ABSA vs 30 managers’ terminal benefits case judgement drags for 5 years

By ZBT Analyst

The Court Case involving ABSA and 30 management employees is long overdue after the hearing processions of the case concerning the adverse alteration of terms and conditions of employment for the management employees were heard and concluded on 22nd May 2024, but the final Judgment is yet to be availed.

The affected employees who spoke to the Zambian Business Times – ZBT, however, expressed concern that the judgment has continued to be postponed, raising concerns and anxiety.

A further check by the Zambian Business Times- ZBT revealed that Statutory Instrument No. 58 of 2020 required that judgments be delivered within 90 days from the date the hearing is concluded.

The SI states that, “in the case of a ruling, deliver it within ninety days after conclusion of the hearing”.

A brief background of the matter stretches back in 2020 when Barclays Bank PLC officially announced the name change of the Bank’s name to ABSA Bank Zambia PLC, the transition, which was said to only be a name change, and the working conditions of the employees were not to be disrupted in service delivery or lead to termination of employee contracts of employment.

Down the line, Absa Bank PLC revised the condition of service, which, in their claim, was to ensure compliance with the Act, among other reasons (such as ensuring competitiveness on the market), following the company’s earlier issuing conditions of service in December 2019, which applied to employees in the management grades who consented to them. 

ABSA Executive management issued a document of service to the 30 management employees containing revised conditions of employment, with an alternative to either sign the new conditions of service or go on voluntary separation based on the new revised conditions, with a deadline placed on 17th April 2020.

Some of the notable conditions of the new revised conditions of service made the ABSA Executive management involved the reduction in accrued leave days from 2.5 per month to 2 days per month; reducing annual leave from 30 days to 24 days per year, the management reduced the basic pay off to a base pay, base being an amount of money paid to an employee comprising of basic salary and housing allowance which was allowance forming the 30% of the base salary.

ABSA management further raised normal working hours from 40 to 48 hours per week and also reduced the acting allowance from 12% of the basic pay to 10% of the base pay. and according to affected individuals who reached out to Zambian Business Times-ZBT, described the conditions to be downgraded, prompting them to appeal to the Ministry of Labour and Social Security, and the case was handled by the Assistant Labour Commissioner- Legal M.C. Ulaya (Mrs.)

The Ministry noted that the position of the Bank notified to the Ministry was that the Bank would implement two parallel conditions of service – the 2019 conditions of service for those employees who would consent and the 2017 condition for those employees who would not consent to the validation and that the scenario created at the Bank was most untenable and had effect of affecting productivity and harmony at the workplace.

According to the statement signed by the Assistant Labour Commissioner and seen by ZBT, the conditions likely subjected the employee to some form of coercion, intimidation, or misrepresentation of facts so as to be induced to consent to move from superior conditions to those with inferior conditions.

With the Ministry already proven that he allegations of inducement to sign in exchange for favorable consideration of voluntary separation as an example, employees who refused consent were being singled out as mischief makers and were likely to suffer some subtle forms of retaliation from their superior and suspicions in this regard abounded especially that the bank appeared not to have had a transparent criteria on whom it would consider or decline the complaints over the perceived targeted transfers being effected in respect of the dissenting category of employees.

However, the Ministry cautioned the management of the Bank to avoid creating a hostile environment, as that was going to give employees who may resign an avenue to mount a legal action of constructive dismissal.

The Ministry after pursuing the 2017 and 2019 conditions of service, advised that the Bank could not administer the two different conditions of service for the same class of employees as the amount to (or produces) discrimination and therefore followed that the thirty (30) employees that have declined to consent were to be considered to have had their contracts of employment terminated by reason of redundancy and were entitled to the protections under section 55 regarding the redundancy process and packaged prescribed in the condition of service where it was more favorable than the minimum contained in the said section 55. And the Bank was at liberty to re-engage the dissenting employees on the new 2019 terms of the Bank, and affected employees wished to do so.

The Ministry through the Assistant Labour Commissioner- Legal, further issued a written notice pursuant to Section 10(5) (a) of the Employment Code Act, that the Bank was in breach of section 5, 95 and 55 (1) (c) of the employment Code Act and the Bank was given 14 calendar days, effective 9th to 22nd September 2020 within which to commence the termination formalities as herein advised.

However, the Bank on the 14th September 2020 appealed against the directive of the Assistant Labour Commissioner to declare thirty (30) management employees in pursuance of section 10(5) and 55(1)(c) of the Employment Code Act No.3 of 2019 of the Laws of Zambia.

The Minister of Labour and Social Security, then Hon. Joyce Nonde Simukoko, after the meeting held on 23rd September 2020, where the appeal was heard following the letter written to Absa Bank to comply with certain instructions given by the Assistant Labour Commissioner- Legal. The Minister examined the provisions of the law, on the submission of both the Bank and the 30 management employees. The Minister later advised that the directions made by the Assistant Labour Commissioner- Legal in her later were reversed, noting that the information submitted by management employees did not show the alleged alteration of the Terms and Conditions of Employment.

The issued later by the Minister of Labour was backed to 12th October 2020, even though it was issued on the 14th of October 2020.

According to the individuals whose names remain withheld due to the sensitivity of the matter, confided in Zambian Business Times- ZBT, with sorrow that two of their colleagues in the process have lost their lives, and initially the number was 32.

“Initially, we were 32 managers who sued the bank, but 5 dropped off (after being convinced to sign downgraded conditions by the bank), and we remained 27, out of which 2 have since passed on, and we are now 25, but for the 2 deceased, their estates are still joined and represented.”

Efforts to, however, get a comment from the Judiciary Deputy Director – Corporate Communication, Kalumba Chisambisha- Slavin proved futile during press time.

ZBT further reached out to Absa through the Marketing and Communications specialist Josen Mukwakwa, who denied giving any substantial comment, noting that the matter is currently before the courts of law.

By ZBT Analyst The Court Case involving ABSA