Zambia Consolidated Copper Mines Ltd v Zimba (Appeal 74 of 1998) [1999] ZMSC 61 (3 March 1999)

Appeal No. 74 of 1998 IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: ZAMBIA CONSOLIDATED COPPER APPELLANT MINES LIMITED AND STEELFORD T ZIMBA RESPONDENT Coram: Chirwa, Lewanika, Chibesakunda, JJS 2nd December, 1998 and 3rd March, 1999 For the Appellant: P. Chamutangi, Legal Counsel, ZCCM For the Respondent: In Person 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 nated against when the appellant declared him redundant instead of placing him on early retirement. The trial court ordered that the respondent's redundancy be changed to early retirement and that the respondent be paid the difference between the redundancy benefits and those of early retirement. The court further ordered that the respondent be paid three months salary arrears based on current salary of equivalent post. It was common cause in the lower court that the respondent was employed by the appellant at its Nchanga division as a clerk on 12 th March, 1969. In 1992 there was a re-organisation at the Nchanga division as a result of which many employees including the respondent were declared redundant. The respondent received a redundancy notice on 2nd September, 1992 informing him that dZ his last shift would be on 30th November, 1992. At that time the. respondent was aged 49 years and 10 months. On 7th September, 1992 he appealed to the Manager, Human Resources to consider changing his redundancy to early retirement as he would have attained the age? of 50 on 25 th November, 1992 before his last shift. His appeal was unsuccessful and he was informed that he had not attained the age of 50 at the time that he was served with the redundancy notice. After stopping work he lodged another appeal to the General Manager of Nchanga Division on 9th December, 1992, but again his appeal was not successful. The case for the respondent was that two of his colleagues Bwalya and Musanshi who had been served with redundancy notices on the same day as him had appealed and had had their redundancy changed to early retirement. The respondent claimed that he would have got more benefits if he had been placed on early retirement. The respondent felt that he had been discriminated against and commenced proceedings in the Industrial Relations Court pursuant to Section 108 (2) of the Industrial and Labour Relations Act. The case for the appellant was that following a re-organisa­ tion at Nchanga Division a lot of employees including the respondent were declared redundant. Before that the namies of the affected employees were circulated to other divisions for possible re-deployment but the respondent was not picked by any division. That at the time that the respondent was served with the redundancy notice he was 49 years and 10 months old and therefore did not qualify for early retirement. That both Bwalya and Musanshi referred to by the respondent had their appeals rejected at divisional level but had further appealed to the Industrial Review Committee which changed their redundancy to early retirement. Further that the benefits under early retirement and redundancy were the same. Counsel for the appellant has filed two grounds of appeal namely 1. That the trial court's finding of discrimination was against the weight of the evidence. 2. That the trial court erred in awarding salary arrears for three months based on current salary cHr an equivalent post. The said award is tantamount to reinstatement. In arguing the first ground counsel submitted that the finding of the lower court that the respondent was treated less favourably than his colleagues without justification was not supported by the evidence on record. He said that Bwalya and Musanshi appealed to the Industrial Redundancy Review committee but the respondent did not. He said that the lower court should not have taken the role of the Industrial Redundancy Review Committee which could have either allowed or rejected the appeal. He said further that in any case the respondent did not qualify for early retirement in accordance with his conditions of service. He referred us to Clause 8.4.3 (c) of the Conditions of Service which provides for early retirement which is in the following terms "(c) Early Retirement. If in the opinion of the company an employee who has attained the age of 50 but not 55 is prematurely aged and is unable to perform his duties, the company may terminate the employ­ ment by early retirement." He said that the respondent did not qualify in that there was no evidence of "premature aging." He said that for the respondent to succeed he should have shown not only that his J4 colleagues had their redundancies converted to early retirement but that lie had prematurely aged and was unable to perform his full duties and this would have required medical evidence. See PAUL GWESE VS. Z. C. C. M. Appeal No. 38 of 1993. Turning to the second ground he said that the measure of damages is the loss suffered by the respondent and not an imaginary loss and that the lower court appears to have either applied a wrong principle or misdirected itself on the facts. He submitted that the lower court has assumed that the appellant has in its employment structure an equivalent post arid that it follows therefore that if there is no such equivalent post then that part of the judgment is ineffectual, i.e., it is incapable of being complied with. He said further that the respondent has no current salary and to order the payment of a current salary amounts to reinstatement. He submitted further that there was a dispute as to what an employee on early retirement gets but the lower court did not make any finding on the issue. Moreover the lower court did not explain why the respondent should be paid 3 months salary in addition to the payment of the difference between what he got and what he would have received had he been put on early retirement. He urged us to set aside tne award as being against the principles of law. In reply the respondent said that the trial court's finding that he was discriminated against was fully justified as there was evidence on record that Bwalya and Musanshi were accorded early retirement when both men were of the same age as him and yet his appeal for early retirement was rejected twice. Turning to the second ground he said that the benefits for early retirement and redundancy are not the same and said that his colleague Musanshi got more money after his redundancy J5 was converted to early retirement. He urged us to dismiss the appeal as being devoid of merit. We have considered the submissions of counsel for the appellant and those of the respondent as well as the evidence on record. It is common cause that at the time that the respondent was served with the redundancy notice he had not attained the age of 50 and therefore did not qualify for early retirement in terms of his conditions of service. There was also no evidence on record that the respondent had prematurely aged and was unable to perform his full duties. The respondent had appealed to the management of the appellant company against being declared redundant on two occasions and had been unsuccessful. His colleagues whose redundancy had been converted to early retirement had appealed to the Industrial Redundancy review Committee and the respondent had by his own admission not appealed to that committee. We are unable to speculate what the decision of that committee would have been if the respondent had appealed to it. Having said that, we fail to see on what basis the trial court could have come to a decision that the respondent had been discriminated against or been less favourably treated than his two colleagues and for that reason we would allow this appeal. In the circumstances we find it unnecessary to deal with the second ground as it would be otiose. We will make no order as to costs having regard to the financial capabilities of the appellant and the respondent. D. K. Chirwa SUPREME COURT JUDGE D. H. Lewanika SUPREME COURT JUDGE L. P. Chibesakunda SUPREME COURT JUDGE