Chilosha v Attorney General (COMP 6 of 2016) [2016] ZMIC 31 (26 July 2016)

I .' IN THE HIGH COURT FOR ZAMBIA HOLDEN AT NDOLA LABOUR DIVISION BETWEEN: PAUL CHILOSHA AND COMP/06/2016 L~c'iGOURTfOR <: ~ ....•,.10""'&- ~\: ,INDUSTP:Al,r!~ouR"4 ' (;11'-"'1/4, •••_.-' 1.2!""~L~_6JUl 20~f~J1" ••••••• \, .j COMPLAINANT \. -- SEAL 1 "~/J"': A ~{)"P~ /" ~ THE ATTORNEY GENERAL ---~-: RESPONDENT BEFORE: Hon. E. L. Musona JUDGE For the Complainant: Mr. R. Ngulube of Messrs Tembo Ngulube and Associates For the Respondent : Mr. S. Somboshi of Attorney General Chambers JUDGMENT Date: 26'" July. 2016 Cases referred to: 1. Zambia Airways Corporation v Gershom Mubanga (1990-1992) ZR S. C. 2. Bank of Zambia v Kasonde (1995-1997) ZR 3. Harrison Fwalo Chikasa v Chan tete Mining Services Ltd SOL/COMP/10/2016 (unreported) "I J2 Statutes referred to: i. Act No. 15 of 2015 ii. Article 11 of Convention Organization (ILO) 158 of the International Labour iii. S. 26A of the Employment Act, Chapter 268 Other works referred to: a. Paul Lewis, Practical Employment Law, Blackwell Publishers, Pg 167 Oxford, (1992) This Complaint was filed by M/Paul Chilosha against the Attorney General for Zambia. The attorney General was sued in a representative capacity on behalf of the Judiciary and the Judicial Service Commission. I shall, therefore, refer to M/Paul Chilosha as the Complainant and to the Attorney General for Zambia as the Respondent which is what the parties to this action actually were. The Complainant's claim is for the following relief: 1. An order that the termination purportedly by way of notice was in fact a constructive dismissal on account of the Complainant's union membership and activities. 2. An order that the said dismissal was, therefore, unfair wrongful and illegal. 3. An order that the said dismissal was in breach of the law and international standards to which Zambia is a party especially at the International Labour Organization (ILO) level. J3 4. An order for the reinstatement of the Complainant with full benefits. 5. Damages for unfair, wrongful and illegal dismissal. 6. Damages for mental torment, anguish, embarrassment and shock as a result of the Respondent's actions. 7. Costs of and incidental to these proceedings. 8. Interest on all sums found due and payable. 9. Any and other relief the court may deem fit and proper. The duty for this court is to ascertain whether or not the Complainant has proved his claim. The Complainant's evidence was that he was employed by the Judiciary on 25th September, 2005 as a Registry Clerk. He was elevated to Clerk of Court in 2009. He is also a member of the Judicial and Allied Workers Union. In December, 2014 the Complainant was elected Provincial Chairman of the Judicial and Allied Workers Union for Copperbelt Province. His duties as Provincial Chairman for the union were to co- ordinate union activities in the province and conununicate any information to the National Executive Conunittee of the union. There were negotiations for salary increment and other conditions of service between the Complainant's union and the Judiciary Management. The Complainant was invited by the National Executive Committee of his union to be part of the bargaining unit and J4 he did. The two (2) parties to the negotiations failed to reach agreement. On 5th December, 2015 a conciliation meeting was held between the Complainant's union and the Judiciary Management but again failed to reach agreement. The issues upon which the parties failed to agree were salary, transport allowance, housing allowance and medical allowance. What followed was that the matter was taken to court at the instance of the Judiciary through the Attorney General. The Judiciary then obtained an ex-parte court order restraining the Complainant's union from going on strike which was subsequently oonfirmed on 31st December, 2015 after inter-parte hearing. Following that inter-parte order of injunction which restrained the Complainant's union from going on strike all Chairmen were assigned by the Union National Executive COIlllTIittee to explain the status of the court case to their Union Members in their provinces. The Complainant who was Chairman for Copperbelt Province was assigned to tour all districts on the Copperbelt Province. According to the Complainant himself, on 8th or 9th January, 2016 the Complainant addressed members of his union based in Ndola. This meeting at Ndola was reported in the Post Newspaper of 12th January, 2016. Following day on 13th January, 2016 he was given a letter of termination of employment dated 13th December, 2016 but this date was corrected in a subsequent letter to read 13th January, 2016. The Complainant believes that the J5 termination of his employment was because of the Post Newspaper article of 12th January, 2016. The Respondent's witness was M/Patrick Malama who is Acting Deputy Director of Human Resource in the Judiciary. I shall refer to this witness as RW. The evidence for RW was that in 2015 Judiciary Management and the Complainant's union engaged in negotiations for improved conditions of service. This process railed and a dispute was declared. The matter went to court and the court gave a ruling in favour of management restraining the union from going on work stoppage. Arising from this court ruling the Complainant addressed his union members on Copperbelt Province and during this address the Complainant attacked the court system and issued statements which were politically charged. The Complainant described the judgment of the court as a bad ruling. In the same address, the Complainant made a statement that if the Patriotic Front Party and the Republican President in particular did not meet the demands of the union, come August, 2016, the Patriotic Front Government would get zero votes on the Copperbelt Province and that his union would be inclined to support the opposition. These statements were published in the Post News. paper and other print medial as well as on line mews sites. RW further stated that by Policy civil servants are expected to work with the Government of the day and are not expected to get involved in any form of politics. Management then got concerned with those articles which were circulating in the media and the Judicial Service Conunission was J6 informed of the same. After looking at the matter the Judicial Service Commission decided to terminate the services of the Complainant. r have gone through the whole episode of the evidence in this case. r am satisfied that the Complainant was a union leader. It is not in dispute that a union leader negotiates and/or speaks for his members. However, attacking the court or the court system is not within the auspices of Trade Unionism. A Trade Union is a medium for open discussion between employees and their employer. It is not the medium to harangue the court system. The Post Newspaper edition of 12'" January, 2016 quoted the Complainant as follows: "To start with, this ruling has frustrated the works. The ruling is bad ... " The Complainant has not disputed the above quote. The Complainant said this in reaction to the ruling which was granted by the court at Lusaka which restrained the Complainant's union from embarking on a strike. Our Judicial system is clear. If the Complainant's union was not happy with that ruling the best would have been to appeal to a higher court and not to disparage the court or issue derogatory remarks against the court. Courts are there to adjudicate disputes between parties. The Complainant also has access to the courts to file complaints before the court. The Complainant should, therefore, not have been discourteous in his speech and discrediting the same court to which he too has access for redress. , , J7 It is within the mandate of the courts to adjudicate and render rulings, orders or judgments. These are granted on merit. A ruling, order or judgment is based on the facts as presented before the court and in the light of the applicable law. It does not matter even if it does not favour one part and favours the other. A ruling, order or judgment is good and should be respected by all even when it does not favour a particular party subject only to an appeal to a high court. As reported in the Post Newspaper edition of 12th January, 2016, the Complainant further said, "The clock is ticking towards August 11" The Complainant was further quoted saying, "President Edgar Lungu must intervene in this mater. its our salaries and welfare we are talking about here. We have elections in August and with this kind of behavior, PF will get zero on the Copperbelt. There will be chaos and President Lungu will not have it easy." When a union is embroiled in a dispute of a magnitude as this one was, with its employer, it is good rationale to appeal for intervention from others or Republican President. But what the Complainant did was not an appeal to the President. In this case, the Complainant through his out bursts was making threats and attacks on the President and the Patriotic Front Government. That was not dinkum trade unionism. The Complainant strayed into politics. . , I must warn that unions must not practice politics under the guise of trade unionism. The Complainant's idiosyncrasies were ultra vires the realm of trade unionism. Having analyzed the evidence and facts in this case, I must now consider the relief sought. 1. An order that the termination purportedly by way of notice was infact constructive dismissal on account of the Complainant's union membership and activities The learned author of the book Practical Employment, Law (1)defined constructive dismissal as termination by the employee with or without notice, in circumstances where the employee is entitled to terminate the contract because of the employer's conduct. Constructive disnllssal, therefore, is when an employer conducts oneself so unreasonably that the employee is left with no choice but to tender a resignation or to simply stay away from work. This may happen when by the conduct of the employer, the working environment becomes hostile, uncomfortable or unbearable. There was no resignation in this case. The Complainant did not stay away from work but his employment was terminated by the employer. The facts do not show circumstances amounting to constructive dismissal. The claim for constructive dismissal, therefore, fails. , , . 2. An order that the said dismissal was unfair. wrongful and illegal The claim has been structured under three (3)heads. These three (3)heads are (1)unfair, (2)wrongful and (3)illegal. I propose to deal with this claim under those three (3) distinct heads seriatim. (i) Unfair dismissal Unfair dismissal 18 where the disciplinary procedure for dismissing an employee is not followed. In order for a dismissal to be fair the employer must adhere to disciplinary procedure and the employeemust be given a fair hearing. The argument by the Respondent was that the Complainant was not dismissed but it was his employment contract whioh was terminated. Indeed, termination of employment is not the same as dismissal from employment. The difference is that dismissal from employment IS separation from employment which is precipitated by misconduct of an employee. It is a disciplinary measure. Termination of employment is separation from employment in the manner agreed by the parties in the contract of employment or as may be provided by statute. It is not a disciplinary measure. If the reason for the termination of employment relates to misconduct of the employee, then, that becomes a disciplinary measure. The Respondent's witness told this , , no court that the Complainant's employment was terminated because of the Complainant's utterances against the court system and for being involved in partisan politics as evidenced by what was reported about him in the Post Newspapers and that because these did not please the employer. It is, therefore, clear from the evidence of the Respondent's witness that the termination of the Complainant's employment was anchored on the Complainant's conduct. I have found that the Respondent misdirected themselves when they terminated the Complainant's employment without giving the Complainant an opportunity to defend himself on those allegations. When the termination of employment is anchored on an allegation of misconduct it ceases to be termination but dismissal. What the Respondent should have done was to charge the Complainant and hear the disciplinary case. The Complainant should have been given a fair hearing before an impartial committee and accorded an opportunity to defend himself against those allegations. To the extent that the termination of employtnent was anchored on the conduct of the Complainant it was no longer terntination but dismissal, and to the extent that no disciplinary procedure was implored the dismissal of the Complainant was unfair. t. .• • HI (ii) Wrongful dismissal Wrongful dismissal is two (2) fold. First, it is wrongful dismissal if the employer has breached a term of a contract when dismissing an employee,and second, if the allegations upon which the employee was dismissed were not proved against the employee. There were glaring allegations of misconduct by the Complainant but the Respondent did not charge the Complainant. No disciplinary hearing was held yet the Respondent proceeded to separate the Complainant from employment. Failure to hold a disciplinary hearing during which hearing the allegations against the Complainant should have been proved against the Complainant breached the rules of natural justice and this made the Complainant's separation from employment amount to wrongful dismissal. (iii) Illegal dismissal Illegal dismissal is synonymous with unlawful dismissal. Unlawful dismissal is when an employer has breached a Statutory Provision in dismissing an employee. I have already stated that the argument by the Respondent was that they did not dismiss the Complainant from employment but that they terminated his employment contract by notice. " . J12 I am alive to the law on termination of employment by notice. Employment Law in Zambia as amended by S. 5(a)of Act No. 15 of 2015 is that when the employer terminates the employment of an employee,the employer shall give reasons to the employee for the termination of that employee's employment. I have looked at the letter of termination of employment. It was produced in court as exhibit 'PCS' and was also exhibited as 'MLZ1'. No reason in that letter of termination of employment was given by the Respondent to the Complainant. Failure by the Respondent to give the Complainant the reason for the termination of his employment is what constituted a breach of statutory provision, and it is this breach of statute which made the termination of employment amount to unlawful dismissal. The statutory provision which was breached is S. 5(a) of Act number 15 of 2015. It is important to note that Act number 15 of 2015 was assented on 26,h November, 2015. This shows that when the Respondent terminated the Complainant's employment on 1"' January, 2016, Act number 15 of 2015 had already become law and it had become mandatory for the Respondent as the employer to give the Complainant reason(s) for the termination of employment. The reason must be valid enough to warrant termination of employment. The reason must not relate to the worker's conduct or work performance because if it does so, it falls outside the ambit of termination of employment. That becomes a dismissal based on misconduct, poor ~. " . J13 performance or non-performanceof the employee, and, the necessary procedure for dismissing an employee must be followed. Likewise, if the reasons for terminating the employment of the employee are because the employer has stopped. or plans to stop the occupation the purpose of which the employee was employed in that place or because there is no more need for the employee in that occupation for which he was employed, or the occupation of the business for which the employee was employed has corne to an end, then. that is not termination of employment. It is not a dismissal either, that is redundancy. I am also alive to the International Labour Standards. I have looked at Article 11 of Convention 158 of the International Labour Organization (ILO). That Article states as follows: "A worker whose employment is to be terminated shall be entitled to reasonable period of notice or compensation in lieu thereof, unless he is guilty serious misconduct, that is misconduct of such a nature that it would be unreasonable to require the employer to continue his employntent during the notice period." The above Article though talking about termination, it has alluded to misconduct. When an employee is guilty of serious misconduct as this Article suggests, the employee . " . must be caused to go through the disciplinary procedure in order to establish his guilty. Although Zambia ratified convention 158 of the International Labour Organization (ILO) on 9th February, 1990 its value on the Zambian Law is still not binding but merely persuasive. The ratification of the said ILO Convention led to the enactment of Act number 15 of 1997. That Act led to the amendment of the Zambia Employment Act, Chapter 268 which brought in S. 26A. That section reads as follows: HAn employer shall not terminate the service of an employee on grounds related to the conduct or performance of an employee without affording the employer an opportunity to be heard on the charges laid against him". This also shows that when the Respondent terminated the services of the Complainant on grounds related to his conduct as the witness for the Respondent admitted in his evidence, indeed, they fell in breach of S. 26A of the Employment Act, Chapter 268 of the Laws of the Republic of Zambia because they did not give him an opportunity to be heard on the allegations against him. • •• • J15 3. An order that the said disntissal was in breach of the law and international standards to which Zambia is a party especially at the International Labour Organization (ILO)level I have already dealt with this aspect in 2(i)(ii)and (iii)above. For the avoidance of monotony. I propose to state that what I have held in 2(i)(ii)and (iii)above applies here as well. 4. An order for the reinstatement of the Complainant with full benefits The law on reinstatement is clear. The law is that reinstatement is an alternative remedy to damages. Reinstatement can only be ordered if the dismissal cannot adequately be atoned by an award of damages. There must be compelling reasons to warrant an order for reinstatement. I have looked at a plethora of authorities regarding the remedy of reinstatement. In the case of Zambia Airways Corporation Ltd. v Gershom Mubanga (1) at Pg 53 the Supreme Court stated as follows regarding the remedy of reinstatement: "With regard to the question of whether or not there are exceptional circumstances for ordering reinstatement ... we note that the learned trial Judge took into account the necessity of . '. . J16 there being special circumstances before making an order for reinstatement." In the case of Bank of Zambia v Kasonde (2) the Supreme Court stated that: "It is trite law that the remedy of reinstatement is granted sparingly. with great care and jealous and with extreme caution. The learned trial Judge was very much seized with the general principle of the law and she found in this case that there were special circumstances ..... The Respondent has referred this court to the case of Harrison Fwalo Chikasa v Chan tete Mining Services Ltd (3) which was decided by this court. As the Respondent correctly pointed out, this court found that the termination of employment was infact a dismissal because it was wrongful and unfair because it violated Act number 15 of 2015 but only made an order for damages. I have noted that in the case of Harrison Fwalo Chikasa reinstatement indeed was refused because: (a) The Complainant was in senior management, the relationship between himself and other managers at his level had turned sour and no longer conducive for a working atmosphere. (b) The case of Harrison Fwalo Chikasa involved a small Mining Company where relationship between management and its employees was at personal level. . '. . J17 In the instant case, I have noted that the Respondent is a large conglomerate with offices in almost every district of Zambia. The relationship between the Complainant and management is not at personal level, the Complainant can be transferred to any part of Zambia and still enjoy a good working environment. The allegations against the Complainant were not substantiated. The Respondent is a Judicial Institution and those at its helm must at all times adhere to principles of fair play and rules of natural justice. I have taken note of the above special circumstances in this case. These circumstances are compelling enough to attract the order for reinstatement. Now, therefore, I order that the Complainant be reinstated forthwith. This means that the Complainant has been given back his job in the same position with the same perks together with all the other conditions and entitlements as before. He shall be paid all his salaries and other emoluments (if any) covering the period during which his job was purportedly taken away from him. 5. Damages for unfair, wrongful and illegal dismissal I have already stated that reinstatement is an alternative remedy to damages. Reinstatement is granted where payment of damages will not suffice. Having been granted the remedy of reinstatement, therefore, the prayer for damages for unfair, wrongful and illegal dismissal falls away. .. ,. . J18 6. Damages for mental torment anguish, embarrassment and shock as a result of the Respondent's action The Complainant did not lead evidence to show the nature and extent of the mental torment, anguish, embarrassment and shock which he allegedly suffered. On those basis, this claim fails. 7. Costs of and incidental to these proceedings larder costs of these proceedings in favour of the Complainant. (No interest on costs). 8. Interest on all sums found due and payable I order interest on the sums due at the Bank of Zambia rate from 20th January, 2016 when this complaint was filed until full payment. In default of agreement on any of the monies herein, same shall be referred to the Deputy Registrar of the Labour Division for assessment or taxation at the case may be. 9. Any other relief the court may deem fit and proper I have found no other relief to deem fit and proper. For the avoidance of doubt, I have found that an award of damages in this case will not suffice, I have, therefore, not made any award for ~.... J19 damages but have ordered reinstatement instead. I have also awarded interest and costs. Leave to appeal to the Supreme Court within 30 days from today is granted. Delivered and signed at Ndola this the 26th July, 2016. sona E REPUBLIC OF ZAMBIA. JUDICIARY 'aU ••• ~;GH COURT FO.~ 7. AMBIA [27 JUL2016J~ ~ INDUSTRIAL I LABOUR DIVISION JUDGE P. O. BOX 70160 • NDOLA