Martin Chabala and Anors v Alasha Building Construction Ltd (Appeal 102 of 2016) [2019] ZMSC 366 (28 May 2019)

r ew < SELECTED JUDGMENT NO. 14/2019 P.446 IN THE SUPREME COURT FOR ZAMBIA APPEAL No. 102/2016 HOLDEN AT KABWE (Civil Jurisdiction) BETWEEN: MARTIN CHABALA FELIX CHONGO AND 1st APPELLANT 2nd APPELLANT ALASKA BUILDING CONSTRUCTION LTD RESPONDENT CORAM: Musonda, Ag. DCJ, Hamaundu and Kabuka, JJS. On 2nd April, 2019, 7* May, 2019 and 28th May, 2019. FOR THE APPELLANTS: In person FOR THE RESPONDENTS: N/A JUDGMENT KABUKA, JS, delivered the Judgment of the Court. J2 P.447 Case referred to: 1. Ryan v Shipboard Maintenance Limited (1980) IRLR 16. 2. Anthony Khetani Phiri v Worker’s Compensation Control Board, 2003 ZR 9. 3. Chilanga Cement Plc v Kasote Singogo, 2009 ZR 122 (SC). 4. Zambia Privatisation Agency v James Matale, 1996 ZR 157. 5. Contract Haulage Limited v Kamayoyo (1982) Z. R. 13. 6. Copperbelt Bottling Company Limited v Fombe, SCZ Appeal No. 37 of 1996. 7. Swarp Spinning Mills v Sebastian Chileshe and 30 Others, 2002 ZR 23. 8. Wilfred Weluzani Banda v Medical Council of Zambia &> Another, SCZ Appeal No. 116 of 2012. Legislation referred to: 1. The Minimum Wages and Conditions of Employment Statutory Instrument No. 2 of 2011 (General) Order, 2011. 2. The Minimum Wages and Conditions of Employment Statutory Instrument No. 46 of 2012 (General) (Amendment) Order, 2012. Introduction 1. The Industrial Relations Court delivered a judgment dated 5th October, 2015 in which it found that the appellants were casual workers paid on daily basis, to whom Statutory * J3 P.448 Instrument No. 2 of 2011, The Minimum Wages and Conditions of Employment (General) Order 2011, as read with Statutory Instrument No. 46 of 2012, The Minimum Wages and Conditions of Employment (General) (Amendment) Order, 2012 did not apply. The court accordingly dismissed the appellants’ claims for unpaid salaries and allowances, which were premised on the provisions of the said Minimum Wages Act and Statutory Instruments. 2. The appellants have appealed that decision to this Court substantially on the ground that, S. I. No. 2 of 2011, specifically states that it applies to casual employees and as casual employees, they were entitled to their claims for unpaid salaries and allowances. Background 3. The facts of the case relevant to the determination of the appeal are that, the 1st and 2nd appellants were on 25th July, 2013 and 4th March, 2013 employed on daily oral contracts, J4 P.449 by the respondent company as carpenter and steel fixer, respectively. They each continued working on the daily, oral contracts for the next six months. 4. After expiry of that period, the respondent verbally undertook to pay the appellants in accordance with S. I. No. 2 of 2011. According to the appellants, they continued working on that understanding, but the respondent did not implement the promised conditions until they were dismissed from employment on 25th November, 2014. 5. Aggrieved by the dismissal, the appellants proceeded to file a joint complaint before the Industrial Relations Court, claiming that they were unfairly and unlawfully dismissed by the respondent, and sought an order compelling the respondent to pay them their unpaid salaries and allowances, substantially as provided by S. I. No. 2 of 2011. 6. Despite being served with the court process, there was no answer filed on the part of the respondent. The respondent did not also attend court, save for a single appearance made J5 P.450 by their representative at commencement of trial, when the matter was adjourned at their instance. On the next scheduled date of hearing, the trial court was compelled to proceed to hear the appellants’ claim. Proceedings before the Industrial Relations Court 7. At the hearing of the matter, the 1st appellant testified on behalf of both appellants. His evidence was that they were paid a daily wage of K50.00, but that they preferred to receive the money on weekly basis in the amount of K300.00. The 1st appellant maintained that there was no change in their entitlements which remained at K50.00 per day, despite the undertaking made by the respondent to apply the conditions of service as provided by S. I. No. 2 of 2011. These conditions included leave pay, housing allowance, transport allowance, lunch allowance, notice pay, and severance benefits. 8. In that regard, the 1st appellant claimed the period worked by himself after the initial six months period, was eleven J6 P.451 months while the 2nd appellant worked a further fourteen months, until their respective dismissals on 22nd and 25th November, 2014. 9. It is from this evidence that the trial court found that the appellants were verbally recruited “as casual workers for the respondent, when the respondent had contracts to fulfil. That their wages were paid at the rate of K50.00 per day, but that the appellants themselves preferred to be paid weekly. ” 10. On the view of the evidence, taken by the court, it reasoned that, if a person is employed for a 'specific project,’ the employment will automatically come to an end on completion of the project, and that there can be no claim for either dismissal or entitlement to any benefits in those circumstances, as the employment is discharged by performance. 11. The trial court referred to the case of Ryan v Shipboard Maintenance Limited1 where the appellant had worked 31 jobs for his employer, over a five year period. At the end of J7 P.452 each job, he would draw unemployment benefits until the next job was available. At some point whilst waiting for the next job, he sought to claim redundancy pay. The holding was that, since the employment was on a job to job basis and the discharge was by performance, the appellant had neither been dismissed nor declared redundant. 12. Informed by the decision in that case, the trial court found the appellants to be casual workers, as they were paid on a daily basis. It was the court’s further finding that, the appellants’ claims for unpaid salaries, notice pay and allowances, made pursuant to S. L No. 2 of 2011, were misconceived at law as the same did not apply to casual workers. The appellants’ claims were accordingly dismissed for lack of merit. Grounds of appeal to this Court and arguments 13. Dissatisfied with the trial court’s judgment, the appellants launched an appeal in this Court on twelve grounds. Ten of these grounds were based solely on facts and were, for that J8 P.453 reason, incompetent for contravening rule 97 of the Industrial and Labour Relations Rules, Cap. 269. In the event, our consideration of this appeal is restricted to grounds 7 and 10 only. These grounds fault the trial court for having erroneously found that S. I. No. 2 of 2011 and S. I. No. 46 of 2012, did not apply to casual workers. 14. In their heads of argument in support of their appeal, the appellants in respect of the two competent grounds of appeal submitted to the effect that, the lower court misapprehended the extent of application of Statutory Instrument No. 2 of 2011, Minimum Wages and Conditions of Employment {General) Order 2011 (2) as amended by the General Orders of 2012 (3), which specifically states in the Schedule that: “The Minimum Wages and Conditions of Employment Act applies to all employees (including casual workers in Zambia), but do not apply to the following categories of employees: Employees of the Government of the Republic of Zambia, Employees of local authority, Employees who undergo collective bargaining (unionised), Employees in management positions (as defined under the Industrial Relations Act), and employees in a sector for which the Minister by statutory instrument has prescribed the minimum wage.” J9 P.454 15. Relying on the provision as quoted above, the appellant submitted that the trial court erred in holding that casual employees were not included in the targeted group of employees to whom S. I. No. 2 of 2011 applies. The appellants further challenged the finding of the trial court, that they were employed to fulfil a specific contract, on the basis that in coming to that finding, the court relied on its own assumptions and did not consider the appellants’ evidence. 16. It was the appellants’ submission in conclusion that, contrary to the lower court’s finding, S. I. Nos. 2 of 2011, and 46 of 2012 are applicable to them by virtue of paragraphs 2(1 )(d) in both pieces of legislation, which provide that where the employer and employee relationships are governed by a specific contract of employment, as it was in their case, such conditions should not be less favourable than what was stipulated in the Minimum Wages provisions. J10 P.455 17. The respondent did not file any submissions and were not in attendance at the hearing of the appeal. This was notwithstanding that the said appeal was adjourned by this Court at the request of their counsel, Mr Munansangu on 2nd April, 2019 to the 7th May, 2019. As there was no communication from the respondent’s said counsel on the latter date, we proceeded to hear the appellants on their appeal, on which we now render our judgment. Consideration of the matter by this Court and decision 18. We have considered the appellants’ heads of argument and evidence on record. The appellants’ evidence which was not disputed by the respondent was that they were engaged by the respondent on 4th March, 2013 and 25th July, 2013 on a daily wage of K50.00. After working for a period of six months, the respondent informed them that from then on, the Minimum Wages Act would apply to them. 19. The appellants agreed to this arrangement and continued working until 25th November, 2014 when the respondent JI 1 P.456 verbally told them to stop. Contrary to its undertaking to pay the appellants the minimum wages, there was no change to the appellants’ daily pay of K50.00, only. It is on that basis that the appellants claimed they were casual workers falling within the provisions of S. I. No. 2 of 2011 and entitled to payment of accrued salaries and allowances for their period of service rendered to the respondent. 20. In resolving the dispute, the trial court found that, although the appellants were casual workers as claimed, they were not entitled to any of their other claims which were anchored on S. I. No.2 of 2011 as the application of the said Statutory Instrument did not include casual workers. 21. Having perused S. I. No.2 of 2011, as reproduced in paragraph 15 of this judgment, we are satisfied that the application of the Statutory Instrument encompasses casual workers. We have further considered the definition of casual employee: as provided in section 3 of the Employment J12 P.457 Act, Cap. 268 as amended by the Employment (Amendment) Act No. 15 of 1997, which states that: “‘Casual employee’ means any employee the terms of whose employment provide for his payment at the end of each day and who is engaged for a period of not more than six months.” 22. Against that backdrop of the definition of casual employee, we have noted that, the evidence on record discloses the 1st appellant was engaged on 25th July, 2013 and continued working for a period of 16 months up to 25th November, 2014. The 2nd appellant was also engaged on 4th March, 2013 and worked for a period of 20 months up to 25th November, 2014. On that evidence, we are satisfied that the appellants who had worked for the respondent for continuous periods of more than six months each, were not casual employees within the meaning of section 3 as claimed by themselves and found by the trial court. As held by this Court in the case of Anthony Khetani Phiri v Worker’s Compensation Control Board2, a person’s J13 P.458 employment should be deemed to have been continuous unless the contrary is proved. 23. We are further satisfied, that the Minimum Wages Act, Statutory Instruments and General Orders apply by operation of the law to the targeted groups of employees, as therein provided, irrespective of whether or not the parties to the particular contract of employment have so agreed. 24. It is from that premise that we now have to determine the issue raised in this appeal of whether or not, the appellants fell within the group of protected employees targeted by the Minimum Wages Act, S. I. 11 of 2011. Paragraph 1 (l)(a)(i) of that Statutory Instrument as amended by S. I. 46 of 2012, provides for a category of a 'General Worker’ which is stated to apply to all other workers ‘not elsewhere specified’ in the Statutory Instrument. That is to say, workers who do not fit in any of the categories which are stated as: Cleaner, Guard, Handyman, Watchman, Office Orderly, Typist, Telephonist, Receptionist and Qualified Clerk. J14 P.459 25. On the particular facts of this case, the appellants who had worked for more than six months and whose job descriptions as ‘carpenter’ and ‘steel fixer’ referred to in paragraph 24 in our view, would be captured by the category of ‘General Worker’, In terms of the said category, they were entitled to a salary and other allowances with effect from commencement of their employment, up to the end thereof. 26. These entitlements for a General Worker as provided by S. I. No. 2 of 2011 were specified as: K700.00 basic salary per month; lunch allowance K120.00 per month; housing allowance at 30% of basic salary but not less than K210.00 per month; Leave days accrued at the rate of 2 days per month, transport allowance at KI02.40 per month where the worker lived more than 3 Km away from the place of work. The appellants’ unchallenged evidence on record is that they both lived more than 3 Km from their workplace. J15 P.460 27. The computations of the 1st and 2nd appellants for the 16 and 20, months worked respectively, are accordingly as follows: 1st Appellant Amount (i) 2 leave days p.m x 16 months (32 days) @ K50.00 per day = K 1,600.00 (ii) Transport allowance @ K102.40 p.m x 16 months = K 1,638.40 (iii)Lunch allowance @ K120.00 p.m x 16 months = K 1,920.00 (iv) Housing allowance @ 30% of basic pay K360.00 p.m x 16months=K 5,760.00 2nd Appellant K 10,918.40 Amount (i) 2 leave days p.m. x 20 months (40 days) @ K50.00 per day = K 2,000.00 (ii) Transport allowance @ K102.40 p.m. x 20 months = K 2,048.00 (iii)Lunch allowance @ K120.00 p.m. x 20 months = K 2,400.00 (iv) Housing allowance @ 30% of basic pay K360.00 p.m x 20 months=K 7,200.00 K13,648.00 28. Regarding the appellants’ arguments that they were unlawfully and unfairly dismissed and entitled to damages, the record shows no sufficient evidence was led by the appellants to substantiate those claims. Suffice to note in that regard, however, that the protection against termination of employment except for good reason, was only introduced by the Employment (Amendment) Act No. 15 of 2015 on 3rd December, 2015. As this was well after J16 P.461 the events relating to loss of employment by the appellants in this appeal, they cannot rely on it. 29. The law as it then stood as captured by section 20 of the Employment Act Part IV, providing for Oral contracts states as follows: 20. (1) Either party to an oral contract may terminate the employment on the expiration of notice given to the other party of his intention to do so, and where the notice expires during the currency of a contract period, the contract shall be thereupon terminated. (2) In the absence of any agreement providing for a period of notice of longer duration, the length of such notice shall be- (a) subject to the provisions of paragraph (b), twenty-four hours where the contract is for a period of less than a week; (b) fourteen days where the contract is a daily contract under which, by agreement or custom, wages are payable not at the end of the day, but at intervals not exceeding one month; (c) thirty days where the contract is for a period of one week or more. (3) Notice to terminate employment may be either verbal or written and may be given at any time, and the day on which the notice is given shall be included in the period of notice. (4) Where notice is given, there shall be paid to the employee, on the expiration of the notice, all wages and benefits due to him. <» J17 30. The essence of the quoted provisions have been explained in P.462 numerous past decisions of this court where we said that, the giving of notice is a lawful way of terminating a contract of employment: Chilanga Cement Plc v Kasote Singogo3 and Zambia Privatisation Agency v James Matale4. We have also held that, where a contract of employment is terminated contrary to its terms for termination, a claim for wrongful dismissal may be upheld where the employee did not deserve to be dismissed. That the measure of damages in such an instance is payment equivalent to the notice period: Contract Haulage Limited v Kamayoyo5 and the unreported case of Copperbelt Bottling Company Limited v Fombe6. We have further held that, the notice period may be exceeded where circumstances of the termination so justify, such as where the termination is inflicted in a traumatic fashion: Swarp Spinning Mills v Sebastian Chileshe and 30 Others7, and Wilfred Weluzani Banda v Medical Council of Zambia & Another8. » “ • J18 P.463 31. Evidence on record in the present appeal shows the appellants had absented themselves from work. Upon their return on 22nd and 25th November, 2014, the respondent did not accept their common explanation that they had been attending the funeral of a relative. Their services were accordingly dispensed with, without any notice. 32. The respondent did not defend the matter to justify that the appellants had committed a dismissible offence. As the appellants had worked for continuous periods in excess of one year, in terms of section 20 (2) (c) of the Employment Act, a month’s notice would have been reasonable to terminate their employment. We accordingly award them a month’s wages of KI, 200.00 in damages for the wrongful dismissal. Taking that award into account, the sums due to the 1st appellant in unpaid allowances and notice pay are 10,918.40 + KI,200.00 amounting to a total of K12,l 18.40. 33. The 2nd appellant is also entitled in unpaid allowances to the sum of K13, 648.00 + KI, 200.00 notice pay, amounting J19 P.464 to a total of KI4, 848.00. The amounts due will carry interest at short term bank deposit rate, from the date of filing the complaint on 25th March, 2015 to 5th of October, 2015 being the date of judgment in the court below. Thereafter, interest will accrue at current bank lending rate, to the date of final payment. 34. On the claim for unpaid salaries, the evidence of the 1st appellant on record is that they were getting K300. 00 per week, which multiplied by four weeks in a month comes to, KI, 200. 00 per month, an amount well above the statutory minimum salary for a General Worker obtaining at the time, of K700.00 per month. As the appellants were paid above the legal minimum wage, they cannot sustain any legitimate claim in respect of unpaid salaries. 35. Finally, on the issue of costs. We have noted that the respondent did not defend the matter and there was only one attendance, on their part, through its representative, on commencement of trial before the Industrial Relations Court. When the matter came up for the hearing of the J20 P.465 appeal on 2nd April, 2019 before this Court at Kabwe, Mr Munansangu, counsel for the respondent, requested for time to consider their position in relation to the appeal. Although we adjourned the matter to 7th May, 2019 there was nothing done by counsel, resulting in unreasonable delay. 36. Rule 44 of the Industrial Relations Court Rules, Cap. 269, provides that, where it appears to the Court that any person has been guilty of unreasonable delay, or of taking improper, vexations or unnecessary steps in any proceedings, or of other unreasonable conduct, the Court may make an order for costs or expenses against him. 37. We find the respondent exhibited unreasonable delay in their conduct of the matter, both here and before the trial court. We accordingly, order that the respondent bears the out of pocket expenses incurred by the appellants in prosecuting this matter, both here and before the Industrial J21 Relations Court. The costs are to be taxed in default of P.466 agreement. Appeal succeeds. M. MUSONDA AG. DEPUTY CHIEF JUSTICE SUPREME COURT JUDGE J. K. KABUKA SUPREME COURT JUDGE