Mpulungu Harbour Corporation Limited v Fred Kambole Mutwale and Ors (APPEAL No. 15/2017; CAZ/08/121/2016) [2017] ZMCA 497 (2 October 2017)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: (t, z/ c i/ /?-/ 1'2.-o I l, APPEAL No.15/ 2017 MPULUNGU HARBOUR CORPORATION LIMITED APPELLANT ~ AND FRED KAMBOLE MUTWALE SAMUEL NGOLWE SINY ANGWE MILDRED BWAL YA l sr RESPONDENT 2ND RESPONDENT 3 RD RESPONDENT Coram: Mchenga, DJP, Chashi and Mulongoti, JJA On 4th May 2017, 6th June 2017, 27th June 2017, 22nd September 2017 and 2nd October, 2017. For the Appellant: M. Mondo, ML Mukonde and Company For the Respond ent: G . M. Mukulwomutiyo, Senior Legal Aid Counsel, Legal Aid Boord J ·U-D GM ENT \j Mchenga, DJP, delivered the Judgment of the Court Cases referred to: 1 . Zambia Consolidated Copper Mine Limited v Elis Katyamba and Others [2006] Z. R. l 2. Davis Jokie Kasote v The People [1977] Z. R. 15 3. Zambia Consolidated Copper Mines Limited v Patrick Mutemwa [1995- 1997) Z. R. 99 4. Gerald Chilumanda v ZESCO Limited Appeal No. l 06 of 2014 5. Zambia Consolidated Coper Mines Limited v Jackson Munyika Siame and Others [2004) Z. R. 193 . ... "' • _:_ -· : w· ,J Legislation referred to: -J2- 1. The Employment Act, Chapter 268 of the Laws of Zambia 2. The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia This is an appeal against the decisio n of the Industrial/Labour Divisio n of the High Court delivered o n 22nd November 2016, granting the respondents leave to file the complaint against t heir dism issal from employment out of time. The circumstances surrounding the appeal are tha t the three respondents w ere employed by the appellant as She d Supervisor, Tallying Clerk and She d Cle rk , respectively, at Mpulu ngu Harbour. On 25th August 20 15, the responden ts and others were assigned to load sugar o n to a ship. After being loaded with sugar, the ship sail~d from the harbour and it was later d iscovered thar insufficient amou'nts of su~lar had been loa"ded on it. The retpondents were tt{°'~n charged for l~e shortage and requested to exculpal e themselves. The respondents wrote exculpatory letters to the appellan t b ut, their explanatio ns were not accepted. They were subsequently dismissed from employme nt. They all appealed against the dismissals a nd on 20 th November 2015, the pt and 2nd responden ts were informed that their appeals had no t succeeded. In the ca se of the 3rd respondent, she was informed that her appeal had not succeeded on 26th February 20 16. .. -... '. -J3- There was also evidence that following the dismissal of th eir appeals, the respondents approac hed the Labour Office which tried to e ngage the appellant 's management over the d ismissals. O n 17th May 20 16, a Senior Labour Officer, handling the matter, come to the conclusion that management was unwilling to amicably resolve the issues and re ferre d the matter to court after invoking the provisions o f Section 65 of the Employment Act. On 3rd August 2016, the respondent s applied for leave of lodge their complaints against their dismissals out of time. After considering submissions by both parties, the trial Judge found that fo llowing the dismissal of their appeals by management, the responden ts attempted to resolve the matter administratively by engaging the National Union o f Allied Workers. He lhen granted th e m leave to file the complaint ou t of time 9_ecause the ir failu~~ to fil e it within ninety days of their Q_ppeals being dismissed wqs not inordinate . r.;· Dissatisfied with the ruling, the appe llant has appe a led and advanced three grounds of appeal. They are as follows: l . The learned Judge of the High Court misdirected himself in law and fact when he found that the delay by the respondents in filing the complaint was not inordinate. 2. The learned Judge misdirected himself in law and fact when he found that the respondents were engaged in a quest to settle the matter administratively and that there was reasonable cause for further delay in filing the complaint. .. .. "" ,. :_-· .-w· ·" ._ .,°' ,~ .-;' .-w· . I -J4- 3. The learned Judge misdirected himself in law and in fact when he ignored the Judgement of the Supreme Court in the case of Zambia Consolidated Copper Mine Limited v Elis Katyamba and Others (2006) Z. R. l In dealing with this a p pea l, we shall deal with the three grounds of appeal together as they are inter related. In support o f the 1st ground of appeal, Mr. Mondo pointed out that the trial Judge found that there was no inordina te delay a t the time the respondents filed in the complaint. He then submitted that a correct interpretation of Section 85 (3) of th e Industrial and Labour Relations Act is that the complaint must be filed within 90 days of exhausting available administra tive channels. Thereafter, a complain! cannot be filed; he referred to the c ase of Zambia Consolidated Copper Mines v Elvis Katyamba and Others (1 ), in support of the proposition. ✓ ~ ✓ ✓ Coming to the 2nd ground of appeal, Mr. Mondo pointed out that the trial Judge ✓ ✓ found that the respondents sough! lo resolve the matter administratively by engaging the union. He then submi lled that in the case of Zambia Consolidated Copper Mines v Elvis Katyamba and Others (1 ), what amounted to "administrative channels" was outlined. They involve engaging o n employer in the process o f appeal and do not extend to dealing with third parties, like a union. As regards the 3rd ground of a p p eal, Mr. Mondo referred to the c ases o f Davis Jokie Kasote v The People (3) and Zambia Consolidated Copper Mines Limited v Patrick Mutemwa (3) and submitted that there was misdirection when lhe trial • ....... ,✓ • -- ~· ...... ., -JS- Judge failed to follow the decision in the case of Zambia Consolidated Copper Mines v Elvis Katyamba and Others (1 ). This is because it is a decision of the Supreme Court and therefore binding on the lower court. He then pointed out tho I in !hat case, it was held that a complaint filed after the expiry of the prescribed period should not be entertained . II a lso defined what amounted to engaging in "administrative channels" after dismissal under section 85 of the Industrial and Labour Relations Act. In the presenl case, the courl allowed the complaint lo be filed out of time and accepted th e respondents ' engaging !he union which was not covered as ac ts that amount to engaging in administrative channels in Iha! c ase. In response to the 1st ground of app eal, Ms. Mukulwamuliyo submitted tho! !he p roviso t~ _Section 85 (3) of ~~e Industrial and L,~bour Relations A~_t gives !he courl , . .;· the discrajion to a llow a cofl)plainant lo prese,nt a complaint ou) of time even in ,t cases where the 90 days period has been exhausted. She referred lo !he case of Gerald Chilumanda v ZESCO Limite d (4), and submitted that in tha t case, th e Supreme Court held that the courls have the discretion to grant leave to a complainant to file a complaint after 90 days, if suffic ie nt reaso n is advanced. She argued that in this case, the respondents did provide sufficient reason and th e Judge in the court below correctly exercised the discretion to grant such leave. Coming to the 2nd ground of appea l, Ms. Mukulwamutiyo's response was that !he trial Judge did not misdirect himself when he found that !he respondents delaye d ., _, , I -J6- filing their complaint because of a quest to resolve the matter administratively. She referred to the c ase of Zambia Consolidated Copper Mines v Elvis Katyamba and Others (1) and submitted tha t administrative chan nel encompasses more than appeals, th ey include further negotiations. In this case, the resp ondents did not only approach the union, they a lso engaged the Labour Office. On the same issue , she a lso submitte d that the union is not a third party because Section 3 of the Industrial and Labour Relations Act, indica tes that unions are organisations that promote a nd rep resent the interests of e mployees. She then argued that administra tive channels o nly closed a fter a letter was written by the union on 17th May, 2016. She also re ferred to the case o f Zambia Consolidated Copper Mines Limited v Jackson Munyika Siame and Others (5) and submitted that the lower court, being a court of substantial justice, p roperly exercised its ,. ,. ,. ,. ,. discreticyi when it allowedJhe respondents tq·file their complaiQ"f ou t of lime . ✓ In response to the third ground o f a p peal, Ms Mukulwamutiyo submitted that the trial Judge cannot be faulted for not following the decision in Zambia Consolidated Copper Mines v Elvis Katyamba and Others ( 1) because it was decided before th e 2008 Amendmen t of section 85(3) of the Industrial and Labour Relations Act. Following the amendment, the court's disc retion to accept a complaint ou t of time has been bro a dened. We have considered the record o f proceed ings in the court b e low and the submissions by counsel. ., ... .. "\ . .. -- ;,·:. w~ .. J ... .,"' . .. .~ --~ .... ,.,.,.,~ -J7- At the time the case o f Zambia Consolidated Copper Mines v Elvis Katyamba and Others {1 ), was decided, Section 85(3) of the Industrial and Labour Relations Act, read as follows: "The Court shall not consider a complaint or application unless it is presented to it within thirty days of the occurrence of the event which gave rise to complaint or application: Provided that, upon application by the complainant or applicant, the Court may extend the thirty-day period for three months after the date on which the complainant or applicant has exhausted the administrative channels available to that person." Following the 2008 A m e ndment of the Industrial and Labour Relations Act, the provision now reads as fo llows: The Court shall not consider a comp laint or an application unless the complainant or applicant presents the c.omplainl or applicalioo to the Court- ,f ,/ (a) within ninefy days of exhaustiKg the administrativl channels i( available to the complainant or applicant; or (b) where there ore no administrative channels available to the complainant or applicant, within ninety days of the occurrence of the event which gave rise to the complaint or application: Provided lhat- (i) upon appli c ation by the complainant or applicant, the Court may extend the period in which the complaint or application may be presented before it; and (ii) the Court shall dispose of the matter within a period of one y ear from the day on which the complaint or application is presented to ii." ., -JB- A comparison of the two provisions clearly indicates that they are fundamentally different. This being the case, we agree with Ms. Mukulwamutiyo's submission that the trial Judge cannot be faulted for not following th e decision in that case on the correct interpretation of the import of section 85(3) of the Industrial and Labour Relations Act. Our interpretation of the current Section 85 (3) of the Industrial and Labour Relations Act is that a complainant is given 90 days to file a complaint after exhausting the administrative channels available. In a case where there are no administrative channels, the complaint must be filed within 90 days of the event that gave rise to the complaint. The proviso goes on to give the court discretion to allow the filing of a complaint outside the 90 days. It follows, that the appellant's submission that the failure of an aggrieved person to file a complaint within 90 days ,. , _ ,. ,. ,_ of exhqJ:Jsting administratiye chan nels, mak_es it incompetenfv,·for th em to file q : complaint at all, is not correct. The court has the discretion, where sufficient reason is shown, to allow one to file a complaint after the expiry of the 90 days. The question is whether the Judge in the court below, properly exercised his discretion to allow the respondents to file their complaint out of time when he granted them leave to do so. Section 85(3) of the Industrial and Labour Relations Act, does not indicate how long after the expiry of the 90 days one can be granted leave to file a comp laint. Neither does it prescribe the grounds on which such leave can be granted. In the case of Gerald Chilumanda v ZESCO Limited (4), the ., . I ., . I . I . ' -J9- Supreme Court, considering a similar situation, indicated that when considering an application for leave to file a comp laint out of time, there has to be suffic ie nt reason for the delay in seeking redre ss. In this case, the trial Judge considered the reasons for the delay and found tha t the respondents had engaged the union in th eir quest to settle the matter with th e appellants. There is a lso evidence that they engaged the Labour Office . In the circumstances, we find that it canno t be said that the Judge in the court below failed to judiciously exercise his disc retion as there was sufficient reason for th e delay in filing the complain t. They had engaged both the labour Office and th e union in a quest to resolve the issue. When nothing positive came out of the e ffort s, they decided to litigate. In view of the forgoing , the three grounds of appeal have failed. We find no m erit ~ ✓ ~ ✓ ~ ~ in the appeal and we dismiss it with c osts. The respondents are a llowed to file their complaint within 30 days o f this Judgment. DEPUTY JUDGE JC ASHI COURT OF APPEAL JUDGE ···~~··· ······ ··· ··· COURT OF APPEAL JUDGE . -~ . ., ., . -~ . ., ., . ,_ .