Helen Besa Temba & 2 Others v Cavmont Bank Limited (SCZ 8 347 of 2015) [2019] ZMSC 93 (19 March 2019)

Appea l No. 93/2016 SCZ/8/347/20 BETWEEN: 1 9 MAR 2019 HELEN BESA TEMBA 1ST APPELLANT ASTRIDA CHOMBA WILOMBE JASEBA 2 ND APPELLANT BWANGA KAPUMPA 3 RD APPELLANT AND CAVMONT BANK LIMITE D RESPONDENT Coram: Hamaundu On 5 th March , 2019 and 19 th March , 20 19 , Ma lila and Kaoma , JJS . For the Appellants: N / A For the Respondent: Mr. R. Petersen - Chibesakunda and Company JU D GME N T Kaoma, JS , delivered the Judgment of the Court . Cases referred to : 1. Attorney General v Nachiz i Phiri and others -SCZ Judgment No. 10 of 2014 . 2 . Zambia Oxygen Limited and Anothe r v Paul Chisakula and oth e rs - SCZ Judgment No. 4 of 2000 3. Kitwe Ci t y Council v Will iam N'gun i (2005) Z. R . 57 4 . J e n ipher Nawa v Standa rd Bank Zambia Plc (2011) Z. R.1. 5 . Anthony Kh e tani Ph iri v Workers Compensation Con t rol Boa rd-SC Z Judgm e nt No . 2 of 2003 6 . National Mill ing Comp any Limited v grace Simataa and othe rs - SCZ Judgm e n t No . 21 of 2009 Leg islation refe rred to: 1. Statutory 2 . Min imum Wages and Condi ti ons of Employment Act , Cap 276 Instrument No. 119 of 1997, paragraph 8 J2 This 1s an appeal against a judgment of the Industrial Relations Court (IRC) which dismissed the appellants' claims against the respondent bank. The facts leading to this appeal are that the appellants were employed by the respondent on diverse dates between 1992 and 1997. They served on management conditions of service. The 1 s t appellant worked for seventeen years before she retired on 7 th August , 2014, upon attainment of the statutory retirement age of fifty five years . The 2 nd appellant worked for twenty two years before she resigned on 17 th August , 2014. The 3rd appellant worked for twenty one years before he retired on 10th March, 2010 also upon reaching the statutory retirement age of fifty five years. Normal retirement was provided for in clause 4(n)(iv) of the management conditions of service. On attainment of the statutory retirement age , an employee was entitled to a retirement package as per section 8 of the Employment Act Statutory Instrument No. 119 of 1997. It was agreed that the reference to section 8 of the Employment Act Statutory Instrument No. 119 of 1997 was in fact a reference to paragraph 8 of the Schedule to the said Statutory Instrument which stipulated that : • J3 "An employee who has served with an employer years and has attained months basic pay for each completed year of service : the age of fifty -five, shall be entitled for not less than ten to three that where an employer has established Provided approved by the Minister , the retirement accordance with such pension apply. " shall be paid in scheme, and this paragraph shall not benefits a pension scheme In January , 2007 t h e r espond ent established a n employer contributory pens ion scheme ca lled CCBL Pension Fund , which was approved by the Minist er of Labour and r eg istered with the Pens ions and Insura n ce Authority. Th e appellants wer e formall y info rmed of the establish m ent of the pe n sion schem e by letter dated 4 th Augus t, 20 11 whic h a lso stated th at th e Bank would d isch a r ge its lia b ility by transferrin g 10°/o annua l s a lary for eac h yea r in service of eac h memb er of st aff emp loyed befor e 1 st Janu ary, 2007 who were still in emp loyment to th e cu r r ent p ension scheme. Attached to the letter was a statement of transfer as at 3 1 st December, 2 00 6. Th e ap p ellants were requir ed at the bo ttom of the letter , to co n firm acce ptan ce of the transf er of serv ice. The appe llants were also a sk ed to sign a d ee d of consent to indi ca te th eir cons ent to join t h e p ens ion scheme a nd for their p ens ion to be paid according to the provisions of the pension scheme at their ret ir eme n t or a t th eir deat h to their d epe ndan ts . J4 The y did not sign the letters or deed of consent. However , the respondent implemented the pension scheme. The appellants continued in employment and upon their separation from the bank were paid benefits in accordance with the pension scheme rules. Unhappy with the calculation of th eir ben efits , th e appellants took out co urt action against th e r es pond ent in th e IRC. The 1 s L appellant filed h er notice of complaint on 7 th Nov ember , 2014. Her grounds of complaint were that on her retirem ent , she was paid benefits as per th e 2007 Pension Trust Scheme which did not tak e into account the accrued b enefits prior to its introduction ; and that she did not cons ent to join th e p ension scheme. Sh e asked th e cou rt to order the r es pond ent to pay h er cor r ectl y calcu lated terminal b en efit s a nd all du es in lin e with the management con dition s of serv ice and any other b en efits the co urt may order. The 2 nd ap p ellant filed her noti ce of com pl a int on 14 th November, 2 014. She asserted th a t without a n y notic e or co ns ent, th e res pond ent paid her a p ension whose calculations sh e did n ot agree with and which pension sch eme did not tak e into account the correct a cc ru ed b en efits prior to its introduction. She claimed that she did not consent to join the scheme and th e r es pond ent did not J. JS respond to her numerous requests as to how her pension was calculated so that she could compare with what she expected for her long service of 22 years. She too urged the court to order the respondent to pay her correct ly calculated benefits taking into account accrued benefits up until 2011 when the respondent introduced a new pension scheme and all dues in line with the respondent's management conditions of service. When the matter came up for commencement of trial the court took the view that the only issue to deal with was the consent for the pension scheme that was lacking in the matter and asked the parties to try an out of court settlement and if that failed the matter would then proceed in court on the basis of submiss ions without viva voce ev id ence as the issues involved interpretation of legal provisions. The parties were in agreement with the court. The court gave directions on how to proceed and also ordered th e consolidation of the two causes . Later , the 3 rd appellant and one Obed Kapesa (who has not appealed) app lied for leave to join the proceedings pursuant to Rule 32 of the Industrial Relations Court Rules. They asserted in their joint affidavit in support of the application that the respondent's - J6 p en s ion sc h em e reduced t h e ir r etirem en t b en e fits from 2 5°10 of on e's mon thl y p ay to 10 °10; and that th ey did no t c ons e nt to join th e p en s ion s ch em e . Sin ce th er e was no obj ect ion by th e r e sp ondent , th e a pp lica tion w as gr a nt ed . Howev er , th ey did not file an y d ocum ent s in supp ort of th e ir claim . Th e gis t of th e submi ss ions by th e a pp ellants was th at s ince t h ey did not cons e nt to th e transf er of th eir service to th e p en s ion sc h em e prior to 1st Janu ary, 2 007 ; and th ey did n ot s ign th e d ee d of co n se n t , th e r e spond ent forf e it e d its r ight to es t a blish t h e p e n sion sc h em e . Fu rt h er , as th ey wer e s ervin g on m anage m e nt co ndi ti on s whi ch entit led th em to thr ee m onth s' b as ic p ay for eac h ye ar serve d ; th e ir r e tir e m ent p ac k ag es we r e acc ruin g on th at b as is, an d by in tr odu cin g th e p en s ion s ch em e, th e r es p ond en t unil a ter al ly varie d th eir a cc ru e d ri ght to prosp ecti ve r et ir em e nt p ac k ages from 25°10 of an n u a l sal a ry to lO o/o of annu a l sal ary for e ac h yea r serve d. To s upp or t this argu m e n t th ey r elie d on th e cas es of Attorney General v Nachizi Phiri and others 1 an d Zambia Oxygen Limited and another v Paul Chisakula and others 2 whi ch dis cuss ed th e con se qu en ces of unil a t erall y alt erin g co nditions of s ervi ce of emp loyees to t h eir di sa dvan tage . J7 The respondent denied that the establishment of the pension scheme was a variation of the terms of employment because this was a term of the relationship between the parties. It was argu ed that the respondent was entitled to introduce a pension scheme to cater for benefits to be paid to management employees on retirement and sinc e the respondent did not vary the terms and conditions of employment, the appellants wer e members of the pension scheme and upon payment of their dues from the scheme; the y had been fully paid all amounts due to them. The respondent admitted that the app ellants did not sign th e deed of consent, but contended that in terms of clause 4(n)(iv) of th e manag ement conditions of service , the existence of th e pension scheme itself was for retirement benefits to be paid in a cc ordan ce with th e scheme and having imported paragraph 8 of St at utory Instrument No . 119 of 1997 into the terms of emplo yment , the r espondent was to be treated as any other emplo ye r to whom the statutory instrument applied. It was submitted that it could not have been th e intention of parliament that the employer was to be precluded from r elying on J8 the proviso to paragraph 8 if they did not have an approved p ens ion p lan at the date an emp loyee was engaged. It was further submitted that the appe llants were members of th e senior manage m ent team and t hu s in a stronger position than an ordinary employee. They were not uninformed sufferers of the respondent 's decisions and they nev er claimed that they had refused to join the scheme. Hence , it wou ld be unfair to later allege that they were never wi lling partic ipants in the pension scheme. It was also argued that as the right to establish a pension s cheme was already a term of the contract, there was no requirement at law that the emp loyees should consent to it. Thus , the fai lure by the appellants to give consent for the establishment of the pension scheme did not abrogate th e emplo yer's right to create the scheme . Th e case of Attorney General v Nachizi Phiri and others 1 was d istinguished on th e basis that th ere, there was an actual amendment to the co ntracts by the crea t ion of a term tha t did not exist while in this case there was no amendment at all. As to the 2nd appellant , it was submitt ed that she was not entit led to retirement benefits under the management conditions as she resigned and whi le she raised issue with comput ation of the J9 m oney transferred into h er pension accou n t, she did not de ny being a rnem ber of the scheme a nd at se paration sh e withdrew the contributions paid by the respondent to the pension sche1ne. Th e ca se of Kitwe City Council v William N'gun i3 was r elied on. Th e court identified th e first issu e for decision as whether by esta bli sh in g a pension scheme appr ove d by th e Minister the r e spondent u n ila te r a lly changed th e con diti ons of ser 'ice of th e ap p ellants . Of co urs e , th e court was al ive to the dec ision s on alteration of the co nditions of service without the express conse n t of the emp loyee . The co urt also consid ere d the res pond enf s argu1nent tha t the app ellants sh ou ld h a ve re ga r ded th ems elves a s red undanl wh~n th eir cond iti ons of serv ice wer e altered by the i:!:ltroduction of the pension scherne whic h t h ey did no t co n se nt to a:::1.d that the y ac qui esced to th e alte1·ation of their · co nditions of se rvice by conti nu ing to work und er .the 2007 pension sc he1n e: In effect, the court rou nd that th er e· wa~ no express co n sent · by the appellants to th e ne w p ens ion sc hem .e but a ppl ying th e ca s~ of Att o rney Gener a l v N'ach izi Phi ri a nd o th ers 1 , it h e]d that Lhe appe llar 1ts were at lib e rt y n ot to h ave cons id ered t h eir contra ct s as terminat ed whe n th eir condit ion s of servi ce were unilat erally ,; JlO changed without their consent by introduction of the pension scheme . However · the court considered ' the real issue for decision as int er pretation of claus e 4(n) (iv) of the managem ent conditions of service. The court's interpretation of the proviso in paragraph 8 was that imm ediatel y a n institution es t ablishes a pension scheme approved b y th e Min ister, that institution is ob liged to pa y retirement benefits in accordance with such pension scheme and in that case the payment of retirement ben efits based on three months' pay would not app ly. The co urt applied the case of Jenipher Nawa v Standard Bank Zambia Plc 5 where it was stated that wh ere ther e is a pension scheme approved by the Minis ter , the retirement benefits a re p aid in accordance with th at scheme and if the concerned employees were worried about th e terms of the scheme, it was up to them to enter int o n ego tiations with their employer if they wanted to cha nge the ru les of such scheme. Th e court op in ed that as the appellants opted to continue working, the ir option was to negoti ate th e te rms of th e pension sc h eme so as to acco mm odate their concerns. .. Jll Therefore , the court h eld that immedi a t ely the r espondent estab lish ed a p ens ion scheme a pprov ed by th e Minister , the r etirement b ene fits of the a pp ellants were to b e paid in accordance with that scheme only a nd th a t for th e period prior to the in trodu ctio n of the p en s ion scheme that had b een tak en ca r e of by th e letter dated 4 t h August, 2011. Th e court observed that in fac t the 1 s t a nd 3 rd appellants had accesse d their retirement benefits from the p en s ion fund and th e 2 nd a ppellant had b ee n r efunded the em plo ye r 's con tributions upon resignation . Fin a lly , th e court dismiss ed all of the claims. Aggrieved by this deci sion , the appe llants filed this a pp eal a dv a n cin g two gro unds namel y: 1. The trial court erred both the respondent immediately by the Minister, paid including of the pension in accordance those the retirement with that that accrued . scheme in established law and fact when that it held scheme approved benefits of the appellants were to be a pension scheme in the period prior to the and no other methods; introduction 2. The trial court erred both in law and fact when it held letter of 4th August , 2011, wherein would discharge its each year in service January, 2007 had taken care of the period prior to the introduction scheme. 10 % annual of each member of staff employed liability by transferring to the new pension the respondent scheme approved by the Minister, of the pension stated that that the it salary for before 1 st J12 The appe llants did not appear at the hearing of the appeal but had filed h eads of argument which we have taken into account. The grounds of appeal we r e argued together. Th e r espondent a lso responded to the ground s of appeal together. The arguments are to a large extent a r epetition of the subm iss ions made in t h e court below. Therefore , we shal l not restate them in detail. The content ion by th e a pp ellants is that in reaching the decision which is as sailed in ground 1, th e cour t ought to ha ve taken into acco unt the respondent 's letter of 4 th August, 20 11 wh ich gave the appe llants a n opportunity to accep t or refuse the transfer of service prior to 1 s t J an u ary, 20 07 , espec iall y that it is a court of substantial justi ce . Th ey r eit era t ed that non e of them acce pted this invitation and they were on ly formall y inform ed about the esta blishm ent of the pension sc h eme on 4 th August, 2 011. It was argue d that they were in essence in vite d to Join , retrosp ect ively , a p ension sc h eme estab lished four years ear lier and evid entl y , they were effec tiv ely prej u diced by a reduction of their termina l b en efits . They again cit ed th e cases of Attorney General v Nachizi Phiri and others 1 and Zambia Oxygen Limited and another v Paul Chisakula and others 2 . J13 We were u rged to give due recognition to the effect of the respondent's unilateral var iation of the basic term which had been applicable to the appellants' emp loyment and grant such relief as their circumstances demand. In contrast , the respondent's position is that the court did not err as a lleged by the appellants in the grounds of appeal . In fact , the respondent agreed with the court on the interpretation of paragraph 8 of Statutory Instrument No. 1 19 of 1997. Counsel for the respondent restated that the proviso in paragraph 8 was an express term of contract that the respondent could establish a pension scheme, and in do ing so, it did not vary th e terms of emp loyment but enforced a right accorded to it by contractual terms. That ther e was no requirement for the appellants to consent and lack of consent did not abrogate the right to creat e the scheme as expressly provided for in the conditions of servic e . An analogy was drawn from the case of Ant h ony Kh e tani Phiri v Wor k ers Compensation Control Board 6 where we held that th ere was no requirement in the law that consent was needed for the transfer of employment in the circumstanc es of that cas e . , J14 It was argued that the appe llants shou ld not seek to re ly on one part of paragraph 8 whi le glossi n g over the proviso; and that contrac tual terms m u st be rea d in their en tirety and given effect as such un less where su ch interpretatio n would result in ambiguity which is not the case h ere. Couns el again distinguished the cases of Attorney General v Nachizi Phiri and others 1 and Zambia Oxygen Limited and another v Paul Chisakula and others 2 , on th e basis that in thos e cases; there was an actual amendment to the contracts by the creation of terms that did not exist while in th e current case th ere was no variation as the employer invoked a term th at was a lread y in the contracts . It was submitted on the authority of th e ca s e of Jenipher Nawa v Standard Bank Zambia Plc 5 , that since the appellants h ad opted to continu e working, th ey shou ld have ente r ed into n egot iations with the respondent if they wanted to chang e the rul es of th e scheme. It was further argued that since the appe llants kne w about the establishment of the pension scheme as ear ly as 2 011 , they should hav e raised objection and cla imed red u ndancy b enefits. However , th ey chose to acquiesce to the establishment of t he s ch em e and JlS even contri b uted to the scheme. They cannot now contend that there was a uni latera l var iation or that they did not consent to the scheme. The case of National Milling Company Limited v Grace Simataa and others 7 was quoted to support this argument. For the period prior to the estab lishment of the pension scheme, it was argued that no prejudice was suffer ed by the app ellants because they were informed in the letter of 4 th August , 2011 on how the respondent would discharge its liability . The y did not object to the contents of the letter thereby accept ing th e contents thereof. Furthermore , they accessed their b enefits from th e pension fund upon retir em ent and upon resignation , r es pectiv ely . In h is oral a rgum ents , counsel emphasised that th e appellants had no accrued right to have their be n efits calcu lated in accordance with management conditions of service after establishment of th e p ension scheme since th e p a rt ies imported paragraph 8 of Statutory Instrum ent No. 1 19 Of 1997 into th e conditions of servi ce . He sp irit ed ly argued that had the part ies intend ed that unti l the introduction of the pension sch eme the appellants would b e entitl ed to accrua l of benefits a t 25o/o of annual sa lary or thr ee ' J16 months' pay for each year served, that should have been clearl y stated in the conditions of service. It was contended that the particular wording in paragraph has already been interpreted by this Court in the Jenipher Nawa 5 case and that that interpretation must be applied to this case . Counsel reiterated that there is no ambiguity in the wording of paragraph 8 or clause 4(n)(iv) of the managem ent conditions of service. Hence, th e agreement of the parties must be given effect as the y did not provide for an accrued right and the law does not pro vide for such a right where a p ension sch eme has b ee n created. As for the 2nd appellant, it was submitted that th e p ension scheme rul es gave h er an entitlem ent whi ch she was otherwise not ent itl ed to und er th e management conditions of service as s h e resigned and if she is challenging the p ension scheme then she is not entitl ed to anything at all. We h ave cons id er ed th e rec ord of appeal and the arguments by th e parti es. As we see it, the only issue in this appea l, is whether the appellants had an y accrued right to have their r etirement benefits for the period prior to the establishment of th e p ension scheme calcu lated on the b as is of three month s' pa y for eac h year f J17 served in light of the proviso in paragraph 8 of Statutory Instrument No. 119 of 1997 which was imported into their conditions of service. We notice that the parties are still arguing on th e qu est ion of the appellants not having consented to the establishment of the pension scheme. However , the court below resolved this matt er and th e grounds of appeal as framed, do not , in an y way, attack the decision of the court on that issue. The court below did consider , whether by establishing a pens10n scheme approved by the Minister , th e respond ent unilaterally ch anged the appe llant s' conditions of service a nd wh ether the appe llants acqu iesced to th e a lt eration of th eir conditions of employment by continuing to work und er the new ly introdu ce d p ension scheme. The court found that there was no express consent by the appe llant s to the new pension scheme and that the appellants we re at lib erty not to hav e consi d ered their contracts as terminated when th eir co nditions of emp loyment were unilater a lly changed without their conse nt by introdu ction of the p ension scheme. Ho wever, th e court took th e view that th e rea l iss u e was the interpretation of clause 4(n)(iv) of th e manag em ent conditions of ' J18 service and its reference to Statutory Instrument No. 119 of 1997. Certainly, had the respondent not established the pension scheme in January, the appellants' retirement benefits would have been computed on the basis of three months' basic pay for each year served. Likewise , if the appe llants had retired on the eve of the establishment of the pension scheme, their retirement benefits would have been calculated on the basis of that same formula. However , the respondent established the pension scheme on 1 st January , 2007 which was approved by the Minister and on 4 th August, 2011, formally informed the appellants, who were all senior managers , that it would discharge its liability by transferring 10 °/o annual salary for each year of service of each memb er of staff employed before 1 st January , 2007 into the current pension scheme. According to the court below, that took care of the p er iod prior to the es tablishment of the pension scheme. We understand that the 10 °/o was provid ed for in the pension sch eme rules. Now , the court's interpretation of Statutory Instrument No. 119 of 1997, was that an employee who has attained the age of 55 and has worked for not less than 10 years would be paid retirement dues based on three months' basic pay for each completed year of ' J19 service and that this formula can only be applied if an institution does not have a pension scheme approved by the Minister. As we said earlier, the argument b y the appellants was th a t since the y did not consent to the transfer of their service to th e p e nsion scheme and the y d eclin ed to sign the d ee d of consent, the respondent forf eite d its ri ght to es t a blish th e p ens ion scheme. Th e court took th e view that th e requir em ent is not wh et h er or not an employee consents to the establishment of the pension scheme; that it is the es tablishment itself that makes it mandatory to pa y r et irement ben efit s in acco rdance with the scheme . Wh at we understood the court as saying is th a t the emplo yee's co n sen t is not n ecessary, m ea nin g it acce pt ed that th e failur e by th e a pp ellants to give co nsent for the esta blishm ent of the p ens ion sc h em e did not a bro ga t e th e emplo ye r' s ri ght to cr eate the scheme. Clear ly, there w as no requir em ent in the proviso in p arag r a ph 8 of Stat utory Instrum ent No. 119 Of 1997 for emplo yees to co ns ent to the es tablishment of a p ension scheme and th ere was no such pr er equisit e in clause 4(n)(iv) of the management conditions of service. It is also cl ear that the ri ght to establish a p en s ion scheme was incorporat ed into the conditions of servi ce by importin g ... - J20 paragraph 8 of Statutory Instrument No. 119 of 1997. As we hav e said earlier the court's decision on this point has not been a ssailed . Furthermor e, the court's understanding of th e proviso in par a graph 8 wa s that immediat ely an instituti on est a blish es a p ension sch em e which has b ee n approv ed by th e Minist er , th e in s titution is obli ge d to p ay r etirement b en efits in ac cord a n ce with su ch p ension s ch em e . Th er e is no flex ibilit y, th er e is no oth er m ethod and in su ch cas e th e pa ym ent of r etir em ent b en efit s b a sed on three months ' pay would not appl y. We cannot fault this int erpret a tion by th e court as it is on point . Th e a pp ellants ' ar gum ent is th a t th e court sh ould h ave tak en int o acc ount th e lett er of 4 th Augu st , 2 011 whi ch gave th e a pp ella nt s a n oppor tunit y to ac cept or r efu se th e tr a nsf er of serv ice p ri or to 1st J a nu ary , 2 00 7. We are s at isfied th a t th e court was a live to th e cont ents of th a t lette r ju s t as it was a live t o th e a pp ellan ts ' argu m ent th a t by not cons enting to th e tr a nsf er to th e p ensi on sc h em e, th e pro viso in p a r ag raph 8 did not appl y to th em and th ey should , therefore , b e p a id terminal dues at thre e month s ' p ay for eac h yea r se rved. f V J21 In the Jennifer Nawa 5 case, which the court below followed, an argument was made that the benefits under the pension scheme were inferior to the conditions contained in the Minimum Wages and Conditions (General) Order. In that case, the pension scheme was established before the General Order was passed but the wording of the paragraph which was discussed is the same as in the current case. We stated that even if it was assumed that Cap 276 applied to the appellant, where there is a pension scheme approved by the Minister, the retirement benefits are paid in accordance with that scheme and it was up to those affected members of a pension scheme to enter into negotiations with their employer if they wanted to change the rules of such schemes. In the present case, the establishment of the pension scheme was in the contemplation of the parties when they imported paragraph 8 of the Statutory Instrument into the management conditions of service. We are inclined to agree with the respondent that if, indeed, it was the intention of the parties that the appellants should be entitled to accrued benefits at three months' basic pay for each year served for the period before the establishment of the t J22 pension scheme, they ought to have included such provision in the conditions of service. We cannot assume, in the absence of evidence to the contrary , that clause 4(n)(iv) of the management conditions of service did not capture the real intention of the parties. As rightly submitted on behalf of the respondent , this was a contractual term which bound the parties and must be read in its entirety and not piecemeal. We are satisfied that there is no ambiguity in this clause. We must add , that altho ugh the appe llants claimed that they were not aware of the existence of the pension scheme until 4th August, 2011 and that they were not members of the scheme , the record shows , at least in the case of the 1 st appellant , that the issu e of the employer's 10°/o pension contribution came out in th e promotion letter dated 15th October , 2009 at page 36 of the record , and in the remuneration packages at pages 41 and 55. For the 2 nd appellant, she complained about the calculation of the pension money that was put in her pension account in several correspondence with the respondent but she never claimed that sh e was not a member of the pension scheme. Thus , her assertion in the notice of comp laint that the respondent without any notice or J23 consent paid her a pension whose calculations she did not agree with is not true as she was aware of her membership of the scheme. With regard to the 3rd appellant as we said earlier on he did not file any documents to support his claim. In any case, the appellants were by their own admission formally informed about the establishment of the pension scheme in 2011; contributions were made on their behalf by the employer from 2007 under the rules of the pension scheme; and they all accessed their benefits from the pension scheme upon retirement an d resignation , respectively. We agree that they acquiesced to the alteration of their con ditions of service by continuing to work under the new pension scheme when they could have demanded that they had been terminated by th e respondent's co ndu ct. As h eld by the cou rt below, as the appellants opted to continue working after the y became aware of the ex ist en ce of the pension scheme and how the responde nt int end ed to disch a rge its liability for the period prior to 1 st January, 2007, their option was to negotiate the terms of the pension scheme so as to acco mmodat e their concerns and not seek for a better package under the management conditions of service. J24 Although we sympathise with the appellants that they ended up being disadvantaged after the establishment of the p ension scheme, we do not see how we can fault the court be low for arriving at a decision supported by the law and by a decis ion of this Court. As we conclude we wish to state that it is quite sad that the pension scheme provided for conditions that were inferior to what the appellants would have earned had the pension schem e not been established . We implore those that are tasked with the responsibility to approve pension schemes to look into such issues seriously , so that long serving employ ees are not disadvantaged. All in all, this appeal fai ls and is dismiss ed . In the circumstances of this case, we mak e no order as to costs. E. M. ~ SUPREME COURT JUDGE ALILA ME COURT JUDGE SU