Coin Security International Limited v Tilimboyi Singani and 176 Ors and Anor (APPEAL NO. 96/2003) [2004] ZMSC 138 (1 December 2004)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 96/2003 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: COIN SECURITY INTERNATIONAL LIMITED APPELLANT AND TILIMBOYI SINGANI & 176 OTHERS GUARDS UNION OF ZAMBIA 1ST RESPONDENT 2nd RESPONDENT Coram: Sakala, CJ, Chibesakunda and Chitengi, JJS on 19th February 2004 and pt December 2004 For the Appellant: Mr Mr N Nchito ofMNB For the Respondent: In Persons For the 2nd Respondent: Mr. Chola, Deputy Secretary of the Guards Union JUDGMENT Chibesakunda, JS, delivered the Judgment of Court Cases referred to: Laws referred to: 1. 2. Statutory Instrument No. 2 of 2002 The Industrial and Labour Relations Act. Cap 269, Section 97 In this appeal Coin Security International Limited, the Appellant are appealing against the Industrial Relations Court judgment, which was in favour of the 1st and 2nd Respondents. The case for the Respondents at the Industrial Relations Court was that the 1st Respondent and 175 others were employed by the Appellants as security guards. By May 1, 2002t the Appellants wrote letters to each of these Respondents terminating their employment. The letters were:- - J2 - " ..... Date l"t May, 2002 Mr. Singani Tilimboyi Company Number 3982 RE: TERMINATION OF El\.1PLOYMENT Following the termination of Contract Number MC 0038.0 between Mopani Copper Mines Pie and Coin Security International (Z) Limited with effect 01 May, 2002, I write with regret to advise you that your services have been terminated with effect from 01, May, 2002. Accordingly you will be paid whatever is due to you less any monies you may be owing to Coin Security International (Z) Ltd. I want to thank you for all the hard work you have put in sometimes under difficult conditions and wish you on behalf of the Company and indeed on my own behalf the best of luck in your future endeavours. Best regards Coin security international (Z) Limited Pine Pienaar General Manage c.c. Principlal Labour Officer - Kitwe c.c. Guards Union of zambia - Kitwe" According to the findings before the Industrial Relations Court, the Appellants had employed all these former employees to provide security to Mopani Copper Mines Plc. This contract between the Appellants and Mopani Copper Mines Plc, Contract No. 0038.0, was terminated. So it became impossible for the Appellants to keep all the employees on the pay roll. It is also their finding that the Appellants paid all the Respondents their terminal salaries on the date when each employee surrendered the uniform. It is also the evidence before the Industrial Relations Court that there was no collective agreement in place between the 2nd Respondent and the Appellants. It was thus agreed that in order to compute terminal benefits, reliance was to be placed on the provisions of Statutory I11strument (1) when computing redundancy packages. Their evidence before the Industrial Relations Court was that at no time did the Appellants offer any alternative employment to the 1st Respondent. They made request to the Appellants asking for some of the employees to be deployed on 6th May 2002. - J3 - According to the evidence the Appellants asked for some time to study and according to them at no time did they discuss alternative employment. Strangely enough, the Appellants refused to pay the Respondents their redundancy packages on the grounds that they had offered alternative employment to the Respondents. The evidence for the Appellant before the Industrial Relations Court was that, yes, the 1st Respondent and others were former employees and that they had to terminate the contract with these Respondents because the contract between them and Mopani Copper Mines Plc was terminated. But they further testified that they refused to pay redundancy packages because they still needed the services of the 1st Respondent and others. As far as they were concerned, they were still their employees and as such they did not qualify for redundancy payments. The Appellants' witness supported this assertion by the Appellants and testified that there were in the same group as the Respondents whose contracts were terminated by the Appellant. According to them at a meeting subsequent to the letter of dismissal, the Appellants offered them alternative employment. On the evidence before the court, the Industrial Relations Court accepted the evidence of the Respondents and ruled in favour of the 1st and 2nd Respondents. Now before us, the Appellant's Company has advanced two grounds. The first ground is that of attacking of the Industrial Relations Court findings of fact. It was argued in support of this appeal that the Industrial Relations Court erred in finding that the offer for alternative employment was only verbal and not in writing ignoring the evidence of written offers of alternative employment made to the Respondents. The Appellants referred to page 64 of the record where DW3 testified that:- "ln pp4 under any other business, alternative employment was discussed." And they referred to pages 24 - 26 the minutes of the meeting between the 2n11 Respondent and the management of the Appellant. In the second ground it was argued that the Industrial Relations Court erred in law in not considering that because there was an offer of employment, this precluded the - J4 - Respondents from claiming the redundancy payments under Section 26B of the Employment Act. It was argued for the Appellants that the offer of alternative employment need not have been a specific confirmation. In this case, even the offer at the meeting was an offer of alternative employment. That should have been sufficient to establish that the 1st Respondent and others were offered this employment. The Respondents in response relied on the submission they had made before the Industrial Relations Court. We have considered the arguments and the issues raised by the Appellants. We have also checked the record. The view we hold is that the grounds as argued by the learned counsel are on the findings of fact by the Industrial Relations Court. This court therefore has no jurisdiction under Section 97 oflndustrial andLabour Relations Act (2) to entertain such an appeal as Section 97 says:- ''Any person aggrieved by any award, declaration, decision or judgment of the Court may appeal to the Supreme Court on an_y point o.f law or any point of mixed law and fact." We hold therefore that the appeal is misconceived. We, therefore, dismiss the appeal with costs. EL Sakata CHIEF IDSTICE L P Chtl>esakunda SUPREME COURT JUDGE P Chitengi SUPREME COURT JUDGE