Konkola Copper Mines PLC v Kanswata (Appeal 91 of 2002) [2003] ZMSC 143 (2 December 2003)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 91 OF 2002 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: KONKOLA COPPER MINES PLC APPELLANT AND CHIYENI KANSWATA RESPONDENT CORAM: Chirwa, Chibesakunda and Silomba JJS on 4th December 2002 and 2nd December 2003 For the Appellants: For the Respondent: Mrs. A. Patel Associates with M. Ndulo, Legal Counsel, KCM Mr. M. Chitabo, Chitabo Chiinga Associates J U DGM ENT Chirwa, J. S. delivered judgment of the Court: - Cases referred to: 1. 2. 3. ZAMBIA NATIONAL BROADCASTING CORPORATION V TEMBO AND OTHERS [1995-97| Z. R. 68 ZAMBIA AIRWAYS CORPORATION V GERSHOM MUBANGA [1990-92) Z. R. 149 FRANCIS V MUNICIPAL COUNCILLORS OF KUALA LUMPUR [1962J 3 All E. R. This appeal arises from the successful action by the respondent CHIYENI KANSWATA, in the Industrial Relations Court in which he sued the appellant, KONKOLA COPPER MINES PLC, for wrongful dismissal from his employment. The Industrial Relations Court upheld his complaint and ordered his reinstatement “with full benefits including the wages for the period that he had been out of employment". : J2 : There are some salient facts not in dispute. The respondent was first employed by ZCCM and upon its privatisation, the appellants took over the assets of ZCCM and the respondent continued in his employment as an Industrial Engineer. The respondent was also the local chairman for the Mine Workers Union. There is a collective agreement between the appellant and the Union of which the respondent was the local chairman. During September and October 2001 there were a number of underground accidents and in particular at the burial of Mr. Kafongo one of the victims of the accidents, the respondent addressed the mourners as a Union Leader decrying the accident rate and told the mourners that as a Union it had been decided that all underground workers should assemble the following day at the shaft bank of No. 1 shaft so as to be addressed by Management and Union on measures taken to curb the accidents. If is also agreed that the miners did assemble to be addressed by the Management and Union Officials. However, it appears the Management was not happy with the address, by the respondent, of the mourners at the graveside at the burial of Mr. Kafongo. As a result of this displeasure the respondent was charged with a number of offences, namely: (a) Inciting workers not to go underground on 23rd October 2001 which was tantamount to telling them to strike; (b) Defaming the company by telling people at the burial, particularily the women that their husbands would continue to die in the company (KCM); ( c) Failing to report to the general offices as instructed. : J3 : If is also a common fact that the respondent failed to exculpate himself and also failed to attend the hearing of the disciplinary proceedings and in the absence of exculpatory statement and absence of the respondent at the disciplinary hearing, the committee found the charges against the respondent proved and recommended his summary dismissal. His appeals as provided for under his conditions of service were unsuccessful. It is from the unsuccessful appeal against his dismissal that he lodged a complaint in the Industrial Relations Court under Section 85 of the Industrial and Labour Relations Act. From the evidence before it, the Industrial Relations Court found as a fact that when the respondent addressed mourners at the burial of Mr. Kafongo, he addressed them in his capacity as Branch Chairman of the Mineworkers Union of Zambia and that he legitimately raised the issue of the welfare and safety of the workers. The court further found that although the respondent was over zealous when he asked workers to assemble at the shaft bank, he was still carrying out legitimate Union functions and as such he could not be punished for any acts done as a Union Leader in terms of Clause 31 of the Collective Agreement between the appellant and the Union to which the respondent was the Branch Chairman. Having so found, the court then concluded that the dismissal of the respondent was wrongful and ordered his reinstatement from the date of his dismissal with full benefits and the benefits were to be paid with 20% interest up to date of judgment and thereafter 6%. The court also awarded costs to the respondent. It is against the whole judgement that the appellants appealed to this court. The memorandum of appeal has four grounds of appeal which were that: - : J4 : (1) The court below erred in low and in fact in holding that the appellant had no authority to discipline the respondent in the circumstance of this case; (2) The court below erred in law and fact in not making a decision on the charge of failing to report to Head of Human Resources as instructed; (3) The court below erred in law and in fact in ordering reinstatement in the circumstances of this case; (4) The court below erred in law and in fact in holding that the submission of the appellant amounted to giving it the jurisdiction. In arguing these grounds of appeal, which were supplemented by detailed written heads of argument and authorities, appeal grounds 1 and 3 were argued together as they were interrelated. Grounds 2 and 4 were argued separately. For the respondent, there were also filed detailed written heads of argument. In dealing with this appeal, we will deal first with ground 4 which relates to jurisdiction of the court to entertain a complaint filed out of time. In arguing this ground of appeal, it was submitted that the provisions of Section 85 (3) are substantive law and not mere procedural and failure to comply with it amount to a fundamental breach that cannot be waived by acquiescence by the party not in breach. It was submitted that Parliament included the limitation period so as to limit the litigation period and that in the present case, the respondent was dismissed on 25th October 2001 and his appeals under the disciplinary code ended on 2nd November and his complaint was lodged in the court on 14th December 2001. it was submitted that as there was no leave of the court to file the complaint out of time, the court had no jurisdiction to entertain the action. : J5 : In answer to this ground of appeal, it was submitted that since the court went ahead to hear the complaint, it means that it had granted an extension of time within which to lodge the complaint. In the alternative, it was argued that the complaint was filed within the stipulated period as the last available appeal under the Disciplinary Code was determined and communicated on 15th November 2001 and time under the Act started running from 16th November 2001 and the complaint was filed on 14th December 2001 which was within the 30 days limit. In looking at Section 85 (3] we have to look at the effect of its non-compliance. It does not extinguish the right, it merely suspends it and the court, on application, can revive it. As such it cannot be said to be substantive law, it is procedural and non-compliance of the same is not fatal, it can be cured. If the intention of legislature was to bar any action after 30 days that would have made such an action statute barred and rules of pleading demand that such a statute bar must be pleaded. It was not pleaded in the present case. Further, even on procedural point, this should have been raised at the beginning of the trial and not in submissions. In any event, we agree that for the purposes of Section 85 (3) the occurrence of the event is not when the dismissal was communicated, it occurs when the last appeal process has come to an end as provided for under the Disciplinary Code. In the present case, the final appeal was communicated on 15th November 2001 and the complaint was filed on 14,h December 2001 and in terms of Section 35 (a) of Interpretation and General Provisions Act, Cap. 2 time started running from 16th November 2001. The complaint, in the present case, was therefore filed within the occurrence of the event and there was no need for the court to extend time. This ground of appeal is dismissed. : J6 : We will now deal with grounds 1 and 3 as they were argued together. In ground one it was said that the court below erred in law and in fact in holding that the appellant had no authority to take any disciplinary action against the respondent because he was conducting his Union functions. The gist of the arguments in this ground of appeal was that the conduct of the respondent was illegal in that his speech and appeal to miners who were mourning their friend resulted in work stoppage without following the established procedure under the Industrial and Labour Relations Act and the Collective Agreement. It was further argued that in the present case disciplinary action was taken against the respondent but he never responded and he cannot claim protection under the circumstances especially that the local branch of the Union never supported him. In ground 3, it was submitted that the court erred in ordering reinstatement of the respondent under the circumstances of the case and that cases such as ZAMBIA NATIONAL BROADCASTING CORPORATION V TEMBO AND OTHERS (1) and ZAMBIA AIRWAYS CORPORATION LTD. V GERSHOM MUBANGA (2) should have been followed instead of ordering reinstatement. In answer to these grounds it was submitted in respect of the 1st ground of appeal that the court below was on a firm ground in that it is provided under Collective Agreement that the appellant would take no disciplinary ACTION against or victimize any shop steward or Union official because of carrying out legitimate duties of the Union. If there was to be any disciplinary action, if was by the Union against its Union leader and not the appellant. In considering the 1st ground of appeal, if it has not been drawn to the attention of Union Leaders, let it be known that Union leaders are also subject to the disciplinary code ruling at their places of work. If : J7 : any action is taken against them, they must respond by giving reasons for their actions. If they seek protection under the Industrial and Labour Relations Act or Collective Agreements for whatever they do as Union leaders they must respond stating their reliance on the Act or Collective Agreement for their action as Union leaders. We note with dismay in the present case that the respondent totally disregarded the disciplinary code by disregarding any communication contemptuously. This does not reflect well as a Union leader, Chairman for that matter. Such indiscipline from Union leaders does not bring industrial harmony; neither does it promote discipline in any industry. Be as if may, in the present case, the court found as fact that the respondent’s address to the mourners was in his capacity as a Union leader, although he was over zealous. The court did find as a fact, that as a Union leader he was expressing concerns over the underground accidents on the Mine and he wanted the Management and Union to address the Miners to assure them of safety measures taken to curb the accidents. We have found it extremely difficult to fault the finding that the respondent addressed the mourners in his capacity as Branch Chairman of the Union. We would therefore dismiss the 1st ground of appeal. Coming to the 3rd ground of reinstatement, we feel this can be dealt with together with ground number 2 on the failure of the Court to decide on the appellants failure to report to Head of Human Resources as instructed. It is a fact that the respondent never reported to the Head of Human Resources as instructed. No reason was advanced for his failure. This is one of the reasons taken against him in the disciplinary action to which he never responded. It is the law that a court must adjudicate on all issues brought before it. We do not think that, if the court considered this issue it would have come to the conclusion that the punishment would have been dismissal. In this regard, the failure by : J8 : the court to consider the effect of the respondent’s failure to report to Human Resources Head was a misdirection. In awarding remedy of reinstatement, the guidelines in the case of FRANCES V MUNICIPAL COUNCILLORS OF KUALA LUMPUR (3) are very important. Also to take into account the employees’ conduct and the possible relationship between the employer and the employee have to be considered. The conduct of the respondent in this matter leaves much to be desired of as a Union leader. His total disregard of disciplinary procedure clearly shows his indiscipline and it cannot promote industrial harmony. We also note that the judgment of the court below was stayed by the order of the court on 6th May 2000 and it cannot be in the best interest of the industry. The respondent had shown his indiscipline character. Although there might have been nothing wrong with his work, but as a leader in the Union he is likely to be a source of discord and we are of the opinion that this is not a proper case to order reinstatement. To this end, we quash the order of reinstatement; in its place we order that the respondent be paid 24 months of his basic salary at the time of his dismissal. The said sum shall carry interest at 20% up to to day and thereafter 8% until paid. The outcome of the appeal is therefore that the finding of wrongful dismissal is confirmed and the respondent is awarded 24 months his basic salary at the date of dismissal. The said sum will carry 20% up to date of this judgment and thereafter 8% until paid. Each party will bear its own costs. D. K. CHIRWA SUPREME COURT JUDGE L. P. CHIBESAKUNDA SUPREME COURT JUDGE S. S. SILOMBA SUPREME COURT JUDGE