ABSA Bank Zambia v Jonas Kapungu Matende (APPEAL/65/2022) [2025] ZMCA 53 (26 March 2025)

IN THE COURT OF APPEAL FOR ZAMBIA APPEAL/65/2022 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: ABSA BANK ZAMBIA 2 6 MAR 2025 APPELLANT AND JONAS KAPUNGU MATENDE RESPONDENT CORAM: KONDOLO SC, CHISHIMBA, SICHINGA JJA On 22nd February, 2023 and 26th March, 2025 For the Appellant: Mr. M. Nalishuwa & Mr. E. S. Lilanda of Messrs Mulenga, Mundashi - Legal Practitioners For the Respondent: In Person J U DG MEN T KONDOLO SC JA delivered th e J u dgment of the Court. CASES REFERRED TO: 1 . Concrete Pipes & Products Ltd v Kingsley Kabimba & Another SCZ/ 14/2015 2. E. C. Mining Ltd v Brian Mwansa CAZ/4/2018 J2 of 16 LEGISLATION REFERRED TO: 1. Industrial & Labour Relations Act Chapter 269 of the Laws of Zambia 2. Industrial Relations Court Rules (IRCR) Chapter 269, Laws of Zambia 3. Statutory Instrument No.8 of 2008. 1. INTRODUCTION 1. 1. This is an appeal against a Ruling of the High Court Industrial Relations Division delivered by the Honourable Mrs. M. K. Makubalo on 23rd August, 2021. 1.2. The delay in delivering Judgment in this appeal is regretted. At the time we sat to hear this appeal, Honourable Justice Mr. D. L. Y Sichinga sat with us. At the time of delivery of the Ruling, the Hon. Judge not being available, this is a Judgment of the majority. 2. BACKGROUND 2. 1. The Ruling was in respect of a notice to raise preliminary issues pursuant to Rules 33 and 38 of the Industrial Relations Court Rules (IRCR) Chapter 269, Laws of Zambia in which the trial Court was asked to determine the following two questions: J3 of 16 1. Whether this honourable Court has the power and jurisdiction to entertain or consider the Complainant's Notice of Complaint and Affidavit in Support thereof, both filed on 2 nd February, 2021; and, 2. Whether the Complainants Notice of Complaint and Affidavit in support thereof were competently before the Court. 2.2. The Appellant dismissed the Respondent from employment following a disciplinary hearing. The Appellants disciplinary code provided that an employee who had been dismissed had the right to appeal within 10 days of being dismissed. 2.3. The Respondent decided to not appeal but proceeded to file a Notice of Complaint four days after receiving his dismissal letter. 2.4. The Appellant reacted by raising a preliminary issue arguing that section 85 (3) of the Industrial & Labour Relations Act Chapter 269 of the Laws of Zambia (ILRA) states that; "85 (3) The Court shall not consider a complaint or application unless the complainant or applicant presents the complaint or application to the Court- J4 of 16 (a) Within ninety days of exhausting the administrative channels available to the complainant or applicant." 2.5. The Appellant submitted that the trial Court had no jurisdiction to hear the matter because the Respondent had not exhausted the administrative channels available to him. 3. APPELLANTS ARGUMENTS 3.1. The Appellant basically argued that section 85 (3) ILRA employed the use of the word "shall" thereby making compliance with the provision mandatory. 3.2. That the Appellants disciplinary process provided the Respondent with the right to appeal within 10 days of being dismissed but he had decided to go directly to Court before exhausting the disciplinary process. 3.3. The Appellant cited the case of Concrete Pipes & Products Ltd v Kingsley Kabimba & Another 111 where it was held that adherence to the available disciplinary procedure was imperative. 3. 4. It was argued that the Court therefore had no jurisdiction to hear the matter. JS of 16 4. RESPONDENTS ARGUMENTS 4.1. The Respondent submitted that an employee could not be forced to appeal if he felt it was not worth his while and nothing stopped him from going directly to Court. 4.2. The Respondent also cited the Concrete Pipes Case (supra) where it held that; "A cause of action is not necessarily lost by reason merely of the fact that internal administrative disciplinary proceedings were not concluded or acceded to .. ............. In the present case, therefore, we are of the view that the Respondent still maintained their cause of action, notwithstanding their non-submission to or exhaustion of the disciplinary procedures available." 5 . HIGH COURT DECISION 5 .1. The trial Judge held that the Concrete Pipes case was to the effect that non-exhaustion of internal administrative channels of appeal will not extinguish a matter. 5.2. The Court added that the Appellants internal disciplinary process stated that employees had the right to appeal. Makubalo J, noted that the provision did not use the word "shall" but indicated that the right to appeal "should" be J6 of 16 exercised within 10 days of the decision being appealed against. According to the trial Judge this indicated that the appeal process was optional. 5.3. On the second question, the trial Judge held that section 85 (3) ILRA does not proscribe employees from bringing a matter to Court before the 90 days of exhausting the internal administrative avenue. That employees were at liberty to skip the administrative channels. 5.4. The Court found that it had jurisdiction to hear the matter. 6. APPEAL 6 . 1. Dissatisfied with the Ruling, the Appellant has appealed on two grounds as follows; 1. The Court below erred in law and fact when it held that it had the requisite jurisdiction to entertain and determine a Notice of Complaint that had been filed prior to the Respondent exhausting all available administrative procedures with the Appellant contrary to section 85(3) of the Industrial and Labour Relations Act; and, 2. The Court below erred in law and fact when it held that an employee who has been dismissed, such as the Respondent in the instant case, had J7 of 16 a choice between exhausting administrative channels or commencing a matter before the Industrial Relations Division of the High Court. 7. APPELLANTS & RESPONDENTS ARGUMENTS 7 .1. The Parties essentially repeated the arguments advanced in Court and simply expanded on them. 7 .2. The main point of departure was their respective interpretations of section 85 (3) ILRA vis-a-vis the Supreme Courts holding in the Concrete Pipes Case. 8. THE HEARING 8.1. At the hearing both parties relied on the filed process which they augmented viva voce. 8 .2 . Mr. Nalishuwa on behalf of the Appellant noted that the learned trial Judge placed heavy reliance on the Concrete Pipes Case supra without considering that it was distinguishable from the matter before us. 8 .3. According to Mr. Nalishuwa the Concrete Pipes Case supra dealt with the question of whether an employee who has been terminated is robbed of a cause of action relating to termination prior to the exhaustion of internal administrative channels. JS of 16 8.4. He submitted that the Supreme Court did not say that the door was open to complainants who had not exhausted the administrative processes but simply stated that there are instances where a complainant can do so and examples were given. 8.5. That in casu, the Respondent circumvented the procedure provided in the disciplinary code by going straight to the High Court four days after receiving the disciplinary letter. 8.6. Mr. Lilanda also on behalf of the Appellant submitted that the Respondent had not demonstrated that the administrative process was slow or cumbersome. 8. 7. In response Mr. Matende referred to the case of E. C. Mining Ltd v Brian Mwansa 121 which he opined, interpreted section 85 (3) as amended by section 19 (3) (a) of Statutory Instrument No.8 of 2008. 8.8. He submitted that departing from the foregoing interpretation would be contrary to the Concrete Pipes Case supra. He argued that this Court cannot, on appeal, determine the effectiveness of the Appellants disciplinary procedures. 8.9. The Respondent further submitted that the Appellants internal procedures do not prohibit an employee from coming J9 of 16 to Court before exhausting the internal procedure. He noted that this was an issue in the E. C. Milling Case supra, thus bringing it on all fours with the case before us. 8 . 10. He submitted that the Appellants application was frivolous and vexatious and should be dismissed with costs. 8.11. Mr. Lilanda replied by stating that the question of costs in this matter is regulated by Rule 44 of the Industrial Relations Court Rules. 9. ANALYSIS AND DECISION 9.1. We have considered the record of appeal and the arguments advanced by the parties in their filed arguments and oral submissions. 9.2. Both parties quoted extensively from the case of Concrete Pipes & Products Ltd v Kingsley Kabimba & Another supra but before we offer our understanding of the import of the Supreme Courts dicta therein, we wish to draw attention to the learned trial Judges observations at page Rl 1 of h er ruling (p. 24 record of appeal) where she noted the wording of the Appellants grievance procedure as follows; JlO of 16 "The 10 days' period in which to appeal is found in the Banks Disciplinary Capability and Grievance Procedure (Toolkit) in clause 3 the "Right to Appeal", "Employees have the right of appeal against any internal action under the disciplinary or capability procedure. The appeal should be lodged within 10 working days after receipt of the decision in writing." (emphasis ours) I tend to agree that the word "should" does not carry a mandatory duty like the word "shall" does. Therefore, the word right connotes that the right can be exercised or not depending upon the employee's h . c oice ...... " 9.3. We absolutely agree with the learned trial Judge that this clause places no compulsory obligation on an employee, upon being dismissed from employment to activate the appeal process. Under this clause an employee simply reserves the right to appeal and is in no way compelled to do so. Where the employee elects to appeal, the appeal should be lodged within 10 working days after receipt of the decision in writing. Jll of 16 9.4. We reproduce the contentious section 85 (3) of the ILRA as amended by Act No. 8 of 2008 which reads as follo,vs; 85 (3) The Court shall not consider a complaint or application unless the complainant or applicant presents the complaint or application to the Court - (a) Within 90 days exhausting the administrative channels available to the complainant or applicant. 9. 5. Since the appeal process was optional the only process a dismissed employee was meant to exhaust before presenting a complaint or application to the Court was the initial disciplinary process culminating in a decision. 9.6. !n casu, the Respondent was subjected to and exhausted the initial part of the disciplinary process which ended with the Appellant on 29th January 2021 writing to him advising that he had been summarily dismissed from employment. He then decided to exercise his right to not appeal and proceeded to lodge a complaint with the HCIRD. 9. 7. We now turn to the Supreme Courts dicta in the case of Concrete Pipes & Products Ltd v Kingsley Kabimba & Another supra; «The appellant is of the position that the fa.ct that internal disciplinary procedures were not exhausted J12 of 16 means that the respondents did not have a cause of action to commence the proceedings in the lower Court. It is therefore significant for us to answer the peripheral question whether the failure by an employee, separated from his employer, to exhaust internal administrative procedures divests such employee of the right to commence legal action against the employer ..... ...... .... .. It is, of course, significant and advisable that an employee who believes that he has been wrongfully dismissed or has had his employment unlawfully terminated on account of his conduct, should ensure that the available internal disciplinary channels are exhausted before he proceeds to commence legal action. The proceedings of the disciplinary hearing help to 'clear the decks ' and give the Court additional material to chew on in determining the efficacy of the complaint. Exhausting available grievance redress procedures will also give the parties an opportunity to narrow or altogether clear possible misunderstandings or misperceptions. It also offers an important opportunity to the employee to explain himself on allegations of misfeasance before the ultimate sanction - dismissal - is m eeted out against him by the employer. In this J13 of 16 sense adherence t o any such procedure is imperative. However, an aggrieved employee need not subject himself to any internal administrative disciplinary procedures where these are non existent, or are unduly prolonged or totally ineffective. Unreasonable refusal for an employee to subject himself to disciplinary procedures could of course have its own repercussions. The extent to which the employee's choice not to submit to intemal administrative disciplinary proceedings may react u pon the merit of his case, will of course vary from case to case depending on the peculiar circumstances. Our view nonetheless is that refusal to subject oneself to internal disciplinary procedures goes to the credibility of the complai nt in Court, rather than to the cause of action itself. In other words, a cause of action is not necessarily lost by reason merely of the fact that intemal administrative disciplinary proceedings were not concluded or acceded to. In our estimation, failure or refusal to follow or to subject oneself to disciplinary procedures can only go either to J14 of 16 strengthening or to weakening the employee's complaint against the employer. In the present case, therefore, we are of the firm view that the respondents still maintained their cause of action notwithstanding their non submission to or exhaustion of the disciplinary procedures available." 9 .8 . It is interesting t o n ote th a t in its J udgm en t, the Suprem e Cou rt m ade n o m en tion of section 85 (3) ILRA but did go on to identify the question for determination as follows ; "It is therefore significant for us to answer the peripheral question whether the failure by an employee, separated from his employer, to exhaust internal administrative procedures divests such employee of the right to commence legal action against the employer" 9 .9. Th e cited question mimics the conten t s of section 85 (3) ILRA and our u nderstanding of the Suprem e Court Judgmen t is simply th at failu re by an employee to exhaust the internal disciplinary process d oes not prevent t h e J15 of 16 employee from commencing legal proceedings so long as it is done within 90 days of the decision. 9.10. We further note that the Supreme Court did not comment on the use of the word "shall" and the mandatory nature of section 85 (3) . We have indicated that in the cited case, the section was not in contention but the question addressed by the Supreme Court was the same and the Court revealed its mind on the question in quite clear and unmistakable terms as fallows; "In other words, a cause of action is not necessarily lost by reason merely of the fact that internal administrative disciplinary proceedings were not concluded or acceded to. In our estimation, failure or refusal to follow or to subject oneself to disciplinary procedures can only go either to strengthening or to weakening the employee's complaint against the employer". 9. 11. In casu, the Respondent did not fall foul of section 85 ( 3) ILRA but in any event, the Supreme Courts guidance on the main question is clear that a cause of action is not necessarily lost by reason merely of the fact that internal J16 of 16 administrative disciplinary proceedings were not concluded or acceded. 9. 12. We are bound by stare decisis and this appeal is therefore dismissed in line with the reasoning in the Concrete Pipes Case supra and this matter having been brou ght under the ILRA, we order that each party bears its own costs as none of the parties have acted in such a manner as to be condemned in costs in line with the Act. M. M. KONDOLO, SC COURT OF APPEAL JUDGE F. M. CHISHIMBA COURT OF APPEAL JUDGE