Simon Kamiji Sakuwaha v Madison Finance Company Limited (COIVlP/IRCLK/ 469 /2021.) [2022] ZMIC 9 (12 August 2022)

IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: COIVlP / IRCLK/ 469 /2021. SIMON KAMIJI SAKUWAHA · . COMPLAINANT AND MADISON FINANCE COMPANY LIMITED RESPONDENT CORAM: Hon. Lady Ju s tice Dr. Winnie Sithole Mwenda in Chambers at Lusaka this .12 111 day of August, 2022. For the Complainant: Mr. M. J Chitupila of Gill & Seph Advocates For the Re spondent: Ms. G. S amuifrom Zambia Federation of Employers RULING Cases referred to: 1. 2. 3. 4. 5 . 6. 7. Zambia Consolidated Copp er Mines Limited v. Elvis Katyamba and Others (2006) Z. R. 1. Tembo v. Firsl Quantu m Minerals Limited-Mining Division, SCZ Appeal No. 12 1 20 15. Concrete Pipes and Products Limited v. Kabimba and Simukoko, SCZ Appeal No. 11 of 2 0 I S. Lack.son Mu kurna and Others v. Barclays Bank Plc., SCZ Appeal No.2 of 2 01 3. Nitroge n Chemicals of Zambia v. Boyd Chomba Mutambo and Others, SCZ Appeal No. 75 of 2 011 . Robbie Temho u. National Milling Corporation and 2 Others, SCZ Appeal No. 105 of 2 007. Ros ton Mubili Mwans u v. NFC Africa Mining Plc., SCZ Appeal No. 12 of 2008. 8. Arniran Limited v. Rohcrl nones, CAZ Appeal No. 103 of 2 019. 9. Bridget Mutwa le v. Professional Services Limited (1984) Z. R. 72. 10. Patel v. Attorney General and Another, 2020/ HP/ 1336. 11. Shepherd Muz hike v. Chambishi Smelter Limited, CAZ Appeal No. 75 of 2 019. Legislation cited: :(t 1. Section 85 (3) of the Indust,ial and Labour Relations Act Chapter 269 of the Laws of Zambia. ' F' age I R2 2. Rule 44 of the Industrial Relations Court Rules, Chapter 269 of the Laws of Zambia. Publications referred to: 1. B,yan A. Gamer, Black's Law Dictionary, 8 th Edition (West Publishing Company, 2 004). 2. Mwenda, W. S. and Chungu, C., A Comprehensive Guide to Employment Law in Zambia (University of Zambia Press, 2021). 1. Introduction/Context 1.1 The Complainant herein filed a Notice of Complaint in the Industrial Relations Division of the High Court of Zambia on 7th September, 2021 against the Respondent on the ground that he was constructively dismissed from the Respondent's employ on 24th June, 2021 when the Respondent, acting though its Managing Director, permanently and without the Compla inant's consent and without having consulted him, alter ed his job pos ition and role. That, the alteration to the Complainant's job position and role was a material adverse chan ge that resulted in a demotion from his initial position of Deputy Head Consumer, Business Development Corporate to a lower back room administrative position of Operations Man ager. The Complainant alleged that the Respondent's actions were not only unlawful but also premeditated, in bad faith and undertaken in a manner that was meant to and did in fact, cause embarrassment, mental anguish, distress and trauma and seriously damaged the relationship of trust and confidence between the Respondent and Complainant. 1.2 In view of the aforesaid, the Complainant sought an order from this Court for damages or compensation for loss of employment (as a result of constructive dismissal}; damages P age I R3 for embarrassment, mental anguish, distress and trauma; interest on all sums found due and costs of the suit. 1.3 The Respondent filed an Answer on 4 th October, 2021. However, before the matter could proceed to trial the Respondent herein filed a Summons to Dismiss Complainant for want of Jurisdiction pursuant to Section 85 (3) (a} of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia on 10th May, 2022. The Summons was supported by an Affidavit (hereinafter called "the Affidavit in Support"}, of even date . 1.4 The Affidavit in Support was sworn by one Idreen Malambo, the Managing Director/ Chief Executive Officer of the Respondent. 2. Evidence Affidavit evidence in support of application l. l Idrecn Malambo (hereinafter called "the deponent"}, deposed that the Complainant as Deputy Head Consumer-Business Development Corporate, reported to the Head of the Consumer Department, Mrs. Salima Nyangu, who then reported to the deponent as Managing Director/ Chief Executive Officer of the Respondent. 1.2 The deponent averred that the Complainant's conditions of service included the Lawrence Sikutwa and Associates Limited Group of Companies ("LSA Group") General Conditions of Service . 1.3 The deponent averred further, that as indicated throughout the exhibit marked "CMKl", in the Respondent's Affidavit in Support of Answer filed in Court on October 4, 2021, the p ;1 g p I R4 LSA Group Grievance and Disciplinary Procedures Code wa s an intrinsic part of the LSA Group General Conditions of Service. A copy of the Grievance Procedure was produced in evidence as exhibit "IM l". 1.4 Further, that the LSA Group Grievance Procedure was broken down into three stages, namely, taking up the matter with the immediate supervisor; the second and third stages provided an employee still aggrieved by successive decisions to continue to escalate the matter higher up the Respondent's corporate hierarchy until they reached the Board of Directors. The escalation was termed "appeal" under the Grievance Procedure. 1.5 The d eponent deposed that it was only at Stage 3 where the a ggrieved employee had "appealed" to the Chief Executive Office r or Board , a s the case may have b een, that an employee could circumvent the Grievance Procedure by comme n cing legal action against the Respondent in court. 1.6 Th e depon ent furthe r deposed that the alleged decision that the Compla ina nt was aggrieved with was one that the depone nt as Managing Director had communicated to him only the da y be fore , on June 24, 2021 as reflected at pages 10 to 13 of the Complainant's Bundle of Documents filed into court on Februa ry 22, 2022. 1.7 The deponent avowed that he had been advised by the Head of the Consumer Department, Mrs. Salima Nyangu, that between the time the deponent sent the email on June 24 ' 202 1 and when the Complainant commenced this court action on September 7, 2021, the Complainant did not raise ((i Page I RS any grievance with her as required by Stage 1 of the LSA Group Grievance Procedure. 1.8 Further, that similarly, between the time that the deponent sent the email on June 24, 2021 and when the Complainant commenced this court action on September 7, 2021, the Complainant did not "appeal" to the deponent as Chief Executive Officer against any decision from his immediate supervisor, as required by Stage 2 of the LSA Group Grievance Procedure. 1. 9 The deponent asserted that the Complainant also failed to follow Stage 3 of the LSA Group Grievance Procedure, at which stage h e would have exhausted the administrative procedure s a va ilable to him under his conditions of service even if he h a d then commenced this Complaint. 1. 10 The d epon ent averred that he had been advised by the Respondent 's re pre sentative that the jurisdiction of this Cou r t only arises once a prospective complainant has exha u sted the a dministrative channels available to the compla ina n t, if s uch channels are available. 1.11 Further, th a t the exhibit marked "!Ml" and the Compla inant's a ckno~ledgment of it at paragraph 4 of the Complainant's Affidavit in Reply show that the Complainant did have administra tive channels through which he should have addressed his gnevances that underpin this Complaint, prior to his com1nencement of it. That, the Complainant did not exhaust the administrative channels available to him under his conditions of service. 1.12 Lastly, that he had been adyised by the Respondent's representative that it 1s 1n the interest of protecting the P il e e I R6 integrity of this Court as set out by its enabling statute, to dismiss this matter with costs for want of jurisdiction. Affidavit evidence in opposition to the application 1.13 The Complainant filed an Affidavit in Opposition to the Affidavit in Support of Summons to Dismiss Complaint for want of Jurisdiction (hereinafter called "the Affidavit is Opposition") on 13th May, 2022. 1.14 It was the Complainant's evidence that he had been advised by his advocates that due to the nature of an action of ((, constructive dismissal, an employee who claims to have been constructively dismissed does not have to exhaust an employer's grievance and disciplinary procedures. That, this a ction being one of constructive dismissal, he did not h ave to exhaust the Respondent's grievance procedure at the time of his constructive dismissal. 1.1 5 The Complainant, further, deposed that he had been a d vised by his a dvocates that it is not mandatory that an employee h as to exhaust an employer's grievance and disciplinary procedures before an action can be commenced before the Industrial Relations Division of the High Court. 1.16 That, consequently, he did not have to exhaust the Respondent's grievance procedure; specifically, he did not have to comply with the stages referred to in the LSA Group of Companies Grievance and Procedure Code. 1.17 The Complainant concluded by stating that he believes that this Court has the jurisdiction to hear and determine this matter. P a g c I R7 2. Legal Arguments Respondent's Arguments in support of application 2.1 It was submitted in support of the application that the application was made pursuant to section 85 (3) (a) of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia (the "ILRA") which reads as follows: "85. (3) The Court shall not consider a complaint or an application unless the complainant or applicant presents the complaint or application io the Court - (a) within ninety days of exhausting the administrative channels available to the complainant or applicant; or (b) where there are no administrative channels available to the comp lainant or applicant, within ninety days of the occurrence of the event which gave rise to the complaint or application: Provided that - (i) Upon application by the complainant or applicant, the Court may extend the period in which the complaint or application may be presented before it; and (ii) The Court shall dispose of the matter within a period of one y ear from the day on which the complaint or appli cation is presented to it." 2 .2 According to the Respondent, the operative words are "The Court sha ll not consid er a complaint.. . unless .. . which show th a t the provi sion is mandatory and conclusive of the prerequis ites for the Court to have jurisdiction to entertain individual complaints. Tha t, this has been consistently upheld by the superior courts in line with the seminal judgment of the Supreme Court of Zambia in Zambia Consolidated Copper Mines Limited v. Elvis Katyamba and Others 1 . 2 .3 It was submitted that in 2018, the Supreme Court of Zambia explained the effects of the Amendment Act No. 8 of 2008 in Tembo v. First Quantum Minerals Limited Mining Division2 . That the Court highlighted how section P a g c I R8 85 (3) was no longer exclusively tied to the pursuit of administrative channels. That, it was expanded into two scenarios, namely, exhaustion of administrative channels available and circumstances when there were no administrative channels available. It was contended that aside from that expansion, the general principle of the provision remained the same; that is, that subsection (3) of section 85 remained mandatory in nature and determinative of the jurisdiction of the Industrial Relations Division of the High Court. 2.4 It was argued that the plain and literal interpretation of section 85 (3) shows that there is no third option where the complainant has the discretion to choose whether to utilise a dministrative channels when they are available. That, section 85 (3) is an "either, or" provision, with no in between. Where administrative channels of redress are availa ble, the complainant "shall" exhaust them before seeking the adjudication of the Court. Where they are not, h e may proceed limita tion pe riod . to court directly, subject only to the 2.5 Submitting further, it was stated that the rationale for the above requirement is sin1ple and that is, employment laws being a personal relationship, disputes are best resolved amicably ra ther than acrimoniously. That, in the Elvis Katyamba case, the Supreme Court recognised that administrative ch annels are a means of facilitating settlement outside court. That, the fundamental importance of ex curia settlement in labour relations permeate the la bour laws and that is why it is mandatory p .i g e I R9 for employers to have a grievance procedure under section 95 of the Employment Code Act. Further, that it is also undoubtedly the reason why the courts of this country have the standard practice of referring cases to court-annexed mediation almost as soon as they are filed. Where attempts at ex curia settlement have failed, the Supreme Court recognised in the case of Concrete Pipes and Products Limited v. Kabimba and Simukoko3 , that administrative procedure still has value in that it helps to clear the decks and give the court additional material to chew on in determining the efficacy of the complaint. 2.6 With regard to what the administrative channels referred to in section 85 (3) of the ILRA are, it was submitted that the Supreme Court in the Elvis Katyamba case admitted that th ey a re not defined by law. That in Lackson Mukuma and Others v. Barclays Bank Plc4, the Supreme Court stated as follows a t pages J 13 to J 14 of the Judgment that: "What section 85 (3) (a) does, in our considered view, is to place the onus on a complainant to show that they were purs uing administrative procedures 90 days prior to the filing of the complaint. Parliament cannot be expected to legis late on when administrative procedures in the various work places s hould commence as such procedures are I2.!!]Yic{Cl_d_ for_ _in _ the qrievcmce __ {lnd ciisciplinan1 procedure -~C!..[d[-1_.'i_.!Jl th e various inst. J:1utions or contracts o( emploi1ment instil'ution." (Emphasis and differ to supplied by the Respondent) institution from 2.7 It was submitted that the apparent substance of the Complaint, being about an alleged breach of the Complainant's conditions of service, should be compared with the Complainant's conditions of service in order to determine whether there were "administrative channels" for (t p d g I? I RlO redress 1n terms of section 85 (3) of the ILRA. That, the starting point is to find a term that captures the gist of the complaint and "grievance" seems to be the most appropriate term. Black's Law Dictionary, 8 th edition defines grievance as "a complaint that is filed by an employee ... and that usually concerns working conditions." A grievance procedure is defined as "a process, consisting of several steps, for the resolution of an employee's complaint." 2 .8 That, the Respondent has averred, and the Complainant admitted, that complaints about working conditions were addressed under the LSA Group Grievance Procedure which has been exhibited as "IMl" in the Respondent's Affidavit in Support of this a pplication. That, thus, it is beyond question that there were a dministrative channels available to the Complainant which were contained in the LSA Group Grievance Procedure. Therefore, the Complainant was required to comply with section 85 (3) of the ILRA by showing how he h a d exhausted the grievance procedure prior to filing his Notice of Complaint. 2.9 It was submitted that the deponent of the Affidavit in Support of this application averred that the Complainant made no attempt wha tsoever to follow the LSA Grievance Procedure and this was borne out by the evidence adduced by the Complainant himself in his Bundle of Documents which shows that the Complainant resigned on June 25, 2021, which was the day following his receipt of the email he has centred his case on. 2.10 Further, that the Complainant, in his Affidavit in Opposition to this application freely admitted that he had made no P a g e I Rll attempt whatsoever to exhaust the administrative channels available to him. That, in his view, his Complaint had no connection to the LSA Group Grievance Procedure - a stance the Respondent considered to be contrary to the plain and literal interpretation of section 85 (3) of the ILRA. That, it is therefore, by the Complainant's own conduct that this Court does not have jurisdiction to entertain his Complaint. 2.11 In conclusion, it was submitte d that it is clear from the facts of this case that the substance of the Complaint before court is breach of employment terms and that there was an administr ative procedure under the Complainant's con dition s of service to address the grievance that gave rise to the Complain t a nd that the Complainant did not exhaust the administrative procedure before filing his Complaint. That, since the Complainant was aware of the administrative procedure but did not resort to it, apparently due to d isdain fo r th e same , that amounted to unreasonable cond u ct under Rule 4 4 ( 1) of the Industrial Relations Rules a nd s upported t h e Respondent's prayer for costs it has incurred under the misc onceive d Complaint. Thus, the Respondent p rayed tha t the m a tter b e dismisse d for want of jurisdiction wit h cos ts. Complainant's Argumen ts in opposition to application 2.1 2 In opposing the a pplica tion before court, it was submitted on behalf of the Complainant that this Court is bound by the d ecision of the Supre1ne Court in the case of Concrete Pipes and Products Limited v. Kingsley Kabimba and Christopher Simukoko3 , which, according to the P ,1 g e I R12 Complainant, was on all fours with the case b efor e this Court on the basis that: (a) Both cases were premised on a claim for constructive dismissal; and (b) the Respondent challenged In both cases, jurisdiction of the High Court to hear and determine the the notice of complaint on the basis that the complainants did not exhaust the administrative channels/ disciplinary procedure. 2.13 It was submitted that the Respondent's application (prelimina ry issue) is pre m a ture a nd unsustainable. As a u th ority for that submission, the Complainant referred to Concrete Pipes a nd Products Limited judgment (supra), wh ere the Respondent raised a preliminary issue in the Indus tria l Rela tion s Court of whether complainants who h ad not exh a u s ted th e internal administrative procedures were prope rly befo re the Court. The preliminary issue was anchored on section 85 (3) of the ILRA. That, in defence the com plain ants a rgu ed tha t they had already been constructively dis missed and ther efore , there was no point in waiting for the internal a dministrative process to be exhau sted. 2 . 14 Tha t , in dispos ing the preliminary issue , the High Court h eld tha t the question r a ised in the prelimina ry issue was part of the broa der questions to b e addressed in the main action and therefore, those issues could be raise d in the main complaint. Specifically, it wa s h eld as follows: (t "Our view of the parties ' p ositions issue s cont~nded in the p reliminary matter are ve ry much part of the zssu es to be establis hed and resolved at the hearing of that the is r ;i g e I RB the cau se. Jn the event that it is established on the evide nce that the complainants ' contracts of employment had been tenninated con structively in the manner contend ed by Mr. Muzenga, it will be clear that the disciplinary process would have been unnecessmy. On the contrary, if the respondent establishes its defence that the complainants were s till in the e mployment and subject complainants' claim. will not be forthcoming. With the foregoing in mind, that Mr. Mwewa's it is our vie w preliminary issue is premature and not sus tainable and the is dismissed.'' (Empha sis supplied by the same Com plain ant) to disciplina ry process, 2.15 That, the Supreme Court while a pproving the decision of the lower court observed that the lower court had not declined to h ear the preliminary issue but decided that the preliminary issue wa s so integrally linked with the main question for determination in the complaint that it could be properly raised in the main cause. 2.16 That, the preliminary issue referred to above was the a pplication ch a llen ging the High Court's jurisdiction to hear the noti ce of complaint on the basis that the administrative ch a nn els h ad not been exhausted. That, applying the above lo this case, th e Respondent has raised a preliminary issue as to wheth er this Court has jurisdiction to hear and determin e th e Complaint in view of the fact that the Compla inant did not exhaust the administrative channels available to him . The Complainant invited this Court to follow the reasoning in the Concrete Pipes and Products judgment and 1s prematurely before court and therefore, unsustainable. the preliminary issue which reject That, in this present case too, the issues raised are so integrally linked with the main question for determination in P ;:-, g e I R14 the Complainants Notice of Complaint that it should be raised in the main cause. 2.17 It was further submitted that, the Supreme Court went on to uphold the decision of the High Court and explained that a complainant who does not exhaust the administrative channels does not lose his/her cause of action; that refusal to subject oneself to internal disciplinary procedures goes to the credibility of the complaint in court rather than to the cause of action itself. 2 . 18 It was argued that the effect of the Supreme Court's holding in the Concrete Pipes and Products Limited judgment with respect to a complainant who has an action premised on a claim for constructive dismissal and has not exhausted the a dministrative channels, is that the complainant's cause of action is n ot lost but rather is maintained and secondly, that the dec ision not to exhaust the administrative channels only speaks to either strengthening or weakening the compla in ant's case against the employer. 2 . 19 Tha t , o n the s tre ngth of the principle of stare decisis, the (I Compla inant's Notice of Complaint and the cause of action revealed in the case before this Court, have been maintained and this is notwithstanding that he did not exhaust the administrative channels. 2 .20 It was submitted, further, that the Complainant's decision not to exhaust the administrative channels speaks to the strengthening of his complaint against the Respondent because the Complainant acted 1n line with the requirements for a claim for constructive dismissal namely , , P ;) g e I RlS that an employee must act promptly and 1n response to a breach from his employer. 2.21 That, in Nitrogen Chemicals of Zambia v. Boyd Chomba Mutambo and Others5 , the Supreme Court, when speaking on the basic requirements for a constructive dismissal claim held, inter alia, that the employee must act promptly and in response to the breach, so that he or she is not taken to have implicitly agreed with the contract. 2 .22 It was argued that further authority is drawn from the authors of A Comprehensive Guide to Employment Law in Zambia, a t pa ge 272 and 274, who state that: "It is important to note that employees will lose their right to b,inq claims (or constmctive dismissal if there is a delay in resignation in the face of the employer's intolerable conduct and fu ndamental breach of contract. What is patent from the authorities on constructive dismissal is that an emploi1ee le aves employment promptly or by notic_g_, as a result of the conduct of the employer." (Emphasis supplied by the Complainant) 2.23 That, in this case t h e Complainant resigned promptly and in response to th e unlawful actions of the Respondent. He acted in line and according to the basic requirements set out in the authorities above. That, in such an instance, the Complainant did not have the time to exhaust the administrative ch a nnels and was not, therefore, required to exhaust the Respondent's administrative channels. That, this goes to show the strength of the Complainant's case against the Respondent. 2.24 It was also submitted that the Respondent's reference to what administrative channels are, the LSA Group Grievance Procedure and whether the Complainant exhausted the Page I R16 administrative channels, 1s irrelevant as it has been overtaken and addressed by the Concrete Pipes and Products Limited judgment. That, the Complainant reiterates that a cause of action/ claim for constructive dismissal does not require the exhaustion of administrative channels. 2.25 Further, that this Court being a court of substantive justice, 1s bound to hear and determine the Complainant's complaint based on its substance and on its merits. That, this is in accordance with the Supreme Court's decision in the case of Robbie Tembo v. National Milling Corporation and 2 Others6 , where the Supreme Court emphasised that employm ent m atters should be decided on their substance and m erit. That, in order for this Court to hear and determine the Complainant's complaint based on its s u bstance and me rits, it is the Complainant's submission th at the Respondent's application will have to be rejected. 2.26 It was a rgued that the above submission holds true when furth er reference is made to the case of Roston Mubili Mwansa v. NFC Africa Mining Plc7 , where the Supreme Court pronounced as follows on section 85 (5) of the ILRA: "The s tat-utory provis ion that the !RC is not bound by the rules of e vidence mewis I.h a t the Court ex e rcises flexibility and not rigLc/.ily_ in_J,J1£! __ f!:. QJ]d dication process. For example, the rule of e vidence that only original documentary evidence may be_ allowed in e vicle ,_ice is not adhered to with rigidity as duplicates or photocopies are allowed. Again, the phrase that the Court s hall do substantia l justice between the parties before it does not mean that the Industrial Re lations Court should lose its impartiality and talce sides when determining a complaint or application. It simplu means that ~he C?u,1, must d e termine fairly and zmpartzally by talcing into account all the evidence adduced the complaint c, Page I R17 by both parties. the law and surrounding circumstances of each case." (Emphasis supplied by the Complainant) 2.27 It was submitted that this Court must determine the Compla inant's Notice of Complaint fairly and impartially by considering, inter alia, the law and the surrounding circumstances of the case. That, this law has been set by the Concrete Pipes and Products Limited judgment. Further, that if this Court follows the law as espoused in the Concrete Pipes case, as read togeth er with the circumstances of this case, it IS bound to reject the Respondent's a pplication as being premature and unsustainable. 2.28 With r egard to the issue of award of costs, it was submitted that Ruic 44 of the Industrial Rela tions Rules sets out the criteria for a p a rty to be entitled to an award of costs as follows: "Where il appears to lhe Court that any p erson has been guilty of unreasonable delay, or taking improper, vexatious or unnecess ary s teps in any proceedings, or of other unreasonable conduct, the Court may make an order for cos l s or expenses against him." 2.29 Tha t, in Amiran Limited v. Robert Bones8 , the Supreme Court provided guidance on Rule 4 4 of the Industrial Relations Court Rule s as follows: "Th al in mutters IJe}c>re the industrial Rela tions Court, costs can onltt he awarded against a part it if such party is guilty ~nreasonublc delay or taking improper, vexatious or unreasonable q_lJJL_ JJroceedinq, or of othe r unreasonable conduct." (Empha sis supplied by the Complainant) s teps in 2 .30 It was contended that the Respondent's application falls within the category of unreasonable d elay and improper, vexatious and unreasonable steps. That, the Complainant's (I Page I R18 submission IS based on the fact that th e Respondent's application IS one that has been attempted before and rejected at both the High Court and Supreme Court level. That, there was, therefore, sufficient precedent available to guide the Respondent and as such, this application has only resulted in the unjustified and unreasonable delay of the proceedings. 2.31 Further, that the Respondent's application, in light of the established and readily available judicial precedent, was an improper, vexatious and certainly unreasonable step. That, the Respondent must be sanctioned by way of an award of costs to the Complainant for the inefficient use of judicial time t h a t h a s also put the Complainant to unnecessary cos ts. 2.32 fn conclusion , th e Complainant submitted that it is clear th at t h is Cou rt has the jurisdiction to hear and determine th e Compla in ant 's Notice of Complaint. That, it is therefore, the Compl a in an t 's prayer that the Respondent's application be dis mi ssed forthwith with costs. Respondent's Submissions in Reply 2.33 The Respondent filed Submissions 1n Reply on 15th June, 2022 whe rein it observed that the Complainant went to great lengths to enrich the arguments on this application by expounding upon the "sacrosanct principle of stare decisis". It was argued tha t , unfortunately, the Complainant did not state the obvious, namely, that judgments are never applied without detailed a nalysis. That, it is not enough to conduct a superficial factual comparison a s the surrounding Pa g ~i I R19 statutes and jurisprudence are pivotal because stare decisis does not mean that judgments are immutable. 2.34 It was submitted that from the vast body of Zambian jurisprudence, at least three principles are decipherable in relation to the application of a superior court judgment; these being: whether the judgment is in fact "on all fours" with the facts in issue; whether the judgment, as common law, is overridden by statute; and whether the court that rendered that judgment has confirmed it or overridden it in subsequent decisions. 2 .35 According to the Respondent, the facts in the Concrete Pipes v. Kabimba case are distinguishable from the current case. That, the Concrete Pipes case was about incomplete disciplinary proceedings on the alleged theft of company prope rty, compounded by criminal prosecution and whether the crnploymcnt contracts had been breached, while in casu, the subj ect matter of the complaint was disapprobation that seemingly arose overnight. That, moreover, there has been a set of administrative channels that directly answer the alleged grievance that led to the complaint. 2.36 On whether or not the judgment, as common law, is overridden by statute, it was submitted that the Supreme Court of Zambia in its seminal judgment in the case of Bridget Mutwale v. Professional Services Limited9 , stated at page 72 that: So far as the reference to the common law is concerned we entirely agree with Mr. Mwanawasa and the authoriti~s to which our attention has been drawn that there is no presumption that a statute is intended to override the P :i g e I R20 common law a nd that it is a sound rule to cons true a s tatute in conformity with the common law. The latter part of t~is p roposition is of course qualified as Mr. Mwanawasa fairly pointed out by the words in Craies "except where and so far a s the sta tute is plainlu intended to alter the course of the the common Respondent) (Emphasis supplied law". by 2.37 It was submitted tha t the judgment a bove is consistent with Article 7 of the Constitution even though the former predate d the latter. That , under Ar ticle 7 , "la ws enacted by Parliamen t" are second only to the Cons titution. That, in th e context of the case of Concrete Pipes and Products Limite d , it is important to note tha t the judgment did not cite the ILRA or make any a ttempt to interpre t it. The judgm ent m erely looked at administrative remedies generally. Th a t , th e fact that the judgment came from the a pex court m eans th a t it certainly has common law value. Convers ely, th e fac t tha t it made no reference whatsoever to the s ta tute tha t wa s directly applicable means that the precedc ntial va lu e of this aspect of the common law is de pe ndent on whether a statute overrides it under the circu msta n ce. 2 .38 It was submitted , furth er , that it was undoubtedly for this very r eason tha t th e learned authors of: A Comprehensive Guide to Employment Law in Zambia opine d at page 183, th at th e Suprem e Cou r t's holding in the Concrete Pipes and Product s Limited judgm ent that the r efusa l of an employee to subject themselves to internal disciplina ry procedures goes to credibility of the complaint in court, not the c ause of action and tha t a cause of action is not lost solely because th e employee did not exhaust the internal disciplinary Page I R21 procedures, only applies to matters commenced in the general division and not in the Industrial Relations Division due to the provisions of section 85 (3) of the ILRA. 2 .39 On whether the court that rendered the judgment has confirmed it or overridden it in subsequent decisions, it was submitted that in Patel v. Attorney General and Another10 , the High Court was faced with the challenge of two Supreme Court decisions that apparently contradicted one another. The High Court guided that the principle of stare d ecisis d emands that where there is a conflict between two decisions of the Supreme Court, it is the latest decision that the lower court is obliged to follow. 2.40 It was submitted that the above 1s the reason why the Respondent went to great lengths 1n their submissions in s upport of the application to cite more recent judgments than the Concrete Pipes and Products Limited judgrnent on the same subject of section 85 (3) of the ILRA. That, it is instructive that a search did not reveal any subsequent judgment that confirmed the Concrete Pipes and Products Limited judgmcnt, but instead, subsequent Supreme Court judgments reverted to the thorough interpretation of the written law in Zambia Consolidated Copper Mines Limited v. Elvis Katyamba and Others (supra). That, if the Supreme Court has not only repeatedly d eparted from the Concrete Pipe s and Products Limited judgment, but completely overlooked it, then surely, this Court is not bound to it either. 2.41 That, it is therefore clea r that the Concrete Pipes v. Kabimba case is not supportable opposition to this application. P ;i g e I R22 2.42 With regard to the Complainant's submission that the Respondent's application is premature and unsustainable, it was submitted that, that is not the case as the application is timely as jurisdiction is not an issue that ought to arise "by the way" in the course of proceedings because where the court has no power to hear and determine a case, it becomes a waste of the Court's valuable time to delve into the merits; more so this very Court which has the very strict time frame for concluding matters under the proviso to section 85 (3) of the ILRA. 2.43 It was submitted that this case 1s distinguishable on the facts from the Concrete Pipes and Products Limited case; overridde n by statutory law and overridden by subsequent Supre m e Court decisions that rely on that statutory law. That, it follows that in this particular Court, no cause of action can be sustained in breach of section 85 (3) of the ILRA. 2 .44 On th e issue of costs, it was submitted that the sheer scope of the I~cspondent's submissions has turned the Compla ina nt's arguments on costs on their head and made them directly applicable to the Complainant himself. That, there is sufficient precedent to have guided the Complainant on the correct way of addressing his grievances. His choice of this forum meant that he was subject to its rules of fair play. This forum's rules are in section 85 (3) of the ILRA and ignorance of the law is no defence. That, the Respondent thus, maintains its prayer that the Complainant be condemned in costs for the vexatious commencement of this P ,1 e e I R23 complaint in blatant disregard of the written law and th e common law th a t supports it. 2.45 In conclusion, the Respondent reiterated that the merits of this application lie in the LSA Grievance Procedure Code read in the context of section 85 (3) (a ) of the ILRA. That, the Complainant has wantonly disregarded the express terms of the written law in favour of a judgment that the Supreme Court itself h a s not adhered to. Tha t, this Court has no jurisdiction to entertain this complaint. Therefore, the Respondent ren ews its prayer that the Notice of Complaint filed into court on September 7, 2021 be dismissed for want of jurisdiction under section 85 (3) (a ) of the ILRA, with costs in accordance with Rule 44 of the Industrial Relations · Cour t Rules. 3. Oral h earing of application 3 . 1 By agreem ent of the parties, no oral hearing of the prelimina ry issue took place. It was agreed that the Court ) wou ld rende r its r uling b a sed on the documents which were filed in Court in respect of the application. t 3.2 M y rulin g foll ows as h ereunder. 4. Determination of Application 4 .1 As indicated earlier in this ruling, this is the Respondent's a pplication for a n order to dismiss the complain t h e r ein for want of juris diction. The a pplica tion is mad e pursuant to Section 85 (3 ) (a ) of the ILRA. 4. 2 It is not in dis pute tha t the Complain ant r esign e d from the Respondent's employ on 2 5 th June, 2 0 2 1, following receipt of an em ail from the Respondent's Managing Director on th June, 2 0 2 1, citing the r eason th a t th e Responden t, P ;i e e I R24 through its Managing Director, permanently altered his job position without his consent and without consulting him, which alteration brought about a material adverse change in his conditions of employment which resulted in a demotion. 4.3 It is also not in dispute that while employed by the Respondent, the Complainant's conditions of service included the Lawrence Sikutwa and Associates Limited Group of Companies General Conditions of Service (the "LSA Group General Conditions of Service") and further, that the LSA Group Grievance and Disciplinary Procedures Code was an intrinsic part of the LSA Group General Conditions of Service. 4.4 The facts also reveal that the Complainant did not raise any grievance with his superior but simply resigned a day after receiving th e email from the Managing Director. 4.5 Having observed as above, the issue to be determined, in my view, is whether in the circumstances, this Court has been stripped of its jurisdiction to hear and determine this matter due to th e provisions of section 85 (3) (a) of the ILRA. 4.6 For ease of reference, I will quote the section here. Section 85 (3) r eads as follows: "85. (3) The Court shall not consider a complaint or an applicu.lion unless the complainant or applicant presents the complaint or application lo the Court - (a) within ninety days of exhausting the administrative channels available lo the complainant or applicant; or (b) where lhere are no administrative channels available to the complainant or applicant, within ninety days of the occurrence of the event which gave rise to the complaint or application: Provided that - ) t P ::i f; e I R25 (i) Upon application by the complainant or applican~, the Court may extend the period in which the complaint or application may be presented before it; and . (ii) The Court shall dispose of the matter within a per:-od of one year from the day on which the complamt or application is presented to it." 4.7 I am of the considered view that contrary to the Respondent's assertion, section 85 (3) has not stripped this Court of the jurisdiction to hear and determine this matter for the reasons that follow. 4.8 The Respondent has argued that since the Complainant did not exhaust the administrative channels available in the Respondent Company before filing his Notice of Complaint in this Court, the Court does not h ave the jurisdiction to hear and de termine the complaint in view of the provisions of section 85 (3) (a ) of the ILRA. 4. 9 In support of this argument, the Respondent has cited a num ber of judgmcnts of the Supreme Court which were passed a fter the Con crete Pipes and Products Limited judgmcnt and which referred to the earlier judgment of Zambia Consolidated Copper Mines Limited v. Elvis Katyamba and Others, but not to the Concrete Pipes judgm cnt. The Respondent has further argued that if the Supreme Court itself has not only departed from the Concrete Pipes and Products Limite d judgment but has completely overlooked it, then this Court is not bound to it either. 4.10 I have perused the judgments which the Respondent has r ef erre d to as b eing the judgmen ts that reverted to the earlier position in the case of Zambia Consolidated Copper Mines Limited v. Elvis Katyamba, namely, Lackson Mukuma ) I' ag e I R26 and others v. Barclays Bank Plc., Tembo v. First Quantum Minerals Limited - Mining Division and Rajagopalan Kothanda Raman v. Ngwira. 4.11 It is indeed clear that the above judgments allude to the fact that the provisions of section 85 (3) of the ILRA which require that a complaint or application be filed within 90 days of the exhaustion of administrative channels or event which gave rise to the complaint or application, Is mandatory. That is not in dispute. What must be understood is that section 85 (3) proscribes this Court from ~ I considering an application or complaint which IS filed t outside the statutory period of 90 days from the date of exhausting of administrative channels available to the a pplicant or corn plain ant; or where there are no a d m in istra tive channels available, within 90 days of the occurren ce of the event that gave rise to the application or compl ain t, unless the court extends the period within which to fi le the a pplication or complaint, on application by the a pplican t or complainant. This provision does not In any way dive st the Court of jurisdiction to hear and determine a compl a int where the complainant or applicant has not exhausted the administrative channels available to him. 4 .12 The emphasis in section 85 (3) is on tin1ely filing of matters in the IRC. In my view, the provision is mandatory with respect to the time within which to file a complaint in court and not to exhaustion of administrative channels. 4.13 The Court of Appeal best put this way, in the case of Shepherd Muzhike v. Chambishi Smelter Limited11 , when it was addressing the 2 008 amendment that culminate d into the current Section 85(3) of the ILRA: P "g c I R27 "The Supreme Court construed the earlier provision which has now been amended by Section 19 above. That provision was in s imilar terms to the amendment, the only difference being that a complaint was required to be filed within 3_0 days. Jn Zambia Consolidated Copper Mines Limited v. Elvzs Katyamba and Others, it was held that it is mandatory for the JRC not to entertain a complaint or application, unless such complaint or application is brought before it within thirty days from the date of the event that gave rise to the complaint or application. Similarly in the present case, the wording is that a judge shall not consider a complaint unless it is presented in 90 days. The I<atyamba case leaves no doubt that the wording is mandatory, and the !RD now, cannot entertain the complaint if it is brought outside the stipulated period. That being the case, it was incompetent for the trial judge to e ntertain the complaint that the fin al written warning was wrongly imposed, without being moved by the complainant for extension of time in which to present the complaint, a nd granting the extension if persuaded to do so." t 4.14 It seems to me th at the crux of the excerpt above 1s that a complaint or a pplication must be filed into court within a certain window and when this window passes, the complain an l or applicant ought to first seek leave of court to file th e compla int or application out of time. The excerpt is, in n o way, suggesting that the court lose s its jurisdiction if a complainant or applicant does not exhaust a dministrative channels prior to filing a complaint or application. 4.15 It is evident from the judgm e nts cited by the Respondent which were delivered after the Concrete Pipes and Products judgment that the issue of t he Court being stripped of its jurisdiction to consider a complaint due to the Complainant's failure to exhaust adm inistrative channels was not in the contemplation of the Court. P "' g e I R28 4.16 However, in the Concrete Pipes and Products judgment two issues came up for determination. The main issue was whether it is right for a court faced with a preliminary issue to defer consideration of such preliminary issue to the main action and the ancillary issue was whether it 1s a requirement in all cases that an aggrieved employee should exhaust internal administrative procedures before seeking judicial intervention. 4.17 While acknowledging the importance of an employee subjecting himself to internal disciplinary procedures, Malila JS (as he then was), delivering the judgment of the Court, observed as follows at pages J9 - JlO: lo to suhmit .. . Un reasonable refusal for an employee to subject himself to disciplinary p rocedures could of course have its own repercussions. The extent to which the employee's choice internal administrative disciplinary not proceedings may react upon the merits of his case, will of course vary from case to case depending on the peculiar circums tances. Our view nonethe less is that refus al to subject oneself lo internal disciplinary procedures goes to the _ crcclibility __ of3he complaint in court rather than to the cause oj_· o.c!fo!J itself In other w ords, a cau se of action is not necesswi_ly_losl h y reason m e reh1 of the fact that internal adminislro.liue clis9. R.lin an1 proceeclinqs were not concluded or acc((-dccl lo. 1~1..!.!...~- estimation, fbilure or re fusal to follow or lo _s_1!:.h) r_1<:l 011 c:sel[ lo disciplinan; procedures can only go the e mployee's either complaint ay_ai(ls l the emplol.{e r. (Emphasis supplied by the Court) to s lren4llwninl{ or weakening 4.18 From the issues that came up for determination in the Concrete Pipes and Products Limited judgment, it is clear that the Supreme Court did not go against the provisions of section 85 (3) of the ILRA. 4.19 In view of my findings above, I am of the considered view that it is superfluous for me to delve into determining r !' ~ g e I R29 whether or not exhaustion of administrative channels by employees is necessary in claims of constructive dismissal. 4.20 With regard to the opinion expressed by the learned authors of A Comprehensive Guide to Employment Law in Zambia at page 183, that the Supreme Court's ruling in the Concrete Pipes and Products Limited judgment that the refusal of an employee to subject himself to internal disciplinary procedures goes to credibility of the complaint in court, not the cause of action and that the cause of action is not lost solely because the employee did not exhaust the internal disciplinary procedures only applies to matters commenced in the High Court's General Division and not in the Industrial Relations Division by virtue of the prov1s10ns of section 85 (3 ) of the ILRA, I am of the con s ider ed view tha t the same was a misapprehension of section 85 (3) whose import has been addressed in this ruling. Therefore, the ruling in the Concrete Pipes and Products Limited judgment also applies to matters commen ced in th e Industrial Relations Division. 5. Conclusion and Orders 5.1 In view of the a bove, it is this Court's conclusion that it does have the jurisdiction to hear and determine the complaint herein. Hence, the Respondent's application to dismiss this matter for want of jurisdiction is dismissed for being without merit. 5.2 With regard to the prayers by both parties for an order of costs in their favour, I am of the view that neither party has been guilty of unreasonable delay, or taking improper, vexatious or unnecessary steps in these proceedings, or of P age I R30 other unreasonable conduct to warrant being condemned in costs. For that reason, each party shall bear its own costs . 5.3 Leave to appeal is denied . Dated at Lusaka this 12t h day of August, 2022.