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Civil Procedure – Hearing of preliminary issue integrally linked to main matter for determination – Whether a court faced with such a preliminary issue can defer consideration to the main action
Employment – Internal grievance procedures – Purpose of
Employment – Whether filing of complaint in the Industrial Relations Court by aggrieved employee must always be preceded by exhaustion of internal administrative procedures
The Respondents were employees of the Appellant who both served under permanent and pensionable terms. On 14 April 2011 the Appellant company discovered that it had suffered a theft of some concrete pipes. The Respondents, together with other employees, were implicated and handed over to the police for investigation. They were subsequently charged with the offence of theft and arraigned in a subordinate court. The Respondents were subsequently acquitted on the charges of theft and thereupon demanded payment of their salary arrears for the period they had been on suspension. According to them, they had been off the payroll since April 2011, when they were suspended. In addition, the 2nd Respondent was written to by the Appellant on 11 October 2017 directing him to vacate company accommodation within 30 days. On the basis of the foregoing, the Respondents considered that they were dismissed from employment and on 25 October 2013, lodged a complaint in the Industrial Relations Court seeking a declaration that they had been constructively dismissed; damages and other attendant relief. The Appellant in answer, claimed that the Respondents had never been verbally suspended as no such procedure existed in the Appellant’s disciplinary code; that the Respondents stopped reporting for work on their own volition and only resurfaced in April 2013; that they were informed of intended disciplinary proceedings against them but they took what appeared to be a preemptive move by commencing court proceedings. Prior to the hearing of the complaint, the Appellant raised a preliminary issue, namely whether the Respondents, who had not exhausted internal administrative procedures were properly before the court. The Appellant contended that the
Respondents rushed to court to short circuit the disciplinary process. The Industrial Relations Court held that the question raised in the preliminary issue was part of the broader questions to be addressed in the main action and, therefore, that those issues could be raised in the main complaint. Unhappy with that ruling, the Appellant appealed.
1. What the lower court did is not to decline to hear the preliminary issue raised by the Appellant- rather it decided that as the preliminary issue was so integrally linked with the main question for determination in the complaint that issue could properly be raised in the main cause. Courts have the discretion to defer the consideration of a preliminary issue. A court generally has power within the broad provisions of the law to conduct proceedings before it in any manner possible designed to attain the critical objective of delivering justice between the parties. In as far as procedural justice is concerned, the court retains considerable discretion in directing how a trial or an appeal is to be conducted within the confines of the rules of court. This extends to considering the point at which a preliminary issue which does not go to the jurisdiction of the court, should be determined. In many cases that have come before the Supreme Court and where preliminary issues have been raised, ruling on such preliminary issues has been deferred until after the main action was heard. Nyampala Safaris (Z) Ltd v Zambia Wildlife Authority (2004) ZR 49, Shoprite Holding v Lewis Chisanga Mosho SCZ Judgment No 40 of 2014 and Nevers Sekwila Mumba v Muhabi Lungu Selected Judgment No 55 of 2014 followed
2. It is significant and advisable that an employee who believes that he has been wrongfully dismissed or has had his employment unlawfully terminated on account of his conduct, should ensure that the available internal disciplinary channels are exhausted before he proceeds to commence legal action. The proceedings of the disciplinary hearing help to clear the decks and give the court additional material to chew on in determining the efficacy of the complaint. Exhausting available grievance redress procedures will also give the parties an opportunity to narrow or altogether clear possible misunderstandings or misperceptions. It also offers an important opportunity to the employee to explain himself on allegations of misfeasance before the ultimate sanction, dismissal, is metted out against him by the employer. In this sense adherence to any such procedure is imperative.
3. However, an aggrieved employee need not subject himself to any internal administrative disciplinary procedures where these are non-existent, or are unduly prolonged or totally
ineffective. Unreasonable refusal for an employee to subject himself to disciplinary procedures could of course have its own repercussions. The extent to which the employee’s choice not to submit to internal administrative disciplinary proceedings may react upon the merit of his case, will vary from case to case depending on the peculiar circumstances. Nonetheless, refusal to subject oneself to internal disciplinary procedures goes to credibility of the complainant in court, rather than to the cause of action itself. A cause of action is not necessarily lost by reason merely of the fact that internal administrative disciplinary proceedings were not concluded or acceded to. The Respondents still maintained their cause of action, notwithstanding their non submission to or exhaustion of the disciplinary procedures available.
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.
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.
In 2010 the Appellant was employed as a metre-reader. In 2011 the Appellant was re-designated as a cashier under the same employment terms. Following the re-designation, the Appellant was transferred to Mumbwa. The Appellant did not immediately take up the position and was charged with absenteeism from duty. He was later suspended and placed on half pay. After the suspension, the Appellant was asked to report for duty but only did so after a month. He continued to absent himself from work and was served with fresh disciplinary charges. At the second disciplinary hearing he was found guilty, dismissed and given 14 days to appeal. The 19 June 2013 appeal was unsuccessful and the Respondent's Managing Director wrote to the Appellant on 23 July 2013 advising him that he had exhausted the appellate procedure in ZESCO and that if the Appellant wished to pursue the matter further, he had to go to court. On 2 January 2014 the Appellant made his application for leave to lodge his complaint out of time claiming he had been pursuing other administrative channels which were not fruitful. The Court found no merit in the application and it was dismissed on the basis of inordinate delay and the absence of a plausible reason. The Appellant appealed.
Leave to file a complaint out of time is not granted as a matter of course as though the pursuer is merely pushing an open door. The granting of leave to file delayed complaints requires that discretion is exercised judiciously, there have to be sufficient reasons for the delay to seek redress in court after the incident complained of. The Appellant had presented a lazy effort and had no plausible reasons for the delay of almost 6 months. Jonathan Lwimba Mwila v World Vision Zambia SCZ Appeal No 193 of 2005 (unreported) followed