Over the period of his employment, and, as required of him by the environment in which he worked, the Respondent underwent periodic medical examinations which were known as pneumoconiosis examinations. On 30th December, 2010, the Respondent attended what was to be his last medical examination. This examination revealed that the Respondent had a chronic lung disease. This revelation inclined the Health and Safety Bureau against issuing a certificate of fitness in favour of the Respondent. The Health and Safety Bureau also determined that the Respondent was not fit to continue working in a mining environment as a miner. Consequently, the Respondent was issued with a "B5" certificate.
Arising from the pneumoconiosis results by the Health and Safety Bureau, the Respondent was subjected to further examinations by the Medical Board of the Ministry of Health which revealed that the Respondent had been afflicted with a chronic lung disease known in medical terms as 'pneumoconiosis superadded pulmonary tuberculosis.' In consequence, the Medical Board recommended that the Respondent be retired. This recommendation by the Medical Board was made on 20th April, 2011. However, by the time the Medical Board was making its recommendation, the Respondent's employment contract had determined by effluxion of time.
On 23rd May, 2011, the Appellant lodged a claim with the Workers' Compensation Fund Control Board seeking to have the Respondent medically compensated. However, the Workers' Compensation Fund Control Board declined to compensate the Respondent on the basis that the certification on the medical examination which had been conducted on the Respondent on 30th December, 2010 carried a classification which was known as "B5" and which was "non-compensable" because it had not revealed the presence of tuberculosis and pneumoconiosis.
The Respondent instituted a court action in the Industrial Relations Court seeking a variety of reliefs, most of which were subsequently consensually resolved via a Consent Order. The only relief which survived that Consent Order was the Respondent's search for medical compensation. Accordingly, it was the Respondent's search for medical compensation which became the subject of trial in the IRC. The Respondent contended that the issuance of the B5 non-compensable Report was attributable to the Appellant's failure to observe a variety of legal prescriptions and requirements and that it was these transgressions or lapses on the part of the Appellant which had culminated in the refusal by the Workers' Compensation Fund Control Board to medically compensate the Respondent. In its judgment, the trial Court did not consider that the Appellant had been guilty of any wrong-doing or any breach of a legal duty in relation to the Respondent. At any rate, the IRC took the view that even if the Appellant had been guilty of any wrong-doing of whatever kind, such wrong-doing could not have been legitimately tied to the refusal by the Workers' Compensation Fund Control Board to compensate the Respondent ostensibly because the Respondent's chronic lung ailment was non-compensable. The IRC then went on to cite Section 6 of the Workers' Compensation Act and interpreted the same as entitling an employee to bring an action against an employer for negligence, breach of statutory duty or other wrongful act or omission and seek damages. The Court then went on to observe that there was a probability that the Respondent had contracted the chronic lung disease which had afflicted him in the course of his employment by the Appellant and that, consequently, he was entitled to compensation by his employer, notwithstanding that the Workers' Compensation Fund Control Board had declined to compensate him. According to the trial Court, having the employer compensate its employee in the circumstances revealed by this matter would redress the mischief which would otherwise arise where an employee who contracts a disease in the course of his employment is not compensated at all.
The IRC accordingly proceeded to award the Respondent monetary compensation in the form of a lump sum equivalent of the Respondent's 24 months' salary based on his last drawn salary together with interest at the then prevailing average bank lending rate with effect from 9 September, 2011 to 14th March, 2012. The Appellant appealed.
Held:
1. The expansive extent of the general jurisdiction conferred on the Industrial Relations Court under Section 85 accords "sufficient jurisdiction" to that court to litigate "...certain genuine complaints such as wrongful, unjust or unfair dismissal..." free from "technicalities or rules" but this does not suggest, thereby, that the scope of that court's jurisdiction is the same as that of the High Court of Zambia. Zambia Consolidated Copper Mines Ltd v Matale (1995-1997) ZR 144 applied
2. In both these Statutes (the provisions of Section 6, its subject matter as well as the general scheme of the Workers' Compensation Act No. 10 of 1999 and its predecessor, namely, the Workers' Compensation Act, CAP 271 of the Laws of Zambia), the court which is/was clothed with relevant jurisdiction for any grievance founded on the provision in question is/was the High Court of Zambia. The trial court's decision not only to invoke Section 6 of the Workers' Compensation Act but to anchor the outcome of the complaint which had been prosecuted before it on that statutory provision leads to the conclusion that the court below erred when it ordered the Appellant to avail monetary compensation to the Respondent.
3. The issue of having the Respondent access medical compensation in relation to the medical condition which had afflicted him was one which was firmly anchored in the law, namely, the Workers' Compensation Act. This means that, to the extent that the Appellant had discharged its obligations or duty under that law for the benefit of its employees, such as the Respondent, no liability of the nature that the Respondent was seeking to secure against the Appellant could attach against it, particularly in the light of the trial court's own finding and determination clearly absolving the Appellant from any such wrong-doing or breach as would have operated to discount the Respondent's right to secure the medical compensation in question.
4. The refusal by the Workers' Compensation Fund Control Board to medically compensate the Respondent did not preclude him from challenging the decision of the Workers' Compensation Fund Control Board by way of an appeal to the Workers' Compensation Tribunal in accordance with the provisions in Part XI of the Workers' Compensation Act.
5. Redress for injury arising out of and in the course of a workman's employment takes the form of the statutory remedy which is secured by legislation such as the Workers' Compensation Act and its predecessor statute. In terms of this legislation, certain categories of workmen must have their health and safety insured by their employers. In general, therefore, and barring any allowable exceptions (including those contemplated by Section 6 of the Workers' Compensation Act), an employee who suffers from a disability or contracts a disease and who comes within the contemplation of the Workers' Compensation Act and whose employer had been observing the requirements of this statute in relation to such employee must look to the statutory remedy available under this law unless such an employee can demonstrate the legality and legitimacy of seeking redress against the employer.
Notes/Obiter
Following the amendment of the Constitution of Zambia Act and the establishment of the Industrial Relations Court as a division of the High Court, the position might well change to result in the IRC having coextensive jurisdiction with the High Court.
