Josephat Lupemba v FQMO Limited (COMP/RD/17/2016) (24 March 2017) – ZambiaLII

I' IN THE HIGH COURT FOR ZAMBIA INDUSTRIAL RELATIONS DIVISION HOLDEN AT SOLWEZI BETWEEN: JOSEPHAT LUPEMBA ·, COMPLAINANT AND FQMOLTD RESPONDENTS BEFORE: Hon. Mr. Justice E.L. Musona For the Complainant Mr. M. Mwachilenga of Messrs Mumba Malila & Partners For the Respondents Mr. D. Libati of Messrs Abha Patel & Associates JUDGMENT Date 24th March, 2017 Cases referred to: 1. Ridge v Baldwin (1963) 2 ALL ER 2. Miyanda v Attorney General (1985) ZR •. Legislation referred to: 1. S. 5 of Act No. 15 of 2015 J2 This Complaint was filed by M/Josephat Lupemba against FQMO Ltd. I shall, therefore, refer to M/Josephat Lupemba as the Complainant and to FQMO Ltd as the Respondents which is what the parties to this case actually were. The Complainant's claims is for the following relief: 1. An order and declaration that the termination of employrnent of • the Complainant by the Respondents was wrongful, unlawful, '-- unfair 2. Damages for wrongful unlawful and unfair dismissal 3. An order that the 24 hour notice veil used be pierced for this Hon. Court to investigate the real reason behind the termination of employment 4. Costs and interest on the sums to be found due and payable 5. Further and other relief the court may deem fit and just. The duty for this court is to ascertain whether or not the ·• Complainant has proved his claim. The evidence by the Complainant was that he was employed by Hyspec Mining Services as a site supervisor on permanent and pensionable employrnent. On 25th August, 2016 he was invited by Michael Amish to apply for a job in the Respondent Company. The Complainant then applied for the position of Workshop Foreman. The Complainant attended interviews on 1st September, 2016, and was successful. J3 On 15th September, 2016 the Complainant attended medical examinations at Mary Berg Hospital at the expense of the Respondents. He was told to submit his silicosis test certificate to the Respondents and the Complainant did. The Respondents then offered the Complainant employment on a permanent and pensionable terms. After the Complainant was offered employment by the Respondents he proceeded to resign from his former employers. The Complainant reported for work at the Respondents on 5th October, 2016. On 10th October, 2016 the Respondents terminated the Complainant's employment. The Respondents witness was M/Maxwell Banda a Human Resources Superintendent for the Respondents. I shall refer to this witness only as RWl. RWl told this court that the Complainant's employment was • terrninated as an unsuccessful probationer. According to RWl, the ..J/ Respondents followed the provisions of the contract of employment because they notified the Complainant of their intention to terminate the contract of employment. RWl testified that the Complainant's employment was terrninated because he had a BS silicosis certificate which only allowed him to work for 100 hrs in a month instead of the 208 hrs required of miners in a month. J4 Having stated the evidence in this case, I must now consider the relief sought. 1. An order and declaration that the termination of employment of the Complainant by the Respondents was wrongful, unlawful and unfair I shall analyze this claim under the subject heads as they • appear in the claim. a. Wrongful dismissal Wrongful dismissal arises when the employer breaches one or more terms of the contract of employment when dismissing the employee or when terminating the employment of the employee. I have looked at the offer of employment in this case. It was • produced and exhibited as "JL 1 ". The letter of offer of employment has terms of employment. Some of those terms were as follows: i. Subject to passing pre-employment medical and silicosis examinations. ii. Three (3) months' probation. iii. 24 hrs notice of termination of employment while on probation. iv. Working 208 hrs per month. JS As already noted, the Complainant's appointment was subject to passing pre-employment medicals and silicosis examinations. The phrase "pre-employment" is not technical. It is clear ordinary English which does not require further Definitions. Put simply, it means "before being employed". • Engagement in employment is evidenced by a letter of offer of employment. A Person becomes an employee immediately he receives the offer of employment and has accepted the offer. So, then, pre-employment medicals come before a person is offered the job. When a person is offered a job, it means that the issue to do with medicals and silicosis examinations which are pre-conditions to employment have been resolved affirmatively. There is no dispute that the Complainant did his medicals at Mary Berg Hospital at the expense of the Respondents. The dispute is on • the silicosis examinations, I have noted that the Respondents were given the silicosis examination result by the Complainant on 19th September, 2016. The letter of offer of employment was dated 29th September, 2016 which was long after the Respondents had been given the silicosis certificate by the Complainant. The Respondents only realized that the silicosis certificate allowed the Complainant to work for not more than 100 hours in a month after receiving a response from Occupational Health Institute where they had submitted it for verification. At that time the Complainant had already received the offer of employment from the Respondents and JG had accepted that offer of employment. On the basis of that offer of employment from the Respondents, the Complainant had already resigned from his previous employers and had already taken up appointment with the Respondents, and had even worked for five (5) days for the Respondents. I, therefore, find that the Respondents were wrong to have failed to notice that the silicosis certificate which the Complainant gave them did not allow him to work for the number of hours they required in a month. The Respondents were also wrong to employ the Complainant before the silicosis certificate was verified by the Occupational Health Institute, because an appropriate silicosis certificate was the basis upon which they should have generated the letter of offer of employment to the Complainant. The letter of offer of employment was the basis upon which the Complainant proceeded to resign from his former employers. It is wrong to give a person a letter of offer of employment before • all pre-employment formalities are finalized. A letter of offer of employment signifies that the prospective employee has satisfied .._,, all the pre-employment formalities, and that he has been given the job, subject only to him accepting or rejecting the offer. The conduct of the Respondents in this case where the Complainant was offered the job before they concluded their pre-employment formalities was wrong, and induced the Complainant to resign from his former employers. The Human Resource Department for the Respondents acted wrongfully. On the above facts, I find that the J7 termination of the Complainant's employment was wrongful, and amounted to wrongful dismissal. This claim succeeds. b. Unlawful dismissal • Unlawful dismissal arises where an employer breaches a statutory provision when separating the employee from employment. I have looked at the letter by which the Complainant was separated from employment. That letter was produced and exhibited as "JL4". I have analyzed that letter. Apart from showing that the Complainant was unsuccessful on his probation, that letter does not state what constituted the unsuccessful probation. The Respondents should have given • a reason in the letter why the Complainant's probation was not successful. This means that no reason was given in that letter ;:: for the termination of the Complainant's employment. Failure ..:..., by the Respondents to give reason why the Complainant's employment was terminated breached Section 5 of Act No. 15 of 2015. That section makes it mandatory for every employer to give reason to an employee when terminating employment. The old employment scenario where the employers depended on the notice clause in the contract of employment without giving reason is now unlawful. J8 On the above basis, I find that the termination of the Complainant's employment by letter dated 10th October, 2016 and exhibited as "JL4" without giving reason was unlawful to the extent that it violated the statutory provision of S. 5 of Act No. 15 of 2015. I, therefore, declare that the Complainant's separation from • employment by the Respondents was unlawful. This claim succeeds. c. Unfair dismissal Unfair dismissal arises where the employment of an employee is terminated without affording an employee a hearing of what is alleged against him. It is a common practice in our jurisdiction that no one should be punished or made to suffer any form of disadvantage without being afforded an • opportunity to defend oneself, and this practice has now gathered the force of law. In the case of Ridge v Baldwin (1) the House of Lords held that Baldwin's committee violated the doctrine of natural justice when the accused was not afforded an opportunity to be heard. I have also looked at the case of Miyanda v Attorney General (2) where the Supreme Court held that failure to give the employee an J9 opportunity to answer charges against himself is contrary to natural justice. On the above basis, I have found that the separation of the Complainant from employment was unlawful. This claim succeeds . • 2. Damages for wrongful, unlawful and unfair dismissal ~ I have analyzed these claims. I have already ruled that these claims have succeeded, and I have given my reasons. Now, therefore, I order that the Respondents shall pay four (4) months' salary as damages for wrongful, unlawful and unfair dismissal. 3. An order that the 24 hour notice veil used be pierced for this Hon. Court to investigate the real reason behind the termination .. Jf of employment I have already ruled that the claims have succeeded. I have already awarded damages. This ground, therefore, has been overtaken by events. J10 4. Costs and interest on the sums to be found due and payable I order interest on the within awards at the Bank of Zambia rate to be assessed in default of agreement. I also order costs in favour of the Complainant to be taxed in default of agreement. I have seen no other relief due to the Complainant. Delivered and signed in open court at Solwezi this the 24th day of March, 2017. f/v l) :\1\ . ,. ·, , ·1J1 1 /1 jl/il'/·, .:i.,. - ·· ' , Hon. E.L. Musona JUDGE