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

SAIPAR Case Review SAIPAR Case Review

Volume 5

Issue 1

Special Edition in Honour of Chief

Justice Mumba Malila (April 2022)

Article 20

4-2022

Mumba Malila, An Advocate for the vulnerable worker: Tiger Mumba Malila, An Advocate for the vulnerable worker: Tiger

Chicks (t/a Progressive Poultry Limited) v. Tembo Chrisford and Chicks (t/a Progressive Poultry Limited) v. Tembo Chrisford and

Others SCZ Appeal No. 06/2020 and Kasembo Transport Limited Others SCZ Appeal No. 06/2020 and Kasembo Transport Limited

v. Collins John Kinnear SCZ Appeal No. 89/2010 v. Collins John Kinnear SCZ Appeal No. 89/2010

Chanda Chungu

University of Zambia

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Recommended Citation Recommended Citation

Chungu, Chanda (2022) "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,"

SAIPAR Case Review

: Vol. 5: Iss. 1,

Article 20.

Available at: https://scholarship.law.cornell.edu/scr/vol5/iss1/20

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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

Facts

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 with the Employment Code Act

which applies to the majority of employees in Zambia, are the law that provide conditions of

employment.

The two cases involved an interpretation of the General Order and their applicability to various

groups of employees. This Order is designed for the most vulnerable employees such as general

workers, office clerks, cleaners, receptionists and typists, shop workers and domestic

employees. In essence, these sought to determine which employees are covered by the Orders

and whether they are entitled to benefits under the said Orders.

The Supreme Court in Kasembo Transport Limited v. Collins John Kinnear dealt with an

employee who was employed as a bookkeeper but enjoyed conditions that were comparably

superior to those enjoyed by many employees that carried a similar job title or description. The

issue was whether his retirement benefits could be calculated in terms of the General Order.

In Tiger Chicks, the Supreme Court was tasked with determining whether employees

categorised as a hatchery attendant, poultryman and woman or vaccinator, qualified as

employees covered by the General Order and thus entitled to benefit from the minimum

conditions of employment provided.

Holding

It is worth noting that whereas the General Order identified a group of employees to whom it

applies, the statutory instrument does not apply to any group of employees who work for the

government, have better terms and conditions in their own contract, or are management

employees. In Kasembo Transport, there was a misconception that because he earned far more

than the minimum wage, his contract had better terms and conditions and that he was in

management and such excluded from benefitting

The holding in Kasembo Transport was that an employee is entitled to receive all benefits in

terms of the General Order if he qualifies as one of the employees identified in the Order. This

is the case notwithstanding the fact that he earns far more than the minimum wage provided

for in the statutory instrument. The idea of the Order is that he must benefit from all the benefits

and entitlements under the Order. In other words, his entire contract must embody and have

better terms for the Order to not apply. If it only has better terms with respect to some aspects

LLB (Cape Town), LLM (Cape Town), MSc (Oxford), lecturer in law at the University of Zambia.

of employment and not others, an employee can rely on the Order to the extent that his contract

has less favourable or non-existent terms on a particular subject.

In both Tiger Chicks and Kasembo Transport, the Supreme Court held that in such

circumstances, it is imperative to examine the employee’s job description to properly ascertain

his job description and designation.

In Kasembo Transport after examining the job description and peculiar circumstances of the

case, the court concluded that the bookkeeper, despite enjoying superior conditions of service

fitted into the category of qualified clerks and was thus entitled to have his benefits calculated

in terms of the General Order as it applied to him. In Tiger Chicks, on the other hand, the

employees employed hatchery attendant, poultry persons or vaccinators did not qualify under

any category of workers identified under the General Order and such could not benefit from

them.

Significance

Prior to the decision in Tiger Chicks, the Supreme Court in Jennifer Nawa v Standard

Chartered Bank Zambia Plc,

Mambilima DCJ (as she was then), delivering the judgment of

the Supreme Court stated that:

the group of workers envisaged under the Act are those for whom there is no

adequate provision regulating their wages and conditions of employment. These

are the 'protected workers' referred to in Section 2 of cap 276

, and they are the

ones 'to whom a statutory order made under this Act applies.' This law was

meant to protect such workers because they are prone to being exploited by their

employers. For those who are represented by a trade union, Section 3(1) has

categorically provided that “…no such order can be made before consulting

such trade union.” …The appellant had a clearly defined salary and conditions

of service. She could not therefore be a 'protected worker' within the meaning

of the Act, and she could not be said to have belonged to a 'group of workers' to

whom orders passed under Section 3(2) of cap 276, would apply.

The Jennifer Nawa case underscored the fact that the Ministerial Orders made in terms of the

Minimum Wages and Conditions of Employment Act do not apply to every employee in

Zambia. The Court was at pains to emphasise the fact that the group of workers envisaged

under the Act are those for whom there is no adequate provision regulating their wages and

conditions of employment and are generally more vulnerable and need protection.

The Supreme Court’s decision in Tiger Chicks in a landmark judgment had the opportunity to

give further context and clarity to the decision in Jennifer Nawa on the applicability of these

statutory instruments. In this case, the Supreme Court dealt with employees who were

employed in various capacities ranging from either hatchery attendant, poultry persons or

vaccinators. The employees were summarily dismissed for participation in illegal strike action

and sued the employer claiming the payment of housing, lunch and transport allowances in

terms of the General Order. The Supreme Court in a judgment delivered by Malila JS (as he

was then) held that: -

SCZ Judgment No 1 of 2011.

Minimum Wages and Conditions of Employment Act.

Our view that parties to employment contract are still generally entitled to exercise their

freedom to determine their own terms and conditions of employment. Where, however,

an employee falls within the protected categories, then that freedom to contract is

circumscribed to the extent that the conditions to be agreed upon should not be less

favourable than the minimum prescribed in the order made pursuant to the Act. The

logic of what we are saying is that if an employee is not in the protected category, he

cannot use the Act or the Order to introduce additional incentives not agreed upon.

In a powerful statement from the Supreme Court, this decision is resounding in that it confirms

that only where an employee is identified and expressly covered by the Order made by way of

statutory instrument will they apply to them. The Supreme Court in confirming the decision of

Jennifer Nawa confirmed that the statutory instruments or Ministerial Orders do not apply to

all workers but only apply to the groups of employees identified by the Minister and expressly

covered.

An employee is only entitled to rely on the Orders if they fall into one of the protected workers.

Where an employee is protected, an employer must endure that the terms and conditions of

service are not less favourable than what is provided in the Order. However, if the employee is

not covered, they cannot rely on the Order and their terms and conditions will be governed by

freedom of contract to the extent that the Employment Code Act or any other law provides

better terms and conditions.

The Supreme Court did state that it is possible for an employee’s work designation or job

description to be re-categorised into one of the identified categories in the Ministerial Orders

– however this must be done with caution and only for good cause, after a careful examination

of the circumstances of the case. For example, in Kenny Sililo, the employee who was

designated as an account was redesignated as a qualified for good reason based on his duties

and hob description and could thus benefit from the package prescribed under the General

Order.

However, in this case, the Supreme Court stated that the employees could not be redesignated

to fall within the ambit of the Orders. Malila JS (as he was then) guided that:

It is beyond debate that hatchery men, poultrymen and vaccinators are not mentioned

in any of the four categories of the Schedule to the General Order. This much is factual

and it is uncontroverted. For the Act to apply to them, there ought to be a basis for

bringing them into one or another of the job categories mentioned in the Act. In other

words, notwithstanding their work designations, which do not answer to any of the

categorised positions, it is possible for good cause,as happened in Kenny Sililo v. Mend

A Bath, and in Kasembo Transport v. Kinnear for non-categorised employees to be

recategorised into one or another of the identified categories.

Therefore, as they did not fall within the ambit of workers covered by the General Order, they

could not claim the allowances. Therefore, the courts will critically examine whether an

employee is covered by the Ministerial Orders or redesignate them based on their job

description and the facts and circumstances of the case. Only where the court is satisfied that

the employee falls within the categories of workers envisaged under the Ministerial Orders will

they be entitled to the benefits under them.

The Tiger Chicks decision that brilliantly supplemented the previous decision in Jennifer

Nawa, by clarifying that these Orders enacted by statutory instrument such as the General Order

cannot apply to all employees if that was the intention, they would have express said so. The

fact that the General Order and the other Orders a schedule outlining a specific group of

workers means that these orders only apply to those identified and outlined in each Order. This

is important and should always be kept in mind when considering the Ministerial Orders.

The Jennifer Nawa and Tiger Chicks decisions are important because they highlight the fact that the

Ministerial Orders made in terms of the Minimum Wages and Conditions of Employment Act do not

lay down general conditions of service for all workers in the country. These Orders apply to the specific

group of workers, deserving of protection as they are not adequately provided for.

The Supreme Court in Kasembo Transport Limited looked at the facts and evidence before it

and appropriately held that in the circumstances of the case, the employer was covered by the

Order as his job designation was compatible with the identified workers in the General Order.

This was the case notwithstanding the fact that he enjoyed seemingly good conditions of

service because as the Supreme Court correctly observed, the key test is to identify whether the

employee is covered and protected by the Order rather than looking at his terms and conditions

of service. It is only after determining whether the Order applies should a Court look to the

terms and conditions, and this will only be done to determine whether or not the employer is

providing the employee with the appropriate basic terms and conditions prescribed.

Both the Kasembo Transport and Tiger Chicks decisions are important in demonstrating that

where an employee fits the description of a worker covered by the Order, they shall be entitled

to full protection of the conditions in the said Order, unless their contract provides more

favourable terms, or they are otherwise excluded. The Kasembo Transport and Tiger Chicks

cases are also authority for the position that an employee’s job description and the facts of the

case will be carefully ascertained to determine if an employee is one of the employees covered

by the General Order or not. This is important because it shows that the court can go beyond

the employee’s job title to look at the job descriptions and circumstances to determine whether

the employee is covered and protected by the Ministerial Orders enacted by statutory

instruments.

There is a misconception in Zambia that if an employee enjoys superior remuneration and

conditions of employment, he has been brought outside the realm of the General Order. The

Kasembo Transport case clarifies that this is not the case. According to Malila JS (as he was

then), notwithstanding the salary earned by an employee, an employee is due to enjoy all

benefits in terms of the General Order if he fits into the description of the schedule of

employees that the Order applies to. This gives clarity to the position of vulnerable workers

and their entitlement from the statutory instruments.

In addition to the above, the cases are important for the following reasons. Employment law is

subject to the rules of the law of contract in that the employer and employee are bound to the

rules on freedom of contract. Therefore, they can agree to terms that they see fit to regulate the

employment relationship. This notwithstanding, legislation provides for terms and conditions

of service enjoyed by employees in Zambia. As the Supreme Court in Tiger Chicks (t/a

Progressive Poultry Limited) v. Tembo Chrisford and Others, where the statute provides for

terms applicable to employees, freedom of contract is limited to the extent provides by the law.

Terms imposed by statute can be referred to as ‘default’ rules that apply to all applicable

contracts of employment unless otherwise agreed. The terms provided by the relevant

legislation are regarded as setting out the basic minimum or floor of conditions of employment

for protected employees. Employers are permitted, if not encouraged, to provide better

conditions of service than those set out in the statutes.