Claim for compensation
Munsanje v Family Health Trust Registered Trustee (Appeal No. 23/2012) [2017] ZMSC 58 (15 June 2017);
In 1995, the Appellant was employed by the Respondent as Project Manager for the Children in Distress Project. He rose through the ranks to the position of Executive Director. For present purposes his relevant contract was with effect from 1 April 2007 to 31 March, 2010. He was to receive, on a monthly basis, US$ 4 900 salary, US$ 200 for talk time, US$ 1 000 allowance from the Gift in Kind Project and ZMW 800 fuel allowance. On 28 August, 2009, the Appellant received a letter of suspension from Dr Roger Chongwe, one of the Board Members of the Respondent. The letter stated that the decision to suspend the Appellant was taken in order to facilitate impartial and independent investigations by the Drug Enforcement Commission (the “DEC”), into the financial transactions of the Respondent. After his suspension, the Appellant was arrested and he began appearing in court facing charges of theft by servant and money laundering. During the period of his suspension, he did not receive his salary and allowances. The suspension continued until 31 March 2010, when his contract came to an end, by effluxion of time. As a result of the above events, on 24 June 2010, the Appellant took out a complaint in the Industrial Relations Court (the “IRC”), for payment of all allowances and salaries due in arrears; 25% gratuity under the terms of the employment contract; damages for wrongful withholding of his salary and allowances and leave days. After hearing the matter, the IRC was of the view that the Appellant was entitled to half salary during the period of his suspension. The Court stated that the payment of his other half salary would depend on the outcome of the criminal prosecution that was in Court. The lower Court refused to order payment of his allowances or of gratuity on the ground that the pending matter in the Subordinate Court may have an effect on these. The claim for leave days succeeded while that for damages for wrongful withholding of salary failed. The Appellant appealed.
On appeal, the gist of the Appellant's argument was that the trial Court erred in law and fact, when it declined to order payment of gratuity to the Appellant, on account of a pending criminal matter in the Subordinate Court, involving the Appellant. The Supreme Court noted that from the evidence on record, the Appellant was suspended solely on the basis of investigations by DEC. The Respondent did not carry out its own investigations on the allegations of financial mismanagement, upon which the Appellant was later charged, arrested and prosecuted. The Respondent never administratively charged him over these allegations. During the hearing of the appeal, a question was posed to the Appellant’s counsel, to which he replied that on 17 April 2015, after this case was heard and determined by the trial Court, the Appellant was acquitted of the charges of theft by servant and money laundering. The Supreme Court took judicial notice of the relevant certificate of acquittal and found it necessary or expedient to order that the certificate of acquittal be produced as further evidence in the interest of justice, pursuant to Rule 25 (1) (b) of the Zambian Supreme Court Rules, 1975. The Supreme Court further observed that under Clause 5 (f) of the Appellant's contract of service, the Respondent had the right to summarily terminate the contract of service, without liability for compensation or damages, if the Appellant was convicted of any criminal offence other than an offence which in the reasonable opinion of the Respondent, did not affect his position as Director of the Trust.
Held
1. If the Appellant was eventually convicted of theft by servant and money laundering, the Respondent would have been entitled to instantly terminate his contract of service, with effect from the date of his suspension. In that case, he would not have been entitled to payment of gratuity for the two years he was on suspension. Consequently, the settled principle that the result of a criminal trial cannot be referred to as proof of a fact which must be established in a civil court; whether the criminal trial resulted in a conviction or an acquittal does not apply to this case. Applying it, would have meant barring production of the certificate of acquittal, which shows that the Appellant was innocent of the charges of theft by public servant and money laundering. Non-production of this certificate would have occasioned injustice to the Appellant because it is the only way his innocence could be proved, given the fact that the Respondent never laid administrative charges against him over alleged misuse or misappropriation of its money. Most importantly, this case was heard by the Industrial Relations Court, a Court of substantial justice, which is not bound by technical Rules of evidence. This case involves application of specific conditions of service on suspension of an employee. Kabwe Transport Company Limited v Press Transport (1975 Limited) (1984) ZR 43, Annard Chibuye v Zambia Airways Corporation Limited (1985) ZR 4, Zambia Bata Shoe Company Ltd v Mtambalika (2010) 2 ZR 244 distinguished.
2. The principle of compensation states that damages is the sum of money which will put the party who has been injured or suffered, in the same position as he would have been in, if he had not sustained the wrong for which he is now getting his compensation or reparation. In the present case, had the Appellant not been suspended, he would have been paid up to the end of his contract, the following US$ 4 900 as monthly salary, US$ 200 as monthly talk time, US$ 1 000 per month as an allowance from the Gift in Kind Project and ZMW 800 monthly fuel allowance. The Appellant should be paid all the above plus gratuity.
Lafarge Cement PLC v Mandona (Appeal No. 220/2017) [2017] ZMSC 35 (12 April 2017);
Over the period of his employment, and, as required of him by the environment in which he worked, the Respondent underwent periodic medical examinations which were known as pneumoconiosis examinations. On 30th December, 2010, the Respondent attended what was to be his last medical examination. This examination revealed that the Respondent had a chronic lung disease. This revelation inclined the Health and Safety Bureau against issuing a certificate of fitness in favour of the Respondent. The Health and Safety Bureau also determined that the Respondent was not fit to continue working in a mining environment as a miner. Consequently, the Respondent was issued with a "B5" certificate.
Arising from the pneumoconiosis results by the Health and Safety Bureau, the Respondent was subjected to further examinations by the Medical Board of the Ministry of Health which revealed that the Respondent had been afflicted with a chronic lung disease known in medical terms as 'pneumoconiosis superadded pulmonary tuberculosis.' In consequence, the Medical Board recommended that the Respondent be retired. This recommendation by the Medical Board was made on 20th April, 2011. However, by the time the Medical Board was making its recommendation, the Respondent's employment contract had determined by effluxion of time.
On 23rd May, 2011, the Appellant lodged a claim with the Workers' Compensation Fund Control Board seeking to have the Respondent medically compensated. However, the Workers' Compensation Fund Control Board declined to compensate the Respondent on the basis that the certification on the medical examination which had been conducted on the Respondent on 30th December, 2010 carried a classification which was known as "B5" and which was "non-compensable" because it had not revealed the presence of tuberculosis and pneumoconiosis.
The Respondent instituted a court action in the Industrial Relations Court seeking a variety of reliefs, most of which were subsequently consensually resolved via a Consent Order. The only relief which survived that Consent Order was the Respondent's search for medical compensation. Accordingly, it was the Respondent's search for medical compensation which became the subject of trial in the IRC. The Respondent contended that the issuance of the B5 non-compensable Report was attributable to the Appellant's failure to observe a variety of legal prescriptions and requirements and that it was these transgressions or lapses on the part of the Appellant which had culminated in the refusal by the Workers' Compensation Fund Control Board to medically compensate the Respondent. In its judgment, the trial Court did not consider that the Appellant had been guilty of any wrong-doing or any breach of a legal duty in relation to the Respondent. At any rate, the IRC took the view that even if the Appellant had been guilty of any wrong-doing of whatever kind, such wrong-doing could not have been legitimately tied to the refusal by the Workers' Compensation Fund Control Board to compensate the Respondent ostensibly because the Respondent's chronic lung ailment was non-compensable. The IRC then went on to cite Section 6 of the Workers' Compensation Act and interpreted the same as entitling an employee to bring an action against an employer for negligence, breach of statutory duty or other wrongful act or omission and seek damages. The Court then went on to observe that there was a probability that the Respondent had contracted the chronic lung disease which had afflicted him in the course of his employment by the Appellant and that, consequently, he was entitled to compensation by his employer, notwithstanding that the Workers' Compensation Fund Control Board had declined to compensate him. According to the trial Court, having the employer compensate its employee in the circumstances revealed by this matter would redress the mischief which would otherwise arise where an employee who contracts a disease in the course of his employment is not compensated at all.
The IRC accordingly proceeded to award the Respondent monetary compensation in the form of a lump sum equivalent of the Respondent's 24 months' salary based on his last drawn salary together with interest at the then prevailing average bank lending rate with effect from 9 September, 2011 to 14th March, 2012. The Appellant appealed.
Held:
1. The expansive extent of the general jurisdiction conferred on the Industrial Relations Court under Section 85 accords "sufficient jurisdiction" to that court to litigate "...certain genuine complaints such as wrongful, unjust or unfair dismissal..." free from "technicalities or rules" but this does not suggest, thereby, that the scope of that court's jurisdiction is the same as that of the High Court of Zambia. Zambia Consolidated Copper Mines Ltd v Matale (1995-1997) ZR 144 applied
2. In both these Statutes (the provisions of Section 6, its subject matter as well as the general scheme of the Workers' Compensation Act No. 10 of 1999 and its predecessor, namely, the Workers' Compensation Act, CAP 271 of the Laws of Zambia), the court which is/was clothed with relevant jurisdiction for any grievance founded on the provision in question is/was the High Court of Zambia. The trial court's decision not only to invoke Section 6 of the Workers' Compensation Act but to anchor the outcome of the complaint which had been prosecuted before it on that statutory provision leads to the conclusion that the court below erred when it ordered the Appellant to avail monetary compensation to the Respondent.
3. The issue of having the Respondent access medical compensation in relation to the medical condition which had afflicted him was one which was firmly anchored in the law, namely, the Workers' Compensation Act. This means that, to the extent that the Appellant had discharged its obligations or duty under that law for the benefit of its employees, such as the Respondent, no liability of the nature that the Respondent was seeking to secure against the Appellant could attach against it, particularly in the light of the trial court's own finding and determination clearly absolving the Appellant from any such wrong-doing or breach as would have operated to discount the Respondent's right to secure the medical compensation in question.
4. The refusal by the Workers' Compensation Fund Control Board to medically compensate the Respondent did not preclude him from challenging the decision of the Workers' Compensation Fund Control Board by way of an appeal to the Workers' Compensation Tribunal in accordance with the provisions in Part XI of the Workers' Compensation Act.
5. Redress for injury arising out of and in the course of a workman's employment takes the form of the statutory remedy which is secured by legislation such as the Workers' Compensation Act and its predecessor statute. In terms of this legislation, certain categories of workmen must have their health and safety insured by their employers. In general, therefore, and barring any allowable exceptions (including those contemplated by Section 6 of the Workers' Compensation Act), an employee who suffers from a disability or contracts a disease and who comes within the contemplation of the Workers' Compensation Act and whose employer had been observing the requirements of this statute in relation to such employee must look to the statutory remedy available under this law unless such an employee can demonstrate the legality and legitimacy of seeking redress against the employer.
Notes/Obiter
Following the amendment of the Constitution of Zambia Act and the establishment of the Industrial Relations Court as a division of the High Court, the position might well change to result in the IRC having coextensive jurisdiction with the High Court.
Chiyengele and Others v Scaw Limited (Appeal No. 177/2013) [2017] ZMSC 9 (19 January 2017);
This was an appeal against the ruling of the Deputy Registrar at assessment, in which the Deputy Registrar determined that the Appellants were not entitled to recover damages or compensation for loss of employment together with interest and costs consequent upon the entry of a judgment in default of appearance and defence against the Respondent. The Appellants were all employees of the Respondent and were Mine Workers Union of Zambia officials. By letters dated 16 September 2006, the Respondent terminated the Appellants’ employment contracts by reason of redundancy and paid them their respective redundancy dues. Being dissatisfied with their redundancy packages, the Appellants instituted a court action against the Respondent. Judgment in default of appearance was subsequently entered against the Respondent and the Appellants took out an application for the assessment of damages. The assessment application was heard and tried before the Deputy Registrar who found that all the Appellants had their employment contracts terminated by way of redundancy and that they were all paid their redundancy benefits.
Held
- Judgment in default of appearance and defence which was entered in favour of the Plaintiffs and which remained unchallenged was final as to the right of the plaintiffs to recover damages, which damages were to be assessed.
- The default judgment meant that the Respondent had admitted having committed a legal wrong or injury against the Plaintiffs. Furthermore, it meant that the Appellants became entitled to compensation for losing their jobs.
- A plaintiff cannot recover double damages for the same loss.
- The entry of the default judgment entitled the Appellants to damages (notwithstanding the compensation which the Appellants received for the loss of their jobs by way of redundancy payments) despite their failure to prove the loss/damage which they had suffered when they lost their jobs. The Court below should have affirmed the infraction of the Appellants’ legal rights by granting them nominal relief in the form of nominal damages.
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