Thole and Anor v Public Service Pensions Fund Board (Appeal 18 of 2005) [2007] ZMSC 174 (13 February 2007)

IN THE SUPREME COURT OF ZAMBIA- APPEAL No. 18 of HOLDEN AT KABWE (CIVIL JURISDICTION) BETWEEN: Thole Raphael Wilson Chikatazya - - 1st Appellant 2nd Appellant And Public Service Pensions Fund Board Respondent Coram: Sakala, CJ; Mambilima and Silomba, JJS, on the 2nd of August 2005 and 13th of February, 2007. For the Appellants - In Person For the Respondent - Mrs. E. M. Kapuka, Legal Officer JUDGMENT Mambilima JS, delivered the Judgment of the Court. Cases referred to: (1) Wilson Masauso Zulu vs. Avondale Housing Project Ltd. (1982) ZR 172. (2) Kachasu vs. Attorney General (19670 ZR 145. (3) Zambia National Broadcasting Corporation Limited vs. Penias Tembo and Two Others S. C. Z. Judgment No. 9 of 1995. We would like to apologise for the late delivery of this Judgment. This was occasioned by the heavy work schedule on the part of the Court. This is an appeal against the decision of the Industrial Relations Court dismissing the Appellants prayer to be reinstated in their employment with the Respondent with full benefits, on the ground that their dismissal amounted to discrimination on grounds of religious affiliation and a violation of their rights under Articles 19(1) and 23 of the Constitution of Zambia. The Court also rejected their claim for damages under Section 85 of the Industrial and Labour Relations Act. The facts in this case are common cause. The two Appellants, Mr. Raphael Thole and Mr. Wilson Chikatazya, were employees of the Respondent holding positions of Assessment Officer and Information Technology Officer, respectively. They are both members of the Seventh-Day Adventist Church. There was evidence from the Respondent that sometime in 1999, someone attempted to set fire to their offices. As a result they decided to hold a workshop on security awareness for all members of staff. Resource persons were drawn from the Office of the President. According to the evidence of the Respondent’s witness, the workshop was to be held on Saturday the 9th and Sunday the 10th of October, 1999. On 4th October 1999, all employees, including the Appellants, were informed about the workshop and they were all instructed to attend. Since Saturday was their day of worship, the Appellants met the Chief Executive of the Respondent and informed him that they were unable to attend the workshop. They asked for an alternative date. The Chief Executive rejected their request and told them that if they did not attend the workshop, they should consider themselves dismissed. The record of appeal, on pages 66 and 76, shows that separate memos were written to the Appellants reminding them to attend the workshop without fail. The memos ended by stating that: ‘All members of staff from Chief Executive to the Caretaker will be participating in this very important Workshop. Therefore, no excuse will be entertained from anyone for non participation? On Saturday the 9th October 1999, both Appellants did not attend the workshop but instead, went to worship. There was evidence before the Court that apart from the Appellants, there were other employees of the Respondent who were members of the Seventh Day Adventist Church. They attended the workshop. When the Appellants reported for duty the following Monday, they were asked to exculpate themselves over their failure to attend the workshop. They were later charged and a disciplinary hearing was held. On 14th December 1999, both of them were dismissed. Upon dismissal, the Appellants filed a complaint in the Industrial Relations Court seeking reinstatement with full benefits. They alleged that their dismissal from employment amounted to discrimination on grounds of religious affiliation and was a violation of their rights under Articles 19(1) and 23 of the Constitution of Zambia. They also sought damages under Section 85A of the Industrial and Labour Relations Act. The Appellants contended, in the Court below, that according to their conditions of service, they were supposed to work 40 hours per week, that is, from Monday to Friday. They did admit, however, that on occasions, they would work over time and even on public holidays or on Sundays. The Respondent, on the other hand, contended that by failing to attend the workshop; the Appellants were insubordinate and failed to obey lawful instructions. After evaluating the evidence which was before it, the Court below was of the view that the claim by the Appellants, that they were dismissed on grounds of religious affiliation, could not stand under Section 108 of the Industrial and Labour Relations Act in that, all members of staff, including those on leave, save for the two Appellants, attended the workshop. The Court noted that most people in this country are Christians who worship either on Saturday or Sunday. The Court observed that that since the workshop was held on both Saturday and Sunday, it meant that even those who worship on Sunday were equally inconvenienced, and consequently, it could not be said that the holding of the workshop discriminated only against the two Appellants for being members of the Seventh-Day Adventist Church. The Court observed further, that the two Appellants did not even avail themselves for the workshop on Sunday which was not their day of worship. On the claim by the Appellants that their dismissal was a violation of their rights under the Constitution, the Court observed that in this case, each of the Appellants entered into a binding contract with the Respondent and these contracts created rights and duties on the parties. The Court observed that the Appellants’ letters of appointment clearly stipulated that the Appellants would be subject to a code of discipline and any other instructions which may be issued by the Respondent. The Court observed that a breach of duty imposed by the contract on either party would give rise to certain consequences as prescribed by either the contract or the general principles of the law of contract. The Court then reasoned that since the contract of employment was voluntarily entered into by the Appellants, they could not subsequently be allowed to avoid any obligation created by the contract on grounds of religious scruple. The Appellants have appealed to this Court advancing two grounds of appeal, that; 1. The Court below erred in holding that the Appellants refused to attend the Respondent’s seminar on Sunday; and, 2. The Court erred when it held that the Appellants dismissal was not based on discrimination under Section 108 of the Industrial and Labour Relations Act. The Appellants filed written heads of argument. At the hearing of the Appeal, they relied on the said heads. It is the Appellants’ argument on the first ground of appeal, that the Court below misrepresented their case when it held that the Respondent’s witness told the Court that the workshop was held over two days. They argued that the invitation to the members of staff to attend the workshop was for Saturday, 9th October. According to them, there was no documentary evidence adduced to show that the workshop was to be held over two days. To this effect they disputed the evidence of DW1 on page 119 of the record of appeal where he said that the workshop was held over a two day period. They reiterated their submission in the Court below, that their working hours were 8 hours per day, for 5 days, giving a total of 40 hours per week. The Appellants further submitted that although they were also required to follow general instructions as and when directed, they had already put it to the Respondent that they would work only on Sundays and public holidays, except Saturdays. They maintained that their dismissal contravened Section 108(1) which prohibited termination of employment on grounds of, among others, religion. In response to the submissions by the Appellants on the first ground of appeal, Mrs. Kapuka, for the Respondent, referred us to the evidence of DW1 on page 119 of the record of appeal and submitted that this witness informed the Court that the workshop was held on Saturday and Sunday. According to Counsel, the Appellants failed to discredit the witness on this testimony even in cross-examination and they could not now contemptuously criticize the trial Court’s record of proceedings under the guise of an appeal. Counsel further submitted that the Court below made a finding of fact when it stated that “there was evidence that the workshop was held on both a Saturday and a Sunday”. Relying on the case of Wilson Masauso Zulu vs. Avondale Housing Project Limited (1), Counsel submitted that this Court can only reverse findings of fact made by a trial court if it is satisfied that the findings in question are either perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts, which is not the case in this matter. In the alternative, Counsel argued that if the lower Court erred, then such an omission is not fatal because it is not in dispute that Appellants shunned the workshop on Saturday on account of their religious beliefs. Counsel further submitted that it is clear from the record that there were other Seventh Day Adventists who attended the workshop and on this premise, the Court below could not have come up with a different conclusion. On the second ground of appeal, the Appellants submitted that if other employees of the Respondent who are Seventh Day Adventist members attended the workshop on Saturday that did not compel them to do the same. They argued that under Article 19(1) of the Constitution of Zambia, a person should not be hindered in the employment of his freedom of conscience without his consent. According to the Appellants, the Court below erred to refer to the other members of Seventh Day Adventist church because these members had consented to attending the workshop on Saturday. In this vein, the Appellants argued that the Respondent’s Chief Executive had no right to force them to attend the workshop and in insisting that they ought to have attended, he contravened the Constitution of Zambia. In their further submissions, the Appellants felt that the case of Kachasu vs. the Attorney General (2) cite by the Court below was irrelevant. They argued that whereas in the Kachasu case there was insubordination, what was purported to be insubordination in this case was the Appellants right to exercise their right to freedom of worship. In reply to the Appellants’ submissions on the second ground of appeal, Counsel for the Respondent repeated her submissions on the first ground of appeal and added that the holding by the trial Court was a finding of fact. We have considered the judgment of the Court below and the submissions of the parties. As we have stated earlier in this judgment, the facts in this case are common cause. It is not in dispute that the Respondent called for a workshop which was to take place on Saturday the 9th of October, 1999. All its employees were instructed to attend the workshop. It is also common cause that the Appellants did not attend the said workshop on account of their religious beliefs. This was notwithstanding the Respondents written reminder to them to attend the workshop. In the first ground of appeal, the Appellants are raising issue with the observation by the Court, that there was evidence before it, to the effect that the workshop was held on both Saturday and Sunday. Their main contention is that there was no evidence to this effect. To buttress their argument, they referred to the Respondent’s invitation to members of staff for the workshop, which gave the date of 9th October 1999. It would appear to us that the Appellants are labouring under a misconception that evidence can only qualify to be such if it is in documentary form. It is trite that evidence can either be viva voce, that is oral, or documentary. A court would have to decide at the end of the day what weight to attach to the oral or the documentary evidence. In this case, the Respondent’s witness did state in his testimony to the Court, that the workshop was held over two days. This witness was cross- examined on this point. It is not therefore correct to say that in this case, there was no evidence at all that the workshop was held on both Saturday and Sunday. The Court did accept that evidence and it cannot therefore be faulted for having stated that there was evidence on record to show that the workshop went on for two days. Be that as it may, even if we were to uphold the Appellants’ argument on the first ground of appeal; it would not help their case at all because they did not attend the workshop on Saturday. The record shows that they were charged for not attending the workshop on this day and their exculpatoiy statements were not accepted and hence the dismissals. In our view, the first ground of appeal is irrelevant to the matters in issue. Coming to the second ground of appeal, the Court below accepted the evidence that the workshop took place on both Saturday and Sunday. The Court also took note of the evidence that other members of staff who go to the same church as the Appellants did attend the workshop on both days and on this premise, decided that the Appellants complaint of discrimination under Section 108 of the Industrial and Labour Relations Act could not succeed. The relevant provisions of this Section state: ‘No employer shall terminate the services of an employee ..... ; on grounds of race, sex, marital status, religion, political opinion or affiliation For a litigant alleging discrimination under this Section to succeed, he or she must prove that his or her employment was terminated substantially on the ground alleged. We had occasion to interpret this Section in the case of Zambia National Broadcasting Corporation Limited vs. Penias Tembo, Edward Chileshe Mulenga and Moses Phiri<3). Although the complaint in that case was based on discrimination on the ground of political affiliation, the underlying principle and rationale for the law cuts across all the grounds mentioned in the Section. Justice Gardner, who delivered the judgment of the Court, had this to say: ”In considering the purposes of the section as it relates to discrimination on grounds of political opinion or affiliation, the proper construction of the intention of the law is that no person who is of a certain political opinion or affiliation shall have his services terminated substantially for that reason. We use the word ’substantially’ because , of course, there may be other legitimate reason for an employer’s being entitled to terminate the services of an employee who is a member of a political party and whose actions may be prompted by his loyalty to that party. It is clear that employers should not be prevented from giving notice in accordance with contracts of employment to employees who have given cause for dissatisfaction. ... As an example of proper dismissal of an employee in such circumstances we would envisage that, where a number of members of a political party engaged in an illegal strike for the purpose of bring down the Government, their employer would obviously be entitled to dismiss the illegal strikers despite their political affiliation, the illegal strike would be the cause of the dismissal”. Likewise in this case, it is clear to us that the Appellants were not dismissed because they were Seventh Day Adventists, but on account of disregarding the Respondent’s instructions to them to attend the workshop on Saturday 9th October 1999. As pointed out by the Court below, the Appellants were in a voluntary contractual relationship with the Respondent and their contracts placed responsibilities and obligations on them. We agree with the Court below that the Appellants should not be allowed to avoid their obligations under their contracts on grounds of religious scruple. The second ground of appeal also fails. This appeal therefore stands dismissed with costs to the Respondent to be taxed in default of agreement. E. L. Sakala CHIEF JUSTICE I. C. Mambilima SUPREME COURT JUDGE S. S. Silomba SUPREME COURT JUDGE 17