Southern African Institute for Policy and Research

Attorney General vs. Chibaya and Others (Appeal No. 70/2011) [2015] ZMSC 27(10 June 2015)

Commentary by Nicholas Khan-Fogel

Full Case Can be Found HERE

FACTS

Respondents were employees of the Department of National Parks and Wildlife Services, which became the Zambia Wildlife Authority (ZAWA). When the Department of National Parks and Wildlife Services became defunct, the respondents were declared redundant, but they were later engaged by ZAWA, the Appellant in this case. On December 12th, 2007, following their retrenchment, Respondents commenced an action seeking an award of terminal benefits. Pursuant to the terms of consent judgment, after the parties failed to agree on the sum to be paid, Respondents applied to the Deputy Registrar for assessment of the sums. The Deputy Registrar awarded respondents a total of K2, 501, 381, 500.98, and ZAWA appealed to the Supreme Court.

 

THE LEGAL ISSUES

  1. Did respondents offer sufficient proof of their salaries while employed by ZAWA and the Department of National Parks and Wildlife Services to support the registrar’s award?
  2. Did the Deputy Registrar err in concluding that respondent 3 was entitled to retirement benefits as a classified daily employee (CDE) for the period between 1971 and 1996, and that respondent 3 was entitled to redundancy benefits following the termination of his second term of employment between 1997 and December, 1999?
  3. Did the deputy registrar err by granting Respondents interests from the date of termination of employment instead of the date of commencement of the action?

 

THE HOLDING

  1. Respondents’ proof of their salaries while employed by ZAWA and its predecessor, through the use of circulars and pay slips for other employees, was insufficient to support the deputy Registrars award.
  2. The Deputy Registrar erred in concluding that Respondent 3 was a classified daily employee (CDE) between 1971 and 1996 and entitled to benefits based on that classification. Instead, because Respondent 3 was an established civil servant from 1971 to 1996, he should collect a pension under the Pensions Act for that Period of employment.
  3. The Deputy Registrar also erred in concluding that Respondent 3 was entitled to Redundancy benefits following the termination of his second term of employment between 1997 and 1999.
  4. The Deputy Registrar should have calculated interest from the date the action was commenced instead of the date of termination.

The Rationale of the Holding

Although Respondents noted that they had presented unchallenged evidence that ZAWA had taken their pay slips, and although Respondents offered to pay slips of other employees and pay scales reflected in various circulars to establish their salaries, the court deemed this evidence inadequate. The court noted that the circulars in question established only a range of pay, with the several grades available at each designated level. The court also stated that the pay slips of other employees were irrelevant to the salaries of the Respondents. Finally, although the Appellant’s witnesses disagreed about the salary of one Respondent and admitted they had no documentary evidence regarding the salaries of any Respondents, the court stated that the Deputy registrar should have credited the inside knowledge of Appellant’s witnesses over the Respondents’ witness.

  1. Because ZAWA issued letters to Respondent 3 in 2000 and 2002 formalizing his previous employment, the Appellant’s evidence showed that Respondent 3was an established civil service officer for the period between 1971 and 1996. As an established civil service officer, Respondent 3 was entitled to benefits under the Pensions Act, rather than to retirement benefits as a CDE.
  2. Because Respondent 3’s second term of employment was a fixed-term contract, Respondent 3 was entitled to neither pension benefits nor redundancy pay for the termination of the contract. At most, Respondent 3 would have been entitled to damages for breach of contract. However, because respondent 3 was given three months’ notice of termination, and because there was no evidence the termination was wrongful, Respondent 3 was entitled to no damages for dismissal after his second term of employment. The High Court rules and the Judgment Act make clear that interest should be awarded from the date of commencement of an action by a writ of summons. Therefore, the Deputy registrar erred by awarding judgment from the date of termination.

 

THE SIGNIFICANCE

Uncertainty regarding the calculation of terminal benefits is of importance to all Zambian workers. Therefore, it would have been useful if the court had offered detailed guidance on the issue. Although the court aptly noted the inadequacy of various circulars adduced in evidence to establish the respondents’ salaries (given that the circulars established a range of salaries rather than a precise number for each respondent), the court failed to give significant guidance on how the Deputy Registrar should calculate the award on remand. The Court’s focus on the inadequacy of the respondents’ evidence in the absence of their own pay slips raise troubling concerns for several reasons. First, much like these employees, many workers will have difficulty producing pay slips years after the relevant period of employment. Second, the court acknowledged unchallenged evidence that ZAWA officers had taken the Respondents Pay slips. Finally, in its conclusory dismissal of the argument that Respondents’ proffered pay slips from other employees could be relevant to Respondents’ claims, the court failed to address the possibility that evidence of other employees’ salaries could be probative if those employees had positions and experience similar to Respondents.

The court’s statement that the Deputy registrar should have credited the Appellant’s witnesses, who had insider knowledge of the system, over the respondents’ witness, who did not, seem superficially unremarkable. Nonetheless the Appellant’s own witnesses disagreed with each other about one of the Respondents salaries, and both of appellant’s witnesses admitted they had no pay slips or other documentary proof to support their assertions about any of the Respondents’ salaries. Given that ZAWA had taken the respondents pay slips and that the court refused to give any weight to the pay slips of employees who may have had similar positions, it is unclear, under the circumstances, what Respondents could have done to establish with precision the terminal benefits awards to which they are entitled. This leaves considerable uncertainty for many Zambian workers in the future.

Additionally, the court’s reliance on ZAWA letters to Respondent 3 in 2000 and 2002 respectively, to establish Respondent 3’s employment status for the years between 1971 and 1996, raises troubling concerns for workers hoping for predictability in the formation of employment relationships. The holding suggests that a government employer has the power to establish retroactively an employee’s status for work done many years in the past. The court did not address the issue of whether the expectations of respondent 3 and ZAWA’s predecessor during the years between 1971 and 1996 might have been inconsistent with ZAWA’s later characterization of that relationship.

Maano alazwa amukasumbwa

Translation: "Wisdom may be found through observation of even the simplest things"

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