wedgwood and Sons Limited88, sexual harassment etc. The
employee, on the other hand, cannot claim constructive dismissal in order to escape
disciplinary proceedings initiated by the employer. The Court in Kitwe City Council v
William Ng’uni89laid down the test for constructive dismissal and stated that the test for
constructive dismissal is whether or not the employer’s conduct amounts to a breach of
contract which entitles an employee to resign. Silomba, J stated the following: “The evidence
we have is that the plaintiff tendered his resignation, through his lawyers, on the 30th of May,
1998, while disciplinary charges were pending against him. This fact was not rebutted.
According to the evidence and submissions of the defendant, the resignation was acceded to
after a long time and with pressure from the advocates. In fact, the defendant would have
wanted the due process of the law to take its full course. We have said in this judgment that
the reasons for resigning from the defendant could not have been frustration, victimization
and harassment. We wish to go further, under the two grounds of appeal for purposes of
putting the law in proper context, that the plaintiff could not have been constructively
dismissed from employment as a result of frustration, victimization and harassment, because
these are not the essentials in law that might render a dismissal to be constructive. In the case
of Western Excavating Limited v Sharpe (1), the employee (respondent) was dismissed for
taking unauthorized time off work. In reversing the decision of the EAT, the Court of Appeal
stated that the test for constructive dismissal was to be determined by the contract test, that is,
did the employer's conduct amount to a breach of contract which entitled the employee to
resign? The Court of Appeal dismissed the 'unreasonable conduct' theory as leading to a
finding of constructive dismissal on the most whimsical grounds. Since there had been no
breach of contract in Sharp's case, there was no dismissal, constructive or otherwise. In the
present case, the facts show that the plaintiff resigned to avoid a dismissal because the
charges he was facing were serious and were likely to lead to his dismissal. By laying charges
against the plaintiff, the defendant's conduct cannot be said to amount to a breach of
contract, which entitled the plaintiff to resign. In fact, it was conduct in furtherance of the
performance of a contract of employment, because the employer was entitled to discipline any
erring officer under its conditions of service.”90 Similarly, 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. The Court
declined to uphold such a claim in the case of Faidecy Mithi Lungu v Lonhro Zambia
Limited91 wherein a senior secretary was relegated to a typist role without loss of salary
following an order for reinstatement against the company. The company had abolished her old
position. The employee was uncooperative and combative and wished to be treated like she
32
still held the old position. She resigned and claimed constructive dismissal. Her claim was
unsuccessful.

4.1.5.4 Unfair dismissal (Statutory)

Arises from a failure to follow statutory procedures or requirements in dismissing an
employee. It creates a protected proprietary right in a job and is concerned with the merits of
the case92. It is not based on a contractual claim. Sections (5) and (108) of the ILRA prohibits
termination of employment on grounds of participation in trade union activities and
discrimination, respectively. 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 (Read the case of Henry Million
Mulenga v Refined Oils Products93.(Do you think the Court took a lenient view of the matter
when it accepted the employee’s explanation for his absence from duty?). Remedies for unfair
dismissal include re-instatement, re-engagement, and financial compensation. These remedies
are not available under the common law where the only the remedy of damages.94

4.1.5.5 Redundancy
Termination of the employment contract is in essence an example of termination by operation
of law. It is discussed here for purposes of adding detail to the subject. It occurs when the
employee is dismissed because the employer has ceased to conduct the business or part of it
and it is not possible to continue with the contract. Redundancy provisions (statutory) only
cover employees; employees with requisite continuity of service, who have been declared
redundant, for reasons of redundancy [cessation of operations].

Section 55 of the ECD defines redundancy and the conditions which apply in a redundancy
situation, as where an employer:
 Ceases or intends to cease to carry on the business, or
 Ceases or reduces the requirement for the employees to carry out work of a particular kind
in the place where the employee was engaged and the business continues to operate.

4.1.5.1 Obligations of the employer in a redundancy situation

 Notify employee representatives about the redundancy, numbers affected, and period for
carrying out the redundancies.
 Allow the employee representatives to consult on the redundancy
 Mitigation measures, to reduce terminations and adverse effects
 Mitigation measures reduce adverse effects on employees including finding alternative
employment.
 Notify a proper officer (e.g.The Labour Commissioner, Labour Officer etc.) at least sixty
days before effecting redundancies giving, reasons, numbers of categories, period and nature
of redundancy package.
 Pay a redundancy package as agreed or as determined by the Minister.
Pay redundancy package not later than the last day of duty.
Redundancy provisions do not apply to other employment situations which include
bankruptcy or compulsory liquidation, casual employees, employees on probation, employees
on fixed term
Contract sand the redundancy coincides with the expiration of that term or employees who
have been offered alternative employment have unreasonably refused such offer.
4.1.5.2 Retirement

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Section 58 of ECD . An employee’s contract of employment shall expire by reason of retirement,
where the employee attains the age of retirement under a written law.
SELF ASSESSMENT QUESTIONS
1. Explain the modes by which termination of the contract of employment may be effected.
2. Discuss the various remedies that apply in the context of termination of the contract of
employment.
3. How does the common law conception of dismissal differ from Zambian jurisprudence? Is
it a necessary distinction?
4 .Read the case of Chilanga Cement, Plc v Kasote Singogo (2009) S.C.Z
Judgment No.13 of 2009.
5. The Court dealt with the requirements that must be in place for constructive dismissal to be
established. Discuss these requirements.
6. Explain the Court’s rationale that ‘constructive dismissal must be narrowly construed’.

UNIT 5: INTRODUCTION TO INDUSTRIAL RELATIONS

Learning outcomes
After studying this unit, you will be able to:

 Define Industrial Relations

 Explain the importance of Industrial Relations
 Identify parties involved in Industrial Relations
 Describe the history of Industrial Relations

5.1Introduction and definition

Industrial relations involve setting of standards and promotion of consensus and
management of conflict at work place.
A key feature in industrial relations in an assumption of conflict, traditionally
industrial relations has been concerned with the way conflict is regulated. This
regulation involves the development of a variety of formal and informal rules both
about the substance of the matter in conflict and the procedures to deal with those
matters. In other words, industrial relations is concerned with the development of
substantive (money) and procedural rules of employment relationships.
Industrial Relations is equated to employment relations which is concerned with
the interaction of employees and employers. How do employees and employers
interact?

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 Individual workers get jobs and perform certain tasks and duties and expect
to be paid for their effort.

 Employers hire workers; decide what work is to be done and when workers
should be paid for their effort.

However, a number of conflicts emanate from pay arrangements, the worker

demands for a fair salary, the employer’s interest is to minimise costs, therefore,
the more the worker demands for higher salaries, the more the employee is instated
because higher wages reduce his profits and surpluses.
The Industrial Relations Act Chapter 269 defines industrial relations as
employment relationships. It includes relationships between unionised workers,
their representatives and management in all aspects of in an undertaking
(organisation) regardless of the ownership or industrial classification of the
undertaking.
Industrial Relations refer to the multilateral relations among employers, employees
and government. It is sometimes called Labour Relations; concerned with relations
between management and Employment and Industrial Relations in an organisation.
In its broader sense, industrial relations is about the behaviour and interaction of
people of work that shape the work place. It is concerned with how individuals,
groups, organisations and institutions make decisions that shape the employment
relations between management and labour force. It includes the study of workers
and their unions, employers and their associations and the institutions established
to regulate the relations between the two parties.
5.2 History of Industrial Relations

Industrial Relations is as old as industry and being inherent in industry will

always remain as a feature in industrial life. However, industrial relations as a field
of study as distinct from, an area of activity has a much shorter history both in
Britain and most other countries. It was the Webbs who made the first major and
comprehensive contribution and that was not until the end of 19th century. They
published two books of particular importance History of Trade Union and
Industrial Democracy.

Much of the earlier writing on industrial relations tended to place considerable

emphasis on an institutional and factual approach. Author concetrated their efforts
on describing the situation as they saw it, in the main they produced guide books
to current practices rather than theories and explanations.

35
The institutional approach is best exemplified today in Britain by the work of
”Oxford Group”. This is the name that was given to a number of academicians
who at one time or another had links to research or teaching of industrial relations
at Oxford University. The group has its origins in the appointments of Flanders to
a senior lectureship and Cleggy to a fellowship at Oxford University in 1949, it
now also includes people like Fox, March, Hughes and MacCarthy.

5.3 Importance of industrial relations

i. Industrial relations in a country affect the total economic, sociological,
political and cultural environment of the nation. Management and workers must
take these factors into consideration in their negotiations.

ii. The growth of trade unions, combined with government protection of the
rights of workers and regulations between management and workers has forced
management to adopt more liberal personnel policies, particularly regarding
workers, participation in matters affecting them.

iii. Employees benefit from sound industrial relations. For example, Section 5
of the Industrial and labour Relations Act Chapter 269 of the laws of Zambia
protects the right of employees to self-organisation, to bargain collectively and to
engage in activities for their benefits and protection.

iv. Employers also benefit greatly from having accredited union representation
who can speak collectively for the workers.

v. The overall effect of sound industrial relations may be summarized in

terms of industrial peace, greater productivity and more participation in economic
progress.

5.4 What is involved in industrial relations and benefits?

In the broad concept of industrial relations the major aspects include:
 Setting up objectives and policies designed to promote good management-
workers relations.

 Systematic employment procedures

 Effective manpower development programmes.

 A reasonably fair and stable wage and salary structure.

 Greater productivity

 Incentives and benefit plans

36
 Consultation and participation

 Collective bargaining, implementation and administration of collective

agreements.

 Handling of grievances and settlement of disputes through conciliation,

arbitration and industrial relations court.

5.5 Parties involved in industrial relations

The frame of industrial relations is described as tripartite, that is there are three
main parties involved, and these are:
1. The government

1. Employees, their representatives and trade union

2. Employers, their representatives and associates

Each has distinctive roles in the system.

5.5.1 The Government
The government is the single major universal influence on industrial relations. The
standpoint of recent government has been to ensure that a framework for the
conduct of industrial relation was defined and brought within the law. This has
addressed all aspects; such as:
a) The rights and limitations of trade union activities

a) The rights of organizations and their managers

b) Equality of opportunity

c) The rights of individuals at the work place

d) The rights to strike

e) The rights to work

Industrial relations can no longer be left as a struggle between the opposing forces,
management and workers, to settle wages and other conditions of employment.
Any collective bargaining and the resulting collective agreement affect not only
the parties involved, but also the political, economic and social structure of the
nation as a whole.
For example, in the case of a breakdown in communication between management
and workers in an organization, this may result into a strike by workers or lock out
by management. The immediate effects will be a loss of production by
management and a loss of income by workers. This will spread to the consumers
of the productions; there will be shortages and public outcry for the commodity.
The workers and their families will experience hardships. The state will fail to
37
raise enough revenue from closed industries which will affect its provision of
social services to the nation. Unemployment, shortages of commodities and
unreliable social services will lead to economic, social, political and cultural
instability in the country.
It is the role of government to maintain a balance between management and
workers, in line with the nation’s economic and social growth. The government of
Zambia seeks to regulate the relations between management and workers mainly
through the Industrial and Labour relations Act.
5.5.2 The Employees
The interests of employees at the place of work are looked after the trade unions,
staff associations, some professional bodies, and the individual themselves. The
greatest influence has been the trade unions.
A trade union is defined as a registered combination of employees, whose
constitution shows the main object to the organization and regulation of collective
relations with employers or between employees. Since these are objects approved
by law, they are known as the “statutory objects”.
The roles of unions in summary are as follows:
a) Bargain for best possible wages, terms and condition for members.

a) Lobby for improved share in national wealth for members.

b) Influence government policy, legal framework etc on behalf of members.

c) Lobby for social security for all.

d) Lobby for full employment, job security, wage levels, cheap housing for
the poor.

e) Bargain nationally, regionally, locally, industrially, for organization and

individuals.

f) Represent members at disputes and grievances and for any other reason for
members according to need.

5.5.3 The Employers

The third party to the framework is the employer, represented by employer and
trade federations and association, individual companies and organizations.
The function of the employer in industrial relations is:
a) To set standards of staff management, attitudes, behaviour and
performance for the organization or company.

a) To set terms and conditions of employment, and play levels and methods.

38
b) To act in a fair and reasonable way towards all employees at the work
place.

Employers may take part in national arrangements to set minimum standards for
the sector concerned. They may choose to recognize trade unions or not. They may
make representations to government on their own behalf, through their association
and federations.
In recent years the area of industrial relation has become recognized as an area of
profitable and effective activity. Managers are now being trained in the skills of
staff relations and problem-solving.
5.6 Characteristics of the Actors (Important points)

1. The interests of the actors in industrial relations are at variance. The

employees seek highest wages and employers seek profits and surplus.

2. The interest of the sellers and buyers of labour conflicting.

3. The process of selling and buying Employment services and does not take
place in a political vacuum. The government through the ministry of labour and
social services sets parameters within which the behavior of the buyers and sellers
is acceptable.

4. The actors in industrial relations operate in the Employment and Industrial

Relations market in which they attempt to protect and advance their interests.

5. The employees and employers use different methods to reconcile their

differences (e.g. collective bargaining, arbitration, conciliation and mediation).

6. The use of these methods results in agreements, disagreements, rules and

regulations which cover the employment conditions.

CONCLUSION

The field of industrial relations (also called Employment and Industrial Relations)
looks at the relationship between employers and employees, particularly groups of
workers represented by a union and the government. It refers to the interaction

39
between employers, employees, and the Government through which such
interactions must enhance industrial harmony (peace).

 The main actors in IR are:

 The employees

 The employer

 The Government

The Three Actors in Industrial Relations

In this unit you have worked through a number of issues that provide underpinning
knowledge of the nature of Industrial Relations. You have studied the following
main points:
 Definition of Industrial Relations

 The importance of Industrial Relations

 What is involved in Industrial Relations and benefits

40
 Identification of the parties involved in Industrial Relations

 History of Industrial Relations

Activity
1. Explain the definition of Industrial Relation.

1. Briefly list out the benefits and importance of

Industrial Relations.

2. What does the term tripartite mean in Industrial

Relations?

3. Identify the three parties involved in Industrial

Relations and briefly explain their roles.

4. Explain the history of Industrial Relations.

41
UNIT 6 TRADE UNIONS AND EMPLOYERS ORGANISATIONS

The interpretation clause, section 3, of the Industrial Relations Act, defines ‘trade union’ as
any group or organization of the employees registered under the Act whose principal
objectives are the representation and promotion of the interests of employees and regulations
of relations between employees and employers and includes a federation of trade unions.

The Industrial Relations Act, introduced the above definition of trade union. Before that, a
trade union was defined as an organization of employees which was registered as a trade
union under the Act and whose principal objects were the regulation of collective relations
between employees and employers or between employees and organizations of employers, or
between employers and employees. By bringing federations of trade unions under the
umbrella of trade unions, the new definition has broadened the definition of trade unions.
6.1 Formation
Any group of employees not less than fifty in number or lesser number as prescribed by the
Minister of Employment and Industrial Relations , may sign an application to be registered as
a trade union. The application must be accompanied by two dully certified copies of the
constitution of the proposed union and such other information or documents as may be
required by the Employment and Industrial Relations Commissioner by notice in writing
addressed and delivered to the executive officer of the trade union within such period as
determined by the Employment and Industrial Relations Commissioner as specified in the
notice. The application, in the prescribed form, is then substituted to the Commissioner.
Upon being satisfied that that the application for registration has complied with the prescribed
conditions and that constitution of the proposed union has provision for matters set out in the
schedule to the Act, the Commissioner is under obligation to register the group of employees
as a trade Union. Upon registration of the union, the Commissioner issues it with a certificate
of registration in the prescribed form upon payment of the prescribed fee. A certificate of
registration constitute prima facie evidence that the provisions of the Act relating to
registration have been complied with unless the certificate has been withdrawn or cancelled.

42
A group of employees will not be registered as a trade union under a name identical to or by
which, any other trade union has been registered or so nearly resembles such a name as to be
likely to deceive its members or members of the general public. A group of employees will
also not be registered if the proposed union does not comply with the conditions of
registration prescribed in consultation with the Tripartite Consultative Employment and
Industrial Relations Council. Any person, who is aggrieved by the refusal of the
Commissioner to register an organization as a trade union, or by the cancellation of the
certificate of registration, has the right to appeal to the Industrial Relations Court not later
than thirty days after being notified about the refusal, decision or cancellation.

6.2 Rights and Obligations of Employees in respect of Trade Union Membership and
Activities

The right of every employee to join a trade union of his choice is a fundamental one and
touches on the very foundation of Freedom of Association as entrenched in Article 21 of the
Republican Constitution. Article 21(1) of the Constitution provides 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 of assembly freely and associated with other persons and in
particular to form or belong to any political party, trade union or other association for the
protection of his interests.

Article 21, is in accordance with the provisions of the Freedom of Association and Protection
of the Right to Organise Convention, No. 87 of 1948, which Zambia ratified on 2 nd September
1996. In accordance with the provisions of Convention 87 and Article 21 of the Zambian
Constitution, the Industrial Relations Act has laid down the rights of every employee in
respect of trade union membership and its activities in section 5. The section provides the
rights of employee as being:
(a) the right to take part in the formation of a trade union;
(b) the right to be a member of the trade union of the employee’s choice;
(c) the right to take part in an appropriate time in the activities of a trade union, hold
office, seek elections or accept appointments and hold office in the union;
(d) the right to obtain leave of absence from work in the exercise of the rights
provided for in paragraph (c) above;
43
 (e) the right to be prevented, dismissed, penalized, victimized, or discriminated
against or deterred from exercising the rights conferred on the employee under the
Industrial and Employment and Industrial Relations Act;
(f) the right not to be a member of the trade union or be required to relinquish
membership of a trade union;
(g) the right not to be dismissed, victimized, or prejudice for exercising or for the
anticipated exercise of any right recognized by the Act or any other law relating to
employment, or for participation in any proceedings relating thereto;
(h) the right not to do work normally done by an employee who is lawfully on strike
or who is locked out, unless such work constitutes essential services, or if on
request the employee voluntarily waives the rights specified under the Act;
(i) the right not to be dismissed, penalized or disciplined on the ground that the
employee has been or is a complainant or witness or has given evidence in any
proceedings against the employer; or that the employee is entitled to a reward,
benefit or compensation against any employers’ organization or class of employers
to which the employee’s employer belongs or against any other person, in
consequence of a decision made by a court in favour of the employee or in favour
of a trade union or class of employees to which the employee belongs.

Section 5(2) gives the right to any employee to lay a complaint before the Industrial Relations
Court if he has reasonable cause to believe that his services or employment has been
terminated or that he has suffered any penalty, disadvantaged or victimization for exercising
or in connection with the exercise of any rights under the section. Such an employee must lay
the complaint before the Court within thirty days after exhausting administrative channels
available to that employee in his undertaking. Where administrative channels are not
available, he must lay the complaint before the Court within thirty days of the termination of
services or employment or of knowing that he has suffered any penalty, disadvantage or
victimization. The Act makes it an offence punishable by a fine or prohibition from holding
office in an employer’s organization for an employer or employer’s organization to render
financial or other assistance in any form to any trade union or any officer or member of a trade
union with the object of exercising any control over, or influence in, the activities of such
trade union.

44
However, by their very nature, all rights have corresponding obligations. Thus section 6 of
the Act lays down the obligations of every employee as being to promote, maintain and co-
operate with the management of the undertaking in which the employee is employed in the
interest of industrial peace, greater efficiency and productivity.

As indicated above, Zambia is a signatory to the Freedom of Association and Protection of the
Right to Organize Convention. Being a signatory to the Convention has entailed Zambia
undertaking to follow the provisions of the Convention and to give effect to them. The
Convention provides in Articles 2 and 3 that workers and employers, without distinction
whatsoever, shall have the right to establish and, subject only to rules of the organization
concerned, to join organizations of their own choice with previous authorization. Further,
workers and employers’ organizations have the right to draw up their constitution rules, to
elect their representatives in freedom, to organize their administration and activities and
formulate their programmes. Article 5 provides that workers’ and employers’ organizations
shall have the right to establish and join federations and confederations and any such
organization, federation or confederation shall have the right to affiliate with international
organizations of workers and employers. However, in exercising the rights provided for them,
employers and employees and their respective organizations, like other persons or organized
collectivities, shall respect law of the land which shall not be such as to impair, nor shall it be
so applied as to impair, the guarantees provided for in the Convention.

The right to Organize and Collective Bargaining Convention, 1949, explicitly provides that
workers shall enjoy adequate protection against acts of anti-union discrimination in respect of
their employment. Such protection is to apply more particularly in respect to acts calculated
to make the employment of a worker subject to membership of a specific trade union or
subject to relinquishment of trade union membership; to cause the dismissal or otherwise
prejudice a worker by reason of membership or because of participation in union activities
outside working hours or within the consent of the employer, within working hours. The
workers are offered adequate protection against acts that are design to promote the
establishment of workers organizations under the domination of employers’ organizations, or
to support workers organizations by financial or other means, with the object of placing such
organizations under the control of employers or employers’ organization. Such acts are
deemed to constitute acts of interference.
45
It is clear that the above provisions are meant for the protection of employees from
machinations by financially powerful employers who might want to buy their way to control
the trade unions. The provisions are meant to promote the rights of trade unions or its
members to associate freely.

6.3 Legal Personality of Trade Unions

A trade union is not a body corporate even though it may purchase or take on lease in the
name of the trustees of the trade union any land and sell, exchange, mortgage or let the land.
All real and personal property belonging to a trade union vests in the trustees of the union for
the use and benefits of the trade union and the members. Actions by and against trade unions
are brought and defended by 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, any right or
claim of property of the trade union.
6.4 Amalgamation of Trade Unions
Section 15 of the Industrial Relations Act allows two or more trade unions, in accordance
with the provisions of their respective constitutions, to amalgamate as one trade union. The
resultant trade union is under obligation to be registered in accordance with the provisions of
the Act. Rights and liabilities of the two or more unions merge are carried over to the new
union with the result that any legal proceedings in respect of any right or obligations of a trade
union which has amalgamated with another trade union may be commenced, continued if
pending, by or against, the trade union formed as a result of the amalgamation.

6.5 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
46
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.

6.6 Dissolution of Trade Unions

The Acts makes provisions of voluntary dissolution of a trade union. When the members of a
union desire to dissolve the union voluntarily notice of the intention to dissolve the union
signed by the executive committee of the union together with a copy of the resolution to
dissolve the union must be sent to the Commissioner, with a copy of the Federation of Trade
Unions, if the trade union is affiliated to it. The federation may comment on the intended
dissolution of the union if he is satisfied that the intended dissolution is in accordance with
union’s constitution. Thereafter, the Commissioner gives notice of the approval of dissolution
to the trade union concerned and to the Federation of Trade Unions, if the union is affiliated to
it. The dissolution becomes effective from the date of approval of such dissolution by the
Commissioner.

Once a Trade Union is dissolved, the property of such trade union vests in the liquidator
appointed by the Commissioner. The liquidator has all the powers to recover, realize and sell
such property as a trustee in bankruptcy in relation to a bankrupt’s property under the
Bankruptcy Act. The liquidator winds up the affairs of the trade union and after satisfying
and providing for all the debts and liabilities of the trade union, prepares a scheme for the
application of its remaining assets of property or proceeds among its former members of the
dissolved union, or distribute the assets or property or proceeds among its former members, as
the commissioner may determine. A liquidator is protected from any action or other
proceeding 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.
6.2 EMPLOYERS’ ORGANISATION

An ‘Employers Organisation’ refers to any group of employers registered under the Industrial
Relations Act whose principle objectives are the representation and promotion of employers
interests and regulation of relations between employers and employees or between employers
and trade unions and includes a federation of employers’ of organisations.

47
6.2.1 Formation

Every employer’s organisation must be registered with the Employment and Industrial
Relations Commission with six months from the date of its formation.1 If the Commissioner
refuses to register an organisation, he must dissolve it within six months from the date of
notification of such refusal. If the organisation is not duly registered or dissolved within the
prescribed period, every officer of the organisation is guilty of an offence and liable to a fine.2
The procedure on registration is that an application for registration as an employers’
organisation, in the prescribed form, is submitted to the Commissioner. The application for
registration must be lodged by no less than five members of the proposed employers’
organisation or such lesser number as the Commissioner in his discretion may accept to form
an employers’ organisation. The application must be accompanied by two duly certified
copies of the constitution of the proposed employers’ organisation and any other information
or documents as may be required by the Commissioner by notice in writing.3

The Act prohibits an employers’ organisation or any of its officers from performing any act in
furtherance of the objects for which it has been formed unless it is registered under the Act.4
Contravention of the Act in this respect attracts the penalty of a fine and, additionally,
prohibition of every officer involved from holding office in any other employers’ organisation
for a period determinable by the court.5

At the request of the employers’ organisation, a certificate of registration may be cancelled by

the Commissioner with the approval of the Minister upon submission of the request. Other
instances when a certificate of registration may be cancelled are if the certificate of
registration has been obtained by fraud or mistake or if the organisation has willfully violated
any of the provisions of the Act.6 However, before the Commissioner cancels a certificate of
registration of an employers’ organisation due to fraud, mistake or willful violation of the
provisions of the Act, he must give notice to the employers’ organisation concerned,
1
Section 36 (1)
2
Section 37 (3)
3
Section 40
4
Section 39 (1)
5
Section 39 (2)
6
Section 46 (1)
48
specifying the grounds upon which he intends to rely for the intended cancellation at least
three months before the cancellation. The organisation concerned may be then make
representations to the Commissioner in opposition to the grounds contained in the notice.
After receipt of the representations and after the expiration of the three months’ notice, the
Commissioner may cancel the certificate of registration and notify the organisation concerned
accordingly.

Any person aggrieved by the refusal of the Commissioner to register an employers’

organisation or by the cancellation of a certificate of registration, may appeal to the Industrial
Relations Court within thirty days of the notification of refusal, decision or cancellation.7 The
Court may set aside the decision of the Commissioner refusing the registration or the
employers’ organisation or cancellation of certificate, dismiss the appeal or make any order as
it may consider appropriate in the circumstances.8

6.2.2 Rights of Employers

As indicated in Chapter V, the right of the employers to organise and associate, like those of
employees, is assured under the Freedom of Association and Protection of the Right to
organise Convention 1948 to which Zambia is a signatory and also enshrined in the
Republican Constitution. Section 37 of the Industrial Relations Act also has provision for the
rights of employers. These are the rights to participate in the formation of, and join, an
organisation and to participate in its lawful activities. Hence no law should prohibit any
employer from being or becoming a member of any organisation lawfully in being or subject
the employer to any penalty by reason of the employers’ membership of any employers’
organisation. Further, no person has the right to impede, interfere with, or coerce an employer
in the exercise of his rights under the Act. No person is permitted to subject an employer to
any form of discrimination on the ground the employer holds office or is not a member of any
organization. Further, no person is permitted to subject another person to any form of
discrimination on the ground that the person holds office in an organization or impede or
interfere with the lawful establishment, administration or functioning of an employers’
organization.

7
Section 47 (10
8
Section 47 (4)
49
Employees are prohibited from ceasing or suspending doing their work for their employer on
the ground that the employer is or is not a member or holds or does not hold office in an
employers’ organization or his appeared as a complainant or wishes or has given evidence in
any proceedings before the Industrial Relations Court or any other court or is or has become
entitled to any advantages, award, benefit or compensation in consequence of a decision made
by the Industrial Relations Court or any other court in favour of the employer, or in favour of
an employers’ organisation or class or category of employers to which such employer
belongs, either against such employer or against the trade union or class or category of
employers to which such employee belongs or against any other person. 9

Any person who contravenes the provisions of the law in the above respect is guilty of an
offence and liable to a fine and in addition, may be prohibited from holding office in a trade
union for such duration as the court may determine.10

6.2.3 Legal Personality of Employers’ Organisation

An employers’ organisation, just like a trade union, has no legal personality, hence can only
sue or be sued through its trustees.11 The provisions of section 25, 26 and 27 of the Act
relating to vesting of all real and personal property belonging to a trade union; actions by or
against trustees of trade unions and limitation of liability of trustees of trade unions,
respectively, apply mutatis mutandis12 to employers’ organizations.13

6.2.4 Amalgamation of Employers’ Organizations

Two or more employers’ organisation desiring to amalgamate may do so but the new
organisation formed must be registered in accordance with the Act. Any legal proceedings in
respect of any rights or obligations of the organisation that has amalgamated with another may

9
Section 37 (2)
10
Section 37 (3)
11
Section 54
12
With the necessary modifications
13
Section 53 and 54
50
be commenced or be continued, if pending, by or against the organisation formed as a result
of the amalgamation.14

6.2.5 Federation of Employers’ Organizations

A ‘Federation of Employers’ Organisations’ is any organisation whose membership consists

wholly or mainly of registered employers’ organisations or individual employers who are not
members of any employers’ organisation and whose principal objectives include the
regulation of relations between employers’ organisation or between employers’ organisations
and trade unions and federations of trade unions.15

The Zambia Federation of Employers established by and registered in accordance with section
56 of the repealed Industrial Relations Act, continues to exist as an unincorporated body and
is deemed registered as a Federation of Employers’ Organisation under the Act. All provisions
relating to the constitution of the Federation of Trade Unions, relationship between the
Federation of Trade Unions and the unions, apply, mutatis mutandis, to the federation of the
Em5

6.2 .6 Dissolution of Employers’ Organisations

An employers’ organisation which desires to be dissolved must submit to the Commissioner a

notice of intention to dissolve the organisation signed by all members of the executive of the
organisation together with an authenticated copy of the minutes and resolution passed in
making the decision. If the organisation is affiliated to the Federation of Employers’
Organisations, a copy of the notice should be given to such Federation. The Federation is at
liberty to comment on the intended dissolution of an employers’ organisation within fourteen
days of receipt of the notice. If the Commissioner is satisfied that the intended dissolution is in
accordance with the organisation’s constitution, he may approve the dissolution which is
effective from the date the Commissioner accords his approval.

14
Section 49 (2)
15
Section 3
51
The reader should note that even though by the wording of section 50 (2) of the Act,16it would
appear that the Commissioner has the discretion to decline to approve the dissolution of an
employers’ organisation even if the intended dissolution is in accordance with the
organisation’s constitution, the true position would be that where an organisation has met all
the conditions required to be met before a dissolution can be accepted by the Commissioner,
the Commissioner would have no justification to refuse to dissolve the organisation. He would
under those circumstances, be under a legal duty to dissolve the organisation, the organisation
concerned could have recourse to the Industrial Relations Court for redress under section 85
of the Act. Once the Commissioner has granted his approval to the dissolution of an
employer’s organisation, he must notify his approval to the organisation concerned and the
federation of Employers’ Organisations, if the employers’ organisation is affiliated to the
Federation.17

The provisions in section 50 (4) (a) and (b) relating to the vesting of the property of an
employers’ organisation and winding up of affairs of a dissolved employers’ association and
liquidator appointed by the Commissioner for or respect of anything done or omitted to be
done by him in the performance of the functions under the Act, are similar to the provisions
on the same matters as they apply to trade unions.18

16
Which reads as follows: ‘If the Commissioner is satisfied that the intended dissolution of an organisation is in
accordance with its constitution he may approve the dissolution and the dissolution shall be effective from the
date the Commissioner accords his approval.’
17
Section 50 (3)
18
Section 16 (5)
52
UNIT 7. COLLECTIVE EMPLOYMENT AND INDUSTRIAL RELATIONS

7.1 Definition of Collective Bargaining

Collective bargaining is a process of negotiations between employers and the representatives

of a unit of employees aimed at reaching agreements which regulate working conditions.
Collective agreements usually set out wage scales, working hours, training, health and safety,
overtime, grievance mechanisms and rights to participate in workplace or company affairs.

The union may negotiate with a single employer (who is typically representing a company's
shareholders) or may negotiate with a group of businesses, depending on the country, to reach
an industry wide agreement. A collective agreement functions as a labor contract between an
employer and one or more unions. Collective bargaining consists of the process of negotiation
between representatives of a union and employers (generally represented by management, in
some countries by an employers' organization) in respect of the terms and conditions of
employment of employees, such as wages, hours of work, working conditions and grievance-
procedures, and about the rights and responsibilities of trade unions. The parties often refer to
the result of the negotiation as a collective bargaining agreement

Typically, the employees are represented by a union. Collective bargaining actually begins
with joining a union, agreeing to abide by the rules of the union, and electing union
representatives. In general, experienced people from the union will assist the employees with
putting together a draft of a contract, and will help them present their desires to the company.
Numerous meetings between representatives of employer and employees will be held until the
two can agree on a contract.

As the contract is being negotiated, general employees also have input on it, through their
union officers. Thus, the agreement reflects the combined desires of all the employees, along
with limitations that the employer wishes to see put in place. The result is a powerful
document which usually reflects cooperative effort. In some cases, however, the union or the
employer may resort to antagonistic tactics such as striking or creating a lockout, in order to
push the agreement through.

53
7.2 LEGAL SUPPORT FOR COLLECTIVE BARGAINING

The right to collectively bargain is recognized through international human rights

conventions. Article 23 of the Universal Declaration of Human Rights identifies the ability to
organize trade unions as a fundamental human right.[3] Item 2(a) of the International
Employment and Industrial Relations Organization’s Declaration on Fundamental Principles
and Rights at Work defines the "freedom of association and the effective recognition of the
right to collective bargaining" as an essential right of workers.

In June 2007 the Supreme Court of Canada extensively reviewed the rationale for regarding
collective bargaining as a human right. In the case of Facilities Subsector Bargaining
Association v. British Columbia, the Court made the following observations:

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... Collective bargaining is not simply an instrument for pursuing external ends…rather
[it] is intrinsically valuable as an experience in self-government... Collective bargaining
permits workers to achieve a form of workplace democracy and to ensure the rule of law in
the workplace. Workers gain a voice to influence the establishment of rules that control a
major aspect of their lives.

7.3 Wage Setting and Collective Bargaining

Wage setting in Zambia is conducted largely through the process of collective bargaining
under the auspices of the Industrial Relations Act. Every employer employing not less than
twenty five (25) employees and the trade union to which his 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 a bargaining partner. The agreement is a pre-requisite for regulating the collective
relationship of the employer and the trade union. Similar relationships are required to be
established between the employer’s organizations and the trade unions as may exist.

54
Following the establishment of plural trade unionism in 1997 and the emergence of competing
trade unions, the question of criteria for recognition has been topical and has been discussed at
various tripartite fora. The law has so far not given guidance on the matter leading to
difficulties in certain sectors. In many cases however the principle of “most representative”
has been the standard. Collective bargaining as a means of establishing minimum wages and
conditions of employment has permeated the greater part of the workplace including the
public service arising from tremendous growth in the institutions of industrial relations
namely trade unions and employer’s organizations. It can be safety estimated that over 50% of
the workforce in the formal sector are covered or affected by collective bargaining processes
either directly or indirectly. Collective bargaining takes place at both enterprise and industry
levels. In the recent past however industry level bargaining has tended to be shunned in favour
of enterprise level bargaining which is considered more realistic as it tends to take full account
of enterprise capacity. Industrial bargaining has been abandoned in the motor trade, banks and
other financial institutions during the last decade. Generally the Government does not
interfere in the contents of collective agreements. The major determinant is capacity of the
employer and 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
Commissioner a collective agreement assumes legal effect and is binding on the parties.
In spite of the bias for collective bargaining enshrined in the Act, it is recognized that State
intervention in the regulation of wages and other conditions of employment is necessary and
inevitable in those areas or sectors where collective bargaining is not possible or is ineffective.
To this effect, the Minimum Wages and Conditions of Employment Act enacted in1982
provides the State with residual power to determine minimum wages and other conditions of
employment. This power may be exercised only in circumstances where collective bargaining
is not possible or effective. It should be noted that there is a requirement that in exercising the
power, the Minister must consult and involve the social partners. In practice the Minister
determines the terms on the basis of recommendations made to him and emanating from
consultations with trade unions and employers organizations including their central
organizations. There are two statutory wages determinations made under the Minimum Wages
and Conditions of Employment Act covering shop workers (Statutory Instrument No. 3 of
2012), and a general determination (Statutory Instrument No. 2 of 2012). The general
determination covers all employees except employees of the Government, local Councils,
household domestic service, and more importantly employees in occupations where terms are
55
regulated through the process of collective bargaining under the Act. Senior and professional
personnel are largely engaged on terms individually negotiated with the employer for
renewable short term periods ranging up to five years. Over the last decade, following the
economic restructuring programme and establishment of new employers, the phenomenon of
short term renewable contract employment as opposed to the so called “permanent and
pensionable employment,” has become common place and extended to cover a larger scope
including lower ranking employees. This development has riled trade unions which have
viewed this as depriving them of potential membership and influence.
7.4 BARGAINING PROCEDURE

Collective bargaining is an exclusive function of a trade union and the employer or

employers’ organization .Together they form a bargaining unit. Before the Industrial Labor
Relations Act was amended in 1997, section 66 established what were known as joint
councils. A joint council was a bargaining unit at industry level. At enterprise level, a
bargaining unit was simply known as a bargaining unit. Where the collective bargaining took
place by joint council, whatever was agreed upon would bind everyone in that industry
notwithstanding that they were not party to the negotiation. All collective agreements had to
be gazette before they could assume their legal status. However, an employer who was not
party to the negotiation had a right to provide other conditions better than those agreed upon if
he did not wish to be bound by a joint council decision .The disadvantage with this setup was
that it not take into account the capacity of small employers within the lager industry to pay
what the joint council had agreed upon. The result was that in order to avoid being bound by
the joint council arrangement, some industries resorted to pulling out of the employers’
organization concerned and/or reducing their workforce in order to meet what the joint
councils may have agreed upon.

At the level of an enterprise, the bargaining unit consisted of representatives on the union’s
side and the individual employer on the other side. The collective agreements reached
between those two parties were not gazettable and the law only required that the bargaining
unit submit five copies of the agreement to the Commissioner. These agreements were also
subject to approval by the minister. However, the 1997 Act, removed the concept of joint
council, although collective bargaining is still undertaken at industry and enterprise
level19.The 1997 Act also removed the need to gazette collective agreements whether reached
at enterprise or industry levels.

In order to be valid, every collective agreement must contain the following mandatory clauses
referred to as statutory clauses, namely, the date on which the agreement is to come into effect
and the period for which it is to remain in force ; and the methods , procedures and rules for
reviewing , amending or replacing or terminating the collective agreements.20
19
Sections 66.
20
Section 68.
56
 It is the duty of the bargaining unit to commence negotiations for the purpose of concluding
a new collective agreement at least three months before the expiry of the current collective
agreement.21If the bargaining unit is unable to conclude a new collective agreement before the
expiration of the existing collective agreement or if the bargaining unit for any other reason
desires to extend the period for which the collective agreement is to remain in force, it may
apply to the minister for an extension of the collective agreement.

The application for extension must be made not less than thirty days and not more than sixty
days before the expiration of the existing collective agreement. The minister may however
consider an application made at any time before the expiration of the existing collective
agreement.22

If the bargaining unit fails or neglects, without reasonable cause or excuse , to commence
negotiations or conclude the collective agreement within the stipulated time or to notify the
Commissioner in writing within fifteen days after commencement of the negotiations of the
date on which the negotiations were commenced , every member of the bargaining unit is
liable upon conviction to a fine and may also be prohibited from holding a position in the
bargaining unit for a period not exceeding three months. 23

The parties to a collective agreement are required to lodge five signed copies to the
commissioner who in turn submits the copies to the Minister within fourteen days of receipt of
the copies. The Minister may, after considering the collective agreement, decline to direct
registration of the agreement and direct that a copy of the collective agreement be returned to
the parties together with his reason for his decision and give instructions to the Commissioner
or direct the Commissioner to register the collective agreement. The Minister will not direct
the registration of a collective agreement until he is satisfied that the agreement contains the
mandatory statutory clauses and that the clauses do not contain anything that is contrary to
any written law.24Parties to a collective agreement are at liberty to vary provisions of the
collective agreement as long as the provisions for lodgment of collective agreements with the
Commissioner for approval by the Minister are followed.25

7.5 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

21
Section 69 (1) (a).
22
Section 73.
23
Section 69(2)
24
Section 71
25
Section 72 .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 Workers Union of Zambia to re-
negotiate the Collective Agreements entered into between them, was in accordance with this provision. The
57
contracts of employees in the enterprise or industry in which the collective agreement is in
effect as soon as the 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.

Before its repeal, the Industrial Relations Act made provision for the legal enforceability of a
collective agreement by providing that a duly gazette collective agreement was binding on the
parties for the period during which it was in existence.

The 1997 Act did away with the need to gazette collective agreements negotiated and once
concluded by joint councils. However every collective agreement that has been approved by
the Minister is binding on the parties.26 In the case of Kamayoyo v. Contract Haulage27 the
Supreme Court held that a collective agreement is a legally binding contract between the
parties and that anything done outside these contractual agreements are of no legal effect. In
the case of Pamodzi Hotel V. Godwin Mbewe28 a collective agreement was incorporated into
the terms of the employment that bound both parties. The agreement provided a penalty of
dismissal after warning for a first breach for offences related to drunkenness and summary
dismissal without any need for a previous warning for drunkenness. On allegation that the
respondent was drunk on duty, he was dismissed. He sought a declaration in the High Court
that the 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 that he was not his usual self and concluded that 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, summary dismissal
was unlawful.The appellant appealed to the Supreme Court. The Supreme Court held, inter
alia that, where there is a collective agreement which has been properly published in the
Gazette29 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.

7.6 INDUSTRIAL ACTION AND THE RIGHT TO STRIKE

26
Section 71 (3)(c)
27
[1982]ZR 13 (SC), Reported in Chapter IV under Wrongful Dismissal Cases.
28
[1987]ZR 56 (SD), reported in Chapter IV ,under Summary Dismissal Cases
29
As indicated earlier in this chapter, at that time it was a requirement of the law for publication of collective
agreements made at the industry level in the Government Gazette in order for them to be legally binding.
58
Strikes and indeed lockouts are both recognized as legitimate actions that may be undertaken
by workers or employers in furtherance of their dispute. However, such actions become lawful
only if they are resorted to after due process and only if they do not involve “essential
services” as previously defined. It is important to note that the right to strike is strictly limited
to parties to the dispute. This means that sympathy strikes over political matters are not
legitimate under the law. It is also important to note that no strike may take place after the
Industrial Relations Court has given a decision. Certain protective provisions have been
incorporated in the Industrial Relations Act. These include the right of an employee not to do
work normally done by an employee who is lawfully on strike or who is locked out, unless
such work constitutes an essential service, and where a lawful strike or lockout, takes place,
the existing recognition and collective agreement, if any, between the parties may not be
deemed to have been breached by reason only of such action or the contract of employment of
each employee involved in the strike or lockout may not be deemed to have been breached
only by such action.
In spite of the legal limitations on the right to strike, large scale strikes and many spontaneous
work stoppages of short duration at enterprise level have nevertheless occurred designed to
draw attention to poor working conditions and set in motion negotiations or conciliation. In
the recent past, the public service has been rocked by spontaneous strikes over failure by the
Government to implement terms of a concluded collective agreement on payment of housing
allowance. The matter has since been referred to the Industrial Relations Court.
Industrial action may be defined as any action, such as strike, or go –slow taken by employees
in the industry to protest against working conditions, redundancies, etc. ‘Lockouts are also
considered part of industrial action .Section 3 of the Industrial and Labor Relations Act
defines a ‘lockout’ as the closing down of a place of employment or the suspension of work,
or the refusal by an employer to continue to employ any number of persons employed by him,
as a result of a dispute , and done with a view of compelling persons , or to aid another
employer in compelling those persons or to aid him, to accept terms or conditions affecting
employment.30

A strike is defined as the cessation of work or withdrawal of work contrary to the terms and
conditions of a contract of a contract by a body of persons employed in any undertaking
acting in combination or a concerted refusal under a common understanding of any number of
persons who are so employed to continue work or provide their labor.

The Act does not define a ‘go –slow’. However a ‘go-slow can be defined as an action by
employees whereby they do not completely withdraw their labour but deliberately work
30
Interpretation section.
59
according to rule. They refuse to put in extra hours but restrict themselves to the contractual
hours. The go-slow is popular among essential workers who are prohibited to go on strike
.Section 107 (10) of the Industrial Employment and Industrial Relations Act defines essential
service as any service relating to the generation , supply and distribution of electricity; any
hospital or medical service; any service relating to the supply and distribution of water; any
sewerage service; any fire brigade ; any service for the maintenance of safe and sound
conditions in a mine of underground drainage, shafts and shaft installation or machinery and
plant; and such other service which the Minister may, in consultation with the Tripartite
Consultative Employment and Industrial Relations Council ,31 prescribed by statutory
instrument as an essential service .Generally essential service is any service whose disruption
is likely to cause injury in one form or another to the whole or part of the population.

While the law recognizes the duty to bargain collectively, it does not prescribe any minimum
standards for bargaining. This has regrettably led to a lot of collective disputes between
employers and trade unions in Zambia. Interestingly, while the law in Zambia does not
distinguish between bargaining in the essential services and bargaining in non-essential
services a distinction is made between essential services and non –essential services when it
comes to the procedure for resolution of collective disputes. Section 76(1) provides for the
procedure to be followed when a collective dispute has arisen 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 in an essential service, the parties
cannot resort to conciliation but have to refer the dispute to the Industrial Relations Court for
resolution.

While the law permits both essential and non-essential employees to enter collective
bargaining, section 107(3) prohibits an employer or any other person from taking part in a
lockout and an employee, a trade union or any other person from taking part in a strike which
is likely to interfere or hinder or interfere with the carrying on of any essential service. Since
this provision in effect prevents those engaged in essential services from taking part in an
industrial action for the rather obvious reason of protecting members of society from harmful
effects of disruption to such services, it would have made much sense , in the authors
opinion , to make conciliation available to the essential service providers as well. This would
have helped in speeding up dispute resolution in the vital sectors of the economy and thus
avoid the disruption in the provision of essential services that result from go-slows. The
industrial Relations Court could then be used as a last resort in the event of failure of
conciliation.

A collective dispute exists when there’s a dispute between employers or organizations

representing employers and employees or organizations representing employees relating to
terms and conditions of or affecting the employment of the employee and one party to the
dispute as presented in writing to the other party all its claims and demands. The other party
should have failed to answer the claims or demands within 14 days of receipt of the claims or
31
Tripartite Consultative Labor Council consists of the Minister and such equal number representing the trade
unions, employers and the Government as the Minister may determine but not less than twenty one.
60
demands and made no counter offer; or 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 the matters in issue between them. 32

As already indicated, collective disputes involving non – essential service organizations, are
settled by means of conciliation. As soon as the dispute is settled, the conciliator or the
Chairman of the Board of Conciliation causes a memorandum of the terms of settlement to be
prepared. The memorandum is signed by the parties to it and witnessed by the conciliator or
Chairman and each member of the Board of Conciliation, as the case may be. Within seven
days of the settlement of a dispute by conciliation, the conciliator or Chairman of the Board of
Conciliation, submits authenticated copies of the memorandum to the Registrar. The Registrar
refers the memorandum as soon as possible after receipt of a copy to the Court, 33 which is
obliged to approve the settlement embodied in the memorandum if the settlement is not
contrary to any written law. In the event that the court finds that the whole or any term of the
settlement is contrary to any written Law, the Registrar will communicate the decision of the
Court to the parties to the dispute accordingly.34

Where a conciliator or Board of Conciliation fails to settle a collective dispute, the parties may
refer the dispute to the Court or conduct a ballot to settle the dispute by a strike or lockout.35
Where a dispute is referred to Court, the decision of the Court is binding upon the parties
subject to appeal to the Supreme Court.

Where the parties decide to proceed on strike or lockout, they should not do so unless a simple
majority decision of the employees present and voting is made in favour of the strike or
lockout. A strike should begin ten days following the decision to go on strike and may
continue for an indefinite period during which the dispute remains unresolved.

The minster is at liberty to intervene before the commencement of the strike or lockout to try
and settle the dispute. After consultation with the Tripartite Consultative labour Council, the
Minister may apply to the Court for a declaration that the continuation of the strike or lockout
is not in the public interest. Where such an application is made, the Court must make a
decision within seven days of the application for declaration. Where the Court issues a
declaration in favour of the application, the strike or lockout must cease and dispute is deemed
to have been referred to the Court as if the conciliator or Board of Conciliation have failed to
settle a collective dispute the Court has power to decide whether the workers on a legal strike
should be eligible for payment of wages during the period of strike.

In the event that action in pursuance of a strike or lockout takes place in accordance with the
provisions of the Act, the provisions of the recognition and collective agreement, if any,

32
Section 75.
33
The Industrial Relations Court.
34
Section 77
35
Section 78
61
between the parties are not deemed to have been breach by any reason only of such action.
Further, the contract of employment with respect to each employee involved in the strike or
lockout will not be deemed to have been breached by reason only of such action.36

It should be noted that while employees in Zambia have the right to join trade unions and
take part in their activities, that is not the case with employees in the defence and security
sectors of the nation as well as members of the judiciary. The law does not allow workers in
the Zambian Defence Forces, Zambia Intelligence Service, Judges, and Registrars of the
Courts, Magistrates and Local Court Justices, to form unions and engage in collective
bargaining.37In fact, the Industrial Relations Act does not apply to the above category of
employees.38

It has been argued that it is very difficult to go on a legal strike in Zambia due to the
cumbersome procedures that must be followed before employees go on a legal strike. With the
increasing number of illegal strikes taking place in Zambia, one would be hard-pressed not to
agree with the critiques of the onerous procedural requirements in collective disputes .As can
be gleaned from what has been written above, workers in essential services are not allowed to
embark on industrial action by withdrawing their labour when faced with a deadlock. With
this type of scenario the question that comes to mind is whether all employees employed in
industrial or other service providers providing essential services are to be considered essential
employees? For example, should secretaries or office orderlies in such undertaking be
considered essential workers too? One would argue that if by going on strike or other
industrial action, the work of essential workers would be affected then they would be regarded
as essential workers. However, if their going on strike has no effect on the work of essential
workers, then they should not be regarded as essential workers.

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.39

36
Section 78.
37
It would appear, however, that there’s nothing to stop these groups from forming associations to further
their professional interests. Thus, for example, magistrates and judges have formed an association called the
Magistrates and Judges Association of Zambia (MAJAZ).However, such associations are not unions and cannot,
therefore, engage in collective bargaining.
38
Section 2 of the Act
39
The dispute between the Government and Civil Servants and Allied Workers Union of Zambia in 2003, which
arose out of the failure by the government to pay civil servants housing allowance that had been agreed upon
in a collective agreement is a good example of disputes of rights.
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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.

7.6.1 Dispute Resolution and the Right to Strike

In any system of industrial relations there must ultimately be a third party to assist the parties
resolve their differences or to umpire in both individual and collective disputes. The
maintenance of industrial peace is therefore a matter which any responsible Government must
be concerned with. In Zambia this responsibility reposes in the Ministry of labour and Social
Security. The Ministry however appreciates that an approach based primarily on an attitude of
waiting for events to happen is inadequate. The Labour Commissioner directly or through his
field staff maintains close and continuous touch with both trade union leaders and employers
on an informal basis to lend support and counsel to the negotiation process and assure
satisfactory conclusion. It should be noted that though, the Commissioner has no specific legal
power to intervene in collective negotiations, more often he is asked to intervene by one or
both parties and both trade unions and employers have learnt to look upon this type of
intervention with confidence and to welcome the opportunity which it provides to get out of
difficulties.
7.6.2. Legal situation
The legal provisions dealing with dispute resolution are largely contained in Part IX of the
Industrial and Employment and Industrial Relations Relations Act. These provisions are in
addition to the internal grievance procedures required to be contained in the Recognition
Agreement for each undertaking. The grievance procedure should describe each of the stages
for dealing with disputes in the undertaking from when an issue is first raised on the shop
floor until it is referred to outside conciliation or arbitration. Time limit is usually given for
moving from one stage to another. Apart from this and in terms of section 64 of the
Employment Act, labour Officers are empowered to intervene particularly in individual
disputes. In respect of collective disputes, the Act requires that such disputes, provided they

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are not in an essential service, to be referred to a conciliator or a board of conciliation jointly
appointed by the parties to the dispute or appointed by the Minister from a panel of
conciliators established in consultation with employers and trade unions. If conciliation fails,
the dispute must be referred to the Court for arbitration as in the case of essential service or
the aggrieved party may conduct a strike or lockout ballot which may then commence ten
days thereafter. Before the commencement of the strike or lockout the Minister of labour
may intervene to try and settle the dispute. Even after commencement of industrial action, the
Minister may, after consultation with the Tripartite Consultative Employment and Industrial
Relations Council apply to the Court for a declaration that the continuance of the strike or
lockout, is not in the public interest. If the Court makes such declaration, the strike or lockout
must cease forthwith and the matter in dispute will go to compulsory arbitration by the Court.
Where the dispute involves essential service, such dispute must be referred directly and
immediately to the Industrial Relations Court for arbitration. 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.

UNIT 8 JURISDICTION, PRACTICE AND PROCEDURE OF THE INDUSTRIAL

RELATION COURT.

8.1 Jurisdiction and Law

The Industrial Relations court was established by section 84 of the Industrial Relation Act
chapter 269 .The court has original and exclusive jurisdiction to hear and determines any
industrial relation matters and any proceedings under the Act. It may commit and punish for
contempt, any person who disobeys or unlawfully refuses to carry out or to be bound by an
order made against him by the court. However, a complaint or application must be presented

64
within thirty days of the occurrence of the event that gave rise to the complainant or
application court to consider it this requirements can be waived on application by the
complainant or applicant and the court may extend the period for a further period of three
months after the date on which the complainant or applicant has exhausted the administrative
channels available to that person.

In as far as the status of the chairman and Deputy Chairman of the court concerned, they have
the same status with the judge of the High court. They both must be qualified to be appointed
as High Court judges, they are appointed by the president on the recommendation of the
Judicial Service Commission.

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. It should be noted that initially, the industrial
Relations Court could not hear wrongful dismissal cases. When such vases went to the court
the parties were referred to the High court. Thus in case of C.J Mulambwa v. Tanzania
Zambia Railway Authority, the court held that the complaint had gone to a wrong forum
because the complaint was one of the wrongful dismissed and that the proper forum for
wrongful dismissal was the High court. The Court advised the complainant to challenge the
reasons for his dismissal in the court if he wanted. The complaint was thus dismissed.
However, section 85 of the Industrial Relations Act now gives the Court a wide discretion to
hear and determine any matter that falls under the Employment and Industrial Relations
sphere.

The court has jurisdiction to hear and determine any dispute between any employer and
employee notwithstanding that such dispute is not connected with collective agreement or
other trade union matter.

Unlike the High Court and Supreme Court, the Industrial Relation Court is not bound by the
strict rules of evidence in civil or criminal proceedings, the main object of the court being to
do substantial justice between the parties. This is definite advantage because even lay
complainant are able to file their complaint and heard without being bogged down by legal
technicalities.

65
The Court has the exclusive jurisdiction to resolve any ambiguity in any collective or
recognition agreement brought to its notice by any of the parties concerned. Any award,
declaration, decision or judgment of the court on any matter referred to it for it decision or on
any matter falling within its exclusive jurisdiction, subject to the right of appeal of the parties
to the supreme court, is binding on the parties affected by the award, declaration, decision or
judgement of the Court, is guilty of an offence and liable on conviction to a fine not exceeding
two thousand penalty units or to imprisonment for a term not exceeding twelve months or to
both. The court is empowered to grant such remedy as it consider just and equitable and may
also award the complainant or applicant damage or compensation for loss of employment;
make an order for reinstatement, re-employment or re-engagement; deem the complainant or
applicant as retired, retrenched or redundant; or make any other order or award as the court
may consider fit in the circumstances.

8.2 Practice and Procedure

The practice and procedure in the court is governed by the Industrial Relations Court Rules.
The Rules deals with issues such as applications of the court; complaint to the court; appeals
to the court; reference of collective disputes to the court, evidence and procedure in Court;
filling of application, appeals, complainants, references, statements of claim and answer.

The Industrial Relations Court established under the Act is an extension of the dispute
settlement procedure. The Court has original and exclusive jurisdiction in industrial relations
matters and appeals to decisions of the Court lie to the Supreme Court on any point of law or
any point of mixed law and fact. The Court has responsibility to do substantial justice to all
matters before it and is therefore relatively free from technicalities that abound in ordinary
courts. Subject to appeal, any decisions of the Court are binding on the parties to the matter
and on any parties affected.

UNIT 9: SAFETY LEGISLATION – FACTORIES ACT

Learning Outcomes

A careful study of this unit will give you an

understanding that an employer in addition to his
common law duty safety, he also has a statutory
duty to provide a safe and health system of work of
his employees in a factory.

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9.0 Introduction
A factory is defined as a place where manufacturing or processing work is done.
The employer has a statutory duty to provide a safe and health system of work in a
factory.

9.1 Factory Act

The factories Act is an addition to imposing a duty on the employer to provide a

safe working environment, is also aimed at providing for the examination and
inspection of certain plant and machinery. It suffices from the above definition of a
‘factory’ that the definition is so wide as to cover a very high percentage of
workers in Zambia.

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

67
(c) To make any such examination and enquiry as may be necessary.

What is the liability for breaching a

statutory duty such as the Factories Act by
an employee?

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UNIT 10: SOCIAL SECURITY SCHEMES

Learning Outcomes

A careful study of this unit will give you an

understanding of benefits provided to employees
who are not in gainful employment as a result of
retirement and also that an employee who suffers
injury or contracts disease at work may claim
damages.

Social Security Schemes

10.0 Introduction
The law of Social Security benefits is mainly contained in Act No. 10 of 1999 for
compensating workers in the event of occupational accidents and diseases; and in
the National Pension Scheme Act No. 40 of 1999 for pensions.

10.1 NAPSA
The National Pension Scheme Authority (NAPSA) was established by the National
Pensions Scheme Act No. 40 of 1999. NAPSA applies to all categories of
employers except those specifically exempted by the Act.

On 1st February, 2000 all members of Zambia National Provident Fund (ZNPF)
members were automatically transferred to NAPSA. It is the obligation of the
employer to ensure that all his workers engaged in any status whatsoever, whether
full time, part time or casual; and whether as a domestic, as agriculture worker, as
an apprentice or in a consultative capacity are registered with NAPSA.

Benefits

The benefits under NAPSA are as follows:

1. Retirement Pension

2. Invalidity Pension

3. Survivors Pension

4. Funeral Grant

Retirement Pension

69
This is payable to employees who reach the age of 55 years and have made a
minimum of 180 monthly contributions. There is also a provision for members to
take a retirement at 50 years provided they have made at least 180 monthly
contributions.

Invalidity Pension

This is given to a member who suffer permanent invalidity and is under

pensionable age. The member must have paid 60 monthly contributions in the
period of 36 months before the date of invalidity.

Survivors Pension

This is paid to a member of the family or dependent if at the time of death of the
member:

(a) Was in receipt of a retirement pension or an invalidity pension or an

invalidity pension.

(b) Would have been entitled to an invalidity pension for permanent invalidity
at the time of death.

(c) Had reached pensionable age and was entitled to a retirement pension and
had made a claim to such a benefit.

The family dependents are: surviving spouse, child of the deceased or such other
persons entitled to benefit under the intestate or Wills and Administration Act.

Funeral Grant

On death of a member who has paid at least 12 months contributions during the 36
months before his/her death a funeral grant is paid to his/her next of kin.

The amount to be paid as funeral grant will be determined by the Minister of

Labour through a statutory instrument. The next of kin is the surviving spouse or in
the case of an unmarried person, the father or mother, brother or sister or the
person responsible for the payment of funeral expenses.
The next of kin is the surviving spouse or in the case of unmarried person, the
father or mother, brother or sister or the person responsible for the payment of
funeral expenses.

10.2 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 employers except the state are required to comply with
70
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.

Activity 10.0
1. What is

(a) The role of NAPSA?

(b) The Workers Compensation Fund
Control Board (WCFCB)?

2. How do NAPSA and ECFCB

complement each other?

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FULL CITATION OF CASES REFERED IN THE MODULES IMPORTANT TO
READ.
Acropolis Bakery v ZCCM Limited (1985) Z.R. 232 (S.C.)
Agholor v Cheesebrough Pond's (Zambia) Limited (1976) Z.R. 1 (H.C.)
Alfred McAlpine v TPA (1974) (3) SA 506 (A) 531
Bank Voor Handel en Scheepvaart NV v Slatford ([1952] 2 All ER 956 at p 971; [1953] 1 QB
248
Boston Sea Fishing and Ice Co. v Ansell (1888) 39 Ch. 339
British Reinforced Concrete Co.Ltd v Lind [1917]116 LT 243
Chilanga Cement, Plc v Kasote Singogo (2009) S.C.Z Judgment No.13 of 2009
Collier v. Sunday Referee Publishing Co.Ltd [1940] 2 KB 647
Contract Haulage Limited v Mumbuwa Kamayoyo (1982) Z.R. 13 (S.C.)
Duckworth v Farnish Ltd [1969]
Express and Echo Publications Limited v Ernest Tanton (1999) EWCA Civ.949,[1999] IRLR
367,[1999] ICR 693)
Faccenda Chicken Ltd v Fowler [1987] Ch. 117
Faidecy Mithi Lungu v Lonhro Zambia Limited Appeal No.182 of 2000(Unreported)
Gershom,M.B. Mumba and Development Bank of Zambia, Attorney General for
Zambia (1998). Application No.185 of 1998(Industrial Relations Court)
Hedley Byrne v Heller and Partners [1964] AC 465)
Henry Million Mulenga v Refined Oils Products [1975] Complaint No. 40 of 1983
(Unreported)
Herbert Clayton & Jack Waller Ltd. v Oliver [1930] AC 209
Hudson v Ridge Manufacturing Ltd [1957] 2QB 348
Ilkiw v Samuels (1963) All ER 879,[1963] 1 WLR 991
J. K. Rambai Patel v Mukesh Kumar Patel (1985) Z.R. 220 (S.C.)
Joseph Moonjelly v RDS Investment (2004) Z.R.67 (S.C)
Kitwe City Council v William Ng’uni (2005) Z.R. 57 (S.C.)
Lane v Shire [1995] EWCA Civ 37, [1995] IRLR 493
Langston v Amalgamated Union of Engineering Workers [1974] ICR 180
Latimer v AEC [1953] AC 643
Limpus v London General Omnibus Co. (1862) 1 H & C 526
Lister v Helsley Hall Limited [2001] IRLR 472
Liverpool City Council v Irwin (1977) AC 239,253-254
Malik v Bank of Credit and Commerce International [1997] HL
Market Investigations v Minister of Social Security [1968] 3 All ER 732
Marriot v. Oxford and District Co-operative Society Limited (1970)1 QB 186
Muzondo v University of Zimbabwe (1981) ZLR 333
Nordenfelt v Maxim Nordenfelt [1894] A.C 535
Paris v Stepney Borough Council [1951] AC 367
Pepper v Webb (1969) All ER 216
Qualcast (Wolver Hampton) Ltd v Haynes [1959] AC 743
Raine Engineering Company v Baker [1972] ZR 156(CA)
Re Famatima Development Corporation Ltd [1914] 2 Ch. 271
Reading v A.G [1951] AC 507, [1951] 1 All ER 617, [1951] 1 TLR 480, 95 Sol Jo 155,
[1951] UKHL 1
Ready Mixed Concrete v Minister of Pensions and National Insurance [1968] 1 All ER 447
Robb v Green [1895] 2 QB 315
Rose v Plenty (1976)1 All ER 76
72
Sinclair v Neighbour [1967] 2 QB 279
Spring v Guardian Insurance [1994] 3 All ER 129
Stevenson, Jordan and Harrison (1995) IRLR 493,495
Turner v Sawdon [1901] 2 KB 728
Walker v. Josiah Wedgwood and Sons Limited (1978) ICR 744, EAT
Woodpecker Inn v Stockdale (1967) Z.R. 128 (H.C.)
Zambia Sugar Plc v Fellow Nanzaluka Appeal No.82 of 2001

73