Kayolo and Ors v The Zambia Sugar Company Ltd (Appeal 97 of 1998) [2000] ZMSC 159 (15 March 2000)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA APPEAL NO.97 OF 1998 BETWEEN: RAPHAEL KAYOLO AND SEVEN OTHERS AND THE ZAMBIA SUGAR COMPANY LIMITED APPELLANTS RESPONDENTS Coram: (cid:9) Bweupe, D. C. J., Chaila, Lewanika JJS. On 151h June, 1999 and 151h March, 2000 For the Appellants : (cid:9) For the Respondent : (cid:9) E. J. Shamwana, S. C. of Shamwana & Company L. C. Ng'onga of Ng'onga & Company JUDGMENT Lewanika J. S. delivered the Judgment. This is an appeal against the judgment of a Judge of the High Court refusing to grant the appellants the following reliefs: A declaration to the effect that having regard to Section 4 of the Industrial Relations Act and/or Regulation 4 of the Employment (Special Provisions) Regulations, 1975 the purported Summary dismissals of the plaintiffs from the defendant's employment on 25'h March, 1987 at Mazabulca are illegal, wrongful and null and void. An order that the plaintiffs be reinstated in their employment and that they be paid their net salary arrears and damages for humiliation on being given dismissal letters at gun point. Further and/or in the alternative, damages for wrongful dismissal and humiliation. In this appeal, we shall refer to the appellants as the plaintiffs and the respondent as the defendant which is what they were in the court below. - J2- The brief facts of this case are that plaintiffs were employees of the defendant and also held office in the National Union of Plantation and Agricultural Workers (Hereinafter referred to as the Union). In the month of February, 1987 the defendant was recruiting cane cutters for its sugar plantations on seasonal contracts for the 1986/87 season. Most of the cane cutters had been engaged in previous cutting seasons and were familiar with the conditions of service contained in the previous collective agreements with which they were not happy and demanded improved conditions before they could begin work for the new season. Despite assurances from the defendant that a new collective agreement with improved conditions of service was being worked out with the Union, the cane cutters refused to report for work In an attempt to get the recruits to report for work the plaintiffs were invited by part of the defendant's Management on 28'h February, 1987 to address the recruits but this move did not meet the approval of the defendant's Personnel Manager who advised the plaintiffs to stay away from the recruits. On 3"I March, 1987 the plaintiffs went to attend a grievance with management but before the meeting could be held they were ordered to leave the room by the Personnel Manager who also threatened that he would ban the Union, dismiss the plaintiffs and evict them from Company houses. On 4th March, 1987 the plaintiffs met and resolved to demand the Personnel Manager's removal from employment and in response the personnel Manager directed Managers not to give permission to the plaintiffs to carry out Union duties on the Estate. Between 3'd and 6th March, 1987 Management dismissed the cane cutters who had refused to sign contracts of employment. Following the dismissal of the cane cutters and the deadlocked negotiations for a new collective agreement and the appearance of a circular curtailing all Union activities, the plaintiffs on 12th March, 1987 sought advice from the local Labour Office and the officer commanding Police as to how they could conduct union activities at the Estate. The labour officer promised to get in touch with them but they did not hear from him. On 13th March, 1987, the Id plaintiff went to see the General Manager over the letter they had written demanding the removal of the -J3- Personnel Manager. The 1" plaintiffs attention was drawn to the fact that several workers had gathered outside at a place between the factory and the business department when the Is` plaintiffs talked to the workers they told him that they had gone on strike because they had heard that the Union officials had been dismissed. Despite intervention from the Union's headquarters, the workers did not resume work and vowed to stay away until the plaintiffs had been reinstated and the Personnel Manager removed. The strike only ended after the intervention of local Member of Parliament. On 23s March, 1987, the plaintiffs were informed that they were dismissed from employment together with the other workers who had been on strike and that those who wanted their jobs would have to re-apply. Although the plaintiffs re-applied none of them was taken back and they were informed by the Chief Personnel Manager that the reason for this was because they had induced and encouraged the other workers to go on strike. Upon a consideration of the evidence adduced before him the Learned Trial Judge found that the strike was attributable to the plaintiffs and that since the strike was illegal as the procedure for going on strike was not followed, the defendants were justified in dismissing the plaintiffs summarily. Counsel for the plaintiff has filed four grounds of appeal namely: 1. (cid:9) That the dismissal was unlawfid because the plaintiffs were not given an opportunity defend themselves. In arguing this ground, Counsel submitted that the evidence of PW.1 was not contradicted and that the five steps required to dismiss a worker were not followed nor were the plaintiffs given an opportunity to defend themselves when they were dismissed and that this goes against the audi alteram partem Rule. -J4- That the Trial Judge was wrong to hold that it was lawful to dismiss the plaintiffs from employment because the plaintiffs did not withdraw their demands concerning the removal of the Personnel Officer. 2. (cid:9) That the Trial Judge erred when he held that the plaintiffs had induced the strike. Counsel for the plaintiffs argued grounds two and three together. In arguing these grounds, Counsel said that the issue is not whether the plaintiffs did or did not withdraw their demand but whether: The correct procedure was followed. Whether the plaintiffs induced the strike. He said that the uncontroverted evidence of PW.1 set out the procedures to be followed prior to dismissal. That is to the allegation that the plaintiffs induced the strike, this was denied by PW.1 and that the evidence on record is that the plaintiffs were surprised by the strike and that PW.1 had made an earnest appeal to the workers to resume work. Counsel further said that the Trial Judge found that the plaintiffs had induced the strike by inferring from the circumstances surrounding the case, and that he had no justification for this finding. He submitted that the Trial Judge came to a wrong conclusion from a clear set of facts and that although this is a finding of fact, this court has power to come to a different conclusion where the conclusion is obviously wrong from facts given. 3. (cid:9) The differences between the plaintiffs and the Personnel Officer were caused and induced by the attitude of the Personnel Officer and the court should have so found in the absence of evidence to the contrary from the defendants. (cid:9) (cid:9) 45- In arguing this ground Counsel said that the disagreement came about as a result of the animosity between the Personnel Officer and some members of the executive of the Union. Counsel urged us to allow the appeal and set aside the findings of the Trial Judge. In reply to grounds 1 and 3 Counsel for the respondent conceded that the appellants were not heard but contends that the circumstances on which the appellants were dismissed were traumatic due to the misconduct of the appellants by inducing a strike through initiating a demand to remove the Personnel Manager which demand continued up to the dismissal of the appellants and the other striking workers. He said that the findings of the Trial Judge were correct and that the dismissals were lawful and justified as the collective agreement provides for summary dismissal in cases of misconduct and its provisions were lawfully approved. He referred us to the cases of ZAMBIA BREWERIES vs. WHICKY KAWISHA, S C Z. NO. 8 OF 1993 AND HAPEZA vs. ZAMBIA OXYGEN LTD S C Z. NO. 24 OF 1989 on the point. He submitted that the inducement of the strike though not express was clearly implied by the conduct of the appellants in that: It was the appellants who originated or initiated the demand for the removal of the Personnel Manager from a branch executive union meeting and the other workers merely followed the appellants. The inducement of the strike by the appellants could further be implied by the reluctance of the appellants to persuade the workers to return to work and call off the strike though the respondent had done all what it could to resolve the conflict regarding the personnel Manager by calling a meeting. He further said that the 46- appellants had been assured by the Labour Officer to leave the matter in this hands and that he would return to them when he had resolved the matter with the Management but they went ahead to lure the support of the workers. With regard to grounds 2 and 4 Counsel for the respondent submitted that the cause of the strike was a demand for the removal of the Personnel Manager initiated by the appellants and picked up by the workers in that: (a) (cid:9) It started spontaneously without following the procedures and so it was illegal. (3) It coincided with a meeting called by the General Manager to resolve the conflict of a demand for the removal of the Personnel Manager, a meeting which was intended to be between the 1' appellant and the Management and then the Trial Judge correctly found that the calling of the strike was to back the demands of the appellants. (c) The illegal strike action arising from the demands of the appellants violated both the collective agreement and the Industrial Relations Act. Counsel for the respondent conceded that to some extent the behaviour of the Personnel Manager to the lappellant and his General Secretary was blame worthy but he contended that remedial measures were taken to redress the conflict as laid down in the Collective Agreement. Counsel for the respondent said that the issue was not whether or not the respondent had breached the rules of natural justice but whether the appellants had misconducted (cid:9) (cid:9)