Colgate Palmolive Zambia Inc v Chuka and Ors (Appeal 181 of 2005) [2007] ZMSC 152 (4 December 2007)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA APPEAL NO. 181/2005 SCZ/8/269/2005 (Civil Jurisdiction) BETWEEN: COLGATE PALMOLIVE (ZAMBIA) INC APPELLANT AND ABLE SHEMU CHUKA AND 110 OTHERS RESPONDENTS Coram: Lewanika DC J, Mumba JS, and Kabalata, AJS On 7th March 2006, 6th June 2006 and 4th December, 2007 For the Appellants: H. Chileshe, Lloyd Jones and Collins For the Respondents: T. Shamakamba, of Shamakamba and Company JUDGMENT Kabalata, AJS, delivered the judgment of the court (1) Rosemary Ngolima and 10 others vs. Zambia Consolidated Copper Mines (Mufulira Division)Appeal No. 97/2000 (2) Printing and Numerical Registering Company vs. Simpson(1875)) LR19 EQ462 (3) Nkhata and four others vs. The Attorney-General (1966) ZR This is an appeal against the judgment of the High Court dated 5th October, 2005, in which the court found that the Appellants were employed as permanent employees and not as casuals. Furthermore, the court found that the Appellants were entitled to payment of the shortfall on their salary, redundancy benefits, repatriation expenses, transport allowance and housing allowance. In this judgment, we shall continue to refer to the Respondents as the Plaintiffs and the Appellants as the Defendants as this is what they were in the court below. The evidence in support of the Plaintiffs’ case was that PW1 Abel Shemu Cheuka Chewe, now unemployed, told the court that he was engaged on 27th September, 1997 and that he and his co- Plaintiffs were employed as casuals and were being paid fortnightly. After three months, the Defendant informed them that they would be paid at the end of every month. They worked for many years without being informed their employment status, whether they were permanent employees. On 9th January, 2001 after their industrial break, they were told by the production manager, Kennedy Kasitu that their employment had been terminated as they were casuals. They were not given notice of termination. The 1st Plaintiff further stated that following the termination, they went to report to the labour office. Acting on the report, a meeting was convened between the labour office and management representatives where the labour officer told the management representatives that they were at fault to keep employees for so many years as casuals and directed the Defendants to pay the plaintiffs. The Defendants then paid the Plaintiffs redundancy benefits that included one’s months notice and payment in lieu of leave days. The 1st Plaintiff further stated that the Defendant refused to pay them housing allowance and transport allowance on the ground that they were employed as casuals. It was then that they decided to institute court proceedings claiming for housing and transport allowances with effect from their respective dates of engagement. The 1st Plaintiff further stated that at the time they were employed they were not given any forms. The forms were introduced after they had served for years. He also stated that as casuals they were not qualified to be members of the Union. Finally, 1st Plaintiff stated that they wanted the court to declare that since they worked for over six (6) months they were permanent employees of the Defendant and that they should be paid the salary of such employees six (6) months, from the date of engagement and the other reliefs in their statement of claim. Under cross-examination the 1st Plaintiff sated that he applied for employment as a casual. He was not paying anything to the Union. He was one of the representatives at the meeting that was held at the labour office on 15th January, 2002. Under re-examination the 1st Plaintiff stated that their employment was terminated without notice but they were paid in lieu of notice. However, they wanted the Company to pay them in accordance with the collective agreement because by failing to engage them on permanent basis the Company denied them the opportunity to join the Union thereby denying them the chance to enjoy the Union benefits. This is the evidence on which the Plaintiffs’ case rested. In rebuttal, the Defendant called two (2) witnesses. DWft Comal Gavin Butcher, the General Manager stated that he was familiar with the facts of the case and that they used to employ the Plaintiffs as casuals. After laying them off, the Plaintiffs went to complain to the labour officer who called them to a meeting. The out come of that meeting was that they were directed to pay the Plaintiffs terminal benefits of two (2) months pay for every year served and one (1) month pay in lieu of notice and accrued leave days. They complied with the directive and payments were made to the Plaintiffs around February, 2002 a few days after the meeting. DW1 further stated that the Plaintiffs were not Unionised as they were casuals. Since the Plaintiffs were employed as casuals, the computation of their payments was based on hourly wages. According to DW1, they had paid the Plaintiffs all emoluments and allowances applicable to them. DW2 Kedman Maumba, the Defendant’s Plant Manager stated that the decision to lay off the Plaintiffs was made by management of whom he was part. He further stated that when there was production demand people would be picked from the gate to supplement the permanent labour force. Initially, they were being paid on daily and basis after they complained, the method of payment was changed to weekly and later to monthly basis. As far as management and Defendant was concerned, the Plaintiffs remained casuals. Under cross-examination, DW2 stated that the Plaintiffs were not members of the Union. At the end of the trial, the lower court found that the Plaintiffs became permanent employees after serving for six (6) by operation of the law, and as such all the Plaintiffs were at the time of termination permanent employees of the Defendant. The lower court also found in favour of the Plaintiffs in respect of 3rd, 4th, 5th, 6th and 7th claims; hence this appeal before us. The Plaintiff filed four (4) grounds of appeal and these were:- 1, The Learned Trial Judge in the court below erred in fact and in law when he held found and declared that the nature of the individual contracts of employment between the Appellant and each of the Respondents was one for permanent employment. 2. The Learned Trial Judge in the court below erred in fact and in law when he unilaterally introduced into the relative contracts of employment between the Appellant and the Respondents new terms and condition to replace those freely negotiated bargained and agreed between the Appellant and the Respondents as well as those imposed by the Statute Law. 3. The Learned trial Judge in the court below erred in law when he found that the law under the provisions of Employment Act provides for repatriation of employees upon termination of employment, the Appellant was obliged to pay each of the respondents 4 months salary. 4. The Learned trial Judge in the court below erred in fact and in law when he found that the Respondents were each entitled to housing allowance at the rate of 25% of the basic salary. It is common cause that the Respondents were not parties to the Collective Agreement Both Counsel filed in written heads of arguments which were augmented with oral submissions. The gist of Mr. Chileshes’ arguments, on behalf of the Defendants, was that the lower court misdirected itself in finding that there existed a permanent contract between the parties. According to him. it was not the intention of the parties to enter into a permanent contract and that this court should uphold the essence of free bargaining entered into between the parties. Further, Mr. Chileshe submits that the lower court erred in unilaterally introducing different conditions in the contract other than those agreed between the parties, namely that the Respondents were entitled to emoluments under the collective agreement as this is in variance with the law and evidence adduced at the trial. Mr. Chileshe further submits that the findings of the lower court is perverse as to entitle this court to interfere with the lower courts’ judgment. He therefore urged this court to find in favour of the Appellant and reverse the judgment of the lower court. Mr. Shimakamba, on behalf of the Plaintiffs, informed the Court that he adopts and entirely relies on the heads of arguments filed into court on 7th March, 2006. The nub of the Plaintiffs’ written arguments is that the Plaintiffs were permanent employees of the Defendant and became such after serving for 6 months by operation of the law. Furthermore, Mr. Shamakamba, the Plaintiffs learned counsel submits that Section 3(1) of the Industrial and Labour Relations Act Cap 269, defines casual employee as “an employee specifically engaged on a temporary basis work of an intermittent or seasonal nature.” According to him, the Plaintiffs were not employed on a temporary basis nor was there any evidence to suggest that their work was of seasonal or intermittent nature. Therefore, the learned trial judge was on firm ground when he held that the Plaintiffs were permanent employees. With regards to the Plaintiffs’ claim for payment of the shortfall on the salary 6 months after the engagement as that of permanent employees.. Mr. Shamakamba argues that since the Plaintiffs were permanent employees, by implication of the law, they became entitled to the salaries which were applicable to the permanent employees and the same were therefore payable. Further more, Mr. Shamakamba argues that although the Plaintiffs were not members of the Union, that fact does not disentitle the Plaintiffs from claiming under the collective agreement since there was a collective agreement in the Defendants undertaking. Mr. Shamakamba further submits that the issue of repatriation allowance, transport allowance, and housing allowance were applicable to the Plaintiffs by virtue of the collective agreement since by implication of the law, the Plaintiffs were permanent employees to whom the said agreement applied. Mr. Shamakamba therefore prays that this Appeal be dismissed with costs to the Plaintiffs. We have carefully considered the evidence on record and the submissions by both learned counsel to whom we are grateful for their spirited arguments. In analyzing the evidence, we have come to the conclusion that the critical issue to be considered by the lower court was whether the Plaintiffs were casual workers or not and further still, whether they were unionized employees and therefore entitled to benefits enjoyed by unionized employees. In our view, and the evidence given before the lower court clearly shows this, that the Respondents were casual workers and were not unionized and could therefore, not benefit from conditions of service enjoyed by employees whose contracts are governed by the collective agreement. We do not in fact understand how the lower court came to its conclusion that the Plaintiffs became employees after serving for six (6) months by operation of law as such finding flies in the teeth of the Plaintiffs own evidence which shows that the Plaintiffs were employed as casuals and they were being paid fortnightly and later monthly. This finding by the lower court is certainly not supported by the evidence on record. There is no evidence whatsoever which suggests that the parties intended to enter into a permanent contract. On the contrary, there is evidence on record showing that the Plaintiffs freely entered into a contract for casual employment with the Defendant and this is indeed in consonant with the essence of contract. In Rosemary Ngolima and 10 others vs. Zambia Consolidated Copper Mines (Mufulira Division)1, we held that: “It is trite law that in any employer/employee relationship the parties are bound by whatever terms and conditions they set out for themselves” The case involving the plaintiffs is therefore no exception to the rule. Further still, in Printing and Numerical registering Company vs. Simpson2, Sir George Jessel observed as follows: “If there is one thing more than another which public policy requires it is that men of full age and competent understanding shall have the utmost liberty in contracting and that their contract when entered into freely and voluntarily shall be enforced by courts of justice. ” We wish therefore to state that the above decision is on all favours with the circumstances in this case. Having said that, we entirely agree with the argument by the learned Counsel for the Defendant that the learned trial court erred in unilaterally introducing different conditions in the contracts other than those agreed between the parties, namely that the Plaintiffs were entitled to emoluments under the collective agreement. This is in variance with the law and evidence adduced at the trial. Since the plaintiffs were not unionized, benefits such as housing allowance are not, applicable to them because they were not parties to the Collective Agreement. In our considered view, the findings by the lower court are unsupported by the evidence on record as to entitle this court to interfere with the lower courts’ judgment in accordance with our decision in Nkhata and four others vs. the Attorney-General3 We therefore allow this appeal and reverse the judgment of the lower court with costs to the Defendants. D. M. Lewanika DEPUTY CHIEF JUSTICE F. N. M Mumba SUPREME COURT JUDGE ACTING SUPREME COURT JUDGE 9