Taima Kachaka and 15 Ors v Elsewedy Electric Zambia Limited (2022/HN/IR/66) (25 August 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2022/HN/IR/66 AT THE DISTRICT REGISTRY HOLDEN AT NDOLA (Industrial Relations Divi zoEfi'r,t~;~;3,~;,:~i": , BETWEEN, • TAIMA KACHAKA AND 1 · Pv1RER~ COMPLAINANTS t:11couRT AND "' . ---,J ELSEWEDY ELECTRIC ZAMBIA LIMITED RESPONDENT Before the Honourable Mr. Justice Davies C. Mumba in Chambers on the 25'h day of August, 2025. For the Complainant: Mr. T.T. Shamakamba, Mrs. S.K. Muselitata, Ms. W. Chimankata and Ms. C. Shamakamba - Messrs Shamakamba & Associates For the Respondent: Mrs. N. Nyangu-Zimba and Mr. S. Mutembo - Messrs Magubbwi & A,ssociates JUDGMENT Cases referred to: 1. Redrilza Limited v Abuid Nkazi and Others, SCZ Judgment No. 7 of 2011. 2. Eston Banda and another v The Attorney-General, Appeal No. 42 of 2016. 3. Chilanga Cement v Venus Kasito, Appeal No. 86 of 2015. 4. Sarah Aliza Vekhnik v Cash Dei Bambini Montessori Zambia Limited, Appeal No'. 129 of 2017. 5. Mukobe Musa Bwalya v The Attorney General, SCZ Appeal No. 62 of 2012. 6. Zambia China Mulungushi Textile (Joint Venture) Limited v Gabriel Mwami (2004) Z.R. 244 (S.C.). 7. Attorney-General v Phiri (1988-1989) Z.R. 121 (S.C). • J2 8. Kitwe City Council v William Ng'uni (2005) Z.R. 5 7 (SC). Legislation referred to: 1. The Employment Code Act No.3 of 2019. 2. The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. Other works referred to: 1. W.S Mwenda, Employment Law in Zambia: Cases and Materials: UNZA Press, Lusaka, 2004. 2. Winnie Sithole Mwenda and Chanda Chungu: A Comprehensive Guide to Employment Law in Zambia: UNZA Press. Lusaka, 2021. 3. Black's Law Dictionary, 8th Edition. 1.0. INTRODUCTION 1. 1. The complainants commenced this action against the respondent by way notice of complaint supported by an affidavit sworn to by Taima Kachaka, the 1st complainant herein, filed into Court on 16th September, 2022. 1.2. On 26th October, 2022, the respondent filed into court an answer and an affidavit in opposition to the affidavit in support of the notice ofcomplaint sworn to by John Mwanza, the Chief Financial Officer in the respondent company. 1.3. Following the consent order dated 9th February, 2023, the complainants filed into court a fresh notice of complaint • J3 th and an affidavit in support thereof on 16 February, 2023 sworn to by Taima Kachaka seeking a declaration that the complainants' employment with the respondent was unlawfully and/or wrongfully terminated; an order for exemplary damages; reinstatement, or in the alternative, payment of benefits for the whole contract period including accrued benefits for the period 2009 to 2014; a declaration that the complainants should remain on the payroll until all their accrued pension benefits are paid off as per the amended 2016 Constitution; interest on all the sums found due; interest on the half pay and back pay which the respondent had withheld for several months while the complainants were ·o n suspension; any other reliefthe court may deem fit; and costs of and incidental to this action. 1.4. On 27'h February, 2023, the respondent filed into court a fresh answer and an affidavit in opposition sworn to by Violet Mtonga, the Human Resource and Administration Manager in. the respondent .company. It was contended that the complainant's allegations of wrongful and unlawful termination were baseless as the complainants engaged in conduct that warranted a dismissal. Further, that prior to the termination of their employment and/or th dismissal, by the letter dated 9 April, 2020, and charge sheet(s) issued on the even date, the complainants were J4 charged and accorded an opportunity .. to exculpate themselves against the allegations levelled against them but regrettably, they could . n.ot make satisfactory defences. 1.5. It was argued that the complainants had withdrawn their labour without the input of the union which acted as their mouth piece and at no point did the complainants invite the respondent to dialogue. That the complainants participated in an. illegal strike as they withdrew their labour on 28th February and. 2nd March, 2020 and further issued a press statement without the input of the union and/or approval of management. The respondent contended that the complainants were not entitled to any of the reliefs that they were seeking. 2.0. THE COMPLAINANTS' EVIDENCE 2 .1. In the affidavit in support Qf the notice of complaint, the 1st complainant.. deposed, that the complainants were employed by the respondent on different dates and in different capacities. By .. ·· .. way of example, the 1st complainant exhibited his confirmation letter, "TKl". That their conditions of service were governed by their contracts of employment;. and the 2016-2018 collective agreement, "TK2" signed between the respondent and the JS' complainants' union, the Nati.anal Energy Sector and Allied .. , ' ·. ' .. Workers Union (NESAWU) "'7hi.ch also covered the period 2018 to 2020. That they were also subject to the respondent's Disciplinary Code and Grievance Procedures, "TK3 ". 2.2. That on 26th February, 2020, the deponent was among the union officials who were participating in negotiations with the respondent. That during the said negotiations, it was agreed by both parties that the membe.rs should be informed of the suspension of negotiations and the position of the responderlt on.the negotiable items. th 2.3. He deposed that on 27 February, 2020, the union's ';: ) ,:·' executive committee addressed the unionised workers concerning what had transpired on 26th February, 2020: That it was resolved that the respondent's Managing Director should address the workers on their grievance regarding accrued benefits for the period 2009 to 2014 which the respondent had failed to remit to Buyantanshi pension scheme as agreed during the 2018 negotiations. To that effect, the 1st complainant produced the minutes of the collective bargaining meeting, "TK4" recorded during the 2018 negotiations. J6 2.4. That on 28th February, 2020, 39 workers assembled to be addressed by the respondent's Managing Director but he failed to address them. Instead, the Production Manager addressed the. 39 workers without giving them management's response to their grievances on the past service benefits for the said period. That the Production Manager informed the workers to go home as the company was closing half day on that date. 2.5. That on 2nd March, 2020, the workers reported for work and waited to be addressed by the respondent, but instead, the Production Manager directed all of them to leave the factory. However, they still remained on the respondent's premises. That on 3rd March, 2020, the respondent declared a lockout of the 36 unionised workers alleging that they. "".ere on an illegal strike as shown by the letter, "TK6" ..w hen the union had never . ~ ·. ' . declared any strike but had requested the respondent to address the workers' grievances. - -, . .' a 2.6. It was deposed that after c'onsultative meeting between -.; r the respondent and NESAWU; the complainants resumed work. That on 9th April, 2020 after the complainants had worked for three weeks, the respondent suspended and charged all the complainants for holding what they purported to be an illegal strike and allegedly issuing press statements. That that action took the union by J7 surprise because holding ·,i' consultative union meeting between workers and management in the workshop was one way of promoting social dialogue in the work place as such union activities could not be clothed as a strike action especially when the· union had consistently engaged management as shown by the letter, "TK7''. Further, that the charge of releasing a press statement was not amongst the charges in the respondent's Disciplinary code. th 2.7. The deponent averred that on 27 May, 2020, all the complainants and other suspended workers were written to inviting them to attend· ,a disciplinary case hearing which failed to take place following the intervention by the complainant's union which felt that procedures were not followed in investigating and charging the complainants and other suspended workers. That between th 10 June and 27'h July, 2020; the complainant's union formally engaged and wrote to the respondent on its failure to follow procedure. when investigating and charging the workers as s}:low_n by the letters, "TK8a" to "TK8d." It later escalated the dispute to the Ministry of Labour and Social Security. That the Ministry of Labour wrote the letter; O'TK8e" to, the respondent directing that agreed internal procedures, should be followed when ' .. • J8 handling the dispute which largely emanated from mishandled benefits. 2.8. That on 17th June, ~020, \Vhile engagements were on-going with the complainant's union, the respondent wrote to all the complainants and the . other suspended workers inviting them to appear before a disciplinary case hearing set for 23rd June, 2020 which disciplinary case hearing failed to take place again for the aforementioned reasons. That surprisingly, the respondent proceeded to invite all the complainants and o.ther workers with threats that if they failed to appear before the disciplinary committee, their cases would be determined in absentia as evidenced by the letters collectively .mar)<ed as "TKl0". That out of ,':.'. ' duress, all the complainants and other suspended workers appeared before the Disciplinary Committee on 22nd July, 2020. ... I \.;. i, :. . 2.9. That on 4th August, 2020, the respondent wrote dismissal letters to all the complainants and the other suspended employees for allegedly holding an illegal strike and issuing press statements on 28th February, 2020 and 3rd March, 2020. By way of exampl~, the deponent produced his dismissal letter, "TKl0A". That the complainants and other dismissed workers appealed against their dismissals and denied the charges. Further, that some of the dismissed workers were on.annual leave as shown by the i''. ' i J J9 leave form, "TKl0B" while others were dismissed on the basis that they were union leaders when in fact not. That on 20th August, 2020 the respondent reinstated 18 of the 36 dismissed workers and upheld the dismissals of 16 complainants on appeal, among them, nine union branch executive committee and union members. 2.10. It was averred that the respondent violated section 5 of the Industrial and Labour, Relations Act, Cap. 269 of the Laws of Zambia by harassing, victimising and dismissing union officials for merely doing their union work, which included holding union meetings within the respondent's premises. 2.11. That on 28th August, 2020, ~q~. complainants formally appealed to the Ministry of Labo,ui:- <:tnd Social Security over their unlawful dismissals. That on 12th October, 2020, the Ministry of Labour and Social Security found merit in the dispute presented before.them by the complainants and I • '. ••. : recommended that the respondent be taken to court for failure to follow procedure and the law as shown by the letter, "TK12". •.· ... · , 2 .12. It was deposed that in. charging, suspending and dismissing the employees, the respondent committed the following errors: • JlO 2 .12 .1.1. That the complainant in the case involving the 36 unionised employees was the Human Resources Manager who was also the charging officer. That that violated the rules of natural justice because the respondent could not be a judge in its own case. 2.12.1.2. That according to clause 2(a) and (b) of the Disciplinary and Grievance Procedures, it was the duty of the Supervisor and a Union Representative . to. · decide on whether to investigate a case or not. That in the case at ., hand, the Union was never involved in the investigations .. :,, ,,.,.,. ·:_ 2.12.1.3. That according .to clause 2(c) of the respondent's Disciplinary and Grievance Procedures; and clause 10 of their contracts of employment, employees facing charges of serious misconduct were supposed to remain on full pay while on • s.uspension but these provisions were not respected as the complainants were put on half pay during their suspensions. Jll 2 .12 .1.4. That section 49 of the Employment Code Act, No.3 of 2019, allowed suspensions to be done in accordance with the disciplinary rules. 2.12.1.5. That under clause A of the Disciplinary and Grievance Procedures Code, an alleged offender had the right to union representation at every stage of the disciplinary process from investigation, explanation of charges and the formal hearing itself but that, in this case, the provision was ignored. 2 .13. The deponent further averred that the respondent removed the complainants from the payroll without paying them their accrued benefits for the period 2009 to 2014 which was contrary to Articles 187, 188 and 189 of the Republic'an Constitution, as amended in 2016. 2.14. That the terminations of the complainants' employment was unlawful and wrongful because the complainants neither breached the conditions of service nor the disciplinary code by attending a meeting called by their union at which management was invited to address the workers. 2.15. That the complainants suffered loss and damage as a result of the respondent's action as they might face stigma J12 at the hands of prospective employers who may fail to employ them. Further, that the behaviour of the respondent caused the complainants and their families undue distress, trauma, mental suffering, financial difficulties and mental anguish· as it was deliberate disrespect of the law by the respondent. 2.16. At the trial, the complainants called four witnesses. 2.17. Taima Kachaka, the 1st complainant herein, testified as CWl. He testified that he was employed by the respondent as an Assistant Technician on 15th December, 2009. That at the time, his salary was K700.00. That the salary was subsequently increased to a basic salary of K4,500.00. 2.18. He testified that on 27th February, 2020, he reported for work and after logging in, he went to hi.s section and reported to his supervisor, ML lfrai'thwate Mukwanka. That after reporting to his supervisbr, he asked for permission to go and see the Production Manager, Mr. Gamel. That the supervisor told him that he could only go and see the Production Manager after completing his assignment so he started working. That betweeri.15.00 and 16.00 hours, the supervisor gave . him permission to go and see the Production Manager. That tbe purpose of seeing the Production Manager was_ .to get permission to address the unionised employees in his capacity as Branch Chairman, J13 NESAWU. That the Production Manager, Mr. Gamel granted him permission and he addressed the union employees over the negotiations that ·h ad taken place on 26th February, 2020 concerning their salary increments. 2.19. He testified that as he addressed the unionised employees, they raised a number of concerns. That the unionised employees wanted management's position on the meeting that had taken place between 2017 and 2018 where management had agreed to transfer their pension funds from the respondent to a private pension fund called Buyantanshi pension fund. That the other concern that was raised was that the employees wanted to hear from management as to when the next meeting for negotiations • I • • for salary increments would take place. Thereafter, they . ' . knocked off as it was alre~dy 17.00 hours. ·. :·•, .; . : !. ' 2.20. That the following day ori 28th February, 2020, he reported for work, clocked in, went to his section and started working. That between 09.,00 and 10.00 hours, he again informed his immediate supervisor that he needed to gci and see the Production Manager to inform him about the concerns that were raised by the unionised workers. That permission was granted and he went to see Mr. Gamel and informed him about the concerns that had been raised and that the workers wanted him (Mr. Gamel) to .address them. That Mr. Gamel agreed to meet with the unionised workers -,) J14 and eventually the meeting took place within the factory. That when Mr. Gamel asked the workers what the issue . was, he was informed by the Uri.ion Secretary, Chile she Richard about the workers' grievance which was over the ' ' unpaid benefits which had a' ccrued between 2009 and . ,, .. 2014 which the employees were entitled to be paid upon separation with the respondent. That Mr. Gamel told therri that he was going 'to consult management about it. Then Mr. Gamel went back between 09.00 and 10.00 hours and informed the workers that · they should knock off. That they obeyed him and all of them knocked off. The witness stated that the grievances the workers had were outlined . in the letter, 'TKS '. 2.21. CWl testified that on 29th February, 2020, he did not report for work as it was a Saturday. That he did not also report for work on 1st March, 2020 as it was a Sunday. 2.22. That on 2nd March, 2020, 1)..e.reported for work, clocked in and went to his s~ction \;\'.her.e he engaged his immediate . . ., supervisor, Brai_thyvate ,Mukwanka. He asked him for permission to. go. and see Mr. Gamel over what had ,-.. ,· . ' ' transpired on 28th February, 2020 when Mr. Gamel failed to address them. That Mr. Mukwanka •. granted him permission and he went to. see Mr. Gamel and asked him to attend to the grievances that were brought before him. JlS That Mr. Gamel told him that he was going to address the workers. That between 10.00 and 12.00 hours, Mr. Gamel went and told the workers, including the witness, to leave the factory and go outside .but within the respondent's premises where they were going to be addressed from. That they waited outside until 17.00 hours but no one addressed them and they knocked off. 2.23. He testified that on 3rd March, 2020, he and all the unionised workers were picked up from their homes by the respondent's bus and. taken to the respondent's premises. At the gate, Mr. Nkanduzo, the Head of Security came out of the security ·office and asked for him, being the Union Chairman. That ,Mr. Nkanduzo then handed him ' _,, ; .. a circular from management to all unionised workers . ··.:' ,, . ·, ,· which discussed the issue,.of the illegal strike at the respondent's company. That the last paragraph of the said circular indicated that all the unionised workers had been banned from entering the respondent's premises. That they followed the instruction ,not to enter the company premises despite having reported for wo.rk. That they waited outside the factory to be addressed by management over their grievance from 08.00 to 17.00 hours but no one addressed .them. ,:· 2.24. The witness testified that despite having been stopped from entering the, company promises, they continued • J16 reporting for work even when the respondent stopped providing transport to themi and waited to be addressed by management outside the company premises. That they stopped reporting for work at the point when the Union mother body, NESAWU w~nf"to the respondent company and met with management That following their meeting on Thursday, 4th March, 2020, the Union informed them that they had resolved the issue and they should get back to work. That they reported back for work the next day on 5th March, 2020 and they worked for three weeks without any intimidation from management or their immediate supervisors. 2.25. That on 9th April, 2020, as he was knocking off, he was handed an envelope at the secµrity office which contained two documents, that is, ;\he .. ~uspension letter and the charge form, collectively marked as 'TKl' and exhibited to . '· '" the affidavit in .(eply. Tfrat o.n the charge form, it was indicated that he.,had been.;charged with two offences, namely, being on an illegaL,strike and issuing a press statement. That all the un\onised workers received similar suspension letters and similar charge forms. That upon receiving the documents, the witness was surprised as to why such sensitive documents were handed to him and the others by the Security Officers. That that was against their internal procedure outlined in clause 4.3 of the • J17 Disciplinary Code and Grievance Procedures, 'TK3' exhibited to the affidavit in support of the complaint. That the procedure clearly stated that one who was found with a case to answer was to be called by his immediate supervisor who was also supposed to explain the charge to them and not just being handed the charge forms and suspension letters by the Security Officers. That the charge form was supposed to be given to him by his immediate supervisor but the charge form showed that the complainant was the Human Resources and Administrative Manager, Mr. Levy Mwale. 2.26. The witness testified that after receiving the suspension letters and the charge forms, they engaged NESAWU to attend the disciplinary hearings for all the unionised workers. That NESAWU representatives informed the respondent's management that there were internal procedures that were not followed as clause 4 of the disciplinary code, 'TK3' provided that anyone who was found wanting had to be charged within 24 hours. That the Union asked the respondent to follow the internal procedures before anyone could attend the disciplinary case hearing. That upon being informed, management set a new date for the disciplinary hearings. That upon setting the new date, the union together with the suspended workers attended the disciplinary hearing where • J18 management still did not follow the internal laid down procedures. That ,the union again informed management to follow the pro.cedure so management set the third date for the disciplinary case h~ar_ing between 21st and 30th July, 2020. 2.27. That under heavy duress, the witness and the other suspended workers were forced to attend the aforestated disciplinary hearing because the respondent wrote to them stating that if they did not attend the disciplinary hearing, decisions would be made in their absence. To that effect, the witness referred the court to the notification to attend a disciplinary case hearing, 'TK8' and the letter 'TK8D'. That according to the letter, 'TK8', the disciplinary . ' ''.: hearing was suppqsed to take place on 23rd June, 2020 but . , ' ; .. did not take of.f. Further, according to the letter, TK8D', '. . : '. ·. ' .. . the disciplinary h~aring,was:now supposed to take place on 22nd July, 2020. 2.28. That the last disciplinary hearing was scheduled to be held on 22nd July, 2020 and it took off. That after the disciplinary hearing, he was told that he would be communicated to in writing but he was not communicated to. That later on 4th August, 2020, he received the letter of dismissal, 'TKl OA'. That the other 15 complainants were also dismissed. That they ;were dismissed upon being found guilty on both charges. J19 ' 2.29. The witness stated that they were wrongfully dismissed because the respondent did not follow the internal procedures outlined in the contract of employment, 'TKl'; the collective agreement, 'TK.2'; and the Disciplinary Code and Grievance Procedures; ;TK3 '. 2.30. Further, the witness stated. that their benefits were supposed to be caki.llated at three months basic salary for each year served. 2.31. During cross-examination, the witness stated that one of their cla~ms was to be paid pension benefits. He stated that he was entitled to be paid a pension benefit. That he was 38 years old. That he was notaware that he had not . f '. •· •.. yet attained the age at which he could be entitled to be paid pension benefits. He stated that the pension benefits they were claiming were not the ones they would be l .. ·. . · . . entitled to be paid at the age of 5 5 but benefits that had ,. ' ' accrued between 2009 and 2di4 as shown on page 2 of the minutes, 'TK4B' of,the m:etings for collective bargaining held on 25th January, 8th Febru;uy and 22nd February, 2020. He stated that he did not have any documents which provided for the type of benefits they were "claiming. 2.32. When referred to paragraph 5 of the complainants' affidavit in support of the notice of complaint, the witness a admitted that th~r~ was rheeting between NESAWU and th the respondent's management on 26 February, 2020 where they resolved to suspend the negotiations. That the meeting was postponed to a date in March for further deliberations and, as Union Chairman, he communicated the date to the unionised employees. He denied having th held a meeting with the unionised employees on 27 February, 2020. He clarified that he reported for work on 2 7'h February, 2020 and he got permission from the Production Manager to address the unionised workers. He ' later changed his positiort ·. . and stated that he did not th proceed with the meeting on 27 February, 2020 as he did ,-.· not address anyone. He s'tatecl that he knew the workers' grievances because: of th.eletter, 'TKS'. When referred to paragraph 2 of the said:)euer, 'TKS', the witness stated that on 27'h February, 2020 between 16.00 and 17.00 hours, they had a meeting with the unionised employees upon being granted permission by the Production Manager. 2.33. He denied that the resolution of the meeting was that the unionised employees should be addressed by the Managing Director. He stressed that the workers wanted to be addressed by the respondent. He stated that, as Union Chairman, he had guided·the unionised employees on how they were supposed to proceed. He admitted that it was J21 the duty of the union to speak on behalf of the employees and that such a duty was npt breached. 2.34. He admitted having reported for work on 28th February, 'I '' .. ' 2020 at 08.00 hours. That he sought permission to see the •.! • > Production Manager between 08.00 and 10.00 hours but he could not remember the exact time. That the permission was granted between 09.00 and 11.00 hours. He stated that it was not true that the practice at the respondent's company was to hold meetings in the afternoons. That he had not yet organised the unionised employees to wait to be addressed by the respondent between the time he had sought permission and the time the permission was granted. He stated that Mr. Gamel met ( the unionised employees betw:een 09.00 and 11.00 hours ' ' ' on 28th February, 2020 but he did not address them. That he just talked ·to the w0rkers. He admitted that the unionised workers were . supposed to present their grievances through.their.,union representatives. He stated that they were told to leave the respondent's premises between 09.30 and 11.00 hours. He stated that on 28th February, 2020, they worked from 11.00 to 17.00 hours and that they were not working from outside the respondent's premises. He admitted that other workers had heeded the instruction ofgoing outside the premises: J22 2.35. He denied that Saturdays and Sundays were normal working days at the respondent company. When referred paragraph 2 of clause 12 .1 of the collective agreement, 'TK2 ', the witness admitted tha.t, employees also used to work even on Saturdays, Sundays and public holidays. He stated that he did not report for work on 29th February, 2020 and 1st March, 2020 because he was not supposed to work. That he reported for. work on Monday, 2nd March, 2020 and he worked from.'08 .. 00 to 17.00 hours. He stated that he was aware that there were a lot of cameras at the respondent company and that they were connected to a: system which was· installed to record eventualities at the respondent company throughout that period. That on 2nd March, 2020, Mr. Gamel addressed the workers between 09.00 and 11.00 hours. He stated that from the time they were told to leave the factory, they were _waiting to be addressed by the respondent's management. 2.36. The witness stated that the. suspension letters were written to the unionised workers and not an individual. He stated that the Disciplinary Code and Grievance Procedures, 'TK3' did not provide for the procedure to be followed in an .event tha.t· .more than one employee was found wanting. That the. procedure to be followed was outlined in clause 4. J23 2.37. He admitted that all the union employees were suspended and charged including, the union representatives. He stated that it , was possible to conduct preliminary . . . . . ' investigations des,pite the suspension of the union representatives. He stated that all the union representatives were suspended and it would not have been possible to investigate their own matter. He also stated that he did not know what was happening in the company during the period he did ,not report for work. 2.38. Still under cross-examination, the witness stated that investigations had to be carried out within 24 hours. He also stated that the charge had to be raised within 24 hours according to clause 4 of the Disciplinary Code and . ; . . Grievance Procedures, 'TK3'. He stated that he was not aware that clause 3.1 of the collective agreement, 'TK2' ,•, ,. gave power to the Human Resources and Administration Manager to charge employees. 2.39. He admitted that he and the other complainants were given an opportunity to exculpate themselves. That they were also given the freedom to attend the disciplinary hearings with their witnesses. That after their disciplinary hearings, they were given the opportunity to appeal against the decisions. He confirmed that whilst on suspension, they were being paid half of their salaries but they were later paid in fu\l., · J24 2.40. CW2, Henry Mulosu testified that he was employed by the respondent in 2009 as a Helper in the metal section and he had other added responsibilities. That he was a bus Supervisor for one of the· buses which used to move between Town and Chifubu. That he was also a Trustee for NESAWU. 2.41. It was his testimony that his employment was terminated in August, 2020 upon being charged with the offences of participating in an unconstitutional strike and issuing a press statement to the media. That he had denied the charges. 2.42. The witness stated that he was wrongfully dismissed from ,. . -· i ' ' employment because he was· slapped with the wrong charges, and that the procedures that were used were contrary to the agreed internalprocedures outlined in the ;'" ! :-,.\ ' respondent's Disciplinary Code and Grievance Procedures, L. 'TK3'. 2.43. He explained that on 28th February, 2020, buses were sent to pick up work~rs and he wa"s picked up from his home. That he reported for woik ahd knocked off at 17.00 hours like everyone else. That he could not remember having participated in any unconstitutional strike of whatever sort. That the work environment was normal as usual. He l '·.' J25 stressed that there was no:v:iolence, no shouting and there was nothing to indicate that ,there was any strike. 2.44. He stated that on 2nd March,. 2020, he reported for work and knocked off at 17.00 hours. He travelled by the buses provided by the respondent. That there was no strike. That it was a normal working day and the environment was conducive. 2.45. He stated that on 3rd March, 2020, he reported for work but they found the Security Manager for the respondent, Mr. Kanduzu who had a list of names, including his name, and barred them from entering the respondent's premises and accessing the factory. That they never forced their way in. He stated that there was ho violence, no shouting or anything to indic'ate violence. However, State Policemeli went there between 08.00 and 10.00 hours and called for a meeting which the witness attended. That the Police informed them that they were there to enforce the instruction from management not to allow them to access the respondent's premises and to keep a dis.tance of 100m away from the gate which they complied with. 2.46. That they were denied, access to the respondent's premises again on 4th Mc\rc~, 2020 and no transport was provided to them .but they (ound their own transport to 'I - ·l J26 their homes. That the same scenario repeated itself on 5th March, 2020. 2.47. That, thereafter, the national executive members of NESAWU had a consultative meeting with the respondent's management after which they were informed that all matters between· NESAWU and the respondent's management were resolved; and that they would be allowed to resume work on 5th March, 2020. That they resumed work on 5th March, 2020. 2.48. To the witness's surprise, on 9th April, 2020 between 15.30 and 17.20 hours as they were knocking off, they were handed letters. That when he opened his letter, he discovered that it was a letter of suspension together with a complaint and charge letter. A disciplinary hearing was conducted laterin July, 2Q2Q, •.· 2.49. He testified thafthe only ·evidence he coul.d recall was a video that was · shown ·to hfm during the disciplinary hearing showing'' some· people walking about in the respondent's factory but it was blurred and inaudible. 2.50. The witness denied issuing any press statement to the media. Further, that when he perused the Disciplinary Code and Grievance Procedures, 'TK3', he found that the charge of issuing a press statement to the media was not ·' • J27. there. That the charge was only mentioned in the collective agreement, 'TK2' under clause 5. 7. He stated that the respondent did not produce any evidence against him regarding this charge during the disciplinary hearing. 2.51. It was CW2's evidence that the procedure outlined under clause 4 of the Disciplinary Code and Grievance Procedures, 'TK3' was not followed. He explained that if he was found with a case to answer, the first step to take was that preliminary investigations had to be conducted by the supervisor and union representative where they would decide whether forni.'al investigations should be launched. That this was riot done as he was not called for any meeting. That in the formal investigations, another . 1•· panel was supposed to be set up but that was not done. That the report from the panel was supposed to be '· presented to the Human Ke.source Manager by his supervisor or Head of Department, and that was the stage at which his immediate supervisor was supposed to lay a formal charge but that was not done. That the charges and complaints that they all received were all raised by the Human Resource, Manager. . as· evidenced by the charge sheet, 'TKl' in their affidavit in reply. That the said procedure was provided\· for under clause 5 of the Disciplinary Code ,and Grievance Procedures, 'TK3'. J28 2.52. The witness further testified that the issue of the benefits arose in 2014 when they were called for a meeting by the respondent's management where they were introduced to a man from a company called Buyantanshi Pension Trust Fund. That in that meeting, they were informed that the respondent would no longer handle their benefits when they retire. That they were informed that upon retirement or if something happened in between, they were supposed to go to Buyantanshi Pension Trust Fund to collect their pension benefits. That when the gentleman from Buyantanshi addressed them, he told them that they were only responsible to pay benefits from 1st January, 2015 going forward. 2. 5 3. That a question arose from the unionised members of staff . ~ , . ,, . . as to what would happe,11 to. their benefits for the year 2009 to 2014. Th,!! they were given forms to sign and they ' •' '- ._, were given two conditions for. them to access the benefits for the period 2009 to 2014. The first condition was that one should have attained the age of 55; and the second condition was that one should have worked for the respondent for a continuous period of 10 years. That there was a contradiction in that the respondent was saying it would no longer handle benefits but it was still holding on to other benefits. Later, meetings were held in different fora when the concerned employees raised the issue. That J29 an agreement was reached : w:ith the respondent's management in 2018 where it·. was agreed that the respondent would transfer the funds to Buyantanshi pension scheme within a period of two years as shown at page 2 of the minutes of the meeting, "TK4b". That the first 10 years were supposed to be calculated at three months basic salary for each year served. He stated that he was paid the said benefits, That he was not aware if the other complainants were paid their benefits. That most of them had served for more than 10 years but they had not attained the age of 55. That Taima Kachaka, Matthews Chilambwe, Jackson Mpiluka, Martin Banda, Clement Mwambazi, Leonard Phiri, Gabriel Mulwani, Richard Chileshe and Paul Lesa had served.for more than 10 years. That he was not sure about the others. 2. 54. During cross-examination, ,the witness confirmed that what they were claiming wet.e pension benefits. He stated that he used to .. contribu.te··to Buyantanshi Pension Trust Fund. That he ·did ·not hav.e. evidence to show that he was contributing. That.he had.not brought the agreement that they were made .to sign.: That he did not bring any documents to court show to that he ahd the other complainants were making contributions to the fund. J30' . '/·, 2.55. When referred to the )Tiinutes, 'TK4B', the witness confirmed that those were the minutes of the meeting between the respondent and NESAWU. 2.56. He stated that he reported for work on 28th February, 2020 and knocked off at 17 .00 hours. He recalled attending a meeting with the Production Manager on 28th February, 2020. He admitted having been part of the unionised employees who had a meeting with the Chairperson on 27'h February, 2020 where it was resolved that they were going to have a meeting with the respondent. He confirmed that the communication of any grievances was done through the union representatives'. That the unionised employees never breached any rules b_ut they agreed to be addressed ··': ; , l ;; by the respondent._ 2.5 7. That the first contact with the Production Manager on 28th February, 2020 was between 08.30 and 09.30 hours and he addressed all of them. That they were not working at the time they were attending the meeting. That the Production Manager went to address them again between 10.30 and 12.00 hours. He stated that it was not true that they were given instructions not to work. That they never worked up to 17.00 hours because the factory closed between 11.00 and 12.00 hours on 28th February, 2020. That they only worked from 08.00 hou_rs to somewhere between 11.00 and 12.00 hours. He stated· that Saturday and Sundays --- J31 were not working days. That the employees only worked on Saturdays and Sundays when there was work to be done and they were paid overtime allowances for working on : ., :_ j those days. That he was _aware that there were employees H~ who worked i~, ihifts. ~tated that he and the other a complainants attended meeting with the Production Manager in the morning between 08.00 and 11.00 hours. That in the afternoon, they were waiting for the Production Manager to go and address them again. He stated that he was not aware that their situation was televised. He stated that he and the other complainants including the 1st complainant who was a union representative did not work on 4th March, 2020 because they were locked out and they were not allowed access to the Jactory. 2.58. He confirmed having been given an opportunity to exculpate himself. When. referred to clause 4 of the Disciplinary Code and Grievance Procedures, 'TK3', the witness confirmed, that the.union representatives were also charged. That it . was possible for the union representatives to conduct investigations despite having been found wanting. He stated that he was not aware that clause 3.1 of the collective agreement, 'TK2' empowered the Human Resource Manager to •charge employees who were found wanting. That the procedure to be followed when a unionised member had committed an offence was I' ' , ... · J32 .·.· '' outlined in clause 4 of the Disciplinary Code and Grievance Procedures, "TK3". That it was not true that the procedure was only applicable where only one member was found wanting but even in cases where they were found wanting as a group. 2.59. He stated that in the letters inviting them to the disciplinary hearing, they were advised to go with their witnesses. That he had the choice to go and attend the disciplinary hearing with witnesses. That after the disciplinary hearing, he was given an opportunity to appeal. That he . was not . aware that doing anything . . ' : '. . contrary to the interests of the respondent such as holding press conferences and issuing publications was '' punishable by dismissal. He stated that the respondent did not owe him any half pay in salaries. 2.60. In re-examination, the witness· explained that in most cases when they had night shifts, it commenced on Sunday night and ended on Friday ,morning. He stated that they ,._. . ( . were charged individually. and appeared before the disciplinary panel individ,ua}ly. That if all the local union officials were c::harged, , the .national union could have provided a membe.r to r(;!present such union officials. 2.61. CW3, Willies Katu~ba informed the court that he was the former District Chairman for NESAWU. That during the J33 period he served as Chairman·, sometime in March, 2020, he was nominated by the·. national union executive to the represent the workers at' ·respondent company as the entire Branch executive of the union was on suspension. That when he reached at the respondent company, he found that there were 36 unionised employees who had been suspended together with the branch executive officials. That from the 36, one resigned and another retired so only 34 remained. That he was informed that the reason they were suspended was that they had been charged with having participated in an illegal strike and giving information to the media. 2.62. He testified that as a representative of the workers, he inquired from management as to how it arrived at . . ' . ' charging such .a .b ig number of employees. In response, . . . . management informed pim . that they had CCTV video footage. That he asked if th~y could play the footage so that they could confirm if. the right people had been charged and they agreed to play the video footage. That when they played the video, it turned out that it was not very clear and he could not identify any of the people who had been charged using the said video footage. That he asked management if they could identify any of the employees they had charged from the video footage and they agreed that the footage was not clear. That he asked J34 them as to how they had arrived at charging the employees as they could not identify any of the employees from the footage. 2.63. The witness testified that they continued deliberations with regard to all the employees that were charged and it took the committee about two to three days of deliberations. That Mr. Zulu was the Ch,;1irman of the committee; and Mr. Kanduza and an Egyptian whose name he could not remember were committee members. That there was also Mr. Mwale, who was the Human Resources Manager. That before the hearing, he had enquired as to why Mr. Mwale, the charging officer was among the panel when the conditions of service, that is, the Disciplinary Code Grievance Procedures, 'TK3' did not allow that. Then Mr. Mwale excused himself from the deliberations. 2.64. He stated that they deliberated on all the charges that were slapped on the employees. That other than the video footage, there was no other evidence that was led by the respondent against the 34 employees. The witness also observed that the charges that were slapped on all the employees were raised by the wrong person and they ended up charging even some employees who were on leave. That the employees were not charged by their immediate supervisors but were all charged by the Human Resources Manager who was not their immediate J35 supervisor. That he beli~ved that had they been charged by their immediate supervisor, the right persons could have been charged. 2.65. That after going through all the cases and minutes taken, management and the union representative were supposed to meet and decide on the verdicts for the employees as well as sign the minutes. However, that was not done and some of the employees were dismissed. Tha.t out of the 34 employees, between 16 and 18 were dismissed while others were reinstated. The witness stated that during the deliberations, the committee did not come up with any decision. That the decision was supposed to be made after convening another meeting of the committee. That the •' . ; ... _ ·,, - ' committee did not -call for that meeting to decide on who was to be dismissed or reinstated. 2.66. During cross-examination, the witness stated that the person who charged the complainants, that is, the Human Resource Manager was a wrong person because he was not their immediate supervisor. The witness stated that the Human Resource Manager was not a subordinate to the complainants neither was .he their supervisor or head of department. Wqen referred to clauses 5.1 to 5.5 of the Disciplinary Code and Grievance Procedures, "TK3", the . ' .. : l, ',,., witness read clause_s 5.1 and 5. 5 the gist of which was that the investigatio11 report had to be submitted to the head J36 of department who was to discuss with the Human Resources and Administration Manager and decide the appropriate action as specified by clause 5.1; and that clause 5.5 provided for the submission if all documentation,·· that is, the · charge sheet, exculpatory statement and findings to the Human Resources and Administration Manager ·for· setting up a disciplinary hearing. He confirmed that the Human Resource Manager excused himself before the hearing could proceed and he was not part of the hearing. The witness confirmed that, as a union representative, he was in the disciplinary hearing to represent the workers. He admitted that prior to the disciplinary hearing, there was correspondence between the respondent's management and the union. He • confirmed that there was a Secretary who was taking the minutes of the disciplinary hearings. He stated that he had a good relationship with the complainants and that he was in court to represent their.: interests. He stated that a number of the employees who were charged were on leave but he could only remember Chileshe. That Chileshe had no business to do at the respondent's premises between 28th February and 3rd March, 2020 as he was on leave. He admitted that he had a chance to view the first video footage. That he was not aware that Chile she appeared iri one of the footages talking to the media. 2.67. The witness stated that the strike by the complainants was not illegal. That an illegal strike was one where employees could decide to stop working after failing to agree with management. He agreed tlJ.at., the complainants were employed to provide a service to the respondent, and that the service was to be provided continuously unless the employee had obtained leave or permission or it was a weekend or holiday. When referred to clause 12 .1 of the collective agreement, 'TK2', .the witness confirmed that the complainants were supposed to provide services to the respondent for 8 hours daily. He confirmed that the complainants were unionised employees and it was the union that was supposed to bargain or negotiate with management on their behalf. That, therefore, the employees should not have assembled and engaged management directly because, the union · was the one negotiating on their behalf in, the ongoing negotiations. That on the material dates, the local union branch and management were engaged in discussions. 2 .68. He confirmed .. that all .the. employees including the complainants assembled to be addressed by management . . - ' ' but he could not tell tht ,qme that they assembled. He - ' , '. ._ . ' stated that he was not aware that the employees were just seated between 28th February and 3rd March, 2020 and L -,~: hence did not provide any services to the respondent . • :, I J38 ·. That it was proper for them to assemble because there was an agreement with;management that they were supposed to be addressed; bri that material date although he could not produce that agreemehtbefore court. That sometimes agreements used to be verbal. 2.69. Still under cross-examination, the witness stated that he was not aware if such a thing had happened before because it was the union that used to represent the employees at all material times. He stated that the committee and the union representatives were supposed to meet to discuss the verdicts. When referred to clause 9 of the respondent's Disciplinary Code and Grievance Procedures, 'TK3', the witness admitted that he was the ' . ,. :·.':". ,· employees' representativ.ein the disciplinary hearings. He ... : ' -~ .•• ,_ .I . • . also admitted .. · that according to clause 9.2, union ' .' ' . . •. ' ! representatives were nb,t. supposed to be part of the , ':. \_' ;_:. ·, '; disciplinary committee deliberations for coming up with the verdict. When referred to the 1st complainant's letter of dismissal, 'TKlOA', the witness admitted that either the disciplinary committee or the chairperson could come up with the decision; and that the said letter was done in line with clause 9.1 of the Disciplinary Code and Grievance Procedures, "TK3." He stated that management did not call for a meeting at which the ·minutes were supposed to be signed. J39 2.70. He confirmed that some employees were dismissed while others were reinstated. He stated that he was not aware that all the employees who .. were found wanting were dismissed but that some of them were reinstated on appeal. He admitted that the complainants were charged and that the offen~es for which they were charged were codified. That they were also given an opportunity to be heard. 2. 71. CW4, Richard Chile she informed the court that he used to be an employee of the respondent and that he was dismissed in August, 2020. He testified that he was dismissed because the respondent's employees wanted the respondent to clarify the, issue of their pension •· ,' _,- ·~ ~; .. benefits. He stated that for those who started working for ' the respondent from 2009 to. 2014, their pension benefits '' were not transferred to . Buyantanshi pension scheme ' ' which was introduced in 2015. That in 2015, there were ' salary negotiations and Jhe respondent agreed with the , , . . ~ union that the money foi: pension benefits was going to be . ' ; ___- ,.' transferred to Buyantanshi pension scheme in two years' time. However, the money was not transferred in 2018 or 2019. 2.72. The witness testified that on 26th February, 2020, there were salary negotiations. That at the time, he was the J40 Branch Secretary for the' tin1on, NESAWU but he did not attend the negotiations because he was unwell. That when the union returned from the negotiations on 27th February, 2020, they told him that they had come to an agreement; and that they wanted to inform the workers about the outcome of the negotiations. That they asked the witness, as Branch Secretary, to seek permission from the supervisor and head of department to hold a meeting with the employees. That he · first saw his immediate supervisor, Mr. Dennis Kapukulo and later the Production Manager, Mr. Gamel who granted them permission to hold the meeting with the workers at 16.30 hours. That when ' . he went back to his immediate supervisor to inform him that they had been allowed,to hold the meeting at 16.00 hours, the supervisor to'id him that since it was already time, he could go ahead and sound the siren. That he sounded the siren and the workers assembled. He then called the Chairperson to address the workers and the Chairperson informed the meeting that the negotiations were postponed to a date he could not remember. That the workers acknowledged the information about the negotiations but said that they wanted to know the outcome of the previous, negotiations which had taken place in 2018 concerning the transfer of their pension benefits to BuyantanshL pension scheme. That since the union did not have that information, the Chairperson told • J41 them that there was nothing he could say. Then the workers demanded for management and the Managing Director to address them about the pension benefits the . ,- ,-_.- next day. 2.73. The witness stated that 27th February, 2020 was his last working day since he was supposed to commence his leave on 28th February, 2020. However, on 28th February, 2020, the witness went to the respondent's work place to communicate to management about the workers demand to be addressed about the pension benefits. That he first went to see his supervisor to whom he explained that the workers were demanding to be addressed by management concerning their pension benefits and he was referred to the Production Manager.. . . That when he left his .· supervisor's office, he met.the 1st complainant, who was the Branch Chairperson whp .informed him that he had seen the Produc.tion M~nager and that the Production Manager was going to address. the workers. That within a short time, the Production :Manager went to address the employees and asked what they wanted. That one of the employees told him that they wanted to be addressed on the pension benefits for 2009 to 2014 but the Production Manager told them that he was first going to talk to his superiors. That the Production:Manager went back much later between 10.00 and 11.00 hours and informed them J42 ' that the company had closed for that particular day and requested the employees to go to their homes. That they all dispersed and went to theiryarJous homes. 2. 74. That on Monday, 2nd March, 2020, the witness went to the work place with a demand letter from the workers. That he went to see the Human Resource Manager, Mr. Paul Mwanza but he did not, find him so he kept the letter. According to him, operations were going on as normal. That between 11.00 andl2.O0 hours, he saw Mr. Mwanza enter the company premises a.nd he took the letter to him and went back to the factory. He stated that despite having been told that the company had closed, the employees were picked up from their hbmes using company buses. That when it was time to knock off, they all knocked off. 2.75. The next day on 3rd March, 2020, the witness went to the company premises and found· all the workers within the respondent's premises. That he_ went to his supervisor and informed him that he wanted to see the Human Resources Manager over the letter he had taken to him, however, he : J ~ ••• did not find him in the offi(:e. That when went back to the workshop, he saw the Production Manager who had gone ' to meet the unionised workers who had assembled in the factory. That the Production Manager asked them, including the union executive, to go outside the factory J43 but within the company premises and they all sat outside the factory. When it wa:s time to knock off, they all knocked off. That no one from management addressed them. 2. 76. The following day, the witness went to the factory and found the Zambia Police at the gate. That all the union officials were denied access to the factory. That the Chief Security Officer, Mr. Kanduza told the union officials and other workers that there was a letter from Lusaka stopping them from entering or going near the company premises. 2. 77. That after sometime, members of the press went to the premises and started asking what they were·doing outside the factory. That they alsb asked the 1st complainant whether the workers "~ere on strike. That the 1st complainant told them that ;they were not on strike and the workers and the union officials were surprised that they had been locked outside for demanding to be addressed by management concerning the issue of their pension benefits. 2. 78. The witness testified that the following day on 5th March, 2020, all the workers and the union executive members assembled at a distance from the responde,nt's premises st and he was also present. That the I complainant requested to go and meet· the Chief Security Officer to J44 inform him that the workers had reported for work so that they could work, but the Chief Security Officer told him that he had not received any instructions to allow the workers to resume work or enter the company premises. That they called for the . Chairperson, Secretary and .', ' '. (:. . Treasurer being the top leadership and told them that they were going inside the factory and that they were going to address them later. That they requested them to remain outside the respondent's premises. That after some hours, they returned and informed them that that they had agreed with management that the workers should resume working and they resumed work the following day. However, there was no decision made as regards their pension benefits. 2.79. The following day on 6th March, 2020, the witness went for work and found all the wo\ker_s inside the factor working, That he also went inside and went to see his supervisor, Dennis Kapukulo who told:him that the respondent had a .· - '\ new production plan. Tha.t, he was recalled from leave and told that he would continue with his leave once production reduced. That he ,\;VOrked upto 10th April, 2020 when the . - . . Production Supervisor allowed him to continue with his leave. 2.80. It was the witness's evidence that when he knocked off, he found a Security Guard distributing suspension and J45 charge letters at the gate and he was also given one. That the first charge was participating in an illegal strike; and the second one was issuing a press statement without authorisation from the company. That attached to the charge was a blank paper on which he was expected to write his exculpatory statemerit and another form acknowledging that the charge had been read to him. That the suspension letter read that he was not supposed to report for work until calleq for the disciplinary hearing. 2.81. He stated that after being issue.ct with the letters, the union executive committee, which he was part of, went to see the national executive committee. and they were told to wait for the next steps. :Later, ,the .national executive committee ' ,,, . informed them that it had. been observed that the respondent's disciplinary and grievance procedure code s'' had been violated when charging and suspending the workers. As a result, they wrote a_letter to management to that effect. That in response, Ji)e respondent indicated that it had followed the conditions of service and that the workers were going to be invited to attend a disciplinary hearing. Later, the respondent wrote letters inviting all the ' ! . suspended employees to attend the disciplinary hearing. The respondent _a lso informed the national executive committee about it who indicated that they were going to send union representatives to represent the workers at the J46 disciplinary hearing. That the disciplinary hearing did not proceed as the branch unibn executive and the national union executive committees alleged that the disciplinary code and grie,varice procedure was not followed in charging and suspending:the workers. That they claimed that there were no preliminary investigation,s and that the charges were slapped on workers by a wrong person. Further, that the charges were based on the collective agreement instead of the disciplinary code and grievance procedures. That management convened another disciplinary hearing which also failed to take off for the same reasons. Thereafter, they, went to the Labour office and management and the union representatives were summoned. That the Labour•office advised the parties to follow the procedure outlined in the disciplinary and grievance procedure code. -Consequently, management wrote letters tOthe 36 affected employees inviting them to the third disciplinary,hearing which they all attended as management had warned,that the cases were going to be decided in their absence if they failed to attend. That all the 36 workers denied the charges. However, they all received dismissal letters. 2.82. The witness testified that the respondent had relied on the video footage which revealed, that they were not performing their duties. That other workers who had their :>, ,. J47 disciplinary hearing earlier than him were shown the said video footage during the hearing but he was not shown. The witness denied that they had gone on an unconstitutional strike and also said that he did not personally issue a press statement. 2.83. Regarding their claim for pension benefits for the period 2009 to 2014, the witness explained that he started work in 2009. That in 2015, the respondent introduced a pension scheme which was going to be managed by Buyantanshi pension scheme. That after the pension scheme was introduced, a meeting was held between the employees and management with representatives from Buyantanshi pension scheme where management informed all the employees that pension benefits for all employees on permanent and pensionable basis would be remitted to Buyantanshi pension scheme. That one of the employees asked about the benefits for the period 2009 to 2014 and the representative from Buyantanshi stated that the employees did not have, accounts with Buyantanshi from 2009 to 2015. Then the.respondent's management informed the employees that for an employee to qualify to get pension benefits, he/she must have worked for atleast 10 years or must have attained the age of 55 years. That at that time, most of the employees had not worked for 10 years. That those employees who had clocked 10 years J48 were paid their pension benefits. That ·· none of the complainants had worked for the respondent for 10 years in 2014. That at the time of their dismissal from employment, some of them had worked for 10 years and these were, the witness himself, Taima Kachaka, Matthews Chilambwe, Haggai Moono, Clement Mwambazi, Oscar Mulamata and Gabriel Mulwani. 2.84. The witness stated that he was on leave at the time he was dismissed. Further, that out of 10 union executives, nine were dismissed. That it appeared as though the respondent was targeting the union officials. The witness referred the court to the memorandum of agreement between NESAWU and the respondent, "TK4A" and the minutes of the collective bargaining, "TK4B" and stated that the said documents revealed the agreement between the union and management concerning their pension benefits and that they had also agreed to a salary increment of K700.00 across the board on condition that management paid their pension benefits for their five years past service from 2009 to 2014. 2.85. During cross-examination, when referred to paragraph 1( ii) of the notice of complaint, the witness stated that he was one of the complainants and he started working on 1st May, 2009. That at the time he started working, there was J49 no union and conditions of service in place but they were given letters. That only their contracts of employment governed their conditions of service. He stated that he became a unionised employee in 2011 and there was a collective agreement that governed their conditions of service at that time. He stated that Buyantanshi pension scheme was established to administer the employees'. pension benefits upon retirement. That the respondent was contributing as well as the employees who had to indicate how much they were willing to contribute: However, he had no documents to show how much he used to contribute. 2.86. The witness referred the court to the memorandum, "TK4A" and the minutes, "TK4B" to support the complainants' claim for payment of benefits for the whole contract period, and accrued benefits for the period 2009 to 2014. He stated that the agenda for the meeting was negotiations for salary increments. That what was agreed upon between NESAWU and the respondent was reduced into the memorandum of understanding, "TK4A." That in the said memorandum of understanding, there was no agreement that the respondent was to pay pension benefits from 2009 to 2014. That the evidence to support their claim for the payment of pension benefits was contained in the minutes of the collective bargaining JSO · meeting exhibited as "TK4B". That the pension benefits were to be paid to employees who had served the respondent for a period of 10 years or had attained the age of 55. 2.87. When further cross-examined, the witness stated that all complainants were to remain on the pay roll until their accrued pension benefits were paid as provided by the 2016 Constitution of Zambia. 2.88. When referred to the collective agreement, 'TK2', the witness admitted that he' was a unionised employee and that the collective agreement governed his conditions of service. He stated that he did not retire but he was dismissed from his empfoy~ent. When referred to the definition of 'dismissal' on page 4 of the collective i agreement, 'TK2', the witness admitted that it was the clause that was applicable at the time he was dismissed. He admitted that the respondent paid them the half pay that was withheld during the period of their suspension. He stated that no salaries were. owed to them at the time they commenced this actiop .. 2.89. The witness stated that .. the complainants were still ,. ' "' '. seeking the reH_efs under.~laims 1 and 2. He stated that . (. among the . compla)nants, there were union representatives · who were also employees of the . ' JSl respondent. He admitted that the duty of the union was tci negotiate terms and conditions of service on behalf of unionised employees. That, therefore, employees had no audience of the respond,ent regarding their conditions of service since they were bei'ng represented by the union. . ,·' ' When referred to clause 6.1 of the collective agreement, 'TK2 ', the witness admitted that according to the agreement between the respondent and the union, the bargaining unit for the unionised employees was the union. 2.90. The witness explained that what transpired on 28th February, 2nd March and 3rd March, 2020 was that the unionised workers and union representatives were having a socialisation meeting to. promote social dialogue as -i ., '~ indicated in paragraph 13 ·ofthe affidavit in support of the notice of complaint. He sta,ted that he was employed as a carpenter and hishormal working hours were from 08.00 ·, ,. ' to 17.00 hours. That they.used to have lunch break from . . 12.30 to 13.30 hours. He denied that unionised employees usually had their meetings after 17.00 hours. He admitted that clauses 5.1 and 5.2 of the collective agreement, 'TK2' were what bound him and the other complainants at the time they were employed by the .respondent. He stated that he had taken 23 days annualleave at the time of the J52 incident but, however, he could still be found on the respondent's premises even whilst on leave. 2.91. When referred to paragraph. 7 .of the .complainants' affidavit in support of the notice of complaint, the witness admitted that on 27th February, 2020, the workers demanded that management should address them directly regarding their accrued benefits for the period 2009 to 2014. This was despite clause 3.1 of the collective agreement, 'TK2' providing that the bargaining unit was the union at all times and that they should never be addressed by management. He confirmed that clauses 5 .1 and 5.2 were applicable to them. That that entailed that when they reported for work until knocking off time, they were requested to devote their time to work.except during lunch break. He stated that he was one of the employees who had gone on 23 days annual leave as shown by his approved leave form, "TKl0B." 2.92. When referred to paragraph 8 of the same affidavit in ' support, he confirmed , tnaf 39 employees, including . •'·· ' himself, had . assembled waiting for management to address them between 08.00. qnd 09.00 upto 10.00 hours ·' ' 1,,. . on 28th February, 2020. ' " 2.93. That on 2nd March, 2020, the-workers had reported to their respective departments and later got permission from their supervisors in order' for them to assemble to continue with the 'meeting which did not end on Friday so that the Managing Director could address them over their accrued benefits. That aft~r they had assembled, the Production Manager asked them to disperse and to go outside the premises. He admitted that he had no proof to show that the 39 employees had been given permission by their respective supervisors to assemble and wait for management to address them. 2.94. When referred to the video footage in the respondent's further notice to produce dated 14th January, 2025, the witness confirmed that on 28th February, 2020, a group of employees had gathered inside the factory and that they were not performing any•dudes. That the situation was the same even on the second.floor of the respondent's factory on the same date. That the time was 12.38 hours and not 08.00 hours. That the state of affairs was the same even on the third floor on the same date. He admitted that the man in a green shirt was the 1st complainant. 2.95. When referred to the video footage of 2nd March, 2020, the witness stated that the workers were outside the factory and the time was 09.44 hours and not 08.00 hours. That the footage showed that the workers were still outside the respondent's premises at,14.32 hours on the same day and JS4 also at 16.37 hours. He admitted that earlier that same day around 08.57 hours, the workers had already assembled inside the factory and they, were not performing any duties. When referred to the footage of 3rd March 2020, the witness confirmed that .. employees, who included the complainants,. were assembled outside the respondent's premises around. 09.05 hours and they were not performing any. duties.. When referred to the video footage, "VMl" of the respondent's affidavit in opposition, and clause 5.7 of the collective agreement, 'TK2', the witness admitted that the 1st complainant and Matthews Chilambwe were speaking to the media on 4th March, 2020. That he was not aware if they had been granted permission to speak to the media. He admitted that the video footage showed that the unionised employees, including the complainants, on 28th February, 2nd March and 3rd March, 2020 assembled and waited to be addressed by management. , , ., . • 2.96. Still under cross-examination;the witness stated that their dismissal from employment,was wrongful and unlawful because it was not done in accordance with clause 6.1.2 of the collective agreement, "TK2". When referred to paragraph 25 of the complainants' affidavit in support of the notice of complaint, the witness admitted that their dismissal was unlawful because of the reasons stated in ._. '. r. JSS the said paragraph 25. He stated that the complaint in their cases was that the Human Resources and Administration Manager was the complainant as well as their charging officer. He stated that he was not aware that the complainant was the Production Manager but he was of the view that it was the Human Resources Manager. He could not recall who was part of the disciplinary committee. The witness admitt.ed that Willis. Katumba was a member of the union but he was not representing the interests of the unionised employees. He stated that the Human Resources and Administration Manager was not the one who heard their.cases. 2.97. The witness confirmed ,that. he was charged with two offences, that is, participating in an illegal strike and issuing statements to the press. That he was given a chance to be heard. He confirmed that he was among the employees who had assembled and wanted the respondent's Managing Director to address them directly over their claims for accrued benefits for the period 2009 to 2014. He stated that he was one of the supervisors that had granted the complainants permission to assemble despite being on leave. 2.98. In re-examination, the witnes's referred the court to clause 6.1.2 of the collective agreement, "TK2" and explained that according to the said clause, the complainants were J56 supposed to be charged in accordance with the disciplinary code but they were charged based on clause 5. 7 of the collective agreement which was just a statement. 3.0. THE RESPONDENT'S CASE 3 .1. In its affidavit in opposition, the respondent averred that the complainants were unionised workers who belonged to NESAWU, a trade union which was engaged to negotiate terms and speak on their behalf at all material times. That in line with that purpose and i.n reference to clause 9 of the 2018 Collective Agreement which was extended and in effect at the time of the complainant's dismissal, NEWASU, including nine of the ... complainants herein and respondent's representa,tive began its collective bargaining meetings in January, 2020 whose agenda was salary increment for . · the respondent's unionised employees. That :after :deliberations between the said representatives, the said meeting was postponed to 26th February, 2020 and on the said date, the meeting was postponed to 12th March, 2020 for further negotiations. That the union representatives initiated the adjournment so as to engage its members and give an update as regards the discussions and/or negotiations. 3.2. That on 27th February, 2020, the union representatives, among them the complainants, .and other members had their meeting as requested but.the respondent was not privy to the discussions thereto. Therefore, it was illogical for the complainants to allege that it was resolved in that meeting that management should address the complainants when they belonged to a trade union which was a mouth piece for the complainants at all material times. Further,. that there was no collective agreement executed between the 11nion representatives and the respondent in relation to· the alleged accrued pension benefits for the period 2009 to 2014. 3.3. It was stated that on 28th February, 2020, the complainants withdrew their labour from the respondent company and <:...! •.5../ continued to do so on 2nd March, 2020 contrary to clause ·.;. f• • ~· • :., ,~ 15 of the respondent's disciplinary code and grievance procedures handbook. That. the complainants demanded . •. . / ,.. . ' to be addressed by the Mal.).aging Director and refused to _ .' .. i. ;~·. . /_ _ l be addressed by the then Hvman Resource Manager. To , ' ' ' _; .. that effect, the deponent produced the video recording, .r. •. \. ·., '. ..· '-.:: 'VM l ', showing withdraw of labour by the complainants . • i : .:.-. ' ' .- C• • That there was no collecUye dispute that was declared between the union represenr'.')tives and the :respondent to (_: j warrant the complainants' withdraw of their labour. That on the material day, the complainants withdrew their 'y .1:·i_r,.,::< ,,i\~' Ji8 .. .. '; . U . ! . . .Ls~ labour and denianded 1 th8!. they would not work as required until their grievcl.f'iklds were resolved despite not having communicated any grievances to the respondent or to their union. That the 1st complainant had texted the Managing Director of the respondent company informing him that the complainants 1v,~ri;! ready to leave the respondent's employment as':!ihown by the text message, 'VM2'. 3.4. The deponent denied th~'ic' Mr. Mohammed Gamel had addressed the <;omplainarits;·'That at no point was the respondent informed or 'ar,hrited by the complainants or its union representativ:e-s·' that the complainants had grievances which,1ieeded.1l:n'~nagement's attention. It was stated that the coinplaina.1110•,::ontinued to withdraw their labour without informing management the reason for their action until the respondent called the Zambia Police to disperse the complainants after failed attempts by the respondent. That the comg/biNants' union General Secretary was informed by W"'r,•'."'f 1.,,"he letter dated 13th July, 2020, on the refusal by the complainants to resume work as evidenced by the letter, •v;13 '. 3.5. It was the respondent's 1\i,21:1nent that the lockout was declared on gro:,Jnds thattr,ie ir-0mplainants withdrew their labour and thms,, iConti11,v-ecih action affected the work J59 • environment at the respond£~l's premises such that there was no producti~h1 at the il"'S'f36ndent's factory. This led to closure of the f,a , .•c....+. ·,(o, ry on,J'fI·1~ \. ?: ':, {-... :, .! ates in contention. Further, ·, that the press sl'~te,nent i+Htfii11as released to the media by the complainants was d(infh-:'ontrary to clause 5.7 of the collective agreement, 'VM4<,;which was in effect at the time of the complainant's employment and the said • statement dented the respondent's reputation . 3.6. That consequently, the complail:}jlffltS were suspended and charged for withdrawing their,,~fi,b,our and issuing press statements. 3.7. The respondent denied:. the assertion that the ; • • ,,. ' I complainants were dismi.~,5-~f:t for holding consultative .:.'-, 'l :>·V union meetin~;,;. rhat th;!;:.,iP,:i;,actice was that the union • ·-1~-,_.,,. --.- ~,.-.,. ·' •' ,. '•• •. representatives.:l't{f;re reCf\1t1w~t to request management to . .,. ..,_,_ •, ,., . ~ ' ·.' .. . ,· indulge them to }\ave <;9/J:'.:iY.Ltative meetings with their fellow employees specify~r'•f~ the time and place of the meeting but the complainants did not follow that procedure. Further, that the complainants were under obligations not to release statements to the media. 3.8. It was stated that the complal,n?,f,:,S were suspended and . :.:-'•• ~)- . invited to a disciplinary hearing·and that the respondent followed the procedure prior to dismissing the complainants. That in the~1n:1Likely event that procedure ~\\--.;::)->}/ -, ; . -~-Jrrx~\- , iY~--l.~; ~ _;_ti:. ·- - J60 was not followed, the compla,JnIH\tS engaged in conduct . .: .· ':~ . that warranted the respondent to exercise its disciplinary power to dismiss the complaini3,nts. t:.:nl; 3.9. The respondent denied mtsmanaging the pension fund. The respondent a.lso deni'e'd'.J~suing threatening remarks ,~ .. to the complainan ~ ts and siah . i . d that on several occasions ·;:,;v,~+k when the comp'I~h1ants called for a disciplinary hearing, the com~lainant~:'hdled to attend and that the contents of the respond~~p~ letter dated 13th July, 2020 were merely a reminder to the complainants on the importance for them to attend their various disciplinary hearings. ',:: ';w, ; >!l,:-'. n' 3.10. It was averred that the complaii'.iaf.ts did not deny having withdrawn their labour on 28th February and 2nd March, 2020. That the video recordilig, 'VMS' showed that the complainants' union rep~~$'~ptatives admitted to the complainants h,tving eng~,ge,d in an illegal strike. The .. . · .. •-.· deponent denied .that th~; complainants were on annual stat:~,-~ ~~~at leave and furth,';r although one. of the :--'~~i.~.. .J/~:s::.:.Y complainants' wa,;;':,on anni,;at)eave, he still issued a press ; ... '-·~: .,\·,· ~--.-1:; . statement and was involv~,jn the illegal strike. 3.11. It was further stated that the employees who were reinstated were discovered not to have been part of the employees who withdrew their Jabour on the dates in question. That others admitted having taken part in the illegal strike but were remorseful while another was nursing his wife and was not in attendance. That it was upon that basis that the respondRpt's Managing Director exercised his discretion and rei/,s,tated the respondent's _i. I employees who were remorseful. · 3 .12. The respondent denied having erred in administering the due process in dealing with the complainants' cases. It was averred that affer the respondent company carried out investigations, Jt conclud~'.d that the complainants engaged in cqtiduct coritrai"y to its handbook and a'S collective agreem~ht. Tlta:t': a result of the peculiar nature that surrounded th~ offences committed, in line with the respondent's h,andbook and the collective ';' agreement, the Assistant Human Resource Manager suspended the complainants as he was clothed with the ~· ,_,.,-_ '. . requisite power to suspend. ;th~m. That the Human ·. ··--·,> '·.\ Resource Manager and/or his'. A5sistant were not the charging officers and neither were they part of the disciplinary hearings. It wa.c:stated that the union was engaged at every stage and .each complainant had a union representative that was paJ!i;of their disciplinary hearing. 3 .13. Further, that noi:w.r'thstan{iiug}that the complainants were on their half pay,::while e:iil peuspension, the respondent J62 eventually paid the rem~inder of the half pay after union consultations with their and no sum was owed to b\1 any of them as e{}idenced 1::i'he bank statements. 'VM 6'. 3.14. Furthermore, that the complainants were paid what the respondent contributed to Buyantanshi Trust Fund which came in effect on 1st January, 2015 but could not pay the complainants full pension benefits since they had not reached the normal retirement age of 55. 3.15. The deponent reiterated that the complainants engaged in conduct that warranted a dismissal and thus their dismissal was not wrongful and unlawful. Further, that the complainants have not suffrte,'d any loss and damage since . , .., -.,.;, '~ ,.c they engaged in-cqnduct which they knew was codified as .• \ \ •' -.,;. .;,,. \._l ). an offence. The deponent ah;q ,stated that Articles 187-189 -·· ,..: :-. ,. .. . _;_, /: ·-.,-' of the Constitution of Zambia (Amendment) Act. No. 2 of 2016 were not applicable to ·the complainants cases; and \, . that the respondent was not privy to the relationship between the complainants and their families. 3.16. At the trial, the respondent call~..d six witnesses. 3.17. RWl was Mwenda Matongo, IT Officer in the respondent company. 3.18. The witness informed the Court that he was in charge of all CCTV and technical support. 3.19. He testified that in 2020, he was approached by the Security Coordinator, Chrl'stopher Kanduza who requested for CCTV footage for a particular date and time which he could not remember. That 'Christopher Kanduza wanted . -. - the footage to be backed in a flash disk. That he 1.1p transferred the videos from their system called Network Video Recorder and gave the information to Christopher Kanduza. 3.20. During cross-examination, the witness confirmed that he was the one who put together the video footage that was produced before court. He also confirmed that the footage was cut and not complete. I 3.21. RW2 was Christopher Kandu.z.a, Security Coordinator in the respondent ,,ofnpany;,, · · 3.22. He informed the court that 'his duties included securing company property and monitoring CCTV. 3.23. He recalled that on 28th February, 2020 around 08.00 hours, he noticed that the complainants had gathered in one place. He informed his superV'lior, Mohammed Shehab J64 • who joined him later and confirmed that there was a work stoppage. That Mohammed Shehab asked him to continue monitoring the situation on CCT,V! and he noticed the same gathering on 2nd and 3rd March, 202·0. The witness referred the court to the video footage in the respondent's further notice to produce filed into court on 13th January, 2025. He stated that the footage showed the employees had gathered outside the factory in the production area on 2nd March, 2020. The. witnes.s,•alst> referred the court to the footage for 28th F€hruary, 2020 and stated that he saw the complainants gathered in one place inside the factory called the shop floor. That the witness then approached the IT Officer, RWl to retrieve the video. 3.24. During cross-examination, the witness stated that he was employed by the respondent ol.\ii.4th November, 2019 on contract basis. He confirmed Jha.t the benefits that the complainants were claiming for the period 2009 to 2014 did not affect him. He stated that he was not aware that the complainants were gathered within the factory. That he was not aware that the complainants were waiting to be addressed by M1,,Gamel a:t·his,request on 3rd March, 2020. He stated that tke compl~in.ants had gathered for more than one minute' ,and not< fr,r less than the two minutes shown in the video. That there was a video longer footage but it was not produced before court. 3.25. RW3 was Frank Ch_ing'amb1;t;;<l, Journalist of Zambia News and Information Services (Z,\NIS). 3.26. The witness testified that he could not recall the date but in February, 2020, he received a group of young men aged between 20 and 40 at his workplace, ZANIS in Ndola. That when he went outside, the group representative who identified himself as Taima Kachaka (the 1st complainant) approached him and told him that they went there because they wanted to inform the nation, through the media about their five years benefits,. -which the respondent was supposed to rem.it to a prjy;.ite pension company called Mukuba Pension'S.cheme. That the witness told them that at that time, he Wi'S not abl,B;tm capture or interview them. That they agreed to meet tht next day at the respondent's premises were the 1st complainant was going to address his fellow workers and members of the union called NESAWU where he was branch Chairperson. 3.27. He testified that the following day in the afternoon between 14.30 and 16.00 hours, he went to the respondent's premises where he conducted an interview with the 1st complainant. That the interview was done outside the respondent's premises because the gate was locked. That aftef gettin:g;.the side of the story of the J66 workers through the 1st complainant, he also engaged the respondent's management and they gave him their side of the story through John Mwanza, Chief Financial Officer. 3.28. The witness stated that he CO!Jducted the interviews using a high definitiori camera Jo record his interviews. That after he finished the interviews, he went back to his office where he made a report called a news package. That the video was 2 minutes 37 seconds and he asked a colleague, Nelly Botha to do the narration. That the video was sent to Lusaka via g-mail for broadcasting and it was aired on Zambia National Broadcasting ;;ooperation TV and ZANIS. He stated that the capturing of the image was done in the public interest and both parties were given a chance to speak. The witness referred,the court to the video, 'VMS' and identified the 1st compl-a.inant and John Mwanza. 3.29. During cross-exam.ination, ,the-witness confirmed that the only person he interviewed~vas the 1st complainant. That he interviewed another man who did not tell him his name but told him that he was the Secretary of the Union. He also confirmed that the gate was locked at the time he was conducting the interview. He stated that he was not aware that the respondent's buses pieked up the workers from their homes but they found the _J;ate locked ~hen they got to work. The witness stated that John Mwanza told him J67 that the workers wanted to be addressed but he could not talk to workers who were on strike. He stated that the position of the workers was that they wanted to be addressed by management and that was why they sought audience through the media. That he could not know whether the workers Were on strike but they told him that they were seeking payment of their five years terminal . benefits and they wanted . to know whether the said benefits had be.fln remittec:l to Buyantanshi pension scheme. 3.30. RW4 was Brighton Kashila, Stores Handyman in the respondent company. 3.31. He testified that on 27th Febnl,ary, 2020, all unionised employees, including himself, had a meeting with their union leaders from the respondent company. That the • union leaders wanted to update them on the meeting they had with management concerning salary increments. That the union leaders informed them that they were not awarded a salaqt.increme!(!it 11,\ecause the respondent had no money to eff!tict the in'r-rt1t-hent. That the Chairperson, Taima Kachaka (th~ I st com.ojainant) then told them that the next day, 28th February, 2020 they were not going to work but they were going to be on strike so that the respondent could hear their plight. That they all agreed to th go on strike and Started the. strike on Friday, 28 February, .:. .LI t•' 2020. That they· never used to work on Saturday and Sunday so they continued with the strike on Monday, 2nd March, 2020. He stated that he did not report for work on Tuesday and Wednesday because he was sick as such he did not know what had happened on those days. 3.32. He explained that when he returned to work on Thursday, • he found that the strike was still on and he also joined. That he found that his colleagues were outside the respondent's premises and that was where the strike was w:~re taking place. Ths1t they on strike the entire day on '. .. :;:···· ·- ... , Thursday just like on the previous day. Then the national .; . , "" '•, .. .-' union leaders went to 1:}.l,e: :respondent's company and .. r,, ·.'·' addressed the worl~ers. After that, the union leaders went to meet management and it was agreed that the workers should go back to work. That they resumed work on Monday, the following week. 3.33. In cross-examination, the witness confirmed that he also took part in the strike and he was dismissed from work. He denied that one of the reasons he was re-employed was because he agreed to testifyf6r the respondent. He stated that no one from the respondent's management addressed the workers on 2~fh Februarv;.2020. He stated that he could .. • ,c-,c''" ·• not remember w_hen Mr. '0,fI'J'.lel addressed the workers. J69 That he could also not remember who was the Factory Manager during the period of the strike and stated that Mr. ~i-• . .•, Gamel was the ProductiodMa'.nager. He stated that he did , ·i '·1 ./ •• _ ,••_ i -· • . not work on 28th'February''T'.1ecause they were on strike. That some workers were riot working while others were working. He admitted that he received a letter of suspension but he could not remember if the said letter indicated that they were on strike from 28th February to 3rd March, 2020. He stated that he was not aware that there was a demand to· be addressed by management on 28th February, but all he could remember was that they were not working on 28th February. He admitted that they never used to work on Saturday and Sunday. That buses used to pick the employees from their homes. He stated that he did not remember the dates when the workers were picked from their home~and foNri:dJbe gate locked. He admitted MO:ti'ff.iy. having gone to wd~k on That they went inside the factory and continued with tqe strike. He stated that he did not find Police Officers on the respondent's premises on Monday. That the gate was not locked on Monday and they were allowed to go inside. He stated that when he reported for work on Thursday, he found the gate locked but he did not find Police Officers on the premises. He stated that he did not know RW3 whom he saw for the first time in Court. He denied being among the workers who went to ZANIS on 27th February, 2020. That he was not J70 aware that RW3 went to the respondent's premises and that a news package about their strike was aired on ZNBC TV. 3.34. When referred to the video; VMS', the witness admitted that the workers were locked outside the respondent's premises. That he could notJeU whether the Officers in uniform were Police Officers or Security Guards unless he saw the uniform because the Officer's berets looked the same as those for the respondent's Security Guards. 3.35. He admitted that when entering the work premises, they used to clock-in using fingers at the security guard house . where there was a clock-in and clock-out machine. He stated that on Friday, 28th February and Monday, 3rd March, 2020 everyone one entered and clocked in. That clocking in meant that they had reported for work. That he could not tell who, among the ccJmplainants, had clocked in or had not clocked in due to the lapse of time. He stated that he did not see :Mr. Gam'eJ; ,.;rddressing workers on 28th February in the rriorning and in the afternoon. That he did not see any official from· management addressing the workers on that day. 3.36. When referred to paragraph 9 of the respondent's affidavit in opposition, the witness admitted that according to the J71 respondent, the strike was for two days only whilst he stated that it went on upto about 4th or 5th March. That he was absent on Tuesday and Wednesday so he did not know what had happened on those days but when he resumed work on Thursday, he found that the strike was still on. He stated that he could not remember the date when the national union leaders went to address the ·workers. That after the national union leaders spoke to the unionised employees and management, the strike ended and it was agreed that all the worker6:should resume work. That that happened on Thu'fsday whJ·n'he returned to work. ,, 3.37. In re-examination, the witness stated that the reason he stated that everyone worked on 28th February and 3rd March, 2020 by reason of having clocked in was because upon reporting for work, they first had to clock in. That they could only be considered to have worked after making it known to the supervisor or boss that they were working. He stated that they were not working on 28th February and 3rd March as they were on strike. He stated that the respondent had both unionised and non unionised workers. That the workers who were working during the period in quesf:lon were the non-unionised workers. That thine were.,aI~o some unionised workers who were afraid to go on strike and continued working. J72 . 3.38. RWS was John Mwanza, ,Chief Financial Officer in the J •,.. - ,_, .. ,.,.•.,.: respondent company. 3.39. The witness informed the court that he was relying wholly on the evidence in the respondent's affidavit in opposition th filed into court on 27 February, 2023 sworn to by Violet Mtonga. 3.40. During cross-examination, the witness denied that Mr.. Gamel, Production Manager addressed the workers in the morning and afternoon on 28_'h February, 2020. That he was not aware that the person who was in charge of CCTV admitted in court that there was a portion where the Operations Manager was ad,i-Jr.r:~ssing the workers but it was not captured. H~ stated that the CCTV footage, 'VMS' th showed only part of the ·events that took place on 28 February, 2020. That it did not show workers disembarking from the bus. He confirmed that the workers th went for work on 28 February, 2020. He admitted that the CCTV footage did not capture the portion were Mr. Gamel.. Production Manager was addressing the workers and the portion for the afternoon. He could not confirm if the th respondent had CCTV recordings for 28 February, 2020. The witness confirmed that there was no power in the afternoon at the time Mr.. Gamel was addressing the workers and he asked them to go home after he finished J73 addressing them. He also confirmed that the workers were not on strike on 28th February, 2020. That the workers went for work using the respondent's buses and even entered the company premises. He denied that the workers were told to assemble again on Monday so that they could be addressed. Th'." witness stated that he could not confirm if some of the respondent's senior management staff had gone to attend the Nc'wala ceremony between 27th February and 4th March. He denied that the reason the workers had assembled on Monday was because the Production Manager had asked for another meeting on Monday so that he could consult the senior Managers who had travelled for the Nc'wala ceremony. 3.41. Still under cross-examination, the witness stated that the penalty for the offence of giving a press statement was dismissal. The witness referred the court to clause 5.7 of the collective agreement, ''Yi!\JM4" to that effect. He stated that the charges that were tf,';.:ven to the complainants were the same as those under clause 5. 7 of the collective agreement, "TK2". He stated that only two employees were charged with the offence of giving a press statement. That there was a reason all the workers who were alleged to have taken part in the strike were charged with the offence of giving a press statement. He confirmed that on the day the press statement was given, the gate to the J74 respondent's premises was locked and the workers were outside. That the CCTV footage showed other workers just sitting outside waiting for management to decide on the next step and they did not give any press statement. That the gate was locked on Wednesday, 4th March. He stated that he did not know if the workers were not working on Tuesday, 3rd March. 3.42. When referred to paragrap!t9-of the respondent's affidavit in opposition, the witness r,~i:ated that the complainants withdrew labour on 28th February and 2nd March. He stated that the Production Manager asked the workers to go home in the afternoon because there was no power, but they had withdrawn labour in the morning and that was the reason they were charged. He stated that there was no amnesty given to the workers after management met with the senior leadership of the union. 3.43. The witness stated that there was a strike from 28th February to Wednesday, 4th March. He admitted that the respondent issued a letter to the workers stating that whoever was not going to ili,;>i'.iort for work by 4th March was going to be disciplined. He sll:1ted that the workers did not report for work on 4th March but they reported the following week on Monday, 9th March, 2020. That they reported for work on Friday, Monday and Tuesday and did J75 ·t([J not report on Wednesday b~f<1use the factory was closed and the gate was locked so they did not go inside the premises. He stated that he was not aware if they had reported on Thursday because they were·, banned from entering the office. He stated that the workers were considered not to have reported on 4th March because they did not clock in. He stated that he could not remember when they were given suspension letters. 3.44. RW6 was Arnold Zulu, Stores Accountant in the respondent company. 3.45. The witness te!.tified thiat the complainants were pensionable and unionised ~i"Qployees of the respondent. That they belonged to a union called NESAWU. That they were employed on permanent basis and their relationship with the respondent was governed by a collective • agreement, 'TK2'. That in the said collective agreement, it was agreed that all manner of employee relations between employees and management were supposed to be dealt with by the union executive as provided for under clause 3 .1 of the collective agreement. 3.46. The witness testified that between March and April, 2020, management appointed hi.m as disciplinary Chairman to hear the complainants' ca&.~s. That the charging officer . ... . 12' . .. •• I . J76 was the Human Resource Manager, the late Mr. Mwale. He stated that it was not wrongful for the Human Resource ' ~ ·,_' . Manager to charge the complainants because as Human ;_., ·,. ,.,.'; ... : ' Resource Manager, he wa~.Jhe one mandated to charge '· ,.. < ,_,,_,. __ J' them as provided for in clause 3.1 of the collective agreement, 'TK2'. 3.47. He stated that after management appointed him as Chairman, they also appointed other heads of department to be part of the disciplinary committee, that is, Mr. Christopher Kanduza (RW2), _head of security; and Mr. Ahmed, the Quality Service Manager. He stated that the case was determined by the constituted disciplinary committee which was Chaired by him and not the Human Resource Manager as alleged by the complainants. That there were also other members of the committee from the union, namely; Mr. Reagan ('laibwe, Mr. Willis Katumba and . ·. ... ,, " Mr. Chisenga. That the comtriittee looked at the offences the complainants were charged with and what the collective agreement provided as well as the evidence that was presented. 3.48. He testified that for the two offences they .were charged with, the evidence was in video format and they viewed the said videos. The witness referred the court to the videos, 'VMl' and 'VMS'. He stated that the videos showed J77 that the employees were not in their respective work stations. That the complainants were charged with staging an illegal strike and the committee was satisfied that the employees had withdrawn their labour. With regard to the assertion that the employees were not on an illegal strike but were conducting consultative meetings with their members, the witness stated that the employees were represented by the union so they were not supposed to represent themselves. He stated that despite some of the complainants being union representatives of the local branch, between 28th February and 3rd March, 2020, they were not allowed to hold the meetings. The witness stated that as a committee, they interviewed the complainants' supervisors and there was no evidence that they had given the complainants permission to hold such meetings. 3.49. He testified that after analysing the evidence and looking at the collective agreement as well as the disciplinary code, they wrote letters to invite the complainants for disciplinary hearing. The first hearing did not go as planned as they only heard two employees. That the hearing was disrupted by the national union executives as the Secretary General walked in and removed his members from the hearing. Thereafter, management and the complainants took the matter to the labour office and all the issues raised were resolved. He stated that the complainants were only heard by the disciplinary committee when they called them for the third time. After the hearing, the committee concluded that the complainants were guilty of the offences charged and recommended for their dismissal from employment. 3.50. The witness testified that despite that only two employees issued press statements, all the 36 employees were dismissed for the offence of staging an illegal strike because during the disciplinary hearing, they acknowledged that the union leaders were representing their interests. That the committee took it that whatever action the representatives took was also done on behalf of the members. 3.51. The witness referred to relief no. l(iii) of the complainants' claims and stated that the complainants were not entitled to be paid benefits because they were dismissed from employment. Further, that the complainants were not entitled to relief no. l(iv) as dismissed employees could not remain on the payroll because there was no such provision in the collective agreement. He also stated that the complainants were not entitled to accrued benefits for the period 2009 to 2014 because they were permanent and pensionable employees. J79 3.52. He explained that when an employee reported for work, they first had to clock-in and then go to their respective lockers where they kept th{i{r uniforms. After dressing up in the proper attire, they then had to go to their respective work stations. That in the present case, on 28th February, 2020, the complainants did not go to their respective work stations. That they grouped together at the stacking work section upto midday. That after lunch, there was no power at the factory and as per practice, whenever there was no power, the employees were• sent home. That all the employees including those who were striking went home on that day. That on 2nd March, 2020, the complainants assembled around the water tank station inside the factory. That on 3rd March, 2020, they again assembled on the water tank section. 3.53. In cross-examination, th~· witness stated that the disciplinary committee had investigations reports for the 36 employees before they started sitting. He admitted that according to the collective agreement, it was a requirement for the disciplinary committee to have an investigations report before sitting. That all he knew was that management had conducted investigations but he could not tell who did it. That he could also not recall who signed the investigations reports. He maintained that there were investigations reports. He stated that the JSO committee relied on the collective agreement, the disciplinary code and other documents before coming to its conclusion. He admitted that he did not mention having looked at the investigations reports in his evidence in chief. He denied that according to the collective agreement, it was the duty of the supervisor to charge employees. However, whenreferred to clauses 5.2 and 5.5 of the respondent's Disciplinary Code and Grievance Procedures, "TK3", the witness stated that the person who was responsible for charging the complainants was their supervisor. 3.54. With regard to the CCTV footages, 'VMl' and 'VMS', the witness stated that the videos were taken on all the days on 28th February, 2020, 2nd March, 2020, 3rd March, 2020 and 4th March, 2020. He stated that he was not in the meeting that was held between management and the journalist from ZANIS. He admitted that the video footages were about three minutes long and stated that they were short because they were rec,orded for court purposes but there were full length videos of whatever was happening at the factory. That he had seen the CCTV recordings before they were produced before the Court. 3.55. When referred to the video 'VMl', the witness admitted that the footage was for the day the journalist, RW3 went. J81 to the respondent's premises to cover what was happening on that day. He stated that it was on 4th March, 2020 when the respondent locked the gate. He denied that the employees had gone for work on that particular day but were denied access. He stated that he was not aware that on 4th March, 2020, the respondent sent out transport to go and pick the employees from their homes to go for work. He admitted that in the video, 'VMl', only two people gave the press statement and the rest were just sitting. That, however, in their submissions during the disciplinary hearing, they :submitted that the two were representing the rE:st of them hence they were bound by the actions of the two. He stated that he was not aware if their submissions during the disciplinary hearing were before court. 3.56. When referred to the video, 'VMS', the witness stated that he could not tell if the employees who had gathered at the water tank were less than 10 because he did not count them. That he was able to identify some employees namely, Dalitso Mutini, Brightom Kashiba, Table Banda but he could not see the others clearly. When asked why they had grouped all the employees as having gathered together without . proper ,identification of who had gathered at the water tank, the witness stated that the J82 video was not the full cl.iP as it showed only a few employees. 3. 5 7. The witness admitted that it was a standing practice that if there was no power, workers had to be sent home. That there was no power on 28th February, 2020 from 13.00 hours. That the Production Manager, Mr. Gamel gave the workers permission to go home through the Human Resource Manager. That the employees had gone to have their meals and power went as they were waiting for their lunch break t'o end. That that was when Mr. Gamel communicated to the workers through the Human Resource Manager as per practice. 3.58. He stated that there was a '>trike on 28th February, 2020 from 08.30 to 12.30 hours and there was a video footage produced before court to that effect. He admitted that the video footage, 'VMS' showed that the workers were in their uniforms. He stated that the supervisors told the. disciplinary committee that the employees did not seek their supervisors' permission to attend the meetings. He conceded that he did not produce the submissions made by the supervisors during the disciplinary hearing. He stated that he was not aware that there was a letter stating that the employees should report back for work on 4th J83 March, 2020 failure to which they were going to be charged and disciplined. 4.0. FINAL WRITTEN SUBMISSIONS 4.1. Learned Counsel for both parties filed final written submissions. I will not reproduce them but I will make reference to them where relevant. 5.0. CONSIDERATION OF THE EVIDENCE AND DECISION OF THE COURT 5.1. I have considered the parties' pleadings, the affidavit and viva voce evidence. I have also considered the final written submissions filed by learned Counsel for both parties. 5.2. The facts which are common cause are that the complainants were employed by the respondent on different dates and in various capacities on permanent and pensionable basis. They were unionised employees who belonged to the union called NESAWU with Taima Kachaka (CWl) being the Branch Chairperson at the respondent company. 5.3. In 2015, the respondent introduced Buyantanshi Pension Scheme to handle its employees'. pension benefits upon J84 retirement with effect from 1st January, 2015. Prior to l''. January, 2015, during a meeting with the employees, the respondent's management and a representative from the Buyantanshi Pension Fund, it was agreed that the respondent would transfer the pension benefits that had accrued to its employees between 2009 and 2014 to the Buyantanshi Pension scheme within two years but this was not done. 5.4. It is not in issue that the employees whose pension benefits were to be transferred to Buyantanshi Pension Scheme were those who had served the respondent for 10 years; and those who had'attained the age of 5 5 at the time the new pension scheme came into effect. 5.5. On 26th February, 2020, the respondent and the union had a collective bargaining meeting for salary increments of unionised employees which was later postponed to a date in March, 2020. On 27th February, 2020, the union representatives at the respondent's branch had a meeting with the unionised employees for the purposes of reporting the outcome of the negotiations that took place on 26th February_, 2020. ,p_uring the said meeting, the employees resolved that they_t.hould be addressed by the Managing Directo1 or the, respondent's management concerning their pension benefits for the period 2009 to J85 2014 which had not belnc,'\ransferred to Buyantanshi Pension Scheme within twg:'y'ears as agreed. 5.6. On 28th February, 2020, 36,:ttnionised employees, among them, the complainants, assembled in the factory around 08.00 hours demanding to be addressed by the respondent's management. The Production Manager met the workers on two occasions between 08.30 and 12.00 hours, after which the workers were told to knock off. On 2nd March, 2020, the unionised employees again assembled in the factory around 08.00 hours demanding to be addressed by the respondent's management as they believed that the Production Manager had not addressed their concerns on 28th Febriipry, 2020. However, they were told to leave the factory. Th~,unionised workers then went and assembled ou-tside · th~ factory from around 09.00 until it was time to knock t>ff. On 3rd March, 2020, the workers again . assembled outside the factory still demanding to the addressed by Management. 5.7. The above events were recorded_ tqrough CCTV as shown by the video footage exhibit,eQ. at page 1 of the respondent's further notice to produce documents filed into court on 14th January, 2025. 5.8. On 4th March, 2020, the unionised employees reported for . .--.:;',, work but they found that the respondent had declared a ,:~\ ', .. J86 lock out and they were not allowed to enter the respondent's premises as the gate was locked and they, therefore, assembled outside the respondent's premises. The same day, CWl and the union Branch Secretary, Matthews Chilambwe issfred' a press statement through ZANIS, as shown by the vidi:!o "VMl" in the respondent's affidavit in opposition. In'the said video, "VMl," CWl and Matthews Chilambwe were seen telling the journalist, RW3 that they were waiting to be addressed by the respondent's management, especially the Managing Director over the payment of their five years pension benefits for the period 2009 to t014 amid rumours that the respondent company was about to close down. 5.9. Later, the national executive members of NESAWU had a meeting with the respondent's management to resolve the impasse and, thereafter, it was resolved that the workers. should resume work which,f.bey later did. 5.10. On 9th April, 2020, the 36 ut,1ionised workers were handed letters of suspen~ion from work and the charge forms collectively exhibited as "TKl" in the complainants' affidavit in reply. The complainants were charged with the offences of taking part .in an unconstitutional strike, contrary to clause 15 of the respondent's Disciplinary Code and Grievance Procedures, "TK3"; and issuing statements to the media relating to the company's affairs J87 or operations without express or written permission from the company contrary to clause 5. 7 of the collective agreement, "TK2." They were asked to exculpate themselves against the charges within 14 days. 5.11. On 21st July, 2020, the complainants and the other unionised employees were, for the third time, notified to attend their disciplinary case hearing, after two previous notifications were not complied with as the union and the labour office had raised issues with the manner in which the disciplinary process was being carried out by the respondent. It was alleged that the procedure adopted by the respondent on suspending and charging the unionised employees was contrary to the provisions of the collective agreement, "TK2"; of the respondent's Disciplinary and Grievance Procedures, "TK3"; and of the Employment Code Act No. 3 of 2019. 5 .12. The employees attended their disciplinary hearing on 22nd July, 2020 with each one of them accompanied by a union representative. The complainants were found guilty on both charges and consequently dismissed from employment on 4th August, 2020 while other employees were exonerated and reinstated. The .. complainants appealed against their dismissals but their appeals were unsuccessful. J88 5 .13. First and foremqst, the complainants hav~; claimed for a declaration that t.heir employment with the respondent was unlawfully and/or wrongfully terminated. 5 .14. In the case of Redrilza Limited v Abuid Nkazi and Others1, the Supreme Court guided that there is a difference between 'dismissal' and 'termination'. That dismissal involves the loss of employment arising from disciplinary action while termination allows the employer to terminate the contract of employment without invoking disciplinary action. That, therefore, the terms 'termination' and 'dismissal' cannot and should not be used interchangeably. 5 .15. I have analysed the evideriJe in this case and I am quite satisfied that the complainants' loss of employment arose after the respondent invoked disciplinary action against them. Therefore, the complainants' contracts of employment were not terminated but they were dismissed from employment. 5.16. Further, in the case of Eston Banda and Another v the Attorney Generali, the Supreme Court has guided that: "There are only two broad categories for dismissal by an employer of an employee, it is either wrongful or unfair. 'Wrongful' refers to a dismissal in breach of a relevant term embodied in a contract of employment, which relates to the expiration of a term for which the employee is engaged; whilst 'unfair' refers to a dismissal in breach of a sf.atutory provision where an J89 employee has a statutory right not to be dismissed. A . loose reference to the term 'unlawful' to mean 'unfair' is strictly speaking, in emplQyment parlance, incorrect and is bound to cause confusion. The learned author, Judge W.S. Mwenda, clarifies on the two broad categories, in her book Employment Law in Zambia: Cases and Materials, t2Qll), revised edition UNZA Press, Zambia at page 116. She opines that, in our jurisdiction, a dismissal i~c.either wrongful or unfair, and that wrongful dismissal looks at the form of the dismissal whilst unfair dismissal is a creature of statute." 5 .17. On the above authorities, I am of the firm view that the relief that the complainants are seeking is that their dismissal from employment was wrongful and/or unfair, and I will proceed to determine their claim as such. 5.18. On the evidence in this matter, the following are the questions for determination: 5.18.1. Whether the cpp1plainants' dismissal from employn1ent wa., ~rongful. ·-,i·· ~ 5.18.2. Whether the comolainants' dismissal from . ·--·· employment was unfair. 5.18.3. Whether the complainants are entitled to the payment of damages for their loss of employment. 5.18.4. Whether the complainants are entitled the relief of reinstatement or to the payment of benefits for their whole contract periods. J90 5.18.5. Whether the complainants are entitled to the payment of pension benefits for the period 2009 to 2014. 5.18.6. Whether the complainants should be retained on the respondent's payroll until all their accrued pension benefits are paid. 5.18.7. Whether the complainants are entitled to the payment of interest on their half pay that was withheld during·· the period they were on _,; suspension from work. 6.0. WHETHER THE COMPLAINANT'S DISMISSAL FROM EMPLOYMENT WAS WRONGFUL 6.1. The scope of the concept of wrongful dismissal has been settled by a plethora of authorities. 6.2. Hon. Judge Dr. W.S. Mwenda, learned author of the book entitled 'Employment Law in Zambia: Cases and Materials' states at page 18 that: "The concept of wrongful dismissal is the product of common law. When consid@ring whether a dismissal is wrongful or .not, the form, rather than the merits of the dismissal must be examined. The question is not why, but how the dismissa.J was effected." 6.3. Further, in the case of Chilanga Cement v Venus Kasito3, the Supreme Court held that: • J91 "The concept. of wrongful dismissal is essentially procedural and is largely dependent upon the actual terms of the contract in question." 6.4. On the above authorities, for the complainants to succeed in their claim for wrongful dismissal, they have to prove, on a balance of probabilities, that the respondent breached the disciplinary procedures outiined in their conditions of service or the rules of natural justice and/or the disciplinary procedure stipulated in the Employment Code Act No. 3 of 2019. 6.5. As regards the concept of natural justice, the Court of Appeal in the case of Sarah Aliza Vekhnik v Cash Dei ·.• Bambini Montessori Zambi~ Limited4 observed that: "In English law, natural• justice is a technical terminology for the rule against bias (nemo judex in casua) and the right to a fair hearing (audi alteram partem), put simply it is the 'duty to act fairly.' The right to a fair hearing requires that individuals should not be penalized by decisions affecting their rights of legitimate expectation unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case." 6.6. In the case of Mukobe Musa· Bwalya v The Attorney General5, the Supreme Court observed that: "It is trite that natural justice and procedural fairness demand not only that those whose interests may be affected by an act or a decision should be given an opportunity to be heard, but it also requires that a decision maker should not be biased or prejudiced in a way that piecludes fair and genuine consideration J92 being given to the arguments advanced by the parties." 6. 7. The requirement for the rules of natural justice to be complied with in order for 1ismissal to be deemed fair ~ was re-affirmed in the case of Zambia China Mulungushi Textile (Joint Venture) Limited v Gabriel Mwami6 where it was held that: "Tenets of good decision making import fairness in the way decisions are arrived at. It is certainly desirable that an employee who will be affected by an adverse decision is given an opportunity to be heard." 6.8. Based on the above authorities, for the complainants to succeed in proving that the rules of natural justice were breached resulting in their dismissal being wrongful, they should show that the respondent was biased, against them and that they were not accorded a chance to a fair hearing. 6.9. In support of their claim, the complainants argued that they were wrongfully dismissed from employment because the respondent did not follow the internal procedures outlined in their contracts of employment, the collective agreement, 'TK2' and the Disciplinary Code and Grievance Procedures, 'TK3'. 6.10. According to the complainants,. the charges that were slapped on them were raised by the wrong person. That they were not charged by their immediate supervisors as J93 provided for in the Disciplinary Code and Grievance Procedures, "TK3" but they were all charged by the Human Resources and Administration Manager who was not their immediate supervisor. That the Human Resources and Administration Manager was also the complainant against them. That that violated the rules of natural justice because the said Human Resources and Administration Manager could not be a judge in his own cause. 6.11. The complainants also argned that according to the Disciplinary Code and Grievance Procedures, "TK3", it was the duty of the supervisor and a union representative to decide on whether to investigate a case or not. It was argued that in the case at hand, the union was never involved in the investigations. 6.12. Further, that under the said Disciplinary Code and Grievance Procedures, an alleged offender had the right to union representation at every stage of the disciplinary process from investigation, explanation of the charges and the formal hearing itself but that in their case, the provision was ignored. 6.13. On the other hand, the respondent argued that it had followed proper procedures prior to dismissing the complainants. J94 6.14. It was argued that the respondent had carried out investigations and concluded that the complainants' engaged in conduct which was contrary to its handbook and collective agreement. That consequently, the complainants were suspended and charged for withdrawing their labour and issuing press statements. That they were later invited to a disciplinary hearing. 6.15. The respondent also contended that owing to the peculiar nature that surrounded the offences committed, in line with the respondent's handbook and the collective agreement, the Human Resources and Administration Manager suspended and charged the complainants as he was clothed with the requisite power to do so. It was argued that it was not wrongful for the Human Resources and Administration Manager to charge the complainants because he was the one mandated to charge them as provided for in clause 3 .1 of the collective agreement, "TK2 ". Further, that the Human Resources and Administration Manager and/or his Assistant were not part of the complainants' disciplinary hearings. 6.16. It was further argued that the union was engaged at every stage of the disciplinary process and each complainant J95 had a union representative that was part of their disciplinary hearing. 6.17. That, however, in the unlikely event that it was found that the procedures were not followed, the complainants had engaged in conduct that warranted the respondent to exercise its disciplinary power to dismiss them. 6.18. I have considered the arguments from both parties. 6.19. It is not in dispute that prior to their dismissal from employment, the complainants were on 9th April, 2020 suspended from work and charged with the offences of taking part in an unconstitutional strike and issuing statements to the media relating to the company's affairs or operations without express and written permission from the company, as sho~n by the suspension letter and charge forms collectively marked as "TKl" in the I . • _. ' complainants' affidavit in reply. On the charge form, the complainants were advised to exculpate themselves by 23rd April, 2020 although there is no evidence on record showing that they had submitted exculpatory statements .. Later, a disciplinary hearing was held on 22nd July, 2020 after two failed attempts as the complainants' union had raised issues with the procedure adopted by the respondent when it suspended and charged them. During J96 their respective disciplinary hearings, each complainant was accompanied by a union representative from the national executive committee of the union. After the hearing, the complainants were found guilty as charged and consequently dismissed from employment. They were informed of their right to appeal which right· they exercised. 6.20. It is, therefore, clear that the complainants were accorded opportunities to answer to the charges that were leveled against them. However, a perusal of the suspension letter and charge form collectively marked as "TKl" in the complainants' affidavit in reply has revealed that the complainants were indeed charged by the Human Resources and Administration Manager and not their supervisors or heads of department as provided for under clause 5.2 of the Disciplinary Code and Grievance Procedures, "TK3 ". 6.21. That notwithstanding, as argued by the respondent, the complainants' case was peculiar in nature in the sense that a total of 36 employees from different departments were suspended and charged. In my view, each employee being charged by their respective immediate supervisors or head of department would have posed the risk of inconsistent application of disciplinary measures and J97 ,· ~ (- unfairness. I find that it was not wrong for the Human Resources and Administration Manager to charge the complainants because being their superior, he was clothed with the requisite power to charge them. In short, all the. complainants were formally charged and given an opportunity to answer to the allegations against them. They suffered no prejudice. 6.22. Further, it is in evidence that the Human Resources and Administration Manager was not part cif the disciplinary panel that heard the complainants' cases. Therefore, in no way can he be considered to have been a judge in his own cause. 6.23. As regards the complainants' claim that it was the duty of a supervisor and a union representative to decide on whether or not to investigate a case but the union was never involved in the investigations, yet again I say this was a peculiar case as some of the union representatives at the respondent's branch were alleged to have committed the subject offences hence it was going to be improper for them to be involved in the investigations. In any event, there is evidence on record showing that the union's national executive. committee was engaged at every stage and each complainant had a union representative that was part of their disciplinary hearing. J98 6.24. On the whole evidence in this matter, I am satisfied that, the complainants were formally charged, given a chance to exculpate themselves and they were accorded an opportunity to be heard during their disciplinary hearings. In summary, I am satisfied that the respondent complied with its disciplinary code and the rules of natural justice when dealing with the complainants' cases. It follows, therefore, that the complainants' claim that their dismissals from employment were wrongful has failed and is accordingly dismissed. 7.0. WHETHER THE COMPLAINANTS' DISMISSAL FROM EMPLOYMENT WAS UNFAIR 7.1. The learned authors, Judge Dr. W.S. Mwenda and Chanda Chungu in their book entitled: A Comprehensive Guide to Employment Law in Zambia, state at page 241 as follows: "Unfair dismissal is di!jmissal that is contrary to the statute or based on unsubstantiated ground. For unfair dismissal, the Courts will look at the reasons for the dismissal for the purpose of determining whether the dismissal was justified or not. In reaching the conclusion that the dismissal is unfair, the Court will look at the substance or merits to determine if the dismissal was reasonable and justified." 7.2. Further, in the case of The Attorney-General v PhirF, H was held that: "Once the correct procedures have been followed, the only question which can arise for the consideration of J99 the Court, based on the facts of the case, would be whether there were in fact facts established to support the disciplinary measures since it is obvious that any exercise of powers will be regarded as bad .if there is no substratum of facts to support the same. Quite clearly, if there is no evidence to sustain charges levelled in disciplinary proceedings, injustice would be visited upon the party concerned if the court could not then review the validity of the exercise of such powers simply because the disciplinary authority went through the proper motions and followed the correct procedures." 7.3. On the above authorities, it follows that unfair dismissal is one where a specific statutory provision has been breached by an employer when dismissing an employee or one where a dismissal has been based on unsubstantiated reasons. 7.4. Pursuant to section 52(5) of the Employment Code Act No. 3 of 2019, the employer bears the evidential burden of proving that the dismissal of an employee from employment was fair and for a valid reason. 7. 5. In the present case, the complainants were charged and found guilty of the offences of taking part in an unconstitutional strike and issuing press statements to the media relating to the company's affairs or operations without express and written permission from the company. The respondent alleged that the complainants' actions violated clause 15 of the respondenf s Disciplinary JlOO Code and Grievance Procedures, "TK3" which prohibited participation in unconstitutional strikes and clause 5. 7 of the collective agreement, "TK2" which prohibited issuing statements to the media about the affairs of the company without permission from the company. 7.6. I will start with the offence of taking part in an unconstitutional strike. 7.7. With regard to this offence, it was alleged by the respondent that the complainants participated in an illegal/unconstitutional strike when they withdrew their labour on 28th February, 2nd March and 3rd March, 2020. 7.8. The complainants denied having withdrawn their labour or participating in an unconstitutional strike. They stated that on 27th February, 2020 upon being informed by the branch representatives of the union that the negotiations for their salary increments which had taken place between the union and the respondent's management on 26th February, 2020 had been postponed to a date in March, the unionised employees resolved that management should address them over the issue of the transfer of their pension benefits for the period 2009 to 2014 to Buyantanshi pension scheme. They argued that before assembling on 28th February, 2020 they all had gotten permission from their respective supervisors and that the J101 .. Production Manager, Mr. Gamel agreed to address them. That after Mr. Gamel met them on two occasions between 08.30 and 11.00 hours, he asked them to leave the factory and knock off without giving them management's position concerning the grievances they had raised in the letter, "TK5" relating to the transfer of their pension benefits for 2009 to 2014 to Buyantanshi pension scheme. 7.9. That on 2nd March, 2020, after clocking in and getting permission from their respective supervisors, they again assembled waiting to be addressed by Mr. Gamel over what had transpired as he did not address their concerns on 28th February, 2020. That Mr. Gamel went to the factory between 10.00 and 12.00 hours and told them to leave the factory and wait outside. That they waited outside the factory upto 17.00 hours but neither Mr. Gamel nor anyone from management went to address them. 7.10. That when they reported for work on 3rd March, 2020, they found that the respondent had declared a lockout on the ground that they had withdrawn their labour and they were banned from entering the respondent's premises. That they were handed the letter by the security which stated that they were banned from entering the premises because they were on strike. J102 7 .11. On the other hand, the respondent argued that the complainants participated in an illegal/unconstitutional strike when they withdrew their labour on 28th February,, 2nd March and 3rd March, 2020. 7 .12. The respondent produced the video footage exhibited on page 1 of its further notice to produce documents. The same video footage showed the complainants with other unionised employees assembled in the factory and not working in their respective work stations on 28th February, 2020 around 08.00 hours. The video footage also showed the complainants again assembled in the factory on 2nd March, 2020 and later outside the factory from around 09.00 until it was time to knock off. The footage further showed the workers again assembled outside the factory on 3rd March, 2020. 7 .13. The respondent argued that during the aforementioned dates, the complainants were demanding to be addressed by the respondent'. s management directly over grievances which they had not even brought to the attention of the respondent. That that was contrary to clause 3 .1 of the collective agreement, "TK2" which provided that the complainants' union, NESAWU was the only bargaining unit on behalf of the unionised employees. That, therefore, the complainants could not demand to be J103 addressed by management directly but only through their union representatives. 7 .14. I have considered the arguments from both parties. 7.15. It is very clear from the video footage evidence that the complainants had withdrawn their labour on 28th February, 2nd March and 3rd March, 2020 as they did not perform any of their duties in their respective work stations despite having reported for work. On these days, the complainants assembled demanding to be addressed by the respondent's management concerning their pension benefits for the period 2009 to 2014 as shown by the video footage at page 1 of the respondent's further notice to produce filed into court on 14th January, 2025. Therefore, the question that begs an answer is whether the complainants' withdrawal of their labour amounted to an illegal/unconstitutional strike. 7.16. Black's Law Dictionary, 8th Edition defines a 'strike' at page 4460 in the following terms: "An organized cessation or slowdown of work by employees to compel the employer to meet the employees' demands; a concerted refusal by employees to work for their employer, or to work at their customary rate of speed, until the employer grants the concessions that they seek." J104 7 .17. The dictionary further goes on to define an illegal strike as 'a strike using unlawful procedures'. 7.18. The learned authors, Judge Dr. W.S. Mwenda and Chanda Chungu in their book entitled: A Comprehensive Guide to Employment Law in Zambia define a 'strike' at page 518 as follows: "The cessation of work or withdraw of labour contrary to the terms and conditions of a contract by a body of persons employed in any undertaking acting in combination; or a concerted refusal or a refusal under a common undertaking of any number of persons who are so employed to continue to work or provide their labour." 7.19. On the above authorities, an illegal strike can be said to occur where employees withdraw their labour without following the laid down procedures. 7.20. I have perused the respondent's Disciplinary Code and Grievance Procedures, 'TK3' and the collective agreement, 'TK2'. I find that none of the two documents have any provisions outlining the procedure to be followed before employees could resort to a strike. However, the Industrial and Labour Relations Act, Cap. 269 of the Laws of Zambia has outlined the procedure to be followed before going on a strike. 7.21. Sections 75, 76 and 78 of the Act provide as follows: JlOS "75. A collective dispute shall exist when there is a dispute between an employer or an organisation representing employers on the one hand and the employees or an organisation representing the employees on the other hand, relating to terms and conditions of, or affecting the employment of, the employees and one party to the dispute has presented in writing to the other party all its claims and demands and- (a) the other party has, within fourteen days from the date of receipt of the claims or demands, failed to answer the claims or demands; or (b) the other party has formally rejected the claims or demands and has made no counter offer; or (c) both the parties to the dispute have held at least one meeting with a view to negotiating a settlement of the dispute, but have failed to reach settlement on all or some of the matters in issue between them. 76. (1) Where a collective dispute arises and neither of either party to the dispute is engaged in an essential service, the parties to the dispute shall refer the dispute to- (a) a conciliator appointed by the parties to the dispute; or (b) a board of conciliation composed or- (i) a conciliator appointed by the employer or an organisation representing employers; (ii) a conciliator appointed by the employees or an organisation representing the employees; and (iii) a conciliator appointed by the employer or the organisation representing the employers and employees or the organisation representing employees, who shall be the Chairman. (2) Where the parties to a collective dispute not engaged in an essential service fail to agree within a period of seven days from the date when the J106 collective dispute arose on the appointment of a conciliator or of the Chairman, they shall inform the Commissioner accordingly. (3) The Commissioner on receipt of the information under subsection (2) shall request the Minister to appoint, within a period of seven days from the date of the request, a conciliator or Chairman of the board of conciliation from a list of names submitted and agreed upon by the representatives of employees and the representatives of employers. (4) The conciliator or the board of conciliation appointed under subsection (1) or subsection (3) shall, within seven days of his or its appointment, summon the parties to the collective dispute to a meeting and proceed to conciliate in the dispute. (5) Any party to a collective dispute or any agent or representative who refuses or neglects without reasonable cause or excuse (the onus of proof shall lie on such party) to attend a meeting summoned by the conciliator or board of conciliation shall be guilty of an offence. (6) Where a collective dispute arises and any of the parties to it are engaged in an essential service, the parties to the dispute shall refer the dispute to the Court. 78(1) Where a conciliator or board of conciliation fails to settle a collective dispute the parties to the collective dispute may- (a) refer it to the Court; or (b) conduct a ballot to settle the dispute by a strike or lockout. (2) Where a collective dispute is referred to the Court under subsection (1) or under subsection (6) of section seventy-six the decision of the Court shall, subject to section ninety-seven be binding upon the parties to the dispute for such period as the Court may specify in the Order. J107 (3) Where the parties, decide to proceed on strike or lockout, the parties shall not proceed on strike or lockout unless a simple majority decision of the employees present and voting is made by employees in favour of the strike or lockout. (4) The strike or lockout may, subject to section seventy-five, commence ten days following the decision to do so and may continue for an indefinite period during which the dispute remains unresolved. (5) The Minister may intervene before the commencement of the strike or lockout under subsection (4) to try and settle the dispute. (6) The Minister may, after consultation with the Tripartite Consultative Labour Council apply to the Court for a declaration that the continuance of the strike or lockout is not in the public interest. (7) The Court shall make a decision within seven days of the application for a declaration that the strike or lockout is not in the public interest. (8) Where the Court issues a declaration in favour of the application, the strike or lockout shall cease and the dispute shall be deemed to have been referred to the Court under paragraph (a) of subsection (1). (10) The Court shall have power to decide whether the workers on a legal strike should be eligible for payment of wages during the period of the strike. (I I) Where action in pursuance of a strike or a lock out takes place in accordance with the provisions of this Act- (a) the provisions of the recognition and collective agreements, if any, between the parties shall not be deemed to have been breached by reason only of such action; or (b) the contract of employment with respect to each employee involved in the strike or lock-out shall not be deemed to have been breached by reason only of such action. J108 7.22. I have found no evidence on record showing that the complainants' union had complied with the elaborate and self-explanatory provisions of sections 75, 76 and 78 of the Industrial and Labour Relations Act, Cap.269 of the Laws of Zambia. NESAWU's failure to comply with the foregoing legal provisions meant that their members' participation in the work stoppage was unlawful and, therefore, amounted to an illegal strike. 7.23. From the evidence, it is clear that the complainants did not follow the procedure enshrined in the above legal provisions. Upon their realisation of the grievance that the respondent had not effected the transfer of the pension benefits for those employees who had qualified, the complainants simply demanded to be addressed immediately by management concerning the payment or transfer of their alleged pension benefits for the period 2009 to 2014 to Buyantanshi pension scheme. As rightly argued by the respondent, it was wrong for the complainants to demand to be addressed directly by management when they belonged to a union through which they were supposed to air out their grievances. If the complainants were not happy, the proper way would have been for the union representatives to formally engage the respondent's management and request them to J109 address the employees' grievance(s). The employees should not have stopped work and demand for management to address them directly. 7.24. I find that there were sufficient facts to support the charge of taking part in unconstitutional strike during the disciplinary proceedings. It is evident that the failure by the complainants to follow the proper procedure before withdrawing their labour in a quest to compel the respondent to pay them or transfer their pension benefits to Buyantanshi Pension Scheme for the period 2009 to 2014 amounted to an illegal strike. According to clause 15 of the respondent's Disciplinary Code and Grievance Procedures, "TK3 ", the penalty for the offence of participating in an unconstitutional strike is summary dismissal. 7.25. I now turn to the offence of issuing a statement to the media relating to the company's affairs or operations without express and written permission from the company. 7.26. The complainants did not deny that a press statement was issued, but they merely argued that only the 1st complainant (CWl) and Matthews Chilambwe who were their branch union leaders issued statements to the press. That, therefore, it was JllO wrong to have charged the other complainants with the said offence when they did not issue any statements to the media. 7.27. The respondent, on the other hand, argued that the complainants' issuance of a press statement was done contrary to clause 5. 7 of the collective agreement, "TK2 ". which was in force at the time. It was argued that the complainants were under an obligation not to release statements to the media. It was also argued that the said statement dented the respondent's reputation. 7.28. It was further argued that even though only two of the complainants issued the press statements, during the disciplinary hearing, the other complainants had acknowledged that CWl and Matthews Chilambwe were representing their interests when they issued the statements to the media. 7.29. I have considered the arguments from both sides. 7.30. From the outset, I note that CWl and Matthews Chilambwe were among the complainants' union leaders at the respondent's branch who used to represent the unionised employees at the respondent company as Branch Chairperson and Branch Secretary, respectively. It is also evident from the video, "VM l" that CW 1 and Matthews J111 Chilambwe were not speaking in their individual capacities only but were also speaking on behalf of the other unionised employees as union representatives. Therefore, the claim by the test of the complainants that they did not take part in the issuance of the press statement lacks merit and as such, cannot stand. 7.31. I now turn to determine whether there were infact facts to support the charging of the complainants with the offence of issuing a statement to the media relating to the company's affairs or operations without express and written permission from the company. 7.32. As found above, the complainants, through their union representatives, CWl and Matthews Chilambwe, had issued a press statement through ZANIS, as shown by the video "VMl." 7.33. On the charge form, "TKl" exhibited to the complainants' affidavit in reply, the charge was framed as follows: "-that your participation in the illegal strike interfered with the normal operations of the company. -that during the period of your illegal strike, you collectively released statements to the MEDIA relating to the company's affairs or operations without express and written permission from the company thereby violating clause 5.7 of the collective agreement. Your action was tantamount to have supplied incorrect or falsified information." J112 7.34. Clause 5.7 of the collective agreement, 'TK2' provided as follows: "Not to make any statements to the press (Radio, Television, Print or Electronic Media) or any other media on any matter relating to the company's affairs or operations without the express and written authority from the Company." 7.35. As rightly submitted by the complainants, clause 5.7 of the collective agreement, "TK2," fell under the category 'Duties and Obligations of Employees' and it did not provide the penalty in an event that an employee was found to have breached such a duty. However, on the said charge form, "TKl", it was stated that the complainants' action of giving a press statement was tantamount to having supplied incorrect or falsified information. Supplying incorrect or falsified information was one of the offences under section 15 of respondent's Disciplinary Code and Grievance Procedures, 'TK3.' There is nci evidence on record showing that the complainants were granted express or written permission by the respondent to issue the statement to the press concerning the non payment of their benefits for the period 2009 to 2014 and the rumours of the respondent closing down. Therefore, the respondent cannot be faulted for having found the complainants guilty of the said offence. I am satisfied that there was a substratum of facts to support the charge. J113 7.36. That notwithstanding, I take note that the penalties for the said offence read that, 'final' for a first time offender and 'dismissal' for a second offender. It follows that the respondent was wrong to impose the penalty of dismissal for this offence as the complainants were not subsequent offenders. However, even if the respondent had not imposed the sanction of dismissal but that of final warning, it would have served no practical purpose. This is because, as I have already found, the respondent i properly found the complainants guilty of having './ participated in an illegal strike, which offence carried the penalty of dismissal. 7.37. On the whole evidence in this matter, I find that there were infact facts established to support the disciplinary measure that the respondent had taken against the complainants for the offence of participating in unconstitutional or illegal strike. I am satisfied that there was sufficient evidence to sustain the charge that was leveled against the complainants. Therefore, the respondent has proved that the complainants' dismissal from employment was for a fair and valid reason. Consequently, the complainants' claim that their dismissal from employment was unfair is bereft of merit and is accordingly dismissed. J114 8.0. WHETHER THE COMPLAINANTS ARE ENTITLED TO THE PAYMENT OF DAMAGES FOR THE LOSS OF EMPLOYMENT 8.1. Having found that the complainants were properly dismissed from their employment after the due disciplinary process; and that their dismissal from employment was fair and for a valid reason, it follows that the complainants' claim for damages for loss of employment cannot stand and is accordingly dismissed. 9.0. WHETHER THE COMPLAINANTS ARE ENTITLED THE RELIEF OF REINSTATEMENT OR TO THE PAYMENT OF BENEFITS FOR THEIR WHOLE CONTRACT PERIODS 9.1. Having found that the complainants' dismissal from employment was neither wrongful nor unfair, it follows that the complainants are not entitled to the relief of reinstatement and their claim is accordingly dismissed. 9.2. Further, the complainants are not also entitled to the payment of benefits that would have accrued for the remainder of their contract periods after their dismissal from employment. Infact, such a claim by the complainants is untenable at law. Whatever the case would have been, the courts have frowned upon payments for work not done as that amounts to unjust enrichment. I am J115 fortified by the decision of the Supreme Court in the case of Kitwe City Council v William Ng'uni8 where it was held , that: "You cannot award a salary or pension benefits, for that matter, for a period not worked for because such an award has not been earned and might be properly termed as unjust enrichment." 9.3. In casu, the complainants' claim for the payment of benefits for the remainder of their contract periods after being dismissed by the respondent would amount to unjust enrichment. Therefore, the claim is bereft of merit and is accordingly dismissed. 10.0. WHETHER THE COMPLAINANTS ARE ENTITLED TO THE PAYMENT OF PENSION BENEFITS FOR THE PERIOD 2009 TO 2014 10.1. It is not in dispute that the respondent entered into an agreement with Buyantanshi Pension Fund to start handling the respondent's employees' pension benefits with effect from 1st January, 2015. 10.2. As regards the complainants' claim for pension benefits for the period 2009 to 2014, there were two conditions which an employee has to satisfy before being entitled to the payment of the said pension benefits. The first condition was that one should have attained the age of 5 5; Jll6 and the second condition was that one should have worked for the respondent for a continuous period of 10 years. Put simply, for any one of the complainants to qualify for the payment of the pension benefits for the period 2009 to 2014, one either should have served the respondent for atleast 10 years or attained the age of 5 5 as at 31st December, 2014 before the new pension scheme came into force on pt January, 2015. 10.3. As earlier stated, the evidence on record has revealed that Kelvin Mulosa (CW2) had met the criteria for the payment of the pension benefit in question and he was paid accordingly. Therefore, he is not entitled to the payment of pension benefits for the period 2009 to 2014. 10.4. As for the rest of the complainants, CW2 testified that Taima Kachaka, Matthews Chilambwe, Jackson Mpiluka, Martin Banda, Clement Mwambazi, Bernard Phiri, Gabriel Mulwani, Richard Chileshe and Paul Lesa had served for more than 10 years but he was not sure about the rest of the complainants. However, only the contract for Taima Kachaka, "TK l" was produced before the court. The contracts for the rest of the aforementioned complainants were not produced before the court to enable me to ascertain if indeed they had served the respondent for atleast 10 years as at 31st December, 2014. The J117 complainants did not also produce the copies of their national registration cards to show that they had attained the age of 5 5 as at 31st December, 2014. 10.5. The perusal of Taima Kachaka's contract of employment, "TK l" has revealed that he was employed on 3rd April, 2009 meaning that he had only served the. respondent for a period of five years and nine months as at 31st December, th 2014. Further, on giving his testimony on 5 June, 2023, he informed the court that he was only 36 years old hence he had not attained the age of 5 5 as at 3 pt December, 2014. As a result, Taima Kachaka does not qualify to the payment of pension benefits which accrued between 2009 and 2014. 10.6. In Conclusion, in the absence of evidence showing that the other complainants had served the respondent for a period of 10 years or more; or that they had attained the age of 55 on 3pt December, 2014, their claim for the payment of the pension benefits for the period 2009 to 2014 is bereft of merit and is accordingly dismissed. 11.0. WHETHER THE COMPLAINANTS SHOULD BE RETAINED ON THE RESPONDENT'S PAYROLL UNTIL ALL THEIR ACCRUED PENSION BENEFITS ARE PAID .... Jll8 11. 1. Having found that the respondent does not owe the complainants any pension benefits, it follows that the complainants cannot be retained on the respondent's payroll. Therefore, this claim cannot stand and is accordingly dismissed. 12.0. WHETHER THE COMPLAINANTS ARE ENTITLED TO THE PAYMENT OF INTEREST ON THE COMPLAINANTS' HALF PAY THAT WAS WITHHELD DURING THE PERIOD THEY WERE ON SUSPENSION 12.1. There is undisputed evidence on record that the complainants were paid their half salaries that were withheld during the period they were suspended from work before they commenced this action. Therefore, there is no basis for this claim and it is accordingly dismissed. 13.0. I make no order for costs. 14.0. Leave to appeal is granted. Delivered at Ndola this 25th day of August, 2025 . ....... #.~.~············~ Davies C. Mumba HIGH COURT JUDGE