Derek Mukokanwa v Development Bank of Zambia (APPEAL No. 120/2014) [2017] ZMSC 308 (14 March 2017)

Jl IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL No.120/2014 BETWEEN: DEREK MUKOKANWA APPELLANT AND DEVELOPMENT BANK OF ZAMBIA RESPONDENT Coram: Mwanamwambwa DCJ, Hamaundu and Kajimanga, JJJS On 7 th March 2017 and 14th March 2017 FOR THE APPELLANT: In person FOR THE RESPONDENT: Mr. B. Gondwe, Messrs Buta Gondwe and Associates JUDGMENT Kajimanga JS, delivered the judgment of the court. Cases referred to: 1. Chilanga Cement Pie v Kasote Singogo SCZ Appeal No. 13 of 2009 2. Robinson v British Island Airways Limited [1978] I. C. R 304 3. Herwitt Chola and 154 Others v Dunlop Zambia Limited SCZ Appeal No. 108 of 2001 (unreported) 4. Development Bank of Zambia v Mambo ( 1995 - 1997) Z R 89 5. Attorney General v Peter Mvaka Ndhlovu (1986) Z. R. 12 6. Nkhata & Others v Attorney General (1966) Z. R 124 Legislation referred to: 1. Employment Act Chapter 268 of the Laws of Zambia. Sections 26A, 26B (2) (a) and (b) and 51 r • • J2 2. Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia. Sections 85(5) and 92(1) This is an appeal against the judgment of the Industrial Relations Court which dismissed the appellant's claims. The appellant commenced an action in the court below seeking the following reliefs: That he be deemed as having retired at the statutory retirement age as his retrenchment was wrongful, unlawful, unwarranted and unfair termination; damages being twenty four months' salary inclusive of other allowances for the wrongful, unlawful, unwarranted and unfair termination of his employment; dues for the period of one year seven months he occupied the office of Human Resource and Administration Manager at the salary scale of the current holder of the office; and long term gratuity/retirement package that he would have been entitled to in March 2013. The background leading to this appeal is that on 1st February, 2000 the appellant was employed by the Respondent as Assistant Information Systems Manager. Following structural reforms, the Board of the respondent Bank subsequently resolved that employees be paid their accrued benefits and separated from the respondent r • . J3 and the appellant received a letter to that effect. On 13 th March, 2003 the appellant was re-engaged in the same position of Assistant Manager Information Systems. From 13th July, 2010 up to 23rd August, 2012 the appellant acted as Human Resource and Administration Manager in addition to his substantive position and received an acting/responsibility allowance. Following a subsequent restructuring exercise the respondent undertook, the appellant and other employees were informed by the respondent on 12th November 2012, of its intention to separate them from employment effective 10th January, 2013. He was also informed of the separation package. By letter dated 8 th January, 2013 the respondent informed the appellant that following the restructuring process in which he was not placed, he would be separating from the respondent through retrenchment on 10th January, 2013. The letter also outlined the appellant's retrenchment benefits. The appellant was aggrieved by the termination of his employment and took out an action in the court below. The gist of his testimony was that he was employed by the Respondent as Assistant Information Systems Manager on 1st February, 2000 and confirmed in his position on 10th August, 2000. In 2003 he was one J4 of the employees who had been placed on a voluntary separation scheme due to financial constraints the respondent was going through. He was re-engaged in the same position on 13th March, 2003 . In 2008 his position of Assistant Information Systems Manager was upgraded to Manager Information Systems and was awarded a minimal salary increment. He was however, unable to produce the letter of promotion. In July 2010, he was appointed to act as Human Resource and Administration Manager in addition to his substantive position. For this additional role , he received an acting allowance of 10% of his basic pay in accordance with clause 9 of the conditions of service. The appellant further stated that on 12 th November, 2012 the respondent notified all the employees that were recruited from 2003, of its intention to carry out a separation exercise with effect from 10th January, 2013. The employees were notified to apply for the jobs that were to be internally advertised. Out of the thirteen employees who had been retrenched, only two of them were not offered employment. His efforts to appeal against the retrenchment on 25 th January, 2013 proved futile and later, the respondent employed someone to fill his position. He urged the lower court to consider paying him damages for acting in the position of ' . JS Human Resource and Administration Manager for a period in excess of six months. He also prayed that his retrenchment package be recalculated based on a higher salary scale that was offered to the Human Resource and Administration Manager. Alternatively, he prayed for reinstatement or payment of damages in the event that the court found the retrenchment to be unlawful and wrongful. The respondent's witness was Victor Chisanga Ng'andu, its Human Resource and Administration Manager. His evidence was that when he joined the respondent in December 2012, he was mandated by the Managing Director to help with the restructuring process which was already in progress. He called for a meeting with all the members of staff and notified them on the procedure they needed to comply with before the contractual separation process was concluded. All the affected employees were requested to re-apply for the new positions, with the full knowledge that the respondent ·reserved the right to accept or reject any application. The appellant was not found suitable for re-employment and was formally separated from employment as per the letter dated 8 th January, 2013. He reiterated that the appellant's claims were baseless and implored the court to dismiss them. J6 The witness also stated that although the Certificate of Service that was attached to the appellant's letter of retrenchment referred to him as manager, it was erroneously stated because his substantive position was that of Assistant Manager and the respondent subsequently corrected the Certificate of Service. He further stated that the calculation of the appellant's separation package was based on his substantive grade and that the salary scale for the Manager Information Technology was higher than that of the Assistant Manager Information Systems. After considering the evidence before it, the question for determination by the lower court was whether the respondent's retrenchment process was flawed. The court answered this question in the negative, on the basis that the appellant was given reasonable notice of almost two months of the respondent's intention to effect the contractual separation on 10th January, 2013. Further, that the appellant was paid a separation package which was calculated in line with the respondent's retrenchment rules. The lower court also found that the appellant was not eligible to be paid dues for the period of one year seven months he acted in the position of Human Resource and Administration Manager at the J7 salary scale of the current office holder because he did not act with a view to a substantive appointment but for administrative convenience only. The lower court further found that the appellant's retrenchment package was correctly computed based on his substantive position of Assistant Manager Information Systems. The court reasoned that the appellant's letter of offer of employment dated 13 th March, 2003 clearly stipulated that he was employed as Assistant Manager Information Systems in DBZ Scale 4; that all pay statements produced by the appellant and filed into court on 18 th December, 2013 confirmed that his job title was that of Assistant Manager Information Systems in salary Scale 4; that the appellant had failed to produce documentary evidence to show that he was indeed upgraded to the position of Manager Information Systems; and that the mere fact that the appellant was referred to as Manager Information Systems in the letter dated 13th July, 2010 is not conclusive and sufficient to prove that he was promoted to that position in 2008. Dissatisfied with the judgment of the lower court, the appellant . •' . J9 appellant's conditions of service for Non-Unionised Members of Staff in DBZ4-6 at page 42 of the record of appeal. According to the appellant, this cannot be equated to a 'Notice of Retrenchment' as held in the case of Chilanga Cement Pie v Kasote Singogo 1 since it stated neither 'retrenchment' nor 'redundancy' as the mode of separation; and should, therefore , be dismissed as insufficient notice of retrenchment or redundancy . The appellant also contended that the lower court misdirected itself when it held at page 16 , line 10 of the record of appeal that the respondent conformed to its retrenchment rules in carrying out the retrenchment exercise as there was no clause in his conditions of service to which the respondent conformed in carrying out the retrenchment exercise. Further, that there were no retrenchment rules adduced on record by the respondent as proof to which it conformed in carrying out the retrenchment exercise. It was also the appellant's argument that the lower court erred when it held that the appellant's termination of employment was not unwarranted and unfair. He buttressed his argument by stating that the respondent's declaration in the 'Notice of Separation' at page 60 of the record of appeal that "Following the Staff Committee Meeting of has appealed on four grounds as follows: J8 "1. The court below erred in law and fact when it held that the complainant's [appellant's] termination of employment by way of retrenchment was not wrongful, unlawful, unwarranted and unfair. 2. The court below misdirected itself in law and fact when it held that the complainant [appellant] was not eligible to be paid dues for the period of one year seven months he acted in the position of Human Resource and Administration Manager. 3. The court below erred in fact when it dismissed the complainant's [appellant's] claim for the recalculation of his retrenchment package on a higher remuneration rate equivalent to the Human Resource and Administration Manager or his substantive position, whichever is higher. 4. The court below misdirected itself in law and fact when it held that the complainant's [appellant's] job title was not wrongfully changed from full Manager to Assistant Manager Information Systems." Both parties filed written heads of argument on which they relied entirely at the hearing of this appeal. On the first ground of appeal, the appellant submitted that the lower court failed to acknowledge that the "Notice of Separation" giving three months' notice for the contractual separation dated 12 th November, 2012 at page 60 of the record of appeal was an ordinary termination of contract of service by notice in conformity with clause 2.4 of the ,. •' JlO 4 th October, 2012 and in light of the restructuring exercise of the Bank, it was resolved to terminate all contracts of serving employees" was null and void as the notice was not issued to all permanent and pensionable employees but to only a selected few who had been in employment from 2003, which was unfair as no reasons were given for targeting only long serving employees for termination. Further, that the respondent never adduced evidence of compelling reasons for undertaking the restructuring process. He argued that no evidence was given by the respondent showing which jobs or whether the position of Manager Information Technology had been modified by the restructuring process, compelling the respondent to internally advertise the jobs as per the testimony of RWl at page 153, line 20 of the record of appeal. The appellant further submitted that despite the respondent stating that all jobs were going to be advertised internally, only seven indicated on pages 64 - 71 of the record of appeal were advertised. Further, that out of these, the jobs of Manager, Internal Audit - DBZ3, Administration and Procurement Officer - DBZ6 and Legal Assistant - DBZS appearing on pages 64, 67 and 68 of the record of appeal had been vacant prior to the advertisement; while other jobs . ' -· Jll of Information Technology Manager - DBZ4, Human Resource and Administration Officer - DBZ5, Information Technology Officer - DBZ6 and Assistant Accountant - DBZ6 indicated at pages 55, 66, 69 and 71 of the record of appeal were not vacant. From the foregoing retrenchment process, the appellant contended, not all the re employed staff had their jobs advertised internally, thereby rendering the restructuring and retrenchment exercise unwarranted and unfair as it was against the norms of natural justice. He also argued that modifying a job or responsibility in order to satisfy the respondent's new mandate should not have led to his retrenchment or redundancy because jobs and responsibilities are normally constantly being re defined and adapted to suit different operational circumstances. The appellant further submitted that his retrenchment was wrongful and unlawful because there was no evidence that the respondent's Board had passed a resolution to carry out the retrenchment exercise and the process the exercise would take, including the selection criteria; there was no evidence of a job evaluation exercise having been carried out by the respondent and a Job Evaluation Report which should have been applied as a guide in the retrenchment exercise; both the Managing Director and the '. J12 Human Resource and Administration Manager had no sufficient time to assess the appellant's performance record over a reasonable period to justify his incapacity for the internally advertised position of Manager Information Technology indicated at page 65 of the record of appeal, as they had just been employed by the respondent in or about July and December 2012 , respectively, and he had no poor work performance or disciplinary record which should have been used as a basis of assessing his re-employment or retrenchment; and his non-employment was not due to being unsuitable for the internally advertised job of Manager Information Technology but the action taken by the respondent was an indication that the nature of the job had purportedly changed significantly beyond the appellant's qualifications, experience, skills and ability, consequently rendering him redundant. The appellant placed reliance on the cases of Robinson v British Island Airways Limited2 and Herwitt Chola and 154 Others v Dunlop Zambia Limited3 . It was his argument that when his contractual separation was effected on 10th January 2013, redundancy had taken place. The appellant further contended that the lower court turned a blind eye to the respondent's violations of section 26B(2)(a) and (b) of J13 the Employment Act, Chapter 268 of the Laws of Zambia ("the Act"), in that there was no 30 days 'Notice on Redundancy' issued to the appellant as the 'Notice of Separation' was just an ordinary notice of termination of contract of service by notice and the one month pay in lieu of notice is insufficient notice as redundancy is a planned, clear and transparent selection procedure which an employer has to engage in, in order to effect redundancies as held in Chilanga Cement PLC v Kasote Singogo; and there were no discussions with the appellant over measures the respondent was going to take to mitigate the adverse effects of redundancy. The appellant also submitted that the lower court turned a blind eye to the respondent's violation of section 26A of the Act in that the appellant was not given an opportunity to be heard on why the • respondent had not re-employed him either due to misconduct or non-performance. Further, that the reliance and utilization of the "Expression of Interest Forni' as a selection criteria for re-employment was against the rules of natural justice in that the respondent had in its custody performance and skills records of the employees and had ultimately internally advertised the jobs, which was sufficient criteria for making re-employment and suitability decisions; and this tool . ' ' J14 was never part of the appellant's conditions of service for employment termination by redundancy and therefore, the respondent acted unilaterally in applying it; there were no jobs created by the respondent compelling the use of any tool as re-employment criteria; and in the internal advertisement, the respondent stated that it sought to recruit qualified, self-motivated and experienced professionals, which attributes the purported tool never gathered or solicited to determine the selection of suitable employees as it merely requested them to state how the jobs would contribute to the overall vision, goals and objectives of their respective departments and the respondent in general. The appellant's final contention on the first ground of appeal was that the lower court turned a blind eye to the respondent's violation of section 26B (1) (a) and (b) of the Act in justifying the respondent carrying out the retrenchment exercise in that, the respondent never ceased or intended to cease carrying on the Information and Communication Technology operations by virtue of which the appellant was engaged as Manager Information Technology; and the respondent never ceased or reduced the requirement for Manager Information Technology as information and J15 communication technology services were still required in-house and the respondent remained a viable going concern. We were accordingly urged to allow this ground of appeal. In support of the second ground of appeal, the appellant submitted that the appointment letter at page 55 of the record of appeal dated 13th July, 2010 from the respondent's Board Secretary/Legal Counsel never stated that the acting appointment was for administrative convenience and its duration was also not stated. According to the appellant, the non-disclosure of the details and nature of the acting appointment was in violation of section 51 of the Act which states that: "Every employer shall, before an employment or when changes in the nature of such employment take place, cause to be explained to such employee the rate of wages and conditions relating to such payment." The appellant submitted that the acting appointment effectively combined the departments of Information Technology and Human Resource and Administration into one unit, whose operational demands were beyond the normal acting appointment in a higher position as per clause 9 of the appellant's conditions of service appearing at page 46 of the record of appeal. He argued that the J16 respondent's maximum probationary period was six months as per clause 2.2 of the conditions of service appearing at page 42 of the record of appeal, which should have applied as the maximum acting appointment period beyond which the respondent should have terminated, extended or remunerated the appellant commensurate with the extra functions and responsibilities he was subjected to. Further, that the respondent's rejection to upgrade or increase the appellant's remuneration as per letter dated 25 th September 2012 at page 59 of the record of appeal on the basis that the appellant was acting for administrative convenience and that the responsibility allowance had sufficiently catered for the extra duties the appellant performed in his acting appointment was unfair and against the norms of natural justice. This was because, the appellant contended, • the responded employed the Human Resource and Administration Manager in early December, 2012 with an increased grade and salary scale, without extending the same to the Manager Information Systems despite having acted in the former position for more than two years and the acting position being at the same salary scale and grade with the appellant's substantive position. The appellant accordingly prayed that this ground of appeal be allowed. J17 In support of ground three, the appellant submitted that in or about April 2010 as stated in paragraph 7 of his affidavit in support of the complaint at page 22 of the record of appeal, he was upgraded to the position of Manager Information Systems. He referred us to his testimony at page 151, line 15 of the record of appeal that he could not produce the letter of appointment because it had gone • missing from his office at the time of separating from the respondent . That following his upgrade his job title was accordingly amended to Manager Information Systems in the payroll system of the respondent in or about October 2010 and not 2008 and that his pay statements for two years from October 2010 to October, 2012 at pages 128 - 117 of the record of appeal all show his job title as Manager Information Systems in salary scale 4. In the appellant's • view, the lower court acted unfairly at law by holding that there was no documentary evidence to show that the appellant was upgraded to Manager Information Systems because it had powers under section 92(1) of the Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia which provides that: "The court may summon witnesses, call for the production and inspection of books, documents, records and other things, and to J18 examine witnesses." The appellant further assailed the lower court's finding that his retrenchment package was correctly computed based on his substantive position of Assistant Manager Information Systems for these reasons: That his retrenchment package at page 62 of the record of appeal shows a re based basic salary ofKl0,199.00; the pay • statements from October 2012 [2010] to April 2011 show his basic pay as Kl0,198,520.71 equivalent to the rebased amount of K 10,199.00 which was used to calculate the appellant's retrenchment package, clearly confirming that the basic pay on the retrenchment package was that of Manager Information Systems in salary scale 4; that the respondent never objected to the said pay statements and the job title; and that the lower court failed to apply • substantial justice on the available facts as required by section 85(5) of the Industrial Relations Act when it dismissed the appellant's claim to have the retrenchment package recalculated on a higher remuneration rate when the respondent had upgraded the salary scale and grade for the Human Resource and Administration J19 Manager but the same increment was denied to him despite the two positions being at the same salary scale. The appellant also argued that according to the evidence of the respondent's witness (RWl) at page 154, line 10 of the record of appeal, the current Manager Information Technology was getting a higher salary than what the appellant was being paid, a confirmation that the denial to upgrade the appellant by the respondent was unsubstantiated as it had the financial capacity to do so. We were referred to the cases of Zambia Telecommunication Company Limited v Ambrose Chipowe4 , Attorney General v Marcus Achiume 5 and Attorney General v Peter Njovu6 on the principle that an appellate court would only reverse findings of fact made by a trial court if the findings in question were either perverse or made in • the absence of any relevant evidence or upon a misapprehension of the facts. In particular, the appellant relied on the Zambia Telecommunications Company Limited v Ambrose Chipowe case where this court reversed the findings made by the trial court on the basis that it neither properly evaluated the evidence on record nor had a proper view of the evidence before it. We were accordingly urged to allow this ground of appeal. J20 In support of ground four, the appellant submitted that the lower court misdirected itself when it held that the appellant's job title was not wrongfully changed from full manager to Assistant Manager Information Systems on the grounds that the second Ce was issued on 14th May, 2013 as shown at page 104 of the record of appeal which was beyond the date of termination of the appellant's employment and was therefore null and void, having been in violation of section 79( 1) of the Act; that the lower court erred at law by not making a declaration of which of the two Certificates of Service was substantive, regard being had to the requirement under section 79(3) of the Act on the mandatory issuance of the Certificate of Service by the respondent on termination of the appellant's employment; that issuance of the second Certificate of Service was motivated by malice • and prompted by the appellant instituting court proceedings against the respondent; that the appellant was never consulted over the respondent's findings that the earlier Certificate of Service had an erroneous job title , notwithstanding that the respondent had copies of the letter of the appellant's upgrade to manager in the confidential file and other departments as well as payslips from October 2010 to the time when his employment was terminated in January 2013 ; and 'r J21 that the appellant was issued with a three month Notice of Separation letter on 12th November, 2012 appearing at page 60 of the record of appeal which expired on 12 th February 2013 , by which time he was no longer an employee of the respondent to be bound by changes to his previous conditions of service issued three months later on 14th May, 2013 after the expiry of the notice period. We were therefore urged to allow this ground of appeal. In the respondent's heads of argument, Mr. Gondwe first submitted that this appeal and arguments thereof are misplaced and misconceived as they are different from the claims prosecuted in the court below where the appellant sought the following reliefs: "1. He be deemed as having retired at the statutory retirement age as his retrenchment was wrongful, unlawful, unwarranted and unfair termination; 2. He be paid damages being twenty-four months' salary inclusive of other allowances for the wrongful, unlawful, unwarranted and unfair termination of his employment; 3. He be paid dues for the period one year seven months he occupied the office of Human Resources and Administration Manager at a salary scale of the current holder of the office; and 4. He be paid the Long-Term Gratuity/Retirement Package that he would have been entitled to in March, 2013." • • I I . J22 In response to the first ground of appeal, Mr. Gondwe submitted that the appellant suggests that the retrenchment was not discussed with affected employees and yet he refers to page 150 of the record of appeal where the process was clearly laid out and which the appellant complied with; and that his only quarrel seems to be that he was not re-engaged and yet, he again at page 151 of the record of appeal during his cross-examination, accepts that his being not re engaged was because the respondent was merely exercising its right not to do so. Counsel also referred us to page 151, lines 30 - 34 of the record of appeal and a letter earlier written to the appellant at pages 60 - 61 of the record of appeal that he would be eligible to apply for the jobs that would be available at the bank and that the respondent would reserve the right to accept or reject such • applications . It was contended that the appellant has not demonstrated how his termination by way of retrenchment through restructuring to make the respondent more efficient and responsive to its new role was wrongful, unlawful, unwarranted and unfair as due notice was given as per his conditions of service and the process was notified to all staff as his own evidence in the record of proceedings shows. .. J23 Mr. Gondwe also submitted that the case of Chilanga Cement PLC v Kasote Singogo which the appellant is relying on was a decision whose ratio was the fact that it was an abrupt termination but under the guise of redundancy. That the termination was also motivated or anchored on an earlier incident which the General Manager of the company was using against the respondent. According to counsel, this was not the case in this matter as termination was not abrupt but on a clear procedure and process explained to all employees. He argued that the law on wrongful, unlawful, unwarranted and unfair dismissal is well settled and the appellant had not shown or substantiated that his termination was as a result of any of the reasons he has advanced. Further, that the appellant has changed his arguments to redundancy which was not the claim in the court below as the Information Communication Technology Manager's job is still there. Counsel also contended that the minimum qualifications for the job, however, had been revised as shown at page 66 of the record of appeal which the appellant did not possess nor has he shown any direct equivalent computing degree qualifications. The process, counsel argued, was therefore clearly outlined and the appellant was not ambushed. • • J24 In response to ground two, Mr. Gondwe submitted that there is no justification for this claim as it has no basis in the appellant's conditions of service. He argued that according to page 59 of the record of appeal, the appellant was duly remunerated for the extra duties during the period in which he acted. Counsel further contended that according to page 152, line 10 of the record of appeal the appellant confirms having received his acting allowance as per his conditions of service. In response to ground three, counsel repeated his arguments in respect of ground two above. He further submitted that this claim is neither supported by the appellant's conditions of service nor has he shown in his arguments why this should be the case . He argued that this situation was properly pronounced by this court in the case of Development Bank of Zambia v Mambo 7 where Gardner, JS stated that: "It is all too easy to forget, in cases involving large institutions which make pronouncements about matters such as salary increases that the requirement that contracts need to be given for a consideration in order for them to be enforceable always applies, unless excepted in some way which does not in fact apply here." • • J25 Counsel accordingly submitted that the appellant has not shown under which terms of his conditions this claim in anchored. In response to ground four, counsel submitted that page 154 of the record of appeal shows that this ground has no basis. He referred us to the case of Attorney General v Peter Mvaka N dhlovu 8 in which, on the basis of the ratio in Nkhata & Others v Attorney General9 , this court stated that: "A trial judge sitting without a jury can only be reversed on fact when it is positively demonstrated to the appellate court that: a) by reason of some non-direction or misdirection or otherwise the judge erred in accepting the evidence which he did accept; or b) in assessing and evaluating the evidence the judge has taken into account some matter which he ought not to have taken into account, or failed to take into account some matter which he ought to have taken into account; or c) it unmistakably appears from the evidence itself, or from the unsatisfactory reasons given by the judge for accepting it, that he cannot have taken proper advantage of his having seen and heard the witnesses; or d) in so far as the judge has relied on manner and demeanour, there are other circumstances which indicate that the evidence of the witnesses which he accepted is not credible, as for instance, where those witnesses have on some collateral matter deliberately given an untrue answer." • • J26 Counsel further submitted that even the appellant's own payslips at pages 124 - 14 7 of the record of appeal which were produced by order of the court show that the appellant was Assistant Manager Information Systems despite him having been in charge of generating these payslips in the IT department. This claim, according to counsel, is frivolous. Counsel consequently submitted that this appeal has no merit either in law or fact. In reply to the respondent's heads of argument, the appellant firstly submitted that his heads of argument are in conformity with the reliefs sought and claims prosecuted in the court below. He argued that the first, second and fourth reliefs are supported by arguments in ground one while the third relief is supported by arguments in ground two. In reply to the respondent's arguments on ground one, the appellant submitted that the Notice of Separation letter at page 60 of the record of appeal clearly stated in the first paragraph that the respondent had " ... resolved to terminate all contracts of serving employees." He argued that to the contrary, the appellant in his oral testimony at page 150, line 5 stated that the Human Resource and .• J27 Administration Manager had told the meeting held after the said Notice of Separation letter was issued that " ... all members of staff who were recruited from 2003 were going to be separated from the Bank by 10th January 2013". The appellant contended that whereas the Notice of Separation letter stated that the respondent was to terminate all contracts of serving employees , the Notice of Separation was only issued to those old employees who got employed from 2003. In other words, the appellant argued, new employees who had been recruited in the recent past and current year were not issued with the Notice of Separation letter at page 60 of the record of appeal. The appellant also submitted that whereas the respondent had the right to carry out its mandate, there was no evidence on record in terms of either a board resolution, authorization from the labour officer, an approved re-organisation plan or any other administrative or lawful corporate governance pre-requisite critical enough to support the issuance of the Notice of Separation letter and the subsequent retrenchment letter at page 83 of the record of appeal. On why he did not apply to the external advertisement, the appellant contended that when the job of Information Communication Technology Manager was advertised externally on J28 21 st January, 2013 as shown at page 89 of the record of appeal, he submitted four days later on 25 th January 2013, an appeal against retrenchment appearing at page 88 of the record of appeal. Further, that the appellant through his advocate delivered another appeal letter appearing at page 91 of the record of appeal but he never heard from the respondent until 25 th March, 2013 when the respondent declined his appeal as per the letter at page 92 of the record of appeal, on grounds that all procedures pertaining to the separation of the appellant had been exhausted and dues paid accordingly. It was, therefore, his contention that the respondent's submission that the appellant never participated in the external advertisement should be dismissed as he submitted an appeal to the respondent which was dismissed without being heard. It was also the appellant's submission that the m1n1mum qualification at page 66 of the record of appeal for the internally advertised job of Information Technology Manager were: A Bachelor's degree qualification in Computer Science/Engineering and at least 5 years at management level. That he was in possession of a Bachelor's degree qualification in Computer Science shown at page 75 of the record of appeal, a Masters of Business Administration (MBA) degree J29 final year transcript results at page 79 of the record of appeal and other professional and academic certificates at pages 76 - 82 of the record of appeal and further, that he had more than the minimum 5 years' experience at management level as per his curriculum vitae at page 72 of the record of appeal. He contended that he applied for the internally advertised job of Information Technology Manager but was not offered the job despite meeting and exceeding the stated m1n1mum qualifications and experience for the internally and externally advertised job which are equivalent and identical. The appellant, therefore, argued that the respondent's submission that his qualifications were below the minimum required for the job should be dismissed as they are ill-conceived and misleading. In reply to the respondent's arguments on ground four, the appellant submitted that the payslips at pages 124 - 147 of the record of appeal were produced by order of the court as shown at page 154, line 25 of the record of appeal and they show his job title as Assistant Information Systems Manager from March 2000 to September, 2010. He argued, however, that the payslips at pages 108 - 117 of the record of appeal for October 2010 - October 2012 show his job title as Manager Information Systems. Further, that . > .. J30 despite being in charge of generating payslips in the IT department, updates to employee information regarding changes in names, man numbers, job titles, pay method, bank name and account number as shown on the payslip at page 108 of the record of appeal were done by the IT department through update forms certified by the Finance Department as per his testimony at page 151, line 20 of the record of appeal. The appellant, therefore, contends that the respondent's submission that all payslips show his job title as Assistant Manager Information Systems be dismissed as they were by order of court and show the appropriate job title as expected. We have considered the arguments of the parties, the judgment of the court below and the record of appeal. The appellant has raised various arguments in support of the first ground of appeal. In particular, he contends that the three months' notice of separation dated 12th November, 2012 was an ordinary termination of contract in accordance with clause 2.4 of the appellant's conditions of service which cannot be equated to a notice of retrenchment in the context of the Chilanga Cement Pie v Kasote Singogo case and it is therefore insufficient notice of retrenchment or redundancy; that there were no retrenchment rules adduced by the respondent; that J31 the notice of separation issued to those employed from 2003 was unfair and null and void; that the respondent did not adduce evidence of compelling grounds for undertaking the restructuring process; that there was no evidence that the respondent's Board passed a resolution to carry out a retrenchment exercise; that the lower court ignored the respondent's violation of section 26B(2)(a) and (b) of the Act as the one month pay in lieu of notice is insufficient notice because redundancy is planned and there were no discussions on measures to be taken by the respondent to mitigate the adverse effects of redundancy; that the lower court ignored the respondent's violation of section 26A of the Act as the appellant was not given an opportunity to be heard on why he was not re-employed by the respondent; that the reliance on "Expression of Interest Form" as a • selection criteria for re-employment was against the rules of natural justice; and that the lower court ignored the respondent's violation of section 26B (1) (a) and (b) of the Act as the respondent never ceased to carry on the operations relating to Information and Communication Technology operations. From the outset, we wish to state that none of the arguments advanced by the appellant in support of this ground is sustainable. . . J32 As aptly found by the lower court, the appellant was given reasonable and due notice of almost two months of its intention to effect the contractual separation. In cases of this nature, all that is required of an employer is not to ambush but give sufficient notice to an employee of its intention to effect a separation. The record of appeal clearly shows that the appellant's retrenchment arose from a restructuring exercise conducted by the respondent prior to effecting the separation. The retrenchment process and its terms were amply explained to the members of staff including the appellant, at a meeting addressed by the respondent's Human Resource and Administration Manager. The terms included the employees applying for re-employment after retrenchment and the respondent reserving the right to reject any application for re-employment. The record shows that the appellant applied for re-employment but his application was unsuccessful. In his own evidence at page 151, lines 27 to 32 of the record of appeal, the appellant conceded as follows: "The notice of separation dated 12.11.12 indicated that I was eligible to apply for the new job[s] that were to be made available in the Bank's new structure but he Bank reserved the right to accept or reject any application. The Bank exercised their right to reject my application when they did not re-offer me employment." . ' J33 The appellant has relied on the case of Chilanga Cement Pie v Kasote Singogo. As correctly submitted by counsel for the respondent, that case is inapplicable to the circumstances of this case because it was an abrupt termination disguised as redundancy. Whereas in this case, the appellant's retrenchment was not abrupt but the whole process was explained to all members of staff and subsequently, due notice was given to them. Therefore, the appellant's argument that there were no retrenchment rules adduced by the respondent cannot hold. We also note that the appellant in his arguments is alleging that he was declared redundant. This argument was not raised in the court below. In a plethora of authorities, this court has umpteen times frowned upon parties who bring to the court issues that were not canvassed in the trial court. Consequently, we also accord similar treatment to the appellant's insinuation that his retrenchment was a redundancy as it is incompetently before us. The appellant has argued that the respondent did not adduce enough evidence of compelling grounds for undertaking the restructuring exercise. Our finding is that on the contrary, the J34 respondent adduced sufficient evidence to that effect. The testimony of RW 1 at page 153, lines 8 - 14 of the record of appeal was that: "When I joined the respondent, I found that the process of restructuring had commenced and I was mandated by the Managing Director to help with the process. To that effect I called a meeting for all members of staff. In that meeting I reiterated that the bank had been given a new lease of life by the way of recapitalisation and that Government had directed that the bank needed to refresh its mandate to the country i.e to stimulate economic development and growth through providing financial resources and expert advice to potential and existing entrepreneurs. It was the bank's vision to put up systems and processes that would live up to its mandate." From the foregoing, there can be no doubt that the respondent adduced sufficient evidence to justify undertaking a retrenchment exercise. Consequently, we also find no merit in the appellant's argument that there was no evidence of the respondent's Board resolution to carry out a retrenchment exercise. Furthermore, the appellant's contention that there was no evidence of authorization from the labour officer is, in our view, inconsequential as the retrenchment was triggered by the restructuring exercise embarked upon by the respondent. This did not require the respondent to obtain prior permission from any external body. J35 Section 26B (2) (a) and (b) which the appellant has alleged to have been violated by the respondent states in relevant part as follows: "(2) Whenever an employer intends to terminate a contract of employment for reasons of redundancy, the employer shall - (a) Provide notice of not less than thirty days to the representative of the employee on the impending redundancies and inform the representative on the number of employees to be affected and the period within which the termination is intended to be carried out; (b) Afford the representatives of the employee an opportunity for consultations on - (i) (ii) " Section 26B (2) (a) and (b) of the Act is as clear as it can be. It specifically applies to the termination of employment by way of redundancy. As we have already indicated above, the appellant's termination of employment was not a redundancy as the position of Manager Information and Communication Technology continued to exist and was filled by someone and, therefore, this section is inapplicable to the facts of this case. , J36 The appellant also contended that the respondent violated section 26A of the Act. This section states that: "An employer shall not terminate the service of an employee on grounds related to the conduct or performance of an employee without affording the employee an opportunity to be heard on the charge laid against him." It is plain that section 26A applies to termination of employment on grounds related to conduct or performance. As the record of appeal clearly shows, the appellant was retrenched as a result of not being placed following the restructuring exercise, and not because of conduct or performance. The appellant further argued that the respondent was in violation of section 26B ( 1) (a) of the Act. Like section 26B (2) of the Act, section 26B (1) also deals with termination of employment by redundancy. We will not say more on this issue in view of our earlier conclusion that the appellant's retrenchment was not by way of redundancy. It was contended by the appellant that the notice of separation issued to staff employed from 2003 was unfair, null and void. The view we take is that this argument cannot hold, regard being had to • I' , J37 the fact that every employee was given the opportunity to apply for re-employment. We also find that the appellant has not shown how the use of the "Expression of Interest Form" selection criteria adopted by the respondent violated the rules of natural justice. In the final analysis , we find that the lower court was on firm ground in holding that the appellant's retrenchment was not wrongful, unlawful, unwarranted and unfair. We consequently hold that ground one has no merit. The gist of the appellant's arguments on ground two is that the letter appointing him to act did not state that his acting appointment was for administrative convenience and its duration was not stated, thereby violating section 51 of the Act; that according to clause 2.2 of the conditions of service, the maximum period he should have acted was six months after which his acting appointment should have been either terminated, extended or remunerated. Clause 9 of the appellant's conditions of service states as follows: "9 ACTING ALLOWANCE When an employee is required in writing to act on behalf of another member of staff ... and he performs those duties for a period of not J38 less than 30 days, he will be entitled to an acting allowance equal to two incremental notches within his grade or immediately higher than his substantive grade if his salary is on the sealing of his substantive grade." (underline our emphasis) In his own evidence at page 152, line 10 of the record of appeal, the appellant confirmed having been receiving an acting allowance in the following words: "In the 2 years I acted I was being paid the acting allowance in accordance with clause 9 of the conditions of service." From the wording of clause 9 quoted above, it is obvious to us that remuneration for the appellant's acting appointment could only be on the basis of the said clause. Furthermore, paragraph one of the internal memorandum from the Board Secretary/ Legal Counsel dated 13th July, 2010 in which the latter was being informed of his acting appointment reads in relevant part as follows: "Reference is made to the discussion with yourself, Management has decided to appoint you as the Acting Human Resource and Administrative Manager, with immediate effect, having conduct of all issues relating to that position. This position will be in addition to your current one ... " (underline our emphasis) In our view, a reading of the above paragraph does not in any way suggest, remotely or otherwise, that the appellant's acting .. J39 appointment was for nothing else but administrative convenience, as the new responsibilities were in addition to his substantive job. The appellant has also alleged that the acting appointment was in violation of section 51 of the Act as its duration was no stated. We hasten to state that this argument is totally misplaced. As can easily be noted from section 51 of the Act quoted at page 15 above, it relates e to commencement of employment or changes in its nature and nowhere in that section does it mention the duration of employment, be it in an acting capacity. Clause 2.2 of the conditions of service relied on by the appellant states that: "2.2 The Bank employs the employee on probation for a period of six calendar months starting on the Commencement Date and lasting for the period specified in the contract as the Probation Period. The bank will before the end of that period either confirm or extend the appointment in writing for not more than three months or dismiss the employer. Until this confirmation is given the employee shall be deemed to be on probationary employment." Again, the appellant's reliance on clause 2.2 is also misplaced. Quite clearly, this clause deals with probation period for the first J40 appointment to a substantive position; it does not extend to acting appointments for administrative convenience whose duration may be more than the six months' probation period envisaged in clause 2.2 , as was the case with the appellant's acting appointment. We also find no merit in this ground and uphold the lower court's finding that the appellant was not eligible to be paid dues for the period he acted in the position of Human Resource and Administration Manager. The gist of ground three is that the lower court was wrong to dismiss the appellant's claim for a recalculation of his retrenchment package on a higher remuneration rate of the Human Resource and Administration Manager or his substantive position of Manager Information Systems, whichever is higher. The appellant's retrenchment package is at page 62 of the record of appeal. It was calculated on the basis of a basic salary of Kl0 ,199.00. The appellant's payslip for October 2012 at page 108 of the record of appeal where his job title is indicated as Manager Information Systems reflects a similar basic pay in salary scale 4. We, therefore, find that even assuming the appellant's job title was that of Manager Information Systems as the appellant alleges, the lower court was on '- tJ I , J41 firm ground in dismissing his claim for a recalculation of his retrenchment package as it was based on the salary he was receiving at the time. The appellant's alternative argument is that if his retrenchment package was not recalculated on his substantive position, it should be recalculated on the higher rate of the Human Resource and 4I Administration Manager. We do not accept this argument as it is not supported by the conditions of service. We also take judicial notice that all terminal benefits are based on the existing salary of an employee and not on the salary he would have wished to receive. In the circumstances, we find that the various cases relied on by the appellant are not relevant to the facts of this case and they cannot aid his appeal in any way. The appellant further contended under this ground, that his job title was upgraded to Manager Information Systems sometime in October 2010 and his payslips were accordingly amended. As properly found by the lower court and conceded by the appellant, there was no documentary evidence before the court below confirming that he had been upgraded from Assistant Manager J42 Information Systems to Manager Information Systems. The view we take is that standing on their own without a letter of promotion, the payslips cannot be taken as conclusive evidence that the appellant was upgraded to Manager Information Systems more so, that they were being generated by the appellant. The appellant also accused the lower court of acting unfairly by - holding that there was no documentary evidence to show that the appellant was upgraded to Manager Information Systems when it had powers under section 92 ( 1) of the Industrial and Labour Relations Act to summon witnesses to produce documentary evidence of his upgrade. The point should be made that courts do not prosecute cases on behalf of parties and clearly, this is not the lower court's role as envisaged in section 92 ( 1). Furthermore, the lower court could only have invoked its powers conferred by section 92 (1) if it had been moved by the appellant and not on its own motion. The ref ore, the lower court cannot be faulted for dismissing the appellant's claim for a recalculation of his retrenchment package. Consequently, we also find no merit in ground three. J • \ I J43 In ground four, the appellant's contention is that the lower court fell into error by holding that his job title was not wrongfully changed from full Manager to Assistant Manager Information Systems. We have found in ground three above that the appellant did not produce documentary evidence of his promotion to Manager Information Systems. In the absence of such evidence, the respondent could not be faulted for replacing the first Certificate of Service indicating the title of Manager Information Systems with the second one bearing the title of Assistant Manager Information Systems. For the same reason, it cannot be said that the issuance of the second Certificate of Service was null and void for being in violation of section 79 ( 1) of the Act. The fact that the appellant's substantive position, as late as - 2012, was Assistant Manager Information Systems is fortified by a letter from the respondent's Managing Director to the appellant dated 23 rd August, 2012 at page 56 of the record of appeal whose subject was "SEPARATION OF IT AND HRA FUNCTIONS." Paragraph one of the letter reads: "Following the commencement of the consultancy on the setting up of a new IT infrastructure in the Bank, we are now required to \ I J44 expedite implementation of this project. To facilitate this it has been decided that we separate the IT function from the HRA function. As discussed with yourself earlier, you are now required to revert back to your substantive position of Assistant Manager Information Systems with immediate effect." (underline our emphasis) The paragraph of the letter quoted above clearly confirms that as at August 2012, and no doubt at the time of his retrenchment in - January 2013, the appellant's substantive position was that of Assistant Manager Information Systems. The appellant also contends that the lower court was wrong by not making a declaration on which of the two Certificates of Service was substantive. A perusal of the record of appeal shows that this was not one of the reliefs sought by the appellant in the lower court. It is, therefore, incompetently before us. We accordingly find that there was no misdirection by the lower court in finding that the appellant's job title was not wrongfully changed from full Manager to Assistant Manager Information Systems. Ground four equally fails. All the grounds of appeal having failed, the net result is that I \ J4 S this appeal lacks merit and it is accordin~ly dismissed. The judgment of the lower court is upheld. Each party Hhull bear their own costs. ~~~~ M~m a f f ibw a r- DEPUTY CHIEF JUSTICE E . M . t f~du SUPREME COURT JUDGE . aJ1manga SUPREME COURT JUDGE • •