THE Lusaka High Court has granted former Zambia Railways chief executive officer, Professor Clive Chirwa, K15 million relief after he sued the company and the Attorney General for wrongful dismissal.
The Court has ruled that it was wrong for president Michael Sata to retire Prof Chirwa in public interest when he was not a public servant.
According to a statement of claim filed in 2018, Prof Chirwa was seeking a declaration that his suspension from duty and subsequent retirement by president Michael Sata on June 7, 2013 was ultra vires the Zambia Railways terms and conditions of employment and service for management employees and general staff regulations and disciplinary code and procedures, thereby illegal.
He stated that he was appointed CEO of ZRL on November 7, 2012, adding that his appointment was adopted by the company when a contract of employment dated January 11, 2013 was executed and expected to run for five years before he was suspended on April 22, 2013 by late president Sata and placed on half salary to facilitate investigations by the Anti-Corruption Commission.
He stated that his suspension did not state any specific allegations and the nature of investigations but that later on June 7, 2013, Sata retired him in public interest without reference to and in total disregard to his contract of employment.
Prof Chirwa further claimed his salary arrears, gratuity, leave pay, pay in lieu of notice, housing allowances and domestic servants allowances totalling K15, 367,482.99.
And in passing judgement, High Court Judge Getrude Chawatama noted that the termination of Prof Chirwa contract by the President was unlawful as the President had no authority to do so.
“It is wrong to treat the plaintiff as a public servant because he was not one so, he could not be retired in public interest. Apart from what has already been established that the Republican President had no authority to terminate the plaintiffs employment, termination on the ground of public interest could not be adopted by the first defendant as it was not one of the conditions for termination of employment in the plaintiffs contract of employment. There was no evidence that there was a board resolution,” she stated.
“The question is, did the Republican President act lawfully when he suspended the plaintiff from his position. In answering this question, it is important to consider the second legal issue, which is whether the Republican President in fact had capacity to terminate the plaintiff’s employment. The first defendant’s argument is that the plaintiff’s employment was terminated in the public interest by the Republican President. The first challenge to this proposition is that there is no law that confers power on the Republican President to appoint a managing director for a parastatal company. From the plaintiff’s narration, his appointment was awaiting the constitution of the board. According to the plaintiff, he needed a letter of appointment to go and start processing his sabbatical leave in England. It is on record that the plaintiff was earlier told that his appointment was waiting the appointment of the board of the first defendant.”
She then awarded Prof Chirwa damages as noted in his statement of claim and interests on the due amounts.
“I therefore award the following: the plaintiff be paid damages for breach of contract of employment, the plaintiff be paid his entitlement under clause 10b(iii), that is full gratuity for the remaining part of the five-year contract, as well as any contractual benefits he might not have been paid, interest on the due amounts and costs for and incidental to this action. Considering the special circumstances of the plaintiffs case, the court has awarded the plaintiff compensation which is more than the common law award of nominal measure of damages (payment in lieu of notice),” stated Chawatama.