Tembo v First Quantum Minerals Limited-Mining Division (Appeal 124 of 2015) [2018] ZMSC 33 (18 May 2018)

J 1 • IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) APPEAL N0.124/2015 SCZ/8/94/2015 BETWEEN: AUGUSTINE TEMBO APPELLANT AND RESPONDENT CORAM: Hamaundu, Kabuka and Mutuna, JJS On gth May, 2018 and 18th May, 2018 For the Appellant : Mr K. Nchito, Messrs Kapungwe Nchito , Legal Practitioners For the Respondents: Messrs Charles Siamutwa Legal Practitioners (Not Present) JUDGMENT Hamaundu, JS delivered the Judgment of the court. Case referred to: Zambia Consolidated Copper Mines Limited v Elvis Katyamba & Ors (2006) ZR 1 Legislation referred to: The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia, Section 85(3) J2. · Th~e ap~pellant appeals against th·e refusal by the Industrial Relat·ons Court of his application to file a complaint out of time. The ev~ents. that h .ave brought the ap·pellant befor~e this ·court are these: The respond~ent dis.missed the appellant from ·ernplo;yrnent on 5th June,, 2 ~014. The appellant ,ap~pealed against his dismissal throug·h the respondent's a~dlllinistrative channels. His app·eal was dismissed o:n 30th Jun~e, 20 1·4. That being the last administrative av~enue available to the .appellant, he had ·ninety days, from 3Qth Jun·e, 2014, in which he ~could file .a complaint in the Ind.ustrial Relations C ~o~urt. In this case, the per1o~d was to expir~e o~n or about 30th September, 2014. The appellant, however, filed SUlllmon.s on. 27th November, 2014, in wh"ch he sought leave to file 'his complaint out of time. The c~ourt refused to .grant him leave· to file the co~mplaint on the ground. that he had filed his su.mmons after the period ~during which h~e s,hould have filed his ~co~mplaint had ~expired. For the position th,at it took,. the co~urt relied ~o·n ~o~ur de·cision in the ·case of Za·m ,bia Consolldated Co~ppe:r M.ines L:im.ited v Elvis Katyarnb~a & ~ors1 11. The court's reasoning was that it was, not p·ossible to extend a perio~d of time that ha~d alrea·dy expired. The appellant appealed to this court on the following two grounds: I J 3 (i) ·That the court below erred in law when it refused to grant th.e: appellant leave to~ file his complaint out of' tim~e: and, (~ .. ) Th.at the co·u:rt below erred in law w·he:n it fo,und that the p.ro~viso which give.s pow~er t~o ·extend ti.me with'in whi~ch to file a c~omp~lai.nt wo·uld only be relie·d upo~ n before: th.e e·xpirat·on of the mandatory n.inety days. We think that the sec~ond .ground. ·of ap~peal ts the on~e that goes to~ the r·o·ot of the 1ssue that th.e ruling of the co~u.rt below raised, n .amely; is it th~e co·rrect p ~osition that an application to~ file a complaint out o~f titn·e can only be considered if it is m .ade before th.e mand.atory perio~ d for filing the com.plaint has, exp~ired? That in o~ur view is what we are called up·on to res.olve in this appeal. In his arguiTients. on b~ehalf of the appellant, le arn~ed cou·nsel, Mr ·chito., app~e,are·d to ,agree with the· low~er court'.s un.derstan~ding of o·ur ·decision in the Elv".s Katya:mba case. However, he went on to argue that the facts in this c.ase can be distin,guis.hed from those in the ·Elvis Ka·tyalllba case, particularly, in that 1n the 'Elvis Katyam.ba c.ase the former employees had faile ~d to ,giv~e r~e ,asons ·hy they had failed to file their complrunts 1n time; while the app~ellant in this case had ,g,iven the reason th.at he had been involved in a. road traffic accid~ent. Mr Nch1to also argued that, in 1ts current amen~ded J4 ' fo,rm, the proviso to~ Sectio.n 8 .5·(3) of the :Industria. and Labour R .. at·i,ons Act, Ch.apter 26'9 of the L.aws of Zantbia caters for applicants who are g·enuinely unable to file their ~complaints within ninety days. b·y its. advocates,. the res.po~ndent supported the lower court's interp~retation ~of the d·ecision in the Elvis. Katya. ID,ba case an~d argue·d th.at the point for consid~eration was not whether o·r not the ap~pellant had ,given reasons for hts failure to file h"s complaint ·out of tim.e but whethe:r he had fil~ed his appl~cation for extension of tim~e b·efore th~e mandatory perio~d h .ad ~ex.pired. We hav~e considered the arguments by both sides. We th1nk that the court b~elow misunderstood what we said in t I ·e E vis Katy·a · ba ~c·· ase . We~· wtll no.• w exp-lain the. -. -:·,~ t· e -, - t- 1 ,- which ~ ~u. o ~ ~ con _ x ~n . ·-- . .. . . ~ ~ ~ ' · statem-- - t ~ .. · - t.h -t- ~ _ _ _ _en s n . __ a cas·e ·were made. T.he c.ase· was de~cided b~efore Sectio:n 85(3) of the In ~dustrial and :La'b·ou:r R.elat·ons Act was amended. In its previous f<)rm Section 85(3)~ read as, follo·ws: "(3)1 The court shall n~ot ~cons:ider a co~.mplaint or applicatio·n unless. it is prese:nted to it within • • thi'rty days ·of the oc·currence of the event which ga·ve J s ri.se t.o the: com.plaint or a.pplication.: P.rovided that, u.p·OD ap~plica.tio:n. by the: com.plainant or app icant,, the court m .ay extend the thirty-day period for a furt ; er period ~of thre:e m .onths after the date on ·which the c:omplain.a.nt or applicant has ·exhausted the ad · inistrati.ve ·cha.nne s avalla.ble to· that person.'' That is the pr~ovis1on that was prevailing whe·n we heard the Elvis Katya~n.ba case .. In that case, th·e · espondents were a group of former employees. o·f th~e Zatnbia Consolidated Copper Mines Limited wh~ose services wer·e terminated ·either on medical ,g,ro~unds or by way of redun~dancy. Som~e employees had had their em.ployment terminated in 1998. while the .1atest group· ha·d had their services terminated in F·eb~ruary, 19·9 '9. If we use the last g·roup· as. an example, their ~complaint s.hould h ,ave been filed, at the very latest, in March to lodge· their ~complaints o~n 22nd . July,, 19199; that is Inore than thr,ee months aft er the· mandatory period ha·d expire·d. Wh.at the respo.nd~ents had .argued during th~e in ·tial application in the Indus.trial Relations Court was that they h .ad taken steps, to have their disp~ute with the Zambia Consol~ ~dated Copper Mines Lim.ite·d J 6 • · settled am.i~cably; and that, in their view,, by thos·e initiatives, th~ey should have been s .aid to have b~een p·ursuing adlllinistrative channels. The argum~ent that was a~dvance~d on beh,alf of the Zambia Consolidate·d C·opp~er Mines imit~ed was th.at, even if it wer~e to be ,a~cce·pted that th~e initiatives, which the respondents had taken ·we·re in p~ursuance of the exhausti~on of administrat ive channels, the respon.d.ents had commenced thos~e initiatives well after the: mandatory p~erio~~d of thirty days had expire ~d. This is what w~e said: "In terms, O'f the law qu.oted abo~ve, 1t is m.andato~ry fo~ r, the lRC not to ente:rtain a, comp, aint or ,a,pplicatio~ n 'U:nless su~ch ·complaint or applicat,·on •,s brought b~efore it within thirty days from the date o~ f the event that gav~e rise to the complaint o.r applic:ation. This . ~ eans th.at a :p~arty wanting hi.s o:r, her complaint or app~lication determined by the I , C must file his or he:·r complaint with the cou.rt within thirty days of the occurrence o~fthe event W'hich gave rise to the co --- pla· · tor application, In ·view o~f the m.andato~ry nature ·Of the law in Subse~ction 3 O·f Section 85 of the Act, th.e p~roviso :is, from o~ur p~o1nt of view, se ~e · as a. mean.s, of facilitatln,g sett' ement O'Utsid~e co~urt. This, me.a.ns that if the com.plaina,'nt or appli~c:a t can. show to the ~court th.at durin.g the mandatory period of thirty d,ays, he or she bad e·ngaged in the~ p,roce:ss of app~e:al ~or negotiations for J7 ,, a better retirement or retrench.ment pa~ckage, the application for an e·.xtension of tim·e within w.h.ich to~ lodge the complalnt or application c:an. be said to be h. k : -.amutang1 su mttte ·, we t -,n -~ merttortous ... ·. s ' r A M. Ch .• . d. b • . . th.at an a.p·peal o·.r ,neg·otiations for a better package mad·e within th·e m .andatory perio~ d has th.e potential of suspendi.ng the mandatory thirty days so that sh.ould th·e co·urt agree with the complainant ·or a,pplicant,. the extension for a further period of three m ·onths. is, b·y law,, supposed to b·e fro·m the ·d;ate the administrative chann.els h.av~e been exb.au.sted" (u nderlin ing ours fo·r emphasis) Th·e· underlined part of this passa,ge is very important because what we said subsequently sho~uld be understand from the context of th ,at part of the p assage. We t hen said the follo·wing: "From our reasoning it can be de ~duced that even th·ough a~dm.inistr.ative ch.annels. ar·e, not defined by la.w there are insta.nces where a complaina:nt or applicant finds it ·necessary to engage an.d exhaust th.e proces.s o·f .app ~eal .a.vailable to him o~r her in the orga.nization.. There are instanc·es also ·wh·ere a complainant or a.pplicant may engage i.n further negot•ations where she or he i.s entirely dissatis.fie,d w·th a package ~offered to him or her by the em·plo~yer eith.er by· way of .redundancy, retirement or mere te·rminati·on. It m ·ust be .noted that if the negotiations for a. b~etter package or an a.pp~eal to· a ,. higher body for redress cannot be commenced JB within the mandatory thirty days, it is not possible for the c~ourt to extend the tim~e th.at has already exp ·red as pe·r our reasoning in t · e case of University of Za mbia Council v Calder. Th.is is exactly w:hat ·ha.ppened in the present appeal where the: respondents made ·claims with the appellant well after the mandatory period h.ad expired. It would appear to us that the attempts made by the respondents o~utsid~e the :man:da.tory period of 30 days were intended to eire · mvent t · e law.'' We must point out that the ap·plication that we were dealing with in that appe al was filed more than three months after the mandatory p ·eriod of thirty days had expired, as we have observed earlier. Yet that is not th·e reason why we said that the respondents in that case could not file their complaint out of time. The reason we gave was that they did not pursue administrative channels before the mandatory thirty-day perio·d had expired. ~our r·easoning there was obvious and clear: had the respondents enga.ged in administrative chann els be·fore the· thirty-day period had expired, th.at w·ould have had the effect of suspending the mand.atory period; and we would have allowed them. to file their complaint. But, because they did not pursue administrative channels within the mandatory pertod, there J9 was. nothing, that stop~ped th~e p~eriod from running, until it exp~tred; and, ·once that p . rio~d had expired, the co~urt could n~ot extend it .. That was. the meaning of our JU~dgment in that case .. Clearly, w ~ ~did not say that an applicatio~n to ftle a compla1nt out ·of time should b·e lodged befo·r~e the m.andato.ry period. e·.xpir~es. Th·erefor~e, the court below fell in error in its understandin.g of a·ur judgment in th·e Elvis. at·yamba rC.as~e. Now what is the position of the .app·ellant in this case? We must point out tha in the form that the law was when we dealt with the E v~s aty.a. -- ba ~case, the proviso to Section 85(3·) was meant to cater solely for etnploye ~es who had pursued administrative channels pr·ovides .as follows: "85(3) Th·e c·ou t s.·h.all not consider a complaint o·r an application unles:S the c·omplainant o·r a.p·plicant p · ~ese ts the complaint or appl· ~cat·o·n to the cou t (a) Within ni ~- ety days. ·of e··. ha.ustin.g the adm.in·strative cha.nn·els available to the complainant or appli.c:ant; or,. (b)· Where 'there are n.o a~dmi.nistrativ~e channels available to the com.plainant or a:pplicant,. wit:hin ni ety ~days of the o·ccu ·renee of the eve:nt ·which gav·e rise to t.he ~complaint or ap li.cat··on:: • Provided that - J 10 (i) Upon application by the applicant, the co rt may extend the pe:rio .· in whic the complaint or applicati.on may be pr·esented before it." Ther~e is a signific.ant change in the law in. th,at the pursuance of redress through admin1strative channels is no lon,ger the subje:ct of the prov·iso. Now, even if it tak~es years to· exhaust the administrative channels available, the mandatory period ~only beg1ns to· run when the last of the channels has been exhausted. The section, however, has still retained the proviso. This time, the grounds upon which a ~complrunant m.ay apply for ex ~ ension of time under the proviso ar·e not stated. We think, though, that the· section now ackn·o~wle~dg·es that a complainant,, be it one who has no administrative channels to exhaust or one who has exhaust ed such channels, may for s·om.e re·ason fail to file their comp aint within the mandatory period. Hence, the p:roviso caters for such a complainant; and allows them to apply for extension of time, giving the reasons that prevented them from f~l ng the·r complaint within the :mandatory period .. In that event what we said in the Elvis Katyam.ba. case 1s still .applicable. So that, if the complainant g1ves. reasons that are J 11 · ·· satisfactory to the court and it :·s e.stablished that thos.e re~asons oc~c _ rred before the mandatory per1od had ·expired, that w1ll have the effect of su.spending the mandatory period; an~d if the comp~lruna -- t does not unduly d ·elay to~ j ' e his application from the tim·e that those r·easons ceas·ed to~ prevent him. from ~doing so then .hi - - _ _ _ s ap _ __ _ _ .- -~pll~C- a--·tio. n will b-e _ _ _ _ _ ·merit -~riou. - But. 1··f · it 1·,- s o _ s. _ _ _ ~es.tablished that the rea.so~ns given, g·ood .as they may so~und, o·nly .arose after the :mand.atory p·eriod had ·expired, th~en again, as we said in the Elvis Katya.ntba case, the court cannot e·xte:nd the mandato~ry perio·d wh1ch has expired .. I . th-i -. c.ase be ~cause ·O·fthe a.- - ·-·ro·ach that it to·~ok . the c~ourt n _ _ s _ _ _ _ _ ,, _ _ pp _ _ __ _ _ , for his failur·e to~ file his complaint within th~e mandatory pe·riod. Oth~erwis·e, in his affid,avit in support of the application,. the appellant h .a.d averre·d that on 7 th SepteiTib·er, 20,14, h1s own motor veh1cle,. in which at th mat~erial time h ·e was a pass.~enger, was invo~lved in a r·oa·d tr.affic accident; that he sustained ·njuries while an·other p.assenger· in the satne tnotor vehicle died; that, being the owner of the motor vehicle, he became inv~olv·ed in the polic~e proc·ess. that ensued;. and, th.at he .also· be·came J 12 • • involv·ed in the funeral arrangeme11.t for the decease d. All th · s . , according to the app·ellant, contributed , o· his failur e to file hi complaint within the mandatory p riod. We have looked at the foregoing · easons. ri'hey appear to be genuine. Since the accident o·ccurred before the mandatory period had expired, we think that the r asons s auld have had the effect of suspen~ding the mandat~ry p riod. · ur h r, the appellant appears. not to have unduly delayed in making this application from the time of the acc1d nt. It is our view that the appellant should have been granted an ext nsion of tim to fil his complaint .. Therefore, we find merit in this appeal. We gr ant the appellant thirty days from the dat e h reof for him to file his complaint in the Industria ; Relation Court. Th · parties shall bear th ir own c·osts. I .. I i.. "'•-• '• __ .... ~ , ,~" .... ,._ .... j ,, . ( I ~ .... I , .. E·. M. Hamaundu SUPREME COURT JUDGE .._ "'/ /. • I • 11 _ • ~ e • • . . . . ~ . . .. ·• ' _. . . . - ,( I I ~ •I 11 .. I 4 I li '9 I I ' .. I I •I • I • 'I I ! f ... ll iii j ~ ... I I • . . ill f f f i 'I " • I I I I I I I I I I I I I I I ' - . -- I • '!!' • I I ' . , 9 'I I I' tt· I .. 9 • I ' I I I I I 'I I • • "' I 'I ' • I .. 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