THE Lusaka High Court has ruled in favour of former Health Professions Council of Zambia (HPCZ) assistant registrar James Wapabeti who sued the institution challenging his demotion and transfer from Lusaka to Kasama.

Wapabeti commenced the action on March 29, 2018, seeking an order and declaration that his transfer by the defendant was contrary to the contract of employment and therefore illegal, null and void.

Wapabeti was also seeking a declaration that his transfer from Lusaka to Kasama was a demotion and was therefore demanding damages for inconvenience, embarrassment and loss of fringe benefits and occupational pride.

He further sought an injunction restraining the defendant by itself, its servants or agents from transferring him from the Lusaka office without proper cause and agreement, among other reliefs.

In his statement of claim, Wapabeti stated that in 2017, he entered into a contract of employment with HPCZ wherein the defendant agreed to employ him as an assistant registrar, inspections and accreditation, to be based at the Lusaka office on permanent and pensionable terms.

He stated that it was a term of the said contract that he would be responsible and enjoy the pride of overseeing the whole country in his capacity as assistant registrar inspections and accreditation.

Wapabeti, however, stated that contrary to the said contract of employment, the Council wrongfully and maliciously transferred him from Lusaka to Kasama thereby demoting him, reducing his responsibilities and also taking away the pride, pleasure and accompanied fringe benefits that he enjoyed while being based at the Lusaka office.

In its defence, HPCZ admitted entering a contract of employment but argued that it was not stipulated anywhere that Wapabeti would be based in Lusaka as his office designation was that of assistant registrar, inspections and accreditations.

The Council stated that the transfer was not a demotion to a lesser position as he would maintain his work title.

They further argued that the transfer would actually result in an increase in responsibilities as he would have responsibilities such as registration of members.

The Council stated that Wapabeti would also be the head of the entire northern hub that is Luapula, Northern and Muchinga provinces which would result in him having supervisory powers of the workers in the said areas.

During trial, Wapabeti testified that in 2018, he was appointed as chairperson of the disciplinary committee that was constituted against one of the registrars, Bwembya Bwalya, who was charged with incompetence and after two hearings, he was found guilty on all charges and it was recommended that he be demoted from the post of assistant registrar northern hub to the post of senior examination officer.

But after changes in the board made by then Minister of Health Dr Chitalu Chilufya, Bwalya was appointed as acting registrar, a decision which brought about a change in the style of management and leadership.

He was later informed, through a WhatsApp message, on the general staff WhatsApp group that he was demoted and redeployed while others had their contracts terminated.

He appealed to the board chairperson, Dr Kennedy Malama, but his appeal was not heard according to the laid down procedure.

And in his testimony, Bwalya denied issuing the transfer out of malice but noted that it was meant to improve efficiency of the council.

But according to a judgment delivered on September 23, this year, Judge Ruth Chibbabbuka found that the transfer was in breach of the contract as there was no reference in the letter of offer about the plaintiff being subject to transfer.

She stated that based on the evidence adduced, it was apparent that Bwembya took action against Wapabeti in order to enact revenge by relegating him to a position that he held.

“Based on this evidence, it is apparent that DW (Bwembya) upon assuming the office of Acting Chief Registration officer, decided to take action against the plaintiff for the decision that was made by the disciplinary committee to demote DW from the position of assistant registrar northern hub to the position of senior examinations officer. This action was to enact revenge by way of relegating the plaintiff to the position which DW held and was to have been demoted from. Consequently, I agree with the plaintiffs’ arguments that there was malice on the part of the defendant in the manner in which it broadcast and attempted to effect the transfer of the plaintiff,” Judge Chibbabbuka stated.

She agreed with the plaintiffs’ counsel that the transfer to Kasama was a demotion.

Judge Chibbabbuka stated that the announcement of his transfer on a WhatsApp group was tantamount to publication of a defamatory statement and as such was injurious to his reputation and caused him embarrassment.

She therefore found that Wapabeti was entitled to damages for the inconvenience, embarrassment, and lowering in reputation he suffered as a result of the breach of contract by HPCZ.

“With these instructive authorities, I consider this an appropriate case to award compensatory damages beyond the notice period of one month based on the facts of the case, scarcity of jobs at senior management level, a position that the plaintiff held in the defendant’s institution. I hereby award 48 months’ salary as damages for breach of contract, the resultant demotion and embarrassment, inconvenience and loss of fringe benefits and occupational pride. The said 48 months will be at K22,151.16 being the monthly basic salary inclusive of 20 percent of the monthly basic salary being housing allowance and 30 percent of the monthly basic salary. These amounts will be less tax applicable at the material time as well as the settling in allowance that they paid to the plaintiff,” stated judge Chibbabbuka.

“I also award interest thereon at 10 percent from the date of the issue of the writ of the summons to the date of this judgment; thereafter to the date of payment interest will be determined at the current lending rate as determined by the Bank of Zambia. I also award coats to the plaintiff to be taxed in default of agreement. Leave to appeal is granted.”