Aaron Mwiya and Ors v Trade Kings (Z) Ltd (Appeal 161 of 2016) [2019] ZMSC 340 (26 August 2019)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 161 OF 2016 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: AARON MWIYA BACKSTAR SIANEMBA ISAAC MFUMBILWA ARNOLD MATYOLA 1st APPELLANT 2nd APPELLANT 3rd APPELLANT 4th APPELLANT ERICK CHIPITA JUDfClMY STH APPELLANT WILSON MUTAMBO 2th APPELLANT TEDDY PHIRI A#'** REGl£^ 4th APPELLANT AND TRADE KINGS (Z) LIMITED RESPONDENT Coram : Musonda DCJ, Kabuka and Mutuna JJS On 9th July 2019 and 26th August 2019 For the Appellant : Mr. F. Mudenda and Mr. G. Pindani of Messrs Chonta Musaila and Pindani For the Respondent : Mr. M. Mulele of Messrs G. M. Legal Practitioners JUDGMENT MUTUNA, JS, delivered the judgment of the court. Cases referred to: 1| National Breweries Limited v Mwenya (2002) ZR 118 J2 2) Undi Phiri v Bank of Zambia (2007) ZR 186 3) Contract Haulage Limited v Mumbuwa Kamayoyo (1982) ZR 13 4) Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 5) Me Call v Abelesz and another (1976) 1 ALL ER 727 6) The Attorney General v Mpundu (1984) ZR 116 7) Care International Zambia Limited v Misheck Tembo SCZ judgment No. 56 of 2018 8) Konkola Copper Mines Plc v Hendrix Mulenga Chileshe Appeal No. 94 of 2015 9) Swarp Spinning Mills Plc v Sebastian Chileshe and others (2002) ZR 10) Chintomfwa v Ndola Lime Limited (1999) ZR 172 11) Daka v Zambia Consolidated Copper Mines Limited Appeal No. 12 of 12) Nguleka v Furniture Holdings Limited (2006) ZR 19 13) Dennis Chansa v Barclays Bank SCZ/8/128/2011 14) First Quantum Mining and Operations Limited v Obby Yendamoh Appeal No. 206 of 2015 Legislation referred to: 1) Industrial and Labour Relations Act, Cap 269 2) Employment Act, Cap 268, as amended by Act No. 15 of 2015 Works referred to: 1) Employment Law (Cases and Material) revised edition by W. S. Mwenda, 2011, UNZA Press Lusaka Introduction J3 1) This appeal is against the decision of a Learned High Court Judge, Mulongoti J, (as she then was), which dismissed a claim launched by the Appellants for an order that their dismissal from employment by the Respondent was wrongful, unfair or unlawful. 2) The ground upon which the Learned High Court Judge dismissed the claim was that there were sufficient reasons justifying the Appellants' dismissal from employment, notwithstanding the Respondent's failure to follow the procedure laid down in the code of conduct, in effecting their dismissals. Background 3) The Appellants were all employees of the Respondent and worked in various capacities. They were also members of the employee union. 4) On 27th June, 2014 the Appellants, along with a number of their work mates, marched to the Ministry of Labour where they lodged a complaint against the Respondent J4 alleging that it was impeding them in the exercise of their right to affiliate to a union of their choice. The particulars being that the Respondent refused to allow the Appellants and others to switch their union membership from National Union of Commercial and Industrial Workers (NUCIAW) to Zambia Union of Administrative and Technical Workers (ZUTAW). 5) In the course of lodging the complaint, some of the Appellants were met by a television crew and gave an interview alleging certain wrong doing on the part of the Respondent. This interview was later aired on a local television station. 6) Later, the Respondent wrote to the First, Second, Third, Fifth, Sixth and Seventh Appellants informing them that they were summarily dismissed from employment for dishonest conduct. As such, their employment with the Respondent was terminated with immediate effect. These Appellants were given an option to appeal which they did not exercise. J5 7) In the case of the Fourth Appellant, he was served with a letter charging him with an unspecified offence and asked to exculpate himself within a certain period of time. He did not respond to the letter which prompted the Respondent to dismiss him. 8) The Appellants were paid what the Respondent determined to be their dues on separation. They were aggrieved by the decision of the Respondent prompting them to institute proceedings in the High Court. The Appellants' claim and Respondent's defence in the High Court 9) The Appellants' claim in the High Court was for: damages for wrongful, unfair and unlawful dismissal from employment; damages for anguish, mental stress and torture; payment of terminal benefits and accrued leave days; and interest on the monetary awards, 10) The contention by the Appellants was that in effecting their dismissals the Respondent failed to follow laid down procedure. The allegations being that there was no J6 investigation of the alleged offences, nor were they formally charged; or given an opportunity to exculpate themselves. They also contended that they were not given an opportunity to appeal against the Respondent's decision because they were denied access to the Respondent's office premises. The Appellants also claimed that they were not paid their leave days entitlement. 11) In its defence, the Respondent contended that it followed the laid down procedure in effecting the dismissals. It stated that it was entitled to terminate the services of all of them instantly, except one of them whom it charged and gave an opportunity to exculpate himself. He, however, failed and or neglected to exercise this right. Consideration by the Learned High Court Judge and decision 12) The Learned High Court Judge heard the parties' witnesses and considered the pleadings and submissions filed. She found the issue for determination was whether or not the Respondent was justified in terminating the J7 services of the Appellants in view of their conduct. She found as a fact that the Respondent did not charge the Appellants or give them an opportunity to be heard prior to their dismissal. This, she held to be a breach of the disciplinary code. 13) The Learned High Court Judge then considered whether the Respondent was justified in exercising the disciplinary action against the Appellants. The question she posed here was, were there facts established in the disciplinary process to support the exercise of disciplinary power vested in the Respondent? In considering the question she referred to the principle we stated in the cases of National Breweries Limited v Mwenya1 and Undi Phiri v Bank, of Zambia2. These cases say where an employee has committed an offence for which he can be dismissed, no injustice arises for failure by the employer to comply with the procedure stipulated in the contract of employment and such an employee has no claim on that ground for wrongful dismissal or a declaration that the dismissal is a nullity. J8 14) The Judge examined the conduct of the Appellants in light of the two decisions set out in the preceding paragraph and found that it justified the exercise of disciplinary power by the Respondent. Her findings were that, the Appellants as union leaders, led a procession of about one hundred and fifty workers to Ministry of Labour and lodged a false complaint against the Respondent. The fact of wrong doing on the part of the Appellants having been established, it was inconsequential, that disciplinary procedure was not followed. 15) In respect of the Fourth Appellant, she found that he was charged and given an opportunity to exculpate himself which he failed to do. Although he was on leave, he was part of the group which went to the Ministry of Labour and actively participated in the events that took place. 16) In conclusion, the Learned High Court Judge found, on a balance of probabilities, that the dismissal from employment of the Appellants by the Respondent was not unfair, illegal or wrongful. The claim, therefore, failed on J9 those grounds. She however, found in favour of the Appellants in respect of their claim for unpaid leave days and ordered the Respondent to pay them any outstanding claims in that regard. 17) The Appellants are aggrieved by the decision of the Learned High Court Judge, hence this appeal. Grounds of appeal to this Court and arguments by the parties 18) The Appellants have raised seven grounds of appeal as follows: 18.1 The learned trial Judge in the Court below erred in law and fact by holding that the summary dismissals of the Appellants were not unfair, and or illegal and or unlawful ignoring the protected rights of an employee in participating in union activities which prevent an employer from dismissing such employee from employment; 18.2 The learned trial Judge erred in law and in fact by holding that the Fourth Appellant was part of the group which went to Ministry of Labour when he was lawfully granted leave from work during the period of the visit to Ministry of Labour; 18.3 The learned trial Judge misdirected herself in law and in fact by dismissing the claim for mental anguish and J10 inconvenience contrary to the overwhelming evidence on record; 18.4 The learned trial Judge erred in fact by holding that the Appellants as the executive committee of the union at the Respondent company lead about 150 workers to the Ministry of Labour when they had ceased to be leaders of the union and all employees went on their own; 18.5 The Learned trial Judge in the Court below erred in law and in fact when she held that the Appellants' summary dismissals were not unfair and/or illegal and/or wrongful; 18.6 The Learned trial Judge in the Court below erred in law and in fact when she held that the Respondent was justified in summarily dismissing the Appellants when the Appellants' dismissal[s] were contrary to the rules of natural justice; 18.7 The Learned trial Judge erred in law and in fact when she relied on the cases of National Breweries Limited v Mwenya (2007) ZR 118 (SC) and Undi Phiri v Bank of Zambia (2007) 186 in holding that the actions of the Appellants in leading about 150 workers to Ministry of labour warranted instant dismissal. 19) The thrust of the arguments by counsel for the Appellants, Mr. F. Mudenda and Mr. G. Pindani, under ground 1 of the appeal was that the Appellants' dismissal from employment was unfair and unlawful because it Jll arose out of their exercise of the rights under Sections 5 and 36, respectively, of the Industrial and Labour Relations Act and The Employment Act. They argued that in terms of those two sections, employees, such as the Appellants, have a right to belong to a union of their choice and participate in its activities, unhindered by their employer. An employer shall not, therefore, terminate the contract of employment of an employee because he exercises his right to join a union and participate in its activities. The activities, it is alleged the Appellants were involved in, which prompted their dismissals, were all in pursuit of the exercise of their rights under these two sections. 20) Further, the Ministiy of Labour is a regulator of employment activities to which any employee who is aggrieved by the conduct of his/her employer can present his grievance. Counsel contended further that the Appellants' visit to the Ministry of Labour was during their free time as they had been in the night shift the previous day, whilst the Fourth Appellant was on leave. J12 As such, they did not breach the rule that an employee's participation in union activities should not interfere with work schedules. 21) Concluding arguments under ground 1 of the appeal, Counsel, without elaborating, quoted from our decision in the case of Contract Haulage Limited v Mumbuwa Kamayoyo3 and the learned author W. S. Mwenda in Employment Law (Cases and Materials) revised edition. In the Contract Haulage3 case we, inter alia, explained the right of an employer to terminate services of an employee in a purely master servants relationship and consequence of failure to comply with the provisions of the contract in effecting such termination. 22) The passage from the book by the learned author W. S. Mwenda is at page 136 and it distinguishes wrongful dismissal from unfair dismissal. 23) In regard to ground 2 of the appeal, counsel challenged the interpretation given by the Learned High Court Judge to the Fourth Appellant's failure to exculpate himself after he was charged by the Respondent. They argued J13 that the finding by the Judge that this was a sign of his guilt was wrong because she failed to appreciate that his failure to exculpate himself was due to the fact that he did not understand the charge as it did not specify the offence he is alleged to have committed or the provision of the disciplinary code breached. 24) Counsel also attacked the finding that it was the entire union executive committee which led the about one hundred and fifty workers to the Ministry of Labour. They argued that the Appellants were no longer in the union leadership and the Fourth Appellant was on leave and no evidence was led to show that he was in the procession which went to the Ministry of Labour. As such, since there was no evidence on record to support the finding by the Learned High Court Judge we must interfere with the finding in accordance with the case of Wilson Masauso Zulu v Avondale Housing Project Limited4 in regard to findings of fact made by a trial Court which are perverse or made in the absence of evidence. J14 25) In ground 3 of the appeal, counsel justified the Appellants' claim for damages for mental anguish and inconvenience in the Court below on the ground that their employment contracts were terminated abruptly. They then quoted passages from the English case of Me Call v Abelesz and another5 and our decision in the case of Attorney General v D. G. Mpundu6 in which we confirmed that a Court can make an award for damages for mental distress and inconvenience. The Me Call case involves a dispute under the English Rent Act of 1965 which has no bearing on the issues before us. It was quoted out of context by counsel. 26) Arguing ground 4 of the appeal, counsel restated their arguments under grounds 1 and 2. The emphasis being that their clients had ceased to be union leaders and, as such, could not have led the about one hundred and fifty employees who marched to the Ministry of Labour. 27) The arguments by counsel in relation to grounds 5 and 6 were simply that having found that the Respondent did not follow the disciplinary code, the Learned High Court J15 Judge erred when she held that the Appellants' dismissals were not unlawful, unfair or a breach of natural justice. Counsel quoted at great length our decision in the case of Care International Zambia Limited v Misheck Tembo7 where we distinguished wrongful dismissal from unfair dismissal. In addition, counsel referred to the case of Konkola Copper Mines Plc v Hendrix Mulenga Chileshe8 which speaks to when a dismissal from employment will be rendered unlawful. 28) Lastly, under ground 7 of the appeal, counsel attacked the reliance on the two decisions in the National Breweries Limited v Mwenya1 and Undi Phiri v Bank of Zambia2 by the Learned High Court Judge, in arriving at her decision that the Respondent was entitled to terminate the Appellants' employment as there was wrong doing on their part. They argued that the circumstances in this case must be distinguished from those in the two cases because in the latter cases, there was admission of wrong doing on the part of the J16 employees while there was no such admission in this case. 29) In relation to the relief and damages the Appellants were entitled to as a consequence of their dismissals, counsel referred us to the authorities on the appropriate measure of damages in cases where; the termination is inflicted in a traumatic fashion; and there is diminished future job prospects for the ex-employee. These are Swarp Spinning Mills Plc v Sebastian Chileshe and others9, Chintomfwa v Ndola Lime Limited10, Daka v Zambia Consolidated Copper Mines Limited11 and Nguleka v Furniture Holdings Limited12. Counsel emphasized that the Appellants were employed on a permanent and pensionable basis which assured them of peace of mind. The abrupt termination of employment was, as a result, traumatic. 30) In addition, counsel argued that the conduct of the Appellants did not amount to an offence because, all they did was march to Ministry of Labour and air their grievance. The march was necessitated by the fact that J17 attempts at an amicable resolution to their grievance with the Respondent on their need to change union membership had reached an impasse. Here, Mr. Mudenda was emphatic that there was absolutely no wrong doing in the manner his clients sought to air their grievance. 31) We were urged to allow the appeal. 32) In response to grounds 1, 5, 6 and 7, Mr. G. Mulele argued that since the offence of dishonest conduct was proved and it carried a sanction of summary dismissal, the finding by the Learned High Court Judge to this effect could not be faulted. He argued that the Appellants' act of leading about one hundred and fifty co-workers to lodge a false complaint at the Ministry of Labour was sufficient ground for the Respondent to terminate their services on the ground of dishonest conduct. 33) Counsel concluded that the Learned High Court Judge was on firm ground when she found that the Appellants had committed an offence warranting dismissal in line with our decision in the case of National Breweries J18 Limited v Mwenya1. According to counsel, the position taken by the Judge was affirmed by the Appellants' own admission that their conduct was dishonest. 34) In regard to ground 2 of the appeal, Mr. G. Mulele was gracious enough to concede that the evidence led in the Court below did not support the finding by the Learned High Court Judge that the Fourth Appellant participated in the events of the day in issue. 35) Responding to grounds 3 and 4 of the appeal, Mr. G. Mulele urged us to dismiss these grounds because there was no evidence led in the Court below on the claim for mental anguish and inconvenience. He also conceded that the finding of fact that the Appellants led the procession to the Ministry of Labour in their capacity as union executive members was flawed because they had ceased to be union executive members. He however, argued that they led the procession notwithstanding that they were no longer in the leadership of the union. 36) We were urged to dismiss the appeal. Consideration by this Court and decision J19 37) After considering the record of appeal and arguments by counsel two issues arise out of the seven grounds of appeal raised by the Appellant. The first issue relates to grounds 1, 3, 4, 5, 6 and 7 of the appeal and it is whether or not the Court below erred when it found that the termination of employment of the Appellants by the Respondent was not wrongful because there was sufficient grounds for terminating their employment, notwithstanding the fact that procedure was not followed. 38) The second issue relates to ground 2 of the appeal. It is, did the Learned High Court Judge misapprehend facts when she found that the Fourth Appellant was present at the demonstration held at the Ministry of Labour? 39) Regarding the first issue, the undisputed facts of this case are that on the material day the First, Second, Third, Fifth and Sixth Appellant were in a procession along with about one hundred and fifty other employees of the Respondent which went to the Ministry of Labour during working hours to lodge a complaint against the Respondent. The Appellants are former union leaders J20 having been part of the union committee that was suspended in April, 2014. 40) In addition, the evidence shows that the First Appellant and the other Appellants played a leading role in presenting the grievance to the officials at Ministry of Labour. This is notwithstanding our agreement with the Appellants' arguments that they were no longer in the leadership of the union. The First Appellant admits that he was upstairs at the Ministry talking to officials and that he, the Fifth and Sixth Appellants gave interviews to a television crew that came on the scene. Consequently, we cannot fault the finding by the Learned High Court Judge that the particular Appellants led the procession. We accordingly dismiss their argument that they did not lead the procession. 41) In relation to the Appellants' contention that they were engaged in union activities outside working hours because they were in the night shift, the provisions of the Industrial and Labour Relation Act and the Employment Act (as amended) referred to us by the J21 Appellants do indeed give employees rights to join a union and engage in union activities at appropriate times. They also bar an employer from dismissing an employee solely on grounds of his or her belongings to a union and engaging in union activities at permitted times. However, the facts of this case reveal that although the concerned Appellants may have been on night duty and thus off duty during the procession, they coerced and enticed about one hundred and fifty other employees to march to the Ministry of Labour to register their grievance. 42) The position we have taken is that the acts of these six Appellants of mobilizing other workers was deliberate and a show of force which was by and large, riotous and aimed at compelling the Respondent to yield to their demands. To this extent, the conduct was dishonest because it was done under the guise of exercising their rights to participate in union activities. Consequently, the findings by the Learned High Court Judge in that regard cannot be faulted. J22 43) We have arrived at the decision in the preceding paragraph after having regard to the argument by the Appellants that the facts of this case should be distinguished from those in the cases of National Breweries Limited v Mwenya1 and Undi Phiri v Bank of Zambia2. The argument by counsel for the Appellants was that in the two cases there was an admission of wrong doing by the ex employees, therefore, the Court was on firm ground in holding that there was sufficient evidence of wrongdoing on their part to warrant their dismissals. That in this case there is no such admission, hence, the principle in those two cases is not applicable. 44) The context in which we articulated the principle in the two cases under discussion is that an employer only needs to prove that there is sufficient wrongdoing on the part of the employee to warrant his dismissal. That is, the employee committed a dismissible offence, although, the procedure for disciplining him was not followed. This is evident from the holdings in the two cases which do not have a rider to them to the effect that along with J23 evidence of wrongdoing, there must be an admission of such wrongdoing by the employee. 45) The Appellants' predicament is compounded by the fact that their presence at the Ministry was not in an official capacity as union leaders. The evidence of the Respondent's second witness in the Court below attests to this fact when he said that as Chairperson of NUCIAW he was aware that the protest by the Appellants and others was not official. Further, although, we agree that to a certain extent and within permitted boundaries, representatives of aggrieved employees can lodge a complaint against an employer with the appropriate officer at the Ministry of Labour, we do not agree with the Appellants' contention that their procession was one such example because, in our view, it was done in a riotous manner. 46) The effect of what we have said in the two preceding paragraphs is that grounds 1, 3,4 5, 6 and 7 of the appeal must fail and we so order. . ft J24 47) Turning to the Fourth Appellant, he has contended that he was not present at the procession because he was on leave and he did not exculpate himself after he received the charge letter from the Respondent because he did not understand the charge leveled against him. 48) A review of the evidence tendered in the Court below does not support the finding made by the Learned High Court Judge, that the Fourth Appellant participated in the procession and, as we have said earlier, Mr. G. Mulele conceded that the finding was erroneous. We, for this reason, set aside the finding of fact. 49) In relation to the Fourth Appellant's contention that he did not exculpate himself because he did not understand the charge, we agree with the argument in support of this contention that the Respondent had a Standard Complaint Form which provides for: the nature of the complaint; the need for the person charged to exculpate himself; and the particulars of the charging officer. A sample of a charge sheet containing these details is at page 151 of the record of appeal. A perusal of the letter J25 written to the Fourth Appellant by the Respondent purporting to be a charge letter which is at page 147 of the record of appeal shows that it is bereft of a specific charge in that it does not reveal the offence he is alleged to have committed. We agree that in the form that it is in, it did not enable the Fourth Appellant to understand the charge and thus respond to it. Ground 2 of the appeal must, therefore, succeed because the evidence shows that there was a procedural flaw which renders the Fourth Appellant's dismissal wrongful. 50) In view of the holding in the preceding paragraph, the issue is what is the relief which the Fourth Appellant is entitled to? We begin our determination of this issue with a consideration of whether he is entitled to damages for anguish, mental stress and torture. The relief was claimed in the writ of summons and statement of claim but it was not specifically pleaded in either documents by way of setting out the contentions in relation to the claim. Further, and as Mr. G. Mulele has argued, no evidence was led by the Fourth Appellant in his J26 testimony in the Court below in support of the claim. There is no reason for us to award these damages as claimed. 51) The other relief relates to our holding that the dismissal was wrongful. In the Care International Zambia Limited case referred to us by counsel for the Appellants we reiterated that the mode of an employee's exit from employment determines the relief he/she will be entitled to. We also stated that wrongful dismissal is a dismissal which is contrary to the contract and its roots lie in the common law. The remedy in such a case, if any, is usually limited to payment for the notice period. We contrasted, this from unfair dismissal which we said is contrary to statute, and is, therefore, usually a much more substantial right for the employee. By parity of reasoning, the consequences to the employer are much more serious than those under wrongful dismissal. 52) Applying this test to the case with which we are confronted, the facts show that the dismissal of the Fourth Appellant by the Respondent was wanting 45 a J27 because it did not follow the laid down procedure in the disciplinary code. This code forms part and parcel of the conditions of service, which are the contract of employment. We must conclude the termination was contrary to the contract, therefore, wrongful. 53) Earlier in this judgment and other cases we gave guidance on the measure of damages in cases of wrongful dismissal as being tied to the notice period. This is in line with our decision in the Swarp Spinning Mills case and most recently the Care International Zambia Limited case which we have alluded to under paragraph 29. The former expresses the view that we will depart from this principle where the circumstances and justice of the case so demand as where the dismissal has caused undue distress or mental anguish or the circumstances are such that it will be difficult for the Plaintiff to get fresh employment. This is but to mention two examples. 54) The notice period in relation to the conditions the Fourth Appellant was employed under is contained in the collective agreement, particularly clause 27 at page 98 of J28 the record of appeal. It is thirty days. We are of the firm view that the circumstances of this case are such that an award of one month's salary, equal to the thirty days notice, would not be sufficient recompense having regard to prospects of future employment for the Fourth Appellant. The principle in the Swarp Spinning Mills case invites us to have regard to the current employment market in the country which is bleak and the chances of the Fourth Appellant being re-employed are quite slim. The circumstances, compel us to mitigate his situation by awarding him twenty four months salary as damages in line with the approach we took in the Dennis Chansa v Barclays Bank of Zambia13 case and recently, the case of First Quantum Mining and Operations Limited v Obby Yendamoh14. 55) The award of damages is with interest at the short term bank deposit rate from the date of writ of summons to date of this judgment and thereafter at the current bank lending rate as determined by Bank of Zambia, until date of payment. J29 Conclusion 56) The net result of this appeal is that it is dismissed on grounds 1, 3, 4, 5, 6 and 7, in relation to the First, Second, Third, Fifth, Sixth and Seventh Appellants and allowed on ground 2 in relation to the Fourth Appellant. 57) We award costs to the Fourth Appellant, to be taxed in default of agreement but make no order in relation to the other Appellants in view of the circumstances of this case. J. K. KABUKA SUPREME COURT JUDGE