Times Print Pak Zambia v Lupaka (Appeal 173 of 2000) [2002] ZMSC 145 (26 April 2002)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 173/2000 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN TIMES PRINT PAK ZAMBIA APPELLANT AND BONIFACE LUPAKA RESPONDENT Coram: Sakala, Chirwa and Chibesakunda, JJS On 25th September 2001 and 26th April 2002 For the Appellant: Mr G Mwewa of Gideon and Partners For the Respondent: Mr L P Mwanawasa, State Counsel of Messrs Levy Mwanawasa and Company JUDGMENT Chibesakunda JS, delivered the judgment of the Court Authorities referred to: 1. Pamodzi Hotel v Mbewe SCZ 1987 2. Francis v Municipal Councillors of Kuala Lumpur |1962|3 AllER 633; 3. ZCCM Vs Matale 1998 ZR 144 This is an appeal from the Industrial Relations Court’s Judgment in favour of Mr Lupaka, the Respondent before us. The Appellants are the former employers of the Respondent. The claim before the Industrial Relations Court was that: - 1) 2) The retrenchment of the Respondent was in breach of the Collective Agreement governing his employment; and The consequential termination of his scholarship is in breach of contract and of the Collective Agreement. J2 The evidence before the Industrial Relations Court on which there was no dispute was that the Respondent joined the Appellant Company on 1st June 1991 as Senior Accountant, assisting in the Payroll Department in Ndola. In February 1992 he was transferred to Kitwe to man the Accounts Department. After six (6) months he was* recalled to Ndola to act as Payroll Accountant. When the owner of that position returned from maternity leave, the Respondent was given another position in the Bank Reconciliation Department where he was the only employee. In early February 1995 he applied for sponsorship from his employers to go and study for Zambia Diploma in Accountancy in Chingola. Initially, his application was not successful but in May his application was successful and he was sponsored at the Accountancy Training School, Chingola in January 1996. His testimony is that the Appellant Company paid for both board and tuition. He was also provided with accommodation. It is also his evidence that during the course of his sponsorship he did very well. Surprisingly, in April 1997 he received a letter of redundancy while he was still at this college and the services were terminated on 1st April 1997. The Respondent also relied on the provision of the Collective Agreement, pages 1 to 2, which stated inter alia that the Appellant Company: - a) Was obligated to meet all of his tuition fees and examination fees; b) Was obliged to offer and provide standard transport to and from the Institution; c) Pay an appropriate transport allowance; d) Was obliged to give him accommodation during his training; and e) Bonded the Respondent to serve the Appellant Company the period of the course. The Respondent referred to Clause 25(1) of the Collective Agreement under which clause the Appellant Company was obliged to, if a situation of redundancy existed, or where a position or rank in the Appellant Company ceased to exist or where it was necessary to reengage or re-deploy an officer in the Appellant Company, notify an employee affected of such decision not less than three (3) months before effecting the redundancy and that prior authority of the Union and the Ministry of Labour and Social Security had to be obtained. From his evidence, which was disputed, the Appellant Company did not comply with this clause. J3 He referred to a colleague of his who was sponsored more or less at the same time - Mr Cyril Masamu, who remained in employment and was sponsored by the Appellant Company whereas his sponsorship was terminated. The Appellant Company gave evidence and disputed the Respondent’s evidence. Their evidence is that they obtained authority from the Ministry of Labour and Social Security as well as authority of the relevant Union before affecting the redundancy. They also complied with Clause 25(1) of the Collective Agreement. They also testified that since the Respondent was no longer their employee they had no obligation to sponsor him. According to them this Cyril Musamu was given a study leave. The Industrial Relations Court ruled in favour of the Respondent. The Appellant had advanced three grounds of appeal before us. 1) That the learned trial Judge erred in holding that the redundancy was not approved by the Ministry of Labour and Social Security. The learned counsel for the Appellant referred to DWl’s evidence at page 38 paragraph 19 which established that the Appellant obtained the Labour Commissioner’s authority before declaring the Respondent redundant. It was also argued by the Appellant Company that even if the relevant authority had not been obtained, that would not necessarily make the retrenchment of the Respondent null and void. 2) That the court’s findings that the Appellant refund the Respondent of all the monies spent on his study up to the date of judgment, including monies due for the completion of his course, was wrong at law. According to the Appellant, the Respondent was no longer their employee, after the Respondent was lawfully declared redundant in compliance with Clause 25 (1) of the Collective Agreement:- - J4 - a) by giving due notice of redundancy or payment of three months salary in lieu thereof; and b) by obtaining the Labour Commissioner’s authority. There was no money due to refund the Respondent it most needs. They argued that the Respondent was already adequately paid his dues when he was declared redundant. It was not proper to pay any more money as damages; and 2) Following the arguments at (1) and (2). The Respondent was not entitled to any more damages as he was already paid his dues in accordance with the law. The Respondent’s arguments in response are that the Industrial Relations Court was on firm ground in concluding that the Respondent was entitled to the damages awarded because there was no evidence produced by the Appellant Company either that the retrenchment was approved by the Labour Commissioner; there was no evidence established before the Industrial Relations Court that three months’ notice was given to the Respondent, neither did the Appellants state that the Respondent’s job ceased to exist. It was also argued on behalf of the Respondent that the Appellants were still investing in the education of another employee and that at the time they declared the Respondent redundant, ironically the Appellant Company was still investing in this other employee’s education pursuing the same discipline as the Respondent. It was, therefore, absurd for them to declare him redundant. It was pointed out that had this information been given to the Labour Commissioner, the Labour Commissioner would not have sanctioned the redundancy. So the argument by the Respondent is that the Labour Commissioner had not sanctioned the redundancy. On the second ground, the learned State Counsel pointed out to us that the Appellant Company was not justified in terminating the agreement. He argued that since the Appellant did not comply with Clause 25 (1) of the Collective Agreement and since this clause comes under the provisions of the statute, it is a breach, as was held in the case of Pamodzi Hotel Vs Mbewe and Francis Vs Municipal Councillors of Kuala Lumpur (1), would render the dismissal or redundancy null and void. J5 He went on to point to us that since Section 32 of the Employment Act was not complied with, therefore, in accordance with Pamodzi Vs Mbewe and Francis Vs Municipal Councillors of Kuala Lumpur (1) the decision of the Appellant Company was null and void. He urged this court to therefore distinguish between a contract of employment and sponsorship of studies. In a contract of employment, that is, master and servant relationship it is true that, the court would not, unless in very special and rare circumstances, order specific performance and will instead award damages for breach of contract. But in cases of breach of a contract to sponsor the aggrieved party would be entitled to sue for specific performance. It was, therefore, argued that the court was right to have awarded the specific agreement. On ground (3) of the Appellant Company’s heads of arguments, he argued that the trial court was correct to have awarded K10,000,000.0Q. He generally referred to ZCCM Vs Matale 1998 (2) urging us to be slow to intervene in this matter since it arises from the use of a discretionary power vested in the Industrial Relations Court. He brought out the point made in the Matale case that there was nothing in the Industrial and Labour Relations Act which prevented that court from delving into or going behind reasons given for termination, in order to redress any real injustices discovered. We have looked at the record and pondered over the arguments advanced before us. We are of the view that although the declaration of the Respondent redundant was harsh it was nonetheless not unlawful. He was not exempted from being declared redundant. So the sponsorship could not continue after being declared redundant - so we find merit in the appeal. The appeal is allowed. We set aside the lower court’s order. We order no costs. E L Sakala SUPREME COURT JUDGE D K Chirwa SUPREME COURT JUDGE L P Chibesakunda SUPREME COURT JUDGE