Zambia Telecommunications Company Ltd v Nganga and Anor (Appeal 143 of 1999) [2000] ZMSC 161 (6 June 2000)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: APPEAL NO.143/99 ZAMBIA TELECOMMUNICATIONS COMPANY LIMITED APPELLANT AND MUTALE NGANGA CHILUMBU EPIPHANO 1st RESPONDENT 2nd RESPONDENT Coram: Ngulube, C. J., Sakala, Lewanika,JJS. On 7th December, 1999 and 6,h June, 2000 For the Appellant: T. K. MALAMA, Legal Officer, ZAMTEL. For the Respondent: V. K. Mwewa of V. K. Mwewa & Co. _________________________ JUDGMENT_________________________ Lewanika, JS. delivered the Judgment of the court. In this appeal we shall refer to the appellant as the respondent and the respondent as the complainants which is where they were in the court below. It was common cause in the court below that the complainants were employees of the then Posts and Telecommunications Corporation which had three divisions namely Postal, Corporate and Telecommunications. After the enactment of the Postal Services Act, the postal division of the Posts and Telecommunications Corporation was abolished. The abolition of the Postal Division resulted in the dissolution of the Corporate Division which managed the Postal and Telecommunications Division. The complainants who were in the Corporate Division together with other employees were retained for some time but on 21st June, 1996 the complainants received letters from the respondent retrenching them from employment. The complainants had been employed in the Corporate Division as Personnel Assistants and upon being retrenched they had been paid their full terminal benefits. The case for the complainants is that a few months after they were retrenched the respondent employed other people to carry out the jobs that they -J2- were doing. They cited the cases of Mrs. Patricia Masaka offered temporary employment as a Personnel Clerk on 14 May, 1997, Mr. Mwaba Kapoka offered temporary th employment as Personnel Assistant on 9 January, 1997. Miss Charity Besa offered employment as Accounts Clerk on 24th March, 1997, Miss Alice Mumba offered employment as Accounts Clerk on 24th March, 1997, Mr. Lastone Muonga offered employment as Accounts Clerk on 24th March, 1997. The complainants felt that they had been unfairly treated and instituted proceedings in the Industrial Relations Court under Section 85(2)(4) of the Industrial and Labour Relations Act claiming, inter-alia, for an order of reinstatement and payment of all salary arrears. The case for the respondent is that following the enactment of the Postal Services Act and the consequent abolition of the Postal Division of the Posts and Telecommunications Corporation the complainants together with about 600 other employees who belonged to the Corporate Division were found to be surplus to the requirements of the respondent. That the complainants could not be redeployed to enter the new Zambia Postal Services or the respondent as there were no vacancies of Personnel Assistants or equivalent posts. That the respondent only had an approved establishment of five positions at Personnel Assistant level which were already filled up at the time that the complainants were being retrenched. Then in December, 1996 two of the Personnel Assistants were appointed to higher positions as Assistant Personnel Officers which created two vacancies and resulted in the recruitment of Patricia Masaka and Mwaba Kapoka. Then Kapoka and Masaka were only appointed as Personnel Assistant in January, 1998 when the other two were promoted to the positions of Assistant Personnel Officer. On the evidence advanced before it the trial court found that the complainants had been unfairly retrenched and ordered that they be reinstated in their employment and paid all the salary arrears, hence the appeal by the respondents. Counsel for the respondent has filed three grounds of appeal namely: That the court below erred in fact and in law in finding that the complainants were unfairly retrenched. -J3- In arguing this ground Counsel submitted that there was uncontroverted evidence on record that after the retrenchment of the complainants there was need to employ due to promotions that had occurred. He said the re-employment by the respondent was not restricted by the collective agreement on record as the respondent was not a party to the agreement. Further, that even if the respondent were a party to the agreement the collective agreement only restricted the respondent from employing before and not after retrenchment. . That the court below erred in law in holding that the respondent should reinstate the complainants with all their salary arrears. In arguing this ground Counsel for the respondent submitted that there were no special circumstances in this case upon which the court could have ordered reinstatement. He referred to our decisions in the cases of ZAMBIA BREWERIES vs. KAWISHA, Z. R. 1993/94, 32 AND ZAMBIA AIRWAYS CORPORATION LIMITED vs. GERSHOM MUBANGA, Z. R. 1990/92, 149 on the point. The third ground advanced by Counsel for the respondent was in reality an elaboration of the second ground. In reply Counsel for the complainants submitted that the trial court did not err in fact and in law by making a finding that the complainants were wrongfully retrenched. He said that this was a finding of fact made by the court and that no appeal lies to this court. He referred us to our decision in the case of ZAMBIA RAILWAYS LIMITED vs. P. P. KAUNDA AND 144 OTHERS, SCZ. NO. 147 OF 1998 on the point. With regard to the second ground of appeal Counsel for the complainants submitted that the trial court did not err in law when it ordered the reinstatement of the complainants as the wider jurisdiction of the court allows it to do so when the circumstances dictate. He said that in the present case the respondent declared the complainants excess labour whilst at the same time employing others and maintaining temporary employees and that this was contrary to the spirit of the collective agreement. That given these circumstances the trial court was on firm ground in ordering reinstatement as well as payment of the salary arrears. We shall deal firstly with the finding by the trial court that the complainants were unfairly retrenched. This finding appears on page 14 of the case record on J. 9 in which the court stated "...... The granting of those temporary employees permanent employment and employing of new employees while retrenching those who we have held to have been transferred on flimsy and spurious grounds that they were excess to the new organisation cannot in any way be looked at in any other manner other than that it was unfair...." We agree with Counsel for the complainants that this was a finding of fact made by the trial court and we bear in mind that pursuant to the provisions of Section 97 of the Industrial and Labour Relations Act, 1993 parties can only appeal to this court on a point of law or any point of mixed law and fact. The finding that the complainants were unfairly retrenched was without doubt a finding of fact and the question that arises is whether a finding of fact can be a question of law. In the case of ZAMBIA CONSOLIDATED COPPER MINES vs. MATALE - 1995-97 Z. R. 144 we had pointed out that a finding of fact becomes a question of law when it is a finding which is not supported by the evidence or when it is one made on a view of the facts which cannot reasonably be entertained. In this case the evidence on record is that the complainants were retrenched on 21st June, 1996 and paid their full benefits. Mwaba Kapoma and Patricia Masaka were offered temporary employment as Personnel Assistants on 9th January, 1997 and 14th May, 1997 respectively to fill vacancies that had arisen as a result of two Personnel Assistants being appointed to act in higher grades well after the complainants had been retrenched. They were only appointed as Personnel Assistants in -J5- January, 1998 when the other two had been confirmed as Assistant Personnel officers. It was thus not correct for the trial court to have found that the respondent was retrenching the complainants and at the same time granting temporary employees permanent employment and recruiting new employees. The trial court misapprehended the facts before it and came to a conclusion, which cannot be supported by the evidence on record. For this reason we would allow the appeal and set aside the order of the court below and do not find it necessary to deal with the other grounds of appeal. Bearing in mind the circumstances of the parties, we make no order as to costs. E. L. SAKALA SUPREME COURT JUDGE D. M. LEW ANIKA SUPREME COURT JUDGE