Law Commons^™

Liebherr Zambia Limited V. Cleopatra Ng’Andu Mandandi Caz Appeal No. 182/2021, Chanda Chungu

SAIPAR Case Review

No abstract provided.

Toyota Motors South Africa (Pty) Ltd V Numsa Obo Njini And Others (D 692/19 [2022] Zalcd 12 (14 July 2022), Stephen Nkosi

SAIPAR Case Review

This was an application in terms of s 145 of the Labour Relations Act 66 of 1966. Toyota sought to have the decision of the CCMA, ordering the re-instatement of Mr Lungile Njini - then an employee of Toyota for 17 years – be set aside, and that his dismissal be declared fair. The case represents an interesting interplay between the quest for discipline and productivity in the workplace and the right to exercise one’s constitutional right to culture as provided for in s 30 of the Constitution of the Republic of South Africa Act. This note is divided into …

Emporium Fresh Foods Limited T/A Food Lovers Market And Gourment Market Limited V. Kapya Chisanga Caz Appeal No. 44/2021, Chanda Chungu

SAIPAR Case Review

The Respondent, Mr. Kapya Chisanga was alleged to have disclosed information to people, without authority. Following this, he was summarily dismissed. The Respondent challenged his dismissal in the High Court alleging that his dismissal was wrongful, unlawful, and unfair. The High Court held that the Respondent’s dismissal was wrongful, unlawful, and unfair, and granted 24 months salary as damages. The employer subsequently appealed the matter to the Court of Appeal for determination.

The Court of Appeal held that before an employer summarily dismisses an employee, the employee must be subject to a due process. According to the Court of Appeal, …

Zambia Electronic Clearing House Limited V. James Kalengo Caz Appeal No. 239 Of 2020, Chanda Chungu

SAIPAR Case Review

The Court of Appeal’s decision in James Kalengo is crucial because it demonstrates that the concept of a legitimate expectation of renewal, as a principle and concept exists under Zambian employment law. Whilst an employer does retain the discretion to renew a contract of employment or not when it is due to expire, an employee may have a legitimate expectation of renewal if there is any past practice, prior promise or bad faith/mala fides in relation to the renewal.

Mark Tink And Others V. Lumwana Mining Company Limited Caz Appeal No. 41/2021, Chanda Chungu

SAIPAR Case Review

The decision in Mark Tink and Others v. Lumwana Mining Company Limited is an important decision because it clarifies and restates that law that a valid reason, that is substantiated is required when an employer initiates termination of the contract of employment.

This article critiques the approach of the Court of Appeal as it relates to the award of damages. This article seeks to provide clarity as it relates to the award of damages, particularly the way is granted and justified. It is suggested that when the opportunity arises either the Court of Appeal or the Supreme Court should revise …

Standard Chartered Bank Plc V Celine Meena Nair [2019] Zmca 221, Ntemena Mwanamwambwa, Milambo Chibbonta-Pupwe

SAIPAR Case Review

This case is one of a kind and therefore significant for several reasons in the jurisprudence of Zambian Employment Law. The case highlights that the employer-employee relationship is one founded on the implied term of mutual trust and confidence which entails that both parties must accord each other due trust and respect regardless of status.

The decision in this case, sets a clear and stern tone in cases of constructive dismissal bordering on toxicity within the working environment. Thus, employers are put on notice to adhere to their own grievance procedures particularly in cases involving bullying, harassment and victimization such …

Mubita Mwananuka V Armaguard Security Caz Appeal No. 201/2021, O'Brien Kaaba

SAIPAR Case Review

The Court of Appeal of Zambia, in the case of Mubita Mwananuka v Armaguard Security CAZ Appeal No. 201/2021, delivered a Ruling on 3rd August 2022 to divest the High Court General List of jurisdiction over employment matters. I argue that this decision is in clear violation of the Constitution and demonstrates bewildering disregard of precedents by the Supreme Court and the Constitutional Court, which bind the Court of Appeal.

Mp Infrastructure Zambia Limited V. Matt Smith And Kenneth Barnes Caz Appeal No. 102/2020, Chanda Chungu

SAIPAR Case Review

No abstract provided.

Charles Mushitu (Sued In His Capacity As Secretary-General Of Zambia Red Cross Society) V. Christabel M. Kaumba Scz Appeal No. 122/2015, Chanda Chungu

SAIPAR Case Review

An employee worked under a project that terminated and was then placed on unpaid leave for almost nine (9) months when she was appointed to another post in another town, Choma. The issue here was does the employee have any relief for being unpaid for the 9-month period?

The Supreme Court held that the employers conduct amounted to a fundamental breach of contract when the employee was placed on unpaid, forced, indefinite leave. Therefore, due to their failure to pay the employee whilst he was still an employee, the employer not only breached the duty to pay wages, which constitutes …

Kenny Sililo V. Mend-A-Bath Zambia Limited And Spencon Zambia Limited Scz Appeal No. 168/2014, Chanda Chungu

SAIPAR Case Review

The employer and employee had entered a written contract of employment. However, during the employment, a statutory instrument made pursuant to the Minimum Wages and Conditions of Employment Act came into effect. As a result of this statutory instrument, certain minimum wages were prescribed for protected employees, of which the employee in question was one. The employer thereafter offered him a reduced salary as his current salary was above that prescribed by the statutory instrument. The employee complained about the employer’s conduct and declined the offer, as he considered it to be a unilateral alteration of his conditions of service. …

The Correct Procedure For Commencing An Action In The Industrial Relations Division Of The High Court: Edward Chilufya Mwansa And 194 Others V. Konkola Copper Mines Plc Scz Appeal No. 99/2015 And Concrete Pipes V. Kingsley Kaimba And Another Scz Appeal No. 014/2015, Chanda Chungu

SAIPAR Case Review

In Edward Chilufya Mwansa and 194 Others v. Konkola Copper Mines Plc, the Supreme Court dealt with a scenario where several employees had been dismissed and sought to enter an out of court settlement with their employer, through the assistance of the Labour Office. This process lasted over three years

In Concrete Pipes v. Kingsley Kaimba and Another, the Supreme Court dealt with an appeal from a Ruling of the Industrial Relations Court dismissing a preliminary issue in relation to the need to exhaust internal administrative channels before commencing an action before the court.

Rabson Sikombe V. Access Bank (Zambia) Limited Scz Appeal No. 240/2013, Chanda Chungu

SAIPAR Case Review

The employee was employed as a Transaction Officer with effect from the 17th of November 2008. He was suspended from duty on the 15th of May, 2009 following an investigation into the sum of K804 million, unauthorized overdraft on an account held in the respondent's Bank by a company called ZCON,it being alleged that the appellant failed to manage the credit portfolio by not constantly reviewing the overdrawn account, leading to the customer's overdrawn position exceeding the approved limit of K350 million.

It was further alleged that the employee had provided false information that the client had an approved facility …

Mumba Malila, An Advocate For The Vulnerable Worker: Tiger Chicks (T/A Progressive Poultry Limited) V. Tembo Chrisford And Others Scz Appeal No. 06/2020 And Kasembo Transport Limited V. Collins John Kinnear Scz Appeal No. 89/2010, Chanda Chungu

SAIPAR Case Review

Basic conditions of employment refer to minimum conditions of employment that an employer must provide for employees. The law in Zambia has set minimum standards and basic conditions of employment for workers in the Employment Code Act. In addition to the Employment Code Act, specific groups of vulnerable workers have Ministerial Orders in the form of statutory instruments that provide specific basic conditions of employment. These statutory instruments, namely the General Order, Shop Workers Order, Domestic Workers Order and Truck and Bus Drivers Orders provide for the minimum wage and basic conditions of employment for specified, vulnerable workers and together …

Frida Kabaso (Sued As Country Director Of Voluntary Services Overseas Zambia) V. Davies Tembo Scz Appeal No. 04/2012, Chanda Chungu

SAIPAR Case Review

This action concerned an appeal from the Industrial Relations Court where an employee was employed on a permanent contract by Voluntary Services Overseas Zambia as an Administrative Officer on 11th July 1996. He was later promoted to the position of Officer Manager.

In 2001/2002, the employer changed its employment policy from employing staff on permanent terms to employing them on fixed-term contract. By 2008, the employer begun restructuring and informed employees. The employee’s position of Officer Manager was phased out and removed from the employer’s organisational structure, with two positions created, including that of Finance Manager. The employee claimed a …

Chansa Ng’Onga V. Alfred H. Knight (Z) Limited Selected Judgment No. 26 Of 2019, Chanda Chungu

SAIPAR Case Review

An Appellant was employed as the Sectional Leader in the Lubricants Testing Department of the employer’s business. He was subsequently promoted to the rank of Lubricant Testing Manager.

During his employment as Lubricant Training Manager, he was suspended due to being absent from work for five days without his supervisor’s permission. Under the employer’s Disciplinary Rules and Procedures, the penalty for a first offender was a written warning. This notwithstanding, he was dismissed after three weeks, without any formal charges raised against him and his letter of dismissal outlined that he was dismissed for offences for which he was not …

Frida Kabaso (Sued As Country Director Of Voluntary Services Overseas Zambia) V. Davies Tembo Scz Appeal No. 04/2012, Chanda Chungu

SAIPAR Case Review

This action concerned an appeal from the Industrial Relations Court where an employee was employed on a permanent contract by Voluntary Services Overseas Zambia as an Administrative Officer on 11th July 1996. He was later promoted to the position of Officer Manager.

In 2001/2002, the employer changed its employment policy from employing staff on permanent terms to employing them on fixed-term contract. By 2008, the employer begun restructuring and informed employees. The employee’s position of Officer Manager was phased out and removed from the employer’s organisational structure, with two positions created, including that of Finance Manager. The employee claimed a …

Albert Mupila V. Yu-Wei Comp/ Irclk/222/2022, Chanda Chungu

SAIPAR Case Review

An employee was employed on an oral contract of employment since June 2016 by an employer engaged in providing casino services. He was never availed with a copy of his contract and was paid a salary below the prescribed minimum for workers protected by the Shop Workers Order.

During 2021, he raised a complaint relating to his NAPSA contributions and was subsequently summarily dismissed. He commenced an action before the Industrial Relations Division of the High Court seeking the following reliefs:

• Benefits for the years worked;

• Leave days;

• Unfair and wrongful dismissal; and

• Costs and any …

Scorched Border Litigation, Briana Beltran, Beth Lyon, Nan Schivone

Cornell Law Faculty Publications

Each year, employers bring hundreds of thousands of temporary foreign workers into the United States only to return them to their communities of origin when their visas end. During their short months working in the United States—whether in agricultural fields, hotels, traveling carnivals, or private homes—many of these workers experience violations of their rights: wages are stolen, injuries are ignored, and those who complain are punished on the spot or sent home.

Temporary foreign workers who choose to file a lawsuit to vindicate their rights typically do so once they are no longer in the United States, often litigating from …

Prof. E. Clive Chirwa V Zambia Railway & Another (2018/Hp/0578), Kayula James

SAIPAR Case Review

No abstract provided.

Richard Musenyesa V. Indo Zambia Bank Limited Appeal No. 214/2016 (2020), Chanda Chungu

SAIPAR Case Review

In Richard Musenyesa v. Indo Zambia Bank Limited, the Supreme Court dealt with an employee whose conditions of service were altered by their employer. The entitlement to gratuity at the end of the employment relationship was not mentioned in the new conditions of employment despite being in the previous conditions that regulated his employment.

The Supreme Court provided that where acquiescence is intended to be assumed from conduct, credible evidence will have to be led, showing that the employee was by clear notice given by the employer indeed aware of the variation, understood the implications and its full extent, before …

The Fair Labor Standards Act At 80: Everything Old Is New Again, Kati L. Griffith

Cornell Law Review

On the eightieth anniversary of the federal wage and hour statute, the Fair Labor Standards Act of 1938 (FLSA), critics warn that it cannot keep pace with shifting business trends. More and more individuals engage in "contract work," some of which takes place in the much publicized "gig economy." These work arrangements raise questions about whether these workers are "employees," covered by U.S. labor and employment law, or "independent contractors." Subcontracting arrangements, or what some call domestic outsourcing, are also expanding. Indeed, more and more workers in the U.S. economy engage with multiple businesses, raising questions of which of these …

Wrongful Termi(Gay)Tion: A Comparative Analysis Of Employment Non-Discrimination Laws And The Lgbtq+ Workplace Protections In South Africa And The United States, Jared Ham

Cornell Law Review

Although the United States has made great strides toward equality for its LGBTQ+ citizens in recent years, South Africa has demonstrated far greater progress concerning equal protection and employment non-discrimination of its LGBTQ+ citizens. The South African Constitution, South African Constitutional Court cases, and laws passed by the South African Parliament all mandate that LGBTQ+ South Africans be treated equally to their heterosexual counterparts. Discrimination against LGBTQ+ South Africans is expressly forbidden— including in the employment context. The United States still lacks comprehensive federal employment non-discrimination laws or workplace protections for LGBTQ+ individuals. Extending Title VII—either via court decision or …

E-Hailing And Employment Rights: The Case For An Employment Relationship Between Uber And Its Drivers In South Africa, Isaiah J. Marcano

Cornell International Law Journal

South Africa’s Uber dilemma has forced jurists to answer important questions about the country’s largest black-owned sector: the taxi industry. Since the days of apartheid, taxi drivers have struggled to secure their livelihoods. Lamentably, they have found themselves restricted by a legacy of oppression that, despite significant progress, lingers on. As of late, Uber has exploded onto the transportation market, and labor courts must decide whether Uber drivers fit within a system that never contemplated the emergence of gig economy companies. If future jurists continue to draw inspiration from South Africa’s highly progressive constitution, international agreements, and pro-union culture, it …

Evaluating Employment Arbitration: A Call For Better Empirical Research, Samuel Estreicher, Michael Heise, David Sherwyn

Cornell Law Faculty Publications

Since at least 1991, issues surrounding mandatory arbitration of employment and other disputes have intrigued, perplexed, angered, gratified, and confounded academics, politicians, lawyers, and others. As with many legal issues, the first wave of scholarly work centered on the law. As the law has pretty much settled, academics have turned to empirical work, focusing on how employment arbitration works, and how it compares to employment litigation. In part due to pressure from California legislation, the American Arbitration Association (“AAA”), the nation’s leading provider of arbitration services, opened access to its data base. Owing to inevitable data limitations, most analyses have …

Columbia University And Incarcerated Worker Labor Unions Under The National Labor Relations Act, Kara Goad

Cornell Law Review

No abstract provided.

Columbia University And Incarcerated Worker Labor Unions Under The National Labor Relations Act, Kara Goad

Cornell Law Library Prize for Exemplary Student Research Papers

Kara Goad’s research examines the forms and terms of labor that incarcerated workers perform in American prisons, seeking to demonstrate that labor law could provide potential remedies for work-related grievances.

Goad’s research includes traditional statutory and case law analysis along with examinations of prison statistics, National Labor Relations Board (NLRB) decisions and other administrative law materials relating to prisons and labor law. She uses her findings lay out a path for incarcerated workers to potentially unionize under the National Labor Relations Act (NLRA).

The Supreme Court’S Application Of 'Ordinary Contract Principles' To The Issue Of The Duration Of Retiree Healthcare Benefits: Perpetuating The Interpretation/Gap-Filling Quagmire, Robert A. Hillman

Cornell Law Faculty Publications

The United States Supreme Court purported to apply "ordinary contract principles" in its decision reversing the Sixth Circuit Court of Appeals in M&G Polymers USA v. Tackett . The Sixth Circuit had held that plaintiffs, retired employees of M&G, were entitled to lifetime healthcare benefits under their union's agreement with M&G. According to the Supreme Court, the Sixth Circuit wrongly relied on a false set of "inferences" established in International Union v. Yard-Man, Inc. to find that "in the absence of extrinsic evidence to the contrary, the provisions of [the collective bargaining agreement] indicated an intent to vest …

Law-And-Economics Approaches To Labour And Employment Law, Stewart J. Schwab

Cornell Law Faculty Publications

This article describes the distinctive approaches that law and economics takes to labour and employment law. The article distinguishes between ‘economic analysis of law’ and ‘law and economics’, with the former applying economic models to generally simple legal rules while the latter blends messier institutional detail with legal and economic thought. The article describes three eras of law-and-economics scholarship, recognizing that economics teaches that markets work and markets fail. Era One emphasizes that labour laws and mandatory employment rules might reduce overall social welfare by preventing a benefit or term from going to the party that values it most highly. …

Incomprehensible Discrimination, James Grimmelmann, Daniel Westreich

Cornell Law Faculty Publications

The following (fictional) opinion of the (fictional) Zootopia Supreme Court of the (fictional) State of Zootopia is designed to highlight one particularly interesting issue raised by Solon Barocas and Andrew Selbst in Big Data’s Disparate Impact. Their article discusses many ways in which data-intensive algorithmic methods can go wrong when they are used to make employment and other sensitive decisions. Our vignette deals with one in particular: the use of algorithmically derived models that are both predictive of a legitimate goal and have a disparate impact on some individuals. Like Barocas and Selbst, we think it raises fundamental questions about …

Sixth Circuit Undermines Labor Statute, Angela B. Cornell

Cornell Law Faculty Publications

No abstract provided.