AB Bank Zambia Ltd V Benjamin Nyirenda (Appeal 8 58 of 2020) [2022] ZMCA 73 (15 September 2022)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 58/2020 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: AB BANK ZAMBIA LIMITED AND BENJAMIN NYIRENDA CORAM: Chishimba, Majula and Muzenga JJA On: 18th November, 2021 and 15th September, 2022 For the Appellant: Mr. J. C. Kalokoni - Messrs Kalokoni & Co. For the Respondent: Mrs. F. Machiya - Messrs John Chibalabala Legal Practitioners JUDGMENT Muzenga, JA, delivered the Judgment of the Court. Cases referred to: 1. Zambia National Provident Fund v Yekweniya Chirwa (1986) ZR 70 2. Posts and Telecommunications Corporation Limited v Salim Jack Phiri (1995) ZR 61 3. Edward Mweshi Chileshe v Zambia Consolidated Copper Mines Limited (1996) ZR 148 (SC) J2 4. Undi Phiri v Bank of Zambia (2007) ZR 186 5. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172 6. Zambia Airways Corporation Limited v Gershom BB Mubanga (1992) ZR 24 (SC) 7. Chansa Ng'onga v Alfred H. Knight (Z) Limited - Complaint No. 49 of 2015 8. Standard Chartered Bank PLC v Celine Meena Nair - Court of Appeal No. 14 of 2019 9. Priscilla Ngenda Simvula Kalicilira v Zambia National Commercial Bank PLC - SCZ Judgment No. 8 of 2015 10. First Quantum Mining and Operations Limited v OB Yendamoh - SCZ Judgment No. 8 of 2018 11. Kawimbe v The Attorney General (1974) ZR 44 12. National Breweries Limited v Mwenya - SCZ Judgment No. 28 of 2002 13. Barclays Bank PLC and Weston Luwi and Suzyo Ngulube - Appeal No. 07 of 2012 14. Augustine Kapembwa v Danny Maimbolwa and Attorney- General (1981) ZR 127 15. Austine Mubanga v Grinaker Limited - Appeal No. 63 of 16. Ngwira v Zambia National Insurance Brokers - SCZ Judgment No. 9 of 1994 Legislation referred to: 1. Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. 1 .0 INTRODUCTION 1.1 This appeal is against a Judgment of the High Court, Industrial Relations Division delivered on 11th February, 2020, by Mwansa J, in .1 J3 which the court found that there was discrimination in the manner the complainant, now the respondent was dismissed from employment. The court also found that there was no wrongful dismissal and that the respondent did not provide sufficient evidence to support his claim for damages for mental anguish. The trial judge awarded 36 months gross salary as damages for unfair dismissal. Aggrieved with this decision the appellant lodged this appeal and the respondent went on to file a cross appeal. 2 .0 BACKGROUND 2.1 The background of this matter is that by notice of complaint and affidavit in support filed in the High Court Industrial Relations Division, Mr. Benjamin Nyirenda sued the appellant alleging that he had been wrongfully dismissed. He sought the following reliefs: (i) Damages for wrongful dismissal; (ii) Damages for discriminatory termination of employment; (iii) Damages for mental anguish; (iv) Interest and costs. 2.2 The appellant filed an Answer which was supported by an affidavit. In its Answer, the appellant avowed that the respondent was properly dismissed from employment after subjecting him to a proper disciplinary hearing. The appellant denied that the termination of the J5 3.4 He averred that the appellants Human Resource Officer proceeded to constitute a disciplinary hearing at which members of the disciplinary committee read out messages from their respective phones purported to have been obtained by his wife from his phone. He averred that he was never shown those messages and neither were there witnesses to verify the same. 3.5 In the affidavit in support of the complaint, he avowed that he questioned the objectivity and impartiality of the panel on the grounds which included, invasion of his privacy, disregard of his matrimonial home by using his wife to extract messages from his phone without his knowledge and approval as evidence for the panel. He averred that he questioned the interest of some of the parties who constituted the disciplinary panel, who could have declared interest for not only being his immediate supervisors but also close colleagues and friends to his wife. 3.6 He further avowed that in his dismissal letter, the appellant stated that his appeal was unsuccessful as according to its code of conduct, dishonesty was a dismissible offence and that as a Branch Manager, he was expected to not only uphold the code of conduct but also to lead by example. He averred further that the offence of dishonesty relied upon by the respondent to justify the wrongful dismissal is J6 outside the provisions of clause 5.4 of the employee's guide which defines what constitutes dishonesty, and does not include relationships and partnerships between employees as stated under clause 4.16 of the employee's guide. 3.7 He contended that he was never charged with any offence from the schedule of offences, and that the appellant relied on clause 4.16 of the code of conduct, which does not create an offence but merely provides guidelines to the employees on how to conduct themselves in the course of their employment. 3.8 In the affidavit in support of the answer, the appellant averred that it did receive a complaint from the respondent's wife and they followed the laid down procedure in dealing with the matter. It was avowed that the respondent wasted the committee's time by denying the inappropriate relationship that he had with his subordinate clearly exposing his dishonesty and abuse of office for his selfish personal gain. 3.9 The appellant avowed that given the circumstances of the case, the appellant opted to terminate the respondent's employment for dishonesty and breach of the Bank's codes. The appellant told the court that the respondent never questioned the composition of the disciplinary committee at or during the hearing. Further, the appellant J7 stated that the offences outlined in the disciplinary code are mere guides and cannot prevent the Bank from charging an employee with appropriate offences depending on the situation. 3.10 It was avowed that the offence of dishonesty was as a result of the fact that the respondent failed to disclose his relationship with his subordinate as required by the code of conduct. It was averred that the Bank requires its staff to maintain the highest possible professional, moral, ethical and personal integrity which the respondent fell short of and according to the bank code, this failure constituted gross misconduct. 4.0 EVALUATION OF THE EVIDENCE AND DECISION OF THE LOWER COURT 4.1 After analysing the evidence before him, the trial judge reasoned that the fact that the respondent was the only one who was dismissed for an offence committed jointly and whilst acting together with his subordinate, the requirements for Section 108 of the Industrial and Labour Relations Act1 had been satisfied to the effect that he was unfairly dismissed. Section 108 provides as follows: "No employer shall terminate the services of an employee or impose any other penalty or disadvantage on any employee, on grounds of race, sex, marital status, religion, political opinion or affiliation, tribal extraction of the employee J9 organisation who is supposed to set an example to others cannot amount to discrimination at all. (3) The learned trial judge erred in law by making a finding of discrimination without any evidence adduced to support it. (4) The trial court erred in law in awarding the respondent 36 months' salary without taking into account his conduct and the legal principle of mitigation of loss. (5) The trial court misdirected itself in law by rewarding the lawfully dismissed respondent with costs without considering his conduct and the directions by the Supreme Court on costs in the Industrial Relations Court matters. 6 .0 APPELLANT'S ARGUMENTS 6.1 The appellant's learned counsel filed heads of argument in support of the grounds of appeal. The first three grounds were argued together and the last two were also argued together. 6.2 In support of ground one to three of the appeal, it was contended that the question of law that ought to have been answered by the court below is whether a lawfully dismissed employee can claim discrimination. We were referred to the case of Posts and Telecommunications Corporation Limited v Salim Jack Phiri2 where the Supreme Court held that "discrimination generally can J10 never be a ground for finding that a person has been improperly dismissed, and could never give rise to an order of compensation or reinstatement under the section." 6.3 Counsel contended that the trial court having found that the respondent was lawfully dismissed, the claims for reinstatement and damages for discrimination cannot succeed. In support of this, we were referred to the case of Edward Mweshi Chileshe v Zambia Consolidated Copper Mines Limited3 where it was held that "the rule (the law of discrimination on the ground of social status) could not have been designed to benefit or to protect workers who are guilty of wrong doing a fact which is sufficient to warrant the termination, penalty or disadvantage inflicted." 6.4 According to the appellant, the second question that needs determination is whether imposing a stiffer penalty on a senior staff can amount to discrimination. In relation to this, we were invited to consider the case of Undi Phiri v Bank of Zambia4 where the Supreme Court echoed as follows: "we add, there is no evidence that the other persons were also in a position of bank inspectors like the plaintiff. The plaintiff was in a crucial position....... in the position the plaintiff was, his conduct did Jll not only compromise his integrity but also made him a liability to the defendant." 6.5 It was the appellant's further contention that the third question for determination is whether the respondent adduced any evidence to prove discrimination. The appellant submitted that the trial court made a finding of fact on discrimination without any evidence on record to support it. The case of Wilson Masauso Zulu v Avondale Housing Project Limited5 was brought to our attention. In this case the Supreme Court held that: "I think that it is accepted that where a plaintiff alleges that he had been wrongfully or unfairly dismissed, as indeed in any other case where he makes any allegations, it is generally for him to prove those allegations. A plaintiff who has failed to prove his case cannot be entitled to judgment, whatever may be said of the opponents' case." 6.6 Counsel urged us to set aside the finding of the court below that there was discrimination on the ground of sex. 6.7 In support of ground four and five of the appeal, it was contended that the trial court misdirected itself and erred in law by awarding the respondent 36 months' salary without considering the respondent's conduct and the legal principles applicable, and by rewarding the lawfully dismissed respondent with costs without considering his J12 conduct and legal principle of mitigation of loss as espoused in the case of Zambia Airways Corporation Limited v Gershom BB Mubanga6 and the case of Chansa Ng'onga v Alfred H. Knight (Z) Limited7. It was contended that the facts in this case show no justification to why this court must deviate from the guidance of the Supreme Court. It was submitted that it is inconceivable how the court could award damages to the respondent when the court had properly directed itself that the respondent committed a dismissible offence and that he was lawfully dismissed. In addition, it was contended that the respondent never pleaded damages for unfair dismissal which he was awarded in form of 36 months' salary. 6.8 On the award of costs, it was contended that the trial court misdirected itself in law by awarding the lawfully dismissed respondent with costs without considering Rule 44(1) of the Industrial and Labour Relations Act1, his conduct and the direction by the Supreme Court on costs in Industrial Relations Court. We were referred to the case of Standard Chartered Bank PLC v Celine Meena Nair*. It was submitted that the appellant did not behave in any way that would warrant the court to award costs against them. It was the appellant's prayer that the award of costs J13 to the respondent be set aside and that this appeal be upheld with each party bearing its own costs. 7 .0 RESPONDENT'S ARGUMENTS 7.1 In responding to grounds one, two and three, it was submitted on behalf of the respondent that from the evidence on the record, it is evident that the respondent was treated differently from Dorothy Kalolo whom he had a relationship with. It was submitted that the appellant Bank has three major policy codes, namely, AB Bank Zambia Disciplinary Policy and Procedures Code, AB Bank Zambia Employee Guide and the AB Bank Zambia Human Resource Manual. The Employee Guide on one hand is meant to inform the employee of their core responsibilities including their legal responsibility during their employment with the appellant Bank while the Disciplinary Policy and Procedures on the other hand is meant to ensure that proper disciplinary procedures are carried out consistently throughout the Bank, so that short falls of the workers, discipline and performance results of staff members can be addressed in a swift, fair and transparent manner. While the Human Resource Manual, provides information on all human resources policies and procedures that are applicable throughout AB Bank Zambia Limited which apply to all employees. J14 7.2 It was the respondent's further argument that universal to all the three codes of conduct is a schedule of offences which sets out the offences and punishment that can be imposed on an erring employee who is guilty of contravening any of the provisions therein. It was submitted that if the appellant's Disciplinary Policy and Procedures provide that having an affair with a fellow employee in the same branch is a dismissible offence, then both the respondent and Dorothy Kalolo should have been dismissed. It was counsel's contention that the fact that Dorothy Kalolo was not dismissed for the same offence as committed by the respondent, it is clear that the respondent was discriminated against. 7.3 It was the respondent's contention that the appellant's Disciplinary Policy and Procedures does not allow the appellant discretion to treat the respondent and his co-accused differently on account that the intent of the Disciplinary Policy and Procedures is to ensure uniformity in the disciplining of the employees of the appellant Bank. In support of this argument we were referred to the case of Priscilla Ngenda Simvula Kalicilira v Zambia National Commercial Bank PLC9 where the Supreme Court held that: J15 "The penalty for any related offences should be as provided for in the Disciplinary Code of Conduct for Employees." 7.4 It was submitted that there is enough evidence on record to prove that there was discrimination in the manner the respondent was dismissed. With respect to the appellant's argument that a lawfully dismissed employee cannot claim discrimination, the respondent agreed with the appellants and stated that they took issues with that part of judgment and would be addressing the same in the cross appeal. 7.5 In responding to grounds four and five, it was the respondent's contention that the court below in arriving at its decision to award the respondent 36 months' salary as damages, it took into account the principles enunciated in the case First Quantum Mining and Operations Limited v OB Yendamoh10, and as such, the court cannot be faulted for making such award. The case of Kawimbe v The Attorney General11 was brought to our attention where it was held that: "An appellate court should not interfere with the findings of the trial court as to the amount of damages merely because the appellate court is of the view that if it had tried the case in the first instance it would have given a lesser sum." J16 7.6 Counsel submitted that the trial court considered 36 months as a fitting award to the respondent and in doing so, called in aid the First Quantum Mining case where the Supreme Court refused to disturb an award of 36 months in damages. 7.7 In responding to the argument for awarding costs, it was the respondent's contention that in general, costs follow the events. That where a party is successful, such party deserves an award of costs and the ward of costs is at the discretion of the court. It was further submitted that nothing on record shows that the court did not properly exercise its discretion to award the respondent the said costs. It was contended that the respondent is mindful of the guidance of this court in the Standard Chartered Bank Zambia PLC case cited above, however the same does not entail that the trial court should not award costs at ali. But that the court in awarding costs in the Industrial Relations Division, should be mindful of the provisions of Rule 44/1 of the Industrial and Labour Relations Act. We were urged to dismiss the appeal as it lacks merit. 8 .0 THE CROSS APPEAL 8.1 On 8th June, 2020, the respondent filed a notice of cross appeal and forwarded two grounds couched as follows: J17 1. The judgment be varied in so far as it states that there was no wrongful dismissal of the respondent from the appellant Bank on the ground that the evidence on record clearly established that the respondent was wrongfully dismissed and that the disciplinary machinery that was put in place by the appellant was not properly in motion. 2. The judgment should be varied in so far as it states that the respondent did not suffer any mental anguish on the ground that the evidence on record clearly establishes that the respondent did suffer mental anguish. 9 .0 RESPONDENTS ARGUMENT IN SUPPORT OF THE CROSS APPEAL 9.1 In support of ground one, it was contended that the judgment of the court below should be varied in so far as it states that there was no wrongful dismissal of the respondent from the appellant bank on the ground that the disciplinary machinery that was put in place by the appellant was not properly set in motion. It was submitted that the following were done contrary to the provisions of the disciplinary policy and procedures as follows: 1. The query issue to the respondent was not in prescribed form as it did not inform the respondent the offence charged with, reference to the bank regulations breached, date or time of the alleged misconduct and so on. J18 2. The query was not issued by the respondent's supervisor as required by the disciplinary policy and procedure. 3. That no informal talk in a confidential meeting between the erring employee and the line manager was had before administering a query as required by the disciplinary policy and procedure code. 4. That the appellant did not invite the respondent to the hearing of his case in the manner provided for in its disciplinary policy and procedure code thereby denying the respondent justice. According to the respondent, the letter of summons is an important document in the disciplinary process as it informs the employee of the offence one stands charged with, the participants in the disciplinary hearing, the need to call a witness and it also avails the charged employee with an opportunity to review or question the witness statements. 5. Lastly, that the members of the committee who constituted the panel that heard the respondent's case had no jurisdiction to hear and determine the respondent's case. 9.2 It was contended that according to the Disciplinary Policy and Procedure Code, for a disciplinary committee to be established for an offence related to misconduct, it shall consist of the following members; two managers from departments other than that of the offending employee, one of whom shall be chairperson (the choice of the managers needs to be appropriate, e.g a line manager from an J19 operational department cannot hear a case for someone more senior in the head office). An official from HR Department and if applicable, one legal officer. If necessary, the supervisor of the employee might be invited to a separate hearing as well. 9.3 It was contended that the disciplinary committee which heard and determined his matter consisted of the respondents immediate supervisor and the human resource officer who queried him. In support of this argument we were referred to the case of National Breweries Limited v Mwenya.12 It was the respondent's further contention that the facts of this matter are in tandem with the above cited case, as the named human resource officer who queried the respondent was part of the disciplinary committee, which breached the rules of natural justice. 9.4 In addition, it was submitted that it is clear from the record that the respondent was charged with an offence set out in clause 4.16 which does not make having relationship or partnerships an offence. All that is required is disclosure. It was contended further that according to the committee's finding that the respondent's actions were immoral and unprofessional, which is offence number 27 in the schedule of offences, the sanction or penalty for the same was J20 supposed to be a final written warning as opposed to dismissal at first beach. 9.5 According to the respondent, what was indicated in his dismissal letter was that he was dismissed for misconduct which offence is not provided for under the appellant's disciplinary policy and procedure code. On appeal, the respondent was found guilty of an offence of dishonesty which the respondent was never charged with nor heard on during his hearing. 9.6 Given the foregoing we were urged to find that the respondent had been wrongfully dismissed from employment and to further find that the court below misdirected itself when it held that the appellant's disciplinary mechanism was properly set out and that it is settled that the offence of two adults who work in the same branch falling in love is an offence attracting dismissal. 9.7 In support of ground two, it was contended that the trial court's judgment ought to be varied on the part that the respondent did not suffer mental anguish. It was submitted that the respondent suffered mental anguish as a result of the loss, harassment and embarrassment arising from the unfair disciplinary process conducted by the appellant. At the time of the termination, the respondent was studying in Germany and the said studies were unprofessionally J21 cancelled a night before his departure. We were referred to the case of Barclays Bank PLC and Weston Luwi and Suzyo Ngulube13 where the Supreme Court observed as follows: "In the Farley v Skinner, the House of Lords held that a trial court can on the evidence before it, award damages for inconvenience, discomfort or distress and that such award must be a modest sum. The learned authors of Halsbury's Laws of England state that at paragraph 959; where mental suffering is directly related to some physical discomfort or inconvenience caused to the innocent party by the breach, the damages awarded can include a sum to reflect the suffering." 9.8 That the respondent demonstrated that he suffered some physical discomfort, inconvenience and loss of career prospects as a result of the sudden loss of his employment which was unfairly and wrongfully conducted and thus the court below should have granted him relief of mental anguish. In summation we were urged to find in his favour. 10 .0 APPELLANT'S ARGUMENT IN OPPOSITION OF THE CROSS APPEAL 10.1 In responding to ground one of the cross appeal, the appellant contended that this ground of appeal in essence attacks the finding of fact made by the trial court. It was submitted that it is settled that appellate courts should be slow to interfere with findings of facts J22 made by trial courts, which had an opportunity and advantage of seeing and hearing the witnesses. In support of this argument we were referred to the case of Augustine Kapembwa v Danny Maimbolwa and Attorney-General.14 10.2 It was further contended that the alleged failure to follow laid down procedure by the respondent flies in the face of both evidence on the record and the applicable law. We were referred to the case of Austine Mubanga v Grinaker Limited.15 10.3 It was the appellant's arguments that the respondent was dismissed for misconduct, being dishonesty in denying the existence of his romantic affairs with his subordinate. It was submitted that the dishonesty comes in the case because knowing that he was abusing his subordinate, he did not disclose his relationship to the bank which was misconduct on his part. On the basis of the foregoing arguments, the appellant's counsel urged us to dismiss the cross appeal. 11 .0 HEARING OF THE APPEAL 11.1 At the hearing, counsel for the appellant Mr. Kalokoni intimated that the appellant placed reliance on the filed heads of argument with brief augmentation. Learned counsel for the respondent, Mrs. Muchiya, equally informed us she would rely on their arguments in J23 opposition and in support of the cross appeal. We will not repeat the oral arguments as the same have already been covered. 12 .0 THE DECISION OF THIS COURT 12.1 We have cautiously considered the grounds of appeal, the cross appeal and the arguments which counsel on either side placed before us in the context of the judgment now under attack. We are grateful to counsel for their helpful efforts. We shall consider the main appeal first and then the cross appeal. 12.2 The Main Appeal 12.3 In supporting the decision taken by the Bank to terminate the respondent's employment, learned counsel for the appellant submitted that the Bank can impose a stiffer penalty on a senior member of the organisation who is supposed to lead by example to others. They contended that the different treatment they accorded to the two employees cannot be construed to amount to discrimination. On the other hand, the respondent argued that he was discriminated against as his co-offender should have been dismissed as well. 12.4 We do agree with the appellant's submission that there was no evidence of discrimination specifically adduced to support the trial judge's findings. We find nothing wrong with the treatment which J 24 was accorded to the respondent. It is clear that those who have high responsibility or hold superior office should ordinarily be expected to exhibit high levels of responsibility. A higher standard of behaviour is thus expected. There is no dispute that the respondent was dismissed while his co-offender, who was his subordinate, was not. In the case of Ngwira v Zambia National Insurance Brokers16 the Supreme Court guided that "there is nothing improper with punishing a senior member of an organisation more severely on the grounds that he should be setting an example to others." It is ordinarily justifiable to impose stiffer penalty to a superior officer. We therefore do not agree that this alone amounted to discrimination. 12.5 We also agree with learned counsel for the appellant that the learned trial court having found that the respondent was not wrongfully dismissed, erred when it went on to find that he was unfairly dismissed and awarded him damages. It is inconceivable that a person who is found to have been properly dismissed can in another breath be unfairly dismissed, at least not in the circumstances of this case. 12.6 Accordingly, we find that grounds one, two and three have merit. Given the foregoing, ground four of the appeal falls off. J25 12.7 We move on to consider ground five of the main appeal which raises an issue over the decision of the trial court to award costs to the respondent. We will not belabour in delving into this discourse as we already made ourselves clear in the case of Standard Chartered Bank PLC v Celine Meena Nair9 in which we said as follows: "We now turn to consider the issue of costs which were awarded in the court below..... the Supreme Court in the case of Engen Petroleum Zambia Limited v Willis Muhanga and Jeromy Lumba, was faced with a similar situation and it set aside the order of costs made by the court below (industrial relations division). We read that case and the Supreme Court per Mambilima O elucidated that in matters decided in the Industrial Relation Division, costs are awarded in line with the provision of Rule 44(1) of the Industrial and Labour Relations Act which is couched as follows: "where it appears to the Court that any person has been guilty of unreasonable delay, or of taking improper, vexatious or unnecessary steps in any proceedings, or of other unreasonable conduct, the Court may make an order for costs or expenses against him/' The Supreme Court observed that the effect of Rule 44(1) is that IRC (now a division of the High Court) can only make an order for costs against a litigant if they had been guilty of unreasonable delay, or had taken improper, vexatious or unnecessary steps in the proceedings, or is guilty of other unreasonable conduct. The court followed its earlier decisions in the cases of Amiran Limited v Rober Bones and Zambia Telecommunications Company Limited v Mirriam Shabwanga and 3 Others in which it explained the rationale behind Rule 44(1) being that the IRC was initially established as an employment J26 tribunal and the Rules were intended to guard against abuse of the court process through unreasonable delays, unnecessary or vexatious applications while ensuring that genuine litigants are not discouraged from asserting their rights on account of cumbersome rules of evidence and litigation costs to which they could be condemned." 12.8 As we see it, there was no need for the trial court to award costs in this matter as the requirements under Rule 4(1) were not met. Accordingly, this ground of appeal also succeeds. 12.9 The Cross Appeal 12.10 In the cross appeal, the respondent has taken issue with the finding of the trial court that there was no wrongful dismissal. In our understanding of his arguments, the respondent contended that he was wrongfully dismissed as the disciplinary mechanism which was set in motion by the appellant Bank was not in conformity with the laid down rules and regulations. To be specific, he pointed out the manner in which his query was raised and the composition of the disciplinary committee. According to the appellant's Disciplinary Policy and Procedure Code, the composition of the disciplinary committee in the respondent's matter ought to have been two managers from J27 departments other than his department, one official from human resource department, one legal officer if necessary. 12.11 In this case it is clear that this provision was ignored. What we decipher from the record is that the person who raised the query together with the immediate supervisor for the respondent formed the disciplinary committee. Mambilima JS, as she then was, stated in Mwenya case supra, that: "The court below found that the rules of natural justice had been breached in that the acting brewery manager, who was not the respondent's immediate supervisor, charged the respondent and later chaired the disciplinary hearing. He later served as secretary at the hearing of the appeal. Indeed, these facts show that the acting manager was both the accuser and the judge." 12.12 It is our considered view that the clause on the composition of the disciplinary committee was imbedded in the appellant's Disciplinary Policy and Procedure to ensure that a fair hearing is conducted. 12.13 The other issue which the cross appeal raises is that the respondent was not given the appropriate punishment for the offence he was charged with. According to his termination letter as it appears on page 34 of the record of appeal, he was J28 dismissed because he had an inappropriate relationship contrary to clause 4.16 of the Employee Guide which forbids relationships between employees in the same branch. The said letter of termination stated that: "the committee finds your actions immoral and unprofessional, more so that you are a branch manager." 12.14 The respondent contended that according to the findings of the committee, the appropriate sanction commensurate with the findings of the committee was immoral conduct, offence No. 21 in the schedule of offences whose sanction is final written warning on first instance. On the other hand, the appellant contended that the respondent was dismissed for misconduct being dishonesty in denying the existence of his romantic affairs with his subordinate. That dishonesty comes in the case because knowing that he was abusing his subordinate, he did not disclose this relationship to the Bank. 12.15 While we agree with the appellant's contention that it is the severity of the offence and not the type which determines its penalty, we do not agree with the procedure taken by the appellant Bank to go shopping for all manner of offences for the respondent. This is also evidenced in the submissions in J29 opposition to the cross appeal where the appellant has come up with a new allegation that the respondent abused his subordinate. Had the appellant properly followed the disciplinary procedure as elaborated in the Disciplinary Policy and Procedure Code, all this could have been avoided. The appellant should have carefully and strictly followed the disciplinary procedure, especially in the light of the fact that the originator of the complaint was the respondent's wife, who worked in the appellant's Human Resource Department, having caught her beloved husband romantically exchanging love messages with his core worker. 12.16 We also note that provision relied on by the appellant in dismissing the respondent are found in the Employment Guide. We shall reproduce the relevant portion: "At the same time, the Bank does not wish to stand in the way of partnerships that may form between individuals in the Bank and will not object to such partnerships between staff provided the two individuals are in different branches or departments. In cases where both individuals are employed in the same branch or department, they must inform their branch manager, who in turn should inform the relevant Management Board Member. Whenever possible, management will try to facilitate continued J30 employment for the individuals concerned in different branches and unconnected departments." 12.17 The guide seems to discourage relationships between employees in the same branch or department and that if such exist, the same must be disclosed to the Branch Manager. What is cardinal is that there is no corresponding offence in the appellant's Disciplinary Code neither does the Employee Guide create an offence or penalty for failing to disclose the relationship. It is common knowledge that a person can only be punished for conduct prohibited and for which a penalty is provided. We have no doubt that had the learned court taken a proper view of the evidence before it, it would have found that the respondent's dismissal was wrongful as no offence existed and the composition of the disciplinary committee was in violation of the Code. We thus set aside the trial court's finding in this regard. 12.18 In the circumstances, we find that ground one of the cross appeal has merit. 12.19 Coming to ground two of the cross appeal, the respondent J31 takes an issue with the judgment of the trial court to the effect that he did not lead evidence in support of his claim for mental anguish. The respondent contended that he demonstrated before the trial court that he did suffer some physical discomfort, inconvenience and loss of career prospects as a result of the sudden loss of employment. 12.20 In our view it is obvious that a sudden loss of employment will lead to one suffering some form of physical discomfort, inconvenience, and many more. This does not necessarily mean that one has suffered mental anguish. The trial court was thus on firm ground. Accordingly, we find no merit in . ground two of the cross appeal. 13 .0 CONCLUSION 13.1 Having allowed all the grounds of appeal, we find that the respondent was not unfairly dismissed and we set aside the order of costs awarded against the appellant. 13.2 In respect of ground one of the cross appeal, the same is allowed. We hold that the appellant was wrongfully dismissed and set aside the lower court's holding that there was no wrongful dismissal. Ground two of the cross appeal is dismissed. We award the respondent six (6) months' salary including J32 allowances as compensation for wrongful dismissal. We find the award adequate in the circumstances of this case. The same to attract interest at the prevailing Bank of Zambia short term deposit rate per annum from the date of the complaint to the date of the judgment of the lower court and thereafter at the commercial lending rate as determined by Bank of Zambia. Each party to bear its own costs. F. M. CHISHIMBA COURT OF APPEAL JUDGE B. M. AJULA COURT OF APPEAL JUDGE K. MUZENGA COURT OF APPEAL JUDGE