THE Lusaka High Court has ruled that the decision by the acting Labour Commissioner dated February 4, 2020 approving the University of Zambia Council’s application for the termination of recognition agreement of the University of Zambia Lectures and Researchers Union was improper as she was not vested with power to terminate it.
Justice Sharon Newa has since quashed the decision of the acting Labour Commissioner and has directed the University of Zambia Council to abide by the terms of the recognition agreement.
In this matter, UNZALARU has commenced judicial review proceedings against the state and Labour Commissioner Mukamasole Kasanda’s decision to approve the University Council’s application to terminate the recognition agreement between the union and the council.
UNZALARU general secretary Kelvin Mambwe in his affidavit in support of the ex-parte summons for leave to apply for judicial review said that on January 6, this year, UNZALARU held a meeting where he expressed concerns over the University Council’s delay in paying members of the union their December 2019 salaries.
“In exercising my freedom of expression and in keeping with the duty to speak on behalf of the union’s members, I lamented government’s failure to adequately fund UNZA and expressed the view that “if elections were held today (January 6, 2020), there were two categories of people that would vote for the PF, either those that were enjoying with them or idiots, it’s as simple as that”,” he said.
Mambwe indicated that arising from what was discussed at the said meeting, the University Council wrote to him alleging that they were inciting industrial disharmony, and further gave the union 48 hours within which to show cause why it should not invoke the provisions of the Act with a view to ask the Labour Commissioner to terminate the Recognition Agreement between the council and the union.
In an affidavit in opposition to originating notice of motion for judicial review, University of Zambia registrar Sitali Wamundila said the remarks uttered by Mambwe that ‘only idiots or those enjoying with PF would vote for them if elections were held today’, incited industrial disharmony.
Wamundila told the Court that the insults hurled were derogatory, disparaging, demeaning, spiteful and injurious to the University of Zambia management.
The University Council has opposed the application for Judicial Review, stating that the complaint that it lodged to the acting Labour Commissioner wherein section 65A was invoked to terminate the Recognition Agreement between UNZALARU and the council was within the parameters of the law.
Wamundila said that at the said meeting held on January 6, this year, Mambwe in his address which was widely published by the media, made a number of remarks some of which fell outside the objects and mandate of the union.
“Some of these remarks included a warning that no students should return to campus until the union members were paid their salaries in full and in addition a myriad of insults to the UNZA management. It is our position further that the insults hurled were derogatory, disparaging, demeaning, spiteful and injurious to the University of Zambia management,” he stated.
And in her judgment, judge Newa found that the acting Labour Commissioner’s exercise of her powers under section 65A of the industrial and labour relations Act which empowered her to hear the application to terminate the recognition agreement between UNZALARU and the University of Zambia Council was improper and the said agreement did not vest her with power to terminate it.
Judge Newa noted that the reasons required to be given for termination of a recognition agreement under clause 18 of the same and Section 65A of the industrial and labour relations Act were supposed to be sufficient enough in order to draw a conclusion that the relationship between the parties to the said agreement has broken down irretrievably.
She said the acting Labour Commissioner was not duty bound to consider the provisions of clause 28 of the recognition agreement which required three months notice prior to the termination of the agreement between the parties, as she was only bound by the provisions of Section 65A of the industrial and labour relations Act under which she exercised her powers.
“By proceeding to determine the application to terminate the recognition agreement between the applicant and the second respondent on an application made by the University of Zambia Council, the acting Labour Commissioner exercised her powers under the section for which it was not granted. This was because she had also asked UNZALARU to show cause why its certificate of registration should not be cancelled, based on the facts that the council had advanced in its application,” judge Newa said.
She said that it was improper for the acting Labour Commissioner to meet one party after hearing the application to terminate the recognition agreement and thereafter approve the application as it shows that she was not impartial in the execution of her duties.
Judge Newa found that the acting Labour Commissioner breached the rules of natural justice as there was lack of fairness to the applicant appearing before her when she was also aggrieved with UNZALARU and the outcome of the hearing was impartially reached.
” It was procedurally improper for the acting labour commissioner to approve the termination agreement between UNZALARU and the University of Zambia Council, as she was an aggrieved person in relation to the facts which caused the second respondent to make the application,” judge Newa said.
She stated that UNZALARU and the University of Zambia Council were still under obligation to comply with the termination provisions of the said agreement.
” I further grant the order of centiorari quashing the decision of the acting labour commissioner, and I grant an order of mandamus directing the University of Zambia Council, the actin labour commissioner to comply with the terms of the recognition agreement. The applicant is also awarded costs of the proceedings, to be taxed in default of agreement. Leave to appeal is granted,” said judge Newa.