Gwese v Zambia Consolidated Copper Mines Ltd (SCZ Appeal 38 of 1993) [1993] ZMSC 48 (9 June 1993)

IN THE SUPREME COURT OF ZAMBIA SCZ Appeal No. 38 of 1993 HOLDEN AT NOOLA (Civil Jurisdiction). PAUL GWESE Vs Appellant ZAMBIA CONSOLIDATED COPPER MINES LIMITED Respondent Coram: Gardner, Sakala and Chlrwa, JJJ. S. 3rd March, 1993 and 9th June, 1993. Mr. H. Chama of Mwanawasa and Company, for the appellant. Hr. M. G. Masengu, Legal Counsel, for the respondent. Sakala J. S. delivered the Judgment of the court. JUDGMENT This Is an appeal against a Judgment of the High Court dismissing the appellant's claim for entitlement to remain In employment with the respondent In accordance with Rule 8.4.3(C) of the Standard Conditions of Employment and for a determination of whether the same rule can be invoked in the absence of evidence that an employee is prematurely aged and unable to perform his duties. For convenience, we shall refer to the appellant as the plaintiff and the respondent as the defendant which they were in the court below. The plaintiff in the court below commenced an application by way of an originating summons supported by an affidavit. There was also an affidavit in opposition. Both parties adduced viva voce evidence at the hearing. The facts not in dispute were that the plaintiff, a miner by occupation, was employed on 3rd March 1964. By letter dated 1st June, 1991 he was served with six months notice of early retirement; his last shift being on the 30th of November 1991. By letter dated 30th July, 1991, the plaintiff replied rejecting the notice, contending that the notice violated the provisions of rule 8.4.3(C) of the Standard Conditions of Employment. /... J2. At the time of the notice the plaintiff had attained the age of 53 years. He was a member of the Mine Workers Union of Zambia. The learned trial judge having carefully examined the affidavit and the oral evidence as well as the submissions and the relevant rule found that the rule in question connoted an element of discretion on the part of the employer, the defendant. According to the learned trial judge, there was no statutory requirement for the defendant to furnish an employee with evidence of an employee's Inability to perform his full duties but that it was the employer's '•opinion" which ruled and not otherwise. According to the learned trial judge, where an employee is governed by Rule 8.4.3(C) and Is prematurely retired in accordance with that rule and paid his terminal benefits after notice, he cannot be heard to complain that he had not been furnished with evidence as to his inability to perform his duties as a result of his prematurely ageing. The learned trial judge pointed out that in the absence of evidence showing that the defendant acted mala fide In the execution of his discretion, the application could not succeed. The application was accordingly dismissed with costs. Mr. Chama on behalf of the plaintiff put forward two grounds of appeal. The first ground was that the learned trial judge seriously misdirected himself by holding that the purported discretion enjoyed by the defendant was unfettered and could be exercised in the absence of any evidence of an employee ageing prematurely and unable to perform his duties. The submission based on this ground was that the learned trial judge having found that the rule connoted an element of discretion on tne part of the employer the conclusion that there was no statutory requirement for the employer to furnish employees with evidence of the employee's inability to perform his full duties and that it was the employer's "opinion" which ruled, was not supported by the evidence of both the plaintiff and the defendant. Counsel contended that the rule in issue waS part of a subsisting Collective Agreeiuent governed by the industrial Relations Act and, as such, had statutory force of law and therefore the finding by the learned trial judge was erroneous. 3/... J3. Mr. Masengu onbehalf of the defendant replied to the submission based on the first ground by supporting the learned trial judge’s findings, arguing that the discretionary power under the rule was administrative and not subject to review on the basis of Judicial standards. In support of this argument, he cited S. A. de Smith Judicial Review of Administrative Action, 3rd edition paragraph 2 page 249 where the author states The scope of review may be conditioned by a variety of factors; the wording of the discretionary power, the subject matter to which it is related, the character of the authority to which it is entrusted, the purpose for which it is conferred, the particular circumstances in which it has infact been exercised the materials available to the court and, in the last analysis, whether a court is of the opinion that judicial intervention would be in the public interest...." Counsel submitted that the rule in question imports a discretionary power which is administrative and not statutory in nature as It is not a creature of Parliament. We have carefully considered the arguments and the submissions based on the first ground. Rule 3.4.3(C) reads as follows:- “Early Retirement. If in the opinion of the Company an employee who has a ttained the age of 50 but not 55 is prematurely aged and is unable to perform his full duties, the Company may terminate the employment by Early Retirement." We agree that the rule connotes an element of discretion, but we also agree that the "opinion” of the defendant must be based on evidence that an employee is prematurely aged and is unable to perform his full duties. To hold otherwise would oe to enable an employer to form an opinion which is capricious or arbitrary which cannot have been within the contemplation of the parties to the contract. These prerequisites have to be established and proved by evidence before an employer can invoke the said rule to terminate the employee's employment on the basis of early retirement. 4/... J4. There was no evidence of premature ageing and there was no evidence of inability on the part of the plaintiff to perform his full duties. In our view the conditions precedent to termination by early retirement even if due notice has been given did not exist. Even on the authority cited by Mr. Masengu, the wording of the rule suggests that certain pre-conditions must exist before the rule is invoked. On this ground alone, this appeal must succeed. Consequently, we find it unnecessary to deal with the second ground put forward by Mr. Chama. Mr. Chama asked us to make a declaration as per originating summons and for an order to be made for the plaintiff to be paid for the period he did not work before the compulsory retirement age of 55 years. For the reasons we have stated, we declare that Rule 3.4.3(c) cannot be invoked in the absence of evidence showing that an employee is prematurely aged and is unable to perform his duties. The appeal is allowed with costs in this court and In the court below to be taxed in default of agreement. 3. T. Gardner, SUPREME COURT JUDGE E. L. Sakala, SUPREME COURT JUDGE. D. K. Chlrwa, SUPREME COURT JUDGE.