Concrete Pipes and Products Ltd v Kabimba and Anor (SCZ 8 146 of 2014) [2017] ZMSC 222 (10 August 2017)

JI IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE/NDOLA SCZ/8/146/2014 Appeal No. 014/2015 (Civil Jurisdiction) BETWEEN: CONCRETE PIPES AND PRODUCTS LIMITED APPELLANT AND KINGSLEY KABIMBA CHRISTOPHER SIMUKOKO 1st RESPONDENT 2nd RESPONDENT Coram: Mambilima, CJ, Malila and Kaoma, JJS on 1st August, 2017 and 10th August, 2017 For the Appellant: Mr. V. K. Mwewa of Messrs V. K. Mwewa & Co. For the Respondents: Mr. K. Muzenga, Deputy Director, Legal Aid Board JUDGMENT Malila, JS, delivered the Judgment of the Court Cases referred to: 1. 2. 3. Nyampala Safaris (Z) Ltd. and Others v. Zambia Wildlife Authority and Others (2004) ZR 49. Shoprite Holding and Another v. Lewis Chisanga Mosho and Another (SCZ Judgment No. 40 of 2014). Nevers Sekwila Mumba v. Muhabi Lungu (Selected Judgment No. 55 of2014). J2 This is a fairly short appeal. It was prompted by a ruling of the Industrial Relations Court given on the 16th April, 2014 whereby the court deferred consideration of a preliminary issue raised by the appellant [as defendant] in the main action. The background facts are indubious. The two respondents were employees of the appellant. The first respondent served as Sales Assistant while the second was a Production Foreman. They both served under permanent and pensionable terms. The events that gave rise to the present dispute were in earnest set in train on the 14th April, 2011 when the appellant company suffered, or discovered that it had suffered, a theft of some concrete pipes. The two respondents, together with other employees, were implicated and handed over to the police for investigation. They were subsequently charged with the offence of theft and arraigned in a subordinate court. The respondents allege that the appellant, through its General Manager, verbally suspended them from employment pending determination of the criminal prosecution that had been instituted against them. The respondents were subsequently acquitted in April 2013 on the charges of theft. They then caused to be written, by J3 their legal representatives, a letter to the appellant company demanding payment of their salary arrears for the period they had been on suspension. The appellant's reaction to that demand was that the matter was not yet at an end as it had been referred to the High Court by way of a case stated under section 341 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia, and that the respondent's claim would only be addressed after the High Court had made a decision on the reference. When the matter went for hearing on a case stated before a High Court judge on 22nd August 2013, the State withdrew the matter from court. Following the withdrawal of the matter, the respondent's lawyers once again wrote to the appellant informing it of the outcome of the High Court reference. The appellant replied to this notification through their advocates in a privileged communication. The bottom line of the respondent's claim was that since their suspension from employment in April 2011 they had been off the payroll. To add salt to injury, the second respondent was written to by the appellant on 11th October 2017 directing him to vacate company accommodation within 30 days. J4 It is on the basis of these facts that the respondents were convinced that they had been dismissed from employment. They lodged a complaint in the Industrial Relations Court on 25th October 2013, seeking a declaration that they had been constructively dismissed; damages and other attendant relief. The appellant opposed the complaint in the lower court, and in answer thereto, claimed that the respondent had never been verbally suspended as alleged as no such procedure existed in the appellant's disciplinary code; that the respondents stopped reporting for work on their own volition and only resurfaced in April 2013, demanding payment of salary arrears; that the respondents were informed of intended disciplinary proceedings against them but that they took what appears to the appellant to be a preemptive move by commencing court proceedings in the lower court against the appellant instead. The Industrial Relations Court scheduled the commencement of the hearing of the complaint on the 20th March 2014. Prior to the hearing the learned counsel for the respondent rose on a preliminary issue, namely whether the J5 complainants [respondents], who had not exhausted internal administrative procedures were properly before the court. He contended that disciplinary action against the respondents had been intimated, and rather than wait for such process to take effect and run its course, the two respondents rushed to court to short circuit the process. Counsel for the respondents argued that the actions of the appellant had shown quite candidly that the respondents had already been constructively dismissed; and therefore that there was no wisdom in waiting for that internal administrative process to be exhausted. Ruling on the preliminary issue, the Industrial Relations Court held that the question raised in the preliminary issue was part of the broader questions to be addressed in the main action and, therefore, that those issues could be raised in the main complaint. On that basis, the preliminary point was dismissed. Unhappy with that ruling, the appellants launched the present appeal on a lone ground structured as follows: J6 The Honourable court erred in law and fact when it dismissed the appellant's preliminary issue as being premature. Written heads of argument were filed on behalf of the appellant and the respondents on 3rd February, 2015 and 25th July 2017 respectively. At the hearing of the appeal both Mr. Mwewa, learned counsel for the appellant, and Mr. Muzenga, learned counsel for the respondents, intimated that they would place full reliance on those heads of argument. In its heads of argument, the appellant's only contention is that, to the extent that the respondents did not subject themselves to the internal administrative disciplinary process before commencing their action in the Industrial Relations Court, they did not have any cause of action. The lower court was accordingly wrong to have declined to uphold the preliminary issue. The respondents, for their part, maintain that there was constructive dismissal on the facts of the case and that such dismissal does not present an ordinary cause of action in employment related matters in which the ordinary steps of the internal disciplinary procedure must be followed. J7 We have carefully considered the grievance of the appellant in this appeal as well as the reaction of the respondents. We have also taken into account the attitude of the lower court. The short question for determination is whether it is right for a court faced with a preliminary issue to defer consideration of such preliminary issue to the main action. An ancillary question is whether it is a requirement in all cases that an aggrieved employee should exhaust internal administrative procedures before seeking judicial intervention. The appellant is of the position that the fact that internal disciplinary procedures were not exhausted 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. The critical part of the lower court's ruling on the issue reads as follows: J8 Our view of the parties positions is that the issues contended in the preliminary matter is very much passed of the issues to be established and resolved at the hearing of the cause. In the event that it is established on the evidence that the complainant's contract of employment had been terminated constructively in the manner contended by Mr. Muzenga, it will be clear that the disciplinary process would have been unnecessary. So on the contrary the respondent establishes its defence that the complainants were still in employment and to be subject to the disciplinary process, the complainant's claim will not be forthcoming. With the foregoing in mind it is our view that Mr. Mwewa's preliminary issue is premature and not sustainable and the same is dismissed. Our understanding of this holding is that what the lower court did in this case is not to decline to hear the preliminary issue raised by the appellant - rather it decided that as the preliminary issue was so integrally linked with the main question for determination in the complaint that issue could properly be raised in the main cause. 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 J9 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 metted out against him by the employer. In this sense adherence to 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 internal administrative disciplinary proceedings may react upon 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 complaint J10 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 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. 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. Turning to the critical question whether or not a court before which a preliminary issue is raised may defer consideration of such issue, we must state at once that courts do indeed have discretion to do so. A court generally has power within the broad provisions of the law to conduct proceedings before it in any manner possible designed to attain the critical objective of delivering justice between the parties. In as far as procedural justice is concerned, the court retains considerable discretion in directing how a trial or an appeal is to be Jll conducted within the confines of the rules of court. This extends to considering the point at which a preliminary issue which does not go to the jurisdiction of the court, should be determined. In many cases that have come before this court and where preliminary issues have been raised, we have deferred our ruling on such preliminary issues until after the main action was heard. This is the procedure that was followed in Nyampala Safaris (Z) Ltd. and Others v. Zambia Wildlife Authority and Others1; in Shoprite Holding and Another v. Lewis Chisanga Mosho and Another2; and in Nevers Sekwila Mumba v. Muhabi Lungu3. In all these cases, preliminary issues were raised but their determination was deferred to the main matter. In the present case, the preliminary issue was raised by the appellant at the commencement of the hearing. Although the court indicated in the passage that we quoted from its ruling that the preliminary issue was dismissed, the context of that ruling is that the appellant was advised to make that preliminary issue part of its defence. We do not think that the court did anything in the nature of a misdirection to warrant J12 our overruling that decision. Had the court declined to ever hear the preliminary issue in any form at a later stage or at all, the situation before us would no doubt have been different. It is clear from what we have stated, therefore, that the appeal is without merit and is bound to fail. We dismiss it accordingly. Costs shall abide the outcome of the main matter in the lower court. I. C. MAMBILIMA CHIEF JUSTICE SUPREME COURT JUDGE R. M. C. KAOMA SUPREME COURT JUDGE