Zubao Harry Juma v First Quantum Mining and Operations Limited- Road Division (Appeal No. 102/2022) [2024] ZMCA 232 (18 September 2024)

1/ IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA Appeal No. 102 / 2022 (Civil Jurisdiction) BETWEEN: ZUBAO HARRY JUMA APPELLANT AND FIRST QUANTUM MINING & OPERATIONS LIMITED - ROAD DIVISION RESPONDENT Coram: Kondo lo SC, Maju la, Patel SC, JJA On 20t h June, 2024 and 1 gth September 2024 For the Appellant Mr. C. Chungu of Messrs Nsapato & Associates Law Association of Zambia, Pro Bono Program For the Respondent Mr. H. Pasi & Mr. M. Muyunda both of Messrs Manda & Pasi Advocates JUDGMENT MAJULA JA d elivered the J u dgmen t of th e Court. Cases referre d t o : 1. Zambia National Commercial Bank vs Evans Hampopwe - SCZ Appeal No. 188/ 2008 2 . Alfred Mulenga & 270 Others vs Techro Zambia - SCZ Appeal 62/2 005 J2 3. Enock Kavindele & Another vs Bologna Properties Limited & Another - SCZ Appeal No. 136/ 2020 4. Sampa Joseph Luwisha vs Indo Zambia Bank Limited - CAZ Appeal No. 227/2021 5. Zambia National Commercial Bank vs Joseph Kangwa - SCZ Appeal No 56/2008 6. Amiran Limited vs Robert Bones - SCZ Appeal No. 42 of 2010 7. Sarah Aliza Vekhnik vs Casa Dei Bambini Montessori Zambia Ltd - CAZ Appeal No. 129 of2017 8. Saviours Mundia vs Consolidated Farming Limited Comp/IRCLK/442/2019 9. Joe's Earthworks & Mining Ltd vs Dennyson Mulenga - CAZ Appeal No. 107/2022 10. Wilson Masauso Zulu vs Avondale House Project Ltd (1982) ZR 172. 11. Tiger Chicks (Tl A Progressive Poultry Limited) vs. Tembo Chrisford and Others SCZ Appeal No. 6 of 2020. 12 Wellington Mwanza vs The Registered Trustees of Baker Heights Church of Christ COMP/IRCLK/72/2022. 13 Kansans hi Mining Plc vs Mathews Mwelwa - CAZ Appeal No. 103/ 2019. Legislation & Other authorities referred to: 1. Employment Code Act, No. 3 of 2019 2. Industrial Relations Court Rules Chapter 268 of the Laws of Zambia 3. Sangwani Patrict Ng'ambi and Chanda Chungu, 'Law of Contract in Zambia', (2021) 2 nd edition. Juta & Company Publishers, South Africa. NOTE: J3 At the time we cited the case of Zubao in the case of Natasha vs Stanbic, Appeal No. 272/2023, we had planned to deliver the Zubao judgment before the Natasha Patel. However, the Zubao judgment was not ready for delivery regrettably due to some internal administrative lapses. Now we hereby deliver the judgment. 1.0 Introduction 1.1 This appeal originates from the decision of Mumba J . of the Industrial Relations Division of the High Court that was delivered on 23rd February, 2022. 1.2 We have been called upon to interrogate whether the appellant was entitled to an award of accrued service benefits in the circumstances of this case. We shall also consider the principles governing the award of costs in the Industrial Relations Division. 2.0 Background 2.1 The facts of the case are that the appellant was employed by the respondent on a fixed-term contract which commenced on 14th September, 2014 and ended on 19th September, 2016. His employment was converted to permanent and pensionable terms on 20th September, 2016 and all the terms and conditions J4 of his employment that prevailed on the fixed-term contract were carried forward. 2.2 On 1st November, 2020, the respondent notified the appellant of the termination of his employment because of redundancy which was to take effect on 30t h November, 2020. 2 .3 On 12th November, 2020, the appellant was found in possession of a pack of tie clips and a can of multi-purpose spray after he was searched by security guards who were manning the sentinel mine boom gate. Investigations were instituted by the security department and it was thereafter established that the appellant took company property without a gate pass or permission from any senior officer. 2.4 Following investigations, the appellant was charged with the offence of unauthorised removal of company property and theft contrary to clause 4.4 of the disciplinary code and schedule of offences and clause 8 of his fixed-term contract of employment. He tendered in an exculpatory statement on 27th November, 2020 in which he admitted the charge but asserted that his intention was not to steal the items but rather use and return them later. 2 .5 A disciplinary hearing was subsequently held on 30th November, 2020 at which the appellant was accorded an opportunity to be heard. He was consequently dismissed on the same date. His JS appeal was unsuccessful as it was equally rejected on 3 rd December, 2020. 2.6 The preceding facts are what ignited an immediate challenge in the lower court wherein the appellant sought, inter alia, damages for unfair dismissal, payment of service benefits, and accrued leave days. 3.0 Decision of the lower court 3.1 The trial Judge examined the appellant's claims in the context of the law governing unfair dismissal. The court noted that for a claim for unfair dismissal to succeed, a claimant must show that a specific statutory provision was breached by the employer and that the dismissal was based on unsubstantiated reasons. 3. 2 The lower court looked at the prov1s10ns of section 50 of the Employment Code Act and was of the view that the appellant was properly charged for the offence of unauthorised removal of company property and theft under disciplinary code and the contract of employment. When the charge was read to him, the appellant pleaded guilty. The penalty for the offence was set out in clause 4.4 which is summary dismissal. Based on the foregoing, the Judge held that there was no breach of either the Employment Code Act or the disciplinary rules. J6 3.3 The court below went on to consider whether there was a substratum of facts to warrant a finding of guilt against the appellant. The court observed that the appellant took the property in issue which belonged to the respondent for his use without authority. He rejected the appellant's defence that he intended to use part of the items whilst on leave and return the remainder to the respondent for official use. 3.4 On the totality of the evidence, the learned Judge was of the well-considered view that there was a substratum of facts to support the summary dismissal of the appellant from employment. 3.5 On the claim for payment of service benefits, the Judge noted that whilst an employee who has been summarily dismissed is entitled to accrued benefits by virtue of section 51(1) of the Employment Code Act, the appellant did not lead any evidence specifying the type of accrued service benefits he was claiming. His claim for service benefits was accordingly dismissed . 3.6 In a nutshell, the appellant was only awarded accrued leave days in line with clause 5(a) of his contract of employment. There was no order for costs. 4.0 Grounds of Appeal J7 4.1 Unhappy with the decision, the appellant has approached us advancing two grounds of appeal framed as follows: "1. The trial court erred in law and fact by making an order that the appellant cannot receive his service benefits on account that the appellant did not lead evidence specifying the type of accrued service benefits he was claiming and how such benefits accrued to him. The accrued benefits are as contained in the letter of termination by way of redundancy exhibited as ''ZJH 1" as read with the offer of employment on a fixed term contract letter exhibited as "TC l ". The appellant sought court intervention for accrued benefits and not leave days alone. 2. The trial court further erred in law and fact after declining to award the appellant costs when throughout the preparatory time the appellant traveled to the respondent's town Kalumbila in Solwezi to deliver court documents and also to Kitwe twice to deliver court documents to the respondent's Advocates and at trial, the respondent never appeared." 4. 2 We hasten to observe that the grounds of appeal in the manner they have been drafted leave much to be desired. They do not conform to the provisions of Order X Rule 9 (2) of the Court of Appeal Rules as they are not concise and contain narratives. J8 We however, note and consider that the appellant was not represented and drafted these grounds. 5.0 Appellant's Arguments 5.1 The essence of the arguments on the first ground was that the lower court should have awarded him accrued service benefits on a quantum meruit basis by the law. The lower court should have been more sympathetic to the appellant as he had just been dismissed from employment. 5.2 About ground two, the thrust of his argument was that he had spent a lot of money on court documents as well as service thereof on the respondent's advocates in Kitwe. 6.0 Respondent's Arguments 6.1 In reaction to ground one, the respondent's counsel submitted that the lower court did not err when it held that the appellant did not lead evidence specifying the type of accrued service benefits. To strengthen the argument, counsel placed reliance on the cases of Zambia National Commercial Bank vs Evans Hampopwe 1 and Alfred Mulenga & 270 Others vs Techro Zambia2 where the court held that an employee must lead evidence on a claim for underpayment. 6.2 It was further submitted that the issue for service benefits to be awarded to him on a quantum meruit basis was never raised J9 1n the court below and cannot therefore be considered on appeal. The court was ref erred to the case of Enock Kavinde le & Another vs Bologna Properties Limited & Another3 and Sampa Joseph Luwisha vs Indo Zambia Bank4 . 6.3 On the second ground of appeal, the learned Counsel pointed out that costs can only be awarded against a party in a matter before the Industrial Relations Court if there has been an infringement of Rule 44 of the Industrial Relations Court Rules. Solace for this proposition was placed on the cases of Zambia National Commercial Bank vs Joseph Kangwa5 and Amiran Limited vs Robert Bones6 • 6.4 Based on the cited cases, it was contended that the lower court was on firm ground not to award costs to the appellant. 7.0 Reply 7 .1 The gist of the appellant's submission in the reply was that the court below should have awarded one (1) month pay for each year served from 2016 to the date of the enactment of the Employment Code Act and then thereafter 25% of the basic salary. As fortification for the proposition, Mr. Chungu relied on clause 1 of the appellant's contract of employment as well as section 54(1) (c) of the Employment Code Act. JlO 7.2 Learned Counsel went on to assert that under the doctrine of freedom of contract, all contracts of employment are subject to the law except in circumstances where a contract provides more favourable terms and conditions to those in the statute. To cement this position, Counsel rode on the coattails of a book titled Contract Law in Zambia, 2 nd edition by Sangwani Patrick Ng'ambi and Chanda Chungu and the case of Sarah Aliza Vekhnik vs Casa Dei Bambini Montessori Zambia Ltd7 . Reliance was also placed on the provisions of section 127 of the Employment Code Act which were discussed in the case of Saviours Mundia vs Consolidated Farming Limited8 and Joe's Earthworks & Mining Ltd vs Dennyson Mulenga9 among others. 7.3 It was contended that a permanent employee such as the appellant is not excluded from entitlement to severance pay in the form of gratuity under section 54(1)(c) of the Code despite having been dismissed. 7.4 Based on the foregoing, it was avowed that the entitlement to service benefits and accrued benefits were accrued rights that the appellant worked for and earned that should have been paid by the respondent. 7.5 In relation to ground two, Mr. Chungu submitted that in terms of Rule 44( 1) of the Industrial and Labour Relations Court Rules as expounded in the cases of Amiran Limited vs Robert Jl 1 Bones6 and Zambia National Commercial Bank Plc vs Joseph Kangwa5 , costs in the Industrial Relations Division are only awarded in specific instances. Counsel asserted that the respondent in the present case has been guilty of unreasonable and improper conduct during the proceedings by denying the appellant his accrued benefits for clause 1 of his contract and the statute. 7.6 Consequently, the appellant incurred considerable expenses in the matter before court. We were thus urged to allow the appeal with costs. 8.0 Hearing of the appeal 8.1 When the matter came up for hearing, learned Counsel for both parties relied heavily on the written arguments that were filed on behalf of the parties. They also made brief oral submissions which are a repetition of what they had filed. We shall therefore, not reproduce them save to say we have taken them into account. 9.0 Consideration and Decision of this Court 9.1 We have considered the judgment being impugned and the submissions of the parties concerning the appeal before us. J12 10.0 Ground 1 - Accrued Service Benefits 10.1 In ground one, the appellant criticized the lower court for not awarding him accrued service benefits on the basis that h e did not lead evidence to that effect. As far as he is concerned, the court should have at least awarded him the claimed benefits on a quantum meruit basis. 10.2 A principle of law that is well entrenched is that he who asserts must prove the affirmative of issues for them to succeed. The Supreme Court case of Wilson Masauso Zulu vs Avondale House Project Ltd10 is very instructive where it was held: "I think that it is accepted that where a plaintiff alleges that he was wrongly or unfairly dismissed as indeed in any other case where he makes an allegation it is generally for him to prove those allegations. A plaintiff cannot be entitled to Judgment, whatever may be said of the opponent's case." 10.3 From the cited case, this means that the onus lay on the appellant to prove his case on a balance of probability that he was entitled to accrued service benefits. 10.4 Further, in the case of Zambia National Commercial Bank vs Evans Hampopwe 1 , the court underscored a fundamental principle of law when it held: J13 "Where an employee alleges underpayment of salary, wages or allowances before the Court, the employee has to plead the issue explicitly and lead evidence to prove the allegation.'' (Emphasis ours) 10.5 It is not in dispute in the present case that apart from pleading for service benefits, the appellant did not provide evidence to prove his claim in the lower court by way of specifying the type of service benefits and how they accrued to him. However, that notwithstanding, it is clear from the documentary evidence , namely the contract of employment that there was a provision for benefits (page 40 ROA) provides as follows: «At the end of the contract, you shall be entitled to the following:- - One months' gross s alary for each year served or pro rata. - Commutation of all or any (if possible) outstanding leave days at the time of termination. - Payment of all outstanding shifts. 10.6 It is therefore clear from the foregoing that the appellant was entitled to one month's gross salary for each completed year served or pro-rated as they were accrued benefits. We are therefore in agreement with Counsel for the appellant, Mr. Chungu that the Court below fell in grave error when it declined to award the accrued benefits on the basis that no J14 evidence was led. The finding by the court was not supported b y the evidence. 11.0 Applicability of Section 54(l)(c) of Employment Code Act 11. 1 We now turn to examine whether the provisions of section 54(1)(c) of the Employment Code Act apply to the appellant. It has been argued that from the date of enactment of the Code, the appellant was entitled to 25% of the basic pay from the date the Employment Code Act came into force to the date of termination. 11. 2 Our starting point is to look at the prov1s10ns of section 54(1)(c) of the Employment Code Act which enacts as follows: "An employer shall pay an employee a severance pay, where the employee's contract of employment is terminated or has expired, in the following manner:- (a) N/ A (b) N/ A (c) Where a contract of employment of a fixed duration has been terminated, severance pay shall be a gratuity at the rate of not less than twenty-nve percent of the employee's basic pay earned during the contract period as at the effective date of termination. (our emphasis). J15 11.3 It is plain that under section 54(1)(c) of the Employment Code Act there is provision for payment for service gratuity at the rate of 25% of basic pay earned during the contract period. The statute has provided for this severance pay however it is contingent on certain factors. The parties are bound by the provisions of the statute. We expressed ourselves very clearly in the case of Sarah Aliza Vekhnik vs Casa Del Bambini Montessori Zambia Limited7 , when we held that, "Parties cannot contract outside a statute." 11.4 The appellant's contract ran from 2014 up to 2016 when it was converted to permanent and pensionable and he was dismissed on 30th November, 2020. He was thus entitled to the provisions under the employment contract up to 2019. During the currency of the employment contract, the Employment Code Act came into force in 2019. As Acts of Parliament do not operate retrospectively, he was not entitled to the severance pay benefits in the new Code prior to its enactment. This is because there was a valid contract entered into between the parties at the time they contracted and the respondent was within the provisions of the law. After the Code came into effect in 2019, it meant that it had provided the basic minimum for all employment relationships. The provisions of section 127 of the Employment Code Act come into play as they apply to all contracts of employment. Section 127 of the Code provides: J16 "127. Where a contract of employment; collective agreement or other written law provides conditions more favourable to the employee, the contract, agreement or other written law shall prevail to the extent of the favourable conditions." 11 .5 It therefore, mandates us to state that where a contract of employment or statute provides a more favourable benefit that is what ought to prevail. The applicable calculation of severance package for the appellant to be applied was that pursuant to section 54(1)(c) of the Code as it was more favourable than the terms in his contract. We are sure-footed by so stating by the case of Tiger Chicks (T/A Progressive Poultry Limited) vs. Tembo Chrisford and Others11 , where the Supreme Court opined that:- " .... that freedom to contract is circumscribed to the extent that the conditions to be agreed upon should not be less favourable than the minimum prescribed in the Orders made pursuant to the Act." 11.6 We are further persuaded by the sentiments of the learned authors Sangwani Patrick Ng'ambi and Chanda Chungu in their book Contract Law in Zambia, Second Edition where they state at page 289 that: "A contract is illegal if it contravenes a piece of Zambian legislation or the common law." 11. 7 From our perspective, the appellant was entitled to severance pay in the form of gratuity in terms of section 54(1)(c) of the J17 Employment Act in light of the foregoing. It was an accrued entitlement from the date of enactment of the Employment Code Act to the date of dismissal. When an employer dismisses an employee, the former has a duty to pay accrued benefits. The severance package in section 54( 1) of the Code is an accrued benefit. In the insightful case of Wellington Mwanza vs The Registered Trustees of Banker Heights Church12 the High Court held that: "Tennination of tenninal bene[1.ts relate to all the bene[1.ts due to an employee in terms of statue and the contract of employment when his/her contract of employment comes to an end. Where an employer summarily dismisses an employee, the employer has a duty, on dismissal to pay the employee the wages and other accrued bene[1.ts due to the employee up to the date of dismissal." (emphasis our). 11.8 Further fortification for this position is to be found in section 51(1) of the Employment Code which enacts that: "51. (1) An employer who summarily dismisses an employee under section 50 shall pay the employee on dismissal, the wages and other accrued bene[1.ts due to the employee up to the date of dismissal." 11. 9 The exclusion of entitlement to the provisions of section 54(1)(c) of the Code are to be found in section 54(3) of the Code which provides that: "54(3) The severance pay under this section shall not be paid to a casual employee, a temporary employee, an Jl8 employee engaged on a long-term contract or an employee serving a period of probation." 11 . 10 Our interpretation of the above provision is that employees engaged on a permanent basis are entitled to a severance package under section 54(1) (c) of the Employment Code Act. 11 . 11 In light of the foregoing, we are of the considered view that there is merit in the first ground of appeal and uphold it accordingly. 12.0 Ground 2 - Costs 12.1 In the second ground of appeal, the appellant has attacked the lower court for not granting him costs despite awarding him accrued leave days. 12.2 The general rule which is that costs follow the event does not apply to litigation in the Industrial Relations Division of the High Court. Costs in this division are expressly governed by Rule 44( 1) of the Industrial Relations Court Rules which enacts as follows: "(1) Where it appears to the court that any person has been guilty of unreasonable delay, or of taking improper, vexation or unnecessary steps in any proceedings, or of other unreasonable conduct, the court may make an order for costs or expenses against him." (emphasis ours) . J19 12.3 In the case of Zambia National Commercial Bank Plc vs Joseph Kangwa5 the court of last resort held that: "With regard to Rule 44 of the Industrial Relations Court Rules, contained in the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia, provides that a party should only be condemned in costs it they have been guilty of misconduct in the prosecution or defence of the proceedings. We wish to adopt the principle in that rule since this is a matter of coming from the Industrial Relations Court. We do not find any misconduct in the respondent's defence of this appeal." 12. 4 We too had to weigh in on the issue in the case of Kansanshi Mining Plc vs Mathews Mwelwa11 when we held that: "In order for one to be awarded costs the onus falls on them to demonstrate that the claim falls under one of the exceptions. The long and short is that the general rule of costs follows the event does not apply in matters under the Industrial Relations Division unless one is guilty of unreasonable delay on taking improper vexatious or unnecessary steps in any proceedings or the other unreasonable conduct. " 12.5 It is clear from the authorities that costs in the Industrial Relations Court are only awarded against a party where that party has been guilty of unreasonable delay or taking improper, vexatious, or unnecessary steps in the proceedings of other unreasonable conduct in breach of Rule 44(1) of the Rules. J20 12.6 It has been argued by Mr. Chungu that the respondent ought to be condemned in costs because they are guilty of unreasonable and improper conduct on account of them denying the appellant his accrued benefits as per clause 1 of his employment contract and statute. We are quite perplexed by this argument as we do not consider that failure to pay accrued benefits which was a source of disagreement between the parties can in and of itself amount to unreasonable and improper conduct. Unreasonable and improper conduct has been explained in Rule 44 as well as the case of ZANACO vs Joseph Kangwa5 and Amiran Limited vs Robert Bones6 among others. 12.7 From where we stand, we do not find the respondent guilty of any misconduct in the defence of the proceedings to warrant an infliction of costs. 12.8 This ground of appeal is found to be devoid of merit and is dismissed. 13.0 Conclusion 13.1 In sum, it is our firm position that ground one is meritorious in that the appellant is entitled to payment of service benefits and accrued benefits by virtue of the employment contract and the Employment Code Act. He is entitled to one month's pay for each year served from 2016 to the date of enactment of the J21 Employment Code Act in 2019. Further, from the date of enactment of the Employment Code Act to the date of dismissal which is 30th November, 2020, the appellant 1s entitled to 25% of the basic pay. 13.2 Pertaining to ground two, there was no infraction of Rule 44(1) of the Industrial and Labour Relations Court Rules, therefore, the claim for costs fails and is dismissed accordingly. 14.0 Costs 14.1 The matter having emanated from the Industrial and Labour Division of the High Court, costs in this court and the court below shall be borne by the respective parties. --- ~ ..... ..... ? ,~ ............................................ . M. M. Kondolo, SC COURT OF APPEAL JUDGE ......... ~ ......... .. A. N. Patel, SC COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE