Richard Kalyangu and 26 Ors v Maamba Collieries Limited (APPEAL NO. 152/2011) [2013] ZMSC 77 (13 September 2013)

l t~ , ; - ) .. , I '-1 ~· J1 IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 152/2011 HOLDEN AT KABWE (CIVIL JURISDICTION) BETWEEN: RICHARD KALYANGU AND 26 OTHERS APPELLANTS AND MAAMBA COLLIERIES LIMITED RESPONDENT Coram: Mwanamwambwa, Chibomba and Musonda, JJS. On 14 th Augus t , 2012 and on 13 th September, 2013 . For the Appellants: For the Respondent: Mr. C. L. Mundia, S. C. of Messrs C. L. Mundia and Company. Mr. Kalokoni appearing with Mr. J. B. Malama both of Messrs Kalokoni and Company. JUDGEMENT Chibomba, JS, delivered the Judgment of the Court. Cases and Other Materials :referred to: 1. Mike Musonda Kabwe vs BP Zambia Limited {1995-97) ZR 218 2. Jacob Nyoni vs Attorney General, SCZ No. 11 of 2001 3. Newston Siulanda and Others vs Foodcorp Limited, (2002) ZR 36 4. The Industrial and Labour Relations Act, CAP 269 of the Laws of Zambia 5. Jones Atkins Nyirenda vs Pre-Secure Limited, Appeal No. 118/2005 (UnreporteA}_ 6. Broom's Legal Maxims, 10th ~dition, Sweet and Maxwell. 7. Zambia Oxygen Limited vs Bernard Kanika and 25 Others, and Zambia Privatisation Agency, Appeal No. 120 of 1999 (Unreported} w J2 When we heard this Appeal, Hon. Mr. Justice P. Musonda sat with us. He has since resigned. This therefore, is a majority Judgment. The Appellants, who were Complainants in the Court below, have appealed against the Judgment of the Industrial Relations Court at Lusaka wherein the Court below held that the applicable terms and conditions of service for the Appellants were the 2005-6 Conditions of Service. And that the Appellants had by acquiescence agreed to the variation of the 2002-3 Conditions of Service. The facts of this case are that the Appellants were employees of the Respondent who were initially serving under the 2002-3 Conditions of Service. Later, the Respondent introduced the 2005-6 Conditions of Service. In response to the demands for salary - increments by the employees, the Respondent introduced an early retirement scheme known as "Voluntary Early Retirement Scheme" (hereinafter referred to as "VESS"), for all employees including the Appellants, who were in Middle Management. It was a condition of VESS that employees who did not wish to go on voluntary early separation would continue working under the 2005-6 Conditions of .. If -' - • J3 Service. The Appellants' position was also that they continued working while negotiations for their Conditions of Service and/ or package were going on. The Appellants then filed an action in the Industrial Relations Court in which they claimed the following reliefs:- "(i) Payment of terminal benefits based on 2003 conditions at current salaries. (ii) Payment of six months pay in lieu of notice. (iii) Computation of accrued leave days based on 2003 Conditions of Service. (iv) Payment of repatriation at 100 percent of annual basic salary. (v) Interest. (vi) Costs. (vii) Any other relief the Court may deem fit and appropriate." In support of their claim, the Appellants argued that their early retirement benefits were not calculated in accordance with the Conditions of Service that applied to them as the computation of their proposed package was based on the 2005-6 Conditions of Service and not the 2002-3 Conditions that applied to them. The Appellants argued that their contracts of employment were terminated on 30 th September, 2010 when they were given • J4 "Terminal Dues Statements" such as one reflected on page 78 of the Record of Appeal. The Appellants argued that the 2005-6 Conditions of Service applied by the Respondent were disadvantageous to them as they were inferior to the 2002-3 Conditions that applied to them. On the other hand, the Respondent's position was that when the employees demanded salary increments , the Respondent offered salary increments to all employees. This was on condition that the past service benefits for all employees should be fro zen to prevent the Respondent from incurring extra liabilities b ecause of the increased salaries . It was the Respondent's further position that it negotiated with the Union for the unionised employees and agreed on some arrangement. And that in the case of the non-unionised - employees, the Appellants inclusive , the Board of Directors determined their new terms and conditions of service (the 2005-6 Conditions of Service). And that the decision to fre eze the worker's past service was communicated to each employee , a s evidenced by the letter dated 10th April, 2006 in which the Respondent informed Mr. Arthur Shanamanjolo, one of the Appellants, of the revised .. .! . JS Conditions of Service. According to the Respondent, it increased salaries of both unionised and non-unionised employees, the Appellants inclusive. And that the Appellants did not object to this proposal and that all employees, the Appellants inclusive, were informed in writing of this VESS and the applicable condition which was that those who did not apply would continue serving under the 2005-6 Conditions of Service. The Respondent's position was that Management requested the Appellants to stay away from work pending the determination of the action which the Appellants filed in the Industrial Relations Court which led to the current appeal. It was the Respondent's position that the Appellants were therefore still in employment, as their services had not been terminated and that they continued receiving salaries based on the 2005-6 Conditions of Service. The Court below heard and analysed the evidence from both parties and came to the conclusion that the Appellants . were still employees of the Respondent and that their contracts of employment had not been terminated and that their applicable conditions of service were the 2005-6 Conditions of Service and not . . J6 2002-3 Conditions and that the Appellants had agreed to the replacement of their Conditions of Service by acquiescence. Based on the above findings , the Court below dismissed the Appellants' claims in the Notice of Complaint. Dissatisfied with the decision of the Court below, the Appellants appealed to this Court advancing three Grounds of Appeal as follows:- "(1) The Trial Court erred in law and fact when it held that the Appellants were not terminated by the Respondent in September, 2010 when there was documentary evidence to that effect. (2) (3) The Trial Court erred in law and in fact when it held that the Conditions of Service applicable to the Respondents were the for Management 2005 Terms and Conditions of Service Employees and not the Middle Management Staff Terms and Conditions of Service for 2003. The Trial Court erred in law and in fact when it did not award the Appellants the terminal benefits and other accompanying benefits claimed for in the Notice of Complaint as provided for the 2003 Middle Management Staff Terms and under Conditions of Service." In support of this Appeal, the learned Counsel for the Appellants, Mr. Mundia, S. C. , relied on the argument s advanced in the Appellants ' Heads of Argument which he augmented with oral J7 submissions. The oral submissions were more or less same with the written submissions. Hence, we shall not repeat them. In support of Ground 1, it was contended that the Respondent did not exclude the Appellants from the VESS. It was submitted that the Respondent issued the Appellants with the proposed "Terminal Dues Statements" and that these show that the calculations were based on the 2005-6 Conditions of Service. It was submitted that the Appellants' contracts were terminated on 30 th September, 2010. And that as such, the Court below fell into serious error when it concluded that the applicable Conditions of Service at the time of termination were the 2005-6 Conditions. It was contended that it was also a serious misdirection on the part of the Court below to conclude that the 2002-3 Conditions of Service were effectively replaced by the 2005-6 Conditions. Further, that the Court below also erred by holding that the Appellants accepted the replacement of their 2002-3 Conditions of Service by acquiescence. It was pointed out that the document at page 100 of the Record of Appeal which is a copy of the Minutes of the Meeting that was held between the Respondent's • I •• J8 Chief Executive Officer and Middle Managemen t, show that consultations were still on-going between them over the issue of the 2002-3 Conditions of Service still being applicable and not the 2005-6. It was further argued that since the Court below did not state what it considered to be "overwhelming evidence ," it misdirected - itself by not declaring that the Appellants' contracts of service were terminated on 30 th September, 2010. In support of the above arguments , the case of Mike Musonda Kabwe vs BP Zambia Limited 1 and the case of Jacob Nyoni vs Attorney General2 were cited. In the former case , we held that reducing the employee 's salary without his consent terminated the contract of employment between the parties while in the latter case , - we held that the Appellant made an irrevocable option to retire at the age of 60 years and that, that became a condition of service that he opted to serve on. It was submitted that the above cited authorities clearly show that the employer and employee can negotiate n ew terms and conditions of service but that the employer cannot impose J9 conditions of service that are disadvantageous to the earlier conditions of service without the consent of the employee. In support of Ground 2, it was contended that the Respondent unilaterally imposed the 2005-6 Conditions of Service on the Appellants and that this violated the Appellants' accrued rights. It was pointed out that in accordance with the Respondent's evidence, the VESS was introduced by the new shareholders of the Respondent, (Nava Bharat), to liquidate past employees' liabilities which the Company was incurring and that this followed the employees' demands for salary increments. And that all employees of the Respondent were requested to voluntarily apply for early retirement and that it was a condition that if an employee did not apply, then his or her services would continue under the 2005-6 Conditions of Service while the Respondent would continue incurring that employee's past liabilities. It was submitted that it was a misdirection by the Court below to hold that since the Appellants did not apply for VESS, their employment continued under the 2005-6 Conditions of Service and continued receiving monthly salaries based on those later Conditions of Service, as the JlO employer cannot take away accrued rights and benefits of an employee to the detriment of that employee without his or her consent. It was pointed out that 1n Mike Musonda Kabwe vs BP (Zambia) Limited 1 , this Court ordered that the employee be paid terminal dues based on the salary that was applicable to him. And that in the current case , since the Appellants' contr acts of service were terminated on 30th September, 2010 , the calculations of their benefits ought to have been based on the 2002-3 Conditions of Service. Reference was also made to the case of Newston Siulanda and Others vs Foodcorp Limited3 in which we held that disadvantageous and unilateral alteration to a b a sic condition entitles the aggrieved employee to treat that as a breach and repudiation of the contract by the employer and the reby entitling the employee to a separation package. It was submitted that the Court below should , t herefore , have found in favour of the Appellants since the 2002- 3 Conditions of Service were negotiated and signed for by both parties but unilaterally frozen b y the Respondent in preference to the inferior or ' . Jll disadvantageous 2005-6 Conditions. Further, that the revised salaries under the 2005-6 Conditions of Service did not imply abandonment of the 2002-3 Conditions. Hence, there was no evidence that the Appellants accepted the later Conditions of Service by acquiescence. In support of Ground 3, the arguments in support of Grounds 1 and 2 were repeated. The Appellants' prayer that the calculation of their terminal benefits be based on the 2002-3 Conditions of Service and not on the 2005-6 Conditions of Service was repeated. On the other hand, in opposing this Appeal, the learned Counsel for the Respondent, Mr. Kalokoni, also relied on the Respondent's Heads of Argument which he augmented with oral submissions. The oral submissions were also more or less same with those in the filed Heads of Argument. So we shall not repeat them. In response to Ground 1, it was submitted that the Court below did not err 1n law and in fact when it ruled that the Appellants ' contracts of service were not terminated by the Respondent. It was submitted that the Court below found that the Appellants' contracts of service were not terminated as the J12 Appellants did not apply for VESS and that they continued working and receiving salaries based on the 2005-6 Conditions of Service. It was further submitted that the Appellants were only requested to stay away from work pending determination of their case which they filed in the Court below. It was further contended that Ground 1 attacks findings of fact and not mixed fact and law. That Section 97 of The Industrial and Labour Relations Act 4 prohibits appeals that are premised on findings of fact made by the Industrial Relations Court. As authority, the case of Jones Atkins Nyirenda vs Pre-Secure Limited5 was cited in which we stated that:- "Section 97 of the Industrial Relations Act bars an appeal on findings of fact to come to this Court ." It was further submitted that even if it was a r gued that the Appeal was not against findings of fact, the evidence shows that the Appellants, through CWl, admitted that they did not apply under VESS. And that the Appellants' payslips show that the Appellants continued getting salaries after September, 2010 . It was also pointed out that CWl even applied for annual leave in January, J • • J13 2011. Therefore, that the Appellants were still in employment. Further, that the Appellants were merely asked to stay away from work pending determination of their case and that in that same letter, the Appellants were informed that their entitlements would not be affected in any way. Therefore, that the Appellants were still in employment of the Respondent. In response to the case of Mike Musonda Kabwe vs B. P. (Zambia) Limited 1 relied upon by the Appellants, it was submitted that this case does not apply to the current case as the change in the Conditions of Service was not the basis upon which the Appellants instituted this case but upon being informed of the availability of VESS by the Respondent and upon being shown what they would be paid if they opted for voluntary early separation under VESS. It was pointed out that the VESS had specific terms and conditions. That the Appellants , instead of applying under VESS decided to commence an action in the Court below, alleging that their contracts of employment had been terminated when in fact not. It was contended that, therefore, the case of Jacob Nyoni . . . J14 vs Attorney General2 relied upon by the Appellants was not applicable to the present case. It was argued that Ground 2 as well attacks findings of fact made by the Industrial Relations Court. That as such , this Appeal is incompetent and should be dismissed as the Court below made findings of fact that the 2002-3 Conditions of Service were effectively replaced in 2005-6 and that the Appellants accepted the 2005-6 Conditions of Service by acquiescence as they did not reject them. It was also pointed out that CW2 , in his evidence , told the Court below that he did not inform the Respondent's Management either verbally or in writing that he had rejected the salary reviews and the 2005-6 Conditions. Therefore , that the Court below cannot be faulted for holding that the Appellants accepted the 2005-6 Conditions by acquiescence. And hence , the case of Mike Musonda Kabwe vs B. P. (Zambia) Limited 1 was wrongly relied upon by the Appellants. It was further argued that this Court, in Newston Siulanda and Others vs Foodcorp Limited3 , stated that: - , ·.- ,· JlS "The cases of Kabwe v BP (Zambia) Limited and Marriot v Oxford and District Cooperative Society Limited were called in aid. Yet these cases can only arise if there has been a termination of employment connected to the alleged breach. The cases are inapplicable in the case of those who choose to continue working and are still working, opting to accept or acquiescence in the changes." In response to the Appellants' submission that the 2005-6 Conditions of Service were inferior to the 2002 -3 conditions, it was argued that this contention lacks merit and was an a fterthought as e the issue of consent of the employees can only be considered if the change in the conditions of service is what led to the Court proceedings . That in the current case , this was not the position. Further, that since the Appellants accepted the salaries that were based on the 2005-6 Conditions of Service , the Maxim "allegans contraria non est audiendus (he is not to be heard he who alleges things contrary to each other)" applies in this case . As authority, Broom's Legal Maxims6 was cited in which the above Maxim was explained as fallows : - "This elementary rule of logic, which is frequently applied in our Courts of Justice, will receive occasional illustration in the course of this work. We may for the present observe that it expresses, in other language, the trite saying of Lord Kenyon, that a man shall not be permitted to "blow hot and cold" with reference to the same transaction, or insist, at different times, on the truth of each of two conflicting allegations, according to the promptings of his private interest ." I ,, . . ' . ..t ' I. J16 In response to Ground 3 , the arguments in response to Grounds 1 and 2 were repeated. In addition, it wa s argued that terminal benefits are only payable at the end of the contract. And that in the current case, the Appellants ' terminal benefits were not payable as their contracts of service were never terminated . In support thereof, the case of Zambia Oxygen Limited vs Bernard Kanika and 25 Others, and Zambia Privatisation Agency7 was cited in which we stated that:- "Persons who continue in service cannot get "terminal" benefits when there is no termination." We have seriously considered the Grounds of Appeal together with the arguments advanced in the respective Heads of Argument, oral submissions and the authorities cited. We have also carefully considered the Judgment of the Court below. It is our considered view that this appeal raises one major question. This is: whether or not the Appellants' contracts of service were terminated by the Respondent in September, 2010. We shall also addre ss the issue of the applicable Conditions of Service to the Appellants. / j ~ I I ~ ~ .. .. . J17 In response to Ground 1 which attacks the Court below's finding that there was no evidence to show that the Respondent had terminated the contracts of employment of the Appellants, it is our considered view that the Court below was on firm ground when it found as it did. The evidence shows that when the Respondent introduced the 2005 Conditions and increased the salaries of all employees including the Appellants, the Appellants did not reject these Conditions. They continued working and receiving salaries that were based on the 2005-6 Conditions of Service up to 2010 when the Respondent introduced the VESS. Further, that under VESS, all employees, the Appellants inclusive, were informed that those that wished to go on voluntary early separation could apply and that for those employees that would opt not to go on voluntary early separation, they would continue serving under the 2005-6 Conditions of Service. The Appellants did not apply to go on voluntary early separation. Hence, they continued working and receiving salaries under the 2005-6 Conditions of Service. They continued working until September, 2010 when they commenced an action in the Court below which has led to this Appeal. ' · -1 J18 It was further submitted that after the Appellants commenced this action, the Respondent wrote to the Appellants a s follows: - "Maamba Collieries Limited Head Office Maamba Mine P. O. Box 99 MAAMBA, ZAMBIA. Mr. Richard Kalyangu House No. L48 MAAMBA TOWNSHIP 30th September, 2010. Dear Sir, SUBJ: RICHARD KALYANGU AND 47 OTHERS Vs MAAMBA COLLIERIES LIMITED In view of your decision to take Court action against Maamba Collieries Limited, to which you are entitled, Maamba Collieries Limited hereby requests you to stay away from your office pending resolution of the matter. During this period all your entitlements will not be affected in anyway. This request has been necessitated by the possibility of conflict of interest which may prejudice the court proceedings. Yours faithfully, MAAMBA COLLIERIES LIMITED (Signed) Alex Mutale GENERAL MANAGER CC: Chief Executive Officer Dr. Simbyakula (Legal Counsel)" As can be seen from the letter quoted above and in view of the evidence illustrated above , it cannot successfully be argued that the Respondent terminated the Appellants' contracts of employment on 30th September, 2010. In the same vein, the "Terminal Dues .,· _, J19 Statements" referred to above which the Respondent issued to the Appellants should be understood in their own rights. The Statements were meant to indicate what those who would opt for VESS would be paid and cannot, therefore, be construed by any sense of wide imagination to mean that they amounted to termination of the contracts of employment of the Appellants. Nor can they be construed to amount to repudiation of the Appellants' Contracts of Service by the Respondent. Further, the introduction of the 2005-6 Conditions of Service cannot be construed to amount to a termination of the Appellants' contracts of service as the Appellants continued working under those Conditions and also continued drawing salaries based on the same Conditions of Service. The Appellants did not at all object or e protest. Hence, they slept on their rights. Therefore, the Court below was on firm ground when it found that the Appellants had acquiesced to the replacement of the 2002-3 Conditions of Service with those of 2005-6. As such, we agree with the submission by the Respondent that the Appellants' decision to institute the action in the Court below was an afterthought as they ought to have done so immediately the 2005-6 Conditions became effective if their wish was not to be bound by the same. Therefore, the Maxim "allegans contraria non est audiendus" applies in this case as our firm view is that the Appellants are "blowing hot and cold" as they accepted the 2005-6 Conditions but are now purporting to reject them after receiving benefits under the same. Further, we find no basis for the Appellants' assertion that they were "constructively" dismissed by the introduction of the VESS or 2005-6 Conditions of Service or by merely being requested to stay away from work pending resolution of their case by the Court. They were clearly told that their entitlements would not be affected in any way. The evidence also shows that they have - continued receiving full salaries. Therefore, although it is trite law that where an employer unilaterally varies the Conditions of Service of an employee without his/her consent, the employee is entitled to treat such variation as a breach which repudiates the contract of service, this was not the case in the current case. J21 The position that we have taken 1s also fortified by our decision in Zambia Oxygen Limited vs Bernard Kanika and 25 Others and Zambia Privatisation Agency7 which we consider to still be very good law. In that case, we clearly stated that an employee cannot be entitled to payment of terminal benefits unless his contract of service has been terminated. It follows, therefore, that the Appellants cannot claim that their contracts of service were terminated on 30 t h September, 2010 as they continued being in employment and continued receiving salaries. Hence, the Court below was on firm ground when it held that the Appellants' contracts of service were not terminated on 30 th September, 2010. For the reasons given above, Ground 1 fails. The same is dismissed. In response to Ground 2 which attacks the trial Court's finding that the applicable Conditions of Service were the 2005-6 and not the 2002-3 Conditions, it is our considered view that the Court below was on firm ground when it ruled as it did. As explained under Ground 1, when the Respondent introduced the 2005-6 Conditions of Service, the Appellants did not reject or object J22 to the new Conditions. The Appellants continued working under the later Conditions. They also continued receiving increased salaries that were based on the later Conditions. Our firm view is that it was at that stage that the Appellants should have rejected these new Conditions and not to do so much later. It is also our further view that the Appellants cannot successfully argue that they were still negotiating new Conditions of Service while at the same time, they continued receiving improved salaries based on the 2005-6 Conditions of Service which they now allege were inferior to the 2002-3 Conditions. Further, the evidence shows that when management introduced the VESS, the Appellants did not opt to go on voluntary early separation. Hence, it can be construed that they acquiesced - by continuing to work under the 2005-6 Conditions of Service as this was a condition precedent for those who did not opt for early retirement under VESS. It is also our firm view that since the Appellants' contracts of service have not been terminated, they are not entitled to payment ,i' .. ' of their terminal benefits as they are still in employment. We, therefore, find no merit in Ground 2. The same is dismissed. J23 With respect to the Respondent's contention that both Grounds 1 and 2 attack findings of fact made by the Industrial Relations Court, we entirely agree with this submission in that Section 97 of The Industrial and Labour Relations Act4 prohibits appeals that are based purely on findings of fact made by the Industrial Relations Court. The Court below did make findings of fact that the Appellants ' contracts of service were not terminated on 30 th September, 2010 and that the applicable terms and conditions of service were the 2005-6 Conditions as the Appellants had acquiescence to the replacement of the 2002-3 Conditions. The Appellants have not at all persuaded us that the above findings - were not purely findings of fact but that of law or mixed law and facts. Hence, the case of Jones Atkins Nyirenda Vs. PRE-Secure Limited5 was properly relied upon by the Respondent. We do not , therefore, intend to depart from this decision. So Grounds 1 and 2 were incompetently before us. J24 In response to Ground 3 and 1n view of what we have held under Grounds 1 and 2, we find that it is not necessary for us to rule on this Ground as the issues raised thereunder have become otiose. All the 3 Grounds of Appeal having failed, the sum total is that this Appeal has wholly failed. The same is dismissed. In the circumstances of this case, we order that each party bears its own costs. H. Chibomba SUPREME COURT JUDGE