Zambia Educational Publishing House v Lusanso and Ors (Appeal 151 of 2000) [2002] ZMSC 121 (26 April 2002)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA APPEAL NO. 151/00 (CIVIL JURISDICTION) BETWEEN ZAMBIA EDUCATIONAL PUBLISHING HOUSE APPELLANT AND JAYLOS LUSANSO AND 10 OTHERS RESPONDENT Coram: Ngulube, CJ , Chaila, and Chibesakunda, JJS On 25th January 200land 26th April 2002 For the Appellant: Mr. M L Mukande of Mukenda and Company For the Respondent: Mr M F Sikatana of Veritas Chambers JUDGMENT Chibesakunda delivered the judgment of the court Honourable Chaila having died this judgment shall be regarded as a majority Judgment. We apologize that due to circumstances beyond our control this Judgment has been delayed. In this appeal the Appellant Company is challenging the decision of the High Court, which was in favour of the Respondents. The facts on which there was common ground are that the Respondent and 10 Others were employees of the Appellant. The Respondent was employed in October 1998. There is no evidence on record as to when the other ten were employed. The Respondent joined the Appellant Company as part of management. In the course of the employment the Appellant Company failed to pay salaries to the Respondent and other employees from 1997 December to January 1998. Because of that the Respondent as non-unionized employee together with the unionized employees formed a steering committee to press the Appellant Company to pay them their entitlements. J2 According to the evidence in cross-examination, this committee was formed as a result of the advice received from Zambia Privatization Agency in the heat of privatization of the Appellant Company. The evidence for the Respondents also is that this committee was to look into the contributions as well as other entitlements of the Respondents. This committee therefore worked out a letter addressed to the Appellant Company of which seventeen employees appended their signatures. It was agreed amongst the employees to send that letter to the Appellant Company except for two people, Steven Mvula and Grace Chilambo, who were both on leave. In response to the committee’s letter to the Appellant Company asking the Appellant Company to intervene to improve the conditions, the Appellant Company wrote firstly a letter asking them to exculpate themselves as to what was said to be misconduct. The Appellant Company wrote to all individually asking them to exculpate themselves on this alleged misconduct. They all wrote to the Appellant Company and then to the Permanent Secretary, Ministry of Education, exculpating themselves. In response to these letters of exculpation, the Appellant Company wrote to individuals as per page 185 the letter to the Respondent dismissing the Respondent and ten others. The Respondents and ten other then wrote to the Appellant to appeal to the appeal board. The board rejected the appeal on grounds that the Respondent and 10 Others misconducted themselves by forming and agitating to the improvement for their conditions. The case of the Appellant Company before the High Court was that it was wrong for the Respondent and 10 Others to work as a union to write them and to agitate for it to endeavour to improve their conditions which the Respondent and some clamed were deteriorating and the Appellant Company maintained that this was a serious offence deserving summary dismissal. The lower court held that the Appellant Company was wrong to have done that and not to have followed the disciplinary code therefore the court ordered reinstatement of the Respondent plus the 10 Others. J3 Now before us Mr Mukande very ably argued the case of the Appellant. He argued that this was a misdirection. On ground one, he argued that there was overwhelming evidence of misconduct by the Respondent and 10 Others. He pointed out that the Respondents were a combination of unionized employees and management and that they came together specifically to cause despondence amongst workers and that this was done by the Respondents to bring this in order to secure their terminal benefits in relation before privatization. His second ground is that the learned trial Judge misdirected herself when she held that the Company was due for privatization when there was no such evidence that the Company was due for privatization. On ground three, he argued that the lower court misdirected itself by disregarding reasonable grounds advanced by the Appellants for the delays in determining the Respondents’ appeals, thus exhausting the internal disciplinary structures. He went on to say that at the time the Respondents appealed to the Board there was no Board in existence. So they were a in hurry and so they came to court prematurely without exhausting the internal measures. Mr Sikatana in response supported the lower court’s verdict and held that the court was on firm ground. We have looked at arguments and records. Firstly, we endorse the lower court’s views on liability. It is our view that the measures taken by the Appellant Company were not supported in the disciplinary code. We also hold the view that the measures taken by the Appellant Company were unproportionate to the misconduct alleged to have been committed by the Respondents. Because of these reasons we endorse the lower court’s views that the dismissals were null and void. However, the remedy of reinstatement is remedy rarely imposed unless special circumstances deem that remedy to be necessary. In the case before us we hold the view that the Respondents, because of the restructuring of the Appellant Company, should have just been declared redundant. So we order that in place of reinstatement that the Appellant Company declare the Respondents redundant. Consequently, we order that the redundancy packages be given to all the Respondents. Costs of this appeal to be borne by the Appellants. J4 M M W S Nguhibe CHIEF JUSTICE L P Chibesakunda SUPREME COURT JUDGE