Aaron Zulu & 11 ors v G4S Security Services (Z) Ltd (COMP/IRCLK/418/2018) [2024] ZMHC 235 (13 November 2024)

IN THE HIGH COURT FOR ZAMBIA COMP/IRCLK/418/2018 INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA BETWEEN: SEAL AARON ZULU & 11 OTHERS TRIAL RELA'ty COMPLAINANTS AND G4S SECURITY SERVICES (Z) LIMITED RESPONDENT Coram: Chigali Mikalile, J this 13th day of November, 2024 For the Complainant: Mr. G. Chombo Messrs - Chombo and Partners (Legal Aid Services For the Respondent: Mrs. Z. Maipambe - Mwenye & Mwitwa Advocates JIIDGF~~NT Legislation referred to: 1. The Employment Act, Chapter 268 2. The Industrial and Labour Relations Act, Chapter 269 Cases referred to: 1. Wilson Zulu v. Avondale Housing project (1982) ZR 175 2. Miller v. Minister of Pension (1947) 2 ALL ER J1 (cid:9) (cid:9) 3. Care International Zambia Limited v. Misheck Tembo, SCZ Judgment No. 56 of 2018 4. Supabets Sports Betting v. Batuke Kalimukwa, Appeal No 110/2016 5. Zambia Electricity Supply Corporation v. David Lubasi Muyambango SCZ Appeal No. 7 of 2006 6. Chimanga Changa Limited v. Ng'ombe (2010) 1 Z. R 208 7. Jackson Mwape and 61 Others v. ZCCM Investments Holdings Limited SCZ Judgment No23/2014 Other authorities: 1. Mwenda W. S and Chungu. C. A Comprehensive Guide to Employment Law in Zambia, 2021, University of Zambia Press 2. Norman Selwyn, Selywn's Law of Employment 2006, Oxford University Press The delay in the delivery of this judgment is deeply regretted. This was due to pressure of work. Introduction 1. The complainants were employed by the respondent in various positions and on different dates. They allege that they were dismissed from employment following a meeting with management on 31st October, 2018 regarding salary increment, which meeting ended in an impasse. According to the respondent, the complainants participated in an illegal strike hence the dismissal from employment. J2 2. Dissatisfied with the respondent's decision, the complainants lodged their complaint on 5th December, 2018. By an amended Notice of Complaint filed on 9th August, 2022, the complainants claim the following reliefs: (i) Damages for unfair dismissal; (ii) Unpaid leave days; (iii) Unpaid housing allowance; (iv) Costs; (v) Any other relief the court may deem fit; Affidavit in support of Notice 3. The affidavit was sworn by the lead complainant, Aaron Zulu. He deposed that in July, 2018 his department, Cash-in-transit, had meetings with management through the Operations Director, Mr. Wilson Chola. This was to discuss inter alia, the upward adjustment of salaries and to implement the new government minimum wage. The complainants were informed that the last day for implementing the wage adjustment was 15th October, 2018. 4. On 31st October, 2018, management through the Human Resources Manager released letters to the permanent staff in the cash logistics department regarding the salary increments. To the complainants' surprise, their pay was only increased by K100.00 as indicated on the exhibit marked "AZ 1". The letters did not address their concerns about the basic pay rate and the minimum wage as discussed in several meetings. J3 I 5. Mr. Zulu averred that the staff in his department sought audience with the Operations Director to explain the rationale of the K100.00 increment. During the meeting in which the Human Resource Director was also in attendance, the complainants were informed that management had no money to effect an increment of more than K100.00. They were further informed that the money used for the proposed increment had been borrowed from the regional office in South Africa. 6. After hearing from the Directors, the complainants requested that the K100.00 be added to their basic pay as the cost of living allowance could easily be scrapped off at any time. This request, however, fell on deaf ears and the Directors said that the doors were open for those that did not want to work. The complainants resolved to go back to work as directed by management despite the impasse. 7. Despite their resolve to return to work, the Operations Director informed the team leader, Mr. Hassan Mbewe, that he had made alternative arrangements. As such, Mr. Mbewe grabbed the books in which they had signed in and he also grabbed the vehicle, the vault and keys. The following day, the complainants found a list of employees not to be allowed onto the premises. There was also an armed officer from Zambia Police Service on guard. As a result, the complainants remained outside from about 06:00 hours to 17:00 hours. J4 8. The forgoing culminated in the complainants being suspended. Subsequently, they were notified of a disciplinary hearing slated for 9th November, 2018. A notice of hearing addressed to George Ngosa is exhibited to the affidavit as "AZ2". 9. The complainants were then formally charged with the offence of participating in a strike contrary to clause Ki of the disciplinary and grievance handling code. The dismissal letter with respect to the deponent is exhibited as "AZ3". 10. A disciplinary committee was irregularly constituted and the complainants appeared before it and this resulted in their dismissal. The complainants did appeal but the dismissals were upheld. Exhibited as "AZ4" is a letter to William Ngulube to that effect. 11. According to Mr. Zulu, contrary to the allegations levelled against them, the complainants did not conduct any strike. The meetings that they had been having since July were amicable including the one on 31st October 2018. He deposed that the respondent treated them unfairly and they were wrongfully dismissed. 12. After their dismissal, the respondent chartered a plane from the Copperbelt to bring alternative staff to replace them. J5 Respondent's answer and affidavit 13. The respondent filed its succinct answer on 21st January, 2019 in which it is stated that the complainants were lawfully dismissed on or about 9th November, 2018 for participating in an illegal strike and interfering with normal operations. As such, they are not entitled to damages. In addition, the complainants were paid for their leave days at the time of separation from the respondent. 14. The supporting affidavit was sworn by Viven Mulala, the Human Resource Manager. She deposed that the complainants were employed as field workers in the Cash-in-Transit (CIT) department in different capacities and on various dates. Exhibited as "VM1" collectively are the contracts of employment and/or letters of appointment. is. (cid:9) On or about 31st October, 2018, the respondent informed its employees that following consultations with the regional office, a salary increment of 9.8% was awarded to the employees and this was despite the respondent's poor financial performance in the preceding years. 16. (cid:9) She deposed that the complainants were among the employees who called upon senior management to address them over the salary increment. Disenchanted with the response they initially received from the Operations Director and the Human Resources Director, the complainants demanded to have audience with the Managing J6 Director and withdrew their labour unlawfully. They refused to return to work despite being advised by management to air their grievances through the prescribed channels provided for in the respondent's grievance code. 17. Under the respondent's grievance procedure, the complainants were supposed to complete a grievance form and report their grievance to the head of section. If unresolved, the grievance was to be referred to the Regional Operations Manager or the Regional Executive Committee Member and finally to the Operations Director or Head of Department. In support of this assertion, the deponent particularly drew court's attention to clause 7.0 and clause 3.12.6 of the respondent's disciplinary and grievance handling code and the conditions of service respectively (exhibits "VM2a" and "VM2b"). 18. It was deposed that the complainants were charged with breaching clause Ki of the disciplinary code for participating in an illegal strike action by withdrawing their labour or proceeding on go slow. 19. According to Ms. Mulala, the complainants' employment involved handling large amounts of cash on behalf of various clients. Following the strike action, the respondent's clients complained about the respondents services as they were concerned that the security of their cash and personnel would be compromised. The complainants' behaviour caused the respondent considerable economic loss. In a bid to ameliorate the situation, the respondent J7 conscripted employees from other departments to attend to the respondent's clients to stop any further disruptions to the business. 20. By notice of hearing dated 31st October, 2018 ("VM3 (a) to (i)", the complainants were suspended from their respective duties for the illegal strike and notified about the disciplinary hearing. 21. After the disciplinary hearing held on 9th November, the complainants were dismissed in accordance with the respondent's disciplinary procedures. The dismissal letters and minutes of the hearing are exhibited as "VM4" and "VM5" respectively. 22. It was Ms. Mulala's averment that the complainants were paid all the accrued benefits due to them on 9t November, 2018. This was inclusive of their leave days. Exhibited as ccVM6 are copies of the complainants' pay slips. 23. On 12th November, 2018 the complainants appealed against their dismissal. The appeal letters, review forms and the report on work stoppage are exhibited as "VM7 (a) to (k)", "VM8 (a) to (i)", and "VM9" respectively. 24. By letters dated 15th to 27t November, 2018, ("VM 10 (a) to (i)"), the respondent's Finance Director dismissed the complainants' appeals and upheld their dismissal. According to the deponent, the respondent adhered to the disciplinary procedure and the complainants were duly dismissed for proven wrong doing. J8 Trial course 25. The complainants called two witnesses and so did the respondent. 26. CW1 was Aaron Zulu who told court that he was the respondent's Cash-In-Transit Crew Commander from 2005 to 2018. It was his evidence that in July 2018, the complainants had deliberations with management which included the issue of salary increments. The deliberations commenced in July and concluded in October, 2018. However, on 31st October, 2018, the complainants were surprised to receive letters that introduced an allowance and not a salary increment as previously discussed. Dissatisfied with the outcome, the complainants demanded for a meeting with management and requested that the said allowance should be added to their basic salaries since an allowance could be removed at any time. The complainants were informed that the respondent did not have the finances to proceed as requested. 27. After the meeting, the complainants' supervisor, Mr. Hassan Mbewe, told them to return to work while the Operations Director told them not to work. The supervisor then got the keys and told them to leave the premises. 28. When the complainants returned to work the following day, they found a list of twenty-four names at the gate which included the complainants. They were advised that the employees on the list J9 were not to be allowed onto the premises as they had been suspended. The respondent had deployed police officers at the gate. 29. It was CW1's testimony that at the hearings which followed, the complainants were found guilty of having conducted an illegal strike and they were dismissed. (cid:9) The subsequent appeals were unsuccessful. 30. CW1 denied having participated in the strike. He insisted that he was ready to work on the material day and even signed for the keys. He explained that the meeting that led to their dismissal was no different from the meetings they had in the past. He added that there was nothing peculiar about the complainants asking about salary increments as they had received salary increments in the past. They were just surprised when the respondent opted to give them an allowance instead. 31. On behalf of the other complainants, CW 1 testified that they were all working under the same conditions of service. They were entitled to leave days. As indicated on his last pay slip, CW1 was only paid leave days for one year. He was, however, entitled to leave days from the time he was employed in 2005 to 2018. CW1 also asserted that he was not treated well and wished to be compensated in damages for unfair dismissal. 32. Under cross examination, CW1 clarified that the complainants had different conditions of service. Among them, seven were J10 - (cid:9) unionized employees while the rest were non-unionised including himself. 33. When queried about his claims, CW1 reiterated that he was only paid leave days for one year as evidenced by his pay slips. With regard to the alleged strike, CW1 clarified that the complainants were kept outside the premises. He conceded that he did not express his grievances the same day and did not sign for leave on 31st October, 2018. 34. In re-examination, CW1 clarified that he did not take his grievance to his supervisor because the supervisor was also present at the meeting as their spokesperson. 35. CW2 was William Ngulube who was employed by the respondent as a driver in 2001 on permanent basis. It was his evidence that on the material date, he reported for work around 08:00 hours in the morning. He then proceeded to the office to pick the keys for the vehicle but found the office locked. (cid:9) He then found two of his colleagues with the Operations Director and was advised to go and join the rest of the employees that had gathered to wait for the union. 36. Around 10:00 hours, they were addressed by Mr. Chola who informed them that the union representatives were not coming. According to CW2, he proceeded to collect keys and refueled the vehicle. When he returned, he was told to hand over the car keys and go home. The following day, he discovered that his name was ill on the list that was placed by the entrance to the respondent's premises. CW2 and the other complainants sat outside and waited until 18:00 hours when he was given a suspension letter and instructed to go home. 37. It was his testimony that at his hearing, he explained that he never refused to work. He was told that he did not have a case to answer. Unfortunately, the Director guided that all the employees on the list should not be retained. He appealed against the decision to dismiss him but was advised that although the conclusion was that he did not commit any offence, the supervisors could not go against the director's decision. That was how his services were terminated. 38. CW2 further testified that he worked for 18 years and his last pay slip indicated that he was paid a salary of K 517.00. He highlighted that he was only paid for 24 leave days despite not having received leave pay in the other years he had worked for the respondent. He was at pains to understand why he was dismissed even though he was willing to work. In view of the forging, he prayed for an order that the respondent compensates him for the manner in which he was dismissed. 39. When cross examined by Mrs. Maipambe, CW2 confirmed that he worked for the respondent as a driver and was a unionised employee. He conceded that he did not get leave of absence in order to participate in the alleged strike. He further conceded that he had no J12 proof that he was owed leave days outside the 24 days for which he was paid. 40. The witness was not re-examined. 41. The first witness for the respondent (RW 1) was Vivian Mulala who told court that she joined the respondent in July, 2020. She explained that at the time of the incident, the Head of Human Resources was Shiela Mulumbwa. Thus, she learnt the facts of this matter through the hand over documents availed to her when she took over. 42. According to RW1, all the employees were entitled to leave days and all the pay slips exhibited to the respondent's affidavit show leave entitlement balance as at 18th October 2018. 43. When cross examined, RW1 stated that the complainants became aware of their charges through the suspension letters that they received. However, she could not confirm if all the employees were dismissed or if others were allowed to return to work. 44. She added that the leave days due to the complainants according to their conditions of service was 24 days a year. She confirmed that the respondent's policy was that an employee should take leave once a year to rest and any days taken were deducted from the accrued leave days. J13 I I I 45. In re-examination, RW1 explained that "VM6(a)" were CW1's pay slips for October and November, 2018 in the sums of K 1,743.00 and K 26 1. 00 respectively. 46. RW2 was Hassan Jones Mbewe, the head of Cash-in-Transit. He testified that on the material day, he reported for work and whilst in his office, he heard commotion in the common room. He proceeded to investigate and found the CIT crew gathered there. He inquired as to why the crew was not getting ready for duty and was informed that they wanted to be addressed by the Operations Director regarding the K 100.00 increment. 47. According to RW2, he informed the director about the situation and the director instructed him to tell the crew to work and that they would be addressed later on. This feedback was not well received by the complainants who insisted that they wanted to have audience with the director. The Director addressed the employees and urged them to go back to work. Due to the impasse, the employees were given an ultimatum. Essentially, those that wanted to work were to proceed to their duty stations while those who wanted to leave the premises could do so. 48. RW2 also testified that he spoke to a few colleagues including Ceasor Zimba and Miyanda Sitali who had a change of heart and went back to work. He stated that the complainants before court were among those who left. A skeleton team was constituted with manpower from J14 the other departments. According to RW2, they had a lot of complaints from clients as they could not service all of them. 49. Later that day, there was a management meeting where the decision was made to charge the employees that did not work on that day. Consequently a list was compiled. When the complainants reported the following day, they were not allowed to work. 50. When cross examined by Mr. Chombo, RW2 stated that the employees were just standing around as the waited to be addressed by the Director. He conceded that the employees were not breaking anything but that they just wanted answers from management. He clarified that the reason the complainants were suspended was because they decided not to work on the material day. He also stated that this was the first time that the complainants had refused to return to work and that they asked to be addressed several times. He maintained that the complainants were suspended in accordance with the disciplinary code. 51. In re-examination, RW2 clarified that the penalty for striking was dismissal for a first offender. Submissions 52. Only the complainants filed written submissions. Counsel, Mr. Chombo, took cognizance of the often-quoted case of Wilson Masauso Zulu v. Avondale Housing Project Limited(') and the English case of Miller v. Minister of Pension(2); the former case to J15 highlight that the burden of proof was on the complainants and the latter to emphasize that the proof is on the balance of probabilities. Based on these authorities, counsel submitted that the complainants had discharged their burden of proof to the requisite standard. This was owing to the fact that they led evidence to the effect that they were unfairly dismissed and that they did not receive their leave pay for all the years they worked for the respondent. 53. Counsel highlighted that under cross examination, RW1 failed to explain why CW1 was paid K 261.00 after 13 years of service with the respondent. This was proof that the accrued leave days were not paid. 54. Concerning the claim for damages for unfair dismissal, counsel called to aid the case of Care International Zambia Limited v. Misheck Tembo(3) and submitted that the complainants had been consistent that they never breached clause K 1 of the respondent's disciplinary code of conduct as alleged. Therefore they were unfairly punished by the respondent. He also argued that the complainants' dismissal abrogated section 26 and 25(1) of the Employment Act Chapter 268 as the respondent did not pay the complainants their outstanding leave days calculated from commencement of employment and also failed or neglected to inform the labour office within 4 days of the dismissal as required by law. J16 55. Mr. Chombo stressed that the complainants never participated in an unconstitutional strike as there was never a dispute between the complainants and the respondent in the first place. Counsel contended that the complainants' aim was to be addressed by the respondent on the proposed increment of K100.00 which increment was not in tandem with the minimum wage which was announced by government. 56. Court was thus urged to award the complainants damages for unfair dismissal and unpaid leave days for the un-computed years. Analysis and decision 57. I have carefully considered the evidence on record and the submissions. Facts not in dispute are that the complainants were employed by the respondent in different capacities. (cid:9) The complainants' employment relationship with the respondent was governed by their respective contracts, the G4S Conditions of Service for non-represented employees and the Disciplinary and Grievance Handling Code for unionised employees (the code). 58. The employment relationship ended following disciplinary action against the complainants who were found guilty of participating in an unconstitutional strike. The complainants deny such action and assert that all they wanted was to be addressed by the respondent over the proposed salary increment. 59. What ought to be resolved therefore are the following issues: J17 (cid:9) if (i) Whether the complainants were unfairly dismissed entitling them to an award of damages (ii) Whether the complainants are owed leave days benefits as well as housing allowance as claimed. 60. In resolving the forgoing issues I am cognizant of the fact that the onus is on the complainants to prove their case against the respondent as acknowledged by counsel. Whether the complainants were unfairly dismissed 61. As found, the respondent charged the complainants with the offence of participating in an unconstitutional strike and ultimately found them guilty as charged and dismissed them. 62. The crux of the complainants' argument, as far as this claim is concerned, is that their dismissal was unjustified as they did not participate in the alleged strike. The complainants contend that they were willing to work but were prevented from working. 63. According to the learned authors of A Comprehensive Guide to Employment Law in Zambia, Unfair dismissal is dismissal that is contrary to statute. It can also occur where the employee is dismissed on unsubstantiated grounds. J18 64. In the case of Supabets Sport Betting v. Batuke Kalimukwa(4), it was held that: The court is in unfair dismissal, obliged to consider the merits or substance of the dismissal to determine whether the reason given for the dismissal is supported by the relevant facts. . . whereas inquiry into whether or not a dismissal was wrongful is restricted to consideration of procedural lapse in effecting the dismissal; unfair dismissal looks at the substance or merits of the dismissal to determine whether it was reasonable orjustfied. 65. At this stage, I remind myself of the guidance of the Supreme Court in the case of Zambia Electricity Supply Corporation v. David Lubasi Muyambango(5) that it is not the function of the court to interpose itself as an appellate tribunal within the domestic disciplinary procedures to review what others have done. The duty of the court is to examine if there was the necessary disciplinary power and if it was exercised properly. 66. The complainants herein have not contested the validity of the respondent's disciplinary powers. What ought to be determined is whether these powers were validly exercised. In unraveling this issue, the ancillary question is whether the facts before the disciplinary committee support the measures taken by the respondent. 67. The learned author Norman Selwyn in his book Selwyn's Law of Employment has stated as follows regarding unfair dismissal: J19 To determine whether or not the employer has acted reasonably in dismissing the employee the current test is what would a reasonable employer have done. There is a ban of reasonableness within which the employer might decide to dismiss. If the circumstances of the case are such that a reasonable employer might dismiss the dismissal will be fair 68. With the foregoing in mind, I ask myself whether the respondent's decision to dismiss the complainants can be considered to be reasonable. In determining the issue, it is helpful to begin by considering the legal definition of a strike in this jurisdiction. As such, I have had recourse to the Industrial and Labour Relations Act Chapter 269. Section 3 defines a strike in the following terms: (a) The cessation of work or withdrawal of labour by a body or persons employed in any undertaking or institution acting in combination; or (b) (cid:9) A concerted refusal or a refusal under a common understanding, or any number of employees, to continue to work or provide their labour. 69. I have also looked at the clause K (1) of the disciplinary code pursuant to which the complainants were charged. It reads: Participating in unconstitutional strike action by withdrawing labour, "going slow" or otherwise interfering with the normal operation of the company in furtherance of a trade dispute which has not been processed through the relevant procedures set out in the Recognition Agreement or any law in force relating to settlement of disputes. 70. On the one hand, as highlighted above, the complainants are adamant that they never participated in any illegal strike. CW2 J20 PF (cid:9) testified that he refueled the vehicle he was using and was about to proceed to carry out his duties when he was told to hand over the car keys and go home. Both witnesses for the complainants testified that when they reported for work the following day, they found a list of names of employees who were not to be allowed onto the premises. 71. On the other hand, the respondent maintains that the complainants did withdraw their labour causing its clients to complain about the services on the material day. 72. I have carefully considered the opposing views and I have perused the minutes of the hearings exhibited to the respondent's affidavit. The minutes reveal that on 31st October, 2018, the employees were given increment letters and asked to sign. They, however, refused to sign the letters and instead requested to be addressed by the Operations Director. The Operations Director, together with the Human Resources Director, addressed the employees and directed them to return to work or go home if they did not want to work. Some employees immediately returned to work but the complainants and other employees stayed on at the exit gate. By the time the complainants made up their minds to return to work, management had already made a decision not to allow them to work and they were accordingly suspended. 73. It is to be noted that the authenticity of the minutes produced in evidence was in no way challenged by the complainants. In fact, to a large extent, the minutes reflect what transpired on the material J21 T day as narrated by the complainants. The only point of departure is the aspect of the complainants staying on at the gate while other employees assumed duty. I have no qualms accepting the evidence that other employees commenced duty and remained employees of the respondent as this evidence was not challenged. 74. From the foregoing, I am satisfied that the complainants, by not immediately returning to work when called upon by the Directors to do so, actually withdrew their labour. Their conduct was as envisioned by Cap 269 and contravened clause K (1) of the Code. Thus, it cannot be denied that the respondent's operations were disturbed by the complainants' refusal to immediately go back to work. As the evidence has revealed, the complainants should have commenced duty as early as 06h30 A. M on 31st October but as late as 10 A. M, they were still waiting to be addressed. 75. I have not overlooked CW2's testimony to the effect that he was willing to work on the material day. He is on record as saying that he in fact refueled a vehicle but that the vehicle keys were later withdrawn from him. 76. However, a careful perusal of the minutes of his hearing (marked "VM5K"), which minutes I might add were not challenged, reveals that CW2 did not go back to work despite being asked by the manager Mr. Mbewe. The minutes reveal that CW2 told the hearing that he was influenced not to work by his colleagues. He also stated that he J22 (cid:9) tried to convince his colleagues to work but they accused him of collecting money from the respondent's management. 77. In light of this evidence, I am disinclined to accept CW2's evidence that he did not participate in the strike. 78. As such, I am of the view that the decision to dismiss the complainants is supported by the facts as the complainants committed a dismissible offence. The respondent, quite clearly, believed that the complainants were guilty of an unconstitutional strike action and reasonably so because the grievance procedure was not followed by the complainants I am fortified in my resolve by the case of Chimanga Changa Limited v. Stephen Chipango Ng'ombe6) where the Supreme Court held that an employer does not have to prove that an offence was committed or satisfy himself beyond reasonable doubt that the employee committed the act in question. The employer's function is to act reasonably in coming to a decision. 79. In the circumstances, I find that the respondent validly exercised its disciplinary powers in arriving at the decision to dismiss the complainants. That the labour officer was not informed of the complainants' dismissal does not take away from the fact that the respondent was justified in its decision to dismiss. 80. The claim for unfair dismissal, therefore, fails. J23