NATIONAL INSTITUTE OF PUBLIC ADMINISTRATION

NIPA

OUTREACH PROGRAMMES DIVISION

DISTANCE LEARNING

BACHELOR OF LAWS (LLB)

LLB208 LABOUR AND INDUSTRIAL RELATIONS

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 About this Labour and Industrial Relations Law Module

The Labour and Industrial relations Law Module has been produced by National Institute of Public
Administration (NIPA). All modules produced by the Institute are structured in the same way, as
outlined below.

How this Labour 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
Units.

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

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 The Module content

The Module is broken down into Seven (07) 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 Public Administration Module; these may be books, articles or web sites.

Your comments

After completing this labour 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.

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 ▪ Support (assigned tutors, technical help, etc.)

Your constructive feedback will help us to improve and enhance this course.

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 Welcome to Labour and Industrial Relations Law Module

This Labour and Industrial Relations Law Module introduces students to the basic concepts of
Labour and Industrial Relations law as a basis for managing labour relations and their legal
incidents.

Module Learning outcomes

After studying this module you should be able to:

▪ Demonstrate knowledge of labour and industrial relations law in contracts

of employment, statutory rights and industrial relations.

▪ Apply labour and industrial relations laws to issues that arise in places of
work.

Time Frame

Expected duration of this Module is 6 months

Formal study time required is 4 hours per week

Self-study time recommended is 6 hours per week

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 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.

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

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 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.

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

www.nipa.ac.zm

NIPA-Main Campus – Outreach Programmes Division

Phone Numbers:+260-211-222480

Fax: e-mail
address:opd@nipa.ac.zm

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 The teaching assistant for routine enquiries can be located from the
Outreach Division from 08:00 to 17:00 or can be contacted on the numbers
and email address indicated above.

Library

There is a library located at the main campus along Dushanbe Road. The
library opens Monday to Friday from 08:00 to 17:00.

Assignments There shall be three assignments given for this module.

The assignments should be sent by post or email them to the provided email
addressed to the Outreach Programmes Division – Nigeria Hall.

Assignments should be submitted to Outreach Programmes Division Registry.

Assessments There shall be a minimum of three (03) assessments given to the

students undertaking this subject

These assessments shall be teacher marked assessments.

The assessments shall be determined and given by the course tutors

after you have covered a number of topics

The teacher/tutor shall ensure that the assessments are marked and
dispatched to the student within a period of two weeks.

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 Getting around the Labour and Industrial Relations law Module

Margin icons

While working through this Labour 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 Public Administration 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

Group
Discussion activity Help Note it!

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 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 of the same length, so make sure you plan and pace your work to give
yourself time to complete all of them.

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 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 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 that 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.

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 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 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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 UNIT 1: INTRODUCTION TO LABOUR LAW

Learning outcomes

By the end of this unit you should be able to

• Define the idea of labour and labour law

• Understand the role of labour law in labour market regulation

• Identify and describe the types of engagement of labour

• Distinguish a contract of service from a contract for services

1.1 INTRODUCTION
The overarching purpose of Labour and Industrial Relations is the balancing of 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 course, the
need for a critical approach is vital. Hence you need to demonstrate critical qualities.

1.2 DEFINITION OF LABOUR AND INDUSTRIAL RELATIONS LAW

Labour law is conventionally the field of law that regulates the relationships among unions,
employers, and employees. Labour law mediates the relationship between workers, employing
entities, trade unions and the government.

Collective labour law relates to the tripartite relationship between employee, employer and union.
Individual labour law concerns employees’ rights at work and through the contract for work.
Employment standards are social norms (in some cases also technical standards) for the minimum
socially acceptable conditions under which employees or contractors are allowed to work.
Government agencies (such as the former US Employment Standards Administration) enforce
labour law (legislative, regulatory, or judicial

The narrow definition of this Labour law is the study of the law containing a body of legal rules
that governs the relationship between the employer and the employee.

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 Broad definition

“… a broader perspective would see labour law as the normative framework for the existence and
operation of all the institutions of the labour market: the business enterprise; trade unions,
employers’ associations; and in its capacity as regulator and as employer, the state.” Upex et al
(2009)

Therefore, the above entails that labour law means the study of law regulating the relationships
between:

• Between employers and employees,

• Between employers and trade unions,

• Between employers’ organisations and trade unions,

• And between the state, employers, employees, trade unions and employers’ organisations.

1.3 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 labour law is the
study of the law that regulates labour 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. Labour 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. Labour market regulation as a specific province of
labour law regulates minimum conditions of employment, collective labour relations, institutions
of governance, dispute resolution and adjudication, promotion of equality in the workplace, social
security among many others.2The overarching purpose of labour 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. 3In this
Module our focus will be more on how the law regulates the relationship of employer and
employee.

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 But before a detailed study of the employer/employee relationship can be done it is important to
have a brief understanding of some of the types of engagement of labour.

1.4 A BRIEF OVERVIEW OF LABOUR LAW

Labour can be defined as the sum total of physical and mental effort used in the production of
goods and services. Labour emanates from the Industrial revolution era (from the 17th and 18th
century). The industry developed and the need for workers increased. The laissez faire approach
was taken. This entails an economic system in which transactions between private parties are free
from government intervention such as regulation, privileges, tariffs and subsidies. England was
the first to industrialise and follow the laissez-faire economic framework. Hence it was the first
to experience the implications of an unregulated system that led to the exploitation of workers.
Generally, everywhere, employers were driven by profit more than they cared for the interests of
their workers. Thus, this led to poor working conditions, low wages, poor social facilities and a
general degradation of the environment.

Labour law arose in parallel with the Industrial Revolution as the relationship between worker and
employer changed from small-scale production studios to large-scale factories. Workers sought
better conditions and the right to join a labour union, while employers sought a more predictable,
flexible and less costly workforce. The state of labour law at any one time is therefore both the
product of, and a component of struggles between various social forces.

As England was the first country to industrialize, it was also the first to face the often appalling
consequences of industrial revolution in a less regulated economic framework. Over the course of
the late 18th and early to mid-19th century the foundation for modern labour law was slowly laid,
as some of the more egregious aspects of working conditions were steadily ameliorated through
legislation. This was largely achieved through the concerted pressure from social reformers,
notably Anthony Ashley-Cooper, 7th Earl of Shaftesbury, and others.

A serious outbreak of fever in 1784 in cotton mills near Manchester drew widespread public
opinion against the use of children in dangerous conditions. A local inquiry, presided over by Dr
Thomas Percival, was instituted by the justices of the peace for Lancashire, and the resulting report

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 recommended the limitation of children's working hours. In 1802, the first major piece of labour
legislation was passed − the Health and Morals of Apprentices Act. This was the first, albeit
modest, step towards the protection of labour. The act limited working hours to twelve a day and
abolished night work. It required the provision of a basic level of education for all apprentices, as
well as adequate sleeping accommodation and clothing.

The rapid industrialisation of manufacturing at the turn of the 19th century led to a rapid increase
in child employment, and public opinion was steadily made aware of the terrible conditions these
children were forced to endure. 1 The Factory Act of 1819 was the outcome of the efforts of the
industrialist Robert Owen and prohibited child labour under nine years of age and limited the
working day to twelve. A great milestone in labour law was reached with the Factory Act of
1833, which limited the employment of children under eighteen years of age, prohibited all
night work and, crucially, provided for inspectors to enforce the law. Pivotal in the campaigning
for and the securing of this legislation were Michael Sadler and the Earl of Shaftesbury. This act
was an important step forward, in that it mandated skilled inspection of workplaces and a rigorous
enforcement of the law by an independent governmental body.

A lengthy campaign to limit the working day to ten hours was led by Shaftesbury, and included
support from the Anglican Church. Many committees were formed in support of the cause and
some previously established groups lent their support as well. The campaign finally led to the
passage of the Factory Act of 1847, which restricted the working hours of women and children in
British factories to effectively 10 hours per day. 2

These early efforts were principally aimed at limiting child labour. From the mid-19th century,
attention was first paid to the plight of working conditions for the workforce in general. In 1850,
systematic reporting of fatal accidents was made compulsory, and basic safeguards for health, life
and limb in the mines were put in place from 1855. Further regulations, relating to ventilation,
fencing of disused shafts, signalling standards, and proper gauges and valves for steam-boilers
and related machinery were also set down.

1
History of Factory Legislation, by B. Leigh Hutchins and Amy Harrison (1903), pp. 5, 6.
2
History of Factory Legislation, by B. Leigh Hutchins and Amy Harrison (1903), pp. 5, 6.

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 A series of further Acts, in 1860 and 1872 extended the legal provisions and strengthened safety
provisions. Steady development of the coal industry, increasing association among miners, and
increased scientific knowledge paved the way for the Coal Mines Act of 1872, which extended
the legislation to similar industries. The same Act included the first comprehensive code of
regulation to govern legal safeguards for health, life and limb. The presence of a more certified
and competent management and increased levels of inspection were also provided for.

By the end of the century, a comprehensive set of regulations was in place in England that affected
all industries. A similar system (with certain national differences) was implemented in other
industrializing countries in the latter part of the 19th century and the early 20th century.

1.5 THE SIGNIFICANCE (RATIONALE) OF LABOUR LAW

The main object of labour law has been, and... will always be a countervailing force to counteract
the inequality of bargaining power which is inherent and must be inherent in the employment
relationship…”

• The employer-employee relationship involves complex power dynamics. The bargaining power
between employers and employees is grossly disproportionate. Hence, there is need to remedy this
imbalance of power through representation.

• Labour and employment law also provide an opportunity to help increase access to the justice system
for disenfranchised individuals across the country. This is premised on equality and discrimination.

• It prevents the undermining of working conditions. This can be achieved by placing restrictions on the
freedom to contract of contracting partners by setting minimum standards over aspects such as pay,
health, working hours and other incidents to a contract.

• Labour Law also regulates the labour market. Government implements legislation or other instruments
to establish maximum or minimum limits on wages nationwide or in various sectors or industries.

1.6 THE SCOPE OF LABOUR AND INDUSTRIAL RELATIONS

Welcome to the course of Labour and Industrial Relations Law. The following categories of labour
law will be our main focus:

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 a) Individual labour law

• The employment contract;

• Categories of employees;

• Rights and duties of the employers and employees;

• Working conditions;

• Termination of contracts (e.g. dismissals);

• Discrimination (e.g. Religion, belief, tribal issues, social status, political affiliation, etc.)

b) Collective labour law

❖ Trade unions

❖ Industrial action

❖ The Industrial Relations Court

❖ that the role of labour law in labour market regulation

c) Aspects regulated

❖ minimum conditions of employment

❖ collective labour relations

❖ institutions of governance

❖ dispute resolution and adjudication

❖ promotion of equality in the workplace

❖ social security

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 1.7 SOURCES OF LABOUR AND INDUSTRIAL RELATIONS LAW
The following are the sources:

• The Constitution of the Republic of Zambia

• Statutes and statutory instruments

• Common Law

• Case Law

• Collective Agreements

• Contract of Employment

a) The Constitution

Constitutional protection of labour rights is found in numerous jurisdictions. In Zambia, this is

expressed through the right to freedom of association. In Labour Law, this is interpreted as the
freedom to join and form trade unions and employers’ organisations, as well as to take part in the
activities of these associations.

b) Legislation

Most states have employment laws that provide the same or similar rights as those provided under
the federal statutes discussed above. Some state employment laws grant specific additional rights.
For instance, discrimination on the basis of sexual orientation or gender identity, political
affiliation, marital status, nursing mother status, gun possession or ownership, height or weight,
unemployment status, or off-duty conduct may be prohibited under state legislation.

• The Employment Code Act

• The Industrial and Labour Relations Act

• The Occupational Health and Safety Act

• The Factories Act

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 c) Common Law

English common law and doctrines of equity are applicable in this jurisdiction. When Zambia
gained independence in 1964, it inherited the English legal system and certain pieces of English
legislation are still applicable to Zambia through the English Law (Extent of Application) Act,
Chapter 11, Volume 2, of the Laws of Zambia. The statutes that were in force in England on 17th
August, 1911, as well as the Northern Rhodesia Order in Council, 1911 and the British Acts
(Extension) Act, Chapter 10, Volume 2 of the Laws of Zambia, which are statutes passed after
17th August, 1911, are contained in the schedule. State common law (court-created law) is yet
another source of employee rights. Below are some state common law theories under which
invoke legal remedies:

• Infliction of emotional distress—the employee suffered severe emotional distress as a result of

abusive treatment in the workplace.

• Defamation—a false or malicious statement (either written or spoken) was made about the
employee that resulted in damage to the employee's reputation.

• Invasion of privacy—a supervisor publicly disclosed private facts about the employee, such as
the details of a performance appraisal.

• Interference with employment—a supervisor tried to get the employee fired—or to botch his
or her chances of getting or keeping a new job—in order to gain personal revenge or
advantage.

• Fraud or negligent misrepresentation—the employee suffered harm as a result of reliance on

false statements made to the employee about job security, performance evaluations, health
hazards, or some other employment matter.

• Negligent employment (hiring or retention)—the employee was injured by a co-worker whom

the company knew or should have known could harm others.

• False imprisonment—the employee was detained or restrained against the employee's will.

• Battery—the employee was subjected to harmful or offensive contact.

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 • Assault—the employee was threatened with harmful or offensive contact.

• Constructive discharge—the employee resigned in response to working conditions that the

employee found intolerable.

• Discharge in violation of public policy—the employee was fired for exercising a legal right,
such as filing a workers' compensation claim; for satisfying a legal obligation, such as serving
on a jury or making a required court appearance; or for reporting or protesting the company's
illegal conduct.

• Breach of contract—an explicit written or spoken employment-related promise (such as a

formal agreement to employ the employee for a set number of years) was broken.

• Breach of implied contract—an implicit employment-related promise (such as a supervisor's

comments implying job security for the employee, or a personnel handbook statement
implying that specific disciplinary procedures will be followed before anyone is fired) was
broken.

1.7 Distinction between a Contract of Service and Contracts for Services

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

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 service is used when an employee wishes to engage someone an employee. Kindly refer to the
definition of employment contract in the Employment Code Act No. 3 of 2019: 3

Section 3: “contract of employment” means an agreement

establishing an employment relationship between an employer
and an employee, whether express or implied, and if express,
whether oral or in writing;

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 labour 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.

1.7.1 Common Law Tests for distinguishing status

The statutory law does not define the term employee and its meaning is derived from the rulings of the
common law courts. The courts have provided a range of tests for determining the question of whether
an individual was an employee or independent contractor. You will need to acquaint yourself with the
main tests used by the courts to determine status. You need to pay particular attention to the difficulties
that each of the tests presents with regard to their inherent limitations as standards for the regulation
of the employment relationship.

a) Control Test
The oldest test of employee status is that of control.

3
Section 3 of the Employment Code Act No. 3 of 2019.

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 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. In the case of Yewens vs Noakes,4 Lord Justice Branwell wrote
that “…a servant is a person subject to the command of his master as to the manner in which 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.

Yewen v Noakes [1880] 6 QBD 530

The definition of an employee.

Facts

There was a statutory exemption for premises which were occupied by a “servant” or person
occupying the premises “for the protection thereof.” A man and his family occupied a number of
rooms within an office building on the alleged basis that he was the caretaker of the building owner.
The man was a clerk who was paid a salary of 150 pounds per annum.

Issue

The question arose as to whether the man constituted an employee of the building owner for the
purposes of exempting the premises from statutory tax duties.

Held

The Court of Appeal held that an employee, or a servant to adopt the Court’s nomenclature, is defined
as a “person who is subject to the command of his master as to the manner in which he shall do his
work.” (pp 3-4). On the facts of the case, the Court held that the man was not a “servant” or an
employee of the building owner as the owner had no right to control the man’s work and manner in
which it was done. The man earned a salary of 150 pounds per annum in his separate role as a clerk

4
Yewens vs Noakes of 1880.

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 and merely enjoyed residence of the building with his family members. Thus, he did not constitute an
employee of the building owner for tax purposes.

In Lane v Shire5 it was held that control was the most important indicator of whether one was
an employee or not. Control factors include the ability to control the manner, time, materials and
tools that may be used in the performance of the contract. Control is a useful test when you are
looking at simple jobs of a menial nature. 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 test assumes that an employer has knowledge of all types of jobs to be able to exercise
control in the relationship.

5
Lane v Shire Roofing Co (Oxford) Ltd [1995] EWCA.

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 There are, however, many problems with the control test.

1. The first is that it came into being in the 19th century where the test was used to separate manual
employees from professional ones. Thus, a rigid modern-day application could result in the denial
of employee status to professionals.

2. Moreover, the control test implies a level of personal supervision that is no longer present in modern-
day labour relationships. It remains, nevertheless, a regular feature in the determination of
employment status. However, the right of control is often as consistent with the relationship
between employer and employee as it is with that between client and independent contractor. A
housewife arguably exercises the same amount of control over her gardener as does a law firm over
its lawyers.

Collins v Hertfordshire County Council [1947] 1 All ER 633

Was an action brought by the widow of a man who died following the wrong anaesthetic being
given. Negligence was found against the surgeon per se and also against the Council for the
activities of a junior doctor and a pharmacist.

The Council nevertheless was held not to have been the surgeonʼs employer. The case was fought
on control only – it was found that it had no control over the surgeon at all (he could even refuse
to do operations).

b) Integration (Organization) Test

Cassidy v Ministry of Health [1951] 2 KB 343

Mr Cassidy went to hospital for a routine operation on his hand, but came away with stiff fingers
because of the negligence of one of the doctors. He attempted to sue the Ministry of Health in its
capacity as employer. The Ministry argued it could not be held responsible and had no vicarious
liability, relying partly on Collins v Hertfordshire where it had been suggested that a surgeon was
not the 'servant' of his employer.

Judgment

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 The Court of Appeal held that the doctor was indeed a servant of the hospital and the Ministry
was vicariously liable, because the doctor was integrated into the health organisation. Denning
LJ said,

The reason why the employers are liable in such cases is not because they can control the way
in which the work is done - they often have not sufficient knowledge to do so - but because they
employ the staff and have chosen them for the task and have in their hands the ultimate sanction
for good conduct, the power of dismissal.

He also noted, that where a patient selects the doctor, then the doctor will not be employed by a
hospital.

A second test is the test of integration. This was largely developed within the case law of vicarious
liability in the law of tort. In order to avoid the difficulty of determining status using the control
test the courts have held that a person was an employee if what they did for the employer was part
and parcel of the business of the employer. This formulation was established in Stevenson, Jordan
and Harrison 6 wherein the court stated that the person who was not employed on his own
account but was integrated in the organization’s business was an employee. Typical examples
of such persons include doctors and professors in training institutions. Integration is predicated on a
relationship that is not merely transitory, hence “… the test of being a servant does not rest nowadays
on submission to orders. It depends on whether the person is part and parcel of the organisation…
”7

This test is hardly used today and understandably so.

c) Multiple Test
As time progressed the courts moved from using one determining factor to distinguish the
employment status of an employee to a more flexible test as the multiple test.

6
Stevenson, Jordan & Harrison Ltd v MacDonald & Evans [1952] 1 TLR 101.
7
Stevenson, Jordan & Harrison Ltd v MacDonald & Evans [1952] 1 TLR 101.

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 The courts have developed the multiple test which looks at various aspects of the relationship
which include control, integration, economic risk, among others. The economic reality test
requires the courts to examine the risks borne by the employer and by the employee. The more risk
borne by an individual, the less likely it is that they are an employee as the employer traditionally
bears any risks of failure. This test does not play a significant role in the present-day tests of
employment status.

The test of mutuality of obligation is now the definitive test of employment status. Without this,
the employment relationship cannot be said to exist.

There are two important elements to this test:

1. the first is the need for a relationship in which labour is supplied in return for a wage;

2. the second is that there be a continuing obligation on the employer to provide work and a
corresponding one on the employee’s behalf to undertake work.

The courts will look at all the factors in the employment relationship. 8

Specifically the courts seek for which terms imply that an employment relationship exists. The
multiple test derived from the case of Ready Mixed Concrete (South East) Ltd v Ministry of
Pensions and National Insurance 1968 by Justice McKenna.9 RMC employed several lorry drivers,
and the company dismissed the drivers and allowed them to purchase their Lorries. However, the
contract between the defendant and the claimant applied that they were independent contractors. As
the courts looked at the terms of the contract such as when the claimant was wearing the defendants’
uniforms plus more and could tell the claimant when and where to make deliveries and most
importantly, the claimant could find someone else to drive the lorry when he couldn’t. Then the
courts decided that the claimants were self-employed because employees are not usually asked to
find a replacement for their post if they cannot work. Nevertheless, Mackenna J outlined three
requirements for a contract of service to exist;

• The employer agrees to provide work in return for remuneration

8
Monahan,G.(2001).Essential Contract Law.p.5
9
Ready Mixed Concrete (South East) Ltd v Ministry of Pensions and National Insurance 1968.
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 • The employee agrees to control of the employer on him or her and

• The other terms of the contract are consistent with it being one of service. Other
provisions could include factors such as the risk of loss, purpose of the contract, control,
among others.

As there is not a determining factor the courts will have to look at many things like the payment
of wages, tax, and holiday pay and so on. The multiple test was also applied in Market
Investigations Ltd v Minister of Social Security 1969 2QB where it was stated by Judge Cooke
that “if the person who has affianced him or herself these services, performing them as an
individual in business on his or her own account?”.

As control is also not a determining factor alone as other factors are important like the degree of
financial risk, financial responsibility for the business, management responsibilities. The
multiple test has a clear advantage of being more flexible than the organisational and control test.
The multiple test is also opened to changes as the society also changes. It however has a problem
of dealing with workers who do not fit into usual category of employment like casual and seasonal
workers.

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 Activity 1.0

1. Read the case of Ready Mixed Concrete (South East) Ltd v Minister of
Pensions and National Insurance [1968] 1 All ER 433.

• List the factors that the court considered pointed to the existence of an
employer employee relationship.

• To what extent do you think the definition of employee is influenced by

the common law?

2. Read the case of Market Investigations v Minister of Social Security

[1968] 3 All ER 732.

• Do you agree with how the Court approached the notions of ‘extent or
degree of control’ and the ‘totality of the contract being consistent with
it being a contract of service?’

Self-assessment Questions

1. “Employee” as an idea is a contested concept owing to its roots in the

Common Law. Do the notions of ‘Master’ and ‘Servant’ have any
relevance in today’s employment relationship? Discuss.

2. What is the role of labour law in society?

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 UNIT 2: CONTRACTS OF EMPLOYMENT

Learning outcomes

By the end of this unit you should be able to:

• Distinguish an express contract from an oral contract of employment.

• Explain Common law principles of employment contracts.

• Explain the implied terms in a contract of employment.

2.1 CONTRACT OF EMPLOYMENT

A contract of employment is one that creates the relationship of employer and employee. 10
The law in Zambia recognizes express, implied, oral and written contracts of employment.
This means that a contract of employment can be formed whether the employer and employee
have a written document or none. Thus Zambian Law allows the creation of written and oral
contracts of employment.

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?

10
Monahan,G.(2001).Essential Contract Law.p.5

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 The Code resolves this problem by providing standard redundancy provisions which apply to
employees engaged on both oral as well as written contracts.

Activity 2.0

• Read section 14 and 32 of the Employment Code Act.

• Discuss the nature of the oral contract of employment as stated in the

above two sections.

• Are these details sufficiently protective of the employment relationship?

Discuss.

2.2 REQUIREMENTS AND FORM OF THE CONTRACT OF EMPLOYMENT

The requirements for the formation of a contract of employment follow the general law of contract. The
content and form that a contract of employment may take is regulated by common law and statute.

2.3 REQUIREMENTS FOR THE FORMATION OF A CONTRACT OF EMPLOYMENT

A contract of employment, like all other contracts, arises from agreement between two consenting
parties.11 It must be formed for a legal purpose, certain and capable of performance. In short it must
comply with the general common law requirements for the formation of a valid contract. However, being
a contract sui generis statutory law defines the form which the contract of employment must take and
implies a large body of terms that the parties may not have considered in their negotiations.

11
Lockton,D.J.(2006).Employment Law.p.33.

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2.4 FORM OF THE EMPLOYMENT CONTRACT
The law requires that oral and written contracts of employment comply with the following:

2.4.1 Oral contracts

The Oral contract of employment must be evidenced in writing. In terms of section 18 of the Employment
Code Act requires that a record of the oral contract of employment is kept by the employer and a copy
given to the employee. 12 The minimum content of the contract as required is to be stated in the record of
the oral contract of employment. The Employer has the obligation to ensure compliance with these
provisions. This legal burden ensures that the employer acts with fairness in the relationship.

2.4.2 Written contracts

A contract of employment that must be in writing is one that is for a period of six months or more, a
contract of foreign service or one in which the employee is required personally to perform some specific
work that cannot be completed under six months.

2.5 Attestation of a written contract of employment

Apart from the other contents that must be in a written contract of employment, the law requires that a
written contract of employment is attested. This means that the contract must be certified compliant with
the law by the Ministry of Labour. However, this requirement does not apply to employees who are
literate. Where the parties are literate it is presumed that absent fraud and caprice the parties entered into
the contract willingly.

12
Section 18 of the Employment Code Act.

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 Activity 2.1

1. List the details that must be included in a record of oral contract of

employment.

2. What are the consequences of failing to comply with the above?

3. The requirement for attestation of a contract of employment is not

necessary in the modern era? Discuss.

2.6. IMPLIED TERMS IN THE CONTRACT OF EMPLOYMENT

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 law: 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. 31 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.

2.7 IMPLIED DUTIES OF THE EMPLOYER

2.7.1 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.Ltd wherein 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

33 | P a g e
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 states 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: Herbert Clayton & Jack Waller
Ltd. v Oliver,to enable the employee to earn the wage: Turner v Sawdon or to enable the employee to
develop or maintain his skills: Langston v Amalgamated Union of Engineering Workers.

2.7.2 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 Ltd. 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.

2.7.3 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:

a) 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. In this 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.

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 b) 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
(Wolverhampton) Ltd v Haynes. Would you agree that this takes care also of the requirement of
reasonableness and foreseeability?

c) 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. Paris 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.

d) 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 AEC 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.

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 Activity 2.2

Read the Occupational Health and Safety Act, No. 36 of 2010, Sections 16 and 17.

To what extent does the Act codify the employer’s Common Law duty of reasonable care and to
provide a safe system of work?

2.7.4 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. This 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.

2.7.5 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.The
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.

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2.7.6 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 and 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 Insurance the employer used unflattering language to describe the employee in a reference.
It was held that even if he 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.

2.8 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.

2.8.1 Duty of Personal Service

The employment contract requires personal service: Ilkiw v Samuels.13 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).

2.8.2 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.

The duty of obedience is, however, not absolute. It is subject to exceptions. Instructions that are outside
the scope of the contract, are illegal or which expose the employee to unjustifiable risk cannot bind the
employee.

13
(1963)All ER 879,[1963] 1 WLR 991.

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 2.8.3 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 bookkeeping was held
to have been validly dismissed for breach of this duty: Agholor v Cheseborough Ponds (Z) Ltd.14

2.8.4 Duty 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:

a) 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 Stockdale).15 An employee whose interests conflict with that of the employer
will be presumed to favour personal interest and acts in breach if he does not declare interest but
proceeds to act in a matter.

b) Solicitation of customers
A former employee can be restrained from soliciting clients of the former employer after the employee
has left employment: Robb v Green.16

c) 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 Fowler. He is under a duty not to disclose such information even
after leaving employment: Nordenfelt v Maxim.17

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. It must only protect a

14
(1976) Z.R. 1 (H.C.).
15
(1967) Z.R. 128 (H.C.).
16
[1895] 2 QB 315.
17
Co Ltd [1894] AC 535.

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legitimate proprietary interest and not be used as a way of avoiding competition (See also J. K. Rambai
Patel v Mukesh Kumar Patel).

d) 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. 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.

e) 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)

f) 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

g) Misconduct
The employee must conduct himself in a manner that protects the interests and reputation of the business.

h) 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.

2.9 DUTY TO INDEMNIFY THE EMPLOYER

The employee is under a duty to indemnify the employer for all damage caused as a result of wilful
conduct or negligence. This includes indemnity for the cases where the employer becomes vicariously
liable for the acts of the employee.61

TERMS IMPLIED BY LAW

The implied terms under common law are applicable provided they do not contravene the provisions of
the Employment laws.
The Employment Code Act provides for some of the implied terms; for instance, an oral contract is
presumed to be a contract for a period by which wages are calculated and where the wages are calculated

39 | P a g e
by reference to any period of less than a day and in absence of an agreement to the contrary, the oral
contract is deemed to be a daily contract.
Employment Code provides that where an employer does not notify the employee in writing of the
confirmation, it will be presumed that the employee has been confirmed in the position from the date of
the expiry of the probation period.

In the absence of a notice of termination clause, the following notice periods will be implied:
a. 24 hours for a contract of employment not exceeding one month;

b. 14 days for a contract of employment of more than one month but not exceeding

three months; and

c. 30 days for a contract of employment of more than three months, except that

notice to terminate a contract of employment of more than six months shall be in

writing.

The Employment Code Act, under sections 33 to 48 (Division 3.2), prescribes the minimum
employment benefits employers should follow and these are as follows:

i. employers are to pay the prescribed expenses of repatriating an employee to a

place from which the employee was brought on termination or expiry of the
contract of employment;

ii. provision of transport or pay for the cost of transport to repatriate an employee
entitled to repatriation;

iii. an employee is entitled to paid public holiday;

iv. an employee in continuous employment with the same employer is entitled to

annual leave on full pay at a rate of at least two days per month;

v. an employee who is unable to perform his normal duties due to illness or

injury not occasioned by the employee’s default must notify the employer of
the illness or injury and proceed on sick leave on production of a medical
certificate; and

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 vi. an employee is entitled to compassionate leave with full pay for a period of at
least 12 days.

The Minimum Wages and Conditions of Employment statutory instruments, which apply to protected
employees, also provide for the same.

SELF ASSESSMENT QUESTIONS

1. Explain the distinction between a written and oral contract of employment.

2. 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.

3. Discuss the distinction between the two forms of confidentiality recognized

at common law. Are they a justifiable incident of the employment
relationship?

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UNIT 3: STATUTORY RIGHTS
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

• Explain the effect of failure to honour 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 labour 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 behaviour.

3.2 SOURCE OF STATUTORY RIGHTS

Statutory rights have a wide provenance discussed in the elements below.

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 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, defence 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 labour 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 Code Act, Industrial and
Labour Relations Act, Factories Act, among others.

3.2.3 International law

Law making in Zambia is only exercisable by the legislature.66International 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 labour law
should remain alive to environmental changes to take note of emerging trends and assess their impact
on labour market regulation.

3.3 STATUTORY RIGHTS PROTECTIONS:

Some of the statutory rights that are protected include the ones discussed below.

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 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 honour 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 labour 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 behaviour.

44 | P a g e
 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 labour 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,
Industrial and Labour Relations Act, Factories Act, among others.

3.2.3 International law

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.

45 | P a g e
 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

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 Labour 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
provisions of the SIs applicable to PEs will still be in force. This raises a question of interpretation,

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 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 labour 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
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 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.

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.

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 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.

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.

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.

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 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.

d 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

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 no production going on. However, the employment Code Act of 2019 section 48 (i) 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.

4.3.1 Protection of Remuneration Part IV of Employment Code

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 Employment Code 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 Code 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 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.

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 SELF ASSESSMENT QUESTIONS

1. Explain some of the protections that statute guarantees in the employment

relationship. Do you think there are sound policy reasons for maintaining
these limitations on the private relationship of employer and employee?

2. The era of globalization and internationalization of labour standards makes

the position in Zambia Sugar Plc v Fellow Nanzaluka untenable.

Discuss.

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 UNIT 4: TERMINATION OF EMPLOYMENT
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.

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 employment refers to the end of an employee's contract or the ending of an
employment relationship. Both the employer may terminate the employment relationship at will
with or without reasons and in a manner prescribed by law. The employer may terminate the
employment contract subsequent to a prescribed or agreed termination notice period, if there is a
valid reason, i.e. if there is no longer the need for a certain type of work due to economic, technical
or organisational reasons (notice due to business reasons); if the employee is not capable of
fulfilling his duties established by the contract regularly due to certain permanent characteristic or
capabilities (notice due to personal reasons); or if the employee breaches the obligations from the
work contract (notice due to employee’s misconduct); or if the employee does not meet obligations
from the trial work (notice due to inadequacy on trial work). An employee can terminate the
employment contract within the prescribed or agreed notice period, without specifying a reason
for it.

Notices due to business and personal reasons are allowed only if the employer cannot engage the
employee to do some other job. In case of notice due to business reasons, the employer is not

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 allowed to hire another worker to do the same job for at least six months. Before the regular notice
due to employee’s misconduct, the employer is obliged to warn the employee in writing about the
obligations steaming from the employment contract and to present him/her with the possibility of
the termination of the employment contract in case of continuing breach of those obligations,
unless there are circumstances because of which it is not reasonable to expect that the employer
should do this. Prior to regular or exceptional termination due to the employee’s misconduct, the
employer must allow the employee to present his/hers defence, unless there are circumstances
because of which it is not reasonable to expect the employer to do so.

Employers and employees have just cause to terminate the employment contract concluded for an
indefinite or definite period of time, without obligation to comply with the prescribed or agreed
notice period, if due to a serious breach of an employment relationship or other highly important
fact, and taking into account all circumstances and interests of both parties, continuation of an
employment relationship is not possible. These methods are discussed below.

4.1.1 Termination by notice

The above entails a termination of the employment relationship at the instance of either party to
the contract. This usually occurs by giving notice as stipulated by the contract. 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
statutory. It may also be determined by the length of employment and it is defined by law (it varies
between two weeks for employees who were employed for less than one year to three months).
Notice period starts on the date of delivery of notice of the termination of employment. Under
common law, an employer could terminate a contract without giving reasons and without applying
the rules of natural justice. Thus, notice is an integral requirement of termination but the
justification for it is not.

NB PRINCIPLE UNDER CASE LAW BELOW: Where no collective agreement or contract makes
provisions for the termination by notice, reasonable notice is expected.

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 In Zambia Privatisation Agency v Matale (SC) (NULL) [1996] ZMSC 7 (14 March 1996), the
respondent had been employed by the appellant as a director on a contract period of three years.
Before the expiry of the three year period (after a period of less than two years) he was given notice
that his services were terminated with immediate effect. The termination letter did not make any
reference to the termination being made under any contract of service but that it was following the
adoption of Price Waterhouse restructuring report of the Zambia Privatisation Board.

The respondent claimed unfair dismissal under section 108 of the Industrial and Labour Relations
Act CAP 269 that the termination was discriminatory on the grounds of status, unlawful, malicious
and contrary to the conditions of service and without reason or merit. The Industrial Relations
Court held that the termination was unlawful and unjustified. It was unlawful because the meeting
at which the decision to terminate the services of the respondent was made did not comply with
statutory provisions in relation to proceedings of the agency. Thus the court ordered that the
respondent be paid for the remaining period of the contract.

The Supreme Court however, held that it was common cause that the contract of employment in
the instant case did not provide for termination of employment by notice or payment in lieu of
notice. Therefore, payment in lieu of notice was a proper and lawful way of terminating the
respondent's on the basis that in the absence of express stipulation every contract of employment
is determinable by reasonable notice.

Compare the above to NFC Africa Mining PLC v John Mubanga and Others (Appeal No. 68 of
2011) [2012] ZMSC 22 (13 March 2012) where there was a Collective Agreement that appeared
to be in conflict with the respondent’s individual contract.

The collective agreement NEGOTIATED BETWEEN THE APPELLANTS AND THE UNION
STATED THAT THE EMPLOYMENT MAY BE TERMINATED BY EITHER PARTY
GIVING TO THE OTHER AT LEAST ONE MONTH’S NOTICE IN WRITING OR PAYING
TO THE OTHER PARTY ONE MONTH’S SALARY IN LIEU OF NOTICE. The company may
terminate the contract without NOTICE OR PAYMENT IN LIEU FOR LAWFUL CAUSE
INCLUDING ANY BREACH BY THE EMPLOYEE OF THESE REGULATIONS OR THE
CONDITIONS.

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 Section 53. (1) states as follows:

An employee whose contract of employment is intended to be terminated is entitled to a period of notice,

or compensation in lieu of notice, unless the employee is guilty of misconduct of a nature that it would
be unreasonable to require the employer to continue the employment relationship.

(2) An employer shall, where the contract of employment does not provide for a period of notice, give—

(a) twenty-four hours for a contract of employment not exceeding one month;

(b) fourteen days for a contract of employment of more than one month but
not exceeding three months; and

(c) thirty days for a contract of employment of more than three months, except
that notice to terminate a contract of employment of more than six months
shall be in writing.

Read the rest of the section.

4.1.2 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.

4.1.3 Termination by Dismissal

At common law dismissal is when the employer terminates the employment contract with or
without notice. An employer is entitled to opt for the dismissal of its employee’s contract, where
the conduct of its employee is of some grave and weighty character that it undermines the
relationship of confidence which must exist between a master and a servant. Therefore, it is the
exclusion of the employee from further employment with the intention of severing the relationship
of employer and employee.

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 Examples of conduct which could be considered to be of a grave and weighty nature will include:

• cases of stealing,

• fraud, bribery,

• corruption,

• falsification of records,

• gross insubordination,

• dereliction of duty,

• sleeping at work,

• verbal or physical violence,

• fighting,

• assault and battery,

• working under the influence of illegal drugs,

• conflict of interest,

• competition with the employer’s business,

• conversion of company’s property for private use without the employer’s permission or consent,
assault and battery, etc. This is a departure from the old standard which prevented the employer
from automatically dismissing his employee without notice where such employee has committed
an offence that have a criminal element(s) which criminal offence requires the proof in a court of
law, of proof beyond all reasonable doubt.

There is no statutory regime relating to the definition of dismissal and our fallback position is the
common law, doctrines of equity and case law.

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 See Redrilza v Nkazi (SCZ 7 of 2011) [2011] ZMSC 9 (8 April 2011) (7 April 2011) where the
Supreme Court distinguished between Termination and Dismissal:

-Dismissal involves loss of employment arising from disciplinary action.

- While termination allows the employer to end the contract of employment without invoking
disciplinary action.

The above entails that termination means ending. Dismissal is an action led by the employer which
results in termination of employment. Thus, dismissal is a means to an end. Therefore terms
“dismissal” and “termination,” should not be used interchangeably.

THE RULES OF NATURAL JUSTICE

Note that this action has to be performed in a lawful and fair manner.

The rules of natural justice establish principles that regulate this.

They act as a hedge serving against blatant discrimination of the rights of individuals. The words
‘natural justice’ are derived from the Roman word ‘Jus Naturale’, which means PRINCIPLES OF
NATURAL LAW, JUSTICE, EQUITY, AND GOOD CONSCIENCE.

These principles did not originate from any divine power, but are the outcome of the necessity of
judicial thinking, as well as the necessity to evolve the norms of fair play.

These are the principles which every disciplinary authority should follow while taking any
decision, which may adversely affect the rights of individuals.

It is to be seen that rules of natural justice are not codified anywhere; they are procedural in nature
and their aim is to ensure delivery of justice to the parties.

Adherence to rules of natural justice, as recognised by all civilised States, is of supreme

importance, when a quasi-judicial body embarks on determining disputes between the parties or
any administrative or disciplinary action is in question. Rules of natural justice serve as hedge
against any blatant discrimination against rights of individuals. These rules are intended to prevent

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 such authority from doing injustice. While the term natural justice is often retained as a general
concept, it has largely been replaced and extended by the general "duty to act fairly".

In English law, natural justice is technical terminology for the rule against bias (nemo iudex in
causa sua) and the right to a fair hearing (audi alteram partem). Reasoned decision is also now
included. Consequently, the principles of natural justice include:

A. RULE AGAINST BIAS

Rule against bias may include:

(i) Personal Bias;

(ii) Pecuniary Bias;

(iii) Subject-matter Bias;

(iv) Departmental Bias;

(v) Preconceived notion bias.

‘Bias’ means an operative prejudice, whether conscious or unconscious, in relation to a party or

issue. This is the idea that the judge may well have “strong views" or “preconceived ideas"
concerning the case before them.

THE BASIS FOR THE RULE AGAINST BIAS IS THE NEED TO MAINTAIN PUBLIC
CONFIDENCE IN THE LEGAL SYSTEM. Bias can take the form of actual bias, imputed bias
or apparent bias.

Actual bias is very difficult to prove in practice while imputed bias, once shown, will result in a
decision being void without the need for any investigation into the likelihood or suspicion of bias.
Cases from different jurisdictions currently apply two tests for apparent bias: the "reasonable
suspicion of bias" test and the "real likelihood of bias" test. One view that has been taken is that
the differences between these two tests are largely semantic and that they operate similarly.

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 B. THE RIGHT TO FAIR HEARING

The right to fair hearing includes:

(i) Right to know adverse evidence;

(ii) Right to present case;

(iii) Right to rebut evidence;

(iv) Right to cross-examination and legal re-presentation;

(v) Right to reasoned decision, etc.

The right to a fair hearing requires that individuals should not be penalized by decisions affecting
their rights or legitimate expectations unless they have been given prior notice of the case, a fair
opportunity to answer it, and the opportunity to present their own case. The mere fact that a
decision affects rights or interests is sufficient to subject the decision to the procedures required
by natural justice.

C. REASONED DECISION

The above entails "reasonableness" or the requirement that there be a "just cause" for dismissal.
Some of the justifiable reasons are as follows:

• a reason related to an employee's conduct

• a reason related to an employee's capability or qualifications for the job

• because of a redundancy

• because a statutory duty or restriction prohibited the employment being continued

• some other substantial reason of a kind which justifies the dismissal.

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 The 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. The dismissal types and their
legal consequences are explained below:

4.1.5.1 Summary Dismissal

The employer terminates the contract of employment summarily without giving notice 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 Employment Code 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 labour officer

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 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 labour 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 labour 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.

In terms of section 51(1) An employer who summarily dismisses an employee under section 50
shall pay the employee, on dismissal, the wages.

Section 50(2) of the Employment Code Act provides 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 labour officer in the district in which the employee was
working, a written report of the circumstances leading to, and the reasons for, the dismissal.

The above provision requires the employer to send reports on any summary dismissals it effects
to the Labour Officer within four days of the dismissal. This can be done via either registered or
electronic mail. Jameson Hapeeza v Zambia Oxygen Limited, 18 the Supreme Court refused to hold
that a dismissal was null and void where the employer dismissed an employee who was accused
of fraud but failed to inform the proper officer in compliance with Regulation 4(1) of the
Employment (Special Provisions) Regulations. The court held that the failure to inform the proper

18
(1988–1989) ZR 200 (SC).

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 officer after a justifiable dismissal based on fraud renders the employer liable only to a penalty,
but does not affect the validity of the dismissal.

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. Wrongful 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 dismissal as
opposed to the reasons for the dismissal. The dismissed employee is only entitled to damages
where wrongful dismissal is proved. The 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.

4.1.5.3 Constructive dismissal

Constructive dismissal occurs when the employer by his/her conduct or behaviour forces the
employee to resign.

Elements of constructive dismissal, according to Chilanga Cement v Singogo 2009 are as follows:

1. The employee leaves promptly or by notice.

2. The employee must have been entitled to leave without notice because of the unlawful
conduct of the employer.

3. Even though the employee is the one who leaves, the employer’s conduct is the cause for
this.

4. The conduct of the employer, according to the court in Western Excavating Limited v
Sharpe (1978) IRLR, entitles the employee to discharge himself/herself.

5. Thus, the employer is the one who terminates the relationship.

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 THE TEST

The Courts in Western Excavating Limited v Sharpe and Kitwe City Council v William Ng’uni
(2005) Z.R. 57 (S.C.) laid 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. The employee as the injured party is entitled to treat the
contract as repudiated and claim damages for breach of contract. The standard approach is having
regard to the equity of the case. This aspect determines the reasonability of the act by the employee
to leave.

Examples of constructive dismissal include unilateral reduction in salary or status: Marriot v

Oxford and District Co-operative Society Limited (1970)1 QB 186, workplace hostility: Walker v
Josiah Wedgwood and Sons Limited (1978) ICR 744, EAT, sexual harassment etc. Ultimately, the
employee must prove, victimisation, harassment and frustration.

WHERE NO CLAIM IS AVAILABLE

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’uni (2005) Z.R. 57 (S.C.) found that the plaintiff
tendered his resignation, through his lawyers while disciplinary charges were pending against him.
It also found that the reason for resigning from the defendant could not have been frustration,
victimization and harassment. Therefore, there was no constructive dismissal.

In the case of Western Excavating Limited v Sharpe, 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. The plaintiff resigned to avoid a dismissal because the
charges he was facing were serious and were likely to lead to his dismissal (taking
unauthorised time off of work). 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.”
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 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 Limited Appeal No.182 of 2000 (Unreported) 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 still held the old position. She resigned and claimed
constructive dismissal. Her claim was unsuccessful.

Remedies for constructive dismissal include the following:

a. Damages

These can be claimed at common law. However, there is no claim for specific performance at
common law due to the fact that the parties cannot be forced to remain in the relationship.

ZPA V Matale- read on the court’s ratio on damages.

Mubanga v Zambia Airways- The purpose of damages is to assist an individual in mitigating losses
why seeking alternative employment.

b. Special damages

Un-liquidated damages for issues such as mental torture and other incidental losses.

c. Specific performance

The court may order an injunction or reinstatement- see Miyanda v Att-General (1985)

d. Re-employment

This is the concluding of a new contract. A different position can be given.

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 case. It is not

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 based on a contractual claim. In Moses Choonga v ZESCO Recreation Club, Itezhi Tezhi19 the
court held that unfair dismissal occurs when an employee’s contract is terminated in breach of any
statutory provision linked to the protection of the right of employment and the promotion of fair
labour practices that require employers to terminate contracts of employment only on valid,
specified and reasonable grounds. Unfair dismissal focuses on the substance of the dismissal: it is
for an employer to deduce whether the reasons for dismissal are justified in terms of the statute.

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 Products.(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.

It will also be unfair if an employee is dismissed based on one of the unfair discrimination
grounds in section 52:

• trade union membership or participation in union activities outside working hours or, with
the consent of the employer, during working hours;

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].

19
SCZ Appeal No 168/2013.

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 Section 55 of the Employment Code 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. 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.

Orders have been issued under the Minimum Wages and Conditions of Employment Act CAP 276 to
provide for redundancy benefits for certain occupations.

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The Minimum Wages and Conditions of Employment (General) Order, (Statutory Instrument, No 2 of
2011) (General Order) provides that

1. where an employee's contract of service is terminated by reason of redundancy,

2. the employee shall be entitled to at least one month's notice and redundancy benefits of not less
than two months' basic pay. However, the application of the General Order is limited to the
following occupations:

• general worker;

• cleaner;

• handy person;

• office orderly;

• guard;

• driver;

• typist;

• receptionist;

• telephonist; and

• qualified clerk.

The scope of the General Order is further limited by the exclusion of employees of the Republic of
Zambia, employees of local authorities, employees in management positions, employees engaged in
domestic service and employees in any occupation where wages and conditions of employment are
regulated by collective bargaining.

The Minimum Wages and Conditions of Employment (Shop Workers) Order, (Statutory Instrument, No
1 of 2011, as amended by Statutory Instrument, No 47 of 2012) (Shop Workers' Order) provides that
employees in other specified occupations are entitled to at least one month's notice and redundancy
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benefits of not less than two months' basic pay. The list of included occupations is too long to list in this
article; however, most of the included occupations pertain to the retail sector and the Shop Worker's
Order, like the General Order, contains a long list of excluded occupations.

Employees with written contracts have no general entitlement to redundancy benefits, but certain
occupations qualify for redundancy benefits under the General Order and the Shop Workers' Order.
Employers are advised to consult the two Orders for guidance on whether their employees fall within
protected occupations.

Read the cases of:

Chilanga Cement, Plc v Kasote Singogo (2009) S.C.Z Judgment No.13 of 2009.

The brief facts of the case, which were not in dispute, were that the respondent was employed by the
appellant company in March, 1988, as a Credit Controller. On 17th December, 1999, he received a letter
from the appellant, advising him that he had been declared redundant with effect from that date. The said
letter which appears on page 51 of the record of appeal, states in part that the redundancy was due to the
company‟s decision to rationalize its manning (125) levels. The respondent was to be paid one month
salary in lieu of notice, and would be entitled to a redundancy package comprising two months basic
salary for each completed year of service; gratuity, transport or in lieu repatriation expenses to his
registered home district, and, pension benefits to which the respondent would be entitled under the rules
of the pension scheme.

On how redundancies should be handled, the Court listed three ways:

(a) Consideration of alternatives: a reasonable employer considers whether it is necessary to act on

redundancy or whether there is some other way of dealing with the problem.

(b) Lack of consultation: to dismiss without warning or proper consultation or without considering the
recommendations of any terms and conditions relating to redundancies may also result in a finding that
a dismissal is unfair. Consultation must be fair and genuine.

(c) Proper selection procedures.

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 1. Redundancies are planned activities. Being a planned activity, the employee needs to be
prepared for the loss of a job. Reasonable measures which should be taken will inevitably
include notices, and consultations which are so vital to the planning process.

2. Fairness and good faith demands that an employee should not be ambushed in a redundancy
exercise because such an ambush would not mitigate the negative impact of a loss of a job.

3. Ordinary termination of contract of service by notice cannot be equated to a notice of

redundancy. Redundancy, is a planned, clear, and transparent selection procedure. To accept
that payment in lieu of notice would suffice in a redundancy would be to negate the whole
process of planning and consultation, which an employer has to engage in, in order to effect
redundancies.

NOTE: It is highly imperative that you read the following cases:

Hewitt Chola and Others v Dunlop Zambia Limited, SCZ Appeal No. 108 of 2001 (Unreported)

Appellant and others were declared redundant.

That accused did not follow proc

Kabwe v BP (Zambia) Limited [1995-1997] ZR 218 (SC)

Zesco Limited v Banda and Others (Appeal No. 211/2013) [2017] ZMSC 3 (18 January 2017):

Nsama and Others v Zambia Telecommunications Company Limited (Appeal No. 21/2012) [2014]
ZMSC 68 (23 July 2014);

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 4.1.5.2 Retirement

Section 58 of Employment Code. 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’.

4.2 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.

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 • Notify a proper officer (e.g. 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, casualemployees, employees on probation, employees on fixed
term contractsand the redundancy coincides with the expiration of that term or employees who
have been offered alternative employment have unreasonably refused such offer.

Activity 4.0

Read the case of Chilanga Cement, Plc v Kasote Singogo (2009) S.C.Z
Judgment No.13 of 2009.

1. The Court dealt with the requirements that must be in place for constructive
dismissal to be established. Discuss these requirements.

2. Explain the Court’s rationale that ‘constructive dismissal must be narrowly

construed’.

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 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?

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 UNIT 5: DOCTRINE OF VICARIOUS LIABILITY

Learning outcomes

By the end of this unit you should be able to:

• Explain the legal basis for the doctrine of vicarious liability

• Explain the controlling principle in vicarious liability

• Apply the doctrine of vicarious liability to employment matters

5.1 INTRODUCTION
Vicarious liability is the liability the law imposes on an employer for the wrongs (actions or
omissions) the employee causes to third parties. The employer is held liable under the rule because
the law places him in the same shoes as an agent. The acts of an agent are considered to be the
acts of the principal.
Vicarious liability is one of the most firmly established legal principles throughout the common
law world. This may seem peculiar considering the doctrine is at odds with the fundamental
principles of tort law that a person should only be liable for loss or damages caused by his or her
own acts or omissions, and that a person should only be liable where he or she has been at fault.
The common law imputed liability for creating a safe system of work on the employer. The
doctrine of vicarious liability is rooted in public policy. It is based on the belief that because the
employer works through the employee, there is a potential risk of harm created by the employer
should the employee be ‘NEGLIGENT, INEFFECTIVE OR UNTRUSTWORTHY’. Failure by
the employer to take reasonable care and provide a safe system of work sounded in damages for
breach of contract based on negligence. The civil liability for the wrongs of the employee, on the
other hand are imputed to the employer under the doctrine of vicarious liability.

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 5.2 THE RATIONALE FOR VICARIOUS LIABILITY
The doctrine of vicarious liability is said to be founded on three major reasons namely; Public policy
based on economic reasons, control to achieve accident prevention and safety and loss
distribution.9206

a) Policy behind vicarious liability

Given the general acceptance that the doctrine of vicarious liability has its basis in policy considerations,
the question is what exactly those policy considerations are. Most important is the belief that:

1. A person who employs others to advance his own economic interest should in fairness be placed
under a corresponding liability for losses incurred in the course of the enterprise;
2. That the master is a more promising source of recompense than his servant who is apt to be a
man of straw without insurance;
3. And that the rule promotes wide distribution of tort losses, the employer being a most suitable
channel for passing them on through liability insurance and higher prices.

The principle gains additional support for its admonitory value in accident prevention because deterrent
pressures are most effectively brought to bear on larger units like employers who are in a strategic
position to reduce accidents by efficient organisation and supervision of their staff.
Fleming's words distil four key ideas to be found in the modern case law and academic writings —
fairness, the deep pocket principle, distributive justice and deterrence. We will examine these ideas in
turn.

b) Fairness
Ideas of underlying rightness are often referred to in the cases. In Bazley v Curry 13 (1999) 174 DLR
(4th) 45 (Bazley), the Supreme Court of Canada identified a primary consideration behind vicarious
liability as being the concern to provide a just and practical remedy to people who suffer as a
consequence of wrongs perpetrated by an employee. This is based on Fleming's first justification.
Employers employ servants to advance their economic interests and so it is thought that, in all fairness,
they should bear the burden of providing a just and practical remedy for wrongs perpetrated by their
employees. Put in another way, it is seen as right and just that the person who creates a risk should

20

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bearthe loss when the risk ripens into harm. In this sense, vicarious liability can be recognised as
regulating the employer's risk-taking. It is a deliberate allocation of risk. This public policy consideration
has been found in early judgments as well as those in the present day. In the old case of Duncan v
Finlater, Lord Brougham made the wellknown statement that "the reason that I am liable is this, that by
employing him I set the whole thing in motion; and what he does, being done for my benefit and under
my direction, I am responsible for the consequences of doing it". So, this fairness justification really
derives from a concept of social responsibility. It is just that employers bear the costs that their
enterprises generate, rather than innocent victims.
c) The 'deepest pocket' principle
The "deepest pocket" principle justifies vicarious liability because the employer is considered to be more
likely to be able to compensate the injured party than the employee who caused the damage. This is
related to the concept of corrective justice, which emphasises the importance of providing adequate
compensation for the victims of tortious misconduct. Corrective justice is concerned with righting
wrongs. It seeks to reflect generally accepted principles of morality and personal responsibility. It has
been suggested that one of the most important social goals served by vicarious liability is victim
compensation. Preferably an innocent tort victim should be able to pursue damages from a solvent
defendant, and as many employees have insufficient resources to defend or honour a tort judgment,
vicarious liability improves the chances the victim can recover from the solvent employer. So, it is more
likely that the wrong will in fact be put right.
d) Distribution of tort losses
Vicarious liability serves a loss-spreading function because employers are potentially better able to
distribute tort losses to a wider community. First, loss distribution comes about because the employer
can pass on the cost of his or her tortious vicarious liability, through the price of the goods or services,
to the community which consumes the product or service. So this distribution is one of the expenses of
doing business. Ultimately the expense will be borne by the consumer of the product, who should pay
the costs which the hazards of the business have incurred. Secondly, an employer can insure against
such tort losses and loss is then distributed to the community which pays premiums in the same category
as the employer's insurer. Or, the cost of insuring against the employer's legal liabilities can also be
included in the cost of the goods or services that are produced. In brief, if the costs of torts committed
by employees in the course of employment are allocated to the employer, then the employer can take

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them into account rationally in pricing and output decisions. Further, this spreading of losses can take
place over a period of time, rather than one individual having to pay out a large sum at a particular time.
Very arguably it is more socially expedient to spread losses from injuries to third parties among a large
group of the community rather than among only a few. The employer is responsible for the losses not
merely because he or she is better able to pay, but because he or she is more able to spread and distribute
the loss. It has been said, then, that loss distribution is not a justification for imposing liability on the
employer but is merely a description of where the loss ends up being borne. It has also been argued that
because insurance follows liability, it cannot be used to justify or create liability. So, loss-spreading as
a justification for vicarious liability is not an entirely convincing argument.
e) Deterrence of future harm

The other major policy lying at the heart of vicarious liability identified in Bazley was deterrence of
future harm. The argument is that fixing the employer with responsibility for the employee's wrongful
act, even where the employer is not negligent, may have a deterrent effect. Holding the employer
vicariously liable for employees' torts will encourage the employer to put in place efficient
administration, and supervision to reduce accidents and intentional wrongs. Accordingly, taking such
steps will reduce the risk that such wrongs occur. The fear of vicarious liability gives employers great
incentive to take every precaution to see that the enterprise is conducted safely. An employer who then
implements a cost-effective deterrence strategy would potentially avoid facing a future large judgment
in tort. Of course, evidence as to the extent to which the risk of liability in civil cases actually deters is
not easy to acquire. Many people know little or nothing about the civil consequences of tortious conduct,
which lessens the deterrence argument. Furthermore, in cases of negligence, it is difficult to see how a
person can be deterred from making a mistake. Moreover, a defendant is less likely to be deterred when
he or she is insured. Arguably, deterrence is most likely to operate in institutional settings where market
considerations are likely to influence behaviour. The circumstances giving rise to vicarious liability,
where an employer is in quite a good position to control or prevent tortious misconduct by an employee,
fall into this category.
It can be argued that imposing liability on the employee alone would provide adequate deterrence.
However, there are a number of reasons why this would not be so. First, if victims are unable to identify
the particular employee who committed the wrong then employees are unlikely to be deterred. Vicarious
liability, however, will achieve deterrence so long as employers are able to influence the class of
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employees. Secondly, employee liability may not provide adequate deterrence because employees are
often not financially responsible, which means that suing the employee may not be worthwhile for the
victim. The employee then has little incentive to avoid causing harm. Thirdly, it may be that individuals
do not respond rationally to the prospect of liability, whereas employers do. By imposing vicarious
liability, it might be anticipated that employers will induce their employees to behave reasonably.
Fourthly, it has been suggested that 'under a regime of personal liability many employees would be able
to force their employers to bear the cost of precautions in cases where employees can use employers'
resources to take precautions and employers have difficulty observing such actions'.
Where the employer is sued the employee, of course, remains personally liable. Indeed, the employer
may seek an indemnity or contribution from the employee, although this right is rarely, if ever, enforced.
Seemingly, this weakens the impact of deterrence in relation to the employee. But the employee may be
deterred by the possibility of dismissal from employment and/or a criminal charge.

5.4 FACTS REQUIRED TO PROVE VICARIOUS LIABILITY

To prove the liability of an employer under the doctrine requires three facts to be established. These are
explained below:

5.4.1 A tort was committed

It must be shown that a tort was committed against a third party and that the third party suffered injury
or loss as a result. The common law requirements for proving commission of a tort are implicit in this
requirement.97

5.4.2 That an employee committed the tort

It must be shown that the person who committed the tort is an employee. That is, one working under a
contract of service. In this case an employer will not be vicariously liable for the torts of an independent
contractor. The rules for determining the status of the individual in an employment relationship
discussed in the second part of the module apply.98

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 5.4.3. The tort was committed in the course of employment (controlling principle)

The controlling principle in the determination of vicarious liability is the requirement to prove that the
employee committed the tort in the course of employment. “Course of employment” means that the
employee was acting for the employer and not for himself. If the employee is acting for himself, he will
be personally responsible for his torts. He was on a “frolic of his own.”

Thus under the doctrine of vicarious liability the employer is liable for (1) authorised acts and (2)
wrongful ways of carrying out authorized acts, forbidden acts and criminal acts, if they are committed
in the course of employment.

5.4.3.1Authorized acts

The employer is liable for the acts of the employee that cause injury if they happen during the course of
employment.

5.4.3.2 Wrongful ways of performing authorized acts

The employer is liable if the employee performs authorized acts in a wrongful way and these cause
injuries. Examples that show this scenario include the following cases:

• Limpus v London General Omnibus Co.(1862) 1 H & C 526

In this case bus drivers caused injury to a third party by racing the buses an act which was against
regulations. The employer was still held liable.

• Rose v Plenty (1976)1 All ER 76

In the case a milkman employed an “assistant” who was injured by his negligent driving. The act was
held to be in the course of employment and the employer was held liable.

An employer will, however, not be liable for acts that are committed by the employee where this is
outside the course of employment. This was explained in. Striking mine workers damaged a delivery
vehicle belonging to Acropolis Bakery which asked the Court to award damages under vicarious
liability. It was held that the acts of the workers were not in the course of employment.

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5.4.3.3 Forbidden acts

The employer is liable if the employee whilst in the course of employment causes injury whilst
performing a forbidden act. The controlling factor is that the employee was acting in the course of
employment. (refer to Limpus v London General Omnibus Co. Cited above.).

5.4.3.4 Criminal acts

The general rule in the criminal law is that there is no vicarious liability. This reflects the general
principle that a crime is composed of both an actus reus (the Latin tag for "guilty act") and a mens rea
(the Latin tag for "guilty mind") and that a person should only be convicted if he or she is directly
responsible for causing both elements to occur at the same time (see concurrence). Thus, the practice of
holding one person liable for the actions of another is the exception and not the rule in criminal law.
Thus, vicarious liability transfers a defendant’s criminal responsibility for the crime to a different
defendant because of a special relationship. Vicarious liability crimes are a species of liability without
fault, this transfer of criminal liability occurs regardless of whether either of the defendants were aware
they were committing a crime. For example, selling alcohol to minors (See Morris v CW Martin and
Sons Ltd 1965- stolen Mink stole.)

The employer is liable for the criminal acts of the employee if they are committed in the course of
employment. The view taken by their Lordships in Lister v Hesley Hall Ltd [2001] UKHL was that
proximity brought the employer within the ambit of liability. This decision had the effect of creating
liability for the criminal acts of employees falling within the controlling principle. Lord Steyn referred
to a recent Canadian case, which had imposed liability for intentional torts, creating a new test of 'close
connection', rather than using previous formulations. The evidence showed that the employers entrusted
the care of the children in Axeholme House to the warden. The question is whether the warden's torts
were so closely connected with his employment that it would be fair and just to hold the employers
vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably
interwoven with the carrying out by the warden of his duties in Axeholme House.

In Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 the Supreme Court considered whether
an employer was vicariously liable for an employee's unprovoked and violent assault on a customer. It
also considered whether the test for vicarious liability should be changed. Employers will be vicariously

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liable for civil wrongs committed by an employee where there is a sufficient connection between the
employment and the wrongdoing. There is a two-stage test:

First, is there a relationship between the defendant and the wrongdoer? Secondly, is the connection
between that relationship and the wrongdoer's act or default such as to make it just that the defendant
should be held legally responsible for the claimant for the consequences of the wrongdoer's conduct?
The Supreme Court here considered the second part of this test – sometimes referred to as the "close
connection" test. The first was considered in another case handed down on the same day (see Cox v
Ministry of Justice).

The Supreme Court allowed the appeal. It applied the following:

1. What was the nature of the job or field of activities involved, taking a broad approach to this question?

2. Was the closeness of the connection between role and the wrongful conduct sufficient to make it right
for the employer to be liable?

It was Mr Khan's job to attend to customers and to respond to their inquiries. His conduct in answering
the claimant's request in a foul mouthed way and ordering him to leave was inexcusable, but within the
"field of activities" assigned to him. What happened afterwards was an unbroken series of events, and
Mr Khan's motive – i.e. he was clearly not activated by a desire to benefit his employer's business – was
irrelevant.

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 Activity 5.0

1. Discuss the doctrine of vicarious liability in relation to the duty of indemnity attached which
the law imposes on the employee.

2. Read the case of Acropolis Bakery v ZCCM Limited (1985) Z.R. 232 (S.C.) and discuss how
the Court dealt with the matter of acts within the scope of employment.

3. In what circumstance would it be prudent to ascribe liability solely on the party at fault?

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UNIT 6: THE OCCUPATIONAL HEALTH AND SAFETY

Learning outcomes

By the end of this Unit the student should be able to:

• Identify the main sources of Labour law in Zambia

• Demonstrate knowledge of the main sources of Labour law

• Apply the main sources to resolve labour law problems

6.1 INTRODUCTION

Occupational health and safety is identified as the discipline that is comprised of the prevention of work-
related injuries and diseases as well as the protection and promotion of the health of workers.
“Occupational” refers to issues related to the working life. “Health” is defined in the Preamble of the
Constitution of the World Health Organization as a state of complete physical, mental and social well-
being and not merely the absence of disease or infirmity. “Safety” is an element of a system that will
not endanger human life.

Occupational health and safety therefore, aims at the improvement of working conditions and
environment and involves many specialised fields (occupational medicine, industrial hygiene,
toxicology, education, industrial safety, ergonomics, psychology, etc.).

Occupational health and safety are critical elements of employment law and labour relations in Zambia.
In the previous chapter, the duty to provide for a safe system of work was discussed as one of the implied
terms of the contract of employment. The employer therefore has a duty to ensure that its employees are
safe in carrying out their duties.

In Zambia, approximately 1200 occupational accidents and diseases are reported from all industries
annually while many other go unreported. The 2004 National Employment and Labour Market Policy
observed that the majority of workers in Zambia have continued to face numerous risks at work. These
are usually in the mining, manufacturing, construction, electricity forestry and agriculture industries.

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Workers in the informal sector continue to work in unsafe and unhygienic conditions with no laws to
cover them.

6.2 THE DUTY OF CARE

At common law an employer is under a duty to take reasonable care for the safety of his employees in
all the circumstances of the case in order not to expose them to an unnecessary risk. In other words an
employer owes his employee a duty to take reasonable steps to ensure that the employee is not physically
injured or otherwise harmed in working for him.

The employer’s duty to his employees is personal and non-delegable. He can delegate the performance
of the duty to others, whether employees or independent contractors, but not the responsibility for its
negligent performance.

In Chiyuka (Administrator) v Ultima Engineering Limited and Mopani Copper Mines PLC
(2008/HP/0212) [2013] ZMHC30 (30 December 2013), the Court held that the employer’s duty to his
employees include:

• provision of competent staff (he must select competent staff and give them proper instruction in the
use of equipment, train them according to the requirements of their job and supervise them if
necessary);
• provision of a safe place of work (he must take reasonable steps to ensure that the premises are safe);
• provision of proper plant and equipment (failure to provide adequate equipment may result in
liability for negligence);
• provision of a safe system of work.
The above affirms the principle in Wilsons and Clyde Coal Co Ltd v English [1938]AC, 110, where
Lord Wright stated the employer's duty as being, threefold, the provision of a: competent staff of men;
adequate material and; a proper system and effective supervision.

6.3 OCCUPATIONAL ACCIDENTS

An occupational accident is an undesired and sudden occurrence arising out of or in connection with
work that results in physical harm to one or more workers.

Acts of violence can also be considered occupational accidents. Frequently, travel, transport or road
traffic accidents in which workers are injured and which arise out of or in the course of employment
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(i.e. while engaged in an economic activity, or at work, or carrying on the business of the employer) are
also considered occupational accidents.

6.4 OCCUPATIONAL DISEASES

The ILO Employment Injury Benefits Recommendation, 1964 (No. 121), paragraph 6(1), defines
occupational diseases as those known to arise out of the exposure to substances and dangerous
conditions in processes, trades or occupations as occupational diseases.

6.5 PREVENTION
Prevention is the central concept of occupational safety and health, to such an extent that even the
concept “prevention of occupational risks” is often used as an equivalent to “occupational safety and
health”. Sometimes it is just defined in terms of the preferred approach to work on occupational safety
and health: all the steps or measures taken or planned at all stages of work in the undertaking to prevent
or reduce occupational risks. Prevention is also an attitude of individuals and organizations in the way
to deal with the OSH problems. The concept “prevention” is associated with other relevant principles
and considerations:

• The principle of prevention, which asserts that avoiding harm is much better than trying to remediate
that harm.

• The principle of precaution. It entails that, when an activity raises threats of harm to the environment
or human health, precautionary measures should be taken even if some cause and effect relationships
are not fully established scientifically.

6.10 HAZARD AND RISK

The term “hazard” is often confused with the term “risk”. These two concepts are very relevant for many
of the process and activities in OSH and need a clear definition and differentiation.

Hazard is an agent, condition or activity with potential to cause harm that, if left uncontrolled, may
adversely affect the well-being or health of exposed persons. For example, hazards can include
substances such as a toxic chemical, energy forms such as a high voltage power supply, machines, or
the way work is carried out.

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Risk is a combination of the likely severity and probability that somebody will actually be harmed by a
specific hazard. A risk will be higher when the severity of the consequences is more important and when
the probability of occurrence is more frequent. The two factors (severity and probability) used to
estimate the risk are independent in the sense that a severity of a hazard could be high and the probability
instead could be very low (or the opposite) and should be estimated independently.

It is the term “serious and imminent labour risk”. It means the risk that is rationally probable to be
materialized in the immediate future and can cause serious damage for the health of the workers.

6.11 LAW RESPONSE

The protection of workers from illness or injury is also provided for in the International Labour
Organization (ILO) Constitution and part of the ILO’s main objectives. In addition, conventions such
as the Promotional Framework for Occupational Safety and Health Convention, 2006 (No 187), the
Occupational Safety and Health Convention, 1981 (No 155) and the Occupational Health Services
Convention, 1985 (No 161) highlight the critical nature of occupational health.

The Zambian Constitution does not deal with labour matters specifically, except article 21 which deals
with freedom of association. Specific laws however, include the following:

• The Employment Code Act No. 3 of 2019

• The Workers’ Compensation Act, 1999

• The Occupational Health and Safety Act, No.36 2010

• The Factories Act, CAP 441

Other pieces of legislation, such as the Mines and Minerals Act, 2015, provide for access to water and
protective clothing for employees exposed to any pollutant during the mining process. Zambia’s
occupational health and safety framework is governed by the Occupational Health and Safety Act, the
Factories Act and the Workers’ Compensation Act.

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 6.12ZAMBIA’S OCCUPATIONAL HEALTH AND SAFETY FRAMEWORK

a) Employment Code Act

i. Water use
Section 93 of the Employment Code Act provides that every employer must ensure that there is an
adequate supply of drinking water at the place of employment for the use of their employees. Moreover,
the supply of water or sanitation facilities must be adequate and reasonably protected and accessible.

Where, in the opinion of an authorised officer, this is not the case, an additional requirement in this Act
is that the authorised officer may serve on the employer an order, in writing, requiring the employer to
remedy any defect within a reasonable time that may be specified in the order.

ii. Provision of medical facilities

Section 94(1) of the Employment Code Act provides as follows:

(1) An employer shall provide an employee with medical attention and medicines and, where
necessary, transport to a health facility during the illness of the employee under–

(a) a collective agreement registered under the Industrial and Labour Relations Act;

(b) a contract of employment; or

(c) the general conditions of service of the undertaking.

Therefore, under this Act, it is mandatory for employers to provide medical attention, medicines and,
where necessary, transport to a health facility during the illness of an employee. This requirement now
places an obligation on employers to provide medical cover for their employees either in the contract of
employment, a collective agreement or the conditions of service of the undertaking.

Medical schemes are also operated by employee groups without additional resources from employers.
Other employees carry medical insurance policies which allow them to access medical services at
designated clinics and hospitals.

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 b) The Factories Act CAP 441

The Factories Act was promulgated in order to provide for the safety, health and welfare of persons
employed in factories. The Act provides for the safety of those employees performing activities such as
lifting machinery and steam boilers.

The Act is the principal instrument for regulating conditions of employment in factories and other places
of work which, for the purposes of the law, are to be regarded as factories. However, it excludes mining
industry. The Act deals with health provisions, safety provisions, welfare provisions and the
employment of women and young persons.

The definition of what constitutes a factory under the Act is extensive and generally refers to any
premises in which or within which persons are employed in manual labour to make, alter or adapt
articles, or where animals are slaughtered by way of trade or for profit. Whilst the definition is wide, it
does not include those working in the agricultural or services sectors, or those in the informal sector.

The Act stipulates that factories are to be registered. The provisions of the Act are enforced by the Chief
Inspector of Factories and Inspectors. The Labour Commissioner has the power to appoint inspectors
who are responsible for inspecting and examining factories to ensure the health and safety of employees
and compliance with the Act. In addition to this, the Occupational Health and Safety Services
Department inspectors are empowered to inspect factories to ensure compliance with the Act.
Contravention attracts fines, compliance orders and in some cases suspension of operations.

It should be noted that no inspector may, except when performing their duties, publish or disclose to
any person the details of any manufacturing, commercial or working process that may come to their
knowledge in the course of their duties.

There are detailed substantive provisions addressing safety at work, such as fencing off of moving
machinery, securing dangerous substances, proper construction of access such as ladders and gangways,
the provision of first aid and procedures for prevention and fighting of fire. It also provides for healthy
working conditions that need to be followed like overcrowding, cleanliness, toilet facilities, lighting and
ventilation.

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Additionally, there are provisions on employee welfare such as protective clothing, drinking water,
resting facilities and change rooms.

In 2014, Zambia ratified to the ILO convention 158 which pertains to labour inspections and termination
of employment.

In 2004, the TCLC’ Technical Committee on occupational health and safety was mandated to review
the Act. The purpose was to broaden the scope of the Act. The proposed name was the Factories and
Workplaces Act. It was going to cover all workplaces but excluding the mines.
The proposed amendments included:

• Registration of all workplaces

• The establishment of safety and health committee

• A written policy

• Expansion of the list of reportable diseases from 15 to 57

• Enhanced duties of employers and employees

• Amongst others

These proposed amendments were not adopted. Instead it led to the enactment of the Occupational
Health and Safety Act in 2010. The relationship between the two is not clear.
i. Objects of the Factories Act
The Factories Act sets out to achieve a number of objectives which are stated in the Act as follows:

• To make further and better provision for the regulation of the conditions of employment in factories
and other places concerning safety, health and welfare of persons employed therein;

• to provide for the safety, examination and inspection of certain plant and machinery; and

• To provide for matters related to the above.

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The first object invites you to appreciate the fact that the Factories Act is not the only law providing for
the regulation of safety, health and welfare of employed persons. The doctrine of vicarious liability
arising in civil law is the clearest example of this fact which sounds in common law. Other forms of
regulation may be observed in ministerial directives that regulate various types of workplaces.

ii. Scope of the Act

The Factories Act covers many work places and the Act defines a factory as generally including the
following:

Any premises in which or within which persons are employed in manual labour to make or assemble or
alter articles; alter, repair, ornament, finish, clean or wash or break-up or demolish articles; or adapt
articles for sale for purposes of trade or gain.

(Note that the definition of what constitutes a factory is so wide that you are expected to ensure that you
familiarize yourself with all the aspects of this definition by actually reading the Act).

iii. Definition of a Factory

The Factories Act defines a factory as any place where persons are employed in manual labour for
making or assembling articles, altering, repairing, ornamenting finishing, cleaning or washing of
articles, adapting for sale, by way of trade or gain and the employer has access to the premises.133 The
Factories Act extends the definition of factory to premises where activities are performed to support the
work of a factory (ancillary acts).134.For example persons who work in a bottling plant to wash bottles
are also regarded as factory workers. The fact that a workplace is not enclosed does not exclude it from
the definition.

iv. Administration and Registration of Factories: Part II

The Factories Act provides for the administration of the Act and registration of factories by providing
machinery for inspection and registration of factories to ensure compliance with the provisions of the
Act. These are discussed below.

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Inspection of Machinery and Plant.

Part II of the Factories Act provides for the Inspection of factories in order to ensure the proper
administration of the Act. In order to ensure that employers comply with the requirements of the Act the
appointment of Inspectors is provided for.136 The role of inspectors is to ensure the proper administration
of the Act.

The inspectors appointed under the Act have powers to:

• Enter factory premises to carry out their work.

• Examine processes and work flows

• Institute inquiries

• Conduct medical examinations

• Suspend operations of a factory if the inspectors find that the requirements of the Act are not being
complied with.

The Inspectors work in a privileged position and are under no obligation to disclose the source of their
complaint. They have a duty of confidentiality imposed upon them by statute.

v. Registration of Factories: Part III

Part III of the Act provides for the mandatory registration of factories. Upon being registered in line
with the provisions of the Act a factory will be certified.

vi. Health General Provisions: Part V

The health provisions under the Act relate to cleanliness, overcrowding, ventilation, lighting, and
sanitation. These are provided for in Part V of the Act.

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 vii. Cleanliness
The Act requires that every factory shall be kept in a clean state and free from effluvia arising from any
drain, sanitary convenience or nuisance.

viii. Overcrowding
The Act prohibits overcrowding. It sets limits on the numbers of people that can safely work in a factory
of any given size. Overcrowding can impair the safety and health of persons employed in a factory.

ix. Ventilation
Factory owners have a duty to ensure that adequate air flows in the factory and to ensure toxic gases and
dust that come from factory process are removed.

x. Lighting
Another important aspect of safety is the requirement for lighting in factories. The Act provides that all
factories shall ensure that adequate lighting is provided. This lighting may be artificial or natural.

xi. Sanitary conveniences

Suitable sanitary conveniences are required to be provided in all factories. These include toilets and
other washing facilities.

Safety General Provisions: Part VI

Part VI of the Act provides for the protection of factory workers from physical or bodily harm arising
from use of machinery and factory processes.

xii. Fencing of machinery

The Act provides that prime movers, transmission machinery or dangerous machinery must be fenced
off.

xiii. Sealing of dangerous substances

The Act requires that all vessels containing dangerous substances must be fenced off or sealed (covered).

xiv. Fire provisions

Factories must have adequate Fire-fighting equipment and fire escapes. Testing and examination of fire
warning is also required to be in place.147A factory must have arrangements for fire drills.

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 xv. Safety: Lifting Machinery: Part VII
Part VII of the Act provides for safety provisions to regulate use of lifting machinery in factories. These
are briefly discussed below.

xvi. Hoists and Lifts

Lifting machinery must conform to standards of good mechanical construction and must be examined
every 6 months.

xvii. Chains, Ropes and Lifting Tackle.

Chains must be of good material made according to prescribed safety standards.

Cranes and other lifting machines must also conform to standards required for safe operations and must
be regularly serviced.

xviii. Safety: Steam Boilers: Part VIII

Part VIII of the Act provides for safety related to steam boilers. These are required to have safety valves
made according to standard, and to be properly maintained and manned by qualified personnel.

xix. Welfare: General Provisions : Part IX

Welfare of factory workers is covered under Part IX of the Act. Factories are required to ensure provision
of the following:

• Drinking water which is wholesome or uncontaminated and free from any foreign substances or
materials.

• Washing facilities

• Accommodation for clothing and Change Rooms

• Sitting facilities

• First-Aid Boxes or facilities.

xx. Health, Safety and Welfare: Special Provisions and Regulations: Part X
Special provisions and regulations are made under Part X of the Act. They include the following:

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• Removal of and prevention of inhalation of dust or fumes, (Protection by employer).

• Prohibition of taking of meals in dangerous places.

• Provision of protective clothing and appliances in dangerous work places.

• Prohibition of lifting of excessive weights.

• Inspectors empowered to require production of certificates of fitness for work and to demand
samples from the factory.

xxi. Notification and Investigation of Accidents, Dangerous Occurrences and

Industrial Diseases: Part XI
Part XI of the Act places a duty on factory owners to ensure that they report accidents, dangerous
occurrences and industrial diseases to the inspectors. The notification is required to be in written form.

xxii. Obligation to Display an Abstract of the Act

Part XIII of the Act requires factory owners to display an abstract of the Act in a prominent position
within the factory premises. This is to ensure that all employees have access to and know the provisions
of the factories Act.

xxiii. Offences and Penal Provisions: Part XIV

Part XIV of the Act provides for offences and penalties for non-compliance with the provisions of the
Act. The failure to comply with the provisions of the Act is an offence. A factory inspector may if he
discovers that the factory is being operated in violation of the provisions of the act suspend operations
of such a factory.

c) The Occupational Health and Safety Act No. 36 of 2010

The Act was promulgated in 2010 with the objective of regulating the health, safety and welfare of
employees, while also providing for the duties of relevant employees. The Act seeks to regulate all
aspects of welfare in the workplace that relate to the health and safety of employees.

According to the Act, an employer must take all reasonably practicable measures to ensure that
employees are not affected by or exposed to risks to their health and safety in the workplace.

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Furthermore, a person who designs or constructs a building or structure who knows or ought reasonably
to know that the structure is to be used as a workplace must take reasonable measures to ensure that
employees are not exposed to health or safety risks.

In addition, all employers that employ more than ten employees are obliged to establish a health and
safety committee. The committee is responsible for investigating and resolving matters that may be a
risk to the health and safety of employees in the workplace. The committee also promotes cooperation
between employees and the employer on health and safety issues and the sharing of information, rules
and procedures relating to occupational health and safety.

Very importantly, the Act provides that an employer must not dismiss an employee or alter an
employee’s terms of employment or rank because the employee laid a complaint about the workplace
or exercised their powers as a health and safety representative in the workplace.

i. The Occupational Health and Safety Institute

Section 4(1) of the OHSA establishes an Occupational Health and Safety Institute, a body corporate with
functions stipulated in section 6.

Section 6 provides that the functionalities of the Institute

1. to develop and implement programs for employers

2. to implement measures to eliminate or reduce risks to health or safety or to improve occupational

hygiene, occupational health and safety.

3. The Institute also investigate and detect occupational diseases and injuries and to conduct medical
examinations for occupational health and safety purposes catering for all industries including
agriculture and construction among others.

ii. Establishment of a Committee

Another important aspect of the OHSA is the establishment of an Occupational Health and Safety
Committee that oversees compliance of the laws and policies relevant in the workplace.

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Section 11 requires that an employer of ten or more persons at any workplace must establish a health
and safety committee. The composition according to section 12(1) is an equal number of members, not
less than two on each side, representing the employer and the employees.

The functions of a health and safety committee are to:

1. promote cooperation between the employer and the employees in achieving and maintaining
healthy and safe working conditions.

2. The committee is to investigate and resolve any matter that may be a risk to the health and safety of
employees at a workplace.

3. Moreover, it has the duty to formulate, review and disseminate to the employees the standards, rules
and procedures relating to health and safety to be carried out at the workplace.

iii. Labour Inspection System

The Factories Act and the OHSA provide for a labour inspection system, however, due to resource
constraints, it is not in line with the requirements of the ILO Labour Inspection Convention, 1947 (No.
81). The Acts provides the enforcement powers of the inspectors including entering, inspecting, and
examining any workplace.

The inspector has the power:

1. to enter, inspect and search the workplace;

2. take samples;

3. examine any document or article;

4. require the production of any record, report or document;

5. and interview anyone.

Section 25 of the Factories Act confers a duty on the inspector to give notice of any sanitary defects to
the local authority. If there is any risk of harm, injury or illnesses, the Minister may request, according

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to section 26, medical supervision on the persons working in the factory, and even go to the extent of
enacting regulations regarding this. Sections 25 and 26 of the OHSA echoes some of these provisions.

The labour inspector would require that such building, part of the building, machine, plant, matter, thing
or practice to be vacated, repaired, removed, remedied or stopped, as the case may be, either forthwith
or within such time as may be specified in such notice; and may issue an order of closure of the
workplace, in case of non-compliance to the act that is likely to cause death or bodily harm to an
employee or any person in the factory's premises. Penalties for non-compliance include fine ranging
from one hundred thousand penalty units to seven hundred thousand penalty units or an imprisonment
for one to seven years. A court is also authorised to order remedy for the cause of contravention.

iv. The duties of the employer

a. Reasonable Practicability
Risk and hazards part of all human activity. There is no absolute protection from illness, injury or death
at work.

An employer’s legal responsibility to ensure a safe working environment is typically related to risk,
especially where employees utilise machinery or potentially toxic substances, or where the working
environment, like a building site, is itself dangerous.

The duties of the employer are limited by what is reasonably practical. This is derivative of the term "so
far as is reasonably practicable", which means that the degree of risk in a particular situation can be
balanced against the time, trouble, cost and physical difficulty of taking measures to avoid the risk.

This entails what is realistically feasible to achieve, based on what could be expected from the employer.
This is often simplified to “if it can be done, it must be done”.

In terms of the law, an employer’s duty is gauged against that of a reasonable person. In this respect, a
court of law might ask whether an employer could have foreseen potential injury, and, if so, what steps
a reasonable person would have taken to try to guard against potential injury.

The OHSA does not define the above. However, it highlights the dynamics in section 15, in determining
what is reasonably practicable in relation to ensuring health and safety at a workplace. Regard shall be
had to the following matters:

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 (a) the likelihood of the hazard or risk concerned occurring;

(b) the degree of harm that would result if the hazard or risk occurred;

(c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any
ways of eliminating or reducing the hazard or risk;

(d) the availability and suitability of ways to eliminate or reduce the hazard or risk; and

(e) the cost of eliminating or reducing the hazard or risk.

According to section 16 in so far as it is reasonably practicable, the employer has the duty to ensure the
health, safety and welfare of the employees and to stablish and maintain environment which is beneficial
for the employee’s physical, physiological and psychological ability.

The employer should also provide plant and systems of work that are safe and without any risks to
human health and maintain them in that condition. This also includes the fact that articles, devices, items
and substances provided for the use of the employees at a workplace are used, handled, stored and
transported in a manner that is safe and without any risk to the health and safety of the employees. A
person who contravenes these provisions commits an offence and is liable, upon conviction, to a fine.

b. Victimisation
According to section 24 of the OHSA, an employer is not dismiss an employee because the employee,
complains about the workplace, is member for the committee, gives info about the workplace or
exercises power as committee representative. The employer is also prohibited to alter the employee’s
position or terms of employment or threaten to dismiss the employee or alter his/her position or terms
of employment.

c. The working environment

Section 19 of the Factories Act provides for Cleanliness. Every factory should be kept in a clean state,
and free from effluvia arising from any drain, sanitary convenience or nuisance. Accumulations of dirt
and refuse should be removed daily.

Section 20 prohibits overcrowding. A factory should not be so overcrowded while work is being carried
out because this may cause risk of injury to the health of the persons employed.

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Moreover, section 23 requires for the provision of sanitary conveniences. These are to be sufficient and
suitable and should be maintained and kept clean, and effective for both sexes (separate accommodation
for each sex).

Section 22 requires effective lighting to be provided for. Section 21 requires the provision of effective
and suitable ventilation by natural or artificial means, for circulation of fresh air in each to prevent
fumes, dust and other impurities generated in the course of any process or work carried on in the factory
as may be injurious to health. This is supported by section 69 which deals with the removal of and
prevention of inhalation of dust or fumes. It requires that all practicable measures should be taken to
protect the persons employed against inhalation of the dust or fume or other impurity and to prevent its
accumulating in any workroom.

Section 69 also requires that exhaust appliances should be provided and maintained, as near as possible
to the point of origin of the dust or fume or other impurity. It also prohibits the use of stationary internal
combustion engine in any room unless provision is made for conducting the exhaust gases from the
engine into the open air. According to section 38 adequate breathing apparatus are to be provided,
together with safe exist points. Ventilation is again emphasised, together with the training of individuals
on how to use the apparatus.

The Factories Act also emphasises on issues of welfare. Sections 63- 67 on drinking water; washing
facilities; accommodation for clothing and change rooms; facilities for sitting; and first-aid. Sections
40-45 deal with precautions to take when handling and preventing explosives and fires, as well as escape
measures. One important aspect in line with this is highlighted in section 37 that requires safe means of
access and exit and safe place of employment

In accordance with the OHSA, (see sections 16, 17 & 32) it is a duty of the employer to ensure the health,
safety and welfare of the employees at the workplace; and place and maintain an employee in an
occupational environment adapted to the employee's physical, physiological and psychological ability.
The employer must provide the work environment that is safe and without any risk to the health and
safety of the employees at their workplace.

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 The Employer must also take preventive measures including adequate first-aid arrangements to deal
with emergencies and accidents; provide and maintain adequate supply of drinking water; and separate
eating & resting areas free from poisonous or injurious substances.

An employer, on recommendations of the Director, is required to prepare a health and safety policy
concerning the protection of the health and safety of the employees, including a description of the
organisation and arrangements for carrying out reviews to that policy.

The employer has to provide plant and systems of work that are, in so far as is reasonably practicable,
safe and without any risks to human health and maintain them in that condition. The employer may also
consult a health and safety representative for guidance and support.

The employer is responsible to provide all appropriate protective clothing or equipment to be used in
the workplace by employees, who in the course of employment, are likely to be exposed to the risk of
bodily injuries, and adequate instructions in the use of such protective clothing or equipment. All the
protective equipment are provided free of cost. Every worker should be provided with personal
protective equipment and protective clothing that must be used at all the times during working hours.

d. Training
Employers are obliged to ensure that workers have been provided such information, instructions,
training and supervision, especially on a machine or process likely to cause bodily injury, to protect the
health and safety of employees at workplace. This is as far as is reasonably practicable, the health and
safety of the employees at their workplace.

Section 35 of the Factories Act provides for training and supervision of inexperienced workers.

No employee is allowed to handle machinery unless he has been fully instructed as to the dangers likely
to arise in connection therewith and the precautions to be observed.

Such an individual may also be under adequate supervision by a person who has a thorough knowledge
and experience of the machine or process.

e. Machinery
Sections 27- 29 of the Factories Act provide for the safe securing of various dangerous machinery. Prime
movers, transmission machinery and the like, need to be fenced. Section 30 speaks of maintenance of
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machinery. This involves the examination, lubrication or other operation. The section provides that this
is carried out by a male person who-

• has attained the apparent age of eighteen years;

• has been appointed by the occupier of the factory, to carry out the maintenance and has a
certificate of such;

• has been sufficiently trained in this

• has been provided with effective and secure safety gear.

• another person, instructed as to the steps to be taken in case of emergency, is immediately

available within sight or hearing of any person carrying out such examination or other
operation.

Sections 47 and 48 require that every hoist and lift in general and those used for carrying persons should
be consistent with a relevant standard specification, be properly maintained and examined by a
competent person at least once in every period of six months, and a report of the result of every such
examination.

v. Duties of the employee

The OHSA (in 17 section) states that an employee must also take reasonable care for his/her own health
and safety and that of other persons who may be affected by his/her acts or omissions at the workplace.

The employees must cooperate with the employer or any other person in relation to any duty imposed
on the employer or that other person, so far as is necessary to enable that duty or requirement to be
performed or complied with.

Where an employee has reasonable grounds to believe that any item, device, article, plant or substance,
condition or aspect of the workplace is, or may be, dangerous to the employees’ occupational health or
safety at or near the workplace, the employee must immediately inform the employer, the committee or
health and safety representative.

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 Section 89 of the Factories Act echoes the OHSA in prohibiting employees from wilfully interfering
with or misusing equipment and anything else provided for in the workplace. Further, an employee
cannot wilfully and without reasonable cause do anything likely to endanger himself or any other person.

Read Sakala v Heinrich's Syndicate Ltd and Another (2015/HP/0010) [2016] ZMHC 127 (7 June 2016).

There were safety precautions pertaining to the switching off and on of the grinding machines which
were displayed above the switch to avoid accidents. The safety precautions were itemised as follows;

1. all circuit breakers are numbered (switch them of)

2. disconnect welding sockets

3. all emergency/unit switch are on the machine body [press them/release)

Weakness of the Act

• Lack of national policy on occupational health and safety

• Lack of coordination among institutions mandated to enforce the law

• Inadequate capacity amongst stake holders

• Inadequate logistical capacity

• Inadequate advocacy

• Lack of research and limited coverage of workplaces

• High turnover of professional staff

• No national occupational health and safety management systems that have been developed have
been adopted by the authorities for use in the workplaces.

• Specifically, Zambia has not officially adopted the Guidelines on Occupational Health and
Safety

• There is very little awareness regarding these guidelines

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 d) The Workers’ Compensation Act, 1999

The Workers’ Compensation Act1 is designed to provide for the establishment and administration of a
fund to compensate workers disabled by accidents that occur during the course of their employment or
by diseases similarly contracted by workers. It also makes provision for the payment of compensation
to dependents of workers who die as a result of such accidents or diseases. Further objects of the Act
are:

• to provide for employers to pay contributions to the fund;

• to make provision for granting pensions and allowances to certain dependents of workers who,
being in receipt of pensions for such disablement, die from causes not connected to such accidents
or diseases;

• to provide for the appointment and powers of a Workers’ Compensation Commissioner and the
establishment and powers of the Workers’ Compensation Control Fund Board and an Appeal
Tribunal.

Under the common law, employees who suffered injuries had to prove that such injuries sustained during
the course of employment were the result of the negligence of their employer. Under the Workers’
Compensation Act, the right of injured workers to pursue remedies under the common law is reserved.
An injured employee, through their employer, may give notice of accidents or injury and claim
compensation from the Workers’ Compensation Fund Control Fund Board.

Section 6 of the Workers’ Compensation Act provides as follows:

(1) Where any injury is caused to a worker by the negligence, breach of statutory duty or other
wrongful act or omission of the employer, or of any person for whose act or default the employer
is responsible, nothing in this Act shall limit or in any way affect any civil liability of the employer
independently of this Act.

(2) Any damages awarded to a worker in an action at common law or under any law in respect of
any such negligence, breach of statutory duty, wrongful act or omission, shall be reduced by the

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 value, as decided by the court, of any compensation which has been paid or is payable under the
provisions of this Act in respect of injury sustained by the worker.

It is therefore possible for an employee to claim relief under both the Act and the common law. In
Lafarge Cement v Patrick Mandona,3 the Supreme Court held that for an employee to be successful in
a claim for workplace injury, the employee must prove that there was a connection between the breach
of the statutory duty and the employee’s injury. The Supreme Court, per Musonda JS, stated as follows:

The basic observation which we feel constrained to make is that the Appellant (the employer) and the
Respondent (the employee) had been in a legal relationship from which certain duties, in particular, a
breach of a legal duty owed by one to another would entitle the innocent party to legal relief. In the
context of the matter at hand, the Respondent did not demonstrate that the Appellant had breached some
legal duty on which the former was entitled to found a valid and legally recognised claim.

Furthermore, as the Supreme Court in Patrick Mandona confirmed, the employee must prove and
demonstrate that their employer breached a legal duty towards the employee.

Employers are obliged to make contributions called ‘assessments’ as determined by the Workers’
Compensation Commissioner. However, section 104 of the Workers’ Compensation Act provides that
the state and any employer exempted by the minister are not liable to pay assessments. An employer
can apply for an exemption from paying assessments using section 111 of the Act.

The process for determining the level of assessments to be made by the employers who must pay is as
follows. First, according to section 112 of the Workers’ Compensation Act, the employer must submit
the following information to the Workers’ Compensation Commissioner:

• the amount of earnings of each of its workers during the past financial year;

• an estimate of the earnings for which it expects to become liable during the current financial year;

• such other information as may be prescribed, or as the Commissioner may require from the
employer in respect of that employer’s workers or their earnings.

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Section 113(1) of the Act provides that the Workers’ Compensation Commissioner shall as soon as
practicable, after receiving the information required, assess the employer concerned to determine how
much its contributions should be.

i. Only accidents arising during the course of employment are covered

For an employee to be able to claim compensation, they must prove that their accident arose during the
course of their employment. Section 41(1) of the Workers’ Compensation Act provides:

If an accident or disease occurs to a worker arising out of and in the course of employment and results
in the worker’s disablement or death, the worker, or if the worker dies, that worker’s dependants shall
be entitled to compensation in accordance with the provisions of this Act.

An accident is considered to have arisen out of and in the course of employment if it would have been
considered to have arisen had the act not been done in contravention of the law or without their
employer’s instructions and the act was done for the purposes of and in connection with the employer’s
trade or business.4 This will be the case notwithstanding the fact that the worker was, at the time when
the accident happened, acting in contravention of the law applicable to their employment or in
contravention of any instructions issued by or on behalf of the employer, or notwithstanding the fact
that they were acting without the instructions of their employer.

An accident that happens while a worker is, with the express or implied permission of their employer,
travelling as a passenger by any vehicle to or from their place of work is considered to arise out of and
in the course of their employment, despite the fact that the worker is under no obligation to their
employer to travel by that vehicle.5

In addition, an accident happening to a worker in or about the premises at which they are for the time
being employed for the purposes of their employer’s trade or business is considered to arise out of and
in the course of their employment if it happens while they are taking steps during an actual or supposed
emergency at those premises:

• to rescue, succour, assist or protect persons who are, or are thought to be or could possibly be,
injured or imperilled, or

• to avert or minimise serious damage to property

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 ii. Compensation under the Workers’ Compensation Act
Section 65 of the Workers’ Compensation Act provides that the liability to pay compensation must be
paid by either the Workers’ Compensation Commissioner or the employer individually. A worker (or
their dependants, if the worker dies) who is disabled or dies from an accident due to the work or arising
out of and in the course of their employment is entitled to compensation unless it is proved that the
accident was attributable to the serious and wilful misconduct of the worker.

Nevertheless, the misconduct notwithstanding, the compensation will be payable if the accident results
in serious permanent disablement. Disablement in relation to a worker has been defined as disablement
which results in the loss or diminution of wage-earning capacity or in the reduction of the chances of
obtaining employment.

Compensation is also payable where an employee has died in consequence of an accident, leaving as
his dependant his widow or a child or any dependant wholly dependent on him; or in respect of his
death, if the worker dies more than 12 months after the accident, unless it is proved that the accident
directly caused the death or was the principal contributory cause of death.7

For workplace injuries, compensation is payable either by the employer individually liable or by the
Commissioner. An injury has been defined in the Workers’ Compensation Act as a personal injury and
includes contracting a disease. When calculating the compensation, the earnings of the employee are
used and considered. Section 2(1) defines ‘earnings’ as: the average remuneration of a worker at the
time of an accident calculated in the manner provided in section sixty-seven.

Section 79(1) of the Workers’ Compensation Act provides that the earning of a worker shall be
computed in a manner best calculated to give the monthly rate at which the worker was remunerated by
the employer at the time of the accident or incidence of the disease concerned.

Therefore, when calculating compensation, it is assumed that the employer would not have been
unemployed and been in indefinite employment up until his retirement. The compensation award will
also not consider periods taken as annual or sick leave. However, several things are excluded from the
earnings of the employee during the period. These are as outlined in section 79(3), namely

(a) remuneration of intermittent overtime;

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 (b) casual payments of a non-recurrent nature;

(c) sum paid by an employer to a worker to cover any special expenses incurred by the worker on
account of the nature of his work;

(d) ex-gratia payments, whether made by the employer or other person;

(e) sum paid under any provident fund;

(f) payment by way of pension;

(g) special cash payment, other than normal leave pay made when the worker is going on leave;

(h) housing allowance or the cost of any food or quarters supplied by the employer; or

(i) cost of living allowance.

In Reba Industrial Corporation Limited v Nicholas Mubonde, the court was adamant that the calculation
of compensation must not include out of- pocket expenses but payments for taxi fares and the cost of
care for the injured employee when calculating the compensation. Whereas the court was generous in
holding that the employee could claim maintenance costs, the authors submit that this may not have
been correct, for the following reasons.

Section 79(3)(i) of the Workers’ Compensation Act provides that an employee cannot claim the cost-
of-living allowance because it is assumed that this cost will be considered and form part of the
compensation for loss of future or prospective earnings. The principles in the statute also resonate with
the common-law principle of damages that seeks to compensate an injured party and put them in the
position they would have been in had the breach or damage not occurred – and not penalise the guilty
party and unjustifiably enrich the injured party.

Secondly, because future earnings are meant to cover what an employee would have used to sustain
themselves, it would be unjustified to award further damages for maintenance when the damages cover
these expenses. It is therefore submitted that to include the costs of maintenance will unjustifiably enrich
the employee because damages for future loss encompass what they would have earned had the injury
not happened, and it is assumed they would have used that money to sustain themselves.

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Thirdly, the damages for care should be awarded only if the employee can prove that they will incur
additional costs for their care due to their permanent disability. However, even in such a situation the
costs for care are provided for in section 101 of the Workers’ Compensation Act.

An employee is entitled to recover these as medical aid expenses and, according to the law, where an
employee incurs medical costs, these must not be included when calculating the compensation.

In Reba Industrial Corporation Limited, the court also held that income tax and pension contributions
should be deducted from the amount of compensation to be given. This decision that pension
contributions can be deducted when calculating the loss of future earnings is difficult to understand,
because the entire premise of pension contributions is that an employee contributes so that they can
receive a pension on their retirement.

An employee pays pension contributions to NAPSA and any private pension so that they receive a
retirement pension. Therefore, excluding pension contributions means that the court should have
included the retirement pension that the employee would have received had the accident not occurred –
and this pension should include employer contributions.

Furthermore, section 79(3)(h) of the Act provides that any employer who supplies food or quarters, or
both food and quarters, to a worker is entitled to receive periodic payment and is entitled to be refunded
by the worker for the cost, as determined by the Commissioner, of such food or quarters. In addition,
the Commissioner may deduct from any moneys payable to the worker an amount equal to such cost
and pay such amount to the employer.

Section 72 provides for the amount of compensation payable for the death of a worker and to whom the
compensation should be paid. The recipients of the compensation range from the widow or invalid
widower to children and other dependants. If a widow or invalid widower who is receiving a pension as
a dependant remarries, the pension payable to her or him ceases with effect from the date of marriage,
but any allowances payable to the children of the deceased continue to be payable.

In order for compensation to be paid, notice of the accident causing disablement or death of the worker
must be given by or on behalf of the worker, or a dependant of such worker, to the employer as soon as
reasonably possible after the occurrence of the accident. The claim must be lodged within 12 months
after the date of the accident or death.10 However, failure to give such notice will not bar the right to
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compensation if there is proof that the employer had knowledge of the accident from any other source
at or about the time of the accident.

Failure to give such notice will also not bar the right to compensation if, in the opinion of the
Commissioner, either the fund or the employer individually liable were not, or would not be, seriously
prejudiced by such failure or defect if notice or an amended notice were then given, or if such inaccuracy
was the result of a mistake, absence from Zambia, or some other reasonable cause.

Section 140 of the Act provides that if any benefits have been paid that were not due under the provisions
of this Act, the Commissioner may recover the amount of such benefits either by civil action or by
deduction from any benefits to which the worker or any dependant has or may become entitled under
this Act.

Any compensation granted after the occurrence of the accident in respect of which such compensation
is payable must not be assigned or charged, attached by order of the court or set off against any debt of
the person entitled to such compensation. This is provided for so that the Workers’ Compensation
Commissioner or the employer individually liable may recover from any compensation payable to a
worker, either wholly or partly, any amount which has (with the approval of the Commissioner or of
such employer) been advanced to such worker subject to its being repaid out of such compensation.

iii. Calculating compensation when the employee commences a civil suit against
their employer
As highlighted earlier, an employee can pursue a civil claim directly against their employer for a
workplace injury or accident. On the question of claiming compensatory damages for personal injury
for any party who causes injury (in most cases, the employer during the course of employment), the
Supreme Court in Reuben Nkomanga v Dar Farms International Limited11 developed a practice of
what damages can be claimed. The Supreme Court provided the following guidance:

… the principle is that in every case of personal injuries, there are two main factors which have to be
taken into account in assessing damages. On the one hand, there is the personal injury itself, rising from
the loss of a limb or other part of the body to slight cuts or bruises and involving not only pain and
hardships but also loss of the pleasures of life. On the other hand, there is the financial loss … In a claim
for damages for personal injuries, the Court will usually deal with the claim under the following heads;
that is to say
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 i. Pain and suffering;

ii. Loss of amenities

iii. Permanent disability

iv. Loss of future or prospective earnings.

The above guidelines will therefore guide a court when an employee directly sues their employer for
damages for personal injury at work. These principles were considered and applied in the employment
context in the seminal cases of Reba Industrial Corporation Limited v Nicholas Mubonde12 and China
State Construction and Engineering Corporation Zambia Limited v Mwape Kaimba.13

In awarding damages for personal injury, the court will consider claims for:

• Pain and suffering – according to Reba Industrial Corporation Limited v Nicholas Mubonde,14
pain and suffering damages are subjective. They are awarded for pain that the claimant feels
consequent to an injury, both in the past and into the future. The level of damages will depend
upon the duration and intensity of the pain and suffering.

• Loss of amenities – these are damages for the loss or reduction of the employee’s mental and/or
physical capacity to do the work and activities that they used to do before the personal injury.

• Permanent disability – When considering damages for permanent disability, the court will
consider the extent and percentage of the permanent disability.

• Loss of future prospective earnings – these are very difficult to calculate because of the difficulty
of producing evidence about the future with so many uncertainties, such as what the employee’s
future earnings would have been but for the workplace injury. To address this difficulty, an
employee must produce evidence showing the likely pattern of future earnings if they had not
been injured and the likely pattern of the future earnings of the claimant given the fact that they
have now been injured as a result of the employer’s negligence.

In China State Construction and Engineering Corporation Zambia Limited v Mwape Kaimba15 the
Supreme Court provided that if the employee proves there earning capacity has reduced, they are entitled
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to damages depending on the extent and duration of their reduced earning capacity. The limitation on
this specific head of damage is the uncertainty about the precise length of the time the disability will
last and the uncertainty about the precise pattern that their future earnings would have followed but for
the injury or disability. This uncertainty notwithstanding, the court can still make an assessment of
probable loss.

In Reba Industrial Corporation Limited, the Court of Appeal endorsed the view that the courts must
assess the probable loss by applying an appropriate multiplier. The multiplier is a number that represents
an estimate of the number of years the employee would have worked had the injury not occurred. This
number is chosen by considering the employee’s age and life expectancy.

Once a multiplier is chosen, the court will then estimate the projected income of the employee. The
courts decide on this amount by looking at the industry or business the employee is engaged in and the
average salaries of more senior people if it is assumed that the employee would have been promoted.

When calculating future loss, the courts will only consider the average remuneration of a worker at the
time of an accident or disease. The court will not consider additional expenses in the calculation of
future loss. For example, in Reba Industrial Corporation Limited, the employee sought to include his
taxi fares and maintenance and care costs as future loss. The Court of Appeal dismissed these claims. It
is submitted that this is also in line with section 79(3) of the Workers’ Compensation Act, which
excludes benefits such as a housing allowance and a cost of living allowance when calculating
compensation. Therefore, there is some reconciliation between statutory and civil liability for accidents.

The number chosen as the multiplier is then multiplied by then the estimated average salary to determine
what the gross future loss would be. However, the court will deduct amounts that the employee would
have paid as monthly pension and income tax. Once these amounts are deducted, the net figure will be
the final figure of future loss to be awarded.

Section 79(3)(f) of the Workers’ Compensation Act excludes the payment of a pension benefit from the
calculation of compensation under the Act to take account of the fact that receipt of a pension is not
possible for an injured person. The same approach to civil liability should have been adopted by the
court.

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Where the court permits an employee to claim both directly from their employer and from the Workers’
Compensation Control Fund Board, the amount that will be granted by a court will be reduced, taking
into account any compensation granted by the Workers’ Compensation Fund Control

Board. In Reba Industrial Corporation Limited,16 the employee succeeded with claims for pain and
suffering, loss of amenities, permanent disability and future loss. However, the award was reduced to
take into account the fact that the Workers’ Compensation Fund Control Board would provide the
respondent with medicated soap, linen, a special bed and medical or surgical requirements for the rest
of his life.

Where an employer engages a contractor, any worker engaged to do such work is deemed to be a worker
of the principal until the contractor has been assessed as an employer and has paid all assessments due
by them to the fund for the current year.17

Finally, it is important to note that section 38(4) of the Employment Code Act explicitly provides that
where an employee receives compensation under the Workers’ Compensation Act, the entitlement to
wages payable during sick leave will be reduced to take into account the compensation paid.

iv. Medical aid

Section 101 of the Workers’ Compensation Act provides that the Commissioner or the employer must
defray any expenses reasonably and necessarily incurred by a worker as the result of an accident arising
out of and in the course of their employment in respect of the following:

(a) dental, medical, surgical or hospital treatment;

(b) skilled nursing services;

(c) the supply of medicines and surgical dressings;

(d) travelling and subsistence in connection with the worker’s journey to and from and treatment
in a place either within or outside Zambia where he was directed by his medical practitioner to go
for treatment; or for the obtaining of any artificial limb or apparatus referred to in paragraph (e);

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 (e) the supply, maintenance, repair and renewal of artificial limbs and apparatus necessitated by
the accident and the repair or replacement of artificial limbs or apparatus used by a worker in the
course of his employment and damaged or destroyed as the result of an accident.

As can be seen, transport and subsistence in connection with the worker’s journey to and from treatment,
in a place either within or outside Zambia (where the worker was directed by a medical practitioner to
go for treatment), are also covered under the expenses referred to above. In Reba Industrial Corporation
Limited v Nicholas Mubonde,18 the employee claimed travel to and from the hospital for medical
treatment and hence claimed taxi fares.

The court held that the permanently disabled employee had claimed these expenses as part of his loss
of future or prospective earnings. The fees and charges for medical aid for a worker are in accordance
with the approved charge list or scale that the Minister of Labour and Social Security prescribes from
time to time.

e) The National Health Insurance Act No. 2 of 2018

The National Health Insurance Act seeks to provide for universal access to quality, insured healthcare
services, as well as to provide for the financing of the national health system in Zambia. The Act creates
a compulsory National Health Insurance Scheme. This new scheme will be part of the effort to move
towards universal health coverage, achieve better health outcomes and develop a sound and sustainable
healthcare financing strategy. The National Health Insurance

Scheme must pursue the following objectives:

• to provide improved access to quality health services to all citizens of Zambia in a timely
manner and without financial hardship at the time of illness;

• to mobilise equitable, efficient and sustainable financial resources that complement existing
tax and external funding sources for improving health systems performance;

• to pool risks and funds through the creation of a single fund, contribute to reducing inequities,
sustain social cohesion and build a healthy workforce, leading to improved economic growth,
reduced poverty and the improvement of the prosperity of the nation.

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Subscription to the National Health Insurance Scheme is mandatory for all citizens or residents above
the age of 18, including employees, members of pension schemes and self-employed people. Employers
must also register their employees with the scheme, pay monthly contributions and deduct a contribution
from employees’ salaries to contribute to the scheme.

Furthermore, pension schemes must register their members with the scheme. However, mentally or
physically disabled persons, indigent persons and people above the age of 70 may be exempted from
subscribing to the scheme.

Once members are registered, they will be issued with membership certificates and cards. In addition,
accredited healthcare providers can apply to the National Health Insurance Fund to be paid the cost of
the healthcare given to a registered member of the National Health Insurance Scheme.

Only accredited healthcare providers will be able to submit claims to the Health Insurance Fund when
a member uses their services for healthcare. Furthermore, once accredited, healthcare providers must
comply with the national quality assurance systems set by the National Health Insurance Management
Authority, which is responsible for administering the scheme.

Very importantly, the Act provides for the extension of healthcare and medical benefits to those
employed in the informal economy. Since the enactment of the National Health Insurance Act, all
employees and self-employed persons are obliged to register with and contribute to the National

Health Insurance Management Authority, which administers healthcare for all in Zambia. The inclusion
of ‘self-employed persons’ and the need for all people above 18 to register in terms of the Act was
probably intended to cover the vast majority of people who are employed in the informal sector but who
previously lacked access to medical care.

The establishment of the National Health Insurance Scheme is a progressive and radical step by the
Zambian government, aimed at improving financial protection, the provision of equitable, efficient and
sustainable financial resources for improving health systems performance and quality healthcare,
sustaining social cohesion and building a healthy workforce. All of these factors should lead to improved
economic growth and contribute to the overall prosperity of Zambia. The major design of the planned
National Health Insurance Scheme has been completed, with comprehensive healthcare benefits and a
phased approach planned to achieve universal coverage.
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Lastly, it should be noted that section 94 of the Employment Code Act provides that employers must
provide employees with medical attention and medicines and, where necessary, transport to a health
facility during the illness of the employee. This statutory right co-exists together with any benefits under
the National Health Insurance Act. This is because section 4(1) of the Employment Code does not
relieve any person, employer, employee, pension scheme or healthcare provider of any duty or liability
imposed on them by any other written law or limit any powers conferred on a public officer by any
written law.

Where an employer has its own medical scheme or allowance system, they would have fulfilled their
obligation under section 94 of the Employment Code Act; but the employer with such a scheme must
still subscribe its employees to the National Health Insurance Scheme.

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 UNIT 7: THE NATIONAL PENSION SCHEME ACT

7.1 Introduction
The definition of ‘pension’ under Article 266 of the Constitution includes a pension,
compensation, gratuity or similar allowance in respect of a person’s service.

Article 189 of the Constitution provides that if a pension is not paid on the last day of duty, the
employer must keep the employee on the payroll until full payment of the pension is made.

7.2 The legal framework

According to the National Pension Scheme Act, 60 years of age is the pensionable retirement age
and a member of the National Pension Scheme must retire and receive benefits upon reaching this
age, provided they have made at least 180 contributions to the pension scheme during their
working life.

However, an employee can retire at 55 years (early retirement) or at 65 years (late retirement)
provided they inform their employer of their intention to retire at that age and the employer agrees.
Whereas retiring early at 55 years is a statutory right, if an employee wants to retire before the
early retirement age of 55 years, they have to apply to the employer first, and the employer must
consent at least one year before they reach 55 years.

If the employer chooses to accept the application for early retirement, the employee cannot
subsequently decide otherwise and continue working. An employee can also choose to continue
working beyond the mandatory retirement age and retire at any stage before they reach the age of
65, provided their employer consents. However, when this occurs, the employee will be treated
like any other employee, including being subject to disciplinary proceedings and may lose the
right to their retirement benefits (except accrued benefits or rights) if they commit a serious
offence prior to final retirement.

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 UNIT 8: COLLECTIVE LABOUR LAW

8.1 Introduction
Collective labour law is the organised relations between the employers and employees. It focuses
on relationships on a collective level: in other words, a number of people are acting together
(collectively) to influence this relationship. This includes bargaining between employers & trade
unions; strikes & lock outs (negotiations).

8.2 The Industrial and Labour Relations Act Chapter 269

The industrial and Labour Relations Act regulates collective labour relations including disputes
that may in employment relationships. The Act regulates the interplay of employment relations
affecting employees and employers and their representative bodies, and the Government.

The Objects of the Act are specified as follows:

▪ To revise the law relating to:-

- The formation of trade unions, employer’s representative organizations.

- Recognition and collective agreements,

- Settlement of collective disputes, strikes, lockouts,

- Essential services and the Tri-partite Consultative Labour Council,

- The Industrial Relations Court,

▪ Repeal and replace the Industrial Relations Act,

1990 Deal with matters related to the above.

8.3 Brief background

The development of trade unions in Zambia is derived from the experience of the industrial
relations in Britain but with minor modifications. When Copper industry began to assume a sizable
proportion in the 1920s after ten (10) years on a small scale, African labour were recruited for

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 simple and unskilled jobs while Europeans were recruited for and did all skilled labour. As the
struggle for independence grew stronger not only in Zambia but in Africa as a whole and indeed
worldwide, the British labour government changed the legislation in order to facilitate the
formation of African Trade Unions. Formation of African trade unions however, came much later
on in the 1940s after a long struggle. In February 1948, the first branch of the African Mineworkers
Union came into being at Nkana Mine.

Zambia Congress of Trade Unions (ZCTU) is the dominant central trade union federation in
Zambia. ZCTU was founded in 1964. The ZCTU was created by the government to replace the
former United Trade Union Congress. It has 33 affiliated unions.

After independence, the first Act dealing with this issue was the Industrial Relations Act 1971. The
subsequent Acts of 1990 and 1993 have retained the broad outlines of the 1971 Act. What has been
removed from the 1971 Act? Look at the following aspects:

a. The removal of the works council.

b. The continuity of the Zambia Congress of Trade Union under section 28.

c. The continuity of the Zambia Federation of Employers.

The only difference is that the two organisations no longer hold the position of being the peak
associations for the unions and the employers. The inferences to these organisation as being peak
has been eliminated. This was a major reversal from the original principles in the Zambian
Industrial Relations system in place since 1965. The concession followed intense debates in 1991
as to what constraints should be placed on freedom of association in the industrial sphere. The new
innovation is the establishment of the tripartite consultative labour council established under Part
X S79 of the Industrial and labour relations Act Chapter 269 of the laws of Zambia. The main
purpose of the setting up the Council is to enhance social dialogue between the three principal
parties being: Government; Employers representatives; Employees representative.

Trade unions were even more politically charged to bring in a multiparty democracy in Zambia.
The then ruling government UNIP, saw the this as a formidable enemy politically and tried to

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 weaken the movement by having the check-off system cancelled, and it also tried to divide it. In
1990 UNIP National Council to repeal the

1971 Industrial Relations Act that compelled trade unions to affiliate to ZCTU. However, in
1990/1991, the labour movement reached its peak in popularity and supported the Movement for
Multi-party Democracy (MMD) in the struggle to reintroduce plural politics in Zambia.

Since collective labour law entails bargaining collectively, historically collective bargaining is an
accommodation between two warring parties the employers and the employees. When the
employees collect themselves into trade unions to confront an employer and usurp their interests
better because of the strength in numbers. These two forces are always at loggerheads.

The terminology was invented in Britain and first used by a legal historian in 1891. Although there
was evidence of by nascent traders it is basically a product of industrial revolution. Major trade
unions developed in the wake of the industrial revolution. There were laws which reflection the
pre-industrial revolution days. From 1824 workers became free to form trade unions with the
repeal of Anti Combination Legislation. Nevertheless it was not until 1950 when trade unions
acquired immunity to be able to organise and form themselves and participate in collective
bargaining. Collective Bargaining in England developed outside legal framework. Essentially this
was because courts were hostile toward trade unions for a long time.

8.4 Trade Unions

The field of industrial relations (also called labour relations) focuses at the relationships between
employers and employees or indeed the government. It is vital to note that industrial relations are
basically meant to enhance industrial harmony.

From Fillippo (1980)’s definition of a trade union which is “an organization of workers formed to
protect, promote and improve through collective action, the social, economic and political interest
of its members”,

8.6 Five (5) Main Reasons and Activities of Trade Unions

• Tribal Associations

• Industrial conflicts

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 • Political campaigns

• Foreign Labour movements

• British Labour Administration

8.7 The Roles of Trade Unions

It is clear that the main objective of trade unions is to achieve the economic wellbeing of its
members by way of wages, working period and conditions. The following are a summary of the
roles of the trade unions:

Traditionally, the role of Trade Unions is to promote and protect the interest of the employees
(members). This is not confined to the term of employment only such as wages, leave pay and
conditions of services but also, the way in which individuals are treated in such aspects of
employment like redress for grievances, discipline and redundancies. (CONDITIONS AND FAIR
LABOUR PRACTICES).

Trade unions also exist to let management or employers know that they will have from time to time
have to offer an alternative view on key issues affecting the employees’ employment.

Trade unions secure through collective bargaining improved terms and conditions of service to
their members.

The other role of trade unions is to PROVIDE WHERE POSSIBLE, LEGAL OR FINANCIAL
ASSISTANCE to their members.

8.9 The Functions Of The Trade Unions:

The following are the main functions of the trade unions:

Power - to protect and support the individual(s) by providing a collective strength to act as
countervailing force to the employer and a pressure group within society.

Economic Regulation – to maximize the wages and conditions of employment to the members
within the framework of the law and contract of employment.

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 Job Regulation – to establish a joint rule making system which both protects the members from
arbitrary management actions and allows them to participate.

Member Services – in decision making within the organization for which they work; to provide a
range of benefits or services to the individual members in comparison with others.

Social Change – to express the cohesion, aspiration or political ideology of their membership in
order to develop a society which reflects this view.

Self-Fulfilment – to provide a mechanism whereby, individuals may develop outside the immediate
confines of their jobs and participate in decision making process.

8.10 A Constitutional Protection Of Freedom Of Association

Article 21 of the Constitution of Zambia, 1996 stipulates except with his own consent, no person
shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his
right to assemble freely and associate 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. This right is only
limited where there is need to protect the interests of the public and the rights or freedoms of others
(keep this in mind when studying the application of the Industrial Labour and Relations Act CAP
269, strikes and essential employees).

8.11 Freedom Of Association Under International Law

The International Labour Organisation (ILO) is the only tripartite United Nations agency that
brings together governments, employers and workers of 187 member States, to set labour
standards, develop policies and devise programmes promoting decent work for all women and men.
The unique tripartite structure of the ILO gives an equal voice to workers, employers and
governments to ensure that the views of the social partners are closely reflected in labour standards
and in shaping policies and programmes. The main aims of the ILO are to promote rights at work,
encourage decent employment opportunities, enhance social protection and strengthen dialogue on
work-related issues.

ILO standards are characterised by two features, namely, 'universality' and 'flexibility'. This entails
that conventions are established in such a way that they could be applied universally to all states,
but that they are flexible enough to be adapted to and applied in all states irrespective of their level
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 of development. Zambia has ratified Freedom of Association and Right to Organise Convention
87 of 1948 and Right to Organise and Collective Bargaining Convention 98 of 1949 in 1996.

Article 2 of the ILO's Freedom of Association and Right to Organise Convention 87 of 1948
provides that workers without distinction whatsoever have the right to establish and, subject only
to the rules of the organisation concerned, to join organisations of their own choosing without
previous authorisation. Article 3 provides that trade unions and employers' organisations have the
right to draw up their constitutions and rules, to elect their representatives in full freedom, to
organise their administration and activities and to formulate their programmes. Moreover, article
3 also directs that public authorities must refrain from any interference which would restrict this
right or impede the lawful exercise thereof.

Article 4 of the ILO's Right to Organise and Collective Bargaining Convention 98 of 1949 provides
that measures appropriate to national conditions should be taken, where necessary, to encourage
and promote the full development and utilisation of machinery for voluntary negotiation between
employers or employers' organisations and workers' organisations, with a view to the regulation of
terms and conditions of employment by means of collective agreements.

8.12. The Legislative Framework Of Freedom Of Association

The Industrial Labour and Relations Act CAP 269 gives effect to the constitutional and
international right of freedom of association. This right is available for both the employer and the
employee. In terms of trade unions, this is extensively elaborated in section 5.

Section 5 states that all eligible employees have the right to take part in the formation of a trade
union and to be a member of a trade union. This is so, as long as it is within the sector, trade,
undertaking establishment or industry in which that employee is engaged as per amendment by Act
8 of 2008. Further, employees have:

a. the right to take part in the activities of a trade union such as becoming an officer of the trade
union;

b. the right to obtain leave of absence from work in the exercise of the rights provided for
in paragraph;

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 c. the right not to be prevented, dismissed, penalised, victimised or discriminated against or deterred
from exercising the rights conferred on the employee under the Act or any other law relating to
employment;

d. 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 an essential service,

or if on request the employee voluntarily waives the right specified under this Act.

It should be noted that the right to freedom of association also entails that an employee can choose
not to be a member of a trade union or relinquish membership. The Industrial Relations Court
elaborated more on freedom of association in the recent case of Mbewe v Lumwana Co. Ltd.
(IRC/SL/03/2018) [2018] ZMIC 292 (27 July 2018). It is highly vital that you read this case.

8.13 Procedure for remedies

Section 5 also provides relief in situations of dismissals or victimisation. Such an employee can
invoke administrative channels available in the work place. If unavailable, the employee may,
within 30 days lay a complaint before the Court. The Court may, if it finds in favour of the
complainant:

a. grant to the complainant damages or compensation for loss of employment;

b. make an order for re-employment or re-instatement;

c. make such other order as it may consider appropriate in the circumstances.

Pay critical attention to Zambia National Provident Fund Board v Musukwa (1995) where there
was no remedy of reinstatement. Critique the judgement.

8.14. Application Of Cap 269

In terms of section 2, the Act does not apply to the Zambia Defence Force, the Zambia Police
Force, the Zambia Prison Service, the Zambia Security Intelligence Service, those in management
and Judges, registrars of the court, magistrates and local court justices. Should these employees be
excluded from exercising their right? See the advice the ILO Committee on Freedom of association
gave to Zambia regarding this. Revisit the constitutional limitations.

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 Apart from the above, only eligible employees can join trade unions. Section 3 defines “eligible
employee any employee other than a member of the management of an undertaking. Thus, once an
employee becomes a member of management, he or she is no longer an eligible employee (section
4). Where there is a disagreement as to whether or not an employee is a member of management,
either party to the disagreement may refer the matter to the Commissioner for determination. Any
party aggrieved by the decision of the Commissioner may, within 14 days of such decision, appeal
to the Court.

8.15. Registration Of Trade Unions

Section 7 provides that every trade union must be registered under this Act with the Commissioner
within six months from the date of formation. If the Commissioner refuses to register a trade union,
he/she must notify the trade union of such refusal and the trade union must be dissolved within six
months therefrom. According to section 9, a body cannot not be registered as a trade union with
the Commissioner unless it has a membership of not less than 50 persons. Thus, an application to
register as a trade union should be in the prescribed form signed by one hundred supporters. It
should also be accompanied by a copy of the constitution of the proposed trade union and should
submitted to the Commissioner for registration. Moreover, notice of every application for
registration as a trade union should be published in three consecutive issues of the Gazette.
Objections to the registration of any body as a trade union are to be in writing and shall be lodged
with the Commissioner not later than ninety days of the last notice appearing in the Gazette. The
Commissioner may then register the union, after considering the objections and on being satisfied
that the body proposed to be registered as a trade union has complied with the provisions of
registration under the Act.

8.16 Legal Personality Of Trade Unions

A trade union is not a body corporate and therefore can only sue or be sued through its trustees
according to the provisions of s 26 and 27 of the Industrial and Labour Relations Act. 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.

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 8.17 Amalgamation Of Trade Unions
Section 15 of the Industrial and Labour 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.

8.18 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 and Labour Relations (Amendment) Act
No. 30 of 1997, the Zambian Congress of Trade Unions was continued, and still is, in existence as
an incorporate body. The Congress deemed to be registered as a federation of trade unions under
the Act. I other words, it is one of the federations of trade unions in existence in Zambia.

8.19. 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.

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 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.

8.20 Collective Bargaining

Collective bargaining may be defined as a process of joint or co-determination through negotiating
by the bargaining unit of conditions or terms of employment. This means that it is the carrying out
of negotiation between the trade unions representing the employees and the employer(s) or their
representatives. 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.

In terms of section 3 of the ILRA, “collective bargaining” means the carrying on of negotiations
by an appropriate bargaining unit for the purpose of concluding a collective agreement;

If parties are in agreement, the process of collective bargaining invariably results in a collective
agreement. On the other hand, a collective dispute exists in the event that the parties fail to reach
an agreement.

8.21 The Function Of Collective Bargaining

The first and most important function of collective bargaining is maintenance of industrial peace.
The two sides are able to advance their interest through a peaceful negotiations and keeping of
peace.

Collective Bargaining facilitates joint regulations at the work place or labour participation in
management. When employers agree to negotiate with trade unions, it entails that there are areas
of management decision making which will not be done unilaterally and only with consultation

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 with trade unions. There are reciprocal consultation sessions. However, there is consultation in
which the employer asks unilaterally but does not have to take that opinion. Essentially industrial
democracy becomes a fundamental aspect.

At a technical level, there are two important functions of collective agreements

1. Procedural function or contractual function which is the function of regulating the

relationship between trade unions and associations of employers;

2. The normative or the rule making function which consists of the terms and conditions
applicable to individual workers; the idea of the joint employment relationship backed by certain
kinds of sanctions.

Therefore, collective bargaining performs the role of law making. The social and legal effect of a
collective agreement is twofold:

(a) It is a peace treaty

(b) It is a law making treaty – it creates terms of employment.

8.22. Registration Of Employer

The fact that an employer should be a registered one, is a prerequisite for the start of collective
bargaining. An employer in terms of section 63 have at least twenty-five

(25) employees to register with the Commissioner of Labour as an employer.

8.23. Recognition Agreement

A recognition agreement is a prerequisite aspect that enables the unions to be recognised as
employee representatives by the employer. It is an agreement that names the union or unions who
have rights to represent and negotiate on behalf of employees in that workplace. It will make clear
whether a particular union has sole negotiating rights for a bargaining group, or whether the
employer recognises two or more unions jointly.

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 Section 64 requires that a registered union and employer should enter into a recognition agreement
no later than 3 months. Failure to do so will be regarded as a collective dispute. Why do you think
this is so?

A formal recognition agreement provides a framework for industrial relations within an

organisation. It sets out the rules and procedures to be used by the union and the employer in
carrying out consultation, collective bargaining and representation. Section 65 requires that such
an agreement should be in writing and be signed by both parties. Moreover, it should include the
fact that the employer has recognised the union as a representative and bargaining agent. Lastly, it
should include rules relating to grievances and the bargaining procedure.

8.24. The Bargaining Process and Collective Agreements

Section 66 makes it mandatory for the bargaining unit to enter into collective bargaining for the
purpose of concluding a collective agreement within three months from the date of the registration
of the recognition agreement. A collective agreement is a written contract between the employer
and a union that outlines many of the terms and conditions of employment for employees in a
bargaining unit. The terms and conditions are reached through collective bargaining between the
employer and the union.

Collective agreements will often contain a set of principles which are relevant to the parties. A well
drafted ‘principles and values’ section in a collective agreement should reflect the organisation’s
business plan and will aim to ensure that the parties cooperate for mutual benefit. Employers will
want to ensure that they retain the ability to manage the business in a way that enables them to
operate quickly and decisively should the need arise. A trade union would wish to ensure that,
whilst it is important for any organisation to be able to operate quickly and decisively in business,
this should not be to the detriment of employees. It is in this section of the agreement that the
Company and the union would seek a commitment to resolve any differences in a constructive
manner with the objective of avoiding any industrial action, if at all possible.

It is important for the parties to consider those issues which they are prepared to consult about and
those matters which will be a matter of negotiation for the parties. In relation to those issues which
the employer agrees to consult upon, these are likely to address the organisation’s consultation
obligations as set out in employment statutes, for example, collective redundancy situations,

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 business transfers, health and safety issues and matters affecting pension schemes. An employer
should also consider entering into sensible consultation concerning changes to working practices
as a matter of good industrial relations.

Section 68 provides for the requirements for a valid collective agreement. In order to be valid,
every collective agreement must contain the following mandatory clauses referred to as the
statutory clauses: the date on which the agreement has come into effect; the period for which it is
to remain in force; and the methods, procedures and rules for reviewing, amending, replacing or
terminating the collective agreement. The parties must lodge 5 copies to commissioner (section
70) who will lodge the agreement to the Minister of Labour.

Before its repeal, the Industrial Labour 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. Section 71
gives powers to the Minister may accept or decline registration of the agreement if the requirements
in section 68 are not complied with. The agreement is then returned to the parties. Further, section
71 extends the decline by the Minister, where there are reasons outside the scope of the Act that
justify the Minister’s decision. Look at the holdings by the Industrial Relations Court and the
Supreme Court in He Council of the University of Zambia v University of Zambia and Allied
Union Workers (2003) SCZ.

8.25. Incorporation Of The Collective Terms

Where an employer recognises the union for collective bargaining purposes and there is a collective
agreement in force, when endeavouring to establish precise terms and condition of employment
governing that individual, it is important to have due regard to the terms of any collective
agreement as well as to the individual contract of employment. This is so, irrespective of whether
or not the collective agreement between the employer and the union is legally enforceable. This is
because a collective agreement often contains the details of how negotiations between the employer
and the union will be conducted in respect of terms and conditions of employment for the relevant
employees.

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 In some cases the agreements will be incorporated into the individual’s contract without the need
for express agreement by the parties to the contract (employee and employer). 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 and becomes a term of the
contract of employment. In Kamayoyo v Contract Haulage (1982) ZR 13, it was held that a
collective agreement is a legally binding contract between the parties and anything done outside
these contractual agreements are of no legal effect. In the case of Pamodzi Hotel v Godwin Mbewe
(1987) Z.R. 56 (S.C.) 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. Revisit more case law on termination and dismissals to see the effects of
collective agreements.

Incorporation can occur in three ways:

• express incorporation;

• implied incorporation; and

• incorporation by way of agency.

21.1 Express incorporation

For a collectively bargained term to be expressly incorporated into an individual contract of

employment, there has to be some clear reference, either in the contract of employment or the
Collective Agreement, that specific collectively bargained terms shall form part of an individual’s
terms and conditions of employment.

On the face of it this would seem relatively straightforward but there are often problems of
interpretation.

The Court of Appeal in the case of Henry and Others v London General Transport Services Limited
2002 IRLR 472, considered carefully the individual contract of employment, the terms and
conditions of employment and the effect of a collective agreement.

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 London General Transport employed 1500 staff at different garages. The employers and the
recognised trade union, the Transport and General Workers Union entered into negotiations
relating to changes in terms and conditions of employment. These negotiations resulted in a
framework agreement which contained details of reduced rates of pay and terms and conditions
which were generally less favourable to the work force. The union conducted a number of work
place meetings and thereafter informed the employers that the majority of the 1500 employees
affected had consented to the new terms. There was no ballot of employees despite the fact that
this was the previous practice on other occasions when negotiations had resulted in contractual
change. The Company then drew up notices outlining the changes in pay and conditions and these
were displayed at the various workplaces. Employees were then asked to sign individual statements
of changed terms and conditions of employment. With effect from 5th November 1994 new terms
and conditions came into effect at the Stockwell Garage. This was the case even though a number
of employees had refused to sign statements accepting the new terms. The Company received a
petition signed by more than 130 of the staff at Stockwell two days later expressing their
dissatisfaction with the framework agreement, but employees continued to work under protest.
There was a further petition submitted at the Stockwell Garage again by approximately 130 staff
in December 1994 and the workforce requested a ballot in respect of the new terms and conditions,
but no ballot was held.

Ultimately proceedings were commenced in the Employment Tribunal in November 1996 some
two years later. The claim was an unlawful deduction from wages application. In the first instance
the Employment Tribunal upheld the complaint of the employees. The Tribunal were of the view
that, notwithstanding that there had been a tradition of collective negotiation between the Company
and the union, the agreement that had been reached between the union and the Company dealt with
fundamental changes including a reduction in pay and it was insufficient to establish that
fundamental changes could be incorporated into individual contracts by virtue of collective
bargaining, notwithstanding the existence of the framework agreement. The Tribunal was looking
for ‘strict proof’ that employees had accepted the terms and conditions. It appears that the Tribunal
was looking for evidence of a ballot. No ballot was conducted and the Tribunal was not satisfied
with the framework agreement that had been reached between the Company and the union.

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 The Employment Appeal Tribunal upheld an appeal against the decision by the employers. The
EAT concluded that the Tribunal was wrong to conclude, because the changes envisaged by the
employer were ‘fundamental’ i.e. they related to pay, that it was necessary to demonstrate strict
proof, by reference to custom and practice, that employees had accepted the changes. The EAT
also considered that the petitions in themselves were not sufficient evidence that employees had
not accepted the terms and conditions of employment which, when one considers the size of the
workforce involved, this was probably the correct decision to have reached. The employees
thereafter appealed to the Court of Appeal and on 21st March 2002 the Court of Appeal dismissed
the appeal. The Employment

Tribunals were wrong in holding that the framework agreement that had been reached was
insufficient evidence of the custom and practice which was capable of affecting fundamental
change to the terms and conditions of employment. The Court of Appeal accepted that it is
necessary when establishing a custom and practice for there to be clear evidence of practice and
that any argument in support of custom and practice should be properly scrutinised and tested.

However, the responsibility on an employer to demonstrate strict proof in these circumstances is

not required according to the Court of Appeal. When establishing custom and practice it has to be
more likely than not that a custom and practice exists on the balance of probabilities. A further
point considered by the Court of Appeal in this case was the fact that the employees themselves
had worked for two years under the new terms and conditions, notwithstanding that they were
maintaining that the new terms and conditions had not been accepted and that they were working
under protest.

In this regard the employees relied on the petition. However, the very fact that the employees had
worked under the new rotas and terms of employment, as had all of the other employees who had
not signed the petition, was evidence that they had accepted the revised terms.

8.26 Implied incorporation

In the absence of an express agreement, it is possible to infer agreement to incorporate the
appropriate collectively bargained term. The distinction between express incorporation and implied
incorporation is that express incorporation would ordinarily require the individual employment
contract to expressly state that certain of its terms are regulated by a collective agreement. Implied

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 incorporation is where there is a clear custom and practice that terms of collective agreements are
incorporated into individual contracts. In the case of Henry and Others v London General Transport
Services Limited [2002] EWCA 488 it is in effect a combination of express and implied
incorporation. In that case, it was a framework agreement expressly agreed between the Company
and the union which intended to vary the terms and conditions of employment of the work force.
The union took the framework agreement to employees and indicated thereafter that the majority
of employees had accepted the terms of the framework agreement. As stated above, the Court of
Appeal was satisfied that the union had authority to bind the employees to the terms of the
framework agreement and were satisfied that the union’s word that a majority of the employees
had accepted the terms of the framework agreement was sufficient. The Tribunal therefore took
this view irrespective of the fact that the terms of the framework agreement had not been signed or
expressly accepted by individual employees.

8.27 Incorporation by way of agency

Under the laws of agency, for a union member to be bound by an agreement entered into by a
union, the union must have authority to negotiate on the member’s behalf. This can be actual or
ostensible authority, once again express or implied. Implied authority is that which is inferred from
the conduct of the parties and the circumstances of the case. In the case of Harris v Richard Lawson
Autologistics Ltd 2002 [IRLR] 476, the Company and the union entered into a Closed Shop
Agreement covering employees of a Depot where Mr Harris was employed.

Clause 5 of the Agreement under the heading of ‘Recognition’ dealt with the position of the Shop
Steward. It stated ‘…the Company will recognise the Shop Steward and the Deputy Steward,
formally elected by the members of the Depot, as the official representatives of the union. The
Stewards agree to act in a responsible manner and confine themselves to specific issues relating to
the welfare of their members’. There was an agreement reached between the Company and the
Shop Steward in 1996 to resolve problems over holiday pay. Mr Harris was a lorry driver employed
by the Company and in 1997 he volunteered for redundancy.

His holiday pay was calculated by reference to the 1996 Agreement between the Company and the
Shop Steward. He contended that this Agreement was not binding and that he was entitled to be
paid in accordance with earlier agreements which would have meant that he would have received
a further £4,290 by way of additional holiday pay. There was an issue before the County Court as
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 to whether or not a Shop Steward had actual or ostensible authority to sign the 1996 Agreement
and bind the drivers. Judge Poulton dismissed the claim on the grounds that the Agreement was
‘well within’ the Shop Stewards implied or ostensible authority. This point was presented to the
Court of Appeal but the appeal was rejected and the Court of Appeal supported the view of the
County Court Judge. They agreed that the Shop Steward had apparent or ostensible authority to
negotiate revised terms of employment and, as a result, the terms of the agreement negotiated by
the Shop Steward applied to Mr Harris’ holiday pay entitlement.

8.28 The Right to Strike and Lock Out

The strike or lockout may, subject to section 75 of the ILRA, commence ten days following the
decision to do so and may continue for an indefinite period, during which time the dispute remains
unresolved. Where the parties do decide to proceed with a strike or lockout, the parties must not
do so unless a simple majority decision of the employees present and voting is made in favour of
the strike or lockout.

A lockout refers to the exclusion of employees by the employer from the workplace until certain
terms and conditions are agreed to. It involves the closure of a place of employment, the refusal by
an employer to continue to employ any number of its employees, or the suspension of work.

A strike, on the other hand, is carried out by the employees and refers to the cessation of work by
a group of employees acting in combination, or a concerted refusal to continue to work. It should
be noted that the ILRA permits a strike only where the employees are involved in a collective
dispute relating to new, improved or changed conditions of employment.

An employer cannot dismiss an employee involved in such trade union activities. The aim of a
strike or lockout is to coerce or convince the other party to accept terms or conditions that will
affect employment. It is important to emphasise that employees should go on strike only where the
purpose is to resolve a collective dispute relating to the terms and conditions of employment.

Employees cannot go on strike where the purpose is to merely disrupt the employer’s business.
Where employees embark on a strike to further such an ulterior motive, they will be in breach of
the implied duty of working in good faith and serving the employer faithfully. Where employees

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 commit an act intending to cause loss to the employer or vice versa, they will be held liable for
their conduct.

8.29 Essential services

Essential services are those services that, if interrupted, would endanger the life, personal safety or
health of the whole or part of the population. Those engaged in essential services do not have the
right to strike owing to the important and crucial nature of their services to society. The ILRA
forbids an employer or any other person from taking part in a lockout and any employee from
taking part in a strike that is likely to hinder the performance of an essential service. In Zambia,
section 107(10) of the ILRA defines ‘essential services’ as meaning any service relating to the
generation, supply or distribution of electricity; any hospital or medical service; any service
relating to the supply and distribution of water; any sewerage service; any fire brigade; or any
service for the maintenance of safe and sound conditions in a mine or underground working and
drainage, shafts and shaft installations or machinery and plants; and such other service which the
Minister may, in consultation with the Tripartite Consultative Labour Council, prescribe by
statutory instrument as being an essential service.

Activity 6.0

The jurisdiction of the tri-partite Consultative Labour Council has been a

subject of contested discourse in both the courts of law and the world of
academia. To what extent does the subject merit involved reflection or
consideration?

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 8.30 The Industrial Relations Court

Provides for the continuation of the Industrial Relations Court, its specialized jurisdiction its
composition, proceedings judgments, rules and related matters. You should pay particular
attention to the judgments/orders that the court can make. How do they relate to other courts in
which damages are the main claims in the court process?

Provides for General matters in the industrial and labour relations sphere. Matters covered in this
section among many others are immunities of trade union officials, congress, and associations,
and federations, conspiracy in collective disputes, prosecution of offences, essential service
certificate, restriction of discrimination in employment, conduct of ballots, and regulations by
minister.

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 SELF – ASSESSMENT QUESTIONS

1. Freedom of assembly and association is essential for amicable employer

employee relations. Discuss the legal basis for this freedom.

2. The expansive jurisdiction of the Industrial Relations Court makes it a

special court. Discuss this statement with the aid of case law

3. The Industrial and Labour Relations Act, No. 8 of 2008 broadens the
powers of the Labour Commissioner in the formation of trade unions.
Discuss the impact of the changes on the freedom of association in the
workplace.

4. Discuss the change in the definition of “Management” in the Amendment

Act No. 8 of 2008. Do you consider it to be supportive of the freedom of
association in the workplace?

5. The provision of Section 5 and 108 entrench statutory protections against

unfair dismissal identify the main protections and discuss the adequacy of
these provisions.

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 BIBLIOGRAPHY
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Mwenda W.S. (2011).Employment law in Zambia: Cases and Materials. Lusaka, UNZA Press.

Constitution of Zambia, Chapter 1, Laws of Zambia

Employment Code Act, No. 3 of 2019

Factories Act, Chapter 441, Laws of Zambia

Industrial and Labour Relations Act, Chapter, 269, Laws of Zambia.

Industrial and Labour Relations (Amendment) Act, No.8 of 2008

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STATUTES
Constitution of Zambia, No. of 2016

Employment Code Act, No 3 of 2019

Employment (Special Provisions), Chapter 270, Laws of Zambia

Factories Act, Chapter 441, Laws of Zambia

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Industrial and Labour Relations Act, Chapter, 269, Laws of Zambia.

Industrial and Labour Relations (Amendment) Act, No.8 of 2008

Minimum Wages and Conditions of Employment Code Act, Chapter 276, Laws of Zambia.

National Pension Scheme (Amendment) Act, No. 7 of 2015

National Pension Scheme Act, No. 40 of 1996

Occupational Health and Safety Act, No.36 of 2010, Laws of Zambia

Pension Scheme Regulations Act of 1996

Workers’ Compensation Act, Chapter 271, Laws of Zambia

Zambia Institute of Human Resource Management Act No.11 of 1997

Pension Scheme Regulations Act of 1996

TABLE OF CASES
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.)

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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

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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 (Wolverhampton)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

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

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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

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