David Sendwe and 10 Ors v First Quantum Mining and Operations Limited (COMP NO. IRC/SL/28/2021) [2022] ZMHC 119 (2 November 2022)

') IN THE HIGH COURT FOR ZAMBIA COMP NO. IRC/SL/28/2021 INDUSTRIAL/LABOUR DIVISION HOLDEN AT SOLWEZI (LABOUR JURISDICTION) 13E'TWEE1V: DAVID SENDWE & 10 OTHERS AND --- .... LJ 2 ~'1-0 \~ 2022 f, .... - .,r ~1 ~-~ ., :v ,,,.,.,-=; C f"' ,; ,,..,.,.. J~;_ .... INANTS FIRST QUANTUM MINING &OPERATIONS LIMITED RESPONDENT Before: The Honourable Mr. Justice D. Mulenga this 2 nd day of November, 2022. For the Complainant Mr. M. Benwa of Messrs James and Doris Legal Practitioners For the Respondents Mr. H. Pasi of Messrs Mando and Pasi Advocates JUDGMENT Cases referred to: 1. Wilson Masautso Zulu v Avondale Housing Project Limited (1982) ZR 2. Zesco Limited v David Lubasi Muyambango (2006) Z. R. 22 3. SUuyele Mbita and Others v Konkola Copper Mines Plc SCZ Appeal No. 148 of 2014 4. Undi Phiri v Bank of Zambia SCZ Judgment No. 21 of 2007 5. Namibia Wildlife Resorts Limited v Ilonga LCA No.3 of 2012 Jl 6. Southern Sun Hotels Interests (Pty) Limited v CCMA and Others (2009) 11 BLLR 1128 (LC) 7. Sydney Mwape v First Quantum Mining and Operations Limited Comp No. IRC/SL/11/2021 8. Sydney Kalyati v FQMO Mining Division Comp No. IRC/SL/26/2021 Other Works referred to: John Grogan: Dismissal, Discrimination and Unfair Labour Practices: Juta & Co Ltd (2005) The Complainants herein presented their Complaint with an affidavit in support on 4 th November, 2021. The Complaint is anchored on the grounds that the Complainants were unfairly dismissed from employment and treated differently from over 200 other employees, despite being similarly circumstanced. The Complainants therefore seek the following relief:- (a) An Order that they were unfairly, unlawfully and/or wrongfully terminated by the Respondent (b) 36 months' salary or such higher amount as the Court may deem fit as damages for unfair, unlawful and/or wrongful termination (c) Damages for unfair, wrongful and discriminatory dismissal (d) Damages for loss of future earnings in salaries, allowances and pension benefits (c) · An Order that the Respondent pays them full accrued pension benefits for the years served J2 ., (f) Interest on all sums found due (g) Any other relief the Court may deem fit (h) Costs of and incidental to this action. In their affidavit in support of complaint sworn by Jacob Simangolwa the 2nd Complainant herein, the Complainants deposed that they were employed by the Respondent on diverse dates under permanent and pensionable contracts. They were assigned in different crews namely crew 3 for the 1st to 7th Complainants, crew 2 for the 8 1 \ 10th and 11 th Complainant and crew 4 for the 9 th Complainant. \t\Thilc serving the Respondent Company, the Complainants came to learn of an ongoing negotiation regarding a private pension fund to be set up by the Respondent. On 9th September, 2021, night shift crew 3 reported for work around 23:00 hours ready to take over from crew 4. As they were about to proceed to work, they were informed by their respective supervisors to convene in the meeting hall for a meeting with the Human Resource Superintendent one Tinozi Chisunka. It was deposed that the said Chisunkaaddrcsscd them, however, all the employees were not in agreement with the private pension scheme and they walked out of the meeting. It was deposed that the 2nd Complainant raised a point of order during the meeting seeking clarity on why the private pension scheme had taken over a year to be implemented. The comment did not sit well with the J3 • Human Resource Team, who then commanded him to shut up and sit down. The Complainants deposed that the Human Resource Superintendent and his team told them that they would be fired for their actions. Despite the employees' decision to proceed to work/and or knock off the Human Resource team followed them outside the meeting hall and insisted on addressing them. The employees then requested to be addressed by the General Manager or his assistant. It was the deposition of the Complainants that the employees waited for the General Manager until 10:00 hours on l 0 th September, 2021 when the Human Resource Team availed the area Labour Commissioner who informed them that the Respondent was handling the issue of the private pension scheme. The employees who had knocked off were advised to go home and those who reported in the morningf to proceed to work. Surprisingly, between l Qlh and 14th September, 2021 the Respondent suspended the Complainants and over 200 other employees pending investigations. They were all charged with the offence of inciting or participating in -~ illegal strike action or unjustified work stoppage resulting in loss of production contrary to clause 7.4 of the Respondent's disciplinary code. The Con1plainants deposed that on 16th September, 2021, following a frivolous disciplinary hearing the Respondent terminated the J4 • employment of over 200 employees including themselves. They appealed against the termination to the Project Manager, ho,vevcr, their appeals were rejected. It was the Complainants deposition that their dismissals were malicious and the alleged worked stoppage was justified as they were attending the Respondent's management meeting. On 21 st September, 2021 the Respondent reinstated over 200 employees who were similarly circumstanced with the Complainants. The Complainants deposed that as permanent and pensionable employees, they had accrued benefits up to 31 st December, 2020 as per the terms of the collective agreement "JS8", however, the Respondent has withheld the same without justification. The Complainants called three witnesses. The first witness (hereinafter only referred to as "CW 1 ") was Jacob Simangolwa, whose oral testimony did not differ in material particular to the affidavit evidence, save to add that when they walked out of the meeting on 9th September, 2021, they could not go to the pit because the supervisors who were supposed to drive them had already left for the pit. On 10th September, 2021 around 22:30 hours, crew three arrived at the boom g~tc so that they could go and work. They were stopped by Human Resource Manager Maxwell Banda and his team. They were handed letters of _ suspension until further notice. JS • According to CWl, after their dismissals only twenty-seven (2 7) employees were not reinstated. One Leonard Kalukango was a machine operator and at the same level as CWl, the said Kalukango was reinstated as per exhibits "JS7 (a) to (i)". CWl averred that he was similarly circumstanced with Kalukango. c,,v1 denied having castigated the union or used abusive language. CWl explained that they never refused to return for work, however, the Respondent stopped them from working as they addressed a meeting. He denied threatening 44 other employees who wanted to return to work as the same was never even raised during the disciplinary case hearing. CWl testified that they requested to see General Manager for the Respondent and not Kansanshi, because they had been accused of pushing for the formation of private pension scheme as employees, when the same was the Respondent's inttiativc. According to CWl, they were unfairly treated as their colleagues were reinstated while they were dismissed and their employment access blocked, consequently they cannot be employed by any other mine. In cross-examination, CWl maintained that he worked on 9th September, 2021 but did not operate the truck or go to the pit. He admitted that the shift started at 2 3 :00 hours and was supposed to end at 07:00 hours, and all his colleagues in crew three did not go to the pit. He denied that other crews had already been briefed by Human Resource Personnel and crew three was the last one to be briefed. CWl denied storming out of the meeting because he J6 • was upset, but because Human Resource personnel stopped him from talking. He stated that he raised the point of order while meeting was ongoing. He admitted that some supervisors were in the meeting and the vehicles parked ready to take them back to the pit, however other supervisors had left. He admitted that his Supervisor Kasolo and crew manager Sydney Mwango were present CWl denied that union officials tried to persuade them to return to the meeting after they stormed out. He denied that the reason they did not go to the pit was that they wanted to be addressed by the General JVIanager. CWl denied being addressed by Production Manager or persuaded to return for work so that production would not be affected. He also denied being addressed by Project J\1anager. CWl maintained that everyone in crew three did not work. He denied that six of his colleagues proceeded to the pit and W'orked. He denied being part of a crew three watsapp group. CvVl stated that buses arrive at 07:00 hours but denied that they refused to board buses because they wanted to incite the next crew not to proceed for work. CWl admitted that the morning crew reports at 07:00 hours and found them gathered. He admitted that when the labour commissioner addressed them even crew t,,vo was present, however, there was no protest just a meeting. CWl denied that some crew two members refused to go for work and boarded buses going home. J7 • He admitted that some of the Complainants are from crew two and were charged because they did not proceed to work but went back home. He denied signing up to join the pension scheme. CvVl maintained that some of the Complainants like Chilingila Upeme signed up for the private pension scheme. He denied that at time of dismissal, Respondent had issued forms relating to pcnston scheme. He admitted that his dismissal was before forms were issued. CW 1 denied that his payslips show any pension scheme deductions. He stated that he wanted to join the private pension scheme. He admitted that all Complainants individually attended disciplinary hearings and were informed of the right of appeal, which they exercised. He denied knowledge that one Mckenna in his statement stated that the 7th Complainant Stephen Chalwc was the leader of the mob. He admitted that the Complainants appealed individually and the grounds were different. He denied that each appeal was decided on its own merits. He admitted that he did not know the considerations made for each appeal as well as the disciplinary records. He admitted that Upcme was on final warning for a similar offence at the time of dismissal. In re-examination when referred to page 126 of the notice to produce, CWl explained that the same is a written warning for Upeme_ dated 2016, the warning was valid for twelve months and was long served, or expired. J8 • CW2 was Chilingila Upeme, who averred that he was in crew four on 9th September, 2021 and was in afternoon shift from 14:00 to 23:00 hours. He worked the entire shift and handed over to the shift boss. As they headed to the change house, they found crew three in a similar meeting they had earlier attended. They clocked out and went into the change house. The buses they were supposed to board on the way home were on the side where crew three was to be picked and taken to the pit. The same buses would return then take crew four home. Around 0:-3:00 hours Human Resource personnel Tinozi Chisunka and Isabel informed those who were knocking off to board the buses and go home. According to CvV2, there was only one bus at the pickup point and the same had already left. CW2 denied inciting or threatening other employees to participate in the strike and staying after knocking off to participate in the strike. In cross-examination, CW2 maintained that at the time of his dismissal, the private pension scheme had been set up and he signed documents to join the same. He admitted that no deductions were made on his payslip in relation to the pension scheme. CvV2 denied there being a protest. He maintained that several of his colleagues from his crew also did not find any buses to board. He maintained, that was the only incident in his eleven (11) years of service, of being stranded at the pickup point with twenty-eight (28) others from his crew. .19 • CW2 admitted that he was once dismissed and reinstated upon the project manager's discretion on appeal. Ile was placed on final warning which he never challenged, and the said 'Warning elapsed. CVV3 was Joseph Muyaya, he averred that he was in crew two with Dennis Singogo (10 th Complainant) and Charity 11ulosa(11 1 h Complainant). On 9th September, 2021 he reported for vvork around 07:00 hours, attended the address by Hwnan Resource personnel, proceeded to the pit to work and knocked off around 15:00 hours. On 10th September, 2021, crew two reported in the morning and found crew three from the night shift waiting to be addressed by the Assistant Labour Commissioner. Crew two also 'Waited to be addressed. After that, they realised that there were no buses to take them to the pit. CW3 averred that they crossed back to the side where the meeting was held and were advised by a Human Resource Officer Erwin to board the buses and go home. CW3 denied inciting others not to work. According to CW3, in his exculpatory statement, he explained that he did not work because he feared being attacked by his colleagues who had decided not to work. CW3 averred that his charge sheet stated that he committed the offence around 23:00 hours vvhen at that time, he was at ho1nc sleeping . JlO • In cross-examination, CW3 admitted responding to the charge via an exculpatory statement. He admitted that in both statements, including the one on appeal, he did not mention the issue of not finding a bus to take him to the pit. He also admitted that he did not mention the same in his affidavit and only mentioned it for the first time in Court. CvV3 stated that crew two had over 200 employees. He denied that most of his colleagues proceeded to the pit to work. He denied that only himself, Charity and Dennis decided to go home despite the Labour Commissioner advising them to work. CW3 admitted that he did not ,vritc in any of his statements that Human Resource officer Erwin instructed him to board the bus going home instead of going for work. CW3 denied that his disciplinary record was bad. CW3 also denied that crew three intimidated him and forced him not to proceed to work, he however admitted that the environment was hostile. The Complaint is opposed, to that effect, the Respondent filed an Answer and affidavit in support on 26th November, 2021 and 3rd February, 2022 respectively. In its Answer, the Respondent stated that the Complainants were employed by the Respondent on various dates and in different capacities until their summary dismissal on lGth September, ~021. The Respondent contends that between 8 th and 1 Q1 h September, . Tl I • 2021, the Complainants participated in an illegal work stoppage and incited or intimidated other employees not to work, in breach of their conditions of service. Following investigations, the Complainants were charged with the offence of inciting or participating in an illegal strike action or unjustified work stoppage resulting in loss of production contrary to Clause 7.4 of the schedule of offences in the Respondent's disciplinary code. The Complainants exculpated themselves in writing and individual disciplinary hearings were convened. The Respondent contends that the Complainants were found guilty, summarily dismissed and informed of their right of appeal. The Complainants appealed unsuccessfully. The Complainants were not similarly circumstanced with other employees who were reinstated as each case was decided on its merits. The Complainants are not entitled to any relief sought as their summary dismissal was in accordance with the law and laid down procedures in the Respondent's disciplinary code. In the affidavit in support of answer sworn by one Tinozi Chisunka, the Human Resources Superintendent, the Respondent deposed that the Complainants were all employed by the Respondent on various dates as Heavy Machinery Operators. In December, 2020, the Respondent and four Unions signed a Collective Bargaining Agreement for the period January, 2021 to December, 2022 which Jl2 • provided for the issue of pension schemes. After receiving guidance from the Labour Commissioner in March, 2021 it was agreed that accrued benefits shall only be remitted to and exclusively managed by the Respondent selected pension scheme once an c1nployee elects to join the sche1nc and each employee would be communicated to in writing. It was deposed that the Respondent and the unions agreed that they vvould jointly communicate to the employees and they signed a document to be used for the briefing scheduled for the crews at the start of each shift from 7th September, 2021. The briefings co1nmenccd and went on smoothly with all the crews despite s01nc misgivings and concerns from some employees. In the evening of 9 th September, 2021, they went to brief lhe last group, crew 3 from the Load and Haul Section under Production Department. In the process of introducing themselves as members of the management team and unions, the 2nd Complainant without seeking permission to speak castigated the union members and called them sell-outs using some very unpalatable language. The Respondent deposed that the 7th Complainant and others joined in shouting at the union officials and started inciting other employees to walk out of the meeting. The whole crew slormed out and went to gather outside the change house. The crew coordinator one Sydney M,vango, later relayed information that all crew 3 J 13 ., members had refused to go and work and were demanding to be addressed by the General Manager for Kansanshi Mining Plc. It was deposed that Tinozi Chisunka and the said Mwango tried to persuade the employees to go for work but they refused, and demanded to be addressed by the General lvfanager. Chisunka then called the Production Manager Timolhy Wride who advised the employees that the General Manager was out of the Country, therefore, they should go for 'Work and choose representatives to meet management and the unions, but the employees declined. Later, the Project Manager also came and tried to address the striking employees to convince them to go for work, but they all walked away. After some time, the management team and the supervisors vvho had been waiting with their vehicles to take the employees to the pit for work left when it became clear that all crew 3 employees had refused to work, apart fro1n 6 employees. It was deposed that at that time, crew 4 members who were in the afternoon shift were knocking off and some of them instead of boarding buses going home, decided to join the protesting employees from crew 3. Crew 3 employees continued protesting until 07:00 hours in the morning when crew 2 was reporting for the morning shift, and threatened the said crew 2 not to report for work. • The Labour Commissioner and Assistant Labour Comrnissioner were informed and the two rushed to the mine site. The Labour Commissioner addressed the striking employees and informed them that they had participated in an illegal strike. He advised the employees who were not on duty to go home and gave the employees who were on duty, an hour to return to work. Senne employees heeded the advice, while some who were supposed to report for work including the 11 th Complainant decided to board bused that were taking employees home. The Respondent deposed that investigations were instituted and some employees were issued suspension letters pending investigations. After investigations 1 all employees who had refused to work and incited others not to work were charged and asked to exculpate themselves. Disciplinary hearings ·were convened and some employees were found guilty and summarily dismissed. The Complainants appeals' were unsuccessful. Other employees had their cases reviewed on appeal and were reinstated defending on the merits and facts of each case. The Complainants were not similarly circumstanced with the reinstated employees because their cases were different and there was evidence of aggravating circumstances for each Complainant. The 1 ~t Complainant was among those who instigated the work stoppage and was identified by his colleagues as being in the Jl5 forefront of inciting others not to work. 44 employees mentioned the 2nd Complainant as being in the forefront of inciting, and he started the protest by interrupting the meeting. 13 employees mentioned the 3rd Complainant as being in the forefront of inciting others not to work. The 4th Complainant was also identified as being in the forefront, he also captured a screenshot of crew 3 employees who had worked and shared it on a whatsapp group ·were the said employees ,verc called traitors and snitches. 5 employees mentioned the 5th Complainant as being in the forefront of inciting others not to work and 3 employees mentioned the 6th Complainant. 40 employees mentioned the 7th Complainant as being in the forefront of inciting and as one who had joined the 2nd Complainant in shouting at the union officials. It was deposed that the 8 th Complainant was also identified. 3 employees mentioned the 9 th Complainant and he had previously been dismissed on a similar offence of illegal work stoppage but later reinstated on appeal. The 10th Complainant was equally identified and the 11 th Complainant was identified as being in the forefront of inciting and was serving a written warning dated 2:-3rd June, 2021 for a similar offence after she-had refused to work. The Respondent further deposed that the Complainants being operators were very essential as they were directly involved in production and the illegal industrial action caused a significant J16 • loss of production. The Complainants arc not entitled to accrued pension benefits because the Collective Agreement only provides for retirement benefits for employees who are retired. Further the pension scheme was set up effective pt January, 2022 and is subject to an employee electing to join the pension scheme or not. Tinozi Chisunka was the Respondent's only witness (hereinafter referred to as "RWl "). His evidence in examination in chief did not differ in material particular from the affidavit evidence and I vvill not belabour to restate the same. In cross-examination, RvVl maintained that he only told CvV l "look what you have caused". He stated that he did not dispule threatening to dismiss CWl or telling him to shut up. He admitted that the meeting area and car park has cameras and records kept by Respondent. He denied that video footage would have resolved most issues relating to who worked or did not work. He denied engaging in a witch hunt and trying to prove that he is the boss. The Complainants were part of crew three. He admitted that the Respondent has records of employees who clocked in and out of the machines, but the same had not been made available to the Court. RWl stated that one Musonda Kambobc was not facing any other disciplinary offence at the time. On 16th September, 2021 al] dismissed employees appealed to the Project J\llanagcr. J\llaxwcll Banda reinstated some employees on 16th September, 2021 • including Amos Chitangala and Geoffrey Hamangaba. RWl admitted that appeals lie to Project l\ilanagcr and Maxwell Banda is not the Project Manager. The reinstatement letters do not state that appeals vvere heard. He admitted that no mitigation by the employees was produced bcf ore Court. RWl admitted that the Complainants were charged with inciting or taking part in illegal work stoppage. When referred to exhibit "JS5", he admitted that dismissal letters and appeal letters do not state that past disciplinary record was considered. When ref erred to page 52 of the notice to produce, RWl stated that the same is a screen shot from watsapp group but he had not told the Court the owner of the phone or number. He admitted that 44 employees mentioned CWl but had not brought any state111ents. Still in cross-examination, R Wl admitted that as per exhibit "JSS(h)(i) Joseph Muyaya was charged by Onesmus Chisanga. Occurrence of event was 9th September! 2021 around 23:33 hours. He admitted that Muyaya had knocked off at 1 :>:00 hours, he stated that time of occurrence could have been a typographical error. He maintained that it was fair to charge Muyaya. RW4 admitted that exhibit "JS4" provides for a justified work stoppage. RWl stated that the shift started at 23:00 hours but the meeting did not take place. RvVl admitted that a warning has a time frame and Upemc's warning in 2016 had already elapsed. He admitted that the Court would not know if the reinstated employees had any disciplinary records. Jl8 At the close of the hearing, Learned Counsel for the Respondent filed written submissions which I may refer to only when necessary. Clearly, the issues for the determination of this Court are ·whether the Complainants' dismissal from employment is unfair and/or wrongful and whether the Complainants are entitled to the payment of full accrued pension benefits for the years served. From the outset, I must hasten to state here that emphasis on the burden of proof has been given by the Supreme Court in a number of cases one of which is Wilson Masautso Zulu v Avondale Housing Project Llmited1, where it was held that:- "Where a plaintiff alleges that he has been wrongly or unfairly dismissed, as indeed in any other case where he makes an allegation, it is for him to prove those allegations. A Plaintiff who has failed to prove his case cannot he entitled to a judgment whatever may be said of the opponent's case." The import of the above precedent is that the Complainants have a duty to prove on the balance of probabilities their complaint against the Respondent. It is common cause that the Complainants were employed by the Respondent in various capacities and on diverse dates. It is J19 undisputed that the 1 81 to 7th Complainant were crew three members, 8 th , 10th and 11 th Complainants crew two members and the 9th Complainant a crew four member. In the night of 9th September, 2021, as crew four vvas knocking off, crew three members arrived for their shift at 23:00 hours. However, before crcvv three could proceed to the pit, they were informed by their Supervisor that the Human Resource Superintendent and his human resource team wanted to address them. The said address was in relation to the Respondent's private pension scheme. It is uncontroverted that during the said address, confusion ensued and some employees did not proceed to their work areas as they demanded to be addressed by the General Manager. In the morning of 10th September, 2021, crew two arrived for their shift. The employees were addressed by the Labour Commissioner and those who had knocked off proceeded to go home, while some of the incoming crew two members proceeded to work, and others did not. Between 10th and 11 t.h September, 2021, the Respondent suspended the Complainants and charged them vvith inciting or participating in an illegal strike action or unjustified work stoppage resulting in loss of production contrary to clause 7.4 of the schedule of offences in the disciplinary code. Over 200 other employees were suspended and charged with the same offence. Disciplinary hearings were individually convened and the Complainants together with the other 200 or so employees were dismissed from employment on 16th September, 2021 as per exhibit "JSS". The Complainants and other employees all appealed to the Project Manager against their dismissals. The Complainants appeals were unsuccessful, while the rest of the employees were reinstated and placed on final warning. In considering whether the Complainants were unfairly or wrongfully dismissed from employment, I am guided by the case of Zesco Limited v David Lubasi Muyambango2 also referred to in the Respondent's submissions in which the Supreme Court guided that:- "Jt is not the function of the Court to interpose itself as an appellate tribunal within the do111estic disciplinary procedures to review what others have done. The duty of the Court is to examine if there was the necessary disciplinary power and if it was exercised in due form." In casu, according to the Complainants, they did not participate in any illegal strike or unjustified work stoppage but merely attended a meeting convened by the Respondent's human resource team. In the Respondent's submissions it was arbrued that the Respondent acted reasonably in coming to the decision and had the necessary disciplinary power. It was submitted that except for the 9th Complainant, none of the Complainants is contending that they worked on the days they were alleged not to have worked. The Respondent has argued that this case is similar to the case of . T2 l • Siluyele Mbita and Others v Konkola Copper Mines Plc:i, where it was held that:- "In any event, the evidence on record indicates that the Appellants attended a gathering at the respondent's premises at which the employees marched in the mob that set out to incite and intimidate fellow employees into taking part in an illegal strike and the same was captured on video footage recorded by RW2 which the Court below watched .... Although not all the appellants appeared in the video footage that was produced in the court below, our view is that the appellants failed to challenge the fact that they were part of the mob that was going around the respondent's premises mobilizing other employees to participate in the industrial unrest." This Court does not agree with the Respondent's sub1nission that the facts of this case are similar to those in the Siluyele Mubita case. This is because firstly, in casu as per the disciplinary case hearing minutes for each Complainant at pages 9 to 11, 31 to 3 2, 39 to 41, 48-49, 59-61, 76 to 78, 107 to 109, 132 to 134 and 141 to 143 of the Respondent's notice to produce, the issue of the Complainants being ring leaders in inciting others not to work or being identified as such by their colleagues did not arise and no video footage or any such evidence was availed to the Complainants Secondly, the meeting from which confusion ensued was orchestrated by the Respondent's human resource team as the J22 • employees were proceeding for work. The said meeting was not at the instance of the Complainants. According to the Complainants, there were similarly circumstanced with the other employees but were unfairly treated as their dismissals vvcre maintained, while the rest of the employees were reinstated on appeal. The Respondent's position is that the Complainants were not similarly circumstanced with the other employees and each case was decided on its merits, taking into consideration past disciplinary record and other factors like the Complainants being identified as ring leaders who incited the illegal work stoppage. The Respondent submitted that the Complainants have not adduced any evidence to show how their appeals ,vere on all fours with the reinstated employees. Reference was made lo Lhc case of Undi Phiri v Bank of Zambia4, where it was held that> " .. . As Mr. Mulenga rightly submitted, there is no evidence that the other persons who were not discharged also bounced numerous cheques like the Plaintiff did. We add, there is no evidence that the other persons were also in a position of bank inspectors like the Plaintiff. The Plaintiff was in a crucial position ... As the learned trial Judge quite rightly pointed out, there is no evidence that the breaches by the other persons here were as those committed by the Plaintiff for one to say that the Plaintiff and those others who were not dismissed were similarly circumstanced ... " • To answer the question on whether or not the Complainants were similarly circumstanced with the rest of the other employees who were reinstated on appeal, I draw some comfort in the persuasive Namibian case of Namibia Wildlife Resorts Limited v Ilonga5, where the Labour Court of Namibia stated that:- "An employee seeking to rely on the inconsistent application of discipline by the employer must mount a proper challenge. This in turn requires evidence of similar cases which attracted different and less severe disciplinary sanctions to warrant the inference that the employer had been inconsistent." In another Namibian case of Southern Sun Hotels (Pty) Ltd v CCMA and Others6 , it w·as stated that:- " ... The guideline for testing the fairness of a dismissal for misconduct is whether 'the rule or standard has been consistently applied by the employer'. This is often referred to as the 'parity principle', a basic tenet of fairness that requires like cases to be treated alike." Further, the Learned Author John Grogar, in his book Dismissal, Discrimination and Unfair Labour Practices(2005) at pages 225 to 226 has this to say:- "Consistency challenges should be properly mounted .... Comparison between cases for this purpose J24 requires consideration not only to the respective employees' conduct, but also of such factors as the employees' remorse and disciplinary record, whether the workforce has been warned that such offences will be treated more severely in future, and the circumstances surrounding the respective cases." I. I must state here that contrary to the Respondent's submission that the Complainants have not adduced any evidence to show how they were similarly circumstanced with the reinstated employees, exhibit "JS?" in relation to some of the reinstated employees namely Justine Chiyota, Jimmy Chombcla, Amos Chitangala, Geoffrey Hamangaba, Cecilia Kamoya and Leonard Kalukangu shows that the said employees were machine operators from the production department just the Complainants. According to the evidence adduced, the Complainants together with the other 200 or so other employees were all charged with the same offence arising from the same incident, suspended, and dismissed from employment. On appeal, only the Complainants were not reinstated while their colleagues were reinstated and placed on final warning. It is the considered position of this Court that the Complainants were unfairly singled out by the Respondent. By way of example, in the remarks of the disciplinary case hearing chairperson in relation J25 • to the 2nd Complainant (Jacob Simangolwa) at page 32, raising a point of order to the Human Resource Superintendent is tantamount to gross insubordination. Further as per page 49, the decision to dismiss the 4 th Complainant (Musonda Kambobe) was based on a whatsapp group message to the effect that ernployces who worked vvere traitors and the said message allegedly came from the 4 th Complainant. ,iVhcn RWl was referred to the said picture of the whatsapp message, he admitted not having told the Court the owner of the phone or phone number in the said picture. Further, the 9th Complainant (Chilingila Uperne) actually worked on 9th September, 2021 but was dismissed and the Respondent's argument is that the said Complainant had previously been dismissed on a similar offence but later reinstated on appeal, hence on the material date, he did not knock off in order Lo incite others. The 8 th Complainant Joseph Muyaya's charge sheet exhibit "JS5(h)(i) shows that the time of occurrence of event was 23:34 hours on 9th September, 2021, contrary to the evidence adduced to the effect that the 8 th Complainant was actually not on site at that rime as he had already knocked off and only found commotion when he reported for work in the morning of 10th September, 2021. In cross examination RvVl simply stated that the time of occurrence was a typographical error. The manner in which the Complainants were treated leaves much to be desired because the reinstatement letters of the other employees do not even show that there was any consideration of past disciplinary records. :Most of the reinstated employees were J26 dismissed on 16th September, 2021 and reinstated on the same day by the Human Resource l\Jlanager only on the basis that the mitigation had been considered and appeal process expedited. Arising from the foregoing analysis of the evidence, this Court is of the firm view that the Complainants were similarly circumstanced with the other employees who were reinstated on appeal. The Complainants were unfairly treated and have proved on the balance of probabilities their claim for wrongful and unfair dismissal from employment. In ascertaining the measure of damages for unfair and ,;,vrongfuJ dismissal from e1nploymcnt, I take into account the fact that the Cmnplainants were permanent and pensionable employees and most of them had worked for the Respondent for several years. I have also considered that in this present global economic environment, jobs are quite scarce. I therefore find twenty-four (24) months' salaries as damages for unfair and wrongful dismissal to be appropriate, and I accordingly award the same to each Complainant. The said award shall attract interest al the average short term deposit rate from the date of Complaint to the date of Judgment, and thereafter at the current lending rate as approved by the Hank _ of Zambia until full payment. J27 .. _ I Turning to the Complainants' claim for payment of full accrued pension benefits for the years served, the Complainants only stated in their affidavit that being permanent and pensionable employees, they accrued pension benefits up to 31 st December, 2020 and referred to the Collective Agreement exhibit "JS8" During cross-examination, CWl denied signing any forms to join the private pension scheme. He admitted that his dismissal was before the said forms were issued. CW2 on the other hand maintained in cross-examination that the private pension scheme had been set up and he signed forms relating to the same, however, no deductions were made from his payslip. The Respondent's evidence on the other hand is that the private pension scheme was only set up effective January, 2022 and was subject to an employee electing to join the pension scheme. According to the Respondent, the Collective Agreement referred to by the Complainants only provides for retirement benefits for employees who have retired, hence the Complainants are not entitled to any pension or retirement benefits. I have looked at Clause 18 which is headed ''Private Pension Scheme" in the Collective Agreement exhipit "JSS" which is to the effect that: "The parties hereby agree that the retirement benefits currently being accrued by eligible unionized employees who are on permanent and pensionable contract of employment (the "Eligible Employees"), under previous J28 collective agreements and under the applicable shall cease to accrue and be replaced with a pension fund to be managed by a private pension provider. However, employees who were in employment before 31 st December, 2020 will have an option to either join the private pension scheme or continue on the retirement benefits as agreed in the previous collective agreements." This Court has had the occasion to pronounce itself on a similar provision in the case of Sydney Mwape v First Quantum Mining and Operations Limited7 where it held that:- "In casu, it appears to this Court that there were pension benefits which were accruing to the Complainant and are subject of the provision of Clause 18 of the Collective Agreement 2021 to 2022. There is a duty on the Respondent to calculate and inform the Complainant the amount of accrued pension benefits prior to is1 January, 2021. The record will show that RWl admitted in cross examination that the Complainant was accruing one (1) month gross salary for each year ~erved, but that having been dismissed, he forfeited the same. Considering the tenor of Clause 18 of the Collective Agreement and the guidance of the Supreme Court in the case of Richard Musenyesa, I am satisfied that the private ]29 pension benefits which the Respondent ought to have remitted, the same being for the period up to 31 st December, 2020 are accrued rights of the Complainant and cannot be forfeited." The Sydney Mwape case is distinguishable from the case in casu because, the Complainant in that case spiritedly demonstrated how exactly he was entitled to the pension benefits in clause 18 of the Collective Agreement, and how the same accrued to him. In casu, the Complainants have just left the claim to spccuJation and it is not the duty of this Court to speculate on what accrued pension benefits the Complainants are referring to or how they accrued to the Complainants. I agree ·with the Respondent's submission relying on this Court's recent decision in the case of Sydney Kalyati v FQMO Mining Division8 where it was held that:- "I must hasten to state here that it is clear that the above provision of the collective agreement places a duty on the Complainant to show that he exercised an option to join a new private pension scheme. In casu, the Complainant has not produced any evidence to show that he exercised an option to leave the previous pension scheme and joined a new private pension scheme. In any case, he admitted in cross-examination that he did not sign any documents for joining a new private pension scheme." BO • I I therefore find and hold that the Complainants have failed to prove on a balance of probabilities their claim for payment of full accrued pension benefits for the years served. The said claim is accordingly dismissed. Each party shall bear their own costs. Informed of Right of appeal to the Court of Appeal within thirty (30) days from the date hereof. Delivered at Solwezi this 2nd day o ovember, 2022. Hon. Just" · D. Mulenga HIGH OURT JUDGE ----~~~ . . 2 NOV 2022 -- Bl ..