LABOUR AND INDUSTRIAL

RELATIONS
SESSION FOUR: INCIDENCES OF EMPLOYMENT AND MINIMUM
CONDITIONS
Remuneration, Hours of Work and Overtime

• 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 bring an
action against the employer for breach of contract.
Remuneration, Hours of Work and Overtime

• In Zambia, statutory law has stepped in to protect the wages of

employees.
• Section 48 of the employment Act 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.
Remuneration, Hours of Work and Overtime

• 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.
Remuneration, Hours of Work and Overtime

• it is mandatory for wages to be paid at regular intervals being not

later than the fifth day following the date upon which they fall
due.
• In Zambia most employees’ contracts of service provide for the
receipt by the employees of their wages on a monthly basis.
• Reality on the grond is different.
• A lot of employers do not pay employees their wages as and when
they fall due.
Remuneration, Hours of Work and Overtime

• Some of the worst culprits in this regard have been local

authorities some of whom have reportedly not paid their
employees for periods of up to two years.
• The declining economy has been cited as the main reason for the
failure by employers to pay their employees wages on time.
• Closures of businesses and retrenchments have also resulted from
the worsening economic climate in the country.
Medical Attention and Paid Sick Leave

• Before the Employment (Amendment) Act, 1997, was enacted,

every employer was obliged to use his best endeavours to provide
a sick employee with medical attention and medicines.
• However, with the amendment of section 43 (1) of the
Employment Act, the position presently is that an employer is
under no obligation to provide his employees with medical
attention and medicines.
Medical Attention and Paid Sick Leave

• However, if there is an agreement or contract of employment or

the general conditions of service relating to an organisation, the
employer may provide his employee(s) with medical attention and
medicines and where necessary, transport to a medical institution
during the illness of the employee.
• An employee who through no fault of his, is unable to execute
normal duties due to an illness, entitled, upon production of a
medical certificate, to paid sick leave at full pay for the first
three months and thereafter at half pay for the next three
months.
Medical Attention and Paid Sick Leave

• The employer may discharge the employee on the

recommendation of a registered medical practitioner or institution
if the employee does not recover after six months.
• A female employee who has a sick child, is entitled to leave of
absence without loss of pay to enable her nurse the sick child who
has been hospitalized.
• Leave granted to a female employee under such circumstances is
not to be deducted from such employee’s accrued leave.
Housing

• Before the enactment of the Employment (Amendment) Act, No.

15 of 1997, every employer was under an obligation to cause every
employee in his service to be adequately housed at all times and
at his own expense.
• Where he was unable to provide adequate housing for employees
in his service, he had a duty to pay such employees rent allowance
in lieu of such housing.
Housing

• However, with the amendment of section 41 of the Employment

Act, the position at present is that an employer has the discretion
to provide to an employee either housing, a loan or advance
towards the purchase or construction of a house.
• He may also guarantee a facility for a mortgage or house loan on
behalf of an employee or pay housing allowance as agreed under a
collective agreement, contract of employment or general
conditions of service of that institution or organisation.
Housing

• Section 41 was amended apparently with the intention of

empowering Zambian workers by enabling them to obtain loans or
mortgages to purchase or build their own houses.
• Before then, there was no incentive for most employees to
purchase or build their own homes since it was mandatory for
employers to provide accommodation to employees or pay rent
allowance in lieu thereof.
• Thus the amendment has brought some relief to employers who
can now invest the resources now being saved into more productive
ventures.
Paid Leave

• Section 15(1) of the Employment Act, makes provision for holidays

with full pay (paid leave) after six months’ continuous service at
the rate of two days per month to be taken at such times as
agreed by the parties.
• However, the parties may agree to a higher number of paid leave
days per month.
• Paragraph 5 of the General Order also has similar provisions on
leave (referred to as annual leave).
Paid Leave

• An employee is entitled to annual leave at the rate of two days

per month, but the employer is given the right to give reasonable
consideration to the exigencies and interest of his business in
agreeing to the dates when such leave may be taken.
Paid Leave

• Under the General Order, a female employee who has completed

two years of continuous service from the date of first engagement
is entitled to ninety days paid maternity leave.
• Medical certificate signed by a registered medical practitioner
must be presented for her pregnancy.
Paid Leave

• Medical employer is prohibited from terminating the services of a

female employee or imposing any other penalty or disadvantage
upon such employee within six months after delivery, for reasons
connected with such employee’s pregnancy.
Paid Leave

• Similar provisions on maternity leave are also found in section 15A

of the Employment Act.
• However, the General Order provides for ninety days’ maternity
leave, the Employment Act mentions leave of twelve weeks, which
adds up to eighty-four days.
Paid Leave

• It should be obvious to the discerning reader that this variance

disadvantages female employees covered by the provisions of the
Employment Act since they have less maternity leave days than
those covered by the General Order.
• Since the Employment Act has more coverage than the General
Order, more female employees are covered by the provisions of
the Employment Act than those covered by the provisions of the
General Order.
Paid Leave

• The result is that more female employees are entitled to eighty-

four days’ maternity leave than those entitled to ninety days
maternity leave.
• However, section 15A (1) of the Employment Act allows any
employer to give maternity leave to eligible female employees on
terms that are more favourable than those provided by the
Employment Act.
• Thus any employer may give his female employees maternity leave
of ninety days or more with the full support of the law.
Paid Leave

• Apart from the above variance in the provisions of the

Employment Act and the General Order, in relation to the number
of maternity leave days, in all other respects, the provisions on
maternity leave in the Employment Act and the General Order, are
similar, except that the Employment Act specifically makes it an
offence for any employer to contravene the provisions of the
section.
Paid Leave

• Section 15B (2) of the Employment Act clearly provides that in the
absence of any proof to the contrary, an employer will be deemed
to have acted in contravention of the law if he terminates the
contract of service or imposes any penalty or disadvantage upon a
female employee within six months after delivery.
• Any employer who is found guilty of contravening the provisions of
section 15B (2) is guilty of an offence.
Paid Leave

• This provision was clearly intended for the protection of female

employees from victimization by employers on grounds related to
their pregnancies. This provision enables female employees to
perform their biological functions without fear of losing their jobs
as long as they confirm to the requirements of the law.
Retirement and Redundancy Benefits

• Retirement age in Zambia is fifty-five years for both male and

female employees.
• An employee, who has served an employer for not less then yen
years and has attained the age of fifty-five years, is entitled to
three months’ basic pay for each completed year of service.
Retirement and Redundancy Benefits

• However, where an employer has established a pension scheme

approved by the Minister, the retirement benefits are in
accordance with the scheme and not the General Order.
• An employee who retires in agreement with his employer before
reaching the age of fifty-five or whose employment is terminated
on medical grounds is entitled to the same benefits as he would
get after attaining the age of fifty-five years.
Retirement and Redundancy Benefits

• An employee whose contract of service is terminated by reason of

redundancy is entitled to at least one month’s notice and
redundancy benefits of not less than two months’ pay for each
completed year of service.
Retirement and Redundancy Benefits

• Section 13 of the Employment Act places an obligation on the

employer to pay the expenses and repatriation under the following
circumstances:
• Whenever an employee has been brought from a place within
Zambia, to a place of employment, the employer, on the expiry of
the period of service should pay for repatriation as specified in the
contract of service.
• On the termination of the contract of service due to the inability,
refusal or neglect of the employer, the employer should comply
with all or any provisions of the contract.
Retirement and Redundancy Benefits

• On the termination of the contract of service by agreement

between the parties or on the termination of contract of service
by reason of the inability of the employee, the employer should
comply with the provisions of the contract.
Retirement and Redundancy Benefits

• Section 14 (1) of the Employment Act provides that the employer

shall, whenever possible, provide transport or pay for public
transport for the employee to be repatriated.
• This section was worded in this manner in recognition of the fact
that while it might not be possible for some employers due to lack
of resources, to provide transport repatriate their employees, they
could do so through the use of public transport.
Retirement and Redundancy Benefits

• By placing an obligation on the employer to pay the expenses of

repatriation whenever an employee has been brought from a place
within Zambia to a place of employment by the employer, section
13 of the Employment Act envisages a situation where the
employee is brought to a place of employment from another place
within Zambia.
Retirement and Redundancy Benefits

• An employer will thus, not be obliged to pay the expenses of

repatriation for an employee recruited in the same locality as the
place of employment.
• For example, an employer is not obliged to pay the repatriation
expenses of an employee who was recruited in Lusaka to work in
Lusaka.
Retirement and Redundancy Benefits

• Paragraph 12 of the General Order, has more specific provisions on

repatriation.
• It provides that an employee, together with the family of the
employee, shall be transported by the employer to the employee’s
place of recruitment or paid a repatriation allowance by the
employer equal to the current cost of travelling by public
transport and the direct route to the employee’s place of
recruitment of the employee:
Retirement and Redundancy Benefits

• a. Is discharged on medical grounds;

• b. Is declared redundant;
• c. Retires; or
• d. Dies in service, in which case the benefits shall accrue to the
family of the deceased employee.
Lunch Allowance

• Paragraph 15 of the General Order, makes it mandatory for an

employer to pay a lunch allowance of Two hundred Kwacha (K200)
per month unless he provides a canteen where employees may
obtain wholesome and adequate meals free of charge.
• It is noteworthy that the Employment Act has no such provisions.
• In practice, however, it is doubtful that many employees are
provided with lunch allowances except may be in organisations
where collective agreements that address this issue exist.
Lunch Allowance

• Even though the General Order makes the above provision for
lunch allowance, it should not take a genius to realize that the
amount involved is ridiculously low and therefore, a mockery.
• The amount translates to a small amount per day, an amount of
money that is insufficient to even purchase of loaf of bread in
present day Zambia.
Lunch Allowance

• It is thus the author’s view that, other than provide for a lunch
allowance of K200 per month, the General Order should have done
away with the allowance altogether and made it mandatory for
employers to whom it applies, to provide wholesome and adequate
meals free of charge to their employees.
• This would have ensured healthier, more productive employees.
Funeral Allowance

• The Employment Act is silent on funeral allowance.

• Paragraph 13 of the General Order, however, provides that in the
event of the death of an employee, spouse of registered child, the
employer shall provide a standard coffin, fifty Kwacha cash and
one 50 kilogram bag of mealie meal.
Funeral Allowance

• The provision on funerals recognizes the importance that our

society accords to funerals and the need to assist bereaved
families during times of bereavements.
• The class of workers to which the minimum wages and conditions
of Employment Act applies are the ones most in need of assistance
during times of bereavements.
• However, while the idea behind the provision of a funeral
allowance commodities, most inadequate, to say the least.
CASE LAW ON PROVISION OF HOUSING

Joel Lumbama v. Medical Stores Limited, SCZ Appeal No. 22 of

1995 (Unreported)
• The appellant, an employee of the respondent company, was
provided with accommodation.
• The respondent company started experiencing economic problems
and decided to give up some of the houses it was renting.
• The appellant asked to vacate the house he was occupying in order
to allow the company to allocate the house to a senior member of
staff.
HOUSING

• appellant took the matter to court and applied for an injunction.

• The trial court considered the affidavit
• On the evidence and arguments the court came to the conclusion
that the company was entitled to request the appellant to vacate
the house.
• The appellant appealed to the Supreme Court.
Held.

• SC considered the conditions of service and entirely agreed with the

conclusion that giving of accommodation was discretionary.
• The respondent was not compelled to continue to give the appellant
accommodation.
• The learned trial judge did not misdirect himself.
• The appeal is dismissed.
• During the appeal it was brought to our attention of SC that the appellant had
already moved out of the house.
• The matter therefore became academic.
• Appeal Dismissed.
CASE LAW ON THE DISCRIMINATION ON
BASIS OF SEX AND MARITAL STATUS.

• Edith Solomon v. Duncan Gilbey and Matheson (Zambia)

Limited, Complaint No. 17 of 1985 (IRC) (Unreported)
• The respondent company engaged the complaint as a
Receptionist/Typist.
• She had the responsibility of carrying out various secretarial
duties.
• A l etter emanating from the MD terminated her contract of
employment.
• The letter stated that there were complaints on her performance
DISCRIMINATION ON BASIS OF SEX AND
MARITAL STATUS.

• Complainant filed a complaint in the Industrial Relations Court

under section 114 (2) of the Industrial Relations Act alleging that
her services were terminated on the ground of her status as a
woman and that the Managing Director did not appreciate her
inter-tribal marriage to her husband.
• She prayed for a remedy of reinstatement.
DISCRIMINATION ON BASIS OF SEX AND
MARITAL STATUS.

• Respondent denied all these allegations.

• Respondent averred that complainant was even taken to college to
improve her performance.
• Complainant was dismissed due to poor performance and
absenteeism.
• Complaint testified that her services were terminated while on
maternity leave
DISCRIMINATION ON BASIS OF SEX AND
MARITAL STATUS.

• Complaint alleged that the MD was upset with her for having
introduced to his niece to a boyfriend of a different tribe who
made her pregnant and subsequently died from the same.
• The SC dismissed the appeal.