Masiye v Zambia National Commercial Bank Ltd (Appeal 50 of 1993) [1994] ZMSC 163 (27 January 1994)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 50 OF 1993 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: Augustine Nyambe Masiye Appellant Vs Zambia National Commercial Bank Ltd. Respondent Coram: Gardner, Sakala and Challa JJJS., 27th January, 1994 The appellant appeared in person. Mr. M. L. Mukande of Zambia National Commercial Bank Ltd appeared for the respondent. JUDGMENT Gardner J. S. delivered the judgment of the court. This is an appeal against an order of the High Court dismissing a claim for benefits under a special early retirement scheme. The facts of the case are that the appellant was employed by the respondent, and, in December, 1991, the respondent introduced an early retirement scheme which was circulated to Branch Managers for information of all employees. The terms of this early retirement scheme were special terms and were far better terms than those which employees could have obtained for early retirement for medical reasons. The appellant made an application for early retirement under the special scheme and in his application he Indicated that he had a poisoned leg and that he found it difficult to continue working because he had to look after his parents. The appellant was informed verbally that his application for special early retirement had been refused and the evidence before the court below was that the appellant then saw his legal advisers who wrote to the respondent pointing out that the appellant was not making any specific legal claim but asking that his case should be reviewed because of his medical problems. The respondent bank agreed to discuss his 2/..... medical problems with the appellant, and they did so, as a result of which the appellant was seen by the bank doctor who confirmed that he had a poisoned leg and it was generally accepted that the appellant could not even put his shoe on. The bank then wrote to the appellant saying that because of his medical disabilities he was being retired for medical reasons under the provisions of the scheme for such reasons, which, as we have said, were of lesser benefit than under the special early retirement scheme. The appellant objected to this but the bank insisted that no other form of retirement could be given to him and the appellant therefore brought the present proceedings. In his evidence in court the appellant said under cross-examination:- "It is true that when I had a discussion with the Manager over my health problem I felt I still required to retire because of my health problem. The management wanted me to continue working but I had that medical problem." Our attention is also drawn to the correspondence between the parties, and in particular to a letter written by the appellant after he had been told that he must accept the medical retirement scheme, in which the appellant said that he would continue with his present duties until the matter had been resolved in court. Subsequently the responsible official in the respondent bank saw the appellant and told him that he must cease his duties forthwith because he had been retired under the medical retirement scheme. The learned trial judge found that the appellant had himself made an application for retirement on the grounds of his ill health and that therefore, the retirement under the bank's medical retirement scheme was perfectly in order. The appellant has argued that the special scheme was the scheme under which he applied to be retired and that the bank had no right to retire him under the medical retirement scheme because the terms of that were not favourable to the appellant and he never had any intention of accepting such terms or applying for them. Mr. Mukande on behalf of the respondent has argued that there was evidence that the special retirement scheme was for a limited number of people only, and there was only a limited fund available for payment to those people who could be allowed to take advantage of the scheme. 3/...... J3 He pointed out that the evidence was that some three hundred applicants made applications under the special retirement scheme and only sixty-nine of them were successful some of whom had medical disabilities worse than that of the appellant. Mr. Mukande pointed out that the internal memorandum notifying the staff that there was a scheme available indicated specifically that any member of the staff might apply for early retirement but acceptance should be at the discretion of the management. Despite the argument by the appellant that in his case his applica­ tion deserved favourable consideration and however sympathetic we may feel to the appellant Mr. Mukande's argument must prevail. The bank had an absolute discretion in the matter of accepting applications for early retire­ ment, and, as was pointed out by their witness in the court below, none of the applicants from the appellant's particular branch were successful. Certainly the terms of the respondent's offer of an early retirement scheme did not give rise to any legal right to any unsuccessful applicant. We now have to consider whether the appellant has any claim for being as he says wrongfully retired under the medical scheme which he did not want. Mr. Mukande for the respondent indicated that he felt that the respondent was not able to enforce retirement under the medical retirement scheme but we are unable to agree with him that that can be the law. If any employee is found to be unfit to perform his duties it must be at the discretion of the employer .which discretion must not be unfairly exercised, to insist upon retirement. The alternative would be to dismiss the employee, with the result that the employee would receive possibly one month's salary in lieu of notice and return of any payments he had made to any retirement scheme. The appellant nas indicated to us that between the two possibilities the medical retirement scheme would be more beneficial to him. We are quite satisfied that the appellant had no right to be included in the special retirement scheme, and, having regard to the evidence, we are satisfied that the respondent was entitled to retire the appellant under the medical retirement scheme. For those reasons the appeal is dismissed. In the special circumstances of this case each party will bear its own costs of the appeal. 4/...... J4 B. T. GARDNER SUPREME COURT JUDGE F L ^AKAI A SUPREME COURT JUDGE M. S. CHAILA SUPREME COURT JUDGE