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Luangwa Valley Dispatch
By Jake da Motta
Employers Beware….
Some time in early May of this year when the Zambian Kwacha was
strutting around the ‘hood like a steroid junky, flexing its muscles
and kicking over everybody’s sandcastles, one of the largest
employers in Eastern Province came to the regrettable decision that
if the ZMK got itself all pumped up to K2750/USD by the end of the
month they would have to retrench twenty workers in order to be able
to afford to stay in business. The workers, all on annual contracts
were informed of this unpleasant necessity but told that of course
they would be paid their contractual terminal benefits at the end of
the one month’s notice period and that if by that time the bullyboy
ZMK had been slapped back down to its proper place, would be
reemployed thereafter on new contracts.
Work continued and the termination date arrived. The retrenched
workers were paid their salaries for the days worked, leave days
owing and the contractually agreed benefit based on the full term of
the contract. Nothing unusual so far, and at the time this scene
must have been played out in dozens of small (and large) businesses
across the country. However the good news was that by this stage the
ZMK had been found to be all shirt and no trousers and was skulking
back towards its real value. Within two weeks fourteen of the twenty
were back at work having effectively had a mid-season bonus. Six of
the retrenched workers however decided that they had been treated
unfairly and complained to the Labour Office.
The main thrust of their complaint was that they had been cheated by
the company which they believed was obliged to pay them their full
salary for the period of the contract i.e. Retrench them to save
money……..by paying them stay at home!
The Labour Officer explained to them as the company had done, that
this sadly was not the case and that no employment contract anywhere
would have such a clause unless the employer were hell-bent on
financial suicide (….so to be fair this clause may well exist in
some parastatal contracts!)
 The
Honourable Chief was then appealed to by the aggrieved, and also
could find no fault in the company’s behaviour and no cause for
grievance.
The workers then took the case to Local Court….and here at last
found a sympathetic forum and a level of contractual understanding
similar to their own.
Judgement was passed in mid August and despite the court being able
to show the company’s representative no part of the contract stating
that a retrenched worker would be paid to stay at home for the full
term of his contract, the plaintiffs were awarded costs, court
charges and six months salaries plus bank interest.
The Labour Office, Office of the President and District Secretary
all examined the contract, found no case to answer and informed the
Court that the company was not in breach and suggested that they
reconsider rewriting the Labour Laws with their judgement, but they
stood firm, insisting that the workers deserved more money.
Two weeks later the company Director stood in the dock of the Court
(seven bricks in a square in the welcome shade of a mango tree
shared with several foraging chickens) charged with contempt for not
having paid the Court charges or settlements and for “holding up the
ruling of the Court to ridicule” by allowing outside parties (the
GRZ bodies above) to become involved. However once it was agreed
that a settlement might still be negotiated the contempt charges
were dropped and the learned judges suggested that the plaintiffs
and defendant retire to discuss this in their chambers.
The only way that the company could have the charges dropped and
make a clear statement to the other 150 employees still at work, was
to make a voluntary gift to the aggrieved employees (the Court now
agreeing that they were not contractually entitled to any further
payment). The alternative was to appeal the case in the Magistrates
Court (after paying the full settlement) and if the Court’s ruling
was overturned, sue the plaintiffs for the return of the money. The
Director agreed to pay three months basic salaries as a gift to the
aggrieved workers’ families in recognition of the suffering they had
endured. The workers agreed to drop the charges and the Court ruled
to charge the workers for wasting the Court’s time. The company was
asked to show no prejudice against these workers when recruiting
next year….yeah RIGHT! A triumph of legal sagacity, the case
was adjourned with much bonhomie.
The Director was then asked to give the Court Bailiff and his
prisoner from a previous case a lift back to the tarmac as they were
headed for the police station, however when the lift terminated at
the company offices a fracas developed and the Director was again
threatened with arrest. He went straight back to Court and lodged a
complaint against the Bailiff. However not to be outdone the said
Bailiff set up a “”tempolaly loadbrock” using the Presiding Judge's
Pigeon bicycle and commenced to beat the Director’s car with a
tractor fan-belt. The company’s workshop manager alighted to remove
the said bicycle and a further fracas developed resulting in some
beating of said workshop manager with said fan-belt, at which point
the Director decided that the said Bailiff needed to return to the
Court (again) with the handcuffed prisoner (now a witness in an
assault case) and he was bundled into the car with much wailing,
rending of garments and forcible removal of the fan-belt, now
Exhibit A. The Court agreed to draft a letter of apology for the
behaviour of their officer and accepted that any future visits from
the Bailiff to the company would be treated as aggravated trespass.
The Director asked the Court's indulgence in allowing the Bailiff
and himself to step outside and finish the matter, man to man,
sans fanbelts but permission was denied.
The plaintiffs were given their “voluntary gift” the following day
and returned to Court, where the chairman of the aggrieved workers
complained again that he wanted more money. He was handcuffed for
being an ingrate and fined. The Court closed the case, delivered the
letter of apology for the behaviour of the “ignorant” now ex-Bailiff
and justice having been seen to be done, everyone went home for tea
and scones…..hurrah!
However the precedent has been set and employers should do
everything in their power to avoid appearing before a Local Court,
whose function is designed to be civil, on labour issues. As once
the case is opened you will then become criminally liable if the
erudite findings of the court are not followed. There is
however no doubt that the Dual Judiciary system has a function, with
Local Courts having jurisdiction to hear civil cases concerning
everyday domestic realities (inheritance, infidelity, wife-beating,
poultry theft, witchcraft and demonic possession) leaving the Higher
Courts free to be used as a forum for politicians to impeach each
other.
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November
2006