Lackson Mukuma and Ors v Barclays Bank PLC (Appeal 2 of 2013) [2018] ZMSC 396 (11 January 2018)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 002/2013 AND BARCLAYS BANK LIMITED RESPONDENT Coram: Mambilima, CJ, Hamaundu and Wood, JJS. On 14th July, 2015 and 27* August, 2015. For the Appellant: Mr. M. J. Katolo- Messrs Milner Katolo and Associates. For the Respondents: Mr. R. Mwanza- Messrs Robert and Partners. JUDGMENT Wood, JS, delivered the Judgment of the Court. CASES REFERRED TO: 1. D. E. Nkhuwa v Lusaka Tyre Services Limited (1977) Z. R. 43. 2. Zambia Consolidated Copper Mines v Jackson Munyika Siame and 33 others (2004) Z. R. 193. 3. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) Z. R. 172. 4. Zambia Consolidated Copper Mines Limited v Elvis Katyamba and others (2006) Z. R. 1. 5. Zambia Consolidated Copper Mines Limited v James Matale (1995/1997) Z. R. 144. 6. DPP v Bwalya Ngandu, SCZ Judgment No. 50 of 1974. J2 LEGISLATION REFERRED TO: 1. Section 85(3) of the Industrial Relations Act, Chapter 269 of the Laws of Zambia. This is an appeal against a ruling of the Industrial Relations Court which dismissed the appellants’ complaint on grounds that it was filed out of time. The facts leading to this appeal are that between 23rd November, 2010 and 31st December, 2010 the appellants left the respondents employ by way of Voluntary Separation. On termination of their contracts of employment, the respondent paid each of the appellants a separation package of 2.5 months pay for each year served. On diverse dates, but between November and December 2011, the appellants wrote to the respondent alleging that the respondent had used a wrong formula to compute their benefits. They demanded that the respondent recalculate their benefits, taking into account the various allowances, at the rate of 4 months for each year served or 4.7 multiply by the annual salary which ever was higher. They also demanded payment of salaries from the date of termination until payment of the recalculated package. The respondent refused to yield to the appellants’ J3 demands prompting the appellants to file a complaint in the Industrial Relations Court on 16th March, 2012. On 12th April, 2012, the respondent filed an application to dismiss the complaint pursuant to Section 85 (3) of the industrial and Labour Relations Act, Cap 269 of the Laws of Zambia, on grounds that the complaint was out of time as it had been filed well over one year from the period the appellants separated from the respondent. In the affidavit in opposition to the application to dismiss the complaint, the appellants contended that despite being terminated on diverse dates but not later than 31st December, 2010, they could not file a complaint in court without exhausting the administrative procedures as provided by the law. They contended that the letters they wrote to the respondent asking for a recalculation of their separation packages and the response from the respondent asking them to provide further details as proof of their claims constituted administrative procedures. On 28th December, 2011 some of the appellants wrote to the respondent detailing the allowances that should have been included in the computation as well as the rate which they contended should have been used, but the respondent did not respond to these letters. The appellants contended that they J4 were not out of time, as time only began to run from the date they exhausted the administrative procedures they had engaged in. In its ruling, the Industrial Relations Court considered the provisions of Section 85(3) of the Industrial Relations Act as amended by Act No. 8 of2008 which reads as follows: (3) The Court shall not consider a complaint or an application unless the complainant or applicant presents the complaint or application to the Court- fa) within ninety days of exhausting the administrative channels available to the complainant or applicant; or (b) where there are no administrative channels available to the complainant or applicant, within ninety days of the occurrence of the event which gave rise to the complaint or application: Provided that: (i) upon application by the complainant or applicant, the Court may extend the period in which the complaint or application may be presented before it; and (ii) the Court shall dispose of the matter within a period of one year from the day on which the complaint or application is presented to it.” The Industrial Relations Court observed that for a complaint to be considered, it should be presented within 90 days of exhausting the administrative channels available or within 90 days of the occurrence of the event which gave rise to the complaint or J5 application. It also found that the appellants were terminated on diverse dates but not later that 31st December, 2010, but were only spurred into action about 11 to 12 months after their termination. That there was no evidence to show that they were engaged in administrative procedures during this period as an attempt at negotiations only commenced in November and December of 2011. After examining the circumstances of the case and the reasons for the delay, the Industrial Relations Court refused to exercise its discretion in favour of the appellants and consequently dismissed the complaint. The appellants were dissatisfied with the ruling and have filed in four grounds of appeal. Ground one of the appeal was that the court below erred in law and fact when it dismissed the complaint without due regard to the proviso to Section 85(3) of the Industrial Relations Act as amended by Act No. 8 of 2008. Ground two of the appeal was that the court below fell into error when it failed to appreciate the fact that Section 85(3) of the Industrial Relations Act as amended by Act No. 8 of 2008 does not prescribe a time frame within which a complainant is supposed to commence administrative procedures J6 after the terminating event. Ground three of the appeal was that the court below fell into error when it failed to apply the provisions of Rules 48 and 55 of the Industrial Relations Court Rules. Ground four of the appeal was that the court below erred in law by relying on the case of D. E Nkhuwa v Lusaka Tyre Services1 to dismiss the complaint when the said case does not relate to industrial relations matters. Mr. Katolo argued grounds one and three of the appeal as one. In this ground, Mr. Katolo submitted that Section 85(3) of the Industrial and Labour Relations Act empowers the court to extend time within which to file a complaint. Further, that Rules 48(2) and 55 of the Industrial Relations Court Rules empowers the court to make any order which is necessary to meet the ends of justice. He argued that the above cited provisions of the Industrial Relations Court Rules give the Industrial Relations Court wide powers to dispense with a formal application and hear an application viva voce. Therefore, the Industrial Relations Court should have treated the application before it as an application for extension of time and accordingly determined the appellants’ viva voce application for extension of time within which to file the complaint. He further J7 argued that Rule 55 of the Industrial Relations Court Rules gives the Industrial Relations Court wide powers consistent with its jurisdiction to administer substantial justice. In this regard, Mr. Katolo cited the case of Zambia Consolidated Copper Mines and Jackson Munyika Siame and 33 others2, in which we held, inter alia, that: "The Industrial Relations Court has a mandate to administer substantial justice unencumbered by rules of procedure” He also contended that the failure by the Industrial Relations Court to hear the viva voce application to file the complaint out of time meant that the court did not adjudicate upon all the aspects of the suit before it. In support of this submission, Mr. Katolo cited the case of Wilson Masauso Zulu v Avondale Housing Project Limited3, in which we held that the court has a duty to adjudicate upon every aspect of the suit between the parties so that every matter in controversy is determined in finality. In response, Mr. Mwanza observed that the resolution of this appeal relied on the interpretation of Section 85(3) of the Industrial and Labour Relations Act as amended by Act No. 8 of 2008. He argued that the interpretation of Section 85(3) of the Industrial and Labour Relations Act given by this Court in the case of Zambia J8 Consolidated Copper Mines Limited v Elvis Katyamba and others4 cannot be any different from the interpretation to be given to Section 85(3) of the Industrial and Labour Relations Act in its current form. He contended that it is clear from the provisions of Section 85(3) of the Industrial and Labour Relations Act as amended by Act No. 8 of2008 that a complaint should be brought to court within 90 days from the date of the occurrence of the event complained of or 90 days after exhausting the administrative procedures available to the complainant. He contended that the appellants did not comply with the provisions of Section 85(3) as they waited for approximately 336 days before they wrote to the respondent concerning the computation of their termination pay. He argued that the court below rightly refused the application because in the case of Zambia Consolidated Copper Mines Limited v Elvis Katyamba and others'1, we stated that: “If negotiations for a better package or an appeal to a higher body for redress cannot be commenced within the mandatory time frame, then it is not possible for the court to extend the time that has expired, in accordance with our holding in the case of University of Zambia v Calder, 1998 Z. R. 48.” J9 With regard to the argument that the trial court did not deal with the viva voce application to file the complaint out of time, Mr. Mwanza argued that there was no such application before the court. He contended that the only application before the court was the application to dismiss the complaint for being out of time, and this application was accordingly determined. In this regard, the argument by Mr. Katolo that the lower court did not determine all the issues raised in the application lacked merit. With regard to Mr. Katolo’s reliance on Rules 48(2) and 55 of the Industrial Relations Court Rules, Mr. Mwanza submitted that Rule 55 of the Industrial Relations Court Rules empowers the Industrial Relations Court to guard against abuse of the court process and the decision by the appellants to file a complaint well over 336 days after separation from the respondent was an abuse of court process. We have considered the arguments in relation to this ground of appeal. As correctly observed by the Industrial Relations Court in its judgment in this matter, the requirements of Section 85(3) of the Industrial and Labour Relations Act as amended by Act No. 8 of2008 are that for a complaint to be considered, it should be presented within 90 days of exhausting the administrative channels available J10 to a complainant or within 90 days from the occurrence of the event. It is also clear that the proviso to Section 85(3) allows the Industrial Relations Court to entertain an application to extend time within which the complaint may be filed. Mr. Katolo’s main argument in this ground of appeal is that the court did not consider the appellants viva voce application to file the complaint out of time. We see no merit in this argument. This is because the judgment of the Industrial Relations Court shows that the application to dismiss the complaint was also treated as an application to file the complaint out of time. The court examined the circumstances of the case and the reasons for the delay in filing the complaint before dismissing it. This was evident when the court stated the following in its judgment: a...we have looked at the circumstances of the delay and the reasons thereof and find that we are unable to exercise our discretion in favour of the complainants.......... The reason being that the delay is inordinate. We are not persuaded by the argument presented that the complainants were pursuing administrative channels." With regard to Mr. Katolo’s reliance on Rules 48 and 55 of the Industrial relations Court Rules, our considered view is that these rules are not in any way meant to encourage parties to disregard JU the laid down rules of court. To the contrary, these provisions give the court power to make orders which will ensure that the ends of justice are met, taking into account the interests of both parties not just the complainants. Further, we hold the view that the powers given to the court under Rule 48(2) and Rule 55 of the Industrial Relations Court Rules are meant to be exercised in relation to a complaint that has been filed before the Industrial Relations Court in compliance with Section 85(3) of the Industrial and Labour Relations Act. This ground of appeal lacks merit and is accordingly dismissed. In ground two of the appeal Mr. Katolo submitted that the complaint was actually filed within 90 days of exhausting administrative procedures. He argued that the appellants had, after their separation, engaged in administrative procedures which only ended with the letter dated 28th December, 2011. He contended that the 90 day period expired on 28th March, 2011 and the complaint was filed on 16th March, 2012. Mr. Kotolo also observed that there was no provision in the Industrial and Labour Relations Act which stipulates a time period that must elapse between the terminating event and the commencement of administrative J12 procedures. Therefore, the court must only concern itself with the time that lapses post administrative procedure. To support this argument, Mr. Katolo cited the case of Zambia Consolidated Copper Mines Limited v Elvis Katyamba and others4, in which we held, inter alia that: “If the complainant or applicant can show to the Court during the mandatory period of thirty days that he or she engaged in the process of appeal or negotiations for a better retirement package, the application for an extension of time within which to lodge the complaint or application can be said to be meritorious. ” The Zambia Consolidated Copper Mines Limited v Elvis Katyamba and others4 case was determined at a time when the law provided for a complaint to be filed within a period of 30 days from the date of the terminating event. Mr. Katolo also pointed out that if at all there was any delay on the part of the appellants, then it was not inordinate and in support of his argument, referred us to the case of Zambia Consolidated Copper Mines Limited v Jackson Siame Munyika2 in which the complainants were allowed to lodge their complaint seven years after the act complained of. J13 In response to ground two of the appeal, Mr. Mwanza contended that the appellants had failed to show that they were pursuing any administrative procedures prior to the filing of the complaint. He contended that the letters that the appellants wrote to the respondent almost a year after separation were letters of demand with a threat of litigation and did not amount to negotiations for a better package. We have seriously considered ground two of the appeal and the authorities cited in support of the arguments espoused in this ground of appeal. We agree with Mr. Katolo’s observation that Section 85(3) of the Industrial and Labour Relations Act as amended by Act No. 8 of 2008 does not provide for a time frame within which a complainant should begin to pursue administrative procedures available in the organisation. What Section 85 (3) (a) does, in our considered view, is to place the onus on a complainant to show that they were pursuing administrative procedures 90 days prior to the filing of the complaint. Parliament cannot be expected to legislate on when administrative procedures in the various work places should commence as such procedures are provided for in the Grievance and Disciplinary Procedure Codes of the various institutions or J14 contracts of employment and differ from institution to institution. In this case, the appellants questioned the quantum of their termination package about 11 to 12 months after separation. We acknowledge that in the case of Zambia Consolidated Copper Mines Limited v Elvis Katyamba and others4 that the parties have cited, we accepted that there are instances where a complainant or applicant may engage in further negotiations with the employer where she or he is entirely dissatisfied with a package offered to him or her by the employer after separation. In the appeal before us, however, the appellants failed to explain why they decided to question the commutation of their separation package about a year after they separated from the respondent. We also wish to distinguish the facts in the case of Zambia Consolidated Copper Mines Limited v Jackson Siame Munyika2 that Mr. Katolo has relied on from the facts in this appeal. In that case, the complainants were allowed to file their complaint seven years after termination because the facts giving rise to the complaint occurred before the law was amended requiring a complaint to be filed in within 30 days from the occurrence of the event complained of. J15 On the facts of this case, we are inclined to accept the finding of the Industrial Relations Court that there was inordinate delay on the part of the appellants to file the complaint. We must also state that the appellants appear to be shooting themselves in the foot by arguing that they were not out of time when in ground one, their argument is that they made a viva voce application to file the complaint out of time. This, in our view, is a veiled admission that they were indeed out of time. Ground two of the appeal also lacks merit and is accordingly dismissed. In ground four of the appeal, Mr. Katolo contended that the case of D. E. Nkhuwa v Lusaka Tyre Services Limited1, was not applicable to this case because it originated from the High Court and not the Industrial Relations Court, and is therefore not binding on matters heard by the Industrial Relations Court. To support his submission Mr. Katolo cited the case of Zambia Consolidated Copper Mines and Jackson Munyika Siame and 33 others2 in which we held that: “Only orders made by the Industrial Relations Court can have a binding effect on the parties to the action and any other party who is affected by that order." J16 In response to ground four of the appeal, Mr. Mwanza submitted that it is untrue that the lower court solely relied on the case of D. E. Nkhuwa v Lusaka Tyre Services Limited1, to determine the application before it. He contended that the record of appeal shows that the court below relied on the provisions of Section 85(3) of the Industrial and Labour Relations Act and the case of Zambia Consolidated Copper Mines Limited v Elvis Katyamba and others4 to determine the application before it. Mr. Katongo argued that in any event, the case of D. E. Nkhuwa v Lusaka Tyre Services Limited1, which the appellants had a problem with, was relied upon by the Industrial Relations Court to merely show the general principles that a court will follow when dealing with a late application. We have considered the submissions in respect of ground four of the appeal, our considered view is that the court below did not err when it relied on the principles espoused in the case of D. E Nkhuwa v Lusaka Tyre Services Limited1 in deciding whether or not to grant extension of time within which to file the complaint. In our opinion, the case of Zambia Consolidated Copper Mines v Jackson Munyika Siame2 was cited out of context in this regard. The issue in that case was whether, a decision which emanated from the High J17 Court which was on all fours with the Zambia Consolidated Copper Mines v Jackson Munyika Siame2 was binding on the parties that were before the Industrial Relations Court, as the parties were dismissed under similar circumstances. In that case, we held that according to Section 85 (6) of the Industrial and Labour Relations Act, only orders made by the Industrial Relations Court can have a binding effect on the parties to the action and any other party who is affected by that order. This decision did not in anyway, mean that the Industrial Relations Court cannot rely on a principle of law espoused in a matter emanating from the High Court. We have, in a number of appeals emanating from the Industrial Relations Court, applied principles of law from cases outside the realm of employment matters. This is what we did in the case of Zambia Consolidated Copper Mines Limited and James Matale^ which emanated from the Industrial Relations Court. In that case, we had to decide whether a finding of fact can be a question of law and to resolve this issue, we resorted to the criminal case of DPP v Bwalya Ngandu6 in which a similar question was determined. Ground four of the appeal also lacks merit. J18 For the reasons we have given above, this appeal is dismissed. The parties shall bear their respective costs. *4 I. C. MAMBILIMA CHIEF JUSTICE E. M. HAMAUNDU SUPREME COURT JUDGE SUPREME COURT JUDGE