Katuta v Ndola Lime Company Ltd (COMP 33 of 2015) (4 March 2016) – ZambiaLII

IN THE INDUSTRIAL RELATIONS COURT COMP/33/2015 HOLDEN AT NDOLA v BEFORE: HON. JUDGE E.L. MUSONA MEMBERS: 1. Hon. W.M. Siame 2. Hon. J. Hasson For the Complainant: Mr. K. Tembo of Legal Aid Board, Ndola For the Respondent Mr. C. Matibini of Messrs L. M. Matibini & Co. JUDGMENT Date: 4th March, 2016 Cases referred to: 1. Wilson Masauso Zulu v Avondale Housing Project (1982) ZR. J2 2. Galaunia Farms Ltd v National Milling Corporation Ltd (2004) ZR This Complaint was filed by M/Ohristopher M. Katuta. It was filed against Ndola Lime Ltd. We shall, therefore, refer to M/Ohristopher M. Katuta as the Oomplainant and to Ndola Lime Ltd as the Respondents whioh is what the parties to this aotion aotually were. The Oomplainant's olaim is for the following relief: a, under payment of medial retirement paokage; b. any relief the oourt may deem fit. The duty for this oourt is to asoertain whether or not the Oomplainant has proved his olaim. The evidenoe for the Oomplainant was that he was employed by the Respondent on 7 th August, 2003 and retired on medioal grounds on 5 February, 2015. th He told this oourt that in 2012 prior to the introduotion of the voluntary defined oontribution pension soheme the defined oontribution benefit pension soheme was frozen. He was given a letter whioh stated that the benefits under the defined oontribution pension soheme would be taken to Mukuba Pension Soheme. In the plaoe of the defined oontribution pension soheme the Respondents introduoed the voluntary defined oontributions pension soheme. -~----------==-~--------- ~ J3 The Complainant fell sick in June 2013 and remained sicl~for over a year. He was eventually retired on medical grounds on 5th February, 2015. Following this retirement, the Complainant sought his retirement benefits from Mukuba Pension Scheme but discovered that the Respondent did not remit the Complainant's benefits. Only the Complainant's monthly contributions were remitted to Mukuba Pension scheme. He was, however, paid by the Respondent what the Respondent had not remitted to Mukuba Pension Scheme_ Mukuba Pension Scheme also paid the Complainant what had been remitted to Mukuba Pension Scheme. When the Complainant retired his salalry was K4,118.70 but was paid based on the rate of his oldsalary of K3,211.84. According to the Complainant, this shows that he was under paid and he now wants to be paid the difference. The Complainant referred this court to the computations ofhis ~ payments. This was produced by the Complainant and marked exhibit "CMK6". We have looked at CMK6. CMK6 shows that the computations were made in two (2) parts. Part one (1) shows the computations for the old salary based at K3,218.84. Part two shows the computations based on the later salary of K4,118.70. The results of these two computations were added and paid to the Complainant less the deductions as shown on CMK6. J4 We, therefore, have seen no basis for this complaint. We must mention here that the Respondents did not give any evidence. We shall not belabor that point because the circumstances under which the Respondents did not give evidence were canvased and were the subject of a ruling which this court delivered in this case on 10th February, 2016. We have looked at the case of Wilson Masauso Zulu v Avondale Housing Project (1) and have been well guided. In that case it was held that a Plaintiff who fails to prove his case cannot obtain judgment whatever may be said of the opponent's case. Indeed, where it is plain as was in this case that the Complainant did not prove his case, the Complainant shall not obtain judgment in his favour merely on the basis that the Respondents did not give evidence in their defence. We have also looked at the case of Galaunia Farms Ltd v National Milling Corporation (2) where it was held that a Plaintiff must prove his case. Again we have been guided. On the basis of the facts of this case we dismiss this Complaint for being destitute of merit. We shall order no costs. Leave to appeal to the Supreme Court within 30 days from today is granted. JS Signed at Ndola this the 4th day of Maroh, 2016 for uplifting by the parties. Hon. E.L. Musona JUDGE r-lJo~ Hon. .M. Siame Ho~. f.SHasson MEMBER MEMBER