Evaristo Kasongo and Ors v Swarp Spinning Mills PLC (Appeal 43 of 2002) [2003] ZMSC 150 (4 June 2003)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 43/2002 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: EVARISTO KASONGO AND TWO OTHERS APPELLANT AND SWARP SPINNING MILLS PLC RESPONDENT Coram: Lewanika, DCJ, Chibesakunda and Mambililima, JJS on 4th June 2002 and 4th June 2003 For the Appellant: For the Respondent: In Person Ms C Makungu of Makungu and Company ____________________________JUDGMENT____________________________ Chibesakunda, JS, delivered the Judgment of Court Cases referred to: 1. 2. Zambia State Insurance Corporation vs Serios Farms Limited SCZ J No. 6/87 Zambia Consolidated Copper Mines Limited vs James Matale SCZ No. Appeal No. 9/1996 In this appeal the Appellants who were the complainants before the Industrial Relations Court (IRC) are challenging the ruling by that court which followed a judgment delivered by that court in the year 2000 in the Appellants' favour. The Appellants after that judgment of the IRC went back to that court seeking the interpretation of that court's judgment. The IRC on the 27th of February 2001 delivered a ruling, which the Appellants are now challenging before us. Before the judgment of the IRC the appellants had lodged a complaint before the court complaining that they were unfairly treated. They complained that they had been dismissed wrongly on unsubstantial charges of absenteeism. According to their evidence, on each day each of the complainant, now the J2 Appellants, was absent from their work they had medical certificates authorizing them to be off sick. The court made a number of findings that: 1. On the days the Appellants did not report for work on account of their being sick, the Appellants followed the right procedures set out by the Respondent Company by obtaining sick reports and that those reports were endorsed by medical practitioners; 2. Because of the Respondents suspected that their employees inclunding the Appellants were abusing the system of getting days off upon presentation of the sick report, the Respondents wrote to hospital in question to register their displeasure and the hospital authorities undertook to check this possible abuse by being more careful in issuing sick reports to the employees of the Respondent Company; and 3. The Appellants' sick report was obtained not fraudulently or with connivance of medical practitioners. The court therefore found that the dismissals by the Respondent Company of the Appellants were wrongful. The Appellant had prayed for reinstatement. The lower court on the other hand held that, taking into account the nature of the organization the Appellants worked for, the reinstatement would not be appropriate and as such awarded the Appellant retrenchment packages in the alternative. The court ordered that in the retrenchment packages, the Appellants would be paid two months' salary for each year served plus three months' salary as damages for wrongful dismissal. The court also ordered interest at the rate of 20% from the date of the complaint to judgment date and thereafter 6% plus costs. The Appellants then went back to IRC seeking clarification as to what that judgment meant. J3 From the affidavits and submissions it was clear that the major point of contention at this time was which salary the court meant to be used to calculate the retrenchment packages for the Appellants. They contended that from their own interpretation of the court's awards, since their salaries did not remain static, from the date they are purported to have been dismissed up to the date of judgment, the court meant that there was a fiction of reinstatement up to the date of judgment and that the court must have meant that the calculations of the retrenchment packages would start from the date of judgment. Therefore the salaries to use in calculating those retrenchment packages were the salaries at the date of judgment. Their core contention is that the salary movements for the period between the dates when they were purported to have been dismissed and the date of judgment were to be taken into account in calculating retrenchment packages for each of the Appellants. The Respondent on the other hand maintained that the court had in mind the basic pay at the date of the purposed dismissal and that that was the pay exhibited - K180 600 00 for Evaristo Kasongo, KI 12 600 00 for Brilliant Lungu and KI 18 400 00 for Eddy Sikalangwe. The IRC clarified this point by holding that the salary, which was meant to be used, was the salary existing on the date of the purported dismissal. The court relying on the case of Zambia State Insurance Corporation vs Serios Farms Limited (1) held that salary movements between the date when the Appellants were purported to have been dismissed and the date of judgment were to be recovered by way of awarding interests. The Appellants are now challenging that decision. The Appellants argued one major ground, which is that the court erred in its ruling by declaring that salaries to be used in calculating retrenchment package had to be the one exhibited and existing at the time of the purported dismissals. Their core argument was that since the court found that the Appellants' dismissals were wrong, the best approach the court should have taken was to have reinstated the Appellants and then to have declared them redundant from the date of judgment. They furthermore contended that as the court found that their dismissals were not justifiable and that although reinstatement was not found to be appropriate remedy, the court should have used a fiction of reinstatement just for the purpose of calculating their retrenchment packages. According to them the order by the court over retrenchment packages should have been from the date of judgment. Otherwise dating that from the date of purported dismissal amounted to a denial to them of a meaningful package and as such a denial of justice. This argument they argued is fortified by the fact that the salaries in the Respondent Company did not remain static after their purported dismissal. They traced the increase from 1998 up to the date of judgment. The Respondent on the other hand in their written arguments maintained that this appeal was misconceived as all the arguments by the Appellants were anchored on findings of fact by the IRC. They referred to Section 97 of the Industrial and Labour Relations Act Cap 269 of the Laws of Zambia which says: "any person aggrieved by any award, declaration, decision or judgment of the court may appeal to the Supreme Court on any point of law or any point of mixed law and fact." They argued that this court should dismiss this appeal on that ground. On the rest of the arguments the Respondent responded that the lower court was correct in holding that the retrenchment packages had to be calculated from the date of judgment using the salary which existed at the time. They cited the case of Zambia State Insurance Corporation vs Serios Farms Limited (1) quoting Ngulube DC! (as he was then): J5 "We do have to not to mention however that the payment of interest is normally regarded as equivalent to an award of damages for the detention of in debt." arguing that the arguments on increments of salaries were not tenable. They referred us to the case of Matale vs Zambia Consolidated Copper Mines Limited and argued that a similar argument was rejected by this same court. They referred to the reasons the lower court stated in their judgment as to why the court below found that reinstatement would not be an appropriate remedy. However, they argued that if the Appellants had not been paid accrued leave days and repatriation according to Section 13 of the Employment Act, Cap 268, the Appellants had to be paid if it can be established that they were brought from places outside Ndola. We have considered the record of the proceedings before the lower court and have looked at the arguments before us. On the contention that all the arguments raised before us are arguments on findings of fact by the lower court we hold the view that is a correct statement. The lower court concluded that looking at the particular facts of the case reinstatement would not be appropriate. The lower court also concluded that the retrenchment packages had to be calculated with effect from the date of purported dismissals. These are findings of fact and as such this appeal does come within the ambit of Section 97 of the Industrial and Labour Relations Act. We therefore have no jurisdiction to entertain such an appeal from the IRC. Therefore the appeal is misconceived. We dismiss the appeal. However, the Appellants referred to some dues which have not been paid to them, dues such as repatriation and accrued leave days we order that these be paid as even the Respondents have no objections to these payments being paid to the Appellants. We uphold the lower court's judgment. - J6 - Since the process to this appeal had taken long we order no costs as we realize the Appellants have been out of employment for more than five years. D M Lewanika DEPUTY CHIEF JUSTICT L P Chibesakunda SUPREME COURT JUDGE I M C Mambilima SUPREME COURT JUDGE