David Chongo v Group 4 Secure Solutions Limited (COMP/IRCLK/275/2021) [2022] ZMHC 128 (23 May 2022)

IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DI~sro"N - -'" - HOLDEN AT LUSAKA (Civil Jurisdiction) ,,.<· / //~ ,, - - - COMP/ IRCLK/ 27 5 / 2021 - ~t\_ 2 3 MAY 2022 BETWEEN: DAVID CHONGO AND COMPLAINANT GROUP 4 SECURE SOLUTIONS LIMITED RESPONDENT CORAM: Hon. Lady Justice Dr. W. Si thole Mwenda at Lusaka this 23rd day of May, 2022. For the Complainant: I n Person For the Respondent: Messrs. 0 . Samba and J. Njobuu of J\llwenye and JV!witwa Advocates JUDGMENT Cases cited: 1. Wilson l\tlasauso Zulu v. Avondale Housing ProJeCi ( 1982) Z. R. .172 (S. C. J. 2. Care Intem.ational Zambia Limited u. Nlish eck Tembo, SC"Z Selected Judgr(Lent No. 56 of 20.18. 3. Edward Chilufya Mwansa and 194 Others v. Kon/cola Copper Mines Plc., SCZ Appeal No. 99 of 2015. 4. Zambia Consolidated Copper Jvlines v. Elvis Katyamba and Others (2006) Z. R. 1 (S. C.). 5. Concrete Pipes and Products Limited v. Kingsley Kabimba and Christopher Simukoko, SCZAppeal No. 014/ 2015. Legislation referred to: J. Sections 3, 50, 51, 54 and 127 of the Employment Code Act No. 3 of 2019. 2. The Minimum Wages and Conditions of Employment (General) Order, 2011, Statutory Instrument. No. 2 of 2011 as amended by Statutory Instrument Nos. 46 of2012 and 71 of 2018. 3. Section 85(3} of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. Published work referred to: J2 1. Mwenda, W. S. and Chanda, C. A Comprehensive Guide to Emp lo yrnent Law in Zambia (UNZA Press, 2 02 1). 1. Introduction 1. 1 The Complaina nt herein filed a Notice of Complaint with fortifying affidavit (th e Affidavit in Support) on 24 th May, 2021 , cla iming for ter n1in a l ben efi ts, lea ve days, costs and any other ben efits th e Court m ay deem fit, from th e Respondent Compan.y. 1.2 The grounds on which the Complainant a s ked t his Cou rt to order the Respondent to pay him th e a bove claims are that he was employed by the Respon den t on 6 th November, 2006 as a Security Officer on a perman ent basis and was dismissed from ·work by t h e Responden t on 3rd May, 2019. 2. Complainant's Affidavit evidence 2 . 1 In the Affidavit in Support, the Complainant deposed that he was employed by the Respondent on 6 th November, 2006 as a Security Officer. He was dismissed from work by the Respondent on 3 rd May, 2019 when he got sick and did not report for work for three days despite giving them the sick note from the hospital as per exhibit "DC 1". J3 He took the matter to the Labour Office " 'h ere the Respondent paid him K601.00 as his benefits as evidenced by exhibit "DC2". 2.2 The Complainant deposed further, that when he asked about the amount to be p a id to him, the Respondent promised that h e would p ay him la ter but has not done so to date. 2.3 That, after many a tte1npts at following th e Resp ondent, he stopped picking up the Compla in ant's ca lls. The Labour Office then advised the Complain ant to com e to this Court for assistance. 3. Respondent's Answer and Affidavit in Support 3.1 The Respondent filed its Answer on 15 th June, 2 021 , where it admitted that it employed the Complainant as a Security Officer on permanent and pensionable basis on 6th November, 2006. 3.2 The Respondent did not dispute that the Complainant was dismissed, but averred that he was dismissed on 6 th April, 2019 and not on 3 rd May, 2019 as claimed by the Complainant. Further, that the Complainant was dismissed on account of deserting his work, having been J4 absent from work for a continuous period of three days without any reasonable explanation contrary to the Respondent's Disciplinary Code. 3.3 It was asserted that the Complainant had a right to appeal against the dismissal within 14 days, which right he did not exercise, th e reby not exhausting all administrative channels. 3.4 Further, that the Compla inant h aving been a permanen t and pensionable employee in the Respondent Company, was only entitled to his wages a nd other accru ed ben efits upon dismissal, which said entitlem en ts have already been paid to him. 3.5 In the Affidavit in Support of Ans\\rer S\\ orn by Vivien Mwanza Mulala, the Huma n Resou rces Manager - South in the Respondent Company, the depon ent stated that contrary to the Complainant's averment in the Affidavit in Support of Notice of Complaint, the Complainant was dismissed from employment on 6 th April, 2019 for desertion when he absconded from work for a continuous period of 3 days without a reasonable explanation. Further, that the sick note he exhibited in the Affidavit in JS Support as "DCl", was not availed to the Respondent. The Respondent produced the letter of termination as exhibit ""VMM l ". 3.6 The deponent avowed, further, that by the letter of termination, the Complainant h ad a right to appeal against the dis1nissal within ] 4 days, which right h e did not exercise, h ence he did not exhaust a ll the administrative channels . Furth e r, that the sick note exhibited in the Affidavit in Support appears to be doctored in terms of the date to indicate the date when the Complainant started absconding from \'-. ork as it is inscribed in pen on the date stamp. 3. 7 It was claimed that the Complainant having been a permanent and pensionable employee in the Respondent, was only entitled to his wages and other accrued benefits upon dismissal and the same have been paid to him already. 4. Evidence at trial 4.1 The matter came up for trial on 1st April, 2022 . The Complainant testified on his own behalf. I will refer to h . un as "CW" . J6 4 • 2 It was CW's testi1nony that he was en1ployed as the Respondent's Security Officer on 6 t h November , 2006. After working for t\velve years and five months , h e was dismissed by the Respondent for b eing sick for three days. That, they a llowed him to \Mork for anoth er twenty six days. Before h e worked for twe nty six days, h e was paid for twelve d ays . 4. 3 CW testified that h e took the m a tte r to La bour Office where the Respondent p aid him K6 01.00 a s benefits and promised to pay him the rest on 2 3 rd May, 20 19 but did not do so. Further, that the Responden t stopped paying him for leave days for two years , that is , from 20 17 to 2019 (42 months). 4.4 According to CWl , he was engaged on 6 th November, 2006 and signed one contract on 15th November, 2006. His last salary was K 1050. 00, the basic pay being K737.00. That, he was receiving meal allowance but could not remember the exact amount; housing allowance of about K200.00. 4.5 In cross-examination, CW identified document number 1 in the Defendant's Bundle of Documents filed on 24 th J7 March, 2022 as the Contract of Employment which he signed on 6 th November, 2006. He agreed that he went through the contract and read it before he signed it. He said he had not been given any other contract to sign. 4 .6 When referred to page 2, cla use 7 of the contract, CW read the contents thereon a nd s a id it said that he was entitled to 26 working days per annum as leave. He admitted that he signed the documen t bu t that some of the contents he ,:vas seeing in court were n ot there at the time he signed the contract. He also con ceded that he did not sign any other contract which h a d a contrary prov1s1on. 4. 7 Under further cross-examination, CW agreed that he belonged to a union called the Zambia Union of Security and Allied Workers (ZUSA W). Ho~rever, he was not aware that there was a Collective Agreement between the Respondent and ZUSAW. He was, further, not aware of the terms of the agreement as he was seeing the agreement for the first time in Court. However, he was aware that the terms and conditions of the Collective Agreement applied to him as a member of the Union. J8 4 • 8 CW testified under further cross-examination tha t h e ·was unable to inform the Respondent that he was sick because he ,vas unable to do so . He conceded that t h e Respondent ,vas unawa re th at h e was sick. He also admitted that h e left employm en t with out notice and wa s aware tha t h e was d ecla red a deserter by th e company. 4 . 9 With r egard to CW's cla im for tcnninal a nd lea ve ben efit s , CW admitted tha t th ere ,vas no evid en ce before th e Court to sho\\r that h e wa s entitled to leave days. CW identified the document on p age 13 of the Respondent's Bundle of Documents as his payslip fo r Ma rch , 201 9 . He a dmitted that according to the p ayslip h e h ad 24 leave days . He also identified the document on page 14 of the bundle a s his May, 2019 pay slip \\rhich sh o\\red leave en titlement a s zero, leave taken 24 and leave balance as zero. He admitted that h e was paid K589. 92 as leave pay for the 24 days. 4.10 When referred to page 15 of the Respondent's Bundle of Documents, CW identified it as a Payment Form prepared by the Ministry of Labour and Social Security which showed that he received K601. 00 for days worked and J9 other dues. He finally conceded that he was p aid for the days he worked and did not have any leave days . 4 . 11 There were no questions in re-examination, an.d the Complainant closed his case. 4 . 12 The first witness for the Respondent was Vivian Mulala, the Responde n t's I-Iu man Resource Manager (RW) . Sh e testified that s om e of her dutie s in the Resp ondent Company included recruitment p rocesses; processing of separation packages ; disciplinary procedures a nd general staff welfare. She iden tified the letter on page 1 1 of the Respondent's Bundle of Docu m e n ts as a letter of separation where the Complainant \.vas declared a deserter and was given a right of appeal a gain st the decision within 14 days from th e date of th e letter. Sh e testified that she was sure that th ere was no appeal otherwise it would have reached her office. 4.13 RW testified that the Complainant was paid leave pay, days worked and uniform bond. With respect to evidence on record that leave was paid to the Complainant, RW testified that at page 13 of the Respondent's Bundle of Documents was the Complainant's March , 2 019 , p ayslip JlO that confirmed that he had 24 days accrued leave as at March, 2019 and on page 14 was the Complainant's May, 2019 payslip which showed the leave balance as zero and leave taken as 24 days. Further, th a t the earnings showed that the Complainant's leave was p aid off as pa rt of his separation b enefits. Il was h er testim ony that th e Complainant was paid his uniform bond of K250.00 and at page 15 v.ras a Paym ent Form from Labour Office showing a payment of K60 lfor the days worked and accrued benefits. 4 . 14 RW identified the document on page 1 of the Respondent's Bundle of Documents as the Contract of Employment between the Respondent and the Complainant. That, the Complainant \Vas employed on a permanent and pensionable contract of employment and was a unionised employee covered by the Zambia Union of Security and Allied Workers and Group 4 Secure Solutions Limited Collective Agreement. She identified the document at page 3 of the Respondent's Bundle as the Collective Agreement she alluded to. It was her testimony that every two years the Union and company .. Jll go through a collective bargaining process and v.1hen it is concluded and signed, it applies to all unionised employees. That, the docun1ent at page 3 was in effect from \January, 2019 to Decen1ber, 2020. 4.15 In cross-exan1ination, when referred to page 2 of the Respondent's Bundle lo expla in why the document (Contract of En1ployment) sh owed the leave entitlement I, as 26 days, RW said she could n ot give a n answer as to why the document showed leave d ays as 26 per annum . 4.16 There v.rere no questions in re-examin ation and that marked the close of the Respondent's case . 5. Findings of fact Undisputed facts 5 . 1 The undisputed facts of this matter are that the :) Complainant was employed by the Respondent on 6 th November, 2006 as a Security Officer on a permanent and pensionable basis. He worked as such until 2019 when he was dismissed by the Respondent after not having reported for work for three days prior to the dismissal. J12 Disputed facts 5 .2 The Complainant claims that he was dismissed by the Respondent on 3 rd May, 2019 after staying away from work due to illness and h e submitted a sick note as evidence of his illness. That, th e Respondent only paid him K601 at the Labour Office a fte r working for 12 years and 5 months. The Respondent, on the oth er hand , contends that the Complainant was dismissed on 6 th April, 2019 and not 3 rd May, 2019 as alleged by the Complainant. Further, that the Complainant was dismissed on account of deserting his \.\ ork having been absent from work for a continuous period of three days without any reasonable explanation, contrary to the Respondent's Disciplinary Code. It was also asserted that the Complainant had a right to appeal against the dismissal within 14 days, which right he did not exercise, thereby not exhausting all administrative channels. Further, that the Complainant having been a permanent and pensionable employee in the Respondent Company, was only entitled to his wages and other accrued benefits J13 upon dismissal, which s aid entit lem ents h ad already bee n paid to h im . 6. Legal Arguments 6.1 The Compla ina n t did not file any su bmis s ion s . However , the Responden t filed some on 14 th April, 2022. It was argued that the Compla in ant is not e ntitled to th e reliefs being s ought because h e fa iled to d isch a rge th e bu rden of proof as r equired by th e la w in civil m a tte rs to entitle h im to a decision in his fa vou r. In support of the proposition that the Con1plainant carried the burde n of proof, th e seminal case of Wilson Masauso Zulu v . Avondale Housing Project 1, wa s cited . 6.2 It was argued that the Compla inant h erein has fa iled to discharge the burden of p roof placed on h im by th e law by proving on a balance of pr oba bility that h e is entitled to the reliefs being sought in this a ction. 6.3 It was argued further, that the Complainant was summarily dismissed by the Respondent for being absent from work for a period of three days without permission. That, 'summary dismissal' is defined in the Collective Agreement at page 6 of the Respondent's Bundle of J14 Documents, which applied to the Complainant, as termination of employ1nent as a result of disciplinary action which in nature is a very serious one and that may not entitle an employee to any b enefit except for the days worked, leave pay a nd uniform bond . That, awarding the Complainant the reli fs sou ght will allow him to benefit from his o~m wrong doing. ) 6.4 It was submitted that the Complainant h avin g been summarily dismissed b y the Respondent, forfe ited oth er benefits which could have accrued to him and \Vas paid everything he was entitled to at the time of separation with the Respondent. That, in light of the foregoing, the Complainant was paid \vhat h e was entitled to at the termination of his employment and is not entitled to ) payment of terminal benefits. Counsel for the Respondent in this regard, relied on the case of Care International Zambia Limited v. Misheck Tembo2 , where the Supreme Court stated thus: "We have also said in numerous cases that the mode of an employee's exit from employment will invariably determine what, if at all, relief they would be entitled to" JlS 6.5 That, on the strength of the above authority, it is the Respondent's contention that the Complainant ·was only entitled to payment for the days worked, leave pay and uniform bond, according to the agreement. That, it is on record that the Complainant was paid for the days worked, leave pay and uniform a t. the time of separation with the Respondent. 6.6 With regard to the claim for termin a l ben efits , it was submitted that Mwenda and Cha nda, th e learn ed authors of A Comprehensive Guide to Em ploymen t La\v in Zambia, state at page 284, tha t terminal ben efits refer to all the wages and benefits due to an en1ployee at the end or termination of the employm en t r elationship and includes all accrued benefits, payments in terms of employment legislation and any benefits provided for in terms of the contract of employment or collective agreement. 6. 7 It was submitted that from the above, it is clear that terminal benefits are paid to an employee who has accrued such either by operation of law or through a contract of employment or collective agreement. That, a J16 perusal of the Complainant's Contract of Employment and Collective Agreement shows that the Complainant is not entitled to payment of terminal benefits but to payment for days worked, leave pay and uniform pay which the Complainant acknowledged having received from the Respondent in c ro::;s-cxam in a tion. 6.8 It was argued that the Complainant entered into a contract of employment with the Respondent and agreed to its terms which specified wh at the Complainant was entitled to in the event of a summary dismissal and the Complainant was accordingly paid his dues. That, in light of the foregoing, the Respondent urges this Court to enforce the terms of the contract between the Respondent and the Complainant. -:>, 6. g In conclusion, it was submitted that the Complainant has failed to discharge his burden of proof to the required standard and as such, is not entitled to the reliefs being sought. Furthermore, that the Complainant was paid all amounts that were due to him as seen from his last pay slip and payment form from Labour Office. Hence, this action should be dismissed for want of merit. J17 7. Issues for determination 7 . 1 After perusing the Notice of Complaint and supporting Affidavit; the Answer a nd supporting Affidavit; a nd the evidence b efor e this Cou rt, the issues for determination in this action , in 1ny opinion : (i) \1/he ther or not th e Complainant 1s entitled to paym ent of ben efits for the years h e worked and leave pay; (ii) Whether or not th e Com p lainan t is en titled to a n order for costs and a n y other benefi ts. Whether or not the Complainant is en titled to pavm en t of benefits for the years worked and leave pay 7.2 Let it be understood tha t the Complaina nt h erein is not seeking for a declaration that his summary dismissal was wrongful or unfair. His claims are for terminal benefits for the years worked, leave pay, costs and any other benefits the Court may deem fit. Hence, I will not venture into discussing the merits or demerits of the dismissal. J18 7.3 Section 50 (1) of the Employment Code Act provides the only instances where summary dismissal is permitted. It states as follows: "A n employer shall not dismiss an enlployee sunlmarily except in the following circu n1stances: (a) where an e mployee i guilty of gross n1isconduct inconsistent iuith the exp ress or implied conditions of the contract of e ,nploy,nent; (b) for iuillful disobedience to a lawful order given by the en1ployer; (c) for lack of skill which the employee, expressly or impliedly warranted to possess; (d) for habitual or substantial neglect of the employee's duties; (e) for continual absence from work without permission of the employer or a reasonable excuse; or (fJ for misconduct under the employer's disciplinary rules where the punishment is summary dismissal." 7 .4 It is not in dispute that the Con1plainant was summarily dismissed from employment for being absent from work for three days. The Respondent dismissed the Complainant for desertion in accordance with the Collective Agreement between the Respondent and the Zambia Union of Security and Allied Workers. The Complainant admitted in cross-examination that he was J19 a member of that Union. He a lso admitted th at t h e provisions of the agreement applied to him as a m ember of the Union. 7 . 5 The Collective Agreem ent a lluded t o above d efines "Deserter" as an e mployee who leaves employm ent without notice a nd is decla red as such after a b sence of three (3) consecu tive days. The Complain ant was declared a d es er ter b y th e Respondent on 6 th Ap ril, 20 19 after staying away from work for three days , that is, from 3 rd April, 2019 to 5 th April, 2 01 9. 7.6 The Collective Agreem en t also d efin es "Su m m ary dismissal" as termination of em p loym ent as a resu lt of disciplinary action which in n ature is a very seriou s one and that may not entitle a n employee of a n y b en efit except for the days worked, leave pay and uniform bond. Section 51 (2) of the E1nployment Code Act provides as 7 .7 follows: "An employer who summarily dismisses an employee under section 50 shall pay the employee, on dismissal, the wages and other accrued benefits due to the employee up to the date of dismissal. J20 7. 8 The ref ore , as provided by Section 51 (2 ) of the Employment Code, the Complainant is entitled to payment of his wages and other accrued b enefits up to the date of his dismissa l. I-Iowever, the Complainant's terminal payslip exhibited at page 14 of th e Respondent's Bundle of Documents s h ows that th e Complainant was paid his sala ry for May, 20 19 . Furth e r , th a t h e was also paid the following allowances: Gra d e Allowa n ce, Housing Allowance , Uniform Refund (Bond) ; Rest p ay; Leave Pay and Cost of Living. 7 . 9 It is noteworthy that security offi cers or guards are regarded as vulnerable work ers and ordinarily, are protected by the Minimu1n Wages and Conditions of Employment (General) Order, 2011 , S. I. No. 2 of 2 011 as amended S. I. Nos. 46 of 2012 and 71 of 2018, respectively. However, in this instance, the Order does not apply to the Complainant because it specifically states that it does not apply to unionised employees whose conditions of service are regulated by a collective agreement or are governed by an agreement between an employer and employee providing for conditions which J21 are not less favoura ble to the employee t h an the minimum conditions set out in th e Order. 7 .10 The General Order gives allowance for those employees whose contracts of employm ent provide for less favour able conditions to be covered by th e Gen era l Order , but it does n ot p rovide such allowance to u nionised employees v.rh ose condition s of employment are regulated by the process of collective bargaining under th e Industrial and Labour Relations Act. However, th e Employment Code Act h as a ltered this position. Section 127 of the Code provides as follov.rs: "Where a contract of employment, collective agreement or other written law provides conditions rnore favourab le to the employee, the contract, agreement or other law shall p revail to the extent of the favourable conditions''. 7 . 11 The Complainant herein was a unionised employee and his employment was regulated by a Collective Agreement which existed between his employer, the Respondent, and ZUSA W. This fact crune out from the testimony of the Complainant. It is evident from the evidence on the record that the Collective Agreement that regulated the conditions of employment of the Complainant did not provide for payment of gratuity to employees covered by it. However, there is provision for payment of severance J22 pay under Section 54 of the Employment Code Act to eligible employees. 7.12 At this juncture, I ,vish to point out an issue that I have come across 'While p erusing the Collective Agreement exhibited in the Respondent's Bundle of Documents at pages 3 to 10. I h ave observed that even though the Respondent's witness , RW, tes tified that the agreement was effective fron1 . Ja nua ry, 20 J 9 to December, 2020, and the date of the agreem ent on the cover is shown as 2019 - 2020, the agreement was ac tu ally sign ed by the parties on 25 th ~July, 2019 and came in to force on 1st January, 2020. Therefore, the agreem en t came into force long after the Complainan.t had left the Respon d en t's employm ent; hence, this particular agreem ent did not apply to the Complainant herein. What this in effect m eans is that the Collective Agreement \Vhich applied to the Complainant was not produced before Court. However, I have no doubt in my mind that the Co1nplainant's conditions of employment were regulated by a collective agreement between ZUSAW and the Respondent as alluded to by the Complainant, save for the fact that the same is not the one before Court. 7.13 The Complainant was employed under a permanent and pensionable contract of employment. A permanent contract has been defined in Section 3 of the Employment Code Act as a contract which, if not terminated in accordance with the Employment Act, expires on the J23 Employee's attainment of the retirement age specified under a written law. From the definition of a permanent contract of employment in Section 3 , I form the op1n1on that a permanent contract of employment is also a contract of fixed duration in the sense that it is certain to expire on the retire1nent d ate if not terminated in the various v.rays specified in th e Employment Code. 7 .14 Further, Section 54 (3 ) proscribes the payment of severance pay to casual e1nployees, temporary employees, employees engaged on long-te rm contract or employees serving on probation. The prohibition has not been extended to employees engaged on a permane nt basis. In relation to Section 54 (3) of the Employm e nt Code Act, Mwenda and Chungu state at page 288 of their book thus: "The foregoing provision proscribes the payment of a severance package to en1ployees engaged on, among others, long term contracts. As such it would seem that Section 54 (1) (b) and (c) of the Employment Code Act was designed for employees on permanent, short term and seasonal contracts to receive gratuity when their employment terminates for a reason other than redundancy, medical discharge or death. A contract for a fixed duration includes permanent contracts and thus, although the definition of gratuity provides the entitlement for long-term employees, permanent employees get this benefit in the fonn of severance pay when their employment tenninates for a reason other than redundancy, medical discharge or death. J24 7.15 From the above, I am of the view th a t employees en gaged on a permanent basis are a lso entitled to paym ent of severance pay when their con t racts of employm en t are terminated for a reason oth er th a n r e dunda n cy, m edical discharge or d eath. In this cas e , the Complainant's employm e nt with th e Responde n t wa s termin ated by desertion. However , wh en cons ide ring what is due to an employee aft er termination of employm ent, it 1s immaterial that the employment was brou ght t o an end at the instance of the em p loyee, as under the provisions of Section 19 (2) of th e Emp loym ent Code, a permanent contract may b e terminated by either party to the contract. What matters is that th e contract h a s b een terminated by one of the par ties . Thus, irr espective of the party behind the termination , the employee is s till entitled to his accrued benefits , including severance pay, if he qualifies for it. It is important to note, with respect to severance pay, that an eligible employee can either receive gratuity at the rate of twenty-five percent of the employee's basic pay earned during the contract period or the retirement benefits provided by the relevant social J25 security scheme that the employee is a member of. An eligible employee cannot be entitled to both, accordance with Section 54 ( 1) (b) of the Employment Code. 7 . 16 It is noteworthy tha t s ever a n ce p a y d oes not apply retrospectively . As the la w s ta n ds now , it is payable from 9th May, 20 20 when the trans ition ped od in which to comply ,~th the Employmen t Cod e Act expired . In the case of the Complainant h erein, h e \vas lon g gon e from the Respondent Compa n y by 9 th May, 2020, havin g b een dismissed on 6 th April, 2 01 9 . Thus , th e Complainant cannot benefit from Section 54 (3 ) of the Em ploym en t Act. However, if he wa s a m ember of a p rivate pension scheme, he is entitled to the r etirement benefits thereunder. 7 .1 7 One allegation by the Respondent that has caught m y attention is to the effect that the Complainant had a right to appeal against his dismissal within 14 days but did not exercise that right; hence he did not exhaust all the administrative channels. I am not sure whether the Respondent brought that fact to the attention of the J26 Court to question the jurisdiction of this Court to hear and determine this matter in view of the fact that the Complainant had not exh austed the administrative channels available to hin1, b ecause the Respondent merely pointed the Court l o tha t fact and ended there. However, this is an issue th a t h a s com e before this Court on more than one occasion before a nd , for that reason, I feel must be addressed so that litigan ts and cou nsel alike , are informed a bout th e effect of n ot exhausting administrative channels by the complainan t in any matter before this Court. 7.18 Section 85(3) of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia provides as follows : "The court shall not consider a complaint or an application unless the complainant or applicant presents the complaint or application to the court - (a) Within ninety days of exhausting the administrative channels available to the complainant or applicant; or, (b) Where there are no administrative channels available to the complainant or applicant, within ninety days of the occurrence of the event which gave rise to the complaint or application Provided that - ·t J27 (i) Upon application by the applicant, the court may extend the p eriod in which the comp laint or applicatio n m ay be presented before it. 7 .19 Based on the foregoing provisions , it 1s clear that an action must b e comn1en ced in the Industrial Relations Division of the High Court within 90 d ays of exha u s ting all administ r a tive ch a n n c ls or wh e re th ere are no su ch channels, within 9 0 d ays from th e date when the d is pute or event occurred . 7 .20 According to Section 85(3) above, th is Court is proscribed from considering any com plaint unless it is brought within ninety (9 0) d ays of exha usting the a dministrative channels. The above section makes it clear th at th e Industrial Relations Division shall n ot consid er a matter/ dispute where the Complain a n t fails to comply with the 90 day rule. This h as been confirmed in various decisions of the Supreme Court such as Edward Chilufya Mwansa and 194 Others v. Konkola Copper Mines Plc3 and Zambia Consolidated Copper Mines v. Elvis Katyamba and Others. 4 7 .21 On the issue of exhausting administrative channels, Mwenda and Chungu are of the view that an employee J28 who believes that he has been wrongfully dismissed or has had his employmen t unlavvfully terminated on account of his conduct or a lleges wrongful conduct on the part of the employer, should en sure tha t the available internal disciplina ry c h a nn ls a re exha u sted before h e proceeds to comm n c I gal a c ti on . Tha t, this stems from the d ecision of the S uprem e Court jn Concrete Pipes and Products Lin1ited v. Kingsley K abimba and Christopher Simukoko5 . In th a t case the Su p rem e Court in considering an appeal from th is Court, implored parties to exhaust availa ble administrative channels before commencing an action in court. \Vith regard to the effect of a party failing to exhaust the administrative channels, the Supreme Court guided that:- "The extent to which the employee's choice not to submit to internal adm,inistrative 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 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 J29 internal administrative disciplinary proceedings were not concluded or acceded to. In our estimation. failure or re fusal to follow or to subiect oneself to disciplinary procedures can only go either to strengthening or to weakening the e mployee's complaint against the en1ployer (Emphasis supplied) 7 .22 According to the Suprc111c Co urt, th e failure to exh a u st administra tive ch an.n els does not extin guish a cau se of action before th e court, but m e rely weakens th e employee's co1nplaint. The guidance of th e Supreme Court is clear and demonst rates that the m e re failure to subject ones elf to administrative channels does n ot extinguish the jurisdiction of th e court. In the cases cited above , namely Edward Chilufya Mwansa and 1 94 Others v. Konkola Copper Mines Plc. 3 and Zambia Consolidated Copper Mines v. Elvis K atyamba a nd Others 4 , the Supreme Court pronounced itself only on the 90-day rule. This clearly demonstrates that this Court only lacks jurisdiction where a complaint is brought outside the 90- day period and not necessarily when a party fails to exhaust administrative channels. BO 7 .23 I am fortified in taking the position that failure to exhaust administrative channels is not detrimental to a claim before this court based on section 85(4) of the Industrial and Labour Relations Act v:hich states that this court has the power to determine any dispute be tween an employer and employee - s ee Kalusha Bwalya (sued as President of 1(. Stars Football Club) v. Fabian Ngoliya, SCZ Appeal No. 155/2010. This m eans th at even where administrative channels are not exhausted , the existence of a dispute gives this court jurisdiction to determine the matter, provided it is brought within the statutory and mandatory 90-day period from the date of the grievance. As such, the failure to abide by the administrative channels is not fatal. Rath er , it is the requirement to file the complaint within 90 days which is crucial in matters before this court. 7.24 It should also be noted that in the Concrete Pipes case (supra), the Supreme Court also guided that an employee need not exhaust administrative channels where they are non-existent, unduly prolonged or totally ineffective. This underscores the view that not exhausting all the J31 channels does not and should not rob the cour t of th jurisdiction to hear a matter. Whether or not the Complainant is entitled to an order for costs and any other benefits . 7 .25 In view of m y fin dings m paragraph 7 .8 above, the Complainant 1s n ot entitled to payment of any oth er benefits. 8. Orders 8 . 1 The Complainant's claim s for te rminal benefits for the years w orked , leave days, costs and any other ben efits the court may deem fit h as failed a nd is dismissed accordingly . 8. 2 Each party to bear own costs. 8. 3 Leave to appeal is denied Dated at Lusaka this 23rd day of May, 2022. ~ J-_ Dr. W. Sithqle Mwenda JU·lJGE " " tAJ. V _ "' .~lMI "'1 (1''" .._ ., .,. _ £ __ .......,. .. \ l fl,' l\1 l