Zambia Consolidated Copper Mines Ltd v Mweso (Appeal 76 of 1998) [1999] ZMSC 119 (3 March 1999)

Appeal No. 76/98 IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: ZAMBIA CONSOLIDATED COPPER- MINES LIMITED APPELLANT AND Coram: Chirwa, Lewanika, Chibesakunda, JJS ROWLAND C MWESO RESPONDENT 2nd December, 1998 and 3rd March, 1999 For the Appellant: ZCCM Legal Counsel For the Respondent: Messrs N Kapeze & Co. JUDGMENT Lewanika, JS. delivered the judgment of the court. This is an appeal against the decision of the Industrial Relations Court which found that the respondent had been discrimi- on nated against or unfairly treated/account of his tribe when he was selected for redeployment and/or redundancy. The court further found that it could not order the respondent's reinstate­ ment as the appellant had proved the existance of a redundancy situation in the Supply Department and the Industry as a whole and that as the respondent had been given a full redundancy package the court would instead order that he be paid ten months salary of an Assistant Head of Supply or equivalent post, as compensation. The evidence before the lower court, which was not in dispute was that the respondent at the material time was employed as Assistant Head of Supply in tne Nchanga Division of the appellant J2 company. In December, 1993 there was a re-organisation structure affecting all senior staff positions within the mining industry including the supply department. In the supply department it was decided to reduce the positions of Assistant Head of Supply from four to three. Management in the appellant company on 15th December, 1993 wrote to the respondent in the following terms:- "Dear Mr. Mweso, REDEPLOYMENT Following the company decision to rationalise the senior staff structures and manning levels thereof, it has been decided to offer you the post of Procurement Officer Capex SP at Nchanga Division. Should you accept this offer, you will continue to enjoy the current salary and benefits applicable to you on a present incumbent basis. However, should you decline the offer, you will be declared redundant and paid redundancy package. Please indicate whether or not you accept this offer by signing and returning the duplicate form to us immediately. Yours sincerely, L. J. Hanschar GENERAL MANAGER The respondent did not accept redeployment and as a consequence thereof he was declared redundant and paid his redundancy package. The case for the respondent was that he could not accept redeployment because the job he was offered was a grade below that which he was doing ana it would have meant reporting to persons who hitherto had been the same rank as himself. He also said that he would not get salary increments nor get assessments and hence would lose out on promotional prospects. He said that he was removed by his head of department Francis Mulenga to make way for a fellow bemba who was related to the General Manager Mr. Pius Maambo through marriage. He said that Maambo was a tonga whilst Muienga was a bemba and he was tumbuka. He however conceded that his letter of redeployment was not signed by Maambo but another General Manager. The case for the appellant was that following the re-organisation in the company it was decided to reduce the positions of Assistant head, of Supply from four to three. The incumbents were Chewe, Mutale, Zulu and the respondent. The selection of who was to go and who was to be retained was based on performance, experience and qualification. He said that in terms of experience all four were experienced, in terms of qualifications the respondent was better qualified than the others but that what weighed against him was his performance. They denied that the respondent would not have been entitled to assessments if he had accepted redeployment and said that the respondent would not have lost any promotional prospects. The trial court after considering the evidence adduced before it bemoaned the fact that the appellants had not called the Head of Supply who was the supervisor of the four Assistant Heads of Supply and made the following findings "........ Being the head of the department, we assume that the Head of Supply was the person who made the decision to select the complainant. R. W.1 being in a different department was not in our view the person who made the decision to select the complainant for deployment in a wa? ‘■ wit”< si aS f ’ s. . .. wia mm; o* too faiivr~ on its ^sri of t < . ; ■;■’ hr. ’ / tc testify, we (■.jm '^oh: »< ci 7^ tviecnt . s^tiuceh y Vv Cv'\j I dicin'. Lv : »<: -. ’"ect ? < t tt read of Sup; ly who was ’.;ei ■ l < i'jr r r ic-yr«nt in : lower cavity cr^t-v h v-5,i-</ for is ;.'ii‘SJian Wycil’f tes net In r- ■ r“ tr.t r-sbuttal etIdlin':< «>:j Mj .' imjiion irer .. --v r’-j u'. GwciaiOA at :.• why u.c luct? r r n .s as! ter ■ c<i i d i coulii teva stiacUi! ut-:.11 > v h’ > <r- murpf : ’at the m was ><’ct .1 ■^■j . :.• of St-s. iy ‘•■■s was not ri /.o. j trisw, that 'o'i'r, tne c^sj we ha*f t .eo to..- . G.-r. U.-wt nas rfjve*. that he was u^^-J *..-•• i »4i t,'ITO!’ Cvvioy>wtt .‘•■<4uSf '*1 US Ai (i •> • tii, V-U 5 1 uilib,- U’cl Li-i$ it ‘nv$ a< . * fvr t ■■ >:ad initiejiy tiltO thr-af; c# s.-v^jh I ji. ■ - only it-'v-;<. two ?2fer' u$ vm- । .,«?>. court •;<-.■ tew srmc in nW Cbns lu&rj yt CtO of tn<.- (ij pi* I unt erm h L‘. !,ni$ OfOO’Ki counsel fur tAb aop" 1 1 iW. i'.. - thnt V;' m^nJ* H’s ciditft is aas^a on section IL..; v ! of tn*i JnUuSu'L. H dib. Letcur t*S «L IU»|$ A-‘l en; toy Oiu:,-- 0 I Seri u f> i t ICO ;. .". >..-. uaiis '. J Lripai • ’■f eC* . “'’ >;id 7u'. t*to r-:f. .'Jent • I ;-i. :1a toe f i“L tAdi. L 'tsfir WHS .'••<.■<• ti '’'.'GrC.* :i> i .1 i •< I llsiAv Li’liv Sv^.eAuOK 7 SO d. J'Iha fOlJI* . submitted . ' o fi'itliA.; c-i l‘u trial W^rt tbSt hb-r ■wiv .•(..... •.■■_• by the resoondent to ths effect that the Head of Supply who was bemba selected him for redeployment in a lower capacity to create a vacancy for his tribesman Wycliff Mucale was not supported by evidence. That the evidence on record was that there were four Assistant Heads of Supply and one of the four was Hutale and that the evidence of R. W.1 on this aspect cannot be called hearsay. He submitted that the decision of the trial court amounts to putting itself in the place of the appellant and assuming the responsibilities of the appellant. 2. That the damages awarded were excessive. In arguing this ground counsel for the appellant submitted that the respondent was not complaining that he was not paid a redundancy package, his complaint was that somebody else of the four Assistant Heads of Supply should have been retrenched. Moreover, the trial court in its judgment found as a fact that the respondent was given a full redundancy situation. He further said that the decision of the trial court to pay the respondent ten months salary based on the present salary of an Assistant Head of Supply or an equivalent post is objectionable in that it presupposes the existence of the post or its equivalent. Moreover, the compensation is not payable if the post or its equivalent ceased to exist. He further submitted that if the court finds for the respondent, he should in the circumstances of this case be entitled to only nominal damages. He said that this was so as in the case of ZAMBIA NATIONAL BUILDING SOCIETY VS. PENIAS TEMBO, SCZ NO. 9 OF 1995 we gave 9 months salary to the employees in circumstances where the employees were merely paid 3 months salary by the employer based on the salary at termination of employment. He therefore do submitted that the respondent be paid a moiiCu's salary based on 'Che salary at termination of employment as nominal damages. in reply counsel for the respondent submitted that with regard to the first ground of appeal that the trial court had considered the evidence of the appellant but rejected it because it was not supported by documentary evidence. He said that the issue which the court considered was whether the method of selection of who was to be declared redundant among the four Assistant Heads of Supply was fair. He said that the court had established that even though tne appellant through R. W.1 stated that out of the three variables used, i.e., performance experience and qualifications of the four Assistant Heads of Supply, the respondent's performance was not satisfactory but the appellant did not produce documentary evidence to support this and enable the court to compare the performance of the four. Ha also said that the court found that the appellant failed co call the Head of Supply who should have made the decision to select the respondent for re-deployment and the witness it called, R. W.1, was from a different department and was not the person who made the decision and as such was not a proper witness as to the facts. He submitted that there was sufficient ground for the trial court to find that the respondent was unfairly treated, applying the principles laid down by this court in the case of ZCCM LTD. VS. JAMES MATALE. With regard to the second ground of appeal counsel submitted that taking into account the decision of this court in the case of BARCLAYS BANK OF ZAMBIA LTD. VS. MANDO CHOLA AND IGNATIUS MUBANGA, SCZ NO. 8 OF 1997 where it was stated that even though the question of mitigation of damages should guidethe Industrial Relations Court, the court is however expected to be more lic<ral and generous in its awards and in that particular case awarded compensation equivalent to twelve months salary to the respondents and the ten months salary awarded to the respondent in this case cannot be said to be excessive. He further said that the respondent was alive to the fact that the respondent had been awarded a full redundancy package and that the post of Assistant Head of Supply is still in existence. He urged us to dismiss tile appeal. He have considered the submissions of counsel for the appellant and the respondent and the evidence on record. The respondent's case was based on discrimination pursuant to Section 103 (2) of the- Industrial and Labour Relations Act, that he had been discriminated against on account of his tribal extrac­ tion. It is common cause that at the time the appellant company was undergoing restructuring as a consequence of which a number of employees were declared redundant. The respondent was offered redeployment to another position, albeit a lower one, but without loss of salary or other benefits but he opted for redundancy and was paid his full redundancy benefits. His complaints of tribal victimisation recited to May, 1992 when he was transferred from Assistant Head of Supply - Purchasing to Assistant Head of Supply - Techpro and had nothing to do with the decision to deploy him. As a matter of fact, at the time that he was redeployed, from the evidence on record he had reverted to Assistant Head of Supply - Purchasing. The trial court must have misapprehended the facts before them and there was no basis for them to "assume" that the respondent was discriminated against J8 because he was not bemba but a tumbuka. He would therefore allow tiie appeal and set aside the decision of trie lower court with costs, the costs are to be taxed in default of agreement. D. K. Chirwa SUPREME COURT JUDGE D. M. Lewanika SUPREME COURT JUDGE L. P. Chibesakuncia SUPREME COURT JUDGE