Bank of Zambia v Nyambe (SCZ Appeal 59 of 1997) [2000] ZMSC 157 (13 July 2000)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 59/97 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: BANK OF ZAMBIA APPELLANT AND PRISCA NYAMBE RESPONDENT CORAM: Chaila, Chirwa and Lewanika, J J S on 11lh June 1998 and 13th July 2000. For the Appellant: Mr. J. Chashi, Muponda Chashi & Co. For the Respondent: Mr. E. J. Shamwana, S. C. Shamwana & Co. JUDGMENT Chirwa, J. S. delivered the judgment of the Court: The delay in delivering this judgment is deeply regretted, we hope our internal mishaps will not happen again in other cases to inconvenience litigants. The brief facts of the case are that the respondent, who was the plaintiff in the court below, was employed by the appellant bank, Bank of Zambia as Legal Counsel and rose to the position of Senior Director, Legal Services and was head of Legal department. Sometime in 1991-92 there was re-organization and restructuring at the bank and in this process some positions were merged or abolished. The respondents’ position was abolished and was made as assistant director and came under the Bank Secretary’s department. The respondent felt that she had been demoted although her pay and other benefits remained and she did not feel comfortable to work under the Bank Secretary as their working relationship was not good. With this feeling of demotion and uneasiness to work under the Bank Secretary the respondent opted for redundancy package provided for under the restructuring programme. She held discussion with the then Bank Governor Mr. J. Bussiers, during which it appears from her letters dated 9lh December 1991 at page 61 and 62 dated 27th December 1991 of the record that there was an agreement reached between her and the Governor if she withdrew her wish for redundancy package because of her demotion she would be sent for further studies and that she would be moved to another section within the bank. To this end the bank did write to the Registrar, London School of Economics and Political Science in the U. K. (See page 67 of the record) However, the bank later reneged this arrangement (see page 69 of the record). Because of this the respondent wrote the Governor of the bank on 5th May 1993 stating that: “Since the bank has not kept its promise to let me go for further studies to enable me move away from the Bank Secretary s influence, I wish now to revert to my position of wishing to proceed on the redundancy package as earlier communicated to the bank". She gave them three months required notice with effect from 11th May 1993. We should observe that there were no responses to the respondents letters to the Governor dated 9lh and 27th December 1991. Also we note that there was no response to her 5lh May 1993 letter, she sent a reminder on 18th November 1993. On 29th November 1993 she got the reply from the General Manager of the Bank in which he wrote that: - "We write to confirm that management has accepted your resignation. We consider that as a normal termination by resignation and consequently we have decided not to accept your request that we should consider you a separation under a redundancy package. This in our view would have no basis, is unjustifiable and therefore is not acceptable. ” It is from this background that the respondent brought an action against the appellant in the Industrial Relations Court complaining that she never requested to resign from the Bank therefore their purported acceptance of resignation is null and void and illegal; that the bank discriminated against her or her social status in dealing with her issue and she prayed for reinstatement in her former position; be given the redundancy package asked for and damages. In reply the appellant alleged first that the respondents complaint to the Industrial Relations Court was out of time as the alleged discrimination occurred between 1991 and 1992 and she was removed from the payroll in December 1993 and only lodged her complaint in August 1994. This first plea was rejected by the Court below. In the alternative the appellant alleged that the respondent resigned from her position by her letter dated 5th May 1993 when she gave 3 (three) months notice. That she sent a reminder dated 18th November 1993 and that the appellant by letter dated 18th November 1993 accepted her resignation. In a further alternative the th appellant alleged that the respondent absconded from her work from 10 May 1993 when her leave finished and that in accordance with Section 6.2 (b) of the Disciplinary Code the punishment for absconding from work is a discharge and the respondent is deemed to have discharged herself. Further that prior to her going on leave, she gave false information that she was proceeding on sick leave which subsequently converted to annual leave when in fact she took up gainful employment with UNIDO in breach of her condition of service. Further that at the time the respondent absconded she was facing a disciplinary charge of negligence of duty which charge she had not exculpated herself. On evidence before it, the Court below accepted the evidence of the respondent that following the restructuring at the Bank in her new post she was demoted and because of this she had a meeting with the then Governor at which she wanted to exercise her option of taking the redundancy package. The Governor felt that her leaving at that stage would incapacitate his office and then offered to send her for training abroad. It was the Court’s view that if she did not qualify for redundancy package, the governor would have told her so and in the absence of the Governor’s reaction it means that she qualified for redundancy package. Having found that the respondent was demoted, the Court further held that as she opted for a redundancy package and wrote the appellant asking for it, if she was not qualified they should have written her to that effect and that if she did not accept and did not want to work for the appellant she should have been asked to resign. The Court held therefore that it was unreasonable for the appellant to accept her resignation when she never resigned. The Court then held that this purported acceptance of the respondent when there was no such resignation as null and void and the respondent was ordered to be deemed to have opted for redundancy package and that her redundancy package be calculated at the January 1996 salary of an Assistant Director and the appellant was further ordered to pay K500,000-00 (five hundred thousand kwacha) as compensation for the stress she suffered. It is against the findings and the awards that the appellant have appealed and in arguing the appeal, ten grounds of appeal were argued. In I i'll ?]’ other complaints were not considered by the lower Court that we stated that this appeal will succeed or fail on consideration of the first ground of appeal. Having said this, can it be said that the Court misdirected itself in the way it paraphrased the first complaint and did it reach wrong conclusion? We are of the view that the lower Court did not misdirect itself in the manner it paraphrased the first complaint. The issue of the first complaint really came down to the intention and meaning to be given to the letter dated 5 May 1993. The letter gives the background of her grievances we have referred to, namely that she had been demoted through the restructuring; that after discussion with the then Governor a comprise was reached whereby the appellant agreed to sponsor her for further studies as a result of which she withdrew her intention to take up redundancy package. The bank having later reneged on its promise to sponsor her, she decided to revert to her earlier stand of taking the redundancy package. This letter of 5 May 1993 was therefore not a letter of resignation, it was an option to take redundancy package. Was she entitled to redundancy package is a subsidiary issue. There is evidence from the appellant that she was not entitled to it as she was not demoted through restructuring . But there is a finding of fact by the Court below, on which no appeal lies, that the respondent was demoted through restructuring. This finding of fact is well supported by the respondent’s letters to the Governor of the bank dated 9th December 1991 and 27th December 1991. There are no reactions from the bank. These letters show that the respondent felt demoted as a result she wanted to take a redundancy package which she was entitled to but after discussions with the Governor she gave up the idea of taking up redundancy package and accepted to go for further studies. It also seems that the Governor agreed with her that she had been demoted and that she was entitled to redundancy package because if he did not he should have reacted to the respondents letter of 27 December 1991. We therefore agree with the finding of fact that the respondent was demoted through restructuring and was entitled to redundancy package. The evidence of the appellant that the respondent was not demoted and entitled to redundancy cannot stand in view of non-reaction to the respondents’ letters of 9th and 27th December 1991. As we have already found that the respondents option to take up redundancy package we would dismiss the first ground of appeal. Grounds 2 and 3 have already been commented on that the Court had not considered these complaints but this lack of consideration is irrelevant to the appeal. On ground 4 we have, in passing dealt with this in that we have stated that the evidence of the appellant cannot stand in view of the non- reaction of the appellant to respondents assertions in her letter of 9 and 27 December 1991. On ground 5 the lower Court cannot be faulted in its finding that the respondent was entitled to redundancy package as the appellants own evidence at page 121 support it where RW1 say: “Within the restructuring there was redundancy opportunity to opt for retirement was confirmed to those who had been demoted, with them it was a matter of right ... ”. This ground of appeal cannot stand and it is dismissed. Ground 6 cannot stand as this is a finding of fact in which no appeal lies. Ground 7 cannot also stand in view of the appellants’ own evidence that for those demoted, it was a matter of right to opt for redundancy package. Grounds 8 and 9 are also dismissed in view of our finding that the respondents’ letter of 5th May 1993 was not a resignation. Ground 10 is also dismissed, there is evidence on record by the respondent that in the process of this saga she suffered a lot. She was not challenged in cross-examination. On the totality therefore we dismiss this appeal. The respondent is to be put on redundancy package as Assistant Director on May 1993 salary scale. This will carry interest at the rate of 30% from the date of complaint, i.e. 2nd August 1994 to January 1996 being the date of judgment in the Court below; thereafter at the lending rate until payment. Costs to the respondent to be agreed, in default to be taxed. M. S. CHAILA SUPREME COURT JUDGE D. K. CHIWRA SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE