The Respondent was a senior member of staff in the Appellant. He held the position of Senior Sectional Ventilation Officer (SSVO) - underground at Nchanga Division when he was declared redundant. The Respondent was informed that his last working day was 15 December 1993 and that he would be paid and was subsequently paid three months' salary in lieu of notice, redundancy compensation as provided for under the conditions of employment and service, as well as his terminal benefits. On 19 April, 1999, the Respondent brought an action against the Appellant in the IRC, alleging unfair dismissal. According to the Respondent, he was the only one in the position of SSVO who was declared redundant and his position was never abolished. The second or alternative allegation was that the Appellant never engaged the Respondent on the possibilities of a substitute position prior to the redundancy, in accordance with his conditions of employment and service. Among the reliefs sought was a declaration that his termination was null and void, payment of salary and allowance arrears from date of termination up to date of judgment. The Appellant filed an answer to the effect that the Respondent's position as SSVO was abolished during restructuring and down-sizing of operations in 1993, and that there was no contractual obligation on the part of the Appellant to find him alternative employment. The number of workers in the Respondent's department was actually reduced from nine to six during restructuring in 1993 and that further restructuring of the Appellant's operations in 1995 resulted in the creation of two lower positions of Sectional Ventilation Officer, which positions were given to other affected individuals. The Appellant exhibited two organisational charts to demonstrate the structure in the affected department before and after reorganisation in 1993. In deciding the issues for determination, the Industrial Relations Court had recourse to Section 26B of the Employment (Amendment) Act No 15 of 1997 as read with the Employment Act Chapter 268 of the Laws of Zambia which contains detailed provisions on termination by redundancy under oral contracts of service. At the end of the day, the Court ordered the Appellant to pay the Respondent his dues from 15 December, 1993 the date when he was declared redundant, to the time he would have been due for normal retirement, with interest at the Bank of Zambia short term lending rate from 15 December, 1993 to the date of the action and costs. The Appellant appealed, contending among other grounds that the IRC fell in error when it premised its judgment on a law that was enacted in 1997 to find the Appellant liable for non-compliance in terminating the Respondent's employment by way of redundancy in 1993.
During the hearing of the appeal, the Supreme Court observed that the Appellant had filed an amended memorandum of appeal on 6 July 2016 with two new grounds of appeal but no leave was obtained to amend the grounds of appeal.
1. As the memorandum of appeal was amended in disregard of Rule 58 (3) of the Supreme Court Rules, Chapter 25 of the Laws of Zambia, the amended memorandum of appeal was accordingly disregarded for being incompetent, and the Court proceeded on the basis of the earlier grounds of appeal.
2. The Court below misdirected itself by applying provisions of Section 26B of the Employment (Amendment) Act No 15 of 1997; retrospectively to a redundancy that occurred in 1993. There is always a presumption that legislation is not intended to operate retrospectively but prospectively. Zambia Consolidated Copper Mines v Jackson Munyika Siame and 33 others (2004) ZR 193 followed
3. Notwithstanding the position of the common law, in 1993 when the Respondent was declared redundant, there was in place and in force, a statute, namely, the Employment (Amendment) Act No 15 of 1989 which did not impose an obligation on the employer to consult the employee or his/her representative; to give notice; or, take measures to minimise the adverse effects of the termination of employment by way of redundancy. These obligations were incorporated in the law through the amendment of 1997, with the enactment of Section 26B of The Employment Act. Much as the common law decisions of the time appear to have insisted on issues of consultation, they cannot override a statute which at the time, did not impose such considerations on the employer.
4. The order of the Court below that the Respondent be paid his dues from 15 December 1993 to the date he would have been due for his retirement together with interest, falls away. The Respondent was already paid 3 months' salary in lieu of notice, terminal leave pay and redundancy compensation as provided for in his conditions of service. He is not, therefore, entitled to any other payment. In any event, even if the appeal had not succeeded, the order of the lower Court was doomed to fail because it is unlawful to award a salary or pension benefits, for a period not worked for because such an award has not been earned and might be properly termed as unjust enrichment. Kitwe City Council v William Nguni (2005) ZR 57 followed