This was an appeal against the judgment of the Industrial Relations Court which found that the Respondent had been unfairly dismissed and awarded him compensation for loss of employment. The Respondent was offered employment by the appellant as a Financial Controller, to start work on 1 October 1995. On 30 November 2005, the Respondent received a letter from the Appellant terminating his employment on the basis that his services were no longer required. The Respondent told the Appellant that as no reason was given for the termination of his employment, he should be deemed to have been placed on early retirement and his terminal benefits be paid to him on that basis.
Held
1. Under section 97 of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia an appeal shall not lie to the Supreme Court if it is on points of fact only.
2. Section 85A of the Industrial and Labour Relations Act does not set out the findings that the Industrial Relations Court may make but provides the remedies that the court may award after having made a finding. A determination that a dismissal is unfair is a finding and not a remedy. Therefore, section 85A (d) in particular, only gives the court power to make an order or award that it may consider fit for the circumstances of each particular case after it has made a finding that a dismissal is unfair.
3. Even where a termination of employment is purportedly based on the termination clause in the contract, the Industrial Relations Court, being a court of substantial justice, has power to examine critically all the circumstances surrounding that termination; and where it finds that the application of the termination clause was made in bad faith, it may make a finding under section 85A that the complaint is justified and reasonable, whereupon it shall select, and grant, any of the remedies available under that section.
4. Rule 44 of the Industrial Relations Court Rules Chapter 269 of the Laws of Zambia provides that in matters before the Industrial Relations Court, costs can only be awarded against a party if such a party is guilty of unreasonable delay, or of taking improper, vexatious or unnecessary steps in any proceedings, or of other unreasonable conduct. With appeals that come from the Industrial Relations Court the principle in that rule is adopted.
