Lusaka Engineering Company Ltd v Phiri and Ors (Appeal 102 of 1995) [1999] ZMSC 59 (29 April 1999)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 102 OF 1995 HOLDEN AT LUSAKA BETWEEN: LUSAKA ENGINEERING COMPANY LIMITED APPELLANT And S. PHIR1 AND OTHERS RESPONDENT CORAM: NGULUBE CJ., BWEUPE DCJ., CHAILA JS. On 29th April, 1999 and............. February, 2000. For the Appellant — Mr. K. M. SIMBAO of Mulungushi Chambers. For the Respondent - Mr. E. J. SHAMWANA of Shamwana and Company. BWEUPE DCJ delivered the judgment of the court. JUDGMENT This is, according to the Notice and Memorandum of Appeal, an appeal against the whole judgment of the Industrial Relations Court so far as it is decided that the Appellant Company was to pay the Respondent gratuity as well as long term bonus. The brief facts of the case as appearing on the record are that the Respondents were employed by the Applicant Company. Mr. PHIRI gave evidence on behalf of the others. He testified that he worked for the Respondent Company from which he Retired on 30th June, 1992. Surprisingly their retirement package was lower than that of two other employees namely Mrs. J. CHINTOMFWA and Mr. CHIZYUKA though all of them worked or served under the same ZIMCO Conditions of Service. He therefore complained that they were not paid long service - J2 - gratuity like other employees, JOSHUA CHIZYUKA and JOSEPHINE CH1NTOMFWA. He therefore felt that they were discriminated against on grounds of their social status. The Appellant Company said that to be paid long service gratuity as was the ZIMCO conditions of service 38 (1) to 38 (6) under payment of retirement benefits they were paid two months for each year served instead of three months. Mr. CLIFORD CHISHALA in his affidavit on behalf of the Appellant Company said that:- 1. 2. 3. 4. Mr. S. PHIRI AND OTHERS voluntarily applied for early retirement after Management had invited employees who so wished to apply for retirement as per internal memorandum dated 10th March, 1992; that Mr. S. PHIRI and OTHERS were paid terminal benefits as was outlined in the memorandum of 10th March, 1999 and also of 30th April, 1992; that Mr. J. CHIZVUKA and Mrs. JOSEPHINE CHINTOMFWA retired at the Management's request, as such, their benefits were calculated differently from those who retired voluntarily; that S. PHIRI and OTHERS were not therefore discriminated against on grounds of social status. In the judgment, the court summarised the case by saying that the Complaints Claim that their retirement benefit be calculated at three months service as was done with Mr. CHIZYUKA instead of calculating at two months for each year served as was done to their terminal benefits. He therefore asked for the one year difference. Other benefits claimed are, gratuity, service, 25% salary - J3- difference, housing allowance difference and maintenance, and electricity allowances. After considering all the salient features, the Industrial Relations Court came to the conclusion that the complainants were unlawfully discriminated against on grounds of social status and they ordered that their terminal benefits be calculated at three months notice for each year completed as was done with Mr. CHIZYUKA’s benefits and they directed that as the complainants had already received the benefits calculated at two months for each year completed, they be paid the difference. They also ordered that as the complainants were discriminated against, they should be paid gratuity benefits as Mr. CHIZYUKA was paid. The court also considered the issue of 25% salary difference and housing allowance difference, maintenance and electricity allowances and found that the Respondent had not proved those claims. We have carefully considered the judgment of the court below, the evidence on record and the authorities cited and the submissions by Mr. E. J. SHAMWANA SC for the Respondent and Mr. K. M. SIMBAO for the Appellant and it is clear from the record that the Respondents voluntarily applied for early retirement and were given redundancy package. We find no basis for the Respondents to claim managers salaries. We find no discrimination at all. This appeal has merit and we accordingly allow the appeal. Each party to bear its own cost. - J4- M. M. S. W. NGULUBE CHIEF JUSTICE B. K. BWEUPE DEPUTY CHIEF JUSTICE M. S. CHAILA SUPREME COURT JUDGE