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Mubanga v Zambia Tanzania Road Services Limited (S.C.Z. Judgment 24 of 1987)  ZMSC 25 (14 September 1987);
RAINWARD MUBANGA v ZAMBIA TANZANIA ROAD SERVICES LIMITED (1987) Z.R. 43 (S.C.)
|SUPREME COURT NGULUBE, D.C.J., GARDNER AND SAKALA, JJ.S.15TH SEPTEMBER ,1987. (S.C.Z. JOINT NO. 24 OF 1987)|
|Employment - Unlawful dismissal contrary to Employment (Special Provisions) Regulations - Whether employment subsists.|
|The appellant's employment was terminated with the approval of the proper officer in writing contrary to Reg. 4 of the Employment (Special Provisions) Regulations, 1975. He took his case to the High Court claiming a declaration that his dismissal was null and void and that he was therefore entitled to reinstatement. The matter came before the Court of Appeal on a preliminary issue. The respondent argued that termination of employment was a factual master end there was no automatic right to reinstatement or a declaration to that effect.
Whilst at common law a contract of personal service will not be the subject of an order for specific performance any purported termination of employment in breach of the Regulations is ineffective. The result of the ineffectuality is a matter for the trial court to decide.
(1)Mallock v Aberdeen Corporation  2 All E.R. 1278
(2)Francis v Municipal Councillors of Kuala Lumpur  3 All E.R. 633
(3)Miyanda v The Attorney-General (1985) Z.R. 185.
(4)Bridget Mutwale v Professional Services Limited (1984) Z.R. 72
Legislation referred to:
|GARDNER, J.S.: delivered the judgment of the court.
This is an appeal from a judgment of the High Court in an action for unlawful dismissal holding that a purported termination of employment in breach of Regulation 4 of the Employment (Special Provisions) Regulations 1975 operates to end a contract of employment and the employee's only remedy is limited to a claim for damages.
The facts of this case are that the appellant, who was employed by the respondent, was given notice of dismissal but no approval was sought from a proper officer under the terms of Regulation 4(1) (a) of the Employment (Special Provisions) Regulations 1975. That Regulation reads as follows:
4.(1)No person shall dismiss or otherwise terminate the employment of any employee, irrespective of whether previous notice of such dismissal or termination has been given to the employee or not, unless . . .
that they may only be dismissed after certain procedures or where they are employed in public organisations, where it has been held that it is possible that an order for reinstatement in the service from which they have been improperly dismissed may tee made. In this respect we would refer to the judgment of Lord Wilberforce in the case of Mallock Aberdeen Corporation (1). There the learned Lord of Appeal indicated the circumstances where an employee whose employment is governed by statute or whose employment can be said to be of a public nature may be held to be entitled to a declaration that he should be reinstated in employment when he has been improperly dismissed.
We, therefore, hold that this appeal is successful. The appeal will be allowed and the case will be sent back to the trial judge for continued hearing.
Costs will be reserved to the learned trial judge