DISMISSED former Health Professions Council of Zambia chief executive officer Aaron Mujajati has insisted that the court has authority to determine the matter in which he has sued his former employer for terminating his contract, demanding more than K2 million for its breach. Dr Mujajati said his case was properly before court and that there was no multiplicity of action or abuse of court process. In this matter, Dr Mujajati wants an order for payment of his salaries for the remainder of the term in the sum of ZMW801,219.35 from May 2019 to October 1, 2020 when the contract was expiring.
He also wants an order to allow him to purchase, at netbook value, the personal to order vehicle he was driving, and an order for payment by of his leave days. In it’s summons to determine a matter on a point of law pursuant to Order 14a Rule 1 of the Rules of the Supreme Court, the Health Professions Council said it had been wrongly sued and that Dr Mujajati’s case lacked a cause of action. Bwembya Bwalya, acting registrar of the Health Professions Council, said Dr Mujajati was at all times under the employment of the civil service commission and that he did not apply to be placed on secondment to the Health Profession Council.
“The decision by the Ministry of Health resulted in the frustration of the plaintiff’s contract with the defendant thereby rendering the contract of employment incapable of execution by the plaintiff,” Bwalya said.
He said the cause of action arose due to a statement made by the Minister of Health Dr Chitalu Chilufya, who conveyed a directive from the civil service commission.
“I have read the amended statement of claim by the plaintiff and I am at pains to see the cause of action against the defendants,” Bwalya said.
He said the proceedings were a nullity and an abuse of the court process. The defendant said it paid Dr Mujajati his gratuity for the period served and that they do not owe him anything. HPCZ contended that to claim gratuity for a period not worked for would amount to unjust enrichment and an abuse of the process of court and that Dr Mujajati was not entitled to any reliefs being sought.
“The defendant can not be sued for the actions of the Minister of Health and that he has already sued the minister and the proceedings amount to multiplicity and duplicity of proceedings and that the courts disapprove of litigants commencing several proceedings over the same dispute or subject matter,” Bwalya said.
He added that dismissal of these proceedings would not prejudice Dr Mujajati as he had already commenced proceedings against the correct defendants over the same subject matter in the same High Court of the same jurisdiction.
But in an affidavit in opposition to affidavit in support of summons to determine matter on point of law, Dr Mujajati stated that he was at all material times an employee of HPCZ.
Mujajati said in October 2017, he received an offer of employment from the defendant after applying to the said organisation directly without any direction, input or action from the Ministry of Health.
He said the secondment to HPCZ was only approved after he received and accepted the offer of employment and had an option of either resigning from his job at the Ministry of Health and take up the said offer to apply for secondment.
Dr Mujajati said the secondment was a requirement for his employment with the HPCZ on conditional precedent to it. He said the Ministry of Health only wrote to him on May 11, 2018 informing him that he had been deemed to have been seconded to HPCZ as registrar and the ministry removed him from its payroll.
“The Ministry of Health could not recall me from the secondment as it has no powers to do so in that the terms and conditions of service for the public service do not have any provisions for the termination or recall from secondment,” he said.
“My contract was not frustrated in any way because the Ministry of Health had no jurisdiction to recall me or terminate my contract with the defendant as it was not my employer. The defendant is an autonomous body and my contract with it could not and should not have been impacted by third parties like the Ministry of Health who are not parties to it.”
Dr Mujajati contended that the cause of action arose when the HPCZ wrongfully and unlawfully terminated his contract and purported that it was terminated for the reasons which were not sound at law.
“The defendant had admitted that it doesn’t represent the Attorney General nor report to the Minister of Health. It therefore should not have terminated my employment with it under the guise of me being recalled from secondment by the Ministry of Health because it is not subject to the directives, whims or caprices of the Ministry or Minister of Health,” Dr Mujajati stated.
“The matter must be determined on merit at trial as the defendant is still under the erroneous belief that my employment contract with it could be determined by third parties who were not party to the said agreement”.
Dr Mujajati stated that his action was not against the minister but HPCZ, his former employer, who breached the contract by wrongfully and unlawfully terminating him employment contract purporting that he had been recalled from secondment by Ministry of Health. He contended that the action was properly before court and that the argument for judicial review proceedings was incompetent and misplaced.
“I was not paid the full amount for gratuity to which I am entitled as provided for by the contract and the Public Service Management Division circular no. B of 2019 which I am entitled to,” Dr Mujajati stated.
He stated that there was no duplicity or multiplicity of actions as the one against the Minister of Halth was completely a different action with different parties and that the cause of action in the other matter was defamation of character which was different from the one which pertains to unfair, wrongful and unlawful termination of employment.
“This court has jurisdiction and that a party is at liberty to choose the forum in which to commence legal proceedings provided that the matter falls within the court’s jurisdiction and provided the party and the circumstances of this case satisfy the conditions of such forum,” stated Dr Mujajati.
“I reiterate that this matter is properly before this court and that there is no multiplicity of actions or abuse of court process. I further aver that this honourable court has the requisite jurisdiction to hear and determine this matter,” said Mujajati.