The Registrar of the Lusaka High Court has ruled that he will not consider former Industrial Development Corporation (IDC) executive director for operations Paul Siame’s payment of over K4 million monthly salaries from date of dismissal, during assessment.

Francis Nsokolo says the claim for maintaining Siame on payroll has come rather late in the day as it should have been made at trial so that parties could have applied their minds to it.

Last year, Siame won the court case in which he had sued IDC and its shareholders in the Lusaka High Court’s Industrial Relations Division for unlawfully terminating his contract of employment.

Siame was claiming a declaration that his contract of employment was unlawfully terminated, a declaration that he was unlawfully dismissed, damages, payment of all accrued benefits and contractual entitlements, interest on all sums found due, costs and reliefs.

He claimed that although he was charged with insubordination, there was no disciplinary hearing for his case.

Siame further claimed that it was illegal for the IDC shareholders, who were the Minister of Finance and Secretary to the Treasury, to terminate his contract, when it was the IDC board which hired and signed his employment contract.

And in his judgement, High Court judge Edward Musona ruled that Siame’s dismissal was unfair and unlawful because no hearing was held, adding that when IDC terminated his employment without hearing him, they acted in breach of the rules of natural justice.

Judge Musona further said, a scrutiny of Siame’s letter of termination of employment revealed that no reason was given for terminating his employment.

He ordered a block award of three months salary for Siame’s unlawful and unfair dismissal.

“I have looked at the circumstances of this case and I am satisfied that a block award of three months salary for unlawful and unfair dismissal shall suffice, and, I so order,” judge Musona ordered.

On Siame’s claim for payment of all accrued benefits and contractual entitlements, judge Musona referred the item to the Registrar for assessment of what was due to him as terminal benefits.

However, IDC through its lawyer Lubinda Linyama of Eric Silwamba, Jalasi and Linyama Legal Practitioners, raised a preliminary application, objecting the inclusion of Siame’s salaries during assessment amounting to K4,307,214.55, from date of dismissal until full payment.

Linyama submitted on behalf of IDC that although the new Constitution imposed upon the employer a duty to maintain an employee on payroll until pension was paid, that must be pleaded in the original process and not raised at assessment since that was a legal right emanating from the Constitution.

He added that the Trial Court was not even invited to consider that relief.

But Siame’s lawyer State Counsel Musa Mwenye of Mwenye and Mwitwa Advocates, argued that the payment of terminal benefits was contained in IDC’s own submission and that whether the claim arose as a matter of contract, law or Constitutional imperative, they must be paid at the end of a contract.

He further submitted that the claim for payment of Siame’s monthly salary till the date of payment was contained in Siame’s affidavit in support of assessment.

Mwenye submitted that the Industrial Relations Court being a court of substantial justice should not be fettered with rules of procedure as section 85 (5) of Cap 269 mandates the court to dispense substantial justice.

He added that this court was unique and had separate rules although it was now at par with the other High Court divisions.

But in a ruling on assessment dated August 8, Nsokolo a Registrar, upheld IDC’s preliminary objection and ruled that he would not consider the payment of Siame’s monthly salary till full payment.

He said Siame’s claim should have been a major part of the whole trial and not come during assessment.

“In my ruling, the claim for maintaining Siame on the payroll until the whole judgement debit is paid, has come rather late in the day. It should not come during assessment. It should have been a major part of the whole trial,” stated Nsokolo.

“The maintenance of an employee on the payroll after retirement before his terminal benefits are paid is a Constitutional provision. As a Constitutional provision, it should have been pleaded in the pleadings so that the Trial Court and parties thereto could have applied their minds to it.”