Chewe and Ors v Zambia Postal Services Corporation (Appeal 27 of 2002) [2003] ZMSC 174 (9 September 2003)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) APPEAL NO. 27/2002 BETWEEN: ROGERS KANGWA CHEWE AND OTHERS APPELLANT AND ZAMBIA POSTAL SERVICES COPRORATION RESPONDENT CORAM: LEW ANIKA, DCJ., CHIBESAKUNDA, SILOMBA, JJS On 4th June, 2002 and 9th September, 2003 For the Appellants: For the Respondent: Miss C. MAKUNGU of Makungu & Co. C. F. MUKONKA, Legal Counsel. JUDGMENT LEWANIKA, DCJ., delivered the judgment of the court. This is an appeal against the decision of the Industrial Relations Court dismissing the Appellants’ claims that the Respondent had breached the Appellants' contracts of employment, declined and/or failed to pay the agreed redundancy benefits, and that the Respondent had contravened Section 26B (3) of the Employment Amendment Act of 1977. There was also a claim for payment of the withdrawn allowances and increments of salary from 31st March, 1999. The evidence on record is that the Appellants were employees of the Respondent a statutory body established under Section 3 of the Postal Services Act, Cap 470 of the laws of Zambia. In March 1999 the Respondent wrote to the Appellants advising them that as result of a restructuring exercise caused by contraction in business it was terminating their employment by redundancy with effect from 29th March, 1999. The letters went on to state that since the Respondent was unable to pay the redundancy benefits on the last day of duty, the Appellants would continue to be paid their basic salaries until the redundancy benefits are paid in accordance with Section 26B of the Employment (Amendment) Act of 1997. Some of the Appellants were unionized whilst the others were non-unionized. For the unionized employees, their conditions of service were contained in a Collective Agreement entered into between the Respondent and the National Union of Communication workers which is at pages 80 to 91 of Volume 1 of the record of appeal. Clause 11 (f) of that Agreement provides as follows:- 11 (f) "Notice of Termination of Employment and Applicable payment." "Where redundancy or retrenchment is effected, the employee shall be entitled to three (3) months notice and redundancy or retrenchment payment shall be negotiated for between the union and management." For the non- unionized employees their conditions of service were contained in a document which appears from page 96 to page 103 of Volume 1 of the record of appeal. Clause 29.4 of that document provides as follows:- 29.4. "Redundancy and Retrenchment Payment. Where redundancy or retrenchment is effected, the employee shall be entitled to three months notice and the redundancy or retrenchment benefits shall be as approved by the Board at the time of termination." For the unionized employees, there is evidence on record of an agreement entered into between the Respondent and the National Union of Communication workers which is on pages, 367-368 of Volume 2 of the record of appeal which provided, inter alia, that a repatriation allowance of K800,000.00 in lieu of transport shall be paid to each employee and that the redundancy benefit shall be three months salary for each completed year of service. For the non-unionized employees, there is evidence on record contained in the minutes of a Board meeting of the Directors of the Respondent held on 19th February, 1999 which are on pages 369 to 372 of Volume 2 of the record of appeal where the Board resolved as follows:- "After considering the apology and the legal consequences of not honouring what was agreed upon with the union, the Board reluctantly accepted the apology and ratified the package as negotiated with the union, that is K800,000.00 repatriation allowance and three months salary for each completed year of service as gratuity. It was further resolved that the same package would apply to management." Thus it will be seen that the redundancy benefits or gratuity for unionized and non unionized employees were the same. There is no dispute on the evidence that due to financial constraints the Respondent was not able to pay the Appellants their benefits at the time of termination and arrangements were made to pay the Appellants in installments as and when money became available. Further in terms of Section 26 B(3) of the Employment (Amendment) Act of 1997 the Respondent was paying the Appellants their basic salaries up to the time when their redundancy benefits were paid in full. The Appellants were not satisfied with the quantum of the redundancy benefits and the rate at which they were being paid and instituted proceedings in the Industrial Relations Court claiming:- 1. 2. 3. that the Respondent has breached the contracts of employment; that the Respondent has declined to pay the compensation (redundancy) package to all the complainants. The Respondent has only agreed to pay a token of gratuity; that the Respondent has contravened the Employment (Amendment) Act of 1997 Section 26 B(3). The Appellants were therefore claiming for the following reliefs from the Court:- (a) recovery of full redundancy benefits with interest at the current bank lending rate from 31st March, 1999 until full settlement; (b) recovery of withdrawn allowances and increments from 31st March, 1999 until the date when retrenchment packages will be fully paid. (c) A declaration that the retrenchment (compensation) package due to the complainants be as provided under Clause 30 of the Collective Agreement of 1995 or improved. The Court in the main found for the Respondent, hence this appeal. In the amended Memorandum of Appeal Counsel for the Appellants filed seven grounds of appeal, namely that:- 1. 2. 3. 4. 5. the lower Court erred in law and fact by failing to make an order on the issue of three months pay in lieu of notice as the same is admitted by the Respondent in its answer; the lower Court erred in law and fact by relying on the evidence of one witness and ignored other evidence to the contrary in holding that the increase in the complaints' allowances was not authorized as such they were not entitled ; that the lower Court erred in law and fact by holding that the retrenched workers were properly paid when in fact the complainants had not been paid and it was one of the issues that they sought the court to decide; the lower Court erred in law and fact by holding that with regard to 10% rental deductions in its view Clause 30 and 12 of the Collective Agreement and Conditions for non unionized employees were meant to be operative before employees who were retrenched were entitled to pay, now that retrenched employees were entitled to pay that this leads to unjust enrichment. Such holding was not supported by any evidence law; the lower Court erred in law and fact by holding that it considered interest but in its view the need to have the Respondent continue in operation by far out weighed that, as such it did not award any interest; 6. 7. the lower Court erred in law and fact by failing to address the issue of repatriation for the complainants who were in management and recovery of pension contributions by all complainants which the Respondent stopped remitting to the pension scheme in 1994; the lower Court erred in law and fact by ordering that the method of calculating the retrenchment package as provided for in the 1995 Collective Agreement was amended by mutual consent of the union on behalf of the unionized employees and the management and subsequently approved by the Board therefore, unionized employees had the method of calculating their retrenchment benefits correctly indicated. Also that in calculating the redundancy benefits for the eight Respondents who were in management except for Grace MAINA , the changed conditions would apply. In arguing the first ground of Appeal, Counsel for the Appellants stated that the Appellants in their complaint claimed among other things, three months pay in lieu of notice of the redundancy and that they relied on Clause 1 l(f) for unionized conditions of service and Clause 29.4 for non represented employees appearing on pages 84 and 103 respectively of Volume 1 of the record or appeal. That the Respondent in its answer appearing on page 78 of Volume 1 of the record of appeal, admitted and indicated that it was going to pay. Further, Counsel submitted that the Respondent's witness No. 2 admitted in cross examination that the Respondent was going to pay in lieu of notice and that this appears on page 49 of Volume 1 of the record of appeal. She said that it is trite law that where there are admissions as shown herein, the court should decide in favor of the claimant. With regard to the second ground of appeal, Counsel for the Appellants submitted that the allowances in issue are for the Appellants who are in management and that these were gardener, rent, furniture, electricity and water allowances. She said that there was contradictory evidence by the three witnesses for the Respondent in relation to the reason why the Respondent removed the increment in allowances which it had earlier awarded to the Appellants immediately prior to the redundancy being effected. She said that the first witness for the Respondent, a Director of Finance in cross examination at page 41 of Volume 1 of the record of appeal told the Court that he was not aware that the Appellants' increment in their allowances were reduced and that that was not normal practice. That the second witness for the Respondent in cross examination at page 51 of Vol. 1 of the record of appeal told the Court that he was not aware of the increment in allowances and, like the first witness for the Respondent, admitted that the removal of increment in allowances did not appear to be normal. She said that the third witness for the Respondent in cross examination on page 68 of Volume 1 of the record of appeal told the Court that it was the union that complained about the increment in allowances. She said that despite the contradictory and insufficient evidence before it, the Court relied on the evidence of the second witness in re-examination appearing on page 56 of Volume 1 of the record of appeal and that this evidence was not supported by any documentary evidence. She further made reference to the judgment on page 16 of the record where the Court relied on the evidence of the Respondent’s Director of Operations and said that it was unbelievable that allowances for employees in such a big organisation could be increased by one person, a Mr. MASEKO of undisclosed position who had no authority to do so. But the increased allowances were paid. She said that there is no evidence on record that Mr. MASEKO was the one responsible for the preparation and signing of cheques as well and that the Respondent did not produce the charge form or disclose the outcome of the disciplinary proceedings against him or call him to testify on its behalf. She said that there was an obvious error in this finding of fact and it should be interfered with. She submitted that the Appellants were entitled to the increased allowances and that the deductions were unjustified. Arguing the third ground of appeal, Counsel for the Appellants said that the notice of complaint which appears on page 75 of volume 1 of the record of appeal claimed, among other things, recovery of full redundancy benefits. The evidence on record indicates that since the termination of employment in March 1999 to date, the Respondent has not paid the Appellants their full redundancy benefits. She said that on 6 of September, 2000 the complainants had filed an application for an interim order for settlement of the admitted sums tabulated by the Respondent, but the Court decided that a trial be held on all the issues. She said, in its judgment the Court at page 15 of the record had posed some questions such as, "were the retrenched workers properly paid? If so, are those paid being correctly paid?" she said that the Court answered in a vague way, yes to all questions. She said that it was a miscarriage of justice to fail to make an order that the ex-employees who have not yet been paid or have been partially paid should receive their dues with interest and costs. She submitted that this Court, in the interest of justice and for the benefit of the people of Zambia should answer the question, for how long should an employer who has retrenched its employees continue paying the ex-employees full wages without liquidating their retrenchment benefits? She said that in her view Section 26 B(3)(b) of the Employment Amendment Act of 1997 is not meant to be applied indefinitely, but for a reasonable period. She said that the Appellants were retrenched in March, 1999 and that it is now over three years and they have not been paid their terminal benefits. She said it is an unreasonable period of time no matter what problems the employer may be facing and that ex employees should not be tied to their ex employer indefinitely and that in her view, one year is a reasonable time within which the ties should be severed. In arguing the fourth ground of appeal Counsel for the Appellants said that it is trite law that the intention of the parties to an agreement is made effective by the Courts and it is up to the parties to amend the terms of their agreement and not the Court. She said that Section 26(b)(3) of the Employment Amendment Act of 1997 is a directive and was not meant to take away the rights and obligations of parties under their agreements. She said that therefore the complainants who were not unionised are entitled to arrears of 10% of their salaries which were being deducted as they were not supposed to contribute to rentals according to their agreement under Clause 30.1 which is contained at page 103 of Volume 1 of the record of appeal. In arguing the fifth ground of appeal, Counsel for the Appellants said that the lower Court took into account an irrelevant issue when it decided not to award interest because the principle is that interest is awarded as damages for withholding a debt. She said that this was stated in the case of Zambia State Insurance Corporation Vs Sara's Farms Limited SCZ NO. 6 of 1987 on page J6. She said that there was no justification for refusing to award the Appellants interest on the money which the Respondent had failed to pay them since the 26 August, 1999 when the complaint was filed. She therefore prayed . t that the lower Court's decision be varied and that that Respondent be ordered to pay the gratuity and redundancy compensation packages in full, arrears of io allowances which were withdrawn or reduced, three months' salary in lieu of notice and repatriation with interest and costs in the lower court and in this court. In arguing ground six, Counsel for the Appellants said that the agreement which fixed the repatriation amount was between management and the union and did not affect the non-unionized employees. She said that the complainants who were in management complained about the K800,000.00 that was paid across the board as repatriation and that they had asked the court below to improve on it. She said that Clause 30.2 of the Conditions of Service for non unionized staff provides as follows:- "The Corporation shall meet repatriation expenses to the employee's destination within Zambia when an employee is declared redundant by the Corp oration." She said therefore that the amount payable should not have been fixed for every employee at such a low figure as K800,000.00 and that transport costs should be for the employee, his family and buggage to a chosen destination within the country. She said that travel expenses to some remote parts of the country may be higher than the sum that was granted and that repatriation for each one of these employees should be determined by getting quotations from public transporters otherwise the Court should fix a higher reasonable sum and the Respondent should be ordered to pay the balance. Counsel further said that on page 53 of Volume 1 of the record of appeal, the Respondent’s second witness testified that the Respondent stopped remitting the complainant's contributions to the pension scheme in 1994 and that the Corporation intended to refund this. She said that the lower court did not make any ruling on this aspect and that pension is part of the complainants' dues and she asked the Court to make an order that the complainants recover their pensions contribution which the Respondent deducted from their salaries but failed to remit, plus whatever was supposed to be the employer's contribution with interest. In arguing the 7th ground of appeal, Counsel for the Appellants stated that the second ground of complaint was that the Respondent had declined to pay the compensation (redundancy) package to all the complainants and has only agreed to pay gratuity. The Appellants therefore claimed for compensation based on the formula under Clause 30 of the Collective Agreement of 1995 or a better package to be determined. She says that under Clause 11(f) of the 1998 conditions of Service for unionized employees, it is provided that "retrenchment payment shall be negotiated for between the Union and Management." She said that the complainants maintain that they are entitled to compensation apart from gratuity and that their contention is that gratuity is just a token of appreciation, in short, it is a gift. She said that payment of compensation for retrenchment should be separate from gratuity and that retrenchment is a form of early retirement and that under Clause 12(iv) appearing on page 86 of volume 1 of the record of appeal, all employees who retired early should be paid a compensation package and gratuity. She said that Clause 11 (f) provides for negotiation of retrenchment payment and not gratuity only and that the management and union had agreed on a formula for gratuity only and that there was nothing agreed in relation to compensation for retrenchment. She said that the conditions of service that applied to the complainants who were unionized were the 1998 conditions and that these were not changed and that the complainants who were unionized are entitled to some retrenchment payment. She said that because the union and management did not negotiate and agree on the formula to be used, she urged this Court to award compensation to the complainants of 24 months pay, plus one month's pay for each completed year of service. She said that in her view, this is reasonable compensation which should be in addition to the gratuity which was offered by the Respondent. She said that the 1995 conditions of sendee from which the formula is derived were for non unionized employees but under the circumstances of this case, the compensation package can be the same across the board. She said that with regard to the complainants who were in management, her understanding of the main judgment is that they were held to be entitled to the retrenchment package under the 1996 conditions of service appearing on page 102 of volume 1 of the record of appeal. Clause 29.4 of those conditions states that the benefits shall be approved by the board at the time of termination and that since the formula was not determined, the complainants took the old formula relating to the compensation package under Clause 30 of the 1995 conditions of service which provides, twenty four months plus one month's pay inclusive for each completed year of service. She said that since gratuity had been calculated by the Respondent, the compensation package is in addition to the gratuity. She said that however, the court below did not award a specific order to that effect and that if the direction taken by the Appellants is wrong, she would seek a clarification from this Court. Since the parties cannot negotiate at this stage, it is up to this Court to make an award. Counsel further said that the lower Court contradicted itself by stating that the complainants who were non unionized were not affected by the purported change of conditions of service because they continued to work after the change. They should be bound by the new conditions. She said that her contention is that one cannot be said to be bound to something that he did not know about. The complainants were retrenched without notice and only came to know about management's decision or intention to only pay them gratuity, repatriation and leave pay when retrenchment was in effect. She further said that the Respondent did not initially adduce evidence to the effect that some of the complainants who were in management continued to work after the purported change of conditions and that such evidence was only brought in on appeal. That the Deputy Chairman Mr. T. KATANEKWA in the Ruling dated th7 December, 2001 on pages 1 and 2 of the supplementary record of appeal stated that:- "The judgment of this Court is that the new packages did not apply to those in management as they were not consulted. If this was not the correct position in relation to some of the people in management, it was incumbent upon the Respondent to bring evidence before the Court which evidence would have been considered by the Court in reaching its decision. At this stage, we are dealing with the issue of execution and to attempt to bring evidence to vary the evidence of the Court at this stage is to try to get the Court to review its decision without following the proper procedures. It is therefore improper for the Defendants to try and disadvantage some of the complainants by trying to review the case through the back door." However, the other Deputy Chairperson, the late Mrs. Justice C. KAFUNDA in her judgment on appeal appearing on pages 3 to 10 of the supplementary record overruled Hon. Mr. Justice KATANEKWA by considering such evidence and Ruling: "We now confirm the lower court's order that in calculating for the eight non unionized employees excluding Grace MAINE, the changed conditions and or compensation be applied. We also confirm that in MAINE'S case the prechanged conditions be applied." She said that this Ruling did exactly what the Court that heard the evidence feared to do, that is to review its decision without following proper procedures. She submitted that the Ruling of the late Mrs. Justice KAFUNDA is tantamount to a review of the main judgment that was delivered on 16th October, 2001 and that she has no jurisdiction to make such a review as that jurisdiction lies in the Supreme Court. She said that in fact the Appellant’s advocates did not claim an order that some of the complainants should not be entitled to a compensation package, but merely disputed the amounts arrived at by the Respondent. She said that the Court misdirected itself when it excluded some of the complainants who are in management from getting a compensation package and that the evidence relied upon should have been brought in at trial so that the witness is fully examined and that it was improper to admit new evidence on appeal. She reiterated that the purported change was unilaterally made by management and cannot apply to persons who were not aware of it and that it fails. That even all the complainants who are in management are entitled to compensation packages, gratuity, repatriation, leave pay and three months' pay in lieu of notice. In conclusion, she said that confusion is created when it is said that the Appellants are said to be relying on the conditions of service of 1998 and 1995 and that the true position is that they are relying on the 1998 conditions of service that applied to them on the date of termination of employment. The formula for a compensation package was not specified by the Court below and that is why they adopted the one under the 1995 conditions of service and that in order to clarify the position, the formula under the 1995 conditions of service should be taken as an award by this Court unless a different award is made. In reply counsel for the Respondent argued that in relation to ground 1 under Clause II (f) of the Conditions of Service for the Respondent's unionized employees and Clause 29.4 of the Conditions of Service for non unionized employees, it is provided that where redundancy or retrenchment is effected, the employee shall be entitled to three months notice. However, in instances where a shorter notice is given as the case was in the Appellants redundancy, there is also a provision in the conditions of service to the effect that the party giving such shorter notice shall pay a month's salary in lieu of three months notice. He referred us on this point to Clause 5 on page 83 of the record of appeal. He said that the relief sought by the complainants according to the notice of complaint which was filed in court were:- 1. 2. recovery of full redundancy benefits with interest at the current bank lending rate from 31st March, 1999 until full settlement; recovery of withdrawn allowances and increments from 31st March, 1999 until the date when retrenchment packages will be fully paid; 3. a declaration that the retrenchment (compensation) package due to the complainants be as provided for under Clause 30 of the Collective Agreement of 1995 or improved. He said that the payment of three months salary in lieu of three months notice was not one of the reliefs which were sought by the Appellants. He said that at no point during the trial did the Appellants ask the Court to make an order for payment of three months salary in lieu of notice. He submitted that even if the court below had endeavored at its own instance to make such an order, there was no dispute that would have required the Court's intervention as the Appellants' witness on page 24 of the record of appeal confirmed that they were being paid a salary in lieu of three months notice. He said that this ground had no merit. With regard to the second ground of appeal, Counsel for the Respondent submitted that the Respondent is a statutory body established under Section 3 of the Postal Services Act, Cap 470 of the Laws of Zambia and that under Section 3 (1 )(2) of the first schedule of Postal Services Act, it is provided that the Post Master General shall be the Chief Executive of the Postal Services Corporation and that he shall perform such of the functions of the Corporation as are delegated to him by the Corporation. He said that under Section 3(3)©, it is provided that the Post Master General shall not exercise any function generally delegated to him by the Corporation under sub clause 3.2 without the express specific approval of the Corporation in relation to any general variation of the salaries, wages or allowances of postal officers. Under Section 1 (I) of the First Schedule of the Postal Services Act, the Board of Directors constitute the Corporation. That it is not in dispute that there was no board approval for the variation of the allowances under dispute which were effected by one MASEKO who was not even the Post Master General. He submitted that the lower Court was on firm ground in holding that the increase in allowances was not authorized and as such the Appellants were not entitled to the increase as this is what the law says under the Postal Services Act. With regard to the third ground of appeal, Counsel submitted that there was no undue delay in paying the Appellants their terminal benefits and that during the trial documentary evidence was adduced to show the efforts which were being made by the Respondent within its limited resources to pay the Appellants terminal benefits. He said the trial Court also had the benefit of evaluating the evidence from witnesses on how the redundancy package was worked out and the progress made in paying the Appellants terminal dues before it made the finding that the Appellants were being properly paid. He further said that the finding was not perverse or made in the absence of relevant evidence or an unbalanced evaluation of the evidence available and said that this finding was done in accordance with the law and should not be disturbed. He said that at the commencement of the trial there was undisputed evidence to the effect that eighty-five of the employees declared redundant had been paid in full in respect of their terminal dues whereas others had been partially, but substantially paid their dues. He said further that as of now all the eighty-seven Appellants have been paid in full all their redundancy benefits as worked out in their letters of redundancy and that the submission by the Appellants' Counsel that the Court should fix a period in which the terminal dues should be paid is too general and not in line with the Employment Amendment Act of 1997. He said that circumstances and facts may differ from one case to another and submitted that cases should be considered and determined on the basis of the facts and evidence of each particular case as laid before the Court. Turning to the fourth ground of appeal, Counsel submitted that as provided under Clause 31 on page 103 of the record of appeal, the conditions of service for non-unionized Appellants became effective on the 1st of April, 1996. Clause 4.2 of the said conditions of service on page 95 of the record of appeal makes provision for serving employees to contribute a nominal sum of 10% of their monthly salary towards maintenance of accommodation provided, whereas Clause 30 exempts those not in receipt of a monthly salary from contributing. He said that at the time these conditions of service were worked out, the statutory requirement to continue paying salaries to employees declared redundant but not paid redundancy benefits had not yet been introduced and neither was it envisaged that employers would be required to continue awarding salaries to employees who had not been paid their terminal dues. He said that the simple logic between the two clauses i.e. Clause 4.2 and Clause 30.1 at the time of working them out, was that those employees in receipt of monthly income from employers and accommodated by the employer were reasonably expected to contribute a nominal sum towards the maintenance of their accommodation as they had the means to do so, whereas those not in receipt of a salary were reasonably not expected to contribute as they did not have the means. He said that it was for this very reason that the contribution was a percentage of one's monthly salary. He therefore submitted that the trial Court was on firm ground when it held that Clause 30 and Clause 12 of the Collective Agreement and conditions of service for non-unionized employees respectively was meant to be operative before employees who were retrenched were entitled to monthly pay as it was merely giving effect to the intention of the parties at the time of working out the conditions of service. With regard to the fifth ground of appeal, Counsel for the Respondents said that the issue that the lower Court took into account in not awarding interest in this matter was the public need to have the Respondent continue in operation far out weighed the need for interest. He said that he submitted that before the Court determines whether or not the issue the lower Court took into account is relevant in not awarding interest, it is important that the background to the case is considered. He said that the definition of redundancy as provided for in both conditions of service for unionized and non unionized employees is that of loss of employment through no fault of the employee or the employer and that the major reason why the Respondent had to declare the Appellants redundant was that the Respondent was facing serious financial problems as a result of reduced business volumes. He said that the audited accounts produced in the Court below showed that as at 31 March 1999 the current liabilities for the Respondent exceeded its current assets by KI 3 billion. That the Respondent had continued to make large operating losses in the year under consideration and that the loss had moved to K10 billion from K5 billion the previous year. He said that the Respondent had taken other measures to try and salvage the situation but had failed and that it continued to experience financial difficulties to the level that it became a non going concern which was ripe for liquidation. He said that with this background and taking into account that the employees declared redundant had continued to draw a monthly salary, the decision not to award interest could not be said to have been made on an irrelevant consideration and further that the services provided by the Respondent in nature are of national necessity and there was therefore need for the Respondent to continue in operation and as rightly observed by the Court below that need out­ weighed the need for awarding interest. He further said that in any case the award of interest is a matter within the discretion of the court. With regard to the sixth ground of appeal, Counsel for the Respondent said that the issue relating to the recovery of the pensions contributions by the complainants was never raised by the complainants in the Court below. He said that it was up to the complainants to raise the issues that they want the trial Court to determine and that if the complainants do not raise the issues during trial, the trial Court cannot later on be held to have erred in law and fact in failing to make a decision on an issue that was not raised before it. He said that the statement made on page 53 of the record of appeal cannot be said to be a claim as it was an answer made by a witness for the Respondent well after the complainants had closed their case. He said that the Supreme Court is a Court of appeal and not a trial Court and that as this issue was not raised during the trial, it cannot be raised on appeal. On the question of repatriation, Counsel for the Respondent said that the redundancy package together with the repatriation allowances were properly approved by the Board in line with the conditions of service and the provisions of the Postal Services Act. He said that in arriving at the figure the parties took into account a number of factors including the fact that the Respondent is in parcel delivery business and that they do provide physical transport to those who prefer physical transport as opposed to the payment of the said sum of money. That if the non unionized employees would want to be repatriated, the Respondent is prepared to provide its parcel truck to physically take them where they want to settle within Zambia provided that they pay back the K800,000.00 paid to them as repatriation allowance. With regard to the seventh ground of appeal, Counsel for the Respondent invited the Court to take cognisance of legal status of the Respondent's procedures that should have been followed by the Respondent's in arriving at the final judgment in this matter. He said that the Respondent is a statutory body established under Section 3 of the Postal Services Act, Cap 470 of the Laws of Zambia. That its composition is provided for in the first schedule of the Postal Services Act; that Section 3(1) provides that the Respondent's corporation shall consist of a Board of Directors comprising eight members being the Post Master General as Chief Executive and seven other nominees from various organisations; that Section 8 of the first schedule of the Act confers on the Board powers to determine the terms and conditions of employment of the Respondent's employees as well as their terminal benefits in the event of separation. He said that in line with powers conferred on the Respondent's Board of Directors, the Board approved the two sets of conditions, one for employees in the management category and the other for unionized employees; that the redundancy for employees in the management category are provided for under Clause 29 of the approved conditions of service for non-unionized staff which appear on page 102 of the record of appeal. Whereas for unionized employees, the procedures are to be found in Clause 11 of the Collective Agreement which appears on page 84 of the record of appeal. He said that the other procedures are provided for under the Employment Amendment Act of 1997 particularly Section 26(b)(1) (b) thereof. He said that the evidence on record is that the Respondent followed all the procedures contained in the Employment Amendment Act as well as the Collective Agreement and the conditions of service for non unionized employees. He said that there is also evidence on record that a notice of not less than thirty days was given to the complainants' union about the impending redundancies and that this notice which appears on page 332 of the record of appeal sets out the number of employees to be affected as well as the period within which the terminations were to be carried out. He said that there was also evidence on record that the Labour Commissioner was given more than sixty days notice about the redundancies before they were effected and that this notice appears on page 333 of the record of appeal; that the nature of the redundancy package was also communicated to the Labour Commissioner as appears on page 342 of the record of appeal. He said that further as required by Section 8 of the first schedule of the Postal Services Act, the redundancy package was approved by the Respondent's Board on 19th of February, 1999. He said that it was not correct to say that there was no redundancy packages agreed upon and approved by the Board; that the second schedule of the Memorandum of Agreement between the management of the Respondent and the National Union of Communication Workers as read together with Clause 3 of the same agreement stipulated the nature of the redundancy package which was to be paid to the affected employees and that the minutes of the Board were also produced. He said that the parties agreed on the redundancy payment without any form of duress and he submitted that what was agreed upon should be respected. Counsel for the Respondent said that with regard to the assertion by Counsel for the Appellants that there was a review of the trial judgment when the full bench of the Industrial Relations Court made a Ruling to stay execution, he submitted that there was no such contradiction that could reasonably be deemed to be a review of the judgment delivered by the lower Court. He said that the trial Court's judgment was to the effect that those non unionized employees who continue to work after the conditions of service for non unionized employees were changed, were deemed to have accepted the new conditions. He further said that the 1995 conditions of service for non unionized employees which had prescriptive provisions on redundancy packages were replaced by the conditions of service which had a clause which empowered the Board to approve the redundancy package in place of the prescriptive package and that this came into effect on the 1st of April, 1996. He said that from 1st April, 1996 to the date of the said redundancies, the clause which empowered the Board to approve the redundancy package was operational and the eight non unionized Appellants continued to work under the said conditions of service. He submitted that the full bench of the Industrial Relations Court therefore rightly enforced the judgment of the lower Court when they set aside the writ of fifa that was issued by the Appellants and he urged us to dismiss the appeal as being without merit. We have considered the submissions of counsel for the Appellants and for the Respondent as well as the evidence on record. The first ground of appeal was that the Court below erred in law and fact by failing to make an order on the issue of three months pay in lieu of notice as the same is admitted by the Respondent in its answer. As was correctly pointed out by Counsel for the Respondent the issue of three months pay in lieu of notice did not form part of the Appellant's claims in the Court below and cannot be brought up now at this stage. Further there is also evidence on record that the Appellants continued to receive their basic salaries after termination pursuant to the provisions of Section 26 B of the Employment (Amendment) Act, 1997. This ground of appeal cannot succeed. The second ground of appeal was that the Court below erred in fact and law by relying on the evidence of one witness and ignoring other evidence to the contrary in holding that the increase of the Appellants' allowances was not authorized and as such they were not entitled to them. The Respondent is a statutory body established by Section 3 of the Postal Services Act, Cap 470 of the Laws of Zambia. Section 1(1) of the first schedule to the Act constitutes the Board of Directors of the Respondent. Clause 3(1) of the same schedule makes provision for the Board to appoint a Post Master General who shall be the Chief Executive of the Respondent. Clause 3(2) of the same schedule provides as follows:- 3(2) subject to sub-clause (3) the Post Master General shall perform such of the functions of the Corporation as are for the time being delegated to him by the Corporation. The Post Master General shall not exercise any function generally delegated to him by the Corporation under sub-clause (2) without the express specific approval of the corporation in relation to:- (a) (b) ................... (c) any general variation of the salaries, wages or allowances of postal officers. It is common cause that the allowances in question were effected by one MASEKO who at the time from the evidence on record was acting as Director of Human Resources. There is also no dispute that the allowances in question were not approved by the Board and the court below was on firm ground in holding that the increase in the allowances was not authorized and this ground of appeal cannot succeed as well. The third ground of appeal was that the lower court erred in law and fact by holding that the retrenched workers were properly paid when in fact the Appellants had not been paid and it was one of the issues they sought the court to decide. There was evidence on record both oral and documentary showing the efforts made by the Respondent within its limited resources to pay the Appellants their terminal benefits. This was a finding of fact made by the lower court and this finding was not perverse or made in the absence of relevant evidence or an unbalanced evaluation of the evidence before it and this ground of appeal cannot succeed as well. The fourth ground of appeal relates to the deduction of 10% of the salaries as rental for those Appellants who were accommodated by the Respondent after they were retrenched. This ground and argument are based on Clause 30 of the Collective Agreement which provided as follows:- 30.1 "An employee who has been retired, declared redundant or retrenched, shall continue to be housed free of rent or receive housing allowance whichever is the case until his/her benefits accruing from the Corporation have been paid in full unless these are part of the Civil Service Pension and Zambia National Provident Fund. As pointed out by Counsel for the Respondent these conditions of service became effective on 1st April, 1996. Clause 4.2 of the same Agreement makes provision for serving employees to pay 10% of their monthly salary as rent. At the time which this Agreement was entered into, the Employment (Amendment) Act, 1997 was not on the statute books and it could not be envisaged that employers would be required to continue paying salaries to employees who had been retrenched and not paid their terminal benefits. The payment of rental is dependant on receipt of salary and for as long as the Appellants were in receipt of salaries, they were obliged to pay rentals. The Court below was on firm ground in holding as it did and this ground cannot succeed as well. The fifth ground of appeal relates to the decision of the Court below not to award interest to the Appellants on the monies awarded to them. It is trite law that the award of interest to a successful litigant is in the discretion of the court. In deciding not to award interest the court below stated that in its view the need of the public to have the Respondent continue in operation far outweighed the need to award the Appellants interest. It is a matter of common knowledge that the Respondent provides an essential service to the public. It was also common cause that the retrenchment of the Appellants was caused by a contraction in business for the Respondent and lack of funding by the government. There can be no question of fault on the part of the Respondent or even the Appellants. Further given the fact that the Appellants were being paid their monthly salaries till their terminal benefits were paid, we are unable to agree that the court below took into account an irrelevant issue in deciding not to award the Appellants interest. This ground cannot succeed as well. The sixth ground of appeal was that the Court below erred in law and fact by failing to address the issue of repatriation for complainants who are in management and settlement of pension contributions which the Respondent stopped remitting to the pension scheme in 1994 which is part of the terminal benefits. The Appellants in their notice of complaint filed in the court below did not claim for a refund of their pension contributions and therefore cannot raise this issue before us when it was not raised in the court below. As for repatriation Clause 30.2 of the conditions of service for non unionized employees provides that:- "The corporation shall meet repatriation expenses to the employees' destination within Zambia when an employee is declared redundant by the Corporation.” There is also evidence on record that on 19 February, 1999 the Board of the Respondent resolved that repatriation allowance for both unionized and non unionized employees be fixed at K800,000.00. There could therefore be no basis for the Court below to have awarded any other amount having regard to Clause 3(3) of the first schedule of the Postal Services Act we have referred to earlier on. This ground of appeal is devoid of merit as well. The seventh ground of appeal relates to the failure by the Respondent to pay the Appellants a "compensation package for redundancy." Counsel for the Appellants has argued that what was paid to the Appellants was merely a gratuity and not compensation for loss of employment through redundancy. The provision relating to redundancy for the unionized employees are to be found in the Collective Agreement appearing on pages 80 - 102 of the record of appeal and in particular Clause 11(f) thereof provides as follows:- 11(f) NOTICE OF TERMINATION OF EMPLOYMENT AND APPLICABLE PAYMENT Where redundancy or retrenchment is effected, the employee shall be entitled to three months notice and redundancy or retrenchment payment shall be negotiated for between the union and management. The provision relating to redundancy for non unionized workers is to be found in the conditions of service for non represented staff which appear on page 103 of the record of appeal in particular Clause 29.4 which provides as follows:- 29.4 REDUNDANCY AND RETRENCHMENT PAYMENT Where redundancy or retrenchment is effected, the employee shall be entitled to three months notice and the redundancy or retrenchment benefits shall be as approved by the Board at the time of termination. There is evidence on record that the Union and management negotiated and agreed on a retrenchment package of three months salary for each completed year of service. This package was approved by the Board at its meeting on 19th February, 1999. At the same meeting the Board also resolved that the same package should apply to those employees who were in management. Although the package was referred to as "a gratuity" in the minutes, it is in fact a redundancy or retrenchment payment in terms of Clause 11(f) of the Collective Agreement for the unionized employees and Clause 29.4 of the conditions of service for the non-unionized employees. It is therefore not correct to assert that the Appellants were not paid compensation for loss of employment by reason of redundancy and we find no merit in this ground of appeal as well. The sum total of our decision is that we dismiss the Appellant's appeal, but in the circumstances of this case we make no order as to costs. D. M. Lewanika DEPUTY CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE S. S. Silomba SUPREME COURT JUDGE 34