Lukonde & Others v Mopani Copper Mines PLC (Appeal 165 of 2010) [2014] ZMSC 5 (13 April 2014)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 165/2010 HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: KELVIN LUKONDE AND OTHERS APPELLANTS AND MOPANI COPPER MINES PLC RESPONDENT Coram: Chirwa, Phiri and Muyovwe, JJJS On 7th June, 2011 and 14th April, 2014 For the Appellant: Mr. V. K. Mwewa of Messrs V. K. Mwewa and Company For the Respondent: Legal Counsel, Mopani Copper Mines Plc. JUDGMENT Phiri, JS, delivered the Judgment of the Court Cases referred to: 1. 2. Zambia Electricity Supply Corporation Limited vs. David Lubasi Muyambango (2006) ZR 22. The Attorney-General vs. Richard Jackson Phiri (1988- 89) ZR 121. 3. ACE Audit Expertise (Z) Ltd. vs. Africa Feeds Ltd. (2009) ZR 121 Legislation referred to: 2. The Industrial and Labour Relations Act, Cap 269. 2. The Mining Regulations, SI No. 95 of 1973, Regulations 402 and 407. 3. Mopani Copper Mines Plc. Disciplinary Code and Grievance Procedure for Represented and Non- Represented General Payroll Employees, 2009 edition, Clause 3.2(h). When we heard this appeal we sat with the Hon. Mr. Justice D. K. Chirwa. Mr. Justice Chirwa has since retired. This Judgment is therefore, a majority decision. In this appeal, we propose to refer to the Appellants as the Complainants and the Respondents will remain the same, which is what they were in the Court below. This is an appeal against the judgment of the Industrial Relations Court dated 22nd July 2010 which dismissed the Complainant’s case on the ground that they failed to prove that they were unfairly treated, and unlawfully dismissed. The brief history of this appeal is that the four Complainants namely; Kelvin Lukonde, Osward Simfukwe, Costain Muzyamba and Elijah Kombe were all employees of the Respondent; Mopani Copper Mines Plc. They were dismissed by the Respondent on the J2 charge of failure to comply with established procedures on or about 23rd September 2009. They were accused of organizing a meeting to overhaul the union leadership during working hours on the Respondent’s premises; without the consent of management. It was alleged that the Complainants sought to cause confusion to the rest of the Respondent’s employees by soliciting for them to attend the meeting, during working hours, thereby threatening to disturb the Mining operations. In the notice of the Complaint supported by an affidavit filed by the first Complaint, Kelvin Lukonde, they claimed for the following reliefs:- 1. An order and declaration that the Respondent’s summary dismissal of the Complainants was illegal, unlawful, unfair and null and void. 2. Damages for wrongful, illegal, unlawful and unfair dismissal. 3. Interest on the amount due. 4. Any other relief the court may deem fit. 5. Costs of and incidental to these proceedings. J3 The Respondent, in its answer, denied the Complainants’ allegations that they had been unfairly treated and/or wrongfully or unlawfully dismissed. It was pleaded that the Complainants were fairly treated, given an opportunity to be heard and dismissed; after a full disciplinary hearing properly found them guilty of the offence of non-compliance with established procedure. The Respondent also denied the assertion that the offence the Complainants had been charged with was non- existent; and claimed that the dismissals were meritorious. The Industrial Relations Court, after a review of the evidence received, found that the Complainants prepared the petition calling for a meeting in the Cocoa Kitchen situated at the Respondent’s premises; that the petition had the Complainant’s signatures; the time and the venue; that the petition was widely distributed in Mufulira and that there was no consent from the employer; that the petition had potential to cause disruption; and, therefore that the Respondent was justified in taking the disciplinary measures that they did. J4 Two grounds of appeal were advanced by the Complainants; namely:- 1. 2. that the Court below erred in law and fact by holding that the Complainants did not follow the established procedure when choosing to hold a meeting and hence failed or neglected to comply with established procedures. that the Court below erred in law and fact when it held that, by calling and intending to hold a meeting during working hours and without the consent of the Respondent, the Complainants had breached mining regulations. In support of the appeal, Mr. Mwewa relied on the Heads of Argument filed. In support of Ground 1, Mr. Mwewa referred us to page 17 of the record of appeal where the Court below made the following finding: “We have perused what this entails. Our understanding is that the procedure before holding a meeting is that prior permission must be sought. It follows therefore that if one chooses to hold a meeting without the requisite permission they are in breach of the procedures. In the case at hand we have found that permission was not sought. The Complainants therefore did not or failed and or neglected to comply with the established procedure. The Respondents were therefore on firm ground to charge them with the offence.” J5 It was Counsel’s contention that Clause 3.2(h) did not give details of the procedures to be followed if employees were to hold a meeting in the Plant area. It was further argued that this Clause falls under the Section dealing with “Procedure for Cases Related to Breach of Mining Regulations”, and had nothing to do with seeking permission to hold a meeting or not; that the real reason behind the Complainants’ dismissals was outlined by the Respondent’s only witness, George Mayeya (PW1) whose evidence (at pages 77 and 78 of the Record of Appeal) is as follows: “I instructed Mr. Zimba that he should persuade the employees involved in particular the one who had given him that petition that it was not correct for employees to demand to call for a meeting in the plant area. The main reason was the situation was not conducive for that gathering because the negotiations for salary had been suspended. We heard the Union was not happy with Management to suspend negotiations. The negotiations had been suspended because of the global crisis that affected the mining industry and also Zambia”. It was Counsel’s view that the question of failure by the Complainants to comply with established procedures and/or standing instructions did not arise at all; and that the Respondent J6 was simply reacting to the situation between the Union and management, concerning the suspended salary negotiations. In support of Ground 2, Mr. Mwewa took us through the observations and the conclusion made by the Court below, in its Judgment at page 17 of the Record of Appeal. For ease of reference, we reproduce those observations as follows: “We find that the argument advanced by the Complainants that calling and holding a meeting in the Plant area during working hours without the consent of Management being delinked from Mining Regulations as erroneous. The fact that the meeting was going to be held during hours and at the Cocoa Kitchen situate in the Plant area, which in a mining area, hinges on it affecting mining operations which are regulated by Mining Regulations”. Mr. Mwewa argued that there was clear evidence on record to establish that, before the meeting in issue could materialize, the Complainants went to seek counsel from the Senior Employees Relations Advisor; that it was within the power and authority of the Respondent to either oppose or reject the Complainants’ intended action; and that the Complainants’ conduct did not constitute any offence, at all, to warrant summary dismissal. J7 In opposing this appeal, Learned Counsel for the Respondent also relied on the written Heads of Argument. In response to Ground 1, it was submitted that, the Complainants were well aware that they could not organize a meeting at any time in the Respondent’s premises, without the latter’s consent; that the evidence of George Mayeya (PW1) established that the Complainants needed to seek permission to hold a meeting in the Plant area; and specifically in the Cocoa Kitchen; and that their failure to seek permission amounted to failure to comply with established procedures. It was further argued that the Court below did establish that the Complainants had no intention of seeking permission to hold their meeting, from management; that they simply notified management of the already organized meeting, on the ground that, it was their “issue with Union leadership” and, therefore, none of management’s business. It was further argued that what amounts to established procedure, could be written, oral or by practice; and in this case the Respondent had shown that all the parties knew the J8 established procedure of getting prior permission before organizing a meeting in the Mine Plant area; that management could not tolerate unilaterally organized meetings on Company premises, which had potential to cause industrial chaos and disruptions to Mine safety. It was stated that the offence of non-compliance with established procedures/standing instructions was a disciplinary offence that existed under Clause 3.2(h) of the Respondent’s Disciplinary Code; it was also established that the offence under Clause 3.2(h) may lead to dismissal of an employee depending on the seriousness of the circumstances. In this regard, it was argued that the Respondent, having properly investigated the case and conducted the disciplinary proceedings; and meted out the sanctions against the Complainants in accordance with the Disciplinary Code, this Court should not interpose itself as an appellate Tribunal within the domestic procedures, which is what the Complainants were requesting of this Court. In support of this proposition, Counsel cited this Court’s decision in the case of ZESCO Limited vs. David Lubasi Muyambango(1) which held as follows: J9 “It was not the function of the Court to interpose itself as an appellate Tribunal within the domestic disciplinary procedures to review what others have done. The duty of the Court is to examine if there was necessary disciplinary power and it was exercised properly”. It was the Respondent’s view that its disciplinary power was duly exercised properly. In response to the Complainants’ second Ground of appeal, Counsel elected to entirely rely on the submissions that were made in the Court below, which submissions are reflected on pages 40 and 41 of the Record of Appeal. In summary, the argument is that offences were categorized in Part 1 Section 3 of the Code Book; and everything that happens in the Mining area was, one way or another regulated by Mining regulations. This covered late coming, sleeping on duty, desertion, misuse of Company property, corruption, fraud, non-compliance with established procedures/standing instructions, etc. as provided in the Code Book. According to the Respondent, it was erroneous for the Complainants to argue that calling for a meeting in the Plant area during working hours without consent of management has nothing to do with Mining Regulations. Calling for such a J10 meeting had the potential to cause miners to leave their work stations, or to be curious of what was happening; which could endanger the lives of other miners who may have been underground and relied on their colleagues who operated at those abandoned work stations on the surface of the Mine. It was also the Respondent’s argument that Mining Regulation 402 placed a duty on every official and miner to remove anything that is likely to be or to become dangerous or to cause danger of any kind to any person or anything; while Mining Regulation 407 places an obligation to every person to behave in an orderly manner. This Regulation reads as follows: “Every person whether on surface, in open cast workings or underground shall behave in an orderly manner”. According to the Respondent, the Complainants were in a path to create disorderliness and anarchy, among the 3,700 affected employees, within a very short time given by their notice. We have carefully examined the Record of Appeal and considered the two grounds advanced, together with the arguments J11 canvassed in the respective Heads of Argument and the authorities cited. We have also considered the Judgment appealed against; and the evidence that was accepted by the Court below, leading to its conclusion that the Complainants failed to prove their case against the Respondent. We propose to deal with both grounds together, as they are related. The Appellants’ contention in these two grounds can be summed up in this way; that the allegation made by the Respondent to the effect that they failed or neglected to comply with the established procedure when choosing to hold a meeting in the Mining area without consent was incorrect; and that the offence for which they were charged and dismissed was non- existent and, therefore, that no Mining Regulation was breached. It is apparent from the two grounds of appeal and the accompanying arguments, that the Appellants challenged the findings of fact made by the Court below; and attacked its conclusion based on those findings. The principles of the law relating to this kind of challenge are long settled, and very clear. It is that, for this Court, or indeed any appellate Court to interfere J12 with findings of fact made by the trial Court, they must be either perverse or made in the absence of relevant evidence, or upon misapprehension of facts (see ACE Audit Expertise (Z) Ltd. vs. Africa Feeds Ltd.(3)). At the centre of this case, is the petition at page 45 of the Record of Appeal. For ease of reference, we recite this petition’s substantive parts as follows: “To: The executive committees, MUZ/NUMAU Mufulira Branches From: The MCM Employee Members c.c. All Departmental SERAS, The District Labour Officer and the District Commissioner Subject: Petitioning to be addressed Dear all, We the undersigned employees of MCM who happen to be your electorates summon you to address us at the Mining Cocoa Kitchen on the 28th August, 2009 at 14.30 hours. This follows your executives’ failures (to) address and meet our needs in the 2008/2009 negotiations. Your swift complying to this request is anticipated. Yours Employees NAME: MINE NO: DEPARTMENT: SIGNATURE J13 ………….. (The Petition was signed by 29 employees)” The Complainants’ case was presented to the Court below through the evidence of Kelvin Lukonde, the first Complainant (shown as CW1 in the record of proceedings). He admitted his involvement in presenting the Petition and circulating it in Mufulira. He also admitted presenting its carbon copies to the Senior Employee Relations Advisers, Isaac Zimba and Ezron Champa. Under cross-examination, CW1 admitted that the meeting was to take place in the Mine Plant area during working hours; and he also admitted that the Complainants did not get permission to use the Cocoa Kitchen on the date and time stated in their Petition. The Respondent’s case was presented by George Mayeya (RW1) the Superintendent Employee Relations. The summary of his evidence in the Court below was that, he received a copy of the Petition for the meeting; that no permission had been sought or given for the meeting in the Mine Plant area during working hours; that the situation was not conducive for the meeting and there was potential for unrest because the employees were J14 complaining that they had not been represented fairly to management; and that he reported the matter to the Security Department for investigations. The rest of the events that followed the investigation are in common cause. Suffice to mention that the Complainants were charged with the disciplinary offence of non-compliance with established procedures. There was a disciplinary hearing that followed, before the dismissals were handed down. Thereafter, the Complainants were unsuccessful in their appeals. The two grounds of appeal raise two questions to be determined; namely, whether the Respondent had the necessary disciplinary power to deal with the Complainants in the manner they did, and whether that power was exercised properly. We have examined the evidence that was received by the trial Court. The Complainants were dealt with in accordance with the Mopani Copper Mines Plc Disciplinary Code and Grievances Procedure for Represented and Non-Represented General Payroll Employees, 2009 edition, under Clause 3.2(h). The Complainants do not deny this fact. Their only complaint is that J15 Clause 3.2(h) did not provide a procedure for calling of meetings at the Mining Plant area; and, therefore, that the issue of failure to comply with established procedures and standing instructions did not arise; and that their conduct did not constitute any offence. We must state that we find the Complainant’s arguments curious. The Complainants’ only witness (CW1) conceded, in his evidence before the trial Court that they called for a Union meeting, through the afore-quoted Petition; to be held on a specific date and time, within 48 hours of their notice; at the Mining Plant area, and within working hours. More importantly, CW1 conceded that there was no consent of management sought or obtained before the meeting was called, apart from a notice to the Senior Employee Relations Advisers, by way of serving carbon copies of the Petition; which Petition the Complainants widely circulated in Mufulira. On the basis of these facts, the Court below found as a fact that the Complainants were in violation of Clause 3.2(h) of the Disciplinary Code and Regulations 402 and 407 of the Mining Regulations which placed a duty on every official and miner to remove anything that is likely to be or to become J16 dangerous or to cause danger of any kind to any person or anything; and an obligation to every person to behave in an orderly manner. It is apparent to us that under the Mining Regulations, both employees and management are obliged to very strictly follow the Mining Regulations, in addition to their rights. This is understandable, because a Mining area is not an ordinary working area. A Mine Plant area hosts large numbers of persons and is abound with hazards, which include pits, shafts, dangerous machinery, chemicals and a delicate environment. It would be overtly naive and too simplistic to hold that the Complainants did not commit any wrong to warrant their dismissal or to hold that the offence for which they were dismissed did not exist in the Disciplinary Code, because the procedure for obtaining permission to hold meetings was not spelt out. The Mining Regulations specifically refer to the obligation to “behave in an orderly manner”. Certainly, we do not think that the Complainants behaved in an orderly manner in the circumstances of this case; where they unilaterally called for a Union meeting without the consent of the management; during working hours, at J17 a Plant hosting 3,700 workers. We cannot fault the trial Court’s findings of fact and conclusion. We have no difficulty in finding that the Respondent had the necessary disciplinary power to deal with the Complainants in the manner they did; and that, that power was exercised properly. We are fortified by our earlier decision in the case of ACE Audit Expertise (Z) Ltd(3). Before we end our consideration of the issues raised in this case, we find it necessary to address Mr. Mwewa’s concern, made on behalf of the Complainants, that the real reason behind the dismissals was that the Respondent’s management were simply reacting to the situation between the Employees Union and them, concerning the suspended salary negotiations. The Industrial and Labour Relations Act, Cap 269 of the Laws of Zambia, gives employees the right to attend Union meetings. Section 5(1) (a)-(i) of this law confers specified rights to every employee in respect of Trade union activities. Under this law, no employer should dismiss any person for exercising his/her right to attend Union meetings, and activities. Attendance to Union meetings, and activities however, should not J18 be unconditional and without order. One of those conditions must, of necessity, be that the employee concerned should have the permission of his/her supervisor; or the consent of the employer; and that such permission or consent should not be withheld without good reason. In our view, the right of employees to attend Union meetings and/or activities without the threat of dismissal should not be overstretched to protect employees who organize Union meetings and/or activities at the employer’s premises without the consent and permission of their supervisors and management. To hold otherwise, would be promoting disorder, chaos and disruption of work and paralysis of the employer’s business. We, therefore, have not seen any justification for Mr. Mwewa’s concern in the circumstances of this case where the Complainants did not seek the employer’s consent. The net result is that we find no merit in both grounds of appeal. We dismiss the appeal and make no order for costs. (RETIRED) J19 D. K. CHIRWA SUPREME COURT JUDGE G. S. PHIRI SUPREME COURT JUDGE E. N. C. MUYOVWE SUPREME COURT JUDGE J20