Raphael Mubita Sinyanda v University of Zambia (SCZ Appeal 43 of 2000) [2001] ZMSC 109 (27 June 2001)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 43/2000 HOLDEN AT KABWE AND LUSAKA (Civil Jurisdiction) RAPHAEL MUBITA SINYINDA APPELLANT AND UNIVERSITY OF ZAMBIA RESPONDENT Coram: Sa kaki, AG. DCJ., Chaila and Chirwa JJS On 18th April and 27th June 2001. For the Appellant: Mr. F. Kongwa of Kongwa and Company. For the Respondent: N/A. Sakala , JS., delivered the Judgment of the Court. JUDGMENT In terms of Rule 71( l)(b) of the Supreme Court Rules, Cap. 25, we heard this appeal in the absence of the respondent and their counsel. The court had been informed that counsel for the respondent had attended court the previous day but returned to Lusaka. He phoned indicating that he had a commitment in Lusaka and was not to attend court. In these circumstances we did not see it fit to adjourn the hearing. This is an appeal by the appellant employee against a decision of the Industrial Relations Court dated 9lh August, 1999 entered in his favour on his complaint brought under Section 108(2) of the Industrial and Labour Relations Act. Suffice it to mention that subsequent to that court’s judgment, the appellant applied for its interpretation on the effective date of the terminal : J2 : benefits. The court in its ruling dated 29th November, 1999 affirmed its earlier judgment. This appeal is also against that ruling. Section 108(2) reads:- “(2) Any employee who has reasonable cause to believe that the employees’ services have been terminated or that the employee has suffered any other penalty or disadvantage, or any prospective employee who has reasonable cause to believe that the employee has been discriminated against, on any of the grounds set out in subsection(l) may, within thirty days of the occurrence which gives rise to such belief, lay a complaint before the Court. ” The cause of action as endorsed on the complaint form was to the effect that the respondent’s memorandum dated 9th December, 1991 unlawfully discriminated against the appellant on the ground of social status because he was less favourably treated than other senior administrative and technical staff like him who were moved to scales ADS/PTS6 and were allowed to continue serving on Conditions of Service for Senior Administrative and Technical Staff which were more favourable in terms of salary, benefits and retirement provisions than those of unionised staff which had been forced on him and to which he was never a party. The appellant sought for declarations that the notice of retirement dated 15th September, 1991 was null and void, that Senior Administrative and Technical Staff Conditions apply to him as well, that arrears of salary representing the difference between scales ADS6 to which he was entitled and present ADS7 from 1982-85 and from 1989 todate be paid together with arrears of fringe benefits. There was evidence that the appellant was appointed as Senior Administrative Officer (Non­ Graduate) on 5tb July, 1979. He accepted the conditions prevailing. These stipulated the retirement age of 60 years on salary scale ADS7. It was common cause that during the appellant’s employment, the respondent created two posts of Senior Administrative Officer (Non-Graduate) and Senior Accounting Officer placed at higher scales of ADS6 and PTS6 respectively. The appellant was recommended for one of those positions but while others moved to scale ADS6 he was left out. Those in scale ADS6 enjoyed new conditions. : J3 : On 15th September 1991 the respondent retired the appellant at the age of 55 years under a Collective Agreement for unionised members. It was not in dispute and it was conceded by the respondent in their submissions that the appellant was never a unionised employee. Thus, the decision by them to place him in the unionised category was contrary to his letter of appointment and the Conditions of Service which stipulated the retirement age at 60 years. The respondent evidence at trial was that the appellant was in the unionised category. That the appellant though recommended for promotion to scale ADS6, he was not promoted. Although the respondent gave evidence that the appellant was in the unionised category and therefore bound by the Collective Agreement, this position was retracted in their submissions. In their submissions, the respondent conceded that the retirement of the appellant at the age of 55 was erroneous, wrongful as it was done under conditions not applicable to the appellant. They also conceded that the appellant was disadvantaged. They further conceded to the appellant’s claims and agreed to pay him the difference in the computation of the retirement benefits from age of 55 to 60. They agreed to pay salary for the years from date of wrongful retirement to the time he would be deemed retired at the rate per annum applicable at the time of wrongful retirement, inclusive of accrued leave days, allowances and repatriation and gratuity for the difference in years. The respondent only disputed the salary scale applicable. They contended that the appellant was not appointed to the higher grade at the time of his retirement as he remained at salary scale ADS7. Counsel for the respondent concluded his submissions at trial with a very rare gesture of apologising on behalf of the respondent for the wrong action taken. The court commended this rare stand but observed that it had come rather too late in the day. The court found that the decision by the respondent to retire the appellant at the age of 55 years and to impose on him Conditions of Service for unionised employees was wrong and declared them unlawful and null and void. The court, however, found as a fact that since the appellant was not promoted despite the recommendations, he still remained in salary scale ADS7 at the time of : J4 : the wrongful retirement, the court held that the appellant was therefore not entitled to conditions applicable to scale ADS6. In dealing with the remedies to be awarded, the court held that in view of the findings on liability, the appellant be deemed to have retired at the age of 60 years with effect from 31st December, 1991 the effective date of early retirement with benefits to be calculated on the basis of his salary scale ADS7 and conditions accepted and signed by him at the time he joined the University. The court also ordered that interest be paid from date of complaint, 9th January 1992 to date of judgment at the average rate of a short term fixed deposit account, thereafter to run at the current lending rate. The court also ordered that what had already been paid be taken into account, Subsequent to the court’s judgment, the appellant applied to the same court for an interpretation and meaning of the holding that “In view of the above, we deem the complainant to have retired at the age of 60 years, with effect from 3 Is' December, 1991, the effective date of early retirement”. The submission on behalf of the appellant in the court below was that the holding meant that the appellant be regarded to have been in employment until the date of his normal retirement namely, 31st December, 1996. Counsel contended that if that was to be accepted by the court as the correct interpretation, then the appellant’s terminal benefits ought to have been calculated on a salary as at 31st December, 1996 taking into consideration all the salary increments. The court rightly and properly so in our view, rejected counsel’s submissions and explained that the judgment was very clear, the effective date of the retirement being 31st December 1991 and benefits to be calculated on the salary and conditions prevailing at that date. This appeal is essentially against the interpretation of the court placed on the holding cited above. Mr. Kongwa filed detailed heads of argument based on five grounds. We have taken : J5 them into consideration in this judgment. On account of the view we take, we find it unnecessary to review them. At this juncture, we wish also to commend counsel for the respondent at trial for the rare stance he took in conceding to the appellant’s claims at the submission stage. It is, however, regrettable that the concessions came so late in the day when both parties had already incurred so much costs which could have been avoided . As to the appeal itself, we are satisfied that all the findings made by the trial court were findings of fact. In terms of Section 97 of the Industrial and Labour Relations Act, an appeal on findings of fact alone is incompetent. As regards the interpretation of the judgment itself, the court was on firm ground that the effective date was 31st December, and that on the facts, the appellant was only entitled to Conditions of Service and salary in scale ADS7 applicable at the time. The appellant had not been promoted. He could therefore not claim conditions of service like those applicable to employees who had been promoted. In our considered opinion, this appeal was unnecessary and a waste of costs. We therefore dismiss it with costs to the respondent to be taxed in default of agreement. E. L. Sakala, SUPREME COURT JUDGE. M. S. Chaila, SUPREME COURT JUDGE. D. K. Chirwa, SUPREME COURT JUDGE