Zambia National Commercial Bank Ltd v Mhango (Appeal 117 of 1999) [2000] ZMSC 125 (5 September 2000)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 117/99 HOLDEN AT KABWE (CIVIL JURISDICTION) BETWEEN ZAMBIA NATIONAL COMMERCIAL BANK LTD. APPELLANT AND DOROTHY SIMPASA MHANGO RESPONDENT CORAM: Chirwa, Muzyamba and Lewanika, JJS on 2nd November 1999 and 5th September 2000. For the Appellant: Mr. A Siwila and Mr. M. D. Lisimba, Legal Counsel, Zambia National Commercial Bank For the Respondent: Mrs. C. K. Kafunda, Kafunda & Co. JUDGMENT Chirwa, J. S. delivered the judgment of the Court: - Cases referred to: - 1. 2. 3. Zambia Union of Financial Institutions V Zambia Hankers employers Association (Unreported) Zambia National Commercial Bank VAlbertina Mubita & Others, Appeal No. 118/98 Barclays Bank (Z) Ltd. VChola andMubanga fl 995-97/Z. R. 212 This is an appeal by the Zambia National Commercial Bank against the judgment of the Industrial Relations court delivered at Ndola on 4 May th 1999 in which it held that the respondent Dorothy Simpasa Mhango was wrongfully dismissed from her employment for allegedly going on strike went in fact there was no strike but instead the management had locked out unionized workers. The facts are that the respondent was employed by the appellant. Between 23rd and 29th June 1992 she was attending Tusha Clinic where she was receiving an inferon injection. On 26th June 1992 she worked up to 1530 hours when union officials asked permission from the management to address employees on their colleagues strike in Lusaka. The employees were addressed but were told to assemble again the following day. The following day the respondent went to the clinic first and then to the venue of the meeting but found no workers. She then proceeded to her working place where she found her workmates outside the bank. She asked a security guard to call a Mr. Longwe who had previously given her permission to be going to the clinic first thing in the morning before going for work. This Mr. Longwe came but advised her to wait outside, as it was useless to open the door for her, as she could not work alone. She and her friends waited up to 1100 hours the usual time for knocking off on Saturdays and went home. On Monday the 29U1 June 1992, she went to the clinic first and then she reported for work and were told to move their tables to the new branch. After that the Manager told all those who did not work on Saturday, the 27th June to go outside where after a few minutes they were told to hand over keys of the bank. The following day she received a dismissal letter in which it was said she was being dismissed because she went on a strike on 27th June. She appealed against the decision but got no response. On other hand, evidence on behalf of the appellant was that the workers at the bank on 27th June decided to join their Lusaka Colleagues who were on strike. Because of this strike action management decided to dismiss from employment all those that went on strike on 27th June and the respondent was one of them. The trial court found as a fact that the appellant’s unionized workers went on strike from 25th to 27th of June in Lusaka but it found as a fact that those in Ndola did not. The court accepted the complainant’s case that all workers in Ndola reported for work On 26lh June 1992 and when they were about to knock off union officials asked for permission from management to address unionized workers as to brief them on their friends strike in Lusaka. Further they reported for work on 27Lh June 1992 but management locked them out. The complainant’s evidence was preferred to that of the appellant’s witness because the witness was on leave, he only reported for work on 29tb June 1992 and therefore could not know what was happening at the bank. As far as the complaint’s evidence was concerned, the trial court was of the view that the person she was dealing with over her attendance at the clinic, a Mr. Longwe, should have been called by the appellant. It is against the finding of this fact that the appellants have appealed. In arguing the appeal, Counsel for the appellants argued 4 (four) grounds of appeal. The first two dealt with the question of Res Judicata arguing that the question of a strike during the period in issue had already been adjudicated upon by a court of competent jurisdiction in the case of ZAMBIA UNION OF FINANCIAL INSTITUTIONS V ZAMBIA BANKERS EMPLOYERS ASSOCIAITON (unreported) where it was held that the unionized employees of the banks, both in Lusaka and Ndola, had gone on strike. It was argued that the finding of fact by the lower court in the present case that there was no strike in Ndola cannot stand in view of contrary earlier finding by a competent court that there was a strike both in Ndola and Lusaka. The matter was therefore res judicata as found by this court in the case of ZAMBIA NATIONAL COMMERCIAL BANK V ALBERTINA MUBITA & OTHERS, APPEAL NO. 118/98, In reply to these two grounds of appeal, Mrs. Kafunda submitted that res judicata was not pleaded in the court below and therefore cannot be raised on appeal. Further that res judicata cannot apply in the present case as the parties are not the same nor are the issues raised the same. It was argued that the respondeni in the present case was not a party in the ZAMBIA UNION OF FINANCIAL INSTITUTIONS case. In considering the two grounds of appeal, we agree with Mrs. Kafunda in her first leg of the argument that res judicata ought to have been pleaded as a defence in the court below. This was not pleaded and it cannot be raised on appeal. We note that in the ZAMBIA UNION OF FINANCIAL INSTITUTIONS case, the action was a representative action whereby the Union represented its members against an association of bankers employers and there is evidence that the present respondent was a member of that union therefore she was a party to the action brought by the Union on behalf of its members. Be as it may, the question to be decided on individual members of the union is whether that individual took part in the strike and in deciding on this issue we have to consider the third ground of appeal where the appellant argued that the court below shifted the burden of proof to the appellant. In this ground it was argued that the lower court shifted the burden of proof from the respondent who alleged that she attended Tusha Clinic to the appellant to call Mr. Longwe to prove that he had given the respondent permission to attend the clinic first. It was argued that there was no need for the appellant to rebut the respondent’s story. We do not think that the lower court shifted the burden of proof. The evidence of the respondent is very clear. She told the Court that as she was expecting, she was found to be anaemic and was put on inferon injection. To do this she got permission from her supervisor, Mr. Longwe, to attend clinic first thing in the morning before reporting for work. On 27l!1 June 1992 she went to the clinic and on her reporting for work she found some of her work mates outside the bank and the doors were locked. With the assistance of a security guard, Mr. Longwe was called and when he came he told the respondent that it would be useless for her to go into the bank, as all her friends were not working. She was advised to wait outside. On the other hand the evidence called on behalf of the appellant was not useful. The person called on behalf of the appellant was on leave when the alleged strike started. He is not the one who gave permission to the respondent to attend clinic before reporting for work. It was not a question of shifting the burden of proof when the court commented on the failure by the appellant to call Mr. Longwe who gave permission to the respondent to attend clinic. The respondent gave evidence that she was prepared to work but Mr. Longwe advised her to wait outside, as she could not work alone. Her evidence therefore shows that whether there was a strike or lockout she was prepared to work. This evidence therefore goes against the allegation for which she was dismissed that she went on strike. Taking her as an individual, although she was a member of the Zambia Union of Financial Institution, she never went on strike. Not all Union Members went on strike as can be seen in the case of BARCIA YS BANK (Z) LTD. V. CHOLA AND MUBANGA 11995- 97/ Z. R. 212. Each individual member must be considered separately. In the present case the uncontraverted evidence of the respondent clearly shows that although there was a strike, she never went on strike herself. After attending clinic and on reporting for work she was advised by her supervisor to wait outside, as she could not work alone. We are satisfied the lower court properly found for the respondent and we would dismiss this appeal on liability. The court below held the view that this was a proper case in which it could have ordered reinstatement but due to the period that passed, justice would not be done. Instead it ordered that respondent be retired from the date of judgment, namely 4th May 1999 with all salary arrears plus interest at 15% and after 4th May 1999 interest at 10%. The respondent was dismissed in June 1992, almost seven years before judgment was delivered. The award by the court below is a misdirection. Damages in cases of employment should be calculated at the date of severance of relationship. To this end, we set aside the award as presented and in its place we order the respondent to be retired from the date of her dismissal with benefits calculated at her June 1992 salary scale carrying 15% interest up to date of judgment below and thereafter 10%. As to the costs, the appeal has failed on what the appellants appealed to this court; costs will therefore be for the respondent both here and in the court below. The same to be taxed in default of agreement. D. K. CHIRWA SUPREME COURT JUDGE W. M. MUZYAMBA SURPEME COURT JUDGE D. M. LEWAN1KA SUPREME COURT JUDGE