Michael Kahula v Finance Bank Zambia Ltd (Appeal 96 of 2012) [2014] ZMSC 246 (24 July 2014)

JI IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA/NDOLA (Civil Jurisdiction) APPEAL NO. 96/2012 BETWEEN: MICHAEL KAHULA AND APPELLANT FINANCE BANK ZAMBIA LTD RESPONDENT Coram: Chibesakunda, Ag. CJ, Hamaundu, JS and Lengalenga Ag. JS, on 4th March, 2014 and 24th July, 2014 For the Appellant: For the Respondent: Mr. L. Kasula of Messrs. Leonard Len and Partners Mr. A. Roberts of Alfred Roberts and Company and Mr. P. S Chilembo, Assistant Legal Counsel, Finance Bank JUDGMENT Chibesakunda, Ag. CJ, delivered the Judgment of the Court. Cases referred to: 1. Western Excavating (ECC) Ltd v. Sharp (1978) AU ER 173; 2. Peter Muziya v. Finance Bank Appeal No. 77 of 2007; and 3. Jennifer Nawa v. Standard Chartered Bank Zambia Plc Appeal No. 34/2008 (unreported); and 4. Chilanga Cement Plc v. Kasote Singogo (2009) ZR 122. Statutes referred to: 1. Industrial and Labour Relations Act, Cap 269 of the Laws of Zambia; 2. Minimum Wages and Conditions of Employment (General) Orders, 1997; 3. Minimum Wages and Conditions of Employment (General) Orders, 2002; and 4. Halsbury’s Laws of England, 4th Edition, Volume 16, 2000 Reissue. J2 This is an appeal against a judgment of the Industrial Relations Court, delivered on 30th November, 2011. The judgment followed a Complaint, and supporting Affidavit, filed by the Appellant, on 20th December, 2010, on the following grounds: a) that the actions of the senior officers from the Respondent were in actual fact amounting to constructive dismissal and the said actions were irregular and done in bad faith and with malice; and b) that the refusal to pay the complainant his separation dues for the period 1988 to 1999 and benefits based on early retirement was illegal. The Complainant sought the following reliefs: 1. payment of separation dues for the period between 1988 to 1999 and benefits based on early retirement; 2. damages for constructive dismissal; and 3. costs, interest and any other relief the Court could deem fit. On 2nd February, 2011, the Respondent filed an Answer in which it opposed the Appellant’s Complaint. J3 The evidence, which is on common ground, is that the Appellant was employed by the Respondent, on 9th December, 1988, as a Clerk. He rose through the ranks and on 28th May, 2008, he was promoted to the position of Manager, Branch Operations. As Manager, he enjoyed the Terms and Conditions of Service for Management Staff. He reported to, and was supervised by, the Senior Manager, Branch Operations who, at the time, was a Mr. Chisupa. He in turn supervised several Assistant Managers and other officers of the Respondent. In support of his case, the Appellant gave viva voce evidence. He did not call any other witness. The essence of his testimony was that he left the Respondent Bank because of the conduct of the Respondent towards him which, according to him, rendered him constructively dismissed. He told the Industrial Relations Court that six months after he moved to Operations Department, Mr. Chisupa was replaced with a Ms. Sylvia Beenzu Madawaki (RW1). That RWl’s attitude towards the Appellant was not good. That RW1 reduced the Appellant’s job responsibilities by assigning some of the duties to Assistant Managers, who were promoted to the position of Manager, Operations. The Appellant went on to testify that later on, the Respondent started transferring him from department to department. That in June, 2010, by a letter authored by the Director Human Resource and the Executive Director, he was transferred from Operations J4 Department to Credit Department. That the said transfer was verbally revoked by a Mr. Ellis who told him to revert to Operations Department. That, however, he later received a phone call, from the Director Human Resource, informing him that he had been transferred to Special Projects. That before he could report to Special Projects, the said transfer was also revoked. That in September, 2010, he received a letter transferring him to Risk Department. That two days before he could report to Risk Department, he was told to instead report to Human Resource Department. It was the Appellant’s further testimony that on 22nd September, 2010, he handed in a ‘Notice of Early Retirement’ because, as a result of the aforementioned transfers, he felt that he was no longer required by the Respondent. The ‘Notice of Early Retirement’ was couched in the following terms: “C/O Finance Bank (Z) Ltd P. O Box 37102 LUSAKA 22/09/10 The Director Human Resource Finance Bank (Z) Ltd Head Office LUSAKA Dear Sir, NOTICE OF EARLY RETIREMENT J5 I wish to give notice of early retirement with immediate effect. The Bank is hereby authorized to deduct one month’s salary from my terminal benefits in lieu of the required one month notice. I wish to thank management and staff for the 21 years 9 months of unbroken service with the Bank. Wish Finance Bank all the best. Yours faithfully, Kahula Michael (signed)” The next day, 23rd September, 2010, the Respondent replied to the Appellant’s letter as follows: M23rd September, 2010 Mr. Michael Kahula Finance Bank Zambia Limited Head Office, Operations LUSAKA Dear Mr. Kahula, RE: NOTICE OF EARLY RETIREMENT We refer to your letter dated 22nd September, 2010 on the above subject. Kindly be advised that your request does not comply with the provisions of Clause 32.5 of the Management Conditions of J6 Service. Management has, therefore, accepted your request as a resignation with immediate effect and by copy of this letter, the Director Finance (Salaries Section) is requested to delete you from the payroll with effect from 22nd September, 2010. Since you did not give the required one month’s notice, you will be required to pay the Bank one month’s salary in lieu of notice. Further we have attached a clearance form that should assist you clearing from the Bank. Note that you will not be paid your dues until you complete the clearing process. By Copy of this letter, the Director Finance (Salaries Section) is advised to pay you your full and final terminal benefits less any amount that you may owe the Bank. You are advised to handover any official documents and property that may be in your possession. On behalf of Management, we wish to thank you for the contribution you have made to the Bank during your service period and wish you well in your future endeavours. Yours sincerely, Signed Lutato K. Nyendwa Director Human Resource Signed Rex Ellis Executive Director Retail Banking & Operations” The Appellant’s further testimony was that after the Respondent treated his ‘Notice of Early Retirement’ as ‘resignation’, it only paid him pension benefits for the period he worked from r ' J7 1999 to 2010. That the Respondent did not pay him benefits for the period he served from 1988 to 1999. In its defence, the Respondent called two witnesses, RW1, the Respondent’s Assistant Director - Operations; and Mr. David Kachepa (RW2), the Respondent’s Acting Director, Human Resource. RW1 told the trial Court that when she moved to Operations Department, the Appellant’s performance was very good. That this made her recommend him for promotion from Assistant Manager to full Manager. RW1 went on to testify that, however, on 3rd August, 2010, when the Appellant was tasked to go to the Respondent’s Sesheke Branch, to attend to some urgent matter, he delayed his departure by two days despite having been instructed to start off on that same day. That this prompted her to charge him for the disciplinary offence of ^unsatisfactory work performance’ for which he was given a verbal warning after a disciplinary hearing. That this led to the deterioration of the working relationship between her and the Appellant. That consequently, the Appellant requested to be transferred to another department. As for RW2, his evidence, in brief, was that at the time of exit, the Appellant was Manager- Resource Pool and Performance Agreements for all Branches. That the Appellant had initially requested to be transferred from Operations Department to Credit Department but his request was rejected on the ground that he lacked the requisite competence to work in Credit Department. That J8 subsequently, the Respondent made efforts to move him to Risk Department but there was no suitable vacancy for him. That the Appellant was finally transferred to Human Resource Department but because there was no office immediately available for him, he tendered his ‘notice of early retirement’ the following day. It was RW2’s further testimony that under the Respondent’s terms and conditions of service, early retirement was supposed to be done by way of an application and not by means of notice of retirement. That this was why the Respondent treated the Appellant’s notice as resignation. RW2 went on to testify that the Appellant was not paid benefits for the period 1988 to 1999 because before 1999, there was no Pension Scheme in place. That prior to 1999 employees, that separated from the Respondent, were paid on the basis of the Minimum Wages and Conditions of Employment Act. That after the introduction of the Pension Scheme, the Minimum Wages and Conditions of Employment Act became inapplicable. That those who retired after 1999 could not be paid any benefits for the period they served prior to 1999, because the Respondent had not come up with a criteria for computing such benefits. On the basis of the foregoing evidence, the Industrial Relations Court held that the reduction in the Appellant’s duties and the deterioration in his working relationship with RW1, were not so J9 significant as to establish that the Respondent no longer intended to be bound by its contractual obligation to maintain him in his position as Manager. With regard to the claim for retirement benefits for the period from 1988 to 1999, the Industrial Relations Court held that since the Appellant was similarly placed as Ms. Mundia and Mr. Njolomba, he was entitled to be treated in the same manner the duo was treated. The trial Court accordingly held that the Appellant was entitled to gratuity payment of three months’ basic salary for each year he served from the date he was employed to the date he joined the Pension Scheme. It ordered that the said gratuity must be computed on the basis of the salary he earned just before joining the Pension Scheme. It is against the foregoing holdings that the Appellant has appealed to this Court raising the following grounds: 1. that the trial Court erred at law and in fact when it found that the unconsummated transfers of the Appellant to the tune of 5 times in a period of three months did not amount to constructive dismissal; and 2. that the trial Court erred at law and in fact in holding that the Appellant be paid gratuity payment of three months’ basic salary for each year served from the date of getting employed by the Respondent in December, 1988 to the date he joined the Pension Scheme in October but based on the salary earned just before he joined the Pension Scheme. J10 The Respondent has also cross-appealed on the following ground: “that upon making a finding that the Appellant did not qualify in terms of section 8 of the Minimum Wages and Conditions of Employment (General) Orders 1997, the trial Court erred in law and fact by nonetheless proceeding to award the Appellant benefits as defined by the aforementioned law on the basis of two (2) former employees of the Respondent, i.e. Ms. Inutu Mundia and Mr. David Njolomba who were both discharged on medical grounds.” On 21st February, 2014, the Respondent filed a preliminary objection pursuant to rule 19 of the Supreme Court Rules, Chapter 25 of the Laws of Zambia. However, when the matter came up before us, Counsel for the Respondent, Mr. Robert and Mr. Chilembo, abandoned the said objection. In support of his two grounds of appeal, on 13th February, 2013, Counsel for the Appellant, Mr. Kasula, filed written heads of argument. On 19th February, 2014, Counsel filed further written heads of argument and a response to the Respondent’s cross­ appeal. when he appeared before us, Counsel augmented his filed written heads of argument by way of viva voce submissions. The crux of Counsel’s submissions, in support of ground one, is that the trial Court erred when it held that the fact that the Jll Respondent transferred the Appellant, five times within a space of three months, did not amount to constructive dismissal. Counsel canvassed the view that the fact that the Appellant was finally transferred to Human Resource Department, to take up a newly created position of Manager Resource Pool, without giving him an office, was sufficient to establish constructive dismissal. According to Counsel, the Appellant’s claim that he had been constructively dismissed is further buttressed by the fact that RW1 stripped him of almost all his job responsibilities. According to Counsel, other findings of fact by the Court below, from which constructive dismissal could have been inferred, are that there was a deteriorated working relationship between the Appellant and RW1; there was a reduction in the Appellant’s duties; and the Appellant was transferred many times within a short period of time. On the authority of the case of Western Excavating (ECC) Ltd v. Sharp/1) and the Halsbury’s Laws of England, 4th Edition, Counsel urged this Court to deduce constructive dismiss from the foregoing findings of fact. With regard to ground two, we must state, from inception, that this ground is a covert attempt by the Appellant, to circumvent a Ruling delivered by Wanki, J, dismissing an application by the Appellant, under Cause No. SCZ/8/107/2012, to adduce further evidence on appeal pursuant to Rules 48(1) and 68(1) of the Supreme Court Rules, Chapter 25 of the Laws of Zambia. The J12 Appellant wanted to adduce evidence allegedly showing that Mr. Njolomba was paid benefits on the basis of the last salary he earned just before he was retired on medical grounds. In dismissing the application, Wanki, JS, held that the issue of David Njolomba was known before the Appellant even lodged his Complaint. Wanki, JS further held that with diligence, the evidence that the Appellant sought to introduce, at the appeal stage, could have been found and adduced during the trial. Accordingly, we hold that we cannot entertain ground two. We dismiss it forthwith. We now turn to Counsel for the Respondent’s submissions in opposition to ground one. The heads of argument filed by Counsel relate to the Respondent’s cross appeal. Counsel, however, advanced viva voce submissions in opposition to ground one. The gist of Counsel’s submissions is that the findings attacked by the Appellant are matters of fact. On the authority of the case of Peter Muziya v. Finance Bank/2), Counsel submitted that the findings of the Court below were amply supported by the evidence before it. Counsel went on to argue that when the Respondent transferred the Appellant from one department to another, it acted within the powers conferred on it by clause 4.1.4 of the Terms and Conditions of Service for Management Staff. J13 ■ Counsel further submitted that while the Appellant had a sour relationship with RW1, he did not have a bad working relationship with the Respondent. Counsel canvassed the opinion that it was because the Appellant had a sound relationship with the Respondent that it accepted his request to move from Operations Department. Counsel contended that the determination by the Respondent, to find a suitable position for the Appellant, is demonstrated by the fact that it created a new position of Resource Pool and Performance Manager for him. In Counsel’s view, the real reason that made the Appellant to resign was that he had found another job with Eco Bank. That this was why only three weeks after his resignation, the Appellant started working for Eco Bank. Counsel contended that the Appellant did not, therefore, establish constructive dismissal. With regard to the cross appeal, Counsel filed written heads of argument, on 21st February, 2013, and further written heads of argument on 23rd February, 2013. The gist of Counsel’s submissions was that upon making a finding that the Appellant did not qualify to receive retirement benefits under the Minimum Wages and Conditions of Employment (General) Order, 1997 (hereinafter referred to as “the Minimum Wages and Conditions of Employment Order”), the trial Court should not have proceeded to award the Appellant benefits on the basis of Ms. Mundia and Mr. Njolomba, because, unlike the Appellant, the duo were discharged on medical grounds. Counsel argued that Ms. Mundia and Mr. Njolomba fell J14 under a totally different category, which was specifically provided for under paragraph 10 of the Minimum Wages and Conditions of Employment Order. Counsel proceeded to submit that the case of Jennifer Nawa v. Standard Chartered Bank Zambia Pld3>, is an authority for the legal position that the Minimum Wages and Conditions of Employment Order did not apply to employees whose employers had established a Pension Scheme. Counsel submitted that the fact that the Respondent paid some of its employees, who were discharged on medical grounds, under the Minimum Wages and Conditions of Employment Order, did not automatically extend the application of that Order to other employees of the Respondent. In opposing the cross appeal, Counsel for the Appellant relied on his further heads of argument, filed on 19th February, 2014, which he augmented with viva voce submissions. According to Counsel, the Respondent’s own witness, RW2, told the Industrial Relations Court that the Appellant was entitled to be paid in accordance with the Minimum Wages and Conditions of Employment Order. We have carefully considered the evidence on the record of appeal, the submissions by Counsel for both sides and the judgment appealed against. In our view, there are only two issues on which we must decide in order for us to dispose of both the main JIS appeal and the cross appeal, respectively. To dispose of ground one, we must decide on whether or not the alleged transfers of the Appellant amounted to constructive dismissal? As for the cross appeal, we must adjudicate on whether or not the Appellant was entitled to be paid benefits in the manner similar to that in which Ms. Mundia and Mr. Njolomba were paid. We will start with the first issue. From the outset, we must highlight the fact that the question of whether or not the Appellant was constructively dismissed is a question of fact, which the trial Court was aptly placed to decide on, after considering the particular facts of this case. The authors of the Halsbury’s Laws of England, 4th Edition, Volume 16, 2000 Reissue, have said, at paragraph 478, that- “whether there has been a repudiatory breach by the employer entitling the employee to leave is essentially a question of fact for a tribunal in the circumstances of the individual case; and an appellate court will rarely interfere with the tribunal’s decision on the point Drawing reinforcement from the foregoing position of the law, Counsel for the Respondent has canvased the view that, because ground one attacks the trial Court’s findings of fact, this Court must dismiss it. Indeed, according to section 97 of the Industrial and Labour Relations Act, Cap 269 of the Laws of Zambia, an appeal from the Industrial Relations Court to the Supreme Court must be on either a point of law or a point of mixed law and fact. J16 So, the question is: does ground one comply with section 97? In our view, the answer to this question is in the affirmative. Although evidently Counsel for the Appellant has attacked the trial Court’s findings of fact, he has equally raised points of law. Counsel has attacked the Industrial Relations Court’s judgment on the basis that the Court below did not properly apply the principles, on constructive dismissal, pronounced by Lord Denning, MR, in the Western Excavatingi1) Case. Counsel has also argued that the facts before the Industrial Relations Court proved the elements required to establish constructive dismissal, as defined by the authors of the Halsbur’y Laws of England, 4th Edition, Volume 16, in paragraph 478. We, therefore, hold the firm view that ground one contains a mixture of both points of law and points of fact. The germane question then is: can we say that the five transfers, complained about by ' the Appellant, amounted to constructive dismissal? We hold the considered view that the said transfers did not amount to constructive dismissal. This holding is firmly founded on the evidence on record which establishes that the transfers in question were not aimed at making the Appellant’s life as difficult or as uncomfortable as possible, in the hope that the hint would be taken by him and he would resign. The evidence on the record of appeal estabhshes that the transfers were intended to J17 help the Appellant following his request to be transferred from Operations Department. There is incontestable evidence on the record of appeal that the working relationship between the Appellant and his immediate supervisor, RW1, had deteriorated to a level where the Appellant found it difficult to work in the Operations Department. The waned working relationship was worsened by the fact that RW1 at one point charged the Appellant with unsatisfactory work performance, a charge for which the Appellant was found guilty and given a written warning. Another unquestionable fact, about the aforesaid transfers, is that they were originally triggered by the Appellant himself when he requested to be moved from Operations Department on the ground that he could no longer favorably work with RW1. This is evident from the Appellant’s last words, during his disciplinary hearing, at page 171 of the record of appeal, when he said the following: “When I look at the whole scenario, the type of relationship between me and my supervisor has led to being given a charge unfairly. I have experienced embarrassing situations where while in the superiors office, even checking the time on my wrist watch am told to be undisciplined. Some of my subordinates who were reporting directly to me now report directly to the Assistant Director, Operations. Because of the bad relationship with my superiors I have requested for a transfer to Credit Department.” (Emphasis by underlining ours) J18 Strikingly, although clearly the Appellant requested to be transferred from Operations Department, he has included this particular transfer in his catalogue of the five transfers that he claims were aimed at forcing him to flee from the Respondent. The transfers did not, however, end there. The transfer to Credit Department did not come to fruition. In his evidence, RW2 explained that the Appellant continued working in Operations Department because the Head of Credit Department indicated that he lacked the requisite competence to work in that Department. This evidence, in our view, remained intact after cross examination of RW2 by Counsel for the Appellant. A painstaking examination of the evidence on the record of appeal establishes that the subsequent four transfers were all attempts, by the Respondent, to find a suitable department for the Appellant. In fact, the three subsequent transfers were practically mere intimations by the Respondent to transfer the Appellant; the said transfers were cancelled before he could move. So he remained in Operations Department until he was finally transferred to Human Resource Department. The Appellant was transferred to Human Resource Department after the Respondent created a new position specifically for him. The new position was at the same level, and had similar conditions of service, as the position he previously held in Operations Department. However, because there was no office immediately available to him, he resigned the following morning. J19 From the foregoing, we find it very difficult to accept Counsel for the Appellant’s submission that the transfers were designed to make the Appellant’s stay in the Respondent so unbearable that he had no other choice but to terminate his contract of employment. The fact that the Respondent went to the extent of creating a totally new position for the Appellant, in our opinion, clearly demonstrates its commitment to ensuring that the Appellant remained its employee. On the basis of the foregoing, we agree with the Industrial Relations Court’s finding of fact that the evidence on record proves that the Respondent was ready to accommodate the Appellant in any suitable department at his request. We also accept the trial Court’s finding of fact that the transfers were not meant to hound the Appellant out of the Respondent Bank. We hold the view that the Respondent treated the Appellant fairly and did everything it could to retain him in its employment. The Respondent did not constructively dismiss the Appellant in terms pronounced by this Court in the case of Chilanga Cement Plc v. Kasote Singogd4> where we held that “the notion of constructive dismissal is anchored on the concept that an employer must treat his employee fairly and should not act in a manner that will compel the employee to flee his job”. J20 On the authority of the Kasote Singogd4) Case, we hold the resolute view that the Appellant’s resignation had nothing to do with the Respondent’s conduct. In any case, even assuming that the transfers were not ignited by the Appellant’s own request, we still hold that the Appellant was not constructively dismissed. It is trite law that the concept of constructive dismissal presupposes that an employer must have been guilty of conduct which constitutes a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. If those circumstances exist, an employee is entitled to terminate his contract of employment. If he does so, the law will treat him or her as having terminated the contract as a result of the employer’s fundamental breach of the contract. This is the position which was pronounced by the Court of Appeal in the Western Excavating!1) Case and accepted by this Court in a plethora of cases, including the Kasote Singogo!4) Case. To put the Court of Appeal’s decision in the Western Excavating!1) Case, into its proper context, we will reproduce its brief facts, which are that Mr. Sharp was employed by the Appellant. It was a term of his contract of employment that if he worked extra time he could have time off in lieu. On 26th February 1976, he asked his employers if he could have the afternoon off so that he could play cards for a team. He was told that he could not 4' J22 Delivering his judgment, Lord Denning, MR, said that there were two rival tests that had hitherto (that case) been used in determining whether or not an employee had been constructively dismissed. He catalogued the tests as- (a) the contract test, and (b) the unreasonableness test. In explaining the contract test, Lord Denning said, at page 717 of his judgment, that- “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once.” With regard to the unreasonableness test, Lord Denning said, at page 717 of his judgment, that this test postulates that­ "... the employer must act reasonably in his treatment of his employees. If he conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving. He can go, with or without giving notice, and claim compensation for unfair dismissal.” J23 Of the two tests, Lord Denning expressed the opinion that the contract test is the right test to be applied in cases where an employee pleads constructive dismissal. According to him, the test of ‘unreasonable conduct’ of the employer “was too indefinite by far and had led to findings of ‘constructive dismissal’ on the most whimsical grounds”. Taking a leaf from Lord Denning’s pronouncements in the Western Excavating!1) Case, we are of the firm view that, in the instant case, the contested transfers did not constitute constructive dismissal because a cursory perusal of the record of appeal establishes that the Respondent had contractual powers to transfer the Appellant to any department, even in the absence of a transfer request from him. Clause 4.1.4 of the Finance Bank Terms and Conditions of Service for Management Staff, gave the Respondent “...the right, at its sole discretion to: ...select, develop and where it deems appropriate, to promote or demote employees to any positions within the Bank and transfer them to any locality where it operates.” (Emphasis by underlining ours). Counsel for the Appellant has gone further to argue that the Court below should have inferred constructive dismissal from the reduction in the Appellant’s job responsibilities and the soured relationship between the Appellant and RW1. In our view, this argument is untenable. At the time the Appellant resigned, he was J24 no longer in RWl’s Department. We do not, therefore, see how the deteriorated working relationship could have been the cause for the Appellant’s termination of his contract of employment. With regard to the alleged reduction in his job responsibilities, we hold that at the time the Appellant resigned, he was no longer Manager, Operations; he held a totally new position with totally new job responsibilities. Therefore, the contention that the Appellant terminated his contract of employment because RW1 took away some of his job responsibilities, cannot succeed. For the foregoing reasons, we hold that the Appellant’s appeal lacks merit and we dismiss it accordingly. Coming to the cross appeal by the Respondent, we must say from inception, that it is unsustainable at law. Counsel for the Respondent has faulted the Industrial Relations Court for having held that the Appellant should be awarded benefits on the basis of the formula used to compute the retirement benefits for Ms. Mundia and Mr. Njolomba. Counsel has referred us to the case of Jennifer Nawaf3}, where the Appellant, inter alia, sought a declaration that the Respondent should pay her three months’ salaiy for each year she served, pursuant to the Minimum Wages and Conditions of Employment (General) Order 2002, which had a more beneficial monetary package than the Standard Chartered Bank Pension Scheme. This Court refused to grant that declaration on the ground J25 that the workers envisaged, under the Minimum Wages and Conditions of Employment (General) Order 2002, were those for whom there was no adequate pension provision by their employer. Although we accept the poignant argument by Counsel for the Respondent that where an employer has established a pension scheme, approved by the Minister, the Minimum Wages and Conditions of Employment Order does not apply, we hold the firm view that this argument is inapplicable to the particular circumstances of this case. The contention by Counsel for the Appellant, as we understand it, is that since the Appellant was similarly placed with Ms. Mundia and Mr. Njolomba, the Court below properly directed itself when it held that he should be paid in a manner similar to that in which the duo was paid. Counsel for the Respondent has maintained that Ms. Mundia and Mr. Njolomba were paid three month’s salary for each year served because they were entitled to that payment under paragraph 10 of the Minimum Wages and Conditions of Employment Order. However, a careful study of the said paragraph 10 establishes that Ms. Mundia and Mr. Njolomba were not entitled to be paid under the Minimum Wages and Conditions of Employment Order as a matter of right. This is evident from the wording of paragraph 10, which is couched in the following manner: “An employee whose employment is terminated on medical grounds as certified by a registered medical J26 practitioner or by a medical institution shall be entitled to benefits in accordance with paragraph 8 of this Schedule.” Paragraph 8 in turn enacts that- “An employee who has served with an employer for not less than ten years and has attained the age of fifty-five, shall be entitled to three months basic pay for each completed year of service: Provided that where an employer has established a pension scheme approved by the Minister, the retirement benefits shall be paid in accordance with such pension scheme, and this paragraph shall not apply.” (Emphasis by underlining ours). Clearly, according to paragraph 8, Ms. Mundia and Mr. Njolomba, were not entitled, as a matter of law, to be paid under the Minimum Wages and conditions of Employment Orders, because the Respondent established a Pension Scheme sometime in October, 1999. However, in our view, RW2’s evidence establishes that the duo was paid in that manner because prior to the establishment of the Pension Scheme, the Respondent used to pay its separated employees three months’ basic salary for each year served. When referred to an email authored by a Mr. Jacques J. de Jager, RW2 told the trial Court that the Respondent had been paying its separated employees in the manner indicated in the email. RW2 added that the Appellant was entitled to be paid as advised in the email. The relevant part of the said email reads as follows: “For the period during which she (Ms. Inutu Mundia) was not a member of the pension fund, i.e. between date of * r J27 joining and sometime in 1999, she is entitled to dues calculated at 3 months pay for every completed year of service.” In any case, we do not agree with Counsel for the Respondent’s position that the Appellant was not entitled to any benefit for the period he worked for the Respondent before the introduction of the Pension Scheme. RW2’s evidence establishes that those who separated from the Respondent prior to the introduction of the Pension Scheme were paid some benefits albeit on the basis of the Minimum Wages and Conditions of Employment Order. We do not think that it is tenable at law to argue that the introduction of the Pension Scheme wiped away all benefits that had accrued to the Appellant for the period he worked for the Respondent from 1988 to 1999. Although RW2 testified, under cross-examination, that employees who worked for the Respondent, prior to the introduction of the Pension Scheme but retired after the Pension Scheme was introduced, were not paid anything because the Respondent had not come up with a criteria for making such payments, we hold the strong view that the Appellant cannot be denied his benefits on the basis of the Respondent’s own failure to come up with a way of computing his entitlements. In the absence of the said criteria, we are of the considered view that the most equitable way of computing the Appellant’s benefits, for the period from 1988 to 1999, was by using the formula that was applicable prior to the introduction of the Pension Scheme. - For the foregoing reasons, we hold that the Industrial Relations Court properly directed itself when it held that the Appellant must be paid in a manner similar to the way Ms. Mundia and Mr. Njolomba were paid. We, therefore, hold that the cross-appeal lacks merit. We dismiss it forthwith. The main appeal and the cross-appeal having both failed, we make no order as to costs. L. P. CHIBESAKUNDA ACTING CHIEF JUSTICE E. HAMAUNDU SUPREME COURT JUDGE F. LENGALENGA Ag. SUPREME COURT JUDGE