Charles Phiri Ntanda v Kansanshi Mining PLC (Appeal 151 of 2009) [2012] ZMSC 108 (2 October 2012)

IN THE SUPREME COURT OF ZAMBIA APPEAL No. 151/2009 HOLDEN AT LUSAKA/NDOLA SCZ/8/189/2009 (CIVIL JURISDICTION) BETWEEN: CHARLES PHIRI NTANDA APPELLANT AND KANSANSHI MINING PLC RESPONDENT CORAM: MAMBILIMA, DC J., CHIBESAKUNDA & AND MWANAMWAMBWA JJS. ON 1st JUNE, 2010 AND 2nd OCTOBER, 2012 FOR THE APPELLANT: MR. DERRICK MULENGA OF MESSRS DERRICK MULENGA & CO. FOR THE RESPONDENT: MR. M. SAKALA OF MESSRS CORPUS LEGAL PRACTITIONERS JUDGMENT Chibesakunda, Ag. CJ., delivered the Judgment of the Court. Cases Referred to: L 1. 2. Zambia National Provident Fund v Chirwa Zambia Airways Corporation Limited v Gershom B. Mubanga 3. Attorney-General v Marcus Kampumba Achiume 4. Tropics Limited v Ramaswamy Vaitheeswaran 5. National Breweries Limited v Philip Mwenya This is an appeal against the Industrial Relations Court judgment, of 20th April, 2009, in a claim by the Appellant seeking: - • Reinstatement to his position in the employ of the defendant company with full pay for the period stayed out of employment due to the said unlawful/wrongful and or unfair dismissal; • In the alternative damages for unlawful/wrongful and/or unfair dismissal from employment; • Interest; and cost. The Industrial Relations Court held that the Appellant was lawfully dismissed from employment. The Court held that the disciplinary Procedure Code was adhered to by the Respondent when dismissing the Appellant hence this appeal. The evidence for the Appellant before the Industrial Relations Court was given by the three witnesses. The summary of evidence was that the Appellant was employed on 15th November, 2006 as a Solventy Extraction Operator on contract by the Respondent and was also the Chairman of the Mine Workers Union of Zambia at Branch level. There were two Unions at the Respondent Company working place. These were:- the Mineworkers Union of Zambia (MUZ) and National Mines Union Workers (NAMUW). J2 In January, 2008 the bargaining for the collective agreement started between the Management and the Union for the increase of salaries and conditions of service for workers. On the 9th of April, 2008, the Management of the Respondent declared a dispute with the Unions. The Hon. Deputy Minister of Labour by then, Mr. Austin Liato, intervened on behalf of the Government. As a result, a Draft Collective Agreement was prepared by the Respondent. Tn When this Draft Collective Agreement was perused by the Union members, it was found that it had some anomalies. This necessitated the President of MUZ to look at that Draft Collective Agreement because of the anomalies. The President requested the Appellant and five other Union officials namely:- Boyd Chaile (Treasurer), Jackson Chomba (Vice Chairman), Bright Simikoko (NAMUW), Kenneth Mulenga (Treasurer-NUMAW), Mr. Yobe Banda (Secretary NAMUW) to travel to Kitwe for consultations with him on the anomalies found in the Draft Collective Agreement drafted by the Respondent. It was the testimony of the Appellant that before this group of Union Members left for Kitwe, the President of MUZ sought permission from Mrs. Linda Mambwe who granted the permission for the Appellant and the other five official of the Union to travel to Kitwe. J3 The Appellant testified that he personally witnessed the President of MUZ seeking authority from this Mrs. Linda Mambwe on the phone. It was therefore, his evidence that this group of Trade Union Officials traveled to Kitwe in the period of 28th to 29th May, 2008 with permission, as 28th to 29th May, 2012 were working days. It was his evidence that they came back on the 30th May, 2008. On the 31st May, 2008, the Appellant was on duty attending a Safety Meeting at the Tank House at the Respondent’s working place, when he was telephoned by another Union Official, Bright Simukoko informing him that the two Presidents of the Unions (MUZ and NAMUW) had arrived at Kansanshi Mine and that they wanted to address the Workers on the anomalies in the Draft Collective Agreement at the Control room. He then sought permission to meet the Presidents. Permission was granted. According to the Appellant’s evidence, as he was trying to meet the Presidents he discovered that the Presidents were not allowed to address the Workers. So there was no meeting with the Presidents. The Appellant further testified that, a group of workers that gathered to be addressed by the two Presidents, dispersed because he instructed them to go back to their duties. This group obeyed as instructed and within five to six minutes they resumed their duties, he also resumed his duties. J4 He was surprised that at lO. OOhours, Mr. Kolala summoned him that he had three cases to answer, and these were:- 1. Negligence as it was alleged that he stopped the Front Machine Screw Feeder on 21st March, 2008; 2. absenteeism from duty from 28th to 29th May, 2008; and 3. Inciting employees to gather at the Control room. The Appellant’s contention before the Industrial Relations Court was that, this was a breach of the Disciplinary Procedure Code, because Mr. Kolala was not his immediate supervisor, he was supposed to be charged by Mr. Mu tale. The Appellant’s evidence was that, he denied all the three charges leveled against him. On the first charge he denied that he was not negligent. On the second charge of absenteeism, the Appellant, in his exculpatory statement, referred the Respondent to the Union head office explaining that, the President sought permission from Mrs. Linda Mambwe on their behalf. On the third charge, he denied it. The Appellant’s contention is that he was dismissed on the 13th of June, 2008 on the charge of inciting employees, the charge which was not substantiated. The Appellant further averred that he was summoned to the hearing of the charges by the Respondent. At this hearing RW2 Mr. Kolala, who surcharged him, was part of the disciplinary committee, which heard the allegations against him. This, according to him was also a breach of the Disciplinary Code. J5 At this hearing, the Respondent Management accepted his explanation that he was not negligent. He was also, acquitted of the charge of absenteeism. Further, he testified that the Respondent found him guilty on the last charge of inciting workers, even though at this hearing the four (4) witnesses who had incriminated him that he, the Appellant had incited workers to abandon their duties by calling a meeting that the President of MUZ and NAMUZ had called, were not called to give evidence against him for him to have been able to challenge them. He told the Court that there were 52 workers who attended the safety talk and only four (4) gave statements incriminating him on the 3rd charge of inciting workers. The Appellant’s statement is that the recorded statements of these four(4) workers were so similar that it gave the impression that these statements were rehearsed and further discarded this statement as false. This evidence by the Appellant was supported by the evidence of CW2 and CW3. CW2, another union official, testified that he was in the company of CW1 (Appellant) and left Kansanshi for Kitwe on the instruction of the President of MUZ on the 28th and 29th May, 2008. He left Kansanshi with the Appellant and four (4) others because they were told by the President of MUZ that he had obtained permission from Mrs. Linda J6 Mambwe an Official of the Respondent Company, to travel to Kitwe for consultations on the Draft Collective Agreement. On the allegation of inciting employees; CW2 testified that the two Presidents of MUZ and NAMUW had asked them to organize workers for them to address the workers on the anomalies in the Draft Collective Agreement. There was no such a meeting because they were told that the Respondent Management had refused to allow the two Presidents to address the workers. He testified that they found the few workers who gathered at the Control room and were told to go back for duties; and that the few workers peacefully went back to their duties. He described this episode of the workers getting back to duty as orderly, and that it took about ten to fifteen minutes and that it was very peaceful. According to CW2, the Respondent dismissed the Appellant because he was a trade union person, as the charges framed against him were not fair and discriminatory. CW3: Richard Mbulu, President of the Mine workers Union of Zambia supported the evidence of that of both the Appellant and CW2. He testified that the Appellant and the other Union Officials had been engaged in this collective bargaining and that they travelled to Kitwe to seek further consultations with him. He testified that he obtained permission from Mrs. Linda Mambwe, for the Appellant and the other J7 Union Officials to travel to Kitwe on 28th to 29th May, 2008 and that this permission was granted. He also testified that due failure to reach agreement with Management, the Union requested Management to facilitate a meeting between them and the Respondent. This is why he led the team of MUZ and NAMUZ officials to meet the general membership to try and explain this position. The evidence for the Respondent was given by four witnesses. In summary, the evidence was that yes, the Appellant was one of the active Union members and that he was a member of the MUZ at Kansanshi. He was covered by the terms and conditions in the Disciplinary Procedure Code. According to the evidence for the Respondent, the Appellant was dismissed following three charges leveled against him and these were:- 1. Negligence of duty; 2. absence from duty from 28th to 29th May, 2008; and 3. Inciting employees to gather at the Control room. On the charge of absenteeism, the evidence for the Respondent was that the Appellant and the other five (5) workers had gone to perform other duties in Kitwe, during working days, without getting prior permission. J8 The Respondent’s witness gave evidence on the procedure of obtaining permission. His evidence was that a person seeking permission was required to furnish the office with a written request or in the alternative if he had to seek permission telephonically; a letter had to be written subsequently. According to the evidence given by the Respondent, there was no written correspondence for them to go to Kitwe. The evidence on the charge of inciting workers on 31st May, 2008 for the Respondent was that it was a Saturday, and the Appellant had not submitted any written request to seek permission for the Presidents of the Unions to meet workers and so it was unlawful for the Appellant to call the workers to meet the President of MUZ. The evidence given was also that the claim by the Appellant that he was at Safety Talk was false as one of the witnesses who gave evidence that he attended the safety talk did not see the Appellant there. This witness also testified that he saw the Appellant calling all the workers who attended the Safety Talk to go to the Control room. He testified that no one came to hold a meeting with these workers. And that these workers were dispersed by Mr. Kolala. This evidence was confirmed by RW3 who told the Court that on the 31st May, 2008 whilst attending the meeting for Engineering and Production, his counterpart Davis Mulenga came in the meeting to inform him to leave the meeting immediately to go and deal with J9 I workers who were unlawfully gathering to be addressed by the Presidents of MUZ and NAMUZ. He proceeded to the Control room where he found a number of workers gathered. This shocked him as the workers were supposed to be working at the Tank House not attending a meeting. He asked four workers at the gathering what they were doing. They answered that the Union had requested them to be there, to be addressed by the President. It was his testimony that he cautioned the group against that misconduct and asked the workers to go back and resume their duties. Later, he summoned by the Respondent and gave him the three charges. These charges were negligence, absenteeism and inciting workers. On this evidence, the Court below dismissed the Appellant's complaint. The Appellant being dissatisfied with this judgment, have appealed to this Court raising four (4) grounds of appeal. These are:- Ground One:- That the Court below erred in law and in fact in arriving at the conclusion that the Respondent complied with the laid down procedure, when there was evidence to the contrary showing that the Respondent failed to comply with it’s own disciplinary procedure code under clause 2.1, 2.2 and 2.5 (Disciplinary, Grievance and Appeals Procedure). J10 Ground Two:- That the Court below erred in law and fact when it ruled that there was no procedural impropriety or violation of the rules of natural justice for the Respondent witness four (RW4) rendering advice to the charging officer and the same RW4 being part of the disciplinary case hearing committee. Ground Three:- That the Court below erred in law and fact when on documentary evidence the Appellant showed that the Respondent intended to get rid of the Union activities but the Court ruled that the Appellant’s assertions were highly speculative. Ground Four:- That the Court below erred in law and in fact when it ruled as baseless and unsubstantiated the assertion by the Appellant that he was dismissed from employment on account of his involvement in union activities. On ground one, the Appellant argued that the Industrial Relations Court erred in law and fact when it held that the Respondent complied with the laid down procedure when there was evidence that the Respondent failed to comply with it’s Disciplinary Procedure Code in Clause 2.1 and Clause 2.2. According to Appellant these Clause are instructive specific and clear instructions, there was no discretion given to the Respondent. These provisions of a clear mandate that the workers have to be charged by their immediate supervisors. In this case, the Appellant was supposed to be charged by Mr. Mutale who used to report to Mr. Kolala. The Appellant’s argument was that his jn case was distinguishable from the case of Zambia National Provident Fund vs. Chirwa in that the Appellant had suffered injustice as the person who charged him was far more superior in Rank. On ground two the Appellant’s argument was that the Industrial Relations Court erred in Law and fact when it ruled that there was no procedural impropriety or violation of the rules for natural justice for the Respondent witness to advise or guide during the Disciplinary hearing. The Appellant argued that RW3’s participation in the Disciplinary hearing when he had already charged the Appellant was victimization. Zambia Airways Corporation Limited vs Ger shorn B. B. Mubanga (1990-1992) ZR. 149 was cited in support of his argument. The Appellant argued that the rules of natural justice were not followed. When the Respondent was summoned to the meeting to answer three charges on the same disciplinary hearing, taking into account that the allegations he was leveled with occurred at different days as follows Negligence; on the 28th May, 2008 Absenteeism; on the 29th May, 2008; and Inciting was alleged on 30th August, 2008. His argument was that by doing this, it establish a victimization of the Appellant by the Respondent. The Appellant argued that he had J12 pleaded victimization, but the Court below refused to entertain his argument. On the third and fourth ground, the Appellant argued these two together. He argued that the Industrial Relations Court erred in law and fact when it refused to accept his documentary or with evidence that the Respondent intended to get rid of the union activities, by the Court ruling that the Appellant’s assertions were highly speculative. In support of ground three and four, the Appellant demonstrated the Respondent’s intention. The Appellant pointed out to the evidence that the Respondent started enticing workers, who belonged to the Union to, leave the Union, by giving them increased salaries, as stated in document 98. He also pointed out that he and other Union Officials had travelled to Kitwe to seek the views of the two (2) Presidents on the anomalies found in the Draft Collective Agreement, drafted by the Respondent after the intervention by the GRZ in the negotiation for the salaries and conditions of service. He further urged that this Court to hold that the intention of the Respondent was to get rid of the Union activities. This is why the Respondent dismissed him. The Respondent’s response to all the four (4) grounds of appeal is that, this appeal was misconceived as all the four (4) grounds of appeal J13 attacked the findings of fact by the lower court contrary to Section 97 of the Industrial Relations Act Cap 269. Citing a number of authorities such as Attorney-General v Marcus Kampumba Achiume (1983) ZR. 1 and Tropics Limited v Ramaswamy Vaitheeswaran (1996) ZR 129* The Respondent argued that the findings of these facts showed that they were not mixed facts and law. Therefore, the Respondent urged this Court to dismiss the Appellant’s appeal as it was misconceived. s The Respondent argued on grounds one and two together that the Industrial Relations Court was on terra firma when it held that there was no breach of the Disciplinary Procedure Code. The Respondent argued that RW3 the person who charged the Appellant with all the 3 charges was a competent person to do so and no prejudice had been substantiated as alleged by the Appellant as a result of the said charges. The Respondent cited the case of National Breweries Limited v Philip Mwenya (2002) ZR, p. 118 where it was held that:- “As we held in the case of Zambia National Provident Fund v Y. N, Chirwa (1986) ZR. 70, when an employee was committed an offence for which he can be dismissed, no injustice arises for failure to comply with the procedure in the contract and such an employee has no claim on that J14 ground for wrongful dismissal or a declaration that the dismissal is a nullity". The Respondent further argued that this Court should not upset the findings by the lower court in that although the charging by RW2 was by a person who was not the immediate Appellant’s supervisor, he was not the less competent to charge him and the Appellant was not in any way prejudice by that procedure. In the alternative, the Respondent argued that even if this Court were to hold that the rules of natural justice were not observed since the Appellant did not demonstrate that RW2 had a direct interest in the allegation and that he only gave guidance or advice on the procedure for the disciplinary process to be adhered to. The Appellant was fairly indeed justly treated, on grounds three and four, the Respondent’s argument is that the lower court did not error in law and fact when it held that the documentary evidence on record did not show that the Respondent intended to get rid of Union activities, the Respondent argued that the assertions by the Appellant on this argument were not found on any meaningful evidence. Referring to document 98, the Respondent argued that this document was a mere letter in form of a template meant to acknowledge resignations by workers who wished to cease to be Union members. According to the Respondent that document was not evidence of the Appellant’s assertions that the respondent wanted to get rid of Union activities. J15 The Respondent argued also that the Court below was on firm ground to hold that the assertions by the Appellant that he was dismissed from employment on account of his involvement in Union activities were baseless and unfounded. The Respondent’s submissions were that the Appellant was an employee of the Respondent Company and in this respect was obliged to comply with the terms of his employment. Facts, according to the Respondent, were that the Appellant showed his arrogance in his response to the charge of absenteeism. The Respondent compared the Appellant’s approach in his exculpatory response to that of DW2 Jackson Chomba who was also a trade union official and was equally charged with an offence of absenteeism. He (CW2) gave a detailed explanation of how he and the Appellant and others went to Kitwe, to seek views of the two Presidents of the Unions. He (CW2) explained that they went to Kitwe between 28th and 29th May after the President of MUZ got permission on their behalf. According to the Respondent, the dismissal of the Appellant had nothing to do with his role as a Branch Chairman of MUZ. His dismissal was based on his breach of prescribed rules. According to Respondent, Appellant’s dismissal was done in full compliance with the disciplinary procedure code. So the Respondent urged this court to dismiss the appeal. We have considered the record of appeal and the issues raised therein, we note that there was common ground on almost all the facts before J16 the court. The only issue which was before the Court was whether or not the Appellant was lawfully dismissed. It has been argued by the Respondent that the appeal before this court is an attack on the findings of facts and as such contrary to section 97 cap 269. We hold that grounds one and two contain attacks on the findings of facts and as such the appeal relating to these two grounds of appeal is misconceived and therefore dismissed. As regard grounds 3 and 4, the attacks in our view are on the findings by the lower court that, the Respondent’s dismissal of the Appellant from employment was premised on the view that he broke prescribed rules of his employment. That the Respondent’s giving salary increment to the workers to leave union membership was in fact trying to get rid of union activities. We are satisfied that grounds 3 and 4 of appeal relate to the interpretation of document 98 and also as to whether or not there was evidence to support the findings by the lower court that the Appellant broke the disciplinary rules. We incline to hold that these grounds of appeal contain questions of facts mixed with law and as such are not within the ambit of Section 97 of Cap 269. On the evidence before the Court below, it is common ground that the Appellant being Chairman of the MUZ - Branch, took an active role in J17 negotiations on salary increment and general conditions of work for workers at Kansashi Mine. It is also common ground that the Union and Management reached a deadlock in their negotiations. It is also common ground that through intervention of the Hon. Minister of Ministry of Labour Mr. Austin Liato a Drafted Collective Agreement was provided to the Union in the course of trying to break this deadlock. It is also common ground that the Appellant was on union official duties when he left for Kitwe on 28th and 29th May, 2008. The Appellant’s position has been that they left after permission was obtained from Mrs. Linda Mambwe, one of the few Human Resources Manager by the President of MUZ. DW2 who was in the company of the Appellant confirmed this position when he gave the exculpatory statement which statement was accepted by the Respondent resulting in DW2 exonerated. One therefore, would be correct to conclude that permission was granted to the Appellant and DW2 to travel to Kitwe on Union duties. We therefore find that the arguments by the Respondent that the Appellant was arrogant are not justifiable. Also looking on the totality of the evidence, we are satisfied that document number 98 could not be interpreted as a Mine Workers acknowledgement of Mine Workers seeking to leave Membership of the Union. In our view, it was certainly evidence establishing that the J18 Respondent was inducing workers to leave the Union if they wanted increments of their salaries. We reach this conclusion taking into account that the Respondent did not explain why if a worker left the Union he or she got an increment. Therefore, taking the stand by the Union together with other pieces of evidence, we are satisfied that the dismissal of the Appellant was connected to the fact that the Appellant was an active Trade Union official. The Respondent entered into a Recognition Agreement with the Mine Workers Union of Zambia of which the Appellant was a Branch Chairman. Clause 7.12 states that:- “No trade Union representative / alternate shall be victimized for carrying out his/her lawful functions as a trade union representative.99 The action of the Respondent went against the spirit of this Agreement. So we agree with the Appellant that he was unlawfully dismissed. We uphold this appeal. We therefore find that he be paid a sum equivalent to the period of notice plus all terminal benefits. We order interest as per judgment Act Cap 81 on the sum which will be paid to the Appellant. We also order costs against the Respondent. J19 L. P. Chibesakunda ACTING CHIEF JUSTICE I. C. Mambilima DEPUTY CHIEF JUSTICE DGE J20