Lungu v Lonrho Zambia Ltd (Appeal 182 of 2000) [2001] ZMSC 161 (16 August 2001)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 182 OF 2000 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: FAIDECY MITHI LUNGU APPELLANT AND LONRHO ZAMBIA LIMITED RESPONDENT CORAM: Ngulube, CJ, Chaila and Chibesakunda, JJS. On 3rd May and 16th August, 2001. For the appellant - F. Mudenda of, Hakasenke and Company For the respondent - N. K. Mubonda, of D. H. Kemp and Company JUDGMENT Ngulube, CJ, delivered the judgment of the Court. The Cases referred to:- 1. Marriot -v- Oxford and District Cooperative Society Limited (1970) 1 QB 186. 2. Standard Chartered Bank Zambia Limited -v- Peter Zulu and 118 Others (SCZ Appeal No. 59 of 1996). The appellant was employed in a secretarial position in the respondent company in 1982, becoming Executive Secretary to the Executive Chairman, 2 then one Mr. Thom Mtine. A new Board dismissed her, whereupon she sued the company in the Industrial Relations Court. That Court ordered reinstatement and directed there be no loss of status. Her position had since been abolished together with that of Executive Chairman and in an effort to implement the reinstatement the company gave her lower position secretarial jobs, but without loss of salary. Finally, she was transferred to a subsidiary. This case illustrated the difficulties of ordering reinstatement in a private conglomerate where personal relationships are important: She was cold shouldered and frustrated at every turn. She was made to do a typist’s sort of work even for lowly officials when once she had been the most senior secretary in the group. She became insubordinate and received warnings and a withholding of increment. In one instance, she refused to take notes at the behest of officers she considered her inferiors. Finally, she resigned. The appellant thereafter launched proceedings claiming damages for constructive dismissal. Her contention was that she was forced to resign because the company made it impossible for her to continue working for them since her Court - imposed reinstatement at a time when her former position no longer existed. She was no longer entrusted with any administrative responsibilities as before but was ma4e to work as a relief secretary and as a typist even to low ranking officials. She felt frustrated and humiliated and when in protest she refused to obey instructions to take notes given by an official she did not consider senior enough, she was suspended. Her increment was withheld. She was transferred to a subsidiary where she ended up doing a typist’s kind of work. She was distressed and finally resigned to put an end to the victimization, intimidation and humiliation which she felt she had been subjected to. It was argued below - and repeated here - that even the transfer to the subsidiary company without her consent constituted constructive dismissal; as did the failure to give her a position as senior as that of Executive Secretary to the Executive Chairman used to be. The leading case of MARRIOT -v- OXFORD AND DISTRICT COOPERATIVE SOCIETY LIMITED (1) was one of those cited on behalf of the appellant. That case concerned a reduction in rank or status treated as effecting a constructive dismissal entitling the aggrieved employee to treat the same as a repudiation of the contract by the employer and a constructive dismissal. The learned trial Judge found that the MARRIOT case was distinguishable in that, here, there was a reinstatement ordered by a Court at a time when, to the plaintiff’s knowledge, her former position no longer existed. The Judge considered that the plaintiff had agreed to accept a lower post. The Judge further found that, far from being frustrated by her superiors, it was the plaintiff who had a bad attitude resulting in her insubordination and uncooperative stance towards superiors she felt should be her juniors. It was held that there was no constructive dismissal on such facts. In this appeal, a number of grounds have been advanced. One was that the learned Judge ought to have found that the transfer to a subsidiary amounted to a transfer of the contract without the consent of the appellant, contrary to Section 35 of the Employment Act, CAP. 268, which requires transfer of service to another employer to be with the full informed consent of the employee. Our decision relied upon is STANDARD CHARTERED BANK ZAMBIA LIMITED -v- PETER ZULU AND 118 OTHERS (2). However, as Counsel for the respondent pointed out, the appellant here was seconded to the subsidiary and not transferred there. Thus, while she worked for the General Manager of the subsidiary, it was the holding company which awarded an increase of salary. Even her resignation letter was directed to the holding company. These were valid observations and we agree that there can be no parallel between this case and the STANDARD CHARTERED case where some branches of the bank were sold to anpther bank, complete with the staff who had not consented to such transfer of service. The ground of appeal in this respect cannot succeed. Then there were other grounds of appeal complaining against the finding that there had been no unilateral adverse variation to the appellant’s conditions of employment and the further finding that she had not been victimized or marginalized to such an extent that she had to resign. Another ground complained against the Court’s not finding that she had been so humiliated, so inconvenienced, and so mentally tortured from the time of her reinstatement that she was forced to resign. The Court had attributed the appellant’s woes to her own attitude which was reminiscent of a high-muck- a-muck; so that she considered some of the superiors as her inferiors. She already knew before she returned to the Company that the positions she and her former boss previously occupied had been abolished. As Counsel for the respondents submitted - citing our own decisions to this effect - this Court should be slow to upset findings of fact made by a trial Judge who has seen and heard the witnesses at first hand unless there is a very good reason for doing so. We cannot simply be urged to take a different view and come to a different conclusion. In truth, there is no basis upon which we can feel free to interfere with the decision below. I The appeal is dismissed; costs follow the event. M. M. S. W. Ngulube, CHIEF JUSTICE. M. S. Chaila, SUPREME COURT JUDGE. L. P. Chibesakunda, SUPREME COURT JUDGE.