Anthony Kasandwe Kasuba v Kafue District Council and Ors (COMP/IRCLK/428/2015) (11 October 2024) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA COMP/IRCLK/428/2015 . AT THE INDUSTRIAL RELATIONS REGISTRY HOLDEN AT LUSAKA (Labour Jurisdiction) BETWEEN: /iCoURT OF z,1 /i 11 LUSAKA At~ ]~~ COMPLAINANT ANTHONY KASANDWE KAsU~ ( · ~ 1 1 OCT 2024 ~D · 4 . ~~~ ~t-'s SEAL KAFUE DISTRICT COUNCIL l'lilAL RELATIO~S ~\~ 1ST RESPONDENT MINISTRY OF LOCAL GOVERNME SING (LOCAL GOVERNMENT SERVICE COMMISSION) 2ND RESPONDENT THE ATTORNEY GENERAL 3RD RESPONDENT Before Hon. Mr. Justice E. L. Musona on the 11th day of October 2024 For the Complainant: Ms. T. H. Bowa & Ms. T. Tembo, Legal Aid Board For the Respondents: Ms. N.K. Mtethwa, In-House Counsel JUDGMENT Legislation Referred to: l. The Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. Cases Referred to: l. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) Z.R. 2. Bank of Zambia v Kasonde (1995 - 1997) Z.R. 238 (S.C.J 3. ANZ Grindleys Bank (Zambia) Limited v Chrispin Kaoma (1995) (S.C.Z. Judgment No. 12 of 1995) 4. ZCCM v. James Matale 5. Martin Nguluvu and Others v Marasa Holdings Limited (2019) SCZ Judgment No. l 08 of 2019 1.0 COMPLAINANT'S CASE 1.1 On 18th December 2015, the Complainant filed a Notice of Complaint and an Affidavit in Support of the Complaint CamScanner ~~iif\J?(' > _' . ' ; , ' .. ·., J2 . pursuant to .Section 85 (4) of the Industrial and Labour : · .. Relations Act, Chapter 269 of the Laws of Zambia. '•·• :•> • .•·:,• -1.a 2 The grounds upon which the Complaint was presented were ',, :.-'. . . that the Complainant was employed by the 1st Respondent on ; .<' · · 18th September 1991 as a Meter Reader. On 17th Dec~mber 2003 he was transferred to Chiawa as a Revenue Collector as shown by Exhibits 'AKKl-2'. ~-.. 1.3 The Complainant claimed that on 30 December 2003 he th requested the 1st Respondent to renovate the dilapidated house. The Complainant wrote an exculpatory letter in response to a warning he received for absenteeism. On 10th August 2004 he got a suspension letter and on 30th August· 2004, he received an indefinite suspension letter. The deponent averred that on 10th February 2004 he was summarily dismissed. He appealed to the appeals board on 21st March 2005. See Exhibits 'AKK3-9' . .· 1.4 It was alleged that on 15th February 2012 the Complainant appeared before the Local Government Service Commission chaired by·Charles Sambondu. He was heard again on 20th th July 2015. The meeting was chaired by Ms. Kalulu~ .On 24 CamScanner ,·•1 J3 November 2015 he received a letter to the effect that his dismissal was upheld. 1.5 He averred that he was unlawfully and unfairly .dismissed in that the 1st Respondent did not follow the laid down procedure in the disciplinary and grievance handling code. Aggrieved by the 1st Respondent's actions, the Complainant commenced the suit herein seeking the following reliefs: i. A Declaration that the Summary Dismissal was unlawful and unfair; ii. A Declaration that the transfer to Chiawa without providing habitable accommodation and other logistics amounted to constructive dismissal; iii. An order for damages for unlawful and unfair dismissal; zv. Reinstatement; v. Payment of settling-in allowance; vi. Payment of salary arrears; vii. Interest; viii. Costs; and ix. Any other benefits the court may order. 2.0 1st RESPONDENT'S CASE 2.1 The 1st Respondent filed an Answer to the Complaint and an Affidavit in support on 1st December 2016 in which it was deposed that on 17th December 2003, the Complainant was transferred to Chiawa as a revenue collector but refused to do so. The 1st Respondent stated that the Complainant abstained from his official duties for fourteen days. Thus, on 31st May 2004 it issued the Complainant a warning letter. ' . CamScanner J4 2.2 Further, the 1st Respondent admitted that it wrote to the Complainant on 6th August 2004 concerning his persistent absenteeism from work and gave him two days within which to exculpate himself. 2.3 The 1st Respondent stated that the Complainant exculpated himself in a letter dated 9th August 2004 in which he indicated that he could not leave his family because he wanted to be paid a salary advance. However, the Respondent was dissatisfied with this reason and this caused the Complainant to perform his duties in an unsatisfactory manner. 2.4 The 1st Respondent averred that the Complainant was heard in line with the conditions of service and suspended from employment. Further, the 1st Respondent stated that the Complainant was given an opportunity to appeal. Thus, it does not owe the Complainant any money. 3.0 THE HEARING 3.1 The matter came up for hearing on 30th July 2024. The . Complainant, 1n examination-in-chief, reiterated the contents of his complaint and .supporting affidavit. He testified that he was entitled to fringe benefits such as CamScanner :·:?f~:It "f < •··.·.• ·._·• JS . • i~l~• ~• '• ' ' / ·/ :< '\ :. •','; . housing allowance, rural hardship allowance, education .. , :: ,· allowance and cost of living allowance, despite his dismissal. 3.2 .As. regards education allowance, the Complainant testified that he was entitled to receive it for the sake of his children and dependants. · 3.3 The Complainant testified that he was entitled to reinstatement because the Respondent violated the law 1st when it transferred him to Chiawa. He stated that the house he was expected to occupy was previously used by Chief Chiawa to keep goats, chickens and ducks. Thus, he returned to Kafue on 30th December 2003 and wrote to the Council explaining his findings. However, the Complainant testified that the 1st Respondent did not respond to his letter of 30th December 2003. 3.4 He claimed that he received a letter requ1nng him to exculpate himself. He stated that he was unfairly dismissed and claimed reinstatement, salary arrears from the date of dismissal to the date of judgment. 3.5 In ·cross-examination, the Complainant testified that he joined the 1st Respondent in 1991 and is entitled to fringe benefits by virtue of his employment. These benefits include CamScanner - - ___-,-:: -:-,•-?'.:.':.-; ,,. '·: of; _.~ and cost i housing, electricity, transport, rural hardship ' . '.1.1, · v~ : r ..... . "f. .. ~ _l iving allowances. He stated that thes~ allowances were part ,.-( :. . ~.,. _ . . ·.>; of his conditions of service. 3.6 He' testified that he was entitled to rural hardship allo,vance because Kafue is rural, a town council. : 3. 7 There was no re-examination -and this marked the close of the Complainant's case. 3.8 The 1st Respondent opened its case with Mbowela Arthur as RWl, who testified that the Complainant was employed by the 1st Respondent in 1991 as meter reader. He was promoted to revenue collector and later transferred to Chiawa checkpoint as a revenue collector. He testified that the Complainant was not the first employee to be transferred to Chiawa. 3.9 Further, RWl informed the court that the Complainant was n not entitled to a security guard, or rural hardship allowance. He stated that rural hardship allowance was given to . employees who had no access to a post office, bank or filling station. These were available in Kafue. 3.10 RWl testified that the Complainant as a revenue collector ·_/ :~/:.;:: was entitled overtime allowance if he works over time,_::::(-t ~- ~.-·~/t·: ~-~ ' . -.·_;.-... \:i;i IJ- •• ~~. ~;:'.i,~.\ • • I .. CamScanner J7 housing, transport and education allowances, which were paid to the Complainant till the date of his dismissal. He testified that the Complainant was not entitled to these allowances after dismissal. 3.11 RWl testified. that the Complainant was given a verbal waining then a warning letter and asked to exculpate himself. He appeared before a hearing committee and dismissed after. The ground for the dismissal was desertion of work for more than 14 days. 3.12 In cross-examination, RWl stated that the Complainant could not be reinstated because he was suspended, because he was absent from his duty station in Chiawa. There was no re-examination. 3.13 RW2 testified that housing allowance and education allowance are only payable to an employee. The witness informed the court that the Complainant wrote a letter to the 1st Respondent stating that he was absent from his stating as he was preparing accommodation and transport. RW2 stated that it was the 1st Respondent practice to provide transport for an employee to Chiawa checkpoint but not within Chiawa. CamScanner . •-.,•.-_-.' . . . . . ;-~, . -·-., ,- JS ~·- . . / .. . . . . · J>14 RW2 admitted that the Complainant was a revenue collector ~.---:~:1 . ,.- ,~- : '. . . ·'~.! '1·. · who was.entitled to be paid housing allowance~.H e stated that the 1st Respondent did not provide accommodation. This can be seen from the fact that the other employee in Chiawa who is paid housing allowance, found his own accommodation. He denied the allegation that Kafue Town Council was categorised as a rural district. Therefore, the Complainant was not entitled to be paid rural hardship allowance. 3.15 Further, the Complainant is not entitled to salary arrears because he was paid all his salaries before he was dismissed. 3.16 In cross-examination, he stated that the Complainant was . .. ..., , .. ·. .. paid education allowance since it was payroll based. He was ,; not re-examined. This marked the close of the Respondent's case. 4.0 ISSUES FOR DETERMINATION 4.1 I have considered all the evidence and arguments on record. I garner that the issue for determination is whether the Complainant is entitled to the reliefs he claims. 4.2 In the current case, the behaviour complained of is that the Complainant · was transferred to Chiawa by the 1st Respondent and expected to Hve in a house that . was ·. . ,··'•' ;~ :_ ·, .. CamScanner J9 inhabitable. The 1 Respondent claims that the Complainant st ,vas not the only employee that was transferred to Chiawa. It also stated that it did not bear the responsibility of providing , . ,. housing for the Complainant. It stated that the Complainant had the option of finding alternative accommodation. 4.3 Exhibit 'AKK3' is a letter from the Complainant to the Respondent regarding the transfer. In the letter referenced as Transfer to Chiawa, the Complainant stated the following; "I am hereby writing to you as the Manager of Finance Department where I do belong. The subject matter is about my transfer to Chiawa where I went to see, in the presence ofmy wife, Mr. Mpengula as Deputy Treasurer and the Driver Mr. Mangimela on the day of Monday 22nd December 2003 and I saw the place. I have come to like the place and very much willing to go there at any time any hour any month and any year. There is only a few things that the council must take into consideration before my departure. These are: - i. Repairing of accommodation as it's in a dilapidated situation, e.g. painting and replacing of window panes plus repairing of the outside toilet. ii. Transport to the lodges must be provided like a Honda or a bicycle as the lodges are too far apart and a council police to accompany me from one lodge to another. Also, a person who is very conversant with that place like the current revenue collector Mr. Musowoya to be going with him to lodges, within specific period of time. iii. As per local people of that place, the road becomes impassable during the rainy season, therefore, foodstuffs must be secured by myself through you by funding me with a settling-in allowance or subsistence allowance." 4.4 In the case of Wilson Masauso Zulu v Avondale Housing Project Limited1 the Supreme Court reiterated the principle CamScanner that "he -who alleges must prove In.this cciae, -it. wao RttitecJ 11, that where a plaintiff, makes any F.t.llegation, it ia genenilly for him to prove those allegations and the evidence udduced must establish the issues raised to a fairly high degree of convincing clarity. 4.5 The Complainant herein was obliged to adduce evidence showing that his contract of employment entitled him to fringe benefits and what they constituted. In considering the Complainant's evidence and arguments, I find that he has not shown the Court which provisions of his employment agreement granted him fringe benefits or a description of what these benefits constituted. 4.6 Reinstatement 4.7 The Complainant seeks an order for reinstatement. I am guided by the case of Bank of Zambia v Kasonde2 where the Supreme held as follows; "It is trite law that the remedy of reinstatement is granted sparingly, with great care and jealously and with extreme caution." 4.8 Moreover, in ANZ Grindleys Bank (Zambia) Limited v .- . Chrispin Kaoma3 the Court opined as follows; · ' "We are of course· mindful, as we have said so often, of the admonition _that orders for reinstatement in such cases are only made in exceptional cases, and, even then are very CamScanner Jll rarely made. In the present case the evidence having indicate that the respondent ... , there is nothing to suggest that this is one of those rare cases where reinstatement should be ordered." .4.9 In the case ofZCCM v. James Matale4 we stated among other things that: " ... the Industrial Relations Court has a general jurisdiction - as we will demonstrate - and should be able to award compensation or damages, which are the universal remedy, and any other suitable awards. Of course, they will not be able to routinely award reinstatement if the case is not caught by the "discrimination" provisions under which, in any case, reinstatement is not to be automatic either." 4.10 Further, in Martin Nguluvu and Others v Marasa Holdings Limited5, the Court explained as follows; "Because of the far-reaching consequences reinstatement has on the relations of the parties, as well as the financial implications it carries, it is a remedy that is rarely and exceptionally granted. .. reinstatement will not be viable were there has been such loss of trust and confidence that it would not be feasible to re-establish the pre-existing harmonious employer/employee relationship ... while culpable conduct of the employer is far more likely to lead to a poisoned or inhospitable work environment than conduct which may fairly be characterised as non-culpable, the consequences of the conduct and not its characterisation should, in our view, be the primary focus of any remedial inquiry by a court faced with a plea for reinstatement." 4.11 I adopt the guidance above and reite~ate that this case is not one of those rare cases where reinstatement should be ordered because the Complainant was dismissed in 2005, about 19 years ago. I am of the considered view that it would t,-:- . not be feasible to re-establish the pre-existing harmonious • ; • ~ f CamScanner -~ :-t ~~r J12 employer/ employee relationship if the Complainant' is to be ...... .. /,; . . - reinstated . '· ;,(: · · 4. 12 Salary arrears and settling-allowance ,,,.,,.,. t<' f. •, 4.13 As regards this claim, the Complainant seeks to be granted /;' ~-. ,' ·. salary arears from the date of his dismissal to the date of judgment. He has not provided justifiable reasons for this claim. Based on the circumstances of this case, I find that the Complainant made several claims for ,vhich he did not provide evidence. Accordingly, I dismiss the Complainant's case for failure to discharge the burden proof required to support his case. 4.14 Leave to appeal is granted. CamScanner