George L. Kalema (Suing as General Secretary of UNUPSE) v Delta Force Security (COMP NO. 2022/HPIR/726) [2024] ZMHC 246 (12 November 2024)

IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (CIVIL JURISDICTION) COMP NO. 2022/HPIR/726 F ZA BETWEEN: GEORGE L. KALEMA (Suing as General Secretary o AND ""''" "" o~e:, L Rt\.. f\;'\1/ ---~ I ~ COMPLAINANT DELTA FORCE SECURITY RESPONDENT CORAM: Hon. E. MW ANSA Esq APPEARANCES: For the Compla ina nt JUDGE Mr. Justine Moboola - Assistant General Secretary For th e Resp on dent No Appearance JUDGMENT Legislation referred to: 1. Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia. Case referred to: 1. Robert Simeza and 3 others -V- Elizabeth Mzyeche (2011) Vol 3, ZR, 290. 1.0. INTRODUCTION 1.1. This case was brou gh t by George L. Kalem a who sued a s Gen eral Secretary on beh alf of the United Nation al Union of Private Security employees ("UNUPSE"), the Complainant, against Delta Force Security Team, the Respondent, by way of a Notice of Complaint filed together with an Affidavit in Support of the Notice of Complaint on 16th September 2022. This was done in accordance with section 85(4) rule 9 of the Industrial and Labour Relations Act Chapter 269 of the Laws of Zambia. 1.2. The Respondent reacted through their Answer and an Affidavit in Support of the Answer filed on 15th March 2022. This was after leave to file the aforementioned documents was granted on the 13th of July 2023. The Complainant further filed an Affidavit in Reply on 20th June 2024. Trial in this matter commenced on 15th October 2024. 1.3 The grounds upon which this Complaint was presented are that: 1.3. 1. The Respondent deliberately neglected to remit to the former union from where the members defected saying that the company did not like the new union. On 2 nd June 2016 the court ordered the respondent to enter into recognition agreement with the complainant's union and declared that the employees became union members at the expiry of their respective three-month notices. The 380 employees therefore having joined the complainant's un10n as members were due to subscribe to the complainant's union by September Jl 2014 month end. Many meetings and agreements were r eached on the matter but management continued changing goal posts. 1. 3.2 . The respondent did not remit for 16 months. Each member's subscription fees were K14.00 per month. The company management does not want to release the money. 1.3 .3. The respondent stopped remitting again in July 2019 to date that is 39 months the last payment was in June 2019 for K2,340.00. The total sum for the unremitted union subscription fees is Kl 76,380.00 1.3 .4. The Complainant seeks the following reliefs: (i) An order that the Respondent remits union subscription fees to UNUPSE in the sum of Kl 76, 380.00 (ii) An order for costs (i ii) Any other relief the court may deem flt 2 .0. THE COMPLAINANT'S EVIDENCE 2. 1. In the Affidavit in Support of Notice of Complaint, sworn by the Complainant, he stated that the Respondent is a security company whose employees are members of the Complainant Tra de Union after successfully leaving another. J2 2.2. He averred that the Respondent was ordered to enter into a Recognition Agreement by a Judgment exhibited and marked "GLK l" in the Affidavit in Support of Complaint, in the Industrial Relations Court in the case of Zambia Union of Security Officers and Allied Workers ("ZUSA W") vs United National Union of Private Security Employees (UNUPSE} and Kennedy Mbasela and 211 others COMP/66/2014. During this action, the Complainant Trade Union had 380 workers as members. The Complainant stated that the court spelt out when the workers became their members and that was at the expiry of their respective 3 month notice periods. 2.3. According to the Complainant, the total union subscription amount per month was K5,320.00 bringing the total for 16 months to K85, 120.00. He stated though that the Respondent refused to remit these fees owing to their claim that the Complainant trade union members had exited their company and they were no longer in a position to remit. 2.4. Furthermore, the Complainant told this court that the Respondent had started making un10n subscription remittances in January of 2016 up until June 2019 when they made their last payment of K2,340.00. He stated that the time that had passed was 39 months in total. 2.5. According to the Complainant as at 2016 aforementioned, per the minutes of 2 n d December 2015 exhibited and marked "GLK2" in the Affidavit in Support of Complaint, it J3 was agreed that the Respondent should remit subscriptions for all members appearing on the membership list while working on arrears for the period September 2014 to December 2015. He stated that the total amount of unremitted union subscription fees is Kl 76,380.00. 2.6. The Respondent did not attend the trial hearing for this matter despite having been served notice that there would be a hearing held on the return date indicated in the notice. As such, the court proceeded to h ear the Complainant. The Complainant gave evidence through Justine Moboola CWl their Assistant General Secretary. 2.7. At trial, CWl augmented the Complainant's Affidavit evidence. He stated that the union membership of the Respondent's employees was confirmed in the membership consent forms dated 23 rd June 2014 depicting personal details and signatures. He stated that the Complainant trade union wrote to the Respondent on the same day, 23rd June 2014, informing them of their recruitment of members and to be recognized. All this was contained in exhibit marked "GLK 1" in the Affidavit in Reply. 2.8. CWl further mentioned that the Complainant trade union subsequently informed the Respondent that their membership rose to 380 workers. After the Judgment of ZUSA W v UNUPSE and Kennedy Mbasela and 211 others COMP/66/2014 was delivered on 2 nd June 2015, the J4 Recognition Agreement was later executed on 24th June 2015. He also confirmed the meeting of 2nd December 2015 where it was agreed that the Respondent would start remitting as at current but also work on arrears. 2.9. CWl insisted that despite the Recognition Agreement being signed on 24th June 2015, their members moved in December 2014. He also admitted that the Complainant trade union lost a lot of members in due course and that it was the Respondent who were in possession of the payroll to show the membership status in their workforce. 3.0. THE RESPONDENT'S EVIDENCE 3.1. The Respondent gave affidavit evidence through Nshipa Mukula their Human Resources Consultant. He confirmed the Recognition Agreement of June 2015 and the fact that 380 members of staff joined the Complainant trade union. 3.2. It was the deponent's position that the Respondent remitted subscriptions that correlated the number of members in their workforce every month. He averred that the Complainant trade union had no proper structures at the Respondent Company and eventually lost all their members over time. 3.3. The deponent stated that the Respondent asked the Complainant trade union for particulars of the alleged 16 months unremitted subscription fees and the members J5 involved. They also asked for similar particulars from July to date but got nothing. He insisted that the Complainant trade union was also supposed to prove that they still have members working in the Respondent Company. 3.4. Furthermore, it was averred that the 16 month s unremitted subscriptions are a result of the Complainant trade union demanding for su bscription fees for members that left the Respondent Company. He also told the court that from the time they signed the Recogn ition Agreement they paid all the subscription fees. The deponent further averred that the Respondent Company remitted subscriptions in arrears for the period September 2014 to December 2015 per th e payroll sum mary exhibited and marked "NM 4" in the Respondent's Affidavit. 4.0. THE COURT'S POSITION 4.1 FINDINGS OF FACT 4.1.1. It h as been establish ed as a fact that the Respondent Company had employees who were members of the Complainant's Trade Union. 4 . 1.2. It is also a fact that the Complainant Tr ade Union and the Respondent Company entered into a Recognition Agreement on 24th June 2015 stemming from a Judgment of the Industrial Relations Court. J6 4.2 ISSUES FOR DETERMINATION 4.2.1. Based on the facts on record, the issue that needs to be determined is whether the Respondent Company owes the Complainant Trade Union subscription fees as claimed and for which period. 4.3 DETERMINATION OF ISSUES 4.3.1. I must mention , before I determine the issue above, that as was held inter alia in the case of Simeza and 3 others v. Elizabeth Mzyeche, where a party with notice of proceedings has disregarded the opportunity of appearing and participating in the trial, he will normally be bound by the decision. No procedural injustice has therefore been occasioned because the Respondent in casu, who was aware of the proceedings as evidenced by the Affidavit of Service, decided not to give testimony at trial. This judgment is therefore anchored on facts presented before court and binds the Respondent. 4.3.2. With regard to the identified issue, it is clear from the record that the Complainant Trade Union is owed some subscription fees. What needs to be clearly determined is the period that payments were not made to the Complainant Trade Union. 4.3.3. My considered view 1s that once the Respondent Company signed the Recognition Agreement, they duly J 7 recognised the Complainant's trade un10n as the representative and bargaining agent for employees in their workforce. This is the point at which the obligation to remit subscription fees to the Complainant trade union from their workers' salaries crystallized. I thus find that the Complainant trade union is not entitled to the arrears claimed for the period prior to the execution of the Recognition Agreement. 4 .3.4. I have noted CWl 's admission that the Complainant trade union lost a lot of members over the course of time and he has insisted that it was the Respondent Company's responsibility to ascertain the actual figures using their payroll. On the other hand, the Respondent Company insist that the Complainant trade union ought to provide proof that they still had members working for them and also need to provide the particulars of members whose subscription fees remain unremitted. 4.3.5 . It is clear from the foregoing paragraph that the Respondent Company did not remit all un10n subscription fees to date and both parties are unclear on exactly how much has been remitted since the execution of the Recognition Agreement in June 2015. I thus order the Respondent Company to remit all J8 unpaid union subscription fees the quantum of which shall be determined by the Learned Registrar. I make no Order for Costs. Parties are informed of their right of appeal. Delivered this ......... day of. ................ .. . E. MWANSA HIGH COURT JUDGE J9