Simon Kamiji Sakuwaha v Madison Finance Company Limited (COIVlP/IRCLK/ 469 /2021.) (12 August 2022) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA COIVlP / IRCLK/ 469 /2021. INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: SIMON KAMIJI SAKUWAHA · .COMPLAINANT AND MADISON FINANCE COMPANY LIMITED RESPONDENT CORAM: Hon. Lady Justice Dr. Winnie Sithole Mwenda in Chambers at Lusaka this .12111 day ofA ugust, 2022. For the Complainant: Mr. M.J Chitupila of Gill & Seph Advocates For the Respondent: Ms. G. Samuifrom Zambia Federation ofE mployers RULING Cases referred to: 1. Zambia Consolidated Copper Mines Limited v. Elvis Katyamba and Others (2006) Z.R. 1. 2. Tembo v. Firsl Quantum Minerals Limited-Mining Division, SCZ Appeal No. 121 2015. 3. Concrete Pipes and Products Limited v. Kabimba and Simukoko, SCZ Appeal No. 11 of 20 IS. 4. Lack.son Mukurna and Others v. Barclays Bank Plc., SCZ Appeal No.2 of 2013. 5. Nitrogen Chemicals of Zambia v. Boyd Chomba Mutambo and Others, SCZ :(t Appeal No. 75 of 2011. 6. Robbie Temho u. National Milling Corporation and 2 Others, SCZ Appeal No. 105 of 2007. 7. Roston Mubili Mwansu v. NFC Africa Mining Plc., SCZ Appeal No. 12 of 2008. 8. Arniran Limited v. Rohcrl nones, CAZ Appeal No. 103 of 2019. 9. Bridget Mutwale v. Professional Services Limited (1984) Z.R. 72. 10. Patel v. Attorney General and Another, 2020/ HP/ 1336. 11. Shepherd Muzhike v. Chambishi Smelter Limited, CAZ Appeal No. 75 of 2019. Legislation cited: 1. Section 85 (3) of the Indust,ial and Labour Relations Act Chapter 269 of the Laws of Zambia. ' F' age I R2 2. Rule 44 of the Industrial Relations Court Rules, Chapter 269 of the Laws of Zambia. Publications referred to: 1. B,yan A. Gamer, Black's Law Dictionary, 8th Edition (West Publishing Company, 2004). 2. Mwenda, W.S. and Chungu, C., A Comprehensive Guide to Employment Law in Zambia (University of Zambia Press, 2021). 1. Introduction/Context 1.1 The Complainant herein filed a Notice of Complaint in the Industrial Relations Division of the High Court of Zambia on September, 2021 against the Respondent on the ground 7th that he was constructively dismissed from the Respondent's employ on 24th June, 2021 when the Respondent, acting though its Managing Director, permanently and without the Complainant's consent and without having consulted him, altered his job position and role. That, the alteration to the Complainant's job position and role was a material adverse change that resulted in a demotion from his initial position of Deputy Head Consumer, Business Development Corporate to a lower back room administrative position of Operations Manager. The Complainant alleged that the Respondent's actions were not only unlawful but also premeditated, in bad faith and undertaken in a manner that was meant to and did in fact, cause embarrassment, mental anguish, distress and trauma and seriously damaged the relationship of trust and confidence between the Respondent and Complainant. 1.2 In view of the aforesaid, the Complainant sought an order from this Court for damages or compensation for loss of employment (as a result of constructive dismissal}; damages P age I R3 for embarrassment, mental anguish, distress and trauma; interest on all sums found due and costs of the suit. 1.3 The Respondent filed an Answer on 4th October, 2021. However, before the matter could proceed to trial the Respondent herein filed a Summons to Dismiss Complainant for want of Jurisdiction pursuant to Section 85 (3) (a} of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia on 10th May, 2022. The Summons was supported by an Affidavit (hereinafter called "the Affidavit in Support"}, of even date. 1.4 The Affidavit in Support was sworn by one Idreen Malambo, the Managing Director/ Chief Executive Officer of the Respondent. 2. Evidence Affidavit evidence in support of application l. l Idrecn Malambo (hereinafter called "the deponent"}, deposed that the Complainant as Deputy Head Consumer-Business Development Corporate, reported to the Head of the Consumer Department, Mrs. Salima Nyangu, who then reported to the deponent as Managing Director/ Chief Executive Officer of the Respondent. 1.2 The deponent averred that the Complainant's conditions of service included the Lawrence Sikutwa and Associates Limited Group of Companies ("LSA Group") General Conditions of Service. 1.3 The deponent averred further, that as indicated throughout the exhibit marked "CMKl", in the Respondent's Affidavit in Support of Answer filed in Court on October 4, 2021, the p ;1 g p I R4 LSA Group Grievance and Disciplinary Procedures Code was an intrinsic part of the LSA Group General Conditions of Service. A copy of the Grievance Procedure was produced in evidence as exhibit "IMl". 1.4 Further, that the LSA Group Grievance Procedure was broken down into three stages, namely, taking up the matter with the immediate supervisor; the second and third stages provided an employee still aggrieved by successive decisions to continue to escalate the matter higher up the Respondent's corporate hierarchy until they reached the Board of Directors. The escalation was termed "appeal" under the Grievance Procedure. 1.5 The deponent deposed that it was only at Stage 3 where the aggrieved employee had "appealed" to the Chief Executive Officer or Board, as the case may have been, that an employee could circumvent the Grievance Procedure by commencing legal action against the Respondent in court. 1.6 The deponent further deposed that the alleged decision that the Complainant was aggrieved with was one that the deponent as Managing Director had communicated to him only the day before, on June 24, 2021 as reflected at pages 10 to 13 of the Complainant's Bundle of Documents filed into court on February 22, 2022. 1.7 The deponent avowed that he had been advised by the Head of the Consumer Department, Mrs. Salima Nyangu, that between the time the deponent sent the email on June 24 ' 2021 and when the Complainant commenced this court action on September 7, 2021, the Complainant did not raise I Page RS any grievance with her as required by Stage 1 of the LSA Group Grievance Procedure. 1.8 Further, that similarly, between the time that the deponent sent the email on June 24, 2021 and when the Complainant commenced this court action on September 7, 2021, the Complainant did not "appeal" to the deponent as Chief Executive Officer against any decision from his immediate supervisor, as required by Stage 2 of the LSA Group Grievance Procedure. 1. 9 The deponent asserted that the Complainant also failed to ((i follow Stage 3 of the LSA Group Grievance Procedure, at which stage he would have exhausted the administrative procedures available to him under his conditions of service even if he had then commenced this Complaint. 1.10 The deponent averred that he had been advised by the Respondent's representative that the jurisdiction of this Court only arises once a prospective complainant has exhausted the administrative channels available to the complainant, if such channels are available. 1.11 Further, that the exhibit marked "!Ml" and the Complainant's ackno~ledgment of it at paragraph 4 of the Complainant's Affidavit in Reply show that the Complainant did have administrative channels through which he should have addressed his gnevances that underpin this Complaint, prior to his com1nencement of it. That, the Complainant did not exhaust the administrative channels available to him under his conditions of service. 1.12 Lastly, that he had been adyised by the Respondent's representative that it 1s 1n the interest of protecting the e I P il e R6 integrity of this Court as set out by its enabling statute, to dismiss this matter with costs for want of jurisdiction. Affidavit evidence in opposition to the application 1.13 The Complainant filed an Affidavit in Opposition to the Affidavit in Support of Summons to Dismiss Complaint for want of Jurisdiction (hereinafter called "the Affidavit is Opposition") on 13th May, 2022. 1.14 It was the Complainant's evidence that he had been advised by his advocates that due to the nature of an action of constructive dismissal, an employee who claims to have ((, been constructively dismissed does not have to exhaust an employer's grievance and disciplinary procedures. That, this action being one of constructive dismissal, he did not have to exhaust the Respondent's grievance procedure at the time of his constructive dismissal. 1.15 The Complainant, further, deposed that he had been advised by his advocates that it is not mandatory that an employee has to exhaust an employer's grievance and disciplinary procedures before an action can be commenced before the Industrial Relations Division of the High Court. 1.16 That, consequently, he did not have to exhaust the Respondent's grievance procedure; specifically, he did not have to comply with the stages referred to in the LSA Group of Companies Grievance and Procedure Code. 1.17 The Complainant concluded by stating that he believes that this Court has the jurisdiction to hear and determine this matter. P a g c I R7 2. Legal Arguments Respondent's Arguments in support of application 2.1 It was submitted in support of the application that the application was made pursuant to section 85 (3) (a) of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia (the "ILRA") which reads as follows: "85. (3) The Court shall not consider a complaint or an application unless the complainant or applicant presents the complaint or application io the Court - (a) within ninety days of exhausting the administrative channels available to the complainant or applicant; or (b) where there are no administrative channels available to the complainant or applicant, within ninety days of the occurrence of the event which gave rise to the complaint or application: Provided that - (i) Upon application by the complainant or applicant, the Court may extend the period in which the complaint or application may be presented before it; and (ii) The Court shall dispose of the matter within a period of one year from the day on which the complaint or application is presented to it." 2.2 According to the Respondent, the operative words are "The Court shall not consider a complaint... unless ...w hich show that the provision is mandatory and conclusive of the prerequisites for the Court to have jurisdiction to entertain individual complaints. That, this has been consistently upheld by the superior courts in line with the seminal judgment of the Supreme Court of Zambia in Zambia Consolidated Copper Mines Limited v. Elvis Katyamba and Others 1 . 2.3 It was submitted that in 2018, the Supreme Court of Zambia explained the effects of the Amendment Act No. 8 of 2008 in Tembo v. First Quantum Minerals Limited Mining Division2 That the Court highlighted how section . P a g c I R8 85 (3) was no longer exclusively tied to the pursuit of administrative channels. That, it was expanded into two scenarios, namely, exhaustion of administrative channels available and circumstances when there were no administrative channels available. It was contended that aside from that expansion, the general principle of the provision remained the same; that is, that subsection (3) of section 85 remained mandatory in nature and determinative of the jurisdiction of the Industrial Relations Division of the High Court. 2.4 It was argued that the plain and literal interpretation of section 85 (3) shows that there is no third option where the complainant has the discretion to choose whether to utilise administrative channels when they are available. That, section 85 (3) is an "either, or" provision, with no in between. Where administrative channels of redress are available, the complainant "shall" exhaust them before seeking the adjudication of the Court. Where they are not, he may proceed to court directly, subject only to the limitation period. 2.5 Submitting further, it was stated that the rationale for the above requirement is sin1ple and that is, employment laws being a personal relationship, disputes are best resolved amicably rather than acrimoniously. That, in the Elvis Katyamba case, the Supreme Court recognised that administrative channels are a means of facilitating settlement outside court. That, the fundamental importance of ex curia settlement in labour relations permeate the labour laws and that is why it is mandatory p .i g e I R9 for employers to have a grievance procedure under section 95 of the Employment Code Act. Further, that it is also undoubtedly the reason why the courts of this country have the standard practice of referring cases to court-annexed mediation almost as soon as they are filed. Where attempts at ex curia settlement have failed, the Supreme Court recognised in the case of Concrete Pipes and Products Limited v. Kabimba and Simukoko3 that administrative , procedure still has value in that it helps to clear the decks and give the court additional material to chew on in determining the efficacy of the complaint. 2.6 With regard to what the administrative channels referred to in section 85 (3) of the ILRA are, it was submitted that the Supreme Court in the Elvis Katyamba case admitted that they are not defined by law. That in Lackson Mukuma and Others v. Barclays Bank Plc4, the Supreme Court stated as follows at pages J 13 to J 14 of the Judgment that: "What section 85 (3) (a) does, in our considered view, is to place the onus on a complainant to show that they were pursuing administrative procedures 90 days prior to the filing of the complaint. Parliament cannot be expected to (t legislate on when administrative procedures in the various work places should commence as such procedures are I2.!!]Yic{Cl_d_ for__in _ the qrievcmce __ {lnd ciisciplinan1 procedure -~C!..[d[-1_'.i_.!Jl the various inst.J:1utions or contracts o( emploi1ment and differ from institution to instil'ution." (Emphasis supplied by the Respondent) 2.7 It was submitted that the apparent substance of the Complaint, being about an alleged breach of the Complainant's conditions of service, should be compared with the Complainant's conditions of service in order to determine whether there were "administrative channels" for p d g I? I RlO redress 1n terms of section 85 (3) of the ILRA. That, the starting point is to find a term that captures the gist of the complaint and "grievance" seems to be the most appropriate term. Black's Law Dictionary, 8th edition defines grievance as "a complaint that is filed by an employee ... and that usually concerns working conditions." A grievance procedure is defined as "a process, consisting of several steps, for the resolution of an employee's complaint." 2.8 That, the Respondent has averred, and the Complainant admitted, that complaints about working conditions were addressed under the LSA Group Grievance Procedure which has been exhibited as "IMl" in the Respondent's Affidavit in Support of this application. That, thus, it is beyond question that there were administrative channels available to the Complainant which were contained in the LSA Group Grievance Procedure. Therefore, the Complainant was required to comply with section 85 (3) of the ILRA by showing how he had exhausted the grievance procedure prior to filing his Notice of Complaint. 2.9 It was submitted that the deponent of the Affidavit in Support of this application averred that the Complainant made no attempt whatsoever to follow the LSA Grievance Procedure and this was borne out by the evidence adduced by the Complainant himself in his Bundle of Documents which shows that the Complainant resigned on June 25, 2021, which was the day following his receipt of the email he has centred his case on. 2.10 Further, that the Complainant, in his Affidavit in Opposition to this application freely admitted that he had made no P a g e I Rll attempt whatsoever to exhaust the administrative channels available to him. That, in his view, his Complaint had no connection to the LSA Group Grievance Procedure - a stance the Respondent considered to be contrary to the plain and literal interpretation of section 85 (3) of the ILRA. That, it is therefore, by the Complainant's own conduct that this Court does not have jurisdiction to entertain his Complaint. 2.11 In conclusion, it was submitted that it is clear from the facts of this case that the substance of the Complaint before court is breach of employment terms and that there was an administrative procedure under the Complainant's conditions of service to address the grievance that gave rise to the Complaint and that the Complainant did not exhaust the administrative procedure before filing his Complaint. That, since the Complainant was aware of the administrative procedure but did not resort to it, apparently due to disdain for the same, that amounted to unreasonable conduct under Rule 44 ( 1) of the Industrial Relations Rules and supported the Respondent's prayer for costs it has incurred under the misconceived Complaint. Thus, the Respondent prayed that the matter be dismissed for want of jurisdiction with costs. Complainant's Arguments in opposition to application 2.12 In opposing the application before court, it was submitted on behalf of the Complainant that this Court is bound by the decision of the Supre1ne Court in the case of Concrete Pipes and Products Limited v. Kingsley Kabimba and Christopher Simukoko3 which, according to the , P ,1 g e I R12 Complainant, was on all fours with the case before this Court on the basis that: (a) Both cases were premised on a claim for constructive dismissal; and (b) In both cases, the Respondent challenged the jurisdiction of the High Court to hear and determine the notice of complaint on the basis that the complainants did not exhaust the administrative channels/ disciplinary procedure. 2.13 It was submitted that the Respondent's application (preliminary issue) is premature and unsustainable. As authority for that submission, the Complainant referred to Concrete Pipes and Products Limited judgment (supra), where the Respondent raised a preliminary issue in the Industrial Relations Court of whether complainants who had not exhausted the internal administrative procedures were properly before the Court. The preliminary issue was anchored on section 85 (3) of the ILRA. That, in defence the complainants argued that they had already been constructively dismissed and therefore, there was no point (t in waiting for the internal administrative process to be exhau sted. 2.14 That, in disposing the preliminary issue, the High Court held that the question raised in the preliminary issue was part of the broader questions to be addressed in the main action and therefore, those issues could be raised in the main complaint. Specifically, it was held as follows: "Our view of the parties' positions is that the issues cont~nded in the preliminary matter are very much part of the zssues to be established and resolved at the hearing of r ;i g e I RB the cause. Jn the event that it is established on the evidence that the complainants' contracts of employment had been tenninated constructively in the manner contended by Mr. Muzenga, it will be clear that the disciplinary process would have been unnecessmy. On the contrary, if the respondent establishes its defence that the complainants were still in employment and subject to disciplinary process, the complainants' claim. will not be forthcoming. With the foregoing in mind, it is our view that Mr. Mwewa's preliminary issue is premature and not sustainable and the same is dismissed.'' (Emphasis supplied by the Com plaina nt) 2.15 That, the Supreme Court while approving the decision of the lower court observed that the lower court had not declined to hear the preliminary issue but decided that the preliminary issue was so integrally linked with the main question for determination in the complaint that it could be properly raised in the main cause. 2.16 That, the preliminary issue referred to above was the application challenging the High Court's jurisdiction to hear the notice of complaint on the basis that the administrative channels had not been exhausted. That, applying the above lo this case, the Respondent has raised a preliminary issue as to whether this Court has jurisdiction to hear and determine the Complaint in view of the fact that the Complainant did not exhaust the administrative channels available to him. The Complainant invited this Court to follow the reasoning in the Concrete Pipes and Products judgment and reject the preliminary issue which s prematurely before court and therefore, unsustainable. That, in this present case too, the issues raised are so integrally linked with the main question for determination in P ;:-, g e I R14 the Complainants Notice of Complaint that it should be raised in the main cause. 2.17 It was further submitted that, the Supreme Court went on to uphold the decision of the High Court and explained that a complainant who does not exhaust the administrative channels does not lose his/her cause of action; that refusal to subject oneself to internal disciplinary procedures goes to the credibility of the complaint in court rather than to the cause of action itself. 2.18 It was argued that the effect of the Supreme Court's holding in the Concrete Pipes and Products Limited judgment with respect to a complainant who has an action premised on a claim for constructive dismissal and has not exhausted the administrative channels, is that the complainant's cause of action is not lost but rather is maintained and secondly, that the decision not to exhaust the administrative channels only speaks to either strengthening or weakening the complainant's case against the employer. 2.19 That, on the strength of the principle of stare decisis, the Complainant's Notice of Complaint and the cause of action (I revealed in the case before this Court, have been maintained and this is notwithstanding that he did not exhaust the administrative channels. 2.20 It was submitted, further, that the Complainant's decision not to exhaust the administrative channels speaks to the strengthening of his complaint against the Respondent because the Complainant acted 1n line with the requirements for a claim for constructive dismissal namely , , P ;) g e I RlS that an employee must act promptly and 1n response to a breach from his employer. 2.21 That, in Nitrogen Chemicals of Zambia v. Boyd Chomba Mutambo and Others5 the Supreme Court, when speaking , on the basic requirements for a constructive dismissal claim held, inter alia, that the employee must act promptly and in response to the breach, so that he or she is not taken to have implicitly agreed with the contract. 2.22 It was argued that further authority is drawn from the authors of A Comprehensive Guide to Employment Law in Zambia, at page 272 and 274, who state that: "It is important to note that employees will lose their right to b,inq claims (or constmctive dismissal if there is a delay in resignation in the face of the employer's intolerable conduct and fundamental breach of contract. What is patent from the authorities on constructive dismissal is that an emploi1ee leaves employment promptly or by notic_g_, as a result of the conduct of the employer." (Emphasis supplied by the Complainant) 2.23 That, in this case the Complainant resigned promptly and in response to the unlawful actions of the Respondent. He acted in line and according to the basic requirements set out in the authorities above. That, in such an instance, the Complainant did not have the time to exhaust the administrative channels and was not, therefore, required to exhaust the Respondent's administrative channels. That, this goes to show the strength of the Complainant's case against the Respondent. 2.24 It was also submitted that the Respondent's reference to what administrative channels are, the LSA Group Grievance Procedure and whether the Complainant exhausted the I Page R16 administrative channels, 1s irrelevant as it has been overtaken and addressed by the Concrete Pipes and Products Limited judgment. That, the Complainant reiterates that a cause of action/ claim for constructive dismissal does not require the exhaustion of administrative channels. 2.25 Further, that this Court being a court of substantive justice, 1s bound to hear and determine the Complainant's complaint based on its substance and on its merits. That, this is in accordance with the Supreme Court's decision in the case of Robbie Tembo v. National Milling Corporation and 2 Others6 where the Supreme Court emphasised that , employment matters should be decided on their substance and merit. That, in order for this Court to hear and determine the Complainant's complaint based on its substance and merits, it is the Complainant's submission that the Respondent's application will have to be rejected. 2.26 It was argued that the above submission holds true when further reference is made to the case of Roston Mubili Mwansa v. NFC Africa Mining Plc7 where the Supreme , Court pronounced as follows on section 85 (5) of the ILRA: "The stat-utory provision that the !RC is not bound by the rules of evidence mewis I.hat the Court exercises flexibility and not rigLc/.ily_ in_J,J1£! __ f!:.QJ]ddication process. For example, the rule of evidence that only original documentary evidence may be_ allowed in evicle,_ice is not adhered to with rigidity as duplicates or photocopies are allowed. Again, the phrase that the Court shall do substantial justice between the parties before it does not mean that the Industrial Relations Court should lose its impartiality and talce sides when determining a complaint or application. It simplu means that ~he C?u,1, must determine the complaint fairly and zmpartzally by talcing into account all the evidence adduced Page I R17 by both parties. the law and surrounding circumstances of each case." (Emphasis supplied by the Complainant) 2.27 It was submitted that this Court must determine the Complainant's Notice of Complaint fairly and impartially by considering, inter alia, the law and the surrounding circumstances of the case. That, this law has been set by the Concrete Pipes and Products Limited judgment. Further, that if this Court follows the law as espoused in the Concrete Pipes case, as read together with the c, circumstances of this case, it bound to reject the IS Respondent's application as being premature and unsustainable. 2.28 With regard to the issue of award of costs, it was submitted that Ruic 44 of the Industrial Relations Rules sets out the criteria for a party to be entitled to an award of costs as follows: "Where il appears to lhe Court that any person has been guilty of unreasonable delay, or taking improper, vexatious or unnecessary steps in any proceedings, or of other unreasonable conduct, the Court may make an order for cos ls or expenses against him." 2.29 That, in Amiran Limited v. Robert Bones8, the Supreme Court provided guidance on Rule 44 of the Industrial Relations Court Rules as follows: "Thal in mutters IJe}c>re the industrial Relations Court, costs can onltt he awarded against a part it if such party is guilty ~nreasonublc delay or taking improper, vexatious or unreasonable steps in q_lJJL_JJroceedinq, or of other unreasonable conduct." (Emphasis supplied by the Complainant) 2.30 It was contended that the Respondent's application falls within the category of unreasonable delay and improper, vexatious and unreasonable steps. That, the Complainant's Page I R18 submission IS based on the fact that the Respondent's application IS one that has been attempted before and rejected at both the High Court and Supreme Court level. That, there was, therefore, sufficient precedent available to guide the Respondent and as such, this application has only resulted in the unjustified and unreasonable delay of the proceedings. 2.31 Further, that the Respondent's application, in light of the established and readily available judicial precedent, was an improper, vexatious and certainly unreasonable step. That, (I the Respondent must be sanctioned by way of an award of costs to the Complainant for the inefficient use of judicial time that has also put the Complainant to unnecessary costs. 2.32 fn conclusion, the Complainant submitted that it is clear that this Court has the jurisdiction to hear and determine the Complainant's Notice of Complaint. That, it is therefore, the Complainant's prayer that the Respondent's application be dismissed forthwith with costs. Respondent's Submissions in Reply 2.33 The Respondent filed Submissions 1n Reply on 15th June, 2022 wherein it observed that the Complainant went to great lengths to enrich the arguments on this application by expounding upon the "sacrosanct principle of stare decisis". It was argued that, unfortunately, the Complainant did not state the obvious, namely, that judgments are never applied without detailed analysis. That, it is not enough to conduct a superficial factual comparison as the surrounding Pa g ~i I R19 statutes and jurisprudence are pivotal because stare decisis does not mean that judgments are immutable. 2.34 It was submitted that from the vast body of Zambian jurisprudence, at least three principles are decipherable in relation to the application of a superior court judgment; these being: whether the judgment is in fact "on all fours" with the facts in issue; whether the judgment, as common law, is overridden by statute; and whether the court that rendered that judgment has confirmed it or overridden it in subsequent decisions. 2 .35 According to the Respondent, the facts in the Concrete Pipes v. Kabimba case are distinguishable from the current case. That, the Concrete Pipes case was about incomplete disciplinary proceedings on the alleged theft of company property, compounded by criminal prosecution and whether the crnploymcnt contracts had been breached, while in casu, the subject matter of the complaint was disapprobation that seemingly arose overnight. That, moreover, there has been a set of administrative channels that directly answer the alleged grievance that led to the complaint. 2.36 On whether or not the judgment, as common law, is overridden by statute, it was submitted that the Supreme Court of Zambia in its seminal judgment in the case of Bridget Mutwale v. Professional Services Limited9, stated at page 72 that: So far as the reference to the common law is concerned we entirely agree with Mr. Mwanawasa and the authoriti~s to which our attention has been drawn that there is no presumption that a statute is intended to override the P :i g e I R20 common law and that it is a sound rule to construe a statute in conformity with the common law. The latter part of t~is proposition is of course qualified as Mr. Mwanawasa fairly pointed out by the words in Craies "except where and so far as the statute is plainlu intended to alter the course of the common law". (Emphasis supplied by the Respondent) 2.37 It was submitted that the judgment above is consistent with Article 7 of the Constitution even though the former predated the latter. That, under Article 7, "laws enacted by Parliament" are second only to the Constitution. That, in the context of the case of Concrete Pipes and Products Limited, it is important to note that the judgment did not cite the ILRA or make any attempt to interpret it. The judgment merely looked at administrative remedies generally. That, the fact that the judgment came from the apex court means that it certainly has common law value. Conversely, the fact that it made no reference whatsoever to the statute that was directly applicable means that the precedcntial value of this aspect of the common law is dependent on whether a statute overrides it under the circumstance. 2.38 It was submitted, further, that it was undoubtedly for this very reason that the learned authors of: A Comprehensive Guide to Employment Law in Zambia opined at page 183, that the Supreme Court's holding in the Concrete Pipes and Products Limited judgment that the refusal of an employee to subject themselves to internal disciplinary procedures goes to credibility of the complaint in court, not the cause of action and that a cause of action is not lost solely because the employee did not exhaust the internal disciplinary Page I R21 procedures, only applies to matters commenced in the general division and not in the Industrial Relations Division due to the provisions of section 85 (3) of the ILRA. 2.39 On whether the court that rendered the judgment has confirmed it or overridden it in subsequent decisions, it was submitted that in Patel v. Attorney General and Another10 the High Court was faced with the challenge of , two Supreme Court decisions that apparently contradicted one another. The High Court guided that the principle of stare decisis demands that where there is a conflict between two decisions of the Supreme Court, it is the latest decision that the lower court is obliged to follow. 2.40 It was submitted that the above 1s the reason why the Respondent went to great lengths 1n their submissions in support of the application to cite more recent judgments than the Concrete Pipes and Products Limited judgrnent on the same subject of section 85 (3) of the ILRA. That, it is instructive that a search did not reveal any subsequent judgment that confirmed the Concrete Pipes and Products Limited judgmcnt, but instead, subsequent Supreme Court judgments reverted to the thorough interpretation of the written law in Zambia Consolidated Copper Mines Limited v. Elvis Katyamba and Others (supra). That, if the Supreme Court has not only repeatedly departed from the Concrete Pipes and Products Limited judgment, but completely overlooked it, then surely, this Court is not bound to it either. 2.41 That, it is therefore clear that the Concrete Pipes v. Kabimba case is not supportable opposition to this application. P ;i g e I R22 2.42 With regard to the Complainant's submission that the Respondent's application is premature and unsustainable, it was submitted that, that is not the case as the application is timely as jurisdiction is not an issue that ought to arise "by the way" in the course of proceedings because where the court has no power to hear and determine a case, it becomes a waste of the Court's valuable time to delve into the merits; more so this very Court which has the very strict time frame for concluding matters under the proviso to section 85 (3) of the ILRA. 2.43 It was submitted that this case 1s distinguishable on the facts from the Concrete Pipes and Products Limited case; overridden by statutory law and overridden by subsequent Supreme Court decisions that rely on that statutory law. That, it follows that in this particular Court, no cause of action can be sustained in breach of section 85 (3) of the ILRA. 2 .44 On the issue of costs, it was submitted that the sheer scope of the I~cspondent's submissions has turned the Complainant's arguments on costs on their head and made them directly applicable to the Complainant himself. That, there is sufficient precedent to have guided the Complainant on the correct way of addressing his grievances. His choice of this forum meant that he was subject to its rules of fair play. This forum's rules are in section 85 (3) of the ILRA and ignorance of the law is no defence. That, the Respondent thus, maintains its prayer that the Complainant be condemned in costs for the vexatious commencement of this P ,1 e e I R23 complaint in blatant disregard of the written law and the common law that supports it. 2.45 In conclusion, the Respondent reiterated that the merits of this application lie in the LSA Grievance Procedure Code read in the context of section 85 (3) (a) of the ILRA. That, the Complainant has wantonly disregarded the express terms of the written law in favour of a judgment that the Supreme Court itself has not adhered to. That, this Court has no jurisdiction to entertain this complaint. Therefore, the Respondent renews its prayer that the Notice of Complaint filed into court on September 7, 2021 be dismissed for want of jurisdiction under section 85 (3) (a) of the ILRA, with costs in accordance with Rule 44 of the Industrial Relations· Court Rules. 3. Oral hearing of application 3. 1 By agreement of the parties, no oral hearing of the preliminary issue took place. It was agreed that the Court ) would render its ruling based on the documents which were filed in Court in respect of the application. 3.2 My ruling follows as hereunder. t 4. Determination of Application 4.1 As indicated earlier in this ruling, this is the Respondent's application for an order to dismiss the complaint herein for want of jurisdiction. The application is made pursuant to Section 85 (3) (a) of the ILRA. 4.2 It is not in dispute that the Complainant resigned from the Respondent's employ on 25th June, 2021, following receipt of an email from the Respondent's Managing Director on th 24 June, 2021, citing the reason that the Respondent, P ;i e e I R24 through its Managing Director, permanently altered his job position without his consent and without consulting him, which alteration brought about a material adverse change in his conditions of employment which resulted in a demotion. 4.3 It is also not in dispute that while employed by the Respondent, the Complainant's conditions of service included the Lawrence Sikutwa and Associates Limited Group of Companies General Conditions of Service (the "LSA Group General Conditions of Service") and further, that the LSA Group Grievance and Disciplinary Procedures Code was an intrinsic part of the LSA Group General Conditions of Service. 4.4 The facts also reveal that the Complainant did not raise any grievance with his superior but simply resigned a day after receiving the email from the Managing Director. 4.5 Having observed as above, the issue to be determined, in my view, is whether in the circumstances, this Court has been ) stripped of its jurisdiction to hear and determine this matter due to the provisions of section 85 (3) (a) of the ILRA. t 4.6 For ease of reference, I will quote the section here. Section 85 (3) reads as follows: "85. (3) The Court shall not consider a complaint or an applicu.lion unless the complainant or applicant presents the complaint or application lo the Court - (a) within ninety days of exhausting the administrative channels available lo the complainant or applicant; or (b) where lhere are no administrative channels available to the complainant or applicant, within ninety days of the occurrence of the event which gave rise to the complaint or application: Provided that - P ::i f; e I R25 (i) Upon application by the complainant or applican~, the Court may extend the period in which the complaint or application may be presented before it; and . (ii) The Court shall dispose of the matter within a per:-od of one year from the day on which the complamt or application is presented to it." 4.7 I am of the considered view that contrary to the Respondent's assertion, section 85 (3) has not stripped this Court of the jurisdiction to hear and determine this matter for the reasons that follow. 4.8 The Respondent has argued that since the Complainant did not exhaust the administrative channels available in the Respondent Company before filing his Notice of Complaint in this Court, the Court does not have the jurisdiction to hear and determine the complaint in view of the provisions of section 85 (3) (a) of the ILRA. 4. 9 In support of this argument, the Respondent has cited a number of judgmcnts of the Supreme Court which were passed after the Concrete Pipes and Products Limited judgmcnt and which referred to the earlier judgment of ) Zambia Consolidated Copper Mines Limited v. Elvis Katyamba and Others, but not to the Concrete Pipes judgmcnt. The Respondent has further argued that if the Supreme Court itself has not only departed from the Concrete Pipes and Products Limited judgment but has completely overlooked it, then this Court is not bound to it either. 4.10 I have perused the judgments which the Respondent has refe rred to as being the judgmen ts that reverted to the earlier position in the case of Zambia Consolidated Copper Mines Limited v. Elvis Katyamba, namely, Lackson Mukuma I' ag e I R26 and others v. Barclays Bank Plc., Tembo v. First Quantum Minerals Limited - Mining Division and Rajagopalan Kothanda Raman v. Ngwira. 4.11 It is indeed clear that the above judgments allude to the fact that the provisions of section 85 (3) of the ILRA which require that a complaint or application be filed within 90 days of the exhaustion of administrative channels or event which gave rise to the complaint or application, Is mandatory. That is not in dispute. What must be understood is that section 85 (3) proscribes this Court from ~ I considering an application or complaint which IS filed outside the statutory period of 90 days from the date of exhausting of administrative channels available to the applicant or cornp laina nt; or where there are no administrative channels available, within 90 days of the occurrence of the event that gave rise to the application or complaint, unless the court extends the period within which to file the application or complaint, on application by the applican t or complainant. This provision does not In any way divest the Court of jurisdiction to hear and determine a t complaint where the complainant or applicant has not exhausted the administrative channels available to him. 4.12 The emphasis in section 85 (3) is on tin1ely filing of matters in the IRC. In my view, the provision is mandatory with respect to the time within which to file a complaint in court and not to exhaustion of administrative channels. 4.13 The Court of Appeal best put this way, in the case of Shepherd Muzhike v. Chambishi Smelter Limited 11, P "g c I R27 when it was addressing the 2008 amendment that culminated into the current Section 85(3) of the ILRA: "The Supreme Court construed the earlier provision which has now been amended by Section 19 above. That provision was in similar terms to the amendment, the only difference being that a complaint was required to be filed within 3_0 days. Jn Zambia Consolidated Copper Mines Limited v. Elvzs Katyamba and Others, it was held that it is mandatory for the JRC not to entertain a complaint or application, unless such complaint or application is brought before it within thirty days from the date of the event that gave rise to the complaint or application. Similarly in the present case, the wording is that a judge shall not consider a complaint unless it is presented in 90 days. The I<atyamba case leaves no doubt that the wording is mandatory, and the !RD now, cannot entertain the complaint if it is brought outside the stipulated period. That being the case, it was incompetent for the trial judge to entertain the complaint that the final written warning was wrongly imposed, without being moved by the complainant for extension of time in which to present the complaint, and granting the extension ifp ersuaded to do so." 4.14 It seems to me that the crux of the excerpt above 1s that a complaint or application must be filed into court within a certain window and when this window passes, the complain an l or applicant ought to first seek leave of court to file the complaint or application out of time. The excerpt is, t in no way, suggesting that the court loses its jurisdiction if a complainant or applicant does not exhaust administrative channels prior to filing a complaint or application. 4.15 It is evident from the judgments cited by the Respondent which were delivered after the Concrete Pipes and Products judgment that the issue of the Court being stripped of its jurisdiction to consider a complaint due to the Complainant's failure to exhaust administrative channels was not in the contemplation of the Court. P "' g e I R28 4.16 However, in the Concrete Pipes and Products judgment two issues came up for determination. The main issue was whether it is right for a court faced with a preliminary issue to defer consideration of such preliminary issue to the main action and the ancillary issue was whether it 1s a requirement in all cases that an aggrieved employee should exhaust internal administrative procedures before seeking judicial intervention. 4.17 While acknowledging the importance of an employee subjecting himself to internal disciplinary procedures, Malila JS (as he then was), delivering the judgment of the Court, observed as follows at pages J9 - JlO: ... Unreasonable refusal for an employee to subject himself to disciplinary procedures could of course have its own repercussions. The extent to which the employee's choice not lo suhmit to internal administrative disciplinary proceedings may react upon the merits of his case, will of course vary from case to case depending on the peculiar circumstances. Our view nonetheless is that refusal to subject oneself lo internal disciplinary procedures goes to the_c rcclibility __ of3he complaint in court rather than to the cause oj_· o.c!fo!J itself In other words, a cause of action is not necesswi_ly_losl hy reason mereh1 of the fact that internal adminislro.liue clis9.R.linan1 proceeclinqs were not concluded or acc((-dccl lo. 1~1..!.!...~- estimation, fbilure or refusal to follow or lo _s_1!:.h)r_1<:l 011c:sel[ lo disciplinan; procedures can only go either to slren4llwninl{ or weakening the employee's complaint ay_ai(lsl the emplol.{er. (Emphasis supplied by the Court) 4.18 From the issues that came up for determination in the Concrete Pipes and Products Limited judgment, it is clear that the Supreme Court did not go against the provisions of section 85 (3) of the ILRA. 4.19 In view of my findings above, I am of the considered view that it is superfluous for me to delve into determining r !' ~ g e I R29 whether or not exhaustion of administrative channels by employees is necessary in claims of constructive dismissal. 4.20 With regard to the opinion expressed by the learned authors of A Comprehensive Guide to Employment Law in Zambia at page 183, that the Supreme Court's ruling in the Concrete Pipes and Products Limited judgment that the refusal of an employee to subject himself to internal disciplinary procedures goes to credibility of the complaint in court, not the cause of action and that the cause of action is not lost solely because the employee did not exhaust the internal disciplinary procedures only applies to matters commenced in the High Court's General Division and not in the Industrial Relations Division by virtue of the prov1s10ns of section 85 (3 ) of the ILRA, I am of the considered view that the same was a misapprehension of section 85 (3) whose import has been addressed in this ruling. Therefore, the ruling in the Concrete Pipes and Products Limited judgment also applies to matters commenced in the Industrial Relations Division. 5. Conclusion and Orders 5.1 In view of the above, it is this Court's conclusion that it does have the jurisdiction to hear and determine the complaint herein. Hence, the Respondent's application to dismiss this matter for want of jurisdiction is dismissed for being without merit. 5.2 With regard to the prayers by both parties for an order of costs in their favour, I am of the view that neither party has been guilty of unreasonable delay, or taking improper, vexatious or unnecessary steps in these proceedings, or of Page I R30 other unreasonable conduct to warrant being condemned in costs. For that reason, each party shall bear its own costs. 5.3 Leave to appeal is denied. Dated at Lusaka this 12th day of August, 2022.